7 VII. Group Criminalty 7 VII. Group Criminalty
7.1 VII.A. Accomplice Liability 7.1 VII.A. Accomplice Liability
Most of the cases we have studied have involved only one criminal, and we have considered the culpability only of the principal actor committing the crime. In reality, however, many crimes implicate multiple people. Complicity is not actually a crime; rather, it is a theory of liability whereby a person can be criminally liable as an accomplice. In aiding a person who commits a crime, an accomplice becomes personally liable for the other person’s crime. Accomplice liability holds a person, as a result of his own actions, responsible for someone else’s actions. Increasing a person’s liability beyond the scope of his direct actions, however, risks overextending liability. Courts and legislatures often account for this by adjusting the mens rea requirement upward. How far should liability extend? To specifically intended results, to foreseeable results, or to all results that may occur? As you read these cases, note not only when courts attach accomplice liability, but also how far that liability extends.
7.1.1 People v. Luparello 7.1.1 People v. Luparello
THE PEOPLE, Plaintiff and Respondent,
v.
THOMAS GAETANO PHILLIP LUPARELLO et al., Defendants and Appellants.
Court of Appeals of California, Fourth District, Division One.
[417] COUNSEL
Thomas Gaetano Phillip Luparello, in pro. per., Michael Ian Garey, Ann Shaw and Scott R. Jakust, under appointments by the Court of Appeal, for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Keith I. Motley, M. Howard Wayne and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
[418] OPINION
KREMER, P.J.
Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (Pen. Code,[1] §§ 182, subd. 1, 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor's conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants' contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello's wife, Terri left her job in May 1980. Terri then met and shortly thereafter married Ed Gadzinski.
Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello's house. Luparello then had three other roommates: Brad Wilson, Ben Wilson and Ron Jennings.
On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello's house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello's child.
Luparello called home on May 9 and a roommate told him Terri had left. Luparello returned immediately and began an intensive search for Terri. He [419] contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed's workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello's patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello's roommate, and the four drove to Orduna's house. On the way, Luparello and Salmon discussed the cost for Orduna's and Salmon's services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.
Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as "Spooky" gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to "thump" the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and "Spooky" left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.
On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.
Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. 1, [420] 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.
After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.
LUPARELLO'S APPEAL
I
PROSECUTORIAL MISCONDUCT
(1a) A prosecutor is not merely an advocate for the People. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ..." (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal. Rptr. 594, 487 P.2d 1234].) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal. Rptr. 855, 659 P.2d 1144].) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal. Rptr. 632, 523 P.2d 672].) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance "in isolation might not be considered `grossly improper', [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction." We begin by reviewing each allegation and then determining their cumulative effect, if any.
A. Improper References to Street Gang Membership
In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the "F-Troop" gang, an ethnic [421] street gang based in Orange County. (2) Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.
Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor's attempt to inform the jury regarding Orduna's prior assistance in Luparello's dispute with some neighbors. The first of these occurred during Brad Wilson's direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued: "... What was the substance of the conversation?
"A. That at a previous time — I'm unsure when —
"[Luparello's Counsel]: Same objection.
"The Court: The objection is sustained as to the defendant Orduna. [¶] You may proceed.
"Q.... What was the substance of the conversation, where Dr. Luparello was indicating to you what Dr. Luparello's previous relationship with Mr. Orduna was?
"A. He said that early in the year he had trouble with his neighbors across the street and that he had — I don't know what to say, the exact words — used them or got their help in settling the dispute.
"Q. Referring to Mr. Orduna?
"A. Yes.
"[Luparello's Counsel]: Object. Move to strike. Irrelevant. And the previous grounds. [¶] It also appears to be speculation as to, as to who's involved and what it is.
"The Court: The testimony will be stricken as to the defendant Orduna. The objection is sustained."
[422] Later, during the testimony of Ben Wilson, the prosecutor elicited similar testimony: "Q. Didn't he say to you, didn't Dr. Luparello say to you that he felt Carlos and Johnny could take care of this problem at this time?
"A. Yes, Sir, he did.
".... .... .... .... .... .... .
"Q.... yes. Didn't Dr. Luparello also tell you they had taken care of other problems and they were sure they could take care of this one, also?
"A. Yes." Luparello immediately objected, asserting this query had violated the trial court's directive regarding evidence of Orduna's past acts. The trial court agreed but determined any wrongdoing could be remedied by permitting the neighbor involved in the alleged dispute to be called as a defense witness. Luparello's counsel agreed this would resolve potential problems and the neighbor was called and testified favorably for Luparello.
We agree with the trial judge and Luparello's trial counsel that any prejudice flowing from the prosecutor's questions was greatly minimized by the neighbor's testimony, which completely eliminated any suggestions of wrongdoing by Orduna in connection with the neighborhood dispute. Reversal on this basis is not required. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
(3) On two other occasions, however, the prosecutor ignored the trial court's earlier admonition and attempted to put before the jury evidence Orduna belonged to a street gang which was routinely involved in violent and threatening activities. In the first instance, the prosecutor questioned Martin's neighbor who witnessed the shooting and asked whether he had been threatened sometime before testifying. The neighbor responded someone had written "FXTX Vida" on his van. In response to Luparello's motion to strike, the prosecutor, out of the presence of the jury, interpreted the graffito as meaning "F Troop, Live or Die." The trial court admitted the evidence, but admonished the jury to consider the evidence only in regard to the witness's credibility. (See People v. Lybrand (1981) 115 Cal. App.3d 1 [171 Cal. Rptr. 157].)
This admission of marginally relevant evidence was later turned on its head when the prosecutor sought to take advantage of its inflammatory effect in his cross-examination of Police Officer Daniel McCoy who had been called as a defense witness for the purpose of testifying regarding statements made by Michael Martin, the victim's brother, shortly after the shooting. Michael Martin was the person who had answered Orduna's knock on May [423] 14 and had called his brother to the door. Michael described the person he saw to Officer McCoy as "Mexican," "five three to five five," "kind of stocky," and wearing a black or dark blue beanie "like the F-Troopers and Delhi guys wear."
Perceiving that an opportunity had been thrust into his hands to get before the jury suggestive and prejudicial information which he had otherwise been prevented from introducing, the prosecutor cross-examined Officer McCoy as follows: "[Prosecutor]: You heard a reference in the tape — it's on page 3 and it's in the middle of the page on page 3 — to F-Troopers. And the question was, `You talking about the beanie, the navy type beanie, the cloth beanie that goes over the head?'
"And then Mike's answer was, `Like the F-Troopers and Delhi guys wear, yeah.'
"Is that right?
"A. Yes, Sir.
"Q. What type of experience have you had with this `F' Troop gang?
"A. I spent five years —
"[Luparello's Counsel]: I have to object to the relevance of saying `this "F" Troop gang.'
"The Court: Sustained.
"[Luparello's Counsel]: I have no objection if the officer corroborates that that's what a lot of them wear. But the way the question was phrased —
"The Court: The objection's been sustained.
"[Prosecutor]: I'll rephrase the question then, Your Honor.
"Q. What experience do you have with `F' Troop, as a Santa Ana police officer?
"A. I was assigned to the street gang detail for five years and during that time conducted many investigations involving `F' Troop.
"Q. What type of gang is `F' Troop?
[424] "A. It's a street gang.
"Q. Where are they located?
"[Luparello's Counsel]: I have to object again. It's not relevant to this case.
"[Prosecutor]: It certainly is, Your Honor.
"The Court: The objection is sustained.
"Q. Well, have you become aware of the type of hats that `F' Troop gang members where [sic]?
"A. Well, their clothing, what they have worn, yes, sir.
"Q. What type of clothing does this `F' Troop gang where [sic]?
"A. I've seen them wearing the beanies.
"Q. What other type of clothing do they wear?
"A. (No response.)
"Q. Like pants, do they wear khaki type pants?
"A. Yes, Sir.
"Q. Have you seen them wearing just plain t-shirts?
"A. Yes, Sir.
"Q. Do they wear any particular type of shoes?
"A. No, not a particular type but a variety.
"Q. Over what period of time have you had occasion to come in contact with `F' Troop gang members in the City of Santa Ana?
"A. Over a five-year period.
"Q. And had you been investigating crimes that have been committed by these gang members?
[425] "A. Yes, Sir.
"Q. And you've been assigned to the crimes against persons detail at the Santa Ana police department; is that right?
"A. Yes, Sir.
"Q. That involves homicides and attacks against people?
"A. Yes, Sir.
"Q. Prior to that you were assigned to a gang detail specifically involving the apprehension of gang type warfare in Santa Ana?
"A. Yes, Sir.
"Q. Was it during this period of time that you became aware of this `F' Troop gang?
"A. Yes, Sir.
"Q. Does the `F' Troop gang —
"[Luparello's Counsel]: I object. I move to strike the entire thing about `F' Troop.
"[Prosecutor]: Your Honor, he brought it out.
"[Luparello's Counsel]: There's absolutely no relevance. The witness merely stated that the type of beanie was consistent with, in his opinion, `F' Troop or the Delhi guys and from that a line of irrelevant questions is being asked. Object. Move to strike what's in so far.
"The Court: Well, the objection to this question, the court will rule on it when counsel finishes the statement. Or the question.
"[Prosecutor]: Fine. Thank you, Your Honor.
"Q.... Does F-X-T-X signify the `F' Troop gang?
"A. Yes, Sir.
"The Court: Then the objection to that question will be sustained. The answer is stricken.
[426] "I take it you still had your objection?
"[Luparello's Counsel]: Yes."
In this manner, the prosecutor used a relatively innocuous description of a type of head gear worn by the man who knocked at Martin's door and began a foray based consistently on leading questions in which he attempted to inform the jury by innuendo not only that F-Troop was a street gang whose members were suspected of committing homicides and other violent attacks on persons, but also that the gang was likely connected to the case in such a way that its members had threatened a material witness.
The People seek to justify the prosecutor's conduct on the theory that defense counsel "opened the door" by introducing Michael Martin's taped statement which included the "F-Troop" reference. The fact that a topic is raised on direct examination and may therefore appropriately be tested on cross-examination, however, does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination. Here, the prosecutor's attempt to cast Orduna as a member of a violent gang was irrelevant for any purpose other than to suggest Orduna's predisposition to commit violent acts, a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). (People v. Perez (1981) 114 Cal. App.3d 470, 477 [170 Cal. Rptr. 619]; see also In re Wing Y. (1977) 67 Cal. App.3d 69, 79 [136 Cal. Rptr. 390].)
While the court's sustaining of defense objections and striking of testimony suggested it did not condone such conduct, the flagrancy of the prosecutor's misconduct makes it highly unlikely that even a conscientious jury could completely ignore what it had heard. (See People v. Taylor (1961) 197 Cal. App.2d 372, 382 [17 Cal. Rptr. 233]; see also People v. Kirkes (1952) 39 Cal.2d 719, 726 [249 P.2d 1].) On the other hand, we must recognize that the prejudicial effect of inadmissible gang membership evidence lies in its tendency to suggest that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal. Rptr. 165, 647 P.2d 569] (plur. opn.); People v. Perez, supra, 114 Cal. App.3d at p. 477.) Here, the evidence surrounding the planning and preparation for the assault on Mark Martin adequately demonstrated Orduna's willingness to use weapons and engage in acts of violence. (See ante, p. 419.) In this context, evidence connecting Orduna to a violent street gang — although hardly desirable from Orduna's or Luparello's point of view — did not have the impact it might otherwise have had. Moreover, while the prosecutor's misconduct firmly implanted in the jurors' minds that F-Troop was a violent gang, the evidence of Orduna's membership in the gang [427] was tangential. In an attempt to minimize the effect of the prosecutor's misconduct, the court was careful to instruct the jurors "... that there [was] no credible evidence in this case that Carlos Orduna was a member of any criminally oriented gang."
California appellate courts have repeatedly recognized that even flagrant misconduct by a prosecutor does not relieve them of their obligation to ascertain whether the misconduct resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 120-121 [32 Cal. Rptr. 4, 383 P.2d 412]; People v. Wirth (1960) 186 Cal. App.2d 68, 78 [8 Cal. Rptr. 823].) Under the circumstances of this case, we do not believe that the gang membership evidence which was improperly placed before the jury makes it reasonably probable that the jury would have reached a different verdict in the absence of the misconduct. (See People v. Munoz (1984) 157 Cal. App.3d 999, 1013 [204 Cal. Rptr. 271].)
B. Bad Faith Inquiry
(4) Ben Wilson testified on direct examination by the prosecutor that Luparello told him he paid $200 for the assistance of Orduna and Johnny Salmon. The prosecutor was apparently aware that informers who had been incarcerated with Salmon stated he told them he was paid $800 up front and was to receive $10,000 for beating Mark Martin and another $15,000 as a bonus for killing him. During a break in Ben Wilson's testimony, the respective counsels discussed in camera the possibility of admitting the informers' statements, and the trial court indicated its preliminary view that such evidence was inadmissible, the final decision to be reached at a later hearing.[2]
Thereafter the prosecutor resumed his questioning of Ben Wilson as follows: "Q. Now, do you recall Dr. Luparello ever telling you that he had paid Johnny Salmon $800 up front?
"A. No, Sir, I do not.
"Q. And that he was to get a total of $10,000 —." Luparello's counsel objected, challenging the leading nature of the question and the prosecutor's good faith in asking it. The court agreed with defense counsel and, after a [428] voir dire examination of Wilson in chambers, prohibited the prosecutor from continuing his line of questioning. The court and defense counsel then agreed to forego any admonition to the jury on the theory it would merely draw attention to the point.
We are troubled by the prosecutor's attempt to use his questioning to get before the jury information he could not legitimately introduce directly through the testimony of the informers. (See People v. Perez (1962) 58 Cal.2d 229 [23 Cal. Rptr. 569, 373 P.2d 617]; People v. Blackington (1985) 167 Cal. App.3d 1216 [213 Cal. Rptr. 800].) We cannot conclude, however, that such conduct requires reversal. The suggestion contained in the prosecutor's question merely disagreed in amount with facts already admitted by Wilson. The jury was properly instructed pursuant to CALJIC No. 1.02 that questions asked by counsel are not evidence and are not to be considered as such. In no sense can it be considered reasonably probable that a different result would have been reached in the absence of the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Misconduct During Closing Argument
(5a) Luparello asserts the prosecutor unacceptably and inflammatorily compared him to Charles Manson and unconstitutionally commented on Luparello's failure to testify. (1b) In reference to the first allegation, we note the prosecutor may broadly argue the facts and law of a case but may not prejudicially misrepresent the character of the accused nor intentionally appeal to the fears and emotions of the jury. (People v. Fosselman, supra, 33 Cal.3d at pp. 580-581; People v. Jones (1970) 7 Cal. App.3d 358, 362-363 [86 Cal. Rptr. 516].) In discussing the instruction on aiding and abetting, the prosecutor stated: "So this is one who aids and abets. One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are committing, but he's also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"If one person sets in motion some people that are out of control and they go in and start killing people —
"An example might be, and we talked about it, is the Charles Manson case type of thing. Charles Manson is a classic example of the aider and abettor. He apparently wasn't present at any of the crime scenes. Yet he set in motion some people that were just out of control. And they killed and maimed at will. Yet Charles Manson was responsible for those particular crimes.
[429] "And he's responsible under theories such as this one here where even though the person didn't intend that a particular crime be committed, that person is liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"So if you send some — I hate to use the word `crazy' because it's got different meanings in the criminal law. But if you send some people that are completely out of control to go do something, and it's reasonable and probable that they will get carried away and execute someone, then you're guilty, just as guilty as they are, of that execution."
Luparello did not properly preserve his challenge to this argument by objection below. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal. Rptr. 1, 609 P.2d 468].) (5b) In any event, the prosecutor's comments were neither erroneous nor prejudicial. His reference to Charles Manson provided a proper, albeit provocative, example of the workings of an aider and abettor theory. The comments neither expressly or impliedly parallel Luparello's character to that of Charles Manson. Mere reference is not an impassioned plea aimed at the jury's fears and anxieties.
(6) Luparello further asserts the prosecutor's following argument violates the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which prohibits comment on the defendant's exercise of his constitutional right not to testify: "Now with respect to Mr. Chatterton [Luparello's counsel], a number of places here Mr. Chatterton has indicated to us that — at one time Mr. Chatterton indicated that Dr. Luparello wouldn't have wanted to tell Brad that, referring to something, I don't know what he's referring to offhand. One time Mr. Chatterton indicated that, either in argument or in the opening statement, that Dr. Luparello lied to the police because of Kelly Schwulst's statement to him.
"Another time Dr. Luparello asked Brad to go to the door at the Martin house because Brad wouldn't be involved in that, in a beating, says [sic]. That's why Dr. Luparello asked Brad to go to the door. Remember that?
"Another time — what do you think Dr. Luparello believed with respect to whether Brad would lie or not?
"All of those questions and statements suffer from the same problem. There is no evidence in this case whatsoever as to what Dr. Luparello was thinking about why Dr. Luparello asked Brad to do this, what Dr. Luparello heard from anyone other than what we heard in the case. What Dr. Luparello thought because Kelly called him. No evidence of that. Any evidence of [430] what was going on in Dr. Luparello's mind with respect to that is just rank speculation.
"We talked about this early on. Everything that is an inference from the facts has to be established by the facts. What are the facts? This is an important issue in this case. Why did Dr. Luparello lie so much to the police? Mr. Chatterton's answer is because of what Kelly Schwulst had told him. Does that wash in your mind?
"One, there is no evidence whatsoever that that was what caused Luparello to lie to the police. That's just speculation by Mr. Chatterton. The only thing that we have in that respect is that Kelly did tell him that. So apply that in your experience."
While it is undisputed "Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence...." (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal. Rptr. 652, 623 P.2d 213]; accord People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) Here, the prosecutor neither comments directly on Luparello's failure to testify nor indirectly encourages the jury to speculate about his silence. He instead properly reviews critical aspects of the defense theory relative to Luparello's mental state and points out the dearth of evidence to support the theory. Luparello's testimony was not necessarily the only material evidence on this point. That he did not testify and did not choose to proffer other relevant evidence does not preclude the prosecutor from illuminating this deficiency. The prosecutor's comments are not Griffin error.
D. Delay of Trial
(7a) On October 6, 1981, all parties stipulated the trial would recess during the trial judge's previously scheduled vacation and would reconvene on November 4, 1981. However, on November 4, the prosecutor could not proceed in the instant case because he had become unexpectedly involved with another murder trial. The prosecutor requested the instant trial be continued until November 23, 1981. After a hearing, the trial court granted the request. Luparello now argues this "delay" denied him a speedy trial and is another ground for misconduct. We find no merit in this contention.
Luparello cites People v. Hannon (1977) 19 Cal.3d 588 [138 Cal. Rptr. 885, 564 P.2d 1203], for the proposition the "constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its [431] officers." (Id. at p. 609.) However, Hannon dealt exclusively with pretrial delay and has no relevance to the instant case. Indeed, even assuming the cited language did apply, Luparello's assertion would still fail. He has not shown, nor does the record reveal, the prosecutor intentionally or negligently delayed the instant proceedings. As was determined at the trial court's hearing on this matter, the delay resulting from the prosecutor's conflicting commitments was unavoidably unforeseeable.
In reviewing Luparello's allegations of misconduct, individually and collectively, while we find error, we find no significant prejudice to him.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
(8) The charge of inadequate assistance at trial is a serious one, and the appellant has the burden of proving his claim. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859].) "[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings. [Citations.]" (People v. Fosselman, supra, 33 Cal.3d at p. 584.) Further, "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses counsel had no rational tactical purpose for his act or omission." (Id. at p. 581.) Luparello grounds his complaint in his counsel's failure to oppose the People's motion to dismiss and his later failure to seek dismissal when his rights to a speedy trial were denied.
(9a) Early in the trial, the trial court was asked to determine the admissibility of a hearsay statement by Luparello. The court initially excluded the statement (although it later reversed its ruling and allowed admission). Believing the case against Luparello was jeopardized by the initial exclusion of the hearsay statement, the People sought to dismiss the information against Luparello. Luparello's counsel challenged this dismissal, and it is this act which Luparello now faults. Initially, we note the record clearly shows Luparello personally endorsed his counsel's action. Moreover, counsel's argument on this motion evidences numerous tactical decisions for his opposition. Counsel was aware jeopardy had not attached and the People would refile against Luparello. A new trial would not present the same obstacles to the admission of the challenged hearsay statement, and the increased investigation time afforded by a dismissal would likely strengthen [432] the People's case which counsel viewed as "weak" at that time. In sum, Luparello can not be heard to complain for a tactical action which he personally endorsed.
Luparello also contends his counsel should have sought dismissal when the trial was not commenced in accord with section 1382, subdivision 2. This section mandates dismissal when trial in a superior court is not commenced within 60 days after the information is filed. In the present case the information was filed on July 24, 1981, and trial was commenced on September 16, 1981. Given the elapsed time between these dates, Luparello's assertion must be seen as a result of a miscalculation. The 60th day of the statutory period was September 21, 1981. On these facts, Luparello's assertion must fail.
(7b) Finally, Luparello faults his counsel for failing to seek dismissal when the trial could not be reconvened on November 4. As discussed above, this delay did not infringe upon Luparello's right to a speedy trial, and there was no evidence of misconduct in the prosecutor's seeking of the continuance. (9b) Most importantly, the record shows Luparello's counsel again chose to proceed for tactical reasons. In discussing the court's ruling on a hearsay statement, Luparello's attorney stated: "I took the tactical position that I wasn't going to make a big stink about it; that the relationship that had been established up to that point in time had me winning on this issue when opposed to Mr. Brown [the prosecutor], and with Mr. Brown's position that he wasn't going to relitigate — and I recognize that was really in reference to going to another court — but it still led me to believe that with Mr. Brown and I in front of this court on that issue, I was going to win that issue.
"So rather than insist that we proceed to trial immediately or that we even oppose the trailing condition, we didn't do that. And I think that had we made a stink this court would have felt compelled to direct the district attorney to have somebody ready to try this case at a sooner time. But we continued to trail this matter until November the 23rd.
"I advised my client, during that period of time, to be patient, though he wanted to get this thing to trial. He doesn't like sitting in jail; that tactically it was better for us to have Bryan Brown on the case rather than to have some new attorney who might be more inventive, who might be willing to raise the argument to relitigate those evidentiary motions instead of Mr. Brown."
In reviewing all of Luparello's allegations, we find he has failed his burden of showing he was ineffectively assisted by counsel.
[433]
III
ADMISSION OF LUPARELLO'S HEARSAY STATEMENT
(10) On the day of the homicide, Luparello telephoned Mrs. Hazel Schwulst, the mother-in-law of Mark Martin's very good friend, and stated: "[I have] some Mexicans that are going to take care of Mark Martin." After an extensive hearing, the trial court reversed an earlier ruling and admitted the hearsay statement. Luparello now argues that ruling was improper under the rule of People v. Aranda, supra, 63 Cal.2d 518.
In Aranda the California Supreme Court held a defendant's extrajudicial statement which implicated a codefendant could not be admitted unless the trial court undertook one of several safeguards. (People v. Aranda, supra, 63 Cal.2d at pp. 529-531.) Here, however, Luparello is the declarant of the statement and in this capacity, the protections of Aranda do not apply. If this problem does arise it is Orduna, the arguably implicated nondeclarant, who is entitled to Aranda protections (and this he so argues). As to Luparello, the statement constitutes a party admission and is excepted from the hearsay bar by Evidence Code section 1220 which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...." Thus, the admission of the hearsay statement against Luparello was proper.
IV
INSTRUCTIONAL ERROR
(11) The prosecution alleged two overt acts to support the conspiracy to commit an assault charge against Luparello. Luparello argues each act, in itself, was sufficient to support the charge, and since the trial court failed to instruct[3] the jury to agree unanimously on one specific act, his conspiracy conviction should now be reversed.
While it is clear a trial court does have a duty to instruct sua sponte on general principles of law relevant to issues raised by the evidence (People [434] v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal. Rptr. 436, 650 P.2d 311]), the duty Luparello seeks to impose does not arise from the present facts. Indeed, case law holds the jury charge here was quite adequate. (People v. Skelton (1980) 109 Cal. App.3d 691, 715-717 [167 Cal. Rptr. 636].)
The court instructed that Luparello's meeting with Orduna and several other unnamed parties on May 13 to solicit their assistance in finding Ed and Terri Gadzinski constituted the first overt act and the second was the shooting of Mark Martin on May 14 (pursuant to the above conspiracy). Luparello argues that by coupling each overt act with other evidence two separate conspiracies are revealed, one occurring on May 13 and the other on May 14. Consequently, further instruction on whether one or two conspiracies were formed was required. He also argues that without greater explication, the instructions run afoul of the rule in People v. Diedrich (1982) 31 Cal.3d 263, 280-281 [182 Cal. Rptr. 354, 643 P.2d 971], which requires the jury to agree unanimously on a single, specific act as the basis for a particular conviction.
Luparello's hypothesis is unfounded. The evidence shows Luparello wanted to find Terri "at any cost," he solicited assistance from Orduna and Salmon, he paid $40 and promised more, he went to Mark Martin's house with Orduna and Salmon who carried deadly weapons, and he failed in his first attempt. Undaunted, Luparello called Hazel Schwulst the next day, again seeking information regarding Terri's whereabouts and stating he had some Mexicans who would take care of Martin. Several hours later Orduna, under pretense, led the victim to his death. The evidence thus shows a continuous conspiratorial effort that was simply thwarted in its first attempt to reach its goal. The evidence does not reveal two distinct conspiracies, as Luparello argues, but a number of distinct acts arising from "one overall agreement" and forming a continuous course of conspiratorial conduct. (See People v. Skelton, supra, 109 Cal. App.3d at p. 718.)
In any event, the special instructions requested by Luparello are not warranted in the present case. In People v. Skelton, supra, 109 Cal. App.3d 691, this court, faced precisely with the issue now raised by Luparello, determined a special instruction requiring jury unanimity on an overt act furthering a conspiracy need not be given when a jury is instructed in the language of CALJIC Nos. 6.10 and 17.50. CALJIC No. 6.10 defines conspiracy and provides: "In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the information...." CALJIC No. 17.50 is a concluding instruction which in part provides: "In order to reach a verdict all 12 jurors must agree to the decision and to any finding you have been instructed to include in your [435] verdict." After reviewing the instructions in Skelton, we concluded: "These most specific instructions [No. 6.10] must be viewed in conjunction with the unqualified requirements that proof be made beyond a reasonable doubt as to each element of an offense and that the verdict be unanimous. There is no inadequacy in the instruction given...." (Id. at p. 717.) Here as in Skelton, CALJIC Nos. 6.10 and 17.50 were given. And again as in Skelton, we find instruction on conspiracy to be proper and complete.[4] Thus, given the proffered instructions here, the trial court had no duty to provide further instruction sua sponte. (See People v. Mota (1981) 115 Cal. App.3d 227, 232-233 [171 Cal. Rptr. 212].)
V
CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
(12a) The trial court charged the jury with several different theories by which Luparello's guilt for first degree murder could be affixed; among these were conspiracy and aiding and abetting. On appeal, Luparello faults the application of the complicity theories in two ways. First, he maintains conspiratorial liability, as charged to the jury, violates the principle of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580].
In Ireland, the Supreme Court held felony-murder instruction was improper "when it is based upon a felony [in that case assault with a deadly weapon] which is an integral part of the homicide...." (Id. at p. 539.) In reaching its result, the high court reasoned: "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law...." (Ibid.)
Luparello concedes a felony-murder instruction was not given in the present case and the precise Ireland holding consequently does not apply. He asserts, however, the conspiracy instruction given here, that is, CALJIC No. 6.11, is the functional equivalent of the felony-murder instruction in Ireland and similarly allows improper "bootstrapping." We disagree.
[436] Luparello specifically points to the language of CALJIC No. 6.11[5] which provides: "Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan...." From this he reasons the jury, so instructed, could have found him guilty of first degree murder without any proof of malice notwithstanding he did not commit the homicide nor intend its commission. This, he concludes, replicates the error in Ireland.
While the Ireland court did fault the second degree murder finding there absent some consideration of malice, it did so because of the illogic of applying the felony-murder rule to those circumstances. The same failing does not apply here. (13) The felony-murder rule's purpose is to deter felons from killing negligently or accidentally. (People v. Satchell (1971) 6 Cal.3d 28, 34 [98 Cal. Rptr. 33, 489 P.2d 1361]; People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130]; People v. Summers (1983) 147 Cal. App.3d 180, 188 [195 Cal. Rptr. 21] (conc. opn. of Wiener, J.).) Theoretically, this end is achieved by holding would-be felons strictly responsible for all killings they commit during the perpetration, or attempted perpetration, of any statutorily enumerated felony. (People v. Washington, supra, 62 Cal.2d at p. 781.) While arguably accepting the rule's purpose, our courts have nevertheless consistently stated felony murder is a "highly artificial concept" which "deserves no extension beyond its required application." (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; accord People v. Dillon (1983) 34 Cal.3d 441, 463 [194 Cal. Rptr. 390, 668 P.2d 697].) The rule is seen as "unnecessary" in almost all cases in which it was applied and, indeed, has been viewed as ending "the relation between criminal liability and moral culpability." (People v. Washington, supra, at p. 783.) Thus, for example, where the underlying felonious conduct is not independent of an assault which results in death, that is, where it merges with the homicide, our courts have consistently ruled the killing was outside the felony-murder rule. (See, e.g., People v. Smith (1984) 35 Cal.3d 798 [201 Cal. Rptr. 311, 678 P.2d 886]; People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847]; People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22].) In [437] California, then, the felony-murder doctrine is judicially disfavored and restrictedly applied.
(12b) In contrast, the policy supporting conspiratorial liability receives neither the disfavor nor restriction which adhere to the felony-murder rule. That a conspirator is criminally liable for acts done in furtherance and as a reasonable consequence of a conspiracy is so well settled and accepted in California jurisprudence, citation to that proposition is burdensome rather than illuminating. An early and oft-cited statement of conspiratorial liability is found in People v. Kauffman (1907) 152 Cal. 331 [92 P. 861]: "`The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. Even if the common design is unlawful, and if one member of the party departs from the original design as agreed upon by all of the members, and does an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the natural or legitimate consequence of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.'" (Id. at p. 334.) (14a) The law, thus stated, implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. As recognized in People v. Welch (1928) 89 Cal. App. 18 [264 P. 324]: "Unquestionably, the purpose of the law in making it an offense to conspire to commit a crime is to reach everyone who in any way participated in forming the evil plan irrespective of who or how many carry out the design, and well may this be a protection to society, for a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law." (Id. at p. 22.) (12c) Thus, coconspirators, bound in criminal combination, are mutually bound to a punishment dictated by their conspiratorial efforts. Viewed in this light, the bridge between punishment and moral culpability, so illusory or, upon scrutiny, evanescent under the felony-murder rule, stands here on much firmer ground. So too, deterrence, while absent when the underlying felony merges under the felony-murder doctrine, is clearly present under [438] the accepted theory of conspiratorial liability. (14b) In combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in "planning poorly," each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy. (15) Moreover, our criminal code recognizes and, indeed, reinforces conspiracy's independent threat by identifying it as a separate and distinct crime which never merges with the resulting substantive offense.[6] (§ 182; People v. Williams (1980) 101 Cal. App.3d 711, 721 [161 Cal. Rptr. 830].) In sum, the logical and legal impediments to criminal liability found in Ireland and its progeny have little or no dissuasive value here in limiting conspiratorial liability for the natural and reasonable consequences of a conspiracy. This being so, we find no obstacle in applying the well-accepted rule of liability to hold Luparello criminally responsible for Martin's murder.[7]
Luparello next attacks the theoretical underpinnings of conspiratorial and aiding-and-abetting liability, and specifically argues the murder here was the unplanned and unintended act of a coconspirator and therefore not chargeable to Luparello under either complicity theory.[8]
(16) Luparello first faults both theories for "imposing" the mens rea of the perpetrator upon him. As Luparello views it, both theories work to presume conclusively the accomplice shares the perpetrator's intent and thereby runs afoul of Sandstrom v. Montana (1979) 442 U.S. 510 [61 [439] L.Ed.2d 39, 99 S.Ct. 2450]. In Sandstrom, the trial court instructed the jury that the law presumed a person intends the ordinary consequences of his voluntary acts. The Supreme Court reasoned the jurors, so instructed, "... could reasonably have concluded that they were directed to find against the defendant on the element of intent. The State was thus not forced to prove `beyond a reasonable doubt ... every fact necessary to constitute the crime ... charged,'...." (Id. at p. 523 [61 L.Ed.2d at pp. 50-51].) The instruction was thus held constitutionally defective and violative of the defendant's due process rights. (Id. at pp. 522-523 [61 L.Ed.2d at p. 50].) Here, however, neither the conspiracy nor the aiding and abetting instructions recite the flawed presumption found in Sandstrom, nor do they present some equivalent of that presumption. Indeed, Luparello errs when he concludes the perpetrator and accomplice must "share" an identical intent to be found criminally responsible for the same crime. Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 349, fn. 51 [hereafter cited as Complicity Doctrine].) This equivalence is found in intentionally encouraging or assisting or influencing the nefarious act. "[B]y intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party. The intention to further the acts of another, which creates liability under criminal law, may be understood as equivalent to manifesting consent to liability under the civil law." (Complicity Doctrine, supra, at pp. 354-355; see generally Robinson, Imputed Criminal Liability (1984) 93 Yale L.J. 609.) Thus, to be a principal to a crime, the conspirator need only intend to agree or conspire and to commit the offense which is the object of the conspiracy (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal. Rptr. 516, 524 P.2d 1300]); while the aider and abettor must intend to commit the offense or to encourage or facilitate its commission (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318]). Liability is extended to reach the actual, rather than the planned or "intended" crime, committed on the policy conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. And it is precisely this policy which Luparello next challenges.
As previously discussed, Luparello maintains neither complicity theory can, in logic, predicate a murder charge against him on the unintended act of a coconspirator and, as applied in this case, are therefore theoretically infirm. Professor Sandford Kadish recently examined this argument in his thoughtful and provocative article, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (Complicity Doctrine, supra, 73 Cal.L.Rev. 323). In Professor Kadish's schema, two distinct doctrines coexist to affix [440] criminal responsibility: causation and complicity. Causation links blame to the actor for those physical events which, once put in motion, relentlessly collide with one another, eventually resulting in demonstrable harm. Complicity doctrine, on the other hand, affixes liability derivatively, charging a secondary party, that is, a coconspirator or an aider and abettor, with the criminal act of the principal whom the secondary party has intentionally and knowingly influenced or assisted. Thus, acts done in furtherance of a conspiracy or assisted or facilitated by an aider and abettor present no obstacles to affixing liability under the respective complicity theories. So understood, complicity doctrine works to attach liability only when the secondary actor has intended his influence or assistance. (Id. at pp. 346-348.) The unintended consequence is beyond the scope of this theory. Nor, as Professor Kadish opines, can causation doctrine reach a principal's unintended acts to attach liability to the accomplice who neither intended nor anticipated the ultimate criminal act. As Professor Kadish explains: "We regard a person's acts as the products of his choice, not as an inevitable, natural result of a chain of events. Therefore, antecedent events do not cause a person to act in the same way that they cause things to happen, and neither do the antecedent acts of others. To treat the acts of others as causing a person's actions (in the physical sense of cause) would be inconsistent with the premise on which we hold a person responsible." (Id. at p. 333.) Thus, the uncaused nature of a principal's volitional act impairs, if not precludes, a causative explanation for accomplice liability for the natural, probable and reasonable, though unintended, consequences of the conspiracy or the aided and abetted crime. (Id. at pp. 398-403.)
While we do not dispute the metaphysics of Professor Kadish's conclusion, we question whether, in a real world sense, the choices of an intentionally influenced conspirator or aided and abetted principal are so wholly volitional the prime mover should escape moral blame and criminal culpability.[9] Indeed, in circumstances like the well-orchestrated, assisted and funded criminal plot undertaken by Luparello, we think not. As one commentator explained: "[T]he concept of agency explains a great deal about why we feel justified in punishing an accomplice as if she were the perpetrator. Perhaps, however, our feelings may be described better in terms of `forfeited personal identity.' Ordinarily a person is held criminally responsible for his [441] own actions. However, when an accomplice chooses to become a part of the criminal activity of another, she says in essence, `your acts are my acts,' and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by `agency' doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual. Thus, moral distinctions between parties are rendered irrelevant. We pretend the accomplice is no more than an incorporeal shadow." (Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111, fn. omitted.) Professor Kadish himself noted: "It is apparent that the grip of the conception that a voluntary human action bars assigning causal responsibility to an earlier actor, pervasive as it is in the law, is loosened by the pull of the policy holding people liable for recklessly providing others with an occasion to do harm...." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 402.) (17a) The California Supreme Court implicitly recognized this "pull of policy" in the recent case of People v. Croy, supra, 41 Cal.3d 1: "The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.... [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury...." (Id. at p. 12, fn. 5, citations omitted, italics added.)
Adopting the reasoning of the Supreme Court, we find the conspiracy and aiding and abetting theories proffered here do not suffer the theoretical infirmities of which Luparello complains. In the circumstances of this case, each provides a sound basis to derive Luparello's criminal responsibility for first degree murder.
Luparello relies upon People v. Garewal (1985) 173 Cal. App.3d 285 [218 Cal. Rptr. 690], and People v. Henderson (1985) 163 Cal. App.3d 1001 [209 [442] Cal. Rptr. 883], to dissuade us from this conclusion. Neither, however, does so. In Garewal, the trial court modified the standard conspiracy instruction, CALJIC No. 6.11, to extend conspirator responsibility to the probable and natural consequence of the conspiracy "`... even though it was not intended as a part of the original plan, or was even actually forbidden as part of the original agreement ....'" (People v. Garewal, supra, at p. 299.) After reviewing both the principles and the criticisms of derivative responsibility in the conspiracy and aiding and abetting contexts, the court determined the modified instruction erroneously and unjustifiably extended conspirator liability. Concluding its updated analysis, the appellate court returned to historical roots: "[W]e conclude the clear thrust of Beeman is to contain the reach of vicarious criminal responsibility of conspirators to the natural and reasonable consequences of the conspiracy." (Id. at p. 302.) Though we have taken a different path, we concur with the conclusion of Division Three of this court. Finally, Henderson does not even reach the question of derivative liability for, under an erroneous aiding and abetting instruction, it could not be determined whether the defendant in that case acted with a specific intent to commit or facilitate the commission of the charged crime.
VI
SUFFICIENCY OF THE EVIDENCE
Luparello contends the evidence is insufficient to support (1) his criminal liability on either conspiracy or aiding and abetting theories and (2) his conviction for first degree murder. In support of his second contention, Luparello argues there is no evidence he premeditated or deliberated the killing of the victim. Luparello's liability, however, is affixed as a principal under both conspiracy and aiding and abetting theories. Luparello concedes Orduna, his coconspirator and aided and abetted colleague, was convicted of first-degree murder for killing while lying in wait (§ 189). Also, as is discussed below, sufficient evidence supports Orduna's conviction for premeditated and deliberate murder. Proof of Luparello's own premeditation and deliberation is therefore unnecessary if the evidence supports his derivative criminal liability for Orduna's acts. We thus review the evidence supporting the conspiracy and aiding and abetting theories.
(18) As previously discussed, a conspirator is criminally liable for the act of a coconspirator which follows as a probable and natural consequence of the common design, even though it was not intended as a part of the original design or common plan. (People v. Kauffman, supra, 152 Cal. at p. 334; People v. Martin (1983) 150 Cal. App.3d 148, 164 [197 Cal. Rptr. 655]; In re Darrell T. (1979) 90 Cal. App.3d 325, 334 [153 Cal. Rptr. 261].) [443] "The question of what constitutes a natural and probable consequence is one of fact for the jury." (People v. Martin, supra, at p. 164.) (19a) Here the object of the conspiracy was to garner information regarding the whereabouts of Terri and Ed Gadzinski by any means necessary, including assault.[10] Luparello specifically targeted Mark Martin for he believed Martin had contacted Ed Gadzinski or, at least, knew where he was residing. He solicited Orduna and Salmon's assistance in extracting information, forcefully if necessary, from Martin and paid them for their efforts. Luparello accompanied them on an abortive trip to confront Martin. He was aware Orduna and Salmon carried deadly weapons with them at that time. Luparello had also told them he wanted the information "at any cost." The following day Luparello told Hazel Schwulst he had some Mexicans who were going to take care of Mark Martin, and he met with Orduna and Salmon several hours before the shooting. He was again aware they were carrying deadly weapons. That a homicide resulted from a planned interrogation undertaken "at any cost" by armed men confronting an unwilling source is unquestionably the natural and probable consequence of that plan. The evidence thus supports Luparello's liability for the conspiratorial acts.
Luparello insists killing the victim was inconsistent with the conspiratorial goal of obtaining information regarding Terri's whereabouts and therefore could not be a natural and probable consequence of the conspiracy. While this reasoning is appealing, Luparello's overall conduct belies the conclusion he reaches. Luparello's effort to gain information was concerted, and the enlisting of Orduna and Salmon to interrogate and "thump" a would-be informer was not the only avenue of inquiry he pursued. Indeed, he contacted the police and relentlessly pursued Ed and Terri's friends and relatives for information. When his efforts went unrewarded and his frustrations mounted, Luparello's threats and intimidations became more pointed. His statement regarding Mexicans who were going to take care of the would-be victim is such an example. In this context, Martin's eventual killing may be seen as yet one more escalation of Luparello's desire to gain information "at any cost." While Martin obviously provided no information here, his death was a warning to those who had not yet assisted Luparello that they should. While, in retrospect, Martin's death may be seen as an unproductive means to learn of Terri's whereabouts, it is not inconsistent with that goal.
In examining the sufficiency of the evidence in the present case, we are guided by the appellate court's resolution of this same issue in People v. King (1938) 30 Cal. App.2d 185 [85 P.2d 928]. There, on strikingly similar [444] facts, the Court of Appeal determined an unplanned murder was the natural and probable consequence of a planned assault. As the court explained: "In the present case there is presented no question of death resulting from the commission of a simple assault.... There is here a death resulting from the use of a deadly weapon which the appellants say they never intended. Such weapon was, however, actually used, and by one who joined with them in the plan to beat up the deceased, which plan they counseled. The question is whether the use of such a deadly weapon upon the [victim] and his resulting death was a natural or probable consequence of the plan or agreement among the actual assailants and the appellants for which the appellants may be held liable, two of them, ... not being present.
"The character of the plan is of great importance. Here, several men set out to beat up another. In the words of [the defendant], he `sent them over to tamp the chief'. Preparations were made for trouble. It was known that he was vigorous and strong. One, at least, prior to setting out on the expedition, equipped himself with a bludgeon. At the scene of the expected trouble others were asked to stand by. Not being able to get at the victim the first day, the majority returned the second day and proceeded to the victim's place of abode aboard ship. They prepared, and were prepared, to meet force with force and to overcome resistance at any cost. The natural and probable consequence of such an undertaking is homicide, and the homicide here committed by one of the conspirators is nothing less than murder. All who combined to commit the unlawful act of violence are equally guilty. The law makes no distinction between them and each is responsible for the act of any other of the party in the prosecution of the original design. All joining in the enterprise are as guilty of murder as the person who actually caused the death. [Citations.]" (Id. at pp. 200-201.)
Luparello relies on People v. Werner (1940) 16 Cal.2d 216 [105 P.2d 927], to argue for a contrary conclusion. His reliance, however, is misplaced. In Werner two of three coconspirators entered a "secret agreement" for the precise purpose of concealing their conduct from the other member of the conspiracy. That member was nonetheless charged with the criminal consequence of the secret agreement. In reversing the uninvolved coconspirator's conviction, the Supreme Court held coconspirator liability would not attach when the act in question was "... the fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design...." (Id. at p. 223.) As the above review of the evidence shows, the killing here was a foreseeable, though as to Luparello a possibly unintended, consequence of the conspiracy. It was not, however, a fresh and independent act of a coconspirator and consequently cannot absolve Luparello from his shared criminal responsibility.
[445] Luparello also challenges the finding of criminal liability under an aiding and abetting theory.[11] Luparello does not deny he aided and abetted Orduna and Salmon, but instead rejects culpability because he had no knowledge the perpetrator(s) intended to kill the victim. This, however, is not the law. (17b) "[T]he aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged...." (People v. Durham (1969) 70 Cal.2d 171, 181 [74 Cal. Rptr. 262, 449 P.2d 198], italics omitted, citing People v. Villa (1957) 156 Cal. App.2d 128, 134 [318 P.2d 828].) (19b) Applying the above recited facts to this theory, we again find factual support for Luparello's criminal liability: he aided and abetted Orduna and Salmon in the planned confrontation of Mark Martin and the consequential assault naturally and reasonably resulted in Martin's death.
Luparello argues People v. Smith (Cal. App.) and People v. Butts (1965) 236 Cal. App.2d 817 [46 Cal. Rptr. 362], parallel the present facts and compel a finding favorable to him. However, the California Supreme Court granted hearing on Smith on January 27, 1983, vacating the opinion and later transferring the cause for further consideration. (People v. Smith (D004490) hg. granted Jan. 27, 1983 (Crim. 22953) cause trans. to Ct.App. Apr. 24, 1986, for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal. Rptr. 79, 672 P.2d 862] and People v. Garcia (1984) 36 Cal.3d 539 [205 Cal. Rptr. 265, 684 P.2d 826].) This case cannot, therefore, provide the analytical parallels Luparello proposes. In Butts, the Court of Appeal found the alleged aider and abettor had no knowledge of the principal's wrongful purpose. Here, the evidence shows Luparello had knowledge of Orduna and Salmon's planned assault of Mark Martin, but does not clearly reveal his knowledge of the eventual murder. However, this knowledge, in contrast to Luparello's contention, is not necessary. As an aider and abettor, Luparello is responsible for the natural and probable consequences of the acts which he intentionally encourages.
In sum, substantial evidence supports the application of conspiracy and aiding and abetting theories. Luparello's first-degree murder conviction, predicated on the principals' conduct, is thus also substantially supported.[12]
[446]
VII
CRUEL OR UNUSUAL PUNISHMENT
(20a) In his reply brief, Luparello argues for the first time his sentence constituted cruel or unusual punishment under article I, section 17, of the California Constitution. Primarily relying on People v. Dillon (1983) 34 Cal.3d 441 [194 Cal. Rptr. 390, 668 P.2d 697], he argues his sentence was disproportionate when considering his individual culpability for the crimes. We disagree.
(21) In In re Lynch (1972) 8 Cal.3d 410 [105 Cal. Rptr. 217, 503 P.2d 921], our Supreme Court explicitly held a statutory punishment may be cruel or unusual, and hence violative of the state constitution, if it is grossly disproportionate to the offense for which it is imposed. (Id. at p. 424.) The United States Supreme Court reaffirmed a proportionality standard under the Federal Constitution in Enmund v. Florida (1982) 458 U.S. 782, 788 [73 L.Ed.2d 1140, 1146, 102 S.Ct. 3368]. After acknowledging the Legislature's function in defining crimes and prescribing punishments, the California Supreme Court in Dillon applied the reasoning of the above-cited cases to determine whether, given the circumstances of that case, a first degree murder punishment was "`... so disproportionate to the crime for which it [was] inflicted that it shock[ed] the conscience and offend[ed] fundamental notions of human dignity.'" (People v. Dillon, supra, 34 Cal.3d at p. 478, quoting In re Lynch, supra, 8 Cal.3d at p. 424.)
In Dillon, the defendant was a 17-year-old high school student who, along with six other schoolmates, planned a "rip-off" of marijuana growing in a mountain field. Several of the boys took guns with them to the field; the defendant carried a .22 caliber semi-automatic rifle. The group proceeded in their venture, and the defendant was stationed near the edge of the field. The defendant heard several shots and, believing his friends were being "blown away," became quite alarmed. Thereafter he was confronted by the victim who was carrying the shotgun. The defendant, according to his testimony, "`didn't know what to do'" and "`just pressed the trigger, I was so scared.... I just kept squeezing it, and shots just went off.'" (People v. Dillon, supra, 34 Cal.3d at p. 483.) The victim died several days later. The jury found the defendant guilty as charged. However, they expressed reservation about the harshness of the felony-murder rule and queried whether they could return a second degree murder verdict even though the killing occurred during the attempted robbery. After explicating the salient aspects in the nature of the offense and the offender vis-a-vis proportionate punishment (id. at p. 479), the Supreme Court found the defendant's life imprisonment sentence unconstitutionally excessive and modified the [447] conviction to second degree murder (id. at p. 489). In reaching its conclusion, the Supreme Court was persuaded by the reluctance of the jury to apply the felony-murder rule to the facts of the case, the defendant's immaturity and inability to foresee the risk of harm he was creating, the absence of any other criminal activity in the defendant's background, and the comparatively "petty chastisements" which were meted out to the other youths who participated in the same offenses. (Id. at pp. 487-488; see People v. Laboa (1984) 158 Cal. App.3d 115, 121 [204 Cal. Rptr. 181].)
(20b) While Luparello finds parallels between his circumstances and those of Dillon, we do not. Luparello was not an impetuous adolescent, but a learned and professional man in his mid-30's. Also, his charge arises as a consequence of a conspiracy he orchestrated, not as an application of the felony-murder rule. At all times, Luparello was the prime mover in the conspiracy. He coordinated meetings, gave directions, targeted the victim and paid for his coconspirators' assistance. Indeed, there is no question Luparello masterminded and encouraged the criminal cabal which ultimately resulted in the victim's death. Further, Luparello fails to identify any instance where the sentencing court did other than carefully and individually consider his sentence. We note the probation report did outline Luparello's otherwise nonviolent background, his exemplary behavior during incarceration and his apparent lack of a prior criminal record. Moreover, Luparello was sentenced after the court had thoroughly considered Orduna's individual culpability and just punishment. In stating: "[I]t is my intention to sentence the defendant in this case to the same [sentence] as I sentenced the defendant Orduna, ...", the sentencing court was implicitly finding Luparello as culpable as Orduna and thereby deserving of the same sentence. Thus, on this record we cannot say Luparello's individual culpability was ignored nor that his sentence constituted cruel or unusual punishment.
Having reviewed Luparello's contentions and finding no prejudicial error, we affirm.
ORDUNA'S APPEAL
VIII
PROSECUTORIAL MISCONDUCT, INSTRUCTIONAL ERROR AND CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
Orduna reasserts Luparello's contentions regarding prosecutor misconduct, instructional error and improperly deriving criminal liability from conspiracy and aiding and abetting theories. We do not restate the arguments [448] here but similarly resolve them adversely to Orduna. Additionally, Orduna cites approximately 10 further instances of alleged misconduct in the pros9ecutor's colloquy. These are, however, bare allegations, stating neither the gravamen nor prejudice arising therefrom. After reviewing each of these allegations, we find no evidence of misconduct and also note Orduna failed to object to over half of these alleged wrongs. (People v. Green, supra, 27 Cal.3d at p. 34.) Further, Orduna argues the prosecutor, in effect, served as an unsworn witness by putting evidence of Orduna's alleged relationship with the F-Troop gang before the jury. In so doing, Orduna contends the prosecutor violated his Sixth Amendment right to confrontation. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal. Rptr. 141, 589 P.2d 396].) Yet, Orduna does not direct us to any particular incident in the record. The other misconduct allegations Orduna invites us to review show the trial court consistently safeguarded Orduna's Sixth Amendment rights by properly sustaining objections and admonishing the jury to limit the use of evidence to the purpose for which it was admitted. In effect, Orduna asks us to speculate about misconduct, and this we cannot do. He has the burden of proving such harm, and on this record has failed to sustain that burden.
IX
DENIAL OF THE MOTION TO SEVER
Orduna contends the trial court improperly denied his motion to sever and outlines five Massie[13] factors, all allegedly present in this case, which highlight the impropriety of the trial court's ruling. (22) These factors include: "(1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter (People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]; see also Bruton v. United States, 391 U.S. 123) [20 L.Ed.2d 476, 88 S.Ct. 1620]; (2) where there may be prejudicial association with codefendants (People v. Chambers, 231 Cal. App.2d 23, 28-29) [41 Cal. Rptr. 551]; (3) where there may be likely confusion from evidence on multiple counts (People v. Chambers, supra, p. 34); (4) where there may be conflicting defenses (Day v. State, 196 Md. 384, 391 [76 A.2d 729]); and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (United States v. Echeles (7th Cir.1965) 352 F.2d 892, 898.)" (People v. Isenor (1971) 17 Cal. App.3d 324, 331 [94 Cal. Rptr. 746].) We review Orduna's argument on each of these factors.
(23) He first argues Luparello's extrajudicial statement, "[I have] some Mexicans that are going to take care of Mark Martin," is within the ambit [449] of People v. Aranda, supra, 63 Cal.2d 518, and Bruton v. United States, supra, 391 U.S. 123, and its subsequent admission necessitated severance. As previously stated, the Supreme Court in Aranda called for severing a joint trial when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant. (People v. Aranda, supra, at pp. 530-531.) Here, Luparello's statement does not expressly implicate Orduna and should therefore not fall under the Aranda directive. Even assuming the implication in Luparello's statement were explicit, the admission of the statement in the joint trial did not violate the principle of Aranda.
Our courts have long recognized extrajudicial statements within the coconspirators' exception to the hearsay rule are not subject to the Aranda-Bruton rules. (People v. Brawley (1969) 1 Cal.3d 277, 286 [82 Cal. Rptr. 161, 461 P.2d 361].) Evidence Code section 1223 outlines this exception and provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; ..." Luparello's statement was clearly made during the conspiracy and furthered the object of the conspiracy, that is, finding Terri and Ed Gadzinski, by attempting, through Hazel Schwulst's restatement of the threat, to badger and intimidate Mark Martin into revealing the Gadzinskis' whereabouts. Given this factual background, the statement was properly admitted.
(24) Orduna, however, argues the plan to locate the Gadzinskis was lawful and therefore cannot be the object of the conspiracy. He further reasons Luparello's statement thus cannot be said to further the conspiracy's objective and cannot properly be admitted under Evidence Code section 1223. Orduna misapprehends the law. Under our Penal Code and specifically section 182, "[a] criminal conspiracy is an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective." (People v. Fujita, supra, 43 Cal. App.3d at p. 471, italics added.) Thus, the search for the Gadzinskis, though arguably lawful, may indeed be a conspiratorial objective and statements, such as Luparello's, made to further it can be excepted from the hearsay rule.
Orduna mistakenly relies on People v. Williams (1979) 97 Cal. App.3d 382 [158 Cal. Rptr. 778], to argue the conspiratorial objective must be the substantive crime the conspirators plan. In Williams, the defendants sought to apply the statute of limitations rule for determining the termination of a conspiracy to demur to an indictment. This rule, stated in People v. Zamora [450] (1976) 18 Cal.3d 538, 554 [134 Cal. Rptr. 784, 557 P.2d 75], holds a conspiracy terminates upon the completion of its primary object and technically that means the substantive offense which the conspirators agree to commit. Here we are faced with an entirely different issue, and this reasoning, while correct, is inapposite. Thus, we find Luparello's statement was properly admitted, and the admission did not necessitate severance.
For the first time on appeal, Orduna argues the joint trial prejudicially associated him with Luparello, resulted in a confusion of issues, and precluded Luparello from giving exonerating testimony. These arguments, however, are based on sheer speculation. Orduna makes no reference to the record or any offer of proof that would support his contentions. Without a factual basis, we find no merit in his arguments.
(25) Orduna also asserts severance was necessary to preclude conflict between his and Luparello's defenses. Orduna grounds this argument on the exclusion of certain statements made by Salmon which allegedly exonerated Orduna and implicated Luparello. However, the record shows these hearsay statements were presented in the testimony of Salmon's onetime cellmate. Without a more substantial conflict, severance of the joint trial was unwarranted.
Having found no substantial basis for severing the trials, we find the trial court's denial of the motion was proper.
X
JURY BIAS AND INSUFFICIENCY OF EVIDENCE
Orduna recasts the prosecutor's alleged misconduct as having somehow denied him of a fair and impartial jury. Having already determined the prosecutor's conduct has caused no harm, we find no greater merit in its reassertion in a different guise. In summarizing his argument on this point, Orduna stated: "Perhaps the argument can be advanced that absent more concrete proof [of] `jury tampering' or showing that definite prejudicial statements were finally made to the jurors who decided the case, the issue of an impartial jury is not important." We concur with this assessment.
Orduna contends the evidence insufficiently supports his convictions for conspiracy and murder. (26) On appeal, the test is whether substantial [451] evidence supports the conclusion of the trier of fact, and not whether the evidence proves the defendant's guilt beyond a reasonable doubt. (People v. Reyes (1974) 12 Cal.3d 486, 497 [116 Cal. Rptr. 217, 526 P.2d 225].) Reversal is not warranted merely because the facts of the case might be reconciled contrary to the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal. Rptr. 417, 475 P.2d 649].) (27) Here, Orduna met several times with Luparello, agreed to find Terri and Ed Gadzinski "at any cost," received money for his assistance, went while armed with a deadly weapon to Mark Martin's home, hid to avoid discovery while waiting to ambush Martin, returned to Martin's home on the day of the shooting, lured Martin within the shooter's range and was seen by Martin's mother fleeing the scene. Though other evidence may support other inferences, the facts outlined above substantially support the judgment.
XI
CRUEL OR UNUSUAL PUNISHMENT
Adopting the reasoning of Luparello's related assertion, Orduna contends his sentence, too, constituted cruel or unusual punishment. We find this contention patently without substance. After the jury determined Orduna should be penalized to life imprisonment without the possibility of parole, the sentencing court intervened to consider thoroughly Orduna's culpability and contributions to the crimes. After making detailed and thoughtful findings,[14] the sentencing court struck the special circumstance finding and sentenced Orduna to imprisonment for a term of 25 years to life. Thus, in contrast to Orduna's contention, the sentencing court did consider the circumstances of his crime and accordingly fashioned a just sentence. We find no cruel or unusual punishment on this record.
[452]
DISPOSITION
Judgments affirmed.
Kintner, J.,[*] concurred.
WIENER, J.
I concur in the majority opinion with the exception of sections V and VI in Luparello's appeal.[1] As to those issues, I concur in the result reached by the majority under the compulsion of People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318] and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5 [221 Cal. Rptr. 592, 710 P.2d 392]. Those cases require a holding that an aider and abettor or coconspirator is liable not only for those crimes committed by a cofelon which he intended or agreed to facilitate but also for any additional crimes which are "reasonably foreseeable."[2] The majority, citing Professor Kadish's recent article,[3] recognize a doctrinal tension in extending accomplice and conspiratorial liability beyond intended acts but conclude, based on Croy, that this principle of extended criminal liability does not suffer from any "theoretical infirmit[y]." (Maj. opn., ante, p. 441.)
The fact that the Supreme Court has announced a principle of law certainly requires that as an intermediate appellate court we follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) This does not mean however, that the announced principle is either logically consistent or theoretically sound. On a prior occasion I expressed my concern with the legal principle at issue. My dissent in People v. Martin (1983) 150 Cal. App.3d 148, 170 [197 Cal. Rptr. 655], written before either Beeman or Croy was decided, failed to attract the attention of a majority of the Supreme Court. I will therefore not repeat [453] my discussion in Martin, which basically stated what I thought the law should be. Instead, I will briefly comment on what I perceive to be the serious incongruities created by the "foreseeable consequence" doctrine.
Professor Kadish argues that the theory underlying accomplice liability does not permit liability to attach to an accomplice or coconspirator for the acts of another unless the accomplice or coconspirator intended such acts. He explains that the "foreseeable consequence" doctrine "would seem to allow holding the accomplice for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions." (73 Cal.L.Rev. at p. 352.)
The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not "lie in wait," Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide? As I explained in my Martin dissent, I find such fortuity of result irrational. So too, apparently, do Professors LaFave and Scott in their treatise on criminal law: "The `natural and probable consequence' rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel." (LaFave & Scott, Handbook on Criminal Law (1972 ed.) p. 516.)
[454] The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which, like California's governing Beeman standard, requires that the accomplice act "with the purpose of promoting or facilitating the commission of the offense, ..." Missing from the Model Penal Code, however, is any reference to the "foreseeable consequence" doctrine. The Comment to the section addresses the issue as follows: "[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. [¶] This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it. ..." (Model Pen. Code & Commentaries, com. 6(b) to § 2.06, pp. 310-311, italics added.) In support of this reasoning the drafters quoted from a conspiracy decision written by Judge Learned Hand: "At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change;...." (United States v. Peoni (2d Cir.1938) 100 F.2d 401, 403.)
In contrast to the majority, which seeks to distinguish the "forseeable consequence" doctrine from the "disfavored" felony-murder rule (see maj. opn., ante, p. 437), I view both as being founded on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law, we need not be terribly concerned that the contemplated crime was far less serious than the crime which actually took place. Consider the following discussion in the Supreme Court's Croy decision: "It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (41 Cal.3d at p. 12, fn. [455] 5, italics added.) Contrast it with the following description of the theoretical basis for the felony-murder rule in LaFave and Scott's treatise: "The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended." (LaFave & Scott, op. cit. supra, at p. 560.)
In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the "foreseeable consequence" doctrine, is inconsistent with the "universal and persistent" notion that criminal punishment must be proportional to the defendant's culpable mental state. (See Morissette v. United States (1952) 342 U.S. 246, 250-251 [96 L.Ed. 288, 293-294, 72 S.Ct. 240].) Justice Mosk's dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal. Rptr. 275, 477 P.2d 131] expressed it well: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination." The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v. Wilbur, 421 U.S. at 697-698 (requirement of proof beyond a reasonable doubt is not `limit[ed] to those facts which, if not proved, would wholly exonerate' the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [61 L.Ed.2d 560, 576-577, 99 S.Ct. 2781].)
By these references I do not mean to suggest that the "foreseeable consequence" doctrine is unconstitutional, although an argument can be made in that regard. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 495-498 [194 Cal. Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C.J.).) Here, however, Luparello has been convicted of first degree murder under circumstances where, in the absence of the "foreseeable consequence" doctrine, he would be guilty at most of involuntary manslaughter. As to the felony-murder rule, the Supreme Court has concluded the rule is a creature of statute, codified by the Legislature in Penal Code section 189 and, as such, must be applied by the courts. (See People v. Dillon, supra, 34 Cal.3d at pp. 450, 472.) No similar impediment appears with respect to the "foreseeable consequence" doctrine. It is purely a creature of judicial interpretation subject [456] to the thoughtful evolution of the common law. As scholars and commentators have consistently concluded, the time for considered reevaluation is long overdue.
The petition of appellant Luparello for review by the Supreme Court was denied February 11, 1987.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The court later ruled admission of the informers' statements would violate the defendants' confrontation clause rights established in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal. Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. (See also People v. Leach (1975) 15 Cal.3d 419 [124 Cal. Rptr. 752, 541 P.2d 296]; People v. Coble (1976) 65 Cal. App.3d 187 [135 Cal. Rptr. 199].)
[3] Luparello argues CALJIC Nos. 4.71.5 and 17.01, if given, would have remedied the alleged error. No. 4.71.5 provides: "And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
CALJIC No. 17.01 similarly provides: "He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
[4] The California Supreme Court in the recent case of People v. Croy (1985) 41 Cal.3d 1 [221 Cal. Rptr. 592, 710 P.2d 392], noted a jury is not required to make a special finding as to which of several alleged acts constituted the specific overt act underlying a conspiracy conviction. (Id. at p. 17.)
[5] As modified in this case, CALJIC No. 6.11 in its entirety provides: "Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy.
"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act; this instruction does not apply to the special circumstance allegation in this case."
[6] "Unlike the case of a fatal blow struck with malice in which the battery is merged in the murder because it is an integral part of the homicide itself, a conspiracy, in most jurisdictions, is a distinct offense quite apart from the contemplated crime. Because of this fact the notion that a conspiracy is merged in the resulting offense is unsound and has been quite generally rejected in this country...." (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 687-688, fns. omitted.)
[7] In this context Luparello also contends the asserted error is exacerbated by misinstruction on implied malice. He specifically contends CALJIC No. 8.11 "did not inform the jury that it must find that the defendant must harbor an actual appreciation of the risk involved — i.e., a risk of death." We find Luparello misreads this instruction. As given here, CALJIC No. 8.11 provides: "Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness." (Italics added.) The level of subjective awareness required for an implied malice finding are adequately explicated by the instructional language we have italicized. (People v. Poddar (1974) 10 Cal.3d 750, 755-756 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Summers, supra, 147 Cal. App.3d at p. 184.)
[8] For the purpose of this discussion, we will treat conspiracy and aiding and abetting as subspecies of the same general theory of complicity. We are mindful not all commentators would agree with such a categorization (see, Note, Development in the Law — Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 998-999), but find this usage acceptable for the limited inquiry on which we embark.
[9] After recognizing causal responsibility has been extended in tort to reach an actor's conduct which is not wholly volitional, Professor Kadish suggested "the problem of the reach of criminal law is hardly different depending on the volitionality of the primary actor's conduct." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 404, fn. omitted.) To this, he footnoted an apt example: "Consider the case of a police guard who negligently leaves his gun in the open ward of a mental hospital. If an incompetent person uses the gun to kill, the criminal law permits the guard to be held for manslaughter on a causation theory. There is no greater peril to ordinary behavior if the guard is also made liable when a competent visitor uses the gun to kill." (Id. at p. 404, fn. 260.)
[10] As we discuss at section IX, post, it is the conspiratorial pursuit of an otherwise lawful object by unlawful means that makes the combination a crime. (People v. Fujita (1974) 43 Cal. App.3d 454, 471 [117 Cal. Rptr. 757].)
[11] The aiding and abetting instruction given in the present case was modified in accordance with People v. Tewksbury (1976) 15 Cal.3d 953 [127 Cal. Rptr. 135, 544 P.2d 1335], to require proof of a shared criminal intent. Luparello does not challenge the adequacy of this instruction as applied in the present case.
[12] Luparello additionally argued since either the conspiracy or aiding and abetting theories were inaccurately applied and the particular theory on which the jury relied could not be determined, he was entitled to a reversal of his murder conviction. (People v. Green, supra, 27 Cal.3d at p. 69.) However, as we have determined, both theories were appropriately applied to the present facts, and hence Luparello's argument must fail.
[13] People v. Massie (1967) 66 Cal.2d 899 [59 Cal. Rptr. 733, 428 P.2d 869].
[14] Some of the factors considered were outlined in the minute order of the sentencing hearing:
"1. The interests of justice would be better served by life with parole in Carlos Orduna's case.
"2. That the public safety would not require a life sentence without parole.
"3. Defendant Orduna played a minor role in the crime.
"4. The Defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
"5. Lack of significant prior criminal conduct.
"6. That Orduna did not know and had no personal intent to kill the victim and was not personally violent in the homicide.
"7. That Orduna expressed remorse about the killing and was afraid to testify against the actual killer.
"8. Defendant's sister's testimony, his remarks to the doctors and his counsel's approach to defending the case brought more evidence to light which may well aid in the prosecution of the other perpetrators."
[*] Assigned by the Chairperson of the Judicial Council.
[1] Although Orduna makes the same arguments as Luparello, his position is largely undercut by the explicit jury finding that he intentionally killed Mark Martin while lying in wait. Thus his liability need not be based on the fact that Martin's death was a reasonably foreseeable consequence of the conspiracy to assault.
[2] Henceforth I refer to this principle as the "foreseeable consequence" doctrine because that is the terminology used in Croy. I am concerned, however, about how a principle which was originally phrased in terms of "probable and natural consequences" (see People v. Kauffman (1907) 152 Cal. 331, 334 [92 P. 861]) was slightly modified to become the "natural and reasonable consequences" (see Beeman, supra, 35 Cal.3d at p. 560) and has now been saddled with a monicker traditionally associated with theories of expanding tort liability. (See, e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal. Rptr. 448, 539 P.2d 36].) If we were to return to strict interpretation of the "natural and probable" standard, I would argue that liability could not be imposed here on Luparello because it in no sense can be said that Mark Martin's death was the "probable" result of a conspiracy to assault him in order to obtain information.
[3] See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323.
7.1.2 Short v. State 7.1.2 Short v. State
SHORT
v.
The STATE.
Court of Appeals of Georgia.
[197] Marcus C. Chamblee, Atlanta, for appellant.
David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, for appellee.
RUFFIN, Chief Judge.
A Douglas County jury found Keith Short guilty of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. In 15 enumerations of error, Short challenges the sufficiency of the evidence, the admission of certain evidence, and the trial court's rulings with respect to various jury charges. We affirm.
1. "`On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the [defendant] no longer enjoys a presumption of innocence.'"[1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.[2]
Viewed in this manner, the evidence shows that the victim was in the parking lot of her boyfriend's Douglasville apartment complex around midnight on June 2, 1995. The two planned to drive to Florida that night, and she began moving her luggage from her car to his truck. At that point, two men came around the front of the truck and another approached the victim from behind, placing a gun in her back. The gunman told her to empty her pockets, while the other two searched her car. The glinman then obtained the victim's car keys, gave them to the other men, pushed her into the back seat of her car, and got in with her. The other two men jumped in the front seat, and one drove the car from the apartment complex.
The gunman ordered the victim to place her head between her legs, so she did not see which way the car traveled as it left the complex. At some point during the drive, the gunman began fondling the victim's breasts. He then unzipped his pants and ordered her to perform fellatio. Still held at gunpoint, the victim complied. When the front-seat passenger saw what the gunman was doing, "he started laughing and turned back around."
The gunman next told the victim to pull down her pants, and she did so. He pulled her onto his lap and touched her vagina with his penis. According to the victim, he tried to "enter into [her]," but "could not get all the way in," so he shoved her "on all fours" and "tried to enter [her] from behind." When the victim attempted to escape through the passenger door, the gunman grabbed her and threatened to kill her.
The front-seat passenger stated that "they needed to do something with [the victim]," and the three men exited the car to talk. The gunman then forced the victim into the trunk, and the car began moving. The victim managed to pop the trunk open, jumped out while the car was still moving, ran to a [198] house, and called the police. Although Fulton County officers responded to the home, which apparently was located in Fulton County, the Douglas County Sheriff's Department ultimately investigated the crimes.
Police discovered that, after the incident, a call was placed from the victim's car phone to an apartment complex near Six Flags. The apartment manager reported that she had seen the victim's car the day after the attack, and authorities surrounded the complex. Several officers observed the car driving in the area and approached it in a store parking lot. Keith Short jumped from the front passenger seat and ran. Officers quickly apprehended him and also arrested Short's brother, Robert, who was driving the victim's car.[3] After further investigation, the police identified William Cunningham as the third individual involved in the attack.
Following his arrest, Short gave a statement to police. He admitted that he, his brother, and Cunningham approached the victim in the Douglasville apartment complex. Short and Robert entered her car, while Cunningham held her outside the car at gunpoint. Cunningham and the victim then got into the car, and Robert drove from the complex. Short further stated that, at one point, he looked in the back seat and saw Cunningham "messing" with the victim, who was naked. According to Short, he told Cunningham "don't do that."
(a) With respect to his rape and aggravated sodomy convictions, Short claims that the State presented insufficient evidence that the crimes occurred in Douglas County. He asserts that the victim did not know where the car was located when these sexual offenses occurred. And although her ordeal began in Douglas County, it ended in Fulton County.
"Venue, like all elements of the State's case, must be proven beyond a reasonable doubt."[4] Criminal actions generally must be tried in the county where the crime was committed.[5] But when a crime is committed in transit or in more than one county, Georgia law provides special methods for establishing venue. For example, a crime committed on or immediately adjacent to a boundary line between two counties is considered committed in either county.[6] Moreover, "in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed."[7] And under OCGA § 17-2-2(e):
[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.
The evidence shows that the sexual offenses occurred in a moving vehicle that traveled at some point from Douglas County to Fulton County. As Short notes on appeal, Robert told police that, when the car was in Fulton County, he turned around, saw that the victim was naked, and heard Short ask "what are you doing?" Robert further stated that they were "in Atlanta" when he saw Cunningham "behind" the naked victim. Robert also asserted, however, that he did not see Cunningham touch the victim sexually and that the touchings could have occurred earlier. Short told police that the car remained in Douglas County for only "two seconds" after they left the apartment complex. But he stated that he did not "know [his] way around" the area. A sergeant with the Douglas County Sheriff's Department testified that it would be "[i]mpossible" to reach the county line that quickly.
[199] Given the evidence presented, the jury was authorized to conclude beyond a reasonable doubt that the sexual assaults might have been committed either in Douglas County or Fulton County, rendering venue proper in Douglas County.[8] Furthermore, under OCGA § 17-2-2(e), "venue for a crime involving a vehicle may lie in any county through which the vehicle traveled."[9] Relying on this provision, the jury could have determined that venue for the sexual offenses, which occurred in a moving car traveling through Douglas County and Fulton County, lay in Douglas County.[10]
Short argues on appeal that, because the State relied on "exceptions" to the general venue rule, it failed to prove that the crimes occurred in Douglas County, as alleged in the indictment. We disagree. Subsections (b), (e), and (h) of OCGA § 17-2-2 offer methods of establishing venue when the actual location of the crime cannot be determined with certainty.[11] If the State proves venue in a particular county under those subsections, the crime is considered to have been committed in that county, even if it was committed elsewhere.[12] And pursuant to the subsections, the State submitted evidence authorizing the jury to find that the sexual offenses occurred in Douglas County.
Citing Moss v. State,[13] Short also contends that his convictions must be reversed because the indictment failed to state that venue would be proven through OCGA § 17-2-2(b), (e), or (h). Under Moss, the State cannot rely on an exception to the criminal statute of limitation—and thus avoid the bar created by the limitation period — unless it alleges such reliance in the indictment and proves that the exception applies.[14] The Moss decision, however, has no application here, as this case does not involve an exception to the statute of limitation. Moreover, the State did not try to avoid the venue requirement. It used statutorily authorized methods for proving venue in Douglas County. Short has pointed to no authority requiring the State to allege this reliance in the indictment, and we see no reason to impose such requirement.[15]
(b) Short also argues that the State did not prove that he participated in the rape and aggravated sodomy, which were committed by Cunningham. He concedes that the evidence, construed favorably to the verdict, demonstrates that he took part in a conspiracy to rob the victim at gunpoint, kidnap her, and hijack her vehicle. He contends, however, that the sexual offenses were not committed in furtherance of the conspiracy and that he did not intentionally aid in their commission.
Under Georgia law, "[a]ll of the participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the conspiracy, and which may be said to be a probable consequence of the conspiracy, even though the particular act may not actually have been a part of the plan."[16] As noted above, the evidence demonstrated that Short participated in a conspiracy to rob the victim, then kidnap her at gunpoint, place her in the back seat of the car, and drive around Atlanta. Cunningham attempted to rape the victim and ordered her to perform sodomy during the drive. And [200] the evidence — construed favorably to the verdict — shows that Short, who was the front seat passenger, did nothing to stop the assault, instead laughing when he saw Cunningham's conduct.
Although Short now argues that, as a matter of law, the attempted rape and sodomy were neither a part nor a foreseeable consequence of the original plan, we disagree. In our view, a jury could reasonably conclude that sexual assault was a probable consequence of the conspiracy to kidnap the female victim at gunpoint and drive around with her in a vehicle. That Short raised no objection to Cunningham's actions and continued to take part in the kidnapping conspiracy after the sexual assault occurred supports such conclusion.[17] Accordingly, the evidence sufficiently linked Short to the sexual offenses.[18]
(c) Finally, Short argues that his rape conviction must be reversed because the State presented no evidence of penetration. "`Although penetration is an essential element of the crime of rape, it may be slight.'"[19] The victim testified that Cunningham "could not get [his penis] all the way in," was unable to "penetrate [her] entirely," and "did not fully penetrate [her] inside."[20] On cross-examination, the victim also testified that, to the extent defense counsel concluded from her interview with police that no penetration occurred, counsel "misunderstood" her answers. Given this testimony, the jury could conclude that at least some penetration occurred, authorizing the rape conviction.[21]
2. Short argues that the trial court erred in admitting his statement to police because it was not freely and voluntarily given. The evidence shows that Short was 16 years old at the time of the offenses. In determining whether a juvenile's custodial statement is free and voluntary, the trial court applies a "totality of the circumstances" test and considers the following factors:
the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement.[22]
Before admitting Short's statement, the trial court held a Jackson-Denno hearing. Sergeant Jerry Wynn of the Douglas County Sheriff's Department testified, among other things, that he read Short his Miranda rights when Short was arrested, and Short signed a Miranda waiver form before his interview with police the next day. Wynn also informed Short that he had the right to have a parent present during the interview, and Short responded that his mother "wouldn't come" because she was unhappy with his behavior. Wynn nonetheless called Short's mother, who declined to come to the police station, saying that she was "through with [Short]." Short's mother hung up the telephone after telling Short that she was [201] ashamed of him and did not want to see him again. Short then elected to proceed with the interview without his mother present.
Wynn further testified that Short had completed tenth grade at the time of the interview and communicated like an average 16 year old. He did not appear to be mentally deficient, suffering from any disability, or unable to understand the words Wynn used. Wynn explained the charges to Short, but stated that he was not sure whether Short would be charged with the sexual offenses. Short never asked for a lawyer or stated that he did not want to talk to police. According to Wynn, he did not force, threaten, or coerce Short into giving a statement.
Following Wynn's testimony, the trial court found that Short had been advised of his Miranda rights twice, was not lacking in "mental faculties," understood the potential charges that might be brought against him, and knew that he had a right to have his mother present during the interview, but elected to proceed without her. The trial court concluded that, given the totality of the circumstances, Short's statement was free and voluntary.
"On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of [Short's] statement."[23] The trial court applied the appropriate test, and the evidence supported its factual findings. We thus find no error in the admission of the statement.[24]
3. The trial court admitted into evidence a post-arrest statement given by Robert, who was tried with Short. After the jury heard the statement, Short asked the trial court to instruct the jury that the statement should only be considered against Robert. The trial judge declined to give a limiting instruction in the middle of trial, but included such instruction in the general jury charge.
Pursuant to Bruton v. United States[25] and its progeny, "[a] co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant."[26] Citing this principle, Short claims that the trial court should have given a contemporaneous charge regarding use of Robert's statement. Before trial, however, Short explicitly waived any Bruton arguments that he might have had. Thus, Short waived any claim that Bruton and the Confrontation Clause required a contemporaneous instruction.
Absent a Bruton claim, OCGA § 24-3-52 arguably governs the admissibility of the statement. Under that provision, "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself."[27] It "is designed to protect a defendant from the hearsay confession of a co-conspirator who does not testify at trial."[28] At base, therefore, the provision relates to hearsay admissibility.[29] And we know of no requirement that a trial court give a contemporaneous limiting instruction regarding use of hearsay. Accordingly, this claim of error presents no basis for reversal.[30]
4. In three enumerations of error, Short alleges that the trial court improperly charged the jury on the venue principles in OCGA § 17-2-2(b), (e), and (h) because the [202] indictment did not inform him that the State planned to use these subsections. In Division 1(a), however, we rejected Short's claim that the State cannot rely on these subsections unless it references them in the indictment. It follows that these enumerations of error lack merit.
5. The trial court charged the jury that, "[a]lthough slight evidence of venue may be sufficient where the fact of venue is not contested, . . . it is a jurisdictional fact and must be proved beyond a reasonable doubt." In Jones v. State,[31] which was decided five years after the trial in this case, our Supreme Court held that the "slight evidence" exception to the venue requirement has no application "once a plea of not guilty is entered and a defendant is put on trial." Short thus argues that the trial court erroneously included the "slight evidence" language in its charge.
Even if error occurred, however, we find no basis for reversal. It is clear that Short contested venue with respect to the offenses — such as the sexual assaults — that occurred after the car exited the Douglasville apartment complex. His trial counsel questioned the investigating officer about venue, and Short asserted in his statement to police, which the jury heard, that the vehicle left Douglas County moments after the kidnapping. By its own terms, therefore, the "slight evidence" language did not apply to those crimes. Moreover, Short admitted to police that the initial attack, including the kidnapping, hijacking, and armed robbery, occurred at the Douglas County apartment complex. Under these circumstances, it is highly improbable that any alleged error contributed to the verdict, rendering it harmless.[32]
6. Short argues that the trial court erred in refusing to charge the jury that "the elements of proof that one is a party to a crime, or an accomplice, require proof of common criminal intent." We disagree. The trial court fully charged the jury on the definitions of party to a crime and conspiracy. It further instructed that the State must prove beyond a reasonable doubt that "the defendant knowingly and intentionally participated in or helped in the commission of the crime or was a conspirator in [the crime]." And it charged that intent is an essential element of the crime and must be proven beyond a reasonable doubt. Because the charge taken as a whole was adequate, the trial court did not err in refusing to give the requested charge.[33]
7. Short contends that the trial court should have instructed jurors that they "will determine both the law and the facts." We have previously found, however, that a trial court does not err in refusing to include this language in its jury charge.[34]
8. Short also enumerates as error the trial court's refusal to instruct the jury on theft by taking as a lesser included offense of armed robbery. With respect to armed robbery, the indictment charged that Short, Robert, and Cunningham took jewelry from the victim's immediate presence using a gun. The jewelry at issue was in a makeup bag and purse located inside the victim's car.
According to Short, he was entitled to a theft by taking charge because the jury could have determined that the jewelry was not taken from the victim's immediate presence. But "[i]mmediate presence does not mean `within arm's length' or `facing."[35] And the evidence shows that Short and Robert searched the victim's car for valuables while she was being held outside the vehicle [203] at gunpoint. The victim was then placed in the car and continually held at gunpoint until forcibly placed in the trunk, from which she later escaped. Under these circumstances, we find no evidence that the robbery occurred outside the victim's immediate presence.[36]
"Where the State's evidence clearly warrants a jury instruction on armed robbery and there is no evidence of the lesser offense of theft by taking, it is not error to refuse to charge the jury as to theft by taking."[37] Accordingly, the trial court properly refused to give the requested charge.[38]
9. In three enumerations of error, Short claims that the trial court erred in instructing the jury on crimes not charged in the indictment. The indictment alleged that Short committed kidnapping with bodily injury by "abduct[ing]" the victim, armed robbery by taking jewelry from the "immediate presence" of the victim, and aggravated sodomy by forcing the victim "to perform a sexual act involving the sex organ of the accused and the mouth of [the victim]." According to Short, however, the trial court instructed the jury on other ways to commit these crimes. Specifically, it charged that a person commits kidnapping "when he abducts or steals away any person," armed robbery when he takes property "from the person or the immediate presence of another by use of an offensive weapon," and aggravated sodomy "when he performs or submits to a sexual act involving the sex organs of one person and the mouth or anus of another."[39]
"Absent a remedial instruction, reversible error occurs if the jury charge recites the statutory definition of a crime (which informs the jury the crime may be committed in various manners) when the indictment alleges that the crime occurred in a specific way."[40] This is so because, without a curative instruction, a fatal variance may result between the proof at trial and the indictment.[41] Any such defect, however, is cured where, as here, the trial court provides the indictment to the jury and instructs that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged.[42] Thus, these claims of error provide no basis for reversal.[43]
10. During its deliberations, the jury asked the trial court to redefine conspiracy and parties to a crime. The trial court recharged the jury on these concepts, using terminology that differed in some respects from the original charge. Short then asked the trial court to reread the following language from the original charge: "each [conspirator] is responsible for the acts of others only insofar as the same are naturally or necessarily done to further the conspiracy." The trial judge refused, asserting that the recharge adequately covered the principle. Short enumerates this refusal as error.
Although the trial court did not use the language requested by Short, the recharge informed jurors that a conspiracy extends to "collateral acts instant to and growing out of the original purpose [of the conspiracy]." According to the recharge, separate independent acts that are "in no way a part of what the original conspirators agreed to do or any [204] consequence thereof, [are] not a part of the conspiracy." The trial court further stated that "if one participant goes and does something that is expedient to whatever the criminal design is, then that can be [the] responsibility of all."
The trial court's language substantially covered the principle included in Short's requested recharge. Furthermore, the requested recharge was part of the original charge to the jury. Under these circumstances, we find no error.[44]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
[1] Gearin v. State, 255 Ga.App. 329, 330, 565 S.E.2d 540 (2002).
[2] See Pruitt v. State, 279 Ga. 140, 141(1), 611 S.E.2d 47 (2005); Gearin, supra.
[3] The police also arrested Donnie Smith, another passenger in the car, but concluded that he did not participate in the attack.
[4] Tompkins v. State, 278 Ga. 857, 858(1), 607 S.E.2d 891 (2005).
[5] OCGA § 17-2-2(a).
[6] OCGA § 17-2-2(b).
[7] OCGA § 17-2-2(h).
[8] See id.; Hendrix v. State, 242 Ga.App. 678, 679-680(1), 530 S.E.2d 804 (2000); Dillard v. State, 223 Ga.App. 405, 406(2), 477 S.E.2d 674 (1996).
[9] Waldrip v. State, 267 Ga. 739, 749(13), 482 S.E.2d 299 (1997).
[10] See id.; Gearin, supra at 334(3), 565 S.E.2d 540.
[11] See Pruitt, supra at 143(4), 611 S.E.2d 47.
[12] See Gearin, supra.
[13] 220 Ga.App. 150, 469 S.E.2d 325 (1996).
[14] See id.
[15] See Trumpler v. State, 261 Ga.App. 499, 501(3), 583 S.E.2d 184 (2003) (rejecting claim that indictment was insufficient because it alleged that defendant directly committed crime, while State proceeded against him on theory of party to the crime; a party to the crime may be charged with committing the crime, and "[a]lthough the State was required to prove that [the defendant] was a party to the crime[ ] . . . , it was not required to allege [this theory] in the indictment").
[16] Huffman v. State, 257 Ga. 390, 391(2), 359 S.E.2d 910 (1987).
[17] See id. at 392, 359 S.E.2d 910 (fact that defendant consummated drug transaction after discovering that co-conspirator had murdered individual involved in the transaction supported conclusion that "the victim's murder was a probable and foreseeable consequence of the underlying conspiracy to traffic in illegal drugs").
[18] See id. at 392(3), 359 S.E.2d 910 (jury authorized to find that attempted armed robbery, aggravated assault, and attempted kidnapping were probable consequences of drug trafficking conspiracy); Shehee v. State, 167 Ga.App. 542, 543(1), 307 S.E.2d 54 (1983) (armed robbery committed before kidnapping "was naturally or necessarily done pursuant to or in furtherance of the conspiracy to kidnap [the victim]" at gunpoint).
[19] Manning v. State, 259 Ga.App. 794, 797(2), 578 S.E.2d 494 (2003).
[20] (Emphases supplied.)
[21] See id.; Jackson v. State, 157 Ga.App. 604(1), 278 S.E.2d 5 (1981); see also Raymond v. State, 232 Ga.App. 228, 228-229(1), 501 S.E.2d 568 (1998).
[22] (Punctuation omitted.) Brown v. State, 253 Ga.App. 1, 2(1), 557 S.E.2d 464 (2001). See also Henry v. State, 264 Ga. 861, 862(2), 452 S.E.2d 505 (1995).
[23] Henry, supra at 862(2), 452 S.E.2d 505
[24] See McKoon v. State, 266 Ga. 149, 151(2), 465 S.E.2d 272 (1996) ("The absence of a parent is just one of nine factors that this Court considers."); Henry, supra at 862-863, 452 S.E.2d 505; Brown, 253 Ga.App. at 3(1)(d), 557 S.E.2d 464 (2001).
[25] 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
[26] Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998).
[27] OCGA § 24-3-52.
[28] Brown v. State, 266 Ga. 633, 635(2), 469 S.E.2d 186 (1996).
[29] See id.
[30] To the extent OCGA § 24-3-52 also embodies the Confrontation Clause principles discussed in Bruton, Short waived any reliance on those principles prior to trial.
[31] 272 Ga. 900, 900-901, 537 S.E.2d 80 (2000).
[32] See Davis v. State, 279 Ga. 11, 12-13(2), 608 S.E.2d 628 (2005); Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).
[33] See Christopher v. State, 269 Ga. 382, 383(3), 497 S.E.2d 803 (1998) (" `It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given.'").
[34] See Cornwell v. State, 246 Ga.App. 686, 687-688(1), 541 S.E.2d 101 (2000); Drummond v. State, 173 Ga.App. 337, 338(3), 326 S.E.2d 787 (1985) (physical precedent only).
[35] Parker v. State, 244 Ga.App. 419, 425(11), 535 S.E.2d 795 (2000).
[36] See Morgan v. State, 195 Ga.App. 732, 734(1), 394 S.E.2d 639 (1990) ("[T]he concept of immediate presence is broadly construed if the object taken was under the victim's control or responsibility and the victim is not too distant."); Waters v. State, 161 Ga.App. 555, 556, 289 S.E.2d 21 (1982) ("[E]vidence that the victim, while lying in [a] gully, was close enough to the car to hear her assailants talking was sufficient proof that the goods were taken from her presence.").
[37] Parker, supra.
[38] See id. at 425-426, 535 S.E.2d 795.
[39] (Emphasis supplied.)
[40] Green v. State, 240 Ga.App. 377, 379(4), 523 S.E.2d 581 (1999).
[41] See id.
[42] See id. at 379-380, 523 S.E.2d 581; see also Lumpkin v. State, 249 Ga. 834, 836-837(2), 295 S.E.2d 86 (1982) (although trial court instructed jury on several methods of committing theft by receiving stolen property, any prejudice was cured by remedial charge that limited jury's consideration to the specific method alleged in the indictment).
[43] See Green, supra.
[44] See Smith v. State, 243 Ga.App. 331, 333-334(4), 533 S.E.2d 431 (2000); Bryant v. State, 155 Ga.App. 652, 654(3), 271 S.E.2d 904 (1980).
7.1.3 State v. Gonzalez 7.1.3 State v. Gonzalez
STATE of Connecticut
v.
Jason GONZALEZ.
Appellate Court of Connecticut.
[342] Glenn W. Falk, special public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Richard Colangelo, senior assistant state's attorney, for the appellee (state).
DiPENTIMA, C.J., and ALVORD and WEST, Js.
DiPENTIMA, C.J.
The defendant, Jason Gonzalez, appeals from the judgment of conviction,[1] rendered after a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8[2] and 53a-55a.[3] On appeal, the defendant claims that the evidence at trial was insufficient to support [343] the jury's verdict.[4] Specifically, the defendant argues that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal.[5] We reverse in part the judgment of the trial court.
Only two witnesses who were at the scene testified at trial. First, Kenny Jackson testified that on the evening of December 25, 2007, he was celebrating Christmas with friends in a third floor apartment located in Building 13 of the Roodner Court housing complex in Norwalk. Jackson and his friends were drinking alcohol, and at approximately 9 or 10 p.m., he went down to the first floor of the building to purchase marijuana and crack cocaine. When Jackson arrived downstairs, he encountered Donald Wilson, the defendant and some women. Jackson testified that he asked the men, "[w]ho's straight?" meaning that he was looking to purchase drugs. Wilson told Jackson that he had drugs to sell. Wilson and Jackson went upstairs to the second floor of the building to conduct the transaction.
On the second floor, the victim was also celebrating Christmas with his family in his mother's apartment. After learning about the drug transaction going on in the hallway, the victim came out of the apartment into the hallway. Jackson testified that the victim then gave Jackson and Wilson a look signifying his disapproval of the transaction. Jackson and Wilson returned downstairs to the first floor. The victim followed them downstairs and gave them another disapproving look. Jackson told Wilson that they should wait until the victim left before conducting the transaction.
Jackson then testified that the victim then began walking toward the front door of the building, followed by Jackson and Wilson. The defendant was in the hallway near the front of the building. As the victim walked out of the building, the defendant said "Merry Christmas." When the victim did not respond, the defendant called him an "asshole." The victim reentered the building and asked the defendant what he had said to him. In an attempt to calm the situation, Jackson told the victim, "[the defendant] didn't say anything to you." The defendant then pulled out a gun and said, "Yeah, I didn't say anything. I didn't say anything to you." The victim grabbed the gun, and he and the defendant began to struggle for control of the weapon. Jackson fled the scene.
The second witness was Frederick Paulk, the victim's brother (Paulk), who testified that he heard gunshots a couple minutes after the victim left the second floor apartment. Paulk exited the apartment and looked over the balcony, where he observed the victim and the defendant struggling. Paulk saw a woman holding the defendant around the waist and telling him to stop. Then, Paulk observed Wilson pointing a gun at the victim. Paulk told Wilson to stop, saying, "[d]on't do it." The defendant and the victim broke loose from each other and the victim fell against a wall. Paulk saw Wilson shoot the victim and then back out of the building, using the defendant as a shield. Paulk did not observe anyone other than Wilson with a [344] gun. Finally, Gerard Petillo, a forensic science examiner, testified that he was unable to determine whether the bullets recovered from the victim's body and from the crime scene were fired from the same firearm. He also testified, however, that one Glock semiautomatic firearm fired the shell casings that were recovered from the scene.
The defendant was arrested and, following a jury trial, he was convicted of manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a-8 and 53a-55a. The court sentenced the defendant for his conviction of criminal possession of a firearm to five years to serve, two years of which was the mandatory minimum. The court sentenced the defendant for his conviction of carrying a pistol without a permit to five years to serve, one year of which was the mandatory minimum. The sentences for the conviction of criminal possession of a firearm and carrying a pistol without a permit were to run consecutively with each other, but concurrently with the manslaughter conviction. The court sentenced the defendant for the manslaughter conviction to a term of forty years to serve, five years of which was the mandatory minimum. Finally, the court imposed a sentence enhancement of five years for the commission of an A, B or C felony with a firearm in violation of General Statutes § 53-202k, which was to run consecutively to the previously imposed sentences. Thus, the court imposed a total effective sentence of forty-five years to serve, ten years of which was the mandatory minimum. This appeal followed.
The defendant claims that the evidence at trial was insufficient to support the jury's verdict of guilty of manslaughter in the first degree with a firearm as an accessory. We agree.
"We begin by setting forth the appropriate standard of review. Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....
"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....
"[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [345] upon the evidence.... However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted.) State v. Billie, 123 Conn.App. 690, 695-96, 2 A.3d 1034 (2010).
In order to prove that a defendant is guilty of manslaughter in the first degree with a firearm as an accessory under §§ 53a-8 and 53a-55a, "the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried, or threatened to use a firearm." (Emphasis added.) State v. Gonzalez, 300 Conn. 490, 496, 15 A.3d 1049 (2011). "To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.... Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." (Citation omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn.App. 511, 517, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).
"Since under our law both principals and accessories are treated as principals... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand....
"To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime.... Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it." (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn.App. 474, 484, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).
Here, there was insufficient evidence to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson, the principal, in committing manslaughter in the first degree with a firearm. The state argues that the defendant was properly convicted upon sufficient evidence, both direct and circumstantial, and from the "intricate chain of eminently reasonable and logical inferences flowing from the evidence." We [346] disagree. The record is devoid of any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson in the commission of the crime of manslaughter. Moreover, there were no facts before the jury from which it reasonably could have inferred that the defendant engaged in such conduct. The testimony adduced at trial indicated that the defendant pointed a gun at the victim, and the two then began struggling for the weapon. The record contains no evidence, however, as to how the gun came into Wilson's possession, nor any evidence of any conduct by the defendant which reasonably could be interpreted as assisting Wilson.
The state argues that Wilson and the defendant were associated in the drug trade, that the victim was interfering with a drug transaction and that the defendant aided Wilson in shooting the victim by "providing the weapon and introducing it into the situation." First, the only circumstantial evidence suggesting that the defendant was associated in the drug trade with Wilson was that they were together when Wilson told Jackson that he would sell him drugs and that the defendant possessed a gun and pointed it at the victim. The state cites cases reciting the well established correlation between drug dealing and firearms. See, e.g., State v. Cooper, 227 Conn. 417, 426 n. 5, 630 A.2d 1043 (1993). We note, however, that this court has stated that in Cooper and cases like it, guns, or testimony about the presence of guns, were properly admitted into evidence because the evidence was "relevant and material for reasons other than a well established correlation between drug dealing and firearms." (Emphasis added; internal quotation marks omitted.) State v. Mozell, 36 Conn.App. 672, 676, 652 A.2d 1060 (1995); see id., at 677-78, 652 A.2d 1060 (court improperly admitted gun into evidence in absence of any evidence tying gun to alleged conspiracy, but admission was harmless).
Moreover, the defendant's presence near Wilson at the time Jackson inquired about purchasing drugs is insufficient to establish his involvement in the transaction. See, e.g., State v. Fair, 118 Conn.App. 357, 362, 983 A.2d 63 (2009) (defendant's mere presence not enough to support inference of dominion or control for conviction of illegal possession of narcotics, but where other pieces of evidence tie defendant to dominion and control, finder of fact may consider presence and draw inferences from that presence and other circumstances linking defendant to crime); State v. Madison, 116 Conn.App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929, 980 A.2d 916 (2009) (presence in high crime area alone insufficient to establish reasonable and articulable suspicion for purposes of fourth amendment); State v. Rodriguez, 11 Conn.App. 140, 149, 525 A.2d 1384 (1987) (mere fact, without more, that person is associating with or in presence of others who are suspected of criminal activity does not establish probable cause to arrest or search that person).
Although the defendant brandished a gun at the victim, the evidence suggests that this event occurred independently of the drug transaction. There was no evidence that the defendant participated at all in the drug transaction. Jackson testified that the defendant said "Merry Christmas" and the victim did not respond, which angered the defendant, prompting him to call the victim an "asshole." This exchange, in turn, led to the altercation between the defendant and the victim. The evidence suggests that the defendant and Wilson were associated with each other on the night of the shooting, but there is no evidence inviting a reasonable inference that this association was related to the drug trade. State v. Green, 261 Conn. 653, 672-73, [347] 804 A.2d 810 (2002) (evidence insufficient to convict defendant of conspiracy to commit murder where only evidence that could support inference of conspiracy was that defendant and confederates were friends, defendant may have had dispute with victim and defendant and confederates simultaneously shot at victim). Thus, in the absence of any evidence tying the defendant to the drug transaction, we cannot conclude that the evidence was sufficient for the jury to infer that the defendant was associated in the drug trade with Wilson.
Second, the evidence does not support a reasonable inference that the defendant aided Wilson merely by introducing the weapon into the situation. Although the state cites State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000), in support of this argument, that case is inapposite. In Turner, our Supreme Court concluded that there was sufficient evidence to establish that the defendant had the requisite intent to kill the victim, as required for a conviction of murder as an accessory. Id., at 747, 751 A.2d 372. Our Supreme Court stated that the jury reasonably could have found that the defendant aided the principal because on the night of the shooting, the defendant began "dancing around'" on the street corner opposite from the victim. Id., at 749, 751 A.2d 372. Our Supreme Court then stated that the jury reasonably could have concluded that the defendant's unusual behavior was "meant to distract the victim and bystanders while [the principal] approached from behind to shoot the victim." Id. In the present case, the defendant did not provide any assistance to the principal. Although the defendant pointed a gun at the victim and then struggled for control of the weapon, this conduct alone does not support a reasonable inference that he, by so acting, intentionally aided the principal in killing the victim.
In addition, our Supreme Court in Turner stated that the jury reasonably could have inferred that the defendant gave the principal the weapon used in the shooting. A witness testified in Turner that the shooter used a weapon of the same type that had been in the defendant's possession a week before the shooting. Id., at 749-50, 751 A.2d 372. Here, the gun that the defendant pointed at the victim was the same gun that Wilson used to shoot the victim. There is no evidence, however, that would support a reasonable inference that the defendant gave the weapon to Wilson. Unlike in Turner, where the defendant gave the principal the weapon in advance of the crime, in this case the most the evidence suggests is that Wilson acquired the weapon in the midst of the struggle between the victim and the defendant. See State v. Green, supra, 261 Conn. at 671-73, 804 A.2d 810; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987) (evidence insufficient to sustain conviction of felony murder where no witness claimed to have seen defendant commit any crime, no knife was recovered from defendant and no proceeds of underlying robbery were discovered on defendant); compare State v. Foster, 202 Conn. 520, 536, 522 A.2d 277 (1987) (evidence sufficient to convict defendant of criminally negligent homicide as accessory where defendant intentionally aided principal by giving him knife); State v. Harris, 49 Conn.App. 121, 131-32, 714 A.2d 12 (1998) (evidence sufficient to sustain conviction of manslaughter as accessory where defendant was gang leader, defendant gave weapon to gang member and directed him to shoot victim). Thus, we conclude that there was insufficient evidence that the defendant intentionally aided Wilson in shooting the victim.
We recognize that "it does not diminish the probative force of the evidence [348] that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Na'im B., 288 Conn. 290, 296, 952 A.2d 755 (2008). "The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Emphasis added; internal quotation marks omitted.) State v. Coleman, 304 Conn. 161, 169, 37 A.3d 713 (2012). Applying this rule, we conclude that the jury could not have inferred reasonably and logically that there was sufficient evidence to convict the defendant of manslaughter in the first degree with a firearm as an accessory.[6]
The judgment is reversed with respect to the defendant's conviction of manslaughter in the first degree with a firearm as an accessory and with respect to the sentence enhancement pursuant to § 53-202k, and the case is remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
[1] The defendant also was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The defendant does not challenge his conviction of these counts on appeal.
[2] General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."
[3] General Statutes § 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm...."
General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person...."
[4] The defendant also claims that prosecutorial impropriety in closing argument deprived him of a fair trial. Because we conclude that the evidence was insufficient to support the jury's verdict, we do not address this claim.
[5] The defendant also argues that there was insufficient evidence that he intended to cause serious physical injury to the victim. Because we conclude that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal, we do not address this claim.
[6] We note that because we must reverse the defendant's conviction of manslaughter, we must also vacate the sentence enhancement which the court imposed pursuant to § 53-202k, because the defendant's conviction of criminal possession of a firearm in violation of § 53a-217, a class D felony, and carrying a pistol without a permit in violation of § 29-35(a), do not constitute A, B or C felonies as required by § 53-202k.
7.1.4 State v. Maxey 7.1.4 State v. Maxey
STATE of Tennessee, Appellee,
v.
Donna MAXEY, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
Gary Howell, Columbia, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Cecil H. Ross, Asst. Atty. Gen., Criminal Justice Div., Nashville, Mike Bottoms, Dist. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., Columbia, for appellee.
OPINION
SUMMERS, Judge.
The Circuit Court at Maury County entered a jury verdict finding Donna Maxey[1] guilty of the crime of the rape of a child pursuant to T.C.A. § 39-11-402 (1991) and T.C.A. § 39-13-522 (Supp. 1994). The court imposed a sentence of fifteen years. Pursuant to T.R.A.P. 3(b) Maxey has appealed and presents the following issues:
(1) Is the evidence sufficient to support the jury's verdict?(2) Were the trial court's jury instructions erroneous?(3) Did the court err in refusing to find Maxey an especially mitigated offender?
For the reasons stated herein, we reverse the jury verdict and dismiss the charge against Maxey.
In a separate case, Todd Hampton pled guilty to simple rape of the victim in this appeal, a twelve year old female. The state indicted Maxey, the victim's former aunt, charging her with rape of a child, contending that she was responsible for Hampton's crime. The jury convicted Maxey and she has appealed, arguing that the evidence is [757] insufficient to support a finding that she intended that Hampton rape the victim.
The facts basic to this appeal are undisputed. On the evening of the offense, the victim's mother reluctantly gave the victim permission to spend the night with Maxey at Maxey's stepfather's house. Maxey and the victim went to Maxey's stepfather's house for approximately twenty minutes and then went to Maxey's sister's trailer. Todd Hampton, twenty years old, and Dale Adcock, Maxey's nephew, were at the trailer. Maxey brought a half gallon of whiskey into the trailer and Hampton, Adcock, Maxey, and the victim began drinking. After two or three drinks, the victim became drunk and got sick. Maxey and apparently Hampton and Adcock drove the victim around the block in an attempt to sober her up by exposing her to fresh air. In a further attempt to sober up the victim, they placed her in a cold shower. After borrowing some clothes from Hampton, the victim went into the back bedroom of the trailer and went to sleep. Maxey and Adcock apparently continued drinking in the living room. The victim testified that when she woke up, Hampton was having sexual intercourse with her. The victim further testified that she told Hampton to get off of her and he did. Hampton testified that he went to the bedroom first, that the victim followed him into the bedroom; and they had consensual sexual relations. Hampton entered into a plea agreement with the state wherein he pled guilty to simple rape and testified at the trial of Maxey.
T.C.A. § 39-11-402 reads in pertinent part:
A person is criminally responsible for an offense committed by another if:(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.
On appeal, Maxey contends that there is insufficient evidence to support the jury's verdict that she "intended" that Hampton rape the victim. T.C.A. § 39-11-402(2) requires proof of intent to promote or assist the commission of the offense. Subsection (3) requires intent to benefit in the proceeds or results of the offense or intent to promote or assist the commission of the offense. T.C.A. § 39-11-302(a) (1991) states that a person acts intentionally with respect to the nature of conduct or to a result of conduct when it is a person's conscious objective or desire to engage in the conduct or cause the result. The Sentencing Commission Comments to this definition explain that "[i]ntentional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur." The plain terms of T.C.A. § 39-11-402(2), (3) indicate that proof of negligence or recklessness does not suffice to make a person criminally liable. The intent required by these subsections is demanding. It is necessary that the defendant "in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree." Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976). The defendant must "knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime." State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Our review of the record reveals the following evidence on the intent issue. Maxey provided the victim with alcohol and placed her in the situation where she [758] was raped. Maxey attempted on two occasions to sober up the victim. When the victim told Hampton that she was sixteen, Maxey indicated to the contrary to Hampton by smiling and shaking her head negatively. Maxey told Hampton that the victim liked him. After the victim went to the bedroom, Maxey asked Adcock to go into the back bedroom and check on the victim. Adcock testified that he returned and told Maxey that the victim and Hampton were having sex. There is no evidence that Maxey took any action at this time. This being the extent of the evidence, we conclude that it is insufficient to establish that Maxey intended that Hampton rape the victim.
The state concedes that no Tennessee court has ever held that a person who merely exposes another to an unreasonable risk of criminal attack by a third party has intended that attack. The state further concedes that a review of the record indicates that there was virtually no evidence having any tendency to show that Maxey knew that Hampton intended to rape the victim and that there was no evidence that could support a reasonable jury verdict in finding beyond a reasonable doubt that she intended such a result. Accordingly, we reverse the jury verdict and dismiss the charge against Maxey.
In light of our resolution of the first issue on appeal, it is unnecessary that we address the remaining two issues. We feel compelled, however, to comment on a portion of the trial court's jury instructions which is as follows:
As heretofore stated, the defendant is charged in the indictment with the offense of rape of a child. Any person who commits the offense of a rape of a child is guilty of a felony. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements. (1) that Larry Todd Hampton had unlawful sexual penetration of the alleged victim or the alleged victim had unlawful sexual penetration of Larry Todd Hampton, and (2) that the alleged victim was less than thirteen years of age, and (3) that the defendant acted intentionally, knowingly, or recklessly.
On appeal, Maxey argues that the use of the word "recklessly" in the third portion of the instructions impermissibly misled the jury as to the mens rea necessary for conviction under T.C.A. § 39-11-402 authorizing criminal liability for the conduct of another. We agree. As we discussed supra, this statute requires a mens rea of intent. Evidence of a mens rea of recklessness is insufficient to support a conviction under this statute. A preferable instruction in these circumstances would have provided as follows: (3) that the defendant acted with the necessary intent to be criminally responsible for the offense committed by another.
Reversed and dismissed. Costs assessed to the state.
WADE and WELLES, JJ., concur.
[1] The defendant's name in the indictment appears as Maxie. Everywhere else in the record, it appears as Maxey.
7.1.5. Model Penal Code sec. 2.06
7.1.6 State v. McVay 7.1.6 State v. McVay
47 R.I. 292
STATE vs. GEORGE W. MCVAY, JOHN A. GRANT, GEORGE J.
KELLEY.
STATE vs. SAME.
STATE vs. SAME.
The Supreme Court of Rhode Island
MARCH 3, 1926.
(1) Criminal Law. Accessory Before Fact. Involuntary Manslaughter.
Indictment charged captain and engineer of vessel with manslaughter, as a result of criminal negligence connected with the operation of the ship's boiler, with the result that an explosion occurred killing a passenger, and charged defendant as an accessory before the fact:
Held, that premeditation is not inconsistent with every charge of manslaughter, and a defendant may be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence.
(2) Indictments. Malice.
Malice in its legal sense, which is the state of mind manifested by intent to commit an unlawful act against another, may exist without actual intention of any mischief if the killing is the actual consequence of careless action.
(3) Criminal Law. Manslaughter. Malice.
Malice in the sense of general criminal intent exists in manslaughter, and the term “maliciously” used in an indictment charging defendant as an accessory before the fact to crime of manslaughter, in having with knowledge of danger procured captain and engineer of vessel to develop steam in a boiler known to be unsafe with the result that it exploded, killing a passenger means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life.
(4) Involuntary Manslaughter.
“Involuntary" as applied to manslaughter, characterizes the result of the act, not the doing of the act, and may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. Hence an indictment for involuntary manslaughter may properly charge certain defendants, while exercising no conscious volition to take life, with negligence of such a character that criminal intention can be presumed and it may also charge a defendant as an accessory before the fact in intentionally directing and counseling the grossly negligent act.
INDICTMENTS charging manslaughter. Certified on question of doubt under Gen. Laws, 1923, cap. 348, sec. 5.
BARROWS, J.
Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the Steamer Mackinac as principals and against Kelley as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled, burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler.
Demurrers, on grounds that the indictments improperly combined a charge of assault and negligence and that there was an improper joining of principal and accessory before the fact, were overruled. Two additional grounds of demurrer set up by defendant Kelley were not decided but were deemed of such doubt and importance that the question raised by them was certified to this court for determination, under General Laws, 1923, Chapter 348, Section 5.
We are not now concerned with the correctness of the lower court’s rulings on the demurrers. Exceptions to those rulings have been taken and the defendants’ rights reserved. Our present question relates solely to Kelley’s grounds of demurrer which were not acted upon. The same question is raised upon each indictment. That question is:
“May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?”
That the indictment charges manslaughter against the captain and engineer as a. result of criminal negligence connected with the operation of the ship’s boiler for present purposes is not disputed. Neither is there dispute as to the meaning of accessory before the fact. He is “one who, being absent at the time the crime is committed, yet procures, counsels or commands another to commit it”. 1 Proc. p. 65. In the first count the negligence charged is the “wanton and willful” creation of any steam in 3, boiler known to be worn, corroded, defective and `unsafe, as a result whereof an explosion occurred killing a passenger; the charge against Kelley as accessory is that “before said felony and manslaughter was committed,” . . . he did at Pawtucket “feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit”. The latter is substantially the language applied to Kelley as accessory in the other three counts. The second count of the indictment charges knowledge of the strength and capacity of the boiler on the part of the principals and negligence in developing more steam than the boiler could safely hold. The third count charges a lack of reasonable care in generating steam in a boiler known to be so worn, etc., as to be unsafe and the fourth count charges that defendants having control of generating steam and knowing the boiler to be defective so disregarded their duty that the explosion followed.
The State, substantially adopting the definition of manslaughter as given in Wharton on Homicide, 3rd ed. p. 5, defines it as “The unlawful killing of another without malice either express or implied”. The State further refers to the charge in the indictment as “involuntary manslaughter, that is, the killing of another without malice and unintentionally in negligently doing an act lawful in itself and in the negligent omission to perform a legal duty”. Because the manslaughter charge is “Without malice and “involuntary” Kelley contends that he can not be indicted legally as an accessory before the fact. The argument is that manslaughter being a Sudden and unpremeditated crime inadvertent and unintentional by its very nature can not be “maliciously” incited before the crime is committed. Such is the view expressed by text-writers, decision or dicta, in 1 Hale, P. C. 437, 615, 616; Hawkins, P. C. Chap. 30, 2, manslaughter; Goff v. Byby, 2 Cro. Eliz. 540 ; Bibith’s Case, 4 Coke Rep. 43 b; Archbold, Crim. Prac. & Proc. 8th ed. Vol. 1, pp. 65, 66; 4 Blackstone commentaries, 36 and 191; State v, Kinchen, 126 La. p. 39 (1910); Adams v. State, 65 Ind. 565; Wharton on Homicide, 59, pp. 75, 76; 13 R. C. L., § 25, p. 726; State V. Kennedy, 95 S. E. (S. C.) 350 (1918); State v. Robinson, 12 Wash. 349 (1895); Bowman v. State, 20 S. W. 558, (Tex.) (1892). In most of these citations a charge of murder was under consideration and the theory was that, after a conviction for manslaughter was had, there could be no accessory before the fact. Some of these authorities state broadly that there can be no accessory before the fact in manslaughter giving the reasons now urged by Kelley.
While everyone must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor Vehicle laws or administration of drugs to procure an abortion. 29 C.J. § 136, p. 1149. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. 29 C.J. § 141, p. 1154. There is no inherent reason Why, prior to the commission of such a crime, one may not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. 1 R.C.L. 24, p. 146. 29 Corpus Juris, 38, p. 1067, says: “At common law there may be accessories before the fact to involuntary manslaughter.” Cases considering the question before us are Queen V. Smith & Taylor, 2 Cox. Cr. Cas. 233 (1847) quaere; Reg. V. Gaylor, 7 Cox Cr. Cas. 253 (1857); Russell on Crimes, 7th Eng. lst Canadian ed. 119, 779, 780; Rex V. Russell, 1 Moody Cr. Cas. 356 ; Mathis V. Slate, 45 Fla. 46, at 69; Commonwealth V. Adams, 127 Mass. 15 (1879); State V. Coleman, 5 Porter, 32 (Ala.) (1837); State V. Hermann, 117 Mo. 629; V. State, 11»Ind. 62 (1858) quaere; Rex V. Brooks, 9 Br. Col. 13; 1 Bishop on Cr. L. 8th ed. Vol. 1, § 678, pp. 412, 413. The latter states:
“Manslaughter does not commonly admit of an accessory before the fact, because when the killing is of previous malice, it is murder. This is the ordinary doctrine yet probably there may be a manslaughter wherein this is not so, as, if one should order a servant to do a thing endangering life yet not so directly as to make a death from the doing murder, it might be manslaughter then, why should not the master be an accessory before the fact in the homicide?”
Decisions in the above cases pro and con are sometimes confusing because of failure to keep clear the difference in popular and legal meaning of the words “malice” and “involuntary”. In a popular sense “malice” means hatred, ill will or hostility to another; in law it means “the state of mind manifested by an intent to commit an unlawful act against another”. Webster’s New Int. Diet. In Commonwealth 9 Met. 93, at 104, SHAW, C. J., defines “malice” as “the willful doing of an injurious act without lawful excuse”. See also Words & Phrases. It may be found in an act shown by the circumstances to wickedly or willfully disregard the rights or safety of others. Commonwealth v. Webster, 5 Cush. 295; People V. Davis, 8 Utah, 412. Malice in its legal sense may exist without actual intention of any mischief if the killing is the actual consequence of careless action. Penn. v. Bell, Pa., Addison 156, s. c.1 Am. Dec. 298 at 301. Hence, reference to manslaughter as being “without malice" needs close scrutiny. The use of the term “without malice” in the State’s definition of manslaughter, supra, is, as often in the text-writer’s, for the purpose of distinguishing manslaughter from murder, State V. Fenik, 45 R. I. 309, at 314, rather than to give an all inclusive definition of manslaughter. Malice in the sense of general criminal intent exists in manslaughter, and Wharton Says the distinction between express and implied malice is unsound. “ There is no case of homicide in which the malice is not implied; none in which it is from the circumstances of the case.” Wharton on Homicide, 84, p. 104; United States v. King, 34 Fed. 302. When, therefore, “maliciously” is used in this indictment as against Kelley, it means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life. Commonwealth v. Adams, 127 Mass. 15; Commonwealth V. Webster, 5 Cush. 295.
“Invo1untary,” in common parlance means not in accordance with the actor’s will or choice. Webster’s New Int. Dict. As applied to charges of manslaughter it may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. “Involuntary” used in connection with manslaughter, characterizes the result of the act, not the doing of the act. It does not mean that volition was not present in the negligent act from which the death resulted. Voluntary manslaughter is often described as per unlawful taking of human life under circumstances falling short of willful or deliberate intent to kill and yet approaching too near thereto to be justifiable homicide. The law does not permit defendant in such a case to say that he did not intend the consequences of his act. See classification of voluntary and involuntary slaughter in 29 C. J. 1047.
By keeping these distinctions in mind, the present indictment for involuntary manslaughter is not self-contradictory when it charges Kelley to be an accessory before the fact. It was possible for him at Pawtucket to intentionally direct and counsel the grossly negligent act which the indictment charges resulted in the crime. Involuntary manslaughter, as set forth in this indictment means that defendants exercised no conscious volition to take life but their negligence was of such a character that criminal intention can be presumed. 29 C. J. 1154. The crime was consummated when the explosion occurred. The volition of the principals was exercised when they chose negligently to create steam which the boiler could not carry. The doing of the act charged or failure t6 perform the duty charged was Voluntary and intentional in the sense that defendants exercised a choice among courses of conduct. It is obvious that Kelley could participate and is charged with participating in procuring defendants to act in a grossly negligent manner prior to the explosion. Legal precedents based upon facts unlike the present ones do not convince us that he could not have been an accessory before the fact.
We have been referred to no case of an accessory before the fact on an indictment charging negligent manslaughter. The absence of such eases may be due to the fact that, by statute, in many jurisdictions accessories before the fact are treated as principals. Our statute relates only to their punishment and not to the nature of the offence. Gen. Laws 1923, Chap. 402, Sec. 2 (6251). The case of United States v. Van Schaick, 134 Fed. 592, treated all defendants as principals, holding the directors of a steamboat company negligent in failing to provide life preservers as a result of which many passengers were drowned. The negligence was held to be a continuing cause actually operating to produce the deaths though the directors personally were not present at the moment of death. The negligence charged against Kelley is not of this type.
We are convinced that in some types of manslaughter there may be an accessory before the fact and from our study of the present indictments we believe they aver such cases. Specific duties are stated to have been laid upon the captain and engineer. Defendant is charged with full knowledge of those duties and of the fact that the boiler was unsafe. He is charged with counseling and procuring the principals at Pawtucket to disregard their duties and negligently create steam. Until the explosion no crime was committed. Defendant was not present when the negligence resulted in a criminal act. The advice at Pawtucket was not continuing negligence on Kelley’s part. The facts set forth in these indictments, if existent, are such that a jury might find that defendant Kelley, with full knowledge of the possible danger to human life, recklessly and willfully advised, counseled and commanded the captain and engineer to take a chance by negligent action or failure to act.
We therefore answer the question certified on each indictment in the affirmative. The papers in each case, with this decision certified thereon, are sent back to the Superior Court for further proceedings.
Charles P. Sisson, Attorney General, Oscar L. Heltzen, Asst. Attorney General, for State.
7.1.7 Wilcox v. Jeffery 7.1.7 Wilcox v. Jeffery
WILCOX v. JEFFERY.
[King's Bench Division (Lord Goddard, C.J., Humphreys and Devlin, JJ.), January 26, 1951.]
Alien - Breach of condition of leave to land - Aiding and abetting- Presence of music critic at concert - Leave to musician subject to condition not to take employment - Performance at concert - Aliens Order, 1920 (S.R. & O., 1920, No. 448), art. 18 (2).
On Dec. 11, 1949, one H., a musician and a citizen of the United States, was granted permission to land in the United Kingdom under art. 1 (4) of the Aliens Order, 1920, on condition that during his stay he would not take any employment, paid or unpaid. The appellant was present at the airport when H. landed and knew what condition had been imposed. That night H. attended a concert in a London theatre, and, on the invitation of the organisers of the concert, he gave a performance on the saxophone with other musicians. The appellant was present in the theatre throughout the concert, having paid for admission thereto, and later he wrote a laudatory commentary on H.’s performance in a magazine of which he was owner and managing editor and also published in the magazine a number of photographs.
HELD: the appellant’s presence at the concert was not accidental, and in the circumstances it was open to the magistrate to that his presence was an encouragement to H. to commit an offence against art. 1 (4) of the Order, and, therefore, under art. 18 (2), to convict him of aiding and abetting.
R. v. Coney (1882) (8 Q.B.D. 534), applied. [As to CRIMINAL RESPONSIBILITY FOR AIDING AND ABETIING OFFENCES, see HALSBURY, Hailsham Edn., Vol. 9, pp. 30-32, paras. 30, 31; and FOR CASES, see DIGEST, Vol. 14, pp. 91-94, Nos. 605-638, and Digest Supp., and 2nd Digest Supp.
AS TO THE CONDITIONAL LANDING OF ALIENS, see HALSBURY, Hailsham Edn., Vol. 1, p. 476, para. 805.]
Case referred to:
(1) R. v. Coney, (1882), 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T. 307; 46 J.P. 404; 15 Digest 645, 6870.
CASE STATED by a metropolitan magistrate.
At a court of summary jurisdiction sitting at Bow Street Magistrate’s Court the appellant, Herbert William Wilcox, owner and managing editor of a monthly magazine entitled "Jazz Illustrated,” was charged with aiding and abetting one Coleman Hawkins, a citizen of the United States, in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land in the United Kingdom, namely, that Hawkins should take no employment paid or unpaid during his stay, contrary to art. 18 (4) of the Order. It was proved or admitted that on Dec. 11, 1949, Hawkins arrived at a London airport and was met by, among others, the appellant. The appellant was present when an immigration officer interviewed two other persons who had previously applied for permission for Hawkins to perform at a concert in London, but had been told by the Ministry of Labor that their application had been refused. At that interview it was stated that Hawkins would attend the concert and would be spotlighted and introduced to the audience, but would not perform. The appellant said he was not connected with the persons responsible for organising the concert and that he had only gone to the airport to report Hawkins’ arrival for his magazine. The immigration gave permission to Hawkins to remain for three days in this country, making it a condition that he should not take any paid or unpaid employment. The appellant was aware that such a condition had been imposed. Later the same day the appellant attended the concert, paying for admission. Hawkins was seated in a box, but after being "spotlighted" he went on the stage and played the saxophone. A description of the performance by Hawkins with several pages of photographs was later published in the appellant’s magazine. The magistrate was of the opinion that the appellant aided and abetted the contravention of the Order by Hawkins and imposed a fine of £25 and £21 costs.
Rountree for the appelant.
J.M.G. Griffith-Jones for the respondent.
LORD GODDARD, C.J.: This is a case stated by the metropolitan magistrate at Bow Street Magistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called "Jazz Illustrated,” was charged on an information that “on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.” Under the Aliens Order, art. 1 (1), it is provided that
". . . an alien coming . . . by sea to a place in the United Kingdom -- a) shall not land in the United Kingdom without the leave of an Immigration officer. . .”
It is provided by art 1 (4) that:
“An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall comply with the conditions so attached or varied . . .”
If the alien fails to comply, he is to be in the same position as if he has landed without permission, i.e.,he commits an offence.
The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He came here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins land and it was refused, but, nevertheless, this professor of the saxophone arrived with four French musicians. When they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them and taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, lo and behold, out comes his magazine with a most, laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he aided and abetted.
Reliance is placed by the prosecution on R. v. Coney (1) which dealt with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones, does not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540):
"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”
There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get "copy" for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage." If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting "copy" for his paper. In those circumstances there was evidence on which the trate could that the appellant aided and abetted, and for these reasons I am of opinion that the appeal fails.
HUMPHREYS, J.: I agree that there was evidence sufficient to justify the finding of the magistrate.
DEVLIN, J.: I agree, and I wish to add only a word on the application of R. v. Coney (1). Counsel for the appellant sought to distinguish that case on the facts inasmuch as in R. v. Coney (1) the performance, which was a prize fight, was illegal from beginning to end, whereas in the case we are considering the bulk of the concert was quite legal, the only part of the performance which was illegal being that which involved Mr. Hawkins. That, however, is not, in my judgment, a distinction which affects the application to this case of the principle in R. v. Coney (1). It may well be that if a spectator goes to a concert he may explain his presence during an illegal item by saying that he hardly felt it necessary to get up and go out and then return when the performance resumed its legality, if I may so call it. It is conceivable that in such circumstances (and I should wish to consider it further if it ever arose) the presence of a person during one item might fall within the accidental or casual class which was envisaged by CAVE, J. Here there was abundant evidence, apart from the mere fact of the appellant's presence, that he was making use of this item in the performance and that his attendance at that item was, therefore, deliberate. In those circumstances I think the principle in R. v. Coney (1) applies, and that the magistrate was justified in drawing the inference which he did draw.
Appeal dismissed with costs.
Solicitors: Elliot & Macvie, (for the appellant); Treasury Solicitor (for the respondent).
7.1.8 State v. Tally 7.1.8 State v. Tally
102 Ala. 25
State ex rel. Attorney General
v.
Tally, Judge, &c.[*]
November Term, 1893.
This was an impeachment proceeding against John B. Tally, Judge of the Ninth Judicial Circuit of Alabama, and was commenced in the Supreme Court by an information filed on the part of the State by William L. Martin, as Attorney-General, founded upon a report of the grand jury of Jackson county. The facts of the case are sufficiently stated in the opinion.
WILLIAM L. MARTIN, Attorney-General, and R. W. WALKER, for the State. All the evidence as to any relations between R. C. Ross and Annie Skelton should be excluded from consideration. The knowledge or information on this subject which the Skeltons had on the day of the killing, they had had for at least a month prior to that time. So long a cooling time having elapsed, evidence of such knowledge was not admissible for the purpose of reducing the grade of the homicide from murder to manslaughter, the only purpose for which such evidence is admissible in any case.—Hooks [28] v. State, 99 Ala. 166; Fields v. State, 52 Ala. 354; Reese v. State, 90 Ala. 627.
A witness should not be permitted to testify as to his uncommunicated intentions.—Lewis v. State, 96 Ala. 6, and cases there cited.
The charge of willful neglect of duty was fully made out. The respondent, with knowledge that Ross had returned to Scottsboro, that the Skeltons were "on the war path" for him, saw thee of the Skeltons on horseback, with guns, early Sunday morning, starting hurriedly out of town, evidently on some war-like mission. With knowledge of their previous threat to kill Ross, even if that threat was conditional, it can not be imagined that any other thought entered respondent's mind when he witnessed the demonstration than that the Skeltons were starting out in pursuit of Ross, intent upon killing him. After stopping and talking to Bob Skelton, respondent, according to his own admission, went into his house, there learned the truth of the matter, and then walked out to his front gate, and was there seen by witnesses for the State standing watching the Skeltons as they rode out of town. Under the circumstances, with the knowledge the respondent then had. The acts of the Skeltons in his presence as clearly amounted to a threat to kill Ross as if respondent had admitted that Bob Skelton, in the interview near respondent's barn, had fully developed their plans and purposes. The acts in respondent's presence "reasonably threatened murder."—Jones v. State, 100 Ala. 88; Martin v. State, 89 Ala. 115; Hayes v. Mitchell, 69 Ala. 452. The defendant then had the authority to order the Skeltons into an undertaking to keep the peace. Code, §4697. Certainly, the highest law officer in the county should be held to some degree of diligence in the performance of so grave a duty.—2 Wharton Crim. Law, (7th Ed.), 2526, 2528.
Anyone coming into a conspiracy at any stage of the proceedings, with knowledge of its existence, is regarded in law as a party to all the acts done by any of the other parties, before or afterwards, in furtherance of the common design. No pre-arrangement is necessary. One, who with knowledge 01' information of the unlawful design of others, is present, actually or constructively, abetting or assisting , or ready to [29] aid, abet or assist, is a guilty participant.—United States v. Sacia, 2 Fed. Rep. 755, 757-58; Tanner v. State, 92 Ala. 1; Martin v. State, 89 Ala. 115; Spies v. People, 122 Ill. 1. The words "aid" and "abet" comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance, should it become necessary.— Raiford v. State, 59 Ala. 106. Where an effort to do a criminal act fails of consummation, simply because of obstructions in the way, not apparent to the person making the effort, which rendered the crime incapable of accomplishment by him, such abortive effort is a criminal attempt, where the law makes a mere attempt to do such act criminal. Mullen v. State, 45 Ala. 43; People v. Moran, 20 Amer. St. Rep. 732.
WILLIAM RICHARDSON, D. D. SHELBY, JOHN A, LUSK, GEORGE C. HUNT and AMOS GOODHUE, for respondent. There is a total absence of any evidence that the respondent at any time was in consultation with the Skeltons or either of them, concerning the killing of Ross. He is shown to have been in consultation with Robert S. Skelton on the evening before the homicide, but this in no way concerning the killing of Robert C. Ross, but was regarding the ascertaining of the whereabouts of a sister, whom the defendant with the Skeltons desired to rescue from a life of shame and disgrace, and save from becoming the subject of a public scandal. It is true, circuit judges are magistrates and conservators of the peace.—Code of Alabama, 1875, Art, VI, Par. 16; 1 Cooley's Blackstone, 350; Code of 1886, § 4680. But there are only certain contingencies under which they are authorized to exercise their power as such, in the manner in which it is charged this defendant neglected to act. 1. When complaint on oath is made to them charging the commission of an offense has been threatened.—Code of Ala., 1886, § 4681, et seq.; 2 Amer. & Eng. Encyc. of Law, 516, § 2; and, 2, when an offense is committed or threatened in the presence of such magistrate, or when he sees such acts as show a reasonable ground for the arrest.—Code of 1886, § 4697; Jones v. State, 100 Ala. 88; Code 1886, § 4265. There is in the evidence in this case, total absence of any threat and any act in the presence or within the knowledge of this respondent, on the part of either of the four named [29] Skeltons, to do Ross any harm whatever. He had no knowledge or suspicion of such a thing except after they had gone beyond any opportunity on the part of anyone in Scottsboro to interpose any obstacle. There is no evidence in the record sustaining the smallest fragment of the first count and its four specifications so far as they relate to this defendant.
The second count in the information, is a charge of murder alleging in the several specifications substantially the same thing, but, under the pleadings and the evidence in this case, depending solely on the proof being made that the respondent entered into a conspiracy with the four Skeltons to murder the said Robert C. Ross. If the respondent was not an accessory before the fact to the killing of Ross, he is not guilty of any crime alleged in the information. He either conspired with the four named Skeltons to murder Ross, or he had nothing to do with his death, and should be acquitted. An accomplice is a person who knowingly, voluntarily and with common intent with the principal unites in the commission of a crime.—Tanner v. State, 92 Ala. 1; Wharton's Crim. Ev., § 440. There can be no pretention that the defendant united in the commission of any offense; he did no act that aided, abetted or encouraged the Skeltons in doing anything they did. The telegram had nothing whatever to do with bringing about the death of Ross. In no way did it aid in the killing. It was not instrumental in causing delay in the delivery of the message of E. H. Ross to the man slain, in no way facilitated the pursuit by the Skeltons. In this case, if there be a previously formed purpose or conspiracy to commit the offense, the acts, declarations and conduct of each conspirator done or expressed in promotion or in relation to the accomplishment of the crime, becomes the act, declaration or conduct of each co-conspirator, and may be given in evidence against him. But to do this, a prima facie case of conspiracy must be shown.—McAnally v. State, 74 Ala. 16. A prima facie case or evidence is that which is received or continues until the contrary is shown.—19 Amer. & Eng. Encyc. of Law, 83; Troy v. Evans, 97 U. S. 3; Kelly v. Jackson, 6 Pet. (U. S.) 622; Wharton's Crim. Ev., § 698, and note 2. The respondent is charged with being an [31] accessory to a crime. It must appear that the crime was in fact committed.—Poston v. State, 12 Tex. App. 408. There is no prima facie case made, there is no conspiracy, and the evidence as to all that the Skeltons did and said should be excluded.—McAnally's Case, supra.
An accessory before the fact, as charged in this information, is one who, being absent at the time the crime is committed, yet procured, counselled or commanded another to commit it.—1 Arner. & Eng. Encyc. of Law, 61,also page 67, and note, Hughes v. State, 75 Ala. 31; Griffith v. State, 90 Ala. 583; 1 Amer. & Eng. Encyc. of Law, 452 and note 3. There is absolutely no evidence in this case that the respondent procured the Skeltons to commit the deed charged, or that he counselled it or commanded it.
The mere passive non-interference does not render one guilty of a crime committed by others.—3 Coke 529, and note; Jackson v. State, 20 Tex. App. 190; Mulvey v. State, 43 Ala. 316. Mere approving a murder committed in one's presence or within one's knowledge does not make him an accessory or an accomplice.—Wharton's Crim. Ev., 440; State v. Cox, 65 Mo. 29; 1 Amer. & Eng. Encyc. of Law, 62, and note 1; Connaughty v. State, 1 Wis. 169; People v. Woodward, 45 Cal. 293; 13 Amer. Rep. 176 and notes; White v. People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. App. 301; Rucker v. State, 7 Tex. App. 549; State v. Hann, 40 N. J. L. 228; Ellizando v. State, 30 S. W. Rep. 560
In order to make one an abettor it must be proven that he was in a situation in which he not only rendered assistance in some manner in the commission of the offense, but it must be proven that he was in this position by agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and for the purpose of rendering him encouragement in the commission of it—Knapp' s Case, 20 Amer. Dec. 504. Or to assist him by the doing of some act whereby the party who is regarded as the principal and is the principal actor in the commission of a crime is encouraged, or it is made easier for him to do the principal act or effect the primary purpose.—1 Amer. & Eng. Encyc. of Law, 453 and note; Wiley v. McRee, 2 Jones (N. C.) 349 Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 568. To hold one liable with [32] others as principal in the commission of an offense, there must be combination of act and intent.—Ronntree v. State, 10 Tex. App. 110. One is not guilty of aiding and abetting merely because present and seeing an offense committed, if he does not interfere. He must do or say something showing his consent and contributing to its execution.—State v. Hayward 10 Amer. Dec. 607, note. There must be some affirmative act or encouragement to make him guilty as an accomplice.—Amer. & Eng. Encyc of Law, 575.
If the telegram of the respondent to Huddleston, not being sent with the consent, knowledge or approval of the Skeltons, and not being addressed or directed to them, and not being delivered to them, nor brought to their knowledge, and being in no way interposed between the deceased and any means of escape which may have offered themselves to him, the telegram in no way contributed to, facilitated or brought about the death of Ross, and, therefore, the defendant is not guilty of any of the specifications in the information.— Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 12; Turner v. State, 97 Ala. 57; Cabbell v. State, 46 Ala. 195. In order to ho1cl the respondent responsible as a participant in the crime, if crime it be, on the part of the Skeltons to have killed Ross, the State must show beyond a reasonable doubt that the act of the defendant in sending the telegram to Huddleston contributed to and facilitated the killing of Ross by said Skeltons. And that the act and conduct of the respondent was anticipated by or expected on the part of the Skeltons by reason of a previously formed arrangement or agreement between them and the respondent, that he would so act, or do other acts of a character calculated to aid and facilitate the killing of Ross.—Hickam's Case, 8 S. W. Rep.252; 6 Criminal Law Magazine and Report, 414.
McCLELLAN, J.—The evidence was taken ore tenus in this case. There were many witnesses. Much difficultyand delay in securing their attendance at Montgomerywere apprehended. To facilitate the hearing ofthe case and to subserve the convenience and necessitiesof the witnesses, the judges of this court, at the requestand in accordance with the agreement of the respondent [33] and the State consented to take the evidence and hear the arguments of counsel in the cause at Huntsville near the scene of the acts and omissions laid against the respondent in the information. And the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in accordance with the agreement referred to, in view of the control which the statute gives respondents m such cases over the manner of taking testimony. But we were not unmindful of section 3, article IV of the constitution, which is in this language: “The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place;" and we wore careful, while sitting at Huntsville as individual members of the court and not as the court itself, to avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received subject to objections noted at the time and is now to be stricken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances the triers of the facts and the judges of the competency of proposed testimony being the same and under a necessity for the most part to know what the offered testimony is before passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party; and we believe facilitated the hearing in this instance.
Briefly stated, the information in this case contains two charges against John B. Tally as Judge of the Ninth Judicial Circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James and Walter Skelton to take the life of R. C, Ross, and having the opportunity to intervene in his official capacity to prevent the execution of that intent he willfully failed and neglected to do so. The second count charges complicity on the part of Tally in the murder of Ross, by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named except John, having married their sister who was a cousin to John. The [34] grievance they had against Ross lay in the fact that the latter had seduced or been criminally intimate with a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally as tending to connect him with the motive which actuated the Skeltons to the killing of Ross; and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the State, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton—had had possession of and read all the implicatory letters from him to her—long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross's misconduct toward her, been moved by the tumult of passion, which the law holds such intelligence sufficient to provoke and engender, to take the actual life of Ross, and had taken his life while under the actual dominion of this overmastering passion before cooling time had elapsed, all this evidence would have been competent as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether as a matter of fact life was taken in a passion so continuing or not, the offense of the Skeltons, and of Tally, if he participated in the homicide, was and could be in nowise and to no extent or degree justified, mitigated or extenuated by the fact of Ross's relations with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case, wholly apart from and exclusive of the relations of Ross and Miss Skelton, may or may not satisfy beyond a reasonable doubt minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without griev [35] ance, real or fancied, against him. All this testimony is, therefore, entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded.—Hooks v. State, 99 Ala. 166; McNeill v. State, 15 So. Rep. 352, infra.
It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated him in the sending of a certain telegrams, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Ross and the respondent on the morning of February 4, 1894, he "went down to the hotel to see if Mr. Ross was there—to see if he had come there; went down to advise with him and to see what the trouble was, and also to deliver the message," must now be stricken out.—Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383, Stewart v. State, 78 Ala. 436, Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib. 428; E. T. V. & G. R. R. Co. v. Davis, Ib. 615; Lewis v. State, 96 Ala. 6.
The conversation between the respondent and Mr. J. E. Brown after and on the day of the homicide was in the nature of privileged communications between attorney and client, for though that relation was never established between these parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded.—Hawes v. State 88 Ala. 37, 68. Without discussing at present other objections to the testimony which may be ruled upon in the course of this opinion, we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information, premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.
Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the [36] following: About January 6, 1894, Ross left his home in Scottsboro surreptitiously under and because of an apprehension that his life was imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. From that time till Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o'clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson and beyond there to Chattanooga, Ross left Scottsboro in a hack for Stevenson, eighteen miles distant, intending to catch a tram there on another road and go on to Chattanooga. With him were his brother-in-law, Bloodwood, a negro man, John Calloway and the driver, one Hammons. All of the party were armed; Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or, rather, unite there, and thirty or forty yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him; and met, shook hands and passed the usual salutations with Ross , who had gotten out on the side next the station, and then turned away and started on toward the station. Just at this juncture a shot was fired at Bloodwood, from behind the depot platform. This was followed by another from the same place, and then by other shots from two guns behind the platform and from a pile of telegraph poles a little way down the road in the direction from which the hack had come. Some one or more of these succeeding shots took effect in Ross's legs, and he fell. Bloodwood was also wounded and ran away. The team ran away with Hammons. Calloway does not appear to have been hit, but in some way he fell with and under Ross. They both arose almost immediately. The negro, Calloway, ran away. Ross managed to get to the side of a small oil house, a [37] short distance beyond where the hack had stopped, and took a position affording some shelter from persons behind the platform and telegraph poles. While standing there with his gun in his hand and looking in the direction of the telegraph poles, a man came to the corner of the house behind him and shot him with a Winchester rifle through the head from back to front. He fell in the throes of death and died, then another man came up from behind the platform and, approaching closely, also shot him through the head with a Winchester rifle.
The man who fired the first and two of three other shots from behind the platform was Robert Skelton. The man who fired the other shots from that position was James Skelton. The man who fired from the telegraph poles was Walter Skelton. John Skelton it was who reached the corner of the oil house behind Ross, shot him in the back of the head and killed him. And it was Robert who came up after he was dead, and again shot him in the head. Some of the Skeltons were seen about the station in Scottsboro when the east bound train passed that morning just at the time Ross started overland to Stevenson. Soon after that they heard of Ross's flight, and, as soon as they could get together, arm and mount themselves, they started in pursuit on horseback. They were fearful that Ross would turn off the Stevenson road and go across the Tennessee river as he had done on the occasion of his previous flight, and hence they were afraid to take any short cuts by resorting to which they could have, as Ross continued in the Stevenson Road, overtaken him much sooner than they did; but in their uncertainty as to his destination they thought it best to follow the tracks of his vehicle. Doing so they came in sight, and within a little distance of the hack as it was crossing a creek a mile from Stevenson. The hack was a close one and its occupants did not see them. A railroad crosses the creek at this point along side of the public road. They could have attacked the Ross party at this point, and Walter Skelton testifies that he then said to his companions: "Let's surround them and demand of him where Annie is," but that they said: "No, that would probably bring on a fight, and some one of us get killed." Instead of this, Robert and James dismounted, left their horses and ran along the railway track to Stevenson where they arrived and took positions behind the platform [38] almost immediately after the Ross party had arrived and stopped. Walter and John Skelton kept in the road behind the hack and fifty or sixty yards distant from it. They too were afoot at this time. Walter stopped at the pile of telegraph poles which he seems to have reached about the time the hack stopped and before anyone alighted from it. John, in same way, got beyond the hack and finally to the oil house without, so far as the evidence discloses, being seen by anybody until just before he shot and killed Ross. After the killing of Ross, Robert Skelton sent a telegram to the respondent at Scottsboro informing him that Ross was dead and that none of the Skeltons were hurt; and they all surrendered themselves to Huddleston, who was mayor of Stevenson, and were taken back to Scottsboro and confined in jail. Subsequently bail was allowed them and was given by Robert and James. John and Walter were unable to give bail, and the former escaped, and is still at large. After this, Walter also gave bail. All these facts are undisputed. The evidence offered in justification or mitigation of the homicide, except the facts and circumstances of Ross's relations with Miss Annie Skelton which we have excluded, is that of Robert Skelton as follows: "About the time that I got to the depot) between the depot and the hotel, Mr. Ross was at the buggy speaking with Bill Tally. I walked up and saw that. In a little while, I don't know how long, Mr. Bloodwood drew his gun up at me. I dodged dawn, and then fired at Bloodwood;" and of Walter Skelton: "I was, I suppose, fifty or sixty yards behind the hack [when it stopped], and I was watching to see who got out. I saw Mr. Ross get out, talking to some one. Then I saw Mr. Bloodwood get out, and in a few minutes I saw him raise his gun across the hack, then take it down and about the same instant I heard a gun pop." The gun which Walter heard “pop" was that of Robert Skelton. Walter and James then joined in and Robert continued the fusilade. That Bloodwood did not shoot there is no reasonable doubt. That Ross or any other of his party fired a shot is not pretended. That Bloodwood snapped his gun in an effort to shoot there is some evidence, enough we will conclude to engender a reasonable doubt as to whether he did or not. But the conclusion that he attempted to shoot at Robert Skelton will not afford any [39] justification or excuse to the Skeltons or the respondent. They were in no danger from Bloodwood' s gun. If they were in danger, a safe avenue of retreat was open to each of them. Had there been danger and had the opportunity of retreat been wanting, they yet could not invoke the doctrine of self-defense, because their danger resulted from their awn wrongful and unlawful aggression. They were there to kill. It was Ross and Bloodwood and not they who were on the defensive. This conclusion can not be escaped even from their own standpoint. They say they pursued Ross to prevent his going to their sister and continuing criminal relations with her. How were they to do this; how could they do it but in the effective way they did do it, by stopping Ross at once and forever in his tracks. That they contemplated this means, conceding their purpose was to prevent the coming together of Ross and Miss Skelton, is beyond all question. It is shown by their conversation at the creek, when they said Ross would fight and some of them would be killed if they approached him with reference to Miss Skelton, and they then desisted only because the place and surroundings were not opportune. It is shown by the disposition they made of themselves around but concealed from Ross at Stevenson and the instantaneous fire they opened an him as soon as they were in their places of ambush, when, had their purposes been less deadly, had any sort of parley with Ross been desired, either for the purpose of diverting him from their sister or of ascertaining from him her, whereabouts, pacific means to that end were at hand in the person of William Tally, who had just spoken to Ross and was then coming directly towards the place of concealment of two of them, one of whom began the onslaught, and in the person of several other men then in and about the depot. Their purpose was to kill; its wickedness was unrelieved by aught of legal justification or excuse. They did kill; and their act was without any justification, mitigation or extenuation which the law knows or courts can allow to be looked to. It was murder.
What connection had the respondent with that murder? Was he, knowing the deadly intent of the Skeltons and their pursuit bent upon its execution, willfully neglectful of his duty as a magistrate in not exercising the power the law had clothed him with to stay their[40] hands? Or did he himself participate in the deed by commanding, directing, counselling or encouraging the Skeltons to its execution, or by aiding and abetting them in its commission? The evidence for the prosecution on these issues will be briefly stated. As has been seen, Judge Tally was the brother-in-law of Robert, James and Walter Skelton, and of Miss Annie Skelton, the wronged girl. It may be supposed, therefore, that he shared with the Skeltons, in some degree at least, the shame and mortification which had come upon them through Ross; and that the grievance against Ross was common to them all. It was shown that he knew all the facts known to the Skeltons and came to his knowledge of them soon after they did. They all lived in the same town with the intimacy usually incident to their relations. James Skelton lived with Judge Tally. On Friday before the Sunday of the homicide, Judge Tally returned to Scottsboro from Ft. Payne, where he had been holding court, by way of Chattanooga, Tennessee, and over the Memphis and Charleston railroad. On the train was Mr. Gregory, a lawyer of Scottsboro, who engaged Judge Tally in conversation. The latter spoke of some interesting murder Cases that he had been trying at Ft. Payne, and in this connection Gregory remarked to him that he thought they would have one or more killings in Scottsboro in a very short time. "The Judge [to quote the witness] asked me why, and I told him that Ross had come back and that the Skelton boys were on the war path, or some such thing, I don't remember just what it was. The Judge said he guessed not, that he supposed Ross would leave, or would not stay there, or something of that kind; and I told him I supposed so." On Saturday afternoon Judge Tally was in consultation with Robert Skelton, the eldest of the brothers, for something like a half hour in the latter's office. It is admitted by Judge Tally that this conversation had relation to Ross and Miss Skelton and the scandal connected with them. Tally staid at home that night. James Skelton also slept there. The next morning Tally's fifteen year old son went to a livery stable and got a horse, the hire of which was charged to, and subsequently paid by, Judge Tally. This horse was gotten for the purpose of being ridden and was ridden by Walter Skelton in pursuit of Ross. One witness testifies [41] that quite early on that Sunday morning before the Skeltons had assembled to go in pursuit of Ross, he saw a man whom he took to be Judge Tally passing a street some distance from Judge Tally's house, going in the direction of John Skelton's, but he was by no means sure that the man he saw was Judge Tally. J. D. Snodgrass, a witness far the State, testified that he saw three of the Skeltons, Robert, John and James, leaving Scottsboro that Sunday morning. When he first saw them, John and James were going along a side street upon which Judge Tally's barn and barn lot were situated. That the two last named had gotten beyond Tally's premises and were about turning out of this street, which ran north and south, into a street running east and west and passed in front of Judge Tally's residence. This residence was the second from the corner at the intersection of these streets. At this time Robert Skelton was on horseback near Tally's barn lot fence talking with Tally. He remained there only a very short time—the witness said probably a minute—after Snodgrass saw them. Tally was either inside his lot or in the street near his lot and on foot. At the end of this short time Robert rode on following John and James, turned east on the other street mentioned and passed by Snodgrass's house, which fronted on that street, going in the direction of Stevenson. He then observed that each of them had a gun. Another witness before this saw Walter Skelton following the Stevenson road on foot. This witness coming on down this street in front of Judge Tally's house, saw Tally standing at his front gate looking in the direction Walter Skelton was proceeding. Tally turned before he reached him and went into the house. Young Tally carried the horse which he had gotten from the livery stable to Walter on the road. Another witness passed down this street after they had all gone towards Stevenson, and he also saw Tally at his gate looking in that direction. Tally again turned and went into his house before this witness reached him. It was also in evidence that James Skelton left Tally's house that morning before breakfast, went down town, armed and mounted himself, came back to Tally's, hitched his horse in front of the house, set his gun against the front gate, went into the dining room to get something to eat before starting, then went out, remounted, and joined [42] Robert and John at the corner where these three were seen by Snodgrass. The flight of Ross and the pursuit of the Skeltons at once became generally known in the town of Scottsboro, and was well nigh the sole topic of conversation that Sunday morning. Everybody knew it. Everybody talked only about it. Everybody was impressed with the probability of a terrible tragedy to be enacted on the road to Stevenson, or at the latter point. The respondent was soon abroad. He went to the depot where the telegraph office was. He remained about there most of that morning. About nine o'clock that morning Dr. Rorex saw him there, and this, in the language of the witness, passed between them: "I said to Judge Tally that I thought we had better send a hack and a physician to their assistance up the Toad [referring to the Ross and Skelton parties then on the road to Stevenson]; that these parties might get hurt and they might need assistance. Judge Tally replied that his folks or friends could take care of themselves. I also said to him that I reckoned we ought to send a telegram to Stevenson and have all of them arrested, to which he made no reply. * * He said that he was waiting to see if anybody sent a telegram—or words to that effect—waiting or watching to see if anybody sent a telegram." And he did wait and watch. He was seen there by Judge Bridges just before the passenger train going west at 10:17 passed. He was there after it passed. E. H. Ross, a kinsman of the Ross who had fled and was being pursued, meeting the telegraph operator, Whitner, at the passenger station walked with him down to the freight depot where the telegraph office was. Judge Tally followed them. They went into the telegraph office and so did he. Ross was sitting at a table writing a message. It was addressed to R. C. Ross, Stevenson, Alabama. Its contents were: "Four men on horse back with guns following. Look out." Ross handed it to the operator to be sent. Tally either saw this message or in some way very accurately divined its contents. He called for paper and immediately wrote a message himself. Judge Bridges was still in the office. At this juncture Tally spoke to him, took him into a corner of the room and, calling him by his given name, said: "What do you reckon that fellow [the [43] operator] would think if I told him I should put him out of that office before he should send that message?" referring to the message quoted above which E. H. Ross had just given the operator. Judge Bridges replied: "Judge, I wouldn't do that. That might cause you very serious trouble, and besides that might cause, the young man to lose his position with the company he is working for." Judge Tally then remarked: ' 'I don't want him to send the message he has, and I am going to send this one." He then showed Judge Bridges a message addressed to William Huddleston at Stevenson, containing these words: "Do not let the party warned get away." This message was signed by Tally. Huddleston was the operator at Stevenson and a friend of Tally. The respondent then handed this telegram to the operator, remarked to him "this message has something to do with that one you just received," said he wanted it sent, and paid for it. He then started toward the door, but turned to the operator and said: "Just add to that message, 'say nothing.’” Tally then left the office. This message was sent just after that of E. H. Ross to R. C. Ross. The original of it was placed on a file in the office at Scottsboro. Two days after a search was made for it and it could not be found, and has never been found. The one man in the world most interested in its destruction, the respondent in this case, in the meantime had had an opportunity to abstract it, he having had access to this file and gone through the messages on it for the purpose, he said then and says now, of finding the address of a person to whom he had sent a message some days before. And on the preliminary examination of the Skeltons before the probate judge of Jackson county for the murder of Ross, Judge Tally was called and examined as a witness for them, and before a copy of this message was produced by the operator, and hence at a time when Judge Tally was not aware that a copy was in existence, this question was put to him: "You didn't send any dispatches that morning to Stevenson?" And his answer was: "Yes, sir. I sent one, but not about this matter. It was to a friend, about another matter, nothing concerning this case." And this friend was Mr. Huddleston. He further testified on that trial that he did not know Ed. Ross, did not see him going to the telegraph office that morning, and did not know whether Ed. Ross was in the telegraph office while he was on that [44] occasion or not. These telegrams of Ed. Ross and Tally were sent about 10:25 A. M. Tally then, his watch to prevent the sending or delivery of a telegram to R. C. Ross being over, went home. Soon after eleven o'clock the message before referred to came from Stevenson to Scottsboro, addressed to Judge Tally, and signed by Robert Skelton. It ran: "Ross dead, none of us hurt." This was taken to Judge Tally's house and there delivered to him, and he thereupon went to see Mr. Brown, and had the conversation which we have excluded.
The foregoing is substantially the case made by the evidence adduced by the State against the respondent, leaving out of view for the moment the evidence touching the effect which his message to Huddleston had upon occurrences at Stevenson.
Next we undertake a summary of the evidence for the defense. Judge Tally himself, and Robert, James and Walter Skelton were among the witnesses examined. The respondent admitted having a conversation on the train with Mr. Gregory, but he did not recall that Gregory said anything about the Skeltons being on the war path. He says he knew of the relations between Ross and Miss Skelton soon after the Skeltons were informed of them, and read the letters from him to her soon after they came to their possession. That he and Robert Skelton, at the time the latter showed him the letters, on January 6, 1894, held consultation as to what was best to be done in the matter. This is his account of what occurred and was said at that time in Robert Skelton's office: "Iasked Bob Skelton if he had such communications as it was reported he had, letters said to have been written by Mr. Ross to Annie. I asked him then if he would let me see the letters. He said he would; and got them and showed them to me, and I read them there in his office. He and his brother David Skelton and myself were the only persons present. During the time I was reading the letters we were speaking about the contents and discussing them, and he told me after I had read the letters—possibly during the time I was reading them—he gave me his ideas as to managing the trouble. He told me about his plans to get Annie home and to let Mr. Ross leave and make the best of it—let it die out and make the best of it. I told him that was decidedly the best thing to do. It [45] was best for him and would possibly save the publication generally of the scandal, and might possibly save my mother’s life. Annie's mother was paralyzed and helpless, and I suggested that exposure might possibly cost her her mother's life. Dave Skelton was sitting by and observing our conversation, and would occasionally have something to say; and he spoke of doing violence—spoke of killing him. I simply turned to him and said: ‘Dave, that won't do. This is the best management.' I desire to say just here that this is the only time that any member of the Skelton family ever said anything in my hearing about killing Ross. Not long after that, he left and I heard no further conversation about any violence." The respondent gives the following account of the conference he had with Robert Skelton on Saturday afternoon preceding the homicide: "I think I was on the street and Bob called me into his office, * * * and we engaged in conversation. I think that the first thing Bob mentioned to me was that he was thinking as to how he should find out where Annie was. He said he had been thinking about trying to get some one to go to Mr. Ross, and induce him or ask him to tell us where Annie was. I suggested to him the propriety of interviewing Mr. Brown about that, and gave him reasons why I suggested Mr. Brown." These reasons as given at the time by the witness he then repeats; and goes on to mention one or two other persons whose availability in getting this information was discussed, and says that after this he left Bob's office having been there he supposes fifteen or twenty minutes. In all this Judge Tally is corroborated by the evidence of Robert Skelton, and, in respect of their determination to do no violence to Ross, but to get the girl home and allow him to leave Scottsboro, he is further corroborated by the declaration proved by Mr. Gregory in substance that no violence would be done to Ross as he would leave Scottsboro. He denies having passed up the street when the witness Miller says he thought he saw him at an early hour Sunday morning, and no importance can be attached to the evidence of that witness, because, in the first place, his glance at the man was casual and hasty and he was himself not at all certain that it was Judge Tally he saw. In the next place even on the theory of the prosecution, there was no reasonable occasion for Judge Tally's being at that [46] place at that time, and, finally, the fact is denied on oath by the respondent. So that testimony may stand out of the case. In respect of the horse which Judge Tally's son procured at the livery stable, which was charged to and paid for by the respondent, and which Walter Skelton rode in pursuit of Ross, the testimony is that Mrs. Tally at the instance of Walter Skelton ordered this horse and sent her son for it, that she was in the habit of doing this, that it was charged to Judge Tally as was the custom, and that he, conceiving himself under a moral a and legal obligation to do so because the horse had been supplied to Mrs. Tally, paid the bill and this in the usual course, after the point now made on those facts had been suggested to him. The respondent admits on the stand that he saw and had a few words with Robert Skelton when the Skeltons were leaving Scottsboro Sunday morning as testified to by Mr. Snodgrass and this is the account of that interview: "When I first got up, I went down stairs and stepped out to the front gate just a minute. The only person I saw was Bob Skelton riding up the street towards the railroad [a street running north and south and not in the direction of Stevenson]. Bob was crossing the street going northwest [the direction in which John Skelton lived]. I walked back through the hall of my house and went down to the garden to the closet, and was there some time, I don't remember how long, some little time however. After I came out of the closet and while I was in the garden I saw Bob and John Skelton riding away going east on the street parallel with the railroad, and which ran back of Judge Tally's residence]. Istaid there and observed them and saw them after they had passed the barn of Mr. Harris on the corner. I saw them coming on the street south passing my barn—along the street that runs in front of my barn. When I saw them going in that direction I walked through my barn lot to the fence and saw them at the corner, [the intersection of this south and north street passing Tally's barn with the east and west street upon which his residence fronts]. About that time Jim Skelton joined them. I didn't notice where he came from. Then I called to Bob Skelton. He turned and rode back from where I saw them at the corner, * * * and I crossed the fence and met him near the corner of my [47] barn lot. He rode up within six or eight or ten feet, and I said to him: 'Bob, where are you going?' He said to me: 'Going up the road.' I asked him again: 'Where are you going?' and he answered: 'Up the road, and I am in a hurry.' He turned and rode off, went back the way he came when I called to him."
Robert Skelton's testimony agrees with Judge Tally's fully as to this interview, only he added that he said further to Tally that he was in a hurry and did not want to talk. And they are both fully corroborated as to the circumstances under which this interview was had, its brevity and how it was brought about, by Mr. Shelley, an wholly disinterested witness, who saw John and Robert Skelton as they rode along the east and west street back of Judge Tally's premises—they passed the witness there—saw them turn south on the street in front of Judge Tally's barn, and proceed along that street beyond the point of the interview between Tally and Robert Skelton, then saw the latter riding back to where Tally was, sit there on his horse while the witness could have counted fifteen or twenty, then turn, rejoin the others and ride out east. And there is nothing in this account of this interview which materially conflicts with that given by J. D. Snodgrass. James Skelton, as has been said, lived at Judge Tally's. He slept there the night before the homicide and went thence, as we have seen, in pursuit of Ross. Judge swears he did not see him that morning except when he joined Robert and John at the corner about the time of the conversation between Robert and himself. It is shown by the evidence of Mr. Proctor, who slept with James the night before, that the latter arose and left the room quite early that morning. It was also shown that he was down town at an early hour. Judge Tally must have arisen after James went down town. The testimony and all the circumstances concur in showing that when James came back to the house, mounted and armed, and went in to get "a piece of meat and bread," as he expressed it, leaving his gun and horse at or near the front gate, Judge Tally was either in his garden back of his house, or more probably in his barn yard, which was back of an adjoining house. From neither of these positions could he see the horse or gun at the front, or James in the house. Judge Tally also testifies that he did not see [48] Walter Skelton at all that morning, or know of his son's going for a horse for him until the Skelton party had left Scottsboro. This is somewhat strange in view of the facts that Walter Skelton came to his house that morning, talked with Mrs. Tally, and induced her to procure a horse for him to ride in pursuit of Ross, and that young Tally was sent from the house to the livery stable for the horse. But it reasonably appears from the evidence that all this happened before Judge Tally got up. It is shown that Mrs. Tally's cook was sick and that she had to be up early to prepare breakfast, and did get up some time before Judge Tally. And the other testimony and the surrounding circumstances concur in showing that all that occurred at Judge Tally's house with reference to this horse occurred in the interval between the times Judge and Mrs. Tally arose.
The respondent further testifies that he did not see his wife after she arose that morning until he returned to the house from the barn lot where he had the interview with Robert Skelton; that he returned thence to his house, saw his wife and she then told him of the flight of Ross, which had been communicated to her by Walter Skelton, and of the pursuit of the Skeltons; and that he did not know and had received no information before this that Ross had gone, and that the Skeltons were pursuing him. At this juncture, it is to be borne in mind, all the Skeltons had left Scottsboro. And this, with proof of the respondent's good character, is the case of the defense so far as the first count of the information is concerned. On the evidence for the State which we here set out, taken in connection with this evidence for the respondent, can it be said that Judge Tally, when he was in the presence of Robert, and in sight of John and James Skelton that morning, knew of their intention to take the life of Ross, and that they were setting out to presently execute that intention as is charged in the several specifications under the first count? We think not. There is no affirmative evidence, such as declarations and the like on their part might have afforded, that they themselves ever entertained the purpose to take life prior to that morning except in the event Ross failed and refused to leave Scottsboro. And they might well have entertained such purpose without Tally's knowl [49] edge of it. It might well have been that, intending to kill Ross, the Skeltons would have concealed their design from Tally on account of his official position and notwithstanding his family relations with them. Again, there is no positive evidence, if they so intended prior to the day of the homicide, that Tally was ever informed or knew of their intention. True it may be said that he knew Ross had to leave there, and failing this the Skeltons would, or intended to, kill him; but only knowing this, the fact that Ross had gone, which fact according to the State's theory he must have known when the Skeltons left Scottsboro, it would have been but natural for him to have concluded, that as the condition upon which Ross was to live had been met, the conditional purpose to take his life was abandoned. True it is also that he had in some degree the same motive to destroy Ross that moved the Skeltons to his destruction in the sense that he, too, by reason of his marital relations, was a victim of the wrong that Ross had wrought upon them all; but this motive might well have impelled the Skeltons to the extreme to which they went in purpose and deed, while he was restrained by that respect for which his profession engenders, and by the environment of his high judicial position, from yielding in intent or action to the deadly impulse the wrong was conducive to. There is, we repeat, no affirmative evidence that Judge Tally knew, until after the Skeltons had gone, that they intended to take the life of Ross. There were circumstances proved which unexplained might have justified—indeed would have justified—the inference that he did. But explanations have been made which are either affirmatively satisfactory, or cast such reasonable doubt on the conclusions to which without the explanations the circumstances would have led us, that we do not feel justified in accepting the conclusions. For instance, the hiring of the horse which Walter rode: As presented by the State in all its baldness that fact was most incriminating. But when taken in connection with the facts that the horse was to serve an occasion which was born of the flight of Ross while Tally slept, and was subserved by the procurement of the horse before he arose, that it was charged to him because ordered by his wife and paid for by him, after the circumstances [50] of the hiring and use of the animal had been used in the public mind to connect him with the tragedy, because by the course of previous dealing between him and the livery-man in respect of orders by his wife he was under both a moral and a legal obligation to pay, its probative farce against him is utterly destroyed. The presence that morning at his house of Walter Skelton is a circumstance of suspicion and would be of incrimination, but for the fact, which is shown by other evidence than Tally's, and against which nothing has been offered affording a contrary inference even that Walter had come and gone before Tally got out of bed in an upstairs room. Again, the naked fact that James came there after Tally had arisen, armed and mounted has of course a natural tendency to show that Tally knew the purpose of such unwonted and warlike preparations on that day when to ride about the country with guns is such an unusual thing. But according to the testimony, not only of Tally and Robert Skelton, but also ofMr. Shelley, a witness for the defense, and of Mr. Snodgrass, a witness for the State, the respondent was at that time in his barn lot, or next it in the side street, from which point he could see neither Walter Skelton in the house nor his gun standing against the front gate, nor his horse hitched in the street in front at the house and gate. The presence of Tally with Robert Skelton in the street near the farmer's barn as the Skeltons were starting on their chase of Ross, standing alone and unqualified, might prove much against him. But the evidence of himself and Robert Skelton, taken with that of Mr. Shelley, a disinterested witness, satisfies us that that meeting was momentary and wholly casual. Skelton had passed Tally and was proceeding on his journey when Tally hailed him and had him came back. Clearly he had not come that way to see Tally. It is not pretended that they had met before on that morning, or had any communication after Ross's fight. Tally’s being there is reasonably accounted for without connecting his presence in any way with this Ross matter. Skelton's passing there was reasonable without any reference to Tally; it was his route to his destination. They were together about long enough for the words they give to have passed between them. They [51] were not together long enough, we should say, for such conversation as would naturally have passed had they been discussing the flight and pursuitofRoss, what the Skeltons intended todo, what Tally should do meantime at Scottsboro, and the like. The State's witness, Mr. Snodgrass, saw them there, and his evidence does not materially conflict with that of Shelley as tothe length of time they were together. We have already stated the conversation they had as testified toby Tally and Skelton. Though they are tothe last degree interested witnesses, there is nothing before us which would justify our reaching the conclusion with the necessary conviction ofmind that, aught was said other than the words they have deposed to. Moreover, it does not appear, but the contrary does appear upon all the evidence we have, much of which is not tainted by interest, that Tally had any information of Ross's flight when he was talking with Robert Skelton. It is clearly shown that James Skelton did not know it, indeed it had not transpired, when he left the house. It came first to the knowledge of Walter, and it may well be supposed that he and James and all ofthem made their preparations with all possible expedition, losing no time tohunt up and inform Tally. Walter and James were at Tally's house after they knew of it, but there is no evidence that Tally saw either of them. Tally's own and Walter's evidence that they did not see each other and proof of circumstances demonstrate that he did not see James until he was riding away. It is said that Tally must be held to have known the intention of the Skeltons to pursue and kill Ross from seeing Robert and John mounted and armed. How could he know this, how are we tobe justified in holding that he knew this when it is clearly shown that he did not know Ross had gone at all? And had he known that, how could he justify a conclusion that they were going to pursue and slay him as he left Scottsboro, when, according toall the evidence we have as to Tally's knowledge oftheir intentions, they all wanted him to leaveScottsboro and intended he should goin peace. Again, shall the inference of a murderous intent an Tally's part, or of his knowledge of such intent on the part of the Skeltons, be drawn from the mere fact that he was seen on two occasions talking with his brother-in-law in the latter's [52] office for half an hour? Obviously not. Shall the fact that one of these occasions was the day before the killing of Ross lead us to say that Tally knew the Skeltons intended to kill? Of course not. And even less, if possible, would such conclusions be justified when we consider that the only evidence of what passed in these conversations was to the effect, whatever else it may have imported, that Ross should not be killed if he did what he was manifestly trying to do when he was killed; leave Scottsboro.
Some other minor circumstances, really of no probative force—such as that Tally was seen at his front gate that morning, once before and once after the Skeltons had gone, that he saw Robert Skelton riding north on a street some distance from him , which fact he brought out himself, and the like—were put in evidence. These we will not stop to discuss. Nor do we deem it necessary to discuss in this connection—with reference to Tally's knowledge of the Skeltons' intent when he had the brief interview with Robert that morning—Judge Tally's conduct after the Skeltons had gone. That conduct is referable to the knowledge he then had, which had been first imparted to him by his wife, and which soon became the common knowledge of the town, that the Skeltons had gone in pursuit of Ross to kill him; and in our opinion what he did and said after that time will not serve to establish the scienter laid under the first count of the information. We conclude this part of the case by saying that we do not find that Judge Tally had any knowledge of the intention of the Skeltons to kill Ross before or at the time of their departure in pursuit of him, that, therefore, neither of the three specifications under the first count is proved, and we find him not guilty of the charge of willful neglect of official duty presented by that count.
The second count of the information charges that "John B. Tally, Judge of the Ninth Judicial Circuit of the State of Alabama, unmindful of the duties of his said office, was, before the filing of said report of said grand jury, and while in such office, guilty of an offense involving moral turpitude, to-wit, the offense of murder.” There are three specifications under this charge. The averments, among others, of the first specification, following averments of Ross's flight, the Skelton's pursuit and the killing of Ross by them at Stevenson with [53] malice, &c., are, "that said Tally was informed of the intention and purpose of the said Skeltons to unlawfully take the life of the said Ross, and said Tally held communications with said Skeltons touching their said purpose, and said Tally knew of the pursuit of said Ross by the said Skeltons as aforesaid, and had such knowledge at the time said Skeltons were making ready to set out in pursuit of said Ross, and at the time they did set out in such pursuit.” As we have already indicated we are not convinced of the truth of these averments, and as the other matters laid in this specification may be considered as well under the second and third specifications, we will direct our attention solely to them. The second specification charges that the Skeltons "unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun," and "that the said John B. Tally, before the said felony and murder was committed, in manner and form aforesaid, on the day aforesaid and in the county and State aforesaid, did aid or abet the said" Skeltons, naming them, "in the commission of the said felony and murder." And the third specification charges "that on Sunday, the 4th day of February, 1894, in the county of Jackson, State of Alabama, the said John B. Tally unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun." These charges of aiding or abetting murder and of murder direct, which amount to the same thing under our statute,(Code, § 3704), are, upon considerations, to which we have already adverted, to be sustained, if at all, by evidence of the respondent's connection with the homicide after the Skeltons had left Scottsboro in pursuit of Ross, since we do not find any incriminating connection up to that point of time. Being without conviction that Tally knew of the Skeltons' intention to take Ross's life until after they had departed on their errand of death, and there being no evidence or pretense that between this time and the homicide any communication passed between them and Tally, we reach and declare the conclusion that the respondent did not command direct counsel, instigate 01" encourage the Skeltons to take the life of Ross, and that in whatever and all that was done by them and him, respectively, there was no understanding, preconcert or conspiracy between them and him.
This narrows the issues to three inquiries—two of [54] fact, and one of law: First—a question of fact—Did JudgeTally on Sunday, February 4, 1894, knowing the intention of the Skeltons to take the life of Ross, and after they had gone in pursuit of him, do any act intended to further their design and aid them in the taking of his life? If he did, then, second—a question of law—Is it essential to his guilt that his act should have contributed to the effectuation of their design—to the death of Ross? And if so, third—another inquiry of fact—Did his act contribute to the death of Ross?
There can be no reasonable doubt that Judge Tally knew soon after the Skeltons had departed that they had gone in pursuit of Ross, and that they intended to take his life. Within a few minutes he was informed by his wife that Ross had fled and that the four Skeltons were pursuing him. He had seen three of them mounted and heavily armed. He knew the fourth, even keener on the trail than these, had gone on before. He knew their grievance. The fact that they intended to wreak vengeance in the way they did upon overtaking Ross, was known to all men in Scottsboro, as soon as the flight and pursuit became known. It was in the minds and on the tongues of everybody there. Nothing else was thought or talked of. When Dr. Rorex, voicing the universal apprehension, suggested to him that aid be sent up the road to the dead and wounded, Judge Tally, taking in the full force of the implication that there would be a fight to the death with the Skeltons as assailants, and not dissenting therefrom at all, said with the ken of prophesy, as a reason why he would not be a party to the execution of this humane suggestion, that his folks—the Skeltons—would take care of themselves. How well they took care of themselves—with what exceeding care they conserved their own safety—is shown by the event and the manner in which it was produced. To the other suggestion of Dr. Rorex, resulting from the universal knowledge that unless something was done an awful tragedy would be enacted, that "we telegraph to Stevenson and have them all arrested," and thus prevent the catastrophe, if perchance Ross should reach that point alive, Judge Tally made no direct response; but in the same connection he said:"I am waiting and watching here to see if anybody sends a telegram." What he meant by this is most clearly demonstrated by his subse [55] quent shadowing and following up Ed. Ross, and his conversation with Judge Bridges about putting the operator out of the office before he should send Ed. Ross’s message of warning to his kinsman, Robert C. Ross. This was the situation: Ross was in what he supposed to be secret flight from the Skeltons. He was unaware that his early departure had been seen by one of them. He did not know they were all in full pursuit to take his life. Under these circumstances, the pursuers had every advantage of the pursued. They could come upon him unawares. Being on horse back while he was in a vehicle, coming up to him they could well get beyond and waylay him. This they actually did. Having this tremendous advantage, accentuated by the fact that they were in no danger from Ross even if he saw them unless he was forced to defend himself—that his effort and intent were to get away and not to kill—Judge Tally might well feel satisfied with the posture of affairs, he might well feel assured that his folks would take care of themselves, as they did. All he wanted was that this situation, which portended the death of Ross and the safety of his folks, should not be changed. He would not agree that it should be changed so as to save Ross's life even though at the same time the safety of the Skeltons should be assured, as would have been the result had the authorities at Stevenson been fully advised at the time Dr. Rorex suggested the sending of a telegram there to arrest all parties. He was waiting and watching there to see that the situation was not changed by advice to Ross which would or might enable him to escape death at the hands of his folks. He waited long and watched faithfully, and his patience and vigil were rewarded. He saw Ed. Ross going toward the telegraph office. He at once concluded Ross was going there to warn his kinsman and give him a chance for his life. He followed. His purpose was to stop the message, not to let the warning even start on its journey. This he proposed to do by overawing the operator, a mere youth, or by brute force. Judge Bridges dissuaded him from this course, but he adopted another to destroy this one precarious chance of life which was being held out to Robert C. Ross. It would not do, Bridges advised him, to stop the warning by threatening or overpowering the opera [56] tor. The young man was a new comer and a stranger there, and a resort to moral suasion with him was therefore unpromising and hazardous. Not so with the operator at the other end of the line. He was Judge Tally’s friend of long standing. He, through whose hands Ed. Ross's message of warning was intended to pass, could be approached. And to him Tally addressed himself. Saying to Judge Bridges that he, the Scottsboro operator had a message which he, Tally, did not want sent, and which, under Judge Bridges' advice, Tally had concluded not to stop by threat or force; he adopted another means of stopping it short of the person to whom it was addressed. He telegraphed his friend, the operator at Stevenson, not to let Ross get away. His language was at first written: "Do not let party warned get away." This he handed to the operator to be sent to Stevenson, saying: "This message has something to do with the one you have," referring to Ed. Ross's message. What then passed through his mind we are left to conjecture; but upon further thought he added to the message these words: "Say nothing." What was the full import of this completed message, looking at its terms and the circumstances under which it was sent? One thing is most clear, from all the circumstances and upon the words themselves and in the light of those circumstances. The message beyond all question would never have been sent but for the sending of Ed. Ross's message. It was manifestly and confessedly the offspring of a purpose to thwart the efforts of Ed. Ross to warn his kinsman of the true situation. One element of this situation, which gave Judge Tally great satisfaction with it, was Robert Ross's utter ignorance of the danger he was in. He scouted all suggestions to interfere at all so long as this element of gravest peril to Ross and of assured safety to the Skeltons existed. It was to the end that this element of peril to the one and safety to the other party should not be eliminated that, he had waited and watched all morning to see if anybody attempted to eliminate it by advising the hunted of the oncoming, in deadly purpose, of the hunters, and to prevent by threats or force or in any other possible way the sending of a telegram to advise Ross of this important factor in the posture of affairs with which he had to deal, on the hazard of his life. At the last moment the idea [57] of resorting to threats and force was abandoned as unwise. There was no other way to stop the telegram in the Scottsboro office. It was therefore to go, and the only other way to prevent its reaching Ross was to have it stopped at the Stevenson office. Tally, being dissuaded from the former course, adopted the latter. His purpose was the same throughout, but there was a change in the means he had contemplated for its effectuation.
Whitner, the newcomer and stranger, could not be prevented or dissuaded from putting the message on the wire, but Huddleston, the lifelong friend, who was to take it off the wire, and whose duty it was to deliver it to Ross, might be commanded or persuaded to omit its delivery when he had taken it from the wire to "say nothing." And in that event Ross would remain in ignorance of his danger, the situation, which gave Judge Tally so much satisfaction as that he felt assured his folks could take care of themselves , and which he would not consent to interfere with as suggested by Rorex in a way to conserve the safety of both the Ross and Skelton parties, would remain unchanged, and Ross would go to his death, as he did, without a single chance to raise his hand in defense of his life. The telegram to Ross was: "Four men on horseback with guns following. Look out." Tally's telegram to Huddleston was: "Do not let party warned get away. Say nothing." "Get away" from what or from whom? From whom indeed and in all common sense but from the four men on horseback following with guns to take his life. They alone were in pursuit. They only were following the party warned. From them alone was Ross fleeing. From them only, by what he supposed to be secret flight across the country rather than attempt to board a train guarded by them against him, was he trying to get away. The law had no claim upon him; he had committed no offense of which it took cognizance, and no charge of crime had ever been made against him. Nobody on earth except the four men, the Skeltons, sought to prevent his getting away; and from these Judge Tally, seeing that a chance of escape was about to be afforded him, called upon his friend, Huddleston, to interpose, to destroy that chance and to prevent his getting away. Having formulated his command or request to Huddleston to prevent his getting away and [58] handed it to Whitner for transmission to Huddleston, the thought must have passed through his mind: “How is my command or request to be complied with; how is Huddleston to prevent Ross's getting away." He knew there was no ground to arrest Ross. He knew that Huddleston, although mayor of Stevenson, was utterly without authority or right to stay him for one moment of time. How then was he to proceed? One obvious means to this end presented itself to the respondent's comprehension as he pondered how the thing he wanted to be done could be accomplished. That was that Ross should not be advised of the contents of the dispatch of warning. This would maintain the status quo with which Judge Tally had evinced such complaisance and satisfaction, in which his “folks could take care of themselves," and out of which must result the death of Ross. And to suggest this effective means to his friend he makes Whitner, who then has the original message in his possession add to it the words: “Say nothing." Say nothing about what? Clearly about the subject matter of the two dispatches, nothing about the pursuit of the four men on horseback with guns, nothing about the warning to Ross. Say nothing so that the situation may remain unchanged. Say nothing so that Ross shall continue to be, as he is now, without the chance or hope of escape. In other words and in short, the substance and effect of what Tally said to Huddleston, taking the two dispatches and all the circumstances into the account, was simply this, no more or less: “Ross has fled in the direction of Stevenson. The four Skeltons are following him on horseback with guns to take his life. Ross does not know of the pursuit. An effort is being made to get the word to Ross through you that he is thus pursued 0in order that he may get away from them. If you do not deliver this word to him he cannot escape them. Do not deliver that message, say nothing about it, and thereby prevent his getting away from them." A most careful analysis of the voluminous testimony in this case convinces us beyond a reasonable doubt that this was what Tally intended to convey to Huddleston, and that his message means this and only this to all reasonable comprehension. Other meanings were suggested at the hearing in argument, and in testimony as to uncommuni [59] cated intention which has been excluded, but the suggestions are either entirely unreasonable in themselves or do not at all comport with the attendant circumstances. For instance, it is said that the language of Tally's telegram shows he contemplated that the message to Ross would be delivered. He said: "Do not let the party warned get away," implying, it is argued, that the party referred to had been or would be warned by the delivery of Ed. Ross's message. This view is entirely too literal and technical. The form of expression employed was incident to the brevity usual in telegraphic communication, and was manifestly intended merely as an identification of the version who was not to be allowed to get away. Tally did not care to put the name of this person in this message. He knew a message of warning had been sent to Ross. Ross was the man he did not want to escape; and he referred to him as the party warned in the sense that he was the party to whom the other message had been started. He meant and his message meant that Huddleston should not let the party warned, or intended to be warned, the party referred to in and by Ed. Ross's message, get away, and not that Huddleston was to look after party who had actually received the message of warning. Moreover, he spoke over the wires to Huddleston at the same time Ed. Ross's message was sent, and before there was any possible chance for the warning to have been given to R. C. Ross. He knew this. And it was at that juncture, when nobody had been warned in fact, that he referred to Ross as the party warned, when he could not have been the party warned in other sense than as being the party intended to be warned, and for whom a message of warning had been transmitted from Scottsboro to Stevenson but not delivered to Ross. And it would seem that he especially intended his command or request should be laid upon Huddleston just at this point, for he was careful to tell Whitner, the operator at Scottsboro, that his message was about the same matter as that of Ed. Ross—the warning of R. C. Ross—thus impressing upon him the propriety not to say necessity, of both being sent at the same time. They both were sent and received at the same time, i.e. in immediate succession; and Tally called upon his friend, Huddleston, not to let the person referred to in the other get away, and, as we have seen, [60] indicated to him that the way to prevent his escape was to "say nothing” about the other, and indeed either message. Again, it is suggested that Tally intended by his message to have Huddleston, who was mayor of Stevenson, arrest Ross. There are many elements of improbability, to say the least, about this. In the first place, the word "arrest" is a most common one and in most universal use. We cannot conceive of any man, and especially not of a lawyer and a judge, employing any other word—and especially when a resort is had to telegraphic communications—to express the idea which this suggestion imputes to Tally—a lawyer and a Judge. Then, as we have already seen, there were no grounds for Ross's arrest. Not only did Tally know this, but Huddleston also. The cause of Ross's flight and the Skeltons' pursuit was well known it seems, both in Scottsboro and Stevenson, and to even the most unlearned comprehension the circumstances involve Ross in no liability to arrest. It is said that Tally wanted Ross arrested because he feared that after getting the warning he would lie in wait and kill the Skeltons as they came into Stevenson. This idea is most farfetched in view of Ross's attitude throughout of being purely on the defensive, and not standing even upon that, but flying from the Skeltons, his whole purpose being to escape from them, and not to kill them. The message itself utterly excludes the possibility of any such interpretation and the existence of any such fear 01' intention in the mind of Judge Tally. The fear deposed to is, that Ross would entrench himself at Stevenson and kill the Skeltons as they came. The apprehension clearly evinced by the message was that if he got the warning he would get away, and not that he would tarry and fight. If he got away the Skeltons were in no danger. But Huddleston was besought not to prevent his waiting for and killing the Skeltons, nor to do anything in that line at all, but to prevent his getting away from the Skeltons as everybody knew he was endeavoring to do. Again, it surpasses understanding how Huddleston was to arrest Ross if he obeyed the final injunction of Judge Tally to "say nothing." And that the idea of having Ross arrested was not in Tally's mind further appears from the fact that he would not agree to that being done when it was suggested by Dr. Rorex earlier in the day. Specifically in [61] respect of the words "say nothing" in Tally's message, explanatory suggestions were made by him on the stand. As a reason for them he first said he hoped by their use to keep the scandal secret. As there was nothing in either of the despatches referring to the scandal, the force of this reasoning is not readily felt. But more than this, everybody in Scotsboro and Stevenson knew already a great deal more about the scandal than could possibly have gotten to them through Huddleston saying all he could about those dispatches. Everybody knew it, and Tally must have been fully aware of this general knowledge. Seeming to appreciate the impotency of this suggestion, which however was at first advanced with every appearance of being intended to cover and account for the whole matter, Judge Tally offered another. It was that he meant by using the words" say nothing" to keep Huddleston from disclosing his connection with the message. Why he should have laid such an injunction upon his friend Huddleston, and not upon Judge Bridges to whom he showed the message without these words, nor upon an entire stranger, young Whitner, at Scottsboro, is much more than we can understand. It also surpasses comprehension that he could have expected Huddleston to arrest Ross without saying to him or anybody else a word about the telegram on or because of which the arrest was made. There is nothing in all this. That Tally's message will bear the construction we have put on it and no other, we have no doubt at all, on the considerations we have advanced; and our view of its meaning and intent is strengthened by the respondent's self-consciousness of its bad purpose and intent which is shown by the facts, which the evidence leaves us no room to doubt, that he surreptitiously abstracted the original message from the files in the telegraph office, and swore on the preliminary examination of the Skeltons that he sent a telegram to Stevenson that morning "but not about this matter. It was to a friend about another matter; nothing concerning this case;"and his further testimony on that trial going to show that he did not know Ed. Ross, did not follow him to the telegraph office, and did not know whether he was in the office while he, Tally, was there or not.
We therefore, find and hold that John B. Tally, with full knowledge that the Skeltons were in pursuit of Ross [62] with the intent to take his life, committed acts, namely, kept watch at Scottsboro to prevent warning of danger being sent to Ross, and, with like purpose, sent the message to Huddleston, which were calculated to aid, and were committed by him with the intent to aid, the said Skeltons to take the life of Ross under circumstances which rendered them guilty of murder.
And we are next to consider and determine the second inquiry stated above, namely: Whether it is essential to the guilt of Judge Tally as charged in the second count of the information that the said acts, thus adapted, intended and committed by him; should in fact have aided the said Skeltons to take the life of the said Ross, should have in fact contributed to his death at their hands.
As the life of Ross was not taken by the hands of Tally, the criminal consequences of the homicide could only have been visited upon him at the common law, if at all, as a principal in the second degree or as an accessory before the fact; he could not have been charged, as he is in this information, directly with the crime of murder as a principal in the first degree. Our statute has abolished the common law distinctions between accessories before the fact and principals, and between principals in the first and second degrees in cases of felony, and provided that" all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."—Code, § 3704. And though the respondent here is proceeded against by virtue of this statute as a principal in the first degree, the evidence, it being confessed that he did not personally, or in such other way as to make him a principal in the first degree at common law, take the life of Ross, must present him in the light either of an accessory before the fact or as a principal in the second degree, as those distinctions obtained before the enactment of the statute to which we have adverted, or he cannot be convicted. We have already stated our conclusion—and the considerations which led us to it—that Judge Tally did not command, direct, incite, counsel , or encourage the Skeltons to the [63] murder of Ross. We have failed to find, and have so stated, that he knew of their felonious purpose before their departure from Scottsboro in pursuit of Ross. Up to that time there was no instigation or incitement by him to the commission of the crime by them, and after that he did not see or communicate with any of them until after the death of Ross, and hence pending the pursuit he could not have encouraged or instigated them to kill Ross. Judge Tally was, therefore, not, on the view we take of the evidence, an accessory before the fact to the killing of Ross. To be guilty of murder, therefore, not being a common law principal and not being an accessory before the fact-to be concerned in the commission of the offense within the meaning of our statute—he must be found to have aided or abetted the Skeltons in the commission of the offense in such sort as to constitute him at common law a principal in the second degree. A principal in this degree is one who is present at the commission of a felony by the hand of the principal in the first degree, and who being thus present aids or abets, or aids and abets the latter therein. The presence which this definition requires need not be actual, physical juxtaposition in respect of the personal perpetrator of the crime. It is enough, so far as presence is concerned, for the principal in the second degree to be in a position to aid the commission of the crime by others. It is enough if he stands guard while the act is being perpetrated by others, to prevent interference with them or to warn them of the approach of danger; and it is immaterial how distant from the scene of the crime his vigil is maintained provided it gives some promise of protection to those engaged in its active commission. At whatever distance he may be, he is present in legal contemplation if he is at the time performing any act in furtherance of the crime, 01' is in a position to give information to the principal which would be helpful to the end in view, or to prevent others from doing any act, by way of warning the intended victim or otherwise, which would be but an obstacle in the way of the consummation of the crime, or render its accomplishment more difficult. This is well illustrated by the case of State of Nevada v. Hamilton and Laurie, 13 Nev. 386, in which a plan was arranged between Laurie and others to rob the treasure of Wells, Fargo & Co., on the road between [64] Eureka and some point in Nye county. Laurie was to ascertain when the treasure left Eureka, and signal his confederates by building a fire on the top of a mountain in Eureka county, which could be seen by them in Nye county, thirty or forty miles distant. This signal was given by him, and his confederates, advised by it, met the stage, attacked and attempted to rob it, and in the attempt killed one of the guards. Laurie was indicted with the rest for murder, and put on his trial in Nye county, and made the point that inasmuch as a statute of Nevada required that an accessory before or after the fact should be tried in the county where his offense was committed, he could not be held under the pending indictment or tried in the county of Nye, where the robbery was attempted, and the murder committed. But the Supreme Court of that State held that, if he was an accessory before the fact, he was also in legal contemplation present and aiding and abetting at the fact, and was, therefore, a principal in the second degree, and indictable, triable and punishable in N ye county as principal in the first degree, under a statute like section 3704 of our Code. He was constructively present, though thirty or forty miles away, and he was guilty as a principal in the second degree in that from and across this distance he aided and abetted his confederates by the beacon lights which he set upon a hill. It was as if he had been endowed with a voice to compass the intervening space and to advise his accomplices of the approach of the treasure, or as if his words had been transmitted over a telephone or a telegraph line to the ears of his distant confederates. This treasure stage was proceeding on its way without notice to those in charge of it of the impending onslaught upon it. If it had been apprehended by Laurie and his confederates that the people of Eureka—those interested in the treasure, and in the lives of the guards who went with it—would, after its departure, become aware of the situation and dispatch a courier to overtake the stage and warn its occupants, and Laurie had remained there to give warning by signal lights or telegram of the departure of this courier so that he might be intercepted and his message stopped and the stage set upon unawares, and all this had been done, it cannot for a moment be doubted that on these facts also Laurie would have been present at the scene [65] of the attempted robbery in legal sense, and been guilty thereof as a principal in the second degree, though he was all the while much further away in point of physical fact than the distance between Scottsboro and Stevenson. And this upon the principle, as stated by the Nevada court, that "Were several persons confederate together for the purpose of committing a crime which is to be accomplished in pursuance of a common plan, all who do any act which contributes to the accomplishment of their design are principals, whether actually present at its commission or not. They are deemed to be constructively present, though in fact they may be absent."—1 Bish. Cr. Law, § 650; 1 Chitty Cr. Law, p. 256; 1 Whar. Cr. Law, §§ 206 et seq.; Roscoe's Cr. Evidence, pp. 178-9; Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 583.
So far, therefore, as presence goes Judge Tally, on guard at Scottsboro to prevent warnings being sent to Ross or intercepting or attempting to intercept messages of warning which had started on their flight, was in legal contemplation present at Stevenson, the scene of the homicide, standing over Huddleston to stay him in the performance of his duty of delivering warnings to Ross. He was constructively there, and hence, for all practical legal purposes, actually there. Being thus present, did he aid or abet the killing of Ross? What is meant by these terms, and what has one to do to bring himself within them? It is said in Raiford's Case, supra, that "the words aid and abet are pretty much the synonyms of each other;" and this has doubtless come to be true in the law though originally a different meaning attached to each. The legal definition of “aid” is not different from its meaning in common parlance. It means to assist, to supplement the efforts of another. Rap. & L. Law Dict., p. 43. "Abet" is a French word compounded of the two words a and beter, to bait or excite an animal; and Rapalje and Lawrence thus define it: "To abet is to incite or encourage a person to commit crime; an abettor is a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal in the offense.”— Rap. & L. Law Dict., p. 4. By the amalgamation of the two words in meaning—by making synonyms of them—it may be said that to abet has come to mean to aid by [66] presence, actual or constructive, and incitement, and that to aid means not only actual assistance, the supplementing of another's efforts, but also presence for the purposes of such actual assistance as the circumstances may demand or admit of, and the incitement and encouragement which the fact of such presence for such purposes naturally imports and implies. So we have this definition of the two terms by the late Chief Justice Stone: "The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts, or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.”— Raiford v. State, 59 Ala. 106. This definition was sufficient for the case then in hand, and it is in the form not infrequently found in the books. But it is incomplete. Mere presence for the purpose of rendering aid obviously is not aid in the substantive sense of assistance by an act supplementary to the act of the principal. Nor is it aid in the original sense of abetting, nor abetting in any sense, unless presence with the purpose of giving aid, if necessary, was preconcerted or in accordance with the general plan conceived by the principal and the person charged as an aider or abettor, or, at the very least, unless the principal knew of the presence, with intent to aid, of such person. For manifestly in such case, there being no actual, substantive assistance and no encouragement by words, the only aid possible would be the incitement and encouragement of the fact that another was present for the purpose of assistance, and with the intent to assist if necessary. And in the nature of things, the fact of presence and purpose to aid could not incite or encourage or embolden the principal unless he knew of the existence of that fact. That kind of aid operates solely upon the mentality of the actual perpetrator; when rendered at all it is by way of assurance to his mind in the undertaking he is upon, and it nerves him to the deed and helps him execute [67] it through a consciousness—a purely mental condition that another is standing by in a position to help him if help becomes necessary; who will come to his aid if aid is needed. And that there could be this consciousness without any knowledge of the fact of such other's presence and purpose can not be conceived. That one may be encouraged or incited to an act by a consideration of which he is wholly oblivious and which has never addressed itself to his mind, is far beyond the limit of finite comprehension. The definition we have quoted is, as an abstract proposition, clearly at fault. As applied in the concrete to cases of confederacy as it is, we undertake to say, whenever it is stated in this form, it is free from objection. But in the absence of confederacy, or at least of knowledge on the part of the actual perpetrator of a crime, one can not be a principal in the second degree who is present intending to aid and does not aid by word or deed. The definition must go further. It should appear by it that to be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or atleast to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able to readily to comp, to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law, he was aiding and abetting." (The italization is ours.)—1 Whart. Cr. Law, § 210, And the same idea is thus expressed by Mr. Stephens in his summary of Criminal Law: "The aiding and abetting must involve some participation; mere presence without participation, will not suffice if no act whatever is done in concert, and no confidence intentionally imported by such presence to the perpetrators.” See Connaughty v. State, 1 Wis. 143, 144. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act.”—1 Bish. Cr. Law, 648. And Mr. Wharton further says: "Something [68] must be shown inthe conduct of the bystander, which indicates [to the perpetrator, manifestly] a design to encourage, incite, or, in some manner afford aid or consent to the particular act; though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement. * * * The confederacy must be real; * * * mere consent to a crime when no aid is given, and no encouragement rendered does not amount to participation."—l Whart. Cr. Law, §§ 211 a, 211 c, 211 d. And to like effect are the following authorities: The People v. Woodward, 45 Cal. 293 ; White v. The People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. A pp. 301; True v. Commonwealth, 14 So. W. Rep. 684; 1 Am. & Eng. Encyc. of Law, p. 62; Whart. Cr. Ev., 440. Our own cases fully support these views. Thus in Wicks v. State, 44 Ala. 398, with reference to section 3704 of the Code it is said: "The testimony must show an actual participation
In the commission of the offense, else the party charged can not be convicted under this statute." And in Cabbell v. State, 46 Ala. 195, a mob had overpowered an officer and taken his prisoner into a house, where they were assaulting him with intent to murder. The defendant, coming upon the scene at this juncture, and being informed that the mob was trying to kill the prisoner on account of the offense for which he had been arrested, said: "That is right, kill him ; God damn him. The question was whether on this evidence the defendant was an aider and abettor in the assault made by the mob; and upon this the court said: "It is not pretended that the defendant committed the assault—it was the act of the mob; nor was it seriously contended that he was in fact a member of that unlawful assembly. Consequently the words uttered by him can not be held to have encouraged or aided the persons by whom the assault was committed, unless addressed to or at least heard by them or some of them.” Here Cabbell had the guilty intent; he wanted the prisoner killed; and he did an act calculated to contribute to the execution of that intent; he uttered words of encouragement and incitement. But he was adjudged to be not guilty, because what he did, though with criminal [69] intent and calculated to accomplish or aid in the accomplishment of a criminal result, did not in point of fact contribute to that result. And this proposition is directly supported by Raiford v. State, supra, when the elliptical definition of aid and abet is rounded out, as we have shown it must be, and also in a general way by Frank v. State, 27 Ala. 37; Tidwell v. State, 70 Ala. 33; Jordan v. State, 79 Ala. 9, 13, and Griffith v. State, 90 Ala. 583.
We are therefore clear to the conclusion that before Judge Tally can be found guilty of aiding and abetting the Skeltons to kill Ross , it must appear that his vigil at Scottsboro to prevent Ross from being warned of his danger was by preconcert with them, or at least known to them, whereby they would naturally be incited, encouraged and emboldened—"given confidence"—to the deed, or that he aided them to kill Ross, contributed to Ross's death in point of physical fact by means of the telegram he sent to Huddleston.
The assistance given, however, need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely tenders it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had he who furnishes such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. As where one counsels murder he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counsel, and as where one being: present by concert to aid if necessary is guilty as a principal in the second degree, though had he been absent murder would have been committed, so where he who facilitates murder, even by so much as destroying a single chance of life the assailed might otherwise have had, he thereby supplements the efforts of the perpetrator, and he is guilty as principal in the second degree at common law, and is principal in the first degree under our statute, notwithstanding it may [70] be found that in all human probability the chance would not have been availed of, and death would have resulted anyway.
We have already said enough to indicate the grounds of the conclusion which we now announce, that Tally's standing guard at the telegraph office in Scottsboro to prevent Ross's being warned of the pursuit of the Skeltons was not by preconcert with them, and was not known to them. It is even clear, and more certain that they knew neither of the occasion nor the fact of the sending of the message by him to Huddleston. And hence they were not and could not have been aided in the execution of their purpose to kill by the keeping of this vigil, or by the mere fact of the forwarding of the message to Stevenson, since these facts in and of themselves could not have given them any actual, substantial help as distinguished from incitement and encouragement, and they could not have aided them by way of incitement and encouragement, because they were ignorant of them. And so we are come to a consideration of the effect, if any, produced upon the situation at Stevenson by the message of Judge Tally to Huddleston. Its effect upon the situation could only have been through Huddleston, and upon his action in respect of the delivery to Ross of the message of warning sent by Ed. Ross. This latter message reached Huddleston for Ross, we suppose, about five minutes—certainly not more than ten minutes—before Ross arrived at Stevenson. Immediately upon the heels of it, substantially at the same time, Tally's message to Huddleston was received by the latter. Ed. Ross's message imported extreme urgency in its delivery, and Tally's to Huddleston, though by no means so intended, emphasized the necessity and importance, from the standpoint of duty, for the earliest possible delivery of Ed. Ross's message to Robert C. Ross; and it was the manifest duty of Huddleston to deliver it at the earliest practicable moment of time.—Law of Telegraphy, Scott &; Jernigan, § 188. Huddleston appears to have appreciated the urgency of the case, and at first to have intended doing his duty. Upon receiving the two messages, he went at once without waiting to copy them to the Stevenson Hotel, which is located very near the telegraph office, in quest of Ross, upon the idea that he might have already arrived. We are to presume a purpose to do what duty [71] enjoins until the contrary appears; and we, therefore, should assume that Huddleston intended to deliver the message to Ross, or to inform him of its contents had he been in the hotel. Not finding him there J for he had not yet reached Stevenson, Huddleston returned to the door of the depot up stairs in which was the telegraph office. By this time the command which Judge Tally had laid upon him had overmastered his sense of duty and diverted him from his purpose to deliver Ed. Ross's message to Robert. Standing there at the door he saw a hack approaching from the direction of Scottsboro. He said then that he supposed Ross was in that hack. Wedo not think it was incumbent upon him, inasmuch as the hack was being driven directly to the depot, to go down the road to meet it, though the situation was then more urgent than was indicated by the telegrams in that the Skeltons were at that time skulking on the flanks of and immediately behind the hack; but there is no evidence that Huddleston knew this. But we do not doubt that it was Huddleston's duty to go out to the road along which the hack was being driven, at a point opposite his own position at the depot, and near to it, and there and then have delivered the message or made known its contents to Ross. The only explanation he offers for not then delivering the message or making known its contents to Ross was—not that he could not have done it, that was entirely practicable—but that he had not taken a copy of it; a consideration which did not prevent his going to the hotel for the purpose of delivery before he saw Ross approaching, and which, had his original purpose continued, we cannot believe would have swerved him from his plain duty at this juncture. Presuming that he would have done this because it was his duty to do it—a duty which he at first appreciated—and finding as a fact that he did not do it, the reason for his default is found in the injunction laid upon him by Judge Tally. He did not warn Ross because he did not want Ross to get away, and this because Judge Tally had asked him not to let Ross get away. So that as he stood there at the door he mapped out a course of action. He would not deliver the message immediately, if at all, but he would send off for the town marshal, and in the meantime he would call William Tally from over the way and confer with him as to what should be done; Ross to be [72] the while wholly unadvised of the contents of the message from his kinsman, and wholly ignorant of the pursuit of the Skeltons. So he sends a man in search of the marshal whose whereabouts, and of consequence the time necessary to find and bring whom to the station, were unknown; beckons to William Tally to come to him, then turns and goes up stairs into the telegraph office. He says he went up there to copy Ross's message for delivery to him. If this be true, this was only another factor, so we have seen, in the delay that Judge Tally's message had determined him upon, for while at first he was anxious to deliver the message or its contents uncopied to Ross, when he thought Ross might be at the hotel, and went there to find him for that purpose, when Ross was actually in sight of him and rapidly approaching him, he deemed it most important to copy the message before advising Ross. It was also into this up stairs office that he invited William Tally, and we cannot escape the conclusion that his purpose in going there before delivering the message was to have a consultation with William Tally as to what should be (lone before advising Ross, and also to give the marshal time to arrive, so that, should they conclude to adopt that course, they could have Ross arrested. And it cannot, we think, be doubted that he then had no purpose whatever of apprising Ross of the contents of the message, if ever, until he had had this conference with the brother of the man who had asked him not to deliver it at all. That this delay was to conserve such ulterior purpose as might be born of this conference, was wholly unwarranted and was caused by the telegram of Judge Tally to Huddleston, we believe beyond a reasonable doubt.
It remains to be determined whether the unwarranted delay in the delivery of the message to Ross, or in advising him of its contents, thus caused by Judge Tally with intent thereby to aid the Skeltons to kill Ross, did in fact aid them or contribute to the death of Ross by making it easier than it would otherwise have been for the Skeltons to kill him, by depriving him of some advantage he would have had had he been advised of its contents when his carriage stopped or immediately upon his alighting from it, or by leaving him without some chance of life which would have been his had Huddleston done his duty.
[73] The telegram, we have said, should have been delivered, or its contents made known, to Ross at the time the hack came opposite where Huddleston was and stopped. Huddleston and William Tally were equidistant from this point when the former called to the latter, at which time also Huddleston had seen the hack approaching this point. Tally, going to Huddleston, reached this middle point between them, unhastened as Huddleston should have been by the urgency of the message just as the carriage got there and stopped. It is, therefore clear that had Huddleston, instead of calling Tally and going into the depot, himself have gone out to the road along which the carriage was approaching, and which was not more than one hundred feet from him, he would have gotten there certainly by the time it stopped, and have acquainted Ross with the contents of the message, with the fact that four men were pursuing him with guns to take his life, before Ross alighted from the hack.
Being thus advised, and not knowing of the immediate proximity of the Skeltons, it may be that Ross would have alighted as he did, exposed himself to the Skeltons' fire as he did and been killed as he was. But on the other hand, the Skeltons were at that time dismounted, and two of them at least, a long way from their horses, and none of them were in his front up the road, and he had a chance of escape by continued flight in the vehicle. Again, he might then and there have put himself under the protection of Huddleston as an officer of the law and had the bystanders, those in the immediate neighborhood of whom there were several, summoned to help protect him. This might have saved his life; it was a chance that he had. But, if it be conceded that, as he would not have known of the proximity of the Skeltons from mere knowledge that they were in pursuit, he would have alighted precisely as and when he did, yet when the first shot was fired Ross would have known that the man who fired it was one of the Skeltons, and that three others of them were present in ambush armed with guns to take his life. Knowing this, the hopelessness of standing his ground and attempting to defend himself from his enemies, overpowering in number and secure in their hiding places, while he stood in the open street, would have been at once manifest to him; and in [74] stead of standing there as he did, knowing only as he did that some one man, whom he did not know had fired a gun, and peering and craning his neck to see whence the shot came and who fired it, he could and doubtless would have sought safety by flight in the opposite direction, in which was the Union Hotel scarce an hundred feet away. And in view of the fact that he was hit only once by the numerous shots that were fired at him while he stood there in the open, and that not in a vital or disabling part, it is very probable that had he attempted that mode of escape, as soon as the first shot was fired, he would have reached the hotel in perfect safety. Certain it is that making that effort he would have gone away from the lurking places of his enemies, and he would not, as he did in his ignorance of the true situation, have placed himself where John Skelton at close quarters could and did shoot him to death from behind his back. But whether he would or would not have reached a place of refuge, we need not inquire or find. The knowledge that he would have had, if the telegram of Ed, Ross had been delivered to him when it could and should have been delivered, of the pursuit of the Skeltons, together with the knowledge which would have been imparted to him by the report of the first gun in connection with the contents of the message, would instantly have advised him of the extent of his danger—a danger which he could not combat, which was deadly in character and from which, as he would naturally have been at once impressed, the only hope of escape lay in immediate flight. That was a chance for his life that this knowledge would have given him. That was a chance of which the withholding of this know ledge deprived him. Tally’s telegram to Huddleston deprived him of that knowledge. Tally through Huddleston deprived him of that chance. Again, after having been shot m the legs and partially disabled by one of the many shots fired at him by Robert, James, and Walter Skelton, as he stood fully exposed to their broadside, he in his then crippled condition made an effort to find protection behind the oil house, the nearest building to him. Only these three men had fired up to that time. He knew of the presence of these three only. The house sheltered him from two of these men and partially also from the third. He got there and stood facing in the [75] direction these three were. And he called aloud for protection from them meantime keeping a lookout for them and intending no doubt to protect himself from them if he could. He knew of the presence of these three only. Nobody had seen John Skelton. He did not know that John Skelton was there. Had he gotten Ed. Ross's telegram this he would have known, that there were four of them, that only three had shot at him that the other was somewhere hidden in the immediate vicinity. And while seeking to escape from or guard himself from the other three, while he was by the side of the oil house, he would also have sought to guard himself against the fourth. He was off his guard as as to this fourth man, John Skelton, because he was ignorant of his presence. This ignorance was directly due to Tally's active interference. Tally's aid to the Skeltons by way of preventing Ross being warned enabled John Skelton to come upon Ross from his rear and shoot him down. Ross went to his death, guarding himself against the other three and calling for protection from them without even knowing that the man who killed him was nearer to him than Scottsboro. Can it be doubted that Ross's utter ignorance of John Skelton's presence, with the others at Stevenson, made it easier for John Skelton to take his life? Can it be doubted that his ignorance of the presence of all four Skeltons, when the first gun was fired by Robert Skelton at Bloodwood, when had he known it, he could have fled in the appreciable time between the time of the firing of this first and the other shots—the next one being fired by the same man—made it easier for them to take his life? Can it be doubted in any case that murder by lying in wait is facilitated by the unconsciousness of the victim? Or in any case, that the chances of the intended victim would be improved and his death rendered more difficult of accomplishment, if the first unfruitful shot apprises him of the number and identity of his assailants and the full scope and measure of their motive and purposes? We cannot believe otherwise. It is inconceivable to us, after the maturest consideration reflection and discussion, but that Ross's predicament was rendered infinitely more desperate, his escape more difficult and his death of much more easy and certain accomplishment by the withholding from him of the mes [76] sage of Ed. Ross. This withholding was the work of Judge Tally. An intent to aid the Skeltons to take the life of Ross actuated him to it. The intent was effectuated, they thereby were enabled to take him unawares, and to send him to his death without, we doubt not, his ever actually knowing who sought his life, or being able to raise a hand in defense, or to take an advised, step in retreat. And we are impelled to find that John B. Tally aided and abetted the murder of Robert C. Ross, as alleged in the second specification of the second count of the information; and to adjudge that he is guilty as charged in that specification, and guilty of murder as charged in said second count. And judgment deposing him from office will be entered on the records of this court.
No consideration or conclusion of fact in this opinion must be allowed to exert any influence upon the trials of the Skeltons and Judge Tally on the indictments for murder now pending against them.
HEAD, J., dissenting.—I am of opinion the respondent should be acquitted of both charges. I do not believe, beyond a reasonable doubt, that respondent intended, in sending the telegram to Huddleston, to aid or abet in the murder of Ross. I do not believe, beyond a reasonable doubt, that the telegram of warning would have been delivered to Ross by Huddleston, before the shooting began, if the telegram of the respondent had not been sent.
BRICKELL, C. J., not sitting.
[*] The opinion in this case was rendered August 9, 1894; but by reason of the importance of the case, it is reported in this volume, without regard to date of judgment.
7.2 VII.B. Conspiracy 7.2 VII.B. Conspiracy
Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal: at common law, only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law, an act in furtherance is needed to seal the conspiracy. Often, proving conspiracy is much easier than proving a completed or attempted crime, and so conspiracy has become a favorite tool of prosecutors to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime. As you read these cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends. What is the mens rea for the crime of conspiracy itself? What mens rea is necessary for the subsequent crimes committed in furtherance of the conspiracy? How do the various formulations of conspiracy liability interact with the justifications of punishment—retribution, deterrence, incapacitation, and rehabilitation?
7.2.1 Gebardi v. United States 7.2.1 Gebardi v. United States
GEBARDI ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
[113] Mr. William F. Waugh for petitioners.
[115] MR. JUSTICE STONE delivered the opinion of the Court.
This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825; 18 U.S.C., § 397 et seq.). Petitioners, a man and a woman, not then husband and [116] wife, were indicted in the District Court for Northern Illinois, for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that in each instance the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants, and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F. (2d) 617, on the authority of United States v. Holte, 236 U.S. 140.
The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the Court said (p. 144):
"As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like [117] this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged."
The Court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the Court put (p. 145):
"Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim."
In the present case we must apply the law to the evidence; the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.
First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.
[118] Section 2 of the Mann Act[1] (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose . .." Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.
The Act does not punish the woman for transporting herself; it contemplates two persons — one to transport and [119] the woman or girl to be transported. For the woman to fall within the ban of the statute she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,[2] any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 Fed. 28; cf. United States v. Farrar, 281 U.S. 624, 634. The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation. So it was intimated in United States v. Holte, supra, and this conclusion is not disputed by the Government here, which contends only that the conspiracy charge will lie though the woman could not commit the substantive offense.
Second. We come thus to the main question in the case, whether, admitting that the woman, by consenting, has [120] not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C, § 88), punishes a conspiracy by two or more persons "to commit any offense against the United States." The offense which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened § 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.[3]
As was said in the Holte case (p. 144), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone.[4] Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.[5] [121] For it is the collective planning of criminal conduct at which the statute aims. The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal, Clune v. United States, 159 U.S. 590, 595. And one may plan that others shall do what he cannot do himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87.
But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged.
Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently [122] with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, Shannon and Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390; cf. State v. Law, 189 Iowa 910; 179 N.W. 145; see State ex rel. Durner v. Huegin, 110 Wis. 189, 243; 85 N.W. 1046, or under the federal statute.[6] See United States v. Katz, 271 U.S. 354, 355; Norris v. United States, 34 F. (2d) 839, 841, reversed on other grounds, 281 U.S. 619; United States v. Dietrich, 126 Fed. 664, 667. But criminal transportation under the Mann Act may be effected without the woman's consent, as in cases of intimidation or force (with which we are not now concerned). We assume therefore, for present purposes, as was suggested in the Holte case, supra, 145, that the decisions last mentioned do not in all strictness apply.[7] We do not rest [123] our decision upon the theory of those cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 Fed. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.
It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, compare In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. Compare Queen v. Tyrrell, [1894] 1 Q.B. 710. The principle, determinative of this case, is the same.
On the evidence before us the woman petitioner has not violated the Mann Act and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be
Reversed.
MR. JUSTICE CARDOZO concurs in the result.
[1] "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."
[2] Sec. 3 of the Act (18 U.S.C., § 399), directed toward the persuasion, inducement, enticement or coercion of the prohibited transportation, also includes specifically those who "aid or assist" in the inducement or the transportation. Yet it is obvious that those words were not intended to reach the woman who, by yielding to persuasion, assists in her own transportation.
[3] Sec. 30, Act of March 2, 1867 (14 Stat. 471, 484) "except for an omitted not relevant provision, . . . has continued from that time to this, in almost precisely its present form." See United States v. Gradwell, 243 U.S. 476, 481.
[4] The requirement of the statute that the object of the conspiracy be an offense against the United States, necessarily statutory, United States v. Hudson, 7 Cranch 32, avoids the question much litigated at common law (see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed. 1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the Criminality of combining to do an act which any one may lawfully do alone.
[5] So it has been held repeatedly that one not a bankrupt may be held guilty under § 37 of conspiring that a bankrupt shall conceal property from his trustee (Bankruptcy Act § 29[b], 11 U.S.C., § 52). Tapack v. United States, 220 Fed. 445, certiorari denied 238 U.S. 627; Jollit v. United States, 285 Fed. 209, certiorari denied 261 U.S. 624; Israel v. United States, 3 F. (2d) 743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U.S. 582. And see United States v. Rabinowich, 238 U.S. 78, 86, 87. These cases proceed upon the theory (see United States v. Rabinowich, supra, 86) that only a bankrupt may commit the substantive offense though we do not intimate that others might not be held as principals under Criminal Code, § 332 (18 U.S.C., § 550). Cf. Barron v. United States, 5 F. (2d) 799.
In like manner Chadwick v. United States, 141 Fed. 225, sustained the conviction of one not an officer of a national bank for conspiring with an officer to commit a crime which only he could commit. And see United States v. Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.
[6] The rule was applied in United States v. N.Y.C. & H.R.R. Co., 146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following cases it was recognized and held inapplicable for the reason that the substantive crime could be committed by a single individual. Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisansky v. United States, 31 F. (2d) 846, certiorari denied 279 U.S. 873. The conspiracy was also deemed criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O'Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q.B.D. 420.
[7] It should be noted that there are many cases not constituting "a serious and substantially continued group scheme for cooperative law breaking" which may well fall within the recommendation of the 1925 conference of senior circuit judges that the conspiracy indictment be adopted "only after a careful conclusion that the public interest so requires." Att'y Gen. Rep. 1925, pp. 5, 6.
7.2.2 People v. Lauria 7.2.2 People v. Lauria
THE PEOPLE, Plaintiff and Appellant,
v.
LOUIS LAURIA et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Two.
[473] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Plaintiff and Appellant.
[474] Jay Plotkin, under appointment by the Court of Appeal, Patrick Coleman, Apple & Dobrin and Irving D. Apple for Defendants and Respondents.
FLEMING, J.
In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.
On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and "about as safe as you can get." It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.
On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said "his business was taking messages."
On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.
On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come [475] to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't "arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them." In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.
Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.
[1] To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?
The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two [476] cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.
In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.
In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a `stake in the venture' which, even if it may not be essential, is not irrelevant to the question of conspiracy." (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)
While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. [2] Both the element of knowledge of the illegal use of the [477] goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
[3] Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.
[4] The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal. Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. [5] But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.
In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of [478] his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.
In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.
[6] 1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £ 3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.
In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.
[7] 2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal. App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.
In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Fraine, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to apprentices [479] so that it was impossible for him to have been ignorant of the real intent of the transaction.
In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.
Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.
However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.
[8] 3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found [480] significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.
No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.
Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.
Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [(C.C.A. 6) [3 All Eng. 200, 123 J.P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. [9] It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to [481] pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.
Logically, the same reasoning could be extended to crimes of every description. [10] Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, § 38; 18 U.S.C. § 2382.) [11] In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) [12] But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen's arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: "Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; [482] misprision of treason is punishable with imprisonment for life.... No offence is committed in failing to disclose a misdemeanour....
"`To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion.'" (Criminal Law, Glanville Williams (2d ed.) p. 423.)
[13] With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all cases of felony knowledge of criminal use alone may justify an inference of the supplier's intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.
[14] From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.
[15] When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from [483] which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.
In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.
The order is affirmed.
Herndon, J., concurred.
Roth, P.J., concurred in the judgment.
7.2.3 Pinkerton v. United States 7.2.3 Pinkerton v. United States
PINKERTON ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
[641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.
W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.
A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.
In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.
Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,[2] has little vitality in this country.[3] It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:
"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."
And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.
Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.[4]
[645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.
There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.[6]
[646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.
We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.
A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the [648] scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE RUTLEDGE, dissenting in part.
The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.
Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.
There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.
[649] I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;[1] (2) aiding, abetting or counseling another to commit them;[2] and (3) conspiracy to commit them.[3] Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.
The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.
These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.
The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.
I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.[4] It should be [651] followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.
The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.
Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.
In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.
But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.
It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.
For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.
What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.[5]
[654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.
MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.
[1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."
The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.
[2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina, 257 N.Y. 84, 89-90, 177 N.E. 317.
[3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.
[4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
But we do not find that practice reflected in this present case.
[5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.
[6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.
[1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.
[2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.
[3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.
[4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.
[5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.
7.2.4 Krulewitch v. United States 7.2.4 Krulewitch v. United States
KRULEWITCH
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Jacob W. Friedman argued the cause and filed a brief for petitioner.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General [441] Perlman, Assistant Attorney General Campbell, John R. Benney, Robert S. Erdahl and Joseph M. Howard.
MR. JUSTICE BLACK delivered the opinion of the Court.
A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.
"She asked me, she says, `You didn't talk yet?' And I says, `No.' And she says, `Well, don't,' she says, `until we get you a lawyer.' And then she says, `Be very careful what you say.' And I can't put it in exact words. But she said, `It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it.'"
[442] The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made — the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.[1]
It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible [443] on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15 F.2d 740, 743.
Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.
We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been [444] scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief.[2] But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.
It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless [445] under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.
Reversed.
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."[1] The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in [446] addition thereto,[2] suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.
The modern crime of conspiracy is so vague that it almost defies definition.[3] Despite certain elementary and [447] essential elements,[4] it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.[5] It is always "predominantly [448] mental in composition" because it consists primarily of a meeting of minds and an intent.[6]
The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.[7]
But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a [449] lone wrongdoer.[8] It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade (see 145 F.2d 76 for details) and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.
Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.[9] The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.[10]
[450] Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.[11]
Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."[12] In fact, we are advised that "The modern crime of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the court of Star Chamber."[13] The doctrine does not commend itself to jurists of civil-law countries,[14] despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates.[15]
[451] A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.
Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.[16] This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction.[17] The National Labor Relations Act found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert.[18] But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.
The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind [452] only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, "To require a greater showing would cripple the Act," United States v. Griffith, 334 U.S. 100, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. "It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . ." United States v. Masonite Corp., 316 U.S. 265, 275. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.
Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.
An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.[19] The Government may, and often [453] does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497.
When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.
The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where [454] the Government institutes mass trials.[20] Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices." Caminetti v. United States, 242 U.S. 470, 495.
A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.[21]
Against this inadequately sketched background, I think the decision of this case in the court below introduced [455] an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the co-conspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows:
". . . We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continues, at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673. . . . While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it."
I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy [456] by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.
It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.
Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.
I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the [457] United States and that every federal prosecution must be sustained by statutory authority.[22] No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress.[23] And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.
There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.
Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice [458] can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.
MR. JUSTICE BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.
In speaking of harmless errors that may result from the admission of evidence, this Court has said:
"Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269[*] to questions of the admission of cumulative evidence." Kotteakos v. United States, 328 U.S. 750, 763.
[459] Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is —
"what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .
.....
"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." Id. at pp. 764-765.
The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.
[1] The Florida grand jury failed to indict and the cases there were closed without prosecution in February, 1942. The New York indictments were not returned until January, 1943.
[2] Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677; People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918; Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145; State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756; Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347; Watson v. State, 166 Miss. 194, 213, 146 So. 122, 127; Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222; State v. Strait, 279 S.W. 109 (Mo.).
[1] The phrase is Judge Cardozo's — The Nature of the Judicial Process, p. 51.
[2] The Conference of Senior Circuit Judges, presided over by Chief Justice Taft, in 1925 reported:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.
[3] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624: "In the long category of crimes there is none, not excepting criminal attempt, more difficult to confine within the boundaries of definitive statement than conspiracy."
An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."
[4] Justice Holmes supplied an oversimplified working definition in United States v. Kissel, 218 U.S. 601, 608: "A conspiracy is a partnership in criminal purposes." This was recently restated "A conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 644. The latter is inaccurate, since concert in criminal purposes, rather than concert in crime, establishes the conspiracy.
Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.
[5] See, for example:
8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.
[6] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624, 632.
[7] See Senturia, Conspiracy, Political, IV Encyc. Soc. Sci. 238 (1931).
On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.
[8] 8 Holdsworth, History of English Law, 383. Miller, Criminal Law, p. 110.
[9] 18 U.S.C.A. § 371. Until recently, the punishment for such a felony could have been far in excess of that provided for the substantive offense. However, the Act of June 25, 1948, c. 645, 62 Stat. 683, 701, provides that in such a case the punishment for the conspiracy shall not exceed the maximum provided for such misdemeanor.
[10] This is the federal law applicable to antitrust prosecutions. For the history of this conception and its perversion, particularly in labor cases, see Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393. On the abuse of conspiracy see O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, and Note, The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 Harv. L. Rev. 276.
[11] This statement, of course, leaves out of account the subject of attempts with which conspiracy is said to be allied. 8 Holdsworth, History of English Law, 382.
[12] Id., 382.
[13] Id., 379.
[14] "It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it. It is a fortunate circumstance that it is not encrusted so deep in our jurisprudence by past decisions of our courts that we are unable to slough it off altogether. It is a doctrine which has proved itself the evil genius of our law wherever it has touched it." Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 427.
[15] Counsel representing the United States, the United Kingdom, the French Republic, and the Soviet Union, and German defendants, indulged in some comparisons of the relevant laws of several nations before the International Military Tribunal at Niirnberg in connection with organizations there accused as criminal. 8 Trial of Major War Criminals (GPO 1947), pp. 353, et seq.; 2 Nazi Conspiracy and Aggression (GPO 1946), p. 1; Jackson, The Nurnberg Case, p. 95.
[16] The Assassination of President Lincoln and the Trial of the Conspirators, New York, 1865. See, however, Ex parte Milligan, 4 Wall. 2.
[17] See Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 403.
[18] International Union, U.A.W.A. v. Wisconsin Employment Relations Board, ante, p. 245.
[19] Hyde v. United States, 225 U.S. 347. Mr. Justice Holmes, on behalf of himself and Justices Hughes, Lurton and Lamar, wrote a vigorous protest which did not hesitate to brand the doctrine as oppressive and as "one of the wrongs that our forefathers meant to prevent." 225 U.S. 347, 387.
[20] An example is afforded by Allen v. United States, 4 F.2d 688. At the height of the prohibition frenzy, seventy-five defendants were tried on charges of conspiracy. A newspaper reporter testified to going to a drinking place where he talked with a woman, behind the bar, whose name he could not give. There was not the slightest identification of her nor showing that she knew or was known by any defendant. But it was held that being back of the bar showed her to be a co-conspirator and, hence, her statements were admissible against all. He was allowed to relate incriminating statements made by her.
[21] For courtroom technique employed in the trial of conspiracy cases by both prosecution and defense, see O'Dougherty, Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn L. Rev. 263. His survey, which accords with our observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.
[22] United States v. Hudson, 7 Cranch 32; United States v. Worrall, 2 Dall. 384; United States v. Coolidge, 1 Wheat. 415; United States v. Eaton, 144 U.S. 677, 687; United States v. Bathgate, 246 U.S. 220, 225. See, however, Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73.
[23] Cf. Tot v. United States, 319 U.S. 463.
[*] Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided:
"SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.
Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:
"RULE 52. HARMLESS ERROR AND PLAIN ERROR.
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."
7.2.5. Model Penal Code sec. 5.03
7.2.6 Criminal Law Spring 2015 7.2.6 Criminal Law Spring 2015
7.2.6.1 I. Introduction 7.2.6.1 I. Introduction
During orientation we read the case, Durham v. State. This case serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment. This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it? It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for? Our study of criminal law will begin by examining basic elements of just punishment: (1) legality, the requirement that criminal punishment have a legal foundation; (2) actus reus, the actual proscribed conduct that constitutes the crime; and (3) mens rea, the state of mind necessary for a given action to be criminal. Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.
7.2.6.1.1 Durham v. State 7.2.6.1.1 Durham v. State
199 Ind. 567
DURHAM
v.
STATE OF INDIANA
No. 25,179.
Filed December 23, 1927.
From Kosciusko Circuit Court; Lemuel W. Royse,
James A. Durham was convicted of assault and battery, and he appeals. Reversed.
J. Edward Headley, for appellant.
Arthur L. Gilliom, Attorney-General, for the State.
MARTIN, J.—Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.
The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of [570] $700 was returned, judgment was rendered on the verdict.
Alleged errors, assigned as reasons in support of appellant’s motion for a new trial, which was overruled, include the giving of three instructions on the court’s own motion and in refusing to give a number of instructions requested by appellant.
The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up; that appellant ran up to him, put his hand up him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion pushed the boat out in the water with oars or paddles. That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened “a few times.” That appellant said, "Lay down that oar," “Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, the ap [571] pellant then "snapped the gun at me, but it didn't go off” and that Long finally jerked the chain away from him and escaped.
The appellant testified that when Long stepped out on shore, he stepped from behind some bushes, approaches and said, “You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, “Hand me the boat oar and I will brain the son of a bitch.” That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, “If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you.” That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the ice cold water. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he [572] was exhausted and had to let loose of the chain and let them go.
Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was harmed by this instruction. He was actually found guilty of the degree of offense which the court erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. §2419 Burns 1926; Cranorv. State (1872), 39 Ind. 64. The failure of the court, in instruction eight, to state this element of the offense was particularly prejudicial to this appellant’s rights because the nature of his duties as a peace officer (§4755 Burns 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.
Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend[573] himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, 2 R. C. L. 474, and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy (1918), 201 Ala. 605, 79 So. 37. The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but on the contrary, were acts expressly required of him by law.
Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.
Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: “the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." §2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." §2159 Burns 1926.
In Plummer v. State (1893), 135 Ind. 308, 34 N. E. 968, the court said:
“The law does not allow a peace officer to use more force than is necessary to effect an [574] arrest. . . . And if he do use such unnecessary force, he . . . may be lawfully resisted. . . . If the officer is resisted before he has used needless force and violence, he may then press forward and overcomeresistance, even to the taking of the life of the personarrested, if absolutely necessary."
The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L. 473; 2 Brill, Cyc Criminal Law §§692, 713; Laning, Arrest and Prosecution p. 508; Clark and Marshall, Law of Crimes (2d. ed.) §271; Notes in 3 A. L. R. 1170-1177 and in 42 A. L. R. 1200-1207.
The general rules deduced therefrom may be stated to be:
(A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except
(B) that he may not merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant;[1] thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting.[2]
[575] That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified.[3]Smith v. State (1894), 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Fugate v. Commonwealth (1920), 187 Ky. 564, 219 S. W. 1069; Smith v. Commonwealth (1917), 176 Ky. 466; State v. Dunning (1919), 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166 and note; State v. Dierberger (1888), 96 [576] Mo. 666, 675, 10 S. W. 168, 9 Am. St. 380; Krueger v. State (1920), 171 Wis. 566, 177 N. W. 917.
To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.[4]
"To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" 1 Bishop, Crim. Proc. (2d ed.) §16.
In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws (§§ 4743, 4755 Burns 1926) and to prevent a prisoner from escaping from custody (§2608 Burns 1926) as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. This is illustrated by the following quotations from the record of the cross-examinations of the appellant:“Q: You knew at that time, [577] Mr. Durham, you would have been in perfect safety if you had let loose of the chain? A. They (the state) didn't employ me to let loose of the chain. Q. You held on to that chain notwithstanding the fact that you thought you would be brained, for the purpose of effecting that arrest, didn't you? A. I held on to the chain to arrest those fellows and keep them there until my partner returned. Q. Didn’t you know you would have been in perfect safety without chance of a scratch if you let loose of that chain? The court overruled appellant's objection to this question. A. No I didn't. He might have hit me before I got back out of the water. Q. He wasn't pursuing you at any time, was he? A. He was striking at me. Q. You knew if you let loose of that chain or boat that Long and he (Hammond) would get away from you didn't you? A. Yes Sir.” It also appears from the record that the prosecuting attorney refused to prosecute Long for his violation of the law and promised him that he would not be prosecuted if he would testify for the state in this case.
Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest.
Instruction twelve was also bad for two additional reasons. (1) It failed to instruct on the question of [578] what constitutes an arrest. It was material in this case for the jury to know what constituted an arrest and the statutory definition of arrest and the authority and requirements in respect thereof should have been embodied in the instructions. The court also refused to give an instruction tendered by appellant defining arrest. (2) It required that appellant should have been more specific in informing Long that he was an "officer," and should have stated that he was a "deputy game warden and was making the arrest deputy game warden." The evidence was sufficient to submit the question of a valid arrest to the jury without a special requirement being made by the court in respect to the particular classification of appellant as an officer.
The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.
[1] The law considers it better and more in consonance with modern ideas regarding the sanctity of human life to allow one to escape who is guilty only of a misdemeanor, and whose offense will subject him only to a small fine or short imprisonment, rather than to sacrifice his life. Reneau v. State (1879), 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626; United States v. Clark (1887), 31 Fed. 710; Thomas v. Kinkhead (1892), 55 Ark. 502, 18 S. W. 854, 29 Am: St. 68, 15 L. R. A. 558; Head v. Martin (1887), 85 Ky. 480, 3 S. W. 622; Skidmore v. State (1877) 2 Texas Court of Appeals 20.
[2] The most common examples of this class of cases are those where officers shoot at misdemeanants, their mounts, or their automobile tires and wound or kill the misdemeanants.
"To permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse and take the offender.” Head v. Martin, supra.
See the following: Note 67 L. R. A. 300; Wiley v. State (1918), 19 Ariz. 346, 170 P. 869, L. R. A. 1918D 878 and note: Brown v. Weaver(1898), 76 Miss. 7, 42 L. R. A. 428; Commonwealth v. Loughhead (1907), 218 Pa. 429, 120 Am. St. 896; Sossamon v. Cruse (1908), 133 N. C. 470; State v. Coleman (1905), 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381.
[3] Most of the texts divide the cases involving shooting or killing of those arrested for misdemeanors by officers where resistance is met, into two classes: (a) Those holding that, if a misdemeanant resists arrest, the officer may use such force as is necessary to effect it, even to severely injuring or killing the offender; and (b) those holding that the officer is never justified in taking or endangering life except in seIf-defense. 5 C. J. 426, Arrest §62 n. 95, 97 and 98; 2 R. C. L. 473, Arrest §30 n. 8, 4 and 7; 2 Brill, Cyc Cr. Law n.73-77, §713 n. 33; Clark and Marshall, Law of Crimes (2d. ed §271; Note 3 A. L. R. 1175; Note 42 A. L. R. 1203. But, as has already been noted, the protection which an officer is entitled to receive in making an arrest is a different thing from self-defense, for it is his duty to push forward and make the arrest and to secure and retain custody of the prisoner, and Mikell in Clark, Cr. Froc. (2d ed.) §17. note 50 points out that: "though in theory the distinction between killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is the same. . . . All cases agree that the officer need not abandon the effort to complete the arrest because of. . . . resistance. . . . and that it is his duty to continue this effort. . . . It will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing."
See, also, the following cases in support of the text above: Donehy & Prather v. Commonwealth (1916), 170 Ky. 474; Commonwealth v. Marcum (1909), 135 Ky.1, 122 S. W. 215, 24 L. R. A. (N.S.) 1194; Thomas v. Kinkead, supra; State v. Coleman (1905), 186 Mo. 151, 69 L. R. A. 381; Loveless v. Hardy, supra; Commonwealth v. Greer (1898), 20 Pa. Co. 535; State v. Garrett (1863), 60 N. C. 144, 84 Am: Dec. 359; Lynn v. People (1897), 170 Ill. 527, 48 N. E. 964; U. S. Bank & Trust Co. v. Switchmens Union (1917), 256 Pa. St. 228, 100 Atl. 808, L. R. A. 1917E 311.
[4] An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and is entitled to the peculiar protection of the law. Without submission tohis authority there is no security and anarchy reigns supreme.He must, of necessity, be the aggressor, and the law affords him special protection.In his capacity as an individual he may take advantage of the 'first law of nature,' and defend himself againstassault; as an officer he has an affirmative to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted toobstruct the wheels of justice." State v. Smith (1905), 127 Iowa534, 103 N. W. 944, 109 Am. St. 402, 70 L. R. A. 246, 4 Ann. Cas. 758.This language was used in a case where the officer arrested a misdemeanant and killed one who sought to rescue the prisoner and whoseact in so doing was by statute made a felony, but the reasoning quotedis none the less applicable here. A note concerning the right of an officer to kill a misdemeanant in order to effectuate an arrest accompanies the report of this case in 4 Ann. Cas. at page 760.
7.2.6.1.2 Tennessee v. Garner Memphis Police Department v. Garner 7.2.6.1.2 Tennessee v. Garner Memphis Police Department v. Garner
Tennessee v. Garner
v.
Cleamtee GARNER, etc., et al. MEMPHIS POLICE DEPARTMENT, et al., Petitioners, v. Cleamtee GARNER, etc., et al.
A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.
Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.
Page 2
(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.
(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.
(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect—young, slight, and unarmed—posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.
710 F.2d 240 (CA6 1983), affirmed and remanded.
Henry L. Klein, Memphis, Tenn., for petitioners in No. 83-1070.
W.J. Michael Cody, Memphis, Tenn., for appellant in No. 83-1035.
Page 3
Steven L. Winter, New York City, for Cleamtee Garner, et al.
Justice WHITE delivered the opinion of the Court.
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
At about 10:45 p.m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and
Page 4
about 5'5" or 5'7" tall.2 While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4
In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann.
Page 5
§ 40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id., at 57.
Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10.
The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the District Court's decision. The District Court was
Page 6
directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d, at 54-55.
The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39.
The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment,6 and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes—"the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id., at 246. Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." Ibid.7
Page 7
The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U.S. 1098, 104 S.Ct. 1589, 80 L.Ed.2d 122 (1984).
Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of
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the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983); see Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 2593, n. 12, 69 L.Ed.2d 340 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968).
Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In each of these cases, the question was whether
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the totality of the circumstances justified a particular sort of search or seizure.
The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly
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force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14.
Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police de-
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partments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where
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feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown:
"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony." 2 M. Hale, Historia Placitorum Coronae 85 (1736).
See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).
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The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33, 63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.
It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or
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fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected." American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).
Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12
There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety
Page 15
of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13
One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E., at 376; State v. Smith, 127 Iowa, at 535, 103 N.W., at 945. See generally Annot., 83 A.L.R.3d 238 (1978).
In short, though the common-law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.
In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to pre-
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vailing rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S., at 421-422, 96 S.Ct., at 826-827. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code's
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provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20
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It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.
This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where "the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury." Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a
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felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.
Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici noted that "[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies." Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.
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Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S., at 20, 27, 88 S.Ct., at 1879, 1883. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.
The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.
In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d, at 246.
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We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'non-dangerous.' " App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.
The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property" rather than a "violent" crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297, and nn. 22-23, 103 S.Ct. 3001, 3012-3013, and nn. 22-23, 77 L.Ed.2d 637 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House-
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hold Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).
We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants—the Police Department and the city of Memphis—hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice O'CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.
The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to
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apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.
The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights
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on inside the house. Officer Hymon testified that when he saw the broken window he realized "that something was wrong inside," id., at 656, but that he could not determine whether anyone—either a burglar or a member of the household—was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.
Appellee-respondent, the deceased's father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819
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(1938). The District Court held that the Tennessee statute is constitutional and that Hymon's actions as authorized by that statute did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).
The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.
For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal-
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ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional—as opposed to purely judicial—limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411, 416-421, 96 S.Ct. 820, 824-827, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 2573, 2582, 77 L.Ed.2d 22 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment).
The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277, 315-316, 103 S.Ct. 3001, 3023, 77 L.Ed.2d 637 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home,
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three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or 'nonviolent.' " Solem v. Helm, supra, at 316, 103 S.Ct., at 3023 (BURGER, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).
Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the
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Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).
The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.
Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The
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majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14, 100 S.Ct. 1371, 1395, n. 14, 63 L.Ed.2d 639 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.
A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The
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police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.
Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U.S. 137, 144-145, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use
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of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.
Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the
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shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.
The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S., at 619, 100 S.Ct., at 1396 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.
The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, 100 S.Ct., at 1387, a long-standing police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary sus-
Page 33
pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.
1. The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id., at 209.
2. In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.
3. When asked at trial why he fired, Hymon stated:
"Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him." App. 52.
He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id., at 53-54.
4. Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id., at 34. The owner testified that his valuables were untouched but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id.., at 34-35.
5. Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).
6. "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amdt. 4.
7. The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d, at 247. The relevant portion of the Model Penal Code provides:
"The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed." American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).
The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d, at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), that the city was not immune.
8. The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n. 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.
In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend "perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed." In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.
9. We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this "reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense." Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, ¶ 31-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).
This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon subject, under the common-law rule, to apprehension by deadly force—solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp.17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.
10. See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed. 1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.
11. The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed. 1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id., at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: "The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ." 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed. 1982); 2 Pollock & Maitland 511.
12. White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); id., at 755, 104 S.Ct., at 2100 (BLACKMUN, J., concurring). See Model Penal Code Comment, at 57.
13. It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether in past centuries the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.
14. Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D. Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. § 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).
15. In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 116 Cal.Rptr. 233, 237-242, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).
16. These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W.R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935).
17. Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).
18. Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, ¶ 7-5 (1984); Iowa Code § 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. § 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, § 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. § 609.066 (1984); N.H.Rev.Stat.Ann. § 627:5(II) (Supp.1983); N.J.Stat.Ann. § 2C-3-7 (West 1982); N.Y.Penal Law § 35.30 (McKinney Supp. 1984-1985); N.C.Gen.Stat. § 15A-401 (1983); N.D.Cent.Code § 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. § 508 (1982); Tex.Penal Code Ann. § 9.51(c) (1974); Utah Code Ann. § 76-2-404 (1978).
19. See La.Rev.Stat.Ann. § 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, § 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).
20. These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).
21. In adopting its current statute in 1979, for example, Alabama expressly chose the common-law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-68 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739 52 L.Ed.2d 219 (1977). Idaho, whose current statute codifies the common-law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.
22. In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).
23. The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post, at 26-27. These figures mean only that if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.
The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.
7.2.6.1.3. FRCP 11
7.2.6.1.4. Paola Gaeta, “Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?,” in International Humanitarian Law and International Human Rights Law, ed. Ben-Neftali (New York: Oxford University Press, 2011), pp. 305–327
7.2.6.1.5. Missouri v. Wilson: Grand Jury Testimony of Darren Wilson (Pp 197-239)
7.2.6.2 II. Elements of Just Punishment 7.2.6.2 II. Elements of Just Punishment
7.2.6.2.1 II.A. Legality 7.2.6.2.1 II.A. Legality
It seems commonsensical that for criminal punishment to be just and legal, the activity punished must have been made illegal. However, legality is a more complex subject than it seems, as the cases below illustrate. Legislatures and courts struggle to define and interpret criminal law, and the roles and relationships between these institutions in determining what is criminal have evolved over time. Consider the strengths and weaknesses, advantages and disadvantages of courts and of legislatures in defining particular crimes — a topic you have undoubtedly encountered throughout your 1L year. Additionally, giving people notice of criminal proscription underpins the idea of legality. Consider the issue of notice. Given the limited knowledge that most people have of the law, can they be said to have actual notice of what conduct is criminal? And should this matter? As you will see, courts sometimes invalidate convictions due to lack of notice, such as when a statute is unconstitutionally vague. Given that most people don’t read criminal statutes, why do courts go to such lengths to uphold the principle of notice?
7.2.6.2.1.1 Commonwealth v. Mochan 7.2.6.2.1.1 Commonwealth v. Mochan
Commonwealth
v.
Mochan, Appellant.
Superior Court of Pennsylvania.
[455] Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Edward A. Schultz, with him H. Turner Frost and Seif, Schultz & Frost, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.
OPINION BY HIRT, J., January 14, 1955:
One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 "devising, contriving and intending the morals and [456] manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth, and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich . . . unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous approbrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania." A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was [457] sentenced. He has appealed from the refusal by the court en banc of his motions in arrest of judgment, on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. 11 Am. Jur., Common Law, § 4; 22 C.J.S., Criminal Law, § 19. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.
It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week and at any hour of the day or night. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.
It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be [458] found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. In Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507, the controlling principles are thus stated: "The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government: 16 Corpus Juris, Sec. 23, page 65, citing Republica v. Teischer, 1 Dallas 335; Com. v. Sharpless, 2 S. & R. 91, and Barker v. Com., 19 Pa. 412." Cf. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, in which it is said: "`Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law': Russell on Crimes and Misdemeanors, 8th Ed., Vol. 1, p. 10; 4 Blackstone's Commentaries 65, note." Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton Criminal Law, 12 Ed., § 23. Thus in Barker et al. v. Commonwealth, 19 Pa. 412, a common law conviction based upon open obscenity was affirmed. Cf. Sadler, Criminal & Penal Proc., § 281. And in Commonwealth v. Glenny, 54 D. & C. 633, in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 S. & R. 393, it was held that Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense.
[459] To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209. The present defendant's criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant's acts injuriously affected public morality. The operator or any one on defendant's four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich's household heard some of defendant's immoral and obscene language over the telephone.
The name "Immoral Practices and Conduct" was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant (Com. of Penna. v. DeGrange, supra, p. 185); the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.
Judgments and sentences affirmed.
DISSENTING OPINION BY WOODSIDE, J.:
Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.
The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application [460] of such general principles as "it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;" and "whatever openly outrages decency and is injurious to public morals is a misdemeanor."
Not only have they declared it to be a crime to do an act "injuriously affecting public morality," but they have declared it to be a crime to do any act which has a "potentially" injurious effect on public morality.
Under the division of powers in our constitution it is for the legislature to determine what "injures or tends to injure the public."
One of the most important functions of a legislature is to determine what acts "require the state to interfere and punish the wrongdoer." There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.
There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.
When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to [461] stop them. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.
Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.
I would therefore reverse the lower court and discharge the appellant.
GUNTHER, J. joins in this dissent.
7.2.6.2.1.2 McBoyle v. United States 7.2.6.2.1.2 McBoyle v. United States
McBOYLE
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.
Mr. Harry F. Brown for petitioner.
Mr. Claude R. Branch, Special Assistant to the Attorney General, with whom Solicitor General Thacher, Assistant Attorney General Dodds and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years' imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. [26] Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: "Sec. 2. That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."
Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-propelled vehicle not designed for running on rails." No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used "as a means of transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. [27] It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.
Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.
Judgment reversed.
7.2.6.2.1.3 Chicago v. Morales 7.2.6.2.1.3 Chicago v. Morales
CITY OF CHICAGO
v.
MORALES et al.
United States Supreme Court.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
[42] [43] [44] Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.
Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.
Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.[*]
[45] Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.
In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang [46] members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
I
Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.[1]
The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by [47] criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid.
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.[2]
[48] Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated [49] areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.[5]
II
During the three years of its enforcement,[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct [50] is prohibited, and it encourages arbitrary and capricious enforcement by police."[9]
The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,[10] consolidated and affirmed other pending appeals in accordance with Youkhana,[11] and reversed the convictions of respondents Gutierrez, Morales, and others.[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.[13]
The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.
In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated [51] to cause harm.[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."[15]
We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.
III
The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt [52] that a law that directly prohibited such intimidating conduct would be constitutional,[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.
We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).
While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct [53] protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).
On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).[20] [54] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).[21]
[55] There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.[22]
[56] Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.
IV
"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how [57] any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?[23]
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.[25] However, state [58] courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.[26]
The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."[27] We find this response unpersuasive for at least two reasons.
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 [59] (1965).[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.[30]
Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.
Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally [60] vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).
V
The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse.
Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, [61] see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."
As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).
Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.
Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons [62] to disperse under the ordinance.[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.
Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.
It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.[34] It applies to everyone in the city [63] who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.
Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.
Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city [64] safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.
VI
In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."[35] 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.
Accordingly, the judgment of the Supreme Court of Illinois is
Affirmed.
Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.
I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4—015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to [65] establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 (1983). Of these, "the more important aspect of the vagueness doctrine `is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I share Justice Thomas' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peace keeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "`a standardless sweep . . . to pursue their personal predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575).
The ordinance at issue provides:
"Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a.
To "[l]oiter," in turn, is defined in the ordinance as "to remain in any one place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).
As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement [66] officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (Thomas, J., dissenting). Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4—015(c)(5) (1992).
To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.
This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree [67] with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true .. . that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them.
It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the "`presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,' " that "`intimidates residents.' " Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill . . . their traditional functions," including "preserving the public peace." See post, at 106 (Thomas, J., dissenting). Specifically, [68] Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4—010 (1992).
In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a—61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.
The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "`[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it' " (citations and internal quotation marks omitted)); New York [69] v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment.
Justice Kennedy, concurring in part and concurring in the judgment.
I join Parts I, II, and V of the Court's opinion and concur in the judgment.
I also share many of the concerns Justice Stevens expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.
We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; [70] nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose.
Justice Breyer, concurring in part and concurring in the judgment.
The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4—015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4—015(c)(1).
The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and Justice O'Connor, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for . . . ." And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature."
[71] Nor does it violate "our rules governing facial challenges," post, at 74 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) ("If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it").
Justice Scalia's examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.
[72] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment).
I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own.
This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained:
"It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted).
[73] The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.
Justice Scalia, dissenting.
The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional.
Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional.
Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated [74] in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4—015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.
The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.
I
Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
[75] That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:
"The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.
. . . . .
"Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule . . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can [76] be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956).
As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):
"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."
And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):
"The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of [77] constitutional law broader than is required by the precise facts to which it is to be applied.' . . .Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."
It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?
I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish [78] that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us—whose case, after all, was the occasion for undertaking this inquiry in the first place.[1])
As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-
[79] stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.)[2]
This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by Stevens, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by Stevens, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan, [80] 500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).[3] Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.[4]
[81] I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (Scalia, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception—which, though illogical, is at least predictable. It is not à la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city.
When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:[5] Tony, a member of the Jets criminal street gang, is standing [82] alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it,I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness.
Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using [83] the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez—who had previously admitted to the arresting officer his membership in the Latin Kings gang—was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications.
II
The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights . . . . When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) [H11501] (infringement of constitutionally protected right) [H11501] (vagueness) [H11505] (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.
But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes [84] it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally un protected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement. . . . It is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No. 6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).)
Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.
The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice Thomas recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly [85] compendia in Justice Thomas' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494, 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,[6] and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the [86] point.[7] It is enough for the Members of the plurality that "history . . . [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.[8]
It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally [87] protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from Justice O'Connor's and Justice Breyer's opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on"—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver.
Justice Kennedy apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). [88] But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the follow-up explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that Justice Kennedy thinks is constitutional—as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70.
III
I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O'Connor, J., concurring in part and concurring in judgment); ante, at 69-70 (Kennedy, J., concurring in part and concurring in judgment); ante, at 72-73 (Breyer, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The [89] only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.
The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.
IV
Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz overbreadth [90] standard applied in Kolender v. Lawson, 461 U. S. 352, 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).
The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.[9] If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the President, [91] before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I . . .command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse . . . forthwith"). See also Boos v. Barry, 485 U. S. 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific").
For its determination of unconstitutional vagueness, the Court relies secondarily—and Justice O'Connor's and Justice Breyer's concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment); ante, at 72 (Breyer, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at [92] 61, 63 (majority opinion); ante, at 68 (O'Connor, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved—after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound).
The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.[10] Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a—69a, 71a—72a.
Second, the ordinance requires that the group be "remain[ing] in any one place with no apparent purpose." Justice O'Connor's assertion that this applies to "any person standing [93] in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"— a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83.
As for the phrase "with no apparent purpose": Justice O'Connor again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general `purpose'—even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible. " Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in any one place with no apparent purpose"—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.[11]
The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The `no apparent purpose' standard for making [the decision to [94] issue an order to disperse] is inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to disperse— the absence of any apparent purpose—is a subjective factor. This side of the looking glass, just the opposite is true.
Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:
"In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she `shall'—order them to disperse." Ante, at 60.
Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the trade-off is worth it.[12]
[95] Justice Breyer's concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what Justice Breyer gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra.[13]
[96]
V
The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.
Justice O'Connor's concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "street gang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.
[97] Justice O'Connor's concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not.
* * *
The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O'Connor's concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).
But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, [98] and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation—and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.
I dissent from the judgment of the Court.
Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.
The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352, 370 (1983) (White, J.,dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way "`deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (citation omitted). I dissent.
I
The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually [99] overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence . . . is both physically and psychologically debilitating").
The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.[1] Many [100] of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts").
Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work:
"When I walk out my door, these guys are out there . . . .
. . . . .
"They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me . . . .
". . . I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of [101] Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript).
Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore . . . . I am scared to go out in the daytime. . . . [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified:
"I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .
. . . . .
"I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125.
Following these hearings, the council found that "criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process—the council's attempt to address these social ills—that we are asked to pass judgment upon today.
II
As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police [102] have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons—because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree.
A
We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial `guide posts for responsible decision-making' . . . that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. Glucksberg, supra, at 720-721.
The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges—as it must—that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause." Ante, at 54, [103] n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months.
The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.[2] Vagrancy laws [104] were common in the decades preceding the ratification of the Fourteenth Amendment,[3] and remained on the books long after.[4]
[105] Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one—decided more than 100 years after the ratification of the Fourteenth Amendment— actually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.[5] However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases—it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter—a doubtful proposition—it [106] does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. . . . [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid.
B
The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.
1
At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs [107] 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.[6]
In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:
[108] "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).
See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.[7] Even the ABA Standards for [109] Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' . . . . The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).[8]
In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" [110] and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690, 695, 700 (1996) ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence.
The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited [111] to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form—requiring the dispersal of groups that contain at least one gang member—actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times.
In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid").
[112]
2
The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.[9] While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.
Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted [113] meaning of the word `loiter.' " 177 Ill. 2d, at 451, 687 N. E. 2d, at 61.
Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.[10]
The plurality also concludes that the definition of the term loiter—"to remain in any one place with no apparent purpose," [114] see 177 Ill.2d, at 445, 687 N. E. 2d, at 58—fails to provide adequate notice.[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place . . .would know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566, 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no.
* * *
Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so— the people who will have to live with the consequences of [115] today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens, ante, at 54, elevates above all else—the "`freedom of movement.' " And that is a shame. I respectfully dissent.
[*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.
Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.
[1] The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas' dissenting opinion. Post, at 100-101.
[2] The ordinance states in pertinent part:
"(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.
"(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.
"(c) As used in this Section:
"(1) `Loiter' means to remain in any one place with no apparent purpose.
"(2) `Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
. . . . .
"(5) `Public place' means the public way and any other location open to the public, whether publicly or privately owned.
"(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.
"In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4—120 of this Code." Chicago Municipal Code § 8-4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a.
[3] As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.
[4] Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.
[5] Tr. of Oral Arg. 22-23.
[6] The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.
[7] Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).
The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among . . . experts over the causes of the decline in crime in New York City and nationally").
[8] See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).
[9] Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.
[10] Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).
[11] Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.
[12] Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.
[13] Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.
[14] "The ordinance defines `loiter' to mean `to remain in any one place with no apparent purpose.' Chicago Municipal Code § 8-4—015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451— 452, 687 N. E. 2d, at 60-61.
[15] It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.
[16] Brief for Petitioner 14.
[17] In fact the city already has several laws that serve this purpose. See, e. g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).
[18] Brief for Petitioner 17.
[19] See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice Scalia, post, at 83-86 (dissenting opinion), and Justice Thomas, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.
[20] Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the "`Slavery acts' " provided for a 2-year enslavement period for anyone who "`liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "`any runaway, stubborn servant or child' " and "`a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.' " T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in Justice Thomas' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.
[21] The freewheeling and hypothetical character of Justice Scalia's discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.
In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.
[22] The burden of the first portion of Justice Scalia's dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.
We need not, however, resolve the viability of Salerno `s dictum, because this case comes to us from a state—not a federal—court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).
Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). Justice Scalia's assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).
[23] The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an `apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.
[24] 177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the `basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a—49a.
[25] See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381, 394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).
[26] See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").
[27] Brief for Petitioner 31.
[28] In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under . . . Kentucky's statute if he fails to obey an order to move on." Ibid.
[29] "Literally read . . . this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S.,at 90.
[30] As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).
[31] This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally,may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.
[32] It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.
[33] Justice Thomas' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.
[34] Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.
[35] This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, Justice Thomas, see post, at 102-106, and Justice Scalia, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucksberg, 521 U. S. 702 (1997).
[1] In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733, 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness").
The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants . . . did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them.
[2] Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).
[3] The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.
The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.
[4] See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. denied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F. 3d 804, 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992), cert.denied, 506 U. S. 1053 (1993);Woodis v. Westark Community College, 160 F. 3d 435, 438-439 (CA8 1998); Roulette v.Seattle, 97 F. 3d 300, 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CA10 1999); Dimmitt v. Clearwater, 985 F. 2d 1565, 1570— 1571 (CA11 1993); Time Warner Entertainment Co. v. FCC, 93 F. 3d 957, 972 (CADC 1996).
[5] With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959.
[6] The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty.
[7] Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process . . . . We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39.
[8] The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg. " Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is . . . a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases).
The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58.
[9] I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery—suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet) .
[10] "Administrative interpretation and implementation of a regulation are . .. highly relevant to our [vagueness] analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v.Rock Against Racism, 491 U. S.781, 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope").
[11] Justice Breyer asserts that "one always has some apparent purpose," so that the policeman must "interpret the words `no apparent purpose' as meaning `no apparent purpose except for . . . .' " Ante, at 70. It is simply not true that "one always has some apparent purpose"—and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move.
[12] The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable—viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says . . . ." Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning.
[13] The opinion that Justice Breyer relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (Breyer, J., concurring in part and concurring in judgment).
[1] In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).
[2] See,e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprintedin 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprintedin First Laws of the State of Connecticut 206-210 (J.Cushing comp. 1982));Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J.Cushing comp. 1981));Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).
[3] See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York v. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283, 425 (1849) (opinion of Wayne, J.); Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).
[4] See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated . . . the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. I. Gen. Stat., ch. 232, § 24 (1872); Ill. Rev. Stat., ch. 38, § 270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, § 4758 (1894); Ill. Rev. Stat., ch. 38, § 270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code § 887 (1902); Pa. Stat. §§ 21409, 21410 (1920); Ky. Stat. § 4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. § 21-2409 (1964).
[5] The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270, 274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110, 127, n. 6 (1989) (plurality opinion).
[6] See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State . . . be duly kept"); Ill. Comp. Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. § 40:1379 (West 1992) ("Police employees . . .shall . . . keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force . . . is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances").
[7] For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Comp. Stat., ch. 720, § 5/251(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060, 525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, § 502 (1983); Mass. Gen. Laws, ch. 269, § 2 (1992); Mich. Comp. Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. § 45-8-102 (1997); Nev. Rev. Stat. § 203.020 (1995); N. H. Rev. Stat. Ann. §§ 644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. § 2C:33-1(b) (West 1995); N. Y. Penal Law § 240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-10(a) (1985); S. D. Codified Laws § 22-10-11 (1998); Tenn. Code Ann. § 39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994).
[8] See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places . . ."); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff . . . to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections . . .").
[9] The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v.Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, itis apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene.
[10] For example, a 1764 Georgia law declared that "all able bodied persons . . . who shall be found loitering . . . , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond . . . found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing comp. 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants . . . . All persons who shall . . . be found loitering"); Ky. Rev. Stat., ch. CIV, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, . . . he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor").
[11] The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "`provides absolute discretion to police officers to decide what activities constitute loitering,' "ante, at 61 (quoting 177 Ill.2d, at 457, 687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] `practical effect' . . . .This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993).
7.2.6.2.1.4. Excerpts of William B. Rubenstein, The Myth of Superiority
7.2.6.2.1.5 Lawrence v. Texas 7.2.6.2.1.5 Lawrence v. Texas
We have just read a few cases that illustrate the concept of legality in terms of the legal institutions that define crimes, the importance of notice, and the dangers of vagueness. Legality, however, goes beyond these somewhat procedural issues to implicate questions of substance: what conduct can a just society legally punish in the first place? Our next case, Lawrence v. Texas, grapples with this question.
LAWRENCE et al.
v.
TEXAS
Supreme Court of United States.
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
[559] [560] [561] KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.
Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.
Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.[*]
[562] JUSTICE KENNEDY delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.
The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:
"(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or"(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.
The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.
[564] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws.2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i.
The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and [565] placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.
After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:
"It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.
The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
[566] In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.
The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so [567] for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions [568] in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.
To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.
The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.
It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, [571] 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude [575] the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional [578] attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).
JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.
[581] The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.
And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).
Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.
This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
[583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.
Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.
Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" [584] "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).
A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).
Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson:
"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).
That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.
[586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.
Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.
I
I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. [587] I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.
Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.
[588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.
I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.
(2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).[1] Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.[2]
[591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:
"No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).
[593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).[3] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.
[594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.
The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.
I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.
III
The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.
Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").
After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, [596] at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:
"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.
[597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.
Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.
In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).
[599]
IV
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
V
Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.
JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.
"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. [601] It is instead directed toward gay persons as a class." Ante, at 583.
Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).
* * *
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.
[*] Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.
Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.
[1] This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.
[2] While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).
[3] The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.
7.2.6.2.2 II.B. Actus Reus 7.2.6.2.2 II.B. Actus Reus
Actus reus, or the act requirement, is the first part of culpability in criminal law. (You will meet the second part, mens rea, in the next section.) In short, almost every crime must have an act, but defining that act can be tricky. Sometimes something that seems like an act isn’t an act; other times, something that does not seem like an act is one. These cases introduce you to the act requirement. Notice distinctions between voluntary and involuntary acts, and between conduct and the results of conduct. Consider why the court reaches the decision it does in each case, and what its decision says about its concept of blameworthiness.
7.2.6.2.2.1 Martin v. State 7.2.6.2.2.1 Martin v. State
MARTIN
v.
STATE.
Appeal from Circuit Court, Houston County; D. C. Halstead.
Cephus Martin was convicted of public drunkenness, and he appeals.
Reversed and rendered on rehearing.
W. Perry Calhoun, of Dothan, for appellant.
The original arrest being unlawful and without a warrant, the subsequent happenings by appellant should not be used against him to make out a Case of public drunkenness. If appellant’s acts were the result of compulsion and duress, this is a good defense. Browning v. State, ante, p. 137, 13 So.2d 54; Gassenheìmer v. State, 52 Ala. 313.
Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.
It is no defense to the perpetration of a crime that facilities for its commission were purposely placed in the way. Nelson v. City Of Roanoke, Z4 Ala.App. 277, 135 So. 312. Compulsion which will excuse crime must be Present, imminent and impending and of Such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Such compulsion must have arisen without the fault or negligence of the person asserting it as a defense. 22 Criminal Law, page 99, 44; 16 CJ. 91; Moore v. State, 23 Ala. App. 432, 127 So. 796; Thomas v. State, 134 Ala. 126, 33 So.« 130; Browning v. State, ante, p. 137, 13 So.2d 54. Burden of proving defense of duress is upon accused. 22 C.]. S., Criminal Law, page 888, 575.
SIMPSON, Judge.
Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law arrested him at his home and took him onto the highway, where he allegedly committed the proscribed acts, viz., manifested a drunken condition by using loud and profane language.
The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, * * * and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined”, etc. Code 1940, Title 14, Section 120.
Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Thomas v. State, 33 Ga. 134, 125 S.E. 778; Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.]. S., Drunkards, 14, p. 560.
Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It appears that no legal conviction can be sustained under the evidence, so, consonant with the prevai1ing rule, the judgment of the trial court is reversed and one here rendered discharging appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala.App. 12, 200 So. 626; Atkins v. State, 27 Ala.App. 212, 169 So. 330.
Of consequence, our original opinion of affordance was likewise laid in error. It is therefore withdrawn.
Reversed and rendered.
7.2.6.2.2.2 People v. Decina 7.2.6.2.2.2 People v. Decina
The People of the State of New York, Appellant-Respondent,
v.
Emil Decina, Respondent-Appellant.
Court of Appeals of the State of New York.
John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for appellant-respondent.
Charles J. McDonough for respondent-appellant.
CONWAY, Ch. J., DYE and BURKE, JJ., concur with FROESSEL, J., DESMOND J., concurs in part and dissents in part in an opinion in which FULD and VAN VOORHIS, JJ., concur.
FROESSEL, J.
At about 3:30 P.M. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.
It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.
A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.
After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily — apparently because defendant was "stooped over" the steering wheel — the car proceeded on the sidewalk until it finally crashed through a 7¼-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.
[136] When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was "bobbing a little". To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and "within a matter of seconds the horn stopped blowing and the car did shut off".
Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared "injured, dazed"; another witness said that "he looked as though he was knocked out, and his arm seemed to be bleeding". An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: "I blacked out from the bridge".
When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed — defendant did not take the stand nor did he produce any witnesses.
From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read: "Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD-553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed."
On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a [137] resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room — according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant "on the bed", and he stated that he heard the entire conversation between them, although he did not testify as to its content.
Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had communicated to him the contents of the "pink slip". While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:
That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treatment. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment, among other things; that in the hospital they treat any patient that comes in.
He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: "I don't know. I just seen him as a patient coming into the hospital". He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant "was a patient"; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.
He also stated he never told defendant that he had any pink [138] slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.
The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.
Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.
On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took [139] an electroencephalogram during defendant's three-day stay there. The testimony of Dr. Wechter is the only testimony before the trial court showing that defendant had epilepsy, suffered an attack at the time of the accident, and had knowledge of his susceptibility to such attacks.
Defendant was indicted and charged with violating section 1053-a of the Penal Law. Following his conviction, after a demurrer to the indictment was overruled, the Appellate Division, while holding that the demurrer was properly overruled, reversed on the law, the facts having been "examined" and found "sufficient". It granted a new trial upon the ground that the "transactions between the defendant and Dr. Wechter were between physician and patient for the purpose of treatment and that treatment was accomplished", and that evidence thereof should not have been admitted. From its determination both parties have appealed.
We turn first to the subject of defendant's cross appeal, namely, that his demurrer should have been sustained, since the indictment here does not charge a crime. The indictment states essentially that defendant, knowing "that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time", was culpably negligent "in that he consciously undertook to and did operate his Buick sedan on a public highway" (emphasis supplied) and "while so doing" suffered such an attack which caused said automobile "to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk" causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law. The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a "disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment." (People v. Angelo, 246 N.Y. 451, 457.)
Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic [140] attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?
To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held (People v. Eckert, 2 N Y 2d 126, decided herewith; People v. Kreis, 302 N.Y. 894; Matter of Enos v. Macduff, 282 App. Div. 116; State v. Gooze, 14 N. J. Super. 277). To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation (see Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N.Y. 639), and there is simply no basis for comparing such cases with the flagrant disregard manifested here.
It is suggested in the dissenting opinion that a new approach to licensing would prevent such disastrous consequences upon our public highways. But would it — and how and when? The mere possession of a driver's license is no defense to a prosecution under section 1053-a; nor does it assure continued ability to drive during the period of the license. It may be noted in passing, and not without some significance, that defendant strenuously and successfully objected to the district attorney's offer of his applications for such license in evidence, upon the ground that whether or not he was licensed has nothing to do with the case. Under the view taken by the dissenters, this defendant would be immune from prosecution under this statute even if he were unlicensed. Section 1053-a places a personal [141] responsibility on each driver of a vehicle — whether licensed or not — and not upon a licensing agency.
Accordingly, the Appellate Division properly sustained the lower court's order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.
The appeal by the People (hereinafter called appellant) challenges the determination of the Appellate Division that the testimony of Dr. Wechter was improperly admitted in contravention of section 352 of the Civil Practice Act, which states that a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity".
Two questions are raised by this appeal. The first is whether a physician-patient relationship existed between Dr. Wechter and defendant, and, if so, whether the communications made by defendant to him were necessary for the doctor to act in his professional capacity. The second is whether the presence of the police guard in the doorway of the room destroys any privilege arising under section 352 and permits the doctor to testify. It is not contested that defendant, as the party asserting the privilege, bears the burden of showing its application in the present case (Bloodgood v. Lynch, 293 N.Y. 308, 314; People v. Austin, 199 N.Y. 446, 452; People v. Koerner, 154 N.Y. 355, 366; People v. Schuyler, 106 N.Y. 298, 304). He claims to have sustained the burden on the basis of appellant's own evidence previously outlined.
Appellant contends that no professional relationship arose because the doctor was sent by the district attorney to examine, not treat, the defendant, and in fact he did not treat him. The cases upon which appellant relies are readily distinguishable from the one now before us. In People v. Schuyler (supra), for example, a jail physician was allowed to testify, over an objection based on the predecessor statute to section 352 of the Civil Practice Act, to his observations of the prisoner's mental condition. There was no evidence that the prisoner was ill, or that he was attended by, treated, or required any treatment by said jail physician while in custody.
The criterion to be applied in determining whether or not a professional relationship exists was stated in People v. Austin (199 N.Y. 446, supra). The testimony of a physician describing [142] an examination of defendant in jail relating to his sanity was found admissible because there were no circumstances from which it might be inferred that the defendant "was led to accept him [the examining doctor] as a physician and consequently to disclose to him information that perhaps would not otherwise have been given" (p. 452). This rule the court derived from People v. Stout (3 Parker Cr. Rep. 670, 676).
In People v. Koerner (154 N.Y. 355, 365-366, supra), as in People v. Furlong (187 N.Y. 198, 208-209), testimony of physicians was admitted, but in each case the defendant was explicitly informed that the physician was not acting in his capacity as a doctor or that information obtained might be used against him in subsequent legal proceedings (see, also, People v. Leyra, 302 N.Y. 353, 363, which had an altogether different fact pattern, however).
People v. Sliney (137 N.Y. 570, 580) and People v. Hoch (150 N.Y. 291, 302-303) are consistent with the rule of the Austin and Stout cases (supra). They are additional instances where the testimony of physicians who held examinations in jails was admitted, since no evidence was adduced from which it might be found that the defendants could reasonably have regarded the physician as acting in a professional capacity towards them.
Appellant further contends that there can be no finding of physician-patient relation in this case because there is no evidence that Dr. Wechter actually treated defendant. The cases relied on by appellant are inapposite. They properly hold that where a physician does treat a person, regardless of whether it is at his request, or with his consent, the relation arises, but they do not hold the converse (Meyer v. Knights of Pythias, 178 N.Y. 63, affd. 198 U. S. 508; People v. Murphy, 101 N.Y. 126). In determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive (Grattan v. Metropolitan Life Ins. Co., 24 Hun 43, 46).
In any event, although Dr. Wechter testified that he personally did not treat defendant, he admitted that other doctors and internes in the hospital did "treat" him for Jacksonian epilepsy. He himself made that diagnosis. To say that in a hospital, where there is division of duties among the staff, the relation of physician and patient does not arise with regard to those members of the staff who do not actually treat the patient [143] is unsound. It would place upon section 352 strictures that are opposed to our oft-expressed view that the statute is to be liberally construed (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N.Y. 450, 455; Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 300; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194).
It is apparent that the information here given by the defendant was necessary for his treatment. Those cases allowing disclosure by physicians of information related to them by their patients deal with such nonprofessional matters as details of an accident entirely unrelated to treatment (Griffiths v. Metropolitan St. Ry. Co., 171 N.Y. 106; Green v. Metropolitan St. Ry. Co., 171 N.Y. 201; Gray v. City of New York, 137 App. Div. 316, 321; Travis v. Haan, 119 App. Div. 138; Benjamin v. Village of Tupper Lake, 110 App. Div. 426; De Jong v. Erie R. R. Co., 43 App. Div. 427), or facts such as a layman might observe (Klein v. Prudential Ins. Co., 221 N.Y. 449; Sparer v. Travelers Ins. Co., 185 App. Div. 861). Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.
The second question will now be dealt with. The problem here is what effect, if any, the presence of the police guard, pursuant to the orders of the district attorney, in or about the doorway of the hospital room, where he could overhear the conversation between Dr. Wechter and defendant, has upon the privilege under section 352. That section does not in so many words require that a communication be confidential or confidentially given in order to be privileged. So we turn to the cases. In Matter of Coddington (307 N.Y. 181, 187-191) (then) CONWAY, J., pointed out that Judge EARL attempted, in Edington v. Ætna Life Ins. Co. (77 N.Y. 564) to confine the statute to information of a confidential nature, but the court did not agree with him on that point. As a result of the cases that followed — Grattan v. Metropolitan Life Ins. Co. (80 N.Y. 281) and Renihan v. Dennin (103 N.Y. 573) — in the latter of which Judge EARL suggested legislation, section 836 of the Code of Civil Procedure (now Civ. Prac. Act, § 354) was amended to allow physicians in effect to testify as to nonconfidential communications of deceased patients where the privilege has been waived by persons [144] authorized by the section to do so. The language of those cases was exceedingly broad, and it was pointed out that, under the literal phraseology of code section 834, the physician was absolutely prohibited from testifying so long as the conditions of the statute were met.
Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. (154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman (183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible. A third case, Sparer v. Travelers Ins. Co. (185 App. Div. 861, 864 [1st dept.], supra), reached the same conclusion; it did not allow the testimony of a physician as to the details of an operation he performed to be received in evidence, although a medical student was present during its performance. And now the fourth department in the case at bar has impliedly held likewise in the case of a police guard. The present case falls clearly within the scope of these decisions. If anything, it presents an even stronger situation, for the guard's presence was ordered by command of the public authorities.
An opposite result is not indicated by those cases dealing with the effect of the presence of a third person upon the attorney-client privilege under section 353 of the Civil Practice Act (Baumann v. Steingester, 213 N.Y. 328; People v. Buchanan, 145 N.Y. 1, 26). The Denaro case (154 App. Div. 840, supra) expressly held that the situations were not analogous. It may be noted that the applicable statutes are not identical. Under section 353, relating to attorneys, the privilege extends only to "a communication, made by his client to him". Under section 352 relating to physicians, however, the privilege extends to "any information which he acquired in attending a patient"; since such information may be acquired from third persons — and third persons who have some definite relationship to the [145] patient are often present — the situation is not analogous to an attorney-client relationship.
Whether or not this distinction accounts for the fact that in attorney-client cases it has generally been held that the presence of a third person destroys the privilege, the cases suggest that even here there are exceptions (Baumann v. Steingester, supra, p. 332; People v. Buchanan, supra, p. 26). So if the communication was intended to be confidential, the fact that it may have been overheard by a third person does not necessarily destroy the privilege (see People v. Cooper, 307 N.Y. 253, 259, n. 3; Erlich v. Erlich, 278 App. Div. 244, 245; Richardson on Evidence [8th ed.], § 438).
The true test appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. Applying this test, we hold that under section 352, and the cases construing it, the communication by defendant to Dr. Wechter was privileged, and admission of it by the trial court was error, as correctly stated by the Appellate Division.
Defendant raises the subsidiary question that the hospital record was improperly received in evidence before the Grand Jury, and the indictment should, therefore, be dismissed. A word may be said about that. He made no motion for inspection of the minutes of the Grand Jury. We do not know what evidence was adduced there, for the Grand Jury minutes are not a part of this record. Even if we assume that the hospital record was improperly before the Grand Jury, we have no way of knowing what other evidence may have been adduced and formed a sufficient basis for the indictment. There is a presumption that an indictment is based on legally sufficient evidence (see People v. Eckert, supra; People v. Sweeney, 213 N.Y. 37, 44; People v. Sexton, 187 N.Y. 495, 512; People v. Glen, 173 N.Y. 395, 403). We cannot here rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is. Defendant should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.
Accordingly, the order of the Appellate Division should be affirmed.
[146] DESMOND, J. (concurring in part and dissenting in part).
I agree that the judgment of conviction cannot stand but I think the indictment should be dismissed because it alleges no crime. Defendant's demurrer should have been sustained.
The indictment charges that defendant knowing that "he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness" suffered "an attack and loss of consciousness which caused the said automobile operated by the said defendant to travel at a fast and reckless rate of speed" and to jump a curb and run onto the sidewalk "thereby striking and causing the death" of 4 children. Horrible as this occurrence was and whatever necessity it may show for new licensing and driving laws, nevertheless this indictment charges no crime known to the New York statutes. Our duty is to dismiss it.
Section 1053-a of the Penal Law describes the crime of "criminal negligence in the operation of a vehicle resulting in death". Declared to be guilty of that crime is "A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed". The essentials of the crime are, therefore, first, vehicle operation in a culpably negligent manner, and, second, the resulting death of a person. This indictment asserts that defendant violated section 1053-a, but it then proceeds in the language quoted in the next-above paragraph of this opinion to describe the way in which defendant is supposed to have offended against that statute. That descriptive matter (an inseparable and controlling ingredient of the indictment, Code Crim. Pro., §§ 275, 276; People v. Dumar, 106 N.Y. 502) shows that defendant did not violate section 1053-a. No operation of an automobile in a reckless manner is charged against defendant. The excessive speed of the car and its jumping the curb were "caused", says the indictment itself, by defendant's prior "attack and loss of consciousness". Therefore, what defendant is accused of is not reckless or culpably negligent driving, which necessarily connotes and involves consciousness and volition. The fatal assault by this car was after and because of defendant's failure of consciousness. To say that one drove a car in a reckless manner in that his unconscious condition caused the car to travel recklessly is to make two mutually contradictory assertions. One cannot be "reckless" while unconscious. One cannot while unconscious [147] "operate" a car in a culpably negligent manner or in any other "manner". The statute makes criminal a particular kind of knowing, voluntary, immediate operation. It does not touch at all the involuntary presence of an unconscious person at the wheel of an uncontrolled vehicle. To negative the possibility of applying section 1053-a to these alleged facts we do not even have to resort to the rule that all criminal statutes are closely and strictly construed in favor of the citizen and that no act or omission is criminal unless specifically and in terms so labeled by a clearly worded statute (People v. Benc, 288 N.Y. 318, 323, and cases cited).
Tested by its history section 1053-a has the same meaning: penalization of conscious operation of a vehicle in a culpably negligent manner. It is significant that until this case (and the Eckert case, 2 N Y 2d 126, handed down herewith) no attempt was ever made to penalize, either under section 1053-a or as manslaughter, the wrong done by one whose foreseeable blackout while driving had consequences fatal to another person.
The purpose of and occasion for the enactment of section 1053-a is well known (see Governor's Bill Jacket on L. 1936, ch. 733). It was passed to give a new label to, and to fix a lesser punishment for, the culpably negligent automobile driving which had formerly been prosecuted under section 1052 of the Penal Law defining manslaughter in the second degree. It had been found difficult to get manslaughter convictions against death-dealing motorists. But neither of the two statutes has ever been thought until now to make it a crime to drive a car when one is subject to attacks or seizures such as are incident to certain forms and levels of epilepsy and other diseases and conditions.
Now let us test by its consequences this new construction of section 1053-a. Numerous are the diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. Epilepsy, coronary involvements, circulatory diseases, nephritis, uremic poisoning, diabetes, Meniere's syndrome, a tendency to fits of sneezing, locking of the knee, muscular contractions — any of these common conditions may cause loss of control of a vehicle for a period long enough to cause a fatal accident. An automobile traveling at only 30 miles an hour goes 44 feet in a second. Just what is the court holding here? No less than [148] this: that a driver whose brief blackout lets his car run amuck and kill another has killed that other by reckless driving. But any such "recklessness" consists necessarily not of the erratic behavior of the automobile while its driver is unconscious, but of his driving at all when he knew he was subject to such attacks. Thus, it must be that such a blackout-prone driver is guilty of reckless driving (Vehicle and Traffic Law, § 58) whenever and as soon as he steps into the driver's seat of a vehicle. Every time he drives, accident or no accident, he is subject to criminal prosecution for reckless driving or to revocation of his operator's license (Vehicle and Traffic Law, § 71, subd. 3). And how many of this State's 5,000,000 licensed operators are subject to such penalties for merely driving the cars they are licensed to drive? No one knows how many citizens or how many or what kind of physical conditions will be gathered in under this practically limitless coverage of section 1053-a of the Penal Law and section 58 and subdivision 3 of section 71 of the Vehicle and Traffic Law. It is no answer that prosecutors and juries will be reasonable or compassionate. A criminal statute whose reach is so unpredictable violates constitutional rights, as we shall now show.
When section 1053-a was new it was assailed as unconstitutional on the ground that the language "operates or drives any vehicle of any kind in a reckless or culpably negligent manner" was too indefinite since a driver could only guess as to what acts or omissions were meant. Constitutionality was upheld in People v. Gardner (255 App. Div. 683). The then Justice LEWIS, later of this court, wrote in People v. Gardner that the statutory language was sufficiently explicit since "reckless driving" and "culpable negligence" had been judicially defined in manslaughter cases as meaning the operation of an automobile in such a way as to show a disregard of the consequences (see People v. Angelo, 246 N.Y. 451). The manner in which a car is driven may be investigated by a jury, grand or trial, to see whether the manner was such as to show a reckless disregard of consequences. But giving section 1053-a the new meaning assigned to it permits punishment of one who did not drive in any forbidden manner but should not have driven at all, according to the present theory. No motorist suffering from any serious malady or infirmity can with [149] impunity drive any automobile at any time or place, since no one can know what physical conditions make it "reckless" or "culpably negligent" to drive an automobile. Such a construction of a criminal statute offends against due process and against justice and fairness. The courts are bound to reject such conclusions when, as here, it is clearly possible to ascribe a different but reasonable meaning (People v. Ryan, 274 N.Y. 149, 152; Matter of Schwarz v. General Aniline & Film Corp., 305 N.Y. 395, 406, and cases cited).
A whole new approach may be necessary to the problem of issuing or refusing drivers' licenses to epileptics and persons similarly afflicted (see Barrow and Fabing on Epilepsy and the Law, ch. IV; Restricted Drivers' Licenses to Controlled Epileptics, and see 2 U.C.L.A. L. Rev., p. 500 et seq.). But the absence of adequate licensing controls cannot in law or in justice be supplied by criminal prosecutions of drivers who have violated neither the language nor the intendment of any criminal law.
Entirely without pertinence here is any consideration of driving while intoxicated or while sleepy, since those are conditions presently known to the driver, not mere future possibilities or probabilities.
The demurrer should be sustained and the indictment dismissed.
Order affirmed.
7.2.6.2.2.3 People v. Newton 7.2.6.2.2.3 People v. Newton
THE PEOPLE, Plaintiff and Respondent,
v.
HUEY P. NEWTON, Defendant and Appellant.
Court of Appeals of California, First District, Division Four.
[365] COUNSEL
Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant.
[366] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RATTIGAN, J.
Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.
Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, § 245b); count Three, with the kidnaping of Dell Ross. (Pen. Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.
After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.
At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:
Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told [367] Frey that "we have got some PIN information coming out on that."[1] Frey replied, "Check. It's a known Black Panther vehicle.... I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.
A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.
Lord testified that under such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."
After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "FREY: 1A, it's the same address. He has on his registration 1114-12th Street? RADIO [Lord]: Check. What's his birth date? FREY: He gave me some phony. I guess he caught on. RADIO: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. FREY: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.
Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A [368] beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)
After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.
Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.
Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.
Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk [369] area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were tussling on the rear part of my car."[2] Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.
Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.
Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. [370] (Grier did not then, or again, see the other "civilan" he had noticed when driving west on Seventh Street.)
As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward.[3] These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.
Gilbert DeHoyos and Thomas Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967, both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant] and I think he hit him ... he [Heanes] thought he hit him."
Defendant arrived at the emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant) had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.
Officers Frey and Heanes were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time but in an unknown order. One bullet entered in the front, and [371] exited through the back, of his left shoulder; another passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet wounds: one in his right arm, one in the left knee, one in the chest.
Three slugs were recovered: one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been fired from an automatic (Officers Frey and Heanes carried .38-caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's revolver was found.
Oakland Police Department Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings. Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges; the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.
Davis testified that a gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.
[372]
Defense Evidence
Tommy Miller gave this testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967. As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man] up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from the back of the bus (which had stopped), a police officer lying on the ground.
Gene McKinney, who was also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and gave no further testimony.
Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.
A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.
[373] Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book[4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots." He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that — after recalling some events at Kaiser Hospital — he later "regained consciousness" at another hospital.
The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."
The Instructions Upon Unconsciousness
Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows — and the Attorney General emphasizes — that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting — by number only — specified CALJIC instructions pertaining, among other things, to self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter.[5] At the suggestion of all counsel, the court announced that "... [A]rgument and discussion concerning [374] the proposed instruction will be had in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:
"THE COURT: Gentlemen, in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?
"MR. GARRY [defense counsel]: That is correct.
"THE COURT: Mr. Newton, you understand that? Meet with your approval?
"THE DEFENDANT: Yes, it does.
"THE COURT: Now, the attorneys for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?
"MR. GARRY: That is correct.
"THE COURT: Very well. The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval, Mr. Garry?
"MR. GARRY: Yes, Your Honor.
"THE COURT: Mr. Newton, that has been explained to you and it meets with your approval?
"THE DEFENDANT: Yes." (Italics added.)
The trial court then enumerated, with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:
"MR. GARRY: Let the record show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as an objection on our part.
"THE COURT: Well, with the exception, of course, of those which have — 322 and 322A — which you have withdrawn, 71C and 71D which, in effect, you have withdrawn, because we are giving 73B —
"MR. GARRY: Yes, Your Honor.
"THE COURT: Those are the only ones. All the other instructions, yes, [375] I have gone through all of them and they are either not given or else they are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know now what instructions the Court plans to give...."[6]
Thereafter the trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request, the court also gave instructions on voluntary manslaughter[7] and diminished capacity.[8] Pursuant to the judge's intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self-defense (CALJIC 322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.
Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself.[9] [376] Given this sequence, defendant's testimony of his sensations when shot — supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound — supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.
(1) Where not self-induced, as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness is a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303, 316-317 [78 Cal. Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal. Rptr. 156, 427 P.2d 820].) "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist — and the above-stated rule can apply — where the subject physically acts in fact but is not, at the time, conscious of acting.[10] The statute underlying the rule makes this clear,[11] as does one of the unconsciousness instructions originally requested by defendant.[12] (See also People v. Roerman (1961) 189 Cal. App.2d 150, 160-163 [10 Cal. Rptr. 870] and cases cited.) Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" (e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal. Rptr. 790, 454 P.2d 686]; People v. Wilson, supra, at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore (1970) 5 Cal. App.3d 486, 488-490, 492 [85 Cal. Rptr. 194]; People v. Edgmon (1968) 267 Cal. App.2d 759, 762-763, 764 [fn. 5], [73 Cal. Rptr. 634]; People v. Cox (1944) 67 Cal. App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting. [377] (E.g., People v. Wilson, supra, at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)
(2) Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo (1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)
Defendant did not request instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." (4) But a trial court is under a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates. (People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal. App.3d 970, 977 [82 Cal. Rptr. 850].) (5) The difference between the two states — of diminished capacity and unconsciousness — is one of degree only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d 716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal. Rptr. 815, 411 P.2d 911].) (6) Moreover, evidence of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356 [46 Cal. Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v. Mosher, [378] supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.)
The error was prejudicial per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379 at p. 391; (People v. Modesto, supra, 59 Cal.2d 722 at pp. 730-731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting defendant upon a finding of justifiable homicide.[13] Under these circumstances, it is "reasonably probable" that a result more favorable to him — i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense — would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
The Question of Invited Error
As defendant's point on the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting [379] it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not upon both.[14]
If the trial court entertained this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550 at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p. 356.) In any event, while the deficient record[15] does not clearly substantiate counsel's claim that the trial court forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon both defenses, upon its own motion, whether counsel correctly understood the situation or not.
A similar situation occurred, and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham, defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel" (id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4], [51 Cal. Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed [380] complaint on appeal only where "the record indicated a `deliberate' or `expressed' tactical decision by counsel to forego a particular instruction which the court is otherwise obliged to render to the jury." (People v. Graham, supra, at p. 318 (italics in the original).)
The Graham court went on to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause." (People v. Graham, supra, 71 Cal.2d 303 at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver" consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation. On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission." (Id., at pp. 319-320 [italics added].)
The self-defense instructions originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while — and not before — he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at best. As only instructions upon unconsciousness offered a complete defense (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them, is irreconcilable with "deliberate [381] tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal.2d 574 at pp. 580-581 [fn. 4 and cases cited].)
(7) The "withdrawal" of the critical instructions — to the extent that the event appears[16] — can perhaps be ascribed to "neglect or mistake" (People v. Graham, supra, 71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" (id., at p. 320) on the part of defense counsel. Whatever the reason for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited error" doctrine does not foreclose defendant from asserting his point on the appeal. (Id., at p. 319.) Since we have sustained the point on its merits, the judgment must be reversed.
We also sustain certain other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal, we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count Three of the indictment, and (3) defendant's prior felony conviction.
Grier's Extrajudicial Statement
Henry Grier's eyewitness account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ... sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing [382] these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier by the police on the morning of the shootings, and his answer thereto:
"Q" [By the interrogating police officer] About how old was [Officer Frey's assailant]?
"A. I couldn't say because I only had my lights on, I couldn't — I did get a clear picture, clear view of his face but — because he had his head kind of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look — " (Italics added.)
Arguing to the jury, defense counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument, the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution. According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't get a clear picture, clear view of his face ..." (Italics added.)
The defense immediately moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion. Having then obtained the original October 28 police recording of Grier's statement, the defense again moved to reopen. This time, after hearing a playback of the recording, the court found that Grier had indeed said "didn't" in the context quoted above. The judge again refused to reopen, but stated that some action should be taken to provide the jury with a corrected version of the Grier statement. The court thereupon ordered that a "correction" be made in the written transcript, and that a corrected copy of the document be "sent to the Jury just in an ordinary manner without any comment or instructions." The transcript was sent to the jury with the word "did" corrected to read "didn't," but without explanation or notice of the change.
(8) Defendant contends that the trial court abused its discretion in refusing to reopen the case. The Attorney General's only argument is to the effect that defendant cannot now complain because his attorney approved the procedure followed by the trial court in sending the corrected transcript to the jury. Defense counsel did indicate his approval of the procedure [383] when the trial court proposed it, but this was after defendant's first motion to reopen had been denied and the court had indicated its intention to deny the second. At that point, counsel had the choice of approving the procedure or having no correction sent to the jury at all. Under the circumstances, he cannot be said to have waived the right to challenge the court's denial of his motions to reopen.
(9) The trial court clearly had discretion to order the case reopened (Pen. Code §§ 1093, 1094; People v. Berryman (1936) 6 Cal.2d 331, 338-339 [57 P.2d 136]; People v. Richardson (1961) 192 Cal. App.2d 166, 169 [13 Cal. Rptr. 321]), even after the jury deliberations had begun (People v. Christensen (1890) 85 Cal. 568, 570 [24 P. 888]. See Stoumen v. Munro (1963) 219 Cal. App.2d 302, 319 [33 Cal. Rptr. 305]; Annot., 87 ALR2d 849, 851 et seq.) (10) Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made (see People v. Carter (1957) 48 Cal.2d 737, 757 [312 P.2d 665]), the diligence shown by the moving party in discovering the new evidence (Fernandez v. United States (9th Cir.1964) 329 F.2d 899, 903), the prospect that the jury would accord it undue emphasis (Eason v. United States (9th Cir.1960) 281 F.2d 818, 821-822, and the significance of the evidence. (People v. Carter, supra, at p. 755.)
Reopening — and its conceivably attendant consequences in terms of further proof, argument and instructions — would have been inconvenient because of the stage of the proceedings at which defendant moved, but it was neither impossible nor unreasonable. (See People v. Carter, supra, 48 Cal.2d 737 at p. 757; Witkin, Cal. Criminal Procedure (1963) § 434, pp. 435-436 and cases cited.) Reopening was not precluded by any lack of diligence on the part of the defense,[17] and the trial court could have minimized the possibility that the jury would overemphasize the newly discovered evidence.
Whether the new evidence — i.e., the single word change required and made in the transcript of Grier's pretrial statement — was vital and material is arguable either way. Still, Grier was the only witness who positively identified defendant as Officer Frey's assailant. (11) Whether he "did" or "didn't" see the assailant's face was material, especially in light of the [384] discrepancies in his separate descriptions of the person he claimed to have seen shooting Officer Frey. The prosecution had vigorously emphasized the word "did" in defending the credibility of Grier's in-court indentification of defendant. The latter was entitled to have the jury consider the possibility, however remote, that someone other than he (e.g., Gene McKinney, whose role in the shooting episode is obscure, under the evidence, to the point of mystery) had engaged in the fatal scuffle with the officer. The jury had indicated its interest in these matters by requesting a copy of the transcript of Grier's pretrial statement. Under all the circumstances, we conclude that the trial court abused its discretion in denying defendant's motions to reopen the case.
The Dell Ross Grand Jury Testimony
Before the grand jury which produced the indictment charging defendant, in count Three, with kidnaping Dell Ross on October 28, 1967, Ross testified in pertinent part as follows: Sitting in his parked automobile near Seventh and Willow Streets on that date, he heard several gunshots. Two men (one of them defendant, whom Ross identified to the grand jury from a photograph) entered his car. Defendant ordered him, at gunpoint, to drive the pair to a specified street corner in Oakland. Ross complied. While in his car, both men made several statements, quoted by Ross to the grand jury, which implicated defendant in the shooting episode and were highly damaging to his defense in the present prosecution.
When called by the People as a trial witness, and upon the advice of counsel (who appeared with him) Ross pleaded self-incrimination and refused to answer any questions concerning the morning of October 28, 1967. At the request of the prosecution and pursuant to Penal Code section 1324, the trial court granted him immunity and ordered him to testify. Although Ross continued to refuse upon the ground of self-incrimination, he soon indicated that he did not remember what happened on October 28 or testifying to the grand jury. Upon this basis, the prosecutor showed him a copy of the transcript of his grand jury testimony and asked whether it refreshed his memory. When Ross said that he could not read, and over defense objections, the prosecutor then read all his grand jury testimony to the trial jury.
The trial court instructed the jury that the grand jury testimony, and the defense tape recording, were admitted for impeachment only and not for the truth of the matters asserted in either. Several trial days later, upon motion by the defense, the trial court ordered stricken from the record "the entire testimony of ... [Dell Ross] ..., and all questions asked of and answers given by said witness, including papers and recordings [385] and all statements heretofore made by any counsel, or by the Court, in connection with said witness"; instructed the jury to disregard such evidence; and entered a verdict of acquittal on the kidnaping charge for the stated reason that "the evidence now before the Court is insufficient to sustain a conviction of such offense."
In light of several considerations (the trial court's order striking the Ross testimony to the grand jury, its admonition to the trial jury to disregard it, its order acquitting defendant of the Ross kidnaping, and the degree of the jury's verdict on the homicide charge), it is questionable whether the reading of the grand jury testimony was prejudicial error. It was, however, error which should not recur if defendant is retried.[18] (12) Because of Ross's inability or refusal to recall his testimony to the grand jury, the defense had no opportunity to cross-examine him concerning that testimony. The reading thereof to the trial jury, consequently, operated to violate defendant's Sixth Amendment right of confrontation. (U.S. Const., 6th Amend.; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074]; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) (13) Nor can the action be justified as impeachment. A party's right to impeach his own witness (Evid. Code, §§ 785, 780 [subd. (h)], 769, 770) is not available where, as here, the witness has not testified against the impeaching party at all: "there is nothing to counteract," and the prior statement emerges as substantive evidence of the facts asserted in it. (People v. Newson (1951) 37 Cal.2d 34, 41 [230 P.2d 618].)
[386]
The Prior Felony Conviction
As charged in the indictment and found by the jury, defendant was convicted of a felony (assault with a deadly weapon) in 1964. He represented himself at the 1964 trial. The conviction was affirmed by this court in an unpublished decision filed in 1965 (People v. Newton (1965) 1 Crim. 4908 [certified for nonpublication]); the Supreme Court denied defendant's petition for hearing. During jury voir dire in the present prosecution, defendant moved to strike the prior conviction from the indictment, and for a protective order forbidding its "mention" at the murder trial, upon the Sixth Amendment ground that his waiver of counsel in the 1964 proceedings had been ineffective. The trial court read into the record the full appellate court decision in which the prior conviction was affirmed in 1965; stated that the appellate court had therein considered all of defendant's current contentions; and denied his motion without an evidentiary hearing.
(14) Where a prior conviction is constitutionally invalid because the accused was deprived of his Sixth Amendment right to counsel or did not effectively waive it, utilization of the conviction in a subsequent prosecution to support his guilt, enhance his punishment, or impeach his testimonial credibility, is constitutional error. (Burgett v. Texas (1967) 389 U.S. 109, 114-116 [19 L.Ed.2d 319, 324-326, 88 S.Ct. 258]; People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal. Rptr. 457, 430 P.2d 15].) When he raises the issue in the subsequent prosecution by moving to strike the prior or by denying it (upon constitutional grounds in either instance), the trial court must hold a hearing outside the presence of the jury and make a relevant finding based upon evidence there presented. (People v. Coffey, supra, at pp. 217-218.) The required hearing must be conducted even if the issue arises during the trial, so long as the objection is asserted before the case is submitted to the jury. (People v. Curtis (1969) 70 Cal.2d 347, 359-361 [74 Cal. Rptr. 713, 450 P.2d 33].)
The People contend that defendant's motion to strike was invalid on procedural and formal grounds. We need not here set forth the details of the motion as challenged by the Attorney General in this regard; they are intricate, and are unlikely to recur if defendant again mounts a constitutional attack upon the 1964 conviction. It suffices to say that we reject the Attorney General's procedural and formal objections to the motion, and that, fairly read with the declaration by counsel which was filed in support thereof, the motion unmistakably advanced the claim that the 1964 trial court had permitted defendant to represent himself at the assault trial without inquiring into his ability to do so. (15) Recent decisions establish [387] that such inquiry is required before a waiver of counsel can be accepted by a trial court. (E.g., People v. Carter (1967) 66 Cal.2d 666, 672 [58 Cal. Rptr. 614, 427 P.2d 214]; People v. Armstrong (1969) 274 Cal. App.2d 297, 303 [79 Cal. Rptr. 223].) While defendant's motion and its supporting declaration were drafted inartfully and in obvious haste, they presented a reasonably "clear allegation" by defendant "to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented." (Original italics.) (People v. Coffey, supra, 67 Cal.2d 204 at p. 215 [quoting People v. Merriam (1967) 66 Cal.2d 390, 397 (58 Cal. Rptr. 1, 426 P.2d 161)].)
The People also argue that defendant's Sixth Amendment point, as addressed to the 1964 conviction, was resolved against him on the 1965 appeal. We disagree: the 1965 decision noted that he had waived counsel by insisting upon representing himself at the assault trial, but the point now advanced — that his waiver of counsel was ineffective for lack of an appropriate inquiry by the trial court in 1964 — was neither raised nor resolved on the former appeal. (16) As the right to assistance of counsel at the former trial "applies retrospectively without regard to time" (People v. Coffey, supra, 67 Cal.2d 204 at p. 214) for purposes of the present case, the trial court erred in failing to conduct an evidentiary hearing upon defendant's motion to strike. (Id., at pp. 214-218.)
(17) In the motion, defendant also attacked the prior conviction upon the Fifth Amendment ground that the 1964 trial court permitted him to testify (he being unrepresented by counsel) without advising him of his right not to do so. (See People v. Wells (1968) 261 Cal. App.2d 468, 481 [68 Cal. Rptr. 400]; People v. Glaser (1965) 238 Cal. App.2d 819, 828-829 [48 Cal. Rptr. 427].) Because of the inadequacy of defendant's showing, on the motion, that he was unaware of his right not to testify at the 1964 trial (see People v. Glaser, supra, at pp. 832-833), we perceive no error in the trial court's denial of his motion with respect to his Fifth Amendment point. (We do not hold as the law of the case that he is precluded from asserting the point again. The problem may not present itself; a ruling by the trial court on his Sixth Amendment point may render it moot.)
Defendant has made certain other contentions which warrant discussion because of the prospect that his prosecution will continue. First among these are his arguments challenging the validity of his indictment by the grand jury and the manner in which the trial jury was selected. (He raised both questions with pretrial motions, which the trial court denied.)
[388]
The Validity of Defendant's Indictment
(18) Contrary to defendant's first several contentions relative to his indictment by the grand jury, we hold as follows: (1) The laws of this state which permit a prosecutor to proceed against an accused by way of either information or grand jury indictment, at the prosecutor's option (Cal. Const., art. I, § 8; Pen. Code, §§ 682, 737), are constitutional. (People v. Flores (1969) 276 Cal. App.2d 61, 65-66 [81 Cal. Rptr. 197].) (19) (2) Defendant was not, by reason of the grand jury proceedings which produced his indictment, unconstitutionally denied the procedural rights which would have been available to him at a preliminary examination. (People v. Flores, supra.) (20) (3) The California statutes controlling the selection of grand jurors (Pen. Code, § 894 et seq.) are constitutional. (Turner v. Fouche (1970) 396 U.S. 346, 353-355 [24 L.Ed.2d 567, 575-576, 90 S.Ct. 532]; Carter v. Jury Commission (1970) 396 U.S. 320, 329-337 [24 L.Ed.2d 549, 557-561, 90 S.Ct. 518]; Smith v. Texas (1940) 311 U.S. 128, 130-131 [85 L.Ed. 84, 86-87, 61 S.Ct. 164].)
Grand Jury Selection
Defendant next contends that the above-cited grand jury selection statutes, as applied in Alameda County, resulted in unconstitutional discrimination against young persons, low income groups and black persons.[19] According to the evidence produced upon his pretrial motion in this regard, the membership of the grand jury which indicted him was drawn from among persons who had been nominated to the grand jury by each of the county's 20 superior court judges. (Pen. Code, § 903.4.) The presiding judge of the superior court (for 1967) testified that he had selected his three nominees from among his personal acquaintances. There was no evidence of the selection practices followed by other judges in connection with the 1967, or any other, grand jury.
(21) The constitutional standards controlling the selection of grand jurors are the same as for petit jurors. (Pierre v. Lousiana (1939) 306 U.S. 354, 362 [83 L.Ed. 757, 762, 59 S.Ct. 536].) (22) They must be selected in a manner which does not systematically exclude, or substantially underrepresent, the members of any identifiable group in the community. (Whitus v. Georgia (1967) 385 U.S. 545, 548-552 [17 L.Ed.2d 599, 602-605, 87 S.Ct. 643] Hernandez v. Texas (1954) 347 U.S. 475, 476-478 [389] [98 L.Ed. 866, 869-870, 74 S.Ct. 667]; People v. White (1954) 43 Cal.2d 740, 749-753 [278 P.2d 9]). (23) Such "purposeful discrimination," however, "may not be assumed or merely asserted"; it must be proved (Swain v. Alabama (1965) 380 U.S. 202, 205 [13 L.Ed.2d 759, 764, 85 S.Ct. 824]), and defendant bore the burden of making a prima facie case that it existed here. (Whitus v. Georgia, supra, at p. 550 [17 L.Ed.2d at pp. 603-604].) He presented to the trial court little or no evidence concerning the racial composition of any Alameda County grand jury or grand jury panel. He showed a breakdown of certain grand jurors according to their occupations, but this does not demonstrate "purposeful discrimination" against poor people or anyone else. (See Fay v. New York (1947) 332 U.S. 261, 273-277 [91 L.Ed. 2043, 2052-2054, 67 S.Ct. 1613].) There was some evidence to the effect that all or most of the members of the 1967 grand jury (which indicted him) were middle-aged persons; again, however, systematic exclusion of the young is not shown. Defendant having failed to make a prima facie case that the 1967 grand jury was constitutionally infirm in any respect pertaining to its selection, he cannot challenge the validity of the indictment upon the ground asserted.
Petit Jury Selection
Defendant contends that the trial jury panel, and the jury itself, were unconstitutionally selected. While we need not consider his arguments relating to administrative excuses from jury service, challenges for cause, and peremptory challenges, we discuss those points which will be relevant in the event of retrial. The first is addressed to the fact that the names of the prospective trial jurors were drawn from the latest Alameda County voter registration lists, at random but from no other source.
On defendant's pretrial motion attacking the venire, his witnesses testified that the selection of jurors exclusively from voter lists results in underrepresentation of poor persons and black persons on juries, because such people are less likely to be registered voters. According to defendant's statistics, the voter registration rate in the predominantly black-populated areas of West Oakland, South Oakland and South Berkeley (all of which are in Alameda County) is 64.7 percent, whereas the countywide rate is 82 percent. One of his witnesses testified that black persons constitute about 7.5 percent of jury panels when voter registration lists are the sole source of prospective jurors' names. Black persons constitute 12.4 percent of Alameda County's population.
(24) As registration to vote is not a condition of eligibility for jury service in this state (see Code Civ. Proc., §§ 198, 199), the county's discretion to use voter registration lists as the source of jurors is subject to the constitutional requirement that juries must reasonably reflect a cross-section [390] of the community. (Smith v. Texas, supra, 311 U.S. 128 at p. 130 [85 L.Ed. 84 at p. 86]; People v. White, supra, 43 Cal.2d 740 at p. 749.) (25) While each jury roll or venire need not be a perfect mirror of the community (Swain v. Alabama, supra, 380 U.S. 202 at p. 208 [13 L.Ed.2d 759 at p. 766]; People v. White, supra), any substantial disparity, over a period of time, between a group's percentage thereon and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Turner v. Fouche, supra, 396 U.S. 346 at p. 360 [24 L.Ed.2d 567 at p. 579]; Whitus v. Georgia, supra, 385 U.S. 545 at pp. 550-552 [17 L.Ed.2d 599 at pp. 603-605].) The disparity claimed in the present case, however (7.5 percent versus 12.4 percent) is not so substantial as to produce this result. (Swain v. Alabama, supra, at pp. 205, 209 [13 L.Ed.2d at pp. 764, 766] (10-15 percent vs. 26 percent). Compare Turner v. Fouche, supra (37 percent vs. 60 percent); Sims v. Georgia (1967) 389 U.S. 404, 407 [19 L.Ed.2d 634, 637, 88 S.Ct. 523] (4.7-9.8 percent vs. 24.4 percent); Whitus v. Georgia, supra, 385 U.S. 545, 550-552 [17 L.Ed.2d 599, 603-605] (7.8-9.1 percent vs. 27.1 percent). See Kuhn, Jury Discrimination (1968) 41 So.Cal.L.Rev. 235, 251-257 and data cited passim.)
The record does not sustain defendant's contention that black persons were underrepresented on the trial jury panel; of the 160 prospective jurors examined, about 13 percent were black persons.[20] He presented no evidence of the economic status of any of the panel members to support his charge that poor persons were excluded from, or substantially underrepresented on, the panel. On the showing made, we cannot conclude that unconstitutional discrimination, on racial or economic grounds, occurred in the selection of prospective jurors.
(26) We also reject defendant's argument that, because of the nature of the case (involving a fatal altercation between a black defendant and white police officers), he was entitled to have at least one resident of West Oakland (described as a "black ghetto") serve on his trial jury.[21] (27) "Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances [391] of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. (Citation.)" Hoyt v. Florida (1961) 368 U.S. 57, 59 [7 L.Ed.2d 118, 120-121, 82 S.Ct. 159].)
Certain claims of trial error should also be mentioned. (28, 29) Contrary to defendant's contention as to each point, we hold as follows: (1) The trial court did not err in instructing the jury on flight and motive. The evidence supported the instructions given, and defendant's proposed modifications of the standard instructions on these subjects were properly refused because they emphasized specific evidence. (People v. Hughes (1951) 107 Cal. App.2d 487, 494 [237 P.2d 64]; Witkin, Cal. Criminal Procedure, op. cit., supra, § 477, pp. 484-485.) (2) Defendant's requested instruction on unlawful detention was also properly refused. (30) Unlawful detention by a police officer does not justify unlawful resistance thereto. (Pen. Code, § 834a; People v. Curtis (1969) 70 Cal.2d 347, 352 [74 Cal. Rptr. 713, 450 P.2d 33].)
(3) The trial court did not err in excluding the proffered testimony of defense witnesses Burton, Quinones, Daniels, Harris and Brown. (31) Burton's testimony, offered to prove past mistreatment of black persons by Officer Frey (a subject upon which the trial court gave the defense considerable latitude), was not probative on that subject and was cumulative to the testimony of other defense witnesses. (32) Quinones' testimony would have been to the effect that police officers harassed defendant at the hospital after the shootings; that of the other three, that the prosecution had offered to pay for information concerning this case. Neither subject was relevant.
(33) (4) The trial court did not unduly restrict the voir dire of prospective jurors concerning their racial attitudes. The record shows that the defense was given full latitude in asking questions pertaining to possible racial bias and their knowledge and viewpoints on such matters as the "Black Panther Party," fair housing, "black power" and various political and other organizations.
Other points raised on the appeal need not be discussed.
The judgment of conviction is reversed.
Devine, P.J., and Christian, J., concurred.
On June 26, 1970, the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970. McComb, J., was of the opinion that the petition should be granted.
[1] "PIN" means "Police Information Network," a computerized system which stores and reports information concerning outstanding warrants associated with identified motor vehicles.
[2] Although Officer Heanes' testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened, it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated that he fired at defendant's "midsection," and from a kneeling position, before he heard the "other gunshots" mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the "other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself shot again twice, during the episode described. He did not remember these events. and testified that he "blacked out," and had a "lapse of memory," after he was shot in the arm.
[3] Grier expressly testified to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell," and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.
[4] A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.
[5] On diminished capacity, defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised), 310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC; the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions — Criminal) as supplemented through its 1967 cumulative pocket part.
[6] Defendant's formal list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests was shown to have been "Withdrawn."
[7] CALJIC 308-A (Rev.) ("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"), 305-AA (New) and 311-B.
[8] The court gave the two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]); and
"If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." (CALJIC 305.1 [New].)
(We mention in passing that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)
[9] Defendant's testimony suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's) clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e., that Heanes. struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that he shot defendant (in the "midsection") before Officer Frey was shot by anyone.
[10] As was true of Officer Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.
[11] Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: ... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)
[12] CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime...." (Italics added.)
[13] The jurors deliberated for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter, provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual request — which was apparently in writing — does not appear of record, but the trial judge recalled it at a post-judgment hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.
It also bears mentioning that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.
[14] We refer to the court's statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B (on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn, because we are giving 73-B ..."
[15] The record is deficient, of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears, and it should not have occurred in this particular — and highly important — instance. (See Code Civ. Proc., § 269.)
[16] Because the conference in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of record are defense counsel's affirmative — and laconic — answers to the trial court's inquiries during the successive dialogs quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses.
[17] The Attorney General disputes the fact stated here, but he does so within the broader context of defendant's contention, on the appeal, that the prosecution's conduct in connection with Grier and his pretrial statement amounted to suppression of evidence. Defendant's contention involves the progression and effect of several pretrial motions and orders dealing with defense discovery; it was presented to the trial court, which rejected it; and, having examined it on the appeal, we conclude that no error appears in this regard. In all events, the footnoted statement stands.
[18] We have in mind the fact that, while the grand jury testimony of Ross no longer bears upon the kidnaping charge of which defendant was acquitted, it remains relevant to the homicide charge upon which he will presumably be retried.
[19] Defendant is a black person.
[20] Defendant points out that the number of prospective jurors examined does not produce a definitive percentage as stated here, because there were others on the panel; consequently, he argues. the actual percentage of black persons on the full panel cannot be determined. The percentage stated here, however, is the only figure supported by the record he was obligated to make.
[21] One black man, not a resident of West Oakland, served on the jury.
7.2.6.2.2.4 II.B.i Acts v. Omissions 7.2.6.2.2.4 II.B.i Acts v. Omissions
When is not acting an act? One of the most fraught distinctions in criminal law has been the act/omission distinction. For most people, punishing inaction in certain situations seems to flow naturally out of the sense of blameworthiness that underpins much of criminal law. However, defining the criminal act when it is not an act raises problems. As a general rule, there is no criminal liability for omissions. The following cases and readings consider the exceptions to this rule, whether they arise from statutorily created duties, special moral relationships, contractual relationships, or the voluntary assumption of responsibilities. As you will see, in some cases, criminalizing omissions likely tracks your moral intuitions. In others, you may feel more conflicted. Consider why different scenarios imply different levels of blameworthiness, but also what goals or behaviors society may seek to promote by assigning affirmative duties to act.
7.2.6.2.2.4.1 Pope v. State 7.2.6.2.2.4.1 Pope v. State
JOYCE LILLIAN POPE
v.
STATE OF MARYLAND
Court of Appeals of Maryland.
[311] The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.
George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.
Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
ORTH, J., delivered the opinion of the Court. ELDRIDGE, J., filed an opinion concurring in part and dissenting in part at page 354 infra.
Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th [312] counts of a nine count indictment, no. 18666. The 3rd count charged child abuse, presenting that "on or about April 11, 1976,... while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland...." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and wilfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished...."[1]
On direct appeal the Court of Special Appeals reversed the judgment entered on the child abuse conviction and affirmed the judgment entered on the misprision of felony conviction.[2] Pope v. State, 38 Md. App. 520, 382 A.2d 880 (1978). We granted Pope's petition and the State's cross-petition for a writ of certiorari. We affirm the judgment of the Court of Special Appeals with respect to the 3rd count, child abuse. We reverse the judgment of the Court of Special Appeals with [313] respect to the 5th count, misprision of felony. We remand to that court with direction to remand to the Circuit Court for Montgomery County for the entry of a judgment of acquittal on the third count and dismissal of the fifth count.
ISSUES FOR DECISION
I. The sufficiency of the evidence to sustain the conviction of Pope of the crime of child abuse as (1) a principal in the first degree, or (2) a principal in the second degree.
II. The status in Maryland of the crime of misprision of felony.
THE EVIDENCE
The evidence adduced at the trial[3] established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris.[4] The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about [314] her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope, 38 Md. App. at 531. Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. That evening Pope cleaned and dried the baby and inquired of Melissa about a bad rash he had. Melissa slept in Pope's bedroom. Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep ... I'll be up, I'll just stay up, I'll watch the baby...." She explained in her testimony: "And I don't know why it was just, just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and fixed a bed for it in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up. She could not sleep while Melissa was there.
The next morning, awakened by the crying of the child, Pope fed him. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God.... I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God, looking wild, speaking loudly, preaching and giving orders. Melissa and the baby returned to Pope's home. Melissa put the child in bed with her, but Pope thought it better that the child not remain there. She was afraid Melissa would roll over and "smother it to death." She told Melissa: "I'll just take the baby in [the living room] ... I'll watch it, I'll get up and feed it... I don't mind." The next morning, Sunday, at about 4:30 o'clock, Pope prepared the baby's bottle and fed him. When Melissa got up, Pope suggested that she go back to bed. Melissa behaved [315] normally for awhile. Then her "episodes of `changing to God' became more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of [Pope's] son, and fearful that by breaking in Melissa would frighten him, [Pope] unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa `anointed' [Pope's] son with oil, placing some of the oil in the child's mouth. She subsequently repeated the process with [Pope's] daughter. When dressed, [Pope's] children left the house expeditiously, lingering only long enough to embrace their mother." Pope, 38 Md. App. at 531.
During a lucid period, Melissa prepared to go to church. She got a tub of water to bathe the baby. What next occurred is graphically described in the opinion of the Court of Special Appeals:
"Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to `God.' Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag." Id.
Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you [316] handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the `unbelievable' and `horrible' thing that was happening."
Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened — "I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby...." She locked the door at Angela's direction so Angela's children would stay in the yard with Pope's children. Angela wrapped the child in a towel, raised him over her head and prayed.
Pope, Melissa and Angela left with the child to go to church. At Melissa's request they stopped by her grandfather's house, arriving about 2:00 p.m. Pope told him the child was dead, but he did not believe her because all three were acting so strangely. He refused to take or look at the baby. The three women with the child went to Bel Pre Health Center, picked up another member of the Christian Tabernacle congregation, telling her that "God has a job for you to do," and proceeded to the church. En route, they passed several hospitals, police stations and rescue squads. At the church, the child was given to, or taken by the Reverend Leon Hart, who handed him to Mother Dorothy King for her prayers. She discovered that the baby's body was cool and sent for ambulance assistance. Police and rescue personnel arrived and determined that the child was dead. There was expert medical testimony that the child had died sometime during the period of fifteen minutes to several hours after it was injured. The medical expert expressed no opinion as to whether the child could have been successfully treated if the injury had been reported sooner.
The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."
Pope, Melissa and Angela attended the evening service at the church. Melissa reverted to God during the service and [317] Reverend Hart restrained her and attempted to convince her that she was not Jesus Christ. Melissa refused to go to her grandfather's home and returned home with Pope. The next morning Pope was again interviewed at the police station and wrote a full explanation of what had happened. She later made an oral statement which was recorded.
I
THE CRIME OF CHILD ABUSE
The Statute
The General Assembly first evidenced its concern with the mistreatment of children fifteen years ago when it added § 11A to Art. 27 of the Maryland Code,[5] later codified as § 35A of that article,[6] declaring an assault on a child to be a felony. The statute in its entirety provided:
"Any parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary."
The Legislature's increasing interest in child abuse is reflected in the amendment from time to time of the seminal statute.[7] The result is a comprehensive scheme to fulfill the legislative intent and purpose, expressed in 1973,[8] as "the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse, by extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing [318] immediate, cooperative efforts by the responsible agencies on behalf of such children." Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 35A. All of these were, of course, imposed over the felonious crime of child abuse. See subsections (a) through (j).
The Nature of Child Abuse
As we have seen, when the crime was first created by the General Assembly it comprised the malicious beating, striking or otherwise mistreating a child to such degree as to require medical treatment. We pointed out in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976), that by the terms of the enactment it did not reach acts "not constituting, in one form or another, an assault on a child." Id. at 423. Acts 1973, ch. 835 repealed the "maliciously beats, strikes or otherwise mistreats" test of child abuse and substituted in its place a new and different measure of the offense. The 1973 amendment added a definition subsection to § 35A. Subsection (b) 7 provided that whenever "abuse" was used in § 35A, it shall mean "any physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts...." Acts 1974, ch. 554 designated this meaning as item (A) of ¶ 7 and expanded the definition of child abuse by adding item (B) so as to include in the offense "any sexual abuse of a child, whether physical injuries are sustained or not." The amendment also added ¶ 8 defining "sexual abuse" to mean "any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on a child...." Acts 1977, ch. 290, substituted "or sexual offense in any degree" for "carnal knowledge" in ¶ 8.[9]
We considered the scope of item A, subsection (b)7 in Fabritz. Applying the rules of statutory construction, 276 Md. [319] at 421-423, we thought "it evident that the Legislature plainly intended to broaden the area of proscribed conduct punishable in child abuse cases." Id. at 423-424. We said:
"Its use in the amended version of § 35A of the comprehensive phraseology `who causes abuse to' a minor child, coupled with its broad two-pronged definition of the term `abuse,' supports the view that the Legislature, by repealing the narrow measure of criminality in child abuse cases then provided in § 35A, and redefining the offense, undertook to effect a significant change of substance in the scope of the statute's prohibitions. In making it an offense for a person having custody of a minor child to `cause' the child to suffer a `physical injury,' the Legislature did not require that the injury result from a physical assault upon the child or from any physical force initially applied by the accused individual; it provided instead, in a more encompassing manner, that the offense was committed if physical injury to the child resulted either from a course of conduct constituting `cruel or inhumane treatment' or by `malicious act or acts.'" Id. at 424.
We found that the failure of the mother to seek or obtain any medical assistance for her child, although the need therefor was obviously compelling and urgent, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child by reason of the original assault by another. The act of omission by the mother "constituted a cause of the further progression and worsening of the injuries which led to [the child's] death; and that in these circumstances [the mother's] treatment of [the child] was `cruel or inhumane' within the meaning of the statute and as those terms are commonly understood." Id. at 425-426. We therefore vacated the judgment of the Court of Special Appeals, which in Fabritz v. State, 24 Md. App. 708, 332 A.2d 324 (1975), had [320] reversed the judgment of the trial court entered upon the conviction of the mother of child abuse.[10]
Responsibility for Abuse of a Child
In Fabritz we went no farther than to determine that the Legislature intended that the "cause" of an injury may include an act of omission so as to constitute cruel or inhumane treatment, in that case the failure of the mother to seek or obtain medical assistance for her child who had been abused by another. Fabritz did not go to the class of persons to whom the statutory proscription applies, as the accused there was a "parent," the victim's mother, expressly designated in the statute.
[321] We have seen that the statute as originally enacted concerned "[a]ny parent, adoptive parent or other person, who has the permanent or temporary care or custody of a minor child...." Acts 1963, ch. 743. This has been once amended to bring within the ambit of the statute any person who has "responsibility for the supervision of a minor child." Acts 1966, ch. 221. Thus, since 1 June 1966,
"[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years[[11]] who causes abuse to such minor child shall be guilty of a felony...." § 35A(a).
Persons subject to the statute are designated in those terms also in subsection (b) 7 (A) defining abuse and in subsection (b)8 defining sexual abuse.
In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we discussed the class of persons to whom § 35A applies, in rejecting the contention that the statute was vague and therefore constitutionally defective for the reason that it failed to define adequately that class. Bowers urged that the statute was too indefinite to inform a person who is not a parent or adoptive parent of a child whether he comes within the ambit of the statute. He argued that no one in such position is capable of ascertaining whether the statute is aimed only at persons who have been awarded custody by judicial decree or includes also those who may simply be caring for a child in place of the parent. We were of the view that the General Assembly intended that the statute apply to persons who stand in loco parentis to a child. We said: "Had the Legislature wished to narrow application of the child abuse law to those who had been awarded custody or control by court order, it could readily have done so in explicit language to that end." Id. at 130. We observed that Bowers' "own testimony amply established that he had assumed `the care or [322] custody or responsibility for the supervision' of his step-daughter, and thus stood in loco parentis with respect to her." Id.
Bowers' challenge centered on the "temporary care or custody" provision of the statute. It does not follow from our holding that "permanent or temporary care or custody" is synonymous with "responsibility for the supervision of." Such was clearly not the legislative intent, because, as we have seen, the latter provision was added by amendment three years after the former had been written into the law. There would have been no need to do so had the Legislature deemed the two provisions to have the same meaning.
The child abuse statute speaks in terms of a person who "has" responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what "responsibility" and "supervision" encompass. A doubt or ambiguity exists as to the exact reach of the statute's provision with respect to "has responsibility for the supervision of," justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature. See Fabritz at 423; Clerk v. Chesapeake Beach Park, 251 Md. 657, 663-664, 248 A.2d 479 (1968); Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555 (1966). Bowers equates "permanent or temporary care or custody" with "in loco parentis," but "responsibility for the supervision of" is not bound by certain of the strictures required for one to stand in place of or instead of the parent. A person in loco parentis is "charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary (4th ed. 1951). "A person in loco parentis to a child is one who means to put himself in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child. Or, as defined by Sir Wm. Grant, Master of the Rolls, a person in loco parentis is one, `assuming the parental character and discharging parental duties.' Weatherby v. Dixon, 19 Ves. 412.... There must be some indication, in some form, of an intention to establish it. It is a question of intention." Von der Horst v. Von der Horst, 88 Md. 127, 130-131, 41 A. 124 (1898).
[323] "The term `in loco parentis,' according to its generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties. Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850 (1947).
"This relationship involves more than a duty to aid and assist, more than a feeling of kindness, affection or generosity. It arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child." Fuller v. Fuller, 247 A.2d 767 (D.C. 1968), appeal denied, 418 F.2d 1189 (1969).
A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child. "Responsibility" in its common and generally accepted meaning denotes "accountability," and "supervision" emphasizes broad authority to oversee with the powers of direction and decision. See American Heritage Dictionary of the English Language (1969); Webster's Third New International Dictionary (1968). As in the case of care or custody of a minor child under the child abuse law, a judicial decree is not necessary to obtain responsibility for the supervision of a minor child under that statute. Had the Legislature wished to narrow application of that law to those who had been charged with responsibility for the supervision of a child by court order, it could readily have done so in explicit language to that end. See Bowers, 283 Md. at 130. Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose [324] responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. So it is that a baby sitter temporarily has responsibility for the supervision of a child; the parents grant the responsibility for the period they are not at home, and the sitter accepts it. And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties. On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.
Under the present state of our law, a person has no legal obligation to care for or look after the welfare of a stranger, adult or child.
"Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself.... A moral duty to take affirmative action is not enough to impose a legal duty to do so." W. LaFave & A. Scott, Criminal Law 183 (1972).
See Clark & Marshall, A Treatise on the Law of Crimes § 10.02 (7th ed. 1967). The legal position is that "the need of one and the opportunity of another to be of assistance are not alone sufficient to give rise to a legal duty to take positive action." R. Perkins, Criminal Law 594-595 (2d ed. 1969). Ordinarily, a person may stand by with impunity and watch another being murdered, raped, robbed, assaulted or otherwise unlawfully harmed. "He need not shout a warning to a blind man headed for a precipice or to an absentminded one walking into a gunpowder room with a lighted candle in [325] hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning, or the whistle of an approaching train is heard in the distance." LaFave & Scott at 183. The General Assembly has enacted two "Good Samaritan" statutes which afford protection to one who assists another in certain circumstances. Those statutes, however, impose no requirement that assistance be rendered.[12]
In the face of this status of the law we cannot reasonably conclude that the Legislature, in bringing a person responsible for the supervision of a child within the ambit of the child abuse law, intended that such responsibility attach without the consent criteria we have set out. Were it otherwise, the consequences would go far beyond the legislative intent. For example, a person taking a lost child into his home to attempt to find its parents could be said to be responsible for that child's supervision. Or a person who allows his neighbor's children to play in his yard, keeping a watchful eye on their activities to prevent them from falling into harm, could be held responsible for the children's supervision. Or a person performing functions of a maternal nature from concern for the welfare, comfort or health of a child, or protecting it from danger because of a sense of moral obligation, may come within the reach of the act. In none of these situations would there be an intent to grant or assume the responsibility contemplated by the child abuse statute, and it would be incongruous indeed to subject such persons to possible criminal prosecution.
[326]
The Sufficiency of the Evidence
The trial court found Pope guilty of the crime of child abuse as a principal in the first degree, and alternatively, as a principal in the second degree. A principal in the first degree is the one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission. See Camphor v. State, 233 Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A.2d 171 (1961); Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284 (1967); 4 W. Blackstone, Commentaries [*]34; Clark & Marshall, A Treatise on the Law of Crimes §§ 8.01-8.02 (7th ed. 1967); L. Hochheimer, Crimes and Criminal Procedure §§ 31-32 (1st ed. 1897); R. Perkins, Criminal Law 656 and 658 (2d ed. 1969).[13]
In convicting Pope, the trial court was "satisfied beyond a reasonable doubt that under the doctrine of [Fabritz] ..., [she] is a principal [in the first degree] and is guilty of child abuse." It further held, however: "If this interpretation of Fabritz is in error, then [Pope] is guilty as a principal in the second degree." On direct appeal, the Court of Special [327] Appeals applied Maryland Rule 1086 and set aside the judgment. The rule provides that when a criminal case is tried without the intervention of a jury, the Court of Special Appeals shall review both the law and the evidence but "the judgment of the [trial] court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." The appellate court's function "is merely to decide whether there was sufficient evidence, or proper inferences from the evidence, from which the trier of fact could properly draw the conclusion of the [accused's] guilt, beyond a reasonable doubt." Brooks v. State, 277 Md. 155, 161-162, 353 A.2d 217 (1976), and cases therein cited. The trial court, as the trier of facts, is not only the judge of the witness's credibility, but is also the judge of the weight to be attached to the evidence. Id. The Court of Special Appeals determined that the evidence was not legally sufficient to sustain the conviction of Pope either as a principal in the first degree or a principal in the second degree. The evidence was deficient with regard to her being a principal in the first degree in that it was not sufficient for the trier of fact to find beyond a reasonable doubt that she was within the class of persons subject to the prohibitions of the child abuse statute. Thus, the teaching of Fabritz regarding "causing abuse" was in no event applicable. Pope v. State, 38 Md. App. at 538. It was deficient with regard to her being a principal in the second degree because, despite her presence during the commission of the felony, it was not sufficient for the trier of fact to conclude that she aided and abetted the actual perpetrator. Therefore, the judgment of the trial court on the evidence was clearly erroneous and had to be set aside. Id. at 539-541.
As did the Court of Special Appeals, we find evidentiary insufficiency with respect to the conviction of Pope of child abuse, both as a principal in the first degree and as a principal in the second degree, so that the judgment of the trial court on the evidence was clearly erroneous. We, therefore, affirm the judgment of the Court of Special Appeals. We explain why we find that the evidence was legally insufficient.
[328]
Principal in the First Degree
As we have indicated, a person may be convicted of the felony of child abuse created by § 35A as a principal in the first degree upon evidence legally sufficient to establish that the person
(1) was
(a) the parent of, or
(b) the adoptive parent of, or
(c) in loco parentis to, or
(d) responsible for the supervision of
a minor child under the age of eighteen years, AND
(2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of
(a) physical injury or injuries sustained by the child as the result of
i) cruel or inhumane treatment, or
ii) malicious act or acts by such person, or
(b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.
Under the teaching of Fabritz, Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefor was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. See Fabritz, 276 Md. at 425-426. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear [329] that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child as that status was construed in Bowers v. State, supra, so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.
The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present.[14] Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." Pope, 38 Md. App. at 538. It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take [330] affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.
The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." Pope, 38 Md. App. at 532. The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." Pope, 38 Md. App. at 538. We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus it is that the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.
The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if [331] that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.[15]
Principal in the Second Degree
Pope was actually present when the felony was committed, but, we have determined, she was not a perpetrating actor. She would be a principal in the second degree if she aided or abetted in the commission of the crime. The principal in the second degree differs from the principal in the first degree in that he does not do the deed himself or through an innocent agent but in some way participates in the commission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator.[16] R. Perkins, Criminal Law 658-659 (2d ed. 1969); Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Unless he contributed actual aid it is necessary that his approval should be manifested by some word or act in such a way that it operated on the mind of the perpetrator. Even the secret acquiescence or approval of the bystander is not sufficient to taint him with the guilt of the crime. "Counsel, command or encouragement may be in the form of words or gestures. Such a purpose `may be manifested by acts, words, signs, motions, or any conduct [332] which unmistakably evinces a design to encourage, incite, or approve of the crime.' Promises or threats are very effective for this purpose, but much less will meet the legal requirement, as where a bystander merely emboldened the perpetrator to kill the deceased.... One may also encourage a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary, provided the latter is aware of this purpose. Guilt or innocence of the abettor ... is not determined by the quantum of his advice or encouragement. If it is rendered to induce another to commit the crime and actually has this effect, no more is required." Perkins at 659. "To be guilty as a principal in the second degree, a criminal intent is necessary." Clark & Marshall § 8.02. "Aid or encouragement to another who is actually perpetrating a felony will not make the aider or encourager guilty of the crime if it is rendered without mens rea. It is without mens rea if the giver does not know or have reason to know of the criminal intention of the other.... In general it is the abettor's state of mind rather than the state of mind of the perpetrator which determines the abettor's guilt or innocence.... `[I]ntention' includes not only the purpose in mind but also such results as are known to be substantially certain to follow." Perkins at 662-663.
When the evidence here is viewed in the light of these criteria, it is patent that it was not legally sufficient to prove that Pope was a principal in the second degree. She neither actually aided the mother in the acts of abuse nor did she counsel, command or encourage her. The Court of Special Appeals pointed out the facts relied on by the trial court — that the events took place in Pope's home, that Pope responded to the commands of the mother, namely that she looked when told to look and came when called, that she voluntarily opened the door to her son's room so Melissa could reach him, and that she failed to interfere or question the mother's activity, even when the mother appeared rational — were simply not enough to meet the test. Pope, 38 Md. App. at 538-541.
The State concludes the argument in its brief:
"As is obvious from the evidence presented in this [333] case, [Pope] witnessed a terrible event. She stood by while Melissa Norris killed her three-month old son. [Pope's] conduct during the beating ... should be held to be culpable."
The evidence certainly showed that Pope "witnessed a terrible event" and that she "stood by" while the mother killed the child. But the culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred, intensified by the fact that the mother, who actually beat the child to death, was held to be not responsible for her criminal acts. But it is the law, not indignation, which governs. The law requires that Pope's conviction of the felony of child abuse be set aside as clearly erroneous due to evidentiary insufficiency.
II
THE CRIME OF MISPRISION OF FELONY
As we have indicated, a person may be convicted of a felony upon proof establishing that he committed the offense as a perpetrating actor (principal in the first degree), or that, being actually or constructively present, he did not himself commit the offense but aided and abetted in the commission of it (principal in the second degree). "`If he be present,' said Sir Matthew Hale, `and not aiding or abetting to the felony, he is neither principal nor accessory. If A and B be fighting and C, a man of full age, comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide, as principal in the second degree, but is a misprision, for which he shall be fined, unless he use means to apprehend the felon.'"[17] In the case before us, both the [334] trial court and the Court of Special Appeals believed that the misdemeanor of misprision of felony exists in Maryland today. The Court of Special Appeals expressly held "that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights.[18] It rejected the contention that the crime "has become obsolete or abandoned by disuse" as "without merit." Pope, 38 Md. App. at 527.[19]
There is no Maryland legislative enactment which is declarative of the common law crime of misprision of felony or which may be deemed to have created a comparable offense. Therefore, if misprision of felony is a crime in this State, it is only because it was part of the common law of England to which the inhabitants of Maryland were constitutionally entitled and has survived to the present time.
We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. In determining the question, we look first to what misprision of felony is. According to Blackstone, the crime at common law consisted merely in the "concealment of a felony which a man knows, but never assented to; for if he assented this makes him either principal or accessory." 4 W. Blackstone, Commentaries [*]121. See Clark & Marshall, A Treatise on the Law of Crimes § 8.14 (7th ed. 1967); R. Perkins, Criminal Law 512 (2d ed. 1969); L. [335] Hochheimer, Crimes and Criminal Procedure § 39 (1st ed. 1897).
"[T]here is reason to believe that misprision of felony as defined by Blackstone is merely one phase of the system of communal responsibility for the apprehension of criminals which received its original impetus from William I, under pressure of the need to protect the invading Normans in hostile country, and which endured up to the Seventeenth Century in England. In order to secure vigilant prosecution of criminal conduct, the vill or hundred in which such conduct occurred was subject to fine, as was the tithing to which the criminal belonged, and every person who knew of the felony and failed to make report thereof was subject to punishment for misprision of felony. Compulsory membership in the tithing group, the obligation to pursue criminals when the hue and cry was raised, broad powers of private arrest, and the periodic visitations of the General Eyre for the purpose of penalizing laxity in regard to crime, are all suggestive of the administrative background against which misprision of felony developed. With the appearance of specialized and paid law enforcement officers, such as constables and justices of the peace in the Seventeenth Century, there was a movement away from strict communal responsibility, and a growing tendency to rely on professional police." 8 U. Chi. L. Rev. 338, 340-341 (1941) (footnotes omitted).
Glazebrook, Misprision of Felony — Shadow or Phantom?, 8 Am. J. of Legal History 189 and 283 (1964) cites eminent authority that in England the offense fell "into desuetude." Id. at 300. According to Glazebrook, there was no "reported decision during the four hundred years since the offence first crept into a book," and no book before J. Chitty, A Practical Treatise on the Criminal Law (2d ed., London 1826) contained "a precedent of an indictment for misprision of felony." Id. In any event, if the crime had died, it was resurrected by the [336] House of Lords in H.L. Sykes v. Director of Public Prosecution, [1961] 3 All E.R. 33. Lord Denning stated that "it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete."[20] Id. at 40. Sykes acknowledged only two necessary elements, knowledge and concealment. "[M]isprision requires nothing active. The failure or refusal to disclose the felony is enough." Id. at 41. This followed the Blackstone definition.
The "revival" in England of the crime of misprision of felony was not generally welcomed. "Resistance to the crime culminated in the Seventh Report of the Criminal Law Revision Committee which recommended the abolition of the crime of misprision by eliminating all distinctions between felonies and misdemeanors. Misprision was replaced in the report by a new crime of withholding information with regard to certain offenses for a consideration other than restitution. [An agreement not to prosecute a felon in consideration of the return or compensation for goods stolen constitutes the common law offense of compounding a felony.] The Criminal Law Act of 1967 [c. 58 §§ 1 and 5] adopted these two recommendations and has been interpreted as eliminating the crime of misprision of felony in England." Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100-1101 (1974). See W. Wade and B. Lilliwhite, Annual Survey of Commonwealth Law 179 (1965); 10 Halsbury's Law of England ¶ 1201 (Supp. 1978).
The American experience paralleled that of England; the common law offense was simply not used. The status of the crime in the United States was summed up in Glazebrook, [337] How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307, n. 51 (1962):
"No court in the United States has been prepared to adopt the English doctrine in its simplicity, and hold that a mere failure to disclose knowledge of a felony is itself an offence: State v. Hann 40 N.J.L. 288 (1878) often cited as a solitary exception (e.g. (1945) 32 Va.L.R. 172) was a decision on a statutory, not the common law offence. In several states an attempt has been made to establish an offence intermediate between a simple concealment and that of the accessory after: e.g., State v. Wilson 80 Vt. 249: 67 Atl. 533 (1907); State v. Biddle 2 Harr (Del.) 401; 124 Atl. 804 (1923);[[21]] Carpenter v. State 62 Ark. 286; 36 S.W. 900 (1896); Commonwealth v. Lopes (Mass.) 61 N.E. (2d) 849 (1945); State v. Graham 100 La. 669 (1938): `... in the modern acceptation of the term, misprision of felony is almost if not exactly the same as that of an accessory after the fact' (p. 680). The utility of such an offence has not, however, been demonstrated: `... perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the U.S.' — 2 McClain Criminal Law, s. 938, cited at (1953) 6 S.Car.L.Q. 91. In Michigan, where the constitution incorporates the common law of crimes, the Supreme Court held that this does not extend to misprision of felony since it is `wholly unsuited to American criminal law and procedure as used in this State'; State v. Lefkovitz 294 Mich. 263, 293 N.W. 642 (1940); cf. U.S. v. Worcester 190 F. Supp. 565-566 (1960). And in interpreting the Federal statute (1 Stat. 113, s. 6) [18 [338] U.S.C. § 4 (1976)] which provides that `whoever having knowledge of the actual commission, of a felony cognizable by a court of the United States conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. shall be fined not more than $500 or imprisoned not more than three years or both,' it has been held that there must be some affirmative act of concealment, for instance the suppression of evidence, the harbouring of the criminal or the intimidation of witnesses, as well as the failure to disclose, for otherwise `the words conceals and would be effectively excised from the statute.' This interpretation was necessary to rescue the statute from an `intolerable oppressiveness,' for while federal statutes were few when it was enacted in 1790, the great increase in their number would make it unenforceable today if any other were adopted: Bratton v. U.S. 73 F. (2d) 795 [10th cir.] (1934); followed Neal v. U.S. 102 F. (2d) 643 (1939). [See also United States v. Farrer, 38 F.2d 515 (D. Mass.), aff'd, 281 U.S. 624 (1930).] This policy appears to have been successful. In 1956 the Fifth Circuit Court of Appeals noticed that `the annotations indicate no conviction for misprision [under the Federal statute] affirmed': Miller v. U.S., 230 F. (2d) 486. Cf. Bratton v. U.S.: `s. 146 was enacted April 30, 1790 ... and as far as the researches of court and counsel disclose, has been before the courts but twice in the 144 years of its life' (p. 797)."
Perkins in the second edition (1969) of his Criminal Law states that "there seems to be no such offense as misprision of felony in most of the states." At 516. No such offense is included in the Model Penal Code (U.L.A.).[22] Four years ago, Florida followed Michigan's view announced in Lefkovitz, [339] supra, that misprision of felony was wholly unsuited to American criminal law. Holland v. State, 302 So.2d 806 (Fla. App. 1974). Cf. Mangeris v. Gordon, Nev., 580 P.2d 481, 483-484 (1978). Compare State v. Flynn, 100 R.I. 520, 217 A.2d 432 (1966), stating that the common law crime of misprision of felony was an indictable offense under the constitution and laws of Rhode Island.
A few states have enacted legislation creating a crime of misprision of felony substantially similar to the common law offense as defined in Sykes. See N.J.S.A. § 2A:97-2 (N.J. 1969); Ohio Rev. Code § 2921.22 (Spec. Supp. 1973); Wash. Rev. Code § 9.69.100 (1976). Two states had such statutes, see Me. Rev. Stat. title 17, § 902 (1964) and La. Rev.Stat. § 856 (1870), which were later repealed.
Maryland has been in line with the practically universal view of the other states. We find no case prior to the case sub judice in which a conviction of misprision of felony has reached an appellate court of this State and, insofar as can be ascertained from appellate dockets, there is only one other, State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978), see note 19, supra, in which the crime was charged. It is true, as observed by the trial court in the case at hand, that "[a] dearth of appellate cases is not proof that the crime is not charged at trial level," but in view of the numerous appeals in criminal causes spawned by present day procedures and rights afforded an accused, it is remarkable indeed that, if convictions upon charge of the crime have occurred, the present case was the first in which an appeal was filed. We think that it is a fair inference that the crime has been seldom charged, and, if charged, has resulted in very few, if any convictions. Furthermore, we observe that misprision of felony was not proposed as an offense by Maryland's Commission on Criminal Law.[23]
As it seems that misprision of felony has been virtually unused in Maryland since the Revolution gave birth to the [340] United States, our inquiry turns to the effect of non-use of a common law crime. Early on, in State v. Buchanan, 5 H. & J. 317, (1821), Buchanan, J. for the Court announced that no part of the common law of England to which the inhabitants of Maryland were constitutionally entitled should be excluded merely because it had not been introduced and used in the courts here. Id. at 358. See McGraw v. State, 234 Md. 273, 275-276, 199 A.2d 229, cert. denied, 379 U.S. 862 (1964). Judge Buchanan explained:
"[U]nlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for conspiracy, no argument can be drawn from the non-user for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offenses, and consequently no judicial adoption of either of these branches of the common law, could it therefore be contended, that there was now no law in the State for the punishment of such offenses?" 5 H. & J. at 358.
This principle was affirmed by us, implicitly at least, in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) when we "recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use." Pope, 38 Md. App. at 527. It does not follow, however, that because a common law crime does not become obsolete from mere non-use that it will always be viable. The opinion of the Court in Buchanan asserted that the provision in Art. 5 of the Declaration of Rights regarding entitlement to the common law of England without any restrictive words being used, had reference "to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it [341] as are inconsistent with the spirit of that instrument, and the nature of our new political institutions." 5 H. & J. at 358 (emphasis added). We have repeated that statement on a number of occasions, Dashiell v. Attorney General, 5 H. & J. 392, 401 (1822); State v. Bank of Maryland, 6 G. & J. 205, 226 (1834); Lickle v. Boone, 187 Md. 579, 582, 51 A.2d 162 (1947); McGraw v. State, supra, 234 Md. at 275-276; Gladden v. State, 273 Md. 383, 389, 330 A.2d 176 (1974). We put it this way in Denison v. Denison, 35 Md. 361, 378 (1872):
"It is true the common law of England has been adopted by the people of this State, but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."
What this means is that the common law is subject to change. This is clearly apparent from its derivation and its very nature:
"The common law of England is derived from immemorial usage and custom, originating from Acts of Parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the Courts of justice of England." Buchanan, 5 H. & J. at 365 (opinion of Chase, C.J.).
It may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. See State v. Canova, 278 Md. 483, 486, 365 A.2d 988 (1976); Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934); Harrison v. State, 22 Md. 468, 487-488 (1864); Coomes v. Clements, 4 H. & J. 480, 481. It may also be changed by judicial decision. Chase, C.J., in his opinion in Buchanan, observed: "Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the courts of [342] justice, and is to be decided by them." 5 H. & J. at 365-366. He gave this rationale:
"The common law, like our acts of assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the general assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state,...." Id. at 366.[24]
We said in Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36 (1950) that "[t]his interpretation has been continuously adopted in this State, and was reaffirmed in the case of Price v. Hitaffer, 164 Md. 505, 510, 165 A. 470 [1933]." We asserted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106 (1951): "We have frequently held that it is our duty to determine the common law as it exists in this state...."[25] The doctrine of stare decisis does not preclude the exercise of this duty. We declared in White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966): "The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Accord, Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644, 308 A.2d 679 (1973).
Parts of the common law have been found by judicial mandate to be inapplicable or obsolete in other states. For example, Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 [343] (N.M. App.), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973) found that "liability free intentional injury to one's spouse does not reflect the circumstances in New Mexico." Swartz v. United States Steel, 293 Ala. 493, 304 So.2d 881, 885 (1974) held that the common law rule that a wife has no cause of action for loss of her consortium is inconsistent with the institutions of Alabama. Morganthaler v. First Atlantic National Bank, 80 So.2d 446 (Fla. 1955) rejected the English rule that a legatee may elect to receive cash when a testator directs his executor to purchase an annuity because it "dethrones a principle [that the intent of the testator controls] which is sacred to our way of life and fundamental in our concepts of right and justice." Id. at 452.
In exercising our duty to determine whether a common law crime presently exists in this State, mere non-use is not sufficient, as we have indicated, to conclude that the offense has become obsolete. But non-use, we believe, is not without significance. When an offense has lain virtually dormant for over two hundred years, it is difficult to argue that the preservation of society and the maintenance of law and order demand recognition of it. See Glazebrook, How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307-311 (1962). Perkins points out:
"The notion that misprision is needed, to prevent one who knows about another's felony from intentionally misleading investigating officers, is unfounded. If, when being questioned by officers who are investigating a felony, one who knows the facts intentionally misleads the officers by false statements and thereby `covers up' for the felon, he thereby makes himself an accessory to that felony after the fact. If he impedes the investigation by falsely saying he does not know about it, or by refusing to talk, he should be held to be guilty of obstructing justice. There is a wide difference between a mere failure to hunt up an officer and tell about a felony, on the one hand, and a refusal to cooperate with an investigating officer, on the other." R. Perkins, Criminal Law 517 (2d ed. 1969).
[344] Even more relevant, however, to a consideration of whether a common law crime is applicable as compatible with our local circumstances and situation and our general codes of law and jurisprudence is the nature of the crime. The reason for the failure of common law misprision of felony to survive in the United States was well expressed by Chief Justice Marshall over a hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-576 (1822) and thereafter noted by many commentators, text book authors and other authorities:
"It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."
In England, according to Glazebrook in his critical consideration of Sykes v. Director of Public Prosecutions, supra, in 25 Mod. L. Rev. 301, the Criminal Law Commissioners in their Fifth Report in 1840 repeated and elaborated this criticism and observed:
"`The necessity of making such disclosures extends perhaps with greater force to the knowledge of a meditated crime, the perpetration of which may, by means of such disclosure, be prevented, than it does to the knowledge of one already committed.'" Id. at 301, citing, n. 3, "Parl. Pap. (1840) xx, p. 32; quoted, Williams, The Criminal Law: The General Part (2nd ed., London 1961), p. 423."
Glazebrook opined that "[f]or more than a century misprision of felony has been an embarrassment to common lawyers," and feared that the decisions and speeches in the House of Lords in Sykes "afford only increased cause for this embarrassment." Id. at 301. The Court of Special Appeals relied on Sykes in holding that misprision of felony, as Sykes found it existed at common law, was currently an indictable crime in Maryland.[26] Glazebrook ably refuted Sykes, and we borrow extensively from him in the discussion which follows.
[345] Misprision of felony at common law is an impractically wide crime, a long-standing criticism which remains unanswered in Sykes. It has an undesirable and indiscriminating width:
"The real harshness lies in the fact that the duty to disclose arises when a person acquires knowledge of an offence, and this he may do quite involuntarily. A says to B: `Did you know that X stole a book from the library last week?' adding appropriate circumstantial details; or X says to B: `I stole some money yesterday; will you help me to repay it?' B is a friend of X; he wished to know nothing of X's misdeeds; and yet he is to be a criminal if he does not betray him. It is, furthermore, particularly difficult to defend a law which indiscriminately adds to the injuries of the victim of a crime the penalties of the criminal law should he or she wish to forgive and forget." 25 Mod. L. Rev. at 311.
Misprision differs from almost all other common law offenses of omission:
"[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge — knowledge possessed accidentally and undesired — knowledge which may indeed have been acquired through some malevolent person." Id.
Glazebrook observes that although "[t]here may be crimes where the protection of the public requires that each offender be brought to justice however reluctant his victims, his friends, or those who have him in their care, may be to do so, ... the line which separates them from all other offences is not the line which separates felonies from misdemeanors." Id. [346] at 312. This is particularly true with respect to Maryland where the distinction between felony and misdemeanor is a hodgepodge, following neither rhyme nor reason.
Under Sykes, no active step need be taken to conceal the felony (it is only thus that it remains quite distinct from the crime of accessory after the fact), and the concealment need bring no benefit to the accused.[27] But three fundamental questions remained: when does the duty to reveal a felony arise; how is that duty discharged; and does a relationship with the felon prevent the duty arising?[28]
It seems that the duty arises when "a man knows" of the commission of a felony. When, then, can a man, be said to know and what is it that he must know? Lord Goddard held that there must be disclosure when the knowledge a man has "is so definite that it ought to be disclosed. A man is neither bound nor would he be wise to disclose rumours or mere gossip, but, if facts are within his knowledge that would materially assist in the detection and arrest of a felon, he must disclose them as it is a duty he owes to the state." Sykes at 46. Lord Goddard left the matter to the jury as a question of fact. Glazebrook suggests that "unless the jury is to be entirely uncontrolled, it has to be told how precise and certain the accused's knowledge must have been before he can be convicted." 25 Mod. L. Rev. at 313. Is the duty to be confined to felonies committed in the presence of the accused, and, if not, is hearsay sufficient? Should the felon's own admission, standing alone, be enough? Knowledge of the commission of a crime is an ingredient of the offenses of accessory after the fact and receiving stolen goods, but, unlike misprision, they require a positive act. It is reasonable, in such circumstance, to require a person who has reason to believe something is [347] wrong to inquire further before embarking on some course of conduct, and to hold that he fails to do so at his peril. "If this rule is applied to misprision, two duties are imposed: a duty to disclose knowledge of a felony, and a duty also to make inquiries to resolve a suspicion concerning the commission of a felony." Id. To paraphrase Glazebrook, must the inhabitants of Maryland become detectives as well as informers?
Sykes fails to provide a working rule for what the accused must know. There was a direct conflict between Lord Denning and Lord Morton into which their brethren did not enter. Discussing knowledge, Lord Denning said:
"The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanour — many a lawyer has to look in the books for the purpose...." Sykes at 41.
Glazebrook comments: "This leaves it largely a matter of chance whether misprision is committed or not." 25 Mod. L. Rev. at 314. That is, on the one hand, it must have been a felony of which the accused knew, but on the other hand, he need not know whether the crime was a felony or a misdemeanor. According to Lord Denning, it would be enough that the accused knew that a serious offense had been committed if it turns out to be a felony — "a lawyer on turning up the books sees it is a felony...."
"This requirement that it must be a serious offence disposes of many of the supposed absurdities, such [348] as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police." Sykes at 42.
This rationale was based on the view that what distinguishes a felony from a misdemeanor is that a felony is a serious offense, "an offence of an `aggravated complexion'.... Felonies are the serious offences. Misdemeanours are the less serious." Id. This introduced a limitation Lord Morton was not willing to accept. Id. at 46-47. In any event, the limitation added the further uncertainty of a trier of fact's view of the gravity of the crime to be reported. 25 Mod. L. Rev. at 314. And, we observe, the foundation for the limitation is weak indeed when considered in light of the categories of felonies and misdemeanors adopted in this State. Sykes avoids what account is to be taken of excuses offered by an apparent felon. For example, "[i]n cases of larceny, may the citizen be satisfied by any claim of right that is made, or must it be weighed, and where suspicion remains this communicated to the police? ... The [Sykes] recognition of misprision means, therefore, the imposition not of a duty to disclose knowledge of the commission of a felony, but of a duty to disclose suspicions of the commission of a felony...." Id. at 314-315. There are no criteria for determining which suspicions are to give rise to a duty, and so to criminal liability.
When the duty to disclose has arisen, it is not clear how it is discharged. It would be logical that once the authorities are in possession of all the information concerning a felony, a citizen's duty to disclose his own knowledge ceases. So there is an added element of chance — "the chance that the police already know." Id. at 315. Lord Denning saw the duty as requiring a citizen "to disclose to proper authority all material facts known to him relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must [349] tell the name of the man who did it, if he knows it;[[29]] the place, and so forth. All material facts known to him.... If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision." Sykes at 42. This was not sufficient for Lord Goddard. He thought that "facts ... within his knowledge that would materially assist in the detection and arrest of a felon" must be disclosed as a duty owed to the State. Id. at 46. "Thus if a man disclosed all he knew about the commission of a felony and yet did not disclose the whereabouts of the felon he would be acquitted by Lord Denning and convicted by Lord Goddard." 25 Mod. L. Rev. at 315.
Their lordships agreed that the questions of when the knowledge must be revealed and how much trouble must be taken to reveal it were for the jury. Glazebrook is critical of this as assigning unsuitably vague questions to the trier of fact:
"If a man is to be punished for not doing something, he ought to know precisely what is expected of him. The standard which he fails at his peril to attain ought not to be left to be fixed after the event by the whim of a particular jury. Formulae that pass muster in determining the liability of one who engages in a dangerous course of conduct are not always suited to crimes of pure omission." Id. at 316.
Only Lord Denning considered relationship with the felon with respect to the duty to disclose:
"Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor [350] and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported." Sykes at 42.
Glazebrook finds this to be "a singularly unhappy instance of creative judicial activity, for a defence grounded on a `claim of right made in good faith' is in this context inapt, and the choice of relationship perverse." 25 Mod. L.R. at 317. He explains:
"A person advancing a defence of `claim of right' pleads that he mistakenly thought that the law recognised in him a right to act in the way he did. If his defence is accepted, his mistake will be benevolently viewed, and he is excepted from criminal liability. The defence is thus founded on the mistake, on the claim, not the right, and disappears when the mistake is corrected.... In short, if the crime is to be limited, there must be a categorical rule that doctors and the like are under no duty to disclose their patients' felonies." Id.
As to the choice of exempt relationships
"[t]he exclusion in misprision of `close family or personal ties' is utterly callous and certainly futile: how can the relation between doctor and patient, an employer and his servant, be thought more sacred, more deserving of respect and consideration — even by the law — than that between husband and wife, between father and son? By what standard is it unreasonable to expect an employer to report his servant's crimes to the police, and yet proper that a son should betray his father?" Id. at 318.
[351] We observe that common law misprision is not only beset with practical defects but may implicate constitutional privileges. To sustain the Fifth Amendment right against self-incrimination,[30] "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure might result." Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814 (1951). The privilege extends not only to information that would itself support a conviction, but "likewise embraces those which would furnish a link in the chain of evidence to prosecute the claimant...." Id. at 486. See United States v. King, 402 F.2d 694 (9th Cir.1968), reversing conviction of federal misprision on Fifth Amendment grounds. We note also that it has been suggested that the federal misprision statute may involve the right of privacy. In United States v. Worcester, 190 F. Supp. 548, 566 (D. Mass. 1961), Judge Wyzanski, discussing the federal statute, said:
"To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that `as far as possible privacy should be respected.' There is `a strong reluctance on the part of judges and legislators to sanction invasion of privacy in the detection of crime.' There is `a general sentiment that the right to privacy is something to be put in balance against the enforcement of the law.' Sir Patrick Devlin, The Enforcement of Morals, p. 19."
See Shannonhouse, Misprision of a Federal Felony: Dangerous Relic or Scourge of Malfeasance, 4 U. Balt. L. Rev. 59 (1974), calling for "excisement from the criminal code" of the federal crime. Compare Goldberg, Misprision of Felony: An Old Concept in New Context, 52 A.B.A.J. 148 [352] (1966), and Comment, Misprision of Felony: A Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199 (1975).
We have proceeded on the assumption that the House of Lords was correct in concluding in Sykes that "there is and always has been an offense of misprision of felony...." Sykes at 40. We are persuaded, finding no sound reason not to be, that their lordships' definition of the offense and the composition of its elements properly reflected the crime as it existed at common law. We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards.[31] We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.
III
We have reversed Pope's conviction of the felony of child abuse because the evidence was insufficient to sustain the verdict. She may not be tried again for that crime. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978); Greene v. [353] Massey, 437 U.S. 19, 98 S.Ct. 2151 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978).
As we have held that the crime of misprision of felony does not now exist in Maryland, Pope may not, of course, be retried on a charge of that crime.
IV
Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.
Pope had the selection translated at a cost of $150. She further moves this Court to order the Office of the Attorney General to reimburse the Office of the Public Defender for the cost of the translation. Pope undertook to have the selection translated on her own initiative. The motion is denied.
Judgment of the Court of Special Appeals with respect to child abuse, third count of Indictment No. 18666, reversing the judgment of the Circuit Court for Montgomery County, affirmed; judgments of the Court of Special Appeals with respect to misprision of felony, fifth count of Indictment No. 18666, affirming the judgment of the Circuit Court for Montgomery County, reversed; case remanded to Court of Special Appeals with direction to remand to the Circuit Court for Montgomery County for entry of judgment of acquittal on the third count and dismissal of the fifth count; motion of appellant to strike granted; motion of appellant for appropriate relief denied; costs to be paid by Montgomery County.
[354] Eldridge, J., concurring in part and dissenting in part:
I concur in that portion of the Court's opinion relating to the crime of misprision of a felony. I also agree with the majority that Pope was not guilty of child abuse as a principal in the second degree. However, I cannot agree with the majority's restrictive interpretation of the child abuse statute, which interpretation furnishes the basis for the majority's conclusion that Pope was not guilty of child abuse as a principal in the first degree.
The child abuse statute, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 35A (a), reaches "[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child...." The Court today takes the position that the statutory phrase "has responsibility for the supervision of" is ambiguous, thereby allowing the Court to "give effect to the real intention of the Legislature." The majority then states that, with regard to persons other than parents, legal custodians or individuals "in loco parentis," only those persons who have assumed responsibility for a child with the consent of the parent or guardian are covered by the statute. The majority finds it "self-evident" that "a third person may not assume such responsibility unless the parent grants it."
Thus, we are told by the majority opinion that a "person taking a lost child into his home" while an attempt is made to locate his or her parents is beyond the reach of the child abuse statute. In other words, in the Court's view, such a person may voluntarily assume full responsibility for the care of a small child, for a lengthy period of time while an effort is being made to find the parents, and during that time may batter the child unmercifully, but he would not be guilty of child abuse under Art. 27, § 35A. In my view this is a totally unwarranted narrowing of an important piece of legislation.
In addition to parents, the child abuse statute applies to "[a]ny ... other person who has ... responsibility for the supervision of a minor child...." The language is clear. Everyone who has responsibility is covered, regardless of how he obtained such responsibility.
[355] It is well-established in the law that one may, by his own actions, voluntarily assume a particular responsibility. That the Legislature intended to cover such a person is shown by the language any other person who has responsibility. There is no ambiguity here. Consequently, there is no need to go further in attempting to ascertain the legislative intent. The majority opinion today flatly violates settled principles of statutory construction, recently summarized by Judge Orth for the Court as follows (Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054-1055 (1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978)):
"The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327 A.2d 483 (1974), `where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.'"
[356] Furthermore, even if there existed some ambiguity in the statute, I am at a loss to know why the majority finds it "self-evident" that only those persons who have been granted responsibility by a parent or guardian should be covered. Nothing in the statutory language indicates such a legislative purpose. I know of no public policy justifying this differentiation between a person who assumes responsibility for a child with parental consent and one who assumes just as complete a responsibility without the parent's consent. If either abuses the child, he should be held accountable under § 35A.
The majority appears to be concerned about the "good samaritans" who watch a lost child, or allow neighbors' children to play in their yards and exercise supervision, or perform "functions of a maternal nature from concern for the welfare, comfort or health of a child." However, such "good samaritans" have nothing to fear from the child abuse statute. But, if one of these same individuals assumes responsibility for the child and batters it, sexually molests it, locks it for a long period of time in a dark closet, etc., that person should be held just as accountable under the child abuse statute as someone else having responsibility for the child.
My concern in this case is not so much with the decision that the evidence was insufficient to convict Pope of child abuse. The evidence may not have been sufficient. Instead, what is troublesome in this case is the damage which the majority has done to the child abuse statute.
[1] The remaining seven counts of the indictment, each concerning offenses committed on or about 11 April 1976 concerning or related to the minor child, alleged murder in the second degree — 1st count; manslaughter — 2nd count; accessory after the fact, murder — 4th count; obstruction of justice — 6th count; conspiracy to obstruct justice — 7th count; assault and battery — 8th count; assault — 9th count. Before trial, the court granted Pope's motion to dismiss the 4th count. At the close of evidence offered by the State, the court granted Pope's motions for judgment of acquittal as to the 6th and 7th counts. At the close of all the evidence, the court reserved ruling on Pope's motions for judgment of acquittal on the remaining counts. It found her "sane" and not guilty on the 1st and 2nd counts, and "sane" and guilty on the 3rd and 5th counts. It held that the 8th and 9th counts merged with the 3rd count.
Pope was also charged in indictment no. 17830 with murder in the first degree. This indictment was nol prossed before trial.
[2] The trial court sentenced Pope to the Department of Corrections for a period of seven years on each of the convictions under the 3rd and 5th counts, the sentences to run concurrently. It suspended all but eighteen months of the sentence and recommended that it be served in the Montgomery County Detention Center. Upon release, Pope was to be placed on supervised probation for two years upon condition that she "seek and take psychiatric or psychological assistance."
[3] The evidence at the trial consisted primarily of two extra-judicial statements given by Pope to the police, one written by her and the other tape recorded, and her testimony at trial, which was essentially repetitious of the statements. Pope's brief contains an agreed statement of facts pursuant to Maryland Rule 828 g. A summary of the evidence is given in the opinion of the Court of Special Appeals. Pope v. State, 38 Md. App. 520, 530-536, 382 A.2d 880 (1978).
[4] The mother, charged and tried separately from Pope, was found to be not responsible for her criminal conduct at the time of the commission of the offense, and, therefore, not guilty by reason of insanity. Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 25(a).
[5] Acts 1963, ch. 743.
[6] Acts 1970, ch. 500.
[7] See Acts 1964, ch. 103; Acts 1966, ch. 221; Acts 1967, ch. 38; Acts 1968, ch. 702; Acts 1970, ch. 500; Acts 1973, ch. 656; Acts 1973, ch. 835; Acts 1974, ch. 372; Acts 1974, ch. 554; Acts 1975, ch. 219; Acts 1977, ch. 290; Acts 1977, ch. 504.
[8] Acts 1973, ch. 835.
[9] In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we rejected the contention that the definition of abuse was so indefinite as not to comport with the established standards of due process. We opined that "the definition of abuse ... represents a most suitable compromise between the constitutionally mandated requirements of specificity and the practical need to devise language flexible enough to combat a social evil of truly inestimable proportions." Id. at 129.
[10] Habeas corpus was refused by the United States District Court for the District of Maryland to the convicted mother. On appeal, the United States Court of Appeals for the Fourth Circuit by a majority of a three judge panel, Haynsworth, C.J. dissenting, vacated the judgment and remanded the case to the District Court to grant the writ. Fabritz v. Superintendent, 583 F.2d 697 (1978). In so doing the court accepted "the statute as valid, as did the Court of Appeals of Maryland and the District Court, and accept[ed], too, their clear exposition of the critical words of the law." 583 F.2d at 700. It held that "[t]he statute simply was unconstitutionally applied." Id. It viewed the conviction void for denial of Fourteenth Amendment due process "because the `conviction [is] based on a record lacking any relevant evidence as to a crucial element of the offense charged,' i.e., that the mother had knowledge of the critical gravity of her daughter's condition when she deferred resort to medical advice for the little girl." 583 F.2d at 698.
We had found it to be manifest from the evidence that the mother knew of the child's severely beaten condition and had failed for some eight hours to seek or obtain any medical assistance although, as the evidence plainly indicated, the need therefor was obviously compelling and urgent. We observed that there was evidence that the mother's failure to seek assistance was based upon her realization that the bruises covering the child's body would become known were the child examined or treated by a physician. State v. Fabritz, 276 Md. 416, 425, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976). Chief Judge Haynsworth was in accord. He did not agree with the majority of the panel that the record was devoid of evidentiary support. He found therein evidence sufficient to support a conclusion that the mother, though generally loving and protective of her daughter, consciously refrained from seeking medical help to protect her lover, the person who beat the child, from possible criminal charges and to support her own ego. "[A] conscious indulgence of such a preference," he thought, "is in violation of Maryland's Child Abuse Law...." 583 F.2d 701 (Haynsworth, C.J. dissenting).
We note that, unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us. Declaration of Rights, Md. Const., Art. 2; Gayety Books v. City of Baltimore, 279 Md. 206, 213, 369 A.2d 581 (1977); Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (1975). We are not persuaded to depart from our view of the evidence by the majority opinion of the federal appellate court.
[11] Under Acts 1963, ch. 743 the statute applied to a child under the age of fourteen years. By Acts 1966, ch. 221 the statute was made applicable to a child under the age of sixteen years, and by Acts 1973, ch. 835 to a child under the age of eighteen years.
[12] Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 12A provides:
"Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person's defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself."
Code (1957, 1971 Repl. Vol., 1978 Cum. Supp.) Art. 43, § 132 grants immunity from liability from civil damages to physicians and certain other persons rendering aid under emergency conditions.
[13] We have observed: "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree," and we characterized such difference as "a shadowy distinction." Vincent v. State, 220 Md. 232, 239, n. 1, 151 A.2d 898 (1959). Clark & Marshall, A Treatise on the Law of Crimes (7th ed. 1967) elaborated the point:
"The common law recognizes no difference in the punishment, between principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is immaterial and on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abetting, and conversely.
"And at common law a principal in the second degree may be indicted and convicted before trial of the principal in the first degree, and even after he has been acquitted, or convicted of an offense of lesser degree, though the commission of the act by the principal in the first degree must be proved in order to convict one as aiding and abetting. Id. at § 8.05, p. 521.
See Hochheimer §§ 37-38, And "unless it is plain, from the nature of an offense made a felony by statute, that the provisions of the statute were intended to affect only the party actually committing the offense, aiders and abettors are punishable." Clark & Marshall at § 8.04, p. 520.
[14] Before the Court of Special Appeals the State explained the mother's continual presence and exercise of supervision from time to time while she was awake as conduct permitted by Pope but manifesting "no indication whatsoever that [Pope] intended to relinquish her responsibility." As the Court of Special Appeals correctly observed: "That puts the cart before the horse. It is the mother whose responsibility was not relinquished or absolved." Pope v. State, 38 Md. App. 520, 537-538, 382 A.2d 880 (1978). Before us, the State has apparently abandoned the notion it suggested before the intermediate court.
[15] This State has enacted a comprehensive scheme, surrounded by safeguards, for determining whether a person is suffering from a mental illness or mental disorder so as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment. Maryland Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) Art. 59, § 1 et seq. It would be unthinkable to impose such a determination on an ordinary individual at the risk of criminal prosecution. Not even the "reasonable man," so often called upon by the law, has the expertise to make such a judgment.
[16] The principal in the second degree differs from the accessory before the fact only in the requirement of presence. "The principal in the second degree must be present at the perpetration of the felony, either actually or constructively, whereas the accessory before the fact must be absent. In other words, although neither presence nor absence is of itself a determinant of guilt, yet if the mens rea is found to exist, the same aid, command, counsel, or encouragement which will make a principal in the second degree of one who is present (actually or constructively) at the time a felony is committed, will make him an accessory before the fact if he is absent." R. Perkins, Criminal Law 658-659 (2d ed. 1969).
[17] 1 Hale, Pleas of the Crown, 439, as quoted in Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Clark & Marshall § 8.02, p. 511, n. 15, also quotes 2 Hawkins, Pleas of the Crown, c. 29, § 10 on the matter:
"`Those who, by accident, are barely present when a felony is committed, and are merely passive, and neither in any way encourage it, nor endeavor to hinder it, nor to apprehend the offenders, shall neither be adjudged principles [sic] nor accessories; yet, if they be of full age, they are highly punishable by fine and imprisonment for their negligence, both in not endeavoring to prevent the felony, and in not endeavoring to apprehend the offender.'"
[18] "[T]he inhabitants of Maryland are entitled to the Common Law of England ... according to the course of that Law...." Declaration of Rights, Md. Const. Art. 5.
[19] The Circuit Court for Carroll County reached the opposite view, dismissing a charging document before it on the ground that misprision of felony is not a crime in Maryland. State v. Shaw, 282 Md. 231, 232, 383 A.2d 1104 (1978). The State appealed. On our review upon grant of writ of certiorari prior to decision by the Court of Special Appeals, we disposed of the appeal upon a double jeopardy issue making it unnecessary for us to address the question whether misprision of felony is a crime in this State. Id. at 232, n. 2 and at 237.
[20] There was further recognition of the crime of misprision of felony in Rex v. King [1965] 1 All E.R. 1053 (Crim.App.). It was held that, after being cautioned against self-incrimination, the defendant's silence can not possibly constitute misprision. When an accused is questioned about an offense, he is not bound to answer if his reply would incriminate him regarding that offense or any other offense. On the other hand, if after caution, he chooses to say something which conceals the felony, then this will amount to active concealment, not protected by the right against self-incrimination and may constitute misprision. Id. at 1055. See Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100 (1974).
[21] State v. Biddle, 32 Del. 401, 124 A. 804 (1923) is a report of a charge to the jury by the Court of General Sessions to the effect that the common law crime of misprision existed in Delaware and that it may consist of wilful failure and neglect either to make an effort to prevent the felony being committed or to prosecute the felon. The official report states that the defendant was acquitted. The West report asserts that she was convicted. We are informed by the Bureau of Archives and Records of Delaware that the docket entries for the case, indictment no. 20, November Term, 1923, show that the defendant was acquitted.
[22] The Model Penal Code (U.L.A.) would make it an offense to volunteer false information to a law enforcement officer, § 242.3 (4) and to aid the consummation of crime, § 242.4.
[23] The Commission was obviously content with the more definitive offenses of "hindering prosecution" and "compounding a crime." See Maryland Commission on Criminal Law, Report and Part I of `Proposed Criminal Code (1972) §§ 205.65-205.70 and § 215.50.
[24] Chief Judge Chase continued: "... and what part has become obsolete from non-user or other cause." State v. Buchanan, 5 H. & J. 317, 366 (1821). The addendum, insofar as it applies to "non-user", does not appear to be in accord with the opinion of the Court rendered by Buchanan, J. as we have indicated.
[25] We noted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204-205, 82 A.2d 106 (1951) that in determining the common law as it exists in this State, we have not always followed the view taken by the majority of other states, citing Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951) and Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). We believed that we were under no obligation to follow the majority view, unless we thought it better reasoned and sound.
[26] The Court of Special Appeals recognized that it was "not bound by current opinion of the House of Lords," but noted that "its view of what comprised the elements of its common law prior to 1776 is hard to gainsay." Pope v. State, 38 Md. App. 520, 530, 382 A.2d 880 (1978). It continued: "If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say." Id.
[27] The question whether the offense extended to concealing knowledge of an intended felony was left open.
[28] Glazebrook observed that the absence of substantial authority by way of reported cases seriously handicapped their lordships in justifying the law, not only in freeing it from the criticism that it was impossibly wide in scope, but also in determining its ingredients. 25 Mod. L. Rev. 301, 307. "... Lord Denning was driven to the curious position of stating that `the ingredients of the offence can best be seen by comparing it with offences of like degree which have other ingredients.' His lordship might, with equal logic, have postulated crimes of fornication or adultery, and then determined their elements by examining the offences of rape, incest and buggery." Id. at 312.
[29] It is difficult to see how even a reasonable man could know that a felony had been committed if he does not know the felon. "He has to make certain assumptions about the perpetrator's mens rea and this he cannot do if he does not know who he is." 25 Mod. L. Rev. at 315, n. 91.
[30] "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.
[31] The child abuse law requires "[e]very health practitioner, educator, or social worker or law-enforcement officer, who contacts, examines, attends, or treats a child and who believes or has reason to believe that the child has been abused ... to make a report ... notwithstanding any other section of the law relating to privileged communications...." Code (1957, 1976 Repl. Vol.) art. 27, § 35A(c). It further requires any person, other than those specified in § 35A(c), "who has reason to believe a child is abused [to] so report to the local department of social services or to the appropriate law-enforcement agency...." § 35A (e). There is no sanction for failure to comply, but immunity from civil or criminal penalty is provided when there is compliance. § 35A (h).
7.2.6.2.2.4.2 People v. Stephens 7.2.6.2.2.4.2 People v. Stephens
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DARRYL STEPHENS, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
[58] Robert T. Johnson, District Attorney, Bronx County (Lara R. Binimow and Peter D. Coddington of counsel), for respondent.
Richard L. Herzfeld for appellant.
BUCKLEY, P.J., TOM, SULLIVAN and ROSENBERGER, JJ., concur.
OPINION OF THE COURT
SAXE, J.
This appeal requires us to consider the nature and extent of the duty owed to a child by an unrelated adult when the child resides in the adult's household along with his own children and those of his paramour. In particular, we consider whether the prosecution in this case properly relied upon the application of the "in loco parentis" doctrine to convict defendant of murder based upon a failure to provide medical care to a child who was not his biological child.
This prosecution concerns the death of nine-year-old Sabrina Green, who was, at the time, the charge of her older sister, Yvette Green. Defendant Darryl Stephens and Yvette Green had lived together since 1985; defendant was the father of 8 of Yvette's 10 children. Sabrina came to live in their household in November of 1996. Defendant and Yvette were both convicted of murder in the second degree, under Penal Law § 125.25 (4), for Sabrina's death.
Sabrina Green was born on August 28, 1988 to a crack-addicted mother, with whom she lived until her mother died in 1991. Sabrina was then cared for by a family friend, Sylvia Simmons, until Simmons died in 1996. Sabrina then briefly lived with a relative, Denise Nelson, but Nelson found Sabrina to be too "hyper" and therefore, in November 1996, she went to live in the household of her older sister Yvette. Yvette was awarded legal guardianship of Sabrina.
Sabrina had severe behavior problems. At age five she was diagnosed with attention deficit and hyperactivity disorder; the pediatric neurologist who testified at trial suggested she might also have been suffering from oppositional defiant disorder. While she had been treated with Ritalin for years with some success by the time she came to live with them, Yvette did not, or could not, continue to provide her with the medication.
Soon after she moved in, Sabrina began to regularly exhibit aggressive behavior, including throwing tantrums, hitting her [59] head and arms against furniture when she did not get her way, and getting into fights with the other children in the apartment and at school; she also wet her bed. She had difficulty following household rules, and in this household, a breach of these rules resulted in punishment, imposed either by Yvette or by defendant, such as having to stand in the corner, being grounded in her room, and being whipped with a belt or stick. Sabrina was punished almost daily.
Tyrone Green, Yvette's son, then 19 years old, testified that he had observed Sabrina taking food out of the refrigerator one night, a serious breach of the household rules which he went to report to Yvette and defendant. Yvette was asleep, and defendant responded to Tyrone that he "would take care of it." The next day Tyrone saw a gauze wrapping on Sabrina's hand, and he later saw that it had been burned. Almost every night thereafter, either Yvette or defendant would tie Sabrina's arms and legs to the bed with a jump rope, for the entire night. In addition, Sabrina was required to spend most of her time sitting in the hallway where she could be watched by both Yvette and defendant. The condition of her hand grew worse, and she was no longer allowed to go to school or outside to play. Despite the older children's entreaties that Sabrina be taken to a doctor, neither Yvette nor defendant did so. Yvette told the children that she was afraid to do so because she might be blamed for the injuries and have her children taken away.
Despite the testimony of Yvette's sons Tyrone and Marcus, relating that in September 1997 defendant stated that he could no longer deal with Sabrina and that Yvette was going to have to take over being in charge of her, Tyrone also testified that one morning, perhaps about a week before Sabrina died, Tyrone saw defendant hitting Sabrina with a belt 10 or 12 times.
At the time of Sabrina's death, on November 8, 1997, she was suffering from multiple conditions, including subdural hemorrhage caused by numerous blunt impacts to the head, a third-degree burn to her hand which was left untreated until infection and gangrene set in, and pneumonia. Dr. Ozuah, the physician who examined Sabrina's body at the hospital, observed bruises, some fresh, which were consistent with being hit with a belt, scars that were consistent with her hands being tied with a rope, and bed sores indicating she had been immobilized for many days. There was a severe third-degree burn to her left hand through all layers of skin, which was consistent with being held to a surface such as an iron or stove, and there [60] were fresh injuries on top of the burn. There were injuries to Sabrina's right hand consistent with being slammed repeatedly in a refrigerator door some time in September; the flesh was decaying and gangrenous. Dr. Ozuah also found an old injury to Sabrina's head as well as several that had been inflicted within 24 hours of her death. All the head injuries were serious, requiring a great deal of force, such as from a baseball bat, and could not have been self-inflicted by a nine-year-old banging her head on the floor.
An autopsy report revealed that Sabrina had died as the result of six recent severe blunt impact wounds to the head, as well as pneumonia caused by an infection which spread from her hands to her bloodstream and lungs. There were numerous scars, including scars to her back, thighs and legs consistent with a severe beating with a belt one week before her death.
The medical examiner who testified at trial based upon the autopsy report suggested that the cause of death was septic shock resulting from a bacterial infection in the bloodstream due to the untreated burn. It was the expressed opinion of both the examining physician and the medical examiner that Sabrina had been a victim of child abuse.
DISCUSSION
Sufficiency and Weight of Evidence
The provision of Penal Law § 125.25 under which defendant was charged with murder in the second degree requires that the defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of serious physical injury or death to a person less than 11 years of age. The People's theory regarding defendant's guilt was that acting in concert with Yvette Green, with the requisite mental state, he had engaged in conduct which caused injuries that had resulted in Sabrina's death, and in addition, that he had failed to get her the medical care she needed or take any other steps to protect her, when he knew of her grave injuries.
Defendant's challenge to the sufficiency of the evidence is two-pronged: first, that the evidence failed to show that he was responsible for the injuries that caused Sabrina's death, and second, since he was neither the child's father nor her guardian, he had no legal duty toward Sabrina, and therefore was not legally chargeable with his mere failure to act to ensure she got medical treatment. We do not agree with his contentions.
First, there was sufficient evidence to permit the jury to find that defendant, acting in concert with Yvette, under circumstances [61] evincing a depraved indifference to human life, had recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina, thereby causing her death.
Moreover, the evidence similarly supported the People's alternate theory, which was based upon the application of the doctrine of in loco parentis. We reject defendant's suggestion that he may not be held liable for his failure to ensure that Sabrina received necessary medical attention due to his lack of legal connection to the child.
Defendant correctly points out that since he was neither the child's parent nor her legal guardian, he may only be convicted based upon a failure to take action to protect the child from harm if a legal duty may be imposed upon him under the in loco parentis doctrine:
"Criminal liability cannot be premised on a failure to act . . . unless the party so charged has a legal duty to act (see, People v Spadaccini, 124 AD2d 859, 861). A person who has no familial relationship to a child ordinarily has no legal duty to provide for it, unless it can be shown that he or she has assumed all of the responsibilities incident to parenthood. That a party has taken some part in meeting the child's daily needs is not enough; a `full and complete. . . interest in the well-being and general welfare' of the child is necessary, as is the intent to fully assume a parental role, with the concomitant obligations to support, educate, and care for the child on an ongoing basis (Rutkowski v Wasko, 286 App Div 327, 331)." (People v Myers, 201 AD2d 855, 856 [1994].)
However, the evidence fully supports the application of the doctrine here.
People v Myers presented circumstances in which the in loco parentis doctrine could not support criminal liability. There, the court dismissed the indictment of the defendant for manslaughter (and for endangering the welfare of a child) of a two-month-old child who had died of severe dehydration and malnutrition; although the defendant was the live-in boyfriend of the infant's mother, the evidence merely showed that he contributed to household finances, occasionally purchasing formula for the infant and acting as a babysitter, not that he had "intended to shoulder any responsibility for the child's welfare" (People v Myers, 201 AD2d at 856).
[62] In contrast, the evidence here reflected that Darryl Stephens was far more than a live-in boyfriend who took no part in the raising of the child. Rather, it supported the conclusion that during his long-term live-in relationship with Yvette, he "assumed all of the responsibilities incident to parenthood" (People v Myers, supra at 856). The 11 children living in the household, including Sabrina, were all housed, clothed, fed and supervised jointly by Yvette and defendant. Defendant took the children, including Sabrina, to school, stayed with them when Yvette was out, set down rules for them and punished them for any infractions. The testimony supports a finding that defendant treated Sabrina with the same degree of responsibility as he did the other children, not as a mere babysitter or short-term helper, but as one of the two coequal adults functioning in the role of parent.
The law applicable to the present case is not the same as that applicable to neglect proceedings under the Family Court Act, which defines a "person legally responsible" for a child to include "any other person responsible for the child's care at the relevant time" (see Family Ct Act § 1012 [g]), which provision is "intended to be construed broadly so as to include paramours or other nonparental persons who perform childcare duties which correspond with the traditional parent/child relationships" (see Matter of Nathaniel TT., 265 AD2d 611, 612 [1999], lv denied 94 NY2d 757 [1999]). Nevertheless, it is instructive to consider those cases in which live-in paramours have been held to be "person[s] legally responsible" for a child.
In People v Sheffield (265 AD2d 258 [1999]), the defendant shared his apartment with the 11-year-old child and her mother, he called the child his "stepdaughter" and had sole custody of her on a daily basis. In Matter of Heather U. (220 AD2d 810 [1995]), respondent had been living with the subject child's mother in a family-like setting for approximately three years, had fathered her youngest child, and was a regular member of the subject child's household.
Similarly, in People v Carroll (244 AD2d 104, 107 [1998], affd 93 NY2d 564 [1999]), this Court upheld a prosecution of a nonparent for endangering the welfare of a child under Penal Law § 260.10 (2), which applies to a "parent, guardian or other person legally charged with the care or custody of a child," because the evidence showed that the nonparent has assumed the role of stepparent during the period in question.
Like the statutes defining neglect as committed by nonrelatives (see Family Ct Act § 1012 [g]) and endangerment of a child [63] as committed by nonrelatives (see Penal Law § 260.10 [2]), the in loco parentis doctrine requires consideration of whether the person charged actually undertook the fundamental responsibilities that are normally those of a parent. Its application here was entirely proper.
Defendant argues that, despite his serving in a parental capacity for all the other children living in his home, including the two who were not his natural children, he could relinquish that role for Yvette's young sister and ward by the simple expedient of making an announcement to that effect. However, even assuming that he could have successfully eradicated, through a pronouncement, the responsibility he had previously undertaken, so as to eliminate Sabrina from his sphere of responsibilities, the evidence makes it unnecessary for us to definitively decide that point. Even if defendant made such pronouncement, the testimony that he continued to take part in the ongoing punishments of Sabrina up until just days before her death, and the lack of evidence that he took any other steps to remove all responsibility for her from his life, permit the conclusion that any such pronouncement did not reflect any actual change in his previous parental posture toward her.
The evidence was legally sufficient to prove beyond a reasonable doubt that defendant was responsible for the victim's care at the time of her death, and that, acting in concert with Yvette, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina (see People v Contes, 60 NY2d 620 [1983]). Moreover, the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]).
Jury Charge
Defendant's argument that the court failed to instruct the jury that his obligation to provide medical care had to be proven beyond a reasonable doubt is both unpreserved and without merit. The court delivered both an in loco parentis charge and a reasonable doubt charge, the latter of which emphasized that the evidence must "establish beyond a reasonable doubt each and every essential element of the crimes charged." No objection was raised to the court's instructions regarding defendant's duty to ensure Sabrina received necessary medical care. The charge was not rendered deficient by the fact that the court did not repeat, after describing each element individually, that it had to be established beyond a reasonable doubt.
[64] The court's acting-in-concert charge was proper and consistent with People v Brathwaite (63 NY2d 839 [1984]) and People v Sanchez (98 NY2d 373 [2002]). The court did not say that mere recklessness was all that was required to convict defendant of murder in the second degree based upon his acting in concert with Yvette, but rather that the jury must find that he acted recklessly "under circumstances evincing a depraved indifference to human life" that created "a grave risk of serious physical injury or death to a person less than 11 years old, and thereby cause[d] the death of such person." The court specifically stated that it was essential that the People prove that both defendant and Yvette "acted with the mental culpability required for the commission of the crimes charged."
There was no error in the court's responses to the jury's notes.
Trial Rulings
We find no error in the court's evidentiary rulings. The two medical experts who gave testimony on the issue of battered child syndrome possessed sufficient qualifications to do so (see People v Kinder, 75 AD2d 34 [1980], lv denied 51 NY2d 732 [1980]). The autopsy photographs were necessary to demonstrate the extent of Sabrina's physical deterioration, in light of Tyrone's testimony that she had looked "fine" shortly before her death, and in order to rebut defendant's claims that he had not known of Sabrina's desperate need for help and would have gotten it for her if he had (see People v Sims, 110 AD2d 214, 222 [1985], lv denied 67 NY2d 657 [1986]). The "before" photograph, which was taken just prior to Sabrina's removal by Yvette from the Children's Storefront School, and which depicts her as smiling and healthy, was necessary to demonstrate the drastic change that took place after she came into defendant's care. Defendant's remaining arguments regarding the admission of evidence are without merit.
The prosecutor's summation was proper, and defense counsel's summation was not unfairly restricted.
Sentencing
The court properly denied defendant's requested adjournment of sentencing. The desire to present witnesses and to prepare a written memorandum chronicling defendant's law-abiding life did not justify an adjournment because there was no need to elaborate on that point. Nor did defendant's lack of any prior involvement with the criminal justice system suffice as a mitigating factor given the nature of this case. Under the facts [65] of this case, we do not find the sentence here to be unduly harsh (see People v Delgado, 80 NY2d 780, 783 [1992]).
Accordingly, the judgment of the Supreme Court, Bronx County (Alexander Hunter, J.), rendered January 10, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, should be affirmed.
Judgment, Supreme Court, Bronx County, rendered January 10, 2000, affirmed.
7.2.6.2.2.4.3 People v. Beardsley 7.2.6.2.2.4.3 People v. Beardsley
206 150 MICHIGAN REPORTS.
PEOPLE v. BEARDSLEY.
Error to Oakland; Smith, J.
Submitted April 18, 1907.
(Docket No. 62.)
Decided December 10, 1907.
Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than five years in the State prison at Jackson. Reversed, and respondent discharged.
Aaron Perry and M. F. Lillis, for appellant.
Frank L. Covert, Prosecuting Attorney, and Charles 8. Matthews, Assistant Prosecuting Attorney, for the people.
MCALVAY, C. J. Respondent was convicted of manslaughter before the circuit court for Oakland county, and was sentenced to the State prison at Jackson for a minimum term of one year and a maximum term not to exceed five years. He was a married man living at Pontiac, and at the time the facts herein narrated occurred, he was working as a bartender and clerk at the Columbia Hotel. He lived with his wife in Pontiac, occupying two rooms on the ground floor of a house. Other rooms were rented to tenants, as was also one living room in the basement. His wife being temporarily absent from the city, respondent arranged with a woman named Blanche Burns, who at the time was working at another hotel, to go to his apartments with him. He had been acquainted with her for some time. They knew each others habits and character. They had drunk liquor together, and had on two occasions been in Detroit and spent the night together in houses of assignation. On the evening of Saturday, March 18, 1905, he met her at the place where she worked, and they went together to his place of residence. They at once began to drink and continued to drink steadily, and remained together, day and night, from that time until the afternoon of the Monday following, except when respondent went to his work on Sunday afternoon. There was liquor at these rooms, and when it was all used they were served with bottles of whiskey and beer by a young man who worked at the Columbia Hotel, and who also attended respondent's fires at the house. He was the only person who saw them in the house during the time they were there together. Respondent gave orders for liquor by telephone. On Monday afternoon, about one o'clock, the young man went to the house to see if anything was wanted. At this time he heard respondent say they must fix up the rooms, and the woman must not be found there by his wife, who was likely to return at any time. During this visit to the house the woman sent the young man to a drug store to purchase, with money she gave him, camphor and morphine tablets. He procured both articles. There were six grains of morphine in quarter-grain tablets. She concealed the morphine from respondent's notice, and was discovered putting something into her mouth by him and the young man as they were returning from the other room after taking a drink of beer. She in fact was taking morphine. Respondent struck the box from her hand. Some of the tablets fell on the floor, and of these, respondent crushed several with his foot. She picked up and swallowed two of them, and the young man put two of them in the spittoon. Altogether it is probable she took from three to four grains of morphine. The young man went away soon after this. Respondent called him by telephone about an hour later, and after he came to the house requested him to take the woman into the room in the basement which was occupied by a Mr. Skoba. She was in a stupor and did not rouse when spoken to. Respondent was too intoxicated to be of any assistance and the young man proceeded to take her downstairs. While doing this Skoba arrived, and together they put her in his room on the bed. Respondent requested Skoba to look after her, and let her out the back way when she waked up. Between nine and ten o'clock in the evening Skoba became alarmed at her condition. He at once called the city marshal and a doctor. An examination by them disclosed that she was dead.
Many errors are assigned by respondent, who asks to have his conviction set aside. The principal assignments of error are based upon the charge of the court, and refusal to give certain requests to charge, and are upon the theory that under the undisputed evidence in the case, as claimed by the people and detailed by the people's witnesses, the respondent should have been acquitted and discharged. In the brief of the prosecutor his position is stated as follows:
"It is the theory of the prosecution that the facts and circumstances attending the death of Blanche Burns in the house of respondent were such as to lay upon him a duty to care for her, and the duty to take steps for her protection, the failure to take which, was sufficient to constitute such an omission as would render him legally responsible for her death. * * * There is no claim on the part of the people that tie respondent * * * was in any way an active agent in bringing about the death of Blanche Burns, but simply that he owed her a duty which he failed to perform, and that in consequence of such failure on his part she came to her death."
Upon this theory a conviction was asked and secured.
The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21 Cyc. p. 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. 1 Bishop on Criminal Law (6th Ed.), § 217; 2 Bishop on Criminal Law (6th Ed.), § 695; 21 Am. & Eng. Enc. Law (2d Ed.), p. 99; 21 Cyc. p. 770 et seq.; State v. Noakes, 70 Vt. 247; 2 Wharton on Criminal Law (7th Ed.), § 1011; Clark & Marshall on Crimes (2d Ed.), p. 379 (e), and cases cited.
Although the literature upon the subject is quite meagre and the cases few, nevertheless, the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows:
"If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him as be might have done with- out jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason of his omis- sion of duty the dependent person dies.
"So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body, is bound to execute the charge with proper diligence and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die." 21 Am. & Eng. Enc. Law (2d Ed.), p. 197, notes and cases cited.
The following brief digest of cases gives the result of our examination of American and English authorities, where the doctrine of criminal liability was involved when death resulted from an omission to perform a claimed duty. We discuss no cases where statutory provisions are involved.
In Territory v. Manton, 8 Mont. 95, a husband was convicted of manslaughter for leaving his intoxicated wife one winter's night lying in the snow, from which exposure she died. The conviction was sustained on the ground that a legal duty rested upon him to care for and protect his wife, and that his neglect to perform that duty, resulting in her death, he was properly convicted.
State v. Smith, 65 Me. 257, is a similar case. A husband neglected to provide clothing and shelter for his insane wife. He left her in a bare room without fire during severe winter weather. Her death resulted. The charge in the indictment is predicated upon a known legal duty of the husband to furnish his wife with suitable protection.
In State v. Behm, 72 Iowa, 533, the conviction of a mother of manslaughter for exposing her infant child without protection, was affirmed upon the same ground. See, also, Gibson v. Commonwealth, 106 Ky. 360.
State v. Noakes, supra, was a prosecution and conviction of a husband and wife for manslaughter. A child of a maid servant was born under their roof. They were charged with neglecting to furnish it with proper care. In addition to announcing the principle in support of which the case is already cited, the court said:
"To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal, legal duty, the natural and ordinary consequences of neglecting which would be dangerous to life."
In reversing the case for error in the charge—not necessary to here set forth—the court expressly stated that it did not concede that respondents were under a legal duty to care for this child because it was permitted to be born under their roof, and declined to pass upon that question.
In a Federal case tried in California before Mr. Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard, the learned Justice in charging the jury said:
"There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter. * * * In the first place the duty omitted must be a plain duty * * * In the second place it must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety." United States v. Knowles, 4 Sawyer (U. S.), 517.
The following English cases are referred to as in accord with the American cases above cited, and are cases where a clear and known legal duty existed: Beg. v. Conde, 10 Cox Crim. Cas. 547; Beg. v. Bugg, 12 Cox Crim. Cas. 16.
The case of Beg. v. Nicholls, 13 Cox Crim. Cas. 75, was a prosecution of a penniless old woman, a grandmother, for neglecting to supply an infant grandchild left in her charge with sufficient food and proper care. The case was tried at assizes in Stafford before Brett, J., who said to the jury:
"If a grown up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy, or other infirmity, be is bound to execute that charge without (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter."
The vital question was whether there had been any such negligence in the case designated by the trial judge as wicked negligence. The trial resulted in an acquittal. The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and having assumed it, will beheld to be under an implied legal duty to care for and protect such person. The duty assumed being that of care taker and protector to the exclusion of all others.
Another English case decided in the appellate court, Lord Coleridge, C. J., delivering the opinion, is Reg. v. Instan, 17 Cox Crim. Cas. 602. An unmarried woman without means lived with and was maintained by her aged aunt. The aunt suddenly became very sick, and for ten days before her death was unable to attend to herself, to move about, or to do anything to procure assistance. Before her death no one but the prisoner had any knowledge of her condition. The prisoner continued to live in the house at the cost of the deceased and took in the food supplied by the tradespeople. The prisoner did not give food to the deceased, or give or procure any medical or nursing attendance for her; nor did she give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. In the opinion, Lord Coleridge, speaking for the court, said:
"It is not correct to say that every moral obligation is a legal duty; but every legal duty is founded upon a moral obligation. In this case, as in most cases, the legal duty can be nothing else than taking upon one's self the performance of the moral obligation. There is no ques- tion whatever that it was this woman's clear duty to impart to the deceased so much of that food, which was taken into the house for both and paid for by the deceased, as was necessary to sustain her life. The deceased could not get it for herself. She could only get it through the prisoner. It was the prisoner's clear duty at common law to supply it to the deceased, and that duty she did not periorm. Nor is there any question that the prisoner's failure to discharge her legal duty, if it did not directly cause, at any rate accelerated, the death of the deceased. There is no case directly on the point; but it would be a slur and a stigma upon our law if there could be any doubt as to the law to be derived from the principle of de- cided cases, if cases were necessary. There was a clear moral obligation, and a legal duty founded upon it; a duty willfully disregarded and the death was at least accelerated, if not caused, by the nonperformance of the legal duty."
The opening sentences of this opinion are so closely connected with the portion material to this discussion that they could not well be omitted. Quotation does not necessarily mean approval. We do not understand from this opinion that the court held that there was a legal duty founded solely upon a moral obligation. The court indicated that the law applied in the case was derived from the principles of decided cases. It was held that the prisoner had omitted to perform that which was a clear duty at the common law. The prisoner had wrongfully appropriated the food of the deceased and withheld it from her. She was the only other person in the house, and had assumed charge of her helpless relative. She was under a clear legal duty to give her the food she withheld, and under an implied legal duty by reason of her assumption of charge and care, within the law as stated in the case of Reg. v. Nicholls, supra. These adjudicated cases and all others examined in this investigation we find are in entire harmony with the proposition first stated in this opinion.
Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to
save her; the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent it must arise by implication from the facts and circumstances already recited. The record in this case discloses that the deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him. Her entire conduct indicates that she had ample experience in such affairs.
It is urged by the prosecutor that the respondent "stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform." The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor's brief. Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like cir- cumstances had voluntarily gone on a debauch together and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman, change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. We find no more apt words to apply to this case than those used by Mr. Justice Field in United States v. Knowles, supra.
"In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger; * * * and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society."
Other questions discussed in the briefs need not be considered. The conviction is set aside, and respondent is ordered discharged.
MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.
7.2.6.2.2.4.4. Restatement of Contracts, Second, §§ 71, 81
7.2.6.2.2.4.5 Vermont Duty to Aid the Endangered Act 7.2.6.2.2.4.5 Vermont Duty to Aid the Endangered Act
12 V.S.A. § 519.
Emergency medical care
§ 519. Emergency medical care
A. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
B. A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.
C. A person who willfully violates subsection (a) of this section shall be fined not more than $100.00. (1967, No. 309 (Adj. Sess.), §§ 2-4, eff. March 22, 1968.)
7.2.6.2.3 II.C. Mens Rea 7.2.6.2.3 II.C. Mens Rea
Mens rea—a guilty mind—is the second part of criminal culpability, and undoubtedly one of the most complex subjects we will study in this course. Intricately tied into concepts of blameworthiness, mens rea can determine whether the same conduct and result constitute a blameless accident or a capital offense. The cases and readings in this section represent a range of mens rea categories, from a lack of mens rea to various grades of mens rea: negligence, recklessness, knowledge, and purpose. As you will see here and throughout this course, there are gradations and exceptions even within these categories. The questions these cases raise are fundamental to the study of criminal law. As you read through them, consider why each crime requires the mens rea that is attached to it, whether you think that requirement is fair, and the impact of the mens rea requirement on the enforcement of the law. How would the crime have been adjudicated under different mens rea requirements? Does the requirement track your sense of moral blameworthiness?
7.2.6.2.3.1. U.C.C. § 2-209
7.2.6.2.3.2 Regina v. Cunningham 7.2.6.2.3.2 Regina v. Cunningham
REGINA v. CUNNINGHAM.
[Reported by G. D. BLACK, Esq., Barrister-at-Law.]
Criminal Law - Mens Rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether “wickedness” equivalent to “malice” in statutory crime - Whether “maliciously” postulates foresight of consequence - Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), s. 23.
The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W., who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under the Offences against the Person Act, 1861, s. 23,[1] with unlawfully and maliciously causing to take a noxious thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that “maliciously" meant “wickedly”-doing “something which he has no business to do and perfectly well knows it.” On an appeal against conviction:-
Held, allowing the appeal, that the word maliciously” in a statutory crime postulated foresight of consequence, and that an offence to be committed under section 23 it was necessary for the accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be done, for him recklessly to take the risk of it.
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.
APPEAL against conviction.
The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he pleaded Guilty, and there was no appeal in that respect. The second indictment, framed under section 23 of the Offences against the Person Act, 1861, charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger her life, and to that he pleaded Not Guilty. Oliver J. directed the jury that for the purpose of the section "maliciously" meant wickedly doing "something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.” The appellant was convicted, and appealed on the ground of misdirection of the jury.
The facts are fully set out in the judgment of Byrne J.
S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or not. There is no authority decided on the point under section 28, but Reg. v. Pembliton,[2] a case under section 51 of the Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: See per Lord Coleridge C.J. and Blackburn J.[3]Pembliton's case[4] was considered in Reg. v. Latimer,[5] a decision under Section 20 of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of “malice " contended for applies equally to offences against the person as it does to offences against property. Oliver J.’s direction to the jury that “malice” meant “wickedness is insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.
J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the jury. He conceded that it would be to difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faullmer[6] and Reg. v. Martin.[7]
Cur. adv. vult.
May 27. BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.
The facts were that the appellant was engaged to be married and his prospective mother-in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.
On the evening of January 17, 1957, the appellant went the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months imprisonment. In respect of that matter he does not appeal.
The facts were not really in dispute, and in a statement to a police officer the appellant said: “All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it the wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.
At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court submitted that there was no case to go to the jury, but the judge, quite rightly in our opinion, rejected this submission. The appellant did not give evidence.
The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of section 23 of the Offences against the Person Act, 1861.
Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23 provides:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”
Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word "maliciously.” He cited the following cases: Reg. v. Pembliton[1*], Reg. v. Latimer[2*] and Reg v. Faulkner[3*]. In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin.[4*]
We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:
“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured."
The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.
We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton’s case.[5*] In our opinion the word maliciously in a statutory crime postulates foresight of consequence.
In his summing-up Oliver J. directed the jury as follows:
“You will observe that there is nothing there about 'with intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.”
“The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he “intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.
In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word maliciously in the context of section 23, would without doubt have convicted.
In these circumstances this court has no alternative but to allow the appeal and quash the conviction.
Appeal allowed.
Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecutions.
[1] Offences against the Person Act, 1861, s. 23:
"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."
[2] (1874) L.R. 2 C.C.R. 119.
[3] Ibid. 122.
[4] L.R. 2 C.C.R. 119.
[5] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[6] (1877) 13 Cox C.C. 550.
[7] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[1*] (1874) L.R. 2 C.C.R. 119.
[2*] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[3*] (1877) 13 Cox C.C. 550.
[4*] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[5*] L.R. 2 C.C.R. 119, 122.
7.2.6.2.3.3 United States v. Jewell 7.2.6.2.3.3 United States v. Jewell
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Demore JEWELL, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[698] Robert W. Ripley, Jr., San Diego, Cal., for defendant-appellant.
William A. Bower, Asst. U. S. Atty., on the brief, James W. Meyers, Asst. U. S. Atty., on the petition for rehearing, Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.
Certiorari Denied July 21, 1976. See 96 S.Ct. 3173.
OPINION
BROWNING, Circuit Judge:
We took this case in banc to perform a simple but necessary "housekeeping" chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. § 841(a)(1), as a "general intent" crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent "to manufacture, distribute, or dispense." United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.
This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that "The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing." 501 F.2d at 1346. We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975).
In the course of in banc consideration of this case, we have encountered another problem that divides us.
Appellant defines "knowingly" in 21 U.S.C. §§ 841 and 960 to require that positive knowledge that a controlled substance is involved be established as an element of each offense. On the basis of this interpretation, appellant argues that it was reversible error to instruct the jury that the defendant could be convicted upon proof beyond a reasonable doubt that if he did not have positive knowledge that a controlled substance was concealed in the automobile he drove over the border, it was solely and entirely because of the conscious purpose on his part to avoid learning the truth. The majority concludes that this contention is wrong in principle, and has no support in authority or in the language or legislative history of the statute.
It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was [699] false.[1] On the other hand there was evidence from which the jury could conclude that appellant spoke the truth — that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery.[2] If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.
Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was — he didn't because he didn't want to find it."
The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake.[3] [700] The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States (count 1: 21 U.S.C. § 952(a)), and that he "knowingly" possessed the marihuana (count 2: 21 U.S.C. § 841(a)(1)). The court continued:
The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.
The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, "One with a deliberate anti-social purpose in mind . . . may deliberately `shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having `knowledge' of the facts as they are ultimately discovered to be."[4] J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . `knowingly.'"[5] Professor Glanville Williams states, on the basis both English and American authorities, "To the requirement of actual knowledge there is one strictly limited exception. . . . [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge."[6] Professor Williams concludes, "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."[7]
The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.
This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: "When knowledge of the existence of a particular fact is an element of an offense, such [701] knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."[8] As the Comment to this provision explains, "Paragraph (7) deals with the situation British commentators have denominated `wilful blindness' or `connivance,' the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist."[9]
The Supreme Court, in Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969), applied the Model Penal Code definition of knowledge in determining the meaning of "knowing" in former 21 U.S.C. § 176a. In Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970), the Court adopted the Model Penal Code definition in defining "knowingly" in 21 U.S.C. § 174.[10] The Turner opinion recognizes that this definition of "knowingly" makes actual knowledge unnecessary: "[T]hose who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin." 298 F.2d at 849. The Supreme Court again adopted the Model Penal Code definition of knowledge and approved the language of Griego in Barnes v. United States, 412 U.S. 837, 845 & n.10, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380, 387 (1973).
It is true that neither Leary, Turner, nor Barnes involved a jury instruction. However, United States v. Squires, 440 F.2d 859, 863-64 & n.12 (2d Cir. 1971), and United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973), recognize that the Supreme Court's approval of the Model Penal Code definition of knowledge implies approval of an instruction that the requirement of knowledge is satisfied by proof of a "conscious purpose to avoid learning the truth."[11] The implication seems inevitable, [702] in view of the approval of Griego in Turner and Barnes.
"Deliberate ignorance" instructions have been approved in prosecutions under criminal statutes prohibiting "knowing" conduct by the Courts of Appeals of the Second, Sixth, Seventh, and Tenth Circuits.[12] In many other cases, Courts of Appeals reviewing the sufficiency of evidence have approved the premise that "knowingly" in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it.[13] These lines of authority [703] appear unbroken. Neither the dissent nor the briefs of either party has cited a case holding that such an instruction is error or that such evidence is not sufficient to establish "knowledge."[14]
There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved "deliberate ignorance" instructions in prosecutions under 21 U.S.C. § 841(a), or its predecessor, 21 U.S.C. § 174.[15] Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term "knowingly" in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the "cluster of ideas" attached to such a familiar term of art. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288, 300 (1952). Congress was aware of Leary and Turner,[16] and expressed no dissatisfaction with their definition of the term.
Appellant's narrow interpretation of "knowingly" is inconsistent with the Drug Control Act's general purpose to deal more effectively "with the growing menace of drug abuse in the United States."[17] Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband — in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing. See notes 12, 13, and 15.
It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant's interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.
It begs the question to assert that a "deliberate ignorance" instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term "knowingly" in the statute. If it means positive knowledge, then, of course, [704] nothing less will do. But if "knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.[18]
It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance.[19] "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew."[20] In the language of the instruction in this case, the government must prove, "beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth."[21]
No legitimate interest of an accused is prejudiced by such a standard, and society's interest in a system of criminal law that is enforceable and that imposes sanctions upon all who are equally culpable requires it.
The conviction is affirmed.
[705] ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).
Jewell was convicted and received concurrent sentences on two counts: (1) knowingly or intentionally importing a controlled substance, 21 U.S.C. §§ 952(a), 960(a)(1); (2) knowingly or intentionally possessing, with intent to distribute, a controlled substance, id. § 841(a)(1). We agree with the majority that the jury was not required to find, as to count one, that the defendant knew which controlled substance he possessed. We further agree that the additional state of mind required by count two — intent to distribute the substance — must be specifically proven as an element of a section 841(a)(1) violation.
The sole question raised by appellant is whether the following jury instruction constitutes reversible error:
The Government has the burden of proving beyond a reasonable doubt, as to Count 2:
1. That the defendant knowingly brought the marijuana into the United States and with respect to Count 2 that he knowingly possessed the marijuana as charged.
The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.
At the outset, it is arguable that the "conscious purpose to avoid learning the truth" instruction is inherently inconsistent with the additional mens rea required for count two — intent to distribute. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it.[1] In any event, we would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.[2]
The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place.[3] The doctrine is commonly said to apply in deciding whether one who acquires property under suspicious circumstances should be charged with knowledge that it was stolen.[4]
One problem with the wilful blindness doctrine is its bias towards visual means of acquiring knowledge. We may know facts from direct impressions of the other senses or by deduction from circumstantial evidence, and such knowledge is nonetheless "actual." Moreover, visual sense impressions [706] do not consistently provide complete certainty.[5]
Another problem is that the English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, "actual" knowledge.[6] When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy.[7]
Finally, the wilful blindness doctrine is uncertain in scope. There is disagreement as to whether reckless disregard for the existence of a fact constitutes wilful blindness or some lesser degree of culpability.[8] Some cases have held that a statute's scienter requirement is satisfied by the constructive knowledge imputed to one who simply fails to discharge a duty to inform himself.[9] There is also the question of whether to use an "objective" test based on the reasonable man, or to consider the defendant's subjective belief as dispositive.[10]
The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts,[11] the English doctrine:
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of [707] its existence, unless he actually believes that it does not exist.
This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court. Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970); Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969).
In light of the Model Penal Code's definition, the "conscious purpose" jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form "a conscious purpose to avoid learning the truth" unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.
The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he "actually believed" there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge — that a reasonable man should have inspected the car and would have discovered what was hidden inside. One recent decision reversed a jury instruction for this very deficiency — failure to balance a conscious purpose instruction with a warning that the defendant could not be convicted if he actually believed to the contrary. United States v. Bright, 517 F.2d 584, 586-89 (2d Cir. 1975).
Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or "not actually aware" that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge.[12] A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it.
The majority opinion cites three cases, all in the Second Circuit, which approve conscious purpose instructions in prosecutions under the same statute as Jewell was charged. In two of these cases the jury instruction included one of the elements of the Model Penal Code provision which was omitted in the instant case.[13] Of course, jury instructions should be considered in context and not subjected to unduly technical analysis. Yet we remain convinced that the instructions given in this case were erroneous; they could have permitted the jury to convict Jewell without being certain beyond a reasonable doubt that he possessed the mens rea required for knowing possession or importation under 21 U.S.C. §§ 841(a) & 960(a).
We do not agree with the majority that we can only reverse if the conscious purpose instruction constituted "plain error." Before the instruction was given, the defense [708] counsel objected "strenuously" on the basis that the jury could convict Jewell for failure to make an adequate attempt to check out the car. When the trial judge rejected this argument, the defense counsel further requested that he "add an addendum" to the charge so the jury would understand it properly. The trial court rejected this suggestion as well, and cut off further argument, saying "The record may show your objection."
Although the defense counsel did not fully anticipate our analysis of the conscious purpose instruction, he came close. (1) He gave a reason for his objection — that the instruction would allow conviction without proof of the scienter element. (2) He further suggested adding "an addendum" to warn the jury against misinterpreting the instruction. We believe these objections were sufficient to require reversal on appeal unless the deficiencies in the instruction were harmless error.[14]
We do not question the sufficiency of the evidence in this case to support conviction by a properly-instructed jury.[15] As with all states of mind, knowledge must normally be proven by circumstantial evidence. There is evidence which could support a conclusion that Jewell was aware of a high probability that the car contained a controlled substance and that he had no belief to the contrary. However, we cannot say that the evidence was so overwhelming that the erroneous jury instruction was harmless. Accordingly, we would reverse the judgment on this appeal.
[1] Appellant testified that a week before the incident in question he sold his car for $100 to obtain funds "to have a good time." He then rented a car for about $100, and he and a friend drove the rented car to Mexico. Appellant and his friend were unable to adequately explain their whereabouts during the period of about 11 hours between the time they left Los Angeles and the time they admitted arriving in Mexico.
Their testimony regarding acquisition of the load car follows a pattern common in these cases: they were approached in a Tijuana bar by a stranger who identified himself only by his first name — "Ray." He asked them if they wanted to buy marihuana, and offered to pay them $100 for driving a car north across the border. Appellant accepted the offer and drove the load car back, alone. Appellant's friend drove appellant's rented car back to Los Angeles.
Appellant testified that the stranger instructed him to leave the load car at the address on the car registration slip with the keys in the ashtray. The person living at that address testified that he had sold the car a year earlier and had not seen it since. When the Customs agent asked appellant about the secret compartment in the car, appellant did not deny knowledge of its existence, but stated that it was in the car when he got it.
There were many discrepancies and inconsistencies in the evidence reflecting upon appellant's credibility. Taking the record as a whole, the jury could have concluded that the evidence established an abortive scheme, concocted and carried out by appellant from the beginning, to acquire a load of marihuana in Mexico and return it to Los Angeles for distribution for profit.
[2] Both appellant and his companion testified that the stranger identified as "Ray" offered to sell them marihuana and, when they declined, asked if they wanted to drive a car back to Los Angeles for $100. Appellant's companion "wanted no part of driving the vehicle." He testified, "It didn't sound right to me." Appellant accepted the offer. The Drug Enforcement Administration agent testified that appellant stated "he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn't find anything, and, therefore, he assumed that the people at the border wouldn't find anything either" (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, "Well, you know, I saw a void there, but I didn't know what it was." He testified that he did not investigate further. The Customs agent testified that when he opened the trunk and saw the partition he asked appellant "when he had that put in." Appellant told the agent "that it was in the car when he got it."
The jury would have been justified in accepting all of the testimony as true and concluding that although appellant was aware of facts making it virtually certain that the secret compartment concealed marihuana, he deliberately refrained from acquiring positive knowledge of the fact.
[3] The court said:
An act is done knowingly if it's done voluntarily and intentionally and not because of mistake or accident or other innocent reason.
The purpose of adding the word "knowingly" was to insure that no one would be convicted for acts done because of an omission or failure to act due to mistake or accident or other innocent reason.
[4] R. Perkins, Criminal Law 776 (2d ed. 1969).
[5] Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 298 (1954). Later in his discussion Mr. Edwards writes, "[N]o real doubt has been cast on the proposition that connivance is as culpable as actual knowledge. We have already seen the diverse fashions in which this state of mind has been defined, ranging from the original expression `wilful shutting of the eyes' and its closest counterpart `wilful blindness,' to the less forceful but equally satisfactory formulae `purposely abstaining from ascertaining' and `wilfully abstaining from knowing.'" Id. at 302.
[6] G. Williams, Criminal Law: The General Part, § 57 at 157 (2d ed. 1961).
[7] Id. at 159. Mr. Williams' concluding paragraph reads in its entirety:
The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
[8] Model Penal Code 27 (Prop. Official Draft 1962).
[9] Model Penal Code 129-30 (Tent. Draft No. 4, 1955). Comment 9 reads in full as follows:
Paragraph (7) deals with the situation British commentators have denominated "wilful blindness" or "connivance," the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist. See Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294 (1954); [G. Williams, Criminal Law: The General Part § 41 (1st ed. 1953)]. Whether such cases should be viewed as instances of acting recklessly or knowingly presents a subtle but important question.
The draft proposes that the case be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant's conduct, necessarily a matter of the future at the time of acting. The position reflects what we believe to be the normal policy of criminal enactments which rest liability on acting "knowingly," as is so commonly done. The inference of "knowledge" of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest, contrary belief. The draft solidifies this usual result and clarifies the terms in which the issue is submitted to the jury.
[10] See also United States v. Freed, 401 U.S. 601, 613 n.5, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356, 364 (1971) (Brennan, J., concurring).
[11] Jacobs involved convictions under 18 U.S.C. §§ 2314 and 2315 prohibiting dealings in securities "knowing the same to have been stolen." The charge read:
The third element of the offense is that the defendant knew that the Treasury Bills had been stolen. Knowledge is not something that you can see with the eye or touch with the finger. It is seldom possible to prove it by direct evidence. The government relies largely on circumstantial evidence in this case to establish knowledge.
In deciding whether a particular defendant under consideration by you knew the bills were stolen you should consider all the circumstances such as how the defendant handled the transaction, how he conducted himself. Do his actions betray guilty knowledge that he was dealing with stolen securities or are his actions those of a duped, innocent man?
Guilty knowledge cannot be established by demonstrating merely negligence or even foolishness on the part of a defendant. However, it is not necessary that the government prove to a certainty that a defendant knew the bills were stolen. Such knowledge is established if the defendant was aware of a high probability that the bills were stolen, unless the defendant actually believed that the bills were not stolen.
Knowledge that the goods have been stolen may be inferred from circumstances that would convince a man of ordinary intelligence that this is the fact. The element of knowledge may be satisfied by proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him.
Thus if you find that a defendant acted with reckless disregard of whether the bills were stolen and with a conscious purpose to avoid learning the truth the requirement of knowledge would be satisfied, unless the defendant actually believed they were not stolen.
Furthermore, I instruct you that proof of a sale and purchase at a substantially discounted price permits an inference that the parties to the transaction knew of the illicit character of the items sold.
You should scrutinize the entire conduct of the defendant at or near the time the offenses are alleged to have been committed.
475 F.2d at 287 n.37 (emphasis added).
[12] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975) (21 U.S.C. § 841(a)(1); upheld the following jury instruction: "If you find from all the evidence beyond a reasonable doubt either that the defendant knew that she was helping in a cocaine transaction, or that she had a conscious purpose to avoid finding out the identity of the substance so as to close her eyes to the facts, you could find sufficient evidence to find her guilty beyond a reasonable doubt"); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974) (21 U.S.C. §§ 952(a) & 841(a)(1)); United States v. Joly, 493 F.2d 672 (2d Cir. 1974) (21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1) & (2); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973) (18 U.S.C. § 922(a)(6): firearms); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973) (conspiracy to violate 18 U.S.C. §§ 2314 & 2315: stolen securities); United States v. Grizaffi, 471 F.2d 69, 75 (7th Cir. 1972) (18 U.S.C. §§ 371, 1008, 1341; LaBuy Instruction No. 4.05, 33 F.R.D. 553 (1965), approved); United States v. Sarantos, 455 F.2d 877, 880-81 (2d Cir. 1972) (18 U.S.C. §§ 371, 1001, 1546); United States v. Squires, 440 F.2d 859, 864 & n.12 (2d Cir. 1971) (18 U.S.C. § 922(a)(6); Model Penal Code followed — jury instruction rejected because it should have included "deliberate ignorance"); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (conviction under former 21 U.S.C. §§ 173 & 174; instructions properly refused "since they failed to include the element of `a conscious purpose to avoid learning the source of the heroin'"); United States v. Joyce, 499 F.2d 9, 23 (7th Cir. 1974) (18 U.S.C. § 1341; LaBuy Instruction No. 4.05 approved); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (reversal of conviction under former 21 U.S.C. § 174; jury should be given "deliberate ignorance" instruction).
United States v. Bright, 517 F.2d 584, 586-88 (2d Cir. 1975), reversed a conviction because the trial court refused to add to a "deliberate ignorance" instruction the qualification "unless he actually believes it did not exist," found in Model Penal Code § 2.02(7). This question was not raised below, or in this court, perhaps because the evidence to support it was lacking. See note 2 supra. See also United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).
[13] United States v. De Garces, 518 F.2d 1156, 1160 (2d Cir. 1975) (21 U.S.C. §§ 952(a), 960(a)(1)); United States v. Frank, 494 F.2d 145, 152-53 (2d Cir. 1974) (transporting stolen money, 18 U.S.C. §§ 371, 1341-1343, 2314); United States v. Brawer, 482 F.2d 117, 126-27 (2d Cir. 1973) (18 U.S.C. §§ 2, 371 & 2314, transporting stolen securities); United States v. Egenberg, 441 F.2d 441, 444 (2d Cir. 1971) (false statements, 18 U.S.C. § 1001, 26 U.S.C. § 7206(2)); United States v. Abrams, 427 F.2d 86, 91 (2d Cir. 1970) (false statements, 18 U.S.C. §§ 2, 1001); United States v. Sheiner, 410 F.2d 337, 340-41 (2d Cir. 1969) (18 U.S.C. § 331 and others); Verdugo v. United States, 402 F.2d 599, 604 (9th Cir. 1968) (former 21 U.S.C. § 174); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (specific intent in 21 U.S.C. § 841(a)(1)); United States v. Yasser, 114 F.2d 558, 560 (3d Cir. 1940) (predecessor of 18 U.S.C. § 152; dicta); cf. United States v. Cooperative Grain & Supply Co., 476 F.2d 47, 59 (8th Cir. 1973) (dicta that guilty avoidance of knowledge can supplant positive knowledge under 18 U.S.C. § 287); Rachmil v. United States, 43 F.2d 878, 881 (9th Cir. 1930) (per curiam) (dicta regarding predecessor to 18 U.S.C. § 152).
[14] The cases cited in appellant's briefs hold only that knowledge that the substance possessed is a narcotic or controlled substance was an element of the particular offenses involved. None holds that such knowledge cannot be established by proof that the possessor was aware of facts making it highly probable that the substance was a narcotic or controlled substance and lacked positive knowledge only because he consciously avoided it.
[15] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974); United States v. Joly, 493 F.2d 672 (2d Cir. 1974); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (under former 21 U.S.C. §§ 173 & 174, instruction properly refused because it did not include "deliberate ignorance"); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (on remand under former 21 U.S.C. § 174, jury should be instructed on "deliberate ignorance"); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (under 21 U.S.C. § 841(a)(1) sufficiency of evidence of specific intent to possess and distribute LSD).
[16] See, e. g., Drug Abuse Control Amendments — 1970, Hearings before the Subcomm. on Public Health & Welfare of the House Comm. on Interstate & Foreign Commerce, 91st Cong., 2d Sess., at 697, 705-06 (1970); 116 Cong.Rec. 33661 (1970) (col. 2).
[17] See, e. g., H.R.No.91-1444, Sept. 10, 1970, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News 4566, 4567 (1970).
[18] The argument that a "deliberate ignorance" instruction relieves the jury of finding knowledge was rejected in United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974).
[19] As Judge Feinberg said in United States v. Sarantos, 455 F.2d 877, 881 (2d Cir. 1972), the purpose of the "deliberate ignorance" instruction is "to prevent an individual . . . from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct."
[20] G. Williams, supra note 6, at 159.
[21] We do not suggest that the instruction given in this case was a model in all respects. The jury should have been instructed more directly (1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless he actually believes it does not exist.
The deficiency in the instruction does not require reversal, however. Appellant did not object to the instruction on this ground either below or in this court. Since both of the elements referred to are implied in the instruction, the deficiency in the instructions is not so substantial as to justify reversal for plain error. See United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).
Appellant did not argue below or in this court that the instruction did not require an awareness of a high probability that the controlled substance was present. An objection on this ground would have little merit. The instruction given (that "[appellant's] ignorance in that regard was solely and entirely the result of his having made a conscious purpose to disregard the nature of that which was in the vehicle") suggests that the accused must be aware of facts making the presence of the contraband all but certain. Only if the accused were aware of such facts could his ignorance of the presence of the marihuana be "solely and entirely" the result of his conscious purpose to avoid the truth. Under this instruction, neither reckless disregard nor suspicion followed by failure to make full inquiry would be enough.
Nor did appellant suggest in the court below or in this court that the instruction given was deficient because it failed to state specifically (as we think would have been preferable) that appellant could not be convicted if he actually believed there was no controlled substance in the car. The reason appellant does not raise this objection may be, again, that the instruction given includes the limitation by reasonable inference. If appellant were ignorant of the presence of contraband solely and entirely because he "made a conscious purpose to disregard the nature of that which was in the vehicle," as the instruction given requires, it would hardly be a realistic possibility that he might at the same time have entertained a good faith belief that there was no contraband present. Nor did the instruction permit the jury to convict on an "objective" rather than "subjective" theory of the knowledge requirement; that is, on the theory that appellant was chargeable with knowledge because a reasonable man would have inspected the car more thoroughly and discovered the contraband inside. See United States v. Bright, 517 F.2d 584, 587-88 (2d Cir. 1975). The negligence theory was advanced by the government but was rejected by the trial court. The instruction given by the trial court required the jury to find that appellant had a deliberate purpose to avoid the truth. Moreover, the jury was expressly informed that an act was not done "knowingly" within the meaning of the statute if it was done by "mistake or accident or other innocent purpose."
In the circumstances of this case, it was not plain error requiring reversal for the instruction to fail to define knowledge explicitly in terms of an awareness of a high probability of the presence of the contraband and the absence of a belief that the contraband was not present.
[1] "Want of knowledge . . . may disprove the existence of a specific intent. Thus one cannot intend to steal property which he believes to be his own however careless he may have been in coming to that belief." R. Perkins, Criminal Law 778 (2d ed. 1969) (footnote omitted).
[2] The challenged instruction was given for count two only, but it would seem to be applicable as well to the state of mind required for count one. A jury would be easily confused by the apparent difference in standards, at least absent explicit instructions on the point. Therefore we think it would be inappropriate to invoke the concurrent sentence rule to affirm Jewell's conviction on the basis of count one.
[3] See, e. g., Bosley v. Davies, [1875] L.R. 1 Q.B. 84.
[4] See 2 R. Anderson, Wharton's Criminal Law and Procedure § 568 (1957 & Supp.1975). This situation — use of circumstantial evidence to prove a contemporaneous state of mind — should be distinguished from the use of one fact to support the inference of a previous event. See McAbee v. United States, 434 F.2d 361, 362-63 (9th Cir. 1970) (permissive inference that possessor of property recently stolen in another state was the thief and had transported it in interstate commerce).
[5] See United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967).
[6] See G. Williams, Criminal Law: The General Part § 57, at 157 (2d ed. 1961) ("To the requirement of actual knowledge there is one strictly limited exception."); Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 302 (1954) (wilful blindness is "as culpable as actual knowledge).
The use of the term "actual knowledge" in this manner is misleading in suggesting the possibility of achieving a state of total certainty, and that only such knowledge is "actual." In fact, we commonly act on less than complete information and in this world may never know one-hundred-percent certainty.
`Absolute knowledge can be had of very few things,' said the Massachusetts court, and the philosopher might add `if any.' For most practical purposes `knowledge' `is not confined to what we have personally observed or to what we have evolved by our own cognitive faculties.'
R. Perkins, supra note 1, at 775, quoting Story v. Buffam, 90 Mass. 35, 38 (8 Allen) (1864), and State v. Ransberger, 106 Mo. 135, 140, 17 S.W. 290, 292 (1891).
[7] This case does not present the question of how far Congress could reduce the requirement of a mens rea for possession of drugs. The statutes use the terms "knowingly or intentionally." It is true that a strict interpretation of the scienter requirement may produce fewer convictions in combating "the growing menace of drug abuse." But the Supreme Court has cautioned that "the purpose of every statute would be `obstructed' by requiring a finding of intent, if we assume that it had a purpose to convict without it." Morissette v. United States, 342 U.S. 246, 259, 72 S.Ct. 240, 247, 96 L.Ed. 288, 298 (1952). Here it is clear that Congress intended to require knowledge as an element of these offenses.
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.
Id. at 263, 72 S.Ct. at 249, 96 L.Ed. at 300.
[8] Compare G. Williams, supra note 6, at 158-59, with Edwards, supra note 6, at 303-06. A "reckless disregard" instruction was approved in one case relied upon by the majority. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974).
[9] E. g., Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 815, 43 L.Ed. 1150, 1153 (1899). These cases generally involve regulatory statutes, the violation of which is malum prohibitum. Riss & Co. v. United States, 262 F.2d 245, 248-51 (8th Cir. 1958). Yet one case relied upon by the majority regarded Spurr as "comparable" to the former narcotics importation statute. See Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962).
[10] See R. Perkins, supra note 1, at 778 & n.77; R. Anderson, supra note 4, at 281-82 & nn.6-8.
[11] Professor Perkins observes that section 2.02(7) of the Model Penal Code "covers must less than `knowledge' as it has been interpreted as a mens-rea requirement in the common law." With regard to the receipt of stolen property, he criticizes the Code for not imposing liability in "the case of the man who has no belief one way or the other, but has been put on notice that it may be stolen and `shuts his eyes' in order not to find out." R. Perkins, supra note 1, at 799.
[12] See note 7 supra.
[13] See United States v. Olivares-Vega, 495 F.2d 827, 830 nn.10 & 11 (2d Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 494, 42 L.Ed.2d 293 (1974) (instruction required acquittal if defendant believed he did not possess controlled substance); United States v. Joly, 493 F.2d 672, 674 (2d Cir. 1974) (conscious purpose to avoid enlightenment when he "had every reason to believe" he possessed a controlled substance). The third case cited by the majority is discussed in note 14 infra.
[14] Thus the instant case is distinguishable from United States v. Dozier, 522 F.2d 224 (2d Cir. 1975). There counsel made no objection to the jury charge, and the Second Circuit held the conscious purpose instruction was not so unbalanced as to constitute plain error. Id. at 228.
[15] Thus we have no disagreement with the sufficiency-of-evidence cases cited in note 13 of the majority opinion. However, they are not in point for the instant appeal.
7.2.6.2.3.4 R. v. Prince 7.2.6.2.3.4 R. v. Prince
R. v. PRINCE
[COURT FOR CONSIDERATION OF CROWN CASES RESERVED (Cockburn, C.J., Kelly, C.B., Bramwell, B., Blackburn, Mellor and Lush, JJ., Cleasby, B., Brett, Grove, Denman, Quain and Archibald, JJ., Pollock and Amphlett, BB., Field and Lindley, JJ.), May 29, June 12, 1875]
[Reported L.R. 2 C.C.R. 154; 44 L.J.M.C. 122; 32 L.T. 700; 39 J.P. 676; 24 W.R. 76; 13 Cox, C.C. 138]
Criminal Law - Abduction - Girl under 16 - Defence - Bona fide and reasonable belief that girl over 16.
By s. 55 of the Offences against the Person Act, 1861:
“Whosoever shall unlawfully take ... any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdeameanor . . .”
Held (BRETT, J., dissentiente): it was no defence to a charge under this section that the defendant believed, bona fide and reasonably, that the girl was older than sixteen.
Notes. Section 55 of the Offences against the Person Act, 1861, has been replaced by s. 20 of the Sexual Offences Act, 1956 (36 HALSBURY’S STATUTES (2nd Edn.) 227), the words “without lawful authority” being substituted for “unlawfully” in the earlier Act.
Distinguished: R. v. Moore (1877), 13 Cox, C.C. 544. Considered: R. v. Tolson, [1886-90] All E.R.Rep. 26; Sherras v. de Rutzen, [1895-9] All E.R.Rep. 1167; R. v. Maughan (1934), 24 Cr. App. Rep. 130. Referred to: Cundy v. Le Cocq, [1881-5] All E.R.Rep. 412; Chisholm v. Doulton (1889), 60 L.T. 966; Derbyshire v. Houliston, [1897] 1 Q.B. 772; Burrows v. Rhodes. [1895-9) All E.R.Rep. 117; Hobbs v. Winchester Corpn.., [1910] 2 K.B. 471; R. v. Wheat, R. v. Stoel(s, [1921J All R.R.Rep. 602; R. v. Denyer, [1926] 2 K.B. 258; R. v. St. Margaret's Trust. Ltd., [1958] 2 All E.R. 289.
As to abduction, see 10 HALSBURY'S LAWS (3rd Edn.) 756-759; and for cases relating to girls under 16, see 15 DIGEST (Repl.) 1030-1032.
Cases referred to :
(1) R. v. Robins (1844), 1 Car. & Kir. 456; 15 Digest (Repl.) 1031, 10, 117.
(2) R. v. Olifier (1866), 10 Cox, C.C. 402; 15 Digest (Repl.) 1030, 10, 116.
(3) R. v. Forbes and Webb (1865), 10 Cox, C.C. 362; 15 Digest (Repl.) 854. 8220.
(4) R. v. Sleep (1861), Le. & Ca. 44; 30 L.J.M.C. 170; 4 L.T. 525; 25 J.P. 532; 7 Jur.N.S. 979; 9 W.R. 709; 8 Cox, C.C. 472, C.C.R.; 15 Digest (Repl.) 863, 8295.
(5) R. v. Mycock (1871), 12 Cox, C.C. 28; 15 Digest (Repl.) 1031, 10, 127.
(6) R. v. Booth (1872), 12 Cox. C.C. 231; 15 Digest (Repl.) 1032, 10, 136.
(7) R. v. Greenhill (1836),4 Ad. & R!. 624; 6 Nev. & M.K.B. 244; 111 R.R. 922; 28 Digest (Repl) 621, 1240.
(8) R. v. Howes (1860),3 R. & R. 332; 30 L.J.M.C. 47; 25 J.P. 23; 7 Jur.N.S. 22; 121 E.R. 467; sub nom. Ex parte Bar/ord, 3 L.T. 467; 9 W.R. 99; S Cox, C.C. 405; 15 Digest (Repl.) 1028, 10, 095.
(9) Ratcliff's Case (1592), 3 Co. Rep. 37a; 76 R.R. 713; 28 Digest (Rep!.) 652, 1461.
(10) Lady Fulwood's Case (1638). Cro. Car. 484.
(11) R. v. Marsh (1824),2 B. & C. 717; 4 Dow. & By.K.B. 260; 2 Dow. & By.M.C. 182; 107 E.R. 550; 14 Digest (Bepl.) 37, 73.
(12) Lee v. Simpson (1847),3 C.B. 871; 4 Dow. & L. 666; 16 L.J.C.P. 105; 8 L.T.O.S. 310; 11 Jur.127; 136 R.B. 349; 13 Digest (Repl.) 118, 592.
(13) Morden v. Porter (1860), 7 C.B.N.S. 641; 29 L.J.M.C. 213; 1 L.T. 403; 25 J.P. 263; 8 W.R. 262; 141 R.R. 967; 25 Digest (Repl.) 387,145.
(14) R. v. Hicklin (1868), L.R. 3 Q.B. 360; 37 L.J.M.C. 89; 16 W.R. 801; 11 Cox, C.C. 19; sub nom. Jl. v. Wolverhampton (Recorder), 18 L.T. 395; sub nom. Scott v. Wolverhampton Justices, 32 J.P. 533; 15 Digest (Repl.) 895,8625.
(15) Fowler v. Padget (1798), 7 Term Rep. 509; 101 R.R. 1103; 4 Digest (Repl.) 78, 668.
(16) Hearne v. Garton (1859),2 E. & E. 66; 28 L.J.M.C. 216; 33 L.T.O.S. 256; 23 J.P. 693; 5 JUT.N.S. 648; 7 W.R. 566; 121 E.R. 26; 14 Digest (Repl.) 37, 76.
(17) Taylor v. Newman (1863), 4 B. & S. 89; 2 New Rep. 275; 32 L.J.M.C. 186; S L.T. 424; 27 J.P. 502; 11 W.R. 752; 9 Cox, C.C. 314; 122 E.B. 393; 2 Digest (Repl.) 302, 95.
(18) Buckmaster v. Reynolds (1862), 13 C.B.N.S. 62; 143 E.B. 25; 33 Digest (Repl.) 324, 1474.
(19) R. v. Hibbert (1869), L.R. 1 C.C.R. 184; 38 L.J.M:.C. 61; 19 L.T. 799; 33 J.P. 243; 17 W.R. 384; 11 Cox, C.C. 246, C.C.R.; 15 Digest (Repl.) 1031, 10,131.
(20) R. v. Green. (1862),3 F. & F. 274; 15 Digest (Repl.) 1031, 10, 130.
(21) R. v. Tinkler (1859), 1 F. & F. 513; 15 Digest (Rep!.) 1032, 10, 137.
(22) R. v. Cohen (1858),8 Cox, C.C. 41; 15 Digest (Repl.) 863, 8294.
(23) R. v. Turner and Reader (1830), 1 Mood.C.C. 239; 1 Lew.C.C. 9; sub nom. R. v. Reader, 4 C. & P. 245; 2 Man. & Ry.M.C. 297, C.C.R.; 15 Digest (Repl.) 1207.12.276.
(24) R. v. Ryan and Connor (1837), 2 Mood.C.C. 15.
Also referred to in argument:
R. v. Kipps (1850),4 Cox, C.C. 167; 15 Digest (Repl.) 1030, 10, 112.
R. v. Meadows (1844),1 Car. & Kir. 399; 15 Digest (Repl.) 1030, 10, 111.
R. v. Timmins (1860), Bell, C.C. 276; 30 L.J.M.C. 45; 3 L.T. 337; 25 J.P. 453; 6 Jur.N.S. 1309; 9 W.E. 36; 8 Cox, C.C. 401, C.C.B.; 15 Digest (Repl.) 1031, 10, 125.
A.·G. v. Lookwood (1842), 9 M. & W. 378; 152 E.R. 160; affirmed sub nom. Lockwood v. A.·G., 10 M. & W. 484; 152 E.R.552, Ex. Ch.; 39 Digest 235, 103.
Case Reserved for the opinion of the court by DENMAN, J.
At the assizes for Surrey held at Kingston-on-Thames on Mar. 24, 1875, Henry Prince was tried before DENMAN, J., on the charge of having unlawfully taken one Annie Phillips, an unmarried girl being under the age of sixteen years, out of the possession, and against the will of her father, contrary to s. 55 of the Offences against the Person Act, 1861. He was found guilty, but judgment was respited in order that the opinion of the Court for Crown Cases Reserved might be taken. All the facts necessary prima facie to support a conviction existed and were found by the jury to have existed, but the defendant pleaded in defence that the girl Annie Phillips, though proved by her father to be fourteen years old on April 6, 1875, looked very much older than sixteen, and the jury found upon reasonable evidence that before the defendant took her away she had told him that she was eighteen, that the defendant bona fide believed that statement, and that such belief was reasonable. If the court were of the opinion that under those circumstances a conviction was right, the defendant was to appear for judgment at the next assizes for Surrey; otherwise the conviction was to be quashed: see R. v. Robins (1); R. v. Olifier (2).
No counsel appeared for the prisoner.
Lilley for the prosecution.
Cur. adv. vult.
June 12, 1875. BRAMWELL, B., read the following judgment, to which KELLY, C.B., CLEASBY, B., GROVE, J., POLLOCK, B., and AMPHLETT, B., assented. --
The question in the case depends on the construction of the statute under which the prisoner is indicted. Section 55 of the Offences against the Person Act, 1861, enacts that:
"Whosoever shall unlawfully take ... any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour . . . "
The word "unlawfully" means "not lawfully," "otherwise than lawfully," "with-out lawful cause" - such as would exist for instance on a taking by a police officer on a charge of felony or a taking by a father of his child from her school. The statute, therefore, may be read thus: "Whosoever shall take etc. without lawful cause." The prisoner had no such cause, and consequently except in so far as it helps the construction of the statute, the word "unlawfully" may, in the present case, be left out, and then the question is: Has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father? In fact he has; but it is said not within the meaning of the statute, and that that must be read as though the word "knowingly" or some equivalent word was in.
The reason given is that as a rule mens rea is necessary to make any act a crime or offence, and that, if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea. I have used the word "knowingly," but it will perhaps be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself: "I do not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen; and that though, if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when he believes he knows that she is over sixteen. It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within the statute unless he, the taker, knows she is under sixteen - that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words arc not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that mens rea is necessary to make an act a crime.
I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. 1 have not lost sight of this, that D though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl - it does not say a woman, but a girl something between a child and a woman - it supposes she is in the possession of her father or mother, or other person having lawful care and charge of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is, then, a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that the legislature meant it should be at the risk of the taker, whether or not the girl was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself; she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of anyone. If I am asked where I draw the line, I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act he does it at the risk of the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words "knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty as it clearly was not lawful.
This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Section 50 makes it a felony unlawfully and carnally to know a girl under the age of ten. Section 51 enacts (when she is above ten and under twelve) that unlawfully and carnally to know her is a misdemeanour. Can it be supposed in the former ease, a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in a case under s. 51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong. For the statute says if "unlawfully" done. The act done with mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So s. 56 by which whoever shall take away any child under fourteen, with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say I did take away the child to steal its clothes, but I believed it to be over fourteen? If not, then neither could he say I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen. Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where intent is to take the child out of the possession of the parent. If these words cannot be introduced in s. 56, why can they be in s. 55?
The same principle applies in these cases. In R. v. Forbes and Webb (8) a man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer. Why? because the act was wrong in itself. So also in the case of burglary; could a person charged claim an acquittal on the ground that he believed it was past 6 a.m. when he entered, or in house-breaking that he did not know the place broken into was a house. As to the case of marine stores it was held properly that there was no mens rea where the person charged with the possession of naval stores with the Admiralty mark did not know the stores he had bore the mark: R. v. Sleep (4); because there is nothing prima facie wrong or immoral in having naval stores unless they are so marked. But suppose someone told him there was a mark, and he had said he would chance whether or not it was the Admiralty mark. So in the case of the carrier with game in his possession, unless he knew he had it, there would be nothing done or permitted by him, no intentional act or omission. So of the vitriol senders there was nothing wrong in sending such packages as were sent unless they contained vitriol: Hearne v. Garton (16). Take also the case of libel where the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong. He would not be entitled to be acquitted, because there was no mens rea. Why? Because the act of publishing written defamation is wrong where there is no lawful cause. Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute no doubt bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty, and equally impossible when he believes, but ·erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed.
BLACKBURN, J., read the following judgment to which COCKBURN, C.J., MELLOR, QUAIN, LUSH, ARCHIBALD, FIELD and LINDLEY, JJ., assented.-
In this case we must take it as found by the jury that the prisoner took an unmarried girl out of the possession, and against the will of her father, and that the girl was in fact under the age of sixteen, but that the prisoner bona fide, and on reasonable grounds, believed that she was above sixteen, viz., eighteen years old. No question arises as to what constitutes a taking out of the possession of her father, nor as to what circumstances might justify such taking as not being unlawful, nor as to how far an honest though mistaken belief that such circumstances as would justify the taking existed, might form an excuse, for as the Case is reserved we must take it as proved that the prisoner knew that the girl was in the possession of her father and that he took her knowing that he trespassed on the father's rights and had no colour of excuse for so doing.
The question, therefore, is reduced to whether the words in s. 55 of the Offences against the Person Act, 1861, that whosoever shall unlawfully take "any unmarried girl being under the age of sixteen, out of the possession of her father" are to be read as if they were "being under the age of sixteen, and he knowing she was under that age." No such words are contained in the statute, nor is there the word "maliciously," "knowingly," or any other word used that can be said to involve a similar meaning. The argument in favour of the prisoner must, therefore, entirely proceed on the ground that in general a guilty mind is an essential ingredient in a crime, and that where a statute creates a crime the intention of the legislature should be presumed to be to include "knowingly" in the definition of the crime, and the statute should be read as if that word were inserted, unless the contrary intention appears. We need not inquire at present whether the canon of construction goes quite so far as above stated, for we are of opinion that the intention of the legislature sufficiently appears to have been to punish the abductor unless the girl, in fact, was of such an age as to make her consent an excuse irrespective of whether he knew her to be too young to give an effectual consent, and to fix that age at sixteen.
The section in question is one of a series of enactments beginning with s. 50 forming a code for the protection of women and the guardians of young women. These enactments are taken with scarcely any alteration from the repealed statute, the Offences against the Person Act, 1828, which had collected them into a code from a variety of old statutes all repealed by it. Section 50 enacts that:
"Whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be guilty of felony."
By s. 51:
"Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour."
It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour because she was, in fact, not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was, in fact, old enough to give a valid consent. The man who has connection with a child relying on her consent does it at his peril if she is below the statutable age.
Section 55, on which the present case arises, uses precisely the same words as those in ss. 50 and 51, and must be construed in the same way, and if we refer to the repealed statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557], from s. 3 of which the words in s. 55 are taken with very little alteration, it strengthens the inference that such was the intention of the legislature. The preamble states as the mischief aimed at, that female children, heiresses, and others having expectations, were, unawares of their friends, brought to contract marriages of disparagement "to the great heaviness of their friends," and then to remedy this enacts by the first section that it shall not be lawful for anyone to take an unmarried girl being under sixteen out of the custody of her father or the person to whom he either, by will or by act in his lifetime, gives the custody, unless it be bona fide done by or for the master or mistress of such child, or the guardian in chivalry or in socage of such child. This recognizes a legal right to the possession of the child depending on the real age of the child, and not on what appears. The object of the legislature, being as it appears by the preamble to protect this legal right to the possession, would be baffled if it was an excuse that the person guilty of the taking thought the child above sixteen. The words "unlawfully take" as used in s. 3 of 4 & 5 Phil. & Mary, e. 8 [Abduction Act, 1557], mean without the authority of the master, or mistress, or guardian mentioned in the immediately preceding section.
There is not much authority on the subject, but it is all in favour of this view. In R. v. Robins (1) ATCHERLY, SERJT., then acting as a judge of assize, so ruled (apparently though the report leaves it a little ambiguous) with the approval of TINDAL, C.J. In R. v. Olifier (2) BRAMWELL, B., so ruled at the Central Criminal Court, apparently arriving at the conclusion independently of R. v. Robins (1). In R. v. Mycock (5) WILLES, J., without R. v. Olifer (2) being brought to his notice, acted on R. v. Robins (1), saying that a person who took a young woman from the custody of her father, must take the consequences if she proved under age. And QUAIN, J., followed this decision in R. v. Booth (6). We think those rulings were right, and consequently that the conviction in the present case should stand.
BRETT, J. - In this case the prisoner was indicted under s. 55 of the Offences against the Person Act, 1861, for that he did unlawfully take an unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father. According to the statement of the Case, we are to assume that it was proved on the trial that he did take an unmarried girl out of the possession and against the will of her father, and that when he did so the girl was under the age of sixteen years. But the jury found that the girl went with the prisoner willingly, that she told the prisoner that she was eighteen years of age, that he believed that she was eighteen years of age, and that he had reasonable grounds for so believing.
The question is whether upon such proof and such findings of the jury, the prisoner ought or ought not, in point of law, to be pronounced guilty of the offence with which he was charged. He, in fact, did each and everything which is enumerated in the statute as constituting the offence to be punished, if what he did was done unlawfully within the meaning of the statute. If what he did was not unlawful within the meaning of the statute, it seems impossible to say that he ought to be convicted. The question, therefore, is whether the findings of the jury, which are in favour of the prisoner, prevent what he is proved to have done from being unlawful within the meaning of the statute. It cannot, as it seems to me, properly be assumed that what he did was unlawful within the meaning of the statute, for that is the very question to be determined. On the one side it is said that the prisoner is proved to have done every particular thing which is enumerated in the Act as constituting the offence to be punished, and that there is no legal justification for what he did, and, therefore, that it must be held, as matter of law, that what he did was unlawful within the meaning or the statute, and that the statute was, therefore, satisfied, and the crime completed. On the other side, it is urged, that if the facts had been as the prisoner believed them to be, and as by the findings of the jury he might reasonably believe them to be, and he was deceived into believing them to be, he would have been guilty of no criminal offence at all, and, therefore, that what he did was not criminally unlawful within the meaning of the criminal statute under which he was indicted.
It has been said that, even if the facts had been as the prisoner believed them to be, he would still have been doing a wrongful act. The first point, therefore, to be considered would seem to be what would have been the legal position of the prisoner, if the facts had been, as he believed them to be, that is to say: What is the legal position of a man who, without force, takes a girl of more than sixteen years of age, but less than twenty-one years of age, out of the possession of her father, and against his will? The statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557J has been said to recognise the legal right of a father to the possession of an unmarried daughter up to the age of sixteen. The statute 12 Car. 2, c. 24 [Tenures Abolition Act, 1660], seems to recognise the right of a father to such possession up to the age of twenty-one. MR. HARGRAVE in notes 12 and 15 to Co. LITT. 88 b, seems to deduce a right in the father to possession up to the age of twenty-one from those two statutes, and that such right is to be called in law a right jure naturae. If the father's right be infringed, he may apply for a habeas corpus. When the child is produced in obedience to such writ, issued upon the application of a father, if the child be under twenty-one, the general rule is that
"if [the child] be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of discretion would only expose him to dangers or seductions, the court must make an order for his being placed in the proper custody . . . and that undoubtedly is the custody of the father": LORD DENMAN, C.J., in R. v. Greenhill (7), 4 Ad. & EI. at p. 640.
But if the child be a female under sixteen, the court will order it to be handed over to the father, in the absence of certain objections to his custody, even though the child object to return to the father. If the child be between sixteen and twenty-one, and refuse to return to the father, the-court, even though the child be a female, gives to the child the election as to the custody in which it will be.
In R. v. Howe (8) COCKBURN, C.J., says (3 E. &E. at pp. 836, 837):
"Now the cases which have been decided on this subject show that, although a father is entitled to the custody of his children till they attain the age of twenty-one, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion, for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide which we may safely follow in pointing out sixteen as the age up to which the father's right to the custody of his female child is to continue, and short of which such a child has no discretion to consent to leaving him."
But if a man takes out of her father's possession without force, and with her consent, a daughter between sixteen and twenty-one, the father would seem to have no legal remedy for such taking. It may be that the father, if present at the taking, might resist such taking by necessary force, so that to an action for assault by the man he might plead a justification. But for a mere taking, without seduction, there is no action which the father could maintain. There never was a writ applicable to such a cause of action. The writ of "ravishment of ward" was only to such as had the right to the marriage of the infant, and was, therefore, only applicable where the infant was an heir to property, whose marriage was, therefore, valuable to the guardian: see Ratcliff's Case (9). No such action now exists, and if it did, it would not be applicable to any female child, at all events, not to any who was heir apparent. Neither can a man who, with her consent, and without force, takes a daughter, who is more than sixteen years old, but less than twenty-one, out of her father's possession or custody, be indicted for such taking. There never has been such an indictment.
The statute 3 Hen. 7, c. 2 [Abduction of Women Act, 1487], was enacted against
"the taking any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, etc., be felony."
It was held in Lady Fulwood's Case (10), that the indictment must further charge that the defendant carried away the woman with intent to marry or defile her. Two things, therefore, were necessary which are not applicable to the point now under discussion, namely, that the taking should be against the will·of the person taken, and that there should be the intent to marry or defile. The statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557], deals with the taking out of or from the possession, custody, or government of the father, etc., any maid or woman child, unmarried, being under the age of sixteen years. For a mere unlawful taking the punishment is imprisonment for two years; for a taking and marriage five years, and the girl if she be more than twelve years old, and consents to the marriage, forfeits her inheritance. The Offences against the Person Act, 1861, s. 19, is enacted against "the taking of a woman against her will with intent to marry or defile her," etc. The same statute, s. 20, is as to an unmarried girl being under the age of sixteen years. It follows from this review that if the facts had been as the prisoner, according to the finding of the jury believed them to be, he would have done no act which has ever been a criminal offence in England; he would have done no act in respect of which any civil action could have ever been maintained against him; he would have done no act for which, if done in the absence of the father, and done with the continuing consent of the girl, the father could have had any legal remedy.
We have, then, next to consider the terms of the statute, and what is the meaning in it of the word "unlawfully." The usual system of framing criminal Acts has been to specify each and every act intended to be subjected to any punishment (CRIMINAL LAW CONSOLIDATION ACTS, by GREAVES, Introduction, p. xli), and then in some way to declare whether the offence is to be considered as a felony or as a misdemeanour, and then to enact the punishment. It seems obvious that it is the prohibited acts which constitute the offence, and that the phraseology which indicates the class of the offence does not alter or affect the facts, or the necessary proof of those facts, which constitute the offence. There are several usual forms of criminal enactment. "If anyone shall, with such or such an intent, do such and such acts, he shall be guilty of felony, or misdemeanour, as the case may be." Whether the offence is declared to be a felony or a misdemeanour depends upon the view of the legislature as to its heinousness. But the class in which it is placed does not alter the proof requisite to support a charge of being guilty of it. Under such a form of enactment there must 00 proof that the acts were done, and done with the specified intent. Other forms are: "If anyone shall feloniously do such and such acts, he shall be liable to penal servitude," etc., or "if anyone shall unlawfully do such and such acts, he shall be liable to imprisonment," etc. The first of these forms makes the offence a felony by the use of the word "feloniously"; the second makes the offence a misdemeanour by the use of the word "unlawfully." The words are used to declare the class of the offence; but they denote also a part of that which constitutes the offence. They denote that which is equivalent to, though not the same as, the specific intent mentioned in the first form to which allusion has been made. Besides denoting the class of the offence, they denote that something more must be proved than merely that the prisoner did the prohibited acts. They do not necessarily denote that evidence need in the first instance be given of more than that the prisoner did the prohibited acts; but they do denote that the jury must find, as matter of ultimate proof, more than that the prisoner did the prohibited acts.
What is it that the jury must be satisfied is proved beyond merely that the prisoner did the prohibited acts? It is suggested that they must be satisfied that the prisoner did the acts "with a criminal mind"; that there was mens rea. The true meaning of that phrase is to be discussed hereafter. If it be true that this must be proved, the only difference between the second form and the first form of enactment is that in the first the intent is specified, but in the second it is left generally as a criminal state of mind. As between the two second forms the evidence either direct or inferential to prove the criminal state of mind must be the same. The proof of the state of mind is not altered or affected by the class in which the offence is placed.
Another common form of enactment is: "If any person knowingly, willfully, and maliciously do such or such acts, he shall be guilty of felony"; or "If any person knowingly and willfully do such or such acts he shall be guilty of misdemeanour"; or "if any person knowingly, willfully, and feloniously do such or such acts, he shall be liable," etc.; or "if he knowingly and unlawfully do such and such acts, he shall be liable," etc. The same explanation is to be given of all these forms as between each other as before. They are mere differences in form. And though they be all, or though several of them be in one consolidating statute, they are not to be construed by contrast.
"If any question should arise in which any comparison may be instituted between different sections of anyone or several of these Acts, it must be care- fully borne in mind in what manner these Acts were framed. None of them was rewritten; on the contrary, each contains enactments taken from different Acts passed at different times, and with different views, and frequently varying from each other in phraseology, and for the reasons stated in the introduction, these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout"; GREAVES ON CRIMINAL LAW CONSOLIDATION ACTS, p. 3.
I have said that as between each other the same explanation is to be given of these latter forms of enactments as of the former mentioned in this judgment. But as between these latter and the former forms there is the introduction in the latter of such words as knowingly, willfully, maliciously. Willfully is more generally applied when the prohibited acts are in their natural consequences, not necessarily or very probably, noxious to the public interest, or to individuals, so that an evil mind is not the natural inference or consequence to be drawn from the doing of the acts. The presence of the word requires somewhat more evidence on the part of the prosecution to make out a prima facie case, than evidence that the prisoner did the prohibited acts. So as to the word "maliciously." It is used where the prohibited acts mayor may not be such as in themselves import, prima facie, a malicious mind. In the same way the word "knowingly" is used where the noxious character of the prohibited acts depends upon a knowledge in the prisoner of their noxious effect, other than the mere knowledge that he is doing the acts; the presence of the word calls for more evidence on the part of the prosecution. But the absence of the word does not prevent the prisoner from proving to the satisfaction of the jury, that the mens rea to be prima facie inferred from his doing the prohibited acts, did not in fact exist.
In R. v. Marsh (11) the measure of the effect of the presence in the enactment of the word "knowingly," is explained. The information and conviction were against a carrier for having game in his possession, contrary to the statute 5 Anne, c. 14, which declared
"that any carrier having game in his possession is guilty of an offence, unless it be sent by a qualified person."
The only evidence given was that the defendant was a carrier, and that he had game in his wagon on the road. It was objected that there was no evidence that the defendant knew of the presence of the game, or that the person who sent it was not a qualified person. The judges held that there was sufficient prima facie evidence, and that it was not rebutted by the defendant by sufficient proof on his part of the ignorance suggested on his behalf. The judgments clearly import that if the defendant could have satisfied the jury of his ignorance, it would have been a defence, though the word "knowingly" was not in the statute. In other words, that its presence or absence in the statute, only alters the burden of proof.
BAYLEY, J., said (2 B. & C. at p. 722):
"Then, as to knowledge, the clause itself says nothing about it. If that had been introduced, evidence to establish knowledge must have been given on the part of the prosecution j but under this enactment the party charged must show a degree of ignorance sufficient to excuse him. Here there was prima facie evidence that the game was in his possession as carrier. Then it lay on the defendant to rebut that evidence."
LITTLEDALE, J., said (ibid, at pp. 723, 724):
"The game was found in his wagon employed in the course of his business as a carrier. That raises a presumption prima facie that he knew it, and that is not rebutted by the evidence given on the part of the defendant."
From these considerations of the forms of criminal enactments, it would seem that the ultimate proof necessary to authorise a conviction is not altered by the presence or absence of the word "knowingly," though by its presence or absence the burden of proof is altered and it would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind or mens rea in every offence really charged as a crime. In some enactments, or common law maxims of crime, and, therefore, in the indictments charging the committal of those crimes, the name of the crime imports that a mens rea must be proved, as in murder, burglary, etc. In some the mens rea is contained in the specific enactment as to the intent, which is made a part of the crime. In some the word "feloniously" is used, and in such cases it has never been doubted but that a felonious mind must ultimately be found by the jury. In enactments in a similar form, but in which the prohibited acts are to be classed as a misdemeanour, the word "unlawfully" is used, instead of the word "feloniously." What reason is there why in like manner a criminal mind or mens rea must not ultimately be found by the jury in order to justify a conviction, the distinction always being observed that in some cases the proof of the committal of the acts may prima facie, either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea. But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if in the end the jury are satisfied that there was no criminal mind or mens rea there cannot be a conviction in England for that which is by the law considered to be a crime.
There are enactments which by their form seem to constitute the prohibited acts into crimes, and yet by virtue of which enactments the defendants charged with the committal of the prohibited acts have been convicted in the absence of the knowledge or intention supposed necessary to constitute a mens rea. Such are the cases of trespass in pursuit of game, or of piracy of literary or dramatic works, or of the statutes passed to protect the revenue. But the decisions have been based upon the judicial declaration that the enactments do not constitute the prohibited acts into crime, or offences against the Crown, but only prohibit them for the purpose of protecting the individual interests of individual persons, or of the revenue. Thus in Lee v. Simpson (12), in an action for penalties for the representation of a dramatic piece, it was held that it was not necessary to show that the defendant knowingly invaded the plaintiff's right. But the reason of the decision given by WILDE, C.J. (3 C.B. at p. 883), is:
"The object of the legislature was to protect authors against the piratical invasion of their rights. In the sense of having committed an offence against the Act, of having done a thing that is prohibited, the defendant is an offender. But the plaintiff's rights do not depend upon the innocence or guilt of the defendant."
So the decision in Morden v. Porter (13) seems to be made to turn upon the view that the statute was passed in order to protect the individual property of the landlord in game reserved to him by his lease against that which is made a statutory trespass against him, although his land is in the occupation of his tenant. There are other cases in which the ground of decision is that specific evidence of knowledge or intention need not be given, because the nature of the prohibited acts is such that, if done, they must draw with them the inference that they were done with the criminal mind or intent, which is a part of every crime. Such is the case of the possession and distribution of obscene books. If a man possesses them and distributes them, it is a necessary inference that he must have intended that their first effect must be that which is prohibited by statute, and that he cannot protect himself by showing that his ultimate object or secondary intent was not immoral: R. v. Hicklin. (14). This and similar decisions go rather to show what is mens rea than to show whether there can or cannot be a conviction for crime proper without mens rea.
As to that last question, it has become very necessary to examine the authorities. In BLACKSTONE'S COMMENTARIES, by STEPHEN (2nd Edn.), vol. 4, book vi., OF CRlMES, p. 98, it is said:
"And as a vicious will, without a vicious act, is no civil crime, so, on the other hand, an unwarrantable act without a vicious will, is no crime at all. So that to constitute a crime against human laws there must be - first, a vicious will, and secondly, an unlawful act, consequent upon such vicious will. Now, there are three cases in which the will does not join with the act - first, where there is a defect of understanding, etc.; secondly, where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done, which is the case of all offenses committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it."
And at p. 105:
"Ignorance or mistake is another defect of will, when a man intending to do a lawful act does that which is unlawful. For here the deed and the will, acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or house. breaker in his own house, by mistake kills one of his family, this is no crime. nal action; but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so, this is willful murder."
In Fowler v. Padget (15), the jury found that they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors; but that delay did actually happen to some creditors. LORD KENYON said (7 Term Rep. at p. 514):
"Bankruptcy is considered as a crime, and the bankrupt in the old laws is called an offender, but it is a principle of natural justice and of our law, that actus non facit reum, nisi mens sit rea. The interest and the act must both concur to constitute the crime."
Again:
"I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for."
In Hearne v. Garton (16), the respondents were charged upon an information for I having sent oil of vitriol by the Great Western Railway without marking or stating the nature of the goods. By the Great Western Railway Act, 1885 [a private Act], s. 168, every person who shall send, or cause to be sent by railway any oil of vitriol, shall distinctly mark or state the nature of such goods on penalty of being fined or imprisoned. By s. 206, such penalty is recoverable in a summary way before justices, with power to imprison, etc. The respondents had sent oil of vitriol unmarked, but the justices found that there was no guilty knowledge, but, on the contrary, the respondents acted under the full belief that the goods were correctly described, and had previously used all proper diligence to inform themselves of the fact. They refused to convict. It must be observed in that case, as in the present, the respondents did the prohibited acts, and that in that case as in this, it was found as the ultimate proof that they were deceived into the belief of a different and non-criminal state of facts, and had used all proper diligence. The case is stronger perhaps than the present by reason of the word "unlawfully" being absent from that statute. The court upheld the decision of the magistrates, holding that the statute made the doing of the prohibited acts a crime, and, therefore, that there must be a criminal mind, which there was not. LORD CAMPBELL, C.J., said (2 E. & E. at p. 74):
"As to the latter reason, I think the justices were perfectly right: actus non facit reum, nisi mens sit rea. The act with which the respondents were charged is an offence created by statute, for which the person committing it is liable to a penalty or to imprisonment. Not only was there no proof of guilty knowledge on the part of the respondents, but the presumption of a guilty knowledge on their part, if any could be raised, was rebutted by the proof that a fraud had been practised on them. I am inclined to think they were civilly liable..."
ERLE, J., said (ibid. at pp. 75, 76):
"I was inclined to think, at first, that the provision was merely protective, but if it create a criminal offence, which I am not prepared to deny, then the mere sending by the respondents, without a guilty knowledge on their part, would not render them criminally liable although as they took Nicholas's word for the contents of the parcels . . . they would be civilly liable . . . "
In Taylor v. Newman (17) the information was under s. 23 of the Larceny Act, 1861, which provides: "Whosoever shall unlawfully and willfully kill . . . any pigeon," etc. The appellant shot on his farm pigeons belonging to a neighbour. The justices convicted on the ground that the appellant was not justified by law in killing the pigeons, and, therefore, that the killing was unlawful. In other words, they held that the only meaning of "unlawful," in the statute, was without legal justification. The court set aside the conviction, MELLOR, J., saying (4 B. & S. at p. 94):
"I think that [the statute] was not intended to apply to a case in which there was no guilty mind, and where the act was done by person under the honest belief that he was exercising a right."
In Buckmaster v. Reynolds (18), an information was laid for unlawfully, by a certain contrivance, attempting to obstruct or prevent the purposes of an election of a vestry. The evidence was that the defendant did obstruct the election because he forced himself and others into the room before eight o’clock, believing that eight o'clock was past. The question asked was whether an intentional obstruction by actual violence was an offence, etc. This question the court answered in the affirmative, so that there, as here, the defendant had done the prohibited acts.
But ERLE, J., continued:
"I accompany this statement [i.e., the answer to the question] by a statement that upon the facts set forth, I am unable to see that the magistrate has come to a wrong conclusion. A man cannot be said to be guilty of a delict unless, to some extent, his mind goes with the act. Here it seems that the respondent acted on the belief that he had a right to enter the room, and that he had no intention to do a wrongful act."
In R. v. Hibbert (19) the prisoner was indicted under the section now in question. The girl, who lived with her father and mother, left her home in company with another girl to go to a Sunday school. The prisoner. met the two girls, and induced them to go to Manchester. At Manchester he took them to a public house, and there seduced the girl in question, who was under sixteen. The prisoner made no inquiry, and did not know who the girl was or whether she had a father or mother living or not, but he had no reason to, and did not believe, that she was a girl of the town. The jury found the prisoner guilty, and LUSH, J., reserved the case. In the Court for Crown Cases Reserved, BOVILL, C.J., CHANNELL and PIGOTT, BB., BYLES and LUSH, JJ., quashed the conviction. BOVILL, C.J., said (L.R. 1 C.C.R. at p. 185):
"In the present case there is no statement of any finding of fact that the prisoner knew, or had reason to believe, that the girl was under the lawful care or charge of her father or mother, or any other person. In the absence of any finding of fact on this point the conviction cannot be supported."
This case was founded on R. v. Green (20) before MARTIN, B. The girl there was under fourteen, and lived with her father, a fisherman, at Southend. The prisoners saw her in the street by herself, and induced her to go with them; they took her to a lonely house, and there Green had criminal intercourse with her. MARTIN, B., directed an acquittal. He said (3 F. &F. at pp. 274, 275):
"There must be a taking out of the possession of the father. Here the prisoners picked up the girl in the streets, and for anything that appeared they might not have known that the girl had a father. The girl was not taken out of the possession of anyone. The prisoners no doubt had done a very immoral, but the question was whether they had committed an illegal, act. The criminal law ought not to be strained to meet a case which did not come within it. The act of the prisoners was scandalous, but it was not any legal offence."
In each of these cases the girl was surely in the legal possession of her father. The mere fact of her being in the street at the time could not possibly prevent her from being in the possession of her father. Everything, therefore, prohibited was done by the prisoner in fact. But in each case the ignorance of facts was held to prevent the case from being the crime to be punished.
In R. v. Tinkler (21), in a case under this section, COCKBURN, C.J., charged the jury thus (1 F. & F. at p. 514):
"It was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes's custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise, which he alleged he had made to her father, and that he did not suppose that he was breaking the law when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal."
The jury found the prisoner Not Guilty. In R. v. Sleep (4), the prisoner had possession of government stores, some of which were marked with the broad arrow. The jury, in answer to a question whether the prisoner knew that the copper, or any part of it, was marked, answered: "We have not sufficient evidence before us to show that he knew it." The Court for Crown Cases Reserved held that the prisoner could not be convicted. COCKBURN, C.J., said (8 Cox, C.C. at pp. 477, 478):
"Actus non facit reum, nisi mens sit rea, is the foundation of all criminal justice ... The ordinary principle that there must be a guilty mind to constitute a guilty act, applies to this case, and must be imported into this statute, as it was held in R. v. Cohen (22), where the conclusion of the law was stated by HILL, J., with his usual clearness and power. It is true that the statute says nothing about knowledge, but this must be imported into the statute."
POLLOCK, C.B., MARTIN, CROMPTON, and WILLES, JJ., agreed. In R. v. Robins (I), and R. v. Olifier (2), there was hardly such evidence as was given in this case as to the prisoner being deceived as to the age of the girl and having reasonable ground to believe the deception, and there certainly were no findings by the jury equivalent to the findings in this case. In R. v. Forbes and Webb (3), where the charge was one of assaulting a police constable in the execution of his duty, although the policeman in plain clothes, the prisoner certainly had strong ground to suspect, if not to believe, that he was a policeman, for the Case states that persons repeatedly called out to rescue the boy and pitch into the constable.
Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end in bringing the offence within a more serious class of crime. As if a man strike with a dangerous weapon with intent to do grievous bodily harm and kills. The result makes the crime murder; the prisoner has run the risk. So, if a prisoner do the prohibited acts without caring to consider what the truth is as to facts, as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk. So, if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve, if the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal offence at all. It may be true to say that the meaning of the word "unlawfully" is without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime, but, I come to the conclusion that a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with LORD KENYON that "such is our law," and with COCKBURN, C.J., that "such is the foundation of all criminal justice. "
DENMAN, J.-The defendant was indicted under s. 55 of the Offences against the Person Act, 1861. I cannot hold that the word, "unlawfully" is an immaterial word in an indictment framed upon this section. I think that it must be taken to have a meaning, and an important meaning, and to be capable of being either supported or negatived by evidence upon the trial: see R. v. Turner and Reader (23); R. v. Ryan and Connor (24). In the present case the jury found that the defendant had done everything requisite to bring himself within the section as a misdemeanant, unless the fact that he bona fide and reasonably believed the girl taken by him to be eighteen years old constituted a defence. That is, in other words, unless such bona fide reasonable belief prevented them from saying that the defendant, in what he did, acted unlawfully within the meaning of the section. The question, therefore, is whether upon this finding of the jury the defendant did "unlawfully," etc., the things which they found him to have done. The solution of this question depends upon the meaning of the word "unlawfully" in s. 55. If it means "with a knowledge or belief that every single thing mentioned in the section existed at the moment of the taking," undoubtedly the defendant would be entitled to an acquittal, because he did not believe that a girl under sixteen was being taken by him at all. If it only means without lawful excuse or justification, then a further question arises, viz., whether the defendant had any lawful excuse or justification for doing all the acts mentioned in the section as constituting the offence, by reason merely that he bona fide and reasonably believed the girl to be older than the age limited by the section. Bearing in mind the previous enactments relating to the abduction of girls under sixteen, the Abduction Act, 1557, s. 2, and the general decisions upon those enactments and upon the present statute, looking at the mischief intended to be guarded against, and for the reasons given in the judgments of BRAMWELL, B., and BLACKBURN, J., it appears to me reasonably clear that the word "unlawfully" in the true sense in which it was used, is fully satisfied by holding that it is equivalent to the words "without lawful excuse," using those words as equivalent to without such an excuse as, being proved, would be a complete legal justification for the act, even where all the facts constituting the offence exist. Cases may easily be suggested where such a defence might be made out; as, for instance, if it were proved that the prisoner had the authority of a court of competent jurisdiction, or of some legal warrant, or that he acted to prevent some illegal violence, not justified by the relation of parent and child, or schoolmistress or other custodian, and requiring forcible interference by way of protection.
In the present case the jury find that the defendant believed the girl to be eighteen years of age. Even if she had been of that age she would have been in the lawful care and charge of her father as her guardian by nature: see Co. LITT. 88b, n. 12, 19th Edn., recognised in R. v. Howes (8). Her father had a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will whose right to her personal custody would have extended up to the same age. The belief that she was eighteen would be no justification to the defendant for taking her out of his possession and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act - viz., in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen; and, therefore, unable to allege that what he had done was not unlawfully done within the meaning of the section. In other words, having knowingly done a wrongful act, viz., in taking the girl away from the lawful possession of her father against her will and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature. He had wrongfully and knowingly violated the father's rights against the father's will, and he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.
Conviction affirmed.
[Reported by JOHN THOMPSON, ESQ., Barrister-at-Law.]
7.2.6.2.3.5 Elonis v. United States 7.2.6.2.3.5 Elonis v. United States
ANTHONY DOUGLAS ELONIS, PETITIONER,
v.
UNITED STATES.
No. 13-983.
Supreme Court of the United States.
Argued December 1, 2014.
Decided June 1, 2015.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion.
CHIEF JUSTICE ROBERTS, delivered the opinion of the Court.
Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another." 18 U. S. C. §875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.
I
A
Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226. Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona." Id., at 249, 265. The lyrics Elonis posted as "Tone Dougie" included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were "fictitious," with no intentional "resemblance to real persons." Id., at 331, 329. Elonis posted an explanation to another Facebook user that "I'm doing this for me. My writing is therapeutic." Id., at 329; see also id., at 205 (testifying that it "helps me to deal with the pain").
Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id., at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his Facebook page:
"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.
This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.
Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164-165, 207. In the actual sketch, called "It's Illegal to Say . . .," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:
"Hi, I'm Tone Elonis.
Did you know that it's illegal for me to say I want to kill my wife? . . .
It's one of the only sentences that I'm not allowed to say. . . .
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife. . . .
Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife. . . .
But not illegal to say with a mortar launcher.
Because that's its own sentence. . . .
I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . ." Id., at 333.
The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id., at 333.
After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148-150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives to take care of the State Police and the Sheriff's Department." Id., at 334.
At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid. Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id., at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:
"That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class
The only question is . . . which one?" Id., at 335.
Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:
"You know your s***'s ridiculous when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin' [BOOM!]
Are all the pieces comin' together?
S***, I'm just a crazy sociopath that gets off playin' you stupid f***s like a fiddle
And if y'all didn't hear, I'm gonna be famous
Cause I'm just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism cause y'all think I'm ready to turn the Valley into Fallujah
But I ain't gonna tell you which bridge is gonna fall into which river or road
And if you really believe this s***
I'll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]" Id., at 336.
B
A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c). App. 14-17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis "intentionally made the communication, not that he intended to make a threat." App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis's view, he had posted "nothing . . . that hasn't been said already." Id., at 205. The Government presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. See, e.g., id., at 153, 158.
Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat." Id., at 21. See also id., at 267-269, 303. The District Court denied that request. The jury instructions instead informed the jury that
"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id., at 301.
The Government's closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats—"it doesn't matter what he thinks." Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months' imprisonment and three years' supervised release.
Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. 730 F. 3d 321, 332 (CA3 2013).
We granted certiorari. 573 U. S. ___ (2014).
II
A
An individual who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" is guilty of a felony and faces up to five years' imprisonment. 18 U. S. C. §875(c). This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat.
Elonis argues that the word "threat" itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J., dubitante). E.g., 11 Oxford English Dictionary 353 (1933) ("to declare (usually conditionally) one's intention of inflicting injury upon"); Webster's New International Dictionary 2633 (2d ed. 1954) ("Law, specif., an expression of an intention to inflict loss or harm on another by illegal means"); Black's Law Dictionary 1519 (8th ed. 2004) ("A communicated intent to inflict harm or loss on another").
These definitions, however, speak to what the statement conveys—not to the mental state of the author. For example, an anonymous letter that says "I'm going to kill you" is "an expression of an intention to inflict loss or harm" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.
For its part, the Government argues that Section 875(c) should be read in light of its neighboring provisions, Sections 875(b) and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an "intent to extort." See 18 U. S. C. §875(b) (proscribing threats to injure or kidnap made "with intent to extort"); §875(d) (proscribing threats to property or reputation made "with intent to extort"). According to the Government, the express "intent to extort" requirements in Sections 875(b) and (d) should preclude courts from implying an unexpressed "intent to threaten" requirement in Section 875(c). See Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").
The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an "intent to extort" from Section 875(c) is strong evidence that Congress did not mean to confine Section 875(c) to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted.
In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).
B
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that "wrongdoing must be conscious to be criminal." Id., at 252. As Justice Jackson explained, this principle is "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id., at 250. The "central thought" is that a defendant must be "blameworthy in mind" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332-333 (2d ed. 2003). Although there are exceptions, the "general rule" is that a guilty mind is "a necessary element in the indictment and proof of every crime." United States v. Balint, 258 U. S. 250, 251 (1922). We therefore generally "interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them." United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994).
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim "ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," Staples v. United States, 511 U. S. 600, 608, n. 3 (1994), even if he does not know that those facts give rise to a crime.
Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for "knowingly convert[ing]" property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248-249. This Court reversed the defendant's conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable "if he truly believed [the casings] to be abandoned." Id., at 271; see id., at 276.
By the same token, in Liparota v. United States, we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner. 471 U. S. 419, 420 (1985). The Government's argument, similar to its position in this case, was that a defendant's conviction could be upheld if he knowingly possessed or used the food stamps, and in fact his possession or use was unauthorized. Id., at 423. But this Court rejected that interpretation of the statute, because it would have criminalized "a broad range of apparently innocent conduct" and swept in individuals who had no knowledge of the facts that made their conduct blameworthy. Id., at 426. For example, the statute made it illegal to use food stamps at a store that charged higher prices to food stamp customers. Without a mental state requirement in the statute, an individual who unwittingly paid higher prices would be guilty under the Government's interpretation. Ibid. The Court noted that Congress could have intended to cover such a "broad range of conduct," but declined "to adopt such a sweeping interpretation" in the absence of a clear indication that Congress intended that result. Id., at 427. The Court instead construed the statute to require knowledge of the facts that made the use of the food stamps unauthorized. Id., at 425.
To take another example, in Posters `N' Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994). Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant's state of mind. Id., at 517-522. But, we held, an individual could not be convicted of selling such paraphernalia unless he "knew that the items at issue [were] likely to be used with illegal drugs." Id., at 524. Such a showing was necessary to establish the defendant's culpable state of mind.
And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct. 513 U. S., at 68. We rejected a reading of the statute which would have required only that a defendant knowingly send the prohibited materials, regardless of whether he knew the age of the performers. Id., at 68-69. We held instead that a defendant must also know that those depicted were minors, because that was "the crucial element separating legal innocence from wrongful conduct." Id., at 73. See also Staples, 511 U. S., at 619 (defendant must know that his weapon had automatic firing capability to be convicted of possession of such a weapon).
When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute "only that mens rea which is necessary to separate wrongful conduct from `otherwise innocent conduct.'" Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U. S. C. §2113(a), for taking "by force and violence" items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U. S., at 261. We held that once the Government proves the defendant forcibly took the money, "the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of . . . `otherwise innocent'" conduct. Id., at 269-270. In other instances, however, requiring only that the defendant act knowingly "would fail to protect the innocent actor." Id., at 269. A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal "would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his." Ibid. In such a case, the Court explained, the statute "would need to be read to require . . . that the defendant take the money with `intent to steal or purloin.'" Ibid.
C
Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video, 513 U. S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct— awareness of some wrongdoing." Staples, 511 U. S., at 606-607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943); emphasis added). Having liability turn on whether a "reasonable person" regards the communication as a threat—regardless of what the defendant thinks— "reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes," Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C. Torcia, Wharton's Criminal Law §27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind"). Under these principles, "what [Elonis] thinks" does matter. App. 286.
The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant "comprehended [the] contents and context" of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a "foreigner, ignorant of the English language," who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate "the circumstances known" to a defendant. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372-373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government's position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.
In support of its position the Government relies most heavily on Hamling v. United States, 418 U. S. 87 (1974). In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material only if they knew the "legal status of the materials" distributed. Id., at 121. Absolving a defendant of liability because he lacked the knowledge that the materials were legally obscene "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123. It was instead enough for liability that "a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials." Ibid.
This holding does not help the Government. In fact, the Court in Hamling approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a "vital element of scienter" so that "not innocent but calculated purveyance of filth . . . is exorcised." Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966); internal quotation marks omitted). In this case, "calculated purveyance" of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context.
Contrary to the dissent's suggestion, see post, at 4-5, 9-10 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896), undermines this reading. The defendant's contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31-33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material "could be properly or justly characterized as obscene." Id., at 41. The Court correctly rejected this "ignorance of the law" defense; no such contention is at issue here. See supra, at 10.
* * *
In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal." Morissette, 342 U. S., at 252.
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id., at 8-9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990) (this Court is "poorly situated" to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in "only the most cursory fashion at oral argument"). Given our disposition, it is not necessary to consider any First Amendment issues.
Both JUSTICE ALITO and JUSTICE THOMAS complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post, at 1-2 (ALITO, J., concurring in part and dissenting in part); post, at 1-2 (opinion of THOMAS, J.). JUSTICE ALITO contends that each party "argued" this issue, post, at 2, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38-39.
JUSTICE ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question JUSTICE ALITO and JUSTICE THOMAS would have us decide—whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient "justification," post, at 2 (opinion of ALITO, J.), for us to decline to be the first appellate tribunal to do so.
Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under 18 U. S. C. §751, even though a "court may someday confront a case" presenting issue); Ginsberg v. New York, 390 U. S. 629, 644-645 (1968) (rejecting defendant's challenge to obscenity law "makes it unnecessary for us to define further today `what sort of mental element is requisite to a constitutionally permissible prosecution'"); Smith v. California, 361 U. S. 147, 154 (1959) (overturning conviction because lower court did not require any mental element under statute, but noting that "[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution"); cf. Gulf Oil Co. v. Bernard, 452 U. S. 89, 103-104 (1981) (finding a lower court's order impermissible under the First Amendment but not deciding "what standards are mandated by the First Amendment in this kind of case").
We may be "capable of deciding the recklessness issue," post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.
The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE ALITO, concurring in part and dissenting in part.
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: "It is emphatically the province and duty of the judicial department to say what the law is." Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.
There is no justification for the Court's refusal to provide an answer. The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I
Section 875(c) provides in relevant part:
"Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term "threat" in §875(c), but in construing the same term in a related statute, the Court distinguished a "true `threat'" from facetious or hyperbolic remarks. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). In my view, the term "threat" in §875(c) can fairly be defined as a statement that is reasonably interpreted as "an expression of an intention to inflict evil, injury, or damage on another." Webster's Third New International Dictionary 2382 (1976). Conviction under §875(c) demands proof that the defendant's transmission was in fact a threat, i.e., that it is reasonable to interpret the transmission as an expression of an intent to harm another. In addition, it must be shown that the defendant was at least reckless as to whether the transmission met that requirement.
Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court's, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9-13. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We "ordinarily resist reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U. S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. "For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or—more rarely— negligence)." 1 W. LaFave, Substantive Criminal Law §5.5, p. 381 (2003). Based on these "background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994).
For a similar reason, I agree with the Court that we should presume that an offense like that created by §875(c) requires more than negligence with respect to a critical element like the one at issue here. See ante, at 13-14. As the Court states, "[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute `only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct."'" Ante, at 12 (quoting Carter v. United States, 530 U. S. 255, 269 (2000)). Whether negligence is morally culpable is an interesting philosophical question, but the answer is at least sufficiently debatable to justify the presumption that a serious offense against the person that lacks any clear common-law counterpart should be presumed to require more.
Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant "should [have] be[en] aware of a substantial and unjustifiable risk," ALI, Model Penal Code §2.02(2)(d), p. 226 (1985), while recklessness exists "when a person disregards a risk of harm of which he is aware," Farmer v. Brennan, 511 U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. See, e.g., Farmer, supra, at 835-836 (deliberate indifference to an inmate's harm); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (criminal libel); New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964) (civil libel). Indeed, this Court has held that "reckless disregard for human life" may justify the death penalty. Tison v. Arizona, 481 U. S. 137, 157 (1987). Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court's noncommittal opinion prevents lower courts from adopting that standard.
II
There remains the question whether interpreting §875(c) to require no more than recklessness with respect to the element at issue here would violate the First Amendment. Elonis contends that it would. I would reject that argument.
It is settled that the Constitution does not protect true threats. See Virginia v. Black, 538 U. S. 343, 359-360 (2003); R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992); Watts, 394 U. S., at 707-708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value and are entitled to protection. But that does not justify constitutional protection for the threat itself.
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a "`therapeutic'" purpose, "to `deal with the pain' . . . of a wrenching event," or for "cathartic" reasons, the threat is protected. Brief for Petitioner 52-53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. "Taken in context," lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the effect on Elonis's estranged wife when she read this: "`If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.'" 730 F. 3d 321, 324 (CA3 2013). Or this: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Ibid. Or this: "Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?" Id., at 325.
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel "`extremely afraid'" and "`like [she] was being stalked.'" Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4-16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that §875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to "exten[d] a measure of strategic protection" to otherwise unprotected false statements of fact in order to ensure enough "`breathing space'" for protected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U. S., at 279-280 (civil liability); Garrison, 379 U. S., at 74-75 (criminal liability). Requiring proof of recklessness is similarly sufficient here.
III
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedure requires a defendant to "inform the court of the specific objection and the grounds for the objection." An objection cannot be vague or open-ended. It must specifically identify the alleged error. And failure to lodge a sufficient objection "precludes appellate review," except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure §484, pp. 433-435 (4th ed. 2009).
At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 ("Section 875(c) requires proof that the defendant intended the charged statement to be a `threat'" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 ("[A] `true threat' has been uttered only if the speaker acted with subjective intent to threaten" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard—which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 ("[W]e would say that recklessness is not justif[ied]"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmlesserror grounds. "We have often applied harmless-error analysis to cases involving improper instructions." Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503-504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206-207 (2009). It should be given the chance to address that possibility here.
JUSTICE THOMAS, dissenting.
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under 18 U. S. C. §875(c). Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that §875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach.
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today's decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough. See ante, at 16-17.
This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were "true threats" unprotected by the First Amendment, I would affirm the judgment below.
I
A
Enacted in 1939, §875(c) provides, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." Because §875(c) criminalizes speech, the First Amendment requires that the term "threat" be limited to a narrow class of historically unprotected communications called "true threats." To qualify as a true threat, a communication must be a serious expression of an intention to commit unlawful physical violence, not merely "political hyperbole"; "vehement, caustic, and sometimes unpleasantly sharp attacks"; or "vituperative, abusive, and inexact" statements. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted). It also cannot be determined solely by the reaction of the recipient, but must instead be "determined by the interpretation of a reasonable recipient familiar with the context of the communication," United States v. Darby, 37 F. 3d 1059, 1066 (CA4 1994) (emphasis added), lest historically protected speech be suppressed at the will of an eggshell observer, cf. Cox v. Louisiana, 379 U. S. 536, 551 (1965) ("[C]onstitutional rights may not be denied simply because of hostility to their assertion or exercise" (internal quotation marks omitted)). There is thus no dispute that, at a minimum, §875(c) requires an objective showing: The communication must be one that "a reasonable observer would construe as a true threat to another." United States v. Jeffries, 692 F. 3d 473, 478 (CA6 2012). And there is no dispute that the posts at issue here meet that objective standard.
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face, §875(c) does not demand any particular mental state. As the Court correctly explains, the word "threat" does not itself contain a mens rea requirement. See ante, at 8-9. But because we read criminal statutes "in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994) (citation omitted). Absent such indicia, we ordinarily apply the "presumption in favor of scienter" to require only "proof of general intent—that is, that the defendant [must] posses[s] knowledge with respect to the actus reus of the crime." Carter v. United States, 530 U. S. 255, 268 (2000).
Under this "conventional mens rea element," "the defendant [must] know the facts that make his conduct illegal," Staples, supra, at 605, but he need not know that those facts make his conduct illegal. It has long been settled that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan v. United States, 524 U. S. 184, 192 (1998) (internal quotation marks omitted). For instance, in Posters `N' Things, Ltd. v. United States, 511 U. S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to "`make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,'" id., at 516 (quoting 21 U. S. C. §857(a)(1) (1988 ed.)). In applying the presumption in favor of scienter, the Court concluded that "although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are `drug paraphernalia' within the meaning of the statute." 511 U. S., at 524.
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction under a federal obscenity statute that punished anyone "`who shall knowingly deposit, or cause to be deposited, for mailing or delivery,'" any "`obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.'" Rosen v. United States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat. §3893). In that case, as here, the defendant argued that, even if "he may have had . . . actual knowledge or notice of [the paper's] contents" when he put it in the mail, he could not "be convicted of the offence . . . unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious." 161 U. S., at 41. The Court rejected that theory, concluding that if the material was actually obscene and "deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails." Ibid. As the Court explained, "Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of [the paper's] contents, assumed the responsibility of putting it in the mails of the United States," because "[e]very one who uses the mails of the United States for carrying papers or publications must take notice of . . . what must be deemed obscene, lewd, and lascivious." Id., at 41-42.
This Court reaffirmed Rosen's holding in Hamling v. United States, 418 U. S. 87 (1974), when it considered a challenge to convictions under the successor federal statute, see id., at 98, n. 8 (citing 18 U. S. C. §1461 (1970 ed.)). Relying on Rosen, the Court rejected the argument that the statute required "proof both of knowledge of the contents of the material and awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). In approving the jury instruction that the defendants'"belief as to the obscenity or non-obscenity of the material is irrelevant," the Court declined to hold "that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes." Id., at 120-121 (internal quotation marks omitted). To rule otherwise, the Court observed, "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123.
Decades before §875(c)'s enactment, courts took the same approach to the first federal threat statute, which prohibited threats against the President. In 1917, Congress enacted a law punishing anyone
"who knowingly and willfully deposits or causes to be deposited for conveyance in the mail . . . any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President." Act of Feb. 14, 1917, ch. 64, 39 Stat. 919.
Courts applying this statute shortly after its enactment appeared to require proof of only general intent. In Ragansky v. United States, 253 F. 643 (CA7 1918), for instance, a Court of Appeals held that "[a] threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him," and "is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution," id., at 645. The court consequently rejected the defendant's argument that he could not be convicted when his language "[c]oncededly . . . constituted such a threat" but was meant only "as a joke." Id., at 644. Likewise, in United States v. Stobo, 251 F. 689 (Del. 1918), a District Court rejected the defendant's objection that there was no allegation "of any facts . . . indicating any intention. . . on the part of the defendant . . . to menace the President of the United States," id., at 693 (internal quotation marks omitted). As it explained, the defendant "is punishable under the act whether he uses the words lightly or with a set purpose to kill," as "[t]he effect upon the minds of the hearers, who cannot read his inward thoughts, is precisely the same." Ibid. At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.
B
Applying ordinary rules of statutory construction, I would read §875(c) to require proof of general intent. To "know the facts that make his conduct illegal" under §875(c), see Staples, 511 U. S., at 605, a defendant must know that he transmitted a communication in interstate or foreign commerce that contained a threat. Knowing that the communication contains a "threat"—a serious expression of an intention to engage in unlawful physical violence—does not, however, require knowing that a jury will conclude that the communication contains a threat as a matter of law. Instead, like one who mails an "obscene" publication and is prosecuted under the federal obscenity statute, a defendant prosecuted under §875(c) must know only the words used in that communication, along with their ordinary meaning in context.
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under §875(c). See Ragansky, supra, at 645 ("[A] foreigner, ignorant of the English language, repeating [threatening] words without knowledge of their meaning, may not knowingly have made a threat"). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he "knew that what [he] was saying was violent" but supposedly "just wanted to express [him]self," App. 205, acted with the general intent required under §875(c), even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law.
Demanding evidence only of general intent also corresponds to §875(c)'s statutory backdrop. As previously discussed, before the enactment of §875(c), courts had read the Presidential threats statute to require proof only of general intent. Given Congress' presumptive awareness of this application of the Presidential threats statute—not to mention this Court's similar approach in the obscenity context, see Rosen, 161 U. S., at 41-42—it is difficult to conclude that the Congress that enacted §875(c) in 1939 understood it to contain an implicit mental-state requirement apart from general intent. There is certainly no textual evidence to support this conclusion. If anything, the text supports the opposite inference, as §875(c), unlike the Presidential threats statute, contains no reference to knowledge or willfulness. Nothing in the statute suggests that Congress departed from the "conventional mens rea element" of general intent, Staples, supra, at 605; I would not impose a higher mental-state requirement here.
C
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante, at 13-16. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under §875(c) prevents a defendant from being convicted on the basis of any fact beyond his awareness. See, e.g., United States v. X-Citement Video, Inc., 513 U. S. 64, 73 (1994) (knowledge of age of persons depicted in explicit materials); Staples, supra, at 614-615 (knowledge of firing capability of weapon); Morissette v. United States, 342 U. S. 246, 270-271 (1952) (knowledge that property belonged to another). In other words, the defendant must know—not merely be reckless or negligent with respect to the fact—that he is committing the acts that constitute the actus reus of the offense.
But general intent requires no mental state (not even a negligent one) concerning the "fact" that certain words meet the legal definition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury's application of the legal standard of a "threat" to the contents of a communication. And convicting a defendant despite his ignorance of the legal— or objective—status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claiming that he acted in self-defense has not been penalized under a negligence standard merely because he does not know that the jury will reject his argument that his "belief in the necessity of using force to prevent harm to himself [was] a reasonable one." See 2 W. LaFave, Substantive Criminal Law §10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling "approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a `vital element of scienter' so that `not innocent but calculated purveyance of filth . . . is exorcised.'" Ante, at 15 (quoting Hamling, 418 U. S., at 122 (in turn quoting Mishkin v. New York, 383 U. S. 502, 510 (1966)). According to the Court, the mental state approved in Hamling thus "turns on whether a defendant knew the character of what was sent, not simply its contents and context." Ante, at 15. It is unclear what the Court means by its distinction between "character" and "contents and context." "Character" cannot mean legal obscenity, as Hamling rejected the argument that a defendant must have "awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). Moreover, this discussion was not part of Hamling's holding, which was primarily a reaffirmation of Rosen. See 418 U. S., at 120-121; see also Posters `N' Things, 511 U. S., at 524-525 (characterizing Hamling as holding that a "statute prohibiting mailing of obscene materials does not require proof that [the] defendant knew the materials at issue met the legal definition of `obscenity'").
The majority's treatment of Rosen is even less persuasive. To shore up its position, it asserts that the critical portion of Rosen rejected an "`ignorance of the law' defense," and claims that "no such contention is at issue here." Ante, at 15. But the thrust of Elonis' challenge is that a §875(c) conviction cannot stand if the defendant's subjective belief of what constitutes a "threat" differs from that of a reasonable jury. That is akin to the argument the defendant made—and lost—in Rosen. That defendant insisted that he could not be convicted for mailing the paper "unless he knew or believed that such paper could be properly or justly characterized as obscene." 161 U. S., at 41. The Court, however, held that the Government did not need to show that the defendant "regard[ed] the paper as one that the statute forbade to be carried in the mails," because the obscene character of the material did not "depend upon the opinion or belief of the person who . . . assumed the responsibility of putting it in the mails." Ibid. The majority's muddying of the waters cannot obscure the fact that today's decision is irreconcilable with Rosen and Hamling.
D
The majority today at least refrains from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do. Elonis contends that proof of a defendant's intent to put the recipient of a threat in fear is necessary for conviction, but that element cannot be found within the statutory text. "[W]e ordinarily resist reading words or elements into a statute that do not appear on its face," including elements similar to the one Elonis proposes. E.g., Bates v. United States, 522 U. S. 23, 29 (1997) (declining to read an "intent to defraud" element into a criminal statute). As the majority correctly explains, nothing in the text of §875(c) itself requires proof of an intent to threaten. See ante, at 8-9. The absence of such a requirement is significant, as Congress knows how to require a heightened mens rea in the context of threat offenses. See §875(b) (providing for the punishment of "[w]hoever, with intent to extort . . ., transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"); see also §119 (providing for the punishment of "[w]hoever knowingly makes restricted personal information about [certain officials] . . . publicly available . . . with the intent to threaten").
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante, at 4-5, 16 (concluding that Elonis' conviction under §875(c) for discussing a plan to "`initiate the most heinous school shooting ever imagined'" against "`a Kindergarten class'" cannot stand without proof of some unspecified heightened mental state).
Elonis also insists that we read an intent-to-threaten element into §875(c) in light of the First Amendment. But our practice of construing statutes "to avoid constitutional questions . . . is not a license for the judiciary to rewrite language enacted by the legislature," Salinas v. United States, 522 U. S. 52, 59-60 (1997) (internal quotation marks omitted), and ordinary background principles of criminal law do not support rewriting §875(c) to include an intent-to-threaten requirement. We have not altered our traditional approach to mens rea for other constitutional provisions. See, e.g., Dean v. United States, 556 U. S. 568, 572-574 (2009) (refusing to read an intent-to-dischargethe-firearm element into a mandatory minimum provision concerning the discharge of a firearm during a particular crime). The First Amendment should be treated no differently.
II
In light of my conclusion that Elonis was properly convicted under the requirements of §875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.
A
Elonis does not contend that threats are constitutionally protected speech, nor could he: "From 1791 to the present,. . . our society . . . has permitted restrictions upon the content of speech in a few limited areas," true threats being one of them. R. A. V. v. St. Paul, 505 U. S. 377, 382-383 (1992); see id., at 388. Instead, Elonis claims that only intentional threats fall within this particular historical exception.
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N. J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68-69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, §5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich. Const., Art. I, §7 (1835); N. J. Const., Art. I, §5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, §31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase "freedom of speech" in the First Amendment. See Roth v. United States, 354 U. S. 476, 481-483 (1957) (engaging in a similar inquiry with respect to obscenity).
Shortly after the founding, several States and Territories enacted laws making it a crime to "knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, . . . threatening to maim, wound, kill or murder any person, or to burn his or her [property], though no money, goods or chattels, or other valuable thing shall be demanded," e.g., 1795 N. J. Laws §57, at 108; see also, e.g., 1816 Ga. Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code §108; 1832 Fla. Laws, at 68-69. These laws appear to be the closest early analogue to §875(c), as they penalize transmitting a communication containing a threat without proof of a demand to extort something from the victim. Threat provisions explicitly requiring proof of a specific "intent to extort" appeared alongside these laws, see, e.g., 1795 N. J. Laws §57, at 108, but those provisions are simply the predecessors to §875(b) and §875(d), which likewise expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital offense to "knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name . . . threatening to kill or murder any of his Majesty's Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded." 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K. B. 1776), for example, the trial court instructed the jurors that, "if they were of opinion that" the "terms of the letter conveyed an actual threat to kill or murder," "and that the prisoner knew the contents of it, they ought to find him guilty; but that if they thought he did not know the contents, or that the words might import any thing less than to kill or murder, they ought to acquit," id., at 143, 168 Eng. Rep., at 173. On appeal following conviction, the judges "thought that the case had been properly left to the Jury." Ibid., 168 Eng. Rep., at 174. Other cases likewise appeared to consider only the import of the letter's language, not the intent of its sender. See, e.g., Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831) (concluding that an indictment was sufficient because "th[e] letter very plainly conveys a threat to kill and murder" and "[n]o one who received it could have any doubt as to what the writer meant to threaten"); see also 2 E. East, A Treatise of the Pleas of the Crown 1116 (1806) (discussing Jepson and Springett's Case, in which the judges disagreed over whether "the letter must be understood as . . . importing a threat" and whether that was "a necessary construction").
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane's A General Abridgement of American Law—"a necessary adjunct to the library of every American lawyer of distinction," 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)—discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31-32 (1824). And as this Court long ago recognized, "It is doubtless true . . . that where English statutes . . . have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority." Pennock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Commonwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering English cases persuasive authority in interpreting similar state statute creating the offense of obtaining property through false pretenses). In short, there is good reason to believe that States bound by their own Constitutions to protect freedom of speech long ago enacted general-intent threat statutes.
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was "levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim's] mind." 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental state was required as a matter of law. After all, §875(c) is frequently deployed against people who wanted to cause their victims fear, but that fact does not answer the legal question presented in this case. See, e.g., United States v. Sutcliffe, 505 F. 3d 944, 952 (CA9 2007); see also Tr. of Oral Arg. 53 (counsel for the Government noting that "I think Congress would well have understood that the majority of these cases probably [involved] people who intended to threaten").
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge, 75 Mich. 488, 490-493, 42 N. W. 997, 998 (1889); State v. Benedict, 11 Vt. 236, 239 (1839), which is insufficiently similar to the offense criminalized in §875(c) to be of much use. Another involves a prosecution under a blackmailing statute similar to §875(b) and §875(c) in that it expressly required an "intent to extort." Norris v. State, 95 Ind. 73, 74 (1884). And his treatises do not clearly distinguish between the offense of making threats with the intent to extort and the offense of sending threatening letters without such a requirement in their discussions of threat statutes, making it difficult to draw strong inferences about the latter category. See 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664, and nn. 5-6 (1877); 2 J. Bishop, Commentaries on the Law of Criminal Procedure §975, p. 546 (1866); 25 The American and English Encyclopædia of Law 1073 (C. Williams ed. 1894).
Two of Elonis' cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible "to prove guilty knowledge of the defendant, when that is an essential element of the crime; that is, the quo animo, the intent or design," and offers as an example that in the context of "sending a threatening letter, . . . prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question." State v. Graham, 121 N. C. 623, 627, 28 S. E. 409, 409 (1897). But it is unclear from that statement whether that court thought an intent to threaten was required, especially as the case it cited for this proposition—Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a general-intent approach. The other case Elonis cites involves a statutory provision that had been judicially limited to "`pertain to one or the other acts which are denounced by the statute,'" namely, terroristic activities carried out by the Ku Klux Klan. Commonwealth v. Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910) (quoting Commonwealth v. Patrick, 127 Ky. 473, 478, 105 S. W. 981, 982 (1907)). That case thus provides scant historical support for Elonis' position.
B
Elonis also insists that our precedents require a mental state of intent when it comes to threat prosecutions under §875(c), primarily relying on Watts, 394 U. S. 705, and Virginia v. Black, 538 U. S. 343 (2003). Neither of those decisions, however, addresses whether the First Amendment requires a particular mental state for threat prosecutions.
As Elonis admits, Watts expressly declined to address the mental state required under the First Amendment for a "true threat." See 394 U. S., at 707-708. True, the Court in Watts noted "grave doubts" about Raganksy's construction of "willfully" in the presidential threats statute. 394 U. S., at 707-708. But "grave doubts" do not make a holding, and that stray statement in Watts is entitled to no precedential force. If anything, Watts continued the long tradition of focusing on objective criteria in evaluating the mental requirement. See ibid.
The Court's fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Black concerned a Virginia cross-burning law that expressly required "`an intent to intimidate a person or group of persons,'" 538 U. S., at 347 (quoting Va. Code Ann. §18.2-423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that "any cross burning [w]as prima facie evidence of intent to intimidate." 538 U. S., at 347-348. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions "based solely on the fact of cross burning itself," including cross burnings in a play or at a political rally. Id., at 365-366 (plurality opinion); id., at 386 (Souter, J., concurring in judgment in part and dissenting in part) ("The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression"). The objective standard for threats under §875(c), however, helps to avoid this problem by "forc[ing] jurors to examine the circumstances in which a statement is made." Jeffries, 692 F. 3d, at 480.
In addition to requiring a departure from our precedents, adopting Elonis' view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit "`fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of "fighting words" turns on how the "ordinary citizen" would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he "makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended," and that the punishment of such statements "as a criminal act would raise no question under [the Constitution]," Cantwell v. Connecticut, 310 U. S. 296, 309-310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing "`fighting' words"); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) ("[T]he only intent required for conviction . . . was an intent to speak the words"). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment without proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120-124. And our precedents allow liability in tort for false statements about private persons on matters of private concern even if the speaker acted negligently with respect to the falsity of those statements. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 770, 773-775 (1986). I see no reason why we should give threats pride of place among unprotected speech.
* * *
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mentalstate requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority's ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today's decision rests.
I respectfully dissent.
7.2.6.2.3.6 Garnett v. State 7.2.6.2.3.6 Garnett v. State
RAYMOND LENNARD GARNETT
v.
STATE OF MARYLAND.
Court of Appeals of Maryland.
Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender) both on brief, Baltimore, for appellant.
Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), both on brief, Baltimore, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
MURPHY, Chief Judge.
Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:
"Second degree rape.
(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; or
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.
(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."
Subsection (a)(3) represents the current version of a statutory provision dating back to the first comprehensive codification of the criminal law by the Legislature in 1809.[1] Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old.
I
Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.
In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.
Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:
"Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she.
"In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape.
"It is in the Court's opinion a strict liability offense."
The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case, 329 Md. 601, 620 A.2d 940.
II
In 1975 the Legislative Council of the General Assembly established the Special Committee on Rape and Related Offenses, which proposed a complete revision of Maryland law pertaining to rape and other sex crimes. See generally J. William Pitcher, Rape and Other Sexual Offense Law Reform in Maryland 1976-1977, 7 U.Balt.L.Rev. 151 (1977). Based on the Committee's work, Senate Bill 358 was introduced, amended, and enacted on May 17, 1976, as ch. 573 of the Acts of 1976. In part, it repealed the common law crime of rape, the former statutory prohibition of carnal knowledge of underage girls, and other related crimes and replaced them with the current array of criminal laws delineating two degrees of rape and four degrees of sexual offenses. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-5 and Code, Art. 27, §§ 462-464C; see also Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure 65-66, 68-81 (1983).
The new legislation reformulated the former statutory rape law by introducing the element of a four-year age difference between the accused and the underage complainant. Report of the Senate Judicial Proceedings Committee, at 2. As originally enacted by ch. 573 of the Acts of 1976, sexual intercourse with a person under 14 by an actor more than four years older was classified as rape in the first degree, and carried a maximum penalty of life imprisonment. The Legislature, by ch. 292 of the Acts of 1977, reduced the crime to rape in the second degree carrying a maximum sentence of 20 years in prison. These reforms of 1976 and 1977 created the law now embodied in § 463(a)(3).
Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.
III
Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.
The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988). In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence. Writing for the United States Supreme Court, Justice Robert Jackson observed:
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
* * * * * *
"Crime as a compound concept, generally constituted only from a concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."
Morissette v. United States, 342 U.S. 246, 250-252, 72 S.Ct. 240, 243-244, 96 L.Ed. 288 (1952).
To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Dawkins, supra, 313 Md. at 644-645, 547 A.2d 1041; see generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 242-243 (2d ed. 1986); 1 Wharton's Criminal Law 100-111 (Charles E. Torcia ed., 14th ed. 1978). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.
Modern scholars generally reject the concept of strict criminal liability. Professors LaFave and Scott summarize the consensus that punishing conduct without reference to the actor's state of mind fails to reach the desired end and is unjust:
"`It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.'"
LaFave & Scott, supra, at 248, quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.
Dean Singer has articulated other weaknesses of strict criminal liability theory: 1) extensive government civil regulations and strict liability in tort achieve the same deterrent effect; 2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally by decriminalizing them, and hearing such cases in a regulatory or administrative forum; 3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime; 4) some strict liability laws may result from careless drafting; and 5) strict liability dilutes the moral force that the criminal law has historically carried. Singer, supra, at 389-397, 403-404. The author concludes that "the predicate for all criminal liability is blameworthiness; it is the social stigma which a finding of guilt carries that distinguishes the criminal [penalty] from all other sanctions. If the predicate is removed, the criminal law is set adrift." Id. at 404-405.
Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980). The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. Id. at §§ 1.04, 2.05.[2]
The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 106 (1965). Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children. Id. at 119-122.[3] See also Richard A. Tonry, Comment, Statutory Rape: A Critique, 26 La.L.Rev. 105 (1965); Michael McGillicuddy, Note, Criminal Law: Mistake of Age as Defense to Statutory Rape, 18 U.Fla.L.Rev. 699 (1966); Dennis L. Pieragostini, Note, Reasonable Mistake as to Age — a Defense to Statutory Rape under the New Penal Code, 2 Conn.L.Rev. 433 (1969) (statute since superseded); Kelly Vance, Note, State v. Elton: The Failure to Recognize a Defense to Statutory Rape, 1983 Utah L.Rev. 437 (case subsequently reversed upon reconsideration); Benjamin L. Reiss, Note, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377 (1992). But see Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex.L.Rev. 387, 401-413 (1984).
Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. See LaFave & Scott, supra, at 410-410; Myers, supra, at 127-129. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the `community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct." LaFave & Scott, supra, at 411. The drafters of the Model Penal Code remarked:
"[T]he actor who reasonably believes that his partner is above that age [of consent] lacks culpability with respect to the factor deemed critical to liability. Punishing him anyway simply because his intended conduct would have been immoral under the facts as he supposed them to be postulates a relation between criminality and immorality that is inaccurate on both descriptive and normative grounds. The penal law does not try to enforce all aspects of community morality, and any thoroughgoing attempt to do so would extend the prospect of criminal sanctions far into the sphere of individual liberty and create a regime too demanding for all save the best among us."
Id., Comment to § 213.6, at 415. We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.
IV
The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In Kentucky, the accused may prove in exculpation that he did not know the facts or conditions relevant to the complainant's age. Ky. Rev. Stat. Ann. § 510.030 (1992). In Washington, the defendant may assert that he reasonably believed the complainant to be of a certain age based on the alleged victim's own declarations. Wash. Rev. Code Ann. § 9A.44.030 (1988, 1993 Cum.Supp.) In some states, the defense is available in instances where the complainant's age rises above a statutorily prescribed level, but is not available when the complainant falls below the defining age. E.g. Pa. Cons. Stat. Ann. tit. 18, § 3102 (1983) (defining critical age at 14); W. Va.Code Ann. § 61-8B-12 (1992 Repl.Vol.) (defining critical age at 11, defense subject to a recklessness standard); Or. Rev. Stat.Ann. § 163.325 (1990 Repl.Vol.) (defining critical age at 16).[4] In other states, the availability of the defense depends on the severity of the sex offense charged to the accused. E.g. Minn. Stat. Ann. §§ 609.344-609.345 (1987, 1993 Cum.Supp.) (defense available for certain charges under third-degree and fourth-degree criminal sexual conduct).[5]
In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant's age. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." Id., 39 Cal. Rptr. at 362, 393 P.2d at 674. The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:
"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... [T]he courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."
Id., 39 Cal. Rptr. at 364, 393 P.2d at 676.
The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse).[6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.
V
We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion.
It is well settled that in interpreting a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988). While penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question. State v. Kennedy, 320 Md. 749, 754-755, 580 A.2d 193 (1990); Davis v. State, 319 Md. 56, 60-61, 570 A.2d 855 (1990). To that end, the Court may appropriately look at the larger context, including external manifestations of the legislative purpose, within which statutory language appears. Fairbanks v. McCarter, supra, 330 Md. at 46, 622 A.2d 121; Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648 (1991); Morris v. Prince George's County, 319 Md. 597, 603-604, 573 A.2d 1346 (1990).
Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability. See McAlear v. McAlear, 298 Md. 320, 343-344, 469 A.2d 1256 (1984) (a court must read the language of a statute in relation to all of its provisions in determining legislative intent); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980) (same).
Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-2. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. 1976 Senate Journal, at 1363. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." 1976 Senate Journal, at 1364. These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.
Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. See 1976 House Journal, at 3686.[7] The Senate concurred in the House amendments and S.B. 358 became law. 1976 House Journal, at 3761; 1976 Senate Journal, at 3429; 1976 Acts of Maryland, at 1536. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.
This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204-05, 67 L.Ed.2d 437 (1981); Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 760-761 (1980). The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime. Eggleston v. State, 4 Md. App. 124, 241 A.2d 433 (1968); see the compilation in W.E. Shipley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966, 1992 Supp.).
VI
Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.
JUDGMENT AFFIRMED, WITH COSTS.
ELDRIDGE, Judge, dissenting:
Both the majority opinion and Judge Bell's dissenting opinion view the question in this case to be whether, on the one hand, Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 463(a)(3), is entirely a strict liability statute without any mens rea requirement or, on the other hand, contains the requirement that the defendant knew that the person with whom he or she was having sexual relations was under 14 years of age.
The majority takes the position that the statute defines an entirely strict liability offense and has no mens rea requirement whatsoever. The majority indicates that the defendant's "knowledge, belief, or other state of mind" is wholly immaterial. The majority opinion at one point states: "We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case." Nevertheless, according to the majority, it was permissible for the trial judge to have precluded exploration into Raymond's knowledge and comprehension because the offense is entirely one of strict liability.
Judge Bell's dissent, however, argues that, under the due process clauses of the Fourteenth Amendment and the Maryland Declaration of Rights, any "defendant may defend on the basis that he was mistaken as to the age of the prosecutrix."
In my view, the issue concerning a mens rea requirement in § 463(a)(3) is not limited to a choice between one of the extremes set forth in the majority's and Judge Bell's opinions. I agree with the majority that an ordinary defendant's mistake about the age of his or her sexual partner is not a defense to a prosecution under § 463(a)(3). Furthermore I am not persuaded, at least at the present time, that either the federal or state constitutions require that a defendant's honest belief that the other person was above the age of consent be a defense.[1] This does not mean, however, that the statute contains no mens rea requirement at all.
The legislative history of § 463(a)(3), set forth in the majority opinion, demonstrates that the House of Delegates rejected the Senate's proposed requirement that an older person, having sexual relations with another under 14 years of age, know or should know that the other person was under 14. The House of Delegates' version was ultimately adopted. From this, the majority concludes that the enacted version was "without a mens rea requirement." The majority's conclusion does not necessarily follow. Although the General Assembly rejected one specific knowledge requirement, it did not decree that any and all evidence concerning a defendant's knowledge and comprehension was immaterial.
There are pure strict liability offenses where "the purpose of the penalty is to regulate rather than to punish behavior" and where criminal "liability is imposed regardless of the defendant's state of mind," Dawkins v. State, 313 Md. 638, 645, 547 A.2d 1041 (1988). These "offenses commonly involve light fines or penalties," Dawkins, 313 Md. at 644, 547 A.2d at 1044. There are other offenses (also unfortunately often called "strict liability" offenses) where the legislature has dispensed with a knowledge requirement in one respect but has not intended to impose criminal liability regardless of the defendant's state of mind.[2] Such offenses
"do require `fault' ..., in that they `can be interpreted as legislative judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.'"
W. LaFave & A. Scott, Jr., Substantive Criminal Law, ch. 3, § 3.8(c), at 349 (1986), quoting Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 743 (1960). See also P. Robinson, Criminal Law Defenses, ch. 3, § 108(b), at 535 (1984) ("If reasonable mistake as to the victim's age is disallowed ... [t]here is, . . strict liability with respect to that element") (emphasis added).
Neither the statutory language nor the legislative history of § 463(a)(3), or of the other provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed regardless of the defendant's mental state. The penalty provision for a violation of § 463(a)(3), namely making the offense a felony punishable by a maximum of 20 years imprisonment (§ 463(b)), is strong evidence that the General Assembly did not intend to create a pure strict liability offense.
In the typical situation involving an older person's engaging in consensual sexual activities with a teenager below the age of consent, and the scenario which the General Assembly likely contemplated when it enacted §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2), and 464C(a)(3), the defendant knows and intends that he or she is engaging in sexual activity with a young person. In addition, the defendant knows that the activity is regarded as immoral and/or improper by large segments of society. Moreover, the defendant is aware that "consent" by persons who are too young is ineffective. Although in a particular case the defendant may honestly but mistakenly believe, because of representations or appearances, that the other person is above the age of consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the young person is not above the age of consent. As the majority opinion points out, "the traditional view [is] that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage...." It seems to me that the above-mentioned knowledge factors, and particularly the mental ability to appreciate that one is taking a risk, constitute the mens rea of the offenses defined by §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2) and 464C(a)(3). In enacting these provisions, the General Assembly assumed that a defendant is able to appreciate the risk involved by intentionally and knowingly engaging in sexual activities with a young person. There is no indication that the General Assembly intended that criminal liability attach to one who, because of his or her mental impairment, was unable to appreciate that risk.
It is unreasonable to assume that the Legislature intended for one to be convicted under § 463(a)(3), or under any of the other statutes proscribing sexual activity with underage persons, regardless of his or her mental state. Suppose, for example, that Raymond Garnett had not had an I.Q. of 52, but rather, had been more severely mentally retarded as was the young woman involved in Wentzel v. Montgomery Gen. Hosp., 293 Md. 685, 447 A.2d 1244, cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983). The mentally retarded person in Wentzel had an I.Q. of 25-30, was physiologically capable of bearing a child, but was unable to comprehend the act of sexual intercourse, or even to understand the difference between the sexes. If someone so disabled, having reached Raymond's chronological age, then had "consensual" sexual intercourse with a person younger than fourteen years of age, I do not believe that he or she would have violated Art. 27, § 463(a)(3). Under the view that §§ 463(a)(3), 464A(a)(3), 464B(a)(3), etc., define pure strict liability offenses without any regard for the defendant's mental state, presumably a 20 year old, who passes out because of drinking too many alcoholic beverages, would be guilty of a sexual offense if a 13 year old engages in various sexual activities with the 20 year old while the latter is unconscious. I cannot imagine that the General Assembly intended any such result.
An impaired mental condition may show the absence of mens rea, depending upon the circumstances. See, e.g., Simmons v. State, 313 Md. 33, 39 n. 3, 542 A.2d 1258, 1261 n. 3 (1988); Hoey v. State, 311 Md. 473, 494-495, 536 A.2d 622 (1988). In light of the defendant Garnett's mental retardation, and its effect upon his knowledge and comprehension, he may or may not have had the requisite mens rea. As previously mentioned, the majority opinion itself acknowledges that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend standards of sexual morality. The problem in this case is that the trial judge's view of the statute, which the majority adopts, precluded an exploration into the matter.
The majority points out that the trial court would not allow testimony that Erica and her friends had told the defendant that she was 16 years old. The trial court, however, went further. The court would not allow the defendant to testify concerning his knowledge. More importantly, the trial judge took the position that the offense proscribed by § 463(a)(3) is "a strict liability offense" and that the only requirements for conviction were that "the defendant had sexual intercourse with Erica Frazier, that at that time she was 13 years of age, [and] at that time the defendant was more than 4 years older than she. These are the only requirements that the State need prove beyond a reasonable doubt." The trial court's position that the offense lacked any mens rea requirement, and that the defendant's mental state was wholly immaterial, was, in my view, erroneous.
I would reverse and remand for a new trial.
ROBERT M. BELL, Judge, dissenting.
"It may be possible to conceive of legislation ... so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases must be rare indeed; and whenever they do occur the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation."
Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 368 (1989), quoting State v. Clottu, 33 Ind. 409, 410-11 (1870).
I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3)[1] was intended to be a strict liability statute. See majority opinion at 585. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3)[2] does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (1934).
In the case sub judice, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.[3]
I. Mens Rea Generally
Generally, a culpable mental state, often referred to as mens rea, see Wharton's Criminal Law, § 27, or intent, is, and long has been, an essential element of a criminal offense. Morissette v. United States, 342 U.S. 246, 251-52, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); Tate v. State, 236 Md. 312, 203 A.2d 882 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1953); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); Fenwick v. State, 63 Md. 239, 240-41 (1885). A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); see also Wharton's Criminal Law, § 27, citing United States v. Fox, 95 U.S. 670, 24 L.Ed. 538 (1877). Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.
The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept — crime as a compound concept — gained early acceptance in the English Common law and "took deep and early root in American soil."[4] 342 U.S. at 251-52, 72 S.Ct. at 244, 96 L.Ed. at 294 (footnote omitted). In that case, Mr. Justice Jackson stated the proposition thusly:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."
Id. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 294 (footnotes omitted).
In Morissette, (id. at 247-48, 72 S.Ct. at 242, 96 L.Ed. at 292-93), the defendant, a scrap iron collector, went onto a government bombing range, where bomb casings were piled haphazardly. Morissette loaded the casings onto his truck in broad daylight and took them. He was indicted for "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" property of the United States, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641. He sought to defend on the basis that he thought the casings were abandoned, unwanted, and of no value to the government. The trial court refused to permit evidence on that point, which was affirmed on appeal. The Supreme Court reversed, holding that where intent is an essential element of the crime charged, its existence is a question of fact for the jury, and "the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. at 274, 72 S.Ct. at 255, 96 L.Ed. at 306. It was in this context that the Court discussed the importance of intent. The Court concluded:
The unanimity with which they [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge or "mens rea," to signify an evil purpose or mental culpability.
Id. at 252, 72 S.Ct. at 244, 96 L.Ed. at 294-95.
More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, pursuant to Article 27, § 36(a), a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, id. at 437-39, 614 A.2d at 968-69, we rejected the State's argument that no intent was required. Id. at 444, 614 A.2d at 971. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon. Id. at 444, 614 A.2d at 971.
Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Morissette, 342 U.S. at 275, 72 S.Ct. at 256, 96 L.Ed. at 307, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943). Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 118-19 (1965); see also People v. Hernandez, 61 Cal.2d 529, 536, 39 Cal. Rptr. 361, 365, 393 P.2d 673, 677 (1964) ("in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein criminal intent is lacking."); Singer, supra, at 397. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, see Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), or a comparable state constitutional provision. See infra.
II. Strict Liability Crimes
Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. See Morissette, 342 U.S. at 251-52 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.
A.
In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. Richard A. Tonry, Statutory Rape: A Critique, La.L.Rev. 105 (1965). One of them consists of "public welfare" offenses. See id.; see also Dawkins, 313 Md. 638, 547 A.2d 1041. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, see Tonry, supra, at 106, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses. Singer, supra, at 389.
In Dawkins, 313 Md. at 644-645, 547 A.2d at 1044-45, this Court discussed the development of public welfare offenses and noted their characteristics:
"Public Welfare Offenses" are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.... Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales or misbranded articles, and sales or purchases in violation of anti-narcotics laws.... These offenses commonly involve light fines or penalties. .. . "[T]he penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest...." Additionally, the purpose of the penalty is to regulate rather than to punish behavior.... While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring....
313 Md. at 645, 547 A.2d at 1044 (citations omitted). The Supreme Court has also commented on such offenses, observing:
These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.
Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296. To like effect,
... public welfare offenses are new crimes, created solely by legislative enactments in the nature of police regulations. Moreover, these offenses are not strictly criminal, even though traditional criminal sanctions are relied upon, since the primary purpose of the legislature is neither punishment nor correction, but rather regulation.
Myers, supra, at 114 (footnote omitted).
Obviously, and the majority concurs, see majority opinion at 579, "statutory rape" is not merely a public welfare offense; it simply does not "fit" the characteristics of such an offense: it is a felony, not a misdemeanor. In striking contrast to "other strict liability regulatory offenses and their light penalties," majority opinion at 579, the potential penalty of 20 years imprisonment is not a light penalty; unlike the "garden variety" strict liability penalty, the penalty under section 463(a)(3), is neither so insignificant that it can be ignored as a criminal sanction, see Singer, supra, at 394, nor so slight that the fate of the defendant can be ignored, see Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31, at 219 (1972) ("The greater the possible punishment, the more likely some fault is required; and conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault."); and section 463's primary purpose is to penalize the "rapist", not to correct his or her behavior.[5]
B.
The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic,[6] bigamy,[7] adultery, and statutory rape crimes. See Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8; Tonry, supra, at 106. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." See Benjamin L. Reiss, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377, 381-82 (1992).
The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state. LaFave and Scott, supra, § 47, at 360. The elimination of a mens rea element for statutory rape is rationalized by focusing on the defendant's intent to commit a related crime. Reiss, supra, at 381. In other words, if fornication[8], engaging in sexual intercourse out of wedlock, see generally Model Penal Code, § 213.6, Comment at 430-39, is a crime, a defendant intending to engage in sex out of wedlock is made to suffer all of the legal consequences of that act. Statutory rape is such a legal consequence when the other participant is below the age of consent. Reiss, supra, at 382. The theory is premised, in short, upon the proposition that, as to certain crimes, "a `guilty mind' in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally or knowingly engage in the acts proscribed in the statute." See LaFave and Scott, supra, § 47, at 361.
The seminal case in this area is Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 110 and Model Penal Code, § 213.6, Comment at 414 n. 6. There, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of the father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he, in fact, was committing, it being wrong to remove a daughter, even one over 16, from her father's household.
The lesser legal wrong theory does not provide a viable rationale for holding a defendant strictly liable for statutory rape where premarital sex is not criminal.[9] Reiss, supra, at 382. See LaFave and Scott, supra, § 47, at 361 ("[W]here fornication is itself not criminal it [statutory rape] should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has intercourse").[10] Fornication is not a crime in Maryland. See Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). Accordingly, in Maryland, there is no underlying offense from which to transfer intent. Moreover,
[a] man who engages in consensual intercourse in the reasonable belief that his partner has reached [the age of consent[11]] evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors. In short, he has demonstrated neither intent nor inclination to violate any of the interests that the law of statutory rape seeks to protect. At most, he has disregarded religious precept or social convention. In terms of mental culpability, his conduct is indistinguishable from that of any other person who engages in fornication. Whether he should be punished at all depends on a judgment about continuing fornication as a criminal offense, but at least he should not be subject to felony sanctions for statutory rape.
Model Penal Code § 213.6, Comment at 415.
C.
In utilizing the moral wrong theory, State legislatures seek to justify strict criminal liability for statutory rape when non-marital sexual intercourse is not a crime on the basis of society's characterization of it as immoral or wrong, i.e., malum in se.[12] Reiss, supra, at 382. The intent to commit such immoral acts supplies the mens rea for the related, but unintended crime; the outrage upon public decency or good morals, not conduct that is wrong only because it is prohibited by legislation, i.e., malum prohibitum, is the predicate.
There are significant problems with the moral wrong theory. First, it is questionable whether morality should be the basis for legislation or interpretation of the law. See Tonry, supra, at 113; see also Singer, supra, at 338 (moral blame should be abolished as a predicate for criminal liability). Immorality is not synonymous with illegality; intent to do an immoral act does not equate to intent to do a criminal act. Inferring criminal intent from immorality, especially when the accused is not even aware that the act is criminal, seems unjustifiable and unfair. See Reiss, supra, at 382. In addition, the values and morals of society are ever evolving. Because sexual intercourse between consenting unmarried adults and minors who have reached the age of consent is not now clearly considered to be immoral, the moral wrong theory does not support strict criminal liability for statutory rape.
Second, classifying an act as immoral, in and of itself, divorced from any consideration of the actor's intention, is contrary to the general consensus of what makes an act moral or immoral. See Tonry, supra, at 113. Ordinarily, an act is either moral or immoral depending on the intention of the actor. Id., citing Holmes, Early Forms of Liability, in The Common Law 7 (Howe ed. 1963), citing Bradley, Ethical Studies, Essay 1 (1876) ("Even a dog distinguishes between being stumbled over and being kicked.").
Third, the assertion that the act alone will suffice for liability without the necessity of proving criminal intent is contrary to the traditional demand of the criminal law that only the act plus criminal intent is sufficient to constitute a crime. See Tonry, supra, at 113. "Moral duties should not be identified with criminal duties," and, thus, when fornication is itself not criminal it should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has had intercourse. See Hernandez, 61 Cal.2d at 534, 39 Cal. Rptr. at 364, 393 P.2d at 676; see also Myers, supra.
Therefore, although in the case sub judice, the defendant engaged in sexual relations with a girl 13 years old, a minor below the age of consent, his conduct is not malum in se, see 4 W. Blackstone, Commentaries[*] 210, and, so, strict liability is not justified.
III. Mistake of Fact
Generally, a mistake of fact negates the mental state required to establish a material element of the crime. LaFave and Scott, supra, § 47, at 356. A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not entertain the culpable mental state required for the commission of the offense. See Wharton's Criminal Law § 76.[13] Compare Richmond v. State, 330 Md. 223, 241-42, 623 A.2d 630, 638 (1993) (Bell, J., dissenting) (In case of self-defense, defendant who acts in self-defense is completely exonerated upon findings that he or she subjectively believed that his or her actions were necessary and, viewed objectively, that they were, in fact, necessary; in case of imperfect self-defense, defendant who subjectively believes that his or her actions were necessary, but, objectively, they were not, is not completely exonerated, although lesser sentence is appropriate).
Statutory rape is defined as sexual intercourse, by a person four or more years older, with a person under the age of 14. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463(a)(3).[14] That statute conclusively presumes that a person under that age is incapable of legally consenting to sexual intercourse.[15] Rau v. State, 133 Md. 613, 105 A. 867 (1919) (consent is not an element of assault with intent to have carnal knowledge of a female child under 14 years);[16] Ollis v. State, 44 Ga. App. 793, 163 S.E. 309 (1932); Golden v. Commonwealth, 289 Ky. 379, 158 S.W.2d 967 (1942). That the female is incapable of consenting means that any act of intercourse in which she engages, even with her consent, is conclusively presumed to have been against her will. See Tonry, supra, at 106. Consequently, a person engaging in intercourse with a female, whom he knows to be under 14 may not set up her consent as a defense. This does not mean, however, that one who does not know that the female is under 14 should not be able to set up his mistake of fact as a defense. This is because the closer a minor is to the age of consent, the more the appearance and behavior of that minor can be expected to be consistent with persons who have attained the age of consent. Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990) (strict liability inappropriate where victim in 13-16 age range); Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Indeed, one may plausibly mistake a minor 13 years old as being of the statutory age of consent.
A girl 13 years old may appear to be, and, in fact, may represent herself as being, over 16. If she should appear to be the age represented, a defendant may suppose reasonably that he received a valid consent from his partner, whom he mistakenly believes to be of legal age, only to find that her consent is legally invalid. In this situation, the majority holds, his reasonable belief as to the girl's age and consequent lack of criminal intent are no defense; the act alone suffices to establish guilt. But it is when the minor plausibly may represent that she has attained the age of consent that need for a defendant to be able to present a defense based on his or her belief that the minor was of the age to consent is the greatest.
The California Supreme Court in Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law 184-85 (1951), has recognized mistake of age as a defense to statutory rape. There, the defendant was convicted of statutory rape pursuant to a California law setting a consent age limit of 18 years of age. The prosecutrix was 17 years and 9 months old. The court held that an offer of proof of defendant's reasonable belief that the prosecutrix had reached the age of consent was a defense to statutory rape. 61 Cal.2d at 536, 39 Cal. Rptr. at 365, 393 P.2d at 677. The court reasoned that the imposition of criminal sanctions required conduct accompanied by a specific mental state, i.e., "the joint operation of act and intent." 61 Cal.2d at 532, 39 Cal. Rptr. at 363, 393 P.2d at 675. It opined (id. 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law at 184 and 185 (1951)):
"When the law declares that sexual intercourse with a girl under the age of ten years is rape, it is not illogical to refuse to give any credence to the defense, `I thought she was older, and I therefore did not believe that I was committing a crime when I had sexual intercourse with her.' * * * But when age limits are raised to sixteen, eighteen, and twenty-one, when the young girl becomes a young woman, when adolescent boys as well as young men are attracted to her, the sexual act begins to lose its quality of abnormality and physical danger to the victim. Bona fide mistakes in the age of girls can be made by men and boys who are no more dangerous than others of their social, economic and educational level. * * * Even if the girl looks to be much older than the age of consent fixed by the statute, even if she lies to the man concerning her age, if she is a day below the statutory age sexual intercourse with her is rape. The man or boy who has intercourse with such girl still acts at his peril. The statute is interpreted as if it were protecting children under the age of ten."
Moreover, Myers, supra, at 121, concurs that reasonable mistake of age, should be a defense to statutory rape where there is no threat of force. He explains his position thusly:
[T]here are many girls between the ages of twelve and fifteen who are so obviously immature in physique, dress, and deportment that they would be approached only by a person psychologically disturbed or coming from a subculture where the acceptable age-range is lower than the usual level in the United States. However, there are even more girls from twelve to fifteen whose appearance and behavior place them within, or on the vague border of, the average male's category of desirable females. By the middle teens, most girls are sufficiently developed physically and are sufficiently aware of social attitudes for a man to have to use considerable force or some definite threat if the girl objects to sexual contact. (Footnote omitted).
Thus, it has been observed that, "[b]y the middle teens most girls have reached a point of maturity which realistically enables them to give meaningful, although not legal, consent." Id. at 122. It is for this reason that "[i]ntercourse with a girl who is in her middle to late teens lacks the qualities of abnormality and physical danger that are present when she is still a child.... It is clear that the element of `victimization' decreases as the girl grows older and more sophisticated."[17] Id. at 121-22. See e.g. State v. Guest, 583 P.2d 836 (Alaska 1978); State v. Elton, 680 P.2d 727 (Utah 1984); Powe v. State, 389 N.W.2d 215 (Minn.App. 1986); Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990).
The Model Penal Code, long an adversary of strict liability crimes, proposes two categories of statutory rape. The first, would impose strict liability on one who has sexual relations with a child under 10. See generally Model Penal Code and Commentaries, § 213.6, Comment at 415-16.[18] See also Del. tit. 11, § 772(a); Ohio § 2907.02(A)(3); Pa. tit. 18, § 3102; W. Va. § 61-8B-13(b). The second category would encompass minors under the critical statutory age of consent, but over 10 years old. Model Penal Code, § 213.6, Comment at 415-16. Having sexual relations with a child falling in this category would still be a crime, but a defendant could escape punishment if he or she proved that he or she was mistaken as to the child's age. Both categories are consistent with the prevailing contemporary view, and with the common law, that a child under 10 years old is too young to understand the nature and quality of his or her act, Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Commentaries § 212, and that a child over 10 years of age ordinarily is aware of social attitudes and the nature of sexual contact. See Myers, supra, at 121; see also Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Thus, the Code would allow the defendant to defend a charge of rape involving a minor falling in the second category on the basis that he or she reasonably believed the child to be above the critical age. See Model Penal Code § 213.6, Comment at 416.[19]
In the case sub judice, the defendant does not dispute that he had sexual relations with the 13 year old prosecutrix. He seeks only to be able to defend himself against being labeled a rapist. He may only do so, however, if he is allowed to present evidence that he acted under a mistake of fact as to the prosecutrix's age, that he believed, and reasonably so, that she was above the age of consent. The proof he proposed to present to prove his defense was that the victim and her friends told him that the victim was 16 years old. He should have been allowed to show that he lacked the "guilty mind" to have sex with a 13 year old.
IV. Constitutional Limitations on Strict Criminal Liability
A State Legislature does have the power to define the elements of the criminal offenses recognized within its jurisdiction. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434, 439 (1985); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957); McCallum v. State, 81 Md. App. 403, 413, 567 A.2d 967, 971 (1990), aff'd, 321 Md. 451, 583 A.2d 250 (1991). Cf. Singer, supra, at 389. In fact, the Supreme Court has said: "There is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231. Accordingly, a State legislature may constitutionally prescribe strict liability for public welfare offenses, discussed supra, committed within its boundaries. But "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United Gypsum Company, 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978) (citations omitted). See Morissette, 342 U.S. at 263, 72 S.Ct. at 250, 96 L.Ed. at 300 (mere omission of any mention of intent will not be construed as eliminating element from crime announced); McCallum, 321 Md. at 456, 583 A.2d at 252. Indeed, criminal offenses requiring no mens rea have a "generally disfavored status." McCallum, 321 Md. at 457, 583 A.2d at 252-253.
To recognize that a State legislature may, in defining criminal offenses, exclude mens rea, is not to suggest that it may do so with absolute impunity, without any limitation whatsoever. The validity of such a statute necessarily will depend on whether it violates any provision of the federal, see Smith, 361 U.S. at 152-53, 80 S.Ct. at 218, 4 L.Ed.2d at 211, or applicable state, see Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946) (holding that Article 20, Maryland Declaration of Rights, guaranteeing a defendant a trial of facts as "one of the greatest securities of the lives, liberties and estate of the people," voids a rule which substitutes an irrebuttable presumption for facts), constitution. It is ordinarily the due process clause, either of the federal constitution, or the corresponding provision of the appropriate state constitution, which will determine its validity.[20] See McMillan v. Pennsylvania, 477 U.S. 79, 83, 85-86, 106 S.Ct. 2411, 2414-16, 91 L.Ed.2d 67, 74-76 (1986); Liparota, 471 U.S. at 424 n. 6, 105 S.Ct. at 2087 n. 6, 85 L.Ed.2d at 439 n. 6; Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281, 287 (1977); Smith, 361 U.S. at 149, 80 S.Ct. at 217, 4 L.Ed.2d at 209; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943); Chaplinski v. New Hampshire, 315 U.S. 568, 570-71, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031, 1034-35 (1942); Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575, 578 (1929); McFarland v. American Sugar Refining Company, 241 U.S. 79, 85-86, 36 S.Ct. 498, 501, 60 L.Ed. 899, 904 (1916); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855) (Due Process clause restricts legislative power arbitrarily to declare what is "due process of law"). Mahoney, 187 Md. at 87, 48 A.2d at 603; Johns v. State, 55 Md. 350, 363 (1881); McLain, Maryland Practice, "Irrebuttable Presumptions and Constitutional Limitations In Criminal Cases," § 303.1. See generally L. Tribe, American Constitutional Law, Ch. 10 (2nd 1988).
Due process, whether pursuant to that clause of the Fourteenth Amendment[21] or the corresponding clause in a state constitution, protects an accused from being convicted of a crime except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508, 512 (1975). It thus implicates the basic characteristics, if not the fundamental underpinnings, of the accusatorial system. In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375. See Gilbert & Moylan, supra, § 45.0, 589-590.
Under our system of justice, a person charged with a crime is presumed innocent until he or she is found guilty beyond a reasonable doubt. That means that he or she may not be found guilty until the State has produced evidence sufficient to convince the trier of fact, to the required extent, of that person's guilt. Moreover, although not required to do so, the defendant may present a defense, in which event the evidence the defendant produces must be assessed along with that of the State in determining whether the State has met its burden. The State's burden is not reduced or changed in any way simply because the defendant elects not to interpose a defense. In those cases, the defendant may still seek to convince the trier of fact that the State has not met its burden of proof by arguing that the inferences to be drawn from the evidence the State has produced simply is not sufficient to support guilt.
Irrebuttable presumptions are rules of substantive law. McLain, §§ 301.1, 303.1; Gilbert & Moylan, supra, § 45.12. See also 9 J. Wigmore, Evidence, § 2492 at 307-08, "Conclusive Presumptions" (Chadbourne Rev. 1981), in which it is explained:
Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.
Thus, irrebuttable presumptions help to define the issues pertinent to a particular kind of case, McLain § 303.1 at 241, and, in that sense, because the substantive law determines the issues to be proved, govern the admission of evidence, thus establishing the perimeters of relevance and materiality. Id., § 301.1 at 183. They may be statutory, McLain, § 303.1 at 182 n. 2, or have their origin in the common law. See In re Davis, 17 Md. App. 98, 100 n. 1, 104, 299 A.2d 856, 858 n. 1, 860 (1973); Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951). Accordingly, at common law, children under the age of 7 were, and still are, irrebuttably presumed to be incapable of forming criminal intent, Davis, and children under 4 years of age, were, and are, irrebuttably presumed to have been incapable of contributory negligence. As a matter of substantive law, therefore, children of those ages could not then, and may not now, be prosecuted under the criminal law, be sued for negligence, or held to be contributorially negligent. Similarly, section 463(a)(3) reflects the irrebuttable presumption that a child under 14 years of age is incapable of consenting to sexual intercourse. See Rau, 133 Md. at 613-616, 105 A. at 867.
When the Legislature enacts a strict liability crime, i.e., promulgates a statute which excludes as an element, the defendant's mental state, it essentially creates an irrebuttable presumption that the defendant's mental state, i.e., knowledge or intent, is irrelevant. See McLain, § 301.1 at 183. That is the case with regard to statutory rape. Notwithstanding that it chooses to accomplish that result by defining the crime, rather than by means of an express presumption, which relieves the State of its burden of proof, the fact remains that the result is exactly the same: anyone who has sexual relations with a female under the age of 14 is treated as if he knew that she was under 14 and so intended to have such relations with a 14 year old female. It thus relieves the State of any duty to produce relevant evidence to prove the defendant's mental state, that he knew the prosecutrix's age, and prevents the defendant from proving the contrary. Because the irrebuttably presumed fact does not follow inextricably from the fact of sexual relations with a 14 year old, its use to relieve the State of its burden of proof to prove the defendant's intent in that regard runs afoul of the due process clause of the Fourteenth Amendment.
Irrebuttable, mandatory, presumptions have long been disfavored and held to be violative of due process. Vlandis v. Kline, 412 U.S. 441, 446, 453, 93 S.Ct. 2230, 2233, 2237, 37 L.Ed.2d 63, 68, 73 (1973), and cases therein cited. One of the bases for the disfavor is that they may conflict with the overriding presumption of innocence which the law accords to the accused and invade the fact finding process, which, in a criminal case, is the exclusive province of the jury. See Carella v. California, 491 U.S. 263, 268, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218, 223 (1989) (Scalia, J. concurring) (jury instructions relieving the prosecution of its burden of proof violate a defendant's due process rights; whether he or she is believed ordinarily is a question of fact for the jury to decide, not one of law for the Legislature). The more usual reason for disfavoring irrebuttable presumptions, however, is that the fact conclusively presumed "is not necessarily or universally true in fact," Vlandis, 412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, and, so, excusing the proponent of that fact from having to establish it renders the statute "arbitrary, illegal, capricious and hence unconstitutional." Mahoney, 187 Md. at 87, 48 A.2d at 603.[22] This is especially so when the presumed fact bears little or no relation to the statute's expressed objective. Vlandis, 412 U.S. at 448-49, 93 S.Ct. at 2234-35, 37 L.Ed.2d at 69-70. Nor, "where there are other reasonable and practicable means of establishing the pertinent facts on which the State's objective is premised," id. at 451, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, may a conclusive presumption, not otherwise appropriate, be rendered acceptable or, because it is a matter of "administrative ease and certainty," id., the State's burden reduced.
The statute invalidated in Vlandis conclusively presumed that the applicant's residence when he applied for admission to a Connecticut University remained his residence throughout his college years. At issue in Mahoney was Rule 146 of the Maryland Racing Commission, the pertinent portion of which provided:
"(d) If the Commission finds from analysis of the saliva or urine, or blood taken from a horse on the day of a race in which the horse ran, or from other competent evidence, that any drug had been administered to the horse within forty-eight (48) hours before the race, the trainer shall be subject to the penalties prescribed in subsection (e) hereof, whether or not he administered the drug, or knowingly or carelessly permitted it to be administered. The fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered."
187 Md. at 83-84, 48 A.2d at 602. See also United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir.1985) (interpreting the Migratory Bird Treaty Act, a strict liability statute); Guest, 583 P.2d at 838-39 (holding Alaska's statutory rape statute unconstitutional as a violation of due process).
Smith, Tot, and Lambert are also apposite. The ordinance at issue in Smith made it unlawful "for any person to have in his possession any obscene or indecent writing, [or] ... books [i]n any place of business where ... books ... are sold or kept for sale." 361 U.S. at 148, 80 S.Ct. at 216, 4 L.Ed.2d at 208. It did not require proof of any mental element on the part of the defendant. Id. at 149, 80 S.Ct. at 216, 4 L.Ed.2d at 208. Noting, but rejecting, the State's attempt to "analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example," the Court observed (id. at 152-153, 80 S.Ct. at 218, 4 L.Ed.2d at 211 (citation omitted)):
The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors — in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used.... His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller.
In Lambert, a Los Angeles ordinance required convicted felons who remained in the city for more than five days to register with the police. It did not contain any "knowledge" or mens rea requirement. The Supreme Court held:
actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.... Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine or in a language foreign to the community.
355 U.S. at 229-30, 78 S.Ct. at 243-44, 2 L.Ed.2d at 232.
Similarly, in Tot, holding that section 2(f) of the Federal Firearms Act violated the Due Process Clauses of the Fifth and Fourteenth Amendment, 319 U.S. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524, the Court overturned the defendant's conviction. It held that Congress had no power to create the presumptions contained in that section to wit: that, from the defendant's prior conviction of a crime of violence and his present possession of a firearm, it is conclusively presumed that the firearm was received in interstate or foreign commerce, after the effective date of the statute. Id. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524. Rejecting the Government's argument that it was entitled to the presumption because the defendant had the better means of information, the Court said (id. at 469, 63 S.Ct. at 1246, 87 L.Ed. at 1525):
But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. (footnote omitted).
In the case sub judice, by consciously and intentionally excluding from section 463(a)(3) any requirement that the defendant's knowledge of the victim's age be proven, the Legislature has relieved the State of that obligation; without that legislation, of course, the State's burden would have included proving, at the very least, that the defendant knew the prosecutrix's age. On the issue of the defendant's intent, section 463(a)(3) only requires proof of the victim's age and its differential with that of the defendant. As such, once those facts have been proven, it is conclusively established that the defendant's intent was to have sexual relations with a girl of the proscribed age.[23] As we have seen, not requiring proof of the defendant's intent has been accomplished by so defining the crime, not by means of an express presumption. Again, that is of no real consequence, however. By defining the crime, the Legislature prescribes what must be proven. In other words, by that process, it has determined what the rule of substantive law will be — by defining the crime so as to exclude proof of knowledge or intent, the Legislature naturally precludes the admission of any evidence bearing on the element, the proof of which it has excused. In so doing, it has made that element — intent or knowledge of the victim's age — irrelevant to the definition of the crime and, hence, irrebuttable. Wigmore, § 2492 at 307-08. It follows, therefore, that, once the other elements are proven, the defendant's knowledge or intent is necessarily established as well. It does not necessarily follow, however, that simply because the victim is 13 years old, the defendant had knowledge of her age or intended to have sexual relations with a 13 year old girl. He may have had knowledge or intent, to be sure, but, by the same token, he may not have. The defendant should have been permitted to present evidence on the issue.
In her treatise, Professor McLain, echoing the authorities, offered an example of the Legislature redefining a crime to exclude an element, without relying on an irrebuttable presumption. She referred to Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 286A[24] which punishes a defendant for possession of certain large amounts of drugs, without regard to intent. That is not comparable to the case sub judice. While, under the statute, it is true that the possession of the proscribed drugs is a crime without proof of the intent with which they are possessed, the State is not relieved of its responsibility of proving both that they were brought into Maryland and that the possession was a knowing possession. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). In the case of statutory rape all aspects of the defendant's knowledge, save proof of the intercourse itself, has been rendered, by definition, irrelevant and, so, off limits for the trial. That is, I repeat, by no means comparable.
The critical issue in a statutory rape case is "the age of the rape victim." That is true because the victim's age serves two related, but distinct purposes: (1) it establishes the victim's capacity to consent and (2) it represents notice to a defendant of proscribed conduct. The Maryland statute seeks irrebuttably to presume not only that the victim could not consent by virtue of age, but also that, when a defendant engages in sexual relations with a minor under the age of 14, he has notice of that fact. Assuming that, based on the victim's age, the Legislature could legitimately exclude consent as an element of the crime,[25] it absolutely should not be able to excuse the State from its obligation to prove the defendant's knowledge of the victim's age or prevent the defendant from producing evidence on that issue. No matter how forcefully it may be argued that there is a rational relationship between the capacity to consent and the age the Legislature selected, given the tremendous difference between individuals, both in appearance and in mental capacity, there can be no such rational relationship between the proof of the victim's age and the defendant's knowledge of that fact.[26] See Tot, 319 U.S. at 469, 63 S.Ct. at 1245-46, 87 L.Ed. at 1525. Mahoney, 187 Md. at 87, 48 A.2d at 603.
The notice element of the crime of statutory rape is different from the consent element, in any event. A defendant who has knowledge that a victim has consented, in fact, to sexual relations, whether the consent is effective or not, is not thereby placed on notice as to the victim's age. Knowledge of consent simply does not equate with knowledge of age, just as intent to engage in sexual relations does not reveal, without more, with whom. Moreover, it is not a crime to engage in sexual relations with a minor who is at least 16 years old; it may be morally wrong, in the minds of most Americans, but it is not a crime. It is only a crime if the defendant engages in such relations with a minor under a specified age, i.e., 14, as in section 463(a)(3), or 14 or 15, as in section 464C. But even when the act engaged in is necessarily a crime, e.g. possession of contraband, knowledge of the illegality — that the contraband is knowingly possessed — is still required. See Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). Consequently, where the activity would be legal or, at least, not illegal, but for the ages of the participants, at the very least, the defendant's knowledge of the victim's age must be proven. Otherwise, a defendant who does not know he is acting illegally could be convicted.
Moreover, there is precedent that a felony statute which prescribes substantial penalties and conviction of which will subject the defendant to significant social stigma, violates due process unless it requires the State to prove intent or knowledge, Wulff, 758 F.2d at 1125; Holdridge v. United States, 282 F.2d 302 (8th Cir.1960); United States v. Heller, 579 F.2d 990 (6th Cir.1978); Guest, 583 P.2d 836 (Ala. 1978).[27]
In Wulff, the defendant was charged with violation of the felony provisions of the Migratory Bird Treaty Act, 16 U.S. § 707(b). On motion by the defendant, the trial court dismissed the charges, holding that the provisions under which he was charged violated due process, no proof of intent being required. On appeal by the Government, the Court of Appeals affirmed. 758 F.2d at 1122. That court perceived the issue to be "whether the absence of a requirement that the government prove some degree of scienter violates the defendant's right to due process." In resolving that issue, it observed, relying on Holdridge, supra, that "a felony conviction under the act does not require proof of scienter; the crime is not one known to the common law, and ... the felony penalty provision is severe and would result in irreparable damage to one's reputation." Id. The court then held:
We are of the opinion that in order for one to be convicted of a felony under the MBTA, a crime unknown to common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter. Otherwise, a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation. This, in our opinion, the Constitution does not allow.
Id. at 1125. See Holdridge, 282 F.2d at 310, in which it is said:
[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.
A similar result was reached by the Supreme Court of Alaska in Guest, involving a charge of statutory rape. Significantly, having held that, under its precedents, a reasonable mistake of age defense was permitted, the court submitted:
[W]here a particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional.... Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.
Id. at 839 (citations and footnote omitted).
Similarly, the prosecution of statutory rape in Maryland necessarily brings into conflict the State's interests in protecting minors and defendants' due process rights because section 463(a)(3) operates "`to exclude elements of knowledge and diligence from its definition,'" Ransom, 942 F.2d at 776, quoting Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231, and, thus, removes reasonable ignorance of the girl's age and consequent lack of criminal intent as a defense. The failure of section 463(a)(3) to require proof of a culpable mental state conflicts both with the substantive due process ideal requiring that defendants possess some level of fault for a criminal conviction of statutory rape and the procedural due process ideal requiring that the prosecution overcome the presumption of innocence by proof of the defendant's guilt beyond a reasonable doubt. Notwithstanding the maxim that criminal statutes dispensing with the intent requirement and criminal offenses requiring no mens rea have a "generally disfavored status," the rationale of parts V and VI of the majority opinion is that the legislature has absolute authority to create strict liability crimes. For the reasons reviewed, I do not agree. On the contrary, I believe that due process both under the Fourteenth Amendment and under the Declaration of Rights, precludes strict criminal liability for statutory rape. Interpreting section 463(a)(3) as the majority does has the effect of largely relieving the State of its burden of proof and burden of persuasion. By making the defendant's intent, and, hence, blameworthiness, irrelevant, the Legislature has made inevitable, the petitioner's conviction. Moreover, upon conviction of the felony offense of statutory rape under section 463(a)(3), in addition to a substantial penalty of up to 20 years imprisonment, a defendant's reputation will be gravely besmirched. Where there is no issue as to sexual contact, which is more likely than not to be the case in statutory rape prosecutions, proof of the prosecutrix's age is not only proof of the defendant's guilt, it is absolutely dispositive of it and, at the same time, it is fatal to the only defense the defendant would otherwise have. So interpreted, section 463(a)(3) not only destroys absolutely the concept of fault, but it renders meaningless, in the statutory rape context, the presumption of innocence and the right to due process.
I respectfully dissent.
[1] "If any person shall carnally know and abuse any woman-child under the age of ten years, every such carnal knowledge shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging ... or undergo a confinement in the penitentiary for a period not less than one year nor more than twenty-one years." Ch. 138, Sec. 4, 7th. (1809) compiled in 1 Dorsey's General Public Statutory Law and Public Local Law of the State of Maryland 575 (1840). The minimum age of the child was raised from 10 years to 14 years in Chapter 410 of the Acts of 1890.
[2] With respect to the law of statutory rape, the Model Penal Code strikes a compromise with its general policy against strict liability crimes. The Code prohibits the defense of ignorance or a reasonable mistake of age when the victim is below the age of ten, but allows it when the critical age stipulated in the offense is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The drafters of the Code implicitly concede that sexual conduct with a child of such extreme youth would, at the very least, spring from a criminally negligent state of mind. The available defense of reasonable mistake of age for complainants older than ten requires that the defendant not have acted out of criminal negligence. See the Comment to § 213.6, at 415-416.
[3] Myers notes, too, that European law upholds mistake of age as a defense to statutory rape. Id. at 106, and n. 12.
[4] See also Ariz. Rev. Stat. Ann. § 13-1407(B) (1989, 1992 Cum.Supp.) (age 14); Ark. Code Ann. § 5-14-102 (1987) (age 14); Col.Rev.Stat. § 18-3-406 (1973, 1986 Repl.Vol.) (age 15); Ind. Code Ann. § 35-42-4-3 (1985 Repl.Vol.) (age 12); Mo. Ann. Stat. § 566.020 (1979) (age 14); Mont. Code Ann. § 45-5-511(1) (1991) (age 14); N.D. Cent. Code § 12.1-20-01.1 (1991 Supp.) (age 15); Wyo. Stat.Ann. § 6-2-308 (1988) (age 12).
[5] See also Ill.Comp.Stat. ch. 720, § 5/12-17(b) (1993) (defense available for offenses defined as criminal sexual abuse); Me. Rev. Stat. Ann. tit. 17-A, § 254.2 (1983, 1992 Cum.Supp.) (available for charge of sexual abuse of minors); Ohio Rev.Code Ann. § 2907.04 (1953, 1993 Repl. Vol.) (available for charge of corruption of minors).
[6] Both the California Penal Code and the Utah Criminal Code included provisions requiring a concurrence of act and intent to constitute a crime. The Utah Criminal Code further contained a provision authorizing convictions for strict liability offenses clearly defined as such. See Hernandez, supra, 39 Cal. Rptr. at 363, 393 P.2d at 675; Elton, supra, 680 P.2d at 728-729.
[7] The House version read in pertinent part: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse: ... (2) with another person who is under 14 years of age and the person performing the act is at least four or more years older than the victim." As discussed earlier, the offense was reduced to second degree rape in 1977.
[1] In this connection, it should be noted that the defendant-appellant, in his opening brief in this Court, made no constitutional argument either directly or by invoking the principle of statutory construction that a statute should be construed so as to avoid a serious constitutional problem. Consequently, the State had no opportunity to brief the constitutional issue discussed in Judge Bell's dissent.
[2] As pointed out by one commentator, "it can be argued that if strict liability statutes are to be characterized as `strict' because of their failure to permit inquiry as to the defendant's state of mind, this description is too broad. More appropriately, each criminal statute must be examined to determine in what respects it is `strict.'" Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 742 (1960).
[1] Maryland Code Ann., Art 27, § 463 provides, in pertinent part:
(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
* * * * * *
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.
(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.
[2] There are other provisions of the Maryland sexual offenses statutes similar in purpose and effect to section 463(a)(3). Md.Code (1957, 1992 Repl.Vol.) §§ 464A, 464B, and 464C also do not specify a mental state and, therefore, would also be, under the majority's rationale, strict liability crimes. Sections 464A and 464B define statutory second degree sexual act and statutory third degree sexual offense. Although neither involves intercourse, both are felonies with maximum penalties of 20 and 10 years respectively. Section 464C proscribes the same conduct as section 463(a)(2); however, it applies to minors 14 or 15 years old and it punishes that conduct much less severely. see n. 15 infra.
[3] The analysis I would employ is that developed for use in self defense cases, perfect and imperfect. Before the State's burden affirmatively to prove the defendant's mental state kicks in, the defendant must have generated the issue by producing "some evidence" supporting his or her claim of mistake of fact. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). If the defendant generates the issue, the State must prove beyond a reasonable doubt that the act was committed without any mistake of fact — that the defendant acted intentionally and knowingly. See id.; see also State v. Evans, 278 Md. 197, 208, 362 A.2d 629, 635 (1976); Dykes v. State, 319 Md. 206, 216-17, 571 A.2d 1251, 1257 (1990).
[4] The Court stated that exceptions were developed in the course of the common law for "sex offenses, such as rape, in which the victim's actual age was determinative despite the defendant's reasonable belief that the girl had reached age of consent." Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8, It, however, did not discuss whether the exceptions could withstand constitutional scrutiny, stating only that the exceptions were not relevant to the case before the Court. See id.; 342 U.S. at 250-51 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8.
[5] In State v. McCallum, 321 Md. 451, 455-56, 583 A.2d 250, 252-53 (1991), we characterized the crime of driving with a suspended license as both punitive and regulatory and concluded that a mental state was required. The argument that § 463(a)(3), which is purely punitive, must require proof of a mental state is stronger.
[6] Maryland does not treat narcotic offenses as strict liability crimes. See Dawkins, 313 Md. 638, 547 A.2d 1041 (1988) (knowledge is an element of possession of a controlled dangerous substance).
[7] The Maryland bigamy statute, proscribing the entering into of a marriage ceremony while lawfully married to another, excludes from its coverage individual whose "lawful spouse has been absent from the individual for a continuous period of seven years and who, at the time of the subsequent marriage ceremony, does not know whether or not the spouse is living." Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 18(b). See Braun v. State, 230 Md. 82, 85-90, 185 A.2d 905, 906-07 (1962). The Legislature thus has now recognized the unfairness of convicting a person for remarrying if that person has a reasonable belief that his or her former spouse is dead.
[8] American penal statutes against fornication are generally unenforced, which may be reflective of the view that such a use of the penal law is improper. See Model Penal Code, § 213, Comment at 434.
[9] Sexual intercourse out of wedlock is still a crime in several American Jurisdictions. See Model Penal Code, § 213.6, Comment at 430. The prohibition derives from Biblical sources and long fell within the exclusive jurisdiction of the ecclesiastical authorities. Id. In England, secular punishment began under Cromwell's theocracy and was abandoned after the Restoration. Id. The Puritans of New England reinstituted punishment for sexual misbehavior. Id. At one time or another, most American states extended their penal laws to reach such misconduct, but the trend in this century has been toward decriminalization or reduction of penalties. See e.g. Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). See generally Model Penal Code § 213.6, Comment at 430 (footnote omitted).
[10] A conviction plausibly could have been supported under the lesser legal wrong theory had the defendant been married when he had sex with the prosecutrix. Adultery remains a crime in Maryland. See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 4. The defendant's intent to commit adultery, the lesser legal wrong, would suffice as the requisite mental state for the greater crime of statutory rape.
[11] In contrast, one who engages in sexual relations with a child who clearly does not appear to be of the age of consent, for example, a minor 7 years of age, evidences a propensity to corrupt minors. Because that person necessarily is aware that the minor is not of the age to consent, almost all authorities believe that he or she is properly held accountable on a strict liability basis. See e.g. Model Penal Code, § 213.6, Comment at 415-16.
[12] An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community. Acts mala in se have, as a general rule, become criminal offenses by the course and development of common law. Black's Law Dictionary 281 (1984). In comparison, an act malum prohibitum is wrong only because made so by statute. Id. Malum in se crimes usually include all felonies, injuries to property, adultery, bigamy, indecent acts committed upon underage children, and conduct contributing to the delinquency of a minor. See Myers, supra, at 115; see also Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 109 (3rd ed. 1982).
[13] The mistaken belief must tend to negate the mens rea necessary to the commission of the crime. For example, belief that the victim was 13 1/2 years of age, instead of 13, will be of no avail since section 463(a)(3)'s age limit is 14.
[14] It is noteworthy that the early English statutes providing for strict criminal liability for statutory rape did not deny the defense of mistake of fact. Under very early English common law, it was no crime to have consensual relations with a female, regardless of her age. Myers, supra, at 109, citing 4 W. Blackstone Commentaries [*]210 and 2 Coke, Institutes [*]180. It was not until the latter part of the thirteenth century that legislation was enacted in England making it unlawful to ravish "damsels" under the age of 12 years, with or without their consent, considered an action of trespass, with a penalty of two years and a fine in such sum as the sovereign directs. Gilbert & Moylan, Criminal Law, § 5.0., citing 4 W. Blackstone, Commentaries [*]212. Toward the close of the 16th century, the age of consent was reduced to 10 years old, the purpose of the statute being to declare that a girl under the prescribed age was presumed incapable of consent because she was too young to understand the nature and quality of her act. Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Comm. [*]212. The offense was also increased to a felony. See Gilbert & Moylan, Criminal Law, § 5.0., citing 13 Edward I, Statute of Westminster 2, c.34 and Statute 18 Elizabeth I, c. 7. English courts, in contrast to American courts, which never have allowed it, however, never denied the existence of the reasonable mistake of fact defense. Myers, supra, at 111. American Courts erroneously interpreted Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 111, and applied its rationale to statutory rape.
[15] Two policy considerations have historically been advanced to justify strict criminal liability for statutory rape: (1) it is desirable to provide the fullest protection to the innocent and naive female child incapable of understanding the nature of sexual intercourse; and (2) the act is immoral in itself, malum in se, discussed supra, and, so, it is appropriate to hold that the offender acts at his peril. See Tonry, supra, at 111.
Establishing an age, below which females are considered sexually immature and above which, they are considered sexually mature, does not assure that the first policy consideration will be achieved. See Tonry, supra, at 111. Age alone is not sufficient, considering that, in this country, the age of consent for statutory rape purposes ranges from 7 to 21 years. Id.
The inadequacy of age as a demarcation line actually points up the flaws in the strict criminal liability analysis. First, it would seem reasonable to allow the accused to introduce evidence of the minor's maturity, sophistication, and past sexual experience, since maturity, not age, is the chief concern, age being but a factor. Second, the age standard (unless it is low enough) with its universal application draws an arbitrary line, resulting in the imposition of disproportionate penalties. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977); see also Tonry, supra, at 112. Thus, for example, pursuant to section 463(a)(3) sexual intercourse with a person under 14 years of age, if the actor is at least four years older than the victim, is a second degree rape offense punishable by a possible twenty years imprisonment. Under section 464C, defining a fourth degree sexual offense, the same conduct if committed with a child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law creates a potential disparity of up to 19 years for a difference of as little as one day in the victim's age. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977). Third, placing the age standard too high may result in the anomaly of a female being legally able to consent to marriage, but unable to consent to intercourse. Tonry, supra, at 112, citing Ploscowe, Sex and the Law 184 (1951).
[16] While consent was not an element of assault with intent to have carnal knowledge of a female child under 14 years, by definition, the intent to have such knowledge of a 14 year old child was. Consequently, focusing on intent, the result in that case was not inconsistent with the common law.
[17] Recognizing that the statutory rape law stemmed from traditional notions underlying the presumption of incapacity to consent, presuming that the male was responsible for the occurrence and the female was "too innocent and naive to understand the implications and nature of her act", in Hernandez, 61 Cal.2d at 531 n. 1, 39 Cal. Rptr. at 362 n. 1, 393 P.2d at 674 n. 1, the California Supreme Court quoted the following passage from State v. Snow, 252 S.W. 629, 632 (Mo. 1923) to illustrate the potentially unfair consequences of employing these presumptions of female victimization:
"We have in this case a condition and not a theory. This wretched girl was young in years but old in sin and shame. A number of callow youths, of otherwise blameless lives ... fell under her seductive influence. They flocked about her, ... like moths about the flame of a lighted candle and probably with the same result. The girl was a common prostitute. .. .
The boys were immature and doubtless more sinned against than sinning. They did not defile the girl. She was a mere `cistern for foul toads to knot and gender in.' Why should the boys, misled by her, be sacrificed? What sound public policy can be subserved by branding them as felons? Might it not be wise to ingraft an exception in the statute?"
Today, the increasing sexual awareness and promiscuity currently evident at lower ages enhances the probability that sexual experimentation will be indulged in, and many times solicited, by the supposed victim. See Myers, supra, at 122. Indeed, in this case there is every reason to question whether the victim was the petitioner, rather than the minor female. The petitioner has an IQ of 52. The prosecutrix and her friends told the petitioner that she was 16 and the record does not suggest that she did not appear to be that age. The petitioner entered the prosecutrix's room at her invitation and remained with her for almost seven hours.
[18] Although it is not necessary in this case to reach the issue, I am not nearly so troubled by the retention of strict liability in cases involving very young children, i.e. under the age of 10, while requiring the State to prove mens rea in cases involving minors above the age of 10.
[19] The offer of proof of the defendant's alleged mistake of fact does not alone establish that fact. Unless the jury, or trier of fact, accepts the proof, the defense must fail. Whether a defendant actually entertained the belief that the minor was 16 and, if so, its reasonableness, must depend upon the minor's appearance and the evidence, including the testimony of the defendant and other witnesses, concerning her behavior. Rather than place the burden of proof on the State, as I would do, under the Code, the burden is on the defendant not only to generate the issue, but to prove it by a preponderance of the evidence. See Model Penal Code, § 213.6, Comment at 416.
[20] Article 20 of the Maryland Declaration of Rights, which has been held to be in pari materia with the Fourteenth Amendment's Due Process Clause, see Sanner v. Trustees of Sheppard & Enoch Pratt Hosp., 278 F. Supp. 138 (D.Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968), rehearing denied, 393 U.S. 1112, 89 S.Ct. 853, 21 L.Ed.2d 813 (1969) (citations omitted); Home Utilities Co., Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 122 A.2d 109 (1955); Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176 (1939), provides:
That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the people.
See also Article 24 of the Maryland Declaration of Rights, which provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
The phrase "Law of the land" has been held to be equivalent to "due process" of the law, as used in the 14th Amendment to the United States Constitution. In re Easton, 214 Md. 176, 187-89, 133 A.2d 441, 447-48 (1957). In that regard, therefore, Supreme Court cases on that subject are practically direct authority for the meaning of the Maryland provision. Northampton Corp. v. Wash. Sub. San. Comm'n, 278 Md. 677, 686, 366 A.2d 377, 383 (1976). The essential elements of due process as it relates to a judicial proceeding are notice and opportunity to defend. Accrocco v. Splawn, 264 Md. 527, 534, 287 A.2d 275, 278-80 (1972).
[21] The due process clause of the Fourteenth Amendment of the United States Constitution guarantees that no State shall "deprive any person of life, liberty or property without due process of law." This clause has been interpreted as "a restraint on the legislative as well as on the executive and judicial powers of the government and [it] cannot be ... construed as to leave Congress free to make any process `due process' of law by its mere will." Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855). L. Tribe, American Constitutional Law § 10-7, at 664 (2nd ed. 1988).
[22] In Johns v. State, 55 Md. 350, 359-63 (1881), cited by this Court in Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946), a statute requiring the certificate of the Comptroller to be received as prima facie evidence of the defendant's defalcation was upheld. In doing so, however, the Court was persuaded by the fact that the evidence was only prima facie:
So far as this case is concerned, it may readily be conceded, that a statute that should make evidence conclusive, which was not so of its own nature and inherent force, and by that means preclude the party from the truth, would be simply void. But the evidence furnished by the certificate only being prima facie in its effect, the traverser was left at full liberty to repel and overcome that prima facie effect, by evidence that ought to have been within his own control.
Id. at 362-63.
[23] To be sure, the statute is based on another irrebuttable presumption: that the victim is incapable of consenting. My argument is not directed at that presumption, albeit it is, in my opinion, logically, also fair game for constitutional challenge. See n. 26: see Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. It is certainly not universally true, or even almost always true, that a minor 13 years of age is incapable of giving meaningful consent. See note 25 infra.
[24] § 286A. Bringing into State in excess of certain amounts.
(a) A person who brings into this State any of the following controlled dangerous substances which it is unlawful for that person to possess, in the amounts indicated, upon conviction, is subject to the penalty provided in subsection (b) of this section:
(1) 100 pounds or greater of marijuana;
(2) 28 grams or greater of cocaine or any mixture containing 28 grams or greater of cocaine;
(3) 4 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium;
(4) 1,000 dosage units of lysergic acid diethylamide or any mixture containing the equivalent of 1,000 dosage units of lysergic acid diethylamide;
(5) 28 grams or more of phencyclidine in liquid or powder form or 112 grams or more of any mixture containing phencyclidine;
(6) 1,000 dosage units or more of methaqualone; or
(7) 28 grams or more of methamphetamines or any mixture containing 28 grams or more of methamphetamine.
(b) A person convicted of violating subsection (a) of this section is guilty of a felony and may be fined not more than $50,000 or imprisoned for not more than 25 years, or both fined and imprisoned in the discretion of the court.
[25] It is at least arguable that incapacity to consent based on an irrebuttable presumption cannot withstand constitutional scrutiny. For statutory rape to comport with due process, a close correlation between the age of consent specified in the statute and the purpose of the statute — to render minors incapable of consenting to sexual intercourse — is required. It is not necessarily true that a statutory age of consent is a reliable indicator of the capacity of any member of the protected class to understand the nature and consequences of sexual intercourse. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Myers, supra, at 121. Given the variety of cultural factors that can influence a child's acquisition of sexual awareness, it is unlikely that any arbitrary age could do so. Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 808 (1980). While it is reasonable to presume that very young children are naive and incapable of understanding the nature of sexual contact, and, thus, of consenting, an older adolescent's incapacity to consent on this basis seems unreasonable in light of pervasive contemporary sexual mores. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Note, supra, at 808-809.
[26] Indeed, it would appear that the irrebuttable presumption of notice is dependent on another irrebuttable presumption, that a person of a certain age cannot consent.
[27] As discussed supra, there are several critical distinctions between imposing strict criminal liability for public welfare offenses and felonies. First, there is no specific constitutional provision against imposing strict criminal liability for public welfare offenses. See Smith, 361 U.S. at 152, 80 S.Ct. at 218, 4 L.Ed.2d at 211; Singer, supra at 389. Second, such statutes which are designed to protect the health, safety, and welfare of the community at large, carry penalties that are not great and involve little or no stigma. See Tonry, supra, at 106.
On the other hand, there are constitutional limits on a legislature's power to define the elements of more serious criminal offenses like felonies. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75; Wulff, 758 F.2d at 1125; Singer, supra, at 397. Second, the greater social stigma attached to imposing criminal liability in serious felony cases requires an element of blameworthiness or culpability. See Singer, supra, at 404-405. Third, the severe penalties in serious felony cases merit a culpability requirement. See Holdridge, 282 F.2d 302.
7.2.6.2.3.7 Oliver Wendell Holmes, Jr. - "The Path of the Law" 7.2.6.2.3.7 Oliver Wendell Holmes, Jr. - "The Path of the Law"
"The Path of the Law"
by
Oliver Wendell Holmes, Jr.
10 Harvard Law Review 457 (1897)
When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.
The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished.
I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained.
The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.
I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider — a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones.
The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains — the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law.
Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him. In Bromage v. Genning, a prohibition was sought in the Kings' Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclusion.
I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. But I hardly think it advisable to shape general theory from the exception, and I think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms.
I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts — to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox's Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. The man was alive and chanced to hear the sermon, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm.
In the law of contract the use of moral phraseology led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual's mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another — to sight or to hearing — on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. If it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person.
This is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. Of the first of these I have said enough. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.
So much for the limits of the law. The next thing which I wish to consider is what are the forces which determine its content and its growth. You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose.
The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.
This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's "Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."
Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighborhood? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus.
Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum.
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.
So much for the fallacy of logical form. Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. We still are far from the point of view which I desire to see reached. No one has reached it or can reach it as yet. We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. Imitation is a necessity of human nature, as has been illustrated by a remarkable French writer, M. Tard, in an admirable book, Les Lois de l'Imitation. Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. The reason is a good one, because our short life gives us no time for a better, but it is not the best. It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. He is content if he can prove them best for here and now. He may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.
At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. I am thinking of the technical rule as to trespass ab initio, as it is called, which I attempted to explain in a recent Massachusetts case.
Let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. We think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. The evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. But primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. In modem times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. This really was giving up the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. That, however, would have seemed too bold, and was left to statute. Statutes were passed making embezzlement a crime. But the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground.
Far more fundamental questions still await a better answer than that we do as our fathers have done. What have we better than a blind guess to show that the criminal law in its present form does more good than harm? I do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles? A modern school of Continental criminalists plumes itself on the formula, first suggested, it is said, by Gall, that we must consider the criminal rather than the crime. The formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. The study of criminals has been thought by some well known men of science to sustain the former hypothesis. The statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. But there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal."
The impediments to rational generalization, which I illustrated from the law of larceny, are shown in the other branches of the law, as well as in that of crime. Take the law of tort or civil liability for damages apart from contract and the like. Is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. I think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. But when I stated my view to a very eminent English judge the other day, he said, "You are discussing what the law ought to be; as the law is, you must show a right. A man is not liable for negligence unless he is subject to a duty." If our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. I think that such a view is wrong, but it is familiar, and I dare say generally is accepted in England.
Everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. The other day Professor Ames wrote a learned article to show, among other things, that the common law did not recognize the defence of fraud in actions upon specialties, and the moral might seem to be that the personal character of that defence is due to its equitable origin. But if, as I said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who was privy to those motives. It is not confined to specialties, but is of universal application. I ought to add that I do not suppose that Mr. Ames would disagree with what I suggest.
However, if we consider the law of contract, we find it full of history. The distinctions between debt, covenant, and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is to be explained by history alone. Consideration is a mere form. Is it a useful form? If so, why should it not be required in all contracts? A seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal. Why should any merely historical distinction be allowed to affect the rights and obligations of business men?
Since I wrote this discourse I have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. It is the settled law of England that a material alteration of a written contract by a party avoids it as against him. The doctrine is contrary to the general tendency of the law. We do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. Even if a man has tried to defraud, it seems no sufficient reason for preventing him from proving the truth. Objections of like nature in general go to the weight, not to the admissibility, of evidence. Moreover, this rule is irrespective of fraud, and is not confined to evidence. It is not merely that you cannot use the writing, but that the contract is at an end. What does this mean? The existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. But in the case of a bond, the primitive notion was different. The contract was inseparable from the parchment. If a stranger destroyed it, or tore off the seal, or altered it, the obligee could not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. About a hundred years ago Lord Kenyon undertook to use his reason on the tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. His decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule.
I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. I venerate the law, and especially our system of law, as one of the vastest products of the human mind. No one knows better than I do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. It has the final title to respect that it exists, that it is not a Hegelian dream, but a part of the lives of men. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart.
Perhaps I have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. In the teaching of this school and at Cambridge it is in no danger of being undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there have made important contributions which will not be forgotten, and in England the recent history of early English law by Sir Frederick Pollock and Mr. Maitland has lent the subject an almost deceptive charm. We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect.
There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and textbooks. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen's Criminal Law on the subject of possession, and then turning to Pollock and Wright's enlightened book. Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models.
The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse — the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title De Regulis Juris Antiqui can be read in an hour. I assume that, if it is well to study the Roman Law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must explained. If any one doubts me, let him read Keller's Der Romische Civil Process und die Actionen, a treatise on the praetor's edict, Muirhead's most interesting Historical Introduction to the Private Law of Rome, and, to give him the best chance, Sohn's admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.
We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant's counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man's mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.
I have been speaking about the study of the law, and I have said next to nothing about what commonly is talked about in that connection — textbooks and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, "For lack of imagination, five dollars." The lack is not confined to valets. The object of ambition, power, generally presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. "The fortune," said Rachel, "is the measure of intelligence." That is a good text to waken people out of a fool's paradise. But, as Hegel says, "It is in the end not the appetite, but the opinion, which has to be satisfied." To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr. Leslie Stephen's History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.
7.2.6.2.3.8 B. v. Dir. Public Prosecutions 7.2.6.2.3.8 B. v. Dir. Public Prosecutions
B. v. Director of Public Prosections
House of Lords.
1 All E.R. 833.
February 23, 2000.
LORD IRVINE OF LAIRG L.C.
My Lords,
For the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead, in his speech, which I have had the advantage of reading in draft, this appeal should be allowed.
LORD MACKAY OF CLASHFERN
My Lords,
I have had the advantage of reading in draft the speeches prepared by noble and learned friends Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton.
In the light of the authorities to which they refer I consider that a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was aged 14 years or over, unless Parliament expressly or by necessary implication provided to the contrary. Clearly this has not been done expressly. For the reasons given by my noble and learned friends I consider that there is no sufficiently detailed legislative policy manifested by the Sexual Offences Act 1956 to which the Act of 1960 is an appendix to provide a basis for the necessary implication in respect of what was in 1960 a new offence. Accordingly this appeal should be allowed.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
An indecent assault on a woman is a criminal offence. So is an indecent assault on a man. Neither a boy nor a girl under the age of sixteen can, in law, give any consent which would prevent an act being an assault. These offences have existed for many years. Currently they are to be found in sections 14 and 15 of the Sexual Offences Act 1956. They have their origins in sections 52 and 62 of the Offences against the Person Act 1861.
In the early 1950s a lacuna in this legislation became apparent. A man was charged with indecent assault on a girl aged nine. At the man's invitation the girl had committed an indecent act on the man. The Court of Criminal Appeal held that an invitation to another person to touch the invitor could not amount to an assault on the invitee. As the man had done nothing to the girl which, if done against her will, would have amounted to an assault on her, the man's conduct did not constitute an indecent assault on the girl. That was the case of Fairclough v. Whipp [1951] 2 A.E.R. 834. Two years later the same point arose and was similarly decided regarding a girl aged eleven: see Director of Public Prosecutions v. Rogers [1953] 1 W.L.R. 1017. Following a report of the Criminal Law Revision Committee in August 1959 (First Report: Indecency with Children (Cmnd. 835)), Parliament enacted the Indecency with Children Act 1960. Section 1(1) of this Act makes it a criminal offence to commit an act of gross indecency with or towards a child under the age of fourteen, or to incite a child under that age to such an act. The question raised by the appeal concerns the mental element in this offence so far as the age ingredient is concerned.
The answer to this question depends upon the proper interpretation of the section. There are, broadly, three possibilities. The first possible answer is that it matters not whether the accused honestly believed that the person with whom he was dealing was over fourteen. So far as the age element is concerned, the offence created by section 1 of the Indecency with Children Act 1960 is one of strict liability. The second possible answer is that a necessary element of this offence is the absence of a belief, held honestly and on reasonable grounds by the accused, that the person with whom he was dealing was over fourteen. The third possibility is that the existence or not of reasonable grounds for an honest belief is irrelevant. The necessary mental element is simply the absence of an honest belief by the accused that the other person was over fourteen.
The common law presumption
As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the proscribed physical acts. Section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was fourteen or over.
In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence. On this I need do no more than refer to Lord Reid's magisterial statement in the leading case of Sweet v. Parsley [1970] A.C. 132, 148-149:
'. . . there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. . . . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.'
Reasonable belief or honest belief
The existence of the presumption is beyond dispute, but in one respect the traditional formulation of the presumption calls for re-examination. This respect concerns the position of a defendant who acted under a mistaken view of the facts. In this regard, the presumption is expressed traditionally to the effect that an honest mistake by a defendant does not avail him unless the mistake was made on reasonable grounds. Thus, in The Queen v. Tolson (1889) 23 Q.B.D. 168, 181, Cave J. observed:
'At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea'. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. . . . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication.'
The other judges in that case expressed themselves to a similar effect. In Bank of New South Wales v. Piper [1897] A.C. 383, 389-390, the Privy Council likewise espoused the 'reasonable belief' approach:
'. . . the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent.'
In Sweet v. Parsley [1970] A.C. 132, 163, Lord Diplock referred to a general principle of construction of statutes creating criminal offences, in similar terms:
'. . . a general principle of construction of any enactment, which creates a criminal offence, [is] that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent.'
The 'reasonable belief' school of thought held unchallenged sway for many years. But over the last quarter of a century there have been several important cases where a defence of honest but mistaken belief was raised. In deciding these cases the courts have placed new, or renewed, emphasis on the subjective nature of the mental element in criminal offences. The courts have rejected the reasonable belief approach and preferred the honest belief approach. When mens rea is ousted by a mistaken belief, it is as well ousted by an unreasonable belief as by a reasonable belief. In the pithy phrase of Lawton L.J. in Regina v. Kimber [1983] 1 W.L.R. 1118, 1122, it is the defendant's belief, not the grounds on which it is based, which goes to negative the intent. This approach is well encapsulated in a passage in the judgment of Lord Lane C.J. in Regina v. Williams (Gladstone) (1983) 78 Cr.App. R. 276, 281:
'The reasonableness or unreasonableness of the defendant's belief is material to question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting . . . and so on.'
Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief. To the extent that an overriding objective limit ('on reasonable grounds') is introduced, the subjective element is displaced. To that extent a person who lacks the necessary intent or belief may nevertheless commit the offence. When that occurs the defendant's 'fault' lies exclusively in falling short of an objective standard. His crime lies in his negligence. A statute may so provide expressly or by necessary implication. But this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence.
The traditional formulation of the common law presumption, exemplified in Lord Diplock's famous exposition in Sweet v. Parsley, cited above, is out of step with this recent line of authority, in so far as it envisages that a mistaken belief must be based on reasonable grounds. This seems to be a relic from the days before a defendant in a criminal case could give evidence in his own defence. It is not surprising that in those times juries judged a defendant's state of mind by the conduct to be expected of a reasonable person.
I turn to the recent authorities. The decision which heralded this development in criminal law was the decision of your Lordships' House in Director of Public Prosecutions v. Morgan [1976] A.C. 182. This was a case of rape. By a bare majority the House held that where a defendant had sexual intercourse with a woman without her consent but believing she did consent, he was not guilty of rape even though he had no reasonable grounds for his belief. The intent to commit rape involves an intention to have intercourse without the woman's consent or with a reckless indifference to whether she consents or not. It would be inconsistent with this definition if an honest belief that she did consent led to an acquittal only when it was based on reasonable grounds. One of the minority, Lord Edmund-Davies, would have taken a different view had he felt free to do so. In Regina v. Kimber [1983] 1 W.L.R. 1118, a case of indecent assault, the Court of Appeal applied the approach of the majority in Morgan's case. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, he was entitled to be found not guilty. If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge, irrespective of the grounds for the defendant's belief. The court disapproved of the suggestion made in the earlier case of Regina v. Phekoo [1981] 1 W.L.R. 1117, 1127, that this House intended to confine the views expressed in Morgan's case to cases of rape.
This reasoning was taken a step further in Reg. v. Williams (Gladstone) (1983) 78 Cr. App. R. 276. There the Court of Appeal, presided over by Lord Lane C.J., adopted the same approach in a case of assault occasioning actual bodily harm. The context was a defence that the defendant believed that the person whom he assaulted was unlawfully assaulting a third party. In Beckford v. The Queen [1988] A.C. 130 a similar issue came before the Privy Council on an appeal from Jamaica in a case involving a defence of self-defence to a charge of murder. The Privy Council applied the decisions in Morgan's case and Williams' case. Lord Griffiths said, at page 144:
'If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully.'
Lord Griffiths also observed, at a practical level, that where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held. Finally in this summary, in Blackburn v. Bowering [1994] 1 W.L.R. 1324, the Court of Appeal, presided over by Sir Thomas Bingham M.R., applied the same approach to the exercise by the court of its contempt jurisdiction in respect of an alleged assault on officers of the court while in the execution of their duty.
The Crown advanced no suggestion to your Lordships that any of these recent cases was wrongly decided. This is not surprising, because the reasoning in these cases is compelling. Thus, the traditional formulation of the common law presumption must now be modified appropriately. Otherwise the formulation would not be an accurate reflection of the current state of the criminal law regarding mistakes of fact. Lord Diplock's dictum in Sweet v. Parsley [1970] A.C. 132, 163, must in future be read as though the reference to reasonable grounds were omitted.
I add one further general observation. In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient. If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over fourteen, he is not intending to commit such an act with a girl under fourteen. Whether such an intention is an essential ingredient of the offence depends upon a proper construction of section 1 of the 1960 Act. I turn next to that question.
The construction of section 1 of the Indecency with Children Act 1960
In section 1(1) of the Indecency with Children Act 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. 'Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.
I venture to think that, leaving aside the statutory context of section 1, there is no great difficulty in this case. The section created an entirely new criminal offence, in simple unadorned language. The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction. Under section 1 conviction originally attracted a punishment of up to two years' imprisonment. This has since been increased to a maximum of ten years' imprisonment. The notification requirements under Part I of the Sex Offenders Act 1997 now apply, no matter what the age of the offender: see Schedule 1, paragraph 1(1)(b). Further, in addition to being a serious offence, the offence is drawn broadly ('an act of gross indecency'). It can embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender may be the younger of the two. The conduct may be depraved by any acceptable standard, or it may be relatively innocuous behaviour in private between two young people. These factors reinforce, rather than negative, the application of the presumption in this case.
The purpose of the section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor in itself does not assist greatly. Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender's belief about the age of the 'victim' and irrespective of how the offender came to hold this belief.
Nor can I attach much weight to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child's age. A well known passage from a judgment of that great jurist, Sir Owen Dixon, in Thomas v. The King (1937) 59 C.L.R. 279, 309, bears repetition:
'The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.'
Similarly, it is far from clear that strict liability regarding the age ingredient of the offence would further the purpose of section 1 more effectively than would be the case if a mental element were read into this ingredient. There is no general agreement that strict liability is necessary to the enforcement of the law protecting children in sexual matters. For instance, the draft criminal code bill prepared by the Law Commission in 1989 proposed a compromise solution. Clauses 114 and 115 of the bill provided for committing or inciting acts of gross indecency with children aged under thirteen or under sixteen. Belief that the child is over sixteen would be a defence in each case: see the Law Commission, Criminal Law, A Criminal Code for England and Wales, vol 1, Report and draft Criminal Code Bill, p. 81 (Law Com. No. 177).
Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding.
Indeed, the Crown's argument before your Lordships did not place much reliance on any of the matters just mentioned. The thrust of the Crown's argument lay in a different direction: the statutory context. This is understandable, because the statutory background is undoubtedly the Crown's strongest point. The Crown submitted that the law in this field has been regarded as settled for well over one hundred years, ever since the decision in Reg v. Prince (1875) L.R. 2 C.C.R. 154. That well known case concerned the unlawful abduction of a girl under the age of sixteen. The defendant honestly believed she was over sixteen, and he had reasonable grounds for believing this. No fewer than fifteen judges held that this provided no defence. Subsequently, in R. v. Maughan (1934) 24 Cr.App.R. 130 the Court of Criminal Appeal (Lord Hewart C.J., Avory and Roche JJ.) held that a reasonable and honest belief that a girl was over sixteen could never be a defence to a charge of indecent assault. The court held that this point had been decided in Rex v. Forde (1923) 17 Cr.App.R. 99. The court also observed that in any event the answer was to be found in Prince's case. Building on this foundation Mr. Scrivener Q.C. submitted that the Sexual Offences Act 1956 was not intended to change this established law, and that section 1 of the Indecency with Children Act 1960 was to be read with the 1956 Act. The preamble to the 1960 Act stated that its purpose was to make 'further' provision for the punishment of indecent conduct towards young people. In this field, where Parliament intended belief as to age to be a defence, this was stated expressly: see, for instance, the 'young man's defence' in section 6(3) of the 1956 Act.
This is a formidable argument, but I cannot accept it. I leave on one side Mr. O'Connor Q.C.'s sustained criticisms of the reasoning in Prince's case and Maughan's case. Where the Crown's argument breaks down is that the motley collection of offences, of diverse origins, gathered into the Sexual Offences Act 1956 displays no satisfactorily clear or coherent pattern. If the interpretation of section 1 of the Act of 1960 is to be gleaned from the contents of another statute, that other statute must give compelling guidance. The Act of 1956 as a whole falls short of this standard. So do the two sections, sections 14 and 15, which were the genesis of section 1 of the Act of 1960.
Accordingly, I cannot find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. In my view the necessary mental element regarding the age ingredient in section 1 of the Act of 1960 is the absence of a genuine belief by the accused that the victim was fourteen years of age or above. The burden of proof of this rests upon the prosecution in the usual way. If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms. I would allow this appeal.
I add a final observation. As just mentioned, in reaching my conclusion I have left on one side the criticisms made of Prince's case and Maughan's case. Those cases concerned different offences and different statutory provisions. The correctness of the decisions in those cases does not call for decision on the present appeal. But, without expressing a view on the correctness of the actual decisions in those cases, I must observe that some of the reasoning in Prince's case is at variance with the common law presumption regarding mens rea as discussed above. To that extent, the reasoning must be regarded as unsound. For instance, Bramwell B. (at p. 174) seems to have regarded the common law presumption as ousted because the act forbidden was 'wrong in itself'. Denman J. (at p. 178) appears to have considered it was 'reasonably clear' that the Act of 1861 was an Act of strict liability so far as the age element was concerned. On its face this is a lesser standard than necessary implication. And in the majority judgment, Blackburn J. reached his conclusion by inference from the intention Parliament must have had when enacting two other, ineptly drawn, sections of the Act. But clumsy parliamentary drafting is an insecure basis for finding a necessary implication elsewhere, even in the same statute. Prince's case, and later decisions based on it, must now be read in the light of this decision of your Lordships' House on the nature and weight of the common law presumption.
LORD STEYN
My Lords,
The first certified question is whether a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was 14 years or over. In other words, the question of statutory interpretation before the House is whether mens rea is an ingredient of the offence or whether the subsection creates an offence of strict liability.
The charge and proceedings below
On 19 August 1997 a girl aged 13 years was a passenger on a bus in Harrow. The appellant, who was aged 15 years, sat next to her. The appellant asked the girl several times to perform oral sex with him. She repeatedly refused. The appellant was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act 1960. In January 1998 the appellant stood trial at the Harrow Youth Court. Initially, the appellant pleaded not guilty. The primary facts, as well as the fact that the appellant honestly believed that the girl was over 14 years, were admitted. The defence argued that on the admitted facts the appellant was entitled to be acquitted. The prosecution submitted that the offence was one of strict liability. The justices were asked to rule whether the appellant's state of mind could constitute a defence to the charge. They ruled that it could not. As a result of this ruling the appellant changed his plea to guilty. In law his plea of guilty constituted a conviction. The justices imposed a supervision order on the appellant for 18 months.
The justices were asked to state a case, and they did so. The case stated set out the primary facts. The admitted facts did not cover the question whether the appellant had reasonable grounds for his belief. And there was no finding on this point. The case stated raised the question of law of the correct interpretation of section 1(1) of the Act of 1960. The appellant appealed by way of case stated to the Divisional Court. In three separate judgments the Divisional Court (Brooke L.J., Tucker and Rougier J.J.) affirmed the ruling of the justices and dismissed the appeal; R. v. B (A Minor) v. Director of Public Prosecutions [1999] 3 W.L.R. 116.
The genesis of section 1(1) of the Act of 1960
Before the enactment of the Act of 1960 there was already in existence a relatively comprehensive statute, the Sexual Offences Act 1956, which served to protect young children against sexual exploitation. In particular the Act of 1956 contained provisions making it an offence to commit an indecent assault on a man or a woman: sections 14 and 15. The statute provided that girls and boys under 16 cannot in law give consent which would prevent the act being an assault. These provisions were effective so far as they went but decided cases revealed a gap in the protective net of the Act of 1956: Fairclough v. Whipp [1951] 2 All E.R. 834 and Director of Public Prosecutions v. Rogers [1953] 1 W.L.R. 1017. The statute made no provision for cases where an adult invited a child to touch or handle him indecently: in such cases there was sometimes no ingredient of assault which could trigger the indecent assault provisions of the Act of 1956, namely sections 14 and 15. In 1959 the Home Secretary invited the Criminal Law Revision Committee to consider the point and to make recommendations for an amendment of the law. The Committee produced a clear and succinct report dated 18 June 1959: Cmnd 835. The Committee cautioned itself against recommending too broad a provision: instead it concentrated on the gap in the Act of 1956. It considered the appropriate age limit. The Committee recommended the creation of an entirely new offence in respect of acts of gross indecency towards children under the age of 14. The Committee annexed a Draft Bill to its Report. Clause 1(1) of the Bill was in due course enacted as section 1(1) of the Act of 1960. There is no discussion in the Report of the question whether the proposed new offence would be one of strict liability or not.
Section 1(1)
The long title of the Act of 1960 describes it as an Act "to make further provision for the punishment of indecent conduct towards young children." Section 1(1) provides as follows:
"Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding the prescribed sum, or to both."
Section 1(1) creates an age-based offence. It is of the essence of the offence that the child is under the age of 14 years. The offence is an exception to the general law which does not make it an offence to commit or to incite another to commit an act of indecency or gross indecency. The only criminalisation of acts of gross indecency in the Act of 1956 is to be found in section 13 which makes acts of indecency between men an offence. This is, however, not an age-based offence. It is common ground that this link between the two Acts is neutral and throws no light on the problem before the House.
The Act of 1956
In the Divisional Court Rougier J. described the Act of 1960 as an appendix to the Act of 1956 and I would adopt this description. At the hearing of the appeal to the House counsel for the appellant demonstrated how the Act of 1956 consists of a collection of disparate offences deriving from diverse earlier enactments. Leaving to one side procedural provisions in the Act of 1956 regarding the powers and procedure for dealing with offences and powers of arrest and search, and concentrating on the substantive provisions, the immediate precursors of the present day offences is to be found in legislation dating from 1861, 1885, 1889, 1912, 1913, 1922, 1929 and 1933. And the precursors of some of the sexual offences in the Act of 1861 go back to medieval times. The Crown accepts that it would be wrong to describe the Act of 1956 as the product of a legislative initiative designed to devise a more rational system. It would be more accurate to describe it as the bringing together in one statute of a range of offences pragmatically created at different times in response, no doubt, to the perceived demands of public interest at the time. But, as counsel for the Crown pointed out, there is nevertheless a strong theme running through the various provisions of the Act of 1956, namely the protection of young children from sexual depredations.
For present purposes it is unnecessary to review all the detailed substantive provisions of the Act of 1956. But three matters need to be mentioned. First, sections 5 and 6 create a "pair" of offences, namely offences of having sexual intercourse with girls under 13 (section 5) and with girls under 16 (section 6). Under section 6(3) there is a so called "young man's defence." That is a defence available to men under the age of 24, who have not previously been charged with a like offence, who act in the belief that the girl is of the age of 16 or over and has reasonable cause for such a view. This defence is not available upon a charge under section 5 which plainly creates an offence of strict liability. Secondly, in the Statement of Facts and Issues and in oral argument counsel described sections 14 and 15 of the Act of 1956 as for present purposes the most relevant comparators in the Act of 1956. They provide as follows:
'14. (1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.'
7.2.6.2.3.9 II.C.i Strict Liability 7.2.6.2.3.9 II.C.i Strict Liability
As we already discovered in the last section in Garnett v. State, some crimes do not require any mens rea. Such “strict liability” crimes can result in punishment for an act alone. While mens rea is typically a crucial part of defining blameworthiness in criminal law, strict liability crimes are often more concerned with regulating behavior than punishing the most blameworthy offenders. The following cases explore this idea. As you read them, consider why a lawmaker might choose to create a strict liability crime, and why a court might allow one. Are certain kinds of crime particularly apt to be strict liability offenses? What effect does removing the mens rea requirement have, and what expectations does it impose upon people?
7.2.6.2.3.9.1 United States v. Balint 7.2.6.2.3.9.1 United States v. Balint
UNITED STATES
v.
BALINT ET AL.
Supreme Court of United States.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
[251] Mr. William C. Herron, with whom Mr. Solicitor General Beck was on the brief, for the United States.
No appearance for defendants in error.
MR. CHIEF JUSTICE TAFT delivered the opinion of the court.
This is a writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785. The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act. The defendants demurrer to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such. The statute does not make such knowledge an element of the offense. The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.
While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did [252] not in terms include it (Reg. v. Sleep, 8 Cox C.C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. Commonwealth v. Mixer, 207 Mass. 141; Commonwealth v. Smith, 166 Mass. 370; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N.Y. 321; State v. Kinkead, 57 Conn. 173; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119; United States v. Leathers, 6 Sawy. 17; United States v. Thomson, 12 Fed. 245; United States v. Mayfield, 177 Fed. 765; United States v. 36 Bottles of Gin, 210 Fed. 271; Feeley v. United States, 236 Fed. 903; Voves v. United States, 249 Fed. 191. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A.C. 317. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the [253] policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483.
The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. United States v. Doremus, 249 U.S. 86, 94; United States v. Jin Fuey Moy, 241 U.S. 394, 402.
Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin.[1] It is very evident from a reading of [254] it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion. We think the demurrer to the indictment should have been overruled.
Judgment reversed.
MR. JUSTICE CLARKE took no part in this decision.
[1] Part of § 2 of an act entitled An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes, approved December 17, 1914, 38 Stat. 785, 786:
Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.
7.2.6.2.3.9.2 United States v. Dotterweich 7.2.6.2.3.9.2 United States v. Dotterweich
UNITED STATES
v.
DOTTERWEICH.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
Solicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States.
[278] Mr. Samuel M. Fleischman, with whom Mr. Robert J. Whissel was on the brief, for respondent.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U.S.C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U.S.C. § 331), paragraph (a) of which prohibits "The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded." "Any person" violating this provision is, by paragraph (a) of § 303 (21 U.S.C. § 333), made "guilty of a misdemeanor." Three counts went to the jury — two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug. The jury disagreed as to the corporation and found Dotterweich guilty on all three counts. We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F.2d 500, 502.
Two other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path for the main question before us. He invoked § 305 of the Act requiring the Administrator, before reporting a violation for prosecution by a [279] United States attorney, to give the suspect an "opportunity to present his views." We agree with the Circuit Court of Appeals that the giving of such an opportunity, which was not accorded to Dotterweich, is not a prerequisite to prosecution. This Court so held in United States v. Morgan, 222 U.S. 274, in construing the Food and Drugs Act of 1906, 34 Stat. 768, and the legislative history to which the court below called attention abundantly proves that Congress, in the changed phraseology of 1938, did not intend to introduce a change of substance. 83 Cong. Rec. 7792-94. Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390.
And so we are brought to our real problem. The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the "person" subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich. On that issue, after rehearing, it remanded the cause for a new trial. We then brought the case here, on the Government's petition for certiorari, 318 U.S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act.
The court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c). That section affords immunity from prosecution if certain conditions are satisfied. The condition relevant to this case is a guaranty from the seller of the innocence of [280] his product. So far as here relevant, the provision for an immunizing guaranty is as follows:
"No person shall be subject to the penalties of subsection (a) of this section . . . (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . ."
The Circuit Court of Appeals found it "difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one." 131 F.2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty.
The guaranty clause cannot be read in isolation. The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. See Hipolite Egg Co. v. United States, 220 U.S. 45, 57, and McDermott v. Wisconsin, 228 U.S. 115, 128. The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means [281] of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250. And so it is clear that shipments like those now in issue are "punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all. It was natural enough to throw this risk on shippers with regard to the identity of their wares . . ." United States v. Johnson, 221 U.S. 488, 497-98.
The statute makes "any person" who violates § 301 (a) guilty of a "misdemeanor." It specifically defines "person" to include "corporation." § 201 (e). But the only way in which a corporation can act is through the individuals who act on its behalf. New York Central & H.R.R. Co. v. United States, 212 U.S. 481. And the historic conception of a "misdemeanor" makes all those responsible for it equally guilty, United States v. Mills, 7 Pet. 138, 141, a doctrine given general application in § 332 of the Penal Code (18 U.S.C. § 550). If, then, Dotterweich is not subject to the Act, it must be solely on the ground that individuals are immune when the "person" who violates § 301 (a) is a corporation, although from the point of view of action the individuals are the corporation. As a matter of legal development, it has taken time to establish criminal liability also for a corporation and not merely for its agents. See New York Central & H.R.R. Co. v. United States, supra. The history of federal food and drug legislation is a good illustration of the elaborate phrasing that was in earlier days deemed necessary to fasten criminal liability on corporations. Section 12 of the Food and Drugs Act of 1906 provided that, "the act, omission, or failure of any officer, agent, or other person [282] acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person." By 1938, legal understanding and practice had rendered such statement of the obvious superfluous. Deletion of words — in the interest of brevity and good draftsmanship[1] — superfluous for holding a corporation criminally liable can hardly be found ground for relieving from such liability the individual agents of the corporation. To hold that the Act of 1938 freed all individuals, except when proprietors, from the culpability under which the earlier legislation had placed them is to defeat the very object of the new Act. Nothing is clearer than that the later legislation was designed to enlarge and stiffen the penal net and not to narrow and loosen it. This purpose was unequivocally avowed by the two committees which reported the bills to the Congress. The House Committee reported that the Act "seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30, 1906." (H. Rep. No. 2139, 75th Cong., 3d Sess., p. 1.) And the Senate Committee explicitly pointed out that the new legislation "must not weaken the existing laws," but on the contrary "it must strengthen and extend that law's protection of the consumer." (S. Rep. No. 152, 75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it was below, the penalties of the law could be imposed only in the rare case where the corporation is merely an individual's alter ego. Corporations carrying on an illicit trade would be subject only to what the House Committee described as a "license fee [283] for the conduct of an illegitimate business."[2] A corporate officer, who even with "intent to defraud or mislead" (§ 303b), introduced adulterated or misbranded drugs into interstate commerce could not be held culpable for conduct which was indubitably outlawed by the 1906 Act. See, e.g., United States v. Mayfield, 177 F. 765. This argument proves too much. It is not credible that Congress should by implication have exonerated what is probably a preponderant number of persons involved in acts of disobedience — for the number of non-corporate proprietors is relatively small. Congress, of course, could reverse the process and hold only the corporation and allow its agents to escape. In very exceptional circumstances it may have required this result. See Sherman v. United States, 282 U.S. 25. But the history of the present Act, its purposes, its terms, and extended practical construction lead away from such a result once "we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule." United States v. Union Supply Co., 215 U.S. 50, 55.
The Act is concerned not with the proprietory relation to a misbranded or an adulterated drug but with its distribution. In the case of a corporation such distribution must be accomplished, and may be furthered, by persons standing in various relations to the incorporeal proprietor. If a guaranty immunizes shipments of course it immunizes all involved in the shipment. But simply because if there had been a guaranty it would have been received by the proprietor, whether corporate or individual, as a safeguard for the enterprise, the want of a guaranty [284] does not cut down the scope of responsibility of all who are concerned with transactions forbidden by § 301. To be sure, that casts the risk that there is no guaranty upon all who according to settled doctrines of criminal law are responsible for the commission of a misdemeanor. To read the guaranty section, as did the court below, so as to restrict liability for penalties to the only person who normally would receive a guaranty — the proprietor — disregards the admonition that "the meaning of a sentence is to be felt rather than to be proved." United States v. Johnson, 221 U.S. 488, 496. It also reads an exception to an important provision safeguarding the public welfare with a liberality which more appropriately belongs to enforcement of the central purpose of the Act.
The Circuit Court of Appeals was evidently tempted to make such a devitalizing use of the guaranty provision through fear that an enforcement of § 301 (a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment. But that is not the way to read legislation. Literalism and evisceration are equally to be avoided. To speak with technical accuracy, under § 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance. The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. [285] Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.
It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility. In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on "conscience and circumspection in prosecuting officers," Nash v. United States, 229 U.S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us. See United States v. Balint, supra (involving a maximum sentence of five years). For present purpose it suffices to say that in what the defense characterized as "a very fair charge" the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.
Reversed.
MR. JUSTICE MURPHY, dissenting:
Our prime concern in this case is whether the criminal sanctions of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and unmistakably apply to the respondent in his capacity as a corporate officer. He is charged with violating § 301 (a) of the Act, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug. There is [286] no evidence in this case of any personal guilt on the part of the respondent. There is no proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question, much less that he actively participated in their introduction. Guilt is imputed to the respondent solely on the basis of his authority and responsibility as president and general manager of the corporation.
It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing. It may be proper to charge him with responsibility to the corporation and the stockholders for negligence and mismanagement. But in the absence of clear statutory authorization it is inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and of which he had no personal knowledge. Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called "the tenderness of the law for the rights of individuals"[1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not "plainly and unmistakably" within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628; United States v. Gradwell, 243 U.S. 476, 485.
Moreover, the fact that individual liability of corporate officers may be consistent with the policy and purpose of a public health and welfare measure does not authorize this Court to impose such liability where Congress has not [287] clearly intended or actually done so. Congress alone has the power to define a crime and to specify the offenders. United States v. Wiltberger, 5 Wheat. 76, 95. It is not our function to supply any deficiencies in these respects, no matter how grave the consequences. Statutory policy and purpose are not constitutional substitutes for the requirement that the legislature specify with reasonable certainty those individuals it desires to place under the interdict of the Act. United States v. Harris, 177 U.S. 305; Sarlls v. United States, 152 U.S. 570.
Looking at the language actually used in this statute, we find a complete absence of any reference to corporate officers. There is merely a provision in § 303 (a) to the effect that "any person" inadvertently violating § 301 (a) shall be guilty of a misdemeanor. Section 201 (e) further defines "person" as including an "individual, partnership, corporation, and association."[2] The fact that a corporate officer is both a "person" and an "individual" is not indicative of an intent to place vicarious liability on the officer. Such words must be read in light of their statutory environment.[3] Only if Congress has otherwise specified an [288] intent to place corporate officers within the ambit of the Act can they be said to be embraced within the meaning of the words "person" or "individual" as here used.
Nor does the clear imposition of liability on corporations reveal the necessary intent to place criminal sanctions on their officers. A corporation is not the necessary and inevitable equivalent of its officers for all purposes.[4] In many respects it is desirable to distinguish the latter from the corporate entity and to impose liability only on the corporation. In this respect it is significant that this Court has never held the imposition of liability on a corporation sufficient, without more, to extend liability to its officers who have no consciousness of wrongdoing.[5] Indeed, in a closely analogous situation, we have held that the vicarious personal liability of receivers in actual charge and control of a corporation could not be predicated on the statutory liability of a "company," even when the policy and purpose of the enactment were consistent with personal liability. United States v. Harris, supra.[6] It follows [289] that express statutory provisions are necessary to satisfy the requirement that officers as individuals be given clear and unmistakable warning as to their vicarious personal liability. This Act gives no such warning.
This fatal hiatus in the Act is further emphasized by the ability of Congress, demonstrated on many occasions, to apply statutes in no uncertain terms to corporate officers as distinct from corporations.[7] The failure to mention officers specifically is thus some indication of a desire to exempt them from liability. In fact the history [290] of federal food and drug legislation is itself illustrative of this capacity for specification and lends strong support to the conclusion that Congress did not intend to impose liability on corporate officers in this particular Act.
Section 2 of the Federal Food and Drugs Act of 1906, as introduced and passed in the Senate, contained a provision to the effect that any violation of the Act by a corporation should be deemed to be the act of the officer responsible therefor and that such officer might be punished as though it were his personal act.[8] This clear imposition of criminal responsibility on corporate officers, however, was not carried over into the statute as finally enacted. In its place appeared merely the provision that "when construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation . . . within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation . . . as well as that of the person."[9] This provision had the effect only of making corporations [291] responsible for the illegal acts of their officers and proved unnecessary in view of the clarity of the law to that effect. New York Central & H.R.R. Co. v. United States, 212 U.S. 481.
The framers of the 1938 Act were aware that the 1906 Act was deficient in that it failed "to place responsibility properly upon corporate officers."[10] In order "to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers,"[11] these framers inserted a clear provision that "whenever a corporation or association violates any of the provisions of this Act, such violation shall also be deemed to be a violation of the individual directors, officers, or agents of such corporation or association who authorized, ordered, or did any of the acts constituting, in whole or in part, such violation."[12] This paragraph, however, was deleted from the final version of the Act.
[292] We cannot presume that this omission was inadvertent on the part of Congress. United States v. Harris, supra at 309. Even if it were, courts have no power to remedy so serious a defect, no matter how probable it otherwise may appear that Congress intended to include officers; "probability is not a guide which a court, in construing a penal statute, can safely take." United States v. Wiltberger, supra at 105. But the framers of the 1938 Act had an intelligent comprehension of the inadequacies of the 1906 Act and of the unsettled state of the law. They recognized the necessity of inserting clear and unmistakable language in order to impose liability on corporate officers. It is thus unreasonable to assume that the omission of such language was due to a belief that the Act as it now stands was sufficient to impose liability on corporate officers. Such deliberate deletion is consistent only with an intent to allow such officers to remain free from criminal liability. Thus to apply the sanctions of this Act to the respondent would be contrary to the intent of Congress as expressed in the statutory language and in the legislative history.
The dangers inherent in any attempt to create liability without express Congressional intention or authorization are illustrated by this case. Without any legislative guides, we are confronted with the problem of determining precisely which officers, employees and agents of a corporation are to be subject to this Act by our fiat. To erect standards of responsibility is a difficult legislative task and the opinion of this Court admits that it is "too treacherous" and a "mischievous futility" for us to engage in such pursuits. But the only alternative is a blind resort to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries." Yet that situation is precisely what our constitutional system sought to avoid. Reliance on the legislature to define crimes and criminals distinguishes our form of jurisprudence [293] from certain less desirable ones. The legislative power to restrain the liberty and to imperil the good reputation of citizens must not rest upon the variable attitudes and opinions of those charged with the duties of interpreting and enforcing the mandates of the law. I therefore cannot approve the decision of the Court in this case.
MR. JUSTICE ROBERTS, MR. JUSTICE REED and MR. JUSTICE RUTLEDGE join in this dissent.
[1] "The bill has been made shorter and less verbose than previous bills. That has been done without deleting any effective provisions." S. Rep. No. 152, 75th Cong., 1st Sess., p. 2.
[2] In describing the penalty provisions of § 303, the House Committee reported that the Bill "increases substantially the criminal penalties . . . which some manufacturers have regarded as substantially a license fee for the conduct of an illegitimate business." H. Rep. No. 2139, 75th Cong., 3d Sess., p. 4.
[1] United States v. Wiltberger, 5 Wheat. 76, 95.
[2] The normal and necessary meaning of such a definition of "person" is to distinguish between individual enterprises and those enterprises that are incorporated or operated as a partnership or association, in order to subject them all to the Act. This phrase cannot be considered as an attempt to distinguish between individual officers of a corporation and the corporate entity. Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181, 190.
[3] Compare United States v. Cooper Corp., 312 U.S. 600, 606, and Davis v. Pringle, 268 U.S. 315, 318, holding that the context and legislative history of the particular statutes there involved indicated that the words "any person" did not include the United States. But in Georgia v. Evans, 316 U.S. 159, and Ohio v. Helvering, 292 U.S. 360, these considerations led to the conclusion that "any person" did include a state. See also 40 Stat. 1143, which specifically includes officers within the meaning of "any person" as used in the Revenue Act of 1918.
[4] In Park Bank v. Remsen, 158 U.S. 337, 344, this Court said, "It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation."
[5] For an analysis of the confusion on this matter in the state and lower federal courts, see Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181.
[6] In that case we had before us Rev. Stat. §§ 4386-4389, which penalized "any company, owner or custodian of such animals" who failed to comply with the statutory requirements as to livestock transportation. A railroad company violated the statute and the government sought to impose liability on the receivers who were in actual charge of the company. It was argued that the word "company" embraced the natural persons acting on behalf of the company and that to hold such officers and receivers liable was within the policy and purpose of so humane a statute. We rejected this contention in language peculiarly appropriate to this case (177 U.S. at 309):
"It must be admitted that, in order to hold the receivers, they must be regarded as included in the word `company.' Only by a strained and artificial construction, based chiefly upon a consideration of the mischief which the legislature sought to remedy, can receivers be brought within the terms of the law. But can such a kind of construction be resorted to in enforcing a penal statute? Giving all proper force to the contention of the counsel of the Government, that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."
[7] "Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation." 15 U.S.C. § 24.
"The courts of bankruptcy . . . are hereby invested . . . with such jurisdiction at law and in equity as will enable them to . .. (4) arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act." 30 Stat. 545.
"Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the next preceding section of this chapter shall be liable to a penalty . . ." 45 U.S.C. § 63.
"A mortgagor who, with intent to defraud, violates any provision of subsection F, section 924, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor . . ." 46 U.S.C. § 941 (b).
[8] S. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the sponsors of S. 88, stated that this was "a new feature in bills of this kind. It was intended to obviate the possibility of escape by the officers of a corporation under a plea, which has been more than once made, that they did not know that this was being done on the credit of or on the responsibility of the corporation." 40 Cong. Rec. 894.
[9] 34 Stat. 772, 21 U.S.C. § 4.
[10] Senate Report No. 493, 73d Cong., 2d Sess., p. 21.
[11] Ibid., p. 22. This report also stated that "it is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation."
[12] This provision appears in several of the early versions of the Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18 (b); S. 2000, 73d Cong., 2d Sess., § 18 (b); S. 2800, 73d Cong., 2d Sess., § 18 (b); S. 5, 74th Cong., 1st Sess., § 709 (b); S. 5, 74th Cong., 2d Sess., § 707 (b), as reported to the House, which substituted the word "personally" for the word "authorized" in the last clause of the paragraph quoted above. A variation of this provision appeared in S. 5, 75th Cong., 1st Sess., § 2 (f), and made a marked distinction between the use of the word "person" and the words "director, officer, employee, or agent acting for or employed by any person." All of these bills also contained the present definition of "person" as including "individual, partnership, corporation, and association."
7.2.6.2.3.9.3 State v. Phillips 7.2.6.2.3.9.3 State v. Phillips
W.A. PHILLIPS
v.
STATE.
Court of Criminal Appeals of Alabama.
[1062] David C. Johnson, Birmingham, for appellant.
Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
LONG, Presiding Judge.
The appellant, W.A. Phillips, was convicted of hunting over a "baited field," a violation of § 9-11-244, Ala.Code 1975. He was fined $375 and his hunting privileges were revoked for one year.
The state's evidence tended to show the following. On March 30, 1995, Willie Morris, an officer with the Alabama Department of Conservation and Natural Resources, received a telephone call from Don Taylor. Taylor told Morris that he had found wheat in a turkey he had killed at a hunting club located adjacent to Phillips's property. The following day, Officer Morris, accompanied by Taylor, entered a wooded area of Phillips's property, where Officer Morris found a large amount of wheat scattered on the ground. Sprouted wheat, as well as seed wheat, was present, and there were numerous turkey scratchings on the ground. Officer Morris returned to the same part of Phillips's property the next day and found Phillips and Guy Moore hunting turkeys in the area where he had found the wheat the day before. Phillips and Moore were charged with hunting over a baited field.
At trial, Phillips denied placing the wheat on his property or knowing that there was wheat there. He claimed that Taylor had actually placed the wheat on his property in order to "set him up."
Phillips's defense notwithstanding, the trial court held that hunting over a baited field is a "strict liability" offense, and, consequently, in its oral charge to the jury, the trial court gave the following charge, which the state had requested: "I charge you that there need be no showing that the defendant actually baited the field, or that he even knew it was baited." (C. 15.) The trial court refused several jury charges requested by Phillips, including the following: "In order to find Archie Phillips guilty as charged, the state must prove beyond a reasonable doubt that he had knowledge that the land had been baited." (C. 17.)
On appeal, Phillips contends that the trial court erred by treating hunting over a baited field as a strict liability offense and in refusing his requested jury instructions concerning the culpable mental state required for a violation of the statute. He maintains that the state should have been required to show that he knew that the land he was hunting on had been baited, and that it was error for the trial court to refuse to so charge the jury.
Section 9-11-244, Ala.Code 1975, provides:
"No person at any time shall take, catch, kill or attempt to take, catch or kill any bird or animal protected by law or regulation of the state of Alabama by means, aid or use, directly or indirectly, of any bait such as shelled, shucked or unshucked corn or of wheat or other grain, salt or any other feed whatsoever that has been so deposited, placed, distributed or scattered as to constitute for such birds or animals a lure, attraction or enticement to, on or over the area [1063] where such hunter or hunters are attempting to kill or take them; provided, that such birds or animals may be taken under properly shocked corn and standing crops of corn, wheat or other grain or feed and grains scattered solely as a result of normal agricultural harvesting and provided further, migratory birds may be hunted under the most recent provisions established by the U.S. Fish and Wildlife Service or regulations promulgated by the Commissioner of the Department of Conservation and Natural Resources within the limits of the federal regulations."
Although Phillips concedes that § 9-11-244 does not expressly designate a culpable mental state for the offense of hunting over a baited field, he argues that the legislature intended for the offense to require "mental culpability." He points to § 13A-2-4(b), Ala.Code 1975, which states:
"Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."
While § 13A-2-4(b) states a policy of reluctance to impose strict liability in the absence of clear legislative intent, "[i]t is undisputed that the State may enact laws for the public health and safety imposing strict liabilities without any element of scienter." Walker v. State, 356 So.2d 672, 673 (Ala.1977). Although traditionally mental culpability or some degree of blameworthiness has been considered essential to a finding of criminal liability, this view has been modified to recognize that lawmakers may enact provisions in which a person who does a prohibited act does so at his peril and is liable without regard to mental culpability. Commentary to § 13A-2-3, Ala.Code 1975; see United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922).
"Such offenses [in which no proof of mental culpability is required] are characterized as `mala prohibita offenses,' `public welfare offenses,' `absolute liability offenses,' or, as used here, `strict liability' offenses.
"There are various theories for sustaining `strict liability' crimes. Aside from public necessity based on police powers, a number of these offenses are justified on the ground that it would be difficult or impossible of proof and conviction if the prosecution had to adduce an element of `intentional,' `knowingly' and the like. Sometimes the ends accomplished, the evil or harm sought to be regulated or prohibited, are deemed to justify the means.
"As long as the kind and degree of punishment is not disproportionate to the activity or object regulated, strict liability serves a useful, if not necessary, sanction, but such statutory offenses should not be extended to impose harsh criminal sanctions and stigma for nominal crimes which any innocent man might commit."
Commentary to § 13A-2-3 (citations omitted).
The United States Supreme Court has recognized that a different standard applies to offenses that do not originate in the common law (which historically required mens rea), that are essentially regulatory, and that are designed to protect the public welfare. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
"[Public welfare offenses] do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, [1064] but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving."
Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296-97.
In Walker, supra, 356 So.2d 672, the Alabama Supreme Court noted:
"It has become common to impose strict criminal liability in connection with a variety of regulatory statutes for violation of what are commonly called `public welfare offenses.' Perkins, Criminal Law, 2d Ed., Ch. 7, Strict Liability (1969); Hall, General Principles of Criminal Law, 2d Ed., Ch. 10, Strict Liability (1960). The regulatory statutes encompass such fields as:
"`... (1) illegal sales of liquor; (2) sales of impure food or drugs; (3) sales of misbranded articles; (4) criminal nuisance; (5) traffic regulations; (6) motor vehicle laws; and (7) violations of general regulations, passed for the safety, health or well-being of the community.' Perkins, supra, at 802.
"Although it may be difficult to ascertain common features in the public welfare offenses, one author has made the following generalizations:
"`... First, many of the enactments apply not to the general public but only to certain traders, particularly to suppliers of food or drugs and vendors of alcoholic beverages. Others, having more general application as to potential offenders, are restricted to very few activities—the operation of automobiles, safety of highways, hunting, fishing, and various health measures. Next, many of these regulations and the conditions of conforming to them presuppose a continuous activity, such as carrying on a business.... Third, the public welfare enactments are relatively new. They represent relatively recent adaptations to an intricate economy, including an impersonal market.... [F]ourth, the modern regulations are not strongly supported by the mores. Their occurrence does not arouse the resentment directed as the perpetrators of traditional crimes.... The above common attributes of large segments of the minor offenses which are subjected to strict liability indicate that this law was constructed to meet new, important social problems....' Hall, General Principles of Criminal Law, 2d Ed., supra, at 330-331."
356 So.2d at 673. This court has stated:
"`Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed [1065] in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when in terms not required. The Legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and, if such legislative intention appears, the courts must give it effect, although the intent of the doer may have been innocent. This rule has been generally, though not quite universally, applied to the enforcement of statutes passed in aid of the police power of the state where the word "knowingly" or other apt words are not employed to indicate that knowledge is an essential element of the crime charged. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt.' Smith v. State, 223 Ala. 346, 347, 136 So. 270 (1931).
"Generally see, Walker v. State, 356 So.2d 672 (Ala.1977); LaFave and Scott, Handbook on Criminal Law, Section 31 (1972); Perkins, Criminal Law 812-815 (2nd ed.1969); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 84-88 (1933).
"`A statute may simply provide that whoever does (or omits to do) so-and-so, or whoever brings about such-and-such a result, is guilty of a crime, setting forth the punishment.... Often this statutory crime has been created in order to help the prosecution cope with a situation wherein intention, knowledge, recklessness or negligence is hard to prove, making convictions difficult to obtain unless the fault element is omitted.' Lafave at 218."
State v. Spurlock, 393 So.2d 1052, 1057-58 (Ala.Cr.App.1981).
We find that the offense defined in § 9-11-244 meets the requirements for a public welfare, or strict liability, offense. The statute does not designate a culpable mental state for the offense of hunting over a baited field. The clear intent of the statute is to prohibit the taking, catching, or killing of protected birds or animals that are lured to an area by bait, and violating the statute requires no proof of a connection of the offender with the bait. The offense does not have its origins in the common law; it is essentially regulatory; and it is restricted to a particular activity —hunting. The punishment provided for violating the statute is not severe, see § 9-11-246, Ala.Code 1975. If it were not a strict liability offense, the statute would be difficult to enforce.
We note that the language of § 9-11-244 is similar to that of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., the federal anti-baiting statute, which prohibits the hunting of migratory birds on or over any baited area.' See 50 C.F.R. §§ 20.21 et seq. The majority of federal circuit and district courts called upon to interpret the federal statute have held that hunting over a baited field is a strict liability offense. See, e.g., United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United States v. Engler, 806 F.2d 425 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); United States v. Chandler, 753 F.2d 360 (4th Cir.1985); United States v. Catlett, 747 F.2d 1102 (6th Cir.1984), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985); United States v. Van Fossan, 899 F.2d 636 (7th Cir.1990); United States v. Manning, 787 F.2d 431 (8th Cir.1986); and United States v. Wood, 437 F.2d 91 (9th Cir.1971). But see United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988); and United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978).
Phillips cites this court's opinion in Rogers v. State, 491 So.2d 987 (Ala.Cr.App. 1985), as authority for the proposition that hunting over a baited field is not a strict [1066] liability offense. He notes that the statute under consideration in Rogers, § 9-11-235, Ala.Code 1975, prohibits night hunting and is similar in language to § 9-11-244. He maintains that some intent apparently is required to violate the night-hunting statute because this court refers in Rogers to evidence indicative of the defendant's guilty intent. However, this court specifically sets out in Rogers the elements of the offense of night hunting, and knowledge or intent is not included. The statements in Rogers noted by Phillips are dicta and do not establish that a violation of the night-hunting statute requires mental culpability.
Because we conclude that the legislature in enacting § 9-11-244 intended that hunting over a baited field be a strict liability offense, we hold that the trial court did not err in treating the offense accordingly and that the trial court properly refused Phillips's requested jury charges concerning the culpable mental state for the offense. Although we recognize that the statute may place certain subjectively "innocent" hunters in a precarious position, for this court to supply an element of mental culpability to the offense, where there is a clear legislative intent that none be required, would be to engage in judicial legislating. We acknowledge that the statute may effect a harsh result; however, it is for the legislature to establish and change the policy here. The trial court's judgment is affirmed.
AFFIRMED.
McMILLAN, COBB, and BROWN, JJ., concur.
BASCHAB, J. concurs specially with opinion.
BASCHAB, Judge, concurring specially.
Although I agree with the majority opinion, I feel compelled to concur specially to address my concerns about the "hunting-over-a-baited-field" statute. As the majority notes, certain "innocent" hunters may be placed in a precarious position by the statute. Therefore, I encourage the legislature to re-examine the statute carefully and to decide whether it truly intended for hunting over a baited field to be a strict liability offense. If it did not, the legislature should rewrite the statute to include specific language designating the culpable mental state required for the offense.
7.2.6.2.3.9.4 Staples v. United States 7.2.6.2.3.9.4 Staples v. United States
STAPLES
v.
UNITED STATES
United States Supreme Court.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[602] Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Souter, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined, post, p. 620. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 624.
Jennifer L. De Angelis argued the cause for petitioner. With her on the brief was Clark O. Brewster.
[602] James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and John F. De Pue.
Justice Thomas, delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly registered with the Federal Government. Petitioner contends that, to convict him under the Act, the Government should have been required to prove beyond a reasonable doubt that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun. We agree and accordingly reverse the judgment of the Court of Appeals.
I
The National Firearms Act (Act), 26 U. S. C. §§ 5801-5872, imposes strict registration requirements on statutorily defined "firearms." The Act includes within the term "firearm" a machinegun, § 5845(a)(6), and further defines a machinegun as "any weapon which shoots, . . . or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger," § 5845(b). Thus, any fully automatic weapon is a "firearm" within the meaning of the Act.[1] Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. § 5841. Section 5861(d) makes it a crime, punishable [603] by up to 10 years in prison, see § 5871, for any person to possess a firearm that is not properly registered.
Upon executing a search warrant at petitioner's home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR-15 rifle. The AR-15 is the civilian version of the military's M-16 rifle, and is, unless modified, a semiautomatic weapon. The M-16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon. No doubt to inhibit such conversions, the AR-15 is manufactured with a metal stop on its receiver that will prevent an M-16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner's rifle, however, had been filed away, and the rifle had been assembled with an M-16 selector switch and several other M-16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR-15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).
At trial, BATF agents testified that when the AR-15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered as required by § 5861(d). Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR-15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove [604] beyond a reasonable doubt that the defendant "knew that the gun would fire fully automatically." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 42.
The District Court rejected petitioner's proposed instruction and instead charged the jury as follows:
"The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it][2] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation." Tr. 465.
Petitioner was convicted and sentenced to five years' probation and a $5,000 fine.
The Court of Appeals affirmed. Relying on its decision in United States v. Mittleider, 835 F. 2d 769 (CA10 1987), cert. denied, 485 U. S. 980 (1988), the court concluded that the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction under § 5861(d). 971 F. 2d 608, 612-613 (CA10 1992). We granted certiorari, 508 U. S. 939 (1993), to resolve a conflict in the Courts of Appeals concerning the mens rea required under § 5861(d).
II
A
Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a "firearm" under the Act is a question of statutory construction. As we observed in Liparota v. United States, 471 U. S. 419 (1985), "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Id. , at 424 (citing United States v. Hudson, 7 Cranch 32 [605] (1812)). Thus, we have long recognized that determining the mental state required for commission of a federal crime requires "construction of the statute and . . . inference of the intent of Congress." United States v. Balint, 258 U. S. 250, 253 (1922). See also Liparota, supra, at 423.
The language of the statute, the starting place in our inquiry, see Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992), provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that "[i]t shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra, at 251 (stating that traditionally, "scienter " was a necessary element in every crime). See also n. 3, infra. On the contrary, we must construe the statute in light of the background rules of the common law, see United States v. United States Gypsum Co., 438 U. S. 422, 436-437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Id., at 436 (internal quotation marks omitted). See also Morissette v. United States, 342 U. S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil").
There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea [606] has been "followed in regard to statutory crimes even where the statutory definition did not in terms include it." Balint, supra, at 251-252. Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, Liparota, supra, at 426, and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. Cf. United States Gypsum, supra, at 438; Morissette, supra, at 263.
According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government's view, this case fits in a line of precedent concerning what we have termed "public welfare" or "regulatory" offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were "narcotics" within the ambit of the statute. See Balint, supra, at 254. Cf. United States v. Dotterweich, 320 U. S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the items were misbranded or adulterated). As we explained in Dotterweich, Balint dealt with "a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional [607] requirement for criminal conduct—awareness of some wrongdoing." 320 U. S., at 280-281. See also Morissette, supra, at 252-256.
Such public welfare offenses have been created by Congress, and recognized by this Court, in "limited circumstances." United States Gypsum, supra, at 437. Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. Cf. United States v. International Minerals & Chemical Corp., 402 U. S. 558, 564-565 (1971) (characterizing Balint and similar cases as involving statutes regulating "dangerous or deleterious devices or products or obnoxious waste materials"). In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him "in responsible relation to a public danger," Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to "ascertain at his peril whether [his conduct] comes within the inhibition of the statute." Balint, supra, at 254. Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements. See generally Morissette, supra, at 252-260.[3] [608]
B
The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint . In this view, all guns, whether or not they are statutory "firearms," are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court's instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a "firearm" in the ordinary sense of the term.
The Government seeks support for its position from our decision in United States v. Freed, 401 U. S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d).[4] The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. Id., at 609. To be sure, in deciding that mens rea was not required with respect to that element of the offense, we suggested [609] that the Act "is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Ibid. Grenades, we explained, "are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint. " Ibid. But that reasoning provides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a "firearm" for purposes of the Act, but who knows only that he has a "firearm" in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory "firearm"; different elements of the same offense can require different mental states. See Liparota, 471 U. S., at 423, n. 5; United States v. Bailey, 444 U. S. 394, 405-406 (1980). See also W. LaFave & A. Scott, Handbook on Criminal Law 194-195 (1972). Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades—that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a "firearm"), possession of which was not entirely "innocent" in and of itself. 401 U. S., at 609. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.
Notwithstanding these distinctions, the Government urges that Freed `s logic applies because guns, no less than grenades, [610] are highly dangerous devices that should alert their owners to the probability of regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would "criminalize a broad range of apparently innocent conduct." Liparota, 471 U. S., at 426. In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Ibid. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a "food stamp can hardly be compared to a hand grenade." Id., at 433.
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. See also International Minerals, 402 U. S., at 563-565; Balint, 258 U. S., at 254. In fact, in Freed we construed § 5861(d) under the assumption that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Freed, supra, at 609. Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that "one would hardly be surprised to learn that owning a gun is not an innocent act." That proposition is simply not supported by common experience. Guns in general are not "deleterious devices or products or obnoxious waste materials," International Minerals, [611] supra, at 565, that put their owners on notice that they stand "in responsible relation to a public danger," Dotterweich, 320 U. S., at 281.
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices.[5] Under this view, it seems that Liparota `s concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous—that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is "dangerous," in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to [612] regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon's characteristics.[6]
[613] On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements.[7] But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of [614] American homes contain at least one firearm of some sort,[8] and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.[9]
If we were to accept as a general rule the Government's suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed "dangerous" devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle's emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their [615] possession—makes their actions entirely innocent.[10] The Government does not dispute the contention that virtually any semiautomatic weapon may be converted, either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the meaning of the Act. Cf. United States v. Anderson, 885 F. 2d 1248, 1251, 1253— 1254 (CA5 1989) (en banc). Such a gun may give no externally visible indication that it is fully automatic. See United States v. Herbert, 698 F. 2d 981, 986 (CA9), cert. denied, 464 U. S. 821 (1983). But in the Government's view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun's firing capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit's conclusion on this point: "It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible tenyear term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon." Anderson, supra, at 1254. As we noted in Morissette, the "purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction." 342 U. S., at 263.[11] We are reluctant to impute that purpose to [616] Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).
C
The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years' imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. See, e. g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six months in jail, or both); Commonwealth v. Farren, 91 Mass. 489 (1864) (fine); People v. Snowburger, 113 Mich. 86, 71 N. W. 497 (1897) (fine of up to $500 or incarceration in county jail).[12]
As commentators have pointed out, the small penalties attached to such offenses logically complemented the absence of a mens rea requirement: In a system that generally requires [617] a "vicious will" to establish a crime, 4 W. Blackstone, Commentaries *21, imposing severe punishments for offenses that require no mens rea would seem incongruous. See Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 70 (1933). Indeed, some courts justified the absence of mens rea in part on the basis that the offenses did not bear the same punishments as "infamous crimes," Tenement House Dept. v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915) (Cardozo, J.), and questioned whether imprisonment was compatible with the reduced culpability required for such regulatory offenses. See, e. g., People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918) (Cardozo, J.); id., at 35, 121 N. E., at 478 (Crane, J., concurring) (arguing that imprisonment for a crime that requires no mens rea would stretch the law regarding acts mala prohibita beyond its limitations).[13] Similarly, commentators collecting the early cases have argued that offenses punishable by imprisonment cannot be understood to be public welfare offenses, but must require mens rea . See R. Perkins, Criminal Law 793-798 (2d ed. 1969) (suggesting that the penalty should be the starting point in determining whether a statute describes a public welfare offense); Sayre, supra, at 72 ("Crimes punishable with prison sentences . . . ordinarily require proof of a guilty intent").[14]
In rehearsing the characteristics of the public welfare offense, we, too, have included in our consideration the punishments imposed and have noted that "penalties commonly are relatively small, and conviction does no grave damage to an [618] offender's reputation." Morissette, 342 U. S., at 256.[15] We have even recognized that it was "[u]nder such considerations" that courts have construed statutes to dispense with mens rea. Ibid.
Our characterization of the public welfare offense in Morissette hardly seems apt, however, for a crime that is a felony, as is violation of § 5861(d).[16] After all, "felony" is, as we noted in distinguishing certain common-law crimes from public welfare offenses, "`as bad a word as you can give to man or thing.' " Id., at 260 (quoting 2 F. Pollock & F. Maitland, History of English Law 465 (2d ed. 1899)). Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea. But see United States v. Balint, 258 U. S. 250 (1922).
We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. [619] In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.
III
In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act.[17]
We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items. In addition, we think that the penalty attached to § 5861(d) suggests that Congress did not intend to eliminate a mens rea requirement for violation of the section. As we noted in Morissette: "Neither this Court nor, [620] so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not." 342 U. S., at 260. We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect. Cf. United States v. Harris, 959 F. 2d 246, 261 (CADC), cert. denied, 506 U. S. 932 (1992).
For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered. Justice Ginsburg, with whom Justice O'Connor joins, concurring in the judgment.
The statute petitioner Harold E. Staples is charged with violating, 26 U. S. C. § 5861(d), makes it a crime for any person to "receive or possess a firearm which is not registered to him." Although the word "knowingly" does not appear in the statute's text, courts generally assume that Congress, absent a contrary indication, means to retain a mens rea requirement. Ante, at 606; see Liparota v. United States, 471 U. S. 419, 426 (1985); United States v. United States Gypsum Co., 438 U. S. 422, 437-438 (1978).[1] Thus, our holding in United States v. Freed, 401 U. S. 601 (1971), that § 5861(d) does not require proof of knowledge that the firearm is unregistered, rested on the premise that the defendant indeed [621] knew the items he possessed were hand grenades. Id. , at 607; id. , at 612 (Brennan, J., concurring in judgment) ("The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades.").
Conviction under § 5861(d), the Government accordingly concedes, requires proof that Staples "knowingly" possessed the machinegun. Brief for United States 23. The question before us is not whether knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun.[2]
Recognizing that the first reading effectively dispenses with mens rea, the Government adopts the second, contending that it avoids criminalizing "apparently innocent conduct," Liparota, supra, at 426, because under the second reading, "a defendant who possessed what he thought was a toy or a violin case, but which in fact was a machinegun, could not be convicted." Brief for United States 23. The Government, however, does not take adequate account of the "widespread lawful gun ownership" Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert. denied, 506 U. S. 932 (1992). Given the notable lack of comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons]—often [difficult to distinguish] [622] from other, [nonregulated] types," has been held inadequate to establish the requisite knowledge. See 959 F. 2d, at 261.
The Nation's legislators chose to place under a registration requirement only a very limited class of firearms, those they considered especially dangerous. The generally "dangerous" character of all guns, the Court therefore observes, ante, at 611-612, did not suffice to give individuals in Staples' situation cause to inquire about the need for registration. Cf. United States v. Balint, 258 U. S. 250 (1922) (requiring reporting of sale of strictly regulated narcotics, opium and cocaine). Only the third reading, then, suits the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity.[3]
The indictment in Staples' case charges that he "knowingly received and possessed firearms." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 1.[4] "Firearms" has a [623] circumscribed statutory definition. See 26 U. S. C. § 5845(a). The "firear[m]" the Government contends Staples possessed in violation of § 5861(d) is a machinegun. See § 5845(a)(6). The indictment thus effectively charged that Staples knowingly possessed a machinegun. "Knowingly possessed" logically means "possessed and knew that he possessed." The Government can reconcile the jury instruction[5] with the indictment only on the implausible assumption that the term "firear[m]" has two different meanings when used once in the same charge—simply "gun" when referring to what petitioner knew, and "machinegun" when referring to what he possessed. See Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561, 1576-1577 (1994); cf. Ratzlaf v. United States, 510 U. S. 135, 143 (1994) (construing statutory term to bear same meaning "each time it is called into play").
For these reasons, I conclude that conviction under § 5861(d) requires proof that the defendant knew he possessed not simply a gun, but a machinegun. The indictment in this case, but not the jury instruction, properly described this knowledge requirement. I therefore concur in the Court's judgment.
[624] Justice Stevens, with whom Justice Blackmun joins, dissenting.
To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it enacted the National Firearms Act (or Act). Because the Court's addition to the text of 26 U. S. C. § 5861(d) is foreclosed by both the statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that "generally can be owned in perfect innocence." Ante, at 611. This case, however, involves a semiautomatic weapon that was readily convertible into a machinegun—a weapon that the jury found to be "`a dangerous device of a type as would alert one to the likelihood of regulation.' " Ante, at 604. These are not guns "of some sort" that can be found in almost "50 percent of American homes." Ante, at 613-614.[1] They are particularly dangerous—indeed, a substantial percentage of the unregistered machineguns now in circulation are converted semiautomatic weapons.[2]
The question presented is whether the National Firearms Act imposed on the Government the burden of proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device sufficient to alert him to [625] regulation, but also that he knew it had all the characteristics of a "firearm" as defined in the statute. Three unambiguous guide posts direct us to the correct answer to that question: the text and structure of the Act, our cases construing both this Act and similar regulatory legislation, and the Act's history and interpretation.
I
Contrary to the assertion by the Court, the text of the statute does provide "explicit guidance in this case." Cf. ante, at 605. The relevant section of the Act makes it "unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Significantly, the section contains no knowledge requirement, nor does it describe a common-law crime.
The common law generally did not condemn acts as criminal unless the actor had "an evil purpose or mental culpability," Morissette v. United States, 342 U. S. 246, 252 (1952), and was aware of all the facts that made the conduct unlawful, United States v. Balint, 258 U. S. 250, 251-252 (1922). In interpreting statutes that codified traditional common-law offenses, courts usually followed this rule, even when the text of the statute contained no such requirement. Ibid. Because the offense involved in this case is entirely a creature of statute, however, "the background rules of the common law," cf. ante, at 605, do not require a particular construction, and critically different rules of construction apply. See Morissette v. United States, 342 U. S., at 252-260.
In Morissette, Justice Jackson outlined one such interpretive rule:
"Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already . . . well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense [626] new to general law, for whose definition the courts have no guidance except the Act." Id., at 262. Although the lack of an express knowledge requirement in § 5861(d) is not dispositive, see United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978), its absence suggests that Congress did not intend to require proof that the defendant knew all of the facts that made his conduct illegal.[3]
The provision's place in the overall statutory scheme, see Crandon v. United States, 494 U. S. 152, 158 (1990), confirms this intention. In 1934, when Congress originally enacted the statute, it limited the coverage of the 1934 Act to a relatively narrow category of weapons such as submachine-guns and sawed-off shotguns—weapons characteristically used only by professional gangsters like Al Capone, Pretty Boy Floyd, and their henchmen.[4] At the time, the Act would have had little application to guns used by hunters or guns kept at home as protection against unwelcome intruders.[5] [627] Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes. The statute as a whole, and particularly the decision to criminalize mere possession, reflected a legislative judgment that the likelihood of innocent possession of such an unregistered weapon was remote, and far less significant than the interest in depriving gangsters of their use.
In addition, at the time of enactment, this Court had already construed comparable provisions of the Harrison Anti-Narcotic Act not to require proof of knowledge of all the facts that constitute the proscribed offense. United States v. Balint, 258 U. S. 250 (1922).[6] Indeed, Attorney General Cummings expressly advised Congress that the text of the gun control legislation deliberately followed the language of the Anti-Narcotic Act to reap the benefit of cases construing it.[7] Given the reasoning of Balint, we properly may infer that Congress did not intend the Court to read a stricter knowledge requirement into the gun control legislation than we read into the Anti-Narcotic Act. Cannon v. University of Chicago, 441 U. S. 677, 698-699 (1979).
Like the 1934 Act, the current National Firearms Act is primarily a regulatory measure. The statute establishes [628] taxation, registration, reporting, and record keeping requirements for businesses and transactions involving statutorily defined firearms, and requires that each firearm be identified by a serial number. 26 U. S. C. §§ 5801-5802, 5811-5812, 5821-5822, 5842-5843. The Secretary of the Treasury must maintain a central registry that includes the names and addresses of persons in possession of all firearms not controlled by the Government. § 5841. Congress also prohibited certain acts and omissions, including the possession of an unregistered firearm.[8] § 5861.
As the Court acknowledges, ante, at 607, to interpret statutory offenses such as § 5861(d), we look to "the nature of the statute and the particular character of the items regulated" to determine the level of knowledge required for conviction. An examination of § 5861(d) in light of our precedent dictates that the crime of possession of an unregistered machinegun is in a category of offenses described as "public welfare" crimes.[9] Our decisions interpreting such offenses clearly require affirmance of petitioner's conviction.
II
"Public welfare" offenses share certain characteristics: (1) they regulate "dangerous or deleterious devices or products [629] or obnoxious waste materials," see United States v. International Minerals & Chemical Corp., 402 U. S. 558, 565 (1971); (2) they "heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare," Morissette, 342 U. S., at 254; and (3) they "depend on no mental element but consist only of forbidden acts or omissions," id., at 252-253. Examples of such offenses include Congress' exertion of its power to keep dangerous narcotics,[10] hazardous substances,[11] and impure and adulterated foods and drugs[12] out of the channels of commerce.[13]
Public welfare statutes render criminal "a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Liparota v. United States, 471 U. S. 419, 433 (1985). Thus, under such statutes, "a defendant can be convicted even though he was unaware of the circumstances of his conduct that made it illegal." Id., at 443, n. 7 (White, J., dissenting). Referring to the strict criminal sanctions for unintended violations of the food and drug laws, Justice Frankfurter wrote:
"The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse [630] construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. The prosecution . . . is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." United States v. Dotterweich, 320 U. S. 277, 280-281 (1943) (citing United States v. Balint, 258 U. S. 250 (1922); other citations omitted).
The National Firearms Act unquestionably is a public welfare statute. United States v. Freed, 401 U. S. 601, 609 (1971) (holding that this statute "is a regulatory measure in the interest of the public safety"). Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry. To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of some of these offenses—including the one at issue here— contains no knowledge requirement.
The Court recognizes:
"[W]e have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him `in responsible relation to a public danger,' Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to `ascertain at his peril whether [his conduct] comes within the inhibition of the statute.' Balint, 258 U. S., at 254." Ante, at 607. [631] We thus have read a knowledge requirement into public welfare crimes, but not a requirement that the defendant know all the facts that make his conduct illegal. Although the Court acknowledges this standard, it nevertheless concludes that a gun is not the type of dangerous device that would alert one to the possibility of regulation.
Both the Court and Justice Ginsburg erroneously rely upon the "tradition[al]" innocence of gun ownership to find that Congress must have intended the Government to prove knowledge of all the characteristics that make a weapon a statutory "firear[m]." Ante, at 610-612; ante, at 621-622 (Ginsburg, J., concurring in judgment). We held in Freed, however, that a § 5861(d) offense may be committed by one with no awareness of either wrongdoing or of all the facts that constitute the offense.[14] 401 U. S., at 607-610. Nevertheless, the Court, asserting that the Government "gloss[es] over the distinction between grenades and guns," determines that "the gap between Freed and this case is too wide to bridge." Ante, at 610. As such, the Court instead reaches the rather surprising conclusion that guns are more analogous to food stamps than to hand grenades.[15] Even if [632] one accepts that dubious proposition, the Court founds it upon a faulty premise: its mischaracterization of the Government's submission as one contending that "all guns . . . are dangerous devices that put gun owners on notice . . . ." Ante, at 608 (emphasis added).[16] Accurately identified, the Government's position presents the question whether guns such as the one possessed by petitioner "`are highly dangerous offensive weapons, no less dangerous than the narcotics' " in Balint or the hand grenades in Freed, see ante, at 609 (quoting Freed, 401 U. S., at 609).[17]
[633] Thus, even assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun. The "`character and nature' " of such a weapon is sufficiently hazardous to place the possessor on notice of the possibility of regulation. See Posters `N' Things, Ltd. v. United States, ante, at 525 (citation omitted).[18] No significant difference exists between [634] imposing upon the possessor a duty to determine whether such a weapon is registered, Freed, 401 U. S., at 607-610, and imposing a duty to determine whether that weapon has been converted into a machinegun.
Cases arise, of course, in which a defendant would not know that a device was dangerous unless he knew that it was a "firearm" as defined in the Act. Freed was such a case; unless the defendant knew that the device in question was a hand grenade, he would not necessarily have known that it was dangerous. But given the text and nature of the statute, it would be utterly implausible to suggest that Congress intended the owner of a sawed-off shotgun to be criminally liable if he knew its barrel was 17.5 inches long but not if he mistakenly believed the same gun had an 18inch barrel. Yet the Court's holding today assumes that Congress intended that bizarre result.
The enforcement of public welfare offenses always entails some possibility of injustice. Congress nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it reasonable to presume that he either knows, or should know, whether those products conform to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to justify strict enforcement against those who are merely guilty of negligent, rather than willful, misconduct.
The National Firearms Act is within the category of public welfare statutes enacted by Congress to regulate highly dangerous items. The Government submits that a conviction under such a statute may be supported by proof that the [635] defendant "knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9.[19] It is undisputed that the evidence in this case met that standard. Nevertheless, neither Justice Thomas for the Court nor Justice Ginsburg has explained why such a knowledge requirement is unfaithful to our cases or to the text of the Act.[20] Instead, following the approach of their decision in United States v. Harris, 959 F. 2d 246, 260-261 (CADC) (per curiam), cert. denied sub nom. Smith v. United States, 506 U. S. 932 (1992), they have simply explained why, in their judgment, it would be unfair to punish the possessor of this machinegun.
III
The history and interpretation of the National Firearms Act supports the conclusion that Congress did not intend to [636] require knowledge of all the facts that constitute the offense of possession of an unregistered weapon. During the first 30 years of enforcement of the 1934 Act, consistent with the absence of a knowledge requirement and with the reasoning in Balint, courts uniformly construed it not to require knowledge of all the characteristics of the weapon that brought it within the statute. In a case decided in 1963, then-Judge Blackmun reviewed the earlier cases and concluded that the defendant's knowledge that he possessed a gun was "all the scienter which the statute requires." Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963).
Congress subsequently amended the statute twice, once in 1968 and again in 1986. Both amendments added knowledge requirements to other portions of the Act,[21] but neither the text nor the history of either amendment discloses an intent to add any other knowledge requirement to the possession of an unregistered firearm offense. Given that, with only one partial exception,[22] every federal tribunal to address the question had concluded that proof of knowledge of all the facts constituting a violation was not required for a conviction [637] under § 5861(d),[23] we may infer that Congress intended that interpretation to survive. See Lorillard v. Pons, 434 U. S. 575, 580 (1978).
In short, petitioner's knowledge that he possessed an item that was sufficiently dangerous to alert him to the likelihood of regulation would have supported a conviction during the first half century of enforcement of this statute. Unless application of that standard to a particular case violates the Due Process Clause,[24] it is the responsibility of Congress, not this Court, to amend the statute if Congress deems it unfair or unduly strict.
IV
On the premise that the purpose of the mens rea requirement is to avoid punishing people "for apparently innocent activity," Justice Ginsburg concludes that proof of knowledge that a weapon is "`a dangerous device of a type as would alert one to the likelihood of regulation' " is not an adequate mens rea requirement, but that proof of knowledge that the weapon possesses "`every last characteristic' " that subjects it to regulation is. Ante, at 622-623, and n. 5 (Ginsburg, J., concurring in judgment) (quoting the trial court's jury instruction).
[638] Assuming that "innocent activity" describes conduct without any consciousness of wrongdoing, the risk of punishing such activity can be avoided only by reading into the statute the common-law concept of mens rea: "an evil purpose or mental culpability." Morissette, 342 U. S., at 252.[25] But even petitioner does not contend that the Government must prove guilty intent or intentional wrongdoing. Instead, the "mens rea " issue in this case is simply what knowledge requirement, if any, Congress implicitly included in this offense. There are at least five such possible knowledge requirements, four of which entail the risk that a completely innocent mistake will subject a defendant to punishment.
First, a defendant may know that he possesses a weapon with all of the characteristics that make it a "firearm" within the meaning of the statute and also know that it has never been registered, but be ignorant of the federal registration requirement. In such a case, we presume knowledge of the law even if we know the defendant is "innocent" in the sense that Justice Ginsburg uses the word. Second, a defendant may know that he possesses a weapon with all of the characteristics of a statutory firearm and also know that the law requires that it be registered, but mistakenly believe that it is in fact registered. Freed squarely holds that this defendant's "innocence" is not a defense. Third, a defendant [639] may know only that he possesses a weapon with all of the characteristics of a statutory firearm. Neither ignorance of the registration requirement nor ignorance of the fact that the weapon is unregistered protects this "innocent" defendant. Fourth, a defendant may know that he possesses a weapon that is sufficiently dangerous to likely be regulated, but not know that it has all the characteristics of a statutory firearm. Petitioner asserts that he is an example of this "innocent" defendant. Fifth, a defendant may know that he possesses an ordinary gun and, being aware of the widespread lawful gun ownership in the country, reasonably assume that there is no need "to inquire about the need for registration." Ante, at 622 (Ginsburg, J., concurring in judgment). That, of course, is not this case. See supra, at 624, and n. 1.[26]
Justice Ginsburg treats the first, second, and third alternatives differently from the fourth and fifth. Her acceptance of knowledge of the characteristics of a statutory "firearm" as a sufficient predicate for criminal liability—despite ignorance of either the duty to register or the fact of nonregistration, or both—must rest on the premise that such knowledge would alert the owner to the likelihood of regulation, thereby depriving the conduct of its "apparen[t] innocen[ce]." Yet in the fourth alternative, a jury determines just such knowledge: that the characteristics of the weapon known to the defendant would alert the owner to the likelihood of regulation.
In short, Justice Ginsburg's reliance on "the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity," ante, at 622, neither explains why ignorance of certain facts is a defense although [640] ignorance of others is not, nor justifies her disagreement with the jury's finding that this defendant knew facts that should have caused him to inquire about the need for registration.[27]
V
This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns. Anyone in possession of such a weapon is "standing in responsible relation to a public danger." See Dotterweich, 320 U. S., at 281 (citation omitted). In the National Firearms Act, Congress determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous to alert persons who knowingly possess them to the probability of stringent public regulation. The jury's finding that petitioner knowingly possessed "a dangerous device of a type as would alert one to the likelihood of regulation" adequately supports the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
[1] As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are "machineguns" within the meaning of the Act. We use the term "semiautomatic" to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired.
[2] In what the parties regard as a mistranscription, the transcript contains the word "suggested" instead of "which subjects it."
[3] By interpreting such public welfare offenses to require at least that the defendant know that he is dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes to impose a rigorous form of strict liability. See, e. g., United States v. International Minerals & Chemical Corp., 402 U. S. 558, 563-564 (1971) (suggesting that if a person shipping acid mistakenly thought that he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of acids). True strict liability might suggest that the defendant need not know even that he was dealing with a dangerous item. Nevertheless, we have referred to public welfare offenses as "dispensing with" or "eliminating" a mens rea requirement or "mental element," see, e. g., Morissette, 342 U. S., at 250, 263; United States v. Dotterweich, 320 U. S. 277, 281 (1943), and have described them as strict liability crimes, United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). While use of the term "strict liability" is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a "guilty mind" with respect to an element of a crime. Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat. See generally J. Hawley & M. McGregor, Criminal Law 26-30 (1899); R. Perkins, Criminal Law 785-786 (2d ed. 1969); G. Williams, Criminal Law: The General Part 113— 174 (1953). Cf. Queen v. Tolson, 23 Q. B. 168, 187 (1889) (Stephen, J.) ("[I]t may, I think, be maintained that in every case knowledge of fact [when not appearing in the statute] is to some extent an element of criminality as much as competent age and sanity").
[4] A grenade is a "firearm" under the Act. 26 U. S. C. §§ 5845(a)(8), 5845(f)(1)(B).
[5] The dissent's assertions to the contrary notwithstanding, the Government's position, "[a]ccurately identified," post, at 632, is precisely that "guns in general" are dangerous items. The Government, like the dissent, cites Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963), for the proposition that a defendant's knowledge that the item he possessed "was a gun" is sufficient for a conviction under § 5861(d). Brief for United States 21. Indeed, the Government argues that "guns" should be placed in the same category as the misbranded drugs in Dotterweich and the narcotics in Balint because "`one would hardly be surprised to learn' (Freed, 401 U. S. at 609) that there are laws that affect one's rights of gun ownership." Brief for United States 22. The dissent relies upon the Government's repeated contention that the statute requires knowledge that "the item at issue was highly dangerous and of a type likely to be subject to regulation." Id. , at 9. But that assertion merely patterns the general language we have used to describe the mens rea requirement in public welfare offenses and amounts to no more than an assertion that the statute should be treated as defining a public welfare offense.
[6] The dissent asserts that the question is not whether all guns are deleterious devices, but whether a gun "such as the one possessed by petitioner," post, at 632 (which the dissent characterizes as a "semiautomatic weapon that [is] readily convertible into a machinegun," post, at 624, 633, 640), is such a device. If the dissent intends to suggest that the category of readily convertible semiautomatics provides the benchmark for defining the knowledge requirement for § 5861(d), it is difficult to see how it derives that class of weapons as a standard. As explained above, see n. 5, supra, the Government's argument has nothing to do with this ad hoc category of weapons. And the statute certainly does not suggest that any significance should attach to readily convertible semiautomatics, for that class bears no relation to the definitions in the Act. Indeed, in the absence of any definition, it is not at all clear what the contours of this category would be. The parties assume that virtually all semiautomatics may be converted into automatics, and limiting the class to those "readily" convertible provides no real guidance concerning the required mens rea. In short, every owner of a semiautomatic rifle or handgun would potentially meet such a mens rea test.
But the dissent apparently does not conceive of the mens rea requirement in terms of specific categories of weapons at all, and rather views it as a more fluid concept that does not require delineation of any concrete elements of knowledge that will apply consistently from case to case. The dissent sees no need to define a class of items the knowing possession of which satisfies the mens rea element of the offense, for in the dissent's view the exact content of the knowledge requirement can be left to the jury in each case. As long as the jury concludes that the item in a given case is "sufficiently dangerous to alert [the defendant] to the likelihood of regulation," post, at 637, the knowledge requirement is satisfied. See also post, at 624, 639, 640. But the mens rea requirement under a criminal statute is a question of law, to be determined by the court. Our decisions suggesting that public welfare offenses require that the defendant know that he stands in "responsible relation to a public danger," Dotterweich, 320 U. S., at 281, in no way suggest that what constitutes a public danger is a jury question. It is for courts, through interpretation of the statute, to define the mens rea required for a conviction. That task cannot be reduced to setting a general "standard," post, at 637, that leaves it to the jury to determine, based presumably on the jurors' personal opinions, whether the items involved in a particular prosecution are sufficiently dangerous to place a person on notice of regulation.
Moreover, as our discussion above should make clear, to determine as a threshold matter whether a particular statute defines a public welfare offense, a court must have in view some category of dangerous and deleterious devices that will be assumed to alert an individual that he stands in "responsible relation to a public danger." Dotterweich, supra, at 281. The truncated mens rea requirement we have described applies precisely because the court has determined that the statute regulates in a field where knowing possession of some general class of items should alert individuals to probable regulation. Under the dissent's approach, however, it seems that every regulatory statute potentially could be treated as a public welfare offense as long as the jury—not the court—ultimately determines that the specific items involved in a prosecution were sufficiently dangerous.
[7] See, e. g., 18 U. S. C. §§ 921-928 (1988 ed. and Supp. IV) (requiring licensing of manufacturers, importers, and dealers of guns and regulating the sale, possession, and interstate transportation of certain guns).
[8] See U. S. Dept. of Justice, Bureau of Justice Statistics, Source book of Criminal Justice Statistics 209 (1992) (Table 2.58).
[9] For example, as of 1990, 39 States allowed adult residents, who are not felons or mentally infirm, to purchase a rifle or shotgun simply with proof of identification (and in some cases a simultaneous application for a permit). See U. S. Dept. of Justice, Bureau of Justice Statistics, Identifying Persons, Other Than Felons, Ineligible to Purchase Firearms 114, Exh. B.4 (1990); U. S. Congress, Office of Technology Assessment, Automated Record Checks of Firearm Purchasers 27 (July 1991). See also M. Cooper, Reassessing the Nation's Gun Laws, Editorial Research Reports 158, 160 (Jan.—Mar. 1991) (table) (suggesting the total is 41 States); Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances—Firearms (19th ed. 1989).
[10] We, of course, express no view concerning the inferences a jury may have drawn regarding petitioner's knowledge from the evidence in this case.
[11] The Government contends that Congress intended precisely such an aid to obtaining convictions, because requiring proof of knowledge would place too heavy a burden on the Government and obstruct the proper functioning of § 5861(d). Cf. United States v. Balint, 258 U. S. 250, 254 (1922) (difficulty of proving knowledge suggests Congress did not intend to require mens rea ). But knowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon. And firing a fully automatic weapon would make the regulated characteristics of the weapon immediately apparent to its owner. In short, we are confident that when the defendant knows of the characteristics of his weapon that bring it within the scope of the Act, the Government will not face great difficulty in proving that knowledge. Of course, if Congress thinks it necessary to reduce the Government's burden at trial to ensure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a mens rea requirement.
[12] Leading English cases developing a parallel theory of regulatory offenses similarly involved violations punishable only by fine or short-term incarceration. See, e. g., Queen v. Woodrow, 15 M. & W. 404, 153 Eng. Rep. 907 (Ex. 1846) (fine of £200 for adulterated tobacco); Hobbs v. Winchester Corp., [1910] 2 K. B. 471 (maximum penalty of three months' imprisonment for sale of unwholesome meat).
[13] Cf. Queen v. Tolson, 23 Q. B., at 177 (Wills, J.) (In determining whether a criminal statute dispenses with mens rea, "the nature and extent of the penalty attached to the offence may reasonably be considered. There is nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest").
[14] But see, e. g., State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923) (applying the public welfare offense rationale to a felony).
[15] See also United States Gypsum, 438 U. S., at 442, n. 18 (noting that an individual violation of the Sherman Antitrust Act is a felony punishable by three years in prison or a fine not exceeding $100,000 and stating that "[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes"). Cf. Holdridge v. United States, 282 F. 2d 302, 310 (CA8 1960) (Blackmun, J.) ("[W]here a federal criminal statute omits mention of intent and . . . where the penalty is relatively small, where conviction does not gravely besmirch, [and] where the statutory crime is not one taken over from the common law, . . . the statute can be construed as one not requiring criminal intent").
[16] Title 18 U. S. C. § 3559 makes any crime punishable by more than one year in prison a felony.
[17] In reaching our conclusion, we find it unnecessary to rely on the rule of lenity, under which an ambiguous criminal statute is to be construed in favor of the accused. That maxim of construction "is reserved for cases where, `[a]fter "seiz[ing] every thing from which aid can be derived,"` the Court is `left with an ambiguous statute.' " Smith v. United States, 508 U. S. 223, 239 (1993) (quoting United States v. Bass, 404 U. S. 336, 347 (1971), in turn quoting United States v. Fisher, 2 Cranch 358, 386 (1805)). See also United States v. R. L. C., 503 U. S. 291, 311 (1992) (Thomas, J., concurring in part and concurring in judgment); Chapman v. United States, 500 U. S. 453, 463 (1991) (rule of lenity inapplicable unless there is a "`grievous ambiguity or uncertainty' " in the statute). Here, the background rule of the common law favoring mens rea and the substantial body of precedent we have developed construing statutes that do not specify a mental element provide considerable interpretive tools from which we can "seize aid," and they do not leave us with the ultimate impression that § 5861(d) is "grievous[ly]" ambiguous. Certainly, we have not concluded in the past that statutes silent with respect to mens rea are ambiguous. See, e. g., United States v. Balint, 258 U. S. 250 (1922).
[1] Contrary to the dissent's suggestion, we have not confined the presumption of mens rea to statutes codifying traditional common-law offenses, but have also applied the presumption to offenses that are "entirely a creature of statute," post, at 625, such as those at issue in Liparota, Gypsum, and, most recently,Posters `N' Things, Ltd. v. United States, ante, at 522-523.
[2] Some Courts of Appeals have adopted a variant of the third reading, holding that the Government must show that the defendant knew the gun was a machinegun, but allowing inference of the requisite knowledge where a visual inspection of the gun would reveal that it has been converted into an automatic weapon. See United States v. O'Mara, 963 F. 2d 1288, 1291 (CA9 1992); United States v. Anderson, 885 F. 2d 1248, 1251 (CA5 1989) (en banc).
[3] The mens rea presumption requires knowledge only of the facts that make the defendant's conduct illegal, lest it conflict with the related presumption, "deeply rooted in the American legal system," that, ordinarily, "ignorance of the law or a mistake of law is no defense to criminal prosecution." Cheek v. United States, 498 U. S. 192, 199 (1991). Cf. United States v. Freed, 401 U. S. 601, 612 (1971) (Brennan, J., concurring in judgment) ("If the ancient maxim that `ignorance of the law is no excuse' has any residual validity, it indicates that the ordinary intent requirement— mens rea —of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy."). The maxim explains why some "innocent" actors—for example, a defendant who knows he possesses a weapon with all of the characteristics that subject it to registration, but was unaware of the registration requirement, or thought the gun was registered—may be convicted under § 5861(d), see post, at 638. Knowledge of whether the gun was registered is so closely related to knowledge of the registration requirement that requiring the Government to prove the former would in effect require it to prove knowledge of the law. Cf. Freed, supra, at 612-614 (Brennan, J., concurring in judgment).
[4] The indictment charged Staples with possession of two unregistered machineguns, but the jury found him guilty of knowingly possessing only one of them. Tr. 477.
[5] The trial court instructed the jury:
"[A] person is knowingly in possession of a thing if his possession occurred voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word `knowingly' is to insure that no one can be convicted of possession of a firearm he did not intend to possess. The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation. If he has such knowledge and if the particular item is, in fact, regulated, then that person acts at his peril. Mere possession of an unregistered firearm is a violation of the law of the United States, and it is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm within the meaning of the statute, only that he knowingly possessed the firearm." Id., at 465.
[1] Indeed, only about 15 percent of all the guns in the United States are semiautomatic. See National Rifle Association, Fact Sheet, SemiAutomatic Firearms 1 (Feb. 1, 1994). Although it is not known how many of those weapons are readily convertible into machineguns, it is obviously a lesser share of the total.
[2] See U. S. Dept. of Justice, Attorney General's Task Force on Violent Crime: Final Report 29, 32 (Aug. 17, 1981) (stating that over an 18-month period over 20 percent of the machineguns seized or purchased by the Bureau of Alcohol, Tobacco and Firearms had been converted from semiautomatic weapons by "simple tool work or the addition of readily available parts") (citing U. S. Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Case Summary (Washington: U. S. Govt. Printing Office 1981)).
[3] The Seventh Circuit's comment in a similar case is equally apt here: "The crime is possessing an unregistered firearm—not `knowingly' possessing an unregistered firearm, or possessing a weapon knowing it to be a firearm, or possessing a firearm knowing it to be unregistered. . . . [Petitioner's] proposal is not that we interpret a knowledge or intent requirement in § 5861(d); it is that we invent one." United States v. Ross, 917 F. 2d 997, 1000 (1990) (per curiam) (emphasis in original), cert. denied, 498 U. S. 1122 (1991).
[4] "The late 1920s and early 1930s brought . . . a growing perception of crime both as a major problem and as a national one. . . . [C]riminal gangs found the submachinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for close-range fighting." Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 590 (1987).
[5] The Senate Report on the bill explained: "The gangster as a law violator must be deprived of his most dangerous weapon, the machinegun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machineguns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machinegun or sawed-off-shotgun." S. Rep.No. 1444,73d Cong., 2d Sess.,1-2 (1934).
[6] In the Balint case, after acknowledging the general common-law rule that made knowledge of the facts an element of every crime, we held that as to statutory crimes the question is one of legislative intent,and that the Anti-Narcotic Act should be construed to authorize "punishment of a person for an act in violation of law[,][even] when ignorant of the facts making it so."Balint, 258 U. S., at 251-252.The "policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells." Id., at 253.
[7] See National Firearms Act: Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 6 (1934).
[8] "Omission of a mental element is the norm for statutes designed to deal with inaction. Not registering your gun, not cleaning up your warehouse, United States v. Park, 421 U. S. 658 . . . (1975), and like `acts' are done without thinking. Often the omission occurs because of lack of attention. . . . Yet Congress may have sound reasons for requiring people to investigate and act, objectives that cannot be achieved if the courts add mental elements to the statutes." Ross, 917 F. 2d, at 1000.
[9] These statutes are sometimes referred to as "strict liability" offenses. As the Court notes, because the defendant must know that he is engaged in the type of dangerous conduct that is likely to be regulated, the use of the term "strict liability" to describe these offenses is inaccurate. Ante, at 607-608, n. 3. I therefore use the term "public welfare offense" to describe this type of statute.
[10] See United States v. Balint, 258 U. S. 250 (1922).
[11] See United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971).
[12] See United States v. Dotterweich, 320 U. S. 277 (1943).
[13] The Court in Morissette v. United States, 342 U. S. 246 (1952), expressing approval of our public welfare offense cases, stated:
"Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static." Id., at 260 (footnotes omitted).
[14] Freed, 401 U. S., at 607 (holding that a violation of § 5861(d) may be established without proof that the defendant was aware of the fact that the firearm he possessed was unregistered). Our holding in Freed is thus squarely at odds with the Court's conclusion that the "defendant must know the facts that make his conduct illegal," ante, at 619.
[15] The Court's and Justice Ginsburg's reliance upon Liparota v. United States, 471 U. S. 419 (1985), is misplaced. Ante, at 610-612; ante, at 621-622. Although the Court is usually concerned with fine nuances of statutory text, its discussion of Liparota simply ignores the fact that the food stamp fraud provision, unlike § 5861(d), contained the word "knowingly." The Members of the Court in Liparota disagreed on the proper interpretation. The dissenters accepted the Government's view that the term merely required proof that the defendant had knowledge of the facts that constituted the crime. See Liparota, 471 U. S., at 442-443 (White, J., dissenting) ("I would read § 2024(b)(1) . . . to require awareness of only the relevant aspects of one's conduct rendering it illegal, not the fact of illegality"). The majority, however, concluded that "knowingly" also connoted knowledge of illegality. Id., at 424-425. Because neither "knowingly" nor any comparable term appears in § 5861(d), the statute before us today requires even less proof of knowledge than the dissenters would have demanded in Liparota.
[16] Justice Gins burg similarly assumes that the character of "all guns " cannot be said to place upon defendants an obligation "to inquire about the need for registration." Ante, at 622 (emphasis added).
[17] The Government does note that some Courts of Appeals have required proof of knowledge only that "the weapon was `a firearm, within the general meaning of that term,' " Brief for United States 24-25 (citing cases). Contrary to the assertion by the Court, ante, at 632, n. 5, however, the Government does not advance this test as the appropriate knowledge requirement, but instead supports the one used by other Courts of Appeals. Compare the Court's description of the Government's position, ibid., with the following statements in the Government's brief: "A defendant may be convicted of such offenses so long as the government proves that he knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9. "[T]he court of appeals correctly required the government to prove only that petitioner knew that he possessed a dangerous weapon likely to be subject to regulation." Id., at 13. "B. The intent requirement applicable to Section 5861(d) is knowledge that one is dealing with a dangerous item of a type likely to be subject to regulation." Id., at 16.
"But where a criminal statute involves regulation of a highly hazardous substance—and especially where it penalizes a failure to act or to comply with a registration scheme—the defendant's knowledge that he was dealing with such a substance and that it was likely to be subject to regulation provides sufficient intent to support a conviction." Id., at 17-18. "Rather, absent contrary congressional direction, knowledge of the highly dangerous nature of the articles involved and the likelihood that they are subject to regulation takes the place of the more rigorous knowledge requirement applicable where apparently innocent and harmless devices are subject to regulation." Id., at 20. "But the instruction did not require the government to prove that petitioner knew his weapon `possess[ed] every last characteristic [which subjects it] to regulation'; he need only have `know[n] that he [was] dealing with a dangerous device of a type as would alert one to the likelihood of regulation.' Tr. 465.
"That instruction accurately describes the mental state necessary for a violation of Section 5861(d)." Id., at 23. "[P]roof that a defendant was on fair notice that the item he possessed was highly dangerous and likely to be regulated is sufficient to support a conviction." Id., at 24.
[18] The Court and Justice Ginsburg apparently assume that the outer limits of any such notice can be no broader than the category of dangerous objects that Congress delineated as "firearms." Ante, at 611-612; ante, at 621-622. Our holding in Posters `N' Things, illustrates the error in that assumption. A retailer who may not know whether certain merchandise is actually drug paraphernalia, as that term is defined in the relevant federal statute, may nevertheless violate the law if "aware that customers in general are likely to use the merchandise with drugs." Ante, at 524. The owner of a semiautomatic weapon that is readily convertible into a machinegun can certainly be aware of its dangerous nature and the consequent probability of regulation even if he does not know whether the weapon is actually a machinegun. If ignorance of the precise characteristics that render an item forbidden should be a defense, items that are likely to be "drug paraphernalia" are no more obviously dangerous, and thus regulated, than items that are likely to be "firearms."
[19] As a matter of law, this is the level of knowledge required by the statute. Therefore, contrary to the Court's suggestion, ante, at 612, n. 6, I have not left the determination of the "exact content of the knowledge requirement" to the jury. I only leave to the jury its usual function: the application of this legal standard to the facts. In performing this function, juries are frequently required to determine if a law has been violated by application of just such a "general `standard.' " See, e. g., Posters `N' Things, ante, at 523-525; Miller v. California, 413 U. S. 15, 24 (1973).
[20] The Court also supports its conclusion on the basis of the purported disparity between the penalty provided by this statute and those of other regulatory offenses. Although a modest penalty may indicate that a crime is a public welfare offense, such a penalty is not a requisite characteristic of public welfare offenses. For example, the crime involved in Balint involved punishment of up to five years' imprisonment. See Dotterweich, 320 U. S., at 285; see also Morissette, 342 U. S., at 251, n. 8 (noting that rape of one too young to consent is an offense "in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent"). Moreover, congressional authorization of a range of penalties in some cases—petitioner, for instance, is on probation—demonstrates a recognition that relatively innocent conduct should be punished less severely.
[21] Significantly, in 1968, Congress included a knowledge requirement in § 5861(l ). 26 U. S. C. § 5861(l ) (making it unlawful "to make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false") (emphasis added). "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Rodriguez v. United States, 480 U. S. 522, 525 (1987) (internal quotation marks and citations omitted); see also Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 267-268 (1985).
[22] United States v. Herbert, 698 F. 2d 981, 986-987 (CA9), cert. denied, 464 U. S. 821 (1983) (requiring the Government to prove knowledge of all the characteristics of a weapon only when no external signs indicated that the weapon was a "firearm"). Not until 1989 did a Court of Appeals adopt the view of the majority today. See United States v. Williams, 872 F. 2d 773 (CA6).
[23] See, e. g., United States v. Gonzalez, 719 F. 2d 1516, 1522 (CA11 1983), cert. denied, 465 U. S. 1037 (1984); Morgan v. United States, 564 F. 2d 803, 805-806 (CA8 1977); United States v. Cowper, 503 F. 2d 130, 132-133 (CA6 1974), cert. denied, 420 U. S. 930 (1975); United States v. DeBartolo, 482 F. 2d 312, 316 (CA1 1973); United States v. Vasquez, 476 F. 2d 730, 732 (CA5), cert. denied, 414 U. S. 836 (1973), overruled by United States v. Anderson, 885 F. 2d 1248 (CA5 1989) (en banc).
And, as I have already noted, United States v. Freed, 401 U. S. 601 (1971), was consistent with the Government's position here. Although the Government accepted the burden of proving that Freed knew that the item he possessed was a hand grenade, the possessor of an unfamiliar object such as a hand grenade would not know that it was "a dangerous item of a type likely to be subject to regulation," Brief for United States 16; see also id., at 20, 23, 24, unless he knew what it was.
[24] Petitioner makes no such claim in this Court.
[25] Our use of the term mens rea has not been consistent. In Morissette, we used the term as if it always connoted a form of wrongful intent. In other cases, we employ it simply to mean whatever level of knowledge is required for any particular crime. See, e. g., United States v. Bailey, 444 U. S. 394, 403 (1980). In this sense, every crime except a true strictliability offense contains a mens rea requirement. For instance, the Court defined mens rea in Liparota v. United States, 471 U. S., at 426, as "knowledge of illegality." In dissent, however, Justice White equated the term with knowledge of the facts that make the conduct illegal. Id., at 442-443. Today, the Court assigns the term the latter definition, ante, at 605, but in fact requires proof of knowledge of only some of the facts that constitute the violation, ante, at 609 (not requiring proof of knowledge of the fact that the gun is unregistered).
[26] Although I disagree with the assumption that "widespread lawful gun ownership" provides a sufficient reason for believing that there is no need to register guns (there is also widespread lawful automobile ownership), acceptance of that assumption neither justifies the majority's holding nor contradicts my conclusion on the facts of this case.
[27] In addition, contrary to Justice Ginsburg's assumption, if one reads the term "firearm" from the quoted section of the indictment to mean "gun," the indictment still charges an offense under § 5861(d) and does not differ from the critical jury instruction. See ante, at 622-623. Even if Justice Ginsburg is correct that there is a technical variance, petitioner makes no claim that any such variance prejudiced him. The wording of the indictment, of course, sheds no light on the proper interpretation of the underlying statutory text. Although the repeated use of a term in a statute may shed light on the statute's construction, see Ratzlaf v. United States, 510 U. S. 135, 143 (1994), such use in an indictment is irrelevant to that question.
7.2.6.2.3.10 Elonis v. United States 7.2.6.2.3.10 Elonis v. United States
ANTHONY DOUGLAS ELONIS, PETITIONER,
v.
UNITED STATES.
No. 13-983.
Supreme Court of the United States.
Argued December 1, 2014.
Decided June 1, 2015.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion.
CHIEF JUSTICE ROBERTS, delivered the opinion of the Court.
Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another." 18 U. S. C. §875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.
I
A
Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226. Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona." Id., at 249, 265. The lyrics Elonis posted as "Tone Dougie" included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were "fictitious," with no intentional "resemblance to real persons." Id., at 331, 329. Elonis posted an explanation to another Facebook user that "I'm doing this for me. My writing is therapeutic." Id., at 329; see also id., at 205 (testifying that it "helps me to deal with the pain").
Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id., at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his Facebook page:
"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.
This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.
Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164-165, 207. In the actual sketch, called "It's Illegal to Say . . .," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:
"Hi, I'm Tone Elonis.
Did you know that it's illegal for me to say I want to kill my wife? . . .
It's one of the only sentences that I'm not allowed to say. . . .
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife. . . .
Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife. . . .
But not illegal to say with a mortar launcher.
Because that's its own sentence. . . .
I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . ." Id., at 333.
The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id., at 333.
After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148-150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives to take care of the State Police and the Sheriff's Department." Id., at 334.
At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid. Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id., at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:
"That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class
The only question is . . . which one?" Id., at 335.
Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:
"You know your s***'s ridiculous when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin' [BOOM!]
Are all the pieces comin' together?
S***, I'm just a crazy sociopath that gets off playin' you stupid f***s like a fiddle
And if y'all didn't hear, I'm gonna be famous
Cause I'm just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism cause y'all think I'm ready to turn the Valley into Fallujah
But I ain't gonna tell you which bridge is gonna fall into which river or road
And if you really believe this s***
I'll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]" Id., at 336.
B
A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c). App. 14-17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis "intentionally made the communication, not that he intended to make a threat." App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis's view, he had posted "nothing . . . that hasn't been said already." Id., at 205. The Government presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. See, e.g., id., at 153, 158.
Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat." Id., at 21. See also id., at 267-269, 303. The District Court denied that request. The jury instructions instead informed the jury that
"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id., at 301.
The Government's closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats—"it doesn't matter what he thinks." Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months' imprisonment and three years' supervised release.
Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. 730 F. 3d 321, 332 (CA3 2013).
We granted certiorari. 573 U. S. ___ (2014).
II
A
An individual who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" is guilty of a felony and faces up to five years' imprisonment. 18 U. S. C. §875(c). This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat.
Elonis argues that the word "threat" itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J., dubitante). E.g., 11 Oxford English Dictionary 353 (1933) ("to declare (usually conditionally) one's intention of inflicting injury upon"); Webster's New International Dictionary 2633 (2d ed. 1954) ("Law, specif., an expression of an intention to inflict loss or harm on another by illegal means"); Black's Law Dictionary 1519 (8th ed. 2004) ("A communicated intent to inflict harm or loss on another").
These definitions, however, speak to what the statement conveys—not to the mental state of the author. For example, an anonymous letter that says "I'm going to kill you" is "an expression of an intention to inflict loss or harm" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.
For its part, the Government argues that Section 875(c) should be read in light of its neighboring provisions, Sections 875(b) and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an "intent to extort." See 18 U. S. C. §875(b) (proscribing threats to injure or kidnap made "with intent to extort"); §875(d) (proscribing threats to property or reputation made "with intent to extort"). According to the Government, the express "intent to extort" requirements in Sections 875(b) and (d) should preclude courts from implying an unexpressed "intent to threaten" requirement in Section 875(c). See Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").
The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an "intent to extort" from Section 875(c) is strong evidence that Congress did not mean to confine Section 875(c) to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted.
In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).
B
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that "wrongdoing must be conscious to be criminal." Id., at 252. As Justice Jackson explained, this principle is "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id., at 250. The "central thought" is that a defendant must be "blameworthy in mind" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332-333 (2d ed. 2003). Although there are exceptions, the "general rule" is that a guilty mind is "a necessary element in the indictment and proof of every crime." United States v. Balint, 258 U. S. 250, 251 (1922). We therefore generally "interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them." United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994).
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim "ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," Staples v. United States, 511 U. S. 600, 608, n. 3 (1994), even if he does not know that those facts give rise to a crime.
Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for "knowingly convert[ing]" property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248-249. This Court reversed the defendant's conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable "if he truly believed [the casings] to be abandoned." Id., at 271; see id., at 276.
By the same token, in Liparota v. United States, we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner. 471 U. S. 419, 420 (1985). The Government's argument, similar to its position in this case, was that a defendant's conviction could be upheld if he knowingly possessed or used the food stamps, and in fact his possession or use was unauthorized. Id., at 423. But this Court rejected that interpretation of the statute, because it would have criminalized "a broad range of apparently innocent conduct" and swept in individuals who had no knowledge of the facts that made their conduct blameworthy. Id., at 426. For example, the statute made it illegal to use food stamps at a store that charged higher prices to food stamp customers. Without a mental state requirement in the statute, an individual who unwittingly paid higher prices would be guilty under the Government's interpretation. Ibid. The Court noted that Congress could have intended to cover such a "broad range of conduct," but declined "to adopt such a sweeping interpretation" in the absence of a clear indication that Congress intended that result. Id., at 427. The Court instead construed the statute to require knowledge of the facts that made the use of the food stamps unauthorized. Id., at 425.
To take another example, in Posters `N' Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994). Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant's state of mind. Id., at 517-522. But, we held, an individual could not be convicted of selling such paraphernalia unless he "knew that the items at issue [were] likely to be used with illegal drugs." Id., at 524. Such a showing was necessary to establish the defendant's culpable state of mind.
And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct. 513 U. S., at 68. We rejected a reading of the statute which would have required only that a defendant knowingly send the prohibited materials, regardless of whether he knew the age of the performers. Id., at 68-69. We held instead that a defendant must also know that those depicted were minors, because that was "the crucial element separating legal innocence from wrongful conduct." Id., at 73. See also Staples, 511 U. S., at 619 (defendant must know that his weapon had automatic firing capability to be convicted of possession of such a weapon).
When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute "only that mens rea which is necessary to separate wrongful conduct from `otherwise innocent conduct.'" Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U. S. C. §2113(a), for taking "by force and violence" items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U. S., at 261. We held that once the Government proves the defendant forcibly took the money, "the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of . . . `otherwise innocent'" conduct. Id., at 269-270. In other instances, however, requiring only that the defendant act knowingly "would fail to protect the innocent actor." Id., at 269. A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal "would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his." Ibid. In such a case, the Court explained, the statute "would need to be read to require . . . that the defendant take the money with `intent to steal or purloin.'" Ibid.
C
Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video, 513 U. S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct— awareness of some wrongdoing." Staples, 511 U. S., at 606-607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943); emphasis added). Having liability turn on whether a "reasonable person" regards the communication as a threat—regardless of what the defendant thinks— "reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes," Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C. Torcia, Wharton's Criminal Law §27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind"). Under these principles, "what [Elonis] thinks" does matter. App. 286.
The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant "comprehended [the] contents and context" of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a "foreigner, ignorant of the English language," who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate "the circumstances known" to a defendant. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372-373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government's position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.
In support of its position the Government relies most heavily on Hamling v. United States, 418 U. S. 87 (1974). In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material only if they knew the "legal status of the materials" distributed. Id., at 121. Absolving a defendant of liability because he lacked the knowledge that the materials were legally obscene "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123. It was instead enough for liability that "a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials." Ibid.
This holding does not help the Government. In fact, the Court in Hamling approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a "vital element of scienter" so that "not innocent but calculated purveyance of filth . . . is exorcised." Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966); internal quotation marks omitted). In this case, "calculated purveyance" of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context.
Contrary to the dissent's suggestion, see post, at 4-5, 9-10 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896), undermines this reading. The defendant's contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31-33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material "could be properly or justly characterized as obscene." Id., at 41. The Court correctly rejected this "ignorance of the law" defense; no such contention is at issue here. See supra, at 10.
* * *
In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal." Morissette, 342 U. S., at 252.
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id., at 8-9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990) (this Court is "poorly situated" to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in "only the most cursory fashion at oral argument"). Given our disposition, it is not necessary to consider any First Amendment issues.
Both JUSTICE ALITO and JUSTICE THOMAS complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post, at 1-2 (ALITO, J., concurring in part and dissenting in part); post, at 1-2 (opinion of THOMAS, J.). JUSTICE ALITO contends that each party "argued" this issue, post, at 2, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38-39.
JUSTICE ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question JUSTICE ALITO and JUSTICE THOMAS would have us decide—whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient "justification," post, at 2 (opinion of ALITO, J.), for us to decline to be the first appellate tribunal to do so.
Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under 18 U. S. C. §751, even though a "court may someday confront a case" presenting issue); Ginsberg v. New York, 390 U. S. 629, 644-645 (1968) (rejecting defendant's challenge to obscenity law "makes it unnecessary for us to define further today `what sort of mental element is requisite to a constitutionally permissible prosecution'"); Smith v. California, 361 U. S. 147, 154 (1959) (overturning conviction because lower court did not require any mental element under statute, but noting that "[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution"); cf. Gulf Oil Co. v. Bernard, 452 U. S. 89, 103-104 (1981) (finding a lower court's order impermissible under the First Amendment but not deciding "what standards are mandated by the First Amendment in this kind of case").
We may be "capable of deciding the recklessness issue," post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.
The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE ALITO, concurring in part and dissenting in part.
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: "It is emphatically the province and duty of the judicial department to say what the law is." Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.
There is no justification for the Court's refusal to provide an answer. The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I
Section 875(c) provides in relevant part:
"Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term "threat" in §875(c), but in construing the same term in a related statute, the Court distinguished a "true `threat'" from facetious or hyperbolic remarks. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). In my view, the term "threat" in §875(c) can fairly be defined as a statement that is reasonably interpreted as "an expression of an intention to inflict evil, injury, or damage on another." Webster's Third New International Dictionary 2382 (1976). Conviction under §875(c) demands proof that the defendant's transmission was in fact a threat, i.e., that it is reasonable to interpret the transmission as an expression of an intent to harm another. In addition, it must be shown that the defendant was at least reckless as to whether the transmission met that requirement.
Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court's, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9-13. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We "ordinarily resist reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U. S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. "For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or—more rarely— negligence)." 1 W. LaFave, Substantive Criminal Law §5.5, p. 381 (2003). Based on these "background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994).
For a similar reason, I agree with the Court that we should presume that an offense like that created by §875(c) requires more than negligence with respect to a critical element like the one at issue here. See ante, at 13-14. As the Court states, "[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute `only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct."'" Ante, at 12 (quoting Carter v. United States, 530 U. S. 255, 269 (2000)). Whether negligence is morally culpable is an interesting philosophical question, but the answer is at least sufficiently debatable to justify the presumption that a serious offense against the person that lacks any clear common-law counterpart should be presumed to require more.
Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant "should [have] be[en] aware of a substantial and unjustifiable risk," ALI, Model Penal Code §2.02(2)(d), p. 226 (1985), while recklessness exists "when a person disregards a risk of harm of which he is aware," Farmer v. Brennan, 511 U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. See, e.g., Farmer, supra, at 835-836 (deliberate indifference to an inmate's harm); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (criminal libel); New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964) (civil libel). Indeed, this Court has held that "reckless disregard for human life" may justify the death penalty. Tison v. Arizona, 481 U. S. 137, 157 (1987). Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court's noncommittal opinion prevents lower courts from adopting that standard.
II
There remains the question whether interpreting §875(c) to require no more than recklessness with respect to the element at issue here would violate the First Amendment. Elonis contends that it would. I would reject that argument.
It is settled that the Constitution does not protect true threats. See Virginia v. Black, 538 U. S. 343, 359-360 (2003); R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992); Watts, 394 U. S., at 707-708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value and are entitled to protection. But that does not justify constitutional protection for the threat itself.
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a "`therapeutic'" purpose, "to `deal with the pain' . . . of a wrenching event," or for "cathartic" reasons, the threat is protected. Brief for Petitioner 52-53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. "Taken in context," lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the effect on Elonis's estranged wife when she read this: "`If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.'" 730 F. 3d 321, 324 (CA3 2013). Or this: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Ibid. Or this: "Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?" Id., at 325.
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel "`extremely afraid'" and "`like [she] was being stalked.'" Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4-16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that §875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to "exten[d] a measure of strategic protection" to otherwise unprotected false statements of fact in order to ensure enough "`breathing space'" for protected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U. S., at 279-280 (civil liability); Garrison, 379 U. S., at 74-75 (criminal liability). Requiring proof of recklessness is similarly sufficient here.
III
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedure requires a defendant to "inform the court of the specific objection and the grounds for the objection." An objection cannot be vague or open-ended. It must specifically identify the alleged error. And failure to lodge a sufficient objection "precludes appellate review," except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure §484, pp. 433-435 (4th ed. 2009).
At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 ("Section 875(c) requires proof that the defendant intended the charged statement to be a `threat'" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 ("[A] `true threat' has been uttered only if the speaker acted with subjective intent to threaten" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard—which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 ("[W]e would say that recklessness is not justif[ied]"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmlesserror grounds. "We have often applied harmless-error analysis to cases involving improper instructions." Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503-504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206-207 (2009). It should be given the chance to address that possibility here.
JUSTICE THOMAS, dissenting.
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under 18 U. S. C. §875(c). Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that §875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach.
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today's decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough. See ante, at 16-17.
This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were "true threats" unprotected by the First Amendment, I would affirm the judgment below.
I
A
Enacted in 1939, §875(c) provides, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." Because §875(c) criminalizes speech, the First Amendment requires that the term "threat" be limited to a narrow class of historically unprotected communications called "true threats." To qualify as a true threat, a communication must be a serious expression of an intention to commit unlawful physical violence, not merely "political hyperbole"; "vehement, caustic, and sometimes unpleasantly sharp attacks"; or "vituperative, abusive, and inexact" statements. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted). It also cannot be determined solely by the reaction of the recipient, but must instead be "determined by the interpretation of a reasonable recipient familiar with the context of the communication," United States v. Darby, 37 F. 3d 1059, 1066 (CA4 1994) (emphasis added), lest historically protected speech be suppressed at the will of an eggshell observer, cf. Cox v. Louisiana, 379 U. S. 536, 551 (1965) ("[C]onstitutional rights may not be denied simply because of hostility to their assertion or exercise" (internal quotation marks omitted)). There is thus no dispute that, at a minimum, §875(c) requires an objective showing: The communication must be one that "a reasonable observer would construe as a true threat to another." United States v. Jeffries, 692 F. 3d 473, 478 (CA6 2012). And there is no dispute that the posts at issue here meet that objective standard.
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face, §875(c) does not demand any particular mental state. As the Court correctly explains, the word "threat" does not itself contain a mens rea requirement. See ante, at 8-9. But because we read criminal statutes "in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994) (citation omitted). Absent such indicia, we ordinarily apply the "presumption in favor of scienter" to require only "proof of general intent—that is, that the defendant [must] posses[s] knowledge with respect to the actus reus of the crime." Carter v. United States, 530 U. S. 255, 268 (2000).
Under this "conventional mens rea element," "the defendant [must] know the facts that make his conduct illegal," Staples, supra, at 605, but he need not know that those facts make his conduct illegal. It has long been settled that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan v. United States, 524 U. S. 184, 192 (1998) (internal quotation marks omitted). For instance, in Posters `N' Things, Ltd. v. United States, 511 U. S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to "`make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,'" id., at 516 (quoting 21 U. S. C. §857(a)(1) (1988 ed.)). In applying the presumption in favor of scienter, the Court concluded that "although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are `drug paraphernalia' within the meaning of the statute." 511 U. S., at 524.
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction under a federal obscenity statute that punished anyone "`who shall knowingly deposit, or cause to be deposited, for mailing or delivery,'" any "`obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.'" Rosen v. United States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat. §3893). In that case, as here, the defendant argued that, even if "he may have had . . . actual knowledge or notice of [the paper's] contents" when he put it in the mail, he could not "be convicted of the offence . . . unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious." 161 U. S., at 41. The Court rejected that theory, concluding that if the material was actually obscene and "deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails." Ibid. As the Court explained, "Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of [the paper's] contents, assumed the responsibility of putting it in the mails of the United States," because "[e]very one who uses the mails of the United States for carrying papers or publications must take notice of . . . what must be deemed obscene, lewd, and lascivious." Id., at 41-42.
This Court reaffirmed Rosen's holding in Hamling v. United States, 418 U. S. 87 (1974), when it considered a challenge to convictions under the successor federal statute, see id., at 98, n. 8 (citing 18 U. S. C. §1461 (1970 ed.)). Relying on Rosen, the Court rejected the argument that the statute required "proof both of knowledge of the contents of the material and awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). In approving the jury instruction that the defendants'"belief as to the obscenity or non-obscenity of the material is irrelevant," the Court declined to hold "that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes." Id., at 120-121 (internal quotation marks omitted). To rule otherwise, the Court observed, "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123.
Decades before §875(c)'s enactment, courts took the same approach to the first federal threat statute, which prohibited threats against the President. In 1917, Congress enacted a law punishing anyone
"who knowingly and willfully deposits or causes to be deposited for conveyance in the mail . . . any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President." Act of Feb. 14, 1917, ch. 64, 39 Stat. 919.
Courts applying this statute shortly after its enactment appeared to require proof of only general intent. In Ragansky v. United States, 253 F. 643 (CA7 1918), for instance, a Court of Appeals held that "[a] threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him," and "is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution," id., at 645. The court consequently rejected the defendant's argument that he could not be convicted when his language "[c]oncededly . . . constituted such a threat" but was meant only "as a joke." Id., at 644. Likewise, in United States v. Stobo, 251 F. 689 (Del. 1918), a District Court rejected the defendant's objection that there was no allegation "of any facts . . . indicating any intention. . . on the part of the defendant . . . to menace the President of the United States," id., at 693 (internal quotation marks omitted). As it explained, the defendant "is punishable under the act whether he uses the words lightly or with a set purpose to kill," as "[t]he effect upon the minds of the hearers, who cannot read his inward thoughts, is precisely the same." Ibid. At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.
B
Applying ordinary rules of statutory construction, I would read §875(c) to require proof of general intent. To "know the facts that make his conduct illegal" under §875(c), see Staples, 511 U. S., at 605, a defendant must know that he transmitted a communication in interstate or foreign commerce that contained a threat. Knowing that the communication contains a "threat"—a serious expression of an intention to engage in unlawful physical violence—does not, however, require knowing that a jury will conclude that the communication contains a threat as a matter of law. Instead, like one who mails an "obscene" publication and is prosecuted under the federal obscenity statute, a defendant prosecuted under §875(c) must know only the words used in that communication, along with their ordinary meaning in context.
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under §875(c). See Ragansky, supra, at 645 ("[A] foreigner, ignorant of the English language, repeating [threatening] words without knowledge of their meaning, may not knowingly have made a threat"). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he "knew that what [he] was saying was violent" but supposedly "just wanted to express [him]self," App. 205, acted with the general intent required under §875(c), even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law.
Demanding evidence only of general intent also corresponds to §875(c)'s statutory backdrop. As previously discussed, before the enactment of §875(c), courts had read the Presidential threats statute to require proof only of general intent. Given Congress' presumptive awareness of this application of the Presidential threats statute—not to mention this Court's similar approach in the obscenity context, see Rosen, 161 U. S., at 41-42—it is difficult to conclude that the Congress that enacted §875(c) in 1939 understood it to contain an implicit mental-state requirement apart from general intent. There is certainly no textual evidence to support this conclusion. If anything, the text supports the opposite inference, as §875(c), unlike the Presidential threats statute, contains no reference to knowledge or willfulness. Nothing in the statute suggests that Congress departed from the "conventional mens rea element" of general intent, Staples, supra, at 605; I would not impose a higher mental-state requirement here.
C
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante, at 13-16. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under §875(c) prevents a defendant from being convicted on the basis of any fact beyond his awareness. See, e.g., United States v. X-Citement Video, Inc., 513 U. S. 64, 73 (1994) (knowledge of age of persons depicted in explicit materials); Staples, supra, at 614-615 (knowledge of firing capability of weapon); Morissette v. United States, 342 U. S. 246, 270-271 (1952) (knowledge that property belonged to another). In other words, the defendant must know—not merely be reckless or negligent with respect to the fact—that he is committing the acts that constitute the actus reus of the offense.
But general intent requires no mental state (not even a negligent one) concerning the "fact" that certain words meet the legal definition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury's application of the legal standard of a "threat" to the contents of a communication. And convicting a defendant despite his ignorance of the legal— or objective—status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claiming that he acted in self-defense has not been penalized under a negligence standard merely because he does not know that the jury will reject his argument that his "belief in the necessity of using force to prevent harm to himself [was] a reasonable one." See 2 W. LaFave, Substantive Criminal Law §10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling "approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a `vital element of scienter' so that `not innocent but calculated purveyance of filth . . . is exorcised.'" Ante, at 15 (quoting Hamling, 418 U. S., at 122 (in turn quoting Mishkin v. New York, 383 U. S. 502, 510 (1966)). According to the Court, the mental state approved in Hamling thus "turns on whether a defendant knew the character of what was sent, not simply its contents and context." Ante, at 15. It is unclear what the Court means by its distinction between "character" and "contents and context." "Character" cannot mean legal obscenity, as Hamling rejected the argument that a defendant must have "awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). Moreover, this discussion was not part of Hamling's holding, which was primarily a reaffirmation of Rosen. See 418 U. S., at 120-121; see also Posters `N' Things, 511 U. S., at 524-525 (characterizing Hamling as holding that a "statute prohibiting mailing of obscene materials does not require proof that [the] defendant knew the materials at issue met the legal definition of `obscenity'").
The majority's treatment of Rosen is even less persuasive. To shore up its position, it asserts that the critical portion of Rosen rejected an "`ignorance of the law' defense," and claims that "no such contention is at issue here." Ante, at 15. But the thrust of Elonis' challenge is that a §875(c) conviction cannot stand if the defendant's subjective belief of what constitutes a "threat" differs from that of a reasonable jury. That is akin to the argument the defendant made—and lost—in Rosen. That defendant insisted that he could not be convicted for mailing the paper "unless he knew or believed that such paper could be properly or justly characterized as obscene." 161 U. S., at 41. The Court, however, held that the Government did not need to show that the defendant "regard[ed] the paper as one that the statute forbade to be carried in the mails," because the obscene character of the material did not "depend upon the opinion or belief of the person who . . . assumed the responsibility of putting it in the mails." Ibid. The majority's muddying of the waters cannot obscure the fact that today's decision is irreconcilable with Rosen and Hamling.
D
The majority today at least refrains from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do. Elonis contends that proof of a defendant's intent to put the recipient of a threat in fear is necessary for conviction, but that element cannot be found within the statutory text. "[W]e ordinarily resist reading words or elements into a statute that do not appear on its face," including elements similar to the one Elonis proposes. E.g., Bates v. United States, 522 U. S. 23, 29 (1997) (declining to read an "intent to defraud" element into a criminal statute). As the majority correctly explains, nothing in the text of §875(c) itself requires proof of an intent to threaten. See ante, at 8-9. The absence of such a requirement is significant, as Congress knows how to require a heightened mens rea in the context of threat offenses. See §875(b) (providing for the punishment of "[w]hoever, with intent to extort . . ., transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"); see also §119 (providing for the punishment of "[w]hoever knowingly makes restricted personal information about [certain officials] . . . publicly available . . . with the intent to threaten").
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante, at 4-5, 16 (concluding that Elonis' conviction under §875(c) for discussing a plan to "`initiate the most heinous school shooting ever imagined'" against "`a Kindergarten class'" cannot stand without proof of some unspecified heightened mental state).
Elonis also insists that we read an intent-to-threaten element into §875(c) in light of the First Amendment. But our practice of construing statutes "to avoid constitutional questions . . . is not a license for the judiciary to rewrite language enacted by the legislature," Salinas v. United States, 522 U. S. 52, 59-60 (1997) (internal quotation marks omitted), and ordinary background principles of criminal law do not support rewriting §875(c) to include an intent-to-threaten requirement. We have not altered our traditional approach to mens rea for other constitutional provisions. See, e.g., Dean v. United States, 556 U. S. 568, 572-574 (2009) (refusing to read an intent-to-dischargethe-firearm element into a mandatory minimum provision concerning the discharge of a firearm during a particular crime). The First Amendment should be treated no differently.
II
In light of my conclusion that Elonis was properly convicted under the requirements of §875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.
A
Elonis does not contend that threats are constitutionally protected speech, nor could he: "From 1791 to the present,. . . our society . . . has permitted restrictions upon the content of speech in a few limited areas," true threats being one of them. R. A. V. v. St. Paul, 505 U. S. 377, 382-383 (1992); see id., at 388. Instead, Elonis claims that only intentional threats fall within this particular historical exception.
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N. J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68-69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, §5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich. Const., Art. I, §7 (1835); N. J. Const., Art. I, §5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, §31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase "freedom of speech" in the First Amendment. See Roth v. United States, 354 U. S. 476, 481-483 (1957) (engaging in a similar inquiry with respect to obscenity).
Shortly after the founding, several States and Territories enacted laws making it a crime to "knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, . . . threatening to maim, wound, kill or murder any person, or to burn his or her [property], though no money, goods or chattels, or other valuable thing shall be demanded," e.g., 1795 N. J. Laws §57, at 108; see also, e.g., 1816 Ga. Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code §108; 1832 Fla. Laws, at 68-69. These laws appear to be the closest early analogue to §875(c), as they penalize transmitting a communication containing a threat without proof of a demand to extort something from the victim. Threat provisions explicitly requiring proof of a specific "intent to extort" appeared alongside these laws, see, e.g., 1795 N. J. Laws §57, at 108, but those provisions are simply the predecessors to §875(b) and §875(d), which likewise expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital offense to "knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name . . . threatening to kill or murder any of his Majesty's Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded." 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K. B. 1776), for example, the trial court instructed the jurors that, "if they were of opinion that" the "terms of the letter conveyed an actual threat to kill or murder," "and that the prisoner knew the contents of it, they ought to find him guilty; but that if they thought he did not know the contents, or that the words might import any thing less than to kill or murder, they ought to acquit," id., at 143, 168 Eng. Rep., at 173. On appeal following conviction, the judges "thought that the case had been properly left to the Jury." Ibid., 168 Eng. Rep., at 174. Other cases likewise appeared to consider only the import of the letter's language, not the intent of its sender. See, e.g., Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831) (concluding that an indictment was sufficient because "th[e] letter very plainly conveys a threat to kill and murder" and "[n]o one who received it could have any doubt as to what the writer meant to threaten"); see also 2 E. East, A Treatise of the Pleas of the Crown 1116 (1806) (discussing Jepson and Springett's Case, in which the judges disagreed over whether "the letter must be understood as . . . importing a threat" and whether that was "a necessary construction").
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane's A General Abridgement of American Law—"a necessary adjunct to the library of every American lawyer of distinction," 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)—discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31-32 (1824). And as this Court long ago recognized, "It is doubtless true . . . that where English statutes . . . have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority." Pennock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Commonwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering English cases persuasive authority in interpreting similar state statute creating the offense of obtaining property through false pretenses). In short, there is good reason to believe that States bound by their own Constitutions to protect freedom of speech long ago enacted general-intent threat statutes.
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was "levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim's] mind." 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental state was required as a matter of law. After all, §875(c) is frequently deployed against people who wanted to cause their victims fear, but that fact does not answer the legal question presented in this case. See, e.g., United States v. Sutcliffe, 505 F. 3d 944, 952 (CA9 2007); see also Tr. of Oral Arg. 53 (counsel for the Government noting that "I think Congress would well have understood that the majority of these cases probably [involved] people who intended to threaten").
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge, 75 Mich. 488, 490-493, 42 N. W. 997, 998 (1889); State v. Benedict, 11 Vt. 236, 239 (1839), which is insufficiently similar to the offense criminalized in §875(c) to be of much use. Another involves a prosecution under a blackmailing statute similar to §875(b) and §875(c) in that it expressly required an "intent to extort." Norris v. State, 95 Ind. 73, 74 (1884). And his treatises do not clearly distinguish between the offense of making threats with the intent to extort and the offense of sending threatening letters without such a requirement in their discussions of threat statutes, making it difficult to draw strong inferences about the latter category. See 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664, and nn. 5-6 (1877); 2 J. Bishop, Commentaries on the Law of Criminal Procedure §975, p. 546 (1866); 25 The American and English Encyclopædia of Law 1073 (C. Williams ed. 1894).
Two of Elonis' cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible "to prove guilty knowledge of the defendant, when that is an essential element of the crime; that is, the quo animo, the intent or design," and offers as an example that in the context of "sending a threatening letter, . . . prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question." State v. Graham, 121 N. C. 623, 627, 28 S. E. 409, 409 (1897). But it is unclear from that statement whether that court thought an intent to threaten was required, especially as the case it cited for this proposition—Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a general-intent approach. The other case Elonis cites involves a statutory provision that had been judicially limited to "`pertain to one or the other acts which are denounced by the statute,'" namely, terroristic activities carried out by the Ku Klux Klan. Commonwealth v. Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910) (quoting Commonwealth v. Patrick, 127 Ky. 473, 478, 105 S. W. 981, 982 (1907)). That case thus provides scant historical support for Elonis' position.
B
Elonis also insists that our precedents require a mental state of intent when it comes to threat prosecutions under §875(c), primarily relying on Watts, 394 U. S. 705, and Virginia v. Black, 538 U. S. 343 (2003). Neither of those decisions, however, addresses whether the First Amendment requires a particular mental state for threat prosecutions.
As Elonis admits, Watts expressly declined to address the mental state required under the First Amendment for a "true threat." See 394 U. S., at 707-708. True, the Court in Watts noted "grave doubts" about Raganksy's construction of "willfully" in the presidential threats statute. 394 U. S., at 707-708. But "grave doubts" do not make a holding, and that stray statement in Watts is entitled to no precedential force. If anything, Watts continued the long tradition of focusing on objective criteria in evaluating the mental requirement. See ibid.
The Court's fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Black concerned a Virginia cross-burning law that expressly required "`an intent to intimidate a person or group of persons,'" 538 U. S., at 347 (quoting Va. Code Ann. §18.2-423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that "any cross burning [w]as prima facie evidence of intent to intimidate." 538 U. S., at 347-348. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions "based solely on the fact of cross burning itself," including cross burnings in a play or at a political rally. Id., at 365-366 (plurality opinion); id., at 386 (Souter, J., concurring in judgment in part and dissenting in part) ("The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression"). The objective standard for threats under §875(c), however, helps to avoid this problem by "forc[ing] jurors to examine the circumstances in which a statement is made." Jeffries, 692 F. 3d, at 480.
In addition to requiring a departure from our precedents, adopting Elonis' view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit "`fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of "fighting words" turns on how the "ordinary citizen" would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he "makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended," and that the punishment of such statements "as a criminal act would raise no question under [the Constitution]," Cantwell v. Connecticut, 310 U. S. 296, 309-310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing "`fighting' words"); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) ("[T]he only intent required for conviction . . . was an intent to speak the words"). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment without proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120-124. And our precedents allow liability in tort for false statements about private persons on matters of private concern even if the speaker acted negligently with respect to the falsity of those statements. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 770, 773-775 (1986). I see no reason why we should give threats pride of place among unprotected speech.
* * *
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mentalstate requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority's ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today's decision rests.
I respectfully dissent.
7.2.6.3 III. Homicide 7.2.6.3 III. Homicide
7.2.6.3.1 III.A. Statutes 7.2.6.3.1 III.A. Statutes
7.2.6.3.1.1 CA Penal Code secs. 187 to 199 (2011) 7.2.6.3.1.1 CA Penal Code secs. 187 to 199 (2011)
CA Penal Code § 187
(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.
CA Penal Code § 188
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.
CA Penal Code § 189
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
As used in this section, "destructive device" means any destructive device as defined in Section 16460, and explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.
As used in this section, "weapon of mass destruction" means any item defined in Section 11417.
To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
CA Penal Code § 189.5
(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.
(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.
CA Penal Code § 190
(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:
(1) The defendant specifically intended to kill the peace officer.
(2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.
(3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.
(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.
(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.
(e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.
CA Penal Code § 190.03
(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.
(b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.
(c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.
(d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.
CA Penal Code § 190.05
(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.
(b) A prior prison term for murder for purposes of this section includes either of the following:
(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.
(2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.
(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.
(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.
(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).
(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.
If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.
(g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.
(h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.
However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.
Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.
In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
(1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.
(2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
(3) The presence or absence of any prior felony conviction.
(4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.
(7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
(8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.
(9) The age of the defendant at the time of the crime.
(10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.
(11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.
(i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
CA Penal Code § 190.1
A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:
(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.
(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.
(c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.
CA Penal Code § 190.2
(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.
(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.
(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim by means of lying in wait.
(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.
(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section 460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.
(18) The murder was intentional and involved the infliction of torture.
(19) The defendant intentionally killed the victim by the administration of poison.
(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.
(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.
(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.
The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.
CA Penal Code § 190.25
(a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.
(b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.
(c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
CA Penal Code § 190.3
If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.
However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.
Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.
The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.
In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.
(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.
CA Penal Code § 190.4
(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.
In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.
If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.
If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.
In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.
(b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.
If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.
(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.
(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.
(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.
The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).
CA Penal Code § 190.41
Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.
CA Penal Code § 190.5
(a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.
(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.
(c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.
CA Penal Code § 190.6
(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.
(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.
(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.
(d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.
CA Penal Code § 190.7
(a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:
(1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.
(2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.
(b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.
CA Penal Code § 190.8
(a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.
(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.
(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.
Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.
(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.
(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.
(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.
(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.
(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.
(i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.
(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.
(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.
CA Penal Code § 190.9
(a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).
(2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.
(b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.
(2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.
(c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.
CA Penal Code § 191
The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.
CA Penal Code §191.5
(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.
(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.
(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.
(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.
CA Penal Code § 192
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular--
(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.
This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
"Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
CA Penal Code § 192.5
Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:
(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.
CA Penal Code § 193
(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.
(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(c) Vehicular manslaughter is punishable as follows:
(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.
(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.
(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.
CA Penal Code § 193.5
Manslaughter committed during the operation of a vessel is punishable as follows:
(a) A violation of subdivision (a) of Section 192.5 is punishable by imprisonment in the state prison for 4, 6, or 10 years.
(b) A violation of subdivision (b) of Section 192.5 is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.
(c) A violation of subdivision (c) of Section 192.5 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.
(d) A violation of subdivision (d) of Section 192.5 is punishable by imprisonment in the county jail for not more than one year.
Penal Code § 193.7
A person convicted of a violation of subdivision (b) of Section 191.5 that occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code, or any combination thereof, that resulted in convictions, shall be designated as an habitual traffic offender subject to paragraph (3) of subdivision (e) of Section 14601.3 of the Vehicle Code, for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350 of the Vehicle Code.
Penal Code § 193.8
(a) An adult, who is the registered owner of a motor vehicle or in possession of a motor vehicle, shall not relinquish possession of the vehicle to a minor for the purpose of driving if the following conditions exist:
(1) The adult owner or person in possession of the vehicle knew or reasonably should have known that the minor was intoxicated at the time possession was relinquished.
(2) A petition was sustained or the minor was convicted of a violation of Section 23103 as specified in Section 23103.5, 23140, 23152, or 23153 of the Vehicle Code or a violation of Section 191.5 or subdivision (a) of Section 192.5.
(3) The minor does not otherwise have a lawful right to possession of the vehicle.
(b) The offense described in subdivision (a) shall not apply to commercial bailments, motor vehicle leases, or parking arrangements, whether or not for compensation, provided by hotels, motels, or food facilities for customers, guests, or other invitees thereof. For purposes of this subdivision, hotel and motel shall have the same meaning as in subdivision (b) of Section 25503.16 of the Business and Professions Code and food facility shall have the same meaning as in Section 113785 of the Health and Safety Code.
(c) If an adult is convicted of the offense described in subdivision (a), that person shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment. An adult convicted of the offense described in subdivision (a) shall not be subject to driver's license suspension or revocation or attendance at a licensed alcohol or drug education and counseling program for persons who drive under the influence.
CA Penal Code § 194
To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.
CA Penal Code § 195
Homicide is excusable in the following cases:
1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.
2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.
CA Penal Code § 196
Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.
CA Penal Code § 197
Homicide is also justifiable when committed by any person in any of the following cases:
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,
3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,
4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
CA Penal Code § 198
A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.
CA Penal Code § 198.5
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.
CA Penal Code § 199
The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.
7.2.6.3.1.2 PA Consol. Statutes, Title 18 Chapter 25 7.2.6.3.1.2 PA Consol. Statutes, Title 18 Chapter 25
Enactment. Chapter 25 was added December 6, 1972, P.L.1482, No.334, effective in six months.
Cross References. Chapter 25 is referred to in sections 911, 2602 of this title; section 5432 of Title 20 (Decedents, Estates and Fiduciaries); sections 2511, 5329, 6344 of Title 23 (Domestic Relations); sections 5985.1, 6302 of Title 42 (Judiciary and Judicial Procedure).
§ 2501. Criminal homicide.
(a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.
(b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.
Cross References. Section 2501 is referred to in section 5708 of this title; section 4503 of Title 42 (Judiciary and Judicial Procedure).
§ 2502. Murder.
(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
(d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Fireman." Includes any employee or member of a municipal fire department or volunteer fire company.
"Hijacking." Any unlawful or unauthorized seizure or exercise of control, by force or violence or threat of force or violence.
"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.
"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
"Principal." A person who is the actor or perpetrator of the crime.
(Mar. 26, 1974, P.L.213, No.46, eff. imd.; Apr. 28, 1978, P.L.84, No.39, eff. 60 days)
Cross References. Section 2502 is referred to in sections 2507, 2602, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); section 5329 of Title 23 (Domestic Relations); sections 1515, 5551, 9711.1, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 6124, 7122 of Title 61 (Prisons and Parole).
§ 2503. Voluntary manslaughter.
(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
(c) Grading.--Voluntary manslaughter is a felony of the first degree.
(Nov. 17, 1995, 1st Sp.Sess., P.L.1144, No.36, eff. 60 days)
1995 Amendment. Act 36, 1st Sp.Sess., amended subsec. (c).
Cross References. Section 2503 is referred to in sections 5708, 6105 of this title; sections 1515, 9711, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 7122 of Title 61 (Prisons and Parole).
§ 2504. Involuntary manslaughter.
(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
(b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.
(July 6, 1995, P.L.251, No.31, eff. 60 days)
Cross References. Section 2504 is referred to in sections 2711, 6105 of this title; section 1611 of Title 75 (Vehicles).
§ 2505. Causing or aiding suicide.
(a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.
(b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.
§ 2506. Drug delivery resulting in death.
(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.
(b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.
(c) Proof of sentencing.--(Deleted by amendment).
(d) Authority of court in sentencing.--(Deleted by amendment).
(e) Appeal by Commonwealth.--(Deleted by amendment).
(f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.
(Dec. 22, 1989, P.L.773, No.109, eff. imd.; Feb. 18, 1998, P.L.102, No.19, eff. 60 days; July 7, 2011, P.L.220, No.40, eff. 60 days)
Cross References. Section 2506 is referred to in section 3308 of this title; section 9714 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103 of Title 61 (Prisons and Parole).
§ 2507. Criminal homicide of law enforcement officer.
(a) Murder of a law enforcement officer of the first degree.--A person commits murder of a law enforcement officer of the first degree who intentionally kills a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer.
(b) Murder of a law enforcement officer of the second degree.--A person commits murder of a law enforcement officer of the second degree who engages as a principal or an accomplice in the perpetration of a felony during which a law enforcement officer is killed while in the performance of duty.
(c) Manslaughter of a law enforcement officer in the first degree.--A person commits a felony in the first degree who does any of the following:
(1) Without lawful justification kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing:
(i) the person is acting under a sudden and intense passion resulting from serious provocation by the victim killed; or
(ii) the person is acting under a sudden and intense passion resulting from serious provocation by another individual whom the actor endeavors to kill, but the person negligently or accidentally causes the death of the victim.
(2) Intentionally or knowingly kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing the person believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 (relating to general principles of justification), but his belief is unreasonable.
(d) Manslaughter of a law enforcement officer in the second degree.--A person commits a felony of the second degree who, as a direct result of the doing of an unlawful or lawful act in a reckless or grossly negligent manner, causes the death of a law enforcement officer while in the performance of duty and the person knew or should have known the victim was a law enforcement officer.
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Law enforcement officer." This term shall have the same meaning as the term "peace officer" is given under section 501 (relating to definitions).
"Perpetration of a felony." As defined under section 2502(d) (relating to murder).
(Oct. 17, 2008, P.L.1628, No.131, eff. 60 days)
2008 Amendment. Act 131 added section 2507.
Cross References. Section 2507 is referred to in section 9714 of Title 42 (Judiciary and Judicial Procedure).
7.2.6.3.1.3 NY Penal Law Article 125 7.2.6.3.1.3 NY Penal Law Article 125
§ 125.00 Homicide defined.
Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.
§ 125.05 Homicide, abortion and related offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.
2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.
3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.
§ 125.10 Criminally negligent homicide.
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony.
§ 125.11 Aggravated criminally negligent homicide.
A person is guilty of aggravated criminally negligent homicide when, with criminal negligence, he or she causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.
Aggravated criminally negligent homicide is a class C felony.
§ 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes the death of such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section.
Vehicular manslaughter in the second degree is a class D felony.
§ 125.13 Vehicular manslaughter in the first degree.
A person is guilty of vehicular manslaughter in the first degree when he or she commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:
(1) commits such crime while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in the state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;
(4) causes the death of more than one other person;
(5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or
(6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child. If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.
Vehicular manslaughter in the first degree is a class C felony.
§ 125.14 Aggravated vehicular homicide.
A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:
(1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crimes while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;
(4) causes the death of more than one other person;
(5) causes the death of one person and the serious physical injury of At least one other person;
(6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or
(7) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.
If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.
Aggravated vehicular homicide is a class B felony.
§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.
§ 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.
§ 125.21 Aggravated manslaughter in the second degree.
A person is guilty of aggravated manslaughter in the second degree when he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.
Aggravated manslaughter in the second degree is a class C felony.
§ 125.22 Aggravated manslaughter in the first degree.
A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or a peace officer, he or she causes the death of such officer or another police officer or peace officer; or
2. with intent to cause the death of a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer, he or she causes the death of such officer or another police officer or peace officer under circumstances which do not constitute murder because he or she acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to aggravated manslaughter in the first degree or manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.
Aggravated manslaughter in the first degree is a class B felony.
§ 125.25 Murder in the second degree.
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or
3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or
4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or
5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.
Murder in the second degree is a class A-I felony.
§ 125.26 Aggravated murder.
A person is guilty of aggravated murder when:
1. With intent to cause the death of another person, he or she causes the death of such person, or of a third person who was a person described in subparagraph (i), (ii) or (iii) of paragraph (a) of this subdivision engaged at the time of the killing in the course of performing his or her official duties; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or
(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; and (b) The defendant was more than eighteen years old at the time of the commission of the crime; or
2. (a) With intent to cause the death of a person less than fourteen years old, he or she causes the death of such person, and the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subdivision, "torture" means the intentional and depraved infliction of extreme physical pain that is separate and apart from the pain which otherwise would have been associated with such cause of death; and
(b) The defendant was more than eighteen years old at the time of the commission of the crime.
3. In any prosecution under subdivision one or two of this section, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the first degree, manslaughter in the first degree or any other crime except murder in the second degree; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the second degree, manslaughter in the second degree or any other crime except murder in the second degree.
Aggravated murder is a class A-I felony.
§ 125.27 Murder in the first degree.
A person is guilty of murder in the first degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or
(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or
(iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or
(v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph "immediate family member" means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or
(vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or
(vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or
(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or
(ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or
(x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or
(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or
(xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or
(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and
(b) The defendant was more than eighteen years old at the time of the commission of the crime.
2. In any prosecution under subdivision one, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.
Murder in the first degree is a class A-I felony.
§ 125.40 Abortion in the second degree.
A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.
Abortion in the second degree is a class E felony.
§ 125.55 Self-abortion in the first degree.
A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.
Self-abortion in the first degree is a class A misdemeanor.
§ 125.60 Issuing abortional articles.
A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.
Issuing abortional articles is a class B misdemeanor.
7.2.6.3.1.4. International Law Association Committee on Reparation for Victims of Armed Conflict, “Washington Conference Report,” 2014
7.2.6.3.2 III.B. Intentional Homicide 7.2.6.3.2 III.B. Intentional Homicide
7.2.6.3.2.1 III.B.i. First v. Second Degree Murder 7.2.6.3.2.1 III.B.i. First v. Second Degree Murder
There are many ways to murder someone. Over time, Anglo-American criminal systems have come to distinguish between degrees of murder. With such a weighty crime and potentially serious punishments, the instinct to subdivide the offense according to degrees of blameworthiness seems like a reasonable way to accommodate the “proportionality principle”—the idea that crimes of different levels of blameworthiness should be treated differently. The best-known distinction between types of murder is between first- and second-degree murder. The line between first- and second-degree murder is supposedly clear: premeditation. As the cases in this section suggest, however, defining premeditation can be difficult, and courts have taken different approaches. As you read these cases, consider also how the distinction between first- and second-degree murder serves the goals of criminal punishment. Which is more blameworthy, and thus more deserving of punishment as a matter of retribution? Who is more dangerous, and should be incapacitated longer, or permanently? Who can be deterred—and who can’t?
7.2.6.3.2.1.1 Commonwealth v. Carroll 7.2.6.3.2.1.1 Commonwealth v. Carroll
v.
Donald D. CARROLL, Jr., Appellant.
[412 Pa. 527] [194 A.2d 913] M. Barney Cohen, Harold Gondelman, Pittsburgh, for appellant.
Edward C. Boyle, Dist. Atty., George Ross, William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.
[412 Pa. 526] Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
[412 Pa. 527] BELL, Chief Justice.
The defendant, Carroll, pleaded guilty generally to an indictment charging him with the murder of his wife, and was tried by a Judge without a jury in the Court of Oyer and Terminer of Allegheny County. That Court found him guilty of first degree murder and sentenced him to life imprisonment. Following argument and denial of motions in arrest of judgment and for a new trial, defendant took this appeal. The only questions involved are thus stated by the appellant:
(1) 'Does not the evidence sustain a conviction no higher than murder in the second degree?
(2) 'Does not the evidence of defendant's good character, together with the testimony of medical experts, including the psychiatrist for the Behavior Clinic of Allegheny County, that the homicide was not premeditated or intentional, require[1] the Court below [412 Pa. 528] to fix the degree of guilt of defendant no higher than murder in the second degree?'
The defendant married the deceased in 1955, when he was serving in the Army in California. Subsequently he was stationed in Alabama, and later in Greenland. During the latter tour of duty, defendant's wife and two children lived with his parents in New Jersey. Because this arrangement proved incompatible, defendant returned to the United States on emergency leave in order to move his family to their own quarters. On his wife's insistence, defendant was forced first to secure a 'compassionate transfer' back to the States, and subsequently to resign from the Army in July of 1960, by which time he had attained the rank of Chief Warrant Officer. Defendant was a hard worker, earned a substantial salary and bore a very good reputation among his neighbors.
In 1958, decedent-wife suffered a fractured skull while attempting to leave defendant's car in the course of an argument. Allegedly this contributed to her mental disorder which was later diagnosed as a schizoid personality type. In 1959 she underwent psychiatric treatment at the Mental Hygiene Clinic in Aberdeen, Maryland. She complained of nervousness and told the examining doctor 'I feel like hurting my children.' This sentiment sometimes took the form of sadistic 'discipline' toward their very young children. Nevertheless, upon her discharge from the Clinic, the doctors considered her much improved. With this background we come to the immediate events of the crime.
In January, 1962, defendant was selected to attend an electronics school in Winston-Salem, North Carolina, for nine days. His wife greeted this news with violent argument. Immediately prior to his departure for Winston-Salem, at the suggestion and request of his wife, he put a loaded .22 calibre pistol on the [412 Pa. 529] window sill at the head of their common bed, so that she would feel safe. On the evening of January 16, 1962, defendant returned home and told his wife that he had been temporarily assigned to teach at a school in Chambersburg, which would necessitate his absence from home four nights out of seven for a ten [194 A.2d 914] week period. A violent and protracted argument ensued at the dinner table and continued until four o'clock in the morning.
Defendant's own statement after his arrest details the final moments before the crime: 'We went into the bedroom a little before 3 o'clock on Wednesday morning where we continued to argue in short bursts. Generally she laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.'[2]
Defendant's testimony at the trial elaborated this theme. He started to think about the children, 'seeing my older son's feet what happened to them. I could see the bruises on him and Michael's chin was split open, four stitches. I didn't know what to do. I wanted to help my boys. Sometime in there she said something in there, she called me some kind of name. I kept thinking of this. During this time I either thought or felt--I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun--I saw my hand move, the next thing--the only thing I can recollect after that is right after [412 Pa. 530] the shots or right during the shots I saw the gun in my hand just pointed at my wife's head. She was still lying on her back--I mean her side. I could smell the gunpowder and I could hear something--it sounded like running water. I didn't know what it was at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before. * * *'
'Q. At the time you shot her, Donald, were you fully aware and intend to do what you did?
'A. I don't know positively. All I remember hearing was two shots and feeling myself go cold all of a sudden.'
Shortly thereafter defendant wrapped his wife's body in a blanket, spread and sheets, tied them on with a piece of plastic clothesline and took her down to the cellar. He tried to clean up as well as he could. That night he took his wife's body, wrapped in a blanket with a rug over it to a desolate place near a trash dump. He then took the children to his parents' home in Magnolia, New Jersey. He was arrested the next Monday in Chambersburg where he had gone to his teaching assignment.
Although defendant's brief is voluminous, the narrow and only questions which he raises on this appeal are as hereinbefore quoted. Both are embodied in his contention that the crime amounted only to second degree murder and that his conviction should therefore be reduced to second degree or that a new trial should be granted.
The applicable principles of law are well settled, but because they are so frequently misunderstood or misapplied or overlooked, we deem it wise to restate them. Many of them are set forth and reaffirmed in Commonwealth v. Gooslin, 410 Pa. 285, pages 286, 288, 289, 189 A.2d 157, 158, where the Court said:
'* * * 'Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. 'Murder', * * * 'is defined as an [412 Pa. 531] unlawful killing of another with malice aforethought, express or implied.' The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate [and] premeditated killing, or any murder which shall be [194 A.2d 915] committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping],[3] is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of 1939, June 24, supra.[4]
"Malice express or implied is [the hallmark] the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Malice is present if the defendant had an intent to do the deceased serious bodily harm: Commonwealth v. Drum, supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125]. * * *
"'The test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial--is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, * * *. [citing numerous authorities].
"'* * * 'It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that [412 Pa. 532] of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict. [citing numerous authorities].''"'
'In Commonwealth v. Kravitz, 400 Pa. 198, page 208, 161 A.2d 861, page 865, the Court said: "'* * * Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. '* * * It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. [citing numerous authorities].'""
In Commonwealth v. Tyrrell, 405 Pa. 210, pages 212-213, 174 A.2d 852, 853, the Court said: 'The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being. Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Dorazio, 365 Pa. [291, 74 A.2d 125] supra; Commonwealth v. Malone, 354 Pa. [180, 47 A.2d 445] supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A.2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.'
The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth [412 Pa. 533] v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317.
[194 A.2d 916] It is well settled that a jury or a trial Court can believe all or a part of or none of a defendant's statements, confessions or testimony, or the testimony of any witness: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwalth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 supra; Commonwealth v. Donough, 377 Pa. 46, 50, 103 A.2d 694; Commonwealth v. Homeyer, 373 Pa. 150, 153, 94 A.2d 743; Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455; Commonwealth v. Shults, 221 Pa. 466, 70 A. 823.
It we consider only the evidence which is favorable to the Commonwealth, it is without the slightest doubt sufficient in law to prove first degree. However, even if we believe all of defendant's statements and testimony, there is no doubt that this killing constituted murder in the first degree. Defendant first urges that there was insufficient time for premeditation in the light of his good reputation. This is based on an isolated and oft repeated statement in Commonwealth v. Drum, 58 Pa. 9, 16, that "no time is too short for a wicked man to frame in his mind the scheme of murder." Defendant argues that, conversely, a long time is necessary to find premeditation in a 'good man.' We find no merit in defendant's analogy or contention. As Chief Justice MAXEY appropriately and correctly said in Commonwealth v. Earnest, 342 Pa. 544, pages 549-550, 21 A.2d 38, page 40: 'Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, wilful, deliberate and premeditated. * * * As Justice Agnew said in Com. v. Drum: 'The law fixes upon [412 Pa. 534] no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.''
Defendant further contends that the time and place of the crime, the enormous difficulty of removing and concealing the body, and the obvious lack of an escape plan, militate against and make a finding of premeditation legally impossible. This is a 'jury argument'; it is clear as crystal that such circumstances do not negate premeditation. This contention of defendant is likewise clearly devoid of merit.
Defendant's most earnestly pressed contention is that the psychiatrist's opinion of what defendant's state of mind must have been and was at the time of the crime, clearly establishes not only the lack but also the legal impossibility of premeditation. Dr. Davis, a psychiatrist of the Allegheny County Behavior Clinic, testified that defendant was 'for a number of years * * * passively going along with a situation which he * * * [was] not controlling and he * * * [was] not making any decisions, and finally a decision * * * [was] forced on him * * *. He had left the military to take this assignment, and he was averaging about nine thousand a year; he had a good job. He knew that if he didn't accept this teaching assignment in all probability he would be dismissed from the Government service, and at his age and his special training he didn't know whether he would be able to find employment. More critical to that was the fact that at this point, as we understand it, his wife issued an ultimatum that if he went and gave this training course she would leave him * * *. He was so dependent upon her he didn't want her to leave. He couldn't make up his mind what to do. He was trapped * * *.'
The doctor then gave his opinion that 'rage', 'desperation', and 'panic' produced 'an impulsive automatic [412 Pa. 535] reflex type of homicide, * * * as opposed to an intentional premeditated type of homicide. * * * Our feeling was that if this gun had fallen to the floor he wouldn't have been able to pick it up and consummate that homicide. And I think if he had to load the [194 A.2d 917] gun he wouldn't have done it. This is a matter of opinion, but this is our opinion about it.'
There are three answers to this contention. First, as we have hereinbefore stated, neither a Judge nor a jury has to believe all or any part of the testimony of the defendant or of any witness. Secondly, the opinion of the psychiatrists was based to a large extent upon statements made to them by the defendant, which need not be believed and which are in some instances opposed by the facts themselves. Thirdly, a psychiatrist's opinion of a defendant's impulse or lack of intent or state of mind is, in this class of case, entitled to very little weight, and this is especially so when defendant's own actions, or his testimony or confession, or the facts themselves, belie the opinion.
The rule regarding the weight of expert testimony in this class of case is well settled. '* * * '[E]xpert testimony is entitled to little weight as against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insufficient or (partly) erroneous facts or a feigned state of mind or an inaccurate past history, or upon unreasonable deductions, * * *.' [Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258; Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A.2d 472]' Commonwealth v. Jordan, 407 Pa. 575, 583, 181 A.2d 310, 314.
In Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98, we held that the jury was free to disregard expert psychiatric testimony that defendant was insane at the time of commission of the killing,--which would have acquitted the defendant under the M'Naghten Rule--in the face of testimony by lay witnesses [412 Pa. 536] who actually observed him and considered him to be sane at times when he was allegedly insane. Mr. Justice EAGEN, speaking for the Court, said (pages 259-260 of 401 Pa., page 107 of 164 A.2d): '* * * '* * * It must be kept in mind that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observations of his actions.'' See to the same effect: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728, supra; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287, supra.
Defendant's own statement after his arrest, upon which his counsel so strongly relies, as well as his testimony at his trial, clearly convict him of first degree murder and justify the finding and sentence of the Court below. Defendant himself described his actions at the time he killed his wife. From his own statements and from his own testimony, it is clear that, terribly provoked by his allegedly nagging, belligerent and sadistic wife,[5] defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife. There is no doubt that this was a wilful, deliberate and premeditated murder.
While defendant makes no contention that he was insane at the commission of the murder or at any time, what this Court said in Commonwealth v. Tyrrell, supra, 405 Pa. 210, pages 220-221, 174 A.2d 852, pages 856-857[6] is equally appropriate here:
'Defendant's psychiatrist did not testify that the defendant was insane. What he did say was that because defendant's wife frequently picked on him and just before the killing insulted or goaded him, defendant [412 Pa. 537] had an emotional impulse to kill her which he could not resist.
'* * * society would be almost completely unprotected from criminals if the [194 A.2d 918] law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree. In the times in which we are living, nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed with resultant emotional upset feelings and so-called blind impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determining criminal responsibility to the psychiatrist. In such event, the test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment. "* * * Only a short time ago that concept [of irresistible impulse] was emphatically presented as an example of the 'uniform' opinion of psychiatrists on criminal responsibility; and yet today, 'irresistible impulse' is rejected by most psychiatrists as unsound * * *' [Professor] Hall, 'Psychiatry and Criminal Responsibility,' 65 Yale L.J. 761, 762 (1956).' State of New Jersey v. Lucas, 30 N.J. 37, 152 A.2d 50, 68.'
Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.
Since this is a case of murder, we have carefully reviewed the record.[7] It is crystal clear, from the record, [412 Pa. 538] that defendant was justifiably convicted of murder in the first degree.
Judgment and sentence affirmed.
JONES and COHEN, JJ., concur in the result.
---------------
[1] Italics throughout, ours.
[2] When pressed on cross-examination defendant approximated that five minutes elapsed between his wife's last remark and the shooting.
[3] Also where death results from the malicious wrecking of a train. Act of June 24, 1939, P.L. 872, § 919, 18 P.S. § 4919.
[4] P.L. 872, as amended, § 701, 18 P.S. § 4701.
[5] While this picture of his wife is different from that depicted by her neighbors, if defendant's version is true, the remedy lies in a commutation by the Board of Pardons and not by a disregard of the law by the Courts.
[6] In the body of the Opinion and in the footnote.
[7] As required by the Act of February 15, 1870, P.L. 15, 19 P.S. § 1187.
7.2.6.3.2.1.2 State. v. Guthrie 7.2.6.3.2.1.2 State. v. Guthrie
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Dale Edward GUTHRIE, Defendant Below, Appellant.
Supreme Court of Appeals of West Virginia.
[171] Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.
Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. [164] [165] [166] [167] [168] [169]
[170] CLECKLEY, Justice:
The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.
I. FACTS AND PROCEDURAL BACKGROUND
It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.
The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.[1] The police officers [172] described him as calm and willing to cooperate.
It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.
The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.
In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.
A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.
It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.
II. DISCUSSION
In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below. [173]
A. Sufficiency of the Evidence
First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.
We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:
"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."
A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),[2] articulated, at least linguistically, a different standard of review under the United States Constitution.[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).
After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.[5] This standard is a strict one; a [174] defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.
Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:
"[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."
State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).
However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:
"The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....
"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).
The circumstantial evidence rule of Holland was reaffirmed in Jackson:
"Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).
Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 [175] N.E.2d 492, 502 (1991),[6] relying on the language in Holland, the Ohio court stated:
"Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."
These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.[8]
In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, [176] regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.
We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.
There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.[11]
The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.
After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations [177] in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.
B. Jury Instructions
The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."
The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.
1. Standard of Review
The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):
"The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion."
Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken [178] as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.
2. Adequacy of Jury Instructions as to the Elements of First Degree Murder
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.[17]
The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"[18] In its effort to define these terms, the trial court gave three instructions.[19] State's Instruction No. 8, commonly referred to as the Clifford instruction, stated:
"The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."
See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:
[179] "The Court instructs the jury that in order to constitute a `premeditated' murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).
The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.
At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an `arbitrary symbol' used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute.[21]
The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).
In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:
"`The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.'" (Emphasis added to last sentence).
In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to [180] the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:
"The terms `deliberate' and `premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law§ 73, at 563 (1972 ed.):"`To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.' (Footnotes omitted)
"But, as LaFave & Scott also point out: `The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.
Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:
"Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.
This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.
The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:
"Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of `premeditated' as used in the statute was essentially `knowing' and `intentional.' Since then, courts have consistently recognized that the mental process necessary to constitute `willful, deliberate and premeditated' murder can be accomplished very quickly or even in the proverbial `twinkling of an eye.' ... The achievement of a, mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language `willful, deliberate and premeditated' in W.Va. Code, 61-2-1 [1923] is that the killing be intentional" 172 W.Va. at 6, 302 S.E.2d at 75. (Emphasis added).
The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.
While many jurisdictions do not favor the distinction between first and second degree murder,[22] given the doctrine of separation of [181] powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law—a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.
Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder`s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:
"To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."
Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what [182] is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]
We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:
"Remaining true to an `intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation `special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).
Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.
Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:
"A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions§ 41.03, at 214, is:"`The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he [183] intended, is sufficient to support a conviction for first degree murder.'"
Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.
As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.
C. Misconduct of the Prosecuting Attorney
We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.[25]See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).
1. Disclosing the Possible Penalties
During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.
The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.
Both parties to this appeal seem to acknowledge that our cases are not entirely [184] consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:
"[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."
The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.[26]See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).
The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).[27]
[185] Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.[28]
We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:
"In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct.The same cannot be said with reference to the court's treatment of the Prosecutor's remark:"`When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.'"
159 W.Va. at 362, 222 S.E.2d at 306.
The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.
Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."
It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.
2. Questions Relating to the Defendant's Prejudices
During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with [186] the women on the jury and the one African-American juror.
The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.[31] Nevertheless, a curative instruction was not requested by either party and none was given.
Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility [187] of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.
Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:
"Although Mr. Perrill referred to Dr. Arrieta as `the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. `To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."
The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.[32]
Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.
The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.[34] This issue is in this case only because [188] the prosecution chose not to object to the inadmissible evidence.[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.
The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:
"In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."[36] (Footnote omitted).
We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.
The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.
Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance [189] in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:
"We have defined undue prejudice as `"a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.'"...
"... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).
The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).[37]
Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.
Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.
To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. [190] Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors—race, religion, gender, political ideology—when prohibited by our laws shall not play any role in our system of criminal justice.
3. Harmless Error Standard
Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.
The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.
In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an [191] improper statement that the defendant was guilty and urged the jury to "do its job").
Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.
In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.
However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.[42] The defendant [192] argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:
"`When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."
See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:
"`Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."
III. CONCLUSION
In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.[45]
Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.
Reversed and remanded.
[193] BROTHERTON and RECHT, JJ., did not participate.
MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.
WORKMAN, J., concurs and reserves the right to file a concurring opinion.
WORKMAN, Justice, concurring:
I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.
I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection[2] and contemplation.[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).
For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:
"`"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."`"
169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."
Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, [194] lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).
[1] The confession, which was read to the jury, stated, in part:
"I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's `Boy' and during the evening he referred to me as `Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said `that I had an "attitude problem."` It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."
[2] Rehearing denied by 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).
[3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).
While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
[4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).
[5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.
[6] Rehearing denied by 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991).
[7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).
[8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So.2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); People v. Johnson, 146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).
[9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.
[10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
[11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.
[12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).
[13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."
[14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:
"`When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."
[15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and `there is no presumption that they are familiar with the law.'" State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).
[16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.
[17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.
[18] As to the other offenses, the jury instruction stated:
"[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."
[19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."
[20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).
[21] W.Va.Code, 61-2-1, states, in part:
"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."
[22] The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.
[23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."
[24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activity—facts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.
[25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
[26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).
[27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995).
[28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.
[29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.
[30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:
"Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?
"A. No.
"Q. You never heard him say that, never heard him comment on that?
"A. No.
"Q. Did you ever hear him comment that whites are better than blacks?
"MR. CLINE: Objection, Your Honor. Move to approach the bench.
"A. No, he did not.
"THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.
* * * * * *
"(Conference at the bench)
"MR. BROWN: This is the psychological report.
"THE COURT: Is this Smith's report?
"MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and—
"THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.
* * * * * *
"MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.
"THE COURT: I'll let you get it in through Smith.
* * * * * *
"... You can ask him if he ever talked about blacks, talked about—Knock it off there.
* * * * * *
"... Yes, you can bring back Smith and Gibson.
"MR. CLINE: Note our objection and exception for the record.
"MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's—
* * * * * *
"(In open court)
"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?
"A. Not discussions, no.
"Q. Did you ever hear him express views on the Klu [sic] Klux Klan?
"A. From the news that he has heard on TV.
"Q. Did you ever hear him express any opinion about Hitler?
"A. No."
[31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).
[32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).
[33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.
[34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."
[35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."
[36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.
[37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).
[38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985).
[39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
[40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-67 (1946):
"If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."
[41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.
"It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).
[42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:
"MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, `Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.
"THE COURT: I think he said, `Isn't that too bad. Do you think it will snow', or something like that.
* * * * * *
"MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.
"MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much—
"THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."
Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.
[43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.
[44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).
[45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as `the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
[1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.
[2] The word "reflect" is defined by Webster's as "to think quietly and calmly."
[3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention."
7.2.6.3.2.1.3 State v. Brown 7.2.6.3.2.1.3 State v. Brown
STATE of Tennessee, Appellee,
v.
Mack Edward BROWN, Appellant.
Supreme Court of Tennessee, at Knoxville.
[533] Randall E. Reagan, Leslie A. Nassios, Knoxville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, James W. Milam, Asst. Atty. Gen., Nashville, for appellee.
OPINION
DAUGHTREY, Justice.
This capital case arose from the death of four-year-old Eddie Eugene Brown and the subsequent conviction of his father for first-degree murder, as well as for child neglect.[1] After careful review, we have reached the conclusion that the evidence introduced at trial is not sufficient to support a conviction for first-degree murder. We therefore hold that the defendant's conviction must be reduced to second-degree murder.
1. Factual Background
The victim in this case, Eddie Eugene Brown, was born in early February 1982, the son of defendant Mack Edward Brown and his co-defendant, Evajean Bell Brown, who were not living together at the time of Eddie's birth and were later divorced. Evajean was not able to nurse Eddie immediately after his birth because she was hospitalized with hypotoxemia.
According to his pediatrician, this hospitalization and inability to nurse may have contributed to Eddie's being, as the doctor described him, a "failure to thrive baby." When the physician first saw Eddie on March 17, 1982, at a little more than five weeks old, the infant was in good health but smaller than the median for his age. Mack and Evajean were still separated at that time, and relations between them eventually worsened to the point that Evajean asked the pediatrician to change Eddie's name on his records to Justin Michael Brown. Because Eddie had not begun to talk by age two-and-a-half, he was referred to the University of Tennessee Speech and Hearing Clinic. The clinic's report indicates that by age three years and four months, he was not yet toilet-trained and could speak single words, but not whole sentences. Evajean brought Eddie to see his pediatrician on November 5, 1984, because, as the doctor testified, she said he had fallen down fifteen carpeted stairs the night before. Although the physician found no injuries consistent with such a fall, he did note that Eddie's penis was red, swollen, and tender to the touch. His medical records do not give a reason for this condition. Eddie's last visit to his pediatrician's office was on October 16, 1985, [534] with his mother and father, who by that time had reconciled.
According to a Department of Human Services social worker who had investigated the Brown home, Eddie was a hyperactive child with a severe speech problem. She reported that he also had severe emotional and behavioral problems. As an example of his behavior, she reported that during her visit, he ran down the hall directly into a wall.
Defendant Mack Brown's relationship with Evajean Brown appears to have been influenced by his dependent personality, a condition confirmed by the diagnoses of the staff of the Middle Tennessee Mental Health Institute and the Helen Ross McNabb Center. In describing Mack and Evajean's relationship, Mack's mother stated that he appeared to do everything Evajean wanted him to do and that he seemed to be afraid of her. A witness who visited them when Eddie was taken to the hospital on April 10, 1986, indicated that they sat close to one another holding hands and that whenever Evajean got up, he followed her. Mack's mother testified that they remarried in the summer of 1985.
Mack had been living with his wife and his son for less than a year when Eddie died. The Brown's next-door neighbor testified that, at around 3:40 a.m. on April 10, 1986, she heard yelling and screaming in their apartment. She distinctly heard a man's voice say, "Shut up. Get your ass over here. Sit down. Shut up. I know what I'm doing." She also heard a woman's voice say, "Stop, don't do that. Leave me alone. Stop don't do that." She testified that the fight went on for 30 minutes and that she heard a sound which she described as a "thump, like something heavy hit the wall." The only other evidence introduced concerning the events of that morning was the tape of Evajean's call for an ambulance. At 8:59 a.m. she telephoned for help for her son, stating that he "fell down some steps and he's not breathing."
The paramedics who answered the call tried to revive Eddie but were unsuccessful. His heartbeat was reestablished at the hospital, but as it turned out, he was already clinically brain-dead. One of the treating nurses later testified that at that point, Eddie was being kept alive only for purposes of potential organ donation.
Various examinations indicated that the child had suffered two, and possibly three, skull fractures. The CT scan revealed a hairline fracture in the front right temporal portion of his skull, as well as a blood clot and swelling in that area of the head. The scan also revealed the possibility of a second fracture in the middle of the frontal bone.[2] Finally, blood coming from Eddie's ear indicated that he had a fracture at the base of his skull which had caused an injury to the middle ear. Although no basiliar skull fracture appeared on the X-rays or CT scan of Eddie's skull, expert testimony established that such fractures generally are not revealed in these ways.
The CT scan showed a cerebral edema, or swelling of the brain, which was more pronounced on the right side of the brain than the left, and which had shifted the midline of Eddie's brain toward the left. The pathologist who performed the autopsy noted the presence of vomit in Eddie's lungs and explained that swelling in the brain can cause vomiting. He theorized that repeated blows to Eddie's head caused cerebral hemorrhages and swelling. According to the expert, this pressure in the skull resulted in Eddie's aspiration of his own vomit and his ultimate death. He testified further that the swelling process could have taken as long as four or five hours to a day, or as little as 15 minutes.[3]
A neurological surgeon testified that Eddie's brain injuries were, at least in part, [535] consistent with contrecoup[4] injuries, which occur when the head is violently shaken back and forth. The surgeon explained that there is a limited amount of fluid between the brain and the skull. That fluid generally serves as a shock absorber, but when the skull and brain are moving at a sufficient velocity and the skull suddenly stops, the fluid is not an adequate buffer between the delicate brain tissue and the hard skull surface. As he described this phenomenon at trial, "when the skull stops the brain slaps up against it," resulting in severe bruising and swelling of the brain.
In addition to his cranial and cerebral injuries, Eddie had several internal injuries. When Eddie's internal organs were removed for donation, the county medical examiner observed hemorrhaging in the duodenum section of his intestine. He testified that such localized hemorrhaging was consistent with a blow by a fist to the upper portion of the abdomen. Additionally, blood was found in the child's stool and urine, and his liver enzymes were elevated. There was testimony to the effect that these conditions may have resulted from cardiac arrest, but that they are also consistent with blows to the abdomen, liver, and kidneys.
Finally, Eddie had bruises of varying ages on his face, scalp, ears, neck, chest, hips, legs, arms, buttocks, and scrotum. He had a large abrasion on his shoulder, scratches on his neck and face, and a round, partially healed wound on his big toe which, according to one of his treating nurses, was consistent with a cigarette burn.[5] He had lacerations on both his ears at the scalp. He had linear bruises consistent with being struck with a straight object. The autopsy revealed an old lesion at the base of his brain which was evidence of a head injury at least two weeks before his death. X-rays revealed a broken arm which had not been treated and which had occurred three to five weeks before his death. The injury to his arm was confirmed by a witness who had noticed his arm hanging limply and then later noticed it in a homemade sling.
The defendant's statement to the police verified the fact that Eddie's broken arm was never properly treated, but Mack Brown also told them that he had tried to help Eddie by making a splint for his arm himself. He explained that he did not take Eddie for medical treatment because he was terrified that no one would believe that he and his wife had not inflicted this injury on the child. He could not explain the old bruises on Eddie's body. He stated that although sometimes they disciplined Eddie by spanking him, they did attempt to discipline him in, as he described it, "alternative ways" such as sending him to his room to let him know that they were upset and wanted him to mind.
Brown's statement indicates that around two or three o'clock on the morning of April 10, 1986, he and his wife both spanked Eddie because Eddie had urinated and defecated on the floor. The defendant admitted to another spanking, after he had sent Eddie to bed, and after he and his wife had a fight over money. As the defendant described it, it was during this spanking that his "mood began to kind of snap and let go." He said that he remembered going to Eddie's bedroom and remembered ordering Evajean out of the room. Although he denied remembering anything other than spanking Eddie's bottom with the open part of his hand, he stated that he was afraid he had beaten Eddie during the time that everything "went blank." The only thing he clearly recalled before that point was Eddie "staring at [him] mean" and saying, "I hate you! I hate you!" He stated that his next memory was of going downstairs and hearing Eddie behind him, falling onto the landing and into the door.
When the police questioned the defendant, his right hand was badly swollen. He explained that several days prior to [536] April 10, he had injured his hand while working on his car and had sought medical treatment at Fort Sanders Hospital. They put a splint on his hand and gave him pain medication. He denied having struck Eddie with his right hand, stating that "[i]t hurts so bad there ain't no way." The hospital's records indicate that on April 3, the defendant's hand was x-rayed and splinted. The records do not indicate that there was any break in the skin on the hand.
With the consent of the defendant, the police searched the apartment and recovered numerous items stained with blood consistent with Eddie's blood type, including an adult pajama top, a brown paper bag from the living room floor, and several towels and wash cloths. Police also found a bandage under the kitchen sink which was stained with blood consistent with Eddie's blood type. The blood on this bandage material was on the outside near the adhesive tape, not on the inner surface, which would have been next to the skin of the person wearing the bandage. The pants the defendant was wearing at the time of his arrest also had blood stains on them that were consistent with Eddie's blood type. A number of other items collected from the apartment tested positive for human blood, but the type of blood could not be determined because there was too little blood or they had been washed. These items included the couch cover, a pillow case and sheets taken from Eddie's bed, paint chips from the wall in Eddie's room, a child's undershirt and socks, and a three-by-five inch section of the living room rug.
The defendant's low level of intellectual functioning has been evident in nearly every phase of his life. His mother's testimony indicated that, as a baby, he was slow in learning to walk, a condition she blamed on head injuries he might have sustained when he was delivered using forceps. At age 12, he was considered by school officials to be educably mentally retarded. His school records for 1964 indicate an IQ of 55, using a Lorge-Thorndike test. In 1966, while 14 years old and still in the third grade, he was tested again. His verbal score was 56 and his non-verbal score was 75, for a total score of 62. In 1968, his verbal score was 53 and his non-verbal score was 76, for a total score of 60. After his arrest, he was evaluated at Middle Tennessee Mental Health Institute and scored 75 on the Wexler Adult Intelligence Test. Because there was some evidence that the defendant might be malingering, the clinical psychologist who performed the test at MTMHI testified that he felt that the test results did not reflect the defendant's true abilities and suggested that a rough estimate of his capabilities might be five to ten points higher.[6]
The defendant also has a documented history of mental and emotional problems. On a neighbor's recommendation, he sought help through the Helen Ross McNabb Center between the time of his divorce and his remarriage. The staff there diagnosed him as having recurrent major depression and a dependent personality, a condition characterized by inadequacy in decision-making and a tendency to allow another person to accept the major responsibilities for his life. At that time, he showed symptoms such as crying, appetite loss, sleep problems and numbness, tingling and headaches, among other things. He had made suicidal gestures but never a serious attempt on his own life.
After his arrest he was placed at the Middle Tennessee Mental Health Institute for observation from June 10 through July 29, 1986. While there he was diagnosed as having a dysthymic disorder, that is, a depressive neurosis, and a dependent personality. Experts at MTMHI concluded that he was not psychotic and that although he did have a significant personality disorder and was probably borderline mentally retarded, the degree of his retardation was not sufficient to establish an insanity defense. This diagnosis was confirmed during the defendant's second visit to MTMHI from April 4 through May 6, 1988, for a competency evaluation. The staff reiterated that the defendant's handicapping [537] feature is his low intellect. These findings were also confirmed by the staff of the Helen Ross McNabb Center, which provided follow-up care to the defendant after his release from MTMHI.
2. Sufficiency of the Evidence
We are asked first to decide whether the evidence was sufficient to support the verdict of first-degree murder. The defendant argues principally that premeditation was not shown. He also contends that adequate weight was not given to the fact that another adult (Eddie's mother) was in the home and that Eddie had sustained injuries in the past while she had sole custody of him. Further, the defendant questions whether the state carried its burden of proving his sanity.
Our consideration of the sufficiency of the evidence is governed by the "well-settled rule that all conflicts in testimony, upon a conviction in the trial court, are resolved in favor of the State, and that upon appeal the State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may be drawn therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nevertheless, the record must demonstrate that the state carried its burden at trial of establishing that the homicide in question was, indeed, first-degree murder. In this case, we conclude, the prosecution failed to discharge its burden.
Addressing the least complex of the defendant's allegations first, we note that the question of relative criminal responsibility for the victim's death, as between Mack Brown and Evajean Brown, was essentially one of credibility for the jury's determination. We find no basis to disturb the jury's determination in this regard.
We also conclude that the state carried its burden on the issue of the defendant's sanity. The defense expert who reviewed the defendant's history and attempted to interview him concluded that the defendant met the criteria for the insanity defense in Tennessee because he was suffering from depression with psychotic features. Although the state's psychological experts conceded that the defendant was chronically depressive and might be mentally retarded, they concluded unequivocally that his condition did not rise to the level of insanity, under the standards of Graham v. State, 547 S.W.2d 531, 543 (Tenn. 1977). This conflict in testimony must be resolved in favor of the state's theory, based on the jury's verdict of guilt as approved by the trial judge. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).
But even though the defendant failed to establish insanity as an absolute defense to homicide in this case, his mental state was nevertheless relevant to the charge of first-degree murder, to the extent that it related to the necessary elements of that offense. The statute in effect at the time of the homicide in this case defined first-degree murder as follows:
Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, is murder in the first degree.
T.C.A. § 39-2-202(a) (1982). Based upon our review of the record, we conclude that the evidence in this case is insufficient to establish deliberation and premeditation. Hence, the defendant's conviction for first-degree murder cannot stand. However, we do find the evidence sufficient to sustain a conviction of second-degree murder.
At common law, there were no degrees of murder, but the tendency to establish a subdivision by statute took root relatively early in the development of American law. The pattern was set by a 1794 Pennsylvania statute that identified the more heinous kinds of murder as murder in the first degree, with all other murders deemed to be murder in the second degree. Some states have subdivided the offense into three or even four degrees of murder, but [538] since the enactment of the first such statute in 1829, Tennessee has maintained the distinction at two.[7] It is one which this Court has found to be "not only founded in mercy and humanity, but ... well fortified by reason."[8]Poole v. State, 61 Tenn. 289, 290 (1872).
From the beginning, the statutory definition of first-degree murder required the state to prove that "the killing [was] done willfully, that is, of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design must be formed to kill, before the act, by which the death is produced, is performed." Dale v. State, 18 Tenn. (10 Yer.) 551, 552 (1837) (emphasis added). Because conviction of second-degree murder also requires proof of intent and malice, the two distinctive elements of first-degree murder are deliberation and premeditation.
Even as early as 1872, however, prosecutors and judges had apparently fallen into the error of commingling these two elements by using the terms interchangeably. In Poole v. State, supra, for example, Justice Turney expounded upon the statutory distinction between deliberation and premeditation and the need to maintain them as separate elements of the first-degree murder:
It is the defining words of the statute that make the offenses [of first- and second-degree murder] and distinctions between them, definitions and distinctions in the control of the Legislature — control it has exercised, and the Courts are bound by it.
It is too late, after the words of the Act have been so long, uniformly and plainly construed, to attempt to make any two of its words have the same meaning — a meaning of equally forcible import — so as to excuse or do away with the employment of one in an indictment for murder in the first degree... .
[As we noted in Dale v. State] `... proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the conquering will, deliberation and premeditation of the party accused sought,' making a marked distinction and independence between the terms `deliberation' and `premeditation' and excluding the idea of the substitution of the one for the other, or of the tautology in their use.
Id. 61 Tenn. at 290-92 (emphasis added).
In Poole, the issue was whether the indictment, which was drawn in the language of common-law murder, was sufficient to charge statutory first-degree murder, given the fact that it included "no word or sentence charging a cool purpose, [deliberation being] an indispensable ingredient in murder in the first degree." Id. at 293. As Justice Turney noted, "[w]illfulness, malice and premeditation may exist without that cool purpose contemplated by the statute as construed," id., and if so, the result is second-degree murder, not first.
Intent to kill had long been the hallmark of common-law murder, and in distinguishing manslaughter from murder on the basis of intent, the courts recognized, in the words of an early Tennessee Supreme Court decision, that
[t]he law knows of no specific time within which an intent to kill must be formed so as to make it murder [rather than manslaughter]. If the will accompanies the act, a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the offence murder, as if it were a day or any other time.
[539] Anderson v. State, 2 Tenn. (2 Overt.) 6, 9 (1804). Of course, the Anderson opinion predates the statutory subdivision of murder into first and second degrees. But the temporal concept initially associated in that case with intent, i.e., that no definite period of time is required for the formation of intent, was eventually carried over and applied to the analysis of premeditation. Hence, by the time the opinion in Lewis v. State was announced in 1859, the Court had begun the process of commingling the concepts of intent, premeditation, and deliberation, as the following excerpt demonstrates:
The distinctive characteristic of murder in the first degree, is premeditation. This element is superadded, by the statute, to the common law definition of murder. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, may be conceived, and deliberately formed, in an instant. It is not necessary that it should have been conceived, or have pre-existed in the mind, any definite period of time anterior to its execution. It is sufficient that it preceded the assault, however short the interval. The length of time is not of the essence of this constituent of the offense. The purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment preceding the act by which the death is produced, than if it had been formed an hour before.
40 Tenn. (3 Head) 127, 147-48 (1859) (emphasis added).
It is this language ("premeditation may be formed in an instant") for which Lewis is frequently cited. See, e.g., Turner v. State, 119 Tenn. 663, 108 S.W. 1139, 1142 (1908). What is often overlooked is the following language, also taken from Lewis:
The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object to be accomplished — the end determined upon.
Lewis, 40 Tenn. at 148 (emphasis added).
Hence, perhaps the two most oft-repeated propositions with regard to the law of first-degree murder, that the essential ingredient of first-degree murder is premeditation and that premeditation may be formed in an instant, are only partially accurate, because they are rarely quoted in context. In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection. As noted in Rader v. State, 73 Tenn. 610, 619-20 (1880):
When the murder is not committed in the perpetration of, or attempt to perpetrate any of the felonies named in the [statute], then, in order to constitute murder in the first degree, it must be perpetrated by poison or lying in wait, or some other kind of willful, deliberate, malicious, and premeditated killing; that is to say, the deliberation and premeditation must be akin to the deliberation and premeditation manifested where the murder is by poison or lying in wait — the cool purpose must be formed and the deliberate intention conceived in the mind, in the absence of passion, to take the life of the person slain. Murder by poison or lying in wait, are given as instances of this sort of deliberate and premeditated killing, and in such cases no other evidence of the deliberation and premeditation is required; but where the murder is by other means, proof of deliberation and premeditation is required. It is true it has been held several times that the purpose need not be deliberated upon any particular length of time — it is enough if it precede the act, but in all such cases the purpose must be coolly formed, and not in passion, or, if formed in passion, it must be executed after the passion has had time to subside... . [I]f the purpose to kill is formed in passion ..., and executed [540] without time for the passion to cool, it is not murder in the first degree, but murder in the second degree.
(Emphasis added.)
The obvious point to be drawn from this discussion is that even if intent (or "purpose to kill") and premeditation ("design") may be formed in an instant, deliberation requires some period of reflection, during which the mind is "free from the influence of excitement, or passion." Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).
Despite admonitions in the opinions of the Tennessee Supreme Court during the nineteenth century and early part of the twentieth century regarding the necessity of maintaining a clear line of demarcation between first- and second-degree murder,[9] that line has been substantially blurred in later cases. The culprit appears to be the shortcutting of analysis, commonly along three or four different tracks.
One of those has been the same error decried by Justice Turney in 1872, i.e., the use of the terms "premeditation" and "deliberation" interchangeably, or sometimes collectively, to refer to the same concept. Thus, in Sikes v. State, 524 S.W.2d 483, 485 (Tenn. 1975), the Court said: "Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution." While this statement focuses on premeditation, nowhere in the brief discussion that follows is there any reference to the coolness of purpose or reflection that is required under the older cases to establish deliberation as a separate and distinct element of first-degree murder. But if deliberation was given little attention in Sikes, it was not even discussed in State v. Martin, 702 S.W.2d 560 (Tenn. 1985), perhaps because the litigants failed to raise the issue. In Martin, the Court confined its first-degree murder analysis to the elements of premeditation, willfulness, and malice, even though the theory of defense suggests that lack of proof of deliberation was equally relevant to the discussion. Id. at 562-63.
Another weakness in our more recent opinions is the tendency to overemphasize the speed with which premeditation may be formed. The cases convert the proposition that no specific amount of time between the formation of the design to kill and its execution is required to prove first-degree murder, into one that requires virtually no time lapse at all, overlooking the fact that while intent (and perhaps even premeditation) may indeed arise instantaneously, the very nature of deliberation requires time to reflect, a lack of impulse, and, as the older cases had held at least since 1837, a "cool purpose." Dale v. State, supra, 18 Tenn. at 552.
This trend toward a confusion of premeditation and deliberation has not been unique to Tennessee. It was for a time reflected by the commentators. In Clarke v. State, supra, 402 S.W.2d at 868, the Court quoted from the 1957 edition of Wharton's Criminal Law and Procedure as follows:
"Deliberation and premeditation involve a prior intention or design to do the act in question. It is not necessary, however, that this intention should have been conceived at any particular period of time, and it is sufficient that only a moment elapsed between the plan and its execution... ."
A more recent version of Wharton's Criminal Law, however, returns the discussion of premeditation and deliberation to its roots:
Although an intent to kill, without more, may support a prosecution for common law murder, such a murder ordinarily constitutes murder in the first degree only if the intent to kill is accompanied by premeditation and deliberation. `Premeditation' [541] is the process simply of thinking about a proposed killing before engaging in the homicidal conduct; and `deliberation' is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be visited upon the killer if and when apprehended. `Deliberation' is present if the thinking, i.e., the `premeditation,' is being done in such a cool mental state, under such circumstances, and for such a period of time as to permit a `careful weighing' of the proposed decision.
C. Torcia, Wharton's Criminal Law § 140 (14th ed. 1979) (emphasis added).
To the same effect is this analysis of the distinction between first- and second-degree murder found in 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986):
Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first-degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first-degree murder.
(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first-degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words `premeditate' and `deliberate' as they are used in connection with first-degree murder. Perhaps the best that can be said of `deliberation' is that it requires a cool mind that is capable of reflection, and of `premeditation' that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.
It is often said that premeditation and deliberation require only a `brief moment of thought' or a `matter of seconds,' and convictions for first-degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to `speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, ... destroys the statutory distinction between first and second-degree murder,' and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for `further thought, and a turning over in the mind.' (Footnotes omitted; emphasis added.)
One further development in Tennessee law has tended to blur the distinction between the essential elements of first- and second-degree murder, and that is the matter of evidence of "repeated blows" being used as circumstantial evidence of premeditation. Obviously, there may be legitimate first-degree murder cases in which there is no direct evidence of the perpetrator's state of mind. Since that state of mind is crucial to the establishment of the elements of the offense, the cases have long recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence. Relevant circumstances recognized by other courts around the country have included the fact "that a deadly weapon was used upon an unarmed victim; that the homicidal act was part of a conspiracy to kill persons of a particular class; that the killing was particularly cruel; that weapons with which to commit the homicide were procured; that the defendant made declarations of his intent to kill the victim; or that preparations were made [542] before the homicide for concealment of the crime, as by the digging of a grave." Wharton's Criminal Law, supra, at § 140. This list, although obviously not intended to be exclusive, is notable for the omission of "repeated blows" as circumstantial evidence of premeditation or deliberation.
In Tennessee, the use of repeated blows to establish the premeditation necessary to first-degree murder apparently traces to Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). There the Court, after noting that "[b]oth premeditation and deliberation may be inferred from the circumstances of a homicide," id., 231 S.W.2d at 711, went on to list a series of facts from which the Court concluded that the victim's death constituted first-degree murder. The first (but not the only) such circumstance mentioned was that "the deceased was not only struck and killed by a blow from an iron poker but apparently from the number and nature of his wounds, was beaten to death by a whole series of blows." Id. While the Bass court did not interpret the fact of repeated blows to be sufficient, in and of itself, to constitute premeditation and deliberation, subsequent cases have done so. In Houston v. State, for example, the only circumstance relied upon by the majority to establish premeditation and deliberation was the fact that the victim had sustained "repeated shots or blows." 593 S.W.2d 267, 273 (Tenn. 1980).
The culmination of this development is probably best represented by the analysis in State v. Martin, supra, 702 S.W.2d at 563, where the Court said:
Repeated blows or shots may support an inference of premeditation. See Houston v. State, 593 S.W.2d 267, 273 (Tenn. 1980). It is also possible that the jury could have found that during the struggle [with the victim] appellant decided to kill the victim, only a moment of time being required between the plan to kill and its execution. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).
Logically, of course, the fact that repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first-degree murder. Repeated blows can be delivered in the heat of passion, with no design or reflection. Only if such blows are inflicted as the result of premeditation and deliberation can they be said to prove first-degree murder.
In bringing three of the previously discussed threads together — recognition of "repeated blows" as sufficient evidence of premeditation, invocation of the rule that "premeditation can be formed in an instant," and omission of any discussion of deliberation as a necessary element of murder in the first degree — the Martin decision represents a substantial departure from the traditional law of homicide. It also undercuts older Tennessee cases such as Rader v. State, supra, 73 Tenn. at 620, which emphasized that intent to kill, if formed during a deadly struggle, would support only a conviction for second-degree murder, unless the state could show that premeditation and deliberation had preceded the struggle.
Since the opinion in Martin, the Tennessee General Assembly has rewritten the state's homicide statute. In addition to certain felony-murder provisions, T.C.A. § 39-13-202(a)(1) defines first-degree murder as "[a]n intentional, premeditated and deliberate killing of another." The mens rea elements of deliberation and premeditation have been further emphasized by the inclusion of definitional sections in T.C.A. § 39-13-201(b), as follows:
(1) "Deliberate act" means one performed with a cool purpose; and
(2) "Premeditated act" means one done after the exercise of reflection and judgment. Premeditation may include instances of homicide committed by poison or by lying in wait.
Without commenting on the validity of the result we reached in Martin v. State, we can only conclude that the legislature's enactment of the provisions set out above should have the effect of steering the courts back onto the right track in their analysis of the law of homicide. And although the 1989 legislation predates the offense in this case, we believe it is worth emphasis here, because it clearly represents [543] the legislature's intent that the courts of Tennessee should adhere to long-established rules of law and that we should abandon the modern tendency to muddle the line between first- and second-degree murder. Certainly, more than the mere fact of "repeated blows" must be shown to establish first-degree murder, and to the extent that the opinions in Houston and Martin can be read to hold otherwise, they are expressly overruled.
Moreover, even though the Sentencing Commission Comments to T.C.A. § 39-13-201 indicate that the definition in subsection (b)(2) "permits that `premeditation may be formed in an instant,'" citing Taylor v. State, 506 S.W.2d 175 (Tenn. Crim. App. 1973), we think it is time to recognize, as Justice Brock argued in Everett v. State, that "[m]ore than a split-second intention to kill is required to constitute premeditation," which "by its very nature is not instantaneous, but requires some time interval." 528 S.W.2d 25, 28-29 (Tenn. 1975) (Brock, J., dissenting; emphasis in original).
It is consistent with the murder statute and with case law in Tennessee to instruct the jury in a first-degree murder case that no specific period of time need elapse between the defendant's formulation of the design to kill and the execution of that plan, but we conclude that it is prudent to abandon an instruction that tells the jury that "premeditation may be formed in an instant." Such an instruction can only result in confusion, given the fact that the jury must also be charged on the law of deliberation. If it was not clear from the opinions emanating from this Court within the last half-century, it is now abundantly clear that the deliberation necessary to establish first-degree murder cannot be formed in an instant. It requires proof, as the Sentencing Commission Comment to § 39-13-201(b) further provides, that the homicide was "committed with `a cool purpose' and without passion or provocation," which would reduce the offense either to second-degree murder or to manslaughter, respectively.
This discussion leads us inevitably to the conclusion that Mack Brown's conviction for first-degree murder in this case cannot be sustained. The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. Witt v. State, 46 Tenn. (6 Cold.) 5, 8 (1868). The state bears the burden of proof on the issue of premeditation and deliberation sufficient to elevate the offense to first-degree murder. Bailey v. State, 479 S.W.2d 829, 833 (Tenn. Crim. App. 1972).
Here, there simply is no evidence in the record that in causing his son's death, Mack Brown acted with the premeditation and deliberation required to establish first-degree murder. There is proof, circumstantial in nature, that the defendant acted maliciously toward the child, in the heat of passion or anger,[10] and without adequate provocation — all of which would make him guilty of second-degree murder. The only possible legal basis upon which the state might argue that a first-degree conviction can be upheld in this case is the proof in the record that the victim had sustained "repeated blows." It was on this basis, and virtually no other, that we upheld a similar first-degree murder conviction for the death of a victim of prolonged child abuse in State v. LaChance, 524 S.W.2d 933 (Tenn. 1975). In view of our foregoing discussion concerning the shortcomings of such an analysis, we find it necessary to depart from much of the rationale underlying that decision.
In abandoning LaChance, we are following the lead of a sister state. In Midgett v. State, 729 S.W.2d 410 (Ark. 1987), the Arkansas Supreme Court was asked to affirm the first-degree murder conviction of a father who had killed his eight-year-old son by repeated blows of his fist. As was the case here, there was a shocking history of [544] physical abuse to the child, established both by eyewitness testimony and by proof of old bruises and healed fractures.
The Arkansas court faced a precedent much like LaChance in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). There the court had described the injuries sustained by the child victim and held, without more, that the "required mental state for first-degree murder can be inferred from the evidence of abuse, which is substantial." Id., 697 S.W.2d at 98. In confessing error in Burnett, the Midgett court noted:
The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son's death, he could have accomplished it in a previous beating... .
The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.
Midgett, 729 S.W.2d at 413-14.
The Arkansas court, in strengthening the requirements for proof of premeditation and deliberation in a first-degree murder case involving a victim of child abuse, found it necessary to overrule prior case law to the extent that it was inconsistent with the opinion in Midgett. We do the same here. Like the Midgett court, we do not condone the homicide in this case, or the sustained abuse of the defenseless victim, Eddie Brown. We simply hold that in order to sustain the defendant's conviction, the proof must conform to the statute. Because the state has failed to establish sufficient evidence of first-degree murder, we reduce the defendant's conviction to second-degree murder and remand the case for resentencing.
3. Motion to Suppress
The defendant filed a pretrial motion to suppress, in which he claimed that his initial statement to police was taken in violation of his Miranda rights and should therefore be held inadmissible. He also contended that because his subsequent statements to police (one given at his home and another at police headquarters) and his consent to search his apartment flowed from that initial statement, they must be considered the "fruit of the poisonous tree" and should likewise be suppressed.
At the suppression hearing, the proof showed that the defendant's first statement was obtained as a result of questioning by Officer Henry Wood at the East Tennessee Children's Hospital. Officer Wood arrived at the hospital at about 3:00 p.m. on April 10, 1986, the day of Eddie's admission to the hospital. He initially met Pam Self, a Department of Human Services social worker, who told him that the parents had brought the child in and that the doctors believed that the case involved child abuse. She described Eddie's injuries to him and told Wood that the doctors did not consider his injuries to be consistent with falling down a flight of stairs. Officer Wood then saw the child and was informed that he was brain-dead. He spoke first with Evajean Brown and then with Mack Brown. At approximately 3:30 p.m., Mack Brown gave a statement after being advised as follows:
I want you to understand your rights. You have the right to remain silent; anything you say can be used against you in a court of law. You have the right for an attorney to be present. You can stop answering questions at any time.
Brown was not informed that he had the right to have counsel appointed if he could not afford to hire counsel himself. The warnings given were, therefore, not technically in conformity with the requirements of the Miranda rule.
Officer Wood testified that he had no grounds upon which to arrest Mack Brown until Brown admitted that he had hit his son during this first interview. The arrest [545] warrant indicates that Wood placed Brown under arrest at 4:00 p.m.
Subsequent to the interview at the hospital, Officer Wood transported the defendant to his apartment and obtained his consent to conduct a search. During the course of the search, the defendant responded to questions by the police, who recorded his statements on the same tape as his initial statement obtained at the hospital. Items seized during this search included a wire coat hanger, a phone receiver, a man's slacks, shirt, and tennis shoes, wash cloths, and pills later identified as the non-narcotic drug Motrin. The search took an hour and a half, after which the defendant was transported to the Sheriff's Department at about 6:00 p.m.
At about 6:30 p.m., the defendant was fully advised of his rights in accordance with Miranda and signed a waiver of his rights. In response to police questioning, the defendant gave a statement that concluded at 7:15 p.m. The only further police contact with the defendant that evening occurred when the police talked to him in order to complete arrest forms at approximately 9:00 p.m.
At 9:30 p.m., Officer Woods spoke with Evajean Brown again at her request. Evajean recanted her prior statement that Eddie had sustained his injuries from a fall down stairs and placed the blame for Eddie's injuries on Mack Brown. Officer Wood's affidavit in support of his request for a search warrant indicates that Evajean Brown told him she witnessed several episodes during which Mack Brown beat and kicked Eddie Brown during the evening of April 9 and the early morning of April 10. She told Officer Wood that these beatings took place both upstairs and downstairs in their apartment.
Based on Officer Wood's affidavit, a search warrant was issued on April 16 for the Browns' apartment. This affidavit contains information obtained from all stages of Officer Wood's investigation, including the statements of the social worker and of the Browns at the hospital, Officer Wood's earlier observations in the Browns' apartment, the statement given by the defendant at the Sheriff's office at 6:30 on April 10, and the statements made by Evajean Brown later that evening. During the course of the search conducted pursuant to this search warrant, the police seized some 31 items with varying degrees of relevance to the issues in dispute at trial.
The trial court suppressed the statements obtained from the defendant at the hospital and in his apartment, but held that the defendant's consent to the search of his apartment was voluntarily given and refused to suppress the evidence seized during that search. The court also held that the statement given at 6:30 p.m. on April 10 was admissible because it was voluntarily given after a proper administration of Miranda warnings and a waiver of rights. Further, the trial judge held the search warrant to be proper and suppressed only a few items, the seizure of which he held to have exceeded the scope of the warrant.
The defendant now argues that because the initial statement obtained at the hospital was taken without full Miranda warnings, all subsequent evidence was obtained as a result of this initial statement and should have been excluded under a "fruit of the poisonous tree" theory. The defendant cites Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), United States v. Smith, 730 F.2d 1052, 1056 (6th Cir.1984), and State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989), as authority for this proposition.
The state argues in response that the failure by police to give the defendant adequate Miranda warnings prior to questioning him at the hospital may render the resulting statement inadmissible, but that the error by police has no effect on the validity of the defendant's subsequent consent to search or on the admissibility of his later statements to police. In this regard, the state relies on the United States Supreme Court's opinion in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), for the proposition that an error made by police officers in administering Miranda warnings does not require the suppression of a subsequent statement, if the record establishes that the statement is [546] "knowingly and voluntarily made." Id. 470 U.S. at 309, 105 S.Ct. at 1293.
We have reviewed the record of the suppression hearing carefully, and we conclude that the rule in Elstad is inapplicable to the facts in this case because there was no violation of Miranda with regard to the defendant's initial statement at the hospital.
The prosecution conceded from the outset that the warnings given to Mack Brown at the hospital were technically deficient. The assistant district attorney argued, however, that at the time he gave the statement, the defendant was not "in custody," as that term is used in Miranda, and that the warnings were therefore unnecessary. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.")
The proof shows that when Officer Wood first questioned the defendant and his wife, he knew that hospital personnel suspected child abuse, and he knew that the victim was considered brain-dead as a result. Although the circumstances pointed to the Browns as the perpetrators of the abuse, Officer Wood testified that Mack Brown was not in custody at the time of the interview, and that there was not a sufficient basis upon which to detain or arrest him until he admitted hitting the child. Asked what he would have done if the defendant had not implicated himself in the initial interview, Officer Wood replied that he would have had to continue the investigation. Without the benefit of medical reports, other corroborating evidence of abuse, or an incriminating statement by one or both of the Browns, there simply was not sufficient evidence upon which to determine whether Mack Brown was a suspect, a witness, or neither. Once Brown did implicate himself, Officer Wood made a warrantless arrest. From that point forward, the defendant was clearly not free to leave; but prior to his 4:00 p.m. arrest, there is no objective evidence that he was "in custody."
Despite the prosecutor's argument that Brown was not subjected to custodial interrogation at the hospital and that the failure to give proper Miranda warnings was therefore immaterial, the trial judge ultimately ruled that the statement given at the hospital was not admissible. At the conclusion of the suppression hearing, the trial judge noted that "the defendant was, in effect, taken into custody some time around 4 o'clock," which was after the initial statement was made. After taking the motion to suppress under advisement, however, the trial judge ruled two days later that the statement was inadmissible because the investigation was "focused on the defendant" at the time it was made. In response to the prosecutor's attempt to point out that "focus is not the law in this state,"[11] the trial judge replied, "Well, I won't allow that first statement anyway." No other reason for suppression was offered.
In view of the trial judge's earlier finding that the defendant was not actually "in custody" until 4:00 p.m., after the statement at the hospital was given, we conclude that the court's ruling on the admissibility of that statement was erroneous. To the extent that the defendant made incriminating statements at his apartment a short time later, while he was in custody but had not yet had the benefit of proper Miranda warnings, those statements were properly suppressed by the trial judge. However, we cannot find from the record before us that there was any relationship between statements made by the defendant during the initial search of the apartment and the formal statement that he gave at police headquarters after executing a written waiver of his Miranda rights.
In State v. Smith, 834 S.W.2d 915 (Tenn. 1992), we held that "after illegally [547] obtaining an incriminating statement from a defendant, [the state] must establish that [any] subsequent confession was given freely and voluntarily and that the constitutional right to be free from self-incrimination was not waived due solely to the psychological pressures resulting from giving the previous statement." Id. at 921. In this case, the state carried its burden as to the voluntariness of the last of Mack's three incriminating statements. We therefore conclude that his 6:30 p.m. statement was fully admissible.
Nor do we find any error in regard to the validity of the search of the Browns' apartment that was conducted by police on the afternoon of April 10. That search was based on consent obtained from the defendant.
In order to pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769 (1967). In this case, the police obtained the defendant's verbal permission to search his home, and Brown signed a consent form that explicitly makes reference to his right to refuse to consent to a search. Without some further evidence relevant to the questions of voluntariness, we find no basis upon which to invalidate the resulting search or to suppress the evidence that was seized by police at that time.
Finally, we agree with the trial court that the ensuing search warrant was properly issued. Sufficient evidence was presented from which the magistrate could determine that there was probable cause for believing that the items listed were actually located in the Browns' apartment. See Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923). The affidavit of Officer Wood, on which the magistrate determined that probable cause for the search existed, made reference to Officer Wood's personal observations of the victim's bleeding injuries and the blood oozing from his ear; his earlier observations of bed linens in the victim's room stained with what appears to be blood, as well as a sponge mop and dishpan of water in the living room; his conversation with Mack Brown at 6:30 p.m. on April 10, in which the defendant admitted striking the victim and attempting to clean up blood; and his conversation with Evajean Brown, in which she stated that her husband beat Eddie both upstairs and downstairs on the night he died. The search warrant authorized a search for "blood stains and a mop, dishpan and water containing human blood ... located at Apartment 62, Cedar Springs Apartments." There were ample grounds, pursuant to T.C.A. §§ 40-6-101 et seq., for the issuance of a search warrant to recover these items.
4. Discovery Dispute
The defendant challenges the trial court's order that counsel for Mack Brown and counsel for Evajean Brown could not share the information obtained from the state by the discovery motion filed by counsel for Evajean Brown pursuant to Rule 16 of Tennessee Rules of Criminal Procedure. Further, the defendant asserts that the trial court erred in prohibiting counsel for Mack Brown from viewing the information in the possession of counsel for Evajean Brown after all proceedings concerning her were complete.
Mack and Evajean Brown were jointly indicted but were represented by separate counsel. Counsel for Evajean Brown requested discovery from the state pursuant to Rule 16(a)(1)(C) and (D) of the Tennessee Rules of Criminal Procedure. This request triggered the state's right to reciprocal discovery. Id. However, counsel for Mack Brown did not request discovery under this rule. On April 14, 1987, the trial court entered a blanket order prohibiting counsel for Evajean Brown and counsel for Mack Brown from transferring any items between themselves that had been received from the state pursuant to the single Rule 16 discovery request filed on Evajean Brown's behalf. Counsel for Mack Brown filed his objection to the order on April 20, 1987.
Mack Brown's motion to sever, which was filed on April 30, 1987, was granted by order filed May 5, 1987. Evajean Brown's trial, which began on September 14, 1987, [548] ended in a mistrial. The Court of Criminal Appeals later held that Evajean Brown could not be retried because of double jeopardy principles. State of Tennessee v. Evajean Brown, (Tenn. Crim. App. Knoxville, Dec. 20, 1988), 1988 WL 136600, perm. app. denied, May 8, 1989.
After these events, counsel for Mack Brown moved the trial court to rescind the order of April 14, 1987, but the trial court refused to allow counsel for Mack Brown to receive any information from Evajean Brown's counsel that had originated with the state, unless Mack Brown consented to reciprocal discovery by the state. Counsel for Mack Brown did not request that the information in question be reviewed by the trial court or submitted under seal for appellate review.
The state insists that the defendant improperly attempted to gain the benefit of Evajean Brown's full discovery motion while denying the state the reciprocal discovery to which it would have been entitled had he filed for Rule 16 discovery himself. We conclude that the prosecution has overstated the case to some extent. Trial courts, to be sure, have the discretion to enter orders necessary to insure compliance with Rule 16. Cf. State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App. 1985); State v. Vilvarajah, 735 S.W.2d 837 (Tenn. Crim. App. 1987). However, to do so, reciprocal discovery must have already been triggered. Id. In this case, because the disclosure of items in the possession of counsel for Evajean Brown would not necessarily have triggered reciprocal discovery as to Mack Brown, the trial court's order should have been more selective with regard to disclosure.
Reciprocal discovery would only have been triggered if, by the disclosure of the items held by counsel for Evajean Brown, Mack Brown had gained access to information he could have gotten by filing his own request for full Rule 16 discovery. But, Evajean Brown's request would only result in discovery by her of items which were material to the preparation of her own defense, intended for use by the state in its case in chief against her, or obtained from or belonging to her. T.R.Crim.P. Rule 16(a)(1)(C). Hence, items subject to full Rule 16 discovery by Mack Brown would not necessarily have been subject to discovery by Evajean Brown. Obviously, disclosure of Evajean Brown's holdings would not have equated with full Rule 16 discovery by Mack Brown.
The importance of unrestricted discovery in preparation for trial is obvious. Indeed, a prosecutor's failure to comply with discovery can contribute to a finding of reversible error. State v. Benson, 645 S.W.2d 423 (Tenn. Crim. App. 1983). However, the burden rests on the defense to show the degree to which the impediments to discovery hindered trial preparation and defense at trial. Because of the failure of defense counsel to include the materials they sought from counsel for Evajean Brown in the record, we have no way of determining whether access to these materials would have had an impact on the outcome of the trial. Without this determination, we cannot find reversible error.
5. Motion for a Morgan Hearing
The defendant insists that the trial court erred in denying the defendant's motion for a hearing pursuant to State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). At the time of trial in this case, the decision to hold such a hearing rested solely in the discretion of the trial court. State v. Martin, 642 S.W.2d 720 (Tenn. 1982). In view of the fact that there was no indication that the defendant would testify or that he might have prior convictions that could be used to impeach his testimony, we find no abuse of discretion in the trial court's decision not to hold a Morgan hearing.
6. Amendment of the Indictment
The defendant next argues that his right to a fair trial was violated when the trial judge granted the state's motion to remove the word "intentionally" from the first-degree murder count returned against him. In view of the fact that we have reversed the defendant's conviction on this count, we hold that the question has been rendered moot.
[549]
7. Jury Selection
The defendant questions the excusal for cause or the failure to allow such an excusal for cause of several prospective jurors. These arguments are based on two points: the jurors' exposure to publicity about the case and the jurors' statements when questioned about their ability to follow the law as it relates to the imposition of the death penalty. Because the validity of the death penalty is no longer at issue in this case, the latter point is moot.
Moreover, we have reviewed the record of the selection of this jury and find no error with regard to the first point. Jurors need not be totally ignorant of the facts of the case on which they sit, and may sit on a case even if they have formed an opinion on the merits of the case, if they are able to set aside that opinion and render a verdict based on the evidence presented in court. State v. Sammons, 656 S.W.2d 862, 869 (Tenn. Crim. App. 1982). This determination of impartiality is a matter for the discretion of the trial judge. Id.
8. Opinion Testimony
The defendant asserts that the trial court erred in allowing certain witnesses to testify outside the scope of their knowledge or expertise. Essentially, the defendant argues that witnesses not properly qualified as experts were allowed to testify as to their opinions in violation of the long-standing principles set forth in Cumberland Telegraph & Telephone Co. v. Dooley, 110 Tenn. 104, 72 S.W. 457 (1903), and formalized in Rule 701 of the Tennessee Rules of Evidence. Further, the defendant argues that otherwise properly qualified expert witnesses were improperly allowed to testify outside the area of expertise in which they had been qualified to testify. See State v. Wright, 756 S.W.2d 669 (Tenn. 1988).
The defendant takes issue specifically with the testimony of Leon Miller (the paramedic who attempted to resuscitate Eddie) about the cause of bruises around Eddie's eyes and the length of time it would take for these bruises to develop. Miller identified Exhibit #2 as being a photograph of the child whom he attempted to revive. He then voluntarily stated that the photograph did not show the child's "coon eyes" as distinctly as they appeared when he treated him. He managed to testify that bruising around the eyes is indicative of skull trauma before defense counsel objected to his testimony. The trial court overruled this objection, as well as defense counsel's later objection to Miller's testimony that he understood that such bruising could take two to seven hours to develop.
Miller testified that on April 10, 1986, he was a paramedic with an ambulance company. To become a paramedic, he recounted, he initially worked as an emergency medical technician doing basic life support such as cardiopulmonary resuscitation and mouth-to-mouth resuscitation. As a paramedic he was qualified, after approximately two years further training, to do more advanced types of life support. No motion was made to have Miller qualified as an expert in any field, and no cross-examination in voir dire of his expert qualifications was conducted.
The defendant also takes issue with the testimony of Mary Ann Purvis (a nurse involved in Eddie's care at the hospital) about an injury on Eddie's left big toe. Purvis testified that in her opinion the injury was caused by a cigarette burn. After defense counsel objected, the state elicited testimony that her opinion was based on her prior experiences working in an emergency room for six years, where, she said, she had seen cigarette burns of this nature on occasions "too numerous to count." As with Miller, there was no voir dire conducted to establish Purvis's expert qualifications, and no motion was made to have her qualified as an expert in any field.
The distinction between an expert and a non-expert witness is that a non-expert witness's testimony results from a process of reasoning familiar in everyday life and an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field. Phillips v. Tidwell, 26 Tenn. App. 543, 174 S.W.2d 472, 477 (1943). The determination of whether a [550] witness is qualified to give expert testimony lies in the sound discretion of the trial court. See Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323, 328 (Tenn. App. 1980).
In this case we are constrained to view both Miller and Purvis as non-expert lay witnesses, if for no reason other than the fact that the record is devoid of a judicial determination of their areas of expertise, or even a motion for such a determination. On such an underdeveloped record, we cannot hold that Miller and Purvis were qualified to give testimony that arguably required special expertise.
Generally, non-expert witnesses must confine their testimony to a narration of the facts based on first-hand knowledge and avoid stating mere personal opinions or their conclusions or opinions regarding the facts about which they have testified. Blackburn v. Murphy, 737 S.W.2d 529, 531 (Tenn. 1987). This rule preserves the province of the jury as the fact-finding body designated to draw such conclusions as the facts warrant. Id. An exception to this general rule exists where testimony in an opinion form describes the witness's observations in the only way in which they can be clearly described, id. at 532, such as testimony that a footprint in snow looked like someone had slipped, National Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935), or that a substance appeared to be blood. State v. Mabon, 648 S.W.2d 271, 274 (Tenn. Crim. App. 1982). We conclude that the nurse's testimony that the injury on the victim's foot looked like a cigarette burn arguably falls into this exception. It follows that witness Purvis's testimony was properly admitted.
On the other hand, the non-expert testimony presented by the paramedic, Miller, was technically inadmissible. His opinion as to the source of Eddie's bruised face does not fall within the exception for opinion testimony used to describe observations such as those in Follett or Mabon. His conclusory opinion was not the type of opinion testimony that lay witnesses should be allowed to give, but rather called for specialized skill or expertise. Because Miller was not qualified to give expert opinion testimony, his testimony should not have been permitted. We cannot, however, hold this to be reversible error. There was ample evidence of skull trauma without Miller's reference to "coon eyes."
With respect to those witnesses who were properly qualified as experts but who the defendant alleges were allowed to testify outside their field of expertise, we have reviewed the record and find no error.
9. Admissibility of Extrajudicial Statements
The defendant asserts that the trial court erred in allowing the testimony of witnesses who said that the Browns had told them Eddie sustained his injuries in a fall downstairs. Both of the witnesses who testified to this effect spoke with Evajean and Mack Brown at the same time and could not remember which one of them said that Eddie fell down the stairs. The defendant contends that this testimony was inadmissible because the witnesses could not say with certainty that Mack Brown made the statement in question.
The defendant erroneously relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in contending that this evidence should have been excluded. The defendant asserts that the use of these statements at trial was akin to the use, at trial, of a co-defendant's confession containing statements tending to incriminate the non-confessing defendant. The theory for the exclusion of such confessions under Bruton is that the confrontation clause of the United States Constitution is violated when such a confession of a co-defendant (who denies the confession or does not testify) is admitted into evidence, because the inculpated non-confessing defendant is denied the opportunity to cross-examine the maker of the inculpating statements.
This case is distinguishable from the problem addressed in Bruton. Although indicted together, the Browns were tried separately. The statements are not in the nature of a confession, and they do not [551] facially indicate that at the time they were made Evajean Brown blamed Mack Brown for Eddie's death. At most, they indicate that Mack and Evajean Brown acted together to try to conceal the true source of Eddie's injuries. Mack Brown's rights under the confrontation clause were not violated, because he had the opportunity to cross-examine the witnesses on the crucial issue of whether these statements were made and, if so, whether he was himself present and aware of the effort to explain Eddie's injuries.
These statements were certainly relevant, not because of their specific content, but because their very existence indicates that an attempt was made to explain away the source of Eddie's injuries. Moreover, there is no hearsay problem. A statement introduced to prove only that it was made, regardless of the truth or falsity of the statement, does not violate the rule against hearsay. Cannon v. Chadwell, 25 Tenn. App. 42, 150 S.W.2d 710, 712 (1941).
10. Admissibility of Photographs
The defendant contends that the trial court erred in admitting various photographs of the victim's body and in allowing these photographs to be presented repeatedly to the jury. Although the defendant concedes that the photographs may be relevant and material to establish the elements of the offense, State v. Harbison, 704 S.W.2d 314, 317-318 (Tenn. 1986), he argues that in this case the prejudicial effect of the photographs substantially outweighs their probative value, under the standards of State v. Banks, 564 S.W.2d 947 (Tenn. 1978).
Nine close-up color photographs of Eddie's body were introduced and presented to the jury. Exhibit #2 shows Eddie's face and the front of his right ear. Exhibit # 4 shows the right side of Eddie's head with a hand folding the top of his right ear over to expose the lacerations behind and above his right ear. Exhibit # 5 is a photograph of Eddie's body from the bottom of his rib cage to just above his knees, showing bruises on his body and his genitals. Exhibit # 6 shows the bruises on Eddie's lower back and buttocks. Exhibit # 12 shows Eddie's left foot and left leg from just below the knee. This photograph depicts the injury on Eddie's left big toe. Exhibit # 13 shows the left side of Eddie's face, his left ear and the top of his chest. Exhibit # 14 shows the back of Eddie's head and neck as his body is lying on its right side. This photograph shows the injuries to his neck, his left shoulder blade, the back of his left ear and the back of his right shoulder. Exhibit # 15 shows Eddie's body from the waist down to just above the right knee. In this photograph, Eddie is wearing a diaper and his right leg is bent at the hip to show the side and back of his leg. Exhibit # 15 shows Eddie's neck, chest, and left arm to just below his elbow.
Each of these photographs is clearly relevant and admissible as evidence of the brutality of the attack and the extent of the force used against the victim, from which the jury could infer malice, either express or implied. State v. Banks, supra, 564 S.W.2d at 950. Each is a unique representation of a different portion of the victim's body. No two photographs depict the same injuries. Although oral testimony was also presented, graphically describing the injuries independent of these photographs, we cannot say that there was a clear showing of abuse of discretion in the admission of these photographs. Id. at 949.
The defendant also argues that, even if the photographs were relevant and admissible, their repeated presentation to the jury during the testimony of different witnesses resulted in prejudice that outweighed the probative value of their repeated use. In State v. Banks, supra, 564 S.W.2d at 951, we adopted Rule 403 of the Federal Rules of Evidence, which provides that even relevant evidence should be excluded if its prejudicial effect substantially outweighs its probative value. Rule 403 further provides that probative value may be outweighed by the needless presentation of cumulative evidence. Thus, the cumulative effect of the repeated presentation of the same photographs could constitute prejudice outweighing their probative value, [552] even if an isolated photograph was otherwise admissible.
This determination rests in the sound discretion of the trial judge, however, as does the determination to admit or limit any cumulative evidence. See Shields v. State, 197 Tenn. 83, 270 S.W.2d 367 (1954); State v. Reynolds, 666 S.W.2d 476 (Tenn. Crim. App. 1984). In this case, the record does not indicate an abuse of discretion in the admission of the photographs in question.
11. Admissibility of Other Exhibits
The defendant complains about the admission of certain items of physical evidence, on the grounds that the state did not establish the relevance of this evidence and that the trial judge should have excluded it based on its prejudicial impact on the jury. We have reviewed this evidence and find no error in its admission. The paper bag containing vomit was relevant in light of testimony that the autopsy of Eddie's lungs revealed that he had aspirated vomit. Likewise the other items complained of — the mop, dishpan, and water, and the items of clothing — were relevant given the defendant's statement that he had attempted to clean up after Eddie had urinated, defecated, and bled on the floor.
12. Limitations on Expert Testimony
The defendant alleges that the trial judge abused his discretion by restricting the testimony of defense witness Dr. Eric Engum. Engum, a clinical psychologist, testified during the guilt phase of the trial in support of the defendant's insanity theory and therefore touched on the defendant's mental retardation. During the state's cross-examination, the trial court admonished Engum on three occasions to respond to the questions without volunteering additional testimony. When the defense objected to the second admonition, requesting that Engum be allowed to explain his responses to the prosecutor's questions, the trial judge responded:
He can explain if he needs to explain, but I don't want all of this in the record. This jury doesn't need to hear this. Proceed.
In making yet another admonition, the trial judge said, "Doctor, this is the third time. I've warned you. I will not warn you one more time without some action."
The trial court must be given reasonable latitude in controlling the course of the trial. Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323 (Tenn. App. 1980). Having reviewed the entire record of this case, we cannot say that the trial judge abused his discretion in the manner in which he directed the course of Engum's testimony. If the trial judge did not consistently maintain a tone of patient impartiality toward a particular witness, as the defense maintains, that fact would be regrettable, of course. But it might not be subject to adequate review on appeal, simply because of the limitations of a written record. In any event, we cannot say, as the defense would have us conclude, that the trial court's demeanor in this case adversely affected the credibility of the witness. Dr. Engum's credibility was more likely affected by his total lack of prior experience as a courtroom witness than by the trial court's comments on his testimony.
13. Comments During Closing Argument
The defendant argues that the trial court erred in the wide latitude given to the state during closing argument. Having reviewed the entire record in this case, including the arguments of the prosecutor and defense counsel, we can find no abuse of discretion in the manner in which the trial judge controlled closing argument. See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (standard of review is abuse of discretion). The prosecutor is warranted in making an argument to the jury when that argument is supported by evidence introduced at trial. State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Further, the prosecutor may state an ultimate conclusion which would necessarily follow if the testimony of the prosecution witnesses were believed by the jury. Id. In this case, the prosecutor's argument was well-grounded [553] in the evidence presented at trial, recounting that evidence and the permissible inferences that could legitimately be drawn from it.
14. Jury Instructions
The defendant challenges the jury instructions given in the guilt phase of the trial in several respects. First, he asserts that the trial court erred in giving the following charge:
The failure of the defendant to remember the details of the alleged crime or to remember any of the facts leading up to and surrounding the commission of the alleged crime is in itself no defense to this charge.
The state requested that an instruction on amnesia be given, in light of the defendant's statement that he remembered spanking the child only with the open part of his hand. With reference to the events of April 10, 1986, he stated, "I don't have comprehension of fully remembering what, of what might have took or did take place... ." He described the period of time during which Eddie was apparently beaten as "a blank" in his mind and stated that he did not fully come back to his senses until after he arrived at the hospital.
The state initially requested an instruction that "amnesia alone" is not a defense to a criminal charge. The defense complained to the trial court that the use of the words "amnesia alone" would constitute a comment on the evidence by the court, as it would unduly characterize the evidence presented on the defendant's mental condition. On appeal, the defendant complains that the instruction as given was misleading and prejudicial because, in the context of the defense's insanity theory, an instruction relating to amnesia was irrelevant to the issues at trial.
The trial judge has a duty to give a complete charge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). Although the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge, State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975), the trial judge may also be required to charge the jury on matters not disputed by the defense. See Taylor v. State, 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979).
The statement made by the defendant that was presented to the jury raised questions about his memory of the events surrounding his son's death. There was no error in giving an instruction necessitated by this evidence.
The defendant also alleges that the trial court erred in refusing to give a jury instruction on the lesser included offense of voluntary manslaughter. The trial court instructed the jury on the elements of first-degree murder and the lesser included offenses of second-degree murder and involuntary manslaughter.
At the time of trial, manslaughter was defined by statute as "the unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act." T.C.A. § 39-2-221. Before a defendant can be found guilty of voluntary manslaughter, there must be evidence that he acted in a state of passion sufficient to obscure his reason and that the passion was produced by reasonable and adequate provocation. Freddo v. State, 127 Tenn 376, 155 S.W. 170 (1912); State v. Morgan, 541 S.W.2d 385 (Tenn. 1976); Howard v. State, 506 S.W.2d 951 (Tenn. Crim. App. 1973).
The defendant insists that a charge of voluntary manslaughter was appropriate here, citing by analogy Capps v. State, 478 S.W.2d 905 (Tenn. Crim. App. 1972). In Capps, the defendant became "ungeared, so to speak, with the birth of [her] child." Id. at 906. Although her husband sought medical help for the mother and placed the baby with both sets of grandparents, the child's life came to a tragic end when her mother killed her after she had been grabbing at her legs and dress and running through the house. Id. The mother was charged with second-degree murder and [554] convicted of voluntary manslaughter. Although the Court of Criminal Appeals noted that the mother was in an excited, generally distraught emotional state, brought about at least in part by the child's behavior, id. at 907, the court did not address whether the child's actions constituted the "reasonable and adequate provocation" element of voluntary manslaughter. Rather, the court based its holding on the distinction between voluntary and involuntary manslaughter. Because the homicide was a killing with intent to inflict the injury that produced death, as evidenced by the severity of the child's injuries, the court affirmed the jury's verdict of voluntary manslaughter. Id. Thus the defendant's reliance on Capps in this case is not well placed, because in Capps the rationale of the Court of Criminal Appeals did not rest on provocation.
Moreover, we believe that it is a virtual legal impossibility for a small child to commit an act that would amount to provocation sufficient to make his subsequent death voluntary manslaughter rather than murder. Because the evidence presented at Mack Brown's trial failed to satisfy the elements of voluntary manslaughter, the trial court did not err in refusing to instruct on this lesser included offense. State v. Mellons, 557 S.W.2d 497 (Tenn. 1977); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949). To the extent that this holding conflicts with the language or the result in Capps v. State, supra, that opinion is expressly overruled.
Conclusion
For the reasons set out above, we reverse the defendant's first-degree murder conviction, modify the judgment of the trial court to reflect his conviction of murder in the second degree, and remand the case to the trial court for resentencing.
REID, C.J., and DROWOTA, O'BRIEN and ANDERSON, JJ., concur.
[1] Eddie's mother was charged as well, but her trial ended in a mistrial and because of double jeopardy considerations, she cannot be retried. See section 4, infra.
[2] There is some question as to whether this was actually a fracture or simple growth plates in the skull which had failed to join, making the normal suture resemble a fracture.
[3] The significance of this testimony is that the child could have sustained these injuries at 4 a.m. (when a neighbor heard the fight between his parents) and not have begun the process of vomiting and dying until just before the ambulance was called at 9 a.m.
[4] The neurological surgeon testified that "contrecoup" is French for "back and forth."
[5] There was testimony that Mack Brown smoked cigarettes but Evajean Brown did not. The nurse who characterized this wound as a cigarette burn did not make a notation to this effect in Eddie's chart. For further discussion on this point, see section 8, infra.
[6] For further discussion of the defendant's IQ scores, see section 15, infra.
[7] Acts 1829, Ch. 23, § 3 provides in pertinent part: "All murder which shall be perpetrated by means of poison, lying in wait or by any other kind of willful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree."
[8] At common law and in Tennessee prior to 1829, the only penalty provided for murder was death; the creation of second-degree murder introduced the possibility of a life sentence upon conviction.
[9] See, e.g., Winton v. State, 151 Tenn. 177, 268 S.W. 633, 638 (1924), in which the Court noted: "The distinction between the two degrees of murder is well defined by our statutes, and the decisions of this court. If those charged with the enforcement of the criminal laws would not insist upon convictions for first-degree murder when the facts do not justify it, the result would be more affirmances in this court, and the trouble and expense of new trials would, in many instances, be avoided."
[10] "Passion" has been defined as "[a]ny of the emotions of the mind [reflecting] anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection." Winton v. State, 151 Tenn. 177, 268 S.W. 633, 637 (1925), repeated in State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976).
[11] "Focus" was explicitly repudiated as a basis for determining whether a suspect is "in custody" for purposes of Miranda in Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976).
7.2.6.3.2.1.4 Williams v. State 7.2.6.3.2.1.4 Williams v. State
Joseph Nathan WILLIAMS, II, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
[727] Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
GROSS, J.
Joseph Williams appeals his conviction for the first-degree murder of his estranged wife. At the jury trial, Williams' defense was that he acted in the heat of the moment, so the killing was not premeditated. On appeal he argues that the state did not establish premeditation and that the trial court abused its discretion in admitting two photographs of his wife's body. Because the evidence presented a jury question on premeditation, and the photographs were relevant and not unduly prejudicial, we affirm.
I. FACTS
Williams and his wife were married in late November 2006. They had a three-year-old [728] son. Williams and his wife began experiencing problems soon after the marriage. In December 2006, Williams told a former girlfriend with whom he had recently reestablished contact that "if she [the wife] continued the physical abuse he would retaliate and kill her or something like that." The former girlfriend did not remember the exact words Williams used, but was otherwise certain of the content of the statement.
The bulk of the state's evidence detailed Williams' movements on Saturday, January 20, 2007, the day the wife died, and the weeks thereafter. Relevant here is that Williams was with the wife and their son early that Saturday morning. At that time, Williams called the police to request that an officer stand by as he went home to collect some belongings. Williams called the same officer a couple of hours later, reporting he was being kicked out of the home. The officer responded, but he determined there was no violence and left.
At around noon, while driving in a white van on the highway with his son and wife, Williams ran out of gas. A friend met up with Williams to bring gas and, while Williams filled the tank, his wife and son remained in the vehicle. With a full tank, the three then headed over to an area where some of Williams' friends lived. Williams, along with his wife and son, went back and forth between the houses of two of Williams' friends for a while. Eventually, Williams returned to one friend's house with his son, but without his wife. Williams, who was in a sweaty T-shirt and chain-smoking, then left in the white van, leaving his son at the friend's house.
Williams asked the friend to drop his son off at the house of the wife's mother. The mother had received a phone call from her daughter at around noon that day. The wife had reported that she was with Williams and their son at a park. Although the wife had said she would be leaving Williams and the son to come to her mother's house, the wife never arrived. The mother later received two calls from her daughter's cell phone; both times it was Williams. Williams said, "I need you to watch [my son] for me for a couple of hours." The mother asked, "Where's [the wife]?" Williams answered, "She's gone." The mother persisted, "Gone, where?" Williams said, "I don't know, she's gone."
The mother became concerned about the wife and began calling her daughter's cell phone. No one picked up. The mother called the wife's friends; none had seen or heard from her. The mother made further efforts to track the wife down, to no avail. She called the police on Sunday, the 21st, and filed a missing person's report. She told the assigned officer that the last person she knew her daughter to be with was Williams. According to other witnesses, Williams remained in Broward County until around January 23.
On February 5, a construction manager found the wife's body at a work site and called the police. The Broward County Sheriff's Office responded to the scene and removed the body from the wooded area. The body was wrapped inside a cloth mattress cover, with a zipper on one end. One foot was sticking out of the cover, and it appeared an animal had gnawed on the foot. The detectives unzipped the cover and exposed the body. From the neck up, the body "was almost completely skeletonized" due to decomposition. They were able to identify the body because the wife's purse was inside the cover. Williams and the state stipulated that this body was the wife's.
Williams was apprehended in Tallahassee. Although he was arrested for outstanding traffic warrants, officers from Broward told Williams that they wanted to talk to him about his missing wife. They [729] transported him to the Leon County Sheriff's office. After they read him his rights, Williams agreed to speak with the officers. Seeing that he was visibly upset, the officers went into the interrogation room to ask if he was okay.
Immediately, Williams told the officers, "I killed [my wife]." They asked Williams how he killed her. Williams responded, "I stabbed her in the neck" with a kitchen knife. When asked where, he said: "In the van, in the white van." The officers asked: "Joe, why, why did you do this?" Williams replied, "I lost it, I prayed before I did it, but I lost it." He continued, "I drove around with her body all day in the van. I took her, wrapped her up in a cover and I threw her next to some dumpsters over a fence." At the time of the interrogation, Williams had several cuts on his hands. When the officers asked him about the cuts, Williams explained that he received them from the knife he used to stab his wife. The white van was later found, and there were blood stains throughout. According to a stipulation, a blood test revealed that the blood found in the van was the wife's.
Dr. Joshua Perper, Broward County's chief medical examiner, saw the wife's body where it was found and observed the autopsy of her decomposed body the next day. Because maggots usually attack stab wounds, Dr. Perper concluded that the fact that the wife's neck was infested with a concentration of maggots revealed that there had been a neck injury. Indeed, the autopsy revealed trauma to the side of the neck, likely resulting from a stab wound.
The prosecutor showed Dr. Perper two photographs of the decomposing body, state's exhibits 33 and 34. Both of the photographs were taken where the body was found, but after law enforcement had removed the body from the wooded area. The first photograph, 33, showed the wife's back and buttocks. A tattoo of the name "Joe" was in the middle of the back just above the waistline. Maggots were scattered on portions of the body. The second photograph, 34, showed almost the entire front of the naked body. It is a gruesome photograph. Parts of the body are badly decomposed and infested with maggots, and most of the flesh from the neck up is gone, showing the skull. Dr. Perper testified that the photographs would assist him in describing the decomposition for the jury.
The prosecutor moved the photographs into evidence. Williams objected, arguing that they were extremely graphic, and that the photograph of the tattoo was superfluous because he had already stipulated to identity. The trial court overruled the objection, finding that the photographs would aid Dr. Perper in describing what the body looked like and what he did. The court also noted that the state was entitled to prove the manner and cause of death.
Dr. Perper used exhibit 33 to describe the decomposition of the wife's body. He used exhibit 34 to further describe the decomposition and, also, to explain that environmental factors caused the head area to experience more decomposition than the rest of the body. Additionally, Dr. Perper pointed to the neck area of the body and noted, "there was an area which looked like a defect which, in my opinion, was caused more slightly by a stab wound and this was confirmed later on and there were maggots which enlarged this area as maggots do, if there's a bleeding injury the fly will stay there." Dr. Perper could not say with certainty how many times the wife had been stabbed, only that she had been stabbed one or more times.
After the state rested, and in lieu of a motion for judgment of acquittal, Williams moved the trial court to reduce the first-degree murder charge to second-degree [730] murder or manslaughter. He argued that the state failed to introduce any evidence of premeditation. In response, the prosecutor asserted that the law does not require a certain amount of time to pass between the formation of intent and the killing, and that Williams' statement that he prayed before killing the wife suggested a sufficient amount of time had passed. The court agreed and further observed that if Williams had time to pray, he had enough time for reflection. Concluding that intent is a question of fact, the court denied Williams' motion.
The jury found Williams guilty of first-degree murder. The trial court sentenced Williams to life in prison without parole. It denied Williams' motion for a new trial on the two points he raises on appeal.
II. ANALYSIS
A. Evidence of Premeditation
Williams first argues that the state failed to establish premeditation, so the evidence against him was insufficient to prove first-degree murder. He contends his statement to the former girlfriend could not be construed as a threat, and his confession that he prayed before stabbing the wife was countered by the second part of the confession that he "lost it." We reject this argument. The confession and threat together established direct evidence of premeditation, which was further buttressed by circumstantial evidence.
A "motion to reduce charge" is governed by the same standards that govern a motion for judgment of acquittal, as both challenge the sufficiency of the evidence. See Pellot v. State, 582 So.2d 124, 125-26 (Fla. 4th DCA 1991). Thus, on appeal, we review the trial court's denial de novo and we will affirm if the conviction is supported by competent, substantial evidence. Floyd v. State, 913 So.2d 564, 571 (Fla.2005); Pagan v. State, 830 So.2d 792, 803 (Fla.2002). When a defendant moves for a judgment of acquittal or, as here, for a conviction on a lesser charge, he admits all the facts in evidence, and the trial court must draw all reasonable inferences in the state's favor. Floyd, 913 So.2d at 571. "If... a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain the conviction." Pagan, 830 So.2d at 803 (citation omitted).
The element at issue here is premeditation. "Premeditation is the essential element which distinguishes first-degree murder from second-degree murder." Coolen v. State, 696 So.2d 738, 741 (Fla. 1997) (citing Wilson v. State, 493 So.2d 1019 (Fla.1986)); see also § 782.04(1), Fla. Stat. (2007). "Premeditation is a fully formed conscious purpose to kill that may be formed in a moment and need only exist for such time as will allow the accused to be conscious of the nature of the act he is about to commit and the probable result of that act." Asay v. State, 580 So.2d 610, 612 (Fla.1991) (citations omitted). Put differently, the defendant needs only enough time to allow him to reflect on the nature of the act. Perry v. State, 801 So.2d 78, 84 (Fla.2001).
Williams contends that this case involves only circumstantial, indirect evidence. That is usually true of cases turning on premeditation—a matter involving the internal processes of the defendant's mind. In such a situation, the state's evidence must satisfy a special, more stringent standard. This case, however, involves direct evidence, as "[a] confession is direct, not circumstantial evidence." Woodel v. State, 804 So.2d 316, 321 (Fla.2001). Accordingly, the normal standard articulated above applies.
In Woodel, the supreme court held that the defendant's confession—"I was hoping [731] to hit [the victim] on her head to make her pass out, and then I was going to leave. I thought that's what would happen if you got hit in the head, you know"—was direct evidence of premeditation because it "indicated that he had reflected on his actions prior to killing [the victim]." Id. at 321. Similarly, here, Williams admitted he had prayed before killing his wife, which indicates he had a fully formed conscious purpose to kill her, and enough time to reflect on the nature of the act. Williams attempts to minimize the prayer by combining it with the statement that he "lost it," and concluding that the prayer could have been a desperate attempt to remain in control. However, a rational trier of fact could still determine that the prayer does not eliminate the evidence of premediation.
The statement that Williams made to his former girlfriend one month before the murder provided further direct evidence of premeditation. In LaMarca v. State, 785 So.2d 1209 (Fla.2001), the supreme court confronted a defendant's similar statement. There, the defendant had told a witness five months before the murder that he was going to kill the victim. See id. at 1211, 1215. When that witness asked the defendant why, the defendant responded, "I'm gonna kill him." Id. at 1211. The court concluded that the statement was direct, competent, and substantial evidence that the defendant had a "`fully formed conscious purpose to kill.'" Id. at 1215 (quoting Norton v. State, 709 So.2d 87, 92 (Fla.1997)). Like he did with his confession, Williams tries to minimize his December statement by arguing that it was too conditional to be taken seriously. That, however, is a matter of the weight and not sufficiency of the evidence and, therefore, beyond the purview of a motion for judgment of acquittal or a motion to reduce charge.
In addition to those two pieces of direct evidence of premeditation, there is some circumstantial evidence. "Multiple stab wounds deliberately aimed at vital organs support a finding of premeditation for first-degree murder." Davis v. State, 26 So.3d 519, 530 (Fla.2009) (citation omitted). Here, Williams stabbed his wife in the neck. Although Dr. Perper could not determine how many times the wife had been stabbed, the multiple cuts on Williams' hands—received from the knife he used to stab her—permits the inference he made several stabbing motions at her.
There was sufficient direct and circumstantial evidence of Williams' premeditation to create a jury question. Accordingly, we hold that the trial court did not err in denying Williams' motion to reduce the charge from first-degree to second-degree murder.
B. Photographs of the Victim's Body
In his second issue, Williams argues that the trial court abused its discretion when it admitted into evidence the photographs of his wife's body. He argues that they had no relevance because the body was too decomposed to show the cause of death and, with reference to the photograph showing the "Joe" tattoo, because the parties had stipulated to the victim's identity. Alternatively, Williams argues that if they were relevant the photographs were so gruesome and inflammatory that their prejudice substantially outweighed their probative value. We disagree, because the photographs were relevant and not unduly prejudicial.
We review the trial court's admission of the photographs for an abuse of discretion. Doorbal v. State, 983 So.2d 464, 497 (Fla. 2008). The Florida Supreme Court articulated the relevant analysis in Douglas v. State:
The test for admissibility of photographic evidence is relevancy rather [732] than necessity. Crime scene photographs are considered relevant when they establish the manner in which the murder was committed, show the position and location of the victim when he or she is found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. This Court has upheld the admission of autopsy photographs when they are necessary to explain a medical examiner's testimony, the manner of death, or the location of the wounds.
However, even where photographs are relevant, the trial court must still determine whether the "gruesomeness of the portrayal is so inflammatory as to create an undue prejudice in the minds of the jur[ors] and [distract] them from a fair and unimpassioned consideration of the evidence." In making this determination, the trial court should "scrutinize such evidence carefully for prejudicial effect, particularly when less graphic photos are available to illustrate the same point." As we explained in Almeida v. State, 748 So.2d 922, 929 (Fla. 1999), the relevancy standard "by no means constitutes a carte blanche for the admission of gruesome photos."
878 So.2d 1246, 1255 (Fla.2004) (alterations in original) (all citations but one omitted).
Exhibits 33 and 34 were relevant for the same reasons the photograph in Douglas was relevant. In Douglas, the trial court admitted a photograph of the victim's body "as she was found at the crime scene." Id. The supreme court found that the photograph was relevant because it showed how the "body appeared at the time the police and [the associate medical examiner] arrived on the scene." Id. at 1255-56. Additionally, the medical examiner "referred to this photograph when explaining his initial impressions and assessment of the injuries sustained by [the victim]." Id. at 1256.
Here too the photographs depicted the wife's body at the scene of its discovery. The photographs aided Dr. Perper in describing the condition of the body when it was found and his initial impressions of the wife's injuries, despite the decomposition. These impressions led Dr. Perper to conclude that the wife likely died of a stab wound to the neck—the manner of her death—contrary to Williams' argument that the body was too decomposed to reveal the cause.
Exhibit 33, the photograph depicting the tattoo, was relevant for the additional reason that it went toward establishing the identity of the body. Contrary to Williams' argument, it is not significant that the parties had stipulated to the identity of the victim, or that he did not dispute the manner of death. As we stated in Gryczan v. State, 726 So.2d 345, 347 (Fla. 4th DCA 1999), "regardless of the stipulation [of identity and cause of death], the state is not relieved of the burden of proving the elements of defendant's guilt." See also Foster v. State, 369 So.2d 928, 930 (Fla.1979) ("A defendant cannot, by stipulation as to the identity of a victim and the cause of death, relieve the state of its burden of proof beyond a reasonable doubt.").
Although the photographs were relevant, we must next determine whether their probative value was substantially outweighed by their prejudicial effect. See § 90.403, Fla. Stat. (2007). The photographs showed advanced decomposition, including maggot infestation. But, "[t]he mere fact that [the] photographs may be gruesome does not necessarily mean they are inadmissible." Harris v. State, 843 So.2d 856, 864 (Fla.2003). The photographs must be so gruesome and inflammatory that they create an undue prejudice [733] in the minds of the jurors and distract them from a fair and unimpassioned consideration of the evidence. We cannot say that the photographs, while gruesome, were so grisly that they prevented the jury from rationally analyzing the state's evidence.
Williams relies on Czubak v. State, 570 So.2d 925 (Fla.1990), but that case is distinguishable. In Czubak, the defendant challenged the admission of "several particularly gruesome photographs of the victim's body." Id. at 928. The photographs showed a victim who had been dead "at least a week" and was "severely decomposed and discolored." Id. They also showed that "portions of [the victim's] left arm and leg were missing, apparently eaten away by two small dogs," as well as a "leg bone exposed where the flesh had been eaten away." Id. The supreme court determined initially that the photographs "had little or no relevance." Id. at 929. What little relevance they may have had was greatly undermined by the fact the damage was caused "by factors apart from the crime itself": "the length of time she had been dead and the ravages of the dogs." Id. "Under these circumstances," the court wrote, "where the probative value of the photographs was at best extremely limited and where the gruesome nature of the photographs was due to circumstances above and beyond the killing, the relevance of the photographs is outweighed by their shocking and inflammatory nature." Id.
Williams contends the photographs were unduly prejudicial because the condition of the body was the result of the environment, maggots, and animal depredation— circumstances not attributable to him. To the contrary, the severe decomposition around the wife's neck was arguably the result of the crime: as Dr. Perper testified, maggots attack stab wounds first. Section 90.403 required the trial court to balance the photographs' relevance against their prejudicial nature. In Czubak, the limited relevance on one scale meant that the gruesomeness of the photographs on the other scale tipped the balance in favor of exclusion. That is not the case here. The gruesome nature of the photographs, attributable to Williams, did not outweigh their relevance to Dr. Perper's descriptions of the scene, his initial impressions, and the cause of death, and in establishing identity.
We hold that the trial court did not abuse its discretion in admitting exhibits 33 and 34.
Affirmed.
POLEN and DAMOORGIAN, JJ., concur.
7.2.6.3.2.2 III.B.ii Murder v. Voluntary Manslaughter 7.2.6.3.2.2 III.B.ii Murder v. Voluntary Manslaughter
Distinctions within the group of crimes known as “homicide” depend on more than the different mens rea levels associated with a killing. Knowing that a person killed someone (act) with purpose or knowledge (mens rea) does not necessarily mean that the person committed “murder.” Criminal law sometimes takes additional circumstances into account when assigning blame. In the case of knowingly or purposefully killing someone, provocation or extreme emotional disturbance might mitigate the crime of murder down to voluntary manslaughter. As the cases below demonstrate, different courts have taken different approaches in defining whether and what circumstances might lessen the seriousness of an intentional killing. As you read these cases, consider the challenges that courts face when they downgrade a crime committed with the same basic act, result, and mens rea. Where and how do courts draw lines between which circumstances mitigate murder, and which circumstances don’t? In determining the effect of provocation or emotional distress, should courts look at a criminal’s individual nature, or hold him/her to an objective standard?
7.2.6.3.2.2.1 Maher v. People 7.2.6.3.2.2.1 Maher v. People
10 Mich. 212
William Maher
v.
The People.
Supreme Court of Michigan.
May 21, 1862.
In a prosecution for an assault with intent to murder, the actual infant to kill must be found, and that under circumstances which would make the killing murder.
Malice aforethought is as essential an ingredient of the offense of murder as the act of filling, and the presumption of Innocence applies equally to both ingredients of the offense. Hence the burden of proof, as to each, rests upon the prosecution.
If a homicide be committed under the influence of passion, or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offense is manslaughter only, and not murder.
To reduce the offense to this grade, the reason must, at the time of the act, he disturbed or obscured by passion to an extent which might render an ordinary man, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment
The question as to what is an adequate or reasonable provocation, is one of fact for the jury.
So also is the question whether a reasonable time had elapsed for the passions to cool, and reason to resume its control.
Indictment for assault with intent to murder one H. The prisoner offered evidence tending to show the commission of adultery by H. with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going into the woods together under circumstances calculated strongly to impress upon MB mind the belief of an adulterous purpose; that he followed after them to the woods; that they were seen not long after coming from the woods, and that the prisoner followed on in hot pursuit, and was informed on the way that they had committed adultery on the day before; that he followed H. into a saloon, in # state of excitement, and there committed the assault. Held, that the evidence was proper, as from it it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which would have given to the homicide, had death ensued, the character of manslaughter only. Held further, that these facto, and all the circumstances which led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, and the state of mind and intention with which it was done.
The statement of the prisoner in a criminal case is for the consideration of the jury, who may give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.
Heard April 19th. Decided May 21st.
Error to Houghton District Court. The case is sufficiently stated in the opinion of CHRISTIANCY J.
Buel & Trowbridge, for plaintiff in error :
1. Malice aforethought is the grand criterion which distinguishes murder from all other killings.
The quo anima, or state of mind under which the offense is committed, is always a legitimate subject of inquiry: — Bish. Or. Z. § 227; 2 Ibid. § 616; Pond v. People, 8 Mich. 150; 3 Inst. 103; Burr. Cir. Ev. 282 and n.
Accordingly the appearance of an actual necessity for taking life in self-defense, though it in fact do not exist, may justify the act; insanity may excuse it, and sudden transport of passion may mitigate it to a lesser offense. Yet each of these circumstances is a state of the mind.
The definition itself of murder requires, that it be committed by a person of sound mind and memory, and with malice aforethought: — 3 Coke's Inst. 47; 4 Bl. Com. 195. Each of these ingredients is a fact; each puts in issue the state of the mind, and each must be passed upon by the jury.
In a case of murder it is always a proper subject of inquiry, whether the accused acted from deliberation and intelligence; whether he had command of his passions and acted from a mind undisturbed; or whether reason had lost in part its sway:— 2 Bish. Or. L. §§630, 631 and n; 1 East P. C. 222; Whart. Cr. L. §§ 983, 984; Burr. Cir. Ev. 284 and n.
It is a true test of manslaughter that the homicide be committed in a sudden transport of passion arising upon a reasonable provocation, and without malice. The law requires only a reasonable provocation. The authorities use the terms adequate, sufficient and reasonable, when applied to the provocation, as equivalent: — 1 East P. G. 232. Whart. Cr. L. § 987; 2 Bish. Cr. I. §630 and n; 11 Humph. 200. A reasonable provocation, is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.
By sufficient cooling time, is meant a reasonable time; therefore, each case depends on its own circumstances:— Whart. Cr. L. § 990; 2 Bish. Cr. L. § 641; 1 Speers, 384. A reasonable cooling time, is that for which a good reason can be given, and in which the sudden transport of passion might naturally and rationally, according to the laws of the human mind, pass away.
2. Acting on information: " When it becomes a subject of inquiry whether a person acted bona fide, prudently or wisely, the information and circumstances on the faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecution :"— Whart. Cr. X,. § 603; 1 Greenl. Ev. §101, and n. Such evidence bears directly upon the question of malice, and state of the prisoner's mind. In the following cases of alleged murder, the parties acted under provocation arising on information which was admitted in evidence: — Gases of Jarboe, of Mercer, and of Norman, cited in Sickles' case; Boyley's case, 2 Gro. 296; Mc Whirl's case, 3 Gratt. 594.
So evidence is often admitted of information communicated to the prisoner, of prior threats against him by the assailing party. See Pond's case, 8 Mich. 153.
3. As to the taking in the act; the law does not require that the husband stand by and actually see the adulterous act.
Adultery can always be proved by facts and circumstances. Those offered in this case transpired under the eyes of the accused; they tended to establish a taking in the act, within the meaning of the law. Would a blind man be without protection when his remaining senses leave no room for doubt?
A mistake may exist; still "the guilt of the accused must depend upon the circumstances as they appear to him." One may act in self-defense upon reasonable grounds for believing that the danger is actual and imminent, though he be mistaken:—Pond's case, 8 Mich. 150.
So too, an insane delusion or belief may exist, as to unreal facts, which will justify or excuse a homicide committed under its influence, if, being real, they would have that effect: — 1 JBish. Cr. L. § 235.
4. As to the res gestae: most of the matters offered and excluded immediately preceded the assault, tended to illustrate it, were directly connected with it as its cause, and with it constituted one continuing occurrence. They were, therefore, clearly admissible in evidence as belonging to the res gestae: — Potter's case, 5 Mich. 5; 1 Greenl. Ev. § 108 and n.
They belong to the class of concomitant circumstances, 'which include those immediately following and preceding the criminal act, as well as those strictly contemporaneous with it : — Burr. Cir. Ev. 368.
G. Upson, Attorney General, for the People :
If a husband find his wife in the act of adultery, and, provoked by the wrong, instantly takes the life of the adulterer, the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act. In all cases the party must see the act done, and if, after merely hearing of, or suspecting such an outrage, the wronged individual immediately takes vengeance on the other, by pursuing and killing him, his offense is murder : — Foster, 296; T. JRaym. 212; 1 Vent. 158; 1 East P. G. 234; 8 C. & P. 182; 2 C. & K. 814; 3 Graft. 594; 8 Ired. Law, 330; 1 Buss, on Or. 525 and 581; 2 Bish. Cr. Z. §638 and notes 2, 3 and 4; -Whar. Cr. L. § 984 and n. a, Uh ed.
The books which speak of the slaying of the adulterer by the husband as only manslaughter under certain circumstances, all instance the case where he finds the adulterer in the act of adulterous intercourse with his wife, and immediately kills him; but none of the cases speak of thus justifying the killing of a person by the husband, on account of information or suspicion of acts of adultery committed with his wife. Most of them expressly say that in all such circumstances the killing would be murder. See particularly on this point the language of the Court in 8 Car. & P. 182, and 2 C. & K. 814, above quoted.
CHRISTIANCY, J.
The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of his sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way t o the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner's wife had had sexual intercourse the day before in the woods- This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder ? If the homicide—in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.
Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facit reum nisi mens sit rea." People v Pond, 8 Mich. 150.
To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime c m not exist; and, as every man is presumed innocent of the offense with which h e is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense—to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, re«is equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, a^ presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist. I do not here speak of those cases in which the death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.
But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool End reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.
To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. " W e must therefore endeavor to discover the principle upon which the question is to be determined. It "will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition: State v. Hill, 1 Dev. & Sat. 491; Haile v. State, 1 Swan, 2 4 8; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent t o utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal. There are many cases t o be found in the books in which this consideration, plain as it would seem t o be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was between murder and excusable homicide.
The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them—not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.
In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard—unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.
The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, lie may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular ca«e. ' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1800, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be hold to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.
The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. I n such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for the jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Hex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th e<£, § 990 and cases cited. I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear. And in cases of applications, for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.
It remains only to apply these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the j u r y to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.
But there is still a further reason why the evidence should have been admitted. N o other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the j u r y were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may be to establish guilt or innocence; but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor's case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by analogy, Holders case, 8 O. & P. 606; Stoner's case, 1 C & K. 650; Chapmarts case, 8 C. & P. 559; Orchard's case, Ibid, note; Roscoe Cr. Ev.). 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. I n the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. §29. But however this may be, it was clearly competent for the defendant to 6how the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected. After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner's counsel requested the Court to charge, that the prisoner's statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner's counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner's -wife; but that where there were facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner's statement in considering the evidence, and give it such weight as they thought proper.
The only substantial error of the Court in relation to this " statement," is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner's wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. " Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.
The judgment should be reversed, and a new trial granted.
MARTIN C. J. and CAMPBELL J. concurred.
J.: MANNING
I differ from my brethren in this case. I think the evidence was properly excluded. To make that manslaughter which would otherwise be murder, the provocation—I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. PAKK J. in Regina v. Fisher, 8 C. & JP. 182, in speaking of the cause of provocation says, " I n all cases the party must see the act done." Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fislier, 8 G. cb P. 182; Regina v. Kelly, 2 C. d> K. 814; and State v. John, 8 Ired. 330.
I think the judgment should be affirmed.
Judgment reversed, and new trial ordered.
7.2.6.3.2.2.2 Girouard v. State 7.2.6.3.2.2.2 Girouard v. State
321 Md. 532
583 A.2d 718
Steven Saunders Girouard
v.
State of Maryland.
No. 65, Sept. Term, 1989.
Court of Appeals of Maryland.
Jan. 8, 1991.
Defendant was convicted before the Circuit Court for Montgomery County, James S. McAuliffe, J., of second [533] degree murder, and he appealed. The Court of Special Appeals affirmed, and defendant petitioned for certiorari. The Court of Appeals, Cole, J., held that: (1) words alone are not adequate provocation to mitigate murder to manslaughter, and (2) taunting words of wife in course of domestic argument were not provocation adequate to reduce second degree murder charge to voluntary manslaughter, as provocation was not enough to cause reasonable man to stab wife 19 times.
Affirmed.
[534] Nancy S. Forster, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, J. Theodore Wiesman, Dist. Public Defender, all on brief), Baltimore, for petitioner.
Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran Jr., Atty. Gen., both on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., ELDRIDGE and RODOWSKY, JJ., and COLE,[**] ADKINS,[*] BLACKWELL[*] and MARVIN H. SMITH (retired), Court of Appeals Judges, Specially Assigned.
COLE, Judge.
In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.
The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.
[535] On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.
Joyce followed him into the bedroom, stepped up onto the bed and onto Steven's back, pulled his hair and said, "What are you going to do, hit me?" She continued to taunt him by saying, "I never did want to marry you and you are a fuck and you remind me of my dad."[1] The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you to do?” Receiving no response, she continued her attack. She added that she had filed charges against him in the Judge Advocate General's Office (JAG) and that he would probably be court martialed.[2]
When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she [536] had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a mistake, that she did not love him and that the divorce would be better for her.
After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.
When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.
At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven's personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife's behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, [537] testified that Joyce had a “compulsive need to provoke jealousy so that she's always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”
Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.
Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant’s or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.
The State counters by stating that although there is no list of legally adequate provocations, the common law developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation.
According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argu [538] ment ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.
Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v.Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874). Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (Emphasis in original). Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988). See also, State v. Faulkner, supra; State v. Ward, supra; Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970).
There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. See State v. Faulkner, 301 Md. at 486, 483 A.2d 759. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. See, e.g., 40 C.J.S. Homicide § 50 at 915-16 (1944). Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. State v. Faulkner, 302 Md. at 486, 483 A.2d 759.
In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay [539] the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:
1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been causal connection between the provocation, the passion, and the fatal act.
Sims v. State, 319 Md. 540, 551, 573 A.2d 1317 (1990); Glenn v. State, 68 Md.App. 379, 406, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); Carter v. State, 66 Md.App. 567, 571, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 466,374 A.2d 384 (1977); Whitehead v. State, Md.App. at 11, 262 A.2d 316.
We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be “’calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’” Carter v. State, 66 Md.App. at 572, 505 A.2d 545 quoting R. Perkins, Perkins on Criminal Law at p. 56 (2d ed. 1969). The issue we must resolve, then, is whether the taunting words by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.
[540] Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that "[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray and standing alone, do not constitute adequate provocation.” Id. at 552, 573 A.2d 1317. That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.
In Lang v. State, 6 Md.App. 128, 250 A.2d 276, cert. denied, 396 U.S. 971, 90 S.Ct. 457, 24 L.Ed.2d 438 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation." Id. at 132, 250 A.2d 276. Before the shooting, the victim had called the appellant "a chump" and “a chicken," dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.
The court in Lang did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Id. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven's back and pull his hair, he could not reasonably have feared bodily harm at her hands. This, to us, is certain based on Steven's testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he 6’2” tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.
Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation. See, e.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); [541] West v. United States, 499 A.2d 860 (D.C.App.1985); Nicholson v. United States, 368 A.2d 561 (D.C.App.1977); Hill v. State, 236 Ga. 703, 224 S.E.2d 907 (1976); Cox v. State, 512 N.E.2d 1099 (Ind. 1987); State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985); State v. Hilliker, 327 A.2d 860 (Me. 1974); Commonwealth v. Bermudez, 370 Mass.438, 348 N.E.2d 802 (1976); Gates v. State, 484 So.2d 1002 (Miss.1986); State v. Milosovich, 42 Nev. 263, 175 P. 139 (1918); State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990); State v. Castro, 92 N.M. 585, 592 P.2d 185 (1979); State v. Best, 79 N.C.App.734, 340 S.E.2d 524 (1986); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982). One jurisdiction that does allow provocation brought about by prolonged stress, anger and hostility caused by marital problems to provide grounds for a verdict of voluntary manslaughter rather than murder is Pennsylvania. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733-84 (1987). The Pennsylvania court left the determination of the weight and credibility of the testimony regarding the marital stress and arguments to the trier of fact.
We are unpersuaded by that one case awash in a sea of opposite holdings, especially since a Maryland case counters Nelson by stating that "the long-smoldering grudge . . . may be psychologically just as compelling a force as the sudden impulse but it, unlike the impulse, is a telltale characteristic of premeditation." Tripp v. State, 36 Md. App. at 471-72, 374 A.2d 384. Aside from the cases, recognized legal authority in the form of treatises supports our holding. Perkins on Criminal Law, at p. 62, states that it is "with remarkable uniformity that even words generally regarded as 'fighting words' in the community have no recognition as adequate provocation in the eyes of the law." It is noted that
mere words or gestures, however offensive, insulting, or abusive they may be, are not, according to the great weight of authority, adequate to reduce a homicide, although committed in a passion provoked by them, from murder to manslaughter, especially when the homicide [542] was intentionally committed with a deadly weapon[.](Footnotes omitted)
40 C.J.S. Homicide §47, at 909 (1944). See also 40 Am. Jur.2d Homicide § 64, at 357 (1968).
Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven's mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that "there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law." Tripp v.State, 36 Md.App. at 473, 374 A.2d 384. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the spouse.
We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.
JUDGMENT AFFIRMED WITH COSTS.
Judge ELDRIDGE concurs in the result only.
[**] Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[*] Adkins, J., and Blackwell, J., now retired, participated in the hearing and conference of this case while active members of this Court but did not participate in the decision and adoption of this opinion.
[1] There was some testimony presented at trial to the effect that Joyce had never gotten along with her father, at least in part because he had impregnated her when she was fourteen, the result of which was an abortion. Joyce's aunt, however, denied that Joyce's father was the of Joyce's child.
[2] Joyce lied about filing the charges against her husband.
7.2.6.3.2.2.3 Commonwealth v. Miller 7.2.6.3.2.2.3 Commonwealth v. Miller
COMMONWEALTH of Pennsylvania, Appellee
v.
Dennis MILLER, Appellant.
Supreme Court of Pennsylvania.
[645] Mary Elizabeth Hanssens, Samuel J.B. Angell, Defender Association of Philadelphia, for Dennis Miller.
Gerald P. Morano, Stuart B. Suss, Kelley Lynn Nelson, PA Office of Attorney General, Amy Zapp, Harrisburg, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
OPINION
Justice GREENSPAN.
This is a capital appeal from an order entered by the Court of Common Pleas of Chester County denying Appellant Dennis Miller's request for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa. C.S. §§ 9541-9546. Appellant was sentenced to death following his convictions for first-degree murder, rape, indecent assault, recklessly endangering another person, possessing an instrument of crime, and flight to avoid apprehension. These charges arose out of the stabbing murder of Appellant's wife in November of 1995. We affirm.
Briefly, the facts underlying appellant's convictions are as follows. On November 18, 1995, Appellant and his wife, Sherry, left their two children, Barbara and Dennis, with Appellant's mother, Agnes Miller, and went to a local bar called Trib's Waystation where they drank some beer and ingested methamphetamine. During the course of the evening Appellant became visibly upset and angry when his wife spoke to other men or used her cell phone.[1] The couple left the bar at about [646] 1:20 a.m.[2]
The next day, when Appellant and Sherry did not appear at Agnes Miller's home as planned, Ms. Miller became concerned, especially after no one answered the telephone at Appellant's residence. Ms. Miller twice drove to Appellant's home and observed that the doors to the residence were locked, no one answered the door, and that Sherry's car was not there. On November 20, 1995, after speaking to Sherry's mother and learning that she had not heard from Sherry, Ms. Miller filed a missing persons report with the Pennsylvania State Police. After the investigating trooper was unable to locate Appellant or his wife, he and other troopers went to their residence. Once there, they received permission from Ms. Miller to break into the residence. Upon doing so, they discovered the naked body of Sherry Miller lying on a bed in an upstairs bedroom. Her body was covered in blood, her legs were spread, her knees were bent, and there was a blood-covered pillow over her face. Upon discovering the body, the troopers left the residence to wait for a search warrant.
An autopsy of Sherry Miller's body indicated that she had died because she was stabbed over thirty times in her head, chest, arms, and hands. During the autopsy, the tip of a knife was retrieved from her shoulder. The knife from which the tip originated was found in a trash can. The forensic pathologist who performed the autopsy concluded from the position of the body, defensive wounds on the victim's hands, the lack of blood below her waist, and the lack of seminal material outside her vagina that she had been subjected to intercourse at the time of her death.[3]
An investigation of the residence resulted in the seizure of evidence tying Appellant to the crime including Appellant's bloody palm print on the pillow found covering the victim's face, Appellant's bloody fingerprint on a bandage, and a bloody footprint belonging to Appellant. In addition, investigators noted that the box spring from the bed on which the victim was found was broken and that the murder weapon had a bloody thumbprint on it. While the thumbprint had several characteristics consistent with Appellant's thumbprint, it contained insufficient identifying markers to be positively identified as having been placed on the knife by Appellant. Police also found a note in the kitchen, in Appellant's handwriting, that read:
Now I hope some of Sherry's whore friends learn something from this. I didn't want for it to go this far, but you people don't understand what she put me through. Some know, but they don't want to say something about her. Everybody told her everything I did, but me, I had to find out for myself what she did. All of my so-called friends f___ me one way or another. I had no friends. And I wish I had more time to get even with some of you assholes. I just want to say that you, Larry Brown, I would [647] have killed you, and you, Sean Smith, I told Donny one time before to tell you to leave her alone. I don't know if he did. And if he did, the next time somebody tells you something, you better do what they say. I would have got you too. I hope somebody in my family takes care of Barb, Dennis. I do love you all. I will see some of you in hell.
Appellant fled the area following the crime. He was apprehended six months later in Florida because of a tip authorities received following a report about the crime on the television show "America's Most Wanted."
Following the denial of a motion to suppress and the waiver of his right to a jury trial, Appellant's capital murder trial commenced in September of 1997. At trial, the Commonwealth presented, inter alia, the testimony of Michael Torres who for a time was Appellant's cellmate while he was incarcerated on the aggravated assault charge. Torres testified that Appellant often spoke of killing his wife and that on the day Appellant was released from prison he stated, "I'll be back for killing my wife." The Commonwealth also presented the testimony of forensic pathologist, Richard Callery, M.D., who testified that the victim died because of the numerous stab wounds she sustained, which caused severe internal bleeding. The doctor also opined that the victim died while being subjected to forcible intercourse. In his defense, Appellant presented the testimony of a witness who stated that Torres had fabricated his testimony. At the conclusion of the trial, the trial court found Appellant guilty of the above enumerated offenses.
After Appellant waived his right to a jury trial, a penalty hearing was held before the trial court. At the penalty hearing the Commonwealth presented evidence on two aggravating circumstances, namely, that Appellant committed the murder during the perpetration of a felony, in this case rape, 42 Pa.C.S. § 9711(d)(6), and by means of torture, 42 Pa.C.S. § 9711(d)(8). Appellant thereafter asserted that two mitigating circumstances applied: Appellant lacked the capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3), and the "catch-all provision," 42 Pa.C.S. § 9711(e)(8). At the conclusion of the penalty hearing, the trial court found one aggravating circumstance, Section 9711(d)(6), and one mitigating circumstance, Section 9711(e)(3). Upon weighing the aggravating and mitigating circumstances, the trial court fixed the penalty at death. The court formally imposed that sentence on October 27, 1997, together with a consecutive sentence of ten to twenty years incarceration on the rape conviction.
Appellant appealed to this Court arguing that the trial court erred in denying his motion to suppress, the evidence was insufficient to support his convictions for rape and indecent assault, and the aggravating circumstance did not outweigh the mitigating circumstance. This Court affirmed the judgment of sentence on January 20, 1999. Commonwealth v. Dennis Miller, 555 Pa. 354, 724 A.2d 895 (1999). Appellant was represented by the same attorney at trial and on appeal.
On October 29, 1999, Appellant filed a pro se PCRA petition.[4] The PCRA court entered an order on November 8, 1999, granting Appellant an emergency stay of his death sentence pending disposition of his request for relief under the PCRA. The PCRA court also appointed two attorneys to represent Appellant. On June 7, 2000, Appellant filed an amended petition. He [648] thereafter filed several supplemental petitions and requests for discovery, which included a request for high-resolution scans of the negatives of the photographs of the crime scene. The PCRA court denied Appellant's request for the high-resolution scan of the negatives on July 19, 2002.
On October 17, 2003, the Commonwealth filed its answer and a pre-hearing memorandum requesting that the PCRA court dismiss some of Appellant's claims because they had been previously litigated. On December 31, 2004, the PCRA court, in a written opinion and order, granted in part and denied in part the Commonwealth's request.
An evidentiary hearing was conducted in late October 2003. In the months following the hearing, Appellant filed several motions asking permission to supplement the record with the victim's medical records and documents relating to Michael Torres. The PCRA court denied both requests in written orders filed January 19, 2005, and November 30, 2005. The Appellant also sought permission to present the testimony of Dr. Callery, the forensic pathologist who testified at trial. Appellant sought to present the doctor's testimony to clarify his trial testimony with respect to whether the victim had been raped. Following a hearing, Appellant's request was denied. On June 30, 2007, the PCRA court issued an opinion and order denying Appellant post-conviction collateral relief (PCRA Court Opinion, 6/30/07). Appellant thereafter timely filed the instant appeal.[5] The PCRA Court requested a Pa.R.A.P. 1925(b) Statement, and on November 2, 2007, the court issued a Rule 1925(a) Opinion (PCRA Court Opinion, 11/2/07).
The standard of review applicable to appeals from the denial of PCRA relief requires this Court to ascertain whether the PCRA court's rulings are supported by the record and free of legal error. Commonwealth v. Fahy, 598 Pa. 584, 959 A.2d 312, 316 (2008); Commonwealth v. Stokes, 598 Pa. 574, 959 A.2d 306, 309 (2008). "In order to be eligible for PCRA relief, [a petitioner] must prove by a preponderance of the evidence that his conviction or sentence resulted from one or more of the enumerated circumstances found at 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Steele, 599 Pa. 341, 961 A.2d 786, 796 (2008).
Appellant raises thirteen issues on appeal including claims that prior counsel failed to provide effective assistance of counsel. In order to be eligible for relief on a claim alleging ineffective assistance of counsel, a defendant must establish that counsels representation fell below accepted standards of advocacy and that as a result thereof, prejudice resulted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice results when "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. In Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987), this Court interpreted the Strickland standard as requiring proof that: (1) the underlying claim is of arguable merit; (2) counsel's performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Collins, 598 Pa. 397, 957 A.2d 237, 244 (2008). A chosen strategy will not be found to have been unreasonable unless it is proven that the path not chosen "`offered a potential for success substantially [649] greater than the course actually pursued.'" Commonwealth v. Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). Finally, to prove prejudice, a defendant must show that but for counsel's error, there is a reasonable probability, i.e., a probability that undermines confidence in the result, that the outcome of the proceeding would have been different. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1084 (2006) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A defendant's failure to satisfy even one of the three requirements results in the denial of relief. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 614 (2008).
Having articulated the standards applicable to appeals from the denial of PCRA relief and claims alleging ineffective assistance of counsel, we turn to a review of the issues raised by Appellant. We have re-ordered Appellant's issues for ease of review in accordance with their relation to the guilt, penalty, or PCRA phases of the proceeding.
GUILT PHASE ISSUES
1. A New Trial Is Warranted Because Trial Counsel Failed to Investigate and Present Evidence Showing that the Victim Was Killed in the Heat of Passion.
Appellant asserts that he should have been granted a new trial because trial counsel failed to investigate and present evidence demonstrating that Appellant killed his wife in the heat of passion. In support of this claim, Appellant faults trial counsel for not calling during trial Dr. Gerald Cooke, a psychologist who had been retained by the defense for the penalty phase. Appellant claims Dr. Cooke would have opined that the killing was consistent with an explosive rage premised on Appellant's "personality makeup, his drug use and everything he told [Dr. Cooke] about the incident". Appellant's Brief, 18 (citing N.T. 10/29/03, 440). Appellant also contends that trial counsel's representation was deficient because he did not interview or call as witnesses several of Appellant's family members. According to Appellant, these witnesses would have testified that Appellant and the victim had a tumultuous relationship that was fueled by drug and alcohol abuse, that the victim saw other men, that she was impregnated by another man and had an abortion, that knives were kept in the bedroom where the murder occurred, and that the bed was broken prior to the day of the murder. Finally, Appellant states that trial counsel should have presented expert testimony demonstrating that the manner in which the victim was killed (multiple stab wounds) was typical of a "very angry assailant, an emotionally charged assailant," as well as testimony opining that the killing was committed in the heat of passion and that Appellant suffered from brain damage that affected his ability to appreciate the consequences of his actions.[6] Appellant's Brief, 21-22.
Appellant is entitled to no relief on this claim. A person is guilty of "heat of passion" voluntary manslaughter "if at the time of the killing [he or she] reacted under a sudden and intense passion resulting from serious provocation by the victim." Commonwealth v. Ragan, 560 Pa. [650] 106, 743 A.2d 390, 396 (1999). "`Heat of passion' includes emotions such as anger, rage, sudden resentment or terror which renders the mind incapable of reason." Commonwealth v. Mason, 559 Pa. 500, 741 A.2d 708, 713 (1999). An objective standard is applied to determine whether the provocation was sufficient to support the defense of "heat of passion" voluntary manslaughter. Commonwealth v. Laich, 566 Pa. 19, 777 A.2d 1057, 1066 (2001). "The ultimate test for adequate provocation remains whether a reasonable man, confronted with this series of events, became impassioned to the extent that his mind was incapable of cool reflection." Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248, 252 (1981).
The PCRA court's opinion indicates that trial counsel not only did an "exceptional" job in attempting to establish that the killing was committed in the "heat of passion," but also that the refusal of Appellant to testify handicapped trial counsel because he was unable, without Appellant's testimony, to establish Appellant's state of mind at the time of the killing. The PCRA court wrote:
Based on the totality of the circumstances, the court finds that trial counsel was not ineffective for failing to establish a heat of passion defense. To the contrary, counsel did an exceptional job of getting evidence and argument regarding heat of passion into the record despite the defendant's refusal to take the stand. Further the testimony of the other alleged witnesses would either have been not admissible or irrelevant and/or not helpful. Thus, trial counsel was not ineffective for failing to call said witnesses during the trial.
PCRA Court Opinion, 6/30/07, 25. The PCRA Court's reasons for rejecting this claim were correct as they indicate that the court had considered and rejected the evidence submitted at trial by Appellant regarding his claim that the killing was committed in the heat of passion and that the additional evidence would have resulted in a different outcome. The reason for this is clear, namely, the additional evidence fails to establish that the killing resulted from a sudden and intense passion resulting from serious provocation caused by the victim contemporaneously with the killing. Once Appellant refused to testify about the events surrounding the killing, he made it virtually impossible for counsel to convince the trial court that the killing was committed in the "heat of passion" insofar as the record lacked any evidence that the killing was the result of some provocative act committed by the victim or that Appellant killed the victim in the "heat of passion" as a consequence of the victim's provocation of him. Under the circumstances, the PCRA did not err in denying relief on this claim.
Even were we to consider the additional evidence and testimony Appellant claims trial counsel was ineffective for not presenting at trial, which concerns his wife's alleged infidelity and their stormy relationship, it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim. While Appellant claims that the victim's apparent infidelity and flirtatiousness, when coupled with his own mental state, were sufficient to cause him to act with sudden and intense passion, we note Appellant was well aware of his wife's proclivities prior to the day of the killing and trial counsel introduced evidence establishing this. Thus, the evidence Appellant claims should have been introduced on this issue was merely cumulative of evidence already presented at trial. Moreover, the evidence shows [651] that although Appellant and his wife argued while together at the bar, he calmed down and appeared to be in control of his faculties following the argument. N.T. 9/30/97, 213, 220. Also the note Appellant left at the scene evinces that he had not acted in the "heat of passion" but rather in a calculating manner.
In numerous cases, evidence showing a history of minor disputes and allegations of past infidelity has been held not to be sufficiently provocative to reduce murder to manslaughter. See Commonwealth v. Frederick, 508 Pa. 527, 498 A.2d 1322 (1985) (holding that evidence of a stormy relationship and of an argument between the defendant and his victim earlier on the day of the killing was not sufficient evidence of provocation to require a heat of passion jury instruction); Commonwealth v. Pirela, 510 Pa. 43, 507 A.2d 23 (1986) (holding that defendant, who killed a man defendant believed killed his brother twenty-four hours prior thereto, was not acting under sudden passion); Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977) (holding argument between defendant and her mother's husband over black-eyed peas and leaving door open, which occurred approximately one half-hour to an hour before fatal stabbing of husband, was not adequate legal provocation to reduce murder to voluntary manslaughter); Commonwealth v. Walter Brown, 436 Pa. 423, 260 A.2d 742 (1970) (holding refusal of wife to return home, which caused husband to lose control and stab her, was not sufficient provocation to justify finding of voluntary manslaughter). In Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970), the defendant, who claimed that he was provoked to kill his wife because his wife may have seen another man while he himself was incarcerated, argued that it was error to refuse a request that the jury be instructed on heat of passion voluntary manslaughter. This Court found no merit to the claim, stating:
Unfortunately, this evidence, even if true, does not come close to establishing the prerequisites of voluntary manslaughter as set forth in Commonwealth v. Barnosky, 436 Pa. 59, 64, 258 A.2d 512, 515:
"To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state or rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting-if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Commonwealth v. Drum, 58 Pa. 9(17)'[sic]; Commonwealth v. Paese, 220 Pa. 371, 373, 69 A. 891, 892 (1908), cited in Commonwealth v. Drum, 58 Pa. 9(17).'[sic] Com-2d 757, 762 (1968).[sic] See Commonwealth v. Palermo, 368 Pa. 28, 81 A.2d 540 (1951); Commonwealth v. Cargill, 357 Pa. 510, 55 A.2d 373 (1947)."
Collins, 269 A.2d at 885-86.
The foregoing cases make clear that the acts of provocation relied upon by Appellant were simply not acts which society is prepared to recognize as providing sufficient provocation to reduce the crime of murder to manslaughter. Thus, trial counsel was correctly deemed not to have been ineffective for failing to present such evidence.
Appellant further argues, however, that when this evidence is coupled with the proposed testimony of the expert witnesses identified above, it establishes that the killing was committed in the "heat of [652] passion." In the absence of evidence about what precipitated the killing, one simply cannot draw the conclusion that Appellant killed his wife in a fit of rage after she provoked him. While Appellant's psychological makeup may have rendered him unable to handle his wife's infidelity and the couple's marital difficulties, absent some evidence that his wife committed an act sufficiently provocative at the time of or very shortly before the killing, the testimony of the expert witnesses was irrelevant. See Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972) (indicating that before a defendant's state of mind becomes relevant as to whether there was sufficient provocation, a defendant must first present evidence of provocation). Thus, trial counsel cannot be faulted for failing to introduce the identified expert testimony at trial. In view of the foregoing, we affirm the PCRA court's ruling that trial counsel was not ineffective for failing to investigate and introduce at trial the suggested additional evidence pertaining to whether the killing was committed in the heat of passion.
2. Trial Counsel Was Ineffective for Failing to Investigate and Present Expert Testimony to Rebut the Commonwealth's Assertion that the Victim Was Raped.
Appellant accuses trial counsel of providing him with ineffective assistance of counsel for not investigating and presenting evidence to rebut the Commonwealth's claim that Appellant raped the victim. Appellant submits that had such evidence been presented, the trial court would have ruled that the evidence was insufficient to support the rape charge.
During the PCRA evidentiary hearing, Appellant presented the testimony of two expert witnesses, Dr. Peter R. DeForest, a professor of criminalistics at John Jay College of Criminal Justice, and Dr. Charles Wetli, Chief Medical Examiner for Suffolk County. Dr. DeForest testified that his examination of the physical evidence in the case led him to the conclusion that the victim had not been raped. In reaching this conclusion, Dr. DeForest opined that the grounds relied upon by Dr. Callery in finding that a rape occurred, namely, the lack of blood below her stomach, the volume of fluid in her vagina, and the position in which her body was found, were insufficient to prove that a rape occurred, due either to more plausible explanations or the lack of adequate testing. N.T. 10/28/03, 285-91. Dr. DeForest further testified that trial counsel's cross-examination of Dr. Callery was grossly inadequate. N.T. 10/28/03, 292-96. Dr. DeForest indicated that his examination of the evidence and the opinions he rendered were based on scientific principles that were available in 1997 prior to the commencement of trial in this case. N.T. 10/28/03, 300.
Dr. Wetli also testified that there was no evidence of forcible rape. He based his conclusion on the lack of trauma to the victim's genital region and the fact that there was no evidence of strangulation or asphyxiation, which he opined almost always occurs during a forcible sexual assault. N.T. 10/28/03, 330-31. According to Dr. Wetli, the victim's defensive injuries were more consistent with her assailant straddling her chest than with his having intercourse with her at the time. N.T. 10/28/03, 333.
Both Dr. DeForest and Dr. Wetli conceded that they could not rule out that the victim had been forcibly raped. N.T. 10/28/03, 320, 352. During cross-examination, Dr. DeForest qualified his opinion that the position of the victim's body made it unlikely that a rape occurred by admitting that intercourse could have occurred in the position in which the victim was [653] found. N.T. 10/28/03, 307. He also conceded that the defensive wounds found on the victim's body demonstrated that she was resisting the attack. N.T. 10/28/03, 315-16.
Trial counsel testified that based on his experience, he believed that it was not necessary to consult an expert to rebut the evidence that a rape occurred because he did not think that Dr. Callery would be found credible. N.T. 10/27/03, 85-87. Although counsel could not recall what he did in preparing to cross-examine Dr. Callery, he recalled he did take steps to discredit his testimony.
The PCRA court found this claim lacked merit for several reasons, the most salient one being that Appellant failed to prove that trial counsel's actions lacked a reasonable basis. PCRA Court Opinion, 6/30/07, 9.[7] Trial counsel testified that he did not seek out and retain an expert because his review of the evidence made it pellucidly clear to him that no rape occurred and that it was his belief that anyone who reviewed the evidence would draw the same conclusion he did. N.T. 10/27/03, 85-86. Trial counsel also related that it was his belief that he could rebut and undermine the testimony of Dr. Callery, the Commonwealth's expert witness, with respect to whether a rape occurred without the assistance of an expert witness through skillful cross-examination of Dr. Callery. N.T. 10/27/03, 87. Counsel drew this conclusion from his cross-examination of Dr. Callery at a pre-trial hearing during which he extensively cross-examined the doctor and elicited from him several inconsistencies with respect to whether the doctor was of the opinion, to a reasonable degree of medical certainty, that the murder and the sexual intercourse occurred simultaneously. Thus, the PCRA court concluded that "counsel reasonably thought that he did not need to retain additional experts in this case." PCRA Court Opinion, 6/30/07, 9.
On the basis of trial counsel's testimony, we cannot say that the PCRA court erred in concluding that trial counsel had a reasonable basis for not seeking out an expert witness to rebut Dr. Callery's testimony. This Court's review of matters involving trial strategy is deferential. Trial counsel will be deemed to have acted reasonably if the course chosen by trial counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Puksar, 597 Pa. 240, 951 A.2d 267, 277 (2008). Moreover, a claim of ineffectiveness will not succeed by comparing, in hindsight, the trial strategy trial counsel actually employed with the alternatives foregone. Id. Finally, "[a]lthough we do not disregard completely the reasonableness of other alternatives available to counsel, `the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel's decision had any reasonable basis.'" Commonwealth v. Cooper, 596 Pa. 119, 941 A.2d 655 (2007) (quoting Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)).
Since the record supports the PCRA court's finding that trial counsel had a reasonable basis for not consulting with an expert witness, Appellant is denied relief with respect to this claim.
[654]
Brady v. Maryland
In this claim, Appellant complains that trial counsel was ineffective because he did not conduct any investigation with respect to Commonwealth witness Michael Torres, Appellant's former cellmate, who testified at trial that Appellant said he would be back in prison for killing the victim. N.T. 9/30/97, 180-81. According to Appellant, at the time he allegedly heard Appellant utter the threat, Torres was manic-depressive and bi-polar, was suffering from auditory hallucinations, and was being treated with psychotropic medication. Such information, Appellant maintains, was contained in various prison records and reports and in a pre-sentence report prepared by Northampton County officials after Torres had been convicted on drug and robbery charges. Appellant submits that trial counsel had an obligation to obtain these documents and could have obtained them had he simply conducted an investigation of Torres. Appellant argues that trial counsel's failure to investigate Torres entitles him to a new trial because Torres provided the only direct testimony that Appellant acted with premeditation when he killed the victim.
In a related claim, Appellant accuses the Commonwealth of violating the holding of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it failed to provide the defense with a copy of Torres's pre-sentence report. According to Appellant, the Commonwealth had an obligation under Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001), to obtain the pre-sentence report from Northampton County authorities because it contained exculpatory information and was under the control of another governmental agency.
Neither claim entitles Appellant to relief. First, Appellant's attack on trial counsel's stewardship affords him no relief because trial counsel had no reason to believe that Torres was suffering from mental health problems. Although Torres was Appellant's cellmate for two months and spent significant time with Appellant in prison, Torres never told Appellant about his mental problems or acted in a manner suggesting that he had any. In fact, Torres never advised the prosecutor or the police involved in the instant matter about any mental problems. Torres admitted this at the evidentiary hearing held in this matter. N.T. 10/28/03, 224, 227, 235-36, 244.[8]
In addition, the claim does not entitle Appellant to relief because he has not met his burden of establishing that he suffered prejudice because of trial counsel's alleged nonfeasance. According to Appellant, he was prejudiced by trial counsel's failure to investigate Torres because Torres's testimony "was critical to establishing the specific intent element of first-degree murder as [t]here was little else in the case that pointed to any kind of deliberation or premeditation of any kind." Appellant's Brief, 38. Appellant is mistaken. In addition to the use of a deadly weapon on vital parts of the victim's body,[9] [655] Appellant left the incriminating note wherein he admitted that he killed the victim willfully. Thus, Torres's testimony was not as critical as Appellant claims it was with respect to proof that he acted with specific intent to kill.
Additionally, the PCRA court found Torres's recantation and Appellant's ignorance of Torres's mental health problems, including Torres's claim that he was hearing voices while incarcerated with Appellant, incredible because Appellant and Torres were cellmates and spent significant time together. PCRA Court Opinion, 6/30/07, 6-7. The PCRA court also noted that Torres had been threatened while in prison, which prompted prison authorities to move him on two occasions to other facilities after he testified against Appellant. The PCRA court attributed Torres's change of testimony to the threats and a desire to assist a friend and former co-prisoner. Finally, the PCRA court held that trial counsel effectively undermined Torres's testimony by presenting the testimony of a witness who stated that Torres admitted he was going to lie about what Appellant may have said to him in order to help himself. PCRA Court Opinion, 6/30/07, 7. We find that the reasons proffered by the PCRA court support its decision. Accordingly, Appellant has failed to establish that he was prejudiced by trial counsel's failure to conduct an investigation of Torres, and therefore, Appellant is not entitled to relief with respect to this claim of ineffectiveness. See Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 93 (1998) (holding that where there is support in the record for a PCRA court's credibility determinations, this Court is bound by those determinations).
Appellant's claim that the Commonwealth violated the holding of Brady v. Maryland, supra, by failing to provide a copy of Torres's pre-sentence report to the defense lacks merit as well. In order to succeed on a Brady claim, a defendant must establish that the evidence withheld was favorable to him, i.e., that it was exculpatory or had impeachment value; the evidence was suppressed by the prosecution; and prejudice resulted. Commonwealth v. Sattazahn, 597 Pa. 648, 952 A.2d 640, 658 n. 12 (2008). In order to establish prejudice, a defendant is obliged to show that "the evidence in question was material to guilt or punishment, and that there is a reasonable probability that the result of the proceeding would have been different but for the alleged suppression of the evidence." Commonwealth v. James Dennis, 597 Pa. 159, 950 A.2d 945, 966 (2008) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194; Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). On this point, this Court has stated, "[i]f there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial." Commonwealth v. Green, 536 Pa. 599, 640 A.2d 1242, 1245 (1994) (quoting United States v. Agurs, 427 U.S. 97, 112-13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). Further, "[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 887 (2002) (emphasis added). Finally, a Brady violation will not afford a defendant relief if the defendant either knew of the existence of the evidence in dispute or could have discovered it by exercising reasonable diligence. Commonwealth v. Morris, 573 Pa. 157, 822 A.2d 684, 696 (2003).
[656] Instantly, Appellant's claim fails for myriad reasons. First, Appellant has failed to establish that the result of the proceedings would have been different had the pre-sentence report been provided to the defense. As noted above, the record was replete with evidence establishing that Appellant was guilty of the crimes he was convicted of committing, including first-degree murder. Thus, Torres's testimony was not crucial to the verdict rendered by the trial court and the verdict would not have been different had the pre-sentence report been provided to the defense.
In addition, the Commonwealth was not required to obtain the pre-sentence report and provide it to the defense because the governmental agency that possessed it was not involved in the prosecution of Appellant. In Commonwealth v. Burke, supra, this Court first applied the rule laid down by the United States Supreme Court in Kyles v. Whitley, supra, wherein the Supreme Court held that the prosecution has a duty to provide the defense with exculpatory evidence contained in the files of police agencies of the same government bringing the prosecution, even though the prosecution was unaware of the existence of the evidence. The United States Supreme Court, however, limited its holding to those agencies that were involved in the prosecution of the accused. Whitley, 514 U.S. at 437, 115 S.Ct. 1555 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). Here, Appellant has failed to establish that the government agency or agencies having possession of the pre-sentence report were involved in the prosecution of Appellant. Consequently, the prosecution herein had no obligation to acquire or provide the report to the defense. Accordingly, we hold Appellant's claim of ineffectiveness and his allegation that the Brady rule was violated are meritless and entitle him to no relief.
4. Trial Counsel Was Ineffective for Failing to Object to the Testimony of Dr. Richard Callery about the Occurrence of Rape Because Dr. Callery's Opinion Fell Below the Standard of Proof Required in the Commonwealth.
Appellant contends that he is entitled to a new trial because of trial counsel's failure to object to the testimony of Dr. Richard Callery, the Commonwealth's medical expert, regarding whether the victim had been raped. Appellant asserts that trial counsel should have objected to Dr. Callery's testimony on the ground that Dr. Callery failed to state that a rape occurred to a reasonable degree of medical certainty.
A review of the applicable law indicates that "magic words" need not be uttered by an expert in order for his or her testimony to be admissible. Commonwealth v. Baez, 554 Pa. 66, 720 A.2d 711, 728 (1998); Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1160 (2000). Rather, the substance of the testimony presented by the expert must be reviewed to determine whether the opinion rendered was based on the requisite degree of certainty and not on mere speculation. Spotz, 756 A.2d at 1160.
Trial counsel testified that he did not proffer an objection to Dr. Callery's testimony because three weeks prior to Dr. Callery's taking of the witness stand, Dr. Callery testified during a pre-trial hearing that it was his opinion that a rape occurred and that if he proffered an objection, the Commonwealth would have been permitted to elicit the necessary testimony from the doctor. In addition, trial counsel testified that he did not object, and give the Commonwealth an opportunity to elicit from [657] Dr. Callery the "magic words" because he made the tactical decision to use that omission to argue to the trial court that no rape occurred.
The PCRA Court ruled that this ineffectiveness claim lacked merit because trial counsel had a reasonable basis for failing to object. PCRA Court's Opinion, 11/2/07, 30-31. We agree. Counsel was correct in surmising that an objection likely would have resulted in the Commonwealth seeking and being granted permission to elicit from Dr. Callery his opinion that a rape had occurred herein given that the doctor had offered that opinion prior to trial. Thus, had trial counsel proffered an objection, his strategy to use the omission to argue that there had been no rape would have been negated by the anticipated opinion testimony of Dr. Callery that the victim had been raped. Trial counsel's strategy was reasonable given that had the trial court determined that Dr. Callery's opinion testimony was insufficient to establish a rape because the doctor did not utter the "magic words," as trial counsel argued, the Commonwealth would have been without a viable aggravating circumstance. Accordingly, because trial counsel had a reasonable basis for not objecting here, Appellant's claim with respect to this issue was properly denied by the PCRA court.
5. The PCRA Court Committed an Abuse of Discretion in Refusing to Permit the Defense to Amend Appellant's PCRA Petition Two Years after the Evidentiary Hearing Was Conducted.
Almost two years after the evidentiary hearing, Appellant filed a petition with the PCRA court requesting permission to supplement the record with an affidavit signed by Dr. Callery.[10] Appellant also requested that Dr. Callery be permitted to testify that he could not opine to a reasonable degree of medical certainty that the victim had been raped. In an order dated July 27, 2006, the PCRA court denied the petition. Appellant contends that the PCRA court committed an abuse of discretion in denying his petition because the contents of Dr. Callery's affidavit and his proposed testimony directly refute the finding that Appellant raped the victim. In addition, Appellant complains that the petition should have been granted in the interests of justice given that Appellant's rape conviction served as the only basis for finding the aggravating circumstance set forth at 42 Pa.C.S. § 9711(d)(6). Finally, Appellant asserts that he is entitled to relief because of the ineffectiveness of trial counsel who, Appellant claims, failed to conduct an investigation into whether the victim had been raped.
The PCRA court, in addressing this claim in its Rule 1925(a) opinion, declared that no relief was due because Appellant was seeking to introduce Dr. Callery's affidavit and testimony solely to re-litigate the issue of whether the evidence was sufficient to support the rape conviction, a claim this Court rejected on direct appeal. Miller, 724 A.2d at 901. Thus, the PCRA court ruled that the claim was not cognizable under the PCRA.[11] PCRA Court Opinion, 11/2/07, 9-10. The PCRA court further indicated that Dr. Callery's apparent retraction of his trial testimony does not [658] establish that trial counsel was ineffective and that the record, even without Dr. Callery's testimony, supported the finding that Appellant had raped the victim. PCRA Court Opinion, 11/2/07, 10-11.
Before we may review any of Appellant's arguments, we must determine whether the PCRA court was correct in holding that the claim was previously litigated. If we determine the PCRA court properly held the claim was previously litigated, we are precluded by the PCRA from reviewing it. See Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 617 (2007) (holding that previously litigated claim is not cognizable under the PCRA); Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693, 708 (1998) (same). The difficulty here is that Appellant has raised two claims that do not allege ineffective assistance of counsel: he alleges that the PCRA court committed an abuse of discretion in denying his petition and that the court should have granted his petition in the interests of justice. To further complicate matters, Appellant's claim of ineffective assistance of counsel contains no discussion of these issues and states that trial counsel was ineffective for failing to interview Dr. Callery and investigate whether a rape had occurred. Appellant's Brief, 48-49.
A review of the two claims not alleging ineffective assistance of counsel leads ineluctably to the conclusion that they comprise an issue that was previously litigated, namely, whether the evidence was sufficient to support Appellant's rape conviction. This becomes readily clear upon reviewing Appellant's brief and the material he sought to introduce. For example, Appellant argues that the PCRA court abused its discretion because it denied Appellant the opportunity "to demonstrate that the prosecution was without any competent evidence of the commission of rape." Appellant's Brief, 45. He also claims that the interests of justice demand that he be granted relief with respect to "this issue" so that he may be given an opportunity to rebut the testimony of the medical examiner. Appellant's Brief, 47.
In Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564 (2005), this Court defined the term "issue" for purposes of the PCRA as follows:
That term, as used in "pleading and practice," is understood to mean "a single, certain, and material point, deduced by the allegations and pleadings of the parties, which is affirmed on the one side and denied on the other." Black's Law Dictionary, 6th ed. 831. Thus, "issue" refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief. See, e.g., Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (defining "grounds" as "a sufficient legal basis for granting the relief sought by the applicant"). The theories or allegations in support of the ground are simply a subset of the issue presented. Stated another way, there can be many theories or allegations in support of a single issue, but ultimately, § 9544(a)(2) refers to the discrete legal ground raised and decided on direct review. Thus, at the most basic level, this section prevents the relitigation of the same legal ground under alternative theories or allegations. See, e.g., Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973) (concluding that a new theory in support of the same claim of trial counsel ineffectiveness was unavailing since the claim was decided adversely [659] to petitioner in his previous direct appeal); Commonwealth v. Slavik, 449 Pa. 424, 297 A.2d 920 (1972) ("A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced.").
888 A.2d at 570. Here, insofar as Appellant sought to introduce the material in question to demonstrate that the evidence was insufficient to sustain Appellant's rape conviction, the PCRA court was correct in finding that it was precluded from addressing the issue because it had been previously litigated. See Miller, 724 A.2d at 901. Thus, no error was committed by the PCRA court in denying relief with respect to Appellant's first two claims.[12]
Although Appellant's first two claims are not cognizable because they concern issues previously litigated, the same is not true with respect to Appellant's ineffectiveness claim. In Collins, supra, we ruled that claims of ineffective assistance of counsel constitute separate and distinct issues that may be raised in a collateral proceeding attacking the verdict. Collins, 888 A.2d at 570. Such claims are to be analyzed pursuant to the three-prong ineffectiveness test generally applicable to such claims. Id. at 573.
An application of that test to the instant claim indicates that Appellant is not entitled to any relief. Appellant argues that the claim has arguable merit based on an assertion that had trial counsel sought out experts or "interviewed Dr. Callery, there is a reasonable probability that Dr. Callery would have given him the same information he provided to undersigned counsel, and counsel could have moved to exclude his testimony on rape as not competent, due to an insufficient level of certainty." Appellant's Brief, 48. However, Appellant's argument amounts to nothing more than mere speculation. There is no indication in the record that Dr. Callery would have advised trial counsel before the trial commenced that it was his belief that no rape occurred if only trial counsel had interviewed him. In fact, according to the PCRA court, Dr. Callery twice affirmed at two previous hearings that it was his opinion that a rape occurred despite vigorous cross-examination by trial counsel. PCRA Court Opinion, 10. Thus, Appellant is not entitled to relief as he has failed to establish that trial counsel was ineffective for the reasons stated.
6. A New Trial Should Be Granted Because Appellant's Waiver of His Right to a Jury Trial and His Right To Testify Were Inadequate.
It is Appellant's position that a new trial should be awarded because the ineffectiveness of trial counsel rendered his waiver of his right to a jury trial and his waiver of his right to testify unknowing and unintelligent and thus invalid. According to Appellant, he "could not knowingly and intelligently waive a jury trial [or his right to testify] given [trial] counsel's dearth of investigation and the wealth of information that was available to counsel but of which counsel was unaware."[13] Appellant's [660] Brief, 50. In addition, Appellant submits that because trial counsel's pre-trial investigation was inadequate, counsel "could not have properly advised Appellant to waive his right to a jury trial." Appellant's Brief, 50.
Appellant is entitled to no relief with respect to this issue because we have held that trial counsel was not ineffective for the reasons stated by Appellant. Moreover, Appellant has failed to meet the prejudice prong of the ineffectiveness test here since he never alleged or proved that but for counsel's alleged ineffectiveness he would not have waived a jury trial. See Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 697 (2008) (holding that in order to meet the prejudice prong of the ineffectiveness test, a defendant alleging that a jury waiver colloquy was deficient must establish that the outcome would have been different, i.e., that but for counsel's ineffectiveness he would not have waived a jury trial); Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657, 663 (1998) (Opinion Announcing the Judgment of the Court) (stating that this Court cannot presume that a defendant would have chosen a jury trial; burden is on defendant to set forth a factual predicate establishing same before relief may be granted).
Notably, a review of the record of the jury waiver hearing demonstrates that Appellant's waiver comported with the law. A valid waiver of the right to a jury trial must contain evidence that the accused understood the fundamental essentials of a jury trial which are: "1) that the jury be chosen from members of the community (i.e., a jury of one's peers), 2) that the accused be allowed to participate in the selection of the jury panel, and 3) that the verdict be unanimous." Commonwealth v. Houck, 596 Pa. 683, 948 A.2d 780, 787 (2008); see also Mallory, supra. Instantly, the record demonstrates that Appellant signed a written jury waiver colloquy form that set forth the essential elements of a jury trial and explained all of the rights Appellant was waiving by deciding to be tried by a judge and not a jury. In addition, the trial court questioned Appellant twice on the record regarding his decision to waive his right to a jury trial. N.T. 9/24/97, 2-20; N.T. 9/29/97, 9-12. On both occasions, Appellant averred that he understood the rights associated with the right to a jury and that he was waiving them knowingly, intelligently, and voluntarily. In this regard, Appellant's waiver of his right to a jury trial appears to be unassailable.
Appellant's contention that his waiver of his right to testify was invalid lacks merit for the same reason that the foregoing claim did, namely, Appellant has failed to prove that but for trial counsel's ineffectiveness, he would have testified. Claims alleging ineffectiveness of counsel premised on allegations that trial counsel's actions interfered with an accused's right to testify require a defendant to prove either that "counsel interfered with his right to testify, or that counsel gave specific advice so unreasonable as to vitiate a knowing and intelligent decision to testify on his own behalf." Commonwealth v. Nieves, 560 Pa. 529, 746 A.2d 1102, 1104 (2000). See also Commonwealth v. Uderra, 550 Pa. 389, 706 A.2d 334 (1998).
By not testifying at the evidentiary hearing, Appellant has placed this Court in the position of having to guess whether counsel's ineffectiveness interfered with his right to testify. Furthermore, trial counsel testified at the evidentiary hearing that he asked Appellant to testify both at trial and during the penalty hearing and [661] Appellant refused. N.T. 10/27/03, 77-78, 80. We may not engage in speculation on this issue and thus Appellant's claim is meritless.
PENALTY PHASE ISSUES
7. Appellant's Waiver of a Jury for the Penalty Phase Was Invalid; Trial Counsel Was Ineffective for Not Objecting to the Waiver Colloquy and for Not Raising the Issue on Appeal.
Appellant argues that he is entitled to the reversal of his death sentence and a remand for a new penalty hearing because the jury waiver colloquy was insufficient and did not adequately and comprehensively advise him of the rights he was waiving and the salient differences between the guilt and penalty phases of a capital case. Appellant complains that in questioning him, the trial court did not advise him that if the jury could not agree upon a penalty verdict, a sentence of life imprisonment would be recorded and also that mitigating circumstances could be found individually by each of the jurors. Appellant's Brief, 59-60. Thus, he claims that his waiver was unknowing and unintelligent. In addition, Appellant accuses trial counsel of providing ineffective assistance of counsel for not objecting to the allegedly defective colloquy and for not arguing on appeal that that a new penalty was warranted because the waiver colloquy was incomplete.
The record of Appellant's trial indicates that the trial court conducted three separate colloquies of Appellant, one on September 24, 1997, one on September 29, 1997, and one on October 2, 1997. The final colloquy occurred immediately prior to the commencement of the penalty hearing. N.T. 10/2/97, 284-86. No objection was made as to the inadequacy of the colloquies at any time nor was the issue raised on appeal. Thus, for purposes of the PCRA, the claim was waived because it could have been raised previously. See 42 Pa.C.S. § 9544(b). Consequently, in order to obtain relief on this claim Appellant was obliged to establish that trial counsel was ineffective for not proffering an objection asserting that the colloquies were legally insufficient for the reasons stated by Appellant.[14] Commonwealth v. Gribble, 580 Pa. 647, 863 A.2d 455 (2004). See also Commonwealth v. Rainey, 593 Pa. 67, 928 A.2d 215, 228 (2007). A review of the record indicates that Appellant has failed to meet his burden of proving that trial counsel was ineffective because he has failed to establish that he was prejudiced by counsel's alleged ineffectiveness.
In the discussion of the previous issue, we referred to Mallory, supra. In Mallory, this Court held that in order to establish prejudice in a matter alleging that a jury waiver colloquy was deficient, a defendant must establish that, but for counsel's ineffectiveness, he or she would not have waived the right to a jury trial. As we have already stated, the record is devoid of evidence demonstrating that Appellant would have elected to have a jury decide his sentence had trial counsel not been ineffective. Since the failure to establish even one of the three requirements of the ineffectiveness standard undermines an ineffective assistance of counsel claim, it is clear that Appellant is entitled to no relief on this issue. Cook, supra.[15]
[662]
8. Trial Counsel Was Ineffective for Failing to Investigate and Present All Available Mitigating Evidence During the Penalty Hearing
Appellant contends that trial counsel was ineffective because he failed to investigate and present readily available evidence of Appellant's child abuse, family dysfunction, mental health deficits, brain impairment, problems while in school, and "complex and tragic" relationship with the victim.[16] Appellant's Brief, 65, 77. Appellant also asserts that trial counsel should have introduced evidence showing that Appellant had a brain lesion removed in 1984, attended drug treatment programs, had a history of drug abuse, and the victim obtained an "order of Attachment of Income" against Appellant just prior to the slaying. Appellant's Brief, 77. Appellant also faults trial counsel for not interviewing and/or calling as witnesses during the penalty hearing his mother Agnes Miller, his sisters, Glenna Saganich, Linda Drew, and Brenda Sue Pennington, his brother Kenneth Miller, his daughter Barbara Miller, and the victim's sister Helen Pennington. Through these witnesses, Appellant claims, trial counsel could have convinced the trial court, sitting as factfinder, to enter a sentence of life imprisonment.
During the penalty hearing, after the Commonwealth presented evidence that Appellant had been convicted of rape and victim-impact testimony from Appellant's daughter, Barbara Miller, Appellant presented the testimony of four witnesses, Dr. Gerald Cooke, Kenneth Miller, Deborah Miller, and Agnes Miller. Dr. Cooke, a clinical and forensic psychologist, testified that he examined and interviewed Appellant on August 14, 1997, taking from him a personal history and administering a battery of tests. During the interview, Appellant related that he was the youngest of eight children and that his father was an alcoholic who was abusive to his mother. Appellant often attempted to protect his mother from his father, which, according to the doctor, caused Appellant to have problems in school and with anger management. N.T. 10/2/97, 297. Regarding school, Appellant told the doctor that he dropped out in eighth grade because of trouble with his behavior. Appellant also indicated that he had a good work history having worked mainly as a heavy machine operator and a truck driver. Appellant admitted that he had a substance abuse problem that involved both drugs and alcohol that began in his teens. Id. at 298-99. Although Appellant stated that he underwent both drug and alcohol rehabilitation, Appellant told the doctor that he again took up both habits some months after undergoing treatment. Appellant admitted to Dr. Cooke that at the time of the incident he was injecting heroin daily and using methamphetamine occasionally. Id. at 299. Appellant denied having any significant medical history. Id. at 300.
Appellant also related to the doctor that he had been arrested for assault on two occasions because of incidents involving his wife. One of the incidents, which resulted in Appellant's incarceration, arose when Appellant became angry because the victim reneged on a promise to seek help for her own drug and emotional problems. Id.
[663] Based on the testing he performed, Dr. Cooke estimated that Appellant's intelligence quotient ranged between 81 and 89. Id. at 303. Testing also revealed that Appellant had low self-esteem and a need to be accepted which led him to seek constant attention. Id. at 304. Dr. Cooke diagnosed Appellant as having a paranoid personality disorder with antisocial and explosive features. Id. at 305. He also added second and third diagnoses of drug dependence and alcohol abuse. Id. With regard to mitigating circumstances, Dr. Cooke opined that Appellant was incapable of conforming his behavior to the requirements of the law and that his use of drugs and alcohol[17] on the day of the incident played a role in the murder. Id. at 306-07. He also stated that Appellant could make an adequate adjustment in prison. Id. at 303. Finally, Dr. Cooke testified that he found no evidence that Appellant "suffered from a thinking disorder or psychosis or any kind of major affective disorders such as major depression or manic disorder." Id. at 296.
Kenneth Miller, Appellant's brother, testified that he often observed Appellant and the victim together and they seemed to be happy. Appellant also appeared to have a good relationship with his children. Id. at 319-20. Kenneth Miller stated that if Appellant were sentenced to death, it would greatly affect him and his family.
Deborah Miller, Appellant's sister, testified that it appeared to her that Appellant and the victim appeared to be happy and that their relationship was good. Id. at 321. She also stated that when Appellant was released from prison, he appeared to be happy and relieved that he could reunite with his family. Id. at 322.
Agnes Miller, Appellant's mother, told the trial court that Appellant was hard working and a loving father. Id. at 323. She stated that Appellant's children were having problems because of the incident and that if Appellant were sentenced to death, it would exacerbate those problems. Id. at 324. In addition, Agnes Miller's trial testimony was incorporated into the record for purposes of the penalty hearing. Id. at 286-87. At trial, she testified that Appellant's marriage to the victim was good at its inception but that it deteriorated because of drug and alcohol use. N.T. 9/29/97, 30. Agnes Miller denied having any knowledge that Appellant and the victim were violent toward one another. Id. at 33.
At the evidentiary hearing, Appellant presented the testimony of several family members as well as that of various experts. Agnes Miller testified about the violence inflicted on her by her husband and Appellant's attempts to intervene. She also testified that there were problems in Appellant's marriage to the victim. She stated that Appellant's trial attorney did not ask her about her relationship with her husband or about the state of Appellant's marriage and that if counsel had done so, she would have agreed to speak to him. N.T. 10/28/03, 355-69. Agnes Miller conceded that the only time she saw Appellant act abnormally was usually when he was using drugs. Id. at 373.
Barbara Miller, Appellant's daughter, testified about her parents and their relationship. She stated that they often fought because her mother complained about not having enough money to support the family because Appellant spent it on drugs. Although she was angry with her father, Barbara indicated that she would have testified for him at the penalty hearing had she been asked to do so. Id. at 376-93; N.T. 10/29/03, 397-414.
[664] Kenneth Miller testified that Appellant grew up in a household headed by a violent alcoholic father who took little interest in Appellant. The family was poor which further stigmatized them in the eyes of their schoolmates. According to Kenneth, Appellant began drinking at age nine and quickly graduated to using drugs. Kenneth also testified about Appellant's marriage. He stated that Appellant and the victim had a history of breaking up and reconciling, that they both used drugs, and that they grew apart from the Miller family as their marriage progressed. N.T. 10/29/03, 482-501. Kenneth stated that Appellant was able to hold a job and never exhibited any behavior indicating that he had mental limitations. Id. at 503-05.
Appellant's sisters, Glenna Saganich, Brenda Sue Pennington, and Linda Drew each reiterated much of what Kenneth testified to concerning Appellant's home life. They all testified that they were never interviewed about Appellant's background and that had they been asked to testify about it, they would have been available to do so. Helen Pennington, the victim's sister, testified about the state of Appellant's marriage and stated that Appellant worked double shifts so that the victim could stay home, that Appellant and the victim sold drugs, that the victim had relationships with other men, and had an abortion after she was impregnated by another man. All of these witnesses testified that they were not interviewed and that they would have testified for Appellant if asked to do so.
Appellant called two experts to the stand during the evidentiary hearing for purposes of establishing that trial counsel was ineffective in preparing for the penalty hearing. Dr. Carol Armstrong, a neuropsychologist, testified that she conducted neuropsychological testing of Appellant and found evidence that he suffered from brain impairment in the areas of motor control, verbal ability, and reasoning skills, among others. N.T. 10/27/03, 121-22. These deficits, according to the doctor, had an impact on his reasoning and judgment skills and affected cognition and behavior. Id. at 124. The doctor opined, to a reasonable degree of psychological certainty, that Appellant's brain deficits constituted an extreme mental or emotional disturbance and substantially impaired his ability to conform his conduct to the law. Id. at 129. Dr. Armstrong further testified that because Appellant was the product of a violent home, an abuser of drugs and alcohol, had a low I.Q. score, had trouble in school, had a motorcycle accident in his teens, and had a scalp lesion removed in 1984, trial counsel should have had Appellant undergo neuropsychological testing. Id. at 115-17.
Dr. Julie Kessel, a board certified psychiatrist, substantiated what Dr. Armstrong stated, namely that Appellant suffered from a substantially impaired capacity to conform his conduct to the requirements of the law and that he was under the influence of extreme mental or emotional distress. N.T. 10/29/03, 548. She based her finding on Appellant's upbringing, substance abuse problem, brain impairment, and relationship with the victim, which according to the doctor, affected his impulse control on the night of the slaying. Id. at 535-37, 548.
Trial counsel also testified at the evidentiary hearing. He indicated that he had no strategic reason for not seeking Appellant's school or drug treatment records. N.T. 10/27/03, 23, 25. He stated that he did not speak to Barbara Miller (Appellant's daughter) prior to trial because she was a young child and because he ascertained from other family members that she did not possess any useful information. Id. at [665] 25. Regarding Appellant's medical records, trial counsel testified that after speaking to Appellant and other members of his family, he believed that he had been fully apprised of Appellant's history and thus had all of the information he needed. Id. at 30.
When asked why he did not have Appellant tested by a neuropsychologist for brain damage when he was aware that Appellant was a drug user, trial counsel replied that he saw no evidence that would cause him to suspect that Appellant suffered from brain damage or mental infirmity. Id. at 40, 61. He based his decision on his interaction with Appellant, who was able to converse intelligently with him, on speaking with members of Appellant's family, and the contents of the report prepared by Dr. Cooke, who found Appellant did not suffer from any thinking disorder, psychosis, or any major affective disorders. Id. at 43, 56, 62-63. He also stated that he decided not to present a diminished capacity or intoxication defense based on his conversations with Appellant who provided details of the crime and his reasons for committing it. Id. at 45-47. Trial counsel stated that he had no reason for not seeking out and interviewing other members of Appellant's and the victim's family other than that he believed he had received sufficient information from Appellant and the family members to whom he spoke. Id. at 30. Finally, he testified that he decided that it would not be in Appellant's best interests to argue that Appellant killed his wife because Appellant grew up in a dysfunctional home and his father had abused his mother. Id. at 67-69.
After considering the testimony presented by Appellant and his arguments in favor of the grant of a new penalty hearing, the PCRA court denied Appellant relief on his claim that trial counsel had been ineffective with respect to the penalty phase of the proceedings. The PCRA court determined that there was nothing of record, either from Appellant or from his family, that established that "trial counsel knew or should have known about the [Appellant's] possible brain damage." PCRA Court Opinion, 6/30/07, 13. The PCRA court also concluded that Appellant had not been prejudiced by trial counsel's failure to investigate and present evidence that Appellant suffered from brain damage because the record is devoid of any evidence demonstrating that a mental impairment affected his judgment at the time of the incident. Id. at 13-14.
Regarding the allegation that trial counsel had been ineffective for not interviewing members of Appellant's family and the victim's sister, the PCRA court declared that trial counsel had not been ineffective because the anticipated testimony of these witnesses would have been cumulative of testimony presented by Dr. Cooke. Id. at 30. The PCRA court further stated that trial counsel had acted reasonably in not premising Appellant's defense on the evidence relating to Appellant's abusive childhood and family history. The PCRA court noted that trial counsel did present such evidence and that counsel correctly surmised that such evidence would not have swayed the court to find that Appellant killed his wife because he grew up in a dysfunctional household and had been abused as a child. Id. at 30-31.
With respect to the allegation that trial counsel should have interviewed Appellant's daughter and called her as a witness, the PCRA court ruled that trial counsel had not been ineffective for not interviewing and calling her to testify. The court held that she would not have been a helpful witness for the defense because she was very angry about her mother's death, appeared during the penalty hearing to disagree with trial counsel's argument that [666] Appellant should not receive the death penalty, and testified for the Commonwealth during the penalty hearing. Id. at 32-33.
The PCRA court further stated that trial counsel was not ineffective for failing to obtain and introduce Appellant's school, medical, and drug treatment records or the record of the support order. Counsel was not ineffective, according to the court, because Dr. Cooke testified to Appellant's low I.Q. and trial counsel knew about and introduced evidence of Appellant's drug problems. Id. at 31. It was not derelict of trial counsel not to obtain Appellant's medical records, according to the PCRA court, because there was no indication that Appellant suffered from a mental illness. Id. Finally, the PCRA court proclaimed that the failure to introduce evidence pertaining to the support order did not constitute ineffectiveness because there was no evidence of record establishing that Appellant knew of the issuance of the order. Id.
The standards applicable to claims alleging that counsel was ineffective for failing to investigate and present mitigating evidence was recently set forth in Commonwealth v. Natividad, 595 Pa. 188, 938 A.2d 310, 331 (2007), as follows:
As this Court has observed, the United States Supreme Court has held that the Sixth Amendment requires capital counsel "to pursue all reasonably available avenues of developing mitigation evidence." Commonwealth v. Gorby, 589 Pa. 364, 909 A.2d 775, 790 (2006) (citing Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). Counsel must exercise reasonable professional judgment, and in examining counsel's conduct, "we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence... was itself reasonable." Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 784 (2004) (quoting Wiggins, 539 U.S. at 523, 123 S.Ct. 2527, 156 L.Ed.2d 471).
938 A.2d at 331. In addition, this Court has stated:
Strategic choices made following less than complete investigation are reasonable precisely to the extent that reasonable professional judgment supports the limitation of the investigation. In undertaking the necessary assessment, reviewing courts are to take all reasonable efforts to avoid the distorting effects of hindsight. See Commonwealth v. Basemore, 560 Pa. 258, 289, 744 A.2d 717, 735 (2000). Nevertheless, courts must also avoid "post hoc rationalization of counsel's conduct." Wiggins, 539 U.S. at 526-27, 123 S.Ct. at 2538.
Sattazahn, 952 A.2d at 655-56 (citation omitted).
Finally, the "reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation." Steele, supra; see also Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (2004) (holding that while counsel has a duty to conduct a reasonable investigation, reasonableness of investigation may be dependent on information supplied by the defendant).
Appellant has not shown that trial counsel acted unreasonably by not interviewing and presenting the testimony of the witnesses identified above. Trial counsel did investigate evidence of Appellants childhood circumstances, marital relationship, and drug abuse, and introduced evidence pertaining thereto during the penalty hearing. In addition, trial counsel introduced through Dr. Cooke the witnesses who testified during the penalty hearing, and Appellants written background [667] history and statement concerning Appellants life history, the abuse Appellant observed and was subject to while growing up, as well as evidence of his drug use. This Court has consistently held that trial counsel cannot be deemed ineffective for failing to present mitigating evidence that merely would have been cumulative of evidence that was presented during a penalty hearing. Commonwealth v. Whitney, 550 Pa. 618, 708 A.2d 471, 477 (1998); see also Commonwealth v. Abdul-Salaam, 570 Pa. 79, 808 A.2d 558, 562 n. 5 (2001). Consequently, Appellant cannot meet the arguable merit requirement of the ineffectiveness test.[18]
In addition, Appellant has failed to establish that had trial counsel interviewed these witnesses and presented their testimony, a different outcome likely would have resulted. Appellant presented nothing that established that the trial court would have imposed a life sentence if only it had heard additional evidence of appellants childhood, drug dependence, and dysfunctional marital relationship.
Appellant also cannot establish that trial counsels failure to obtain and review the various records identified above constituted ineffective assistance of counsel or that the PCRA court committed an error of law in ruling that trial counsel was not ineffective for failing to obtain that material. According to Appellant, trial counsel should have obtained Appellants school records because it showed that Appellant had an I.Q. in the high seventies to low eighties and thus was borderline mentally retarded. Appellants Brief, 81. Appellant ignores Dr. Cooke's testimony that he measured Appellants I.Q. in a range from 81 to 89, thereby demonstrating that Appellant, though of limited mental ability, was clearly not mentally retarded. Moreover, the fact that Appellant was able to hold jobs that required at least a modicum of skills demonstrated that Appellants school records would not have resulted in a different outcome had counsel obtained them and introduced them during the penalty hearing.[19] In view of the foregoing, Appellant has failed to establish that trial counsel acted unreasonably by not obtaining these records.
Next, trial counsel cannot be faulted for failing to obtain Appellants medical records. Trial counsel testified that he received no information from Appellant or members of his family alerting him to the fact that Appellant had suffered any injury or had medical problems affecting cognition. In addition, Appellant denied having any significant medical history when examined by Dr. Cooke. N.T. 9/30/97, 300. It is therefore clear that trial counsel cannot be faulted for failing to obtain evidence of which he had no reason to be aware. See Commonwealth v. Bond, 572 Pa. 588, 819 A.2d 33, 45-46 (2002) (holding that counsel cannot be deemed ineffective for failing to obtain records "uniquely" in possession of defendant and his family); see also Commonwealth v. Johnson, 572 Pa. 283, 815 A.2d 563, 581 (2002) (plurality) (this Court refuse[s] to deem trial counsel ineffective for failing to present mitigation evidence that he did not know existed); Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d [668] 717, 735 (2000) (same); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373, 383 (1986) (same).
With respect to Appellants drug records, trial counsel was not ineffective for failing to obtain them because Appellant has failed to establish that had counsel obtained them, the outcome of the penalty hearing would have been different. This is the case because Appellant has failed to show that these records contained any substantial information different from that already presented to the trial court. Moreover, trial counsel was aware of Appellants substance abuse problem and introduced evidence about it to the trial court. As noted above, counsel cannot be found ineffective for failing to introduce evidence that is merely cumulative of evidence already introduced into the record.
Finally, Appellant failed to establish that he had knowledge that a support order had been issued against him. Without such proof, Appellant cannot demonstrate that the issuance of the support order influenced his behavior on the night of the incident. Thus, Appellant cannot establish that trial counsel was ineffective for failing to obtain the order or introduce proof of its issuance during the penalty phase. See Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726 (2004) (holding that claims of ineffectiveness cannot be sustained in a vacuum).
Appellants claim that trial counsel was ineffective for failing to have him tested by a neuropsychologist also lacks merit. The record herein indicates that trial counsel had Appellant examined by a psychologist (Dr. Cooke) whose examination of Appellant failed to uncover any mental disabilities. As noted above, Dr. Cooke testified that he found no evidence that Appellant "suffered from a thinking disorder or psychosis or any kind of major affective disorders such as major depression or manic disorder." N.T. 10/2/97, 296. In addition, neither Appellant nor any member of his family advised trial counsel that Appellant suffered from neurological or mental deficits. Given these circumstances, trial counsel cannot be faulted for not securing additional testing of Appellant.
In Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999), trial counsel was accused of having been ineffective because he failed to provide all available records to his expert witness. According to the defendant, had trial counsel provided the additional records to his expert witness, it may have resulted in a "more thoroughly developed mental health mitigation case." 739 A.2d at 519. This court rejected the defendant's assertion that trial counsel had been ineffective and stated:
We agree with the trial court that Appellant has failed to prove, by a preponderance of the evidence, that the preparation and presentation by trial counsel of the mental health expert testimony was constitutionally ineffective. Appellant relies on the benefit of hindsight and downplays the diagnoses available to his counsel at the time his case was tried. Counsel testified that he provided Dr. Altman, who was his primary mental health expert, with as much information as he had, including substantial information concerning Appellant's social history and prior mental health problems. He relied on Dr. Altman to present the most favorable mental health mitigation case available, and he attempted to present this and the other expert testimony in a manner that would be understandable to, and believed by, the jury. Indeed, Appellant's counsel succeeded insofar as the jury found the Section 9711(e)(2) mitigator. This is not an instance where counsel failed to present a mental health mitigation case despite the presence of evidence to support such a case. Compare [669] Commonwealth v. Smith, 544 Pa. 219, 675 A.2d 1221 (1996), cert. denied, 519 U.S. 1153, 117 S.Ct. 1090, 137 L.Ed.2d 223 (1997). Rather, this is a case where a more competent evaluation by the professionals retained by Appellant may have resulted in a more thoroughly developed mental health mitigation case. However, our review of the PCRA hearing indicates that such failures, if any occurred, do not rest at the feet of Appellant's counsel, and that the court properly denied Appellant's claim of trial counsel's ineffectiveness.
Id.
Instantly, as in Stevens, Appellant is arguing that trial counsel should have done more even though he had no tangible reason for doing so. Trial counsel testified that in his dealings with Appellant and Appellants family, he failed to discern anything that would have caused him to believe that Appellant had brain deficits. This belief was confirmed by Dr. Cookes examination of Appellant.[20] Given these circumstances, trial counsel cannot be faulted for not having Appellant examined by additional experts because the investigation he conducted was reasonable and failed to reveal any evidence showing that Appellant suffered from a mental disease or defect requiring further investigation. See Commonwealth v. John Wesley Brown, 582 Pa. 461, 872 A.2d 1139, 1150 (2005) (holding that where record at time of trial indicates that accused was not suffering from mental illness, counsel has no duty to investigate issue further); Uderra, 706 A.2d at 339-40 (holding that trial counsel was not ineffective for not introducing in mitigation evidence regarding defendants psychological problems because defendant failed to disclose them prior to trial). Accordingly, we conclude that the PCRA Court did not err in finding no merit to Appellants claim that trial counsel was ineffective during the penalty phase of the proceedings.
9. Trial Counsel Was Ineffective for Failing to Object to the Introduction of Victim Impact Evidence During the Penalty Hearing
Appellant complains that trial counsel was ineffective for not objecting to the presentation of victim impact testimony during the penalty phase of the trial.[21] Appellant asserts such testimony was inadmissible and should not have been presented because the comments of the prosecutor were inflammatory. In addition, Appellant claims that because the offense herein occurred prior to the effective date of relevant amendments to 42 Pa.C.S. § 9711, he is entitled to a new penalty hearing. See Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253 (1996) (holding that victim impact testimony was inadmissible in cases originating prior to the 1995 amendment to 42 Pa.C.S. § 9711).
No relief is due on this claim because Appellant failed to meet his burden of [670] proving that trial counsels failure to object to the prosecutors actions prejudiced him. First, the actions and comments of the prosecutor were innocuous insofar as they were fleeting and did not dwell on the victim. In numerous cases, this Court has refused to find prejudice under similar circumstances. See Commonwealth v. Freeman, 573 Pa. 532, 827 A.2d 385, 414 (2003) (holding that brief victim impact testimony indicating that victim was "peaceful" and "nice" was not prejudicial); see also Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 447 (1999) (same).
Appellant cannot prove prejudice for a second reason. The PCRA court, sitting as factfinder, indicated that it was not influenced by the victim's photograph or the prosecutor's comments and that neither the photograph nor the comments had any effect on the verdict it ultimately rendered. PCRA Court Opinion, 6/30/07, 37-38. It is presumed that a trial court, sitting as factfinder, can and will disregard prejudicial evidence. See Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179, 183 (1980); Commonwealth v. David Brown, 886 A.2d 256 (Pa.Super.2005). Thus, because Appellant has failed to prove that the outcome of the proceedings would have been different had trial counsel lodged an objection, he is not entitled to relief with respect to this claim.[22]
PCRA COURT ERRORS
10. The PCRA Court Committed an Abuse of Discretion in Refusing to Allow Appellant to Introduce into Evidence or Even Marking as an Exhibit Certain Records During the PCRA Hearing.
Appellant argues that the PCRA court committed reversible error by refusing to permit the defense to mark as an exhibit and introduce into evidence medical records pertaining to the victim, which indicated that she had undergone an abortion five years prior to the date of the slaying and that someone other than Appellant impregnated her. According to Appellant, the records should have been admitted because Appellant believed that his wife had been unfaithful and the evidence was relevant with respect to whether the killing was committed in the heat of passion. Appellant's Brief, 93.
The PCRA court declared that it committed no error in refusing to permit the defense to introduce the records because they were irrelevant; they contained information remote in time from the date of the incident and contained no information indicating that Appellant was aware that the abortion took place or his reaction to that information. PCRA Court Opinion, 11/2/07, 6-7. The PCRA court refused to allow the defense to mark the records as an exhibit to protect the victim's privacy. Id. at 5. The PCRA court also noted that the defense did introduce testimony during the PCRA hearing indicating that the victim had an abortion and told others that Appellant had not fathered the child. N.T. 10/29/03, 512-17, 540-43, 594-97. We find no error in the rationale employed by the PCRA court, and we therefore hold this claim is meritless.
11. The PCRA Court Erred in Applying the Rape Shield Law to Exclude Testimony that the Victim Was Impregnated by Someone Other than Appellant.
During the evidentiary hearing Appellant's counsel asked trial counsel whether [671] Appellant told him that the victim had had an abortion after getting pregnant by another man. The Commonwealth objected arguing that the Rape Shield Law, 18 Pa. C.S. § 3104, prohibited the dissemination of such information and that the information the defense was seeking to elicit was irrelevant because the alleged abortion occurred five years prior to the slaying. The PCRA court sustained the objection. N.T. 10/27/03, 28-30. Appellant asserts that the PCRA court erred by sustaining the Commonwealth's objection because it relied upon the Rape Shield Law to do so.
This claim is meritless. The PCRA court explained in its Pa.R.A.P. 1925(a) opinion that it did not sustain the Commonwealth's objection based on the application of the Rape Shield Law but rather on relevancy and hearsay grounds. PCRA Court Opinion, 11/2/07, 5. Moreover, during the PCRA hearing the PCRA court later acknowledged that the Rape Shield Law did not apply and could not be used to exclude evidence relating to the victim's medical history. N.T. 10/29/03, 426-27. In addition, since other witnesses later testified at the PCRA hearing that the victim had an abortion after being impregnated by another man, any error resulting from the PCRA court's ruling constituted harmless error. Accordingly, Appellant is entitled to no relief on this claim.
12. The PCRA Court Abused Its Discretion in Refusing to Provide the Defense with Certain Evidence Including the Negatives of the Crime Scene Photographs.
Appellant submits that the PCRA court committed an abuse of discretion when it refused to order the Commonwealth to provide the defense with a computer disc containing high-resolution digitized scans of the negatives of the crime scene photographs. Appellant asserts that he requested the negatives be digitally scanned onto a disc because the negatives contain detail that may not appear in a photograph and the scanned negatives can be more closely examined. Appellant's Brief, 95-96. According to Appellant, by denying this request, the PCRA court hindered him in his attempt to prove that the victim was not raped, when rape served as the basis for the sole aggravating circumstance found by the trial court.
The PCRA court denied Appellant's request because the Commonwealth provided the defense with copies of the crime scene photographs, "first generation" prints of the photographs, and a contact sheet containing copies of the negatives. PCRA Court Opinion, 11/2/07, 7. The PCRA court also relied on the fact that the Pennsylvania State Police, the governmental agency having possession of the negatives, did not have equipment to scan the negatives onto a disc and the contact sheet containing the negatives were of a quality on a par with digital scans. Id. We find no error in the rationale employed by the PCRA court to deny this claim and therefore hold that the trial court did not commit an abuse of discretion.
Rule 902(E)(2) of the Pennsylvania Rules of Criminal Procedure provides:
(E) Requests for Discovery
(2) On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.
Pa.R.Crim.P. 902(E)(2). The denial of a defense request seeking discovery materials is reviewed under an abuse of discretion standard. Sattazahn, 952 A.2d at 662; Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 261 (2006). In Commonwealth v. Baumhammers, 599 Pa. 1, 960 A.2d 59, 86 [672] (2008), this Court recently discussed "abuse of discretion," stating:
In Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000), we reiterated the well-known definition of "abuse of discretion" as follows:
The term `discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.
960 A.2d at 86 (citation omitted). The application of this definition to the instant matter leads us to conclude that the PCRA court did not commit an abuse of discretion in refusing to provide the digitized negatives to the Appellant. According to the trial court, the defense was provided with whatever photographic evidence the Commonwealth had in its possession. Moreover, the Commonwealth did not have the equipment needed to comply with Appellant's request. Under the circumstances, Appellant's claim is meritless.
CUMULATIVE EFFECT OF THE ERRORS
13. The Cumulative Effect of the Errors in This Case Entitles Appellant to Relief.
In his final claim, Appellant argues that he is entitled to relief because of the cumulative prejudicial effect of the errors he alleged and raised in this appeal. This Court has repeatedly stated that "no number of failed claims may collectively warrant relief if they fail to do so individually." Washington, 927 A.2d at 617; see also Commonwealth v. Tedford, 598 Pa. 639, 960 A.2d 1, 56 (2008). Therefore, this issue is without merit.
CONCLUSION
Accordingly, we affirm the ruling issued by the PCRA court denying Appellant's request for post-conviction collateral relief.[23]
Justices BAER, TODD, and McCAFFERY join the opinion.
Chief Justice CASTILLE files a concurring opinion in which Justice EAKIN joins.
Justice SAYLOR files a dissenting opinion.
Chief Justice CASTILLE, concurring.
I join the Majority Opinion, with the exception of the points addressed below. I write separately to express my minor disagreement with the Majority's analysis of two of appellant's claims and to address a recurring and important point raised in Mr. Justice Saylor's dissenting opinion. My reasoning follows:
Claim V
Claim V faults the PCRA court on procedural grounds, for refusing to permit appellant to amend his PCRA petition in order to present testimony from Dr. Callery at the PCRA hearing related to his changed opinion as to whether a rape occurred.
[673] Like Justice Saylor, I disagree with the Majority's resolution of this claim grounded upon the sufficiency of the evidence and the Majority's related conclusion that the claim has been previously litigated. Appellant's claim clearly challenges the PCRA court's procedural ruling and the related claim of trial counsel ineffectiveness for failing to challenge the competency of Dr. Callery's testimony, rather than the sufficiency of the evidence supporting the rape conviction.
Nevertheless, I concur in the result. I disagree with the Majority's characterization of the claim as previously litigated, since the substance of appellant's challenge is to the PCRA court's ruling that denied his late request to supplement the PCRA petition with Dr. Callery's changed testimony. This claim has not been previously litigated as it relates to a procedural ruling by the court immediately below. However, I see no abuse of discretion in denying the belated request to supplement the petition, and I do not see why Dr. Callery's alleged changed opinion (or "elaboration" as appellant would have it) was necessary to the substantive claims which sound in ineffective assistance of counsel.[1]
Claim VI
In this claim, appellant alleges that trial counsel's ineffectiveness rendered invalid his waiver of his right to a jury trial and his right to testify. Appellant develops this claim primarily in terms of the jury waiver, faulting counsel's advice to waive, and then, respecting the right to testify, merely states that "[t]he exact same [sic] reasoning applies to his waiver of the right to testify." Brief of Appellant, 50. Although I join the Majority Opinion concerning this dual claim, I would also briefly note that in ruling on appellant's claim of ineffectiveness related to his right to testify, the PCRA court concluded that the claim was without merit, since appellant opted not to testify despite counsel's advice to the contrary. While the Majority notes this fact in passing, it intimates that we would have to "guess whether counsel's ineffectiveness interfered with [appellant's] right to testify" and that we will not engage in such speculation. Respectfully, I see no need to go that far, given that the PCRA court aptly pointed out that counsel cannot be deemed ineffective, since he encouraged appellant to testify, only to have appellant refuse. Thus, in this instance, any complaint regarding appellant's decision not to testify is placed squarely on appellant's shoulders and cannot support a claim of trial counsel ineffectiveness. Appellant inexplicably fails to account for this dispositive fact in asserting that his twin claims depend on the same reasoning.
Claim VIII
I join the Majority on this claim and write only to address two points raised by Justice Saylor's Dissenting Opinion. First is the role of recent decisions from the U.S. Supreme Court rendered on federal habeas review of state court convictions, such as Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (1999), Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). I have explicated in much greater detail elsewhere that, by definition, these decisions cannot be interpreted [674] as establishing any new federal constitutional rule or standard. See Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1148 (2008) (Castille, C.J., concurring). Rather, the High Court in these decisions merely "applied" the governing ineffectiveness standard that was set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to the facts of cases tried after Strickland became the law of the land. Indeed, the High Court most recently confirmed that this was the case in a unanimous per curiam opinion rendered in Bobby v. Van Hook, 558 U.S. ___, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), when it applied the Strickland "effective assistance of counsel" standard in reviewing an ineffectiveness claim based upon counsel's alleged failure to prepare adequately for the penalty phase. Notably, the Court emphasized both the flexibility of the Strickland standard as well as Strickland's teaching that counsel's conduct must be judged according to standards in place at the time counsel acted:
The Sixth Amendment entitles criminal defendants to the "effective assistance of counsel"—that is, representation that does not fall "below an objective standard of reasonableness" in light of "prevailing professional norms." That standard is necessarily a general one. "No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Restatements of professional standards, we have recognized, can be useful as "guides" to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place.
Van Hook, 558 U.S. at ___, 130 S.Ct. at 16.[2] Furthermore, the Van Hook opinion stressed that reasonableness can only be assessed in light of the prevailing professional norms at the time of trial by making clear that a court should not look to ABA guidelines that were announced eighteen years after the trial. Indeed, the Court made it abundantly clear that ABA guidelines should not be treated as "inexorable commands" with which all capital defense counsel must fully comply, but are "`only guides' to what reasonableness means, not its definition." Id. at ___, 130 S.Ct. at 17.
Additionally, the Court's review in Wiggins, Williams and Rompilla was specifically circumscribed by the terms of the Antiterrorism and Effective Death Penalty Act (AEDPA), which authorizes federal courts to upset final state judgments only if the state court analysis of a federal claim is contrary to, or involves an unreasonable application of, existing, binding precedent from the High Court. Observers can and do debate whether the court majorities in Wiggins, Williams and Rompilla were faithful to AEDPA's deference standard— notably all of these decisions, involving a controlling question of whether a state court judgment was objectively reasonable, were sharply divided. What cannot be debated is that: (1) the cases did not purport to break new constitutional ground; and (2) the decisions bind us, and they are important because those cases, [675] like the more recent pre-AEDPA decision in Van Hook, stand as the High Court's directive as to what was commanded by Strickland itself. See also Porter v. McCollum, 558 U.S. ___, ___, 130 S.Ct. 447, 452, ___ L.Ed.2d ___, ___ (2009) (confirming capital defendant only entitled to relief if he can establish that the state court's rejection of his ineffectiveness claim was "contrary to or involved an unreasonable application of" Strickland).
Obviously, any court addressing a case posing materially identical circumstances would be hard-pressed to deviate from the holding in a Strickland-application case decided under AEDPA. See Porter, supra (explaining that relief was warranted because the case was similar to Wiggins as "counsel did not even take the first step of interviewing witnesses or requesting records"). But, quite frankly, there is no easy answer to the question of what to do with good faith decisions rendered by courts in the long years between when the Court announced Strickland in 1984, and then announced what it necessarily meant in cases such as Wiggins, Williams, Rompilla, and now Van Hook and Porter. In that long interregnum, courts operating in perfectly good faith may have rendered decisions that now seem to be in tension with some of the Court's later Strickland-application decisions.
Theoretically, since the Strickland-application decisions by definition purport to establish no new law, the continuing validity of a pre-Wiggins decision should be measurable by comparison to Strickland itself. In point of fact, the High Court signaled as much when commenting on its Wiggins and Rompilla decisions in light of the Strickland standard in Van Hook by stating:
This is not a case in which the defendant's attorneys failed to act while potentially powerful mitigating evidence stared them in the face, cf. Wiggins, 539 U.S., at 525, 123 S.Ct. 2527, or would have been apparent from documents any reasonable attorney would have obtained, cf. Rompilla v. Beard, 545 U.S. 374, 389-93, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). It is instead a case, like Strickland itself, in which defense counsel's "decision not to seek more" mitigating evidence from the defendant's background "than already was in hand" fell "well within the range of professionally reasonable judgments."
Van Hook, 558 U.S. at ___, 130 S.Ct. at 19. Similarly, in Porter, the Court was clear that the inquiry was guided by whether the Florida Supreme Court "unreasonably applied Strickland." Porter, 558 U.S. at ___, 130 S.Ct. at 453 (emphasis added). Thus, the most recent jurisprudence confirms that Strickland remains the ultimate test by which we as a court must measure claims of ineffectiveness.
For my part and consistently with the High Court's most recent pronouncements, I do not believe that we are required to jettison past approaches, analyses, or holdings in this Court's Strickland cases, unless: (1) they are squarely precluded by a decision from the U.S. Supreme Court, such as Strickland, which existed when we rendered our decision; or (2) it is beyond reasonable debate that our decision is both materially identical to, and contrary to, one of the later Strickland-application decisions. In this case, I have no difficulty with the Majority's application of our precedent.
Second, the Dissenting Opinion expresses concern with appellant's argument that the admission of appellant's written "background history and statement" was materially prejudicial, and suggests that trial counsel's strategy in proffering the statement was "seriously misguided." Dissenting Op. at 679. Although ultimately the [676] admission of the statement may not have advanced appellant's cause, I would merely add that trial counsel's statements at the PCRA hearing reveal that he was struggling with the manner in which he could proffer appellant's version of the events leading up to and on the night in question, since appellant had refused to testify. N.T., 10/27/03, at 78. Counsel believed that the best way to do this was to urge appellant just to "[tell] things as it was [sic]" by writing a statement in his own words, explaining the events leading up to and on the night in question. Id. at 66. Based on the circumstances facing counsel, I would not find counsel ineffective with respect to this decision.
Justice EAKIN joins this concurring opinion.
Justice SAYLOR, dissenting.
I dissent, since it appears to me that the majority opinion does not sufficiently address material arguments or conform to prevailing law in a number of areas.
Guilt Phase
Claim I—The majority first rejects Appellant's claim of deficient stewardship in the investigation and presentation of evidence that the victim was killed in the heat of passion, reasoning that, even if Appellant's additional evidence were credited, "it is clear that the evidence still was insufficient to conclude that the killing was committed in the heat of passion as the record is devoid of evidence that at the time the victim was murdered, Appellant was acting under a sudden or intense passion brought on by the victim." Majority Opinion, at 650. The majority's rationale, however, conflicts with the PCRA court's (and fact finder's) reasoning in addressing Appellant's ineffectiveness claims, in which that court praised trial counsel for doing "an exceptional job of getting evidence and argument regarding heat of passion into the record." PCRA Court Opinion, slip op. at 29.
In this regard, the majority's substantive analysis concerning the unavailability of a heat-of-passion defense also does not take into account: whether there is any role for individual characteristics of the defendant in the analysis (such as whether a defendant is mentally retarded or brain damaged); the extent to which the cumulative impact of a series of events may be considered in assessing provocation, see Commonwealth v. McCusker, 448 Pa. 382, 389 & n. 8, 292 A.2d 286, 289 & n. 8 (1972); or various of the actual events alleged by Appellant and, to one degree or another, reflected in evidence of record. These include Appellant's release from incarceration a short time before the killing; his initial residence with his mother; Appellant's daughter's, the victim's, and her sister's alleged efforts to entreat him back into a relationship with the victim; Appellant's emotional uncertainty but eventual acquiescence; the service of a support order on Appellant on the day of the killing; the allegation that the victim previously had aborted another man's child during the marriage; and/or the number and nature of the victim's wounds, which tend to support his theory that he lost control.[1] I also differ with the majority's characterization of the above circumstances, to the degree they might be accepted by a fact [677] finder, as being analogous to "a history of minor disputes and allegations of past infidelity." Majority Opinion, at 651.
For the above reasons, and in the absence of a more directed assessment of Appellant's arguments as summarized above, I am unable to join the majority's disposition of the first claim.
Claim 2—The majority next rejects the claim that trial counsel was ineffective for failing to investigate and present expert testimony to rebut the Commonwealth's assertion that the victim was raped, crediting trial counsel's belief that "the evidence made it pellucidly clear to him that no rape occurred and ... his belief that anyone who reviewed the evidence would draw the same conclusion he did." Majority Opinion, at 653. The difficulty with trial counsel's, and the majority's, position is that counsel's beliefs proved to be demonstrably erroneous, as a Commonwealth expert witness described the killing as a "classic rape-homicide" and the fact finder correctly found "ample evidence to prove that a rape occurred even without Dr. Callery's testimony," PCRA Court Opinion, slip op. at 10, with this Court confirming on direct appeal that the verdict on the offense of rape was consistent with the evidence. See Commonwealth v. Miller, 555 Pa. 354, 367-68, 724 A.2d 895, 901 (1999). Moreover, hindsight is not required to question counsel's confidence, as well as his corresponding decision to forego further preparation, in light of the circumstances surrounding Appellant's crimes, where there was undisputed evidence of intercourse and substantial circumstantial evidence of forcible compulsion. Indeed, at least in the absence of the assessments provided by Appellant's post-conviction experts, it is difficult to consider trial counsel's belief that no fact finder would render a verdict of guilt on the rape charge to be rational, let alone reasonable.
Claim 5—Claim 5 concerns Appellant's challenge to the PCRA court's refusal to permit Dr. Callery to testify in the post-conviction proceedings that he did not hold the opinion that a rape had occurred to a reasonable degree of scientific certainty. The majority indicates that "[t]here is no indication in the record that Dr. Callery would have advised trial counsel before the trial commenced that it was his belief that no rape occurred if only trial counsel had interviewed him." Majority Opinion, at 659. The majority's reasoning, however, is unresponsive to the argument presented. Appellant's argument is that trial counsel failed to adduce that Dr. Callery did not hold his opinions to the requisite degree of scientific certainty to justify their admission into evidence. See Brief for Appellant at 39-42. Appellant supports his contention, inter alia, with the testimony of post-conviction experts and Dr. Callery's own declaration indicating:
3. In my view, the evidence in this case that I reviewed, and was aware of, is plainly consistent with any of the following scenarios: that intercourse occurred before Ms. Miller was killed and then she was killed; that intercourse occurred while she was being stabbed; or that intercourse occurred after she had been killed.
4. Because of the number of plausible scenarios, I do not hold the opinion to a reasonable degree of medical and scientific certainty that Ms. Miller was killed while the assailant was engaging in sexual intercourse with her. I cannot state to a reasonable degree of medical and scientific certainty that Ms. Miller was raped at or around the time she was killed. To the extent that my testimony in this case appears to conflict with any of these conclusions, my actual opinion at the time of trial is stated in this affidavit.
* * *
[678] 7. Mr. Miller's trial attorney did not interview me before I testified in Mr. Miller's case. If he had, I would have told him the things I say in this affidavit and testified to them on the witness stand.
Declaration of Richard T. Callery, M.D., dated January 26, 2005. I cannot support a disposition based on an inaccurate characterization of a claim.
Penalty Phase
Claim 8In resolving Appellant's claim that his trial counsel was ineffective for failing to investigate and present available mitigating evidence during the penalty hearing, the majority initially appears to approve trial counsel's investigation. See Majority Opinion, at 666-67. Trial counsel testified, however, that he did not obtain various available life history records; he interviewed only two family members prior to trial; he interviewed another for the first time in the courthouse prior to his testimony; he did not obtain a copy of the file for the domestic relations case involving Appellant and the victim; and he did not consider investigating the psychiatric significance of his client's claim to having suffered a blackout during the course of the killing. N.T., October 27, 2003, at 22-32, 100. It therefore seems apparent to me from the record that counsel acquired a rudimentary knowledge from a narrow set of sources, a practice disapproved by the United States Supreme Court. See Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156 L.Ed.2d 471 (2003).
The majority next couches the post-conviction evidence as merely cumulative of the evidence presented at trial. See Majority Opinion, at 666-67. I believe, however, there are qualitative differences in the evidence which should be recognized. In my view, the post-conviction evidence presented a better case for life than that which was presented at trial, particularly in terms of the depth of the explanatory-type mitigation presented through the experts.[2]
The majority also credits trial counsel for presenting Appellant's written "background history and statement" concerning Appellant's life history, the abuse Appellant observed and was subject to while growing up, as well as evidence of his drug use. See Majority Opinion, at 666-67. The majority, however, ignores Appellant's substantial argument, as follows, that the document, in fact, was materially prejudicial:
[T]rial counsel affirmatively harmed Appellant by presenting to the Court a "statement" hand-written by Appellant which could not possibly have aided Appellant in his case for life. The statement... contained numerous profanities and was interpreted by the trial court in its sentencing deliberations as shifting the responsibility for the incident to the deceased. Such a statement, presented in a vacuum and without any psychiatric explanation for the paranoia and rage that developed in Appellant during his formative years, could easily have been construed by the court as both disrespectful and void of remorse.[fn] In fact, in its sentencing decision, the lower court stated "I also take note of the total lack of remorse of the defendant in connection with the homicide... [I]t troubles me that the defendant has expressed no remorse whatsoever in connection with this crime. And in fact, that in the penalty phase of the hearing, the letter that was handed up [679] basically implied that most of the fault belonged on the victim in connection with this matter." NT 10/27/97, at 10-11.
[fn] The presentation of this letter is so tactically harmful that one wonders if counsel read it before handing it over to the judge.
Brief for Appellant at 86-87 (emphasis in original).
In line with Appellant's argument, a review of Appellant's statement confirms that the strategy of presenting it to a fact finder was seriously misguided, because the statement contains a multitude of inflammatory remarks. For example, it is replete with blame cast upon the victim, which the trial judge conveyed both at sentencing and in the post-conviction proceedings was offensive. See, e.g., N.T., October 28, 2003, at 383 (reflecting the trial/PCRA judge's comment, "I'm not going to sit here and listen to this woman be trashed just to present this heat of passion defense mitigated testimony."). Further, although trial counsel was attempting at the penalty hearing to portray the killing as having occurred in the heat of passion, the statement starkly reflects a far deeper and more entrenched disregard, on Appellant's part, for the victim's life. See, e.g., N.T., October 2, 1997, Ex. D-4 (reflecting Appellant's description of a prior assault upon the victim, stating, "This is when I put the gun to Sherry's head and she was lucky she didn't die that day cause I was pissed."). Similarly, in addressing an incident at a bar, Appellant indicates he told a man "if you yell anymore at the women I'm going to ram my pool stick down your throat." Id. Particularly when considered in light of the note Appellant penned in the aftermath of the killing, the "background history and statement" suggests deep-seated violent, volatile qualities, in substantial tension with the defense theory of an isolated, sudden, uncontrollable rage experienced by an otherwise non-violent individual.[3] It is difficult to envision why any competent attorney would put such a statement before the fact finder in the form in which it was presented.
With regard to the distinct matter of trial counsel's failure to obtain a copy of the support order during his penalty investigation, the majority indicates, "Appellant failed to establish that he had knowledge that a support order had been issued against him." Majority Opinion, at 668. I believe it should at least be acknowledged, however, that Appellant discussed the support order and its impact upon him in his handwritten statement presented to the trial judge at the penalty hearing. See N.T., October 2, 1997, Ex. D-4. Thus, there was some evidence (albeit of questionable quality) of knowledge on Appellant's part.
The majority also relies substantially on Commonwealth v. Stevens, 559 Pa. 171, 739 A.2d 507 (1999). See Majority Opinion, at 668-669. Stevens, however, predated the United States Supreme Court's decisions in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), and Wiggins, 539 U.S. at 510, 123 S.Ct. at 2527, which a number of Justices have indicated reflect a different set of standards than were (and perhaps are) being applied in at least some of our decisions, such as Stevens. This implicates the divide concerning the application of Williams and Wiggins in Pennsylvania, as reflected in Commonwealth v. Romero, 595 Pa. 275, 938 A.2d 362 (2007) (plurality in relevant regard). Compare id. at 318-19, 938 A.2d at 387-88 (indicating that "[p]rior to Williams and its progeny, case law regarding what is required of counsel during the penalty phase was not as exacting [680] as today" and declining to apply Williams and Wiggins to cases litigated prior to their issuance), with id. at 335-37, 938 A.2d at 398-99 (Saylor, J., concurring and dissenting) (advancing the position that Williams and Wiggins apply to prior cases, as the decisions were rendered in the post-conviction context and the United States Supreme Court explained in Wiggins that it made no new law).
In summary, I do not agree with many of the reasons presented by the majority in support of its decision to affirm the penalty verdict. Moreover, although the PCRA court's analysis may implicitly suggest it would not have rendered a different verdict had the post-conviction evidence been presented to the court at the penalty hearing, I do not agree with the majority that such a finding is explicit in the opinion. See Majority Opinion, at 667 n. 18.
Furthermore, the PCRA court's opinion embodies a looseness which is inconsistent with our requirements in capital post-conviction cases. For instance, in its finding that Dr. Armstrong's post-conviction testimony was merely cumulative of the testimony of Dr. Cooke, which was presented at the penalty hearing, the PCRA court indicates that the testimony of both experts reflected the same mitigating circumstance, which it described as a lack of capacity to appreciate criminality and conform conduct to the requirements of the law, 42 Pa.C.S. § 9711(e)(3). See PCRA Court Opinion, slip op. at 38.[4] The material passage of the opinion, however, fails to recognize that the testimony given by Julie B. Kessel, M.D., psychiatrist, lends support to Appellant's claim of an additional mitigator, namely, that he was under the influence of extreme mental or emotional disturbance at the time of his crimes, 42 Pa.C.S. § 9711(e)(2). See, e.g., N.T., October 29, 2003, at 548. Therefore, the basis for the PCRA court's conclusion on the matter is erroneous. See generally Commonwealth v. Beasley, 600 Pa. 458, 489-90, 967 A.2d 376, 395 (2009) (commenting on material imprecision in the decision-making of a capital post-conviction court in connection with a remand, indicating, "We intend to provide an orderly system of post-conviction adjudication that produces fair and just results, anchored upon governing law and rational reasoning.").
[1] This was not the first time Appellant had exhibited jealousy with respect to his wife. In July 1994 and April 1995 Appellant pleaded guilty to various crimes arising out of incidents involving Sherry Miller. During the second incident, Appellant held a gun to his wife's head. He pleaded guilty to aggravated assault and received a sentence of nine to twenty-three months incarceration. He resumed living with his wife following his release from jail.
[2] Before leaving, Sherry used the telephone in the bar to page a man named Sean Smith. Mr. Smith, who dated Sherry while Appellant was previously incarcerated, shortly thereafter called the bar telephone in response to the page.
[3] It was explained that had the victim moved following the incident, such movement would have caused bodily fluids to be spread to various other parts of her body.
[4] The matter was assigned administratively to the trial court for disposition (PCRA Court).
[5] Jurisdiction is vested in this Court by 42 Pa.C.S. § 9546(d) which mandates that review of the denial of post-conviction relief be conducted by this Court.
[6] At the PCRA evidentiary hearing, Appellant presented the testimony of Julie Kessel, M.D., a psychiatrist, and Charles Wetli, M.D., a medical pathologist. Dr. Kessel testified that it was her opinion that the killing occurred in the heat of passion. Dr. Wetli testified that the manner of killing demonstrated that the killer was angry and emotionally charged. N.T. 10/28/03, 334; N.T. 10/29/03, 531, 546-47.
[7] The PCRA court also noted that both Dr. DeForest and Dr. Wetli testified that they could not rule out the possibility that a rape occurred. PCRA Court Opinion, 6/30/07, 10-11. Finally, the PCRA court determined that Dr. Wetli's testimony was not entirely inconsistent with Dr. Callery's insofar as Dr. Wetli testified, "the attack and the assault to the vaginal area were concomitant or occurring within the same general time frame." Id. at 12. The PCRA court's conclusion, in light of the evidence, is correct.
[8] Torres testified that he became unsure that Appellant threatened to kill his wife after he believed he heard other inmates threaten to kill their wives. Torres stated that he could not tell whether the threats were actually uttered by Appellant and the other inmates or whether they emanated from the voices in his head. N.T. 10/28/03, 225-26.
[9] The law is clear that specific intent to kill may be inferred from the use of a deadly weapon on a vital part of another person's body. Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 130 (2008); Commonwealth v. Kennedy, 598 Pa. 621, 959 A.2d 916, 921 (2008).
[10] In the affidavit Dr. Callery avers in part, "I cannot state to a reasonable degree of medical and scientific certainty that Ms. Miller was raped at or around the time she was killed. To the extent that my testimony in this case appears to conflict with any of these conclusions, my actual opinion at the time of trial is stated in this affidavit." Appendix to Appellant's Brief, Exhibit 7, paragraph 4.
[11] An issue has been previously litigated if "the highest appellate court in which the petitioner was entitled to review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. § 9544(a)(2).
[12] Appellant claims that these issues have not been previously litigated because the "issue of Dr. Callery's testimony reaching `reasonable medical certainty' was never raised." Appellant's Brief, 47. It is clear from reviewing Appellant's Brief, together with the evidence he argues was erroneously excluded, that these claims concern the sufficiency of the evidence.
[13] Appellant's claim that trial counsel's ineffectiveness vitiated his waiver of the right to a jury trial and to testify are premised on the claims of ineffectiveness raised in Appellant's previous issues, including trial counsel's failure to investigate expert and lay testimony supporting a heat of passion defense, expert and lay testimony indicating that a rape did not occur, and expert and lay testimony indicating that Appellant suffered from brain damage. Appellant's Brief, 50.
[14] As noted above, trial counsel represented Appellant on appeal. Thus, Appellant is excused from having to "layer" his claims of ineffectiveness, i.e., assert that both trial counsel and appellate counsel were ineffective for failing to raise and preserve this issue.
[15] Having ruled that Appellant has failed to establish prejudice, we need not consider the adequacy of the waiver colloquy at issue. Moreover, we reject Appellant's additional claim that the prejudice stemming from trial counsel's failure to object was that at least one juror may have voted to impose a life sentence. Appellant's Brief, 63. See Mallory, supra.
[16] Appellant also asserts that trial counsel was ineffective for not investigating and presenting expert testimony to rebut that a rape occurred. This claim mirrors that raised in Issue 2 above. Consequently, there is no need to discuss it a second time here.
[17] Appellant allegedly consumed twelve beers and ingested a gram of methamphetamine.
[18] Although Appellant claims that the mitigation evidence presented during the penalty hearing amounted to a "hollow shell" of the available evidence, and therefore, counsel should be declared to have been ineffective for failing to gather it, Appellant ignores the lower court's finding that the additional evidence would not have resulted in a different verdict.
[19] Appellant's brother Kenneth testified that he never observed anything suggesting that Appellant was mentally challenged. N.T. 10/29/03, 503-05.
[20] Appellant's brother Kenneth denied that Appellant suffered from mental deficits. N.T. 10/29/03, 503-05.
[21] "Generally, only those statements which describe qualities of the victim and are designed to show the victim's uniqueness as an individual fall within the rubric of `victim impact evidence.'" Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1185 (2005); see also Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253, 1259 n. 11 (1996). During the penalty hearing, Barbara Miller, the daughter of Appellant and the victim, held a picture of the victim as she testified and showed it to the trial judge when asked to do so by the prosecutor. N.T. 10/2/97, 289-90. In addition, the prosecutor commented that other family members declined a request that they testify because doing so would be too emotional. The prosecutor also stated that the victim's death had a "tremendous and terrible impact on [the victim's] family." N.T. 10/2/97, 291.
[22] We note that a review of the prosecutor's closing argument during the penalty phase indicates that the prosecutor did not comment upon the evidence he presented during the penalty hearing. N.T. 10/2/97, 325-29.
[23] The Prothonotary of the Supreme Court is directed to transmit the entire record in this case to the Governor in accordance with 42 Pa.C.S. § 9711(i).
[1] I am also convinced by the PCRA court's alternative rationale that there was sufficient circumstantial evidence supporting the rape, as explained by the PCRA court earlier in the opinion, when it states that even without the testimony of Dr. Callery, the evidence was sufficient. Thus, I agree with the Majority's observation that appellant cannot establish that he was prejudiced by trial counsel's alleged ineffectiveness. See Majority Op. at 657-58.
[2] Although Justice Alito wrote a separate concurring opinion in one case, he began the responsive opinion by stating, "I join the Court's per curiam opinion...." Justice Alito would give no "special relevance" to the 2003 ABA Guidelines in determining whether an attorney's performance meets the standard for effective representation required by the Sixth Amendment. Van Hook, 558 U.S. at ___, 130 S.Ct. at 20.
[1] In the statement presented to the trial judge at the penalty hearing, and in his conversations with the penalty-phase and post-conviction experts, Appellant also related that the event immediately precipitating the killing was the victim's indication—just after having engaged in sexual relations with Appellant— that he was to leave the marital residence and that another man would be moving in with her. See N.T., October 2, 1997, Ex. D-4; N.T., October 29, 2003, at 446.
[2] It is a separate question, discussed below, whether the degree of difference is enough to justify a finding of prejudice. Presently, my focus is on the majority's cumulativeness determination.
[3] The statement also reflects that Appellant was an apparently unrepentant drug dealer.
[4] The actual formulation of the mitigator is: "The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was substantially impaired." 42 Pa.C.S. § 9711(e)(3) (emphasis added).
7.2.6.3.2.2.4 People v. Casassa 7.2.6.3.2.2.4 People v. Casassa
v.
Victor CASASSA, Appellant.
[404 N.E.2d 770] Anne C. Feigus and Ronald P. Fischetti, New York City, for appellant.
Denis Dillon, Dist. Atty. (Judith Rubinstein Sternberg and William C. Donnino, Mineola, of counsel), for respondent.
OPINION OF THE COURT
JASEN, Judge.
The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance" which would have reduced the crime to manslaughter in the first degree.
On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter's tragic death. They met in August, 1976 as a result of their residence in the [404 N.E.2d 771] same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love" with him. Defendant claims that Miss Lo Consolo's candid statement of her feelings "devastated him."
Miss Lo Consolo's rejection of defendant's advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo's on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo's bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide."
Defendant's final visit to his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead."
The following day the police investigation of Miss Lo Consolo' death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim's apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.
The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineola to discuss the matter further. On the way to Mineola, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a. m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.
During the course of defendant's interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department's seventh precinct in Manhasset between the hours of 11:00 p. m. on March 1, 1977 and 3:00 a. m. on March 2, 1977, and was informed by the officers at these stations that her son's whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gave her no further information, but said that the police would return her call. At 4:00 a. m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a. m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. [404 N.E.2d 772] When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.
On March 8, 1977, defendant was indicted and charged with murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.
Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant's confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance". (Penal Law, § 125.25, subd. 1, par. (a).) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.
In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance" within the meaning of section 125.25 (subd. 1, par. (a)) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation."
The trial court in resolving this issue noted that the affirmative defense of extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant's emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.
On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance". It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd. 1, par. (a)) of the Penal Law. We cannot agree.
Section 125.25 (subd. 1, par. (a)) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." This defense allows a defendant charged with the commission of acts which would otherwise constitute [404 N.E.2d 773] murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree. (Penal Law, § 125.25, subd. 1, par. (a); People v. Patterson, 39 N.Y.2d 288, 302, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)
In enacting section 125.25 (subd. 1, par. (a)) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of the Model Penal Code (see § 201.3, subd. (1), par. (b) (Tent Draft No. 9)). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance" as an "affirmative defense", thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd. 2; People v. Patterson, 39 N.Y.2d 288, 301, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.
The "extreme emotional disturbance" defense is an outgrowth of the "heat of passion" doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. (See 1829 Rev.Stat. of New York, Part IV, ch. I, tit. II, §§ 10, 12, 18; L.1881, ch. 676, § 189, subd. 2; § 193, subd. 2; Penal Law of 1909, § 1052, subd. 2.) However, the new formulation is significantly broader in scope than the "heat of passion" doctrine which it replaced. (People v. Patterson, 39 N.Y.2d 288, 302-303, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra; People v. Shelton, 88 Misc.2d 136, 141-142, 385 N.Y.S.2d 708; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp. 1C-61-62; Model Penal Code, § 201.3, Comment, pp. 46-47 (Tent Draft No. 9).)
For example, the "heat of passion" doctrine required that a defendant's action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e. g., People v. Ferraro, 161 N.Y. 365, 375, 55 N.E. 931.) Moreover, such reaction had to be immediate. The existence of a "cooling off" period completely negated any mitigating effect which the provocation might otherwise have had. (See, e. g., People v. Fiorentino, 197 N.Y. 560, 563, 91 N.E. 195.) In Patterson, however, this court recognized that "(a)n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore." (39 N.Y.2d, at p. 303, 383 N.Y.S.2d at p. 582, 347 N.E.2d, at p. 908.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.
The thrust of defendant's claim, however, concerns a question arising out of another perceived distinction between "heat of passion" and "extreme emotional disturbance" which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant's emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse" should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.
In Patterson, this court was concerned with the question of whether the defendant [404 N.E.2d 774] could properly be charged with the burden of proving the affirmative defense of "extreme emotional disturbance". In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "(t) he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them." (39 N.Y.2d, at p. 302, 383 N.Y.S.2d, at p. 582, 347 N.E.2d, at p. 907.) We also noted that "(t)he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma." (Id., at p. 303, 383 N.Y.S.2d, at p. 908, 347 N.E.2d, at p. 582.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance" is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.
Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance" if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance" as contemplated by the statute is a lesser form of mental infirmity than insanity, [1] the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance" within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant's attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant's emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.
Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.
Section 125.25 (subd. 1, par. (a)) of the Penal Law states it is an affirmative defense to the crime of murder that "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra, with People v. Lyttle, 95 Misc.2d 879, 884, 408 N.Y.S.2d 578.) Moreover, although several States have enacted identical or substantially [404 N.E.2d 775] similar statutes (see Conn.Gen.Stat.Ann., § 53a-54, subd. (a), par. (1); Del.Code Ann., tit. 11, § 641; Hawaii Penal Code, § 707-702, subd. (2); Ky.Rev.Stat., § 507.020, subd. (1), par. (a); Rev.Codes of Mont., § 94-5-103; N.D. Century Code, § 12.1-16-02; Ore.Rev.Stat., § 163.115; Utah Code Ann., § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979)) and that court expressly followed Justice Bentley Kassal's well-reasoned opinion in People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra.
Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment (Tent Draft No. 9 (1959)).) The defense of "extreme emotional disturbance" has two principal components (1) the particular defendant must have "acted under the influence of extreme emotional disturbance", and (2) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be". The first requirement is wholly subjective i. e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.
The second component is more difficult to describe i. e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough" (id., at pp. 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation" (id.). "The ultimate test, however, is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance" (id., at p. 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree. [2] We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)
By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion" doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to [404 N.E.2d 776] seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered."
We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words." (Cardozo, Law and Literature, pp. 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words" which Mr. Justice Cardozo abhorred.
We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance", a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant's "situation" and "the circumstances as defendant believed them to be", but concluded that the murder in this case was the result of defendant's malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.
In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse", defendant's conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.
Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances' " of defendant's arrest and subsequent confession (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318) and found, as a factual matter, that defendant's oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that [404 N.E.2d 777] defendant's confession was involuntarily obtained as a matter of law.
Finally, defendant contends that his mother's unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police, [3] denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant's behalf and is prevented from doing so by police misinformation, that defendant's right to counsel is infringed (see, e. g., People v. Garofolo, 46 N.Y.2d 592, 600-601, 415 N.Y.S.2d 810, 389 N.E.2d 123), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person". Nor is there any evidence in the record to suggest that this is a case such as People v. Bevilacqua, 45 N.Y.2d 508, 410 N.Y.S.2d 549, 382 N.E.2d 1326, where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant's right to counsel has been infringed.
We have examined defendant's remaining contentions and find them to be without merit.
Accordingly, the order of the Appellate Division should be affirmed.
COOKE, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.
Order affirmed.
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[1] Defendant also notes that the People's expert witness stated that a mental disease not arising to the level of insanity could not be considered to be "extreme emotional disturbance" within the meaning of the statute. Of course, to the extent that the witness' comments can be interpreted as being in conflict with our decision in Patterson, the witness is in error. However, the trial court did not fully adopt this view and, in fact, predicated its decision upon a finding that the emotional disturbance which defendant experienced had no reasonable explanation or excuse. We would note that the trial court could have completely disregarded the witness' testimony and still have denied the defendant the benefit of the defense. (People v. Solari, 43 A.D.2d 610, 612, 349 N.Y.S.2d 31, affd. 35 N.Y.2d 876, 363 N.Y.S.2d 953, 323 N.E.2d 191.)
[2] We emphasize that this test is to be applied to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse.
[3] We are informed that the Nassau County police have instituted a system for monitoring the whereabouts of all people in their custody, which should help to avoid the possibility that such misinformation will be given out in the future.
7.2.6.3.3 III.C. Unintentional Homicide 7.2.6.3.3 III.C. Unintentional Homicide
7.2.6.3.3.1 III.C.i. Involuntary Manslaughter and Similar Offences 7.2.6.3.3.1 III.C.i. Involuntary Manslaughter and Similar Offences
The intentional homicides we just studied required us to differentiate between what were clearly blameworthy acts. Unintentional homicide poses a different problem: how to distinguish between criminal deaths and noncriminal deaths, when the perpetrator did not act with purpose to kill or with knowledge that his conduct would result in killing. When is a death deemed the result of someone’s criminal negligence or recklessness, and when is it a horrible accident that does not result in criminal liability? Some of the cases in this section present unsavory and unsympathetic protagonists; you may be able to empathize with others. Consider what the courts in each case think the defendants did wrong, and what legal tests they use to make those determinations.
7.2.6.3.3.1.1 Commonwealth v. Welansky 7.2.6.3.3.1.1 Commonwealth v. Welansky
316 Mass. 383
COMMONWEALTH
vs.
BARNETT WELANSKY
(and a companion case against the same defendant).
June 5, 1944
Supreme Judicial Court of Massachusetts, Suffolk
Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, & SPALDING, JJ.
At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system . . . [he] had would continue" during his absence.
A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.
No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a [384] night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.
Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.
The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J.
Discussion by LUMMUS, J., of wanton or reckless conduct.
At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wantonor reckless conduct. Per LUMMUS, J.
One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.
To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.
No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.
At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.
One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.
Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of [385] the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.
The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.
The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:
106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."
108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."
111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."
105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.
[386] 109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths."
114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."
122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."
The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.
D. J. Gallagher, (H. F. Callahan, E. M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.
F. T. Doyle, Assistant District Attorney, (J. K. Collins & A. H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.
LUMMUS, J.
On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, [387] since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.
The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478.
The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant [388] last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.
The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.
If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its [389] equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.
It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.
Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.
From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.
That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.
(1) A door, opening outward to Piedmont Street, two [390] and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked "Exit" by an electric sign. It was equipped with a "panic" or "crash" bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.
(2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.
(3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked "Exit" by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with "panic" bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, [391] 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic" doors were hidden from the view of diners by a pair of "Venetian" wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the "panic" doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.
(4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.
(5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.
We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded." Beverley v. Boston Elevated Railway, 194 Mass. 450 , 457. Witnesses were rightly permitted to give theirestimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred [392] to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.
A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.
The door at the head of the Melody Lounge stairway [393] was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.
I. The pleadings, verdicts, and judgments.
The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe," "John Doe," or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273 , 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding. Some other specifications -- such as failure to prevent the unlawful employment of minors -- plainly had little or no relation [394] to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what "provisions of" the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.
The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did "wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said" victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.
Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did "maintain, [395] manage, operate and supervise certain premises," describing them, "and solicited and invited the patronage of the public to the said premises"; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did "assault and beat" the said victim, and by said assault and beating did kill him "by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises." Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.
Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted "on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa." That count followed the form of an indictment for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 . Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.
The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be "fully, plainly, substantially and formally set out," as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, Section 40. Commonwealth v. Snell, 189 Mass. 12 , 18, 19. Commonwealth v. Sinclair, 195 Mass. 100 , [396] 105-108. Commonwealth v. Massad, 242 Mass. 532 . Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379 , 384. Commonwealth v. Bartolini, 299 Mass. 503 , 509. Commonwealth v. Hayes, 311 Mass. 21 . The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567 , 571. Commonwealth v. Lammi, 310 Mass. 159 . For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged." Commonwealth v. Hayes, 311 Mass. 21 , 25. Commonwealth v. Gedzium, 259 Mass. 453 , 457. Commonwealth v. Albert, 307 Mass. 239 , 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35 , 38, 39.
The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, Section 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3. The cases come here under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.
II. The principles governing liability.
The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary [397] manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct. [1]
Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, [2] wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, Section 500. 26 Am. Jur. Homicide, Sections 205-208. 29 C. J. 1154, et seq.
To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367 , 370. Commonwealth v. Arone, 265 Mass. 128 , 132. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces [398] something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588 , 592. Banks v. Braman, 188 Mass. 367 , 369. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.
The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165 . Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367 , 369. Romana v. Boston Elevated Railway, 218 Mass. 76 , 83. Commonwealth v. Peach, 239 Mass. 575 . Nash v. United States, 229 U.S. 373, 377. Arizona Employer's Liability Cases, 250 U.S. 400, 432. Am. Law Inst. Restatement: Torts, Section 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311 . The judge charged the jury correctly when he said, "To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal [399] man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."
The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, Section 500. LeSaint v. Weston, 301 Mass. 136 , 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271; Freeman v. United Fruit Co. 223 Mass. 300 , 302; Banks v. Braman, 188 Mass. 367 , 369; Yancey v. Boston Elevated Railway, 205 Mass. 162 , 171; Burns's Case, 218 Mass. 8 , 10; Romana v. Boston Elevated Railway, 218 Mass. 76 , 83; Sullivan v. Napolitano, 277 Mass. 341 , 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328 , 347. Commonwealth v. Horsfall, 213 Mass. 232 , 235. Cohen v. Davies, 305 Mass. 152 , 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92 , 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.
The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367 . Cotter, petitioner, 237 Mass. 68 , 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244 , 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 , 242; S. C. 241 Mass. 100 , 102. McIntyre v. Converse, [400] 238 Mass. 592 , 594. Young v. Worcester, 253 Mass. 481 , 484. Potter v. Gilmore, 282 Mass. 49 , 57. Am. Law Inst. Restatement: Torts, Section 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 ; S. C. 241 Mass. 100 . Compare Jamison v. Encarnacion, 281 U.S. 635; Alpha Steamship Corp. v. Cain, 281 U.S. 642. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other." Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Romana v. Boston Elevated Railway, 226 Mass. 532 , 536.
Notwithstanding language used commonly in earlier cases, and occasionally in later ones, [3] it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence." Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. [401] Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .
Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. McIntyre v. Converse, 238 Mass. 592 , 594. Sullivan v. Napolitano, 277 Mass. 341 . Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 387. Baines v. Collins, 310 Mass. 523 , 526. Am. Law Inst. Restatement: Torts, Section 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Gorman, 288 Mass. 294 , 299. Commonwealth v. McCan, 277 Mass. 199 , 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5; Commonwealth v. Velleco, 272 Mass. 94 , 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 , 553. Commonwealth v. Parsons, 195 Mass. 560 , 569. Commonwealth v. Peach, 239 Mass. 575 . Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .
To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.
III. The alleged errors at the trial.
1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and [402] should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.
2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478. Commonwealth v. Beal, 314 Mass. 210 , 222. Braga v. Braga, 314 Mass. 666 , 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case "closely," as the phrase is, with respect to a point that later he had to admit.
3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the [403] corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.
4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, Section 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483 . Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297 , 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177 . Carroll v. Hemenway, 315 Mass. 45 , 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222 , 224. Commonwealth v. Arone, 265 Mass. 128 , 131. Carroll v. Hemenway, 315 Mass. 45 . People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, Section 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551 , 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 390.
5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the [404] electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.
6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.
Judgments affirmed.
FOOTNOTES
[1] In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick, & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court. The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N. Y. 487. State v. Ireland, 126 N. J. L. 444. The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Penn. Dist. R. 149. See also Miller v. Strahl, 239 U.S. 426.
[2] Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84 . Keith v. Granite Mills, 126 Mass. 90 . Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90. Huda v. American Glucose Co. 154 N. Y. 474. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100 ; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 . In Cloutier v. Oakland Park Amusement Co. 129 Maine, 454, the court failed to distinguish between such cases and the case of an invited business visitor.
[3] In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130 , 134, and Banks v. Braman, 188 Mass. 367 , 370. So in criminal cases what was necessary to make conduct criminal was often so described. The expression "criminal negligence" was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415 . Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 . Lanci v. Boston Elevated Railway, 197 Mass. 32 , 35. Romana v. Boston Elevated Railway, 218 Mass. 76 , 84. Commonwealth v. McCan, 277 Mass. 199 , 203. At least one statute purports to impose criminal liability for "gross negligence." G. L. (Ter. Ed.) c. 265, Section 30. Whether that expression really means wanton or reckless conduct has not been decided.
In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N. Y. 451. Regina v. Elliott, 16 Cox C. C. 710. People v. Burgard, 377 Ill. 322. People v. Lynn, 385 Ill. 165. State v. Cope, 204 N. C. 28. State v. Studebaker, 334 Mo. 471. State v. Sawyers, 336 Mo. 644. Bell v. Commonwealth, 170 Va. 597. State v. Whatley, 210 Wis. 157; 99 Am. L. R. 749. 29 C. J. 1154, et seq.
7.2.6.3.3.1.2 Noakes v. Commonwealth 7.2.6.3.3.1.2 Noakes v. Commonwealth
ELIZABETH POLLARD NOAKES,
v.
COMMONWEALTH OF VIRGINIA.
Record No. 0295-08-2.
Court of Appeals of Virginia, Richmond.
James T. Maloney (Maloney & David, P.L.C., on brief), for appellant.
Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Kelsey, Beales and Retired Judge Clements[*].
MEMORANDUM OPINION[**]
JUDGE RANDOLPH A. BEALES.
Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.
I. BACKGROUND
On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable, "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.
Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.
In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.
Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.
Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.
Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.
A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.
Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.
The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."
At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.
While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:
[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).
Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.
First, although "`the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations `"only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.
Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).
"The word `gross' means `aggravated or increased negligence' while the word `culpable' means `deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. `"Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature,[1] showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.' Id. at 611-12, 195 S.E. at 681."
Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).
On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.
We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.
Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound collapsed dog crate on top of his crib.
This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.[2] See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts"); Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").
In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers." Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").
Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction.[3] Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.
In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's inattentiveness in the face of this experimental and dangerous set-up and with Noah's conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah's safety. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.
III. CONCLUSION
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
Clements, J., dissenting.
For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.
"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it." Id. (citing Code § 8.01-680).
Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner "so gross, wanton, and culpable as to show a reckless disregard of human life."
Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "`is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when `the offender either knew or should have known the probable results of his acts.'" Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).
In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.
For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."
In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.
Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep,[4] appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.
Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.
Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.
Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.
[*] Judge Clements participated in the hearing and decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).
[**] Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[1] "Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose." Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane." Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.
[2] We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.
[3] She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.
[4] Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.
7.2.6.3.3.1.3 State v. Williams 7.2.6.3.3.1.3 State v. Williams
v.
Walter L. WILLIAMS and Bernice J. Williams, and each of
them, Appellants.
[4 Wn.App. 910] [484 P.2d 1169] Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, Court-appointed for appellant.
Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.
HOROWITZ, Chief Judge.
Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.
The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a [484 P.2d 1170] 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.
The court expressly found:
That both defendants were aware that William Joseph [4 Wn.App. 911] Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The defendants were ignorant. They did not realize how sick the baby was. They thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.
The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.
That as a proximate result of this negligence, William Joseph Tabafunda died.
Findings 5, 6 and 7. From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.
Defendants take no exception to findings but contend that the findings do not support the conclusions that the defendants are guilty of manslaughter as charged. The contentions raise tow basic issues, (1) the existence of the duty to furnish medical aid charged by the information to be violated [1] and the seriousness of the breach required; and (2) the issue of proximate cause, I.e., whether defendants were put on notice, in time to save the child's life, that medical care was required. Because the nature of the duty and the quality or seriousness of the breach are closely interrelated, our discussion of the first issue involved will embrace both matters.
[4 Wn.App. 912] Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942); White v. McDowell, 74 Wash. 44, 132 P. 734 (1913); See Commonwealth v. Breth, 44 Pa.Co.Ct.R. 56 (1915); Annot., 100 A.L.R.2d 483, §§ 6, 15(a), 15(b) (1965). In Washington, the existence of the duty is commonly assumed and is stated at times without reference to any particular statute. See, e.g., In re Adoption of Lybbert, 75 Wash.2d 671, 453 P.2d 650 (1969); In re Hudson, 13 Wash.2d 673, 693, 126 P.2d 765 (1942); In re Guardianship of Rudonick, 76 Wash.2d 117, 125, 456 P.2d 96 (1969). The existence of the duty also is assumed, but not always defined, in statutes that provide special criminal and civil sanctions for the performance of that duty. These include RCW 26.16.205, 26.20.030, 26.24.090, 26.32.140, 26.37.050 and chapter 26.21. See State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). Thus, RCW 26.16.205 imposes civil liability on parental property [484 P.2d 1171] for the 'expenses of the family and education of the children.' The quoted language is broad enough to include 'necessaries,' and necessaries include necessary medical expense of dependent minor children which it is the duty of a parent to provide. On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or simple negligence--gross negligence was essential. See 1 O. Warren, Homicide § 86 at 424 (Permanent ed. 1938); R. Perkins, Criminal Law 60--61 (1957). In Washington, however, RCW 9.48.060 [2] (since amended by Laws of 1970, ch. 49, § 2) and RCW 9.48.150 [3] supersede both voluntary and [4 Wn.App. 913] involuntary manslaughter as those crimes were defined at common law. Under these statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence. State v. Brubaker, 62 Wash.2d 964, 385 P.2d 318 (1963); State v. Ramser, 17 Wash.2d 581, 136 P.2d 1013 (1943); State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941).
The concept of simple or ordinary negligence describes a failure to exercise the 'ordinary caution' necessary to make out the defense of excusable homicide. RCW 9.48.150. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use 'ordinary caution.' See State v. Hedges, Supra. If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter.
In the instant case, defendants contend that the only duty to provide medical care for the infant child is the statutory duty set forth in RCW 26.20.030; that the court having concluded that the defendants were not guilty of 'willful * * * misconduct,' that no duty to furnish medical care was violated and that, accordingly, defendants are not guilty of the crime of statutory manslaughter charged in the information.
RCW 26.20.030(1)(b) makes it a felony for a person who 'willfully omits, without lawful excuse, to furnish necessary * * * medical attendance for his or her child * * *.' The words 'willfully omits' are, as pointed out in State v. Russell, 73 Wash.2d 903, 907--908, 442 P.2d 988 (1968), used in two senses, namely, (1) 'an act or omission done intentionally * * *' or (2) when used in statutes making nonsupport a crime, 'an absence of lawful excuse or justification on the part of the accused parent.' It was further pointed out that, by reason of RCW 26.20.080, the state [4 Wn.App. 914] meets its burden of proving willfulness and absence of lawful excuse on a prima facie basis when the evidence, directly or circumstantially, reveals a failure on the part of a physically or vocationally able parent to furnish the required medical attendance. Hence, RCW 26.20.030 is presumptively violated either because a defendant intentionally omits to furnish necessary medical care, or omits so to do without lawful excuse.
Defendants' contention misconceives the significance of the words 'willful * * * misconduct' contained in the conclusions because of defendants' failure to recognize that 'willful' is a phrase of double meaning. The presumption of correctness that attends judgments of the trial court is necessarily predicated upon the subordinate presumption of the correctness of findings and conclusions. To give proper[484 P.2d 1172] effect to this presumption requires that findings, whether or not containing a conclusion of law, and conclusions of law be reconciled if reasonably possible. Such a reconciliation is entirely possible in the instant case by a proper interpretation of the phrase 'willful * * * misconduct.' Since the trial court expressly found that the defendants 'had no excuse that the law will recognize for not taking the baby to a doctor,' it is reasonable to conclude that the phrase 'willful * * * misconduct,' contained in the conclusion, merely means intentional misconduct. The conclusion, in light of the findings, means merely that the conduct, although not intentional, was without lawful excuse and therefore willful in the second sense. State v. Russell, 73 Wash.2d 903, 442 P.2d 988 (1968); State v. McCarty, 76 Wash.2d 328, 456 P.2d 350 (1969); State v. Ozanne, 75 Wash.2d 546, 452 P.2d 745 (1969). Even if it is assumed that the information charging the crime of manslaughter relied upon a violation of RCW 26.20.030(1)(b), the conviction must stand since the findings and supporting evidence are sufficient to support the conclusion that, in the second sense of the term, the defendants willfully violated the duty owing their deceased child.
Furthermore, the significance of the words 'willful [4 Wn.App. 915] * * * misconduct' contained in the conclusion is overstated. If it be assumed that RCW 26.20.030(1)(b) can be said to create a duty to furnish medical care otherwise not existing, as distinguished from a mere statement of a condition precedent to the imposition of a criminal sanction, then a duty may be said to exist even if the conditions permitting imposition of the criminal sanction do not. See State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968). Hence, a conclusion that defendants' conduct was not willful does not mean that the duty has not been violated. It merely means that the special sanction of RCW 26.20.030(1) (b) cannot be invoked.
We need not, however, rest our decision solely on the above mentioned grounds. The information charging statutory manslaughter made no mention of and did not purport to restrict itself to the violation of the duty set forth in RCW 26.20.030(1)(b). The information charged the violation of 'the legal duty of providing necessary * * * medical attention to said * * * minor child * * *' This general language permits reliance upon the existence of the legal duty no matter from what source derived. We have already pointed out that such a parental duty is recognized in the decisions of this state and has been characterized as a natural duty existing independently of statutes. In re Hudson, Supra. RCW 26.20.030(1)(b) is consistent with and therefore does not supersede the common law natural duty of parents to provide medical care for their minor dependent children. Thus, should RCW 26.20.030(1)(b) be repealed, it could not reasonably be claimed that parents were thereby absolved from their natural duty to provide necessary medical care for their minor dependent children. We therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter under RCW 9.48.060 and 9.48.150. State v. Parmenter, Supra. See Commonwealth v. [4 Wn.App. 916] Breth, Supra. See also State v. Brubaker, Supra; State v. Ramser, Supra; State v. Hedges, Supra.
In the instant case, however, the defendant husband is not the father of the minor child, nor has he adopted that child. Nevertheless, the evidence shows that he had assumed responsibility with his wife for the care and maintenance of the child, whom he greatly loved. Such assumption of responsibility, characterized in the information as that required of a 'guardian and custodian,' is sufficient to impose upon him the duty to furnish necessary medical care. See State v. Parmenter, Supra; White v. McDowell, Supra. See generally, Annot., 10 A.L.R. 1137, 1143 (1921); 39 Am.Jur. Parent and Child § [484 P.2d 1173] 105 (1942); State v. Noakes, 70 Vt. 247, 40 A. 249 (1897); State v. Sandford, 99 Me. 441, 59 A. 597 (1905). See also RCW 9.01.030.
The remaining issue of proximate cause requires consideration of the question of when the duty to furnish medical care became activated. If the duty to furnish such care was not activated until after it was too late to save the life of the child, failure to furnish medical care could not be said to have proximately caused the child's death. Timeliness in the furnishing of medical care also must be considered in terms of 'ordinary caution.' The law does not mandatorily require that a doctor be called for a child at the first sign of any indisposition or illness. The indisposition or illness may appear to be of a minor or very temporary kind, such as a toothache or cold. If one in the exercise of ordinary caution fails to recognize that his child's symptoms require medical attention, it cannot be said that the failure to obtain such medical attention is a breach of the duty owed. In our opinion, the duty as formulated in People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903), although involving a statute similar to RCW 26.20.030(1)(b), properly defines the duty contemplated by our manslaughter statutes RCW 9.48.060 and RCW 9.48.150. The court there said:
We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household [4 Wn.App. 917] nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician.
People v. Pierson, Supra at 205, 68 N.E. at 244. Accord, Beck v. State, 29 Okl.Cr. 240, 233 P. 495 (1925).
It remains to apply the law discussed to the facts of the instant case.
Defendants have not assigned error to the findings either on the ground that the evidence is insufficient to prove negligence or proximate cause, or that the state has failed to prove the facts found by failing to apply the required standard of proof beyond a reasonable doubt. See People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086 (1960), cert. denied, 365 U.S. 886, 81 S.Ct. 1043, 6 L.Ed.2d 199 (1961); United States v. Eichberg, 439 F.2d 620 (D.C.Cir.1971). They contended below and on appeal that they are not guilty of the crime charged. Because of the serious nature of the charge against the parent and step-parent of a well-loved child, and out of our concern for the protection of the constitutional rights of the defendants, we have made an independent examination of the evidence to determine whether it substantially supports the court's express finding on proximate cause and its implied finding that the duty to furnish medical care became activated in time to prevent death of the child. See State v. Moore, 194 Or. 232, 241 P.2d 455 (1952).
Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion [4 Wn.App. 918] the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's [484 P.2d 1174] death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.
The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned 'a bluish color like.' The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth 'when it's all swollen up like that.' There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that 'the way the cheek looked, * * * and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.' Defendant wife testified that the defendants were 'waiting for the swelling to go down,' and also that they were afraid to [4 Wn.App. 919] take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. 'It's just that I was so scared of losing him.' They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.
In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968 to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.
The judgment is affirmed.
UTTER and WILLIAMS, JJ., concur.
---------------
[1] The information, in charging the violation of the duty owed, alleged:
(T)hey, the said defendants, then and there being the father, mother, guardian and custodian of one William Joseph Tabafunda, and being then and there under the legal duty of providing necessary food, clothing, care and medical attention to said William Joseph Tabafunds (sic), a minor child under the age of sixteen years, to-wit: of the age of seventeen (17) months, did then and there unlawfully and feloniously fail and neglect, without lawful excuse, to provide said * * * child * * * with necessary food, clothing, care and medical attention * * *
[2] RCW 9.48.060 provided in part:
'In any case other than those specified in RCW 9.48.030, 9.48.040 and 9.48.050, homicide, not being excusable or justifiable, is manslaughter.'
[3] RCW 9.48.150 provides:
'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'
7.2.6.3.3.1.4 Montgomery v. State 7.2.6.3.3.1.4 Montgomery v. State
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
JERI DAWN MONTGOMERY, Appellant v.
THE STATE OF TEXAS
NO. PD-1169-11
JOHNSON, J., delivered the opinion for a unanimous Court.
Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant’s vehicle was a deadly weapon. The jury assessed punishment of ten years’ confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.[1] This Court granted the four grounds raised in the state’s petition for discretionary review.
1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.
2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.
3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.
4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.
After review, we find that the evidence was legally sufficient to sustain appellant’s conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.
Facts
At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH-45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH- 45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state’s and appellant’s experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state’s expert testified that it was 92 feet past the entrance to the ramp; appellant’s expert estimated a lesser distance.
As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit–50 miles per hour–and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant’s SUV, slightly to the right of its center. At the time of impact, appellant’s vehicle was almost entirely in the left lane, and Willis’s truck was over the dividing line between the left and center lanes. The collision caused appellant’s vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant’s SUV struck the passenger side of Terrell Housley’s pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley’s truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley’s truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Housley’s truck caused appellant’s SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.
The Court of Appeals’s Opinion
The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that
the State presented evidence of appellant’s use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant’s negligence: cell phone usage. . . . [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas.[2]
Focusing on the prosecution’s presentation of cell-phone use as a primary factor establishing appellant’s criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.
The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cell-phone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.
Sufficiency of the Evidence
The state’s third and fourth grounds for review challenge the court of appeals’s sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[3] The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.[4] The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict[5] and that the state has presented a legally sufficient case of the offense charged.[6] When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.[7]
To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant’s conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person wouldhaveexercisedunderlikecircumstances.[8] The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.[9] Criminal negligence does not require proof of appellant’s subjective awareness of the risk of harm, but rather appellant’s awareness of the attendant circumstances leading to such a risk.[10] The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.[11]
Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.[12] The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong.[13] The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards.[14] “With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard of care exercised by ordinary people.” Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim. App. 2007). The degree of deviation from reasonable care “is measured solely by the degree of negligence, not any element of actual awareness.”[15] In finding a defendant criminally negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment.[16]
After reviewing the record, we conclude that the state has met its burden of proving all of the elements of criminally negligent homicide. Appellant made an abrupt lane change in front of Willis’s truck, causing that truck to strike the rear of appellant’s SUV, and then causing her SUV to strike Housley’s truck, from which Wilcox was ejected and died. The state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox.
The state has also proved that appellant ought to have been aware of the substantial and unjustifiable risk created by her conduct. The court of appeals, focusing on her cell-phone use, found that the state had not proved that appellant ought to be aware of the risk present because the state did not present evidence that cell-phone use while driving poses a risk to others. However, the indictment made no mention of use of a cell phone. Rather, the indictment alleged that appellant caused Wilcox’s death by making an unsafe lane change and failing to maintain a proper lookout when she made that lane change. Nor did the jury charge mention appellant’s use of a cell phone. The jury charge read,
Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of March, 2008, in Harris County, Texas, the defendant, Jeri Dawn Montgomery, did then and there unlawfully, cause the death of Chance Wilcox, by criminal negligence, namely, while operating a motor vehicle, making an unsafe lane change and failing to keep a proper lookout, causing the defendant’s vehicle to collide with a motor vehicle occupied by Chance Wilcox, then you will find the defendant guilty of criminally negligent homicide, as charged by the indictment.[17]
Through the testimony of its witnesses and experts, and by cross-examination of appellant’s witnesses and experts, the state presented evidence that: appellant was driving her SUV on the access road of IH-45; the speed limit was 50 miles per hour; appellant was driving more slowly than surrounding traffic; appellant was up to 92 feet past the beginning of the entrance ramp onto IH- 45 when she abruptly changed lanes; appellant did not signal the lane change or look for other vehicles approaching in the left lane; and appellant intended to enter IH-45 via the entrance ramp that she had already passed. The state also presented evidence that, just before the accident, appellant was driving and talking on her cell phone and that appellant admitted using the cell phone had distracted her. As Justice Hudson pointed out in his dissent in the court of appeals, the state had no burden to show that driving while using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk, only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk because it interfered with her ability to maintain a proper lookout for other vehicles.[18]
Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by her actions. Appellant was driving at speeds high enough to be lethal, should a collision occur. It is common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for upcoming traffic poses a great risk to other drivers on that road and that anyone sharing the general community’s sense of right and wrong would be aware of the seriousness of doing so.
Finally, we hold that the jury could have reasonably found that appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to her at that time, was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances. The state presented evidence that appellant had missed the entrance ramp for the highway because she was distracted by talking on her cell phone. Further evidence indicated that, although appellant knew that she had missed the entrance ramp, she still attempted to move to the left lane, cut across the “safety barrier,” and get onto the entrance ramp. Both the state’s and appellant’s accident reconstruction experts testified that appellant made an unsafe or “aggressive” lane change into the left lane and that Willis could not have avoided hitting appellant’s vehicle. Willis testified that appellant was driving more slowly than surrounding traffic and did not signal or use her brakes before she changed lanes. From the evidence presented, the jury could have found that appellant failed to perceive the substantial and unjustifiable risk created by her conduct.
Appellant argues that her conduct was not a gross deviation from the ordinary standard of care and that she was subjected to criminal liability for a common traffic accident with fatal results. The court of appeals, again focusing on the lack of evidence presented regarding the dangers of talking on a cell phone while driving, found that the use of a cell phone while driving was such common practice that it would be difficult for a rational fact finder to find it to be a gross deviation from the ordinary standard of care.
The court of appeals mistakes what conduct was alleged to constitute the gross deviation in this case. The gross deviation from the ordinary standard of care argued by the state in this case was not appellant’s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at least partly as a result of the distraction created by her use of the cell phone. The state was not required to present evidence of the dangers of using a cell phone while driving in order to carry its burden of proof, but such a use of a cell phone may be considered as a factor in determining whether a defendant grossly deviated from the ordinary standard of care. The question of whether appellant’s conduct was a “gross deviation” is a question to be answered by the fact finder and here, a rational jury could conclude that it was. We sustain the state’s third and fourth grounds for review.
Cell Phone Use
In its first ground, the state argues that the court of appeals erred in holding that cell-phone use while driving does not constitute morally blameworthy conduct and does not justify criminal sanctions. The morally blameworthiness of cell-phone use while driving, by itself, is not the issue in this case, and we will therefore not address it. It is within the purview of the legislature, not the courts, to determine what does and does not justify criminal sanctions.[19] We dismiss the state’s first ground for review.
Illegality of the Underlying Act
In its second ground, the state contends that the court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act. We do not read the court of appeals’s opinion to presume that the underlying act must itself be illegal. In footnote 10, the court of appeals listed a number of clearly legal-yet-distracting activities that, under the proper circumstances, may cause negligent driving.[20] By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state’s second ground for review.
Conclusion
We hold that the evidence was legally sufficient to support the jury’s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant’s remaining points of error.
Delivered: June 20, 2012 Publish
[1] Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] June 2, 2011, pet. granted).
[2] Id. at 752-753.
[8] See Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005); see also Graham v. State, 657 S.W.2d 99, 101(Tex. Crim. App. 1983).
[9] Tello, 180 S.W.3d at 150 (Tex. Crim. App. 2005); Graham, 657 S.W.2d at 101.
[10] Tello, at 159 (Cochran, J., concurring).
[11] Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).
[12] Tello, at 158-159 (Cochran, J., concurring).
[13] Id. at 158.
[19] In 2005, the legislature first enacted a law that governed use of cell phones; that law prohibited persons under the age of 18 years of age from driving while using a cell phone. See Act of June 17, 2005, 79th Leg., R.S., ch. 357, § 5, 2005 Tex. Sess. Law Serv. Ch. 357 (codified at TEX. TRANSP. CODE § 545.425). In 2009, the Legislature amended sections of the Transportation Code to state that, in very limited circumstances, criminal sanctions are appropriate for the use of a cell phone by persons of any age while driving. See TEX. TRANSP. CODE §§ 545.424-425 (2009). These circumstances are not present in this case, and, even if they were, the applicable amendments became effective eighteen months after this incident.
[20] Montgomery, 346 S.W .3d at 753 n.10.
7.2.6.3.3.2 III.C.ii. Unintentional Murder 7.2.6.3.3.2 III.C.ii. Unintentional Murder
Just as certain factors can bump murder down to manslaughter, others can bump it right back up. The cases in this section examine circumstances considered so extreme that, even though they do not show specific intent to kill or knowledge of killing, they are punished as “unintentional murder.” The doctrines that raise these homicides from manslaughter to murder have provocative traditional names: depraved heart; abandoned heart; malignant heart; or, more recently, “extreme indifference to the value of human life.” Consider why we punish these unintentional killings more severely than others, and how we distinguish these kinds of homicides from “normal” recklessness or indifference. Is it simply an instinctual feeling that these crimes are more blameworthy? As you read these cases, consider how the main justifications for criminal punishment—retribution, deterrence, incapacitation, and rehabilitation—justify elevating the level of criminal punishment.
7.2.6.3.3.2.1 Commonwealth v. Malone 7.2.6.3.3.2.1 Commonwealth v. Malone
354 Pa. 180
47 A.2d 445
COMMONWEALTH
v.
MALONE.
Supreme Court of Pennsylvania.
May 27, 1946.
Appeal No. 230, January term, 1945, from judgment of sentence of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, Lancaster County, June term, 1945, No. 1; Wissler, Judge.
James J. Malone was convicted of second-degree murder, and he appeals.
Affirmed, and record remitted. [47 A.2d 446]
Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, and STEARNE, Jj.
W. Hensel Brown, of Lancaster, for appellant.
John L. Hamaker, of Lancaster, for appellee.
MAXEY, Chief Justice.
This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.
On the evening of February 26th, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.
After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play ‘Russian Poker.’ 1 Long replied; ‘I don't care; go ahead.’ [47 A.2d 447]
The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: ‘Oh! Oh! Oh!’ and Malone said: ‘Did I hit you, Billy? Gee, Kid, I'm sorry.’ Long died from the wounds two days later.
The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not ‘expect to have the gun go off.’ He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.
Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the ‘grand criterion’ which ‘distinguished murder from other killing’ was malice on the part of the killer and this malice was not necessarily ‘malevolent to the deceased particularly’ but ‘any evil design in general; the dictate of a wicked, depraved and malignant heart’; 4 Blackstone 199. Among the examples that Blackstone cites of murder is ‘coolly discharging a gun among a multitude of people,’ causing the death of someone of the multitude.
In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507, 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or frame of mind termed malice.' 2 This court has declared that if a driver ‘wantonly, recklessly, and in disregard of consequences' hurls ‘his car against another, or into a crowd’ and death results from that act ‘he ought * * * to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun’: Com. v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688, citing cases from four jurisdictions.
In Com. v. Hillman, 189 Pa. 548, 42 A. 196, 69 Am.St.Rep. 827, the charge of the court below was approved by this court. In that charge appears this statement: ‘Malice in law means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice.’
In Com. v. Knox, 262 Pa. 428, 105 A. 634, 636, the following instructions by the trial judge in a murder case was held by this court not to be error: ‘When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.’ In Com. v. Arnold, 292 Pa. 210, at page 213, 140 A. 898, at page 899, this court said: ‘Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime.’
Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the [47 A.2d 448] jury to the defendant's prejudice. For example, the trial judge said: ‘All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence.’ The second sentence after this one reads as follows: ‘Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed * * * as a presumption of fact.’ A homicide may be unlawful without being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that ‘all unlawful homicide is presumed to be malicious and, therefore, murder,’ careful trial judges always qualify that statement, as Chief Justice Agnew did in Com. v. Drum, 58 Pa. 9, at page 17, where he said: ‘All murder * * * includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty.’ Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: ‘This presumption of malice does not rise, however, until the Commonwealth has made out a prima facie case of felonious homicide.’ This statement was in accord with what Mr. Justice Stern, speaking for this court, said in Com. v. Wucherer, 351 Pa. 305, at page 310, 41 A.2d 574, at page 576, to wit: ‘It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide.’ Defendant's rights were fully protected by the charge in its totality.
However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: ‘It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case.’ This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killing was intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree.
The trial judge also erred in charging that ‘A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental’. Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was. 3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing [47 A.2d 449] that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intention to kill Long is accepted (as the jury accepted it). The way the trial judge used the word ‘accidental’ throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, ‘the defendant cannot be convicted of any offense’ (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions.
In another portion of the charge, the trial judge said to the jury: ‘If you believe the testimony of the defendant, that the shot was accidental and without intention on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant’. There was not in this record any evidence which would warrant a finding that ‘the shot was accidental’. Later the judge instructed the jury that ‘If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out’. What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.
This court said in Sears v. Birbeck, 321 Pa. 375, 383, 184 A. 6, 10: ‘It is a primary duty of the trial judge-a duty that must never be ignored-in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide.’ When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations 4 to help make clear to the jury what the issues are which the jury is to decide and how to apply legal principles to the facts so as to reach a just verdict.
The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.
All the assignments of error are overruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.
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Notes:
1It has been explained that ‘Russian Poker’ is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.
2These quoted phrases are from the opinion of Chief Justice Agnew in Com. v. Drum, 58 Pa. 9.
3If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though death was ‘accidental’ in the sense that it was not intended by A. The difference between intentional means and ‘accidental’ results is discussed in Arnstein v. Metropolitan L. Ins. Co., 329 Pa. 158, at page 162, 196 A. 491, and in O'Neill et al. v. Metropolitan Life Ins. Co., 345 Pa. 232, at page 237, 26 A.2d 898, at page 901, 142 A.L.R. 735, Footnote 1.
4In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice Gibson in charging the jury used an illustration to make clear to the jury why evidence should not be discredited because it was circumstantial, and that even so-called ‘positive’ evidence was to a certain degree inferential in nature, i.e., circumstantial. In the famous case of Com. v. Webster, 5 Cush., Mass., 295, 311, 52 Am.Dec. 711, Chief Justice Shaw of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: ‘When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped.’
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7.2.6.3.3.2.2 People v. Wells 7.2.6.3.3.2.2 People v. Wells
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
NEVILLE WELLS, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
[182] Richard M. Greenberg, Office of the Appellate Defender, New York City (Joseph M. Nursey of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Alice Wiseman of counsel), for respondent.
FRIEDMAN and WILLIAMS, JJ., concur with TOM, J.P.; McGUIRE, J., concurs in a separate opinion.
OPINION OF THE COURT
TOM, J.P.
This appeal raises the issue of whether a death resulting from defendant's operation of a motor vehicle at a high rate of speed through the streets of lower Manhattan, while severely impaired by alcohol intoxication, supports his conviction of depraved indifference murder (Penal Law § 125.25 [2]). The law in effect at the time defendant was convicted is delineated by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), and we hold that the evidence is sufficient to sustain the judgment under the Register standard, the verdict is consistent with the weight of the evidence, and the trial court properly declined to entertain the defense of intoxication to negate the culpable mental state of depraved indifference or to accept expert [183] testimony concerning defendant's chronic alcoholism. Were we to analyze this case under the standard of People v Feingold (7 NY3d 288 [2006]), as urged by defendant, we would reach the same result.
On June 14, 2004 at 2:00 A.M., Robert Smith drove from his home in Nassau County to the Fulton Fish Market, where he ran a wholesale seafood business. He was accompanied by his daughter, Judith Gubernikoff, 37 years of age, who had begun working for the family business that month after moving from Chicago to New York with her husband, Dr. George Gubernikoff, and their three young children so that Dr. Gubernikoff could accept a position at a Long Island hospital. Robert Smith testified that it was his custom to take the Williamsburg Bridge into Manhattan and drive south along Allen Street, which is a six-lane, divided roadway with a median separating the northbound and southbound lanes. Smith stated that he customarily traveled at 25 miles an hour to coincide with the timing of the traffic signals; however, he had no recollection of the events of that fatal morning.
At about 2:45 A.M., Adam Falek was in his pickup truck waiting at a red light on Waverly Street. As he made a right turn onto Broadway after the light changed, a blue van traveling south on Broadway came "flying" through the red light and almost hit his vehicle, causing him to swerve to the right to avoid a collision. Falek followed the blue van, pulling up alongside it at the next light, and began to yell at the driver, who paid no attention. Falek observed that the van's driver was rolling his head and looked "disheveled," "incoherent," "out of it," and "totally wasted." Without even looking over, he "just punched the gas and took off," stopping only momentarily after hitting a parked car about two blocks later. Falek continued to follow the van because it was going in his direction. However, he broke off the chase after the van ran through two more red lights: "he was going a high rate of speed and I was afraid, so I said it's not worth it." Falek estimated that, at the point he decided to discontinue the pursuit, his own vehicle was traveling at "[f]ifty, sixty miles an hour," and the distance between the two vehicles was increasing.
At approximately 2:55 A.M., Martin Clemente was in his Dodge Caravan in the westbound lane of Grand Street, facing the intersection with Allen Street, waiting for the light to change. There were still people coming back from the Hispanic Day parade crossing Grand Street directly in front of his vehicle. Looking [184] straight ahead towards the traffic light with an unobstructed view of the intersection, he observed a Saturn proceeding south on Allen Street at about 30 miles an hour into the intersection. Suddenly, a blue minivan "came out of nowhere" from the easterly direction on Grand Street, going "very fast," and without braking or slowing down entered the intersection against a red light. The front end of the van struck the passenger side of the Saturn. The force of the impact caused the minivan to spin around and come to a stop facing west in the intersection. "The Saturn went up in the air," propelled end over end, "doing a three-sixty, hit the floor, did another three-sixty," and landed on the fence of the divider on the northbound side of Allen Street.
After calling 911 to report the accident, Clemente went over to the Saturn. Smith appeared to be in shock, and Judith Gubernikoff was unconscious. Her seat was "crushed together" with the driver's seat, and both seats were tilted backwards, "so she was trying to gasp for air with her head back." From a distance of about 25 feet, Clemente watched defendant get out of the driver's side of the minivan. He appeared "dizzy" and was "walking around in circles."
At the same time, Coss Marte, who was standing in the vicinity with some friends, heard a loud crash and ran to the intersection of Allen and Grand Streets, where he saw the blue van in the middle of the intersection and the Saturn on top of the fence located on the median island. Marte also called 911. As the sound of ambulance sirens became audible, defendant attempted to "run away," "zigzagging" along Grand Street towards Eldridge Street. Marte chased defendant and, a minute or two later, Marte and another man grabbed defendant and brought him back to the accident scene. Marte and the other man had to "grab" defendant's arms because he was attempting to get away. Although defendant was mumbling incomprehensibly, he did not appear to have sustained injury.
Officer Christopher Owen, who responded to the 911 call, testified that defendant appeared disheveled, his clothes were messy, his eyes were bloodshot and a strong odor of alcohol emanated from his person. The officer "had to prop him up with my right hand under his arm to walk him towards the ambulance, and he was stumbling, stumbling as we walked." The officer added, "He appeared very confused, disoriented, seemed like he didn't know what was going on," and was unresponsive to questioning. Apart from "some blood coming from his nose," defendant did not appear to be injured.
[185] Ms. Gubernikoff was brought to Bellevue Hospital's emergency room, where she was treated by Dr. Richard Moreno. A thoracotomy was performed, which revealed that she had sustained a hemopericardium—the accumulation of blood between the heart and the pericardial sac surrounding it. Because the injury prevented her heart from contracting appropriately, the pericardium was opened and the blood drained. At that point, Dr. Moreno observed a hole in the right atrium of the heart, an injury that is consistent with blunt force trauma sustained in a motor vehicle collision. Dr. Moreno testified that the force generated in the thoracic cavity necessary to cause the heart to rupture was "high velocity." While performing surgery to repair the hole, the medical team was unable to maintain blood pressure, and Gubernikoff was pronounced dead on the operating table at 4:50 A.M.
Robert Smith was also taken to Bellevue Hospital. A CAT scan revealed that blood had accumulated in his chest and behind the abdominal organs, near his kidneys. His injuries included a lacerated intercostal artery, and the internal bleeding required surgical intervention, without which he would have bled to death. Smith, who awoke three weeks later, remained in the intensive care unit until June 30, 2004. He was discharged from the hospital on July 9 and treated at a rehabilitation center for another two weeks. He was unable to return to work for approximately six months and experienced memory deficits, difficulty walking and climbing, and reduced stamina for months after the crash.
After the victims were taken to the hospital, an accident investigation team arrived at the accident scene. Detective Patrick Rooney, an expert in the field of collision investigation and reconstruction, observed no pre-crash skid marks, from which he deduced that neither driver had applied the brakes before the vehicles collided. The absence of skid marks prevented him from calculating the speed of the van. In addition, the doors and roof of the Saturn had been cut off to extricate the passengers, precluding calculation of its speed from "crush evidence." However, judging from the damage sustained by both vehicles and their respective weights (2,500 pounds for the Saturn and 4,300 pounds for the Ford Windstar minivan), the distance the Saturn traveled following the collision, its abrupt change of direction from south to southeast upon impact and the fact that it became airborne, Rooney concluded that the van must have been going from 50 to 55 to as much as 60 miles an hour when [186] the vehicles collided. He further testified that both occupants of the Saturn were wearing seat belts, which had been cut to facilitate extrication. From the absence of any imprint on the van's safety harness, meaning that it did not lock on impact, the witness concluded that defendant was not wearing his seat belt at the time of the collision.
Two blood samples were obtained from defendant at about 5:00 A.M. on the morning of the accident. Since he had passed out, the samples were taken with his implied consent by an emergency room doctor. Analysis of the two samples revealed a blood alcohol concentration of .25% and .27%, respectively. It was stipulated that defendant had previously attended an intoxicated driver rehabilitation course.
Defendant presented testimony from Nicholas Bellizzi, a civil engineer and expert in the field of engineering and accident reconstruction. Bellizzi testified that, in the absence of skid marks, there are two methods of accident reconstruction used to determine speed: conservation of kinetic energy and conservation of linear momentum. The first method is based on a calculation of the amount of force required to create the damage caused to the vehicles in a collision. Due to the damage done to the Saturn in removing the passengers, he was unable to use the conservation of kinetic energy method to calculate the van's speed. Using the conservation of linear momentum method, he estimated that the van had been traveling between 36 and 37 miles an hour and the Saturn had been traveling about 13 miles an hour at the time of impact, with a five percent margin of error. Bellizzi made his calculations using the heaviest Saturn model, which weighed 900 pounds more than the Smith vehicle. He worked from police diagrams and photographs without conducting any examination of the vehicles. From offset crash barrier tests performed by the Insurance Institute for Highway Safety, he opined that defendant's van would have sustained more severe damage to the occupant compartment had it been traveling at 55 miles an hour and that defendant, unrestrained by a seat belt, would have been propelled through the windshield. However, he conceded that vehicle damage inflicted by an offset crash would be greater since a smaller area of the vehicle absorbs the impact. The impact during an offset crash test is deliberately confined to the driver's side and not distributed over the full frontal width as in the case of a "frontal barrier impact" (such as the collision herein), where the entire front of the car strikes the barrier. Nor, he conceded, are offset crash [187] tests designed to simulate the collision of vehicles in different weight classes. Bellizzi did not take into account that the Saturn had flipped over because the conservation of linear momentum method does not utilize such data. Finally, he did not estimate how far the Saturn might have traveled had it not come into contact with the median fence, although from the minimal damage to the fence he concluded that it would not have traveled much farther.
The trial court, in a nonjury trial, refused to permit a psychologist to testify that, based on his examination, defendant suffered from chronic alcoholism, rejecting defendant's argument that this condition bore on his capacity to formulate the mens rea necessary for depraved indifference murder. Rather, the court held that voluntary intoxication is not a material consideration with respect to a crime involving reckless behavior.
The court found defendant guilty of murder in the second degree for causing the death of Judith Gubernikoff as a result of his reckless and wanton conduct. The court further found defendant guilty of assault in the first degree for "causing serious physical injury to Mr. Robert Smith that was occasioned by the same recklessness and indifference to human life that resulted in Mrs. Gubernikoff's death." Defendant was also found guilty of all lesser noninclusory concurrent counts in the indictment— vehicular manslaughter in the second degree, vehicular assault in the second degree and assault in the second degree. On July 29, 2005, the court sentenced defendant to a cumulative concurrent term of imprisonment of 17 years to life.
On appeal, defendant contends that the evidence is insufficient to sustain conviction of murder in the second degree and assault in the first degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct (citing People v Payne, 3 NY3d 266, 271 [2004]). Relying on People v Feingold (7 NY3d 288, 296 [2006], supra), he argues that the evidence fails to show, even circumstantially, that he was capable of formulating the mens rea that delineates depraved indifference murder because his extreme intoxication rendered him "incapable of possessing the culpable mental state necessary to prove depraved indifference" (quoting People v Coon, 34 AD3d 869, 870 [2006]). He maintains that the trial court erred in refusing to receive relevant testimony concerning his chronic alcoholism. [188] Finally, defendant asserts that even when examined under the pre-Feingold standard of Register, his conduct falls far short of the extreme recklessness of drivers found similarly culpable, who generally appeared to be well aware of the risks they posed to others (e.g. People v Gomez, 65 NY2d 9 [1985] [driving on sidewalk at high speed]; People v Williams, 184 AD2d 437 [1992], lv denied 80 NY2d 935 [1992] [high-speed chase through construction site]). Defendant's contentions are unavailing.
Depraved indifference murder is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person" (Penal Law § 120.10 [3]). A person acts recklessly "when he is aware of and consciously disregards a substantial and unjustifiable risk" (Penal Law § 15.05 [3]). The law in effect at the time of defendant's trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold (7 NY3d 288 [2006], supra), but instead referred to an objective standard reflected by the "factual setting in which the risk creating conduct must occur" (see Register, 60 NY2d at 276). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see 7 NY3d at 300 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).
Defendant never objected that the trial court was required to find that he acted with a mental state beyond recklessness or that depraved indifference referred to anything other than the circumstances under which the risk-creating conduct took place. Indeed, in his motion to dismiss at the conclusion of the People's case after the close of evidence, defendant explicitly cited Register, arguing merely that the People had failed to establish his commission of the crimes charged under circumstances evincing a depraved indifference to human life. This objection did not suffice to apprise the trial court of [189] the contention now advanced by defendant that depraved indifference must be evaluated subjectively from his mental state and not objectively from the surrounding circumstances (see People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Lawrence, 85 NY2d 1002, 1004 [1995]). Furthermore, the Court of Appeals' purpose in effecting this change in the law was "to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder" (Policano v Herbert, 7 NY3d 588, 603 [2006] [change in the law not retroactively applicable to convictions that have become final upon exhaustion of appellate review]). The People's reliance "on Register's objectively determined degree-of-risk formulation" (id. at 604) in this matter does not implicate such concerns since there is no suggestion that defendant harbored any intent to cause harm. Thus, the court's evaluation of the sufficiency of proof according to the Register standard, which represented the prevailing law at the time defendant was convicted (see People v Woods, 36 AD3d 525, 526 [2007], lv denied 8 NY3d 951 [2007]), went unchallenged, and its failure to apply a mens rea standard, as now urged, is unpreserved for review (see id., citing Gray, 86 NY2d 10 [1995], supra; see also People v Orcutt, 49 AD3d 1082, 1085 [2008]; People v Zephirin, 47 AD3d 649 [2008]), and we decline to reach the issue in the interest of justice.
Under Register, depraved indifference murder requires that a defendant's act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 NY2d at 274). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to "the factual setting in which the risk creating conduct must occur" (id. at 276).
The evidence adduced in this case overwhelmingly supports defendant's conviction of depraved indifference murder and depraved indifference assault. Having chosen to drive while heavily intoxicated, defendant proceeded to drive in an extremely reckless manner, creating a grave risk of death to pedestrians and other drivers in a densely populated area of lower Manhattan.
The People's proof showed that defendant was driving at a speed of between 50 and 60 miles an hour and speeding through red lights before entering the subject intersection against a red [190] traffic signal and plowing into Smith's Saturn. Defendant was operating a motor vehicle while, by his own admission, "barely conscious due to his intoxication,"[*] and analysis showed his blood alcohol level was close to three times the legal limit. Falek observed defendant "flying" through several red lights and hitting a parked car, and Clemente observed defendant's van coming out of nowhere, traveling "very fast" as it entered the intersection. Detective Rooney, based on his training and experience, estimated that the van had been traveling at 50 to 55 miles an hour, and possibly as high as 60 miles an hour, an opinion supported both by the damage to the vehicles and by the testimony of eyewitnesses. The impact between defendant's minivan and Smith's Saturn was sufficiently severe to cause the Saturn to become airborne and flip end over end two times before landing on top of a fence located on the median island. Defendant made no attempt to brake before hitting the Saturn, as indicated by the absence of pre-crash skid marks.
Defendant drove not only at a high rate of speed but dangerously, as evinced by his striking a parked car and nearly striking Falek's pickup truck before colliding with the Saturn. Defendant narrowly avoided striking Falek's vehicle under much the same circumstances under which he struck the Smith vehicle moments later—speeding through a red light toward a vehicle that was passing through the intersection with the right-of-way. Just as defendant made no apparent effort to avoid the collision with Smith's Saturn, he made no effort to avoid Falek, who was forced to swerve to the right to get out of the way. The fact that defendant continued driving in the same manner after almost striking Falek—indeed, reacting to Falek's attempt to get his attention by "punch[ing]" the gas pedal and speeding off again—demonstrated a depraved disregard of the very high risk of death or serious physical injury that his conduct posed to others. Thus, the evidence supports defendant's conviction of depraved indifference murder and assault (see People v Gomez, 65 NY2d 9 [1985], supra [defendant's excessive rate of speed and failure to brake while proceeding along a busy city street and partly onto its sidewalk satisfied depraved indifference element of crime]; People v Hoffman, 283 AD2d 928 [2001], lv denied 96 NY2d 919 [2001] [drinking and driving, excessive rate of speed, disobeying traffic signals, and failing to brake before he broadsided vehicle, killing and injuring the passengers [191] therein, legally sufficient evidence of depraved mind murder]; People v Padula, 197 AD2d 747 [1993], lv denied 82 NY2d 928 [1994] [excessive rate of speed, failure to brake or take other evasive action, and decision to get behind the wheel of vehicle after becoming intoxicated, legally sufficient evidence of depraved mind murder]).
Further, while extremely intoxicated, defendant was not so impaired that he was unaware of what he had done, as indicated by his attempt to flee from the scene of the crash and his struggle with those who thwarted his escape. Moreover, it was conceded that defendant had previously attended a rehabilitative course for intoxicated drivers, which certainly would have alerted him to the grave danger that drinking and driving poses to others.
The verdict comported with the weight of the evidence, and the trial court properly credited the speed estimates proffered by the People's witnesses. The import to be accorded to expert testimony is generally within the province of the trier of fact (see People v Schwartz, 21 AD3d 304, 309 [2005], lv denied 7 NY3d 763 [2006]), which may determine whether to accept or reject it (see People v Drake, 7 NY3d 28, 33 [2006]). The trial court properly assessed the probative value of the witnesses' conflicting testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]) and was warranted in rejecting defendant's expert's calculations and crediting the testimony of the People's eyewitnesses and an experienced police accident investigator that the minivan's speed was from 50 to 55 to as much as 60 miles an hour at the time of impact. When he first spotted defendant's van, Falek described it as "flying" through the red light, and estimated its speed at 50 to 60 miles an hour as it sped away. Falek pursued defendant's van for some distance and was in an excellent position to assess its speed from that of his own vehicle. He testified that, at the time he gave up his pursuit, his own vehicle was traveling at a speed of 50 to 60 miles an hour, and the distance between the two vehicles was increasing. While the van's speed was contested by defendant's expert, Bellizzi, who estimated a modest 36 to 37 miles an hour, he did not personally inspect the vehicles. His calculation utilized an exaggerated weight of the Saturn and employed a mathematical model of "linear momentum" that did not account for the fact that the vehicle had flipped over. The result of Bellizzi's computation was only as good as the variables that went into it. His determination of the critical "point of impact" (from which [192] all the other measurements flowed) was itself flawed in that it relied upon the location of scuff marks, the exact coordinates of which were unavailable.
The argument advanced by defendant that the element of depraved indifference to human life "may be negatived by evidence of intoxication," was explicitly rejected in Register, which holds that depraved indifference "is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur—objective circumstances which are not subject to being negatived by evidence of defendant's intoxication" (60 NY2d at 276). Furthermore, Penal Law § 15.05 (3) expressly precludes evidence of intoxication as a defense to a reckless crime, providing that "[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly." Thus, defendant's intoxication at the time of the collision, no matter how debilitating, is immaterial, as is his history of chronic alcoholism, and the trial court properly declined to consider such evidence.
The act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle, demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life.
Defendant did not preserve his objection to the trial court's evaluation of the evidence under the Register standard, and we decline to review it in the interest of justice. As an alternative holding, we further reject, on the merits, defendant's argument that he was incapable of forming the mens rea required for depraved indifference murder. Even subjecting his conviction to analysis under Feingold, as defendant now urges, we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life. Operation of a vehicle weighing in excess of two tons at a high rate of speed on city streets while highly intoxicated is the very epitome of depraved indifference to human life, culpably equivalent to "shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Payne, 3 NY3d at 272 [internal quotation marks omitted]). It demonstrates "an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Feingold, 7 NY3d at 296 [internal quotation marks omitted]). People v Coon (34 AD3d 869, 870 [2006]), relied upon by the [193] concurrence, is distinguishable. There, the defendant, in a state of cocaine intoxication delirium, assaulted his sister with a knife. The Third Department held that defendant was too intoxicated to possess the culpable mental state necessary to sustain conviction for a depraved indifference offense.
Here, defendant's mental state at the time of the collision, as attested by numerous witnesses, is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication. The mens rea of depraved indifference in this case is established by circumstantial evidence demonstrating that defendant made a conscious decision to drink and then, after consuming an excessive amount of alcohol to the point of becoming "totally wasted," to drive on city streets at a high rate of speed through red traffic lights, thereby creating a grave risk of death to pedestrians and occupants of other vehicles. The distinction between depraved indifference and intentional conduct does not detract from the wisdom of the observation aptly made by the Court of Appeals in Register:
"In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk" (60 NY2d at 280-281).
Defendant's depraved indifference is further supported by his comprehension of the dangers of drinking and driving. Having stipulated to attending an intoxicated driver rehabilitation course, there is record support for the conclusion that defendant was well aware of the risk that drunk driving posed to others. Thus, we conclude that the sufficiency and weight of the evidence prove beyond a reasonable doubt, even under Feingold, that defendant engaged in reckless conduct that created a grave risk of death to others and that he disregarded such risk under circumstances evincing a depraved indifference to human life, thereby causing the death of Judith Gubernikoff and serious physical injury to Robert Smith.
Accordingly, the judgment of the Supreme Court, New York County (Richard D. Carruthers, J.), rendered June 29, 2005, convicting defendant, after a nonjury trial, of murder in the [194] second degree, assault in the first degree, vehicular manslaughter in the second degree, assault in the second degree, and vehicular assault in the second degree, and sentencing defendant to concurrent terms of 17 years on the murder conviction, 15 years on the first-degree assault conviction, 7 years on the second-degree assault conviction, 2 1/3 to 7 years on the vehicular manslaughter conviction, and 1 1/3 to 4 years on the second-degree vehicular assault conviction, should be affirmed.
McGUIRE, J. (concurring).
I agree with the majority that defendant's challenge to the sufficiency of the evidence, to the extent it is based on the holding in People v Feingold (7 NY3d 288 [2006]) that depraved indifference to human life is a culpable mental state, is not preserved for review. At defendant's trial, the clear understanding of the court and the parties, consistent with the holding in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), was that the only mental state required for the depraved indifference murder and assault counts was recklessness. Defendant made no argument or protest to the contrary. For this reason, defendant is wrong in contending that his current claim that depraved indifference is a culpable mental state is preserved for review merely because the court, in the course of ruling on a different issue that was in dispute, correctly stated the contrary holding in Register (see People v Colon, 46 AD3d 260, 263 [2007] [ruling by trial court on issue of law did not preserve issue for review when court's ruling was not made in response to a protest by a party]). I also agree with the majority that we should not review this unpreserved claim in the interest of justice. To the extent defendant is claiming on this appeal that the evidence was legally insufficient even when evaluated under the Register standard, I agree with the majority that the evidence was legally sufficient.
Although there was no jury to be instructed, the clear understanding of the parties that recklessness was the only mental state required for these crimes renders this case indistinguishable from a jury trial in which the jury is charged, without objection, under an incorrect or subsequently invalidated standard (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Johnson, 43 AD3d 288, 291-292 [2007], revd on other grounds 10 NY3d 875 [2008]). Because for this reason we must weigh the evidence in light of the elements of the depraved indifference crimes as they were defined in Register, I agree with the majority that the verdict convicting defendant of those crimes is not against the weight of the evidence.
[195] After making clear that it is not reviewing in the interest of justice defendant's unpreserved challenge under Feingold, the majority alternatively holds as follows: "Even subjecting [defendant's] conviction to analysis under Feingold, ... we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life." We need not and should not decide, however, whether the evidence is sufficient under Feingold. By not deciding that issue, we would avoid the need to address and decide the question of law that is at the core of defendant's challenge to the sufficiency of the evidence under Feingold: whether voluntary intoxication remains irrelevant as a defense in a prosecution for depraved indifference murder.
Under the last sentence of Penal Law § 15.05 (3), a person who is unaware solely by reason of voluntary intoxication that his conduct creates a particular risk nonetheless acts recklessly with respect to that risk. In Register, this sentence played a decisive role in the Court's conclusion that the requirement of conduct evincing a depraved indifference to human life "does not create a new and different mens rea ... which can be negatived by evidence of intoxication" (60 NY2d at 279; see also id. at 275-276).
However, because voluntary intoxication does not negate the mens rea of recklessness, it hardly follows that it does not or cannot negate the distinct mens rea of depraved indifference, "an additional requirement of the crime—beyond mere recklessness and risk—which in turn comprises both depravity and indifference" (People v Suarez, 6 NY3d 202, 214 [2005]; see Feingold, 7 NY3d at 294). If voluntary intoxication remains irrelevant under Feingold as a defense to a depraved indifference prosecution, it must be that an individual can be depravedly indifferent to a risk without being aware of it. How that could be is far from obvious. Notably, as defendant stresses, a panel of the Third Department has concluded that voluntary intoxication can negate the mens rea of depraved indifference (People v Coon, 34 AD3d 869, 870 [2006] ["as defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference"]).
As I read the majority's opinion, it does not decide this question sub silentio. After all, although it correctly notes the specific holding of Register on the irrelevance of voluntary intoxication in a prosecution for depraved indifference murder, it does not [196] mention, let alone discuss, the issue of whether that holding remains good law after Feingold. Nor does the majority mention that defendant argues at length that under Feingold the mens rea of depraved indifference can be negated by evidence of intoxication, or state whether it agrees with the conclusion of the Third Department in Coon.[1] Clearly, moreover, the issue is best left for another day.
Relatedly, I would reject as unpreserved defendant's current claim that he was deprived of his constitutional right to present a defense because the trial court improperly precluded the testimony of his expert regarding his chronic alcoholism. At trial, defendant never alerted the trial court to his current claim that the testimony related to a depraved indifference mens rea. Rather, defendant argued that the testimony bore on the mens rea of recklessness and on whether the objective circumstances surrounding his reckless conduct rose to the level of depraved indifference. Having never protested that the testimony related to a depraved indifference mens rea, defendant's claim is not preserved for review (CPL 470.05 [2]; People v Johnson, 43 AD3d at 291-292, revd on other grounds 10 NY3d 875 [2008]), and I would not review it in the interest of justice.
I disagree in part with the majority's statement that "defendant's mental state at the time of the collision ... is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication." A defendant's actions prior to the commission of the actus reus allegedly constituting the crime charged certainly can shed light on his mens rea at the time of the actus reus, but the defendant's guilt turns on what his mens rea was at the time of the actus reus (cf. People v Gallagher, 69 NY2d 525 [1987]). I agree that defendant's mens rea at the exact moment of the collision is not determinative. The focus, however, must be on defendant's mens rea when he engaged in the conduct—which included driving at high speed on city streets through red lights—that caused the [197] victim's death.[2] Thus, "culpability is appropriately assessed" at that time, not at any earlier point in time when, according to the majority, "defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication."
I also disagree that any "conscious decision to drink" defendant made "inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication" (emphasis added). This unexplained assertion that defendant's operation of a motor vehicle while in a state of extreme intoxication was the inevitable consequence of some earlier decision is unsupported by the evidence and contrary to common experience. Finally, no testimony was elicited at trial about defense counsel's contention in his memorandum of law that the evidence at trial would prove that defendant was "barely conscious due to his intoxication" (emphasis deleted). Accordingly, the majority errs in considering that contention to be evidence (indeed, an admission by defendant) that he was "barely conscious" as a result of his intoxication.
Judgment, Supreme Court, New York County, rendered June 29, 2005, affirmed.
[*] As acknowledged in support of his application to introduce evidence of his chronic alcoholism.
[1] The majority, however, prefaces the two sentences it devotes to the opinion in People v Coon with a confounding sentence. Thus, it writes, "People v Coon ..., relied upon by the concurrence, is distinguishable" (emphasis added). My point of course is that we need not and should not decide whether voluntary intoxication can negate the mens rea of depraved indifference. Accordingly, and just as obviously, I do not "rel[y]" upon People v Coon.
[2] That mens rea need not be identical to or as culpable as the mens rea of a person who decides to drive after drinking to excess. Obviously, not everyone who drives while intoxicated creates the same risk of death to others that defendant's driving created.
7.2.6.3.3.3 III.C.iii. Felony Murder 7.2.6.3.3.3 III.C.iii. Felony Murder
In criminal law, sometimes the result trumps the intention. Perhaps the least intuitive category of homicide that we will study is felony murder. Under the felony murder rule, accidental and unintentional killings that occur during the commission of a felony are sometimes elevated from unintentional homicide to murder. The felony murder rule has been controversial. It has evolved in scope over time, and, as the cases below show, is now often limited to inherently dangerous felonies. By transferring intention and blameworthiness from a separate felony to a homicide, the felony murder rule significantly raises the stakes of any felony that may tangentially and even unforeseeably lead to death. Why might the felony murder doctrine have developed? Consider how courts have limited it over time. What concerns have animated criticisms of the rule? Have the courts’ efforts to limit the rule preserved its usefulness, or is it an unfortunate relic of the past?
7.2.6.3.3.3.1 People v. Stamp 7.2.6.3.3.3.1 People v. Stamp
THE PEOPLE, Plaintiff and Respondent,
v.
JONATHAN EARL STAMP et al., Defendants and Appellants.
Court of Appeals of California, Second District, Division Three.
[207] COUNSEL
Luke McKissack, under appointment by the Court of Appeal, Belli, Ashe, Ellison, Choulos & Lieff and Robert L. Lieff for Defendants and Appellants.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark W. Jordan, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
COBEY, Acting P.J.
These are appeals by Jonathan Earl Stamp, Michael John Koory and Billy Dean Lehman, following jury verdicts of guilty of robbery and murder, both in the first degree. Each man was given a life sentence on the murder charge together with the time prescribed by law on the robbery count.
Defendants appeal their conviction of the murder of Carl Honeyman who, suffering from a heart disease, died between 15 and 20 minutes after Koory and Stamp held up his business, the General Amusement Company, on October 26, 1965, at 10:45 a.m. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery; several weeks later Stamp was arrested in Ohio and Koory in Nebraska.
Broadly stated, the grounds of this appeal are: (1) insufficiency of the evidence on the causation of Honeyman's death; (2) inapplicability of the felony-murder rule to this case; (3) errors in the choice of instructions given and refused; and (4) erroneous admission in evidence of the extrajudicial confessions of Stamp and Koory and the incriminating statement of Lehman.
On this appeal appellants primarily rely upon their position that the felony-murder doctrine should not have been applied in this case due to the unforeseeability of Honeyman's death.
THE FACTS[1]
Defendants Koory and Stamp, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement [208] Company, ordered the employees they found there to go to the front of the premises, where the two secretaries were working. Stamp, the one with the gun, then went into the office of Carl Honeyman, the owner and manager. Thereupon Honeyman, looking very frightened and pale, emerged from the office in a "kind of hurry." He was apparently propelled by Stamp who had hold of him by an elbow.
The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door. As the robbers, who had been on the premises 10 to 15 minutes, were leaving, they told the victims to remain on the floor for five minutes so that no one would "get hurt."
Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble "keeping the pounding down inside" and that his heart was "pumping too fast for him." A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee's office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner's report listed the immediate cause of death as heart attack.
The employees noted that during the hours before the robbery Honeyman had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man, with a history of heart disease, who was under a great deal of pressure due to the intensely competitive nature of his business. Additionally, he did not take good care of his heart.
Three doctors, including the autopsy surgeon, Honeyman's physician, and a professor of cardiology from U.C.L.A., testified that although Honeyman had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system which precipitated the attack. It was their conclusion in response to a hypothetical question that but for the robbery there would have been no fatal seizure at that time. The fright induced by the robbery was too much of a shock to Honeyman's system. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal.
[209]
SUFFICIENCY OF THE EVIDENCE RE CAUSATION
(1a) Appellants' contention that the evidence was insufficient to prove that the robbery factually caused Honeyman's death is without merit. (2) The test on review is whether there is substantial evidence to uphold the judgment of the trial court, and in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. (People v. Redmond, 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) (1b) A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.[2]
APPLICATION OF THE FELONY-MURDER RULE
Appellants' contention that the felony-murder rule is inapplicable to the facts of this case is also without merit. (3) Under the felony-murder rule of section 189 of the Penal Code, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314 [57 Cal. Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal. App.2d 324, 328 [52 Cal. Rptr. 329].) (4a) People v. Washington, 62 Cal.2d 777, 783 [44 Cal. Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or [210] his accomplice acting in furtherance of their common design. (See People v. Gilbert, 63 Cal.2d 690, 705 [47 Cal. Rptr. 909, 408 P.2d 365].)
(5) The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life.[3] (See People v. Sears, 62 Cal.2d 737, 745 [44 Cal. Rptr. 330, 401 P.2d 938]; People v. Phillips, 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; People v. Washington, supra, at p. 780.) This rule is a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or the implied malice which is manifested in an intent to kill. (People v. Lilliock, 265 Cal. App.2d 419, 431 [71 Cal. Rptr. 434].) (6) Under this rule no intentional act is necessary other than the attempt to or the actual commission of the robbery itself. When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime. (People v. Ketchel, 71 Cal.2d 635, 642 [79 Cal. Rptr. 92, 456 P.2d 660]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].)
(4b) There is no requirement that the killing occur, "while committing" or "while engaged in" the felony, or that the killing be "a part of" the felony, other than that the few acts be a part of one continuous transaction. (People v. Chavez, 37 Cal.2d 656, 670 [234 P.2d 632].) Thus the homicide need not have been committed "to perpetrate" the felony. There need be no technical inquiry as to whether there has been a completion or abandonment of or desistance from the robbery before the homicide itself was completed. (People v. Chavez, supra, at pp. 669-670.)
(7a) The doctrine is not limited to those deaths which are foreseeable. (See 1 Witkin, Cal. Crimes (1963) §§ 78, 79, pp. 79-80; People v. Chavez, supra, at pp. 669-670.) Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. (People v. Talbot, 64 Cal.2d 691, 704 [51 Cal. Rptr. 417, 414 P.2d 633].) As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. (8) So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber's ignorance of it, in no way destroys the robber's criminal responsibility for the death. (Cf. People v. [211] Moan, 65 Cal. 532, 536-537 [4 P. 545]; People v. Studer, 59 Cal. App. 547, 552-554 [211 P. 233].) So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. (People v. Phillips, supra, at p. 579.) In this respect, the robber takes his victim as he finds him.
CLAIMED ERRORS IN INSTRUCTIONS
Appellants claim five errors in the jury instructions given and refused. They argue that: (1) the trial court erred in refusing to give their proffered instruction as to proximate cause; (2) the jury should have been instructed on the court's own motion that there must be a finding of specific intent to commit the robbery before the felony-murder rule can be applied; (3) the jury should not have been instructed on the felony-murder rule; (4) the jury should have been instructed on the matter of foreseeability; and (5) the felony-murder rule applies only when the killing was committed in order to perpetrate a felony, and not when the killing occurs merely in the perpetration of a felony. (1c, 4c, 7b) In accordance with our discussion of the felony-murder doctrine, we find the claimed instruction errors numbered (3), (4), and (5) to be without merit.
(9) Appellants contend that the trial court erred in refusing their proffered instruction on proximate cause, reading as follows: "Where the defendant's criminal act is not the proximate cause of the death and the sole proximate cause was the negligent or reckless conduct of the victim, a conviction is unwarranted." They assert that article VI, section 13 of the California Constitution guarantees the right of a defendant to have the jury determine every material issue presented by the evidence.
It can be argued that the refusal of the trial court to give the instruction was justified. The evidence before the jury was not such that the jury could have reasonably assumed that negligent or reckless conduct by Honeyman was-the sole cause of his death. (See People v. Bronson, 263 Cal. App.2d 831, 842-843 [70 Cal. Rptr. 162], hear. den.) But, in any event, the three instructions given on the issue of the proximate causation of Honeyman's death were much more complete and accurate than appellant's quoted instruction.[4] Any error in this respect was harmless.
[212] (10) As to the second objection, since the jury was fully instructed both as to what constitutes robbery and as to what constitutes felony murder,[5] the court was not required to instruct them on its own motion that in order to apply the felony-murder rule, appellants must have had the specific intent to commit the robbery. This is so because the jury could not have found them guilty of murder under the felony-murder doctrine without first having found them guilty of robbery. Moreover, failure to instruct the jury that in order to apply the felony-murder doctrine appellants must have had the specific intent to commit the robbery does not constitute prejudicial error where, as here, the evidence permits of no other interpretation than that appellants had the specific intent to steal. (See People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal. Rptr. 620, 388 P.2d 892].)
CLAIMED ERRONEOUS ADMISSION OF CONFESSIONS AND INCRIMINATING STATEMENT
The getaway car, driven by defendant Lehman, was stopped at 11:08 and Lehman, the only one in it at that time, was advised of his rights to counsel, [213] to remain silent and that anything he might say could be used against him prior to any in-custody interrogation. Several weeks later Koory was apprehended in Omaha, Nebraska, and Stamp in Dayton, Ohio; each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him.
(11) Appellants contend that the confessions of Koory and Stamp and the incriminating statement of Lehman were erroneously admitted in evidence because there was no affirmative showing that appellants had waived their rights to silence and counsel before giving these statements. It is also claimed that Stamp's confession is inadmissible as being the product of a prior illegally obtained confession. Since appellants failed to object on these grounds at trial, they are not entitled to raise these issues for the first time on appeal. (People v. Ray, 252 Cal. App.2d 932, 958 [61 Cal. Rptr. 1]; People v. Crooks, 250 Cal. App.2d 788, 793 [59 Cal. Rptr. 39].)
(12) On our own motion we have examined the admissibility of these out of court statements under People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]. We find no error because the trial court followed the recommended procedure in Aranda of deleting from each statement received in evidence all direct and indirect identifications of codefendants as well as any material which could be used against codefendants once their identities had been otherwise established. This objective was accomplished by the police officers stating only what the declarant said to each of them regarding the declarant's own part in the robbery. In addition the jury was instructed just prior to the admission of each statement and again at the close of the trial that each statement was received only against the particular declarant and not against any of his codefendants.
The judgment is affirmed.
Schweitzer, J., and Allport, J., concurred.
Appellants' petitions for a hearing by the Supreme Court were denied January 28, 1970.
[1] This part of the opinion includes generally all facts relevant to appellants' contentions, except those relating to their fourth ground of appeal.
[2] Appellants' position that the medical evidence was insufficient to prove the causal link between the robbery and the death because the physicians testifying to the result did so solely in response to a hypothetical question which was erroneous and misleading, and because the doctors answered in terms of "medical probability rather than actual certainty" is not well taken. A conviction on the basis of expert medical testimony, couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt" is valid (People v. Phillips, 64 Cal.2d 574, 579, fn. 2 [51 Cal. Rptr. 225, 414 P.2d 353]) and a hypothetical question need not state all the evidence in a case so long as it does not omit essential facts and issues. This did not occur here. (See McCullough v. Langer, 23 Cal. App.2d 510, 521 [73 P.2d 649], hear. den.) Furthermore, an appellate court will not overrule a trial court on the matter of the sufficiency of the qualifications of expert witnesses in the absence of a manifest abuse of such discretion. (People v. Phillips, 64 Cal.2d 574 at pp. 578-579, fn. 1 [51 Cal. Rptr. 225, 414 P.2d 353].) An examination of the record shows that there was no such abuse by the trial court in permitting the prosecution's expert medical witnesses to testify as to the cause of the heart attack.
[3] In view of the fact that the Legislature has not seen fit to change the language of Penal Code section 189 since the decisions holding that the requisite malice aforethought is to be implied from the commission of those felonies inherently dangerous to human life, it must be presumed that these cases accurately state the law. (People v. Hallner, 43 Cal.2d 715, 720 [277 P.2d 393].)
[4] "If the death of the victim occurred by natural causes and was not a proximate result of the defendants' unlawful activity, you must find the defendants not guilty of murder.
"To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.
"The proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred. It is the efficient cause — the one that necessarily sets in operation the factors that accomplish the death." (CALJIC No. 312, modified.)
"If a person unlawfully does an act or unlawfully sets in operation factors which are a proximate cause of another person's death, such conduct of the former constitutes an unlawful homicide even though the unlawful act or the factors set in operation were not the only cause of the death, and although the person killed had been already enfeebled by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition would not have died as a result of the act or the factors set in operation, and although it is probable that the act or the factors set in operation only hastened the death of the deceased person and that he would have died soon thereafter anyhow from another cause or other causes." (CALJIC No. 313-B, modified.)
[5] "Robbery is the felonious taking of personal property of any value in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (CALJIC No. 210.)
"Robbery which is perpetrated by a person or by two or more persons any one of them being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.
"If you should find the defendant guilty of robbery, it will be your duty to determine the degree thereof as robbery of the first degree and to state that degree in your verdict." (CALJIC No. 210-A.)
"If a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of, or attempt to perpetrate, the crime of robbery, and if the killing is done in furtherance of a common design and agreement to commit such crime or is an ordinary and probable effect of the pursuit of that design and agreement, all such persons so jointly engaged are guilty of murder of the first degree, and this is the law whether such killing be intentional, unintentional, or accidental." (CALJIC No. 317.)
"Murder which is committed in the perpetration or attempt to perpetrate robbery, is murder of the first degree, whether the murder was intentional, unintentional, or accidental." (CALJIC No. 302-F, revised.)
7.2.6.3.3.3.2 People v. Phillips 7.2.6.3.3.3.2 People v. Phillips
THE PEOPLE, Plaintiff and Respondent,
v.
MARVIN PHILLIPS, Defendant and Appellant.
Supreme Court of California. In Bank.
Melvin M. Belli, Samuel S. Brody, Belli, Ashe, Gerry & Leon, Belli, Ashe & Gerry, Brody, Grayson & Green, Daniel J. Jaffe, Lou Ashe, Richard Gerry, Seymour Ellison, Frederick Cone and N. Rommel Bondoc for Defendant and Appellant.
Burton Marks as Amicus Curiae on behalf of Defendant and Appellant.
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, William L. Zessar, Deputy Attorney General, William B. McKesson and Evelle J. Younger, District Attorneys, and John W. Miner, Deputy District Attorney, for Plaintiff and Respondent.
TOBRINER, J.
Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles [577] County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.
Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.
Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.
Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was "an experimental place," that the doctors there would use Linda as "a human guinea pig" and would relieve the Eppings of their money as well.
The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.
Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant. [578]
Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.
Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to "treat" cancer as such, but only to give "supportive" care to the body as a whole. He variously described his purpose as being "to build up her resistance," "assisting the body to overcome its own deficiencies" and "supporting the body defenses."
As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant's argument that the prosecution failed to establish such causal relationship between defendant's conduct and the death as is requisite to his criminal responsibility.
Legal Cause
We cannot accept defendant's contention that his conduct did not proximately cause Linda's death. Defendant's argument rests upon either of two unsupportable propositions: (1) that the testimony failed as a matter of law to establish a causal relationship between the absence of surgery on July 21st and any shortening of Linda's life; (2) that the conduct of Linda's parents subsequent to defendant's dismissal constituted an "independent intervening force" between the misrepresentation and Linda's death.
[1a] The fact that defendant represented that he could cure Linda without surgery and that such representation caused the Eppings to remove Linda from the hospital finds ample substantiation in the record. The medical evidence likewise supports the jury's conclusion that the cancellation of the operation had the effect of shortening the child's life. [1] [579]
[2] Dr. Straatsma testified with "reasonable medical certainty" [2] that the performance of the operation on July 21st would have extended Linda's life by a minimum of two months. [1b] He also gave his opinion that surgery on that date could have effected a complete cure.
Although defendant maintains that Dr. Straatsma on cross-examination disclaimed his testimony as to the beneficial effect of the operation planned for July 21st, the record does not support that contention. Dr. Straatsma merely acknowledged that he could not say with certainty whether the course of the disease had become irreversible on July 21st. The doctor also testified that he could not state the exact period of time by which surgery on that date would have lengthened Linda's life. Neither aspect of the doctor's cross-examination in any way reduced the force of his earlier testimony that if the girl had received the scheduled operation, her life would have been extended by a substantial period.
The showing that the length of Linda's life had thus been limited sufficed for this aspect of the prosecution's case; no burden rested upon the prosecution to prove that the operation would have cured the disease. [3] Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. (People v. Moan (1884) 65 Cal. 532, 537 [4 P. 545]; People v. Ah Fat (1874) 48 Cal. 61, 64; Perkins, Criminal Law, pp. 27-28.) [1c] The jury could properly have found that defendant's conduct proximately caused Linda's death. [580]
[4] As we have stated, defendant secondly contends that the actions of Linda's parents subsequent to his dismissal operated as an "independent intervening force" to relieve him of criminal responsibility for her death. He urges that no act of his caused the Eppings to abstain from surgery beyond August 13th, the date of his discharge. [3]
In pressing this argument, defendant assumes that if the surgery had been performed after Linda left his care, it would have been as efficacious in arresting or retarding the cancer as surgery performed on July 21st. The record refutes this assumption. The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant's ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant's conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda's life and significantly diminished her chances for a complete recovery.
The Instruction on Second Degree Felony-Murder.
Defendant challenges the propriety of the trial court's instructions to the jury. [5] The court gave the following tripartite instruction on murder in the second degree: [4]
"[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:"
"(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or"
"(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or"
"(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in [581] the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended."
The third part of this instruction rests upon the felony-murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.
We shall point out why we have concluded that (1) defendant's contention that section 1714 of the Health and Safety Code preempts the field of fraudulent representation of a cancer cure and therefore precludes an instruction on felony murder, cannot stand; (2) the felony-murder instruction given here was erroneous in that such a charge can properly be grounded only upon a felony "inherently dangerous to life," and grand theft is not such a crime; (3) the erroneous instruction caused defendant prejudice because it removed from the jury the issue of malice, and (4) the prosecution cannot successfully argue that even though the instruction erroneously permitted the jury to convict without finding malice, no prejudice resulted because the jury necessarily found facts which established malice as a matter of law.
[6] As we have noted, defendant first challenges the felony-murder instruction on the ground that the field of fraudulent misrepresentations as to cures for cancer has been "preempted" by section 1714 of the Health and Safety Code. That section condemns as a misdemeanor "falsely to represent a device, substance or treatment as effective to arrest or cure cancer." Defendant urges that section 1714 precludes a determination that he was guilty of the felony of grand theft pursuant [582] to Penal Code section 484; hence section 1714 necessarily prevents the application of the felony-murder rule.
We cannot accept the proposition that the misdemeanor section forecloses the felony prosecution. A conviction for grand theft requires proof that the victim relied on defendant's representations and that he actually parted with value. (People v. Gibbs (1893) 98 Cal. 661, 663 [33 P. 630]; People v. Alba (1941) 46 Cal.App.2d 859, 867 [117 P.2d 63]; see 1 Witkin, Cal. Crimes, 410, 416.) No such requirements need be met in prosecutions under Health and Safety Code section 1714. Accordingly, we may infer that the Legislature intended the new statute to supplement, not supplant, Penal Code section 484. In the circumstance in which some elements of grand theft are lacking the Legislature thereby provided a means for the prosecution of those who fraudulently assert that they can cure cancer. We consequently reject the hypothesis that the Legislature, by undertaking to facilitate the punishment of those who fraudulently offer cures for cancer, thereby immunized from prosecution under Penal Code section 484 conduct which theretofore would have been punishable under that section.
[7] Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. We have stated in People v. Williams (1965) 63 Cal.2d 452 [47 Cal.Rptr. 7, 406 P.2d 647], that the cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule. (See also People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].)
We have held, however, that only such felonies as are in themselves "inherently dangerous to human life" can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.)
We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. [5] Indeed, the rule itself has [583] been abandoned by the courts of England, where it had its inception. [6] It has been subjected to severe and sweeping criticism. [7] No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony- murder doctrine can be invoked. [8]
Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant's conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant's actual conduct. In the present case the Attorney General would characterize that conduct as "grand theft medical fraud," and this newly created "felony," he urges, clearly involves danger to human life and supports an application of the felony-murder rule.
To fragmentize the "course of conduct" of defendant so that the felony- murder rule applies if any segment of that conduct may be considered dangerous to life would widen the [584] rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.
The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution's present sweeping concept because, once the Legislature's own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.
[8] The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda's death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780; People v. Conley (1966) ante, p. 310 [49 Cal.Rptr. 815, 411 P.2d 911]; People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1] [concurring opinion of Justice Traynor].) [9]
The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. (Pen. Code, 187; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Wells (1949) 33 Cal.2d 330, 346 [202 P.2d 53].) Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. "[D]efendants have a constitutional right to have the jury determine every material issue presented by the evidence. ..." [585] (People v. Gilbert (1965) 63 Cal.2d 690, 704 [47 Cal.Rptr. 909, 408 P.2d 365]; People v. Conley, supra, ante, pp. 310, 319; People v. Modesto, supra, 59 Cal.2d 722, 730 and cases cited.) The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2. (People v. Conley, supra, ante, at pp. 319-320; People v. Gilbert, supra, 63 Cal.2d at p. 704; People v. Williams, supra, 63 Cal.2d 452, 457-460.)
The prosecution does not deny that the giving of a felony-murder instruction engendered the possibility of a conviction of murder in the absence of a finding of malice. It contends, however, that even if the jury acted on the erroneous instruction it must necessarily have found facts which establish, as a matter of law, that defendant acted with conscious disregard for life and hence with malice. The prosecution thus asks us to dissect the jury's verdict, setting the facts of the case against the instructions in an attempt to isolate the facts which the jury necessarily found in reaching its verdict. From these facts it further asks us to infer the existence of others which the jury was never asked to find.
Examination of the record suggests that even this doubtful enterprise would not enable us to overcome the effect of the erroneous instruction. The prosecution urges that the jury could not have convicted defendant under the felony-murder instruction without having found that he made representations to the Eppings which he knew to be false or which he recklessly rendered without information which would justify a reasonable belief in their truth. Such a finding does not, however, establish as a matter of law the existence of an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780.) In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life. The record contains evidence from which a trier of fact could reasonably have concluded that although defendant made false representations concerning his ability to cure, he nevertheless believed that the treatment which he proposed to give would be as efficacious in relieving pain and prolonging life as the scheduled surgery. [10] [586]
Of course the jury could have concluded from some of the evidence that defendant did not entertain any such belief in the relative efficacy of his proposed treatment. We cannot, however, undertake to resolve this evidentiary conflict without invading the province of the trier of fact. We cannot predicate a finding of conscious disregard of life upon a record that would as conclusively afford a basis for the opposite conclusion.
The Remaining Instructions on Murder in the Second Degree
In the foregoing discussion we have analyzed the third subdivision of the tripartite instruction on murder in the second degree; here we propose to state our position on the first and second subdivisions. As we have previously noted, the court told the jury that the "unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree (1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or (2) If the circumstances proximately causing the killing show an abandoned and malignant heart. ..."
[9] The first subdivision of the instruction embodies the language of decisions interpreting the cryptic statutory requirement of an "abandoned and malignant heart." (People v. Conley, supra, ante, pp. 310, 321; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Thomas, supra, 41 Cal.2d 470, 479-480 [concurring opinion of Justice Traynor].) We believe the instruction entirely proper except for the requirement that the act of the defendant be "unlawful." If that word connotes an absence of legally sufficient justification or excuse, we see no objection to its presence. Indeed the jury should be cautioned that a defendant would not be guilty of second degree murder by reason of committing an act that [587] may be dangerous but nevertheless may be necessary to the preservation of life.
On the other hand, the word "unlawful" may suggest to the jury that the prosecution must prove that in performing the acts upon which the murder prosecution rests defendant was also committing some other, quite independent, crime. Insofar as the instruction bears this latter meaning it states a requirement not found in the decided cases and which in our judgment the prosecution need not prove.
An instruction that may more successfully cover the issue of justification or excuse and at the same time not improperly call for proof of other independent criminal conduct could be phrased in terms of "an intent with conscious disregard for life to commit acts likely to kill." (See People v. Washington, supra, 62 Cal.2d 777, 780.) Such an instruction thus would make possible a conviction of second degree murder upon a finding that "although there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."
With the above modification, the instruction fully and accurately imparts to the jury every element of implied malice as that concept has been developed in this state. Such an instruction renders unnecessary and undesirable an instruction in terms of "abandoned and malignant heart." The instruction phrased in the latter terms adds nothing to the jury's understanding of implied malice; its obscure metaphor invites confusion and unguided speculation. [11]
[10] The charge in the terms of the "abandoned and malignant heart" could lead the jury to equate the malignant heart with an evil disposition or a despicable character; the jury, then, in a close case, may convict because it believes the defendant a "bad man." [12] We should not turn the focus of the jury's task from close analysis of the facts to loose evaluation [588] of defendant's character. The presence of the metaphysical language in the statute does not compel its incorporation in instructions if to do so would create superfluity and possible confusion. In its origin the language did no more than phrase a companion or alternative description of a conscious disregard of life; [13] since the instruction here specifically sets forth the latter, the former merely duplicates it.
The instruction in terms of "abandoned and malignant heart" contains a further vice. It may encourage the jury to apply an objective rather than subjective standard in determining whether the defendant acted with conscious disregard of life, thereby entirely obliterating the line which separates murder from involuntary manslaughter. [14]
Although we do not hold that the inclusion of a reference in an instruction to an "abandoned and malignant heart" constitutes error we think that it is a superfluous charge. The dangers inherent in it and the absence of any compensating advantage impel us to suggest its replacement with the more comprehensive and informative charge in the first of the three subdivisions of the instructions in the form that we have submitted.
The judgment is reversed.
Traynor, C. J., Peters, J., and Peek, J., concurred.
BURKE, J.
I dissent. The majority opinion reverses the judgment of conviction of second degree murder "solely on the ground that the trial court erred in giving a felony-murder [589] instruction." Under section 4 1/2, article VI, of the California Constitution "No judgment shall be set aside ... on the ground of misdirection of the jury ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." I submit that here a miscarriage of justice did not result from any error in giving the instruction in view of the overwhelming evidence that defendant, motivated by mercenary greed, acted in conscious disregard for the life of 8-year-old Linda Epping when he induced her parents to cancel the scheduled cancer operation and place her under his care, thereby shortening her life.
The majority eschew the test in article VI, section 4 1/2, of the Constitution by asserting that the instruction "caused defendant prejudice because it removed from the jury the issue of malice" and that "The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2."
Under the instructions given, the jury was told that malice aforethought was a necessary element of murder, and the instructions permitted the jury to find such malice not only on the basis of the felony-murder rule but also if the killing was committed under circumstances that show an abandoned and malignant heart. To be so committed the defendant must have an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130]; see People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].)
There was ample evidence that defendant, a chiropractor, intended to induce Linda's parents to cancel the operation for her fast-growing eye cancer and place her under his care. Motive was shown by evidence that he was then behind in his rent and that he charged Linda's parents $500 in advance for her treatment and made an additional profit exceeding $100 by selling pills for her at a 100 percent mark-up.
That defendant was well aware that canceling the surgery and placing the child under his care would endanger her life is apparent from his own testimony. He testified as follows: Before Linda was removed from the hospital he knew the form of cancer she had, and, having taken several semesters of pathology at school, he recognized that her condition was "very, very dangerous." He recalled having read that "early exenteration of the orbit offers the only hope of survival, and [590] that a slender one." He stated he was aware that Linda's case required medical attention, which he was not going to give her. Upon being told that the doctors at UCLA planned to perform surgery on her, he told her mother to listen to the doctors. Later, when Linda's mother informed him that she had removed Linda from the hospital, he told her she had made "a very, very grave mistake" and should return Linda to the hospital. Thereafter each time Linda was brought to him for treatment he stated that she should have surgery. He graduated from a college of chiropractic in 1958 and testified that he knew he could not cure cancer, and that if he had reason to believe that one of his patients had a malignant tumor he would refer the patient to a surgeon.
In view of the foregoing testimony by defendant any possibility the jury would have concluded, as suggested by the majority, that he believed the treatment he proposed to give would be as efficacious as the scheduled surgery in prolonging her life and thus that he did not act with conscious disregard for her life is so remote as to be virtually nonexistent.
The majority note that defendant testified that he understood that Linda's cancer was incurable, but this is not inconsistent with his testimony indicating his belief that surgery offered the best chance of prolonging her life. Moreover, his testimony relating to whether her form of cancer was curable, when the testimony is taken as a whole, merely indicated that he believed that such cancer was ordinarily incurable but that there was a slight chance of survival if there was early exenteration of the orbit.
The majority opinion is misleading in stating that "defendant testified that he ... understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death." Defendant testified that he had read that "after removal there is wasting and death due to metastasis ...," i.e. a transfer of the disease from one part of the body to another. The quoted matter which defendant said he had read may mean merely that removal does not always prevent death, not that removal might "stimulate" the spread of the disease and thus hasten death.
Defendant was indeed fortunate that he was not tried and convicted of first degree murder for Linda's death. Even if it be assumed that it was error to give the felony-murder instruction, the record shows that it is not reasonably probable that a result more favorable to defendant would have been reached had the instruction not been given. (People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243].) Since the giving of the [591] instruction did not result in a miscarriage of justice, I would affirm the judgment of conviction under the mandate of section 4 1/2, article VI, of the California Constitution.
McComb, J., and Schauer, J., [*] concurred.
* "Like the multiheaded beast of Greek mythology, the felony murder rule has several 'heads' of its own, each willing to consume one of the accused's defenses by presuming a needed element in the proof of felony murder." Recent Developments, California Rewrites Felony Murder Rule (1966) 18 Stan.L.Rev. 690.
Proof that defendant entertained such a belief would only establish a defense to murder. If the jury found that defendant acted "without due caution and circumspection" in forming and entertaining this belief he would be subject to conviction for involuntary manslaughter. (Pen. Code, 192, subd. 2.)
[1] We find no merit whatsoever in defendant's contention that the prosecution's expert witnesses were not qualified to testify as to their opinions that surgery on the 21st of July would have prolonged Linda's life. A wide discretion, of course, reposes in the trial court to determine the sufficiency of the qualifications of expert witnesses. An appellate court will not disturb its ruling on that matter in the absence of a manifest abuse of such discretion. (People v. Busch (1961) 56 Cal.2d 868, 878 [16 Cal.Rptr. 898, 366 P.2d 314].) The record fully demonstrated the qualifications of the doctors; the court properly permitted the introduction of such expert testimony.
[2] We do not accept defendant's contention that the doctor's testimony failed as a matter of law to sustain the conviction because this testimony was couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt," which expresses the ultimate issue for the determination of the jury. To hold that medical opinion fails as a matter of law to sustain a jury in reaching a conviction "beyond a reasonable doubt," because the testimony rests upon "reasonable medical certainty," would in substance foreclose the realistic use of medical testimony at criminal trials.
[3] One possible answer to this contention lies in the fact that defendant, at the time of his initial conversations with the Eppings, was aware of their belief that once they removed Linda from the hospital, they could not thereafter take her back. The prosecution could persuasively contend that defendant's responsibility for preventing surgery thereby extended beyond the date of his dismissal.
[4] The record suggests that the evidence would have supported a finding of involuntary manslaughter. The jury might, for example, have found that defendant sincerely, though unreasonably, believed that the removal of Linda from the hospital and treatment according to the principles of chiropractic would be in her best interests. Having so found, the jury could have concluded that in causing Linda's removal from the hospital and so endangering her life defendant acted "without due caution and circumspection." (Pen. Code, 192, subd. 2.) Accordingly, the trial court should have given a manslaughter instruction. (People v. Modesto (1963) 59 Cal.2d 722, 729-730 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Henderson (1963) 60 Cal.2d 482, 489-491 [35 Cal.Rptr. 77, 386 P.2d 677].) The record reveals, however, that defendant's counsel strongly opposed the manslaughter instruction and indicated to the trial court that he considered it "tactically" to defendant's advantage to confront the jury with the limited choice between murder and acquittal. Thus the failure of the trial court to instruct on manslaughter, though erroneous, was invited error; defendant may not properly complain of such error on appeal. (People v. Wright (1914) 167 Cal. 1, 7 [138 P. 349]; People v. Hite (1901) 135 Cal. 76, 79-80 [67 P.2d 57]; People v. Jones (1965) 232 Cal.App.2d 379, 390 [42 Cal.Rptr. 714]; People v. Johnson (1962) 203 Cal.App.2d 624, 629-630 [21 Cal.Rptr. 650].)
[5] As we stated in People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130], "The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e.g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953); 3 Stephen, History of the Criminal Law of England 57-58, 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) Although it is the law in this state (Pen. Code, 189), it should not be extended beyond any rational function that it is designed to serve ...." (Fn. omitted.)
[6] The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant's commission of another but because it anachronistically resurrects from a bygone age a "barbaric" concept that has been discarded in the place of its origin. Thus Witkin says: "Some writers describe the concept as barbaric and urge its abolition or strict limitation. (See 1957 A.S. 99 [abolished by English Homicide Act of 1957]; 1958 A.S. 125; Clark and Marshall, p. 594; 71 Harv.L.Rev. 1565; 13 Stan.L.Rev. 259; Moreland, pp. 49, 224.)" (1 Witkin, Cal. Crimes (1963) 311, p. 284.)
[7] "The felony-murder rule, composed as it is of several presumptions, is a legal Hydra.*
[8] Respondent's brief points out that this is "the first case of murder by false pretenses to reach an appellate court in the seven hundred years of recorded Anglo-American Law." (P. 27.) For a discussion of this aspect of the instant case, see Recent Decisions (1965) 32 Brooklyn L.Rev. 192, 194-195.
[9] We are aware that the portion of the trial court's charge in which the felony-murder instruction appears is prefaced with the statement: "[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder in the second degree [when] ...." The three numbered sections which follow set forth ways in which malice can be proved, the last being the erroneous felony-murder instruction. We do not believe, and the Attorney General has not urged, that the court intended, or the jury understood, the above quoted general statement to require that the jury make a finding of malice independent of its determination that the requirements of one of the numbered sections had been met.
[10] For example, defendant testified that he believed the girl's cancer to be incurable and understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death. To some extent this evidence was contradicted by defendant's further testimony that he repeatedly urged the Epping's to return Linda to the hospital. The jury, however, was not bound to accept all of defendant's testimony, and substantial evidence supported a reasonable conclusion that defendant believed that he was not endangering Linda's life by persuading her parents to put her under his care.
[11] "Hardness of the arteries is an ascertainable concept--but not of the heart; malignant cancer is similarly ascertainable, but not malignant hearts; also abandoned children but not abandoned hearts. As sophisticated as human knowledge has become regarding anatomy of the body, the anatomy of the crime concept--and especially of malice--has remained as mysterious for many courts as it was for cavemen. Why not stop abusing the poor heart?" (Mueller and Wall, Criminal Law, 1964 Annual Survey of American Law, pp. 33, 41.)
[12] (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice (1966) 114 U.Pa.L.Rev. 495, 496.)
[13] "When the common law was embodied in the criminal statutes of the various states, the legislatures which attempted specifically to describe this category of homicide (rather than to accept the common-law description through language such as 'and all other murders. ...') used either the abandoned and malignant heart language or 'an act imminently dangerous to others, and evincing a depraved mind, regardless of human life' or a combination of the two. The latter phrase is the more prevalent and sets forth the standard in clearer language, embodying most of the qualities of Stephen's definition. Because of its common origin with the abandoned and malignant heart formulation, this phrase is a useful reference in attempting to clarify its ambiguity. Both the common law and this statutory description demonstrate that the requested charge must focus on the state of mind and emphasize the knowledge of danger and disregard for life." (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice, supra, 114 U.Pa.L.Rev. 495, 497.)
[14] See Collings, Negligent Murder (1961) 49 Cal.L.Rev. 254, 284, 288-291. We believe the distinction between the two crimes in the present case is particularly important because the jury could have concluded from some of the evidence that defendant genuinely, though unreasonably, believed that he was not endangering the life of the girl by causing her to be taken from the hospital and placed under his care.
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
7.2.6.3.3.3.3 State v. Stewart 7.2.6.3.3.3.3 State v. Stewart
STATE
v.
Tracy STEWART.
Supreme Court of Rhode Island.
[915] Jane McSoley, Assistant Attorney General, Aaron Weisman, Chief Appellate Division, Jeffrey Pine, Attorney General, Providence, for plaintiff.
Paula Rosin, Chief Appellate Attorney, Office of Public Defender, Richard Casparian, Public Defender, Providence, for defendant.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on the appeal of the defendant, Tracy Stewart, from a judgment of conviction entered in the Superior Court on one count of second-degree murder in violation of G.L. 1956 (1981 Reenactment) § 11-23-1.[1] We affirm the judgment of conviction. The facts insofar as pertinent to this appeal are as follows.
On August 31, 1988 twenty-year-old Tracy Stewart (Stewart or defendant) gave birth to a son, Travis Young (Travis). Travis's father was Edward Young, Sr. (Young). Stewart and Young, who had two other children together, were not married at the time of Travis's birth.[2] Travis lived for only fiftytwo days, dying on October 21, 1988, from dehydration.
During the week prior to Travis's death, Stewart, Young, and a friend, Patricia McMasters (McMasters), continually and repeatedly ingested cocaine over a two- to three-consecutive-day period at the apartment shared by Stewart and Young. The baby, Travis, was also present at the apartment while Stewart, Young, and McMasters engaged in this cocaine marathon. Young and McMasters injected cocaine intravenously and also smoked it while Stewart ingested the cocaine only by smoking it. The smoked cocaine was in its strongest or base form, commonly referred to as "crack." When the [916] three exhausted an existing supply of cocaine, they would pool their money and Young and McMasters would go out and buy more with the accumulated funds. The primary source of funds from which the three obtained money for this cocaine spree was Stewart's and McMasters's Aid to Families with Dependent Children (AFDC) checks. Stewart and McMasters had each just received the second of their semimonthly AFDC checks. They both cashed their AFDC checks and gave money to Young, which he then used to purchase more cocaine. After all the AFDC funds had been spent on cocaine and the group had run out of money, McMasters and Young committed a robbery to obtain additional money to purchase more cocaine.
The cocaine binge continued uninterrupted for two to three days. McMasters testified that during this time neither McMasters nor Stewart slept at all. McMasters testified that defendant was never far from her during this entire two- to three-day period except for the occasions when McMasters left the apartment to buy more cocaine. During this entire time, McMasters saw defendant feed Travis only once. Travis was in a walker, and defendant propped a bottle of formula up on the walker, using a blanket, for the baby to feed himself. McMasters testified that she did not see defendant hold the baby to feed him nor did she see defendant change Travis's diaper or clothes during this period.
Ten months after Travis's death defendant was indicted on charges of second-degree murder, wrongfully causing or permitting a child under the age of eighteen to be a habitual sufferer for want of food and proper care (hereinafter sometimes referred to as "wrongfully permitting a child to be a habitual sufferer"), and manslaughter. The second-degree-murder charge was based on a theory of felony murder. The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant's chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not.
At defendant's trial both the prosecution and the defense presented expert medical witnesses who testified concerning what they believed to be the cause of Travis's death. The experts for both sides agreed that the cause of death was dehydration, but they strongly disagreed regarding what caused the dehydration. The prosecution expert witnesses believed that the dehydration was caused by insufficient intake of food and water, that is, malnutrition. The defense expert witnesses, conversely, believed that the dehydration was caused by a gastrointestinal virus known as gastroenteritis which manifested itself in an overwhelming expulsion of fluid from the baby's body.
The defendant was found guilty of both second-degree murder and wrongfully permitting a child to be a habitual sufferer. A subsequent motion for new trial was denied. This appeal followed. In support of her appeal defendant raises a number of issues. We shall address them in the order in which they are presented in defendant's brief. Additional facts will be furnished as needed in order to deal with specific issues.
I. THE DENIAL OF THE MOTION TO DISMISS
Prior to trial, defendant moved to dismiss count 1 of the indictment, the second-degree felony-murder charge, on two grounds that are relevant to her appeal. She first claimed that count 1 of the indictment was improperly charged. She claimed that the charge should have been no greater than involuntary manslaughter. The basis of defendant's claim is that the predicate felony underlying the felony-murder charge, wrongfully permitting a child to be a habitual sufferer, is not an inherently dangerous felony as charged in the indictment. The second ground on which defendant sought to have the felony-murder charge dismissed was that the statute under which she was charged, Rhode Island's child-neglect [917] statute, G.L.1956 (1981 Reenactment) § 11-9-5, lacked a mens rea element, and additionally, that count 2 of the indictment, which served as the predicate to the felonymurder charge in count 1, was defective because it did not track the language of the child-neglect statute. The word "wrongfully" appears in § 11-9-5, but the indictment did not include this word to describe the charged conduct. The motion to dismiss was denied on both grounds. The defendant claims that the denial of the motion to dismiss was reversible error. We disagree.
At the pretrial hearing on the motion to dismiss, defendant argued that the law in Rhode Island is moving toward the approach used in California to determine if a felony is inherently dangerous. This approach examines the elements of a felony in the abstract. We shall discuss this approach in more detail in part II A of this opinion. In denying the motion to dismiss, the trial justice stated that "[n]othing * * * in my examination of Rhode Island case law, leads the Court to conclude that the Rhode Island Supreme Court is moving toward the California concept." Rather than determine if the crime of wrongfully permitting a child to be a habitual sufferer was inherently dangerous in the abstract, the trial justice ruled that the state would have the opportunity to prove at trial that the crime was inherently dangerous in the manner that it was committed. The trial justice committed no error in so ruling.
The trial justice held that the mens rea issue could be cured by an appropriate instruction to the jury and denied the motion to dismiss based on this ground as well. She noted that count 2 of the indictment charged defendant with violating § 11-9-5, "and there's no question but that [§] 11-9-5 talks about wrongful actions." The trial justice was correct in holding that the indictment did not have to track the exact words of the statute. See State v. Markarian, 551 A.2d 1178, 1182 (R.I.1988) ("as long as the essential elements of the crimes charged are stated in the indictment or information, a defendant's conviction may be reversed only where the variance is prejudicial to his defense"); State v. McKenna, 512 A.2d 113, 114-15 (R.I. 1986). Aside from omitting the word "wrongfully," count 2 did set forth the essential elements of a violation of § 11-9-5. The defendant was not prejudiced by the omission of the word "wrongfully" from count 2 since the trial justice was correct in asserting that the omission could be cured with an appropriate jury instruction. The trial justice, therefore, committed no error in denying the motion to dismiss on this basis.
II. THE DENIAL OF THE MOTIONS FOR JUDGMENT OF ACQUITTAL
The defendant moved for judgment of acquittal on all three counts at the close of the state's case and again at the close of all the evidence. In regard to the felony-murder charge defendant claimed that the evidence was insufficient to prove (1) that the crime of wrongfully permitting a child to be a habitual sufferer is an inherently dangerous felony and (2) that defendant intentionally committed the crime of wrongfully permitting a child to be a habitual sufferer. The motions for judgment of acquittal were denied on both grounds. The defendant claims that the denial of her motions for judgment of acquittal was reversible error.
A. Whether Wrongfully Permitting a Child to Be a Habitual Sufferer is an Inherently Dangerously Felony
Rhode Island's murder statute, § 11-23-1, enumerates certain crimes that may serve as predicate felonies to a charge of first-degree murder. A felony that is not enumerated in § 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder. See In re Leon, 122 R.I. 548, 410 A.2d 121 (1980); State v. Miller, 52 R.I. 440, 161 A. 222 (1932). Thus the fact that the crime of wrongfully permitting a child to be a habitual sufferer is not specified in § 11-23-1 as a predicate felony to support a charge of firstdegree murder does not preclude such crime from serving as a predicate to support a charge of second-degree murder.
In Rhode Island second-degree murder has been equated with common-law murder. [918] In re Leon, 122 R.I. at 553, 410 A.2d at 124. At common law, where the rule is unchanged by statute, "[h]omicide is murder if the death results from the perpetration or attempted perpetration of an inherently dangerous felony." Id. (quoting Perkins, Criminal Law 44 (2d ed. 1969)). To serve as a predicate felony to a charge of second-degree murder, a felony that is not specifically enumerated in § 11-23-1 must therefore be an inherently dangerous felony. Id.
The defendant contends that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony and cannot therefore serve as the predicate felony to a charge of second-degree murder. In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony "in the abstract" rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal.Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Ca1.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319, 323-25 (1984); People v. Caffero, 207 Cal.App.3d 678, 683-84, 255 Cal. Rptr. 22, 25 (1989). Moreover, the California Supreme Court has defined an act as "inherently dangerous to human life when there is `a high probability that it will result in death.'" Patterson, 49 Ca1.3d at 627, 262 Cal.Rptr. at 204, 778 P.2d at 558.
In Caffero, supra, a two-and-one-halfweek-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California's felony-childabuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. Caffero, 207 Cal.App.3d at 683, 255 Cal.Rptr. at 25. By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. Id. (the statute applied to all minors below the age of eighteen years, not only to young children. People v. Lee, 234 Cal.App.3d 1214, 1228, 286 Cal.Rptr. 117, 126 (1991)). Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. Caffero, 207 Cal.App.3d at 682-83, 255 Cal.Rptr. at 24-25; see also Lee, 234 Cal. App.3d at 1229, 286 Cal.Rptr. at 126.
The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. See, e.g., State v. Wesson, 247 Kan. 639, 647, 802 P.2d 574, 581 (1990) (holding that the sale of crack cocaine when viewed in the abstract is not inherently dangerous to human life); State v. Underwood, 228 Kan. 294, 303, 615 P.2d 153, 161 (1980) (holding that the unlawful possession of a firearm by an ex-felon when viewed in the abstract is not inherently dangerous to human life). The case of Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), cited in defendant's brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony "create[d] a foreseeable risk of death." In Ford the defendant (Ford) had previously been convicted of the felony of possession of cocaine with intent to distribute. Ford was visiting the home of his girlfriend's mother and had brought with him a semiautomatic pistol. While there he attempted to unload the pistol, but in so doing, he discharged the weapon, sending a bullet both through the floor and through the ceiling of a basement [919] apartment located in the house. The bullet struck and killed the occupant of the basement apartment. There was no evidence that at the time of the shooting the defendant was aware of the existence of the apartment or of the victim's presence in it. Ford was charged with and convicted of felony murder, with the underlying felony being the possession of a firearm by a convicted felon.
The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. Id. at 603-04, 423 S.E.2d at 256.
We decline defendant's invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. See, e.g., Jenkins v. State, 230 A.2d 262 (De1.1967); State v. Wallace, 333 A.2d 72 (Me.1975); Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698 (1990); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); State v. Nunn, 297 N.W.2d 752 (Minn.1980).
A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller, supra, this court upheld the defendant's conviction of seconddegree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a seconddegree felony-murder conviction. People v. Lopez, 6 Cal.3d 45, 51, 489 P.2d 1372, 1376, 98 Cal.Rptr. 44, 48 (1971) (In Bank).
The amendment of our murder statute to include any unlawful killing "committed during the course of the perpetration, or attempted perpetration, of felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21" lends further support for not following California's approach to determining the inherent dangerousness of a felony. G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L. 1990, ch. 284, § 4. According to the statute a person who delivers phencyclidine (PCP), a controlled substance under section (e)(5) of schedule II of G.L.1956 (1989 Reenactment) § 21-28-2.08, as amended by P.L.1991, ch. 211, § 1, to another person who then dies either as a result of an overdose or as a result of behavior precipitated by the drug use (such as jumping off a building because of the loss of spacial perception) could be charged with first-degree murder under § 11-23-1. Conversely, the California Court of Appeal has held that when viewed in the abstract, the standard used by California courts to determine whether a felony is inherently dangerous, the furnishing or selling of PCP is not a felony that carries a high probability that death will result. People v. Taylor, 6 Cal.App.4th 1084, 1100, 8 Cal. Rptr.2d 439, 449 (1992). Consequently, the [920] California Court of Appeal held that the felony of furnishing PCP could not serve as a predicate to a charge of second-degree felony murder. Id. at 1101, 8 Cal.Rptr.2d at 450. It is clear that there is a profound ideological difference in the approach of the Rhode Island Legislature from the holdings of the courts of the State of California concerning appropriate criminal charges to be preferred against one who furnishes PCP (and presumably a host of other controlled substances) to another person with death resulting therefrom. The lawmakers of the State of Rhode Island have deemed it appropriate to charge such a person with the most serious felony in our criminal statutes—first-degree murder. It appears that the appellate court of California, however, would hold that the most serious charge against one who furnishes PCP to another person with death resulting therefrom would be involuntary manslaughter. See id.
The Legislature's recent amendment to our murder statute as well as this court's prior jurisprudence concerning second-degree felony murder (In re Leon, supra; State v. Miller, supra) reinforces our belief that we should not adopt the California approach to determine whether a felony is inherently dangerous. The proper procedure for making, such a determination is to present the facts and circumstances of the particular case to the trier of fact and for the trier of fact to determine if a felony is inherently dangerous in the manner and the circumstances in which it was committed. This is exactly what happened in the case at bar. The trial justice instructed the jury that before it could find defendant guilty of seconddegree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life "in its manner of commission." This was a proper charge. By its guilty verdict on the charge of second-degree murder, the jury obviously found that wrongfully permitting a child to be a habitual sufferer for want of food or proper care was indeed a felony inherently dangerous to human life in the circumstances of this particular case.
"When presented with a motion for judgment of acquittal, a trial justice must determine whether the evidence offered by the state is capable of generating proof of guilt beyond a reasonable doubt. * * * To make this determination, a trial justice, and this court on review, must view the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of the witnesses, and must draw therefrom all reasonable inferences consistent with guilt." State v. Caruolo, 524 A.2d 575, 580-81 (R.I.1987).
Applying this standard, we are of the opinion that the evidence offered by the state was sufficient to prove beyond a reasonable doubt each of the elements of second-degree felony murder, including that the crime of wrongfully permitting a child to be a habitual sufferer was an inherently dangerous felony in its manner of commission. The defendant's motions for judgment of acquittal on the felony-murder charge on the ground that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony were properly denied.
B. Whether Defendant Possessed the Necessary Intent to Commit the Crime of Wrongfully Permitting a Child to Be a Habitual Sufferer for Such Felony to Support a Charge of Second-Degree Felony Murder
The theory of felony murder is that a defendant does not have to have intended to kill one who dies during the course of certain statutorily enumerated felonies, or other inherently dangerous felonies, in order to be charged with murder. The intent to commit the underlying felony will be imputed to the homicide, and a defendant may thus be charged with murder on the basis of the intent to commit the underlying felony. See, e.g., State v. Villani, 491 A.2d 976, 980 (R.I. 1985); 2 Wharton's Criminal Law § 147 (14th Torcia ed. 1979).
The defendant claims that the evidence presented at trial failed to establish that she intentionally committed the crime of wrongfully permitting a child to be a habitual [921] sufferer. She claims that absent an intent to commit this felony, it cannot serve as a predicate to support a charge of second-degree felony murder because there would then be no intent to be imputed from the underlying felony to the homicide. We agree with defendant that intent to commit the underlying felony is a necessary element of felony murder. However, we believe the circumstances surrounding the events preceding Travis's death support a finding that defendant did indeed intentionally permit her son to be a habitual sufferer for want of food or proper care.
The defendant's addiction to and compulsion to have cocaine were the overriding factors that controlled virtually every aspect of her life. She referred to the extended periods that she was high on cocaine as "going on a mission." Although she was receiving public assistance and did not have much disposable income, she nevertheless spent a great deal of money on cocaine, including her AFDC money. She shoplifted and traded the stolen merchandise for cocaine. She stole food because she had used the money that she should have been using to purchase food to purchase cocaine. The compulsion to have cocaine at any cost took precedence over every facet of defendant's life including caring for her children.
Although defendant did not testify at trial, she did testify before the grand jury. A redacted tape of her grand jury testimony was admitted into evidence and played for the jury at trial. During the days preceding Travis's death, defendant had been on a twoto three-day cocaine binge, a mission, as she referred to it. Her grand jury testimony indicated that she knew that during such periods she was unable to care for her children properly. The defendant testified that whenever she would go on a mission, her mother, who lived only a few houses away, would take and care for the children. This testimony evinced a knowledge on the part of defendant that she was incapable of properly caring for her children during these periods of extended cocaine intoxication. In addition, defendant was prone to petit mal seizures, which were exacerbated by her cocaine use. During such seizures she would "black out" or "[go] into a coma state." She testified before the grand jury that she was aware that taking cocaine brought on more seizures and that the weekend before Travis died she had in fact blacked out and "went into a coma state."
Despite her grand jury testimony to the contrary, Travis remained with defendant at her apartment during the entire two- to three-day binge. He died two or three days later. The defendant's repeated voluntary and intentional ingestion of crack cocaine while her seven-week-old son was in her care in addition to her testimony that she knew that she was incapable of properly caring for her children during these extended periods of cocaine intoxication, support a finding that she intentionally permitted her son to be a habitual sufferer for want of food and proper care. We make the distinction between a finding that defendant intentionally deprived her son of food and proper care, which even the state does not allege, and a finding that defendant intentionally permitted her son to be a habitual sufferer for want of food or proper care, which we find to be supported by the evidence adduced at trial.
Viewing the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of witnesses, and drawing all reasonable inferences consistent with guilt, we are of the opinion that the evidence offered by the state was capable of proving beyond a reasonable doubt that defendant intentionally permitted her seven-week-old-son, Travis, to be a habitual sufferer for want of food and proper care. We also believe that the evidence in support of each of the other elements of the crime of second-degree felony murder was sufficient to justify a finding of proof beyond a reasonable doubt. The motions for judgment of acquittal were properly denied.
III. ADMISSION OF EVIDENCE OF OTHER CRIMES AND BAD ACTS
In her testimony before the grand jury, defendant explained that she was addicted to cocaine prior to becoming pregnant with Travis and that she continued to use cocaine [922] throughout her pregnancy on a daily basis. The defendant testified that during her pregnancy she was high on cocaine approximately nine hours per day and that after Travis was born she would get high approximately seven hours per day. She also testified that when Travis was born, a substantial amount of cocame had been found in his system. The following colloquy took place between the prosecutor and defendant with respect to how defendant obtained money with which to purchase cocaine:
"Prosecutor: Now, Ms. Stewart, aside from using welfare money and other means, aside from using money you received by public assistance, were there other ways that you would get money?"Defendant: Yes. I would borrow money or I would steal from the store, shoplifting, and trade it off, trade it off for the drugs.
"Prosecutor: How about breaking into apartments; did you ever break into apartments?
"Defendant: I broke into an apartment on Sayles Avenue, but what was stolen from that apartment was food."Prosecutor: Isn't it true that you broke into two apartments at that address?
"Defendant: Yes. It was the third floor and the fourth floor.
"Prosecutor: And is it your testimony that no money was taken from either one of those apartments?
"Defendant: Right.
"Prosecutor: And one of the reasons — Is it true that you broke into those apartments and stole food because you were using money, which normally would go to [purchase] food, to buy cocaine?
"Defendant: No, I wouldn't — I would spend the money that should have been used towards the food on cocaine, but when I had broken into the apartment, that was towards the end of the month. I had no more food stamps left. I did have food in my house, but it was nothing like, it was like canned foods like, say, Spaghettios and stuff like that for my children, my older children. Travis had his formula that's up in the cabinet, but when I broke into the other apartment, I had stolen meats out of the freezer so I had meats in the house for the children."
At trial, the state sought to play for the jury a tape recording of defendant's grand jury testimony, including the portion excerpted above. The defendant objected inter alia, to the admission of evidence pertaining to (1) the cocaine found in Travis's system at birth, (2) defendant's cocaine use during her pregnancy, (3) defendant's use of her AFDC money to purchase cocaine, and (4) defendant's shoplifting and breaking into apartments. Each of these objections was overruled, and these portions of defendant's grand jury testimony were played for the jury at trial.[3] The defendant claims that the admission of evidence of other crimes that she had committed which were unrelated to the crime for which she was standing trial was reversible error. We disagree with both defendant's characterization of these other crimes as "unrelated" and with her contention that the admission of evidence of their commission was reversible error.
Generally, evidence that shows or tends to indicate that an accused has committed another crime independent of the crime for which he or she is standing trial is irrelevant and inadmissible. State v. Chartier, 619 A.2d 1119, 1122 (R.I. 1993); State v. Cardoza, 465 A.2d 200, 202 (R.I. 1983); State v. Colvin, 425 A.2d 508, 511 (R.I. 1981). "This rule operates to prevent a jury from finding a defendant guilty based upon unrelated crimes rather than upon evidence [relating] to the charged offense." Cardoza, 465 A.2d at 202. There are, however, several well-established exceptions to this rule. Evidence that a defendant has participated in or committed prior crimes may be admissible if such evidence "tends to establish the defendant's `guilty knowledge, intent, motive, design, plan, scheme, system, or the like' with respect to the offense charged." State v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995); State v. Lemon, 497 A.2d 713, 720 (R.I. 1985); State v. Colangelo, 55 R.I. 170, 174, 179 A. 147, 149 (1935); see also R.I.R.Evid. 404(b). [923] We have previously stated that in situations in which the prior crimes "are interwoven with the offense for which the defendant is being tried, or directly support a finding of guilty knowledge in the perpetration of that offense," then evidence of the prior crimes is admissible. Cardoza, 465 A.2d at 202 (quoting Colangelo, 55 R.I. at 174, 179 A. at 149). Stated another way, evidence of prior crimes is not admissible to prove the propensity of a defendant to commit such a crime but it is admissible to show a fact or facts which tend to prove that the defendant is, guilty of the crime charged. Lemon, 497 A.2d at 720.
In the instant case, during the period in question, defendant's addiction to and obsession with cocaine were the overriding factors that controlled virtually every aspect of her life. She spent nearly all her money, including the money from her AFDC checks, to buy cocaine. Because she used her money from public assistance to purchase cocaine rather than food, defendant resorted to breaking into apartments to steal food for her children. She shoplifted so that she could trade the stolen merchandise for cocaine. All defendant's criminal activity was inextricably linked to her cocaine addiction and her compulsion to have cocaine at any cost.
The defendant claims, and the state concurs, that defendant did not intentionally deprive Travis of food and care. Rather, both defendant and the state contend that because defendant was so intoxicated from her use of cocaine during the period surrounding Travis's death, she was physically and mentally unable to care for her infant child properly. It was this very addiction and compulsion that resulted in defendant being incapable of providing the necessary care and supervision that ultimately led to Travis's death. Evidence of defendant's shoplifting and breaking into apartments and the relation that this criminal activity bore to her compulsion to obtain cocaine are relevant to the issue of whether defendant possessed the requisite intent to commit the crime of wrongfully permitting her son to be a habitual sufferer. In the circumstances of this case, defendant's shoplifting and breaking into apartments were interwoven with the offense for which she was being tried and evidence of these prior crimes was therefore properly admissible. See Cardoza, supra. The trial justice was correct in allowing evidence of these prior crimes.
IV. THE FAILURE TO GIVE A LIMITING INSTRUCTION
The defendant contends that even if evidence of prior criminal acts was admissible, the trial justice's failure to instruct the jury concerning the limited purpose for which such evidence could be used constituted reversible error. The defendant, citing State v. Jalette, 119 R.I. 614, 625, 382 A.2d 526, 532 (1978), claims that when evidence of other crimes is admissible, the trial justice must specifically instruct the jury concerning the limited purpose for which such evidence was introduced. She further contends that State v. Brown, 626 A.2d 228, 234 n. 2 (R.I.1993), mandates that a trial justice is required to give a limiting instruction even in the absence of counsel's request for such instruction.
The two cases cited by defendant both involved sexual-assault charges and evidence of prior sexual misconduct. The Jalette rule applies only when a defendant is charged with a sexual offense and evidence of prior sexual misconduct is admitted. The Brown case stands for the proposition that when a defendant is charged with a sexual offense, a trial justice should offer a limiting instruction sua sponte when admitting evidence of other sexual acts. Because the case at bar involved neither a sexual-assault charge nor evidence of prior sexual offenses, the trial justice was not required to give a limiting instruction in the absence of a request for such an instruction by defense counsel. See State v. Martinez, 651 A.2d 1189, 1195 (R.I.1994). The trial justice therefore committed no error by failing to give a limiting instruction.
V. THE TESTIMONY CONCERNING EVENTS THAT OCCURRED FOLOWING TRAVIS'S DEATH
Two or three days after the cocaine binge had ended, defendant went to McMasters's [924] apartment and informed her that Travis had died that morning. The defendant was carrying a bag containing cans of baby formula and asked McMasters if she knew where she (defendant) could exchange the unused formula for cocaine. McMasters told defendant that she did not know where the formula could be exchanged for cocaine but suggested that she take it to a local supermarket to get a cash refund. McMasters then accompanied defendant to a supermarket in Pawtucket where they attempted to return the formula for cash. They were unsuccessful in this attempt, however, because they did not have a receipt for the formula and store policy dictated that no cash refunds be given for returns without a receipt for the merchandise. The defendant told the assistant store manager that her baby had just died, and the manager gave defendant $20 out of his own pocket because he felt sorry for her.[4] The defendant used this $20 to purchase cocaine. The defendant and McMasters then went to McMasters's apartment and smoked cocaine. McMasters was permitted to testify to this incident over defense objection that such evidence violated Rule 404(b) of the Rhode Island Rules of Evidence concerning bad character.
The next day, the day after Travis died, defendant went to McMasters's apartment building, apparently angry at McMasters because defendant thought that McMasters owed her money. The defendant began screaming obscenities from the driveway of McMasters's apartment building toward the window of McMasters's apartment. McMasters opened her window and told defendant to quiet down, but defendant proceeded to the porch of McMasters's apartment. The defendant began banging on the door and then smashed the apartment window with the handle of a butcher knife. Defense counsel objected to any testimony concerning presentation of this incident to the jury at trial on grounds that such evidence was irrelevant, prejudicial, and violative of Rule 404(b). The objection was overruled. Thereafter the grand jury tape wherein the prosecutor questioned defendant concerning this incident was played for the jury, and McMasters also testified concerning the episode.
The defendant claims that evidence concerning these two occurrences is completely irrelevant and highly prejudicial and does not fall under any of the exceptions to Rule 404(b) concerning admissibility of evidence of other crimes, wrongs, or acts. The trial justice admitted such evidence, finding it relevant insofar as it related to defendant's intent, knowledge, and identity. She also found that there was no danger of unfair prejudice resulting from the admission of this evidence.
Although we may not agree that there was no danger of prejudice resulting from the admission of evidence relating to the two incidents that occurred following Travis's death, we do not feel that the admission of such evidence was error. As we stated in Lemon, "[A]ll of the evidence that tends to prove that [a] defendant is guilty of a crime might be said to be prejudicial. Said evidence is inadmissible only if it is prejudicial and irrelevant." 497 A.2d at 720.
"[T]he admission or exclusion of evidence on grounds of relevancy is within the discretion of the trial justice." State v. Neri, 593 A.2d 953, 956 (R.I.1991). Absent a showing of abuse of discretion this court will not overturn the trial justice's ruling on the admissibility of evidence. In the instant case, evidence of defendant's attempt to return unused baby formula after the death of her son and of her subsequently spending the $20 given her by the store manager to purchase cocaine tended to show the ruthless determination on the part of defendant to obtain cocaine in any circumstances. This determination was probative of her intent to permit her son to be a habitual sufferer for want of the food and proper care that was essential for his survival. Evidence of the incident outside McMasters's apartment on the day following Travis's death would be of limited relevance, but its admission would not constitute an abuse of discretion. In light of the totality of evidence in the case such [925] admission would not be prejudicial or reversible error. We are of the opinion that the trial justice did not abuse her discretion in admitting evidence of these two incidents.
VI. THE DENIAL OF DEFENDANT'S MOTION FOR MISTRIAL
In response to a question from the prosecutor concerning whether there was a period during which she continued to purchase cocaine with defendant and Young, McMasters responded, "[Y]eah. We bought, we purchased cocaine until all our money ran out of our checks, and then me and Eddie went and robbed somebody for some more money." Defense counsel immediately moved at sidebar for a mistrial on the ground that robbery is a very serious crime and the fact that McMasters and Young had committed a robbery was imparted to the jury was extremely prejudicial to defendant. The motion for mistrial was denied, but the trial justice immediately struck the statement concerning the robbery from the record and instructed the jury to ignore it. In denying the motion for mistrial, the trial justice noted that defendant had not been implicated in the robbery. McMasters testified that only she herself and Eddie (Young) had committed the robbery. The trial justice found that defendant suffered no harm from the statement concerning the robbery. The defendant claims that the trial justice's denial of the motion for mistrial was prejudicial error.
The defendant relies on our recent opinion in State v. Gallagher, to support her claim that she was unfairly and substantially prejudiced by the reference to the robbery committed by McMasters and Young. In that case, we held that testimony that implicated the defendant's friends in a shooting which was unrelated to the charges for which the defendant was standing trial was extremely prejudicial and constituted reversible error. In Gallagher, however, the "credibility of the witnesses was the paramount issue at trial." 654 A.2d at 1211. The testimony at issue in Gallagher implicated a defense witness in a shooting that was unrelated to the charges for which the defendant was standing trial.
In that case the defendant was prejudiced by the admission of the evidence since it seriously impaired the credibility of the defense witness in a case where the credibility of witnesses was the most important issue. Id.
In the case at bar, the principal facts testified to by McMasters are virtually uncontradicted. McMasters's credibility was not a primary issue. Furthermore, McMasters was a prosecution witness, not a defense witness. If the jury had questioned McMasters's credibility, this would have benefited defendant, not prejudiced her. Young did not testify in this case; thus his credibility is not in issue. The defendant's reliance on Gallagher is therefore misplaced.
It is within the sound discretion of the trial justice to grant or to deny a defendant's motion to pass a case (motion for mistrial). State v. Mastrofine, 551 A.2d 1174, 1177 (R.I.1988). The denial of a motion to pass the case is to be accorded great weight and will not be overturned on appeal unless clearly wrong. Id. In the case at bar the statement concerning the robbery did not implicate defendant. The trial justice also admonished the jury to disregard the statement. The trial justice committed no error in denying defendant's motion for mistrial.
VII. THE STATE'S REBUTTAL TESTIMONY
Both the state and defendant presented expert witnesses who testified concerning the cause of Travis's death. In pretrial discovery the state disclosed to the defense the reports and anticipated testimony of four medical experts: Dr. William Quentin Sturner, Dr. Penelope Dennehy, Dr. Donald Singer, and Dr. Joel Adelson. In its case in chief the state called only two of the expert witnesses—Doctors Sturner and Dennehy.
Doctor Sturner, who performed the autopsy on Travis, testified that in his opinion, the cause of Travis's death was malnutrition and dehydration that were due to starvation and neglect. He testified at length concerning his various findings that supported this conclusion and how these same findings did not [926] support a conclusion that the cause of death was a gastrointestinal illness.
The thrust of Dr. Dennehy's testimony was to discredit the defense's theory that Travis had died as a result of viral gastroenteritis. She did testify, however, that in her opinion the cause of death was dehydration due to deficient input.
The defense also presented two expert medical witnesses, Dr. William Durbin and Dr. David Gang. Both defense experts concurred with the prosecution experts that Travis had died as a result of dehydration. Doctors Durbin and Gang, however, believed that the cause of the dehydration was a gastrointestinal virus that manifested itself in an overwhelming expulsion of fluid from the baby's body.
The state presented Doctors Singer and Adelson as rebuttal witnesses. Doctor Singer testified that in preparation for testifying he had reviewed the autopsy report, photographs, Travis's birth and neonatal health records, the reports prepared by the defense's expert witnesses, and tissue slides prepared "from virtually every organ in the body." The prosecutor then asked the doctor if he had an opinion concerning whether Travis had been malnourished. Defense counsel's objection to this question was overruled. After Dr. Singer responded that in his opinion Travis had been malnourished, the prosecutor asked the doctor if he had an opinion concerning the degree of malnutrition. Defense counsel again objected on the ground that such testimony was not proper rebuttal. This objection was overruled, and defense counsel then requested and was granted a continuing objection to that line of testimony.
In addition to stating his opinion concerning the cause of death, Dr. Singer disputed certain of the claims made by the defense's expert witnesses. For example, Dr. Singer disagreed with Dr. Durbin's assertion that Travis had been growing at a consistent rate. He also disagreed with Dr. Durbin's and Dr. Gang's characterization of the fecal material in Travis's diaper and with their contention that microscopic changes in the intestines following death would have made it extremely difficult to detect inflammation. In the course of his testimony, Dr. Singer also expressed opinions on some of the same matters to which Dr. Sturner had testified in the state's direct case and reached similar conclusions to those of Dr. Sturner.
Doctor Adelson was the state's second expert rebuttal witness. He testified that in his opinion the dehydration that caused Travis's death was the result of insufficient intake rather than excessive output. Defense counsel again requested and was granted a continuing objection to this line of testimony on the ground that it was improper rebuttal. Doctor Adelson then explained the reasons why he had concluded that Travis had not suffered a gastrointestinal disorder. Many of these reasons were the same as those testified to by Dr. Dennehy in the state's direct case.
The defendant claims that the testimony of Doctors Singer and Adelson was improper rebuttal because the bulk of the testimony was cumulative. She further contends that some of the testimony pertained to new matters and was therefore improperly presented for the first time in the state's rebuttal case. We shall address the second prong of this argument first.
The defendant points to only two examples of new evidence being presented for the first time on rebuttal. When Dr. Singer was relating why he disagreed with Dr. Durbin's assertion that Travis had grown at a consistent rate, he explained that the growth charts relied upon by Dr. Durbin contained outdated information whereas the growth tables that he used were, to his knowledge, the most accurate and up-to-date tables of the kind. Although Dr. Singer's testimony concerning the accuracy of information contained in the growth charts and tables utilized by the expert witnesses may indeed have been new evidence imparted to the jury for the first time on rebuttal, this information was offered for the sole purpose of explaining how he had come to a conclusion contrary to that of the defense's expert witness. There was no error in the admission of this testimony.
The only other example defendant points to of the presentation of new evidence for the [927] first time on rebuttal is Dr. Adelson's testimony that the degree of Travis's malnutrition may have been mild to moderate. We see no error in the admission of this testimony. The state was not presenting a new theory for the cause of Travis's death. To the contrary, each of the state's four expert witnesses testified that the cause of death was dehydration resulting from insufficient input, that is to say, due to malnutrition.
Returning to the first prong of defendant's argument, she claims that the testimony of Doctors Singer and Adelson was improper rebuttal because it was for the most part cumulative. We note that "the proper function and purpose of rebuttal testimony is to explain, repel, counteract, or disprove the evidence of the adverse party." State v. Donovan, 120 N.H. 603, 607, 419 A.2d 1102, 1105 (1980) (quoting United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974)). The decision to permit rebuttal testimony lies in the discretion of the trial justice, whose decision will not be overturned absent an abuse of that discretion. See State v. Simpson, 520 A.2d 1281, 1284 (R.I.1987); State v. Lawrence, 492 A.2d 147, 149 (R.I. 1985); 2 Wharton's Criminal Evidence § 432 (14th Torcia ed. 1986).
Doctor Singer's and Dr. Adelson's testimony was designed to discredit the defense's theory that Travis died as a result of dehydration caused by a gastrointestinal infection. Because of the nature of the medical evidence, it was virtually impossible for the doctors' rebuttal testimony not to repeat certain, or even much, of the testimony that was presented during the state's case in chief. We are of the opinion that the trial justice did not abuse her discretion in admitting this rebuttal testimony.[5]
VIII. THE DENIAL OF DEFENDANT'S REQUEST FOR SURREBUTTAL
Following the state's presentation of Doctors Singer and Adelson as rebuttal witnesses, defense counsel made an equivocal request for surrebuttal. Defense counsel based his request on two grounds. First, counsel argued that it was unfair for the state to present its case last in a manner that defense counsel claimed was improper rebuttal. Second, counsel contended that the state had improperly presented a new theory in its rebuttal case concerning the cause of Travis's death, to which the defense should have the opportunity to respond. In response to the trial justice's inquiry concerning what testimony he wanted to rebut, defense counsel mentioned Dr. Adelson's theory of the cause of death and related matters. He then continued: "There may well be other things, your Honor. I need time to think about it and talk about it with Dr. Gang and Dr. Durbin. I don't really know that after talking with them, we would consider it [to] be worthwhile to put on a surrebuttal case." Prior to ruling on the request, the trial justice stated that she was "unable to see any even mildly significant reason to grant surrebuttal, which is not commonly done, in any event," but planned to hold off on her decision until the following morning. Because of the difficulty of arranging for his expert witnesses to be present the following morning when the likelihood was great that the request for surrebuttal would be denied, defense counsel requested that the trial justice make an immediate ruling. The trial justice obliged and denied the request.
In State v. Byrnes, 433 A.2d 658 (R.I.1981), we quoted with approval the Illinois Appellate Court in Ross v. Danter Associates, Inc., 102 Ill.App.2d 354, 242 N.E.2d 330 (1968), for the standard for permitting surrebuttal testimony:
"The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal. * * * In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of presentation of his main case. Contrariwise, the purpose of surrebuttal is [928] not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. * * * It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence." Byrnes, 433 A.2d at 669-70 (quoting Ross, 102 Ill.App.2d at 367-68, 242 N.E.2d at 336-37).
Even if we agreed with defendant's arguments that the state's rebuttal testimony was improper, which we do not, we would still be constrained to find that the trial justice committed no error in denying the request for surrebuttal. The request for surrebuttal was equivocal, and defense counsel was unable to apprise the trial justice with any degree of certainty regarding what testimony he intended to rebut. More importantly, counsel did not apprise the trial justice concerning the proposed content of the surrebuttal testimony. Without any knowledge regarding the content of the proposed surrebuttal testimony, the trial justice was unable to determine whether it met the standards for the admission of such testimony which are quoted above. We realize that the trial justice did not inquire of counsel concerning the content of the proposed surrebuttal testim6ny, but such an inquiry would have proved futile inasmuch as counsel had not yet conferred with his expert medical witnesses and therefore would have been unable to inform the court concerning the content of any testimony that they might have offered.
Moreover, the denial of the request for surrebuttal was proper because of the equivocal nature of the request. In one breath defense counsel stated that he needed time to think about it and to talk about it with his expert witnesses and in the next breath he asked the trial justice for an immediate ruling on the request. In view of the fact that counsel was not even sure if he intended to put on a surrebuttal case, the trial justice committed no error in denying the request.
IX. THE DENIAL OF DEFENDANT'S PROPOSED JURY INSTRUCTION
Defense counsel submitted the following proposed jury instruction to the trial justice:
"If you find that Travis Young suffered from want of food and proper care as a result of unknowing oversight due to any cause, including the inability of the defendant to remember to feed and care for him, you must find her not guilty on counts one and two."
The trial justice declined to give this proposed instruction. Instead, she instructed " the jury that in order to find defendant guilty of second-degree murder, it must find that five elements were proved beyond a reasonable doubt, specifically that (1) defendant had custody or control of Travis and that Travis was a child under eighteen years of age, (2) Travis was a habitual sufferer for want of food or proper care, (3) defendant wrongfully caused or permitted Travis to be a habitual sufferer, (4) the crime of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care is inherently dangerous to human life, and (5) defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of causing or permitting him to be a habitual sufferer for want of food or proper care. The trial justice explained certain of these elements in further detail, such as the meanings of "habitual," "wrongfully," and "inherently dangerous to human life."
The defendant claims that the trial justice's failure to give the proposed instruction quoted above, or one of similar import, is reversible error. She claims that it was incumbent upon the trial justice to instruct the jury that in order to find her guilty of second-degree murder and of wrongfully permitting a child to be a habitual sufferer, it must find that she intentionally caused or permitted her son to be a habitual sufferer.
Initially we note that the child-neglect statute, § 11-9-5, may be violated by a failure to act on the part of one who has a duty to act, namely, a person who has custody or control of a child under the age of eighteen. Section 11-9-5 reads in pertinent part:
"Cruelty to or neglect of child.—Every person having the custody or control of [929] any child under the age of eighteen (18) years * * * who shall wrongfully cause or permit that child to be an habitual sufferer for want of food * * * [or] proper care * * * shall be guilty of a felony."
Thus the statute may be violated by an omission to act as well as by active conduct. The culpability element contained in the statute is "wrongfully." In her jury charge, the trial justice defined "wrongfully" as something done without legal justification and without legal excuse. We concur with this definition. By imposing criminal liability for wrongful conduct rather than for intentional conduct, our Legislature evinced an intent that the child-neglect statute could be violated even absent a conscious purpose to cause or permit a child to be a habitual sufferer, as long as no legal justification or legal excuse existed for so causing or permitting the child to be a habitual sufferer. Thus § 11-9-5 can be violated by an unintentional omission to act, contrary to the contention of defendant.[6]
Even though one can therefore be guilty of wrongfully permitting a child to be a habitual sufferer upon the basis of an unintentional omission to act, in order for the crime of wrongfully permitting a child to be a habitual sufferer to serve as a predicate felony to a charge of second-degree felony murder, the accused must have had the intent to commit the underlying felony. See State v. Villani, 491 A.2d at 980, 2 Wharton's Criminal Law § 147. Although it is true that the trial justice did not specifically instruct the jury that in order to find defendant guilty of second-degree murder, it must find as one of the elements of the crime that she intentionally caused or permitted her son to be a habitual sufferer for want of food or proper care, we believe that the instructions given were substantially equivalent. The trial justice instructed the jury that it must find that defendant wrongfully, that is, without legal justification or without legal excuse, caused or permitted Travis to be a habitual sufferer. She also instructed that it must find that defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of permitting or causing him to be a habitual sufferer for want of food or proper care. We believe that these two instructions in combination, requiring that the jury find that defendant had no legal justification or no legal excuse for causing her son to be a habitual sufferer and also requiring that the jury find that defendant knew or was aware beforehand that causing or permitting her son to be a habitual sufferer for want of food or proper care was likely to endanger his life, were the functional equivalent to an instruction requiring the jury to find that defendant intentionally caused or permitted her son to be a habitual sufferer. "This failure to distinguish between intent * * * and knowledge is probably of little consequence in many areas of the law, as often there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." LaFave and Scott, Substantive Criminal Law, § 3.5(b) at 305 (1986); see also Model Penal Code § 2.02 cmt. 2 at 234 (1985) (the "distinction [between acting purposely and knowingly] is inconsequential for most purposes of liability; acting knowingly is ordinarily sufficient").
The trial justice committed no error in refusing to give the requested instruction.
For the foregoing reasons the defendant's appeal is denied and dismissed, and the judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.
BOURCIER, J., did not participate.
[1] Having found Stewart guilty of second-degree murder and wrongfully causing or permitting a child to be a habitual sufferer for want of food and proper care, which were the first two counts of a three-count indictment, the jury did not decide the third count of the indictment — manslaughter. Upon conviction of the underlying count of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care, that count merged with the felony-murder count. See State v. Baton, 488 A.2d 696, 703-04 (R.I. 1985). Counsel for the state dismissed the second and third counts of the indictment at sentencing pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Edward Young, Sr., the child's father, was charged with the same offenses in the same indictment. His case has not yet been tried.
[2] Subsequent to her trial, Stewart married Young. Several months later she filed for divorce.
[3] The trial justice did sustain a defense objection to any reference being made to an armed robbery committed by defendant and Young after Travis had died.
[4] This testimony was corroborated by the manager of the supermarket who gave defendant the $20.
[5] We conclude that the two Louisiana cases cited in defendant's brief, State v. Bagwell, 519 So.2d 875 (La.Ct.App.1988), and State v. Dayton, 445 So.2d 76 (La.Ct.App.1984), are inapposite to the facts of this case.
[6] In the case at bar, however, we find that the evidence is sufficient to find that defendant intentionally permitted her son to be a habitual sufferer. See part II B, supra.
7.2.6.3.3.3.4 Hines v. State 7.2.6.3.3.3.4 Hines v. State
HINES
v.
The STATE.
Supreme Court of Georgia.
[871] Larry B. Hill, Lafayette, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. [869]
[870] FLETCHER, Chief Justice.
While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury's verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines's other enumerations are without merit, we affirm.[1]
Taken in the light most favorable to the jury's verdict of guilty, the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim's wife, and Hines's son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, "saw it fan out and shot." Hines's shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim's wife screamed, "You shot Wood." Hines and his son went for help, but the victim died before help could arrive.
On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.
Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines's son showed the police where he had hidden Hines's hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.
1. We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a [872] reasonable doubt of the crimes for which he was convicted.[2]
2. The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood's death by misusing a firearm, but did cause his death by possessing the same firearm.
Georgia does not recognize an inconsistent verdict rule,[3] which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.[4] Therefore, Hines's enumeration is without merit.
3. Hines contends that a convicted felon's possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life."[5] A felony is "inherently dangerous" when it is "`dangerous per se'" or "`by its circumstances create[s] a foreseeable risk of death.'"[6] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.[7]
In Ford v. State,[8] the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.[9]
In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines's illegal possession of a firearm created a foreseeable risk of death.[10] Accordingly, Hines's violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.
4. Hines claims that the trial court improperly allowed a lay witness to offer an expert opinion that went to the ultimate issue before the jury regarding whether Hines misused a firearm while hunting. At trial, [873] the State offered Department of Natural Resources Ranger Greg Hall as an expert on hunter safety and turkey hunting. The trial court refused to recognize Hall as an expert in those areas, but allowed him to testify that he would not teach students in his hunter safety classes that Hines's shot was "permissible or allowable."
Lay witnesses "may state their opinion only when it is based upon their own observations," and their opinions are admissible "only when it is necessary in order for a witness to convey those same observations to the jury."[11] A lay witness may not state his opinion when the facts relied upon by the witness can be "clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion."[12] "Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury's exclusive province."[13]
Hall's opinion that he would not teach hunter safety students that Hines's shot was "permissible or allowable" was not a proper lay opinion because it was not necessary to convey Hall's observations. Rather, Hall drew a conclusion based on his experience in hunter safety instruction regarding a matter that was not within the ken of the average juror (i.e., that Hines's shot would not be taught as a permissible shot in hunter safety classes). Therefore, Hall's testimony was admissible only as an expert opinion.
However, Hall's experience and credentials were sufficient to qualify him to offer an expert opinion regarding whether Hines's shot was permissible under hunter safety standards. Hall was a certified Georgia law enforcement officer, employed by the Department of Natural Resources in the law enforcement section of its Wildlife Resources Division. He had five years of experience teaching hunter safety courses, and his duties included enforcement of Georgia's hunting laws. The jury heard these qualifications, and Hines had an opportunity to cross-examine Hall regarding his qualifications as well as the substance of his testimony. Additionally, Hall's testimony was probative of whether Hines misused his firearm while hunting, but did not invade the jury's exclusive province to determine whether Hines was guilty of that crime. Accordingly, the trial court did not err in allowing Hall to offer his opinion.[14]
5. Hines asserts that the evidence did not authorize the jury to reject his mistake of fact defense. Under OCGA § 16-3-5, "[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." Generally, however, "ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by the fault or negligence of the party doing the wrongful act."[15] Here, Hines's mistaken belief that Wood was a turkey was due to his own fault in taking an unsafe shot under unsafe conditions at a target that he had not positively identified as legal game. Accordingly, the jury was authorized to reject Hines's mistake of fact defense.
6. Hines's remaining enumerations are also without merit.
(a). The trial court did not commit reversible error in permitting the medical examiner to testify that he had classified Wood's death as a "homicide." The medical examiner testified the classification had nothing to do with the defendant's intent and meant only that "but for the actions of another [874] individual" the decedent would not be dead.[16]
(b). Because the felon in possession of a firearm charge was an underlying felony for one of the felony murder counts, the trial court correctly denied Hines's motion to bifurcate the possession charge from the trial of the other charges.[17]
(c). The trial court did not commit reversible error in leaving in the indictment the references to Hines's habitual violator status and prior conviction for driving under the influence. Hines withdrew the motion to redact his habitual violator status from the indictment, and the reference to the DUI conviction was harmless because Hines referred to his DUI conviction in his statement to the police, which was introduced into evidence without objection.[18]
(d). The trial court was within its discretion in admitting the photographs of the deceased.[19]
(e). Ranger Hall's testimony regarding the hunter safety courses that he teaches did not elevate the standard under OCGA § 16-11-108 (misuse of a firearm while hunting) from a reasonable person standard to a reasonable person who has taken hunter safety courses standard. The trial court's instructions to the jury followed the statutory language, and "absent clear evidence to the contrary," "qualified jurors under oath" are presumed to follow the trial court's instructions.[20]
(f). Hines waived any objection to the trial court's omission of the general charge on the form of the verdict because he did not request the charge, and based on the charges that were given, its omission was not clearly harmful and erroneous as a matter of law.[21]
(g). The trial court did not commit reversible error when it attempted to clarify the jury's continuing confusion regarding the crime of misuse of a firearm while hunting after repeatedly charging the jury correctly on the applicable statute, OCGA § 16-11-108.[22]
(h). The trial court did not err in recharging the jury on only the felony murder/misuse of a firearm counts, when those were the counts on which the jury had questions.[23]
Judgment affirmed.
All the Justices concur, except SEARS, P.J., who dissents.
SEARS, Presiding Justice, dissenting.
Because I conclude that circumstances surrounding Hines's commission of the status felony of possessing a firearm were not inherently dangerous within the meaning of our decision in Ford v. State,[1] I dissent to the majority's affirmance of Hines's conviction of felony murder.
In Ford, this Court held that for a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed under circumstances creating a foreseeable risk of death.[2] We also held that the imputation of malice that justifies the felony murder rule is dependent on the "perpetrator's life-threatening [875] state of mind accompanying [the] commission [of the underlying felony]."[3] In Ford, however, we did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. Because of the severe punishments that accompany a conviction of murder[4] and because it is illogical to impute malice for purposes of felony murder "`"from the intent to commit a felony not [foreseeably] dangerous to human life,"'"[5] I conclude that for purposes of our felony-murder doctrine, a felony is inherently dangerous per se or as committed if it carries "`a high probability' that [a human] death will result."[6] This standard will ensure that our felony murder rule is not inappropriately expanded by "reducing the seriousness of the act which a defendant must commit in order to be charged with murder."[7]
In the present case, I conclude that the possession of a firearm by Hines was not committed in a fashion that was inherently dangerous and that carried a high probability that death would result. The fact that Hines was hunting, a dangerous sport; the fact that he had been drinking before he went hunting; the fact that he was hunting at dusk; and the fact that he fired a shot when he knew other hunters were in the general area in which he was hunting may establish that Hines was negligent, but do not establish that his acts created a high probability that death to a human being would result, or that he had a "life-threatening state of mind."[8] Moreover, as for the fatal shot, Hines testified that he heard a turkey gobble, that he "saw it fan out," and that he then fired at the object. Even though Hines may not, as stated by the majority, have positively identified his target as a turkey, he had to make a split-second decision regarding his target and concluded, based on hearing a gobble and seeing something "fan out," that the object was a turkey. I cannot conclude that, under these circumstances, the failure of the hunter to identify his target beyond doubt carried a high probability that a human being would be killed or that he acted with a "life-threatening state of mind."[9] The death in this case is clearly a tragic incident, and Hines's conduct before and after the shooting was reprehensible. But the sanction of life in prison for murder should be reserved for cases in which the defendant's moral failings warrant such punishment. Here, the application of the felony murder statute to Hines's actions punishes him more severely than his culpability merits. In this regard, Hines will be serving the same punishment—life in prison—as an arsonist convicted of felony murder who firebombed an apartment that he knew was occupied, causing the death of two young children,[10] and the same punishment as an armed robber convicted of felony murder who entered a store with a firearm and shot and killed a store employee.[11] This result is unwarranted and unnecessary, as Hines could be prosecuted and convicted of an appropriate lesser crime, such as involuntary manslaughter[12] or the misuse of a firearm while hunting.[13]
[876] One final note. Hunting is a time-honored recreational activity encouraged by the State of Georgia and enjoyed by many of our State's citizens. No doubt a number of hunters have probably engaged in negligent hunting practices similar to those in this case. Although I do not condone such careless practices, neither can I agree with subjecting so many hunters to the possibility of spending life in prison when they do not fastidiously follow proper hunting procedures and accidentally shoot a fellow hunter.
For the foregoing reasons, I dissent to the majority opinion.
[1] The crime was committed on April 8, 2001. On August 7, 2001, a grand jury indicted Hines for two counts of felony murder, possession of a firearm by a convicted felon, misuse of a firearm while hunting, possession of a firearm during the commission of a felony, tampering with evidence, and four counts of false statement. The State withdrew three of the false statement counts. On August 31, 2001, the jury acquitted Hines of one count of felony murder and convicted him of all remaining counts. The trial court merged the felon in possession conviction into the felony murder conviction and sentenced Hines to life imprisonment for felony murder followed by five years imprisonment for the possession of a firearm while committing a felony conviction. The court also imposed concurrent sentences on the remaining convictions. Hines moved for a new trial on September 21, 2001, and amended his motion on March 14, 2002. The trial court denied the motion for a new trial on March 26, 2002. Hines filed his notice of appeal on April 23, 2002. The case was docketed in this Court on July 22, 2002, and submitted for decision on September 16, 2002.
[2] See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] Lawrence v. State, 274 Ga. 794, 794, 560 S.E.2d 17 (2002); see also Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003).
[4] Jackson, 276 at 410, n. 3; Dumas v. State, 266 Ga. 797, 799, 471 S.E.2d 508 (1996).
[5] Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).
[6] Id.
[7] See, e.g., Metts v. State, 270 Ga. 481, 482, 511 S.E.2d 508 (1999) (felon in possession of firearm inherently dangerous when defendant pointed loaded, cocked gun at window when he knew person was standing on the other side).
[8] 262 Ga. 602, 423 S.E.2d 255 (1992).
[9] Id. at 602-603, 423 S.E.2d 255.
[10] See also Metts, 270 Ga. at 482, 511 S.E.2d 508; Chapman v. State, 266 Ga. 356, 357-358, 467 S.E.2d 497 (1996) (misuse of firearm while hunting is an inherently dangerous felony that will support felony murder).
[11] Johnson v. Knebel, 267 Ga. 853, 855-856, 485 S.E.2d 451 (1997).
[12] Id. at 857, 485 S.E.2d 451.
[13] Id.
[14] See generally Henry v. State, 265 Ga. 732, 736-737, 462 S.E.2d 737 (1995) (interpreter offered expert opinion although not offered as expert witness); Stewart v. State, 246 Ga. 70, 75, 268 S.E.2d 906 (1980) (court implicitly recognized witness's expert status when it overruled objection to obviously competent witness's expert testimony); Bacon v. State, 225 Ga.App. 326, 327-329, 483 S.E.2d 894 (1997) (same).
[15] Crawford v. State, 267 Ga. 543, 544, 480 S.E.2d 573 (1997) (punctuation omitted).
[16] See Willis v. State, 274 Ga. 699, 701, 558 S.E.2d 393 (2002).
[17] See Haynes v. State, 269 Ga. 181, 183, 496 S.E.2d 721 (1998).
[18] See Cox v. State, 274 Ga. 204, 206, 553 S.E.2d 152 (2001).
[19] See Jenkins v. State, 270 Ga. 607, 609, 512 S.E.2d 269 (1999).
[20] See Smith v. State, 267 Ga. 372, 374, 477 S.E.2d 827 (1996); Dennis v. State, 263 Ga. 257, 258, 430 S.E.2d 742 (1993).
[21] See Camphor v. State, 272 Ga. 408, 413-414, 529 S.E.2d 121 (2000).
[22] See Willingham v. State, 268 Ga. 64, 66, 485 S.E.2d 735 (1997).
[23] See Duffie v. State, 273 Ga. 314, 316, 540 S.E.2d 194 (2001) (when jury requests recharge on particular part of case, court in its discretion may recharge them in full or only upon the point requested).
[1] 262 Ga. 602, 423 S.E.2d 255 (1992).
[2] Id. at 603, 423 S.E.2d 255. Accord Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).
[3] Ford, 262 Ga. at 603, 423 S.E.2d 255.
[4] See Model Penal Code and Commentaries, Pt. II, § 210.2, p. 36 (Official Draft and Revised Comments 1980).
[5] Ford, 262 Ga. at 603, 423 S.E.2d 255, quoting State v. Goodseal, 553 P.2d 279, 285 (Kan.1976).
[6] People v. Patterson, 49 Cal.3d 615, 262 Cal. Rptr. 195, 778 P.2d 549, 558 (1989). Accord People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1026 (1994).
[7] Patterson, 262 Cal.Rptr. 195, 778 P.2d at 558.
[8] Ford, 262 Ga. at 603, 423 S.E.2d 255.
[9] Id. See also Cable v. Commonwealth, 243 Va. 236, 415 S.E.2d 218 (1992) (under circumstances similar to present case, defendant was convicted of involuntary manslaughter; his conviction was affirmed on appeal, but the dissent, taking the position that no crime had been committed, noted that the Supreme Court of Virginia had only decided one other case (also an involuntary manslaughter case) dealing with hunting accidents).
[10] Wolfe v. State, 273 Ga. 670, 544 S.E.2d 148 (2001).
[11] Taylor v. State, 275 Ga. 461, 569 S.E.2d 520 (2002).
[12] OCGA § 16 5 3.
[13] OCGA § 16 11 108. Hines was in fact convicted of this crime in the present case.
7.2.6.3.3.3.5 People v. Burton 7.2.6.3.3.3.5 People v. Burton
THE PEOPLE, Plaintiff and Respondent,
v.
BOZZIE BRYANT BURTON III, Defendant and Appellant.
Supreme Court of California.
[378] COUNSEL
Patrick J. Sampson, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Norman N. Flette, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SULLIVAN, J.
Defendant Bozzie Bryant Burton III, a 16-year-old minor was charged by information with two counts of murder (Pen. Code, § 187) and a third count of assault with intent to commit murder. (Pen. Code, § 217.) After a jury trial he was found guilty as charged on two counts of murder in the first degree and guilty of assault (Pen. Code, § 240), a lesser offense than that charged in the third count, but necessarily included therein. Defendant was sentenced to the term prescribed by law on the two counts of murder and to 180 days in county jail on the count of assault, each sentence to run concurrently. He appeals from the judgment of conviction.
Defendant contends that his confession to the above charges was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] and that its admission into evidence over his objection constitutes reversible error. We agree and, therefore, reverse the judgment.
Count Three (Assault on Vicky Price)
On December 13, 1968, at 9:15 p.m., Vicky Price was sitting in her car, which was parked in a parking lot at a shopping center in Compton. Defendant approached her car on the driver's side, put a gun to her head and ordered her to get out of the car. While she was attempting to comply with this order, she heard a voice addressing her from the other side of the car. The next thing she knew defendant's gun had gone off and wounded her. Defendant fled.
Counts One and Two (Murders of Joseph and Isabelle Diosdado)
Six days later on December 19, 1968, about noon, the dead bodies of Joseph and Isabelle Diosdado were discovered lying on the floor of the back [379] room of their feed store in Compton. They had each been shot twice. The cash register was empty and coins were scattered on the floor. The bullet recovered from Vicky Price and the bullets removed from the Diosdados were all fired from the same gun.
On February 14, 1969, at 7 a.m., defendant was arrested and taken to the Compton police station. Upon arrival at the police station, he was placed in a cell near the door, then underwent booking procedures for 30 to 40 minutes, and finally was removed to another cell for questioning. While he was being booked, his father arrived at the police station and asked to see him. The request was refused. The police thereafter advised defendant of his Miranda rights, interrogated him, and obtained a confession.
In fact, defendant made statements on three separate occasions in which he: (1) admitted shooting Vicky Price, but claimed he was strongly under the influence of marijuana; (2) admitted being present at the shooting of the Diosdados, but denied doing the shooting and (3) admitted shooting the Diosdados and explained the circumstances in detail.
When the case was called for trial, defendant moved, pursuant to section 405 of the Evidence Code, to exclude the confession on the ground that it was (1) involuntary and (2) illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. A hearing was held prior to the selection of the jury. At the conclusion of the hearing the trial judge, without specifically reviewing the evidence, found that the People had met its burden of showing the confession was voluntary, not coerced and not illegally obtained.
Defense counsel pointed out to the court in summation at the end of the hearing that "on several occasions he [defendant] asked to see his parents, and also has heard testimony from a parent, namely the father, that on several occasions he asked to see the minor, and on each occasion each was refused permission one to see the other," but did not specifically urge the defendant's request to see his parents invoked his Fifth Amendment privilege under Miranda v. Arizona, supra, 384 U.S. 436.[1] Since defendant now raises that contention before us, we must first decide whether it was established that defendant did in fact request to see his parents.
[380] Defendant testified: "That morning when I came in [taken to police station for booking] after they had put me in one cell and put me in another cell, and I asked them could I see my parents, and they said, `No'." This testimony was never contradicted. When urged to the court by defense counsel, it elicited no argument from opposing counsel, nor indication of disbelief from the trial court. It was not at all necessary for the trial court to disbelieve this testimony to determine that defendant, who on three separate occasions made a full confession, did so freely and voluntarily after having specifically and intelligently waived his Miranda rights, which a police officer had carefully explained to defendant.
The People urge, however, that the testimony of Officer Armstrong, quoted in the margin,[2] adequately contradicted defendant's testimony, because the officer's testimony indicates he was not with defendant when defendant claimed to make the above statement. Defense counsel indicated to defendant in his questioning with respect to this matter that defendant's request had been directed to Officer Armstrong, that it was the latter who had denied the request and defendant agreed.
We think the above is inadequate to contradict defendant's testimony. At no time did Officer Armstrong or any other officer deny defendant requested to see his parents. We are persuaded, after a close reading of the testimony presented at the section 405 hearing, that whether defendant did or did not request to see his parents was not considered a major issue at that time. It has become so upon appeal. Defendant's testimony that he requested to see his parents was uncontradicted at that time, and stands unchallenged now when viewed upon review except for the quoted testimony of Officer Armstrong, which in itself is inadequate to meet the People's burden of showing that defendant did not say what he testified he did say. Therefore, we are satisfied that the record adequately establishes that defendant requested to see his parents and that this request was denied.
It is unclear from the record whether this request was made during transfer from the booking cell to the interview room or in the interview room itself. However, the request was made just prior to the commencement of interrogation and at a time when defendant's father was at the police station.
[381] Prior to commencing questioning, but subsequent to the denial of defendant's request to see his parents, a police officer carefully explained to defendant his Miranda rights. The record shows that when thus advised of his rights, defendant indicated to the officer that he understood such explanation and that he waived these rights. Thereafter he made a full confession on three separate occasions.
(1) Defendant, although not claiming this confession to have been involuntary, contends that it was unlawfully obtained since his request to see his parents at or near the commencement of interrogation was an invocation of his Fifth Amendment privilege under the rules established in Miranda v. Arizona, supra, 384 U.S. 436, and further elaborated in this state in People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal. Rptr. 817, 441 P.2d 625]; People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and People v. Randall (1970) 1 Cal.3d 948 [83 Cal. Rptr. 658, 464 P.2d 114]. We agree.
The United States Supreme Court in Miranda, noting that incommunicado interrogation is at odds with an individual's right not to be compelled to incriminate himself, stated: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." (Miranda v. Arizona, supra, 384 U.S. 436, 458 [16 L.Ed.2d 694, 714].) In Miranda, the Supreme Court set down four warnings which must be given persons in custodial surroundings, and then elaborated on the procedure subsequent to the giving of such warnings, as follows: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Fn. omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (Miranda v. Arizona, supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) In People v. Randall, supra, 1 Cal.3d 948, 954, we observed that "This obligation on the police to entirely terminate custodial interrogation upon invocation of the Fifth Amendment privilege is one of the primary `protective devices' fashioned by Miranda. [Fn. omitted.]"
In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular [382] form of words or conduct is necessary to constitute such an invocation. "A suspect may indicate such a wish in many ways." (People v. Ireland, supra, 70 Cal.2d 522, 535.) "To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent." (People v. Randall, supra, 1 Cal.3d 948, 955.)
(2) Any words or conduct which "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]" (People v. Randall, supra, 1 Cal.3d 948, 956) must be held to amount to an invocation of the Fifth Amendment privilege. In Fioritto we held that a refusal by a suspect to sign a waiver of his constitutional rights amounted to an invocation of his Fifth Amendment privilege. In Ireland we held that when the suspect stated "Call my parents for my attorney" he thereby asserted the privilege. In Randall we held that a suspect's telephone call to his attorney in and of itself invoked the privilege.
In this case we are called upon to decide whether a minor's request to see his parents "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time." (People v. Randall, supra, 1 Cal.3d 948, 956.) It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the "protective devices" required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian. It is common knowledge that this is the normal reaction of a youthful suspect who finds himself in trouble with the law.
The People advance two arguments in opposition. First, they contend that defendant's request to see his parents did not clearly give notice to the police that he was asserting his Fifth Amendment privilege, since such request could have been made for many purposes. We rejected the same argument in Randall. There the People argued that a telephone call to an attorney could manifest a desire to get bail, or merely inform him [383] of his arrest just as well as manifesting a desire to remain silent or have the attorney present, and that the equivocal nature of the telephone call made it distinguishable from Ireland where the defendant upon being asked whether he had anything to say, responded "Call my parents for my attorney." We there said: "In any event, we are not disposed to assume as a general matter that a telephone conversation with an attorney such as occurred in the case at hand is not a manifestation of a suspect's intention to assert his privilege.... The People have the burden of demonstrating that a questioned confession meets the constitutional tests of admissibility. [Citations.] When, as appears here, the suspect to the knowledge of the police completes a call to his attorney, the People — if they contend that the fact of such a call should not be considered an invocation of the privilege — must affirmatively demonstrate that the suspect was not thereby indicating a desire to remain silent until he had obtained the full advice of his counsel." (People v. Randall, supra, 1 Cal.3d 948, 957.)
(3) Similarly here we are not disposed to assume as a general matter that a request by a minor at or near the inception of interrogation to see his parents is not an indication of that minor's unwillingness to continue talking with police or of a desire for help in how to conduct himself with police and thus not a manifestation of that minor's intention to assert his privilege. Therefore, the People have the burden of affirmatively demonstrating that such was not the desire on the part of defendant. Here, the People did not meet this burden.
Secondly, the People contend that because defendant's request occurred prior to the interrogation and prior to the giving of the Miranda warning, it was unlikely that the police would understand the request as an invocation of the privilege. The Supreme Court clearly stated in Miranda, as quoted, ante, page 381, that "[i]f the individual indicates ... at any time prior to ... questioning, that he wishes to remain silent, the interrogation must cease." (Fn. omitted; italics added.) (Miranda v. Arizona, supra, 384 U.S. 436, 473-474.) Indeed, this argument really seems to be a further elaboration of the lack of notice argument discussed above, and the short answer is that the People have offered nothing in the way of affirmative proof that defendant did not intend to assert his privilege.
(4) Accordingly we hold that when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence [384] demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and, therefore, the admission of such confession was prejudicial per se and compels reversal of the judgment on all counts. (People v. Randall, supra, 1 Cal.3d 948, 958; and cases there cited.) (5) The admission of this confession constitutes reversible error even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland and Randall, because: "After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary." (People v. Randall, supra, 1 Cal.3d 948, 958.)
We now turn to defendant's contention that it was error, in the circumstances of this case, to instruct the jury on first degree felony murder, because the underlying felony was armed robbery. He claims that armed robbery is an offense included in fact within the offense of murder and, therefore, under the rule announced in People v. Ireland, supra, 70 Cal.2d 522, 538-540 as applied in People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22], such offense cannot support a felony-murder instruction.[3]
"Murder," as defined in Penal Code section 187, "is the unlawful killing of a human being ... with malice aforethought." In Ireland, we said: "The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human [385] life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.]" (People v. Ireland, supra, 70 Cal.2d 522, 538.)
(6) The net effect of this imputation of malice by means of the felony-murder rule is to eliminate the possibility of finding unlawful killings resulting from the commission of a felony to be manslaughter, rather than murder. (7) Even intentional killings can be mitigated to voluntary manslaughter if the killing occurred with sufficient provocation to arouse the reasonable man to a fit of passion or sudden quarrel or if the defendant did not attain the mental state of malice due to mental illness, mental defect or intoxication. (People v. Stines (1969) 2 Cal. App.3d 970, 976 [82 Cal. Rptr. 850].) (8) Unintentional killings in the appropriate circumstances may well be mitigated to involuntary manslaughter, or even not be subject to criminal penalty.
In Ireland the "defense ... rested its entire case upon a contention that defendant's mental state at the time of his act — as affected by cumulative emotional pressure and the ingestion of alcohol and prescribed medications was not that required for murder." (People v. Ireland, supra, 70 Cal.2d 522, 531.) The defendant in that case shot his wife with a gun. The judge instructed the jury on the felony-murder rule, utilizing assault with a deadly weapon as the supporting felony. The effect of such instruction, as Ireland pointed out (70 Cal.2d at p. 539, fn. 13) was, therefore, to substantially eviscerate the defense of diminished capacity to negative malice, since malice was imputed. The net effect of this imputation would be to hold that all intentional killings accomplished by means of a deadly weapon were murder regardless of the circumstances and could never be mitigated to manslaughter, since all such killings included in fact an assault with a deadly weapon. We held that such effect was impermissible; "This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)
In Wilson the underlying felony which supported the felony-murder instruction was burglary — specifically entry coupled with the intent to commit assault with a deadly weapon. Since in Ireland we had held that assault with a deadly weapon could not support an instruction on second degree felony murder, in Wilson we were faced with the question whether [386] it could support first degree felony murder because coupled with an entry. We concluded there was no meaningful distinction between assaults with deadly weapons indoors and outdoors, saying: "Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault. Furthermore, the burglary statute in this state includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a burglary in which the felonious intent is solely to assault with a deadly weapon." (People v. Wilson, supra, 1 Cal.3d 431, 441.) Thus, even though burglary is one of the felonies specifically enumerated in Penal Code section 189, we excluded burglary from the operation of the felony-murder rule in those cases where the intended felony was assault with a deadly weapon for the reasons stated in Ireland.
Defendant contends that the language and reasoning of Ireland and Wilson compel us to hold that armed robbery is included in fact within murder and, therefore, cannot support a felony-murder instruction.[4] He argues that armed robbery includes as a necessary element assault with a deadly weapon by the following chain of reasoning: robbery "is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear" (Pen. Code, § 211); thus robbery is assault (force or fear directed against a person) coupled with larceny, which when accomplished by means of a deadly weapon necessarily includes in fact assault with a deadly weapon; any charge of murder with respect to a killing arising out of armed robbery then necessarily includes in fact assault with a deadly weapon and cannot support a felony-murder instruction.
The net effect of defendant's argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were committed [387] by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon, even if the homicide resulted from the commission of one of the six felonies (arson, rape, mayhem, robbery, burglary or lewd and lascivious acts upon the body of a child) enumerated in section 189 of the Penal Code. It is, of course, possible to interpret our language in Ireland[5] and Wilson to mean merely that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction. However, we reject this interpretation of that language and its consequent assertion that the felony-murder rule has been abolished in all homicides accomplished by means of a deadly weapon as unwarranted both in logic and in principle.
We conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another. The desired infliction of bodily injury was in each case[6] not satisfied short of death. Thus, there was a single course of conduct with a single purpose.
However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. (9) Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning — if a death results from his commission of that felony it will be first degree murder, regardless of the [388] circumstances. (10) This court has reiterated numerous times that "The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.
Wilson, when properly understood, does not eliminate this rule as urged by defendant, but merely excludes from its effect one small area of conduct, which would be irrationally included, due to the unusual nature of burglary. The key factor as indicated earlier in the enumerated felonies is that they are undertaken for a felonious purpose independent of the homicide. (11) In the normal case, burglary is also undertaken with an independent felonious purpose, namely to acquire the property of another. In such instances the felony-murder rule would apply to burglary as well, even if the burglary were accomplished with a deadly weapon. However, in Wilson the entry was coupled with the intent to commit assault with a deadly weapon, the defendant in that case bursting through the bathroom door intending to do violent injury upon the body of his wife. We were there presented with the exact situation we faced in Ireland, namely a single purpose, a single course of conduct, except that in Wilson the single course of conduct happened to include an entry, and thus technically became burglary all of which brought the incident within the ambit of section 189 of the Penal Code. We merely excluded from the first degree felony-murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon because we found them indistinguishable from those in Ireland. We regard the holding in Wilson as specifically limited to those situations where the entry is coupled with the intent to commit assault with a deadly weapon.
Defendant in this case by embarking upon the venture of armed robbery brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first degree murder. (12) The trial judge quite correctly instructed on felony murder based on homicides directly resulting from the commission of armed robbery.
[389] (13) Defendant next contends that section 405 of the Evidence Code, by making the trial judge's determination of the voluntariness of a confession final, violates his right to trial by jury embodied in article I, section 7 of the state Constitution. He argues that it was error for the trial judge not to instruct the jury to determine for itself the question of the voluntariness of a confession, once the trial judge had made a preliminary determination of voluntariness.
Prior to the enactment of section 405 of the Evidence Code, effective January 1, 1967, the law was as defendant now urges. We held in People v. Gonzales (1944) 24 Cal.2d 870 [151 P.2d 251] that once the trial judge had made an initial determination that the confession was voluntary, the defendant was entitled to present evidence to the jury for its final determination as to voluntariness. In People v. Bevins (1960) 54 Cal.2d 71 [4 Cal. Rptr. 504, 351 P.2d 776], we held that the court had a duty to instruct the jury sua sponte to determine for itself the voluntariness of the confession, and if it found it involuntary, then to disregard the confession altogether.
The Legislature by enacting section 405 of the Evidence Code specifically rejected this rule. In the legislative committee comment to the section, the reason for the change is carefully explained: "The existing law is based on the belief that a jury, in determining the defendant's guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary."
This procedure has received at least the tacit approval of the United States Supreme Court (see Jackson v. Denno (1963) 378 U.S. 368, 378 [12 L.Ed.2d 908, 916, 84 S.Ct. 1774, 1 A.L.R.3d 1205]). The identical procedure is utilized to determine the question whether evidence has been obtained in violation of the law of search and seizure and has been approved by this court. (People v. Gorg (1955) 45 Cal.2d 776, 780-781 [291 P.2d 469].) The Legislature's finding that a defendant will be better protected by thrusting the full responsibility upon the trial judge is entirely [390] reasonable. Moreover, the Legislature has quite reasonably indicated that it is removing from the jury a task that was in all practical terms impossible — in short, nothing of substance has been removed from the province of the jury. Defendant has suggested no reason why the voluntariness of a confession must be determined by a jury while the legality of the seizure of evidence need not be. Neither has defendant cited any authority indicating that a determination of the voluntariness of a confession is an inherent part of the right to a jury trial expressed in article I, section 7 of the state Constitution. We reject defendant's contention that section 405 of the Evidence Code violates article I, section 7 of the state Constitution.
Defendant finally contends that the instruction given with respect to proof of intent (CALJIC No. 73)[7] conflicted with and vitiated the instruction given on diminished capacity (CALJIC No. 305.1 (New) 1967 Pocket Part).[8] The gist of the instruction on intent was to limit lack of sound mind to idiocy, lunacy, or insanity and thus order the jury to find the requisite sound mind supporting the requisite intent unless the defendant was an idiot, a lunatic or insane. Furthermore, this instruction directed the jury to assume defendant was sane. However, the instruction on diminished capacity quite correctly informed the jury that a "substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause" could negate the ability to form specific required mental states. There is certainly a potential conflict in the instruction which could well mislead the jury.
We need not now decide whether such a conflict would be fatal, but for purposes of guidance of the court upon retrial direct the trial court's attention [391] to CALJIC (3d ed.)[9] numbers 3.34, 3.35 and 8.77 where the problem has been perceived and very adequately answered. In the note on use of the instruction on the proof of intent (CALJIC (3d ed.) No. 3.34), the editors suggest that trial judges delete the second paragraph directing the jury to assume defendant is of sound mind if there is evidence of diminished capacity. It is noteworthy that in the revised instruction on intent, sound mind is left undefined and the sentence referring to idiots, lunatics or insane people has been deleted. We are satisfied that this is a correct and fully adequate way to handle the situation.
The judgment is reversed.
Wright, C.J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
McCOMB, J.
I dissent. I would affirm the judgment for the reasons expressed [392] by Mr. Justice Allport in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Three (People v. Burton, 2 Crim. 18352, filed June 17, 1971, certified for nonpublication).
[1] The People do not object that the contention that defendant's request to see his parents invoked his Fifth Amendment privileges has been raised too late. We agree, since one of the stated grounds for objecting to the admission of the confession was that it was illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436, and defendant's testimony with respect to his request to see his parents was highlighted to the court by defense counsel in his summation.
[2] "Except for the time lapse. I was with him from the house to the Police Department, and he was delivered by me and one or two other officers to the booking area. At that time when he was turned over to the jailer. I then left and went to my office and, as I testified before, a time lapse of approximately 30 to 40 minutes — I am not sure. I cannot testify to the exact time — that I was away from him during the booking processing."
[3] The trial judge instructed the jury, in pertinent part, as follows: "Concerning the charges of murder in Counts I and II of the information, there are two sets of principles of law which may apply, depending on your findings of fact. [Par.] The first is called the felony-murder doctrine which I will define for you and which only applies if you find that there was a robbery or attempted robbery committed by the defendant. [Par.] The second set of principles contains all possible doctrines of law that can apply to a murder charge other than the felony-murder doctrine, and I will define these principles for you also. [Par.] Now first, here is the felony-murder doctrine: [Par.] The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission or attempt to commit the crime of robbery and where there was in the mind of the perpetrator the specific intent to commit such crime of robbery is murder of the first degree. [Par.] The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt. [Par.] If you find that the defendant was intoxicated at the time of the alleged offense, you should consider his intoxication in determining whether the defendant had the specific intent to commit robbery." (CALJIC No. 302.F (2d rev.).) (Italics added.)
[4] At oral argument counsel for defendant claimed that People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847] added further support to his position. In Sears a husband, living apart from his wife, unlawfully entered her home armed with an iron bar, attacked her and, in the ensuing fracas, killed his stepdaughter. We held that the felony-murder instruction predicated upon burglary committed by an entry coupled with the intent to commit assault with a deadly weapon was erroneous under the authority of Ireland and Wilson. The distinguishing factor between Wilson and Sears was the fact that the evidence could be construed to show that the husband entered with the intent to commit assault only upon the wife and that therefore the assault upon the stepdaughter was a collateral felony. However, this court concluded that the doctrine of transferred intent applied, so that the entry with intent to commit assault upon the wife was the sole underlying felony. The problem of transferred intent is not raised in the instant case. Sears insofar as pertinent to this case in no way expanded or altered Wilson.
[5] "We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)
[6] Wilson involved two separate entries, one into the apartment through the front door and one into the bathroom. Each was coupled with the intent to commit assault with a deadly weapon. However, the crucial entry for the purpose of the first degree felony-murder instruction, was the entry into the bathroom by defendant bearing a shotgun for the purpose of inflicting violent injury upon the body of his wife.
[7] CALJIC No. 73 provides: "The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity.
"For the purposes of the issues now at trial you must presume that the defendant was sane at the time of his alleged conduct which, it is charged, constituted the crime described in the information."
[8] CALJIC No. 305.1 (New) provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree."
[9] CALJIC No. 3.34 provides: "The intent with which an act is done is shown by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act.
"[For the purposes of the case on trial, you must assume that the defendant was of sound mind at the time of his alleged conduct which, it is charged, constituted the crime described in the information.]"
CALJIC No. 3.35 provides: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.
"If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent or mental state, you must give defendant the benefit of that doubt and find that he did not have such specific intent or mental state."
CALJIC No. 8.77 provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, mental defect, intoxication, or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.
"Thus, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated murder of the first degree.
"Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.
"Furthermore, if you find that his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter."
7.2.6.3.3.3.6 Barnett v. State 7.2.6.3.3.3.6 Barnett v. State
Eric Jose BARNETT, Appellant,
v.
The STATE of Oklahoma, Appellee.
Court of Criminal Appeals of Oklahoma.
[960] James Dennis, Sapulpa, OK, attorney for defendant at trial.
O.R. Barris, III, Asst. District Attorney, Okmulgee, OK, attorney for the State at trial.
Lee Ann Jones Peters, Okla. Indigent Defense System, Norman, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General, Lori S. Carter, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
[961]
OPINION
LEWIS, Vice-Presiding Judge.
¶ 1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 O.S.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF-2009-2.[1] The jury sentenced Appellant to twenty-three (23) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly.[2] Mr. Barnett appeals the following propositions of error:
1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;
2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;
3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;
4. Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;
5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;
6. Under the unique circumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;
7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.
FACTS
¶ 2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.
¶ 3 Appellant's mother came outside to confront Sutton, who was in fact the convicted rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Okmulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he "had something" for them.
[962] ¶ 4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant "dat n*gg*r's ova here" at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer McNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when McNac picked him up.
¶ 5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.
ANALYSIS
¶ 6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. An instruction on a theory of defense is required "when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case" of that defense. Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6, OUJI-CR(2d); Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 903-04. Proposition One is denied.
¶ 7 In Proposition Two, Appellant argues that the trial court erred in excluding certain evidence offered by the defense tending to prove the violent character of the victim. We review these rulings for abuse of discretion, and find none. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. Proposition Two requires no relief.
¶ 8 Proposition Three claims that prosecutorial misconduct denied Appellant a fair trial. Due to the lack of a timely objection to any of the challenged statements, Appellant has waived all but plain error. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920. This Court will reverse for prosecutorial misconduct where grossly improper and unwarranted argument affects a defendant's rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. The comments challenged on appeal were not improper. Warner v. State, 2006 OK CR 40, ¶ 179, 144 P.3d 838, 888; Hogan v. State, 2006 OK CR 19, ¶ 91, 139 P.3d 907, 936. Proposition Three is denied.
¶ 9 Appellant argues in Proposition Four that he was denied the effective assistance of counsel. Appellant also filed an application for evidentiary hearing on his Sixth Amendment claims pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18 (2011), App. Ineffective counsel claims must overcome a strong initial presumption that counsel rendered reasonable professional assistance, by showing: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. If Appellant demonstrates that counsel's representation was objectively unreasonable under prevailing professional norms, he must also show that he suffered prejudice, defined as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different Hancock, 2007 OK CR 9, ¶¶ 106-107, 155 P.3d 796, 821. To warrant an evidentiary hearing under Rule 3.11(B)(3)(b)(i), Appellant's application and supporting materials must set forth "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was [963] ineffective for failing to utilize or identify the complained-of evidence." Reviewing Appellant's application and his arguments, we find no evidentiary hearing is required and no relief is warranted. Proposition Four is without merit.
¶ 10 In Proposition Five, Appellant argues that his conviction for second degree felony murder violates the merger doctrine, or independent crime requirement, recognized by our case law in Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases. Although the State charged Appellant in Count 2 with first degree malice aforethought murder, the trial court also instructed the jury on the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm.[3] The jury acquitted Appellant of first degree murder, but convicted him of second degree murder in the commission of the underlying felony.[4] Counsel's failure to object to the second degree felony murder instruction at trial waived all but plain error. Eizember v. State, 2007 OK CR 29, ¶ 110, 164 P.3d 208, 236. We therefore consider whether Appellant's conviction of second degree murder in the commission of this underlying felony is plain error; that is, an error which goes "to the foundation of the case," or which takes from a defendant "a right which was essential to his defense." Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.
¶ 11 Under this Court's merger doctrine, or independent crime requirement, "[i]n order for the taking of human life in the commission of a felony to constitute murder, the precedent felony must constitute an independent crime not included within the resulting homicide." Sullinger v. State, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473. The merger doctrine is a historical feature of our case law, and is not based on any statutory or constitutional text. Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 589.[5] This Court in Quillen recently reaffirmed its adherence to the merger doctrine as it "has been applied in Oklahoma for many years," first being mentioned in Jewell v. Territory, 4 Okla. 53, 43 P. 1075 (Okla.1896), and "a part of Oklahoma's jurisprudence ever since." Quillen, 2007 OK CR 22, ¶ 3, 163 P.3d 587, 589.
¶ 12 In Quillen, the defendant was a drug addict who gave birth at the home of a friend. Believing that her baby was healthy, she took the baby home. The defendant also feared that child welfare officials would take the baby away from her at the hospital because of her cocaine use. Later that evening, the baby looked pale and his breathing seemed shallow. The defendant noticed blood in his diaper when she changed him. She called her grandmother for advice and then tied some string tightly around the baby's umbilical cord stump, and later fell asleep with the baby at her side. In the night, the baby bled to death through the umbilical cord, due to the defendant's failure to seek medical care. Id., 2007 OK CR 22, ¶ 5 n. 3, 163 P.3d at 590 n. 3.
¶ 13 The State charged the defendant with first degree child abuse murder. The trial court also instructed the jury on the lesser included offense of second degree murder, in the commission of the underlying felony of [964] child neglect.[6] The jury convicted the defendant of this lesser offense. Id., 2007 OK CR 22, ¶ 1, 163 P.3d at 589. The appellant in Quillen argued on appeal that this conviction violated the merger doctrine, because her commission of felony child neglect—failing to get medical care for her newborn child—was not a felony independent from the homicidal act. The State argued that the plain language of the second degree murder statute authorized a conviction where the killing of a human being results from the commission of any felony other than the unlawful acts enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶¶ 3-4, 163 P.3d at 589. The State reasoned that this Court's application of the merger doctrine to void a conviction authorized by the plain language of the statute would defeat legislative intent, and urged the Court to abandon the merger doctrine. Id.
¶ 14 This Court in Quillen rejected the State's arguments, finding that the merger doctrine was "not based on statutory language" but derived from policy considerations:
[W]ithout the merger doctrine, any person who commits a felony, other than one enumerated for First Degree Felony Murder, from which a death that is not excusable or justified results, can be prosecuted for Second Degree Felony Murder. Although the State argues that such concerns are no longer viable, we find this argument unpersuasive. We further disagree with the State's argument that the merger doctrine is contra to clear legislative intent. The fact that this Court has recognized the merger doctrine for over one hundred years without legislative intervention lends credibility to the conclusion that this Court's application of the merger doctrine is not at odds with legislative intent.
Id., 2007 OK CR 22, ¶ 4, 163 P.3d at 589-90 (citing Tarter v. State, 1961 OK CR 18, ¶¶ 40-44, 359 P.2d 596, 602). Based on the facts, the Court found that the merger doctrine required reversal of the murder conviction:
[T]he felony charge upon which Appellant's Second Degree Felony Murder conviction is predicated, Child Neglect, was not separate from the act which caused the death. Therefore, we find that the underlying felony merged into the homicide and could not be used to sustain the Second Degree Felony Murder conviction.
Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 590. The Court also held that the appropriate remedy was to modify appellant's conviction to the underlying felony of child neglect. In this regard, the Court reasoned:
In finding the Appellant guilty of Second Degree Felony Murder the jury necessarily found the evidence sufficient to prove the felony of Child Neglect beyond a reasonable doubt. Therefore, we modify Appellant's sentence to this lesser crime and modify the sentence to fifteen years imprisonment.
Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 589-90.
¶ 15 Appellant argues persuasively that the predicate felony of using a vehicle to facilitate the intentional discharge of a firearm is not independent from the homicidal act of shooting Vernon Sutton, and that his conviction therefore violates the merger doctrine set forth in Quillen. This case sharply presents the question of whether the merger doctrine remains an appropriate limitation of the statutory definition of second degree felony murder. After careful consideration, the Court abandons this judicially created limitation on second degree felony murder and overrules Quillen.
¶ 16 Since our decision in Quillen, the Court has continued its deliberations about the nature and purpose of the merger doctrine. Two judges dissented in Quillen. Judge Lumpkin's dissent questioned the need for the Court's modern application of the historic merger doctrine. He noted that at time of Jewell v. Territory in 1896, murder was not separated by degrees in the territorial statute, and felony murder—which carried a sentence of death or life imprisonment—included all felonies, as it had at common law.[7] The merger doctrine as we know [965] it today is found in the territorial supreme court's syllabus in Jewell, appended as a clause following a statement of the statutory felony murder rule:
Homicide is murder, under the third subdivision [of the murder statute], "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself
Jewell, 4 Okla. 53, 43 P. 1075 (syllabus)(emphasis added). Judge Lumpkin observed in Quillen that the "source of the language added to the statutory felony murder provision, and the language relied upon by this Court for years, is not clearly discernable" from the Jewell opinion, and the additional clause "was nothing more than a judicial attempt to legislate an amendment to a statute passed by the Legislature." Quillen, 2007 OK CR 22, 163 P.3d at 591 (Lumpkin, P.J., concurring in part and dissenting in part). Moreover, though the territorial supreme court in Jewell certainly mentioned the merger doctrine, the facts of that case did not call for its application. Thus, the doctrine's inaugural appearance on our jurisprudential scene was in dicta. Id.
¶ 17 Judge Lumpkin argued that the merger rule set out in Jewell and followed in later cases[8] originally developed in response to the draconian scope of the common law felony murder rule and similar statutes, like the territorial felony murder statute in Jewell. Those crimes were invariably capital, and without a merger doctrine, the commission of any felony that resulted in death, including circumstances that might ordinarily be manslaughter, would be subsumed in the broad statutory definition of murder and carry a possible death sentence. The merger doctrine was a humane, judicially crafted policy designed "to limit the application of firstdegree felony-murder when the Legislature had failed to do so." Quillen, 2007 OK CR 22, ¶¶ 5-6, 163 P.3d at 591-92 (Lumpkin, P.J., concurring in part and dissenting in part).
¶ 18 Evidence for this historical understanding of the merger doctrine abounds. In Tarter v. State, 1961 OK CR 18, ¶¶ 41-44, 359 P.2d 596, 601, the Court's discussion gave some background on the merger doctrine without directly applying it. The defendant in Tarter was convicted of murder. On appeal he argued the trial court should have instructed the jury on the lesser offense of manslaughter. Id., 1961 OK CR 18, ¶¶ 1, 29, 359 P.2d at 600. The State responded that because the defendant killed the victim in the commission of an assault with a deadly weapon, he was at least guilty of felony murder, and no manslaughter instruction was required. Id., 1961 OK CR 18, ¶ 40, 359 P.2d at 601. The Court rejected this suggestion out of hand, citing the syllabus from Jewell, and its statement that the defendant must commit "some felony as defined by statute other than that of the killing itself." Id., 1961 OK CR 18, ¶ 41, 359 P.2d at 601-02.
¶ 19 The Court in Tarter also cited cases from Kansas and New York. In the New York case, People v. Wagner, 245 N.Y. 143, 156 N.E. 644 (1927), the defendant was convicted of felony murder based on the commission of a felonious assault on the victim that resulted in the death. The Court of Appeals of New York found this conviction was in error:
We think it self-evident that the trial judge committed error when he charged that the killing of Peter Basto may have been effected while the defendant was engaged in a felonious assault upon him, and, basing their conclusion thereupon, might determine that the defendant was guilty of murder [966] in the first degree. If this were not error, then every intentional killing, by means of a dangerous weapon, regardless of deliberation and premeditation, would constitute the crime of murder in the first degree, since every such killing must be preceded by the direction of such a weapon against the body of the person killed, which in itself would constitute a felonious assault. The law is clear, however, that the precedent felony must constitute an independent crime not included within the resulting homicide.[9]
Id. at 646 (citing People v. Huter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Spohr, 206 N.Y. 516, 100 N.E. 444 (1912)) (emphasis added). The Kansas case, State v. Fisher, 120 Kan. 226, 243 P. 291 (1926), also shows how the merger doctrine narrowed the definitional scope of the common law felony murder rule and statutes that followed it:
It is the contention of the state that if murder is committed in the perpetration or the attempt to perpetrate any other felony it is murder in the first degree; hence, that if the boy, John Michael Foley, met his death at the hands of defendant while defendant was committing an assault with a deadly weapon, under such circumstances that it amounted to a felony under any statute pertaining thereto, the offense is murder in the first degree. This contention cannot be sustained. The effect of it would be to make any homicide, not excusable or justified, which, by our statute, is defined to be manslaughter in any of the degrees or murder in the second degree, to constitute murder in the first degree. In other words, there could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree.
Id. at 293; see also, T. Corcoran, Felony Murder in New York, 6 Fordham L.Rev. 43, 48 (1937)(arguing that "[m]urder in the second degree and some cases of manslaughter in the first and second degrees involve felonious assault on the person killed and yet if these assaults were not held to be merged in the homicide they would all be murder in the first degree," and noting that "[i]t is manifest that the doctrine of felony murder is in need of some reformation in New York").
¶ 20 Judge Lumpkin maintained in Quillen that the policy concerns justifying the merger doctrine in older cases like Wagner and Fisher—i.e., that every felonious assault resulting in death could be punished as murder without the necessity of proving malice—are no longer present in Oklahoma law.
First-degree felony murder is now limited to a handful of enumerated felonies. Thus, the English common law policy decisions to escape the onerous penalties imposed on felony convictions are no longer viable. In addition, a plain reading and literal application of § 701.8(2) also will not subsume other forms of homicide. In addition to second-degree felony murder, a homicide is second-degree murder when committed by an act which is imminently dangerous to another person and evincing a depraved mind, but without any premeditated design to affect the death of any individual. Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime. Construing the second-degree murder statute together with the first-degree manslaughter statute, it is clear the Legislature intended for any felony, as defined by statute, to serve as the basis for a second-degree felony murder conviction unless the defendant was acting while in the heat of passion or in an unnecessary attempt to resist a crime. Further, second degree manslaughter is committed by a person who acts negligently, but does not commit a felony. Therefore, applying § 701.8 to any felony, not listed in § 701.7(B), does not subsume second-degree manslaughter.
[967] Quillen, 2007 OK CR 22, ¶ 9 n. 4, 163 P.3d at 593 n. 4 (Lumpkin, P.J., concurring in part and dissenting in part)(internal citations omitted).
¶ 21 Judge Lumpkin concluded that the merger doctrine is a legal remnant that now frustrates, rather than advances, the proper enforcement of the statutes on felony murder.
The Oklahoma Legislature has clearly enunciated its intent and set out the criteria for both first and second-degree felony murder ... Section 701.8(2) is recognition by the Legislature that a homicide can occur during the commission of felonies other than those specifically enumerated under the first-degree felony murder statute and under circumstances not warranting a first-degree murder charge Appellant's failure to seek medical attention for her son, which was inherently and potentially dangerous to her son's life in light of the facts and circumstances surrounding both the predicate felony and the homicide, brings this case within the historical definition of second degree felony murder [C]riminal liability for the baby's murder based upon Appellant's willful failure to seek medical attention (commission of the felony of child neglect) is an appropriate application of the second-degree felony murder statute.
Quillen, 2007 OK CR 22, ¶¶ 9-13, 163 P.3d at 593 (Lumpkin, P.J., concurring in part and dissenting in part)(emphasis added).
¶ 22 In my Quillen dissent, I argued that the Legislature "clearly authorized a conviction for second-degree murder in a case like this, where a homicide is `perpetrated by a person engaged in the commission of any felony'" not enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶ 3, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part). In addition to the merger doctrine, the Court had already placed significant limitations on the plain language of the second degree felony murder statute, including the requirements of "a nexus between the underlying felony and the victim's death," and that the underlying felony "must be inherently or potentially dangerous to human life." Id. (quoting Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118).
¶ 23 Given these limitations, I found the Court's application of the merger doctrine unnecessary, and the unusual remedy of modifying the murder conviction to the underlying felony inconsistent with the merger theory itself:
Despite the narrow purpose to which the merger rule is directed, the Court's decisions in this area now poise it to void a felony murder conviction whenever there is either too much criminal nexus or not enough: too little relationship between the felony and the killing and liability will not attach; too direct a relationship and the lesser and greater offenses "merge" to the same effect. To these judicial complications of a seemingly straightforward legislative policy, today's opinion adds a nonsequitur: the lesser predicate crime first merges with the more serious act of killing and then (astonishingly) re-emerges to serve as the offense of conviction. The criminal homicide into which this lesser crime merged is then set at naught; its prosecution is abated forever. Previous findings of a merger violation resulted in reversal and remand for a new trial on a proper homicide charge. The remedy imposed here is unprecedented.
Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part) (citing Massie, 1976 OK CR 174, 553 P.2d 186; Tucker, 1984 OK CR 36, 675 P.2d 459; and Sullinger, 1984 OK CR 44, 675 P.2d 472) (emphasis added).
¶ 24 Today the Court finds that what began as an early judicial limitation on the harshness of felony murder at common law could readily usurp the modern Legislature's constitutional authority to reasonably define the crime of felony murder.
The truth is that in this jurisdiction, no act is a crime unless made so by statute, and where the crime is defined by statute such definition must be relied on rather than the common law or some other definition of the act so classified as a crime.
Traxler v. State, 96 Okl.Cr. 231, 243, 251 P.2d 815, 829 (1953)(emphasis added). In interpreting [968] and applying the criminal statutes, our purpose is to ascertain the intent of the Legislature, State v. District Court of Oklahoma County, 2007 OK CR 3, ¶ 11, 154 P.3d 84, 86, as evidenced primarily "in the ordinary meaning of the words of the statute construed in view of the connection in which they are used, and of the evil to be remedied." Traxler, 96 Okl.Cr. at 244, 251 P.2d at 829.
¶ 25 The Legislature has defined second degree felony murder as the killing of a human being perpetrated by a person "engaged in the commission of any felony other than" the enumerated felonies in the first degree felony murder statute. 21 O.S.2001, § 701.8(2). The term "any" is defined by Webster's Third New International Dictionary 97(Unabridged ed., 1986) as:
1b: one, no matter what one: EVERY— used as a function word esp. in assertions or denials to indicate one that is selected without restriction or limitation of choice; 2b: ALL—used as a function word to indicate the maximum or whole of a number or quantity.
We therefore interpret the phrase "any felony" in section 7018(2) to mean every felony other than those enumerated in the first degree felony murder statute. See also, State v. Williams, 24 S.W.3d 101, 115 (Mo.App.2000)(construing legislature's use of the phrase "any felony" as "all-comprehensive" in a felony murder statute).
¶ 26 In State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966)(en banc ),[10] the Supreme Court of Washington rejected the common law merger doctrine as a limitation on the statutory definition of second degree felony murder. In Harris, the defendant assaulted the victim, knocking her purse from her hand. When a .22 revolver tumbled from her purse, the defendant picked up the pistol and said, "I will kill all you sons of bitches." He then fired the pistol, fatally wounding the victim. In a non-jury trial, the court found no intent to kill the victim, but convicted the defendant of second degree felony murder, ruling that the defendant killed the victim in the commission of assault with a dangerous weapon. Id. at 663.
¶ 27 The defendant challenged the conviction on appeal, urging the supreme court to "adopt the New York `merger rule,' which is that the precedent felony in a felony murder must constitute a crime not included in and independent of the homicide." Id.; see also Wagner, 156 N.E. at 646 (N.Y.1927), supra. Washington's felony murder statute, like Oklahoma's, distinguished between the crimes of first and second degree felony murder. The statute then in effect provided that the killing of a human being is murder in the second degree when "perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated" in the first degree felony murder statute. Id. (quoting Wash. Rev.Code § 9.48.040(2)).
¶ 28 The supreme court in Harris acknowledged that the harshness of New York's felony murder rule might justify the application of a merger doctrine, but declined to impose the merger limitation on Washington's murder statute. The Court reasoned that the legislative classification of felony murder and other criminal homicides by degrees with distinct factual elements rendered a merger doctrine unnecessary:
Our legislature ... has made its own distinction in the matter of homicides occurring while committing, attempting to commit, or in withdrawing from the scene of certain felonies. If the felony be robbery, rape, burglary, larceny or arson in the first degree, the killing, though without design to effect death, is murder in the first degree. If the felony be other than the ones just named, the killing is murder in the second degree. A homicide not coming within the first and second-degree murder statutes, and being neither excusable nor justifiable, is manslaughter.[11]
[969] The legislature has also specifically designated certain killings as manslaughter, i.e., killing unborn quick child;[12] killing by a vicious animal;[13] killing by overloading passenger vessel; killing by reckless operation of steamboat or engine; killing by intoxicated physician while treating a patient;[14] killing as result of unlawful keeping of explosives.[15] It has also added to our lexicon the crime of negligent homicide by means of a motor vehicle.[16]
In light of the distinctions made in our own statutes, we see no reason why we should adopt the New York `merger rule,' i.e., that the precedent felony, if an assault on the person killed, is merged in the resulting homicide....
In Washington, the felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must not be separate, distinct, and independent from it. Our legislature further avoided the merger problem by specifically designating the felonies which result in a first or seconddegree felony murder charge. Since an assault felony comes within the ambit of second-degree murder, the state must prove intent and premeditation in order to secure a first-degree murder conviction. Thus the rationale behind the New York merger rule is not applicable in Washington.
Id. at 664-65 (internal citations omitted). We find the reasoning of Harris reflective of the situation in Oklahoma, and conclude that the current legislative classification of criminal homicides by their respective degrees, defined by distinct factual elements, obviates the need for the merger doctrine.
¶ 29 The case before us today well illustrates the objectionable effects of the merger doctrine when applied to the facts. Riding from a protected position in a passing vehicle, Appellant repeatedly fired on an unsuspecting group of people standing near the street and killed a man. This fatal attack was neither excusable nor justifiable, and therefore it was a criminal homicide, either murder or manslaughter, under Oklahoma law. 21 O.S.2001, § 692 (homicide is either murder; manslaughter; excusable homicide, or justifiable homicide). The jury at trial clearly rejected the charge of malice aforethought murder. However, when the jury found Appellant guilty of second degree felony murder, it necessarily concluded, beyond a reasonable doubt, that Appellant feloniously used a vehicle to facilitate the intentional discharge of a firearm; that he did so "in conscious disregard for the safety of any other person or persons"; and that he caused the death of a human being as a result.
¶ 30 Application of the merger doctrine in this case, by reversing Appellant's second degree murder conviction and modifying his conviction to the underlying felony, would be a miscarriage of justice. The mens rea associated with this type of drive-by shooting is either the malice aforethought of first degree murder, i.e., "that deliberate intention unlawfully to take away the life of a human being," 21 O.S.Supp.2006, § 701.7(A), which can be "inferred from the fact of killing," and "may be formed instantly" before the fatal act, 21 O.S.2001, §§ 702, 703; or the "depraved mind" emblematic of second degree murder, i.e., perpetrating an imminently dangerous act, "regardless of human life, although without any premeditated design to effect the death of any particular individual." 21 O.S. 2001, § 701.8(1). As a matter of history and policy, it is entirely reasonable for the Legislature to punish the killing of a person during the commission of this type of dangerous [970] felony as murder in the first or second degree.
¶ 31 The felony crimes of assault and battery, child neglect, caretaker abuse and neglect, operation of a motor vehicle while intoxicated, unlawful possession and use of firearms and explosives, using a vehicle to facilitate intentional discharge of a firearm, and a host of other felonies, can have deadly consequences. The Legislature is well within reason to define killings during the commission of these dangerous felonies as murder, even when the felony is not "independent" of the act or acts resulting in death. Indeed, it is when such felonies destroy life that they are most deserving of the infamy and punishment of murder. Continued adherence to the merger doctrine, and the remedy as established in Quillen, would, in many instances, nullify the proper exercise of the Legislature's power to define and punish murder. We will not follow that course.
¶ 32 Appellant killed a human being in the commission of using a vehicle to facilitate intentional discharge of a firearm. He is, at the very least, guilty of second degree murder under the plain language of section 701.8(2) of Title 21. His conviction for that offense is authorized by statute, and no plain error occurred. To the extent that Quillen, and earlier cases recognizing the merger doctrine as a limitation on the statutory definition of second degree felony murder, including Massie, 1976 OK CR 174, ¶ 16, 553 P.2d 186, 191, Tucker, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461, Sullinger, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473, and State v. McCann, 1995 OK CR 70, ¶ 3, 907 P.2d 239, 240, are inconsistent with our ruling today, those cases are overruled. Proposition Five is denied.
¶ 33 In Proposition Six, Appellant argues that his sentence is excessive. We find that the sentence of twenty-three (23) years imprisonment does not shock the conscience of the Court and requires no relief. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.
¶ 34 Appellant in Proposition Seven argues that reversal or modification is required due to cumulative error. As we find no error, there is no accumulation of error. Proposition Seven is denied. Smith v. State, 2007 OK CR 16, ¶ 81, 157 P.3d 1155, 1179.
DECISION
The Judgment and Sentence of the District Court of Okmulgee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
A. JOHNSON, P.J. and C. JOHNSON, J. specially concur.
LUMPKIN, J. and SMITH, J. concur.
A. JOHNSON, Presiding Judge, SPECIALLY CONCURRING.
¶ 1 I agree with the decision to abandon the merger doctrine as a limitation to second degree felony murder. The purpose of the merger limitation—to bring fairness to the potential harshness of the felony murder rule—is a sound one. A fair and consistent application of this particular limitation, however, is difficult. In Quillen v. State, 2007 OK CR 22, 163 P.3d 587, this Court extended the application of the merger doctrine to the non-assaultive crime of felony child neglect in an apparent attempt to achieve a fair and appropriate balance between moral culpability and criminal liability in that case. This broad application of the merger limitation and the difficulty of its application in Quillen lead me to reexamine the continued validity of the merger limitation in this case. There may be future cases that test the wisdom of this decision. Nevertheless, I am confident that this Court's expressed commitment to maintaining the distinction between the different degrees and forms of murder, manslaughter and other homicide crimes will resolve any issues of unfair over-charging and undeserved convictions and sentences.
C. JOHNSON, Judge, SPECIALLY CONCURRING.
¶ 1 It is with some hesitation that I concur in the Court's decision in this case to abandon the merger doctrine. The merger doctrine operates to preserve the different degrees of homicide crimes. I understand the [971] position of the majority regarding the historical context in which the merger doctrine developed, but I do not agree that the problem the merger doctrine seeks to remedy has been eliminated by the legislative classification of differing degrees of homicide. Second Degree Felony Murder allows a person who commits any felony other than one enumerated for First Degree Felony Murder, from which a death results that is not excusable or justified, to be prosecuted for Second Degree Felony Murder. The prosecutors make the determination of which crime to charge and the abandonment of the merger doctrine allows them, under these circumstances, unrestrained discretion to charge the greater offense of Second Degree Felony Murder to the exclusion of lesser degrees of homicide. Thus, in the absence of the merger doctrine, it will be even more important that district courts give instructions on lesser forms of homicide where such instructions are supported by the evidence as is required by Shrum v. State, 1999 OK CR 41, 991 P.2d 1032.
[1] Appellant was originally charged with Count 1, conspiracy to commit murder, and Count 2, murder in the first degree. The jury acquitted Appellant of these charges and found him guilty of the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm, in violation of 21 O.S.Supp.2007, § 652(B).
[2] Appellant must serve 85% of the sentence, pursuant to 21 O.S.Supp.2007, § 13.1(2).
[3] Title 21, O.S.Supp.2007, section 652(B) defines the elements of this offense:
Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons, including an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than two (2) years nor exceeding life.
[4] Homicide is second degree murder "[w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in [21 O.S.Supp.2006, § 701.7(B)]," i.e., the first degree felony murder statute. (emphasis added). 21 O.S.2001, § 701.8(2).
[5] Courts "have generally declined to hold that the merger doctrine implicates any principle of constitutional law." State v. Godsey, 60 S.W.3d 759, 774 (Tenn.2001). The merger doctrine we consider today is entirely separate from the principle of merger of offenses under the constitutional prohibition against multiple punishments for the "same offense" under the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Perry v. State, 1993 OK CR 5, ¶ 7, 853 P.2d 198, 200-01 (convictions for both felony murder and underlying felony violate prohibition against double jeopardy).
[6] 21 O.S.Supp.2010, § 843.5(C).
[7] 4 W. Blackstone, Commentaries on the Laws of England 200-01 (1st. ed. 1769)("Also in many cases where no malice is expressed the law will imply it: ... And if one intends to do another felony, and undesignedly kills a man, this is also murder").
[8] The merger doctrine has been directly applied in only a few cases in more than a century. E.g., Massie v. State, 1976 OK CR 174, 553 P.2d 186, and Tucker v. State, 1984 OK CR 36, 675 P.2d 459 (both holding second degree murder convictions for killing in the commission of beating or injuring child violated the merger doctrine, as the felonious acts were not independent of the homicides); and Sullinger, 1984 OK CR 44, 675 P.2d 472 (holding second degree felony murder conviction violated the merger doctrine, where underlying felony of aggravated assault and battery on corrections officer was not independent from the acts causing death).
[9] The Court in Tarter noted that the Oklahoma murder statute in effect at the time (and since Jewell v. Territory) had been copied "almost verbatim" from the New York statute. Both of these statutes at the time defined the killing of a human being during the commission of any felony as an offense of capital (in New York, "first degree") murder. Tarter, 1961 OK CR 18, ¶ 43, 359 P.2d at 602.
[10] The Supreme Court of Washington's opinion in Harris was later abrogated by statutory amendment as recognized by In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981, 983, and that abrogation was later reversed by statutory amendment as recognized by In re Personal Restraint of Alvarez, 127 Wash.App. 1050, 2005 WL 1300720 (Wash.App.2005)(not in P.3d).
[11] Compare 21 O.S.2001, § 711 (defining elements of manslaughter in the first degree).
[12] Compare 21 O.S.2001, § 714 (procuring destruction of unborn quick child as first degree manslaughter).
[13] Compare 21 O.S.2001, § 717 (owner of mischievous animal that kills another is guilty of manslaughter in the second degree).
[14] Compare 21 O.S.2001, § 712 (killing of patient by intoxicated physician is manslaughter in the first degree).
[15] Compare 21 O.S.2001, § 1368 (unlawful possession of explosives a felony); 21 O.S.Supp. 2010, § 1767.1 (use or threatened use of explosives).
[16] Compare 47 O.S.Supp.2005, § 11-903 (negligent homicide involving reckless operation of vehicle).
7.2.6.3.3.3.7 People v. Washington 7.2.6.3.3.3.7 People v. Washington
v.
James Edwards WASHINGTON, Defendant and Appellant.
Rehearing Denied June 23, 1965.
[44 Cal.Rptr. 444] [402 P.2d 132] [62 Cal.2d 779] Erling J. Hovden, Public Defender, Paul G. Breckenridge, Jr., and James L. McCormick, Deputy Public Defenders, for defendant and appellant.
Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.
TRAYNOR, Chief Justice.
Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen.Code, §§ 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen.Code, §§ 187, 189, 190, 190.1.) [1] He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.
Shortly before 10 p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.
The Attorney General, relying on People v. Harrison, 176 [62 Cal.2d 780] Cal.App.2d 330, 1 Cal.Rptr. 414, contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, and People v. Podolski, 332 Mich. 508, 52 N.W. 2d 201, which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.
Defendant would distinguish the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Austin, 370 Mich. 12, 120 N.W.2d 766; see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.) A distinction based on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted [44 Cal.Rptr. 445] [402 P.2d 133] of murder for the killing of any person by another who is resisting the robbery.
'Murder is the unlawful killing of a human being, with malice aforethought.' (Pen.Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475, 261 P.2d 1 (concurring opinion).) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal. 2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: 'All murder * * * committed in the perpetration or attempt to perpetrate * * * robbery * * * is murder of the first degree.' Thus, even though section 189 [62 Cal.2d 781] speaks only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868, 236 P.2d 570; People v. Boss, 210 Cal. 245, 249, 290 P. 881.)
When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.
The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent.Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is not served by punishing them for killings committed by their victims.
It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.' (Holmes, The Common Law, p. 58.)
A defendant need not do the killing himself, however, [62 Cal.2d 782] to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249, 290 P. 881; People v. Kauffman, 152 Cal. 331, 334, 92 P. 861.) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, [44 Cal.Rptr. 446] [402 P.2d 134] 38 So. 182, 2 L.R.A.,N.S., 897; see also Wilson v. State, 188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)
Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 (concurring opinion)), and it is unnecessary to imply malice by invoking the felony-murder doctrine. [2] To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another. (See Hart and Honore , Causation in the Law, pp. 296-299; Hall, Criminal Law, 2d ed., pp. 270-281; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)
To invoke the felony-murder doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, however, [62 Cal.2d 783] the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, overruled by Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; see People v. Corkery, 134 Cal.App. 294, 25 P.2d 257.)
The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e. g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953), 3 Stephen, History of the Criminal Law of England 57-58; 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) [3] Although it is the law in this state (Pen.Code, § 189), it should not be extended beyond any rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. (Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A., N.S., 719; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; See also People v. Ferlin, 203 Cal. 587, 597, 265 P. 230.) Language in People v. Harrison, 176 Cal.App.2d 330, 1 Cal. [44 Cal.Rptr. 447] [402 P.2d 135] Rptr. 414, inconsistent with this holding, is disapproved.
On his appeal from the robbery conviction, defendant contends that he did not participate in the robbery. He testified that on the evening of the robbery he was with Ball and a man named Johnson. He did not know that they intended to commit robbery. He was 'pretty drunk' at the time and fell asleep in the automobile. When he awoke the automobile was parked near Carpenter's gasoline station, [62 Cal.2d 784] and Ball and Johnson were absent. He left the automobile to look for them. As he approached the station, Johnson ran from the vault. Carpenter shot just as Johnson ducked around a corner and dropped the moneybag. Carpenter's bullet hit defendant who fell wounded near the bag that Johnson had dropped.
Defendant's testimony was corroborated by the testimony of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant's trial. Johnson testified that he was the man who ran from the vault with the moneybag. Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault. The evidence is therefore sufficient to support defendant's conviction of robbery.
Defendant contends, however, that the trial court on its own motion should have instructed the jury to view Carpenter's testimony with caution on the ground that it tended to be self-serving because Carpenter 'was relieved of any criminal or civil responsibility for the shootings by implicating (defendant) and the deceased in an attempted robbery.' All testimony that favors a witness' real or imagined self-interest, however, does not require a cautionary instruction. The testimony of a robbery victim does not come from a 'tainted source' as does the testimony of an accomplice (People v. Robinson, 43 Cal.2d 132, 141, 271 P.2d 865; People v. Wallin, 32 Cal.2d 803, 808, 197 P.2d 734; Code Civ.Proc., § 2061, subd. 4), nor is his testimony like that of a complaining witness in a sex offense, which may be motivated by malice and beyond effective contradiction because it relates to matters that ordinarily take place in secrecy. (People v. Putnam, 20 Cal.2d 885, 891-892, 129 P.2d 367.) In the present case, there was no such danger of perjury, and defendant had a fair opportunity to controvert the witness' testimony. The court properly instructed the jury that they were the exclusive judges of the credibility of the witnesses and informed them that they might consider such matters as the relation of the witnesses to the case and their interest therein. Although the court could have made 'such comment on the evidence and the testimony and credibility of any witness as in its opinion (was) necessary for the proper determination of the case * * *' (Pen.Code, § 1127), it was not required to give a cautionary instruction.
The judgment is affirmed as to defendant's conviction of [62 Cal.2d 785] first degree robbery and reversed as to his conviction of first degree murder.
PETERS, TOBRINER, PEEK and *WHITE, JJ., concur.
BURKE, Justice (dissenting).
I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:
'Henceforth in committing certain cirmes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoot first.'
[44 Cal.Rptr. 448] [402 P.2d 136] Obviously this advance judicial absolution removes one of the most meaningful deterrents to the commission of armed felonies.
In the present case defendant's accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414 (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened fire, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers 'initiated' the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim or someone defending the victim seizes an opportunity to shoot first when confronted by robbers with a deadly weapon (real or simulated), any 'gun battle' is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns, [62 Cal.2d 786] and whether it is an innocent person or an accomplice who dies.
Section 187 of the Penal Code declares that 'Murder is the unlawful [1] killing of a human being, with malice aforethought.' Section 188 states that 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away * * * life * * *. It is implied * * * when the circumstances attending the killing show an abandoned and malignant heart.'
Section 189 specifies that 'All murder which is perpetrated by * * * any * * * kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate * * * robbery (or five other named felonies [2]), is murder of the first degree * * *.'
So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now Pen.Code, § 189.)
In People v. Milton (1904) 145 Cal. 169, 171-172, 78 P. 549, 550, the court pointed out that a killing is unlawful which is 'perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime' the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.
This principle has been repeatedly upheld by this court (see People v. Raber (1914) 168 Cal. 316, 318, 143 P. 317; People v. Witt (1915) 170 Cal. 104, 107-108, 148, P. 928; People v. Denman (1918) 179 Cal. 497, 498-499, 177 P. 461; People v. Boss (1930) 210 Cal. 245, 249, 290 P. 881; People v. Valentine (1946) 28 Cal.2d 121, 135, 169 P.2d 1; People v. Coefield (1951) 37 Cal.2d 865, 868, 236 P.2d 570), and is expressly [44 Cal.Rptr. 449] [402 P.2d 137] recognized by the majority in the instant case with the declaration (p. 445) that 'inadvertent or accidental [62 Cal.2d 787] killings are first degree murders when committed by felons in the perpetration of robbery.' (Italics added.) The majority further expressly recognize the rule (p. 445) that 'A defendant need not do the killing himself * * * to be guilty of murder. * * * All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills' in the perpetration of the robbery. (See People v. Boss, supra.)
Despite these declared principles long established and effective in their deterrence of crimes of violence the majority now announce (p. 445) that 'When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen. * * * Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. * * * To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.' (Italics added.)
But section 189 carries not the least suggestion of a requirement that the killing must take place to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule which they purport to recognize that an accidental and unintentional killing falls within the section? How can it be said that such a killing takes place to perpetrate a robbery?
Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172, 78 P. 549.) This truism was confirmed in People v. Bostic (1914) 197 Cal. 754, 761, 141 P. 380, 383, wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, 'for it must be apparent that without reference to the robbery such a murder would be a 'willful, deliberate, and premeditated killing," and hence, first degree murder; further, said the court, 'The moment (defendant) entered that (train) car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any [62 Cal.2d 788] killing in the perpetration of the robbery, or in the attempt * * * a murder of the first degree. In such cases the law does not measure the delicate scruples of the robber with reference to shooting his victim.' Again in People v. Coefield, supra (1951) 37 Cal.2d 865, 868(2), 236 P.2d 570, 572 the court took note of the rule 'that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime.' This is also the approach of the general felony-murder doctrine, a doctrine which (the majority confirm) ascribes malice aforethought where the killing is in the perpetration of an inherently dangerous felony. As expressed in People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, 907, cited by the majority, 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder. (Citations.)' (Italics added.)
A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon [44 Cal.Rptr. 450] [402 P.2d 138] and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintentional. [3] The majority suggest (p. 446), 'it is unnecessary to imply malice by invoking the felony-murder doctrine' where the robber 'initiates' a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (p. 445) that 'When a killing is not committed by a robber * * * but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in * * * robbery.' (Italics added.) Later they state (p. 446) that 'Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill * * * and it is unnecessary to imply malice by invoking the felony-murder doctrine.' (Italics added.)
[62 Cal.2d 789] But malice aforethought is an essential element of murder. (Pen.Code, § 187.) If it is not attributable to the robber when a killing is 'committed by' his victim rather than by himself in a gun battle initiated by the robber, is the essential malice express or is it to be implied under some doctrine other than the felony-murder rule? Do the majority imply the malice of the abandoned and malignant heart (Pen.Code, § 188) only if the robber shoots first, but not if he merely creates the forseeable risk that 'the victim will resist and kill'? And this despite the fact that, as the majority further affirm (p. 445), 'the robbery might therefore be regarded as a proximate cause of the killing'?
Even if, as the majority suggest (p. 445), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a case in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber 'initiated' the criminal plan, he 'initiated' it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he 'initiated' any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been 'committed' by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330, 1 Cal.Rptr. 414), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of 'rational function that it is designed to serve' in the phrasing of the majority (p. 445).
Extreme examples may be imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority (p. 445), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or [44 Cal.Rptr. 451] [402 P.2d 139] others, [62 Cal.2d 790] and the awesome penalties which attach under the felony-murder law.
I agree with the majority (p. 445) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (p. 445), a 'killing was a risk reasonably to be foreseen. * * * In every robbery there is a possibility that the victim will resist and kill.' As declared in People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, 'The statute (Pen.Code, § 189) was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.' Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a 'risk and 'a possibility that the victim will resist and kill,' and which 'might therefore be regarded as a proximate cause of the killing' should nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim's gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.
But, say the majority, 'The robber has little control over such a killing once the robbery is undertaken,' and 'To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce.' (p. 445) A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it kills does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various 'controls over' a possible killing from his victim's bullet 'once the robbery is undertaken.' The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested which would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, while that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to 'discriminate between robbers * * * solely on the basis of the response by others that the robber's conduct happened to induce'?
[62 Cal.2d 791] The robber's conduct which froms the basis of his criminal responsibility is the undertaking of the armed felony, in which a 'killing was a risk reasonably to be foreseen' including the 'possibility that the victim will resist and kill.' If that risk becomes reality and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree calling for that the knowledge that this awesome, that tthe knowledge that this awesome, sobering, terrifying responsibility of one contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial courts.
I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.
McCOMB, J., concurs.
Rehearing denied; McCOMB and BURKE, JJ., dissenting, MOSK, J., not participating.
---------------
[1] Defendant's appeal from the nonappealable order denying a new trial is dismissed. (Pen.Code, § 1237, subd. 2.)
[2] One scholar has commented that 'People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rep. 414 (1959), is probably not, strictly speaking, a felony-murder case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant's act and the victim's death, and approach which is possible quite independent of the felony-murder rule.' (Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)
[3] The felony-murder rule has been abolished in England (English Homicide Act, § 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to a rebuttable presumption of malice by the Model Penal Code. (Model Pen.Code (Tent. Draft No. 9, May 8, 1959) § 201.2.)
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
[1] I. e., not excusable (§ 195) or justifiable (§§ 196, 197).
[2] I. e., arson, rape, burglary, mayhem, or any act punishable under section 288 (lewd or lascivious acts against children).
[3] It should be noted that the doctrine of prosimate causation has not been confined to civil cases. In People v. Monk (1961) 56 Cal.2d 288, 296, 14 Cal.Rptr. 633, 363 P.2d 865, for example, the defendant made threats of serious bodily harm to a person whom he had kidnaped for purposes of robbery, and the threats caused her to jump from an automobile and receive injuries. This court held that the doctrine of proximate causation was applicable, that the victim had suffered 'bodily harm' within the meaning of Penal Code section 209, and that the penalty of death was proper.
7.2.6.3.4 III.D. The Death Penalty 7.2.6.3.4 III.D. The Death Penalty
Capital punishment has driven the evolution of homicide law in the United States for centuries. Throughout that evolution, questions of fairness and arbitrariness have recurred. Because the death penalty was originally mandatory for murder, states began differentiating between first- and second-degree murder, limiting capital punishment only to the former, more blameworthy crime. As capital punishment gradually became more discretionary, the opposite concern arose: that it would be imposed unevenly and disproportionately to certain defendants, especially minorities. At one point, the Supreme Court suspended the capital punishment system altogether in Furman v. Georgia. Today, many capital punishment systems attempt to straddle the line: allowing discretion, but not unguided discretion. In some jurisdictions the death penalty has been eliminated. In others, it has been cabined to only the most heinous murders. Ironically, the growing sophistication of capital punishment systems that developed as a response to Supreme Court nullification of death penalty laws has led to a resurgence of executions. As you read these cases, consider why the death penalty has driven such changes in our criminal adjudication system, and what concerns courts have raised about the application of capital punishment. Have reforms reinstating the death penalty solved the problems the Supreme Court identified? How do concerns about the death penalty fit into the justifications and problems of criminal punishment more generally?
7.2.6.3.4.1 Gregg v. Georgia 7.2.6.3.4.1 Gregg v. Georgia
GREGG
v.
GEORGIA.
Supreme Court of United States.
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
[157] G. Hughel Harrison, by appointment of the Court, 424 U. S. 941, argued the cause and filed a brief for petitioner.
G. Thomas Davis, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, John B. Ballard, Jr., Assistant Attorney General, and Bryant Huff.
[158] Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief was Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the State of California as amicus curiae. With him on the brief were Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant Attorney General.[*]
Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART.
The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.
I
The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p. m. [159] A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.
On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.
A medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises [160] and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements about the slayings and indicated that directly after Allen had made these statements the petitioner had admitted that Allen's account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife.[1]
The trial judge submitted the murder charges to the jury on both felony-murder and nonfelony-murder theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed-robbery theory and on the lesser included offense of robbery by intimidation. The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.
At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner's lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. [161] The judge further charged the jury that in determining what sentence was appropriate the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.
Finally, the judge instructed the jury that it "would not be authorized to consider [imposing] the penalty of death" unless it first found beyond a reasonable doubt one of these aggravating circumstances:
"One—That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].
"Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
"Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant." Tr. 476-477.
Finding the first and second of these circumstances, the jury returned verdicts of death on each count.
The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S. E. 2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases.[2] The death [162] sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. Id., at 127, 210 S. E. 2d, at 667.
We granted the petitioner's application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as "cruel and unusual" punishment in violation of the Eighth and the Fourteenth Amendments. 423 U. S. 1082 (1976).
II
Before considering the issues presented it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty.[3] The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U. S. 238 (1972), retains the death penalty for six categories of crime: murder,[4] kidnaping for ransom or where [163] the victim is harmed, armed robbery,[5] rape, treason, and aircraft hijacking.[6] Ga. Code Ann. §§ 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial.
If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S. E. 2d 862 (1948). See Linder v. State, 132 Ga. App. 624, 625, 208 S. E. 2d 630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:
"[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that [164] only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed." § 27-2503 (Supp. 1975).
The defendant is accorded substantial latitude as to the types of evidence that he may introduce. See Brown v. State, 235 Ga. 644, 647-650, 220 S. E. 2d 922, 925-926 (1975).[7] Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S. E. 2d 12, 17 (1974).[8]
In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence. . . ." § 27-2534.1 (b) (Supp. 1975). The scope of the non-statutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified [165] in the statute.[9] The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to [166] impose that sentence. § 26-3102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. § 27-2534.1 (c) (Supp. 1975). In jury cases, the trial judge is bound by the jury's recommended sentence. §§ 26-3102, 27-2514 (Supp. 1975).
In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider "the punishment as well as any errors enumerated by way of appeal," and to determine:
"(1) Whether the sentence of death was imposed [167] under the influence of passion, prejudice, or any other arbitrary factor, and
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27.2534.1 (b), and
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 27-2537 (Supp. 1975).
If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. § 27-2537 (e) (Supp. 1975).[10]
A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-2537 (a) (Supp. 1975). The report is in the form of a 6 1/2-page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant's representation, whether race played a role in the trial, and, whether, in the trial court's judgment, there was any doubt about [168] the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.[11]
III
We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. In Part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes at issue in this case.
The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.[12] But until Furman v. Georgia, 408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and [169] unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;[13] two Justices would have reached the opposite conclusion;[14] and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.[15] We now hold that the punishment of death does not invariably violate the Constitution.
A
The history of the prohibition of "cruel and unusual" punishment already has been reviewed at length.[16] The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The [170] American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of punishment." Id., at 842.[17]
In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to "torture" and other "barbarous" methods. See Wilkerson v. Utah, 99 U. S. 130, 136 (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler, 136 U. S. 436, 447 (1890) ("Punishments are cruel when they involve torture or a lingering death . . ."). See also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947) (second attempt at electrocution found not to violate [171] Eighth Amendment, since failure of initial execution attempt was "an unforeseeable accident" and "[t]here [was] no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution").
But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that "a principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U. S. 349, 373 (1910). Thus the Clause forbidding "cruel and unusual" punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378. See also Furman v. Georgia, 408 U. S., at 429-430 (POWELL, J., dissenting); Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion).
In Weems the Court addressed the constitutionality of the Philippine punishment of cadena temporal for the crime of falsifying an official document. That punishment included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Although the Court acknowledged the possibility that "the cruelty of pain" may be present in the challenged punishment, 217 U. S., at 366, it did not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are "inhuman and barbarous, torture and the like." Id., at 368. Rather, the Court focused on the lack of proportion between the crime and the offense:
"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice [172] of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." Id., at 366-367.[18]
Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that "[f]ines, imprisonment and even execution may be imposed depending upon the enormity of the crime." 356 U. S., at 100.
The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U. S. 660 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is "cruel and unusual" to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: "Even one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold." Id., at 667. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.
It is clear from the foregoing precedents that the [173] Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oftquoted phrase, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, supra, at 101. See also Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 1968). Cf. Robinson v. California, supra, at 666. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see infra, at 175-176, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.
But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." Trop v. Dulles, supra, at 100 (plurality opinion). This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, at 392-393 (BURGER, C. J., dissenting). See Wilkerson v. Utah, 99 U. S., at 136; Weems v. United States, supra, at 381. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, at 100 (plurality opinion) (dictum); Weems v. United States, supra, at 367.
[174]
B
Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.
"Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not." Furman v. Georgia, 408 U. S., at 313-314 (WHITE, J., concurring).
See also id., at 433 (POWELL, J., dissenting).[19]
But, while we have an obligation to insure that constitutional [175] bounds are not overreached, we may not act as judges as we might as legislators.
"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures." Dennis v. United States, 341 U. S. 494, 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).[20]
Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." [176] Furman v. Georgia, supra, at 383 (BURGER, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, 408 U. S., at 465-470 (REHNQUIST, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States, 357 U. S. 386, 393 (1958). Cf. Robinson v. California, 370 U. S., at 664-665; Trop v. Dulles, 356 U. S., at 103 (plurality opinion); In re Kemmler, 136 U. S., at 447. Caution is necessary lest this Court become, "under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country." Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra, at 461-462 (POWELL, J., dissenting).
C
In the discussion to this point we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.
The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule [177] imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U. S. 183, 197-198 (1971). And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199-200. See Woodson v. North Carolina, post, at 289-292.
It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ."
And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.
For nearly two centuries, this Court, repeatedly and [178] often expressly, has recognized that capital punishment is not invalid per se. In Wilkerson v. Utah, 99 U. S., at 134-135, where the Court found no constitutional violation in inflicting death by public shooting, it said:
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment."
Rejecting the contention that death by electrocution was "cruel and unusual," the Court in In re Kemmler, supra, at 447, reiterated:
"[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."
Again, in Louisiana ex rel. Francis v. Resweber, 329 U. S., at 464, the Court remarked: "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." And in Trop v. Dulles, 356 U. S., at 99, Mr. Chief Justice Warren, for himself and three other Justices, wrote:
"Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."
[179] Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society. This view was accepted by two Justices.[21] Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid.[22]
The petitioners in the capital cases before the Court today renew the "standards of decency" argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.
The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States[23] have enacted new statutes that provide for the [180] death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.[24] These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment [181] itself has not been rejected by the elected representatives of the people.
In the only statewide referendum occurring since Furman and brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied, 406 U. S. 958 (1972), that the death penalty violated the California Constitution.[25]
The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. See Furman v. Georgia, 408 U. S., at 439-440 (POWELL, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). The Court has said that "one of the most important functions any jury can perform in making . . . a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968). It may be true that evolving standards have influenced juries in [182] recent decades to be more discriminating in imposing the sentence of death.[26] But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. See Furman v. Georgia, supra, at 388 (BURGER, C. J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman,[27] and by the end of March 1976, more than 460 persons were subject to death sentences.
As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. Trop v. Dulles, 356 U. S., at 100 (plurality opinion). Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of [183] penology," Furman v. Georgia, supra, at 451 (POWELL, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U. S., at 135-136; In re Kemmler, 136 U. S., at 447.
The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.[28]
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct.[29] This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
"The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they `deserve,' then there are sown the seeds of anarchy—of selfhelp, vigilante justice, and lynch law." Furman v. Georgia, supra, at 308 (STEWART, J., concurring).
"Retribution is no longer the dominant objective of the criminal law," Williams v. New York, 337 U. S. 241, 248 (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. [184] Furman v. Georgia, 408 U. S., at 394-395 (BURGER, C. J., dissenting); id., at 452-454 (POWELL, J., dissenting); Powell v. Texas, 392 U. S., at 531 535-536 (plurality opinion). Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.[30]
Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate.[31] The results [185] simply have been inconclusive. As one opponent of capital punishment has said:
"[A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this `deterrent' effect may be . . . .
"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A `scientific'—that is to say, a soundly based—conclusion is simply impossible, and no methodological path out of this tangle suggests itself." C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties,[32] there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant [186] deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.[33] And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.[34]
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra, at 403-405 (BURGER, C. J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.
In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature [187] to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.
Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408 U. S., at 286-291 (BRENNAN, J., concurring); id., at 306 (STEWART. J., concurring). When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U. S. 45, 71 (1932); Reid v. Covert, 354 U. S. 1, 77 (1957) (Harlan, J., concurring in result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,[35] we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.
We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.
IV
We now consider whether Georgia may impose the death penalty on the petitioner in this case.
[188]
A
While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. MR. JUSTICE WHITE concluded that "the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." 408 U. S., at 313 (concurring). Indeed, the death sentences examined by the Court in Furman were "cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Id., at 309-310 (STEWART, J., concurring).[36]
[189] Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.
It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that "[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). See also Williams v. Oklahoma, 358 U. S. 576, 585 (1959); Williams v. New York, 337 U. S., at 247.[37] Otherwise, "the system cannot function in a consistent and a rational manner." American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1 (a), Commentary, p. 201 (App. Draft 1968). See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent. Draft No. 2, 1954).[38]
[190] The cited studies assumed that the trial judge would be the sentencing authority. If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.
Jury sentencing has been considered desirable in capital cases in order "to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the progress of a maturing society.' "[39] But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.[40] This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure—one in which the [191] question of sentence is not considered until the determination of guilt has been made—is the best answer. The drafters of the Model Penal Code concluded:
"[If a unitary proceeding is used] the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.
". . . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence." ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9, 1959).
See also Spencer v. Texas, 385 U. S. 554, 567-569 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶¶ 555, 574; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1135-1136 (1953). When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated [192] system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.[41]
But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1 (b), Commentary, pp. 46-47 (Approved Draft 1968); President's Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally correctible. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.
The idea that a jury should be given guidance in its [193] decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law.[42] See Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 498 (1931); Fed. Rule Civ. Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.
While some have suggested that standards to guide a capital jury's sentencing deliberation are impossible to formulate,[43] the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded "that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case." ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original).[44] While such standards are by [194] necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be [195] called capricious or arbitrary.[45] Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,[46] for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman's constitutional concerns.[47]
[196]
B
We now turn to consideration of the constitutionality of Georgia's capital-sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute, but chose not to narrow the scope of its murder provisions. See Part II, supra. Thus, now as before Furman, in Georgia "[a] person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann., § 26-1101 (a) (1972). All persons convicted of murder "shall be punished by death or by imprisonment for life." § 26-1101 (c) (1972).
Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 [197] statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.[48] In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1 (b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death.
These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman's jury did: reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime).[49] As a result, while [198] some jury discretion still exists, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application." Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974).
As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. § 27-2537 (c) (Supp. 1975).
In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover, to guard further against a situation comparable to that presented in Furman, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman. No longer should there be "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313 (WHITE, J., concurring).
The petitioner contends, however, that the changes in the Georgia sentencing procedures are only cosmetic, that the arbitrariness and capriciousness condemned by Furman continue to exist in Georgia—both in traditional practices that still remain and in the new sentencing procedures adopted in response to Furman.
[199]
1
First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.[50]
[200]
2
The petitioner further contends that the capital-sentencing procedures adopted by Georgia in response to Furman do not eliminate the dangers of arbitrariness and caprice in jury sentencing that were held in Furman to be violative of the Eighth and Fourteenth Amendments. He claims that the statute is so broad and vague as to leave juries free to act as arbitrarily and capriciously as they wish in deciding whether to impose the death penalty. While there is no claim that the jury in this case relied upon a vague or overbroad provision to establish the existence of a statutory aggravating circumstance, the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today) and argues that it fails to reduce sufficiently the risk of arbitrary infliction of death sentences. Specifically, Gregg urges that the statutory aggravating circumstances are too broad and too vague, that the sentencing procedure allows for arbitrary grants of mercy, and that the scope of the evidence and argument that can be considered at the presentence hearing is too wide.
[201] The petitioner attacks the seventh statutory aggravating circumstance, which authorizes imposition of the death penalty if the murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," contending that it is so broad that capital punishment could be imposed in any murder case.[51] It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.[52] In only one case has it upheld a jury's decision to sentence a defendant to death when the only statutory aggravating circumstance found was that of the seventh, see McCorquodale v. State, 233 Ga. 369, 211 S. E. 2d 577 (1974), and that homicide was a horrifying torture-murder.[53]
[202] The petitioner also argues that two of the statutory aggravating circumstances are vague and therefore susceptible of widely differing interpretations, thus creating a substantial risk that the death penalty will be arbitrarily inflicted by Georgia juries.[54] In light of the decisions of the Supreme Court of Georgia we must disagree. First, the petitioner attacks that part of § 27-2534.1 (b) (1) that authorizes a jury to consider whether a defendant has a "substantial history of serious assaultive criminal convictions." The Supreme Court of Georgia, however, has demonstrated a concern that the new sentencing procedures provide guidance to juries. It held this provision to be impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), because it did not provide the jury with "sufficiently `clear and objective standards.' " Second, the petitioner points to § 27-2534.1 (b) (3) which speaks of creating a "great risk of death to more than one person." While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it. The only case in which the court upheld a conviction in reliance on this aggravating circumstance involved a man who stood up in a church and fired a gun indiscriminately into the audience. See [203] Chenault v. State, 234 Ga. 216, 215 S. E. 2d 223 (1975). On the other hand, the court expressly reversed a finding of great risk when the victim was simply kidnaped in a parking lot. See Jarrell v. State, 234 Ga. 410, 424, 216 S. E. 2d 258, 269 (1975).[55]
The petitioner next argues that the requirements of Furman are not met here because the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. This contention misinterprets Furman. See supra, at 198-199. Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences imposed for similar crimes. Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.
The petitioner objects, finally, to the wide scope of evidence and argument allowed at presentence hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. See, e. g., Brown v. State, 235 Ga. 644, 220 S. E. 2d 922 (1975). So long as the [204] evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. See supra, at 189-190.
3
Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 27-2537 (c) (3) (Supp. 1975).[56] In performing [205] its sentence-review function, the Georgia court has held that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive." Coley v. State, 231 Ga., at 834, 204 S. E. 2d, at 616. The court on another occasion stated that "we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally . . . ." Moore v. State, 233 Ga. 861, 864, 213 S. E. 2d 829, 832 (1975). See also Jarrell v. State, supra, at 425, 216 S. E. 2d, at 270 (standard is whether "juries generally throughout the state have imposed the death penalty"); Smith v. State, 236 Ga. 12, 24, 222 S. E. 2d 308, 318 (1976) (found "a clear pattern" of jury behavior).
It is apparent that the Supreme Court of Georgia has taken its review responsibilities seriously. In Coley, it held that "[t]he prior cases indicate that the past practice among juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment for the offense of rape, rather than death." 231 Ga., at 835, 204 S. E. 2d, at 617. It thereupon reduced Coley's sentence from death to life imprisonment. Similarly, although armed robbery is a capital offense under Georgia law, § 26-1902 (1972), the Georgia court concluded that the death sentences imposed in this case for that crime were "unusual in that they are rarely imposed for [armed robbery]. Thus, under the test provided by statute, . . . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." 233 [206] Ga., at 127, 210 S. E. 2d, at 667. The court therefore vacated Gregg's death sentences for armed robbery and has followed a similar course in every other armed robbery death penalty case to come before it. See Floyd v. State, 233 Ga. 280, 285, 210 S. E. 2d 810, 814 (1974); Jarrell v. State, 234 Ga., at 424-425, 216 S. E. 2d, at 270. See Dorsey v. State, 236 Ga. 591, 225 S. E. 2d 418 (1976).
The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
V
The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer [207] can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.
For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.
It is so ordered.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.
In Furman v. Georgia, 408 U. S. 238 (1972), this Court held the death penalty as then administered in Georgia to be unconstitutional. That same year the Georgia Legislature enacted a new statutory scheme under which the death penalty may be imposed for several offenses, including murder. The issue in this case is whether the death penalty imposed for murder on petitioner Gregg under the new Georgia statutory scheme may constitutionally be carried out. I agree that it may.
I
Under the new Georgia statutory scheme a person convicted of murder may receive a sentence either of death or of life imprisonment. Ga. Code Ann. § 26-1101 (1972).[1] Under Georgia Code Ann. § 26-3102 (Supp. [208] 1975), the sentence will be life imprisonment unless the jury at a separate evidentiary proceeding immediately following the verdict finds unanimously and beyond a reasonable doubt at least one statutorily defined "aggravating circumstance."[2] The aggravating circumstances are:
"(1) The offense of murder, rape, armed robbery, [209] or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person [210] who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
[211] "(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 27-2534.1 (b) (Supp. 1975).
Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. Instead, it is merely authorized to impose it after considering evidence of "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the [enumerated] statutory aggravating circumstances . . . ." § 27-2534.1 (b) (Supp. 1975). Unless the jury unanimously determines that the death penalty should be imposed, the defendant will be sentenced to life imprisonment. In the event that the jury does impose the death penalty, it must designate in writing the aggravating circumstance which it found to exist beyond a reasonable doubt.
An important aspect of the new Georgia legislative scheme, however, is its provision for appellate review. Prompt review by the Georgia Supreme Court is provided for in every case in which the death penalty is imposed. To assist it in deciding whether to sustain the death penalty, the Georgia Supreme Court is supplied, in every case, with a report from the trial judge in the form of a standard questionnaire. § 27-2537 (a) (Supp. 1975). The questionnaire contains, inter alia, six questions designed to disclose whether race played a role in the case and one question asking the trial judge whether the evidence forecloses "all doubt respecting the defendant's [212] guilt." In deciding whether the death penalty is to be sustained in any given case, the court shall determine:
"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1 (b), and
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . ."
In order that information regarding "similar cases" may be before the court, the post of Assistant to the Supreme Court was created. The Assistant must "accumulate the records of all capital felony cases in which sentence was imposed after January 1, 1970, or such earlier date as the court may deem appropriate." § 27-2537 (f).[3] The court is required to include in its decision a reference to "those similar cases which it took into consideration." § 27-2537 (e).
II
Petitioner Troy Gregg and a 16-year-old companion, Floyd Allen, were hitchhiking from Florida to Asheville, N. C., on November 21, 1973. They were picked up in an automobile driven by Fred Simmons and Bob Moore, both of whom were drunk. The car broke down and Simmons purchased a new one—a 1960 Pontiac—using [213] part of a large roll of cash which he had with him. After picking up another hitchhiker in Florida and dropping him off in Atlanta, the car proceeded north to Gwinnett County, Ga., where it stopped so that Moore and Simmons could urinate. While they were out of the car Simmons was shot in the eye and Moore was shot in the right cheek and in the back of the head. Both died as a result.
On November 24, 1973, at 3 p. m., on the basis of information supplied by the hitchhiker, petitioner and Allen were arrested in Asheville, N. C. They were then in possession of the car which Simmons had purchased; petitioner was in possession of the gun which had killed Simmons and Moore and $107 which had been taken from them; and in the motel room in which petitioner was staying was a new stereo and a car stereo player.
At about 11 p. m., after the Gwinnett County police had arrived, petitioner made a statement to them admitting that he had killed Moore and Simmons, but asserting that he had killed them in self-defense and in defense of Allen. He also admitted robbing them of $400 and taking their car. A few moments later petitioner was asked why he had shot Moore and Simmons and responded: "By God, I wanted them dead."
At about 1 o'clock the next morning, petitioner and Allen were released to the custody of the Gwinnett County police and were transported in two cars back to Gwinnett County. On the way, at about 5 a. m., the car stopped at the place where Moore and Simmons had been killed. Everyone got out of the car. Allen was asked, in petitioner's presence, how the killing occurred. He said that he had been sitting in the back seat of the 1960 Pontiac and was about half asleep. He woke up when the car stopped. Simmons and Moore got out, and as soon as they did petitioner turned around and told Allen: "Get out, we're going to rob them." Allen said that he [214] got out and walked toward the back of the car, looked around and could see petitioner, with a gun in his hand, leaning up against the car so he could get a good aim. Simmons and Moore had gone down the bank and had relieved themselves and as they were coming up the bank petitioner fired three shots. One of the men fell, the other staggered. Petitioner then circled around the back and approached the two men, both of whom were now lying in the ditch, from behind. He placed the gun to the head of one of them and pulled the trigger. Then he went quickly to the other one and placed the gun to his head and pulled the trigger again. He then took the money, whatever was in their pockets. He told Allen to get in the car and they drove away.
When Allen had finished telling this story, one of the officers asked petitioner if this was the way it had happened. Petitioner hung his head and said that it was. The officer then said: "You mean you shot these men down in cold blooded murder just to rob them," and petitioner said yes. The officer then asked him why and petitioner said he did not know. Petitioner was indicted in two counts for murder and in two counts for robbery.
At trial, petitioner's defense was that he had killed in self-defense. He testified in his own behalf and told a version of the events similar to that which he had originally told to the Gwinnett County police. On cross-examination, he was confronted with a letter to Allen recounting a version of the events similar to that to which he had just testified and instructing Allen to memorize and burn the letter. Petitioner conceded writing the version of the events, but denied writing the portion of the letter which instructed Allen to memorize and burn it. In rebuttal, the State called a handwriting expert who testified that the entire letter was written by the same person.
[215] The jury was instructed on the elements of murder[4] and robbery. The trial judge gave an instruction on self-defense, but refused to submit the lesser included [216] offense of manslaughter to the jury. It returned verdicts of guilty on all counts.
No new evidence was presented at the sentencing proceeding. However, the prosecutor and the attorney for petitioner each made arguments to the jury on the issue of punishment. The prosecutor emphasized the strength of the case against petitioner and the fact that he had murdered in order to eliminate the witnesses to the robbery. The defense attorney emphasized the possibility that a mistake had been made and that petitioner was not guilty. The trial judge instructed the jury on [217] their sentencing function and in so doing submitted to them three statutory aggravating circumstances. He stated:
"Now, as to counts one and three, wherein the defendant is charged with the murders of—has been found guilty of the murders of [Simmons and Moore], the following aggravating circumstances are some that you can consider, as I say, you must find that these existed beyond a reasonable doubt before the death penalty can be imposed.
"One—That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].
"Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
"Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they involved the depravity of mind of the defendant.
"Now, so far as the counts two and four, that is the counts of armed robbery, of which you have found the defendant guilty, then you may find— inquire into these aggravating circumstances.
"That the offense of armed robbery was committed while the offender was engaged in the commission of two capital felonies, to-wit the murders of [Simmons and Moore] or that the offender committed the offense of armed robbery for the purpose of receiving money and the automobile set forth in the indictment, or three, that the offense of armed robbery was outrageously and wantonly vile, horrible and inhuman in that they involved the depravity of the mind of the defendant.
[218] "Now, if you find that there was one or more of these aggravating circumstances existed beyond a reasonable doubt, then and I refer to each individual count, then you would be authorized to consider imposing the sentence of death.
"If you do not find that one of these aggravating circumstances existed beyond a reasonable doubt, in either of these counts, then you would not be authorized to consider the penalty of death. In that event, the sentence as to counts one and three, those are the counts wherein the defendant was found guilty of murder, the sentence could be imprisonment for life." Tr. 476-477.
The jury returned the death penalty on all four counts finding all the aggravating circumstances submitted to it, except that it did not find the crimes to have been "outrageously or wantonly vile," etc.
On appeal the Georgia Supreme Court affirmed the death sentences on the murder counts and vacated the death sentences on the robbery counts. 233 Ga. 117, 210 S. E. 2d 659 (1974). It concluded that the murder sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supported the finding of a statutory aggravating factor with respect to the murders; and, citing several cases in which the death penalty had been imposed previously for murders of persons who had witnessed a robbery, held:
"After considering both the crimes and the defendant and after comparing the evidence and the sentences in this case with those of previous murder cases, we are also of the opinion that these two sentences of death are not excessive or disproportionate to the penalties imposed in similar cases [219] which are hereto attached."[5] Id., at 127, 210 S. E. 2d, at 667.
However, it held with respect to the robbery sentences:
"Although there is no indication that these two [220] sentences were imposed under the influence of passion, prejudice or any other arbitrary factor, the sentences imposed here are unusual in that they are rarely imposed for this offense. Thus, under the test provided by statute for comparison (Code Ann. § 27-2537 (c), (3)), they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." Ibid.
Accordingly, the sentences on the robbery counts were vacated.
III
The threshold question in this case is whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily,[6] [221] wantonly and freakishly,[7] and so infrequently[8] that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury is still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia's new statutory scheme are vague and do not purport to be all-inclusive; and that, in any event, there are no circumstances under which the jury is required to impose the death penalty.[9] Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.
The argument is considerably overstated. The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.[10] The [222] jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it may not impose the death penalty unless it unanimously finds at least one of those factors to have been established beyond a reasonable doubt. The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries—even given discretion not to impose the death penalty—will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device. There is, therefore, reason to expect that Georgia's current system would escape the infirmities which invalidated its previous system under Furman. However, the Georgia Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency for certain serious murders. Instead, it gave the Georgia Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, whose opinions were necessary to the result, performed [223] in Furman: namely, the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion.
In considering any given death sentence on appeal, the Georgia Supreme Court is to determine whether the sentence imposed was consistent with the relevant statutes—i. e., whether there was sufficient evidence to support the finding of an aggravating circumstance. Ga. Code Ann. § 27-2537 (c) (2) (Supp. 1975). However, it must do much more than determine whether the penalty was lawfully imposed. It must go on to decide—after reviewing the penalties imposed in "similar cases"— whether the penalty is "excessive or disproportionate" considering both the crime and the defendant. § 27-2537 (c) (3) (Supp. 1975). The new Assistant to the Supreme Court is to assist the court in collecting the records of "all capital felony cases"[11] in the State of Georgia in which sentence was imposed after January 1, 1970. § 27-2537 (f) (Supp. 1975). The court also has the obligation of determining whether the penalty was "imposed under the influence of passion, prejudice, or any other arbitrary factor." § 27-2537 (c) (1) (Supp. 1975). The Georgia Supreme Court has interpreted the appellate review statute to require it to set aside the death sentence whenever juries across the State impose it only rarely for the type of crime in question; but to require it to affirm death sentences whenever juries across the State generally impose it for the crime in question. [224] Thus, in this case the Georgia Supreme Court concluded that the death penalty was so rarely imposed for the crime of robbery that it set aside the sentences on the robbery counts, and effectively foreclosed that penalty from being imposed for that crime in the future under the legislative scheme now in existence. Similarly, the Georgia Supreme Court has determined that juries impose the death sentence too rarely with respect to certain classes of rape. Compare Coley v. State, 231 Ga. 829, 204 S. E. 2d 612 (1974), with Coker v. State, 234 Ga. 555, 216 S. E. 2d 782 (1975). However, it concluded that juries "generally throughout the state" have imposed the death penalty for those who murder witnesses to armed robberies. Jarrell v. State, 234 Ga. 410, 425, 216 S. E. 2d 258, 270 (1975). Consequently, it affirmed the sentences in this case on the murder counts. If the Georgia Supreme Court is correct with respect to this factual judgment, imposition of the death penalty in this and similar cases is consistent with Furman. Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish, and has not even attempted to establish, that the Georgia Supreme Court failed properly to perform its task in this case or that it is incapable of performing its task adequately in all cases; and this Court should not assume that it did not do so.
Petitioner also argues that decisions made by the prosecutor —either in negotiating a plea to some lesser offense than capital murder or in simply declining to charge capital murder—are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this [225] point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
Petitioner's argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury's decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor's charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly "similar." If the cases really were "similar" in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.
Petitioner's argument that there is an unconstitutional [226] amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.
IV
For the reasons stated in dissent in Roberts v. Louisiana, post, at 350-356, neither can I agree with the petitioner's other basic argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment.
I therefore concur in the judgment of affirmance.
Statement of THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST:
We concur in the judgment and join the opinion of MR. JUSTICE WHITE, agreeing with its analysis that Georgia's system of capital punishment comports with [227] the Court's holding in Furman v. Georgia, 408 U. S. 238 (1972).
MR. JUSTICE BLACKMUN, concurring in the judgment.
I concur in the judgment. See Furman v. Georgia, 408 U. S. 238, 405-414 (1972) (BLACKMUN, J., dissenting), and id., at 375 (BURGER, C. J., dissenting); id., at 414 POWELL, J., dissenting); id., at 465 (REHNQUIST, J., dissenting).
MR. JUSTICE BRENNAN, dissenting.[*]
The Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[1] The opinions of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS today hold that "evolving standards of decency" require focus not on the essence of the death penalty itself but primarily upon the procedures employed by the State to single out persons to suffer the penalty of death. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty but not its infliction under sentencing procedures that MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.
In Furman v. Georgia, 408 U. S. 238, 257 (1972) (concurring opinion), I read "evolving standards of decency" as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the procedures [228] under which the determination to inflict the penalty upon a particular person was made. I there said:
"From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world, `the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries.' It is this essentially moral conflict that forms the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime." Id., at 296.[2]
That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional [229] system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. Thus, I too say: "For myself, I do not hesitate to assert the proposition that the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts, or, as stated by the Supreme Court . . . the application of `evolving standards of decency' . . . ."[3]
This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.[4] My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity. A judicial determination [230] whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause. 408 U. S., at 270.
I do not understand that the Court disagrees that "[i]n comparison to all other punishments today . . . the deliberate extinguishment of human life by the State is uniquely degrading to human dignity." Id., at 291. For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death for whatever crime and under all circumstances "is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. . . . An executed person has indeed `lost the right to have rights.' " Id., at 290. Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment. Id., at 279.
The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity." Id., at 273. As such it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause]."[5] I therefore would hold, [231] on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. "Justice of this kind is obviously no less shocking than the crime itself, and the new `official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first."[6]
I dissent from the judgments in No. 74-6257, Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v. Texas, insofar as each upholds the death sentences challenged in those cases. I would set aside the death sentences imposed in those cases as violative of the Eighth and Fourteenth Amendments.
MR. JUSTICE MARSHALL, dissenting.[*]
In Furman v. Georgia, 408 U. S. 238, 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.
I have no intention of retracing the "long and tedious journey," id., at 370, that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren's holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause.
In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359. And [232] second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369.
Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U. S. C. §§ 1472 (i), (n) (1970 ed., Supp. IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable. 408 U. S., at 360-369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.[1]
Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an [233] uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it. Id., at 331; ante, at 173, 182-183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post, at 353-354 (WHITE, J., dissenting). The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty—life imprisonment —would do as well. Furman, supra, at 342 (MARSHALL, J., concurring).
The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment. 408 U. S., at 347-354.[2] The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a United Nations Committee:
"It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime."[3]
The available evidence, I concluded in Furman, was convincing that "capital punishment is not necessary as a deterrent to crime in our society." Id., at 353.
The Solicitor General in his amicus brief in these cases [234] relies heavily on a study by Isaac Ehrlich,[4] reported a year after Furman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time of Furman and since it is the first scientific study to suggest that the death penalty may have a deterrent effect, I will briefly consider its import.
The Ehrlich study focused on the relationship in the Nation as a whole between the homicide rate and "execution risk"—the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found that increases in execution risk were associated with increases in the homicide rate.[5] But when he employed the statistical technique of multiple regression analysis to control for the influence of other variables posited to have an impact on the homicide rate,[6] Ehrlich found a negative correlation between changes in the homicide rate and changes in execution risk. His tentative conclusion was that for the period from 1933 to 1967 each additional execution in the United States might have saved eight lives.[7]
The methods and conclusions of the Ehrlich study [235] have been severely criticized on a number of grounds.[8] It has been suggested, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. The aggregation of data from all States—including those that have abolished the death penalty—obscures the relationship between murder and execution rates. Under Ehrlich's methodology, a decrease in the execution risk in one State combined with an increase in the murder rate in another State would, all other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again all other things being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the murder rate.[9]
The most compelling criticism of the Ehrlich study is [236] that its conclusions are extremely sensitive to the choice of the time period included in the regression analysis. Analysis of Ehrlich's data reveals that all empirical support for the deterrent effect of capital punishment disappears when the five most recent years are removed from his time series—that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease in the murder rate depends on the ending point of the sample period.[10] This finding has cast severe doubts on the reliability of Ehrlich's tentative conclusions.[11] Indeed, a recent regression study, based on Ehrlich's theoretical model but using cross-section state data for the years 1950 and 1960, found no support for the conclusion that executions act as a deterrent.[12]
The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the death penalty. Accord, Commonwealth v. O'Neal, — Mass. —, —, 339 N. E. 2d 676, 684 (1975). The evidence I reviewed in Furman[13] remains convincing, in my view, that "capital punishment is not necessary as a deterrent to crime in our society." 408 U. S., at 353. The justification for the death penalty must be found elsewhere.
The other principal purpose said to be served by the death penalty is retribution.[14] The notion that retribution [237] can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my Brother WHITE in Roberts v. Louisiana, post, p. 337. See also Furman v. Georgia, 408 U. S., at 394-395 (BURGER, C. J., dissenting). It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.
The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and in this sense the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment.[15] It is the question whether retribution can provide a moral justification for punishment—in particular, capital punishment—that we must consider.
My Brothers STEWART, POWELL, and STEVENS offer the following explanation of the retributive justification for capital punishment:
" `The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed [238] by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they `deserve,' then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.' " Ante, at 183, quoting from Furman v. Georgia, supra, at 308 (STEWART, J., concurring).
This statement is wholly inadequate to justify the death penalty. As my Brother BRENNAN stated in Furman, "[t]here is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders." 408 U. S., at 303 (concurring opinion).[16] It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.
In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values— that it marks some crimes as particularly offensive and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it contemplates the individual's shrinking from antisocial conduct, not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is "right" would fail to realize that murder is "wrong" if the penalty were simply life imprisonment.
The foregoing contentions—that society's expression of moral outrage through the imposition of the death penalty pre-empts the citizenry from taking the law into its [239] own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.
There remains for consideration, however, what might be termed the purely retributive justification for the death penalty—that the death penalty is appropriate, not because of its beneficial effect on society, but because the taking of the murderer's life is itself morally good.[17] Some of the language of the opinion of my Brothers STEWART, POWELL, and STEVENS in No. 74-6257 appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment.[18] They state:
"[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Ante, at 184 (footnote omitted).
[240] They then quote with approval from Lord Justice Denning's remarks before the British Royal Commission on Capital Punishment:
" `The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.' " Ante, at 184 n. 30.
Of course, it may be that these statements are intended as no more than observations as to the popular demands that it is thought must be responded to in order to prevent anarchy. But the implication of the statements appears to me to be quite different—namely, that society's judgment that the murderer "deserves" death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. See Furman v. Georgia, 408 U. S., at 343-345 (MARSHALL, J., concurring). The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as JUSTICES STEWART, POWELL, and STEVENS remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." Ante, at 182. To be sustained under the Eighth Amendment, the death penalty must "compor[t] with the basic concept of human dignity at the core of the Amendment," ibid.; the objective in imposing it must be "[consistent] with our respect for the dignity of [other] men." Ante, at 183. See Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). Under these standards, the taking of life "because the wrongdoer deserves it" surely must [241] fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth.[19]
The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.
[*] Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Arthur M. Michaelson filed a brief for Amnesty International as amicus curiae.
[1] On cross-examination the State introduced a letter written by the petitioner to Allen entitled, "[a] statement for you," with the instructions that Allen memorize and then burn it. The statement was consistent with the petitioner's testimony at trial.
[2] The court further held, in part, that the trial court did not err in refusing to instruct the jury with respect to voluntary manslaughter since there was no evidence to support that verdict.
[3] Subsequent to the trial in this case limited portions of the Georgia statute were amended. None of these amendments changed significantly the substance of the statutory scheme. All references to the statute in this opinion are to the current version.
[4] Georgia Code Ann. § 26-1101 (1972) provides:
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
[5] Section 26-1902 (1972) provides:
"A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The offense robbery by intimidation shall be a lesser included offense in the offense of armed robbery. A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years."
[6] These capital felonies currently are defined as they were when Furman was decided. The 1973 amendments to the Georgia statute, however, narrowed the class of crimes potentially punishable by death by eliminating capital perjury. Compare § 26-2401 (Supp. 1975) with § 26-2401 (1972).
[7] It is not clear whether the 1974 amendments to the Georgia statute were intended to broaden the types of evidence admissible at the presentence hearing. Compare § 27-2503 (a) (Supp. 1975) with § 27-2534 (1972) (deletion of limitation "subject to the laws of evidence").
[8] Essentially the same procedures are followed in the case of a guilty plea. The judge considers the factual basis of the plea, as well as evidence in aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S. E. 2d 900 (1975).
[9] The statute provides in part:
"(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
"(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
"(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27-2534.1 (b) is so found, the death penalty shall not be imposed." § 27-2534.1 (Supp. 1975).
The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), recently held unconstitutional the portion of the first circumstance encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently `clear and objective standards.' "
[10] The statute requires that the Supreme Court of Georgia obtain and preserve the records of all capital felony cases in which the death penalty was imposed after January 1, 1970, or such earlier date that the court considers appropriate. § 27-2537 (f) (Supp. 1975). To aid the court in its disposition of these cases the statute further provides for the appointment of a special assistant and authorizes the employment of additional staff members. §§ 27-2537 (f)-(h) (Supp. 1975).
[11] See Ga. Const., Art. 5, § 1, ¶ 12, Ga. Code Ann. § 2-3011 (1973); Ga. Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp. 1975) (Board of Pardons and Paroles is authorized to commute sentence of death except in cases where Governor refuses to suspend that sentence).
[12] Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947); In re Kemmler, 136 U. S. 436, 447 (1890); Wilkerson v. Utah, 99 U. S. 130, 134-135 (1879). See also McGautha v. California, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 510 (1968); Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion).
[13] 408 U. S., at 375 (BURGER, C. J., dissenting); id., at 405 (BLACKMUN, J., dissenting); id., at 414 (POWELL, J., dissenting); id., at 465 (REHNQUIST, J., dissenting).
[14] Id., at 257 (BRENNAN, J., concurring); id., at 314 (MARSHALL, J., concurring).
[15] Id., at 240 (Douglas, J., concurring); id., at 306 (STEWART, J., concurring); id., at 310 (WHITE, J., concurring).
Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds— MR. JUSTICE STEWART and MR. JUSTICE WHITE. See n. 36, infra.
[16] 408 U. S., at 316-328 (MARSHALL, J., concurring).
[17] This conclusion derives primarily from statements made during the debates in the various state conventions called to ratify the Federal Constitution. For example, Virginia delegate Patrick Henry objected vehemently to the lack of a provision banning "cruel and unusual punishments":
"What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime." 3 J. Elliot, Debates 447-448 (1863).
A similar objection was made in the Massachusetts convention:
"They are nowhere restrained from inventing the most cruel and unheard-of punishments and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." 2 Elliot, supra, at 111.
[18] The Court remarked on the fact that the law under review "has come to us from a government of a different form and genius from ours," but it also noted that the punishments it inflicted "would have those bad attributes even if they were found in a Federal enactment and not taken from an alien source." 217 U. S., at 377.
[19] Although legislative measures adopted by the people's chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power. See Weems v. United States, 217 U. S. 349, 371-373 (1910); Furman v. Georgia, 408 U. S., at 258-269 (BRENNAN, J., concurring). Robinson v. California, 370 U. S. 660 (1962), illustrates the proposition that penal laws enacted by state legislatures may violate the Eighth Amendment because "in the light of contemporary human knowledge" they "would doubtless be universally thought to be an infliction of cruel and unusual punishment." Id., at 666. At the time of Robinson nine States in addition to California had criminal laws that punished addiction similar to the law declared unconstitutional in Robinson. See Brief for Appellant in Robinson v. California, O. T. 1961, No. 554, p. 15.
[20] See also Furman v. Georgia, supra, at 411 (BLACKMUN, J., dissenting):
"We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great."
[21] See concurring opinions of MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, 408 U. S., at 257 and 314.
[22] See concurring opinions of Mr. Justice Douglas, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, id., at 240, 306, and 310.
[23] Ala. H. B. 212, §§ 2-4, 6-7 (1975); Ariz. Rev. Stat. Ann. §§ 13-452 to 13-454 (Supp. 1973); Ark. Stat. Ann. § 41-4706 (Supp. 1975); Cal. Penal Code §§ 190.1, 209, 219 (Supp. 1976); Colo. Laws 1974, c. 52, § 4; Conn. Gen. Stat. Rev. §§ 53a-25, 53a-35 (b), 53a-46a, 53a-54b (1975); Del. Code Ann. tit. 11, § 4209 (Supp. 1975); Fla. Stat. Ann. §§ 782.04, 921.141 (Supp. 1975-1976); Ga. Code Ann. §§ 26-3102, 27-2528, 27-2534.1, 27-2537 (Supp. 1975); Idaho Code § 18-4004 (Supp. 1975); Ill. Ann. Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind. Stat. Ann. § 35-13-4-1 (1975); Ky. Rev. Stat. Ann. § 507.020 (1975); La. Rev. Stat. Ann. § 14:30 (Supp. 1976); Md. Ann. Code, art. 27, § 413 (Supp. 1975); Miss. Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo. Ann. Stat. § 559.009, 559.005 (Supp. 1976); Mont. Rev. Codes Ann. § 94-5-105 (Spec. Crim. Code Supp. 1976); Neb. Rev. Stat. §§ 28-401, 29-2521 to 29-2523 (1975); Nev. Rev. Stat. § 200.030 (1973); N. H. Rev. Stat. Ann. § 630:1 (1974); N. M. Stat. Ann. § 40A-29-2 (Supp. 1975); N. Y. Penal Law § 60.06 (1975); N. C. Gen. Stat. § 14-17 (Supp. 1975); Ohio Rev. Code Ann. §§ 2929.02-2929.04 (1975); Okla. Stat. Ann. tit. 21, § 701.1-701.3 (Supp. 1975-1976); Pa. Laws 1974, Act. No. 46; R. I. Gen. Laws Ann. § 11-23-2 (Supp. 1975); S. C. Code Ann. § 16-52 (Supp. 1975); Tenn. Code Ann. §§ 39-2402, 39-2406 (1975); Tex. Penal Code Ann. § 19.03 (a) (1974); Utah Code Ann. §§ 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va. Code Ann. §§ 18.2-10, 18.2-31 (1976); Wash. Rev. Code §§ 9A.32.045, 9A.32.046 (Supp. 1975); Wyo. Stat. Ann. § 6-54 (Supp. 1975).
[24] Antihijacking Act of 1974, 49 U. S. C. §§ 1472 (i), (n) (1970 ed., Supp. IV).
[25] In 1968, the people of Massachusetts were asked "Shall the commonwealth . . . retain the death penalty for crime?" A substantial majority of the ballots cast answered "Yes." Of 2,348,005 ballots cast, 1,159,348 voted "Yes," 730,649 voted "No," and 458,008 were blank. See Commonwealth v. O'Neal, — Mass. —, —, and n. 1. 339 N. E. 2d 676, 708, and n. 1 (1975) (Reardon, J., dissenting). A December 1972 Gallup poll indicated that 57% of the people favored the death penalty, while a June 1973 Harris survey showed support of 59%. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1249 n. 22 (1974). In a December 1970 referendum, the voters of Illinois also rejected the abolition of capital punishment by 1,218,791 votes to 676,302 votes. Report of the Governor's Study Commission on Capital Punishment 43 (Pa. 1973).
[26] The number of prisoners who received death sentences in the years from 1961 to 1972 varied from a high of 140 in 1961 to a low of 75 in 1972, with wide fluctuations in the intervening years: 103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 in 1967; 102 in 1968; 97 in 1969; 127 in 1970; and 104 in 1971. Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec. 1974). It has been estimated that before Furman less than 20% of those convicted of murder were sentenced to death in those States that authorized capital punishment. See Woodson v. North Carolina, post, at 295-296, n. 31.
[27] Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1974, pp. 1, 26-27 (Nov. 1975).
[28] Another purpose that has been discussed is the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future. See People v. Anderson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert. denied, 406 U. S. 958 (1972); Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 685-686.
[29] See H. Packer, Limits of the Criminal Sanction 43-44 (1968).
[30] Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal Commission on Capital Punishment:
"Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).
A contemporary writer has noted more recently that opposition to capital punishment "has much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that anything short of death seems an inadequate response." Raspberry, Death Sentence, The Washington Post, Mar. 12, 1976, p. A27, cols. 5-6.
[31] See, e. g., Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976); Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L. J. 187 (1975); Ehrlich. The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June 1975); Hook, The Death Sentence, in The Death Penalty in America 146 (H. Bedau ed. 1967); T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
[32] See, e. g., The Death Penalty in America, supra, at 258-332; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932.
[33] Other types of calculated murders, apparently occurring with increasing frequency, include the use of bombs or other means of indiscriminate killings, the extortion murder of hostages or kidnap victims, and the execution-style killing of witnesses to a crime.
[34] We have been shown no statistics breaking down the total number of murders into the categories described above. The overall trend in the number of murders committed in the nation, however, has been upward for some time. In 1964, reported murders totaled an estimated 9,250. During the ensuing decade, the number reported increased 123%, until it totaled approximately 20,600 in 1974. In 1972, the year Furman was announced, the total estimated was 18,520. Despite a fractional decrease in 1975 as compared with 1974, the number of murders increased in the three years immediately following Furman to approximately 20,400, an increase of almost 10%. See FBI, Uniform Crime Reports, for 1964, 1972, 1974, and 1975, Preliminary Annual Release.
[35] We do not address here the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life—for example, when capital punishment is imposed for rape, kidnaping, or armed robbery that does not result in the death of any human being.
[36] This view was expressed by other Members of the Court who concurred in the judgments. See 408 U. S., at 255-257 (Douglas, J.); id., at 291-295 (BRENNAN, J.). The dissenters viewed this concern as the basis for the Furman decision: "The decisive grievance of the opinions . . . is that the present system of discretionary sentencing in capital cases has failed to produce even-handed justice; . . . that the selection process has followed no rational pattern." Id., at 398-399 (BURGER, C. J., dissenting).
[37] The Federal Rules of Criminal Procedure require as a matter of course that a presentence report containing information about a defendant's background be prepared for use by the sentencing judge. Rule 32 (c). The importance of obtaining accurate sentencing information is underscored by the Rule's direction to the sentencing court to "afford the defendant or his counsel an opportunity to comment [on the report] and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report." Rule 32 (c) (3) (A).
[38] Indeed, we hold elsewhere today that in capital cases it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of a death sentence. See Woodson v. North Carolina, post, at 303-305.
[39] Witherspoon v. Illinois, 391 U. S., at 519 n. 15, quoting Trop v. Dulles, 356 U. S., at 101 (plurality opinion). See also Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶ 571.
[40] In other situations this Court has concluded that a jury cannot be expected to consider certain evidence before it on one issue, but not another. See, e. g., Bruton v. United States, 391 U. S. 123 (1968); Jackson v. Denno, 378 U. S. 368 (1964).
[41] In United States v. Jackson, 390 U. S. 570 (1968), the Court considered a statute that provided that if a defendant pleaded guilty, the maximum penalty would be life imprisonment, but if a defendant chose to go to trial, the maximum penalty upon conviction was death. In holding that the statute was constitutionally invalid, the Court noted:
"The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional." Id., at 581.
[42] But see Md. Const., Art. XV, § 5: "In the trial of all criminal cases, the jury shall be the Judges of the Law, as well as of fact . . . ." See also Md. Code Ann., art. 27, § 593 (1971). Maryland judges, however, typically give advisory instructions on the law to the jury. See Md. Rule 756; Wilson v. State, 239 Md. 245, 210 A. 2d 824 (1965).
[43] See McGautha v. California, 402 U. S., at 204-207; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶ 595.
[44] The Model Penal Code proposes the following standards:
"(3) Aggravating Circumstances.
"(a) The murder was committed by a convict under sentence of imprisonment.
"(b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person.
"(c) At the time the murder was committed the defendant also committed another murder.
"(d) The defendant knowingly created a great risk of death to many persons.
"(e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
"(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.
"(g) The murder was committed for pecuniary gain.
"(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
"(4) Mitigating Circumstances.
"(a) The defendant has no significant history of prior criminal activity.
"(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
"(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
"(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
"(f) The defendant acted under duress or under the domination of another person.
"(g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.
"(h) The youth of the defendant at the time of the crime." ALI Model Penal Code § 210.6 (Proposed Official Draft 1962).
[45] As MR. JUSTICE BRENNAN noted in McGautha v. California, supra, at 285-286 (dissenting opinion):
"[E]ven if a State's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application . . . there is no reason that it should not give some guidance to those called upon to render decision."
[46] A system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.
[47] In McGautha v. California, supra, this Court held that the Due Process Clause of the Fourteenth Amendment did not require that a jury be provided with standards to guide its decision whether to recommend a sentence of life imprisonment or death or that the capital-sentencing proceeding be separated from the guilt-determination process. McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments. While Furman did not overrule McGautha, it is clearly in substantial tension with a broad reading of McGautha's holding. In view of Furman, McGautha can be viewed rationally as a precedent only for the proposition that standardless jury sentencing procedures were not employed in the cases there before the Court so as to violate the Due Process Clause. We note that McGautha's assumption that it is not possible to devise standards to guide and regularize jury sentencing in capital cases has been undermined by subsequent experience. In view of that experience and the considerations set forth in the text, we adhere to Furman's determination that where the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.
[48] The text of the statute enumerating the various aggravating circumstances is set out at n. 9, supra.
[49] See Moore v. State, 233 Ga. 861, 865, 213 S. E. 2d 829, 832 (1975).
[50] The petitioner's argument is nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.
Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, post, p. 280, and Roberts v. Louisiana, post, p. 325. The suggestion that a jury's verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to death. U. S. Const., Art. II, § 2.
[51] In light of the limited grant of certiorari, see supra, at 162, we review the "vagueness" and "overbreadth" of the statutory aggravating circumstances only to consider whether their imprecision renders this capital-sentencing system invalid under the Eighth and Fourteenth Amendments because it is incapable of imposing capital punishment other than by arbitrariness or caprice.
[52] In the course of interpreting Florida's new capital-sentencing statute, the Supreme Court of Florida has ruled that the phrase "especially heinous, atrocious or cruel" means a "conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So. 2d 1, 9 (1973). See Proffitt v. Florida, post, at 255-256.
[53] Two other reported cases indicate that juries have found aggravating circumstances based on § 27-2534.1 (b) (7). In both cases a separate statutory aggravating circumstance was also found, and the Supreme Court of Georgia did not explicitly rely on the finding of the seventh circumstance when it upheld the death sentence. See Jarrell v. State, 234 Ga. 410, 216 S. E. 2d 258 (1975) (State Supreme Court upheld finding that defendant committed two other capital felonies—kidnapping and armed robbery—in the course of the murder, § 27-2534.1 (b) (2); jury also found that the murder was committed for money, § 27-2534.1 (b) (4), and that a great risk of death to bystanders was created, § 27-2534.1 (b) (3)); Floyd v. State, 233 Ga. 280, 210 S. E. 2d 810 (1974) (found to have committed a capital felony—armed robbery—in the course of the murder, § 27-2534.1 (b) (2)).
[54] The petitioner also attacks § 25-2534.1 (b) (7) as vague. As we have noted in answering his overbreadth argument concerning this section, however, the state court has not given a broad reading to the scope of this provision, and there is no reason to think that juries will not be able to understand it. See n. 51, supra; Proffitt v. Florida, post, at 255-256.
[55] The petitioner also objects to the last part of § 27-2534.1 (b) (3) which requires that the great risk be created "by means of a weapon or device which would normally be hazardous to the lives of more than one person." While the state court has not focused on this section, it seems reasonable to assume that if a great risk in fact is created, it will be likely that a weapon or device normally hazardous to more than one person will have created it.
[56] The court is required to specify in its opinion the similar cases which it took into consideration. § 27-2537 (e) (Supp. 1975). Special provision is made for staff to enable the court to compile data relevant to its consideration of the sentence's validity. §§ 27-2537 (f)-(h) (Supp. 1975). See generally supra, at 166-168.
The petitioner claims that this procedure has resulted in an inadequate basis for measuring the proportionality of sentences. First, he notes that nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained are not included in the group of cases which the Supreme Court of Georgia uses for comparative purposes. The Georgia court has the authority to consider such cases, see Ross v. State, 233 Ga. 361, 365-366, 211 S. E. 2d 356, 359 (1974), and it does consider appealed murder cases where a life sentence has been imposed. We do not think that the petitioner's argument establishes that the Georgia court's review process is ineffective. The petitioner further complains about the Georgia court's current practice of using some pre-Furman cases in its comparative examination. This practice was necessary at the inception of the new procedure in the absence of any post-Furman capital cases available for comparison. It is not unconstitutional.
[1] Section 26-1101 provides as follows:
"Murder.
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
The death penalty may also be imposed for kidnaping, Ga. Code Ann. § 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201; and aircraft hijacking, § 26-3301.
[2] Section 26-3102 (Supp. 1975) provides:
"Capital offenses; jury verdict and sentence.
"Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. The provisions of this section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty."
Georgia Laws, 1973, Act No. 74, p. 162, provides:
"At the conclusion of all felony cases heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In non-jury felony cases, the judge shall likewise first consider a finding of guilty or not guilty without any consideration of punishment. Where the jury or judge returns a verdict or finding of guilty, the court shall resume the trial and conduct a pre-sentence hearing before the jury or judge at which time the only issue shall be the determination of punishment to be imposed. In such hearing, subject to the laws of evidence, the jury or judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas; provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury or judge. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. In cases in which the death penalty may be imposed by a jury or judge sitting without a jury, the additional procedure provided in Code section 27-2534.1 shall be followed. The jury, or the judge in cases tried by a judge, shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury or judge, as provided by law. If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; provided, however, that the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment. If the trial court is reversed on appeal because of error only in the pre-sentence hearing, the new trial which may be ordered shall apply only to the issue of punishment."
[3] Section 27-2537 (g) provides:
"The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence. . . ."
[4] The court said:
"And, I charge you that our law provides, in connection with the offense of murder the following. A person commits murder when he unlawfully and with malice aforethought, either express or implied causes the death of another human being.
"Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature which is manifested by external circumstances, capable of proof.
"Malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart.
"Section B of this Code Section, our law provides that a person also commits the crime of murder when in the commission of a felony he causes the death of another human being irrespective of malice.
"Now, then, I charge you that if you find and believe beyond a reasonable doubt that the defendant did commit the homicide in the two counts alleged in this indictment, at the time he was engaged in the commission of some other felony, you would be authorized to find him guilty of murder.
"In this connection, I charge you that in order for a homicide to have been done in the perpetration of a felony, there must be some connection between the felony and the homicide. The homicide must have been done in pursuance of the unlawful act not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or committed, there must be such a legal relationship between the homicide and the felony that you find that the homicide occurred by reason of and a part of the felony or that it occurred before the felony was at an end, so that the felony had a legal relationship to the homicide and was concurrent with it in part at least, and a part of it in an actual and material sense. A homicide is committed in the perpetration of a felony when it is committed by the accused while he is engaged in the performance of any act required for the full execution of such felony.
"I charge you that if you find and believe beyond a reasonable doubt that the homicide alleged in this indictment was caused by the defendant while he, the said accused was in the commission of a felony as I have just given you in this charge, you would be authorized to convict the defendant of murder.
"And this you would be authorized to do whether the defendant intended to kill the deceased or not. A homicide, although unintended, if committed by the accused at the time he is engaged in the commission of some other felony constitutes murder.
"In order for a killing to have been done in perpetration or attempted perpetration of a felony, or of a particular felony, there must be some connection as I previously charged you between the felony and the homicide.
"Before you would be authorized to find the defendant guilty of the offense of murder, you must find and believe beyond a reasonable doubt, that the defendant did, with malice aforethought either express or implied cause the deaths of [Simmons or Moore] or you must find and believe beyond a reasonable doubt that the defendant, while in the commission of a felony caused the death of these two victims just named.
"I charge you, that if you find and believe that, at any time prior to the date this indictment was returned into this court that the defendant did, in the county of Gwinnett, State of Georgia, with malice aforethought kill and murder the two men just named in the way and manner set forth in the indictment or that the defendant caused the deaths of these two men in the way and manner set forth in the indictment, while he, the said accused was in the commission of a felony, then in either event, you would be authorized to find the defendant guilty of murder."
[5] In a subsequently decided robbery-murder case, the Georgia Supreme Court had the following to say about the same "similar cases" referred to in this case:
"We have compared the evidence and sentence in this case with other similar cases and conclude the sentence of death is not excessive or disproportionate to the penalty imposed in those cases. Those similar cases we considered in reviewing the case are: Lingo v. State, 226 Ga. 496 (175 SE2d 657), Johnson v. State, 226 Ga. 511 (175 SE2d 840), Pass v. State, 227 Ga. 730 (182 SE2d 779), Watson v. State, 229 Ga. 787 (194 SE2d 407), Scott v. State, 230 Ga. 413 (197 SE2d 338), Kramer v. State, 230 Ga. 855 (199 SE2d 805), and Gregg v. State, 233 Ga. 117 (210 SE2d 659).
"In each of the comparison cases cited, the records show that the accused was found guilty of murder of the victim of the robbery or burglary committed in the course of such robbery or burglary. In each of those cases, the jury imposed the sentence of death. In Pass v. State, supra, the murder took place in the victim's home, as occurred in the case under consideration.
"We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3). Notwithstanding the fact that there have been cases in which robbery victims were murdered and the juries imposed life sentences (see Appendix), the cited cases show that juries faced with similar factual situations have imposed death sentences. Compare Coley v. State, 231 Ga. 829, 835, supra. Thus the sentence here was not `wantonly and freakishly imposed' (see above)." Moore v. State, 233 Ga. 861, 865-866, 213 S. E. 2d 829, 833 (1975).
In another case decided after the instant case the Georgia Supreme Court stated:
"The cases reviewed included all murder cases coming to this court since January 1, 1970. All kidnapping cases were likewise reviewed. The comparison involved a search for similarities in addition to the similarity of offense charged and sentence imposed.
"All of the murder cases selected for comparison involved murders wherein all of the witnesses were killed or an attempt was made to kill all of the witnesses, and kidnapping cases where the victim was killed or seriously injured.
"The cases indicate that, except in some special circumstance such as a juvenile or an accomplice driver of a get-away vehicle, where the murder was committed and trial held at a time when the death penalty statute was effective, juries generally throughout the state have imposed the death penalty. The death penalty has also been imposed when the kidnap victim has been mistreated or seriously injured. In this case the victim was murdered.
"The cold blooded and callous nature of the offenses in this case are the types condemned by death in other cases. This defendant's death sentences for murder and kidnapping are not excessive or disproportionate to the penalty imposed in similar cases. Using the standards prescribed for our review by the statute, we conclude that the sentences of death imposed in this case for murder and kidnapping were not imposed under the influence of passion, prejudice or any other arbitrary factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 S. E. 2d 258, 270 (1975).
[6] See Furman v. Georgia, 408 U. S., at 240 (Douglas, J., concurring).
[7] See id., at 306 (STEWART, J., concurring).
[8] See id., at 310 (WHITE, J., concurring).
[9] Petitioner also argues that the differences between murder—for which the death penalty may be imposed—and manslaughter—for which it may not be imposed—are so difficult to define and the jury's ability to disobey the trial judge's instructions so unfettered that juries will use the guilt-determination phase of a trial arbitrarily to convict some of a capital offense while convicting similarly situated individuals only of noncapital offenses. I believe this argument is enormously overstated. However, since the jury has discretion not to impose the death penalty at the sentencing phase of a case in Georgia, the problem of offense definition and jury nullification loses virtually all its significance in this case.
[10] The factor relevant to this case is that the "murder . . . was committed while the offender was engaged in the commission of another capital felony." The State in its brief refers to this type of murder as "witness-elimination" murder. Apparently the State of Georgia wishes to supply a substantial incentive to those engaged in robbery to leave their guns at home and to persuade their co-conspirators to do the same in the hope that fewer victims of robberies will be killed.
[11] Petitioner states several times without citation that the only cases considered by the Georgia Supreme Court are those in which an appeal was taken either from a sentence of death or life imprisonment. This view finds no support in the language of the relevant statutes. Moore v. State, 233 Ga., at 863-864, 213 S. E. 2d, at 832.
[*] [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]
[1] Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion of Warren, C. J.).
[2] Quoting T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).
[3] Novak v. Beto, 453 F. 2d 661, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part).
[4] Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976).
[5] Trop v. Dulles, 356 U. S., at 99 (plurality opinion of Warren, C. J.).
[6] A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960).
[*] [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]
[1] Sarat & Vidmar, Public Opinion, The Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. Rev. 171.
[2] See e. g., T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
[3] United Nations, Department of Economic and Social Affairs, Capital Punishment, pt. II, ¶ 159, p. 123 (1968).
[4] I. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death (Working Paper No. 18, National Bureau of Economic Research, Nov. 1973); Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June 1975).
[5] Id., at 409.
[6] The variables other than execution risk included probability of arrest, probability of conviction given arrest, national aggregate measures of the percentage of the population between age 14 and 24, the unemployment rate, the labor force participation rate, and estimated per capita income.
[7] Id., at 398, 414.
[8] See Passell & Taylor, The Deterrent Effect of Capital Punishment: Another View (unpublished Columbia University Discussion Paper 74-7509, Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas, O. T. 1975, No. 75-5844; Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975); Baldus & Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L. J. 187 (1975); Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976). See also Ehrlich, Deterrence: Evidence and Inference, 85 Yale L. J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L. J. 368 (1976). In addition to the items discussed in text, criticism has been directed at the quality of Ehrlich's data, his choice of explanatory variables, his failure to account for the interdependence of those variables, and his assumptions as to the mathematical form of the relationship between the homicide rate and the explanatory variables.
[9] See Baldus & Cole, supra, at 175-177.
[10] Bowers & Pierce, supra, n. 8, at 197-198. See also Passell & Taylor, supra, n. 8, at 2-66—2-68.
[11] See Bowers & Pierce, supra, n. 8, at 197-198; Baldus & Cole, supra, n. 8, at 181, 183-185; Peck, supra, n. 8, at 366-367.
[12] Passell, supra, n. 8.
[13] See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45 Am. J. Orthopsychiatry 669 (1975); W. Bowers, Executions in America 121-163 (1974).
[14] In Furman, I considered several additional purposes arguably served by the death penalty. 408 U. S., at 314, 342, 355-358. The only additional purpose mentioned in the opinions in these cases is specific deterrence—preventing the murderer from committing another crime. Surely life imprisonment and, if necessary, solitary confinement would fully accomplish this purpose. Accord, Commonwealth v. O'Neal, —, Mass. —, —, 339 N. E. 2d 676, 685 (1975); People v. Anderson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert. denied, 406 U. S. 958 (1972).
[15] See, e. g., H. Hart, Punishment and Responsibility 8-10, 71-83 (1968); H. Packer, Limits of the Criminal Sanction 38-39, 66 (1968).
[16] See Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 687; Bowers, supra, n. 13, at 135; Sellin, supra, n. 2, at 79.
[17] See Hart, supra, n. 15, at 72, 74-75, 234-235; Packer, supra, n. 15, at 37-39.
[18] MR. JUSTICE WHITE'S view of retribution as a justification for the death penalty is not altogether clear. "The widespread reenactment of the death penalty," he states at one point, "answers any claims that life imprisonment is adequate punishment to satisfy the need for reprobation or retribution." Roberts v. Louisiana, post, at 354. (WHITE, J., dissenting). But MR. JUSTICE WHITE later states: "It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons." Post, at 355.
[19] See Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 687; People v. Anderson, 6 Cal. 3d, at 651, 493 P. 2d, at 896.
7.2.6.3.4.2 McCleskey v. Kemp 7.2.6.3.4.2 McCleskey v. Kemp
McCLESKEY
v.
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER
Supreme Court of United States.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[282] John Charles Boger argued the cause for petitioner. With him on the briefs were Julius L. Chambers, James M. Nabrit III, Vivian Berger, Robert H. Stroup, Timothy K. Ford, and Anthony G. Amsterdam.
Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.[*]
JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter [283] into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.
I
McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.
Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.
[284] The jury convicted McCleskey of murder.[1] At the penalty hearing,[2] the jury heard arguments as to the appropriate sentence. Under Georgia law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. Ga. Code Ann. § 17-10-30(c) (1982).[3] The jury in this case found two aggravating [285] circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, § 17-10-30(b)(2); and the murder was committed upon a peace officer engaged in the performance of his duties, § 17-10-30(b)(8). In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. § 17-10-2(c). McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury's recommendation and sentenced McCleskey to death.[4]
On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). This Court denied a petition for a writ of certiorari. McCleskey v. Georgia, 449 U. S. 891 (1980). The Superior Court of Fulton County denied McCleskey's extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the [286] Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. McCleskey v. Zant, No. 4909 (Apr. 8, 1981). The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause to appeal the Superior Court's denial of his petition, No. 81-5523, and this Court again denied certiorari. McCleskey v. Zant, 454 U. S. 1093 (1981).
McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia. His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. [287] Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.
Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.[5]
The District Court held an extensive evidentiary hearing on McCleskey's petition. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (1978), cert. denied, 440 U. S. 976 (1979), it nevertheless considered the Baldus study with care. It concluded [288] that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984). As to McCleskey's Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects.[6] Because of these defects, [289] the court held that the Baldus study "fail[ed] to contribute anything of value" to McCleskey's claim. Id., at 372 (emphasis omitted). Accordingly, the court denied the petition insofar as it was based upon the Baldus study.
The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court's decision on McCleskey's claim. 753 F. 2d 877 (1985). It assumed the validity of the study itself and addressed the merits of McCleskey's Eighth and Fourteenth Amendment claims. That is, the court assumed that the study "showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." Id., at 895. Even assuming the study's validity, the Court of Appeals found the statistics "insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis." Id., at 891. The court noted:
"The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Assuming each result is within the range of discretion, all are correct in the eyes of the law. It would not make sense for the system to require the exercise of discretion in order to be facially constitutional, [290] and at the same time hold a system unconstitutional in application where that discretion achieved different results for what appear to be exact duplicates, absent the state showing the reasons for the difference. . . .
"The Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . . This approach ignores the realities.. . . There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion." Id., at 898-899.
The court concluded:
"Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. . . . The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U. S. 238 (1972)] condemned. In pre-Furman days, there was no rhyme or reason as to who got the death penalty and who did not. But now, in the vast majority of cases, the reasons for a difference are well documented. That they are not so clear in a small percentage of the cases is no reason to declare the entire system unconstitutional." Id., at 899.
The Court of Appeals affirmed the denial by the District Court of McCleskey's petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey's claims based on [291] the Baldus study. We granted certiorari, 478 U. S. 1019 (1986), and now affirm.
II
McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.[7] He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.[8] [292] As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge,[9] that this claim must fail.
A
Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Whitus v. Georgia, 385 U. S. 545, 550 (1967).[10] A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. Wayte v. United States, 470 U. S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial [293] considerations played a part in his sentence. Instead, he relies solely on the Baldus study.[11] McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.
The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,[12]Arlington Heights v. [294] Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977), "[b]ecause of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes." Id., at 266, n. 13.[13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. Bazemore v. Friday, 478 U. S. 385, 400-401 (1986) (opinion of BRENNAN, J., concurring in part).
But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. See Hitchcock v. Dugger, post, at 398-399; Lockett v. Ohio, 438 U. S. 586, 602-605 (1978) (plurality opinion of Burger, C. J.). Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection [295] or Title VII case. In those cases, the statistics relate to fewer entities,[14] and fewer variables are relevant to the challenged decisions.[15]
[296] Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decisionmaker has an opportunity to explain the statistical disparity. See Whitus v. Georgia, 385 U. S., at 552; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). Here, the State has no practical opportunity to rebut the Baldus study. "[C]ontrolling considerations of . . . public policy," McDonald v. Pless, 238 U. S. 264, 267 (1915), dictate that jurors "cannot be called. . . to testify to the motives and influences that led to their verdict." Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 593 (1907). Similarly, the policy considerations behind a prosecutor's traditionally "wide discretion"[16] suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, "often years after they were made."[17] See Imbler v. Pachtman, 424 U. S. 409, 425-426 (1976).[18] Moreover, absent far stronger proof, it is unnecessary [297] to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.[19]
Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Georgia, 428 U. S. 153, 226 (1976) (WHITE, J., concurring). Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.
B
McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal [298] Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. But " `[d]iscriminatory purpose'. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279 (1979) (footnote and citation omitted). See Wayte v. United States, 470 U. S., at 608-609. For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, supra, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.[20]
Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were [299] legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, see Gregg v. Georgia, supra, at 183-187 (joint opinion of Stewart, POWELL, and STEVENS, JJ.), we will not infer a discriminatory purpose on the part of the State of Georgia.[21] Accordingly, we reject McCleskey's equal protection claims.
III
McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.[22] We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.
A
The Eighth Amendment prohibits infliction of "cruel and unusual punishments." This Court's early Eighth Amendment cases examined only the "particular methods of execution to determine whether they were too cruel to pass constitutional muster." Gregg v. Georgia, supra, at 170. See In re Kemmler, 136 U. S. 436 (1890) (electrocution); [300] Wilkerson v. Utah, 99 U. S. 130 (1879) (public shooting). Subsequently, the Court recognized that the constitutional prohibition against cruel and unusual punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Weems, v. United States, 217 U. S. 349, 378 (1910). In Weems, the Court identified a second principle inherent in the Eighth Amendment, "that punishment for crime should be graduated and proportioned to offense." Id., at 367.
Chief Justice Warren, writing for the plurality in Trop v. Dulles, 356 U. S. 86, 99 (1958), acknowledged the constitutionality of capital punishment. In his view, the "basic concept underlying the Eighth Amendment" in this area is that the penalty must accord with "the dignity of man." Id., at 100. In applying this mandate, we have been guided by his statement that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 101. Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. Georgia, 428 U. S., at 173. In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain "objective indicia that reflect the public attitude toward a given sanction." Ibid. First among these indicia are the decisions of state legislatures, "because the . . . legislative judgment weighs heavily in ascertaining" contemporary standards, id., at 175. We also have been guided by the sentencing decisions of juries, because they are "a significant and reliable objective index of contemporary values," id., at 181. Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. E. g., Enmund v. Florida, 458 U. S. 782, 789-796 (1982) (felony murder); Coker v. Georgia, 433 U. S. 584, 592-597 (1977) (plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, supra, at 179-182 (murder).
[301]
B
Two principal decisions guide our resolution of McCleskey's Eighth Amendment claim. In Furman v. Georgia, 408 U. S. 238 (1972), the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: "[T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes and . . . there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not." Id., at 313 (WHITE, J., concurring).
In Gregg, the Court specifically addressed the question left open in Furman — whether the punishment of death for murder is "under all circumstances, `cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." 428 U. S., at 168. We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United States and in England." Id., at 176 (joint opinion of Stewart, POWELL, and STEVENS, JJ.). "The most marked indication of society's endorsement of the death penalty for murder [was] the legislative response to Furman." Id., at 179. During the 4-year period between Furman and Gregg, at least 35 States had reenacted the death penalty, and Congress had authorized the penalty for aircraft piracy. 428 U. S., at 179-180.[23] The "actions of juries" were "fully compatible with the legislative judgments." Id., at 182. We noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded:
[302] "Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." Id., at 186-187.
The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. We explained the fundamental principle of Furman, that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U. S., at 189. Numerous features of the then new Georgia statute met the concerns articulated in Furman.[24] The Georgia system bifurcates guilt and sentencing proceedings so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant's guilt will influence the jury's consideration of that issue. The statute narrows the class of murders subject to the death penalty to cases in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. See 428 U. S., at 163-164. The procedures also require a particularized inquiry into " `the circumstances of the offense together with the character and propensities of the offender.' " Id., at 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)). Thus, "while some jury discretion still exists, `the [303] discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.' " 428 U. S., at 197-198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)). Moreover, the Georgia system adds "an important additional safeguard against arbitrariness and caprice" in a provision for automatic appeal of a death sentence to the State Supreme Court. 428 U. S., at 198. The statute requires that court to review each sentence to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to sentences imposed in generally similar murder cases. To aid the court's review, the trial judge answers a questionnaire about the trial, including detailed questions as to "the quality of the defendant's representation [and] whether race played a role in the trial." Id., at 167.
C
In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. In Woodson v. North Carolina, 428 U. S. 280 (1976), we invalidated a mandatory capital sentencing system, finding that the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304 (plurality opinion of Stewart, POWELL, and STEVENS, JJ.) (citation omitted). Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. Georgia, supra, at 196, by providing "specific and detailed guidance" to the sentencer.[25] [304] Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).
In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.[26] "[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U. S., at 604 (plurality opinion of Burger, C. J.) (emphasis in original; footnote omitted). See Skipper v. South Carolina, 476 U. S. 1 (1986). Any exclusion of the "compassionate or mitigating factors stemming from the diverse frailties of humankind" that are relevant to the sentencer's decision would fail to treat all persons as "uniquely individual human beings." Woodson v. North Carolina, supra, at 304.
Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application [305] of statutes to particular cases. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), the Court invalidated a Georgia Supreme Court interpretation of the statutory aggravating circumstance that the murder be "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code § 27-2534.1(b)(7) (1978).[27] Although that court had articulated an adequate limiting definition of this phrase, we concluded that its interpretation in Godfrey was so broad that it may have vitiated the role of the aggravating circumstance in guiding the sentencing jury's discretion.
Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. In Coker v. Georgia, 433 U. S. 584 (1977), the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman. In Enmund v. Florida, 458 U. S. 782 (1982), the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently culpable mental state. Most recently, in Ford v. Wainwright, 477 U. S. 399 (1986), we prohibited execution of prisoners who are insane.
D
In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate [306] to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.
IV
A
In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." See Pulley v. Harris, 465 U. S. 37, 43 (1984). He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. Gregg v. Georgia, 428 U. S., at 187. His disproportionality claim "is of a different sort." Pulley v. Harris, supra, at 43. McCleskey argues that the sentences in his case is disproportionate to the sentences in other murder cases.
On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. See Ga. Code Ann. § 17-10-35(e) (1982). Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. Pulley v. Harris, supra, at 50-51.
On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional [307] violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. In Gregg, the Court confronted the argument that "the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law," 428 U. S., at 199, specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious. We rejected this contention:
"The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Ibid.[28]
[308] Because McCleskey's sentence was imposed under Georgia sentencing procedures that focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," id., at 206, we lawfully may presume that McCleskey's death sentence was not "wantonly and freakishly" imposed, id., at 207, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.
B
Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim.
To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.[29] Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question [309] "is at what point that risk becomes constitutionally unacceptable," Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U. S. 79, 85 (1986).[30] Our efforts have been guided by our recognition that "the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice," Ex parte Milligan, 4 Wall. 2, 123 (1866). See Duncan v. [310] Louisiana, 391 U. S. 145, 155 (1968).[31] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." Strauder v. West Virginia, 100 U. S. 303, 309 (1880). Specifically, a capital sentencing jury representative of a criminal defendant's community assures a " `diffused impartiality,' " Taylor v. Louisiana, 419 U. S. 522, 530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting)), in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).[32]
[311] Individual jurors bring to their deliberations "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." Peters v. Kiff, 407 U. S. 493, 503 (1972) (opinion of MARSHALL, J.). The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that "buil[d] discretion, equity, and flexibility into a legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966).
McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.[33] Similarly, the capacity of prosecutorial discretion [312] to provide individualized justice is "firmly entrenched in American law." 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984). As we have noted, a prosecutor can decline to charge, offer a plea bargain,[34] or decline to seek a death sentence in any particular case. See n. 28, supra. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. Georgia, 428 U. S., at 200, n. 50.
C
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.[35] [313] The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman," Pulley v. Harris, 465 U. S., at 54.[36] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." Singer v. United States, 380 U. S. 24, 35 (1965). See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.' " Zant v. Stephens, 462 U. S. 862, 884 (1983) (quoting Lockett v. Ohio, 438 U. S., at 605 (plurality opinion of Burger, C. J.)). Despite these imperfections, our consistent rule has been that constitutional guarantees are met when "the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible." Singer v. United States, supra, at 35. Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.[37]
[314]
V
Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion, [315] throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.[38] Moreover, the claim that his sentence [316] rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups,[39] and [317] even to gender.[40] Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys[41] or judges.[42] Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics,[43] or the physical attractiveness of the defendant or the victim,[44] that some statistical [318] study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.[45] [319] The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.
Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility — or indeed even the right — of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U. S., at 383 (Burger, C. J., dissenting). Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Georgia, supra, at 186. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, see supra, at 283-285, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.
[320A]
VI
Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.
It is so ordered.
[320B] JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I, dissenting.
I
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting). The Court observes that "[t]he Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment," which "ensure a degree of care in the imposition of the death penalty that can be described only as unique." Ante, at 315, n. 37. Notwithstanding these efforts, murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Petitioner's Exhibit DB 82. Nothing could convey more powerfully the intractable reality of the death penalty: "that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether." Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (MARSHALL, J., concurring in judgment).
Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. While I join Parts I through IV-A of JUSTICE BLACKMUN'S dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [321] McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence.
II
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Petitioner's Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner's Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.
The Court today holds that Warren McCleskey's sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a [322] large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot "prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case." Ante, at 308 (emphasis in original). Since, according to Professor Baldus, we cannot say "to a moral certainty" that race influenced a decision, ante, at 308, n. 29, we can identify only "a likelihood that a particular factor entered into some decisions," ante, at 308, and "a discrepancy that appears to correlate with race." Ante, at 312. This "likelihood" and "discrepancy," holds the Court, is insufficient to establish a constitutional violation. The Court reaches this conclusion by placing four factors on the scales opposite McCleskey's evidence: the desire to encourage sentencing discretion, the existence of "statutory safeguards" in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court's evaluation of the significance of petitioner's evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force.
III
A
It is important to emphasize at the outset that the Court's observation that McCleskey cannot prove the influence of race on anyparticular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, 408 U. S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner." Godfrey v. Georgia, supra, at 427. As JUSTICE O'CONNOR observed [323] in Caldwell v. Mississippi, 472 U. S. 320, 343 (1985), a death sentence must be struck down when the circumstances under which it has been imposed "creat[e] an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim or mistake' " (emphasis added) (quoting California v. Ramos, 463 U. S. 992, 999 (1983)). This emphasis on risk acknowledges the difficulty of divining the jury's motivation in an individual case. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational.[1] As we said in Gregg v. Georgia, 428 U. S., at 200, "the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)": a constitutional violation is established if a plaintiff demonstrates a "pattern of arbitrary and capricious sentencing." Id., at 195, n. 46 (emphasis added) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).
As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice [324] or other impermissible influences might have infected the sentencing decision. In vacating the sentence, we did not ask whether it was likely that Godfrey's own sentence reflected the operation of irrational considerations. Nor did we demand a demonstration that such considerations had actually entered into other sentencing decisions involving heinous crimes. Similarly, in Roberts v. Louisiana, 428 U. S. 325 (1976), and Woodson v. North Carolina, 428 U. S. 280 (1976), we struck down death sentences in part because mandatory imposition of the death penalty created the risk that a jury might rely on arbitrary considerations in deciding which persons should be convicted of capital crimes. Such a risk would arise, we said, because of the likelihood that jurors reluctant to impose capital punishment on a particular defendant would refuse to return a conviction, so that the effect of mandatory sentencing would be to recreate the unbounded sentencing discretion condemned in Furman. Roberts, supra, at 334-335 (plurality opinion); Woodson, supra, at 303 (plurality opinion). We did not ask whether the death sentences in the cases before us could have reflected the jury's rational consideration and rejection of mitigating factors. Nor did we require proof that juries had actually acted irrationally in other cases.
Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.
The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia, ante, at 291, n. 7. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. [325] Ante, at 313. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard.
B
The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate;[2] and (2) cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence.[3] McCleskey's case falls into the intermediate range. In such cases, death is imposed in 34% of white-victim crimes and 14% of black-victim crimes, a difference of 139% in the rate of imposition of the death penalty. Supp. Exh. 54. In other words, just under 59% — almost 6 in 10 — defendants comparable to McCleskey would not have received the death penalty if their victims had been black.[4]
[326] Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing. For the Georgia system as a whole, race accounts for a six percentage point difference in the rate at which capital punishment is imposed. Since death is imposed in 11% of all white-victim cases, the rate in comparably aggravated black-victim cases is 5%. The rate of capital sentencing in a white-victim case is thus 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.[5]
These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than [327] the rate for black-victim cases. Supp. Exh. 47. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. Ibid. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. Id., at 56. Since our decision upholding the Georgia capital sentencing system in Gregg, the State has executed seven persons. All of the seven were convicted of killing whites, and six of the seven executed were black.[6] Such execution figures are especially striking in light of the fact that, during the period encompassed by the Baldus study, only 9.2% of Georgia homicides involved black defendants and white victims, while 60.7% involved black victims.
McCleskey's statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern.[7] While the decisionmaking process of a body such as a jury may be complex, the Baldus study provides a massive compilation of the details that are most relevant to that decision. As we held in the context of Title VII of the Civil Rights Act of 1964 last Term in Bazemore v. Friday, 478 U. S. 385 (1986), a multiple-regression analysis need not include every conceivable variable to establish a party's case, as long as it includes those variables that account for the [328] major factors that are likely to influence decisions. In this case, Professor Baldus in fact conducted additional regression analyses in response to criticisms and suggestions by the District Court, all of which confirmed, and some of which even strengthened, the study's original conclusions.
The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," Turner v. Murray, 476 U. S. 28, 35 (1986), and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U. S. 349, 358 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.
C
Evaluation of McCleskey's evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia's legacy of a race-conscious criminal justice system, as well as [329] this Court's own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey's claim is not a fanciful product of mere statistical artifice.
For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978).[8]
By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. See Ga. Penal Code (1861). The state criminal code contained separate sections for "Slaves and Free Persons of Color," Pt. 4, Tit. 3, Ch. 1, and for all other persons, Pt. 4, Tit. 1, Divs. 1-16. The code provided, for instance, for an automatic death sentence for murder committed by blacks, Pt. 4, Tit. 1, Art. II, § 4704, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. Pt. 4, Tit. 1, Div. 4, § 4220. The code established that the rape of a free white female by a black "shall be" punishable by death. § 4704. However, rape by anyone else of a free white female was punishable by [330] a prison term not less than 2 nor more than 20 years. The rape of blacks was punishable "by fine and imprisonment, at the discretion of the court." § 4249. A black convicted of assaulting a free white person with intent to murder could be put to death at the discretion of the court, § 4708, but the same offense committed against a black, slave or free, was classified as a "minor" offense whose punishment lay in the discretion of the court, as long as such punishment did not "extend to life, limb, or health." Art. III, §§ 4714, 4718. Assault with intent to murder by a white person was punishable by a prison term of from 2 to 10 years. Div. 4, § 4258. While sufficient provocation could reduce a charge of murder to manslaughter, the code provided that "[o]bedience and submission being the duty of a slave, much greater provocation is necessary to reduce a homicide of a white person by him to voluntary manslaughter, than is prescribed for white persons." Art. II, § 4711.
In more recent times, some 40 years ago, Gunnar Myrdal's epochal study of American race relations produced findings mirroring McCleskey's evidence:
"As long as only Negroes are concerned and no whites are disturbed, great leniency will be shown in most cases . . . . The sentences for even major crimes are ordinarily reduced when the victim is another Negro.
.....
"For offenses which involve any actual or potential danger to whites, however, Negroes are punished more severely than whites.
.....
"On the other hand, it is quite common for a white criminal to be set free if his crime was against a Negro." G. Myrdal, An American Dilemma 551-553 (1944).
This Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years. The specter of race discrimination was acknowledged by the Court in striking down the Georgia death penalty statute in Furman. [331] Justice Douglas cited studies suggesting imposition of the death penalty in racially discriminatory fashion, and found the standardless statutes before the Court "pregnant with discrimination." 408 U. S., at 257 (concurring opinion). JUSTICE MARSHALL pointed to statistics indicating that "Negroes [have been] executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination." Id., at 364 (concurring opinion). Although Justice Stewart declined to conclude that racial discrimination had been plainly proved, he stated that "[m]y concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race." Id., at 310 (concurring opinion). In dissent, Chief Justice Burger acknowledged that statistics "suggest, at least as a historical matter, that Negroes have been sentenced to death with greater frequency than whites in several States, particularly for the crime of interracial rape." Id., at 289, n. 12. Finally, also in dissent, JUSTICE POWELL intimated that an Equal Protection Clause argument would be available for a black "who could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense." Id., at 449. He noted that although the Eighth Circuit had rejected a claim of discrimination in Maxwell v. Bishop, 398 F. 2d 138 (1968), vacated and remanded on other grounds, 398 U. S. 262 (1970), the statistical evidence in that case "tend[ed] to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South." 408 U. S., at 449. It is clear that the Court regarded the opportunity for the operation of racial prejudice a particularly troublesome aspect of the unbounded discretion afforded by the Georgia sentencing scheme.
[332] Five years later, the Court struck down the imposition of the death penalty in Georgia for the crime of rape. Coker v. Georgia, 433 U. S. 584 (1977). Although the Court did not explicitly mention race, the decision had to have been informed by the specific observations on rape by both the Chief Justice and JUSTICE POWELL in Furman. Furthermore, evidence submitted to the Court indicated that black men who committed rape, particularly of white women, were considerably more likely to be sentenced to death than white rapists. For instance, by 1977 Georgia had executed 62 men for rape since the Federal Government began compiling statistics in 1930. Of these men, 58 were black and 4 were white. See Brief for Petitioner in Coker v. Georgia, O. T. 1976, No. 75-5444, p. 56; see also Wolfgang & Riedel, Rape, Race, and the Death Penalty in Georgia, 45 Am. J. Orthopsychiatry 658 (1975).
Three years later, the Court in Godfrey found one of the State's statutory aggravating factors unconstitutionally vague, since it resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury . . . ." 446 U. S., at 429. JUSTICE MARSHALL, concurring in the judgment, noted that "[t]he disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences." Id., at 439 (footnote omitted).
This historical review of Georgia criminal law is not intended as a bill of indictment calling the State to account for past transgressions. Citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. [333] Rev. 327 (1987). See generally id., at 328-344 (describing the psychological dynamics of unconscious racial motivation). As we said in Rose v. Mitchell, 443 U. S. 545, 558-559 (1979):
"[W]e . . . cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious."
The ongoing influence of history is acknowledged, as the majority observes, by our " `unceasing efforts' to eradicate racial prejudice from our criminal justice system." Ante, at 309 (quoting Batson v. Kentucky, 476 U. S. 79, 85 (1986)). These efforts, however, signify not the elimination of the problem but its persistence. Our cases reflect a realization of the myriad of opportunities for racial considerations to influence criminal proceedings: in the exercise of peremptory challenges, Batson v. Kentucky, supra; in the selection of the grand jury, Vasquez v. Hillery, 474 U. S. 254 (1986); in the selection of the petit jury, Whitus v. Georgia, 385 U. S. 545 (1967); in the exercise of prosecutorial discretion, Wayte v. United States, 470 U. S. 598 (1985); in the conduct of argument, Donnelly v. DeChristoforo, 416 U. S. 637 (1974); and in the conscious or unconscious bias of jurors, Turner v. Murray, 476 U. S. 28 (1986), Ristaino v. Ross, 424 U. S. 589 (1976).
The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities. No guidelines govern prosecutorial decisions to seek the death penalty, and Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. The Georgia sentencing system therefore [334] provides considerable opportunity for racial considerations, however subtle and unconscious, to influence charging and sentencing decisions.[9]
History and its continuing legacy thus buttress the probative force of McCleskey's statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless, as we acknowledged in Turner, "subtle, less consciously held racial attitudes" continue to be of concern, 476 U. S., at 35, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.
[335] The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result "the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U. S., at 998-999. For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.
IV
The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented.
The Court maintains that petitioner's claim "is antithetical to the fundamental role of discretion in our criminal justice [336] system." Ante, at 311. It states that "[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious." Ante, at 313.
Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S. 586, 605 (1978). The decision to impose the punishment of death must be based on a "particularized consideration of relevant aspects of the character and record of each convicted defendant." Woodson v. North Carolina, 428 U. S., at 303. Failure to conduct such an individualized moral inquiry "treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id., at 304.
Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act — for in such a case the very end that discretion is designed to serve is being undermined.
[337] Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. Since such decisions are not reducible to mathematical formulae, we are willing to assume that a certain degree of variation reflects the fact that no two defendants are completely alike. There is thus a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect.
As we made clear in Batson v. Kentucky, 476 U. S. 79 (1986), however, that presumption is rebuttable. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. Those challenges are normally exercised without any indication whatsoever of the grounds for doing so. The rationale for this deference has been a belief that the unique characteristics of particular prospective jurors may raise concern on the part of the prosecution or defense, despite the fact that counsel may not be able to articulate that concern in a manner sufficient to support exclusion for cause. As with sentencing, therefore, peremptory challenges are justified as an occasion for particularized determinations related to specific individuals, and, as with sentencing, we presume that such challenges normally are not made on the basis of a factor such as race. As we said in Batson, however, such features do not justify imposing a "crippling burden of proof," id., at 92, in order to rebut that presumption. The Court in this case apparently seeks to do just that. On the basis of the need for individualized decisions, it rejects evidence, drawn from the most sophisticated capital sentencing analysis ever performed, that reveals that race more likely than not infects capital sentencing decisions. The Court's position converts a rebuttable presumption into a virtually conclusive one.
[338] The Court also declines to find McCleskey's evidence sufficient in view of "the safeguards designed to minimize racial bias in the [capital sentencing] process." Ante, at 313. Gregg v. Georgia, 428 U. S., at 226, upheld the Georgia capital sentencing statute against a facial challenge which JUSTICE WHITE described in his concurring opinion as based on "simply an assertion of lack of faith" that the system could operate in a fair manner (opinion concurring in judgment). JUSTICE WHITE observed that the claim that prosecutors might act in an arbitrary fashion was "unsupported by any facts," and that prosecutors must be assumed to exercise their charging duties properly "[a]bsent facts to the contrary." Id., at 225. It is clear that Gregg bestowed no permanent approval on the Georgia system. It simply held that the State's statutory safeguards were assumed sufficient to channel discretion without evidence otherwise.
It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2,500 homicides committed during the period 1973-1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. While we may hope that a model of procedural fairness will curb the influence of race on sentencing, "we cannot simply assume that the model works as intended; we must critique its performance in terms of its results." Hubbard, "Reasonable Levels of Arbitrariness" in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment, 18 U. C. D. L. Rev. 1113, 1162 (1985).
[339] The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Ante, at 314-315. Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.[10]
In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may [340] properly be taken into account in determining whether various punishments are "cruel and unusual." Furthermore, it fails to take account of the unprecedented refinement and strength of the Baldus study.
It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment." Woodson, 428 U. S., at 305. Furthermore, the relative interests of the state and the defendant differ dramatically in the death penalty context. The marginal benefits accruing to the state from obtaining the death penalty rather than life imprisonment are considerably less than the marginal difference to the defendant between death and life in prison. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Even those who believe that society can impose the death penalty in a manner sufficiently rational to justify its continuation must acknowledge that the level of rationality that is considered satisfactory must be uniquely high. As a result, the degree of arbitrariness that may be adequate to render the death penalty "cruel and unusual" punishment may not be adequate to invalidate lesser penalties. What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority's fear of wholesale invalidation of criminal sentences is unfounded.
The Court also maintains that accepting McCleskey's claim would pose a threat to all sentencing because of the prospect that a correlation might be demonstrated between sentencing outcomes and other personal characteristics. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." Race is a consideration whose influence is expressly constitutionally [341] proscribed. We have expressed a moral commitment, as embodied in our fundamental law, that this specific characteristic should not be the basis for allotting burdens and benefits. Three constitutional amendments, and numerous statutes, have been prompted specifically by the desire to address the effects of racism. "Over the years, this Court has consistently repudiated `[d]istinctions between citizens solely because of their ancestry' as being `odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia, 388 U. S. 1, 11 (1967) (quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943)). Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U. S. 862, 885 (1983). That a decision to impose the death penalty could be influenced by race is thus a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as "cruel and unusual."
Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. As I have said above, however, supra, at 328-329, the evaluation of evidence suggesting such a correlation must be informed not merely by statistics, but by history and experience. One could hardly contend that this Nation has on the basis of hair color inflicted upon persons deprivation comparable to that imposed on the basis of race. Recognition of this fact would necessarily influence the evaluation of data suggesting the influence of hair color on sentencing, and would require evidence of statistical correlation even more powerful than that presented by the Baldus study.
Furthermore, the Court's fear of the expansive ramifications of a holding for McCleskey in this case is unfounded because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is [342] far and away the most refined data ever assembled on any system of punishment, data not readily replicated through casual effort. Moreover, that evidence depicts not merely arguable tendencies, but striking correlations, all the more powerful because nonracial explanations have been eliminated. Acceptance of petitioner's evidence would therefore establish a remarkably stringent standard of statistical evidence unlikely to be satisfied with any frequency.
The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined — an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.
Finally, the Court justifies its rejection of McCleskey's claim by cautioning against usurpation of the legislatures' role in devising and monitoring criminal punishment. The Court is, of course, correct to emphasize the gravity of constitutional intervention and the importance that it be sparingly employed. The fact that "[c]apital punishment is now the law in more than two thirds of our States," ante, at 319, however, does not diminish the fact that capital punishment is the most awesome act that a State can perform. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. It is true that society has a legitimate interest in punishment. Yet, as Alexander Bickel wrote:
"It is a premise we deduce not merely from the fact of a written constitution but from the history of the race, and ultimately as a moral judgment of the good society, that government should serve not only what we conceive [343] from time to time to be our immediate material needs but also certain enduring values. This in part is what is meant by government under law." The Least Dangerous Branch 24 (1962).
Our commitment to these values requires fidelity to them even when there is temptation to ignore them. Such temptation is especially apt to arise in criminal matters, for those granted constitutional protection in this context are those whom society finds most menacing and opprobrious. Even less sympathetic are those we consider for the sentence of death, for execution "is a way of saying, `You are not fit for this world, take your chance elsewhere.' " Furman, 408 U. S., at 290 (BRENNAN, J., concurring) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).
For these reasons, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U. S. 438, 449 (1962). Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of "sober second thought." Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).
V
At the time our Constitution was framed 200 years ago this year, blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Dred Scott v. Sandford, [344] 19 How. 393, 407 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that "[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Plessy v. Ferguson, 163 U. S. 537, 552 (1896).
In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.
It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. "The destinies of the two races in this country are indissolubly linked together," id., at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living.
The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey's evidence [345A] will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today's decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.
[345B] JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE BRENNAN joins in all but Part IV-B, dissenting.
The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. I am disappointed with the Court's action not only because of its denial of constitutional guarantees to petitioner McCleskey individually, but also because of its departure from what seems to me to be well-developed constitutional jurisprudence.
JUSTICE BRENNAN has thoroughly demonstrated, ante, that, if one assumes that the statistical evidence presented by petitioner McCleskey is valid, as we must in light of the Court of Appeals' assumption,[1] there exists in the Georgia capital sentencing scheme a risk of racially based discrimination that is so acute that it violates the Eighth Amendment. His analysis of McCleskey's case in terms of the Eighth Amendment is consistent with this Court's recognition that because capital cases involve the State's imposition of a punishment that is unique both in kind and degree, the decision in such cases must reflect a heightened degree of reliability under the Amendment's prohibition of the infliction of cruel and unusual punishments. See Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion). I therefore join Parts II through V of JUSTICE BRENNAN'S dissenting opinion.
[346] Yet McCleskey's case raises concerns that are central not only to the principles underlying the Eighth Amendment, but also to the principles underlying the Fourteenth Amendment. Analysis of his case in terms of the Fourteenth Amendment is consistent with this Court's recognition that racial discrimination is fundamentally at odds with our constitutional guarantee of equal protection. The protections afforded by the Fourteenth Amendment are not left at the courtroom door. Hill v. Texas, 316 U. S. 400, 406 (1942). Nor is equal protection denied to persons convicted of crimes. Lee v. Washington, 390 U. S. 333 (1968) (per curiam). The Court in the past has found that racial discrimination within the criminal justice system is particularly abhorrent: "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell, 443 U. S. 545, 555 (1979). Disparate enforcement of criminal sanctions "destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process." Id., at 555-556. And only last Term JUSTICE POWELL, writing for the Court, noted: "Discrimination within the judicial system is most pernicious because it is `a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.' " Batson v. Kentucky, 476 U. S. 79, 87-88 (1986), quoting Strauder v. West Virginia, 100 U. S. 303, 308 (1880).
Moreover, the legislative history of the Fourteenth Amendment reminds us that discriminatory enforcement of States' criminal laws was a matter of great concern for the drafters. In the introductory remarks to its Report to Congress, the Joint Committee on Reconstruction, which reported out the Joint Resolution proposing the Fourteenth Amendment, specifically noted: "This deep-seated prejudice against color . . . leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish." H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., p. XVII (1866). Witnesses who testified before [347] the Committee presented accounts of criminal acts of violence against black persons that were not prosecuted despite evidence as to the identity of the perpetrators.[2]
I
A
The Court today seems to give a new meaning to our recognition that death is different. Rather than requiring [348] "a correspondingly greater degree of scrutiny of the capital sentencing determination," California v. Ramos, 463 U. S. 992, 998-999 (1983), the Court relies on the very fact that this is a case involving capital punishment to apply a lesser standard of scrutiny under the Equal Protection Clause. The Court concludes that "legitimate" explanations outweigh McCleskey's claim that his death sentence reflected a constitutionally impermissible risk of racial discrimination. The Court explains that McCleskey's evidence is too weak to require rebuttal "because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty." Ante, at 297. The Court states that it will not infer a discriminatory purpose on the part of the state legislature because "there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment." Ante, at 298-299.
The Court's assertion that the fact of McCleskey's conviction undermines his constitutional claim is inconsistent with a long and unbroken line of this Court's case law. The Court on numerous occasions during the past century has recognized that an otherwise legitimate basis for a conviction does not outweigh an equal protection violation. In cases where racial discrimination in the administration of the criminal justice system is established, it has held that setting aside the conviction is the appropriate remedy. See, e. g., Rose v. Mitchell, 443 U. S., at 559; Whitus v. Georgia, 385 U. S. 545, 549-550 (1967); Strauder v. West Virginia, 100 U. S. 303 (1880). The Court recently reaffirmed the propriety of invalidating a conviction in order to vindicate federal constitutional rights. Vasquez v. Hillery, 474 U. S. 254 (1986). Invalidation of a criminal conviction on federal constitutional grounds does not necessarily preclude retrial and resentencing of the defendant by the State. Hill v. Texas, 316 U. S., at 406. The Court has maintained a per se reversal [349] rule rejecting application of harmless-error analysis in cases involving racial discrimination that "strikes at the fundamental values of our judicial system and our society as a whole." Rose v. Mitchell, 443 U. S., at 556. We have noted that a conviction "in no way suggests that the discrimination did not impermissibly infect" earlier phases of the criminal prosecution "and, consequently, the nature or very existence of the proceedings to come." Vasquez v. Hillery, 474 U. S., at 263. Hence, McCleskey's conviction and the imposition of his death sentence by the jury do not suggest that discrimination did not impermissibly infect the earlier steps in the prosecution of his case, such as the prosecutor's decision to seek the death penalty.
The Court's reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is likewise inappropriate. Although that reasoning may be relevant in a case involving a facial challenge to the constitutionality of a statute, it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case. In Batson v. Kentucky, supra, we rejected such reasoning: "The Constitution requires . . . that we look beyond the face of the statute . . . and also consider challenged selection practices to afford `protection against action of the State through its administrative officers in effecting the prohibited discrimination.' " 476 U. S., at 88, quoting Norris v. Alabama, 294 U. S. 587, 589 (1935).
B
In analyzing an equal protection claim, a court must first determine the nature of the claim and the responsibilities of the state actors involved to determine what showing is required for the establishment of a prima facie case. Castaneda v. Partida, 430 U. S. 482, 493-494 (1977). The Court correctly points out: "In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who [350] sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application." Ante, at 292. Having recognized the complexity of McCleskey's claim, however, the Court proceeds to ignore a significant element of that claim. The Court treats the case as if it is limited to challenges to the actions of two specific decisionmaking bodies — the petit jury and the state legislature. Ante, at 294-295, 297-298. This self-imposed restriction enables the Court to distinguish this case from the venire-selection cases and cases under Title VII of the Civil Rights Act of 1964 in which it long has accepted statistical evidence and has provided an easily applicable framework for review. See e. g., Castaneda v. Partida, supra; Bazemore v. Friday, 478 U. S. 385 (1986) (BRENNAN, J., joined by all other Members of the Court, concurring in part). Considering McCleskey's claim in its entirety, however, reveals that the claim fits easily within that same framework. A significant aspect of his claim is that racial factors impermissibly affected numerous steps in the Georgia capital sentencing scheme between his indictment and the jury's vote to sentence him to death. The primary decisionmaker at each of the intervening steps of the process is the prosecutor, the quintessential state actor in a criminal proceeding.[3] The District Court expressly stated [351] that there were "two levels of the system that matter to [McCleskey], the decision to seek the death penalty and the decision to impose the death penalty." 580 F. Supp. 338, 379-380 (ND Ga. 1984). I agree with this statement of McCleskey's case. Hence, my analysis in this dissenting opinion takes into account the role of the prosecutor in the Georgia capital sentencing system. I certainly do not address all the alternative methods of proof in the Baldus study. Nor do I review each step in the process which McCleskey challenges. I concentrate on the decisions within the prosecutor's office through which the State decided to seek the death penalty and, in particular, the point at which the State proceeded to the penalty phase after conviction. This is a step at which the evidence of the effect of the racial factors was especially strong, see Supplemental Exhibits (Supp. Exh.) 56, 57; Transcript of Federal Habeas Corpus Hearing in No. C81-2434A (Tr.) 894-926, but is ignored by the Court.
II
A
A criminal defendant alleging an equal protection violation must prove the existence of purposeful discrimination. Washington v. Davis, 426 U. S. 229, 239-240 (1976); Whitus v. Georgia, 385 U. S., at 550. He may establish a prima facie case[4] of purposeful discrimination "by showing that the [352] totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson v. Kentucky, 476 U. S., at 94.[5] Once the defendant establishes a prima facie case, the burden shifts to the prosecution to rebut that case. "The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties." Ibid. The State must demonstrate that the challenged effect was due to " `permissible racially neutral selection criteria.' " Ibid., quoting Alexander v. Louisiana, 405 U. S. 625, 632 (1972).
Under Batson v. Kentucky and the framework established in Castaneda v. Partida, McCleskey must meet a three-factor standard. First, he must establish that he is a member of a group "that is a recognizable, distinct class, singled out for different treatment." 430 U. S., at 494. Second, he must make a showing of a substantial degree of differential treatment.[6] Third, he must establish that the allegedly [353] discriminatory procedure is susceptible to abuse or is not racially neutral. Ibid.
B
There can be no dispute that McCleskey has made the requisite showing under the first prong of the standard. The Baldus study demonstrates that black persons are a distinct group that are singled out for different treatment in the Georgia capital sentencing system. The Court acknowledges, as it must, that the raw statistics included in the Baldus study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. Ante, at 286. White-victim cases are nearly 11 times more likely to yield a death sentence than are black-victim cases. Supp. Exh. 46. The raw figures also indicate that even within the group of defendants who are convicted of killing white persons and are thereby more likely to receive a death sentence, black defendants are more likely than white defendants to be sentenced to death. Supp. Exh. 47.
With respect to the second prong, McCleskey must prove that there is a substantial likelihood that his death sentence is due to racial factors. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). The Court of Appeals assumed the validity of the Baldus study and found that it "showed that systemic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." 753 F. 2d 877, 895 (CA11 1985). [354] The question remaining therefore is at what point does that disparity become constitutionally unacceptable. See Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986) (plurality opinion). Recognizing that additional factors can enter into the decisionmaking process that yields a death sentence, the authors of the Baldus study collected data concerning the presence of other relevant factors in homicide cases in Georgia during the time period relevant to McCleskey's case. They then analyzed the data in a manner that would permit them to ascertain the independent effect of the racial factors.[7]
McCleskey demonstrated the degree to which his death sentence was affected by racial factors by introducing multiple-regression [355] analyses that explain how much of the statistical distribution of the cases analyzed is attributable to the racial factors. McCleskey established that because he was charged with killing a white person he was 4.3 times as likely to be sentenced to death as he would have been had he been charged with killing a black person. Petitioner's Exhibit DB 82. McCleskey also demonstrated that it was more likely than not that the fact that the victim he was charged with killing was white determined that he received a sentence of death — 20 out of every 34 defendants in McCleskey's midrange category would not have been sentenced to be executed if their victims had been black. Supp. Exh. 54.[8] The most persuasive evidence of the constitutionally significant effect of racial factors in the Georgia capital sentencing system is McCleskey's proof that the race of the victim is more important in explaining the imposition of a death sentence than is the factor whether the defendant was a prime mover in the homicide. Petitioner's Exhibit DB 82.[9] Similarly, the race-of-victim factor is nearly as crucial as the statutory aggravating circumstance whether the defendant had a prior record of a conviction for a capital crime.[10]Ibid. See Ga. Code Ann. § 17-10-30(b) (1982), ante, at 284-285, n. 3. The Court has noted elsewhere that Georgia could not attach "the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant." Zant v. Stephens, 462 U. S. 862, 885 (1983). What we have held to be unconstitutional if included in the [356] language of the statute surely cannot be constitutional because it is a de facto characteristic of the system.
McCleskey produced evidence concerning the role of racial factors at the various steps in the decisionmaking process, focusing on the prosecutor's decision as to which cases merit the death sentence. McCleskey established that the race of the victim is an especially significant factor at the point where the defendant has been convicted of murder and the prosecutor must choose whether to proceed to the penalty phase of the trial and create the possibility that a death sentence may be imposed or to accept the imposition of a sentence of life imprisonment. McCleskey demonstrated this effect at both the statewide level, see Supp. Exh. 56, 57, Tr. 897-910, and in Fulton County where he was tried and sentenced, see Supp. Exh. 59, 60, Tr. 978-981. The statewide statistics indicated that black-defendant/white-victim cases advanced to the penalty trial at nearly five times the rate of the black-defendant/black-victim cases (70% v. 15%), and over three times the rate of white-defendant/ black-victim cases (70% v. 19%). See Supp. Exh. 56. The multiple-regression analysis demonstrated that racial factors had a readily identifiable effect at a statistically significant level. See id., at 57; Tr. 905. The Fulton County statistics were consistent with this evidence although they involved fewer cases. See Supp. Exh. 59, 60.[11]
Individualized evidence relating to the disposition of the Fulton County cases that were most comparable to McCleskey's case was consistent with the evidence of the race-of-victim effect as well. Of the 17 defendants, including [357] McCleskey, who were arrested and charged with homicide of a police officer in Fulton County during the 1973-1979 period, McCleskey, alone, was sentenced to death. The only other defendant whose case even proceeded to the penalty phase received a sentence of life imprisonment. That defendant had been convicted of killing a black police officer. See id., at 61-63; Tr. 1050-1062.
As to the final element of the prima facie case, McCleskey showed that the process by which the State decided to seek a death penalty in his case and to pursue that sentence throughout the prosecution was susceptible to abuse. Petitioner submitted the deposition of Lewis R. Slaton, who, as of the date of the deposition, had been the District Attorney for 18 years in the county in which McCleskey was tried and sentenced. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 5; see McCleskey v. Zant, 580 F. Supp. 338, 377, n. 15 (1984); Tr. 1316. As Mr. Slaton explained, the duties and responsibilities of that office are the prosecution of felony charges within the Atlanta Judicial Circuit that comprises Fulton County. Deposition 7-8. He testified that during his years in the office, there were no guidelines informing the Assistant District Attorneys who handled the cases how they should proceed at any particular stage of the prosecution. There were no guidelines as to when they should seek an indictment for murder as opposed to lesser charges, id., at 10-11; when they should recommend acceptance of a guilty plea to murder, acceptance of a guilty plea to a lesser charge, reduction of charges, or dismissal of charges at the postindictment-preconviction stage, id., at 25-26, 31; or when they should seek the death penalty, id., at 31. Slaton testified that these decisions were left to the discretion of the individual attorneys who then informed Slaton of their decisions as they saw fit. Id., at 13, 24-25, 37-38.
Slaton's deposition proves that, at every stage of a prosecution, the Assistant District Attorney exercised much discretion. The only guidance given was "on-the-job training." [358] Id., at 20. Addressing plea bargaining, for example, Slaton stated that "through the training that the assistant DA's get, I think we pretty much think alike on the cases, on what we suggest." Id., at 25. The sole effort to provide any consistency was Slaton's periodic pulling of files at random to check on the progress of cases. Id., at 28-29. Slaton explained that as far as he knew, he was the only one aware of this checking. Id., at 28. The files contained information only as to the evidence in the case, not any indication as to why an attorney made a particular decision. The attorneys were not required to record why they sought an indictment for murder as opposed to a lesser charge, id., at 19, or why they recommended a certain plea, id., at 29-30.[12] The attorneys were not required to report to Slaton the cases in which they decided not to seek the death penalty, id., at 34-36, 38, or the cases in which they did seek the death penalty, id., at 41.
When questioned directly as to how the office decided whether to seek the death penalty, Slaton listed several factors he thought relevant to that decision, including the strength of the evidence, the atrociousness of the crime, and the likelihood that a jury would impose the death sentence. Id., at 59. He explained that the attorneys did not seek the death penalty in every case in which statutory aggravating factors existed. Id., at 38-39. Slaton testified that his office still operated in the same manner as it did when he took office in 1965, except that it has not sought the death penalty in any rape cases since this Court's decision in Coker v. Georgia, 433 U. S. 584 (1977). Deposition 60.
In addition to this showing that the challenged system was susceptible to abuse, McCleskey presented evidence of the [359] history of prior discrimination in the Georgia system. JUSTICE BRENNAN has reviewed much of this history in detail in his dissenting opinion, ante, at 328-334, including the history of Georgia's racially based dual system of criminal justice. This historical background of the state action challenged "is one evidentiary source" in this equal protection case. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977); see also Rogers v. Lodge, 458 U. S. 613, 618, 623-625 (1982). Although I would agree that evidence of "official actions taken long ago" could not alone establish that the current system is applied in an unconstitutionally discriminatory manner, I disagree with the Court's statement that such evidence is now irrelevant. Ante, at 298, n. 20.
The above-described evidence, considered in conjunction with the other record evidence outlined by JUSTICE BRENNAN, ante, at 325-328, and discussed in opinions dissenting from the judgment of the Court of Appeals, 753 F. 2d, at 919 (Hatchett, J., dissenting in part and concurring in part); id., at 920-923 (Clark, J., dissenting in part and concurring in part), gives rise to an inference of discriminatory purpose. See Washington v. Davis, 426 U. S., at 239-242. As in the context of the rule of exclusion, see n. 6, supra, McCleskey's showing is of sufficient magnitude that, absent evidence to the contrary, one must conclude that racial factors entered into the decisionmaking process that yielded McCleskey's death sentence. See Castaneda v. Partida, 430 U. S., at 494, n. 13. The burden, therefore, shifts to the State to explain the racial selections. It must demonstrate that legitimate racially neutral criteria and procedures yielded this racially skewed result.
In rebuttal, the State's expert suggested that if the Baldus thesis was correct then the aggravation level in black-victim cases where a life sentence was imposed would be higher than in white-victim cases. See 580 F. Supp., at 373. The expert analyzed aggravating and mitigating circumstances [360] "one by one, demonstrating that in life sentence cases, to the extent that any aggravating circumstance is more prevalent in one group than the other, there are more aggravating features in the group of white-victim cases than in the group of black-victim cases. Conversely, there were more mitigating circumstances in which black-victim cases had a higher proportion of that circumstance than in white-victim cases." Ibid. The District Court found that the State's suggestion was plausible. It concluded, however, that the State did not conclusively disprove McCleskey's case; yet it reasoned that the State's theory "stands to contradict any prima facie case." Ibid. I find that reasoning wrong as a matter of law, and the conclusion clearly erroneous.
The State did not test its hypothesis to determine if white-victim and black-victim cases at the same level of aggravating circumstances were similarly treated. Tr. 1613-1614, 1664. McCleskey's experts, however, performed this test on their data. Id., at 1297, 1729-1732, 1756-1761. They demonstrated that the racial disparities in the system were not the result of the differences in the average aggravation levels between white-victim and black-victim cases. See Supp. Exh. 72; Tr. 1291-1296; Petitioner's Exhibit DB 92. The State's meager and unsophisticated evidence cannot withstand the extensive scrutiny given the Baldus evidence.[13] [361] Here, as in Bazemore v. Friday, the State did not "demonstrate that when th[e] factors were properly organized and accounted for there was no significant disparity" between the death sentences imposed on defendants convicted of killing white victims and those imposed on defendants convicted of killing black victims. 478 U. S., at 403-404, n. 14. In Castaneda, we rejected a similar effort by the State to rely on an unsupported countervailing theory to rebut the evidence. 430 U. S., at 500. In sum, McCleskey has demonstrated a clear pattern of differential treatment according to race that is "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266.
III
The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. It first reasons that "each particular decision to impose the death penalty is made by a petit jury" and that the "application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII [362] case." Ante, at 294-295. According to the Court, the statistical evidence is less relevant because, in the two latter situations, there are fewer variables relevant to the decision and the "statistics relate to fewer entities." Ante, at 295.
I disagree with the Court's assertion that there are fewer variables relevant to the decisions of jury commissioners or prosecutors in their selection of jurors, or to the decisions of employers in their selection, promotion, or discharge of employees. Such decisions involve a multitude of factors, some rational, some irrational. Second, I disagree with the comment that the venire-selection and employment decisions are "made by fewer entities." Certainly in the employment context, personnel decisions are often the product of several levels of decisionmaking within the business or government structure. The Court's statement that the decision to impose death is made by the petit jury also disregards the fact that the prosecutor screens the cases throughout the pretrial proceedings and decides to seek the death penalty and to pursue a capital case to the penalty phase where a death sentence can be imposed. McCleskey's claim in this regard lends itself to analysis under the framework we apply in assessing challenges to other prosecutorial actions. See Batson v. Kentucky, 476 U. S. 79 (1986); see also Wayte v. United States, 470 U. S. 598, 608, n. 10 (1985) (applying Castaneda framework in challenge to prosecutor's allegedly selective enforcement of criminal sanction). It is appropriate to judge claims of racially discriminatory prosecutorial selection of cases according to ordinary equal protection standards. 470 U. S., at 608.
The Court's other reason for treating this case differently from venire-selection and employment cases is that in these latter contexts, "the decisionmaker has an opportunity to explain the statistical disparity," but in the instant case the State had no practical opportunity to rebut the Baldus study. Ante, at 296. According to the Court, this is because jurors cannot be called to testify about their verdict and because [363] policy considerations render it improper to require "prosecutors to defend their decisions to seek death penalties, `often years after they were made.' " Ibid., quoting Imbler v. Pachtman, 424 U. S. 409, 425 (1976).
I agree with the Court's observation as to the difficulty of examining the jury's decisionmaking process. There perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required. In his dissenting opinion, JUSTICE BRENNAN demonstrates that the Eighth Amendment analysis is well suited to address that aspect of the case. Ante, at 323. The Court's refusal to require that the prosecutor provide an explanation for his actions, however, is completely inconsistent with this Court's longstanding precedents. The Court misreads Imbler v. Pachtman. In that case, the Court held that a prosecutor who acted within the scope of his duties was entitled to absolute immunity in an action under 42 U. S. C. § 1983 for damages. We recognized that immunity from damages actions was necessary to prevent harassing litigation and to avoid the threat of civil litigation undermining the prosecutor's independence of judgment. We clearly specified, however, that the policy considerations that compelled civil immunity did not mean that prosecutors could not be called to answer for their actions. We noted the availability of both criminal sanctions and professional ethical discipline. 424 U. S., at 429. Prosecutors undoubtedly need adequate discretion to allocate the resources of their offices and to fulfill their responsibilities to the public in deciding how best to enforce the law, but this does not place them beyond the constraints imposed on state action under the Fourteenth Amendment. Cf. Ex parte Virginia, 100 U. S. 339 (1880) (upholding validity of conviction of state judge for discriminating on the basis of race in his selection of jurors).
The Court attempts to distinguish the present case from Batson v. Kentucky, in which we recently reaffirmed the fact [364] that prosecutors' actions are not unreviewable. See ante, at 296, n. 17. I agree with the Court's observation that this case is "quite different" from the Batson case. Ibid. The irony is that McCleskey presented proof in this case that would have satisfied the more burdensome standard of Swain v. Alabama, 380 U. S. 202 (1965), a standard that was described in Batson as having placed on defendants a "crippling burden of proof." 476 U. S., at 92. As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. The exhaustive evidence presented in this case certainly demands an inquiry into the prosecutor's actions.
The Court's assertion that, because of the necessity of discretion in the criminal justice system, it "would demand exceptionally clear proof," ante, at 297, before inferring abuse of that discretion thus misses the point of the constitutional challenge in this case. Its conclusory statement that "the capacity of prosecutorial discretion to provide individualized justice is `firmly entrenched in American law,' " ante, at 311-312, quoting 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984), is likewise not helpful. The issue in this case is the extent to which the constitutional guarantee of equal protection limits the discretion in the Georgia capital sentencing system. As the Court concedes, discretionary authority can be discriminatory authority. Ante, at 312. Prosecutorial decisions may not be " `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978), quoting Oyler v. Boles, 368 U. S. 448, 456 (1962). Judicial scrutiny is particularly appropriate in McCleskey's case because "[m]ore subtle, less consciously held racial attitudes could also influence" the decisions in the Georgia capital sentencing system. Turner v. Murray, 476 U. S. 28, 35 (1986); see n. 13, supra. The Court's rejection of McCleskey's equal protection claims is [365] a far cry from the "sensitive inquiry" mandated by the Constitution.
IV
A
One of the final concerns discussed by the Court may be the most disturbing aspect of its opinion. Granting relief to McCleskey in this case, it is said, could lead to further constitutional challenges. Ante, at 314-319. That, of course, is no reason to deny McCleskey his rights under the Equal Protection Clause. If a grant of relief to him were to lead to a closer examination of the effects of racial considerations throughout the criminal justice system, the system, and hence society, might benefit. Where no such factors come into play, the integrity of the system is enhanced. Where such considerations are shown to be significant, efforts can be made to eradicate their impermissible influence and to ensure an evenhanded application of criminal sanctions.
B
Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's claim would eliminate capital punishment in Georgia. Post, at 367. JUSTICE STEVENS points out that the evidence presented in this case indicates that in extremely aggravated murders the risk of discriminatory enforcement of the death penalty is minimized. Ibid. I agree that narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race. Moreover, the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case would provide at least a measure of consistency. The Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial. As JUSTICE WHITE stated for the plurality in Turner v. Murray, I find "the risk that racial prejudice may [366] have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized." 476 U. S., at 36. I dissent.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
There "is a qualitative difference between death and any other permissible form of punishment," and hence, " `a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' " Zant v. Stephens, 462 U. S. 862, 884-885 (1983), quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion of Stewart, POWELL, and STEVENS, JJ.). Even when considerations far less repugnant than racial discrimination are involved, we have recognized the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U. S. 349, 358 (1977). "[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." Zant, supra, at 885.
In this case it is claimed — and the claim is supported by elaborate studies which the Court properly assumes to be valid — that the jury's sentencing process was likely distorted by racial prejudice. The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed "the community's outrage — its sense that an individual has lost his moral entitlement to live," Spaziano v. Florida, 468 U. S. 447, 469 (1984) (STEVENS, J., dissenting) — was influenced by the fact that McCleskey is black and his victim was white, and that this same outrage would not have been generated if he had killed a member of his own race. This sort of disparity is constitutionally intolerable. It flagrantly violates the Court's prior "insistence that capital punishment be [367] imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U. S. 104, 112 (1982).
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As JUSTICE BRENNAN has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay.
Like JUSTICE BRENNAN, I would therefore reverse the judgment of the Court of Appeals. I believe, however, that further proceedings are necessary in order to determine whether McCleskey's death sentence should be set aside. First, the Court of Appeals must decide whether the Baldus study is valid. I am persuaded that it is, but orderly procedure requires that the Court of Appeals address this issue before we actually decide the question. Second, it is necessary for the District Court to determine whether the particular facts of McCleskey's crime and his background place this case within the range of cases that present an unacceptable risk that race played a decisive role in McCleskey's sentencing.
Accordingly, I respectfully dissent.
[*] Briefs of amici curiae urging reversal were filed for the Congressional Black Caucus et al. by Seth P. Waxman, Harold R. Tyler, Jr., James Robertson, Norman Redlich, William L. Robinson, and Grover Hankins; and for the International Human Rights Law Group by Ralph G. Steinhardt.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General; and for the Washington Legal Foundation et al. by Daniel J. Popeo and George C. Smith.
Martin F. Richman filed a brief for Dr. Franklin M. Fisher et al. as amici curiae.
[1] The Georgia Code has been revised and renumbered since McCleskey's trial. The changes do not alter the substance of the sections relevant to this case. For convenience, references in this opinion are to the current sections.
The Georgia Code contains only one degree of murder. A person commits murder "when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann. § 16-5-1(a) (1984). A person convicted of murder "shall be punished by death or by imprisonment for life." § 16-5-1(d).
[2] Georgia Code Ann. § 17-10-2(c) (1982) provides that when a jury convicts a defendant of murder, "the court shall resume the trial and conduct a presentence hearing before the jury." This subsection suggests that a defendant convicted of murder always is subjected to a penalty hearing at which the jury considers imposing a death sentence. But as a matter of practice, penalty hearings seem to be held only if the prosecutor affirmatively seeks the death penalty. If he does not, the defendant receives a sentence of life imprisonment. See Baldus, Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & C. 661, 674, n. 56 (1983).
[3] A jury cannot sentence a defendant to death for murder unless it finds that one of the following aggravating circumstances exists beyond a reasonable doubt:
"(1) The offense . . . was committed by a person with a prior record of conviction for a capital felony;
"(2) The offense . . . was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;
"(3) The offender, by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
"(4) The offender committed the offense . . . for himself or another, for the purpose of receiving money or any other thing of monetary value;
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor, or former district attorney or solicitor was committed during or because of the exercise of his official duties;
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
"(8) The offense . . . was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties;
"(9) The offense . . . was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 17-10-30(b).
[4] Georgia law provides that "[w]here a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death." § 17-10-31.
[5] Baldus' 230-variable model divided cases into eight different ranges, according to the estimated aggravation level of the offense. Baldus argued in his testimony to the District Court that the effects of racial bias were most striking in the midrange cases. "[W]hen the cases become tremendously aggravated so that everybody would agree that if we're going to have a death sentence, these are the cases that should get it, the race effects go away. It's only in the mid-range of cases where the decisionmakers have a real choice as to what to do. If there's room for the exercise of discretion, then the [racial] factors begin to play a role." App. 36. Under this model, Baldus found that 14.4% of the black-victim midrange cases received the death penalty, and 34.4% of the white-victim cases received the death penalty. See Exhibit DB 90, reprinted in Supplemental Exhibits 54. According to Baldus, the facts of McCleskey's case placed it within the midrange. App. 45-46.
[6] Baldus, among other experts, testified at the evidentiary hearing. The District Court "was impressed with the learning of all of the experts." 580 F. Supp., at 353 (emphasis omitted). Nevertheless, the District Court noted that in many respects the data were incomplete. In its view, the questionnaires used to obtain the data failed to capture the full degree of the aggravating or mitigating circumstances. Id., at 356. The court criticized the researcher's decisions regarding unknown variables. Id., at 357-358. The researchers could not discover whether penalty trials were held in many of the cases, thus undercutting the value of the study's statistics as to prosecutorial decisions. Id., at 359. In certain cases, the study lacked information on the race of the victim in cases involving multiple victims, on whether or not the prosecutor offered a plea bargain, and on credibility problems with witnesses. Id., at 360. The court concluded that McCleskey had failed to establish by a preponderance of the evidence that the data were trustworthy. "It is a major premise of a statistical case that the data base numerically mirrors reality. If it does not in substantial degree mirror reality, any inferences empirically arrived at are untrustworthy." Ibid.
The District Court noted other problems with Baldus' methodology. First, the researchers assumed that all of the information available from the questionnaires was available to the juries and prosecutors when the case was tried. The court found this assumption "questionable." Id., at 361. Second, the court noted the instability of the various models. Even with the 230-variable model, consideration of 20 further variables caused a significant drop in the statistical significance of race. In the court's view, this undermined the persuasiveness of the model that showed the greatest racial disparity, the 39-variable model. Id., at 362. Third, the court found that the high correlation between race and many of the nonracial variables diminished the weight to which the study was entitled. Id., at 363-364.
Finally, the District Court noted the inability of any of the models to predict the outcome of actual cases. As the court explained, statisticians use a measure called an "r[2]" to measure what portion of the variance in the dependent variable (death sentencing rate, in this case) is accounted for by the independent variables of the model. A perfectly predictive model would have an r[2] value of 1.0. A model with no predictive power would have an r[2] value of 0. The r[2] value of Baldus' most complex model, the 230-variable model, was between .46 and .48. Thus, as the court explained, "the 230-variable model does not predict the outcome in half of the cases." Id., at 361.
[7] Although the District Court rejected the findings of the Baldus study as flawed, the Court of Appeals assumed that the study is valid and reached the constitutional issues. Accordingly, those issues are before us. As did the Court of Appeals, we assume the study is valid statistically without reviewing the factual findings of the District Court. Our assumption that the Baldus study is statistically valid does not include the assumption that the study shows that racial considerations actually enter into any sentencing decisions in Georgia. Even a sophisticated multiple-regression analysis such as the Baldus study can only demonstrate a risk that the factor of race entered into some capital sentencing decisions and a necessarily lesser risk that race entered into any particular sentencing decision.
[8] Although McCleskey has standing to claim that he suffers discrimination because of his own race, the State argues that he has no standing to contend that he was discriminated against on the basis of his victim's race. While it is true that we are reluctant to recognize "standing to assert the rights of third persons," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 263 (1977), this does not appear to be the nature of McCleskey's claim. He does not seek to assert some right of his victim, or the rights of black murder victims in general. Rather, McCleskey argues that application of the State's statute has created a classification that is "an irrational exercise of governmental power," Brief for Petitioner 41, because it is not "necessary to the accomplishment of some permissible state objective." Loving v. Virginia, 388 U. S. 1, 11 (1967). See McGowan v. Maryland, 366 U. S. 420, 425 (1961) (statutory classification cannot be "wholly irrelevant to the achievement of the State's objective"). It would violate the Equal Protection Clause for a State to base enforcement of its criminal laws on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U. S. 448, 456 (1962). See Cleveland Bd. of Ed. v. Lafleur, 414 U. S. 632, 652-653 (1974) (POWELL, J., concurring). Because McCleskey raises such a claim, he has standing.
[9] See, e. g., Shaw v. Martin, 733 F. 2d 304, 311-314 (CA4), cert. denied, 469 U. S. 873 (1984); Adams v. Wainwright, 709 F. 2d 1443 (CA11 1983) (per curiam), cert. denied, 464 U. S. 1063 (1984); Smith v. Balkcom, 660 F. 2d 573, 584-585, modified, 671 F. 2d 858, 859-860 (CA5 Unit B 1981) (per curiam), cert. denied, 459 U. S. 882 (1982); Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (CA5 1978), cert. denied, 440 U. S. 976 (1979).
[10] See Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 265; Washington v. Davis, 426 U. S. 229, 240 (1976).
[11] McCleskey's expert testified:
"Models that are developed talk about the effect on the average. They do not depict the experience of a single individual. What they say, for example, [is] that on the average, the race of the victim, if it is white, increases on the average the probability . . . (that) the death sentence would be given.
"Whether in a given case that is the answer, it cannot be determined from statistics." 580 F. Supp., at 372.
[12] Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Yick Wo v. Hopkins, 118 U. S. 356 (1886), are examples of those rare cases in which a statistical pattern of discriminatory impact demonstrated a constitutional violation. In Gomillion, a state legislature violated the Fifteenth Amendment by altering the boundaries of a particular city "from a square to an uncouth twenty-eight-sided figure." 364 U. S., at 340. The alterations excluded 395 of 400 black voters without excluding a single white voter. In Yick Wo, an ordinance prohibited operation of 310 laundries that were housed in wooden buildings, but allowed such laundries to resume operations if the operator secured a permit from the government. When laundry operators applied for permits to resume operation, all but one of the white applicants received permits, but none of the over 200 Chinese applicants were successful. In those cases, the Court found the statistical disparities "to warrant and require," Yick Wo v. Hopkins, supra, at 373, a "conclusion [that was] irresistible, tantamount for all practical purposes to a mathematical demonstration," Gomillion v. Lightfoot, supra, at 341, that the State acted with a discriminatory purpose.
[13] See, e. g., Castaneda v. Partida, 430 U. S. 482, 495 (1977) (2-to-1 disparity between Mexican-Americans in county population and those summoned for grand jury duty); Turner v. Fouche, 396 U. S. 346, 359 (1970) (1.6-to-1 disparity between blacks in county population and those on grand jury lists); Whitus v. Georgia, 385 U. S. 545, 552 (1967) (3-to-1 disparity between eligible blacks in county and blacks on grand jury venire).
[14] In venire-selection cases, the factors that may be considered are limited, usually by state statute. See Castaneda v. Partida, supra, at 485 ("A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be `of sound mind and good moral character,' be literate, have no prior felony conviction, and be under no pending indictment `or other legal accusation for theft or of any felony' "); Turner v. Fouche, supra, at 354 (jury commissioners may exclude any not "upright" and "intelligent" from grand jury service); Whitus v. Georgia, supra, at 548 (same). These considerations are uniform for all potential jurors, and although some factors may be said to be subjective, they are limited and, to a great degree, objectively verifiable. While employment decisions may involve a number of relevant variables, these variables are to a great extent uniform for all employees because they must all have a reasonable relationship to the employee's qualifications to perform the particular job at issue. Identifiable qualifications for a single job provide a common standard by which to assess each employee. In contrast, a capital sentencing jury may consider any factor relevant to the defendant's background, character, and the offense. See Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). There is no common standard by which to evaluate all defendants who have or have not received the death penalty.
[15] We refer here not to the number of entities involved in any particular decision, but to the number of entities whose decisions necessarily are reflected in a statistical display such as the Baldus study. The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. Therefore, an unexplained statistical discrepancy can be said to indicate a consistent policy of the decisionmaker. The Baldus study seeks to deduce a state "policy" by studying the combined effects of the decisions of hundreds of juries that are unique in their composition. It is incomparably more difficult to deduce a consistent policy by studying the decisions of these many unique entities. It is also questionable whether any consistent policy can be derived by studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. See Ga. Const., Art. 6, § 8, ¶ 1. Since decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial "policy" is of doubtful relevance. Moreover, the statistics in Fulton County alone represent the disposition of far fewer cases than the statewide statistics. Even assuming the statistical validity of the Baldus study as a whole, the weight to be given the results gleaned from this small sample is limited.
[16] See Wayte v. United States, 470 U. S. 598, 607 (1985); United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982); Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). See also ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982).
[17] Requiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U. S. 79 (1986).
[18] Although Imbler was decided in the context of damages actions under 42 U. S. C. § 1983 brought against prosecutors, the considerations that led the Court to hold that a prosecutor should not be required to explain his decisions apply in this case as well: "[I]f the prosecutor could be made to answer in court each time . . . a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." 424 U. S., at 425. Our refusal to require that the prosecutor provide an explanation for his decisions in this case is completely consistent with this Court's longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case. See, e. g., Batson v. Kentucky, supra; Wayte v. United States, supra.
[19] In his dissent, JUSTICE BLACKMUN misreads this statement. See post, at 348-349. We do not suggest that McCleskey's conviction and sentencing by a jury bears on the prosecutor's motivation. Rather, the fact that the United States Constitution and the laws of Georgia authorized the prosecutor to seek the death penalty under the circumstances of this case is a relevant factor to be weighed in determining whether the Baldus study demonstrates a constitutionally significant risk that this decision was motivated by racial considerations.
[20] McCleskey relies on "historical evidence" to support his claim of purposeful discrimination by the State. This evidence focuses on Georgia laws in force during and just after the Civil War. Of course, the "historical background of the decision is one evidentiary source" for proof of intentional discrimination. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 267. But unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. Cf. Hunter v. Underwood, 471 U. S. 222, 228-233 (1985) (relying on legislative history to demonstrate discriminatory motivation behind state statute). Although the history of racial discrimination in this country is undeniable, we cannot accept official actions taken long ago as evidence of current intent.
[21] JUSTICE BLACKMUN suggests that our "reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is . . . inappropriate [because] it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case." Post, at 349 (emphasis in original). As the dissent suggests, this evidence is not particularly probative when assessing the application of Georgia's capital punishment system through the actions of prosecutors and juries, as we did in Part II-A, supra. But that is not the challenge that we are addressing here. As indicated above, the question we are addressing is whether the legislature maintains its capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. McCleskey has introduced no evidence to support this claim. It is entirely appropriate to rely on the legislature's legitimate reasons for enacting and maintaining a capital punishment statute to address a challenge to the legislature's intent.
[22] The Eighth Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U. S. 660, 667 (1962).
[23] Thirty-seven States now have capital punishment statutes that were enacted since our decision in Furman. Thirty-three of these States have imposed death sentences under the new statutes. NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 1 (Oct. 1, 1986). A federal statute, amended in relevant part in 1974, authorizes the death penalty for aircraft piracy in which a death occurs. 49 U. S. C. App. § 1472(i)(1)(b).
[24] We have noted that the Georgia statute generally follows the standards of the ALI Model Penal Code § 201.6 (Proposed Official Draft No. 13, 1961). Gregg v. Georgia, 428 U. S., at 194, n. 44.
[25] Although the Court has recognized that jury sentencing in a capital case "can perform an important societal function," Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (citing Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)), it "has never suggested that jury sentencing [in a capital case] is constitutionally required." 428 U. S., at 252. Under the Florida capital punishment system at issue in Proffitt, the jury's verdict is only advisory. The trial judge determines the final sentence. Unlike in Georgia, a Florida trial judge may impose the death penalty even when the jury recommends otherwise. In Proffitt, we found that the Florida capital sentencing procedures adequately channeled the trial judge's discretion so that the Florida system, like the Georgia system, on its face "satisfie[d] the constitutional deficiencies identified in Furman." Id., at 253.
[26] We have not yet decided whether the Constitution permits a mandatory death penalty in certain narrowly defined circumstances, such as when an inmate serving a life sentence without possibility of parole commits murder. See Shuman v. Wolff, 791 F. 2d 788 (CA9), cert. granted sub nom. Sumner v. Shuman, 479 U. S. 948 (1986).
[27] This section is substantially identical to the current Georgia Code Ann. § 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra.
[28] The Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant's ultimate sentence, even though they may be irrelevant to his actual guilt. If sufficient evidence to link a suspect to a crime cannot be found, he will not be charged. The capability of the responsible law enforcement agency can vary widely. Also, the strength of the available evidence remains a variable throughout the criminal justice process and may influence a prosecutor's decision to offer a plea bargain or to go to trial. Witness availability, credibility, and memory also influence the results of prosecutions. Finally, sentencing in state courts is generally discretionary, so a defendant's ultimate sentence necessarily will vary according to the judgment of the sentencing authority. The foregoing factors necessarily exist in varying degrees throughout our criminal justice system.
[29] According to Professor Baldus:
"McCleskey's case falls in [a] grey area where . . . you would find the greatest likelihood that some inappropriate consideration may have come to bear on the decision.
"In an analysis of this type, obviously one cannot say that we can say to a moral certainty what it was that influenced the decision. We can't do that." App. 45-46.
[30] This Court has repeatedly stated that prosecutorial discretion cannot be exercised on the basis of race. Wayte v. United States, 470 U. S., at 608; United States v. Batchelder, 442 U. S. 114 (1979); Oyler v. Boles, 368 U. S. 448 (1962). Nor can a prosecutor exercise peremptory challenges on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Swain v. Alabama, 380 U. S. 202 (1965). More generally, this Court has condemned state efforts to exclude blacks from grand and petit juries. Vasquez v. Hillery, 474 U. S. 254 (1986); Alexander v. Louisiana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 U. S., at 549-550; Norris v. Alabama, 294 U. S. 587, 589 (1935); Neal v. Delaware, 103 U. S. 370, 394 (1881); Strauder v. West Virginia, 100 U. S. 303, 308 (1880); Ex parte Virginia, 100 U. S. 339 (1880).
Other protections apply to the trial and jury deliberation process. Widespread bias in the community can made a change of venue constitutionally required. Irvin v. Dowd, 366 U. S. 717 (1961). The Constitution prohibits racially biased prosecutorial arguments. Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). If the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requires questioning as to such bias. Ristaino v. Ross, 424 U. S. 589, 596 (1976). Finally, in a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such questioning without regard to the circumstances of the particular case. Turner v. Murray, 476 U. S. 28 (1986).
[31] In advocating the adoption of the Constitution, Alexander Hamilton stated:
"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them, it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." The Federalist No. 83, p. 519 (J. Gideon ed. 1818).
[32] In Witherspoon, JUSTICE BRENNAN joined the opinion of the Court written by Justice Stewart. The Court invalidated a statute that permitted a prosecutor to eliminate prospective jurors by challenging all who expressed qualms about the death penalty. The Court expressly recognized that the purpose of the "broad discretion" given to a sentencing jury is "to decide whether or not death is `the proper penalty' in a given case," noting that "a juror's general views about capital punishment play an inevitable role in any such decision." 391 U. S., at 519 (emphasis omitted). Thus, a sentencing jury must be composed of persons capable of expressing the "conscience of the community on the ultimate question of life or death." Ibid. The Court referred specifically to the plurality opinion of Chief Justice Warren in Trop v. Dulles, 356 U. S. 86 (1958), to the effect that it is the jury that must "maintain a link between contemporary community values and the penal system . . . ." 391 U. S., at 519, n. 15.
JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. As to community values and the constitutionality of capital punishment in general, we have previously noted, n. 23, supra, that the elected representatives of the people in 37 States and the Congress have enacted capital punishment statutes, most of which have been enacted or amended to conform generally to the Gregg standards, and that 33 States have imposed death sentences thereunder. In the individual case, a jury sentence reflects the conscience of the community as applied to the circumstances of a particular offender and offense. We reject JUSTICE BRENNAN's contention that this important standard for assessing the constitutionality of a death penalty should be abandoned.
[33] In the guilt phase of a trial, the Double Jeopardy Clause bars reprosecution after an acquittal, even if the acquittal is " `based upon an egregiously erroneous foundation.' " United States v. DiFrancesco, 449 U. S. 117, 129 (1980) (quoting Fong Foo v. United States, 369 U. S. 141, 143 (1962)). See Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 7-8 (1966) (Despite the apparent injustice of such an acquittal, "[t]he founding fathers, in light of history, decided that the balance here should be struck in favor of the individual").
In the penalty hearing, Georgia law provides that "unless the jury . . . recommends the death sentence in its verdict, the court shall not sentence the defendant to death." Georgia Code Ann. § 17-10-31 (1982). In Bullington v. Missouri, 451 U. S. 430 (1981), this Court held that the Double Jeopardy Clause of the Constitution prohibits a State from asking for a sentence of death at a second trial when the jury at the first trial recommended a lesser sentence.
[34] In this case, for example, McCleskey declined to enter a guilty plea. According to his trial attorney: "[T]he Prosecutor was indicating that we might be able to work out a life sentence if he were willing to enter a plea. But we never reached any concrete stage on that because Mr. McCleskey's attitude was that he didn't want to enter a plea. So it never got any further than just talking about it." Tr. in No. 4909, p. 56 (Jan. 30, 1981).
[35] Congress has acknowledged the existence of such discrepancies in criminal sentences, and in 1984 created the United States Sentencing Commission to develop sentencing guidelines. The objective of the guidelines "is to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct, while maintaining sufficient flexibility to permit individualized sentencing when warranted by mitigating or aggravating factors not taken into account in the guidelines." 52 Fed. Reg. 3920 (1987) (emphasis added). No one contends that all sentencing disparities can be eliminated. The guidelines, like the safeguards in the Gregg-type statute, further an essential need of the Anglo-American criminal justice system — to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion.
[36] The Baldus study in fact confirms that the Georgia system results in a reasonable level of proportionality among the class of murderers eligible for the death penalty. As Professor Baldus confirmed, the system sorts out cases where the sentence of death is highly likely and highly unlikely, leaving a midrange of cases where the imposition of the death penalty in any particular case is less predictable. App. 35-36. See n. 5, supra.
[37] JUSTICE BRENNAN's eloquent dissent of course reflects his often repeated opposition to the death sentence. His views, that also are shared by JUSTICE MARSHALL, are principled and entitled to respect. Nevertheless, since Gregg was decided in 1976, seven Members of this Court consistently have upheld sentences of death under Gregg-type statutes providing for meticulous review of each sentence in both state and federal courts. The ultimate thrust of JUSTICE BRENNAN's dissent is that Gregg and its progeny should be overruled. He does not, however, expressly call for the overruling of any prior decision. Rather, relying on the Baldus study, JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, questions the very heart of our criminal justice system: the traditional discretion that prosecutors and juries necessarily must have.
We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. Woodson v. North Carolina, 428 U. S. 280 (1976). See supra, at 303-306. Yet, the dissent now claims that the "discretion afforded prosecutors and jurors in the Georgia capital sentencing system" violates the Constitution by creating "opportunities for racial considerations to influence criminal proceedings." Post, at 333. The dissent contends that in Georgia "[n]o guidelines govern prosecutorial decisions. . . and [that] Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another." Ibid. Prosecutorial decisions necessarily involve both judgmental and factual decisions that vary from case to case. See ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982). Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.
The reference to the failure to provide juries with the list of aggravating and mitigating factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute. See n. 3, supra. The jury is not provided with a list of aggravating circumstances because not all of them are relevant to any particular crime. Instead, the prosecutor must choose the relevant circumstances and the State must prove to the jury that at least one exists beyond a reasonable doubt before the jury can even consider imposing the death sentence. It would be improper and often prejudicial to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence.
The dissent's argument that a list of mitigating factors is required is particularly anomalous. We have held that the Constitution requires that juries be allowed to consider "any relevant mitigating factor," even if it is not included in a statutory list. Eddings v. Oklahoma, 455 U. S., at 112. See Lockett v. Ohio, 438 U. S. 586 (1978). The dissent does not attempt to harmonize its criticism with this constitutional principle. The dissent also does not suggest any standard, much less a workable one, for balancing aggravating and mitigating factors. If capital defendants are to be treated as "uniquely individual human beings," Woodson v. North Carolina, supra, at 304, then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential.
The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality in imposing the death penalty." Post, at 335. Again, no suggestion is made as to how greater "rationality" could be achieved under any type of statute that authorizes capital punishment. The Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. All of these are administered pursuant to this Court's decisions interpreting the limits of the Eighth Amendment on the imposition of the death penalty, and all are subject to ultimate review by this Court. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. As we reiterate, infra, the requirement of heightened rationality in the imposition of capital punishment does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.
[38] Studies already exist that allegedly demonstrate a racial disparity in the length of prison sentences. See, e. g., Spohn, Gruhl, & Welch, The Effect of Race on Sentencing: A Reexamination of an Unsettled Question, 16 Law & Soc. Rev. 71 (1981-1982); Unnever, Frazier, & Henretta, Race Differences in Criminal Sentencing, 21 Sociological Q. 197 (1980).
[39] In Regents of the University of California v. Bakke, 438 U. S. 265, 295 (1978) (opinion of POWELL, J.), we recognized that the national "majority" "is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals." See id., at 292 (citing Strauder v. West Virginia, 100 U. S., at 308 (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Traux v. Raich, 239 U. S. 33, 36, 41-42 (1915) (Austrian resident aliens); Korematsu v. United States, 323 U. S. 214, 216 (1944) (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans)). See also Uniform Guidelines on Employee Selection Procedures (1978), 29 CFR § 1607.4(B) (1986) (employer must keep records as to the "following races and ethnic groups: Blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), and whites (Caucasians) other than Hispanics"); U. S. Bureau of the Census, 1980 Census of the Population, Vol. 1, ch. B (PC80-1-B), reprinted in 1986 Statistical Abstract of the United States 29 (dividing United States population by "race and Spanish origin" into the following groups: White, Black, American Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, Spanish origin, and all other races); U. S. Bureau of the Census, 1980 Census of the Population, Supplementary Report, series PC80-S1-10, reprinted in 1986 Statistical Abstract of the United States 34 (listing 44 ancestry groups and noting that many individuals reported themselves to belong to multiple ancestry groups).
We also have recognized that the ethnic composition of the Nation is ever shifting. Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), illustrates demographic facts that we increasingly find in our country, namely, that populations change in composition, and may do so in relatively short timespans. We noted: "In 1968 when the case went to trial, the [Los Angeles] District was 53.6% white, 22.6% black, 20% Hispanic, and 3.8% Asian and other. By October 1980, the demographic composition had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and other." Id., at 530, n. 1. Increasingly whites are becoming a minority in many of the larger American cities. There appears to be no reason why a white defendant in such a city could not make a claim similar to McCleskey's if racial disparities in sentencing arguably are shown by a statistical study.
Finally, in our heterogeneous society the lower courts have found the boundaries of race and ethnicity increasingly difficult to determine. See Shaare Tefila Congregation v. Cobb, 785 F. 2d 523 (CA4), cert. granted, 479 U. S. 812 (1986), and Al-Khazraji v. Saint Francis College, 784 F. 2d 505 (CA3), cert. granted, 479 U. S. 812 (1986) (argued Feb. 25, 1987) (presenting the questions whether Jews and Arabs, respectively, are "races" covered by 42 U. S. C. §§ 1981 and 1982).
[40] See Chamblin, The Effect of Sex on the Imposition of the Death Penalty (speech given at a symposium of the American Psychological Association, entitled "Extra-legal Attributes Affecting Death Penalty Sentencing," New York City, Sept., 1979); Steffensmeier, Effects of Judge's and Defendant's Sex on the Sentencing of Offenders, 14 Psychology, Journal of Human Behavior, 3 (Aug. 1977).
[41] See Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611, 1625-1640, and n. 115 (1985) (citing Cohen & Peterson, Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts, 9 Social Behavior & Personality 81 (1981)); Hodgson & Pryor, Sex Discrimination in the Courtroom: Attorney's Gender and Credibility, 55 Psychological Rep. 483 (1984).
[42] See Steffensmeier, supra, at 7.
[43] See Kerr, Bull, MacCoun, & Rathborn, Effects of victim attractiveness, care and disfigurement on the judgements of American and British mock jurors, 24 Brit. J. Social Psych. 47 (1985); Johnson, supra, at 1638, n. 128 (citing Shoemaker, South, & Lowe, Facial Stereotypes of Deviants and Judgments of Guilt or Innocence, 51 Social Forces 427 (1973)).
[44] Some studies indicate that physically attractive defendants receive greater leniency in sentencing than unattractive defendants, and that offenders whose victims are physically attractive receive harsher sentences than defendants with less attractive victims. Smith & Hed, Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries, 44 Psychological Rep. 691 (1979); Kerr, Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors' Verdicts, 4 Personality and Social Psych. Bull. 479 (1978). But see Baumeister & Darley, Reducing the Biasing Effect of Perpetrator Attractiveness in Jury Simulation, 8 Personality and Social Psych. Bull. 286 (1982); Schwibbe & Schwibbe, Judgment and Treatment of People of Varied Attractiveness, 48 Psychological Rep. 11 (1981); Weiten, The Attraction-Leniency Effect in Jury Research: An Examination of External Validity, 10 J. Applied Social Psych. 340 (1980).
[45] JUSTICE STEVENS, who would not overrule Gregg, suggests in his dissent that the infirmities alleged by McCleskey could be remedied by narrowing the class of death-eligible defendants to categories identified by the Baldus study where "prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender." Post, at 367. This proposed solution is unconvincing. First, "consistently" is a relative term, and narrowing the category of death-eligible defendants would simply shift the borderline between those defendants who received the death penalty and those who did not. A borderline area would continue to exist and vary in its boundaries. Moreover, because the discrepancy between borderline cases would be difficult to explain, the system would likely remain open to challenge on the basis that the lack of explanation rendered the sentencing decisions unconstitutionally arbitrary.
Second, even assuming that a category with theoretically consistent results could be identified, it is difficult to imagine how JUSTICE STEVENS' proposal would or could operate on a case-by-case basis. Whenever a victim is white and the defendant is a member of a different race, what steps would a prosecutor be required to take — in addition to weighing the customary prosecutorial considerations — before concluding in the particular case that he lawfully could prosecute? In the absence of a current, Baldus-type study focused particularly on the community in which the crime was committed, where would he find a standard? Would the prosecutor have to review the prior decisions of community prosecutors and determine the types of cases in which juries in his jurisdiction "consistently" had imposed the death penalty when the victim was white and the defendant was of a different race? And must he rely solely on statistics? Even if such a study were feasible, would it be unlawful for the prosecutor, in making his final decision in a particular case, to consider the evidence of guilt and the presence of aggravating and mitigating factors? However conscientiously a prosecutor might attempt to identify death-eligible defendants under the dissent's suggestion, it would be a wholly speculative task at best, likely to result in less rather than more fairness and consistency in the imposition of the death penalty.
[1] Once we can identify a pattern of arbitrary sentencing outcomes, we can say that a defendant runs a risk of being sentenced arbitrarily. It is thus immaterial whether the operation of an impermissible influence such as race is intentional. While the Equal Protection Clause forbids racial discrimination, and intent may be critical in a successful claim under that provision, the Eighth Amendment has its own distinct focus: whether punishment comports with social standards of rationality and decency. It may be, as in this case, that on occasion an influence that makes punishment arbitrary is also proscribed under another constitutional provision. That does not mean, however, that the standard for determining an Eighth Amendment violation is superseded by the standard for determining a violation under this other provision. Thus, the fact that McCleskey presents a viable equal protection claim does not require that he demonstrate intentional racial discrimination to establish his Eighth Amendment claim.
[2] The first two and the last of the study's eight case categories represent those cases in which the jury typically sees little leeway in deciding on a sentence. Cases in the first two categories are those that feature aggravating factors so minimal that juries imposed no death sentences in the 88 cases with these factors during the period of the study. Supp. Exh. 54. Cases in the eighth category feature aggravating factors so extreme that the jury imposed the death penalty in 88% of the 58 cases with these factors in the same period. Ibid.
[3] In the five categories characterized as intermediate, the rate at which the death penalty was imposed ranged from 8% to 41%. The overall rate for the 326 cases in these categories was 20%. Ibid.
[4] The considerable racial disparity in sentencing rates among these cases is consistent with the "liberation hypothesis" of H. Kalven and H. Zeisel in their landmark work, The American Jury (1966). These authors found that, in close cases in which jurors were most often in disagreement, "[t]he closeness of the evidence makes it possible for the jury to respond to sentiment by liberating it from the discipline of the evidence." Id., at 165. While "the jury does not often consciously and explicitly yield to sentiment in the teeth of the law . . . it yields to sentiment in the apparent process of resolving doubts as to evidence. The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." Ibid. Thus, it is those cases in which sentencing evidence seems to dictate neither life imprisonment nor the death penalty that impermissible factors such as race play the most prominent role.
[5] The fact that a victim was white accounts for a nine percentage point difference in the rate at which the death penalty is imposed, which is the same difference attributable to a prior murder conviction or the fact that the defendant was the "prime mover" in planning a murder. Supp. Exh. 50.
[6] NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 4 (Aug. 1, 1986).
[7] See generally Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L. Rev. 701 (1980).
[8] Death could also be inflicted upon a slave who "grievously wound[ed], maim[ed], or bruis[ed] any white person," who was convicted for the third time of striking a white person, or who attempted to run away out of the province. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978). On the other hand, a person who willfully murdered a slave was not punished until the second offense, and then was responsible simply for restitution to the slave owner. Furthermore, conviction for willful murder of a slave was subject to the difficult requirement of the oath of two white witnesses. Id., at 253-254, and n. 190.
[9] The Court contends that it is inappropriate to take into account the wide latitude afforded actors in the Georgia capital sentencing system, since "[w]e have held that discretion in a capital punishment system is necessary to satisfy the Constitution," ante, at 314, n. 37, and "no suggestion is made as to how greater `rationality' could be achieved under any type of statute that authorizes capital punishment." Ibid. The first point is true, but of course the Court struck down the death penalty in Furman v. Georgia, 408 U. S. 238 (1972), because the sentencing systems before it provided too much discretion. Since Gregg v. Georgia, 428 U. S. 153 (1976), the Court's death penalty jurisprudence has rested on the premise that it is possible to establish a system of guided discretion that will both permit individualized moral evaluation and prevent impermissible considerations from being taken into account. As JUSTICE BLACKMUN has persuasively demonstrated, post, at 357-358, Georgia provides no systematic guidelines for prosecutors to utilize in determining for which defendants the death penalty should be sought. Furthermore, whether a State has chosen an effective combination of guidance and discretion in its capital sentencing system as a whole cannot be established in the abstract, as the Court insists on doing, but must be determined empirically, as the Baldus study has done.
With respect to the Court's criticism that McCleskey has not shown how Georgia could do a better job, ante, at 315, n. 37, once it is established that the particular system of guided discretion chosen by a State is not achieving its intended purpose, the burden is on the State, not the defendant, to devise a more rational system if it wishes to continue to impose the death penalty.
[10] As Maitland said of the provision of the Magna Carta regulating the discretionary imposition of fines, "[v]ery likely there was no clause in Magna Carta more grateful to the mass of the people." F. Maitland, Pleas of the Crown For the County of Gloucester xxxiv (1884). In our own country, the point is underscored by Patrick Henry's remarks in support of the adoption of a Bill of Rights:
"Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives." 3 J. Elliot's Debates on the Constitution 447 (1854).
[1] I agree with JUSTICE STEVENS' position that the proper course is to remand this case to the Court of Appeals for determination of the validity of the statistical evidence presented. Post, at 367. Like JUSTICE STEVENS, however, I am persuaded that the Baldus study is valid and would remand merely in the interest of orderly procedure.
[2] See, e. g., H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., pt. II, p. 25 (1866) (testimony of George Tucker, Virginia attorney) ("They have not any idea of prosecuting white men for offenses against colored people; they do not appreciate the idea"); id., at 209 (testimony of Dexter H. Clapp) ("Of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, . . . I have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons"); id., at 213 (testimony of J. A. Campbell) (although identities of men suspected of killing two blacks known, no arrest or trial had occurred); id., pt. III, p. 141 (testimony of Brev. Maj. Gen. Wager Swayne) ("I have not known, after six months' residence at the capital of the State, a single instance of a white man being convicted and hung or sent to the penitentiary for crime against a negro, while many cases of crime warranting such punishment have been reported to me"); id., pt. IV, p. 75 (testimony of Maj. Gen. George A. Custer) ("[I]t is of weekly, if not of daily, occurrence that freedmen are murdered. . . . [S]ometimes it is not known who the perpetrators are; but when that is known no action is taken against them. I believe a white man has never been hung for murder in Texas, although it is the law").
In Brown v. Board of Education, 347 U. S. 483 (1954), this Court held that, despite the fact that the legislative history of the Fourteenth Amendment indicated that Congress did not view racial discrimination in public education as a specific target, the Amendment nevertheless prohibited such discrimination. The Court today holds that even though the Fourteenth Amendment was aimed specifically at eradicating discrimination in the enforcement of criminal sanctions, allegations of such discrimination supported by substantial evidence are not constitutionally cognizable. But see Batson v. Kentucky, 476 U. S. 79, 85 (1986) (allegations of racially discriminatory exercise of peremptory challenges by prosecutor subject to review under Fourteenth Amendment because "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure").
[3] The Court refers to the prosecutor's role in the capital sentencing process without analyzing the import of the statistical evidence concerning the steps of the process at which the prosecutor determines the future of the case. The Court recognizes that the prosecutor determines whether a case even will proceed to the penalty phase. If the prosecutor does not pursue the death penalty, a mandatory sentence of life imprisonment is imposed. See ante, at 284, n. 2. It lists many of the factors that prosecutors take into account in making their decisions, ante, at 307-308, n. 28, and recognizes that in each case the prosecutor can decline to charge, or to offer a plea bargain, or to seek a death sentence, ante, at 312. It also notes that the Baldus study "found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims," ante, at 287.
The Court relies heavily on its assertion that prosecutorial discretion should not be reviewed, ante, at 296-297, 311-312, but elsewhere concedes that such discretion may not be exercised in a racially discriminatory manner, ante, at 309, n. 30. It nowhere explains why this limitation on prosecutorial discretion does not require the same analysis that we apply in other cases involving equal protection challenges to the exercise of prosecutorial discretion. See, e. g., Batson v. Kentucky, 476 U. S. 79 (1986).
[4] The use of the prima facie case method to structure proof in cases charging racial discrimination is appropriate because it "progressively . . . sharpen[s] the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 255, n. 8 (1981); see McCleskey v. Kemp, 753 F. 2d 877, 912 (CA11 1985) (Johnson, J., dissenting in part and concurring in part) (where the "prosecutor has considerable discretion and the jury has bounded but irreducible discretion," the discretion could easily mask conscious or unconscious racial discrimination and indirect methods of proof are therefore required as outlined in Washington v. Davis, 426 U. S. 229, 241-242 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266, n. 13 (1977)).
[5] The Court recently explained: "In deciding if the defendant has carried his burden of persuasion, a court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.' Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266. Circumstantial evidence of invidious intent may include proof of disproportionate impact. Washington v. Davis, 426 U. S., at 242. We have observed that under some circumstances proof of discriminatory impact `may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.' Ibid." Batson v. Kentucky, 476 U. S., at 93.
[6] In Castaneda, we explained that in jury-selection cases where the criminal defendant is attempting to prove that there was discriminatory exclusion of potential jurors we apply the "rule of exclusion" method of proof. 430 U. S., at 494. The underlying rationale is that "[i]f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process." Id., at 494, n. 13.
[7] Although the Court states that it assumes the validity of the Baldus study for purposes of its analysis, because of its detailed discussion of the District Court's reasons for rejecting its validity I am compelled to record my disagreement with the District Court's reasoning. As a member of the United States Court of Appeals, I was confronted in 1968 with a challenge to the constitutionality of a State's capital sentencing system based on allegations of racial discrimination supported by statistical evidence. Writing for a panel of the court, I rejected that challenge for reasons similar to those espoused by the Court today. Maxwell v. Bishop, 398 F. 2d 138 (CA8), vacated and remanded, sua sponte, on grounds not raised below, 398 U. S. 262 (1970) (per curiam).
The Court of Appeals found the evidence presented by Maxwell incomplete, not directly relevant to his individual claim, and statistically insufficient. McCleskey's evidence, however, is of such a different level of sophistication and detail that it simply cannot be rejected on those grounds. Unlike the evidence presented by Maxwell, which did not contain data from the jurisdiction in which he was tried and sentenced, McCleskey's evidence includes data from the relevant jurisdiction. Whereas the analyses presented by Maxwell did not take into account a significant number of variables and were based on a universe of 55 cases, the analyses presented by McCleskey's evidence take into account more than 400 variables and are based on data concerning all offenders arrested for homicide in Georgia from 1973 through 1978, a total of 2,484 cases. Moreover, the sophistication of McCleskey's evidence permits consideration of the existence of racial discrimination at various decision points in the process, not merely at the jury decision. It is this experience, in part, that convinces me of the significance of the Baldus study.
[8] See Brief for Dr. Franklin M. Fisher et al. as Amici Curiae 19.
[9] A defendant's chances of receiving a death sentence increase by a factor of 4.3 if the victim is white, but only by 2.3 if the defendant was the prime mover behind the homicide.
[10] A prior record of a conviction for murder, armed robbery, rape, or kidnaping with bodily injury increases the chances of a defendant's receiving a death sentence by a factor of 4.9.
[11] The universe of cases from Fulton County analyzed by Baldus included 629 killings, 581 of which yielded murder indictments. Supp. Exh. 59, 60; Tr. 978-981. The evidence indicated that at each step in the process from indictment to sentence, there is a differential treatment in the disposition of white-victim and black-victim cases, with the white-victim cases having a higher likelihood of being retained in the system and risking a death sentence. Supp. Exh. 60; Tr. 978-981.
[12] In his deposition, Russell Parker, the Assistant District Attorney who prosecuted McCleskey's case, contradicted the statement cited by the Court, ante, at 312, n. 34, concerning plea negotiations during McCleskey's trial. Parker testified that he never discussed a plea with McCleskey. Deposition in No. 84-8176 of Russell Parker, Feb. 16, 1981, p. 15.
[13] As a result of McCleskey's discovery efforts, the record also contains relevant testimonial evidence by two state officials. The Fulton County District Attorney testified that he did not recall any instance in which race was a factor in a death penalty case in his office. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 78. He later recalled one case that was in the office when he first began, in which the office set aside the death penalty because of the possibility that race had been involved. Id., at 79-80. The Assistant District Attorney who prosecuted McCleskey's case testified that race did not influence his decision to seek the death penalty in the present case. Deposition of Russell Parker, Feb. 16, 1981, p. 17.
These general assertions by state officials that they did not discriminate or that they properly performed their official duties, however, cannot meet the State's burden of rebuttal of the prima facie case. See Alexander v. Louisiana, 405 U. S. 625, 631-632 (1972); Whitus v. Georgia, 385 U. S. 545, 551-552 (1967). Moreover, there are many ways in which racial factors can enter indirectly into prosecutorial decisions. For example, the authors of a study similar to that of Baldus explained: "Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides." Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 106-107 (1984); see generally Johnson, Race and the Decision to Detain a Suspect, 93 Yale L. J. 214 (1983); Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).
7.2.6.3.4.3. M. William Krasilovsky and Sydney Shemel, with Contributions by John M. Gross and Jonathan Feinstein, This Business of Music, 10th Ed. , Billboard Books (2007), read Ch. 3, “Contracts with Minors,” pp. 30 - 32
7.2.6.4 IV. Justification and Excuse 7.2.6.4 IV. Justification and Excuse
7.2.6.4.1 IV.A. Justification 7.2.6.4.1 IV.A. Justification
7.2.6.4.1.1 IV.A.i. Self-Defense 7.2.6.4.1.1 IV.A.i. Self-Defense
In the next few sections, we will explore situations in which the commission of what might otherwise be a crime does not result in punishment. Broadly speaking, the doctrines in this area of criminal law are grouped into “justification” and “excuse.” In this section, we will discuss the first kind of justification: self-defense. Self-defense justifies a crime—more than excusing it, it affirms that what would otherwise be a criminal act is in fact desirable in a given situation. In cases of legal self-defense, our system treats a person who kills or injures as morally right, even when they kill intentionally. Legalizing assault, killing, or other forceful actions inevitably devolves the state’s usual monopoly on the legitimate use of force, to individual persons capable of abusing it. Thus, legal self-defense raises several concerns. Should self-defense be a last resort? Must the defender respond with minimal force, or is any amount of force legitimate? Must the threat be actual, subjective, or objectively reasonable? Different jurisdictions have created different systems. Compare the questions raised by situations such as ongoing abusive domestic relationships or an encounter with a stranger on the subway. As you read the following cases, consider the criminal system’s difficulty in managing individuals’ legal use of force, and notice how the law attempts to channel and contain that Pandora’s box.
7.2.6.4.1.1.1. Patterson, An Apology for Consideration (200-201)
7.2.6.4.1.1.2 People v. Goetz 7.2.6.4.1.1.2 People v. Goetz
The People of the State of New York, Appellant,
v.
Bernhard Goetz, Respondent.
Court of Appeals of the State of New York.
Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.
Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.
Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
[99] Chief Judge WACHTLER.
A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.
I.
The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to [100] properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant's conduct are to be resolved by the trial jury.
On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.
Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.
It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.
All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently [101] taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.
While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.
On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.
According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you," to which he replied "fine". Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars". Goetz stated that he knew from the smile on Canty's face that they wanted to "play with me". Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".
Goetz then established "a pattern of fire," deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible". When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run". Goetz then turned to his right to "go after the other two". One of these two "tried to run through the wall of the train, but * * * he had [102] nowhere to go". The other youth (Cabey) "tried pretending that he wasn't with [the others]" by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of". Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said `[y]ou seem to be all right, here's another'", and he then fired the shot which severed Cabey's spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again."
II.
After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.
Several weeks after the Grand Jury's action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to [103] testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.
On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.[1]
On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor's instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).
On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey's hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]". The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to [104] dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 N.Y.2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.
In an order dated January 21, 1986, Criminal Term granted Goetz's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz's contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz's conduct was that of a "reasonable man in [Goetz's] situation". The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant's state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.[2]
Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony.
On appeal by the People, a divided Appellate Division [105] affirmed Criminal Term's dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term's reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant's subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor's charge did not adequately apprise the grand jurors of the need to consider Goetz's own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term's reliance on Pelchat as an alternate ground for dismissal.
Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant's subjective beliefs and whether a reasonable person in defendant's situation would have had such beliefs. Accordingly, he found no error in the prosecutor's introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality's adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.
Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor's charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.
III.
Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 N.Y.2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] [106] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).[3]
Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *[4] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).
Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.[5]
Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 N.Y.2d 36, 38). The prosecutor properly instructed the grand jurors to [107] consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.
When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes". The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant's conduct was that of a reasonable man in the defendant's situation". It is this response by the prosecutor — and specifically his use of "a reasonable man" — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division's plurality opinion, because section 35.15 uses the term "he reasonably believes", the appropriate test, according to that court, is whether a defendant's beliefs and reactions were "reasonable to him". Under that reading of the statute, a jury which believed a defendant's testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant's situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably" in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.
Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend [108] a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished".
In Shorter v People (2 N.Y. 193), we emphasized that deadly force could be justified under the statute even if the actor's beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant's own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).
In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes,[6] and the "reasonable ground" requirement was maintained.
The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 N.Y. 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury" (see also, People v Ligouri, 284 N.Y. 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple" would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 N.Y. 240, 244), [109] we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked."
Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger", and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing" (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned" (id., at 814).
In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.
The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model [110] Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse" to prevail on a self-defense claim (emphasis added). If the defendant's belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).
The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief" rather than just a "belief" would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit., at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).
New York did not follow the Model Penal Code's equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably" before "believes".
The plurality below agreed with defendant's argument that the change in the statutory language from "reasonable ground," used prior to 1965, to "he reasonably believes" in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the [111] insertion of "reasonably". Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes" by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant's belief was "reasonable to him," as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant's own perceptions could completely exonerate him from any criminal liability.
We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.
We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality's interpretation, as the dissenters below recognized, excises the impact of the word "reasonably". This same conclusion was recently reached in Justice Levine's decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department's decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).
The change from "reasonable ground" to "reasonably believes" is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 N.Y.2d 274; 7 Zett, New York Criminal Practice ¶ 65.3). [112] Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably" to incorporate the long-standing requirement of "reasonable ground" for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).
The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes" was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes" with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).
Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted (see, e.g., People v Cantor, 36 N.Y.2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]" (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops" only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [113] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d, at pp 112-113, supra).
In People v Collice (41 N.Y.2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court's action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense" (id., at p 907). Numerous decisions from other States interpreting "reasonably believes" in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).
The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 N.Y.2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant" (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 N.Y. 237, 245; Communication Relating to Homicide, op. cit., at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds" for the defendant's belief.
Goetz's reliance on People v Rodawald (177 N.Y. 408) is [114] similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself" (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground" for his belief, and we upheld the trial court's refusal to charge the jury that the defendant's honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).
Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness" without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation" (see, e.g., People v Ligouri, 284 N.Y. 309, 316, supra; People v Lumsden, 201 N.Y. 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.
Accordingly, a jury should be instructed to consider this [115] type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.
The prosecutor's instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz's conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances" or "situation" and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 N.Y.2d 36, 38; People v Calbud, Inc., 49 N.Y.2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).
In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime". Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court's charge on justification should be, but they sufficiently apprised the [116] Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz's reactions were unreasonable and therefore excessive.
IV.
Criminal Term's second ground for dismissal of the charges, premised upon the Daily News column and the police officer's statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 N.Y.2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant's guilt, he did not disclose the police officer's admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.
Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty's testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty's and Ramseur's testimony was perjurious (see, CPL 190.25 [5]), and [117] his conclusion that the testimony "strongly appeared" to be perjured is particularly inappropriate given the nature of the "evidence" he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.
Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz's own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.
Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.
Order reversed, etc.
[1] On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 N.Y.2d 609). The propriety of the resubmission order is not before us on this appeal.
[2] The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life." As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 N.Y.2d 541). Accordingly, had the prosecutor's instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.
[3] Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.
[4] Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating".
[5] While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat" requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity" requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).
[6] The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor's presence.
7.2.6.4.1.1.3. Letter dated 20 June 1995 from the Ambassador of India, together with Written Statement of the Government of India (International Court of Justice, concerning UN General Assembly Resolution No. 49/75K)
7.2.6.4.1.1.4 State v. Kelly 7.2.6.4.1.1.4 State v. Kelly
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GLADYS KELLY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
[186] Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph H. Rodriguez, Public Defender, attorney).
[187] Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L. Schneider, Essex County Prosecutor, attorney).
Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae American Civil Liberties Union of New Jersey and New Jersey Coalition for Battered Women (Frank Askin and Stephen M. Latimer, attorneys).
Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association (Nadine Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of Columbia bar, and Donald N. Bersoff, a member of the Maryland bar, of counsel).
The opinion of the Court was delivered by WILENTZ, C.J.
The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.
I.
On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married [188] for seven years, during which time Ernest had periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he would kill her if she did not act.
Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.
Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.
Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.
II.
The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened — a version that the jury could have accepted and, if they had, a version [189] that would make the proffered expert testimony not only relevant, but critical.
The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.
The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.
The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.
A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.
After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds [190] he was right next to her. Unsure of whether he had armed himself while she was looking for their daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away, but instead stabbed him.[1]
III.
The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.
In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.[2] What has been revealed is [191] that the problem affects many more people than had been thought and that the victims of the violence are not only the battered family members (almost always either the wife or the children). There are also many other strangers to the family who feel the devastating impact, often in the form of violence, of the psychological damage suffered by the victims.
Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.[3]
While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state [192] of the law as reflected in statutes and cases, many commentators assert that a bias against battered women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing wife beating cases.[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895, 897-911 (1981).
Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).
As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.
As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological [193] abuse can have on a woman. The effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-woman's syndrome, defines the battered woman as one
who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [L. Walker, supra, at xv].
According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.
Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.
Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.
Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering [194] male. During this period the man will often mix his pleas for forgiveness and protestations of devotion with promises to seek professional help, to stop drinking,[5] and to refrain from further violence. For some couples, this period of relative calm may last as long as several months, but in a battering relationship the affection and contrition of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.
The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).
Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial ...").
Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence [195] or strength of their battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.
In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.
Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.
In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.
Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.
Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband [196] only to have him pursue her and subject her to an even more brutal attack. D. Martin, supra, at 76-79.
The combination of all these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.
The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.
Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance — primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.
Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely [197] accepted by clinical psychologists. Applying this methodology to defendant (who was subjected to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and subject to the battered-woman's syndrome.
In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant beatings she endured.
IV.
Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert testimony is relevant.
The present rules governing the use of force in self-defense are set out in the justification section of the Code of Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in self-defense. The use of such deadly force is not justifiable
unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].
These principles codify decades of prior case law development of the elements of self-defense.[6] We focus here on the critical [198] requirement that the actor reasonably believe deadly force to be necessary to prevent death or serious bodily harm, for the proffer of expert testimony was argued to be relevant on this point.
Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).
While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is, honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law § 53, at 394 (1972).[7] The intent of the [199] drafters of the present Code was that a necessity to act should not give rise to a meritorious plea of self-defense where the defendant was unaware of that necessity. Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter cited as Commission Report]. Ultimately, of course, it is for the jury to determine if the defendant actually did believe in the necessity of acting with deadly force to prevent an imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).
Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the requirement that the defendant's belief be reasonable.[8]
Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide.[9] As [200] with the determination of the existence of the defendant's belief, the question of the reasonableness of this belief "is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at 316; see State v. Bess, supra, 53 N.J. at 16; State v. Fair, supra, 45 N.J. at 93; State v. Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here that for defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's belief was honest and reasonable. Rather, if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961).
With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to Gladys Kelly's claim of self-defense.
V.
Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she certainly was not acting in self-defense.
The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account, it [201] cannot find she acted in self-defense. The expert testimony offered was directly relevant to one of the critical elements of that account, namely, what Gladys Kelly believed at the time of the stabbing, and was thus material to establish the honesty of her stated belief that she was in imminent danger of death.[10]
The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.) This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.
Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her premarital sexual conduct, were clearly efforts to impeach credibility.
As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's credibility. [202] Specifically, by showing that her experience, although concededly difficult to comprehend, was common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the jury understand that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from her husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's testimony about her state of mind (that is, that she honestly feared serious bodily harm) at the time of the stabbing.
On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome; the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v. Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).[11] Moreover, we [203] find that because this testimony was central to the defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be harmless error.[12]
[204] We also find the expert testimony relevant to the reasonableness of defendant's belief that she was in imminent danger of death or serious injury. We do not mean that the expert's testimony could be used to show that it was understandable that a battered woman might believe that her life was in danger when indeed it was not and when a reasonable person would not have so believed, for admission for that purpose would clearly violate the rule set forth in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be relevant solely to the honesty of defendant's belief, not its objective reasonableness. Rather, our conclusion is that the expert's testimony, if accepted by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life.
At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings" over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting, the use of fists), [205] that these physical assaults posed a risk of serious injury or death. When that regular pattern of serious physical abuse is combined with defendant's claim that the decedent sometimes threatened to kill her, defendant's statement that on this occasion she thought she might be killed when she saw Mr. Kelly running toward her could be found to reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's story of the prior beatings, if it believed her story of the prior threats, and, of course, if it believed her story of the events of that particular day.
The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave. To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.
Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when discussing an occasion when Mr. Kelly temporarily moved out of the [206] house, the State repeatedly asked Ms. Kelly: "You wanted him back, didn't you?" The implication was clear: domestic life could not have been too bad if she wanted him back. In its closing argument, the State trivialized the severity of the beatings, saying:
I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a bowl of cherries. We each and every person who takes a breath has problems. Defense counsel says bruised and battered. Is there any one of us who hasn't been battered by life in some manner or means?
Even had the State not taken this approach, however, expert testimony would be essential to rebut the general misconceptions regarding battered women.
The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger. That is not at all, however, what this testimony is directly aimed at. It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.
Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard, to the reasons for [207] defendant's failure to leave her husband. Either the jury accepts or rejects that explanation and, based on that, credits defendant's stories about the beatings she suffered. No expert is needed, however, once the jury has made up its mind on those issues, to tell the jury the logical conclusion, namely, that a person who has in fact been severely and continuously beaten might very well reasonably fear that the imminent beating she was about to suffer could be either life-threatening or pose a risk of serious injury. What the expert could state was that defendant had the battered-woman's syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant's belief. Depending on its content, the expert's testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury's evaluation of the reasonableness of defendant's fear for her life.[13]
[208]
VI.
Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56.[14]
[209] The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961). Thus, the proponent of expert testimony must demonstrate that testimony would "enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20 (App.Div. 1972).
As previously discussed, a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.[15]
The second requirement that must be met before expert testimony is permitted is a showing that the proposed expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable is of no assistance to anyone.
To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the testimony satisfies New Jersey's standard of acceptability for scientific [210] evidence. State v. Cavallo, supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525, 536 (1981)). The technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J. 343, 352 (1967)); State v. Hurd, supra, 86 N.J. at 536.
In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and the methodology used by the researchers in this area.[16] On the other hand, Dr. Veronen, the proffered expert, testified that the battered-woman's syndrome is acknowledged and accepted by practitioners and professors in the fields of psychology and psychiatry. Dr. Veronen also brought to the court's attention the findings of several researchers who have published reports confirming the presence of the battered-woman's syndrome. She further noted that the battered-woman's syndrome has [211] been discussed at several symposia since 1977, sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association.[17] Briefs submitted to this Court indicate that there are at least five books and almost seventy scientific articles and papers about the battered-woman's syndrome.
Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier indicate the presence of a growing field of study and research about the battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant scientific community.
Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at Ms. Kelly's trial, Dr. [212] Veronen had been an assistant professor at the medical school at the University of South Carolina for three years. Twenty percent of her time at the Universty was spent teaching, some of it on topics related to the battered-woman's syndrome, and 80% of her time was spent conducting research, most of it on the psychological reaction of women who are victims of violent assaults. She had spent two years studying the battered-woman's syndrome, with the goal of changing the patterns of fear and anxiety of battered women. Dr. Veronen is a clinical psychologist, licensed to practice in two states, and in that capacity had, by 1980, treated approximately thirty battered women and seen seventy others. Because these thirty women have several important characteristics in common with Ms. Kelly (the thirty women had all been in battering relationships for more than two years, were beaten more than six times, and were within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women who share Ms. Kelly's background.[18]
We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission. Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue cross-examination of Dr. [213] Veronen as well as to introduce such contrary testimony as the prosecutor sees fit. The transcript discloses that the prosecutor had concluded her cross-examination on Dr. Veronen's qualifications but had never been given the opportunity fully to cross-examine the expert on the reliability of this developing field of scientific knowledge. The possibility of such further cross-examination was foreclosed by the trial court when it ruled evidence of the syndrome was inadmissible because irrelevant. Furthermore, as noted above, the trial court never actually ruled whether Dr. Veronen qualified as an expert, finding this unnecessary because of his holding that the testimony would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.[19]
[214] Our conclusion, reversing and ordering a new trial, is based on the apparent unfairness in this case of the kind of limited remand that we ordered in State v. Sikora, supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring). Here a limited remand would be to the trial court to exercise its discretion, a very broad discretion, on the issue of the expert's qualifications and the reliability of the knowledge proffered. We do not know what conflicting expert testimony the prosecution would offer, but the entire scenario of a limited remand when the defendant has already been convicted and when the court whose discretion will largely determine the outcome of the limited remand has already excluded the evidence, with prosecution experts who might not have been called at the original trial, seems an artificial trial setting, and significantly less favorable to defendant than what might have occurred if the trial court had had the benefit of the views expressed herein at the time. Obviously there is no way to recreate the precise situation of the trial, but all things considered, we think fairness requires a new trial where all of these matters may be reconsidered.
VII.
Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on appeal. Although our disposition of this case makes it unnecessary to [215] consider these issues, we dispose of them briefly to assist the trial court in the event they surface again at the new trial.
A.
During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).
The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,[20] stating:
We will get involved with trials within trials — trying cases of sexual aggression. That daughter was not present at the time of the alleged stabbing by her mother of her stepfather. There has been no evidence indicating that the safety of the daughter was threatened on May 24.
Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.
If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason, its limited added force might very well be outweighed [216] by the obvious prejudice injected into the case in the form of proof that decedent sexually abused his daughter. The testimony, however, has further relevance in that it very strongly supports the conclusion that the Kelly household was the scene of the batterings that would produce the battered-woman's syndrome. As our Legislature noted in its findings included in the Prevention of Domestic Violence Act, "there is a positive correlation between spouse abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical importance of the proof of the battered-woman's syndrome in this case, we are inclined to believe that, on balance, such testimony should have been admitted. We are aware that in the context of an appellate review, a decision of a trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v. Boratto, 80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super. 557 (App.Div. 1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless, absent any significant new factor bearing on this issue, the trial court on remand should allow the testimony, giving such appropriate instruction to the jury as will minimize the possibility of its prejudicial impact.
B.
Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This claim is without merit.
Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned Ms. Kelly about her earlier conviction:
[217] Q. Mrs. Kelly, have you ever been convicted of a crime?
A. Yes, once.
Q. What were you convicted of?
A. Conspiracy to robbery with some — two other peoples was involved —
Q. You were convicted of conspiracy to commit robbery?
A. Yes.
Q. When was that?
A. Nine years ago, I think.
Q. 1971?
A. Something like that. I was given three years probation....
That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or referred to.
Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it could consider Ms. Kelly's conspiracy conviction:
The only reason you heard that testimony was not because if you find that she committed a crime in 1971, therefore she must have committed this crime with which she is charged. The only reason you may use that if you wish to is to affect her believability as a witness. That is the sole and exclusive purpose of hearing that and using that evidence.
There was no error on this point.[21]
C.
We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial. The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and make an inflammatory appeal to the jury, and used her opening statement [218] to suggest that Ms. Kelly's indictment was evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with in the same way as those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333 (1971). We note, however, that the trial court properly instructed the jury that the indictment is not proof of guilt, and our review of the closing statement does not reveal plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the role of defense counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039 (1963). Nor did the prosecutor's closing remarks exceed the wide latitude permitted counsel during summation. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969).
Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.
D.
The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical abuse [219] of defendant by the decedent, the jury must be told that a finding of provocation may be premised on "a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to consider not only decedent's conduct and threats that night, but also his prior mistreatment of defendant." State v. Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial court's instruction should be changed.[22]
E.
Ms. Kelly also contends that the sentence imposed — five years in state prison — was excessive. She asserts that imprisonment would result in a serious injustice that overrides the need to deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their mother at home.
The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to sentence [220] her to a minimum term for a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v. Roth, 95 N.J. 334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the "serious injustice" envisioned by the Criminal Code. Roth, supra, 95 N.J. at 358.[23]
HANDLER, J., concurring in part and dissenting in part.
The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical psychological condition referred to as the "battered women's syndrome." Therefore, I would rule that expert evidence of the battered women's syndrome is both competent and relevant as related to the defense of self-defense. Consequently, no further expert testimony or evidence concerning the admissibility [221] of this doctrine should be required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant's expert that defendant was suffering battered women's syndrome when she killed her husband. That testimony was unquestionably relevant to defendant's claim of self-defense. In addition, the evidence in this case indicates that repeated sexual and physical victimization of a woman's children may, in conjunction with her own abused treatment, contribute to the development of battered women's syndrome. I therefore concur in the majority's determination to allow on a retrial evidence of the decedent's sexual assaults upon defendant's daughter as related to the issue of the battered women's syndrome and defendant's defense of self-defense.
The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women's syndrome and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use of the battered women's syndrome in connection with her defense of self-defense. I would therefore not require this issue — the admissibility of the battered women's syndrome — to be tried again.
I
This Court's opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered women's syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged physical and psychological abuse by their mates. Women suffering battered women's syndrome have low self-esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such battered women are dominated [222] by unshakeable fear, which often traps them into remaining with their battering mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently become so demoralized and degraded that they lapse into a psychological torpor, a state of "learned helplessness." Ante at 194-195, citing Walker, supra, at 75.
The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.
The Court's opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and, most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.
This Court's enlightened exposition of the battered women's syndrome, drawn from the record in this case lays a firm foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of particular [223] criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.
II
Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).
The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully comprehended primarily by experts, persons who have special training and education in the particular field. Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence and education. In this case, it has been firmly established that the battered women's syndrome is a subject that is properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered women's syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate matter for elucidation through expert testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den. 62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo, supra, 88 N.J. at 518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961).
The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is permitted [224] is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge must be considered reliable by those who have professional training and responsibility in the field. Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State v. Cary, 49 N.J. 343, 352 (1967).
There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. State v. Cavallo, supra, 88 N.J. at 521.
These criteria for the admissibility of expert testimony relative to the battered women's syndrome have been met in this case. Because the battered women's syndrome is a relatively new field of research, only a few courts have had the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this field. See, e.g., State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312, 315 (1984) (en banc) (battered women's syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979) (remanding to trial court for further consideration of scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) [225] and State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise). In light of the compelling record that has been established in this case, I am persuaded of the soundness of those decisions that have concluded that the battered women's syndrome constitutes a valid subject of expert testimony. I am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.
The record before us, based on expert testimony, including scientific writings, further reveals that the battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the field, testified that the battered woman's syndrome is acknowledged and accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized, expanding field of study and research about the battered woman's syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature was also made evident on this appeal — over 70 scientific articles and several books have been published on the subject. Dr. Veronen further testified that, since 1977, the battered women's syndrome has been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of a premise by the scientific community).
Public policy considerations complement these traditional modes for determining whether a particular subject matter is reliable and within the purview of expert knowledge. An [226] emerging public policy acknowledges the battered women's syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement community, have begun to come to grips with the forces that generate and perpetuate familial and domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the battered women's syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably aware of the burgeoning expert opinion and literature that recognized the battered women's syndrome as both a contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends to the national level as well, as evidenced, for example, by the U.S. Attorney General's formation, in September 1983, of a task force on family violence "to review [the] basic assumptions that underpin the handling of [domestic] violence cases." Statement of Attorney General William French Smith, September 19, 1983.
The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516. In this case, as recognized by the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition of battered women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the receipt of expert testimony concerning the battered women's syndrome.
[227] In addition to her general knowledge of the battered women's syndrome, Dr. Veronen was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research and the application of this methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an abused woman suffering from battered women's syndrome when she fatally stabbed her husband.
In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified expert witness, that expert testimony concerning the battered women's syndrome is now generally accepted and regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of particular criminal cases has been shown. The battered women's syndrome is sufficiently reliable to authorize its admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial of this case.
III
I concur in the majority's determination that the testimony of defendant's seventeen-year-old daughter, Edith Cannon, concerning the decedent's beatings of Gladys and her children, should have been admitted into evidence at the trial. Ante at 215-216. Defendant's daughter was also prepared to testify that she had been sexually abused by decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of Evidence Rule 4, excluded Edith's testimony that she had told her mother about the decedent's sexual assaults upon her.
The expert evidence fairly shows that such circumstances — the physical and sexual abuse of battered women's children — cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in 75% of the battering [228] relationships that eventuate in homicide, and frequently constitutes a "critical factor in the tension * * * before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child abuse is relevant in a case in which the battered women's syndrome is a material issue.
To reiterate, expert testimony on the battered women's syndrome and the applicability of this syndrome to the defendant's claim of self-defense should be allowed on the retrial of this case. Evidence of the victim's abuse of the defendant's children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the battered women's syndrome. Such evidence is highly probative of the issue of self-defense in the context of the battered women's syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.
IV
In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general admissibility of expert testimony on the battered women's syndrome to be tried anew. The record reveals that the issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to permit, if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While it is arguable that the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at the trial was not adequate to establish the scientific reliability of the battered women's syndrome. The Court now unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the authenticity of the battered women's syndrome doctrine.
For the reasons expressed, I dissent in part from the Court's decision.
[229] For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and GARIBALDI — 6.
Concurring in part and dissenting in part — Justice HANDLER — 1.
[1] This version of the homicide — with a drunk Mr. Kelly as the aggresor both in pushing Ms. Kelly to the ground and again in rushing at her with his hands in a threatening position after the two had been separated — is sharply disputed by the State. The prosecution presented testimony intended to show that the initial scuffle was started by Gladys; that upon disentanglement, while she was restrained by bystanders, she stated that she intended to kill Ernest; that she then chased after him, and upon catching up with him stabbed him with a pair of scissors taken from her pocketbook.
[2] The works that comprise the basic study of the problem of battered women are all relatively recent. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); D. Martin, Battered Wives (1976); L. Walker, The Battered Woman (1979); R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy ed. 1977).
Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.
In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and seriousness of domestic violence:
The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all societal and economic backgrounds and ethnic groups; that there is a positive correlation between spouse abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-2].
[3] In her book, The Battered Woman, Dr. Lenore Walker cites research by sociologists Straus, Gelles, and Steinmetz finding that in 1976 at least one assault between family members occurred in 28% of all American homes. Id. at 70.
[4] In 1976, for example, battered women in California and New York instituted class actions alleging that the police customarily denied women legal protection by refusing to assist battered women or arrest their abusing husbands. The cases were settled by consent judgment. Scott v. Hart, No. C-76-2395 (N.D.Cal., filed Oct. 28, 1976); Bruno v. Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup.Ct. 1977), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).
[5] Alcohol is often an important component of violence toward women. Evidence points to a correlation between alcohol and violent acts between family members. In one British study, 44 of 100 cases of wife abuse occurred when the husband was drunk. Gayford, "Wife Battering: A Preliminary Survey of 100 Cases," British Medical Journal 1:194-197 (1975). Gelles, in The Violent Home: A Study of Physical Aggression between Husbands and Wives (1979), found that in 44 families where violence had occurred, drinking accompanied the violence in 21 of the cases. He also posited that alcohol and family violence are more closely related than alcohol and other types of violence.
[6] Prior to the enactment of the Code, former N.J.S.A. 2A:113-6 provided a statutory basis for self-defense claims specifically and justification defenses generally. However, as noted by the New Jersey Criminal Law Revision Commission, the law concerning justification was that found in the cases, since the literal wording of 2A:113-6 was not followed. Final Report of the New Jersey Criminal Law Revision Commission Vol. II: Commentary, at 78-79 (1971).
[7] See also Restatement of Torts 2d § 63 (1965) at 101. Under principles of self-defense as a justification for the torts of assault and battery — which closely parallel criminal self-defense principles — no privilege of self-defense exists for one acting in ignorance of another's intent to inflict harm on him. Cf. Perkins, "Self-Defense Re-examined," 1 U.C.L.A.L.Rev. 133, 134 (1954).
[8] The rejected form of § 2C:3-4 was patterned after § 3.04 of the Model Penal Code. The purpose of the proposed Code and M.P.C. provisions was to prevent one who killed in the honest but mistaken and unreasonable belief in the necessity of the action from being convicted of a crime like murder, which is premised on an act motivated by unlawful purpose. See Model Penal Code § 3.04 commentary at 14-15 (Tent. Draft No. 8 1958); Commission Report, supra, Vol. II: Commentary, at 83-84.
[9] In State v. Powell, 84 N.J. 305 (1980), we explicitly recognized that before enactment of the Code the doctrine of imperfect self-defense could reduce murder to manslaughter when the defendant honestly but unreasonably perceived himself in such danger as to require the use of deadly force. However, we expressed no opinion on whether imperfect self-defense was available under the new Code for the purpose of reducing murder to manslaughter. The resolution of that issue is immaterial to the case at bar.
[10] The factual contentions of the parties eliminated any issue concerning the duty to retreat. If the State's version is accepted, defendant is the aggressor; if defendant's version is accepted, the possibility of retreat is excluded by virtue of the nature of the attack that defendant claims took place. We do not understand that the State claims defendant breached that duty under any version of the facts. If, however, the duty becomes an issue on retrial, the trial court will have to determine the relevancy of the battered-woman's syndrome to that issue. Without passing on that question, it appears to us to be a different question from whether the syndrome is relevant to defendant's failure to leave her husband in the past.
[11] The State may not bar the introduction of expert testimony about the battered-woman's syndrome by stipulating that the defendant's fear of serious bodily harm was honestly held. In State v. Laws, 50 N.J. 159 (1967), we rejected the suggestion that the State should be compelled to stipulate to — and not introduce evidence on — those facts that the defendant did not dispute. We held that subject to the trial court's overriding control of the proceedings, the State "should have the right to make a full showing before the jury whenever it considers such course necessary for the proper presentation of its case." Id. at 184. Similar considerations compel the same result here, should the defendant seek to introduce testimony on a fact — the honesty of defendant's fear of serious bodily harm — that the State does not contest. This holding protects the defendant's due process rights by allowing her to offer testimony to establish a defense. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). Without the introduction of expert testimony to dispel common misconceptions about battered women, a jury might well question the stipulation of honesty.
[12] The State contends that even if the expert testimony is held admissible, its exclusion should be considered harmless error because of defendant's conviction for reckless manslaughter. The State's position is that under N.J.S.A. 2C:3-9(b) as it existed at the time of Gladys Kelly's conviction, self-defense was not available as a defense for any offense for which recklessness or negligence suffices to establish culpability, including, presumably, offenses where the defendant was reckless or negligent in believing the use of force to be necessary, or in acquiring or failing to acquire any knowledge that is material to the justifiability of the use of force. The argument, therefore, is that the expert testimony could not have saved defendant from the reckless manslaughter verdict.
N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the provision in the Code appears to have been an error, which has since been corrected by its repeal. See L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history of the repealer:
As originally drafted, justification defenses (i.e. self-defense) under the code were available to a defendant if his belief in the necessity of the use of force was honestly held. In conjunction with this provision, the code also provided in 2C:3-9b that if the defendant was reckless or negligent in forming that belief, he could be convicted of a crime for which recklessness or negligence was the required mental element. As enacted, however, the code requires not only that a defendant's belief be honestly held but also that his belief in the necessity to use force be reasonable. This requirement that a defendant's belief be both honest and reasonable vis a vis a justification defense obviates the necessity for the provision in 2C:3-9b that the reckless or negligent use of force can establish criminal liability. Therefore, the amendment in section 7 would delete this provision. [Senate Judiciary Committee, Statement to Committee Substitute for S. 2537 at 2 (1982)].
In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which was that self-defense based on a reasonable belief in the need for deadly force would constitute justification — a complete defense — to the charge of reckless manslaughter. If the jury here found defendant's belief was both honest and reasonable, it would be required to acquit her of all charges.
[13] At least two other courts agree that expert testimony about the battered-woman's syndrome is relevant to show the reasonableness as well as the honesty of defendant's fear of serious bodily harm. Ibn-Tamas v. United States, 407 A.2d 626, 634-35 (D.C. 1979) (expert testimony "would have enhanced Mrs. Ibn-Tamas' general credibility in responding to cross-examination designed to show that the testimony about the relationship with her husband was implausible," and also "would have supplied an interpretation of the facts which differed from the ordinary lay perception"); Hawthorne v. State, 408 So.2d 801, 806-07 (Fla. Dist. Ct. App. 1982) (expert testimony would "aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of [defendant's] belief," because "a jury would not understand why [defendant] would remain [with her husband]"); State v. Allery, 101 Wash.2d 591, 682 P.2d 312, 316 (Wash.Sup.Ct. 1984) (court approved use of expert testimony "[t]o effectively present the situation as perceived by the defendant, and the reasonableness of her fear ... to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships"). But see Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) (psychiatric testimony held to be of no help in determining whether a fear of serious bodily harm was reasonable).
Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v. Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v. Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear "reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), (battered wife stabs sleeping husband).
[14] Of course, expert testimony that meets these three criteria is still subject to other rules of evidence. For example, the probative value of the testimony must not be substantially outweighed by the risk that its admission would necessitate undue consumption of time or create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. Evid. R. 4. The danger of undue prejudice would be only slightly greater if expert testimony on the battered-woman's syndrome is introduced than without it, however, because the jury, even without it, will certainly hear about the past beatings from lay witnesses.
[15] The following courts agree that the battered-woman's syndrome is beyond the understanding of the average person: Ibn Tamas v. United States, supra, 407 A.2d 626; Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678; Hawthorne v. State, supra, 408 So.2d 801; State v. Anaya, supra, 438 A.2d 892. But see State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137.
[16] Compare State v. Anaya, supra, 438 A.2d 892, and Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678 (both cases accepting expert testimony without reservation), with Hawthorne v. State, supra, 408 So.2d 801, and Ibn-Tamas v. United States, supra, 407 A.2d 626 (both cases remanding to trial court for further consideration of scientific acceptability), and with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), and State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137 (both cases holding that subject was not sufficiently established as a matter of scientific expertise).
[17] Under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate the acceptance of a premise by the scientific community. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197, 1217 (1980).
[18] In addition to her general knowledge of the battered-woman's syndrome, Dr. Veronen is quite familiar with the facts in this case. Dr. Veronen interviewed Ms. Kelly for approximately five hours, during which time the two spoke about Ms. Kelly's background, Ms. Kelly's first meeting with Mr. Kelly, Ms. Kelly's relationship with her children and Mr. Kelly, the history of the physical abuse she suffered, and her stabbing of Mr. Kelly. Dr. Veronen also reviewed several psychological tests that were administered to Ms. Kelly, and from those concluded that Ms. Kelly was a battered woman. In addition, Dr. Veronen reviewed statements of eyewitnesses to the stabbing, police reports, and Ms. Kelly's hospital reports following the stabbing.
[19] It is not contended by anyone that the battered woman's syndrome has been so well established in the scientific community and is so well known by the public as to authorize the Court to take judicial notice of it. Therefore, unlike some expert evidence (radar, for example, State v. Dantonio, 18 N.J. 570 (1955)) where all that is required is to show that the accepted body of scientific knowledge is being correctly applied, here the very existence and reliability of such scientific knowledge has to be established. As a matter of fact, the literature suggests that while there is a growing body of research concerning the syndrome, it is still in a relatively uncertain stage, there remaining some doubt about its validity. It is, therefore, necessary for this Court to be sure that on remand the State has an adequate opportunity to present such proofs as might persuade the trial court that the syndrome has not yet achieved sufficient acceptance in the scientific community to warrant its admissibility. While our dissenting colleague is apparently convinced both from the record and his own research that as a matter of law the syndrome has achieved that level of acceptability to warrant its admission, that procedure, leading to that conclusion, seems to us manifestly unfair to the State. Even if we were inclined to agree with our dissenting colleague on this issue, that would be beside the point, for what is involved here is not the correctness of the conclusion concerning the general acceptability within the scientific community of the battered-woman's syndrome, but the fundamental fairness of the proceedings in the trial court that might lead to such a conclusion. It is absolutely clear that the only proceedings concerning the syndrome before the trial court was the voir dire testimony of Dr. Veronen, that the State was permitted cross-examination only as to her qualifications, and that the court repeatedly assured the assistant prosecutor that "ample time" would be given on all issues concerning the syndrome. Not only was "ample time" not given, but no time was allowed, for the trial court, apparently believing that the proposed use of this testimony had been made clear, decided that the testimony would be inadmissible as a matter of law even if the witness were ruled to be an expert and even if the body of knowledge were ruled to be beyond the ken of jurors and generally accepted within the scientific community. The court's ruling that the expert's testimony was inadmissible was prefaced by the following statement: "I fully appreciate you have not had another opportunity to examine the Witness, Mrs. Cooper," the remark of the court being addressed to the assistant prosecutor. Throughout the transcript there were repeated references by the court and Mrs. Cooper to the fact that her role, up to that point, had been confined to cross-examination only on the witness's qualifications.
[20] Evidence Rule 4 provides:
The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.
[21] The trial court has discretion to bar the admission of prior convictions if it finds that their probative value is outweighed by their prejudice to the defendant. State v. Sands, supra, 78 N.J. at 146. The burden of proving that the prior convictions should be excluded, however, falls on the defendant. Ibid. We do not find that the trial court abused its discretion in allowing the limited testimony cited earlier, even though the remoteness of Ms. Kelly's earlier conviction would also have supported a ruling that her conspiracy conviction could not be brought out.
[22] We note that given defendant's conviction for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1), these instructions would not constitute harmful error. Both reckless homicide and homicide committed in the heat of passion resulting from a reasonable provocation constitute manslaughter, and both are crimes of the second degree. N.J.S.A. 2C:11-4(b), (c). Defendant's conviction for reckless manslaughter instead of manslaughter by provocation, therefore, did not prejudice her in terms of sentencing. Neither did it produce a compromise verdict of the type referred to in State v. Christener, 71 N.J. 55 (1976) where the concern was with the prejudicial effect of overcharging the jury by giving instructions on first degree murder that were not sufficiently supported by the evidence. This is easily distinguishable from the problem here, which involves only a deficient instruction for an alternate theory of the offense for which the defendant actually was convicted.
[23] We note that under the Code even if it is certain that the actor's life will soon be threatened, the actor may not use deadly defensive force until that threat is imminent. If he or she does, the crime in most cases would presumably be murder or manslaughter (see N.J.S.A. 2C:3-4a & 4b(2); 2C:11-3; 2C:11-4b), the last exposing the actor to a sentence of ten years in prison with a five-year discretionary parole ineligibility term or, if a firearm is used, a three-year mandatory parole ineligibility term. N.J.S.A. 2C:43-6a, b & c. The requirement that the use of deadly force, in order to be justifiable, must be immediately necessary, has as its purpose the preservation of life by preventing the use of deadly force except when its need is beyond debate. The rule's presumed effect on an actor who reasonably fears that her life will soon be endangered by an imminent threat is to cause her to leave the danger zone, especially if, because of the circumstances, she knows she will be defenseless when that threat becomes imminent. The rule, in effect, tends to protect the life of both the potential aggressor and victim. If, however, the actor is unable to remove herself from the zone of danger (a psychological phenomenon common to battered women, according to the literature), the effect of the rule may be to prevent her from exercising the right of self-defense at the only time it would be effective. Instead she is required by the rule to wait until the threat against her life is imminent before she responds, at which time she may be completely defenseless.
There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases (by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our homicide laws. That is a matter the Legislature might wish to examine.
7.2.6.4.1.1.5 State v. Norman 7.2.6.4.1.1.5 State v. Norman
STATE of North Carolina
v.
Judy Ann Laws NORMAN.
Supreme Court of North Carolina.
[9] Lacy H. Thornburg, Atty. Gen., by Steven F. Bryant, and Jeffrey P. Gray, Asst. Atty. Gen., for appellant State.
Robert W. Wolf, Forest City, and Robert L. Harris, Rutherfordton, for defendant-appellee.
MITCHELL, Justice.
The defendant was tried at the 16 February 1987 Criminal Session of Superior Court for Rutherford County upon a proper indictment charging her with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed from the trial court's judgment sentencing her to six years imprisonment.
The Court of Appeals granted a new trial, citing as error the trial court's refusal to submit a possible verdict of acquittal by reason of perfect self-defense. Notwithstanding the uncontroverted evidence that the defendant shot her husband three times in the back of the head as he lay sleeping in his bed, the Court of Appeals held that the defendant's evidence that she exhibited what has come to be called "the battered wife syndrome" entitled her to have the jury consider whether the homicide was an act of perfect self-defense and, thus, not a legal wrong.
We conclude that the evidence introduced in this case would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning either perfect or imperfect self-defense. Therefore, the trial court properly declined to instruct the jury on the law relating to self-defense. Accordingly, we reverse the Court of Appeals.
At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff's Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant's husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim's body.
Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant's mother's house. The defendant took a pistol from her mother's purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband's head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband's chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because "she took all she was going to take from him so she shot him."
The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his [10] alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband's assaults.
The defendant's evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant "dog," "bitch" and "whore," and on a few occasions made her eat pet food out of the pets' bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant's husband threatened numerous times to kill her and to maim her in various ways.
The defendant said her husband's abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband "got along very well when he was sober," and that he was "a good guy" when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.
In the early morning hours on the day before his death, the defendant's husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant's mother got him out of jail at the defendant's request later that morning, he resumed his drinking and abuse of the defendant.
The defendant's evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff's deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.
The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant's husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff's deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant's stomach was pumped at the local hospital, and she was sent home with her mother.
While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she [11] said she should kill him "because of the things he had done to her."
The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: "J.T., straighten up. Quit drinking. I'm going to have you committed to help you." She said her husband then told her he would "see them coming" and would cut her throat before they got to him.
The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.
That evening, the defendant and her husband went into their bedroom to lie down, and he called her a "dog" and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant's husband agreed to let her baby-sit. After the defendant's husband fell asleep, the baby started crying and the defendant took it to her mother's house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.
The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: "Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn't take it no more. There ain't no way, even if it means going to prison. It's better than living in that. That's worse hell than anything."
The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: "Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it."
Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.
Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, "it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?" He replied: "I believe that ... Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable...." Dr. Tyson later added: "I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family."
Dr. Rollins, who was the defendant's attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that "[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it." Dr. Rollins was asked his opinion as to whether "on June 12th, 1985, it appeared reasonably [12] necessary that Judy Norman would take the life of J.T. Norman?" Dr. Rollins replied that in his opinion, "that course of action did appear necessary to Mrs. Norman."
Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband's abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.
The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987). Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Gappins, 320 N.C. at 71, 357 S.E. 2d at 659. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Id. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. Id. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.
Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982). Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter. State v. Mize, 316 N.C. at 52, 340 S.E.2d at 441.
The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. Id. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense. See State v. Gappins, 320 N.C. 64, 73, 357 S.E.2d 654, 660 (1987); State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986); State v. Spaulding, 298 N.C. 149, 157, 257 S.E.2d 391, 396 (1979); State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428 (1935); State v. Kidd, 60 N.C.App. 140, 142, 298 S.E.2d 406, 408 (1982) disc. rev. denied, 307 N.C. 700, 301 S.E.2d 393 (1983); State v. Dial, 38 N.C. App. 529, 531, 248 S.E.2d 366, 367 (1978); 40 C.J.S. Homicide § 123(b) (1944).
The jury found the defendant guilty only of voluntary manslaughter in the present case. As we have indicated, an instruction on imperfect self-defense would have entitled [13] the defendant to nothing more, since one who kills in the exercise of imperfect self-defense is guilty at least of voluntary manslaughter. Therefore, even if it is assumed arguendo that the defendant was entitled to an instruction on imperfect self-defense—a notion we have specifically rejected—the failure to give such an instruction was harmless in this case. Accordingly, although we recognize that the imminence requirement applies to both types of self-defense for almost identical reasons, we limit our consideration in the remainder of this opinion to the issue of whether the trial court erred in failing to instruct the jury to consider acquittal on the ground that the killing was justified and, thus, lawful as an act of perfect self-defense.
The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).
The term "imminent," as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." Black's Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase "about to suffer" interchangeably with "imminent" to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was "imminent" or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother's house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.
Faced with somewhat similar facts, we have previously held that a defendant who believed himself to be threatened by the decedent was not entitled to a jury instruction on either perfect or imperfect self-defense when it was the defendant who went to the decedent and initiated the final, fatal confrontation. State v. Mize, 316 N.C. 48, [14] 340 S.E.2d 439 (1986). In Mize, the decedent Joe McDonald was reported to be looking for the defendant George Mize to get revenge for Mize's alleged rape of McDonald's girl friend, which had exacerbated existing animosity between Mize and McDonald. After hiding from McDonald for most of the day, Mize finally went to McDonald's residence, woke him up and then shot and killed him. Mize claimed that he feared McDonald was going to kill him and that his killing of McDonald was in self-defense. Rejecting Mize's argument that his jury should have been instructed on self-defense, we stated:
Here, although the victim had pursued defendant during the day approximately eight hours before the killing, defendant Mize was in no imminent danger while McDonald was at home asleep. When Mize went to McDonald's trailer with his shotgun, it was a new confrontation. Therefore, even if Mize believed it was necessary to kill McDonald to avoid his own imminent death, that belief was unreasonable.
316 N.C. at 53, 340 S.E.2d at 442 (citations omitted). The same reasoning applies in the present case.
Additionally, the lack of any belief by the defendant—reasonable or otherwise—that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband "appeared reasonably necessary" to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing "appeared reasonably necessary" to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.
Dr. Tyson additionally testified that the defendant "believed herself to be doomed... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable." Such evidence of the defendant's speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief—reasonable or otherwise—that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant's subjective belief of what might be "inevitable" at some indefinite point in the future does not equate to what she believes to be "imminent." Dr. Tyson's opinion that the defendant believed it was necessary to kill her husband for "the protection of herself and her family" was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.
The defendant testified that, "I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been." She also testified, when asked if she believed her husband's threats: "Yes.... [H]e would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it." Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear— reasonable or otherwise—of imminent death or great bodily harm at the time of the killing.
We are not persuaded by the reasoning of our Court of Appeals in this case that when there is evidence of battered wife syndrome, neither an actual attack nor threat of attack by the husband at the moment the wife uses deadly force is required to justify the wife's killing of him in perfect self-defense. The Court of Appeals concluded that to impose such requirements [15] would ignore the "learned helplessness," meekness and other realities of battered wife syndrome and would effectively preclude such women from exercising their right of self-defense. 89 N.C.App. 384, 392-393, 366 S.E.2d 586, 591-592 (1988). See Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L.Rev. 545 (1988); Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981). Other jurisdictions which have addressed this question under similar facts are divided in their views, and we can discern no clear majority position on facts closely similar to those of this case. Compare, e.g., Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369, appeal denied, 517 Pa. 630, 539 A.2d 810 (1987) (abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent), with State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (1986) (abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed).
The reasoning of our Court of Appeals in this case proposes to change the established law of self-defense by giving the term "imminent" a meaning substantially more indefinite and all-encompassing than its present meaning. This would result in a substantial relaxation of the requirement of real or apparent necessity to justify homicide. Such reasoning proposes justifying the taking of human life not upon the reasonable belief it is necessary to prevent death or great bodily harm—which the imminence requirement ensures—but upon purely subjective speculation that the decedent probably would present a threat to life at a future time and that the defendant would not be able to avoid the predicted threat.
The Court of Appeals suggests that such speculation would have been particularly reliable in the present case because the jury, based on the evidence of the decedent's intensified abuse during the thirty-six hours preceding his death, could have found that the decedent's passive state at the time of his death was "but a momentary hiatus in a continuous reign of terror by the decedent [and] the defendant merely took advantage of her first opportunity to protect herself." 89 N.C.App at 394, 366 S.E.2d at 592. Requiring jury instructions on perfect self-defense in such situations, however, would still tend to make opportune homicide lawful as a result of mere subjective predictions of indefinite future assaults and circumstances. Such predictions of future assaults to justify the defendant's use of deadly force in this case would be entirely speculative, because there was no evidence that her husband had ever inflicted any harm upon her that approached life-threatening injury, even during the "reign of terror." It is far from clear in the defendant's poignant evidence that any abuse by the decedent had ever involved the degree of physical threat required to justify the defendant in using deadly force, even when those threats were imminent. The use of deadly force in self-defense to prevent harm other than death or great bodily harm is excessive as a matter of law. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986).
As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the "imminent death or great bodily harm" requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed by our Court of Appeals would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives' testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. See generally Rosen, The Excuse of Self-Defense: Correcting A Historical [16] Accident on Behalf of Battered Women Who Kill, 36 Am.U.L.Rev. 11 (1986) (advocating changing the basis of self-defense acquittals to excuse rather than justification, so that excusing battered women's killing of their husbands under circumstances not fitting within the traditional requirements of self-defense would not be seen as justifying and therefore encouraging such self-help killing); Mitchell, Does Wife Abuse Justify Homicide?, 24 Wayne L.Rev. 1705 (1978) (advocating institutional rather than self-help solutions to wife abuse and citing case studies at the trial level where traditional defenses to homicide appeared stretched to accommodate poignant facts, resulting in justifications of some killings which appeared to be motivated by revenge rather than protection from death or great bodily harm). It has even been suggested that the relaxed requirements of self-defense found in what is often called the "battered woman's defense" could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat. Rosen, The Excuse of Self-Defense: Correcting A Historical Accident on Behalf of Battered Women Who Kill, 36 Am.U.L. Rev. 11, 44 (1986).
In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant's culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.
For the foregoing reasons, we conclude that the defendant's conviction for voluntary manslaughter and the trial court's judgment sentencing her to a six-year term of imprisonment were without error. Therefore, we must reverse the decision of the Court of Appeals which awarded the defendant a new trial.
REVERSED.
MARTIN, Justice, dissenting.
At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.
Likewise, the difficulty of rebutting defendant's evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. "Defendant may always rest ultimately on the weakness of the state's case and the state's failure to carry its burden of proof." State v. Patterson, 297 N.C. 247, 256, 254 S.E.2d 604, 610 (1979).
At the heart of the majority's reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would "expand our law of self-defense beyond the limits of immediacy and necessity." Defendant does not seek to expand or relax the requirements of self-defense and thereby "legalize the opportune killing of allegedly abusive husbands by their wives," as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the [17] jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.
In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. See State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). All defenses presented by the defendant's evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. Id. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.
A defendant is entitled to an instruction on self-defense when there is evidence, viewed in the light most favorable to the defendant, that these four elements existed at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987). See also State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985) (to be entitled to an instruction on self-defense defendant must produce evidence tending to show he was free from fault and it was necessary or reasonably appeared to be necessary to kill in order to protect himself from great bodily harm or death). See generally State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978) (cases setting out these elements as requisites of proof of self-defense). The first element requires that there be evidence that the defendant believed it was necessary to kill in order to protect herself from serious bodily harm or death; the second requires that the circumstances as defendant perceived them were sufficient to create such a belief in the mind of a person of ordinary firmness. Both elements were supported by evidence at defendant's trial.
Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit "and exceed[ed]" the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:
Mrs. Norman didn't leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.
[18] When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:
Yes.... I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don't think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman's power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.
This testimony describes defendant's perception of circumstances in which she was held hostage to her husband's abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.
In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant's husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant's isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant's experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband's wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.
In State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986), this Court noted that if the defendant was in "no imminent danger" at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of "imminent" must be informed by the defendant's perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of "ordinary firmness" with regard to whether the defendant's perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.
Evidence presented in the case sub judice revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse, and one that dramatically distinguishes Judy Norman's belief in the imminence of serious harm from that asserted by the defendant in Mize. Psychologists have observed and commentators have described a "constant state of fear" brought on by the cyclical nature of battering as well as the battered spouse's perception that her abuser is both "omnipotent and unstoppable." See Comment, The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 Conn.L.Rev. 121, 131 (1982). Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. "[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating.... Thus from the perspective of the battered wife, the danger is constantly `immediate.' " Eber, The Battered Wife's Dilemma: [19] To Kill or To Be Killed, 32 Hastings L.J. 895, 928-29 (1981). For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, "imminent" is a term the meaning of which must be grasped from the defendant's point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant's belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.[1]
Defendant's intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent's life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as "imminent," even while her husband slept. Over these three days, her husband's anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant's fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband's death.
Defendant testified that on 10 June, two days before her husband's death, he had again forced her to go to a reststop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis's boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant's husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant's mother.
Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant's husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant's husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant's husband seize defendant's cigarette and put it out on her neck, the scars from which defendant displayed to the jury.
A police officer testified that he arrived at defendant's home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant's husband was interfering with ambulance attendants, saying "Let the bitch die." When he refused to respond to the officer's warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.
Defendant's mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, "Now, you're going to pay for taking those pills," and "I'll kill you, your mother and your grandmother." His rage was such that defendant's mother feared he might kill the whole family, and knowing defendant's [20] sister had a gun in her purse, she took the gun and placed it in her own.
Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother's house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to "straighten up. Quit drinking.... I'm going to have you committed to help you." Her husband responded, "If you do, I'll see them coming and before they get here, I'll cut your throat."
Later, her husband made her drive him and his friend to Spartanburg to pick up the friend's paycheck. On the way, the friend testified, defendant's husband "started slapping on her" when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant's head. At one point defendant's husband lay down on the front seat with his head on the arm rest, "like he was going to go to sleep," and kicked defendant, who was still driving, in the side of the head.
Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant's husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.'s fury. Phyllis testified that her father had beaten her mother "all day long." She testified that this was the third day defendant's husband had forbidden her to eat any food. Phyllis said defendant's family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis's grandmother had sent over a bag of groceries that day, defendant's husband had made defendant put them back in the bag and would not let anyone eat them.
Early in the evening of 12 June, defendant's husband told defendant, "Let's go to bed." Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, "Dogs don't lay in the bed. They lay in the floor." Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant "snuck up and took him out there to [her] mother's [house]." She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was "busting." Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, "and the gun was in there, and I don't know, I just seen the gun, and I took it out, and I went back there and shot him."
From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband's threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant's belief in the necessity to kill her husband not merely reasonable but compelling.
The third element for entitlement to an instruction on self-defense requires that there be evidence that the defendant was not the aggressor in bringing on the affray. If the defendant was the aggressor and killed with murderous intent, that is, the intent to kill or inflict serious bodily harm, then she is not entitled to an instruction on self-defense. State v. Mize, 316 N.C. 48, 340 S.E.2d 439. A hiatus between provocation by the decedent and the killing can mark the initiation of a new confrontation between the defendant and the decedent, such that the defendant's earlier perception of imminent danger no longer appears reasonable and the defendant becomes the aggressor. For example, in Mize, the defendant, who had been told the day before that the decedent was "out to get" him, went to the decedent's trailer with a shotgun, knocked on the front door, and hid under the steps when the decedent opened the door and asked who was there. Defendant then went to the back door, [21] knocked again, and shot the decedent. When the defendant went with his shotgun to the decedent's trailer, this Court said, it was a new confrontation, and if the defendant still believed that it was necessary to kill the decedent to avoid his own imminent death, that belief was unreasonable.
Where the defendant is a battered wife, there is no analogue to the victim-turned-aggressor, who, as in Mize, turns the tables on the decedent in a fresh confrontation. Where the defendant is a battered wife, the affray out of which the killing arises can be a continuing assault. There was evidence before the jury that it had not been defendant but her husband who had initiated "the affray," which the jury could have regarded as lasting twenty years, three days, or any number of hours preceding his death. And there was evidence from which the jury could infer that in defendant's mind the affray reached beyond the moment at which her husband fell asleep. Like the ongoing threats of death or great bodily harm, which she might reasonably have perceived as imminent, her husband continued to be the aggressor and she the victim.
Finally, the fourth element of self-defense poses the question of whether there was any evidence tending to show that the force used by defendant to repel her husband was not excessive, that is, more than reasonably appeared to be necessary under the circumstances. This question is answered in part by abundant testimony describing defendant's immobilization by fear caused by abuse by her husband. Three witnesses, including the decedent's best friend, all recounted incidents in which defendant passively accepted beating, kicks, commands, or humiliating affronts without striking back. From such evidence that she was paralyzed by her husband's presence, a jury could infer that it reasonably appeared to defendant to be necessary to kill her husband in order ultimately to protect herself from the death he had threatened and from severe bodily injury, a foretaste of which she had already experienced.
In State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922), in which the defendant was found guilty for the murder of his wife, Justice (later Chief Justice) Stacy recognized the pain and oppression under which a woman suffers at the hands of an abusive husband: "The supreme tragedy of life is the immolation of woman. With a heavy hand, nature exacts from her a high tax of blood and tears." Id. at 751, 115 S.E. at 61. By his barbaric conduct over the course of twenty years, J.T. Norman reduced the quality of the defendant's life to such an abysmal state that, given the opportunity to do so, the jury might well have found that she was justified in acting in self-defense for the preservation of her tragic life.
It is to be remembered that defendant does not have the burden of persuasion as to self-defense; the burden remains with the state to prove beyond a reasonable doubt that defendant intentionally killed decedent without excuse or justification. See State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 537 (1988) (the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill). If the evidence in support of self-defense is sufficient to create a reasonable doubt in the mind of a rational juror whether the state has proved an intentional killing without justification or excuse, self-defense must be submitted to the jury. This is such a case.
[1] This interpretation of the meaning of "imminent" is reflected in the Comments to the Model Penal Code: "The actor must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used." Model Penal Code § 3.04 comment (ALI 1985).
7.2.6.4.1.1.6 United States v. Urena 7.2.6.4.1.1.6 United States v. Urena
UNITED STATES of America, Plaintiff-Appellee,
v.
Lenny URENA, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[905] Elizabeth Newman (argued), Federal Public Defender, Los Angeles, CA, for defendant-appellant Lenny Urena.
Harvinder S. Anand (argued), Michael J. Raphael, Assistant U.S. Attorneys, Los Angeles, CA, for plaintiff-appellee United States of America.
Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and MICHAEL PATRICK McCUSKEY, Chief District Judge.[*]
OPINION
GOULD, Circuit Judge:
Lenny Urena appeals his jury conviction for assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and possession [906] of contraband in prison (a prison knife or "shank") in violation of 18 U.S.C. § 1791(a)(2), (b)(3). First, Urena argues that the district court abused its discretion by refusing to instruct the jury on his theory that he acted in self-defense. Second, Urena claims that the district court violated his Confrontation Clause rights by refusing to allow him to cross-examine the treating physician about the cause of the victim's injuries, and that the district court erred by refusing to let him designate the treating physician as his expert witness on causation during the trial. Finally, Urena further claims that his sentence is substantively unreasonable because his guidelines range sentence included "recency points," which were removed from the guidelines after he was sentenced. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
On the morning of April 11th, 2006, federal prisoner Gary Dennis grabbed fellow inmate Lenny Urena and called him a "bitch." Urena returned the insult and the two separated. Hours later, Urena attacked Dennis by surprise, striking him in the face. Dennis tried to disengage but Urena pursued and struck him repeatedly from behind. Dennis eventually grabbed Urena and wrestled him to the ground. Another inmate, Nekis Atwater, intervened, kicking Dennis in the back of the head and punching him at least fourteen times.
Dennis's injuries were superficial, but he suffered lacerations that required stitches. The shank that caused these injuries was recovered from underneath Urena's shoulder. Eyewitnesses disagree about who had the shank in the fight, Atwater or Urena. Urena confessed that the shank was his and that he had held it during the fight.
At trial, Urena argued that Atwater attacked Dennis with the shank, and that he confessed to possessing it because he did not want to "snitch" on Atwater. He also argued self-defense, claiming he was in danger because Dennis had called him a bitch, which he contends is a serious threat in prison. Alternatively, he argued that Dennis could have had a weapon when Urena attacked him. The district court at first let Urena argue self-defense in his opening statement, but later refused to instruct the jury on self-defense, reasoning that Urena had not established a sufficient factual foundation.
At trial, the Government called Dr. Jaime David—Dennis's treating physician—to testify on the nature and extent of Dennis's injuries. Dr. David's report said that the injury above Dennis's right eye was likely caused by a punch or a fall to the ground, not a knife. The Government moved to preclude Urena from asking Dr. David questions about causation, and the court agreed to do so as long as the Government did not open the door to that line of questioning on direct. The district court explained that "[t]here is a difference between the nature of a wound and causation," and noted that questions about causation were outside the scope of Dr. David's role as a percipient witness. Urena's subsequent attempt during the trial to designate Dr. David as an expert was rejected by the court.
II
Urena argues that the district court erred by refusing to give a self-defense instruction to the jury. We review for abuse of discretion the district court's conclusion that Urena did not establish a factual foundation to support a jury instruction on self-defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995). To be entitled to a self-defense [907] jury instruction, a defendant must make a prima-facie case of self defense by offering evidence to show:
(1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and
(2) the use of no more force than was reasonably necessary in the circumstances.
United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir.2006).
Under this rule the privilege of claiming self defense as a justification for an assault is constrained by the need for an immediate threat of unlawful force, and the need for the action to be commensurate with the threat, with no more force used than reasonably necessary to meet it. Urena's primary argument to us is that he "had to attack ... so that no one would think he really was a bitch." Applying this rule, when a person receives harsh words from another, insulting words, demeaning words, or even fighting words, there is no privilege to assault the speaker with deadly force. Stated another way, a person insulted by a personal slur cannot stab the offending speaker in the neck, bash their skull with a baseball bat, send a bullet to their heart, or otherwise deploy deadly force in response to the insult.
Urena's being called a bitch in prison, though it might create risk in that harsh environment did not give Urena warrant to attack Dennis with a prison-made knife. Urena's being called a bitch in prison did not justify a surprise, pre-emptive attack using deadly force; indeed it would not have justified an assault using much less force. See, e.g., United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir.1998) (holding victim's threat to "finish what he started" later that afternoon was not imminent); United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (rejecting defendant's self-defense theory when victim was unarmed and in retreat); United States v. Slocum, 486 F.Supp.2d 1104, 1113-14 (C.D.Cal.2007) (rejecting self-defense theory when victims were unarmed and non-threatening at time of attack).
Urena also contends that he presented evidence that could show Dennis was carrying a shank and therefore he was defending himself against an imminent attack. But even if Dennis possessed a knife, the evidence was undisputed that it was Urena who was the attacker, and thus he could not in those circumstances successfully urge a self defense theory. The district court did not abuse its discretion in concluding that Urena's evidence was mere speculation and that a jury could not rationally sustain the defense based on the evidence presented. Wagner, 834 F.2d at 1486.
III
Urena next contends that the district court erred by preventing him from examining Dr. David about the cause of Dennis's injuries and that this violated his Confrontation Clause rights. Federal Rule of Evidence 611(b) states a clear rule: "Cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness." We see no error of law, to the extent we review de novo on a Confrontation Clause claim, United States v. Larson, 495 F.3d 1094, 1101 (9th Cir.2007) (en banc), by the district court's limiting cross examination of Dr. David to the scope of his direct testimony.
We have held: "A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the [908] witness." United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir.1999) (internal citations and quotations omitted). The Government called Dr. David to testify only as to the nature and extent of Dennis's injuries. Urena's Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.
Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert. We review evidentiary rulings for abuse of discretion, though we review de novo the district court's interpretation of the Federal Rules of Evidence. United States v. Yida, 498 F.3d 945, 949 (9th Cir.2007). Urena argues that the testimony it wanted to elicit from Dr. David was not expert testimony because a doctor's evaluation of an injury is intertwined with his judgment of what caused the injury. He cites no legal authority for this argument, analogizing to the hearsay exception in Federal Rule of Evidence 803(4), which covers statements describing the cause of the injury "insofar as reasonably pertinent to diagnosis or treatment."
But other courts have held that a physician's assessment of the cause of an injury is expert testimony. See, e.g., United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.2005) ("Her diagnosis of the injury itself ... would be permissible lay testimony, but her statement about the cause of the injury was, as she admitted, a `hypothesis.' And the ability to answer hypothetical questions is the essential difference between expert and lay witnesses." (internal quotation and alteration omitted)); Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004) (holding that, where the cause of an injury would not be obvious to a lay juror, expert testimony is required). We are persuaded, and agree with our sister circuits, that Dr. David's opinion on issues of causation required expert testimony.
Urena's argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit. Urena could have designated and called his own medical expert, and did designate an expert on prisons. But instead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started. The district court held a pretrial conference and both the Government and Urena then were free to designate their planned experts. Urena did not at pretrial conference say that he wanted to call Dr. David as an expert or any other medical expert, and then he did not seek to designate Dr. David as his expert until after the trial was underway. There is no abuse of discretion in the district court excluding the proffer of a new expert not disclosed in pretrial conference or pretrial order. The district court has broad traditional powers to manage its docket and to manage the presentation of evidence through designated witnesses in a trial before it. See, e.g., United States v. Grace, 526 F.3d 499, 516 (9th Cir.2008) (en banc) ("[T]he district court here is well within its authority to manage its docket in enforcing a valid pretrial discovery order."). The district court also has unquestioned discretionary power to exclude evidence that should have been produced in reciprocal discovery. See United States v. Moore, 208 F.3d 577, 578 (7th Cir.2000) ("[C]ourts are entitled to exclude evidence that should have been produced during reciprocal discovery [909] in criminal cases.") (citing Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). It follows from these principles that a district court may normally refuse to permit expert testimony from an expert not previously designated before trial in the pretrial conference. We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.
IV
Finally, Urena argues that his sentence should be vacated and remanded for re-sentencing because the Sentencing Commission has amended the guidelines to eliminate "recency points" from the sentencing calculation. U.S. Guidelines Manual, Supp. to App. C, Amend. 742 at 354-56 (2010) ("Amend.742"). The guidelines provide that when a change is not designated as retroactive, it is not to have retroactive effect to reduce a prison term. See U.S. Guidelines Manual § 1B1.10(a)(2). The change implemented by Amendment 742 is not designated as retroactive. § 1B1.10(c) (not listing Amend. 742).
Under the guidelines in place when Urena was sentenced, the sentencing range was correctly calculated as 77-96 months. If re-calculated under the revised guidelines, his sentencing range would be 63-77 months. Urena was sentenced to only 60 months. He argues that this sentence is substantively unreasonable in light of the Sentencing Commission's revision.
We review sentencing decisions for abuse of discretion. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.2009). "Only a procedurally erroneous or substantively unreasonable sentence will be set aside." Id. at 1053 (quoting United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc)). Urena argues that his sentence is substantively unreasonable in light of Amendment 742 because the reason for the amendment was that recency points only minimally predict recidivism. See Amend. 742. But we have recently held that failure to vary from a guidelines range sentence to compensate for the inclusion of recency points after Amendment 742 had been proposed but before it was adopted does not render a sentence substantively unreasonable. United States v. Ruiz-Apolonio, 657 F.3d 907, 917-19 (9th Cir.2011). Urena's sentence, adopted before Amendment 742 was even proposed, is not substantively unreasonable.
The district court is required to apply the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). Subsequent amendments to the guidelines can only be considered if the amendment is clarifying existing law (a nonsubstantive change) or listed as retroactive under U.S. Guidelines Manual § 1B1.10(c). United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir.2004). Amendment 742 is a substantive change because it was not characterized as a clarification and does not address a circuit conflict. Id. It was not listed as a retroactive change, and does not have retroactive effect.
Urena argues in the alternative that we should give the district court a chance to re-evaluate the sentence imposed in light of the amendment. He cites United States v. Godin, where the First Circuit vacated a defendant's sentence and remanded for re-sentencing after a non-retroactive amendment changed the way that past convictions are counted for criminal history purposes. 522 F.3d 133, 136 (1st Cir.2008) (per curiam). Recognizing that this amendment did not alter the guideline range, the First Circuit in Godin reasoned that it nonetheless might alter [910] the district court's ultimate choice of sentence, and left it to the district court's discretion whether the sentence should be changed in light of the amendment. Id.
We decline to adopt the approach taken by Godin. See also United States v. Alexander, 553 F.3d 591, 593 (7th Cir.2009) (criticizing the First Circuit's approach in Godin and declining to follow it). Amendment 742 is not listed as retroactive, and the guidelines themselves make clear that such a substantive change in the guidelines, where not listed as retroactive, does not warrant resentencing. U.S. Guidelines Manual § 1B1.10(a)(2). Here, there was an otherwise reasonable sentence arrived at in a procedurally correct way based on a properly calculated guidelines range.
AFFIRMED.
[*] The Honorable Michael Patrick McCuskey, Chief District Judge for the U.S. District Court for Central Illinois, Urbana, sitting by designation.
7.2.6.4.1.1.7 State v. Abbott 7.2.6.4.1.1.7 State v. Abbott
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK ABBOTT, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
[66] Mr. Charles Handler argued the cause for defendant-appellant (Mr. Joel F. Handler, on the brief).
Mr. Martin L. Greenberg, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).
The opinion of the court was delivered by WEINTRAUB, C.J.
Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J. Super. 191 (1960), and we granted certification, 34 N.J. 176 (1961).
Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.
Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he [67] meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.
Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.
Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.
I.
The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found for him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.
As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity [68] from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.
A.
We have the preliminary question whether defendant must demonstrate "plain error" to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or unsettled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.
B.
The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.
We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force [69] than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.
The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316-318 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.
Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767-68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and [70] Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416 (Sup. Ct. 1916), affirmed o.b., 90 N.J.L. 341 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J. Super. 154 (App. Div. 1952); cf. State v. Goldberg, 12 N.J. Super. 293 (App. Div. 1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958).
We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.
In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct., at p. 502, 65 L.Ed., at p. 963):
"* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."
The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted "seems to be a median position" and "would apparently remit the issue to the jury, without [71] a legal mandate on the point." We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, and if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular "formula laid down by the [trial] court" was not "adequate to the protection of the defendant's rights" (256 U.S., at pp. 342-343, 41 S.Ct., at p. 502, 65 L.Ed., at pp. 962-63) in the factual pattern which the defendant there asserted.
We believe the following principles are sound:
1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."
Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes (at p. 23), "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." Cf. Prosser, Torts § 19, at p. 90 (2d ed. 1955); Restatement, Torts § 63 (1934). Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas [72] came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.
2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As § 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating * * *." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor.
3. There has been some uncertainty in the language of our cases upon the burden of proof with respect to self-defense. The decisions are treated in State v. Chiarello, 69 N.J. Super. 479 (1961), where the Appellate Division correctly said that although the burden is upon a defendant to adduce evidence to support the defense, yet if such evidence appears either in the State's case or upon the defendant's case, the issue must be left to the jury with this instruction: that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of [73] retreat is raised in connection with the defense of self-defense, the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety, and that if a reasonable doubt upon that question should exist, the issue of retreat must be resolved in defendant's favor.
C.
As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill (N.J.S. 2A:90-2). State v. Centalonza, supra (18 N.J. Super. 154). Here the charge is atrocious assault and battery (N.J.S. 2A:90-1), a crime which involves vicious or brutal conduct. State v. Riley, 28 N.J. 188, 197-198 (1958), appeal dismissed and cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959). An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. The Appellate Division held the doctrine applicable to atrocious assault and battery. The comment to Article 3 of the Model Penal Code (at p. 3) expresses the same view, saying, "If the particular force, for example, would be unjustifiable in a prosecution for homicide it should be equally unjustifiable if the victim survives and what is charged is an assault." This seems sound, and hence an instruction upon the subject is appropriate in a trial for atrocious assault and battery, but the instruction should be expressly centered about the use of deadly force.
D.
We turn to the instruction of the trial court. It reads:
"* * * If you find the charges involved or either of them happened on the joint or common driveway and that the defendant [74] had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges or any of these charges if you find that he had a duty to retreat."
It is at once apparent that the charge consists of abstract propositions, unanchored to the factual setting. It will be recalled the encounter had two phases, although one quickly followed the other. The first phase was an unarmed attack by Nicholas which Abbott met in kind; the second involved, as the jury could find, an attack or apparent attack by hatchet in the hands of Michael and by kitchen utensils allegedly wielded by Mary, both aided by Nicholas who had arisen from the initial punch. We have no way of knowing whether the jury understood Abbott was required to retreat when first assailed by Nicholas alone. The jury may well have so gathered since the instruction excluded self-defense "if you find that he [Abbott] did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm," and of course Nicholas's attack with his fists readily fitted within those terms.
The State asks us to assume the jury understood an unarticulated premise, i.e., that the court was referring solely to the hatchet affair. If we could so assume, still under the instruction the obligation to retreat would depend upon the nature of the attack upon Abbott rather than the amount of force Abbott intended to employ. In short, there was no reference to the use of a deadly force by Abbott. And if we should read the charge in still another way, to wit, that the court was merely defining its prior reference to "an available opportunity" to retreat and hence meant that the opportunity was not "available" if retreat would have subjected Abbott to imminent danger to his life or of great bodily harm but was "available" if he could get away with [75] a hurt of lesser character, still the charge would be incorrect. This is so because there is no obligation to retreat unless retreat can be effected "with complete safety," and indeed with knowledge that retreat can be so effected. Further, upon that interpretation, the instruction would be devoid of any statement of the facts prerequisite for consideration of the subject, i.e., an intent by the defendant to use a deadly force.
We have said enough to indicate the insufficiency of the charge. Even upon study and restudy we are not sure we can extract the thesis the trial court held. A jury which listens to a single reading of an instruction cannot be expected to debate its meaning and reach a correct view of it. A charge should be a clear, unambiguous guide related to the evidence in the case. The conviction must be reversed.
II.
The record of Abbott's direct examination reads in part:
"Q. How much do you weigh, Mr. Abbott? A. At the present time?
Q. At the present time. A. Just close to 200 pounds, right now.
Q. Now, on July 15, 1957 [the date of the alleged crime] do you know how much you weighed? About July 15, not necessarily on that day, say within a few pounds either way. A. About 135, 140 pounds, I guess.
Q. Why was your weight so low at that time?
Mr. Loftus: I object on the ground it is irrelevant. I don't see any relevancy to this situation.
The Court: I will sustain the objection."
Defendant complains he was thereby barred from showing serious medical conditions, pertinent to his ability to defend with lesser force or to retreat with safety. The Appellate Division held defendant failed to comply with R.R. 1:5-1(a) in that he did not object to the ruling, and further held there was no manifest wrong or injury.
The cited rule reads in part:
"* * * Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by [76] the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." (Emphasis added)
Read literally, this rule would seem to require a specific objection to be stated after an offer of proof has been rejected, and some casual statements might be read to support that theme. State v. Gibson, 15 N.J. 384, 391 (1954); State v. Huff, 14 N.J. 240, 248 (1954); State v. Hogan, 20 N.J. Super. 1, 9 (App. Div. 1952). Thus understood, the rule could be thought to continue the discredited practice of former days under which error could not be asserted on appeal unless at the trial counsel had intoned "exception."
Our rules do not perpetuate mere ritual. Rather the purpose is to require a litigant to make known his position to the end that the trial court may consciously rule upon it. When that has happened, it would be pure ceremony to require some further protest. This view is embodied in R.R. 3:7-8, which reads as follows and in the light of which R.R. 1:5-1(a), quoted above, must be understood:
"Exceptions to rulings or orders of the court or instructions to the jury are not required in order to reserve the questions involved for review on appeal; and for all purposes for which an exception has heretofore been necessary it suffices that the defendant, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him."
Actually in the Tentative Draft (1948) of our rules, the provisions of this rule appeared in Rule 1:2-14(a), the forerunner of R.R. 1:5-1(a).
Applied to the admission and exclusion of evidence, these rules have this effect: If a litigant complains of the admission of evidence, he must show he objected to its receipt and stated the reasons for his opposition. If he did, no more is required to preserve his right to appellate [77] review. If the litigant complains of an exclusion of evidence, it is enough that his adversary's objection was upheld unless he refused an opportunity to tell the court why he thought the evidence should be admitted. Here Abbott complains of the exclusion of proof. The State objected to the offer as "irrelevant." If the trial court wished Abbott to explain his thesis, an opportunity to do so should have been given. The trial court did not, but rather, apparently satisfied it fully appreciated what was involved, upheld the State. We see no reason to require Abbott to utter "I object" or to attempt to argue against a ruling already announced. He made known the ruling he wished, i.e., admission of the evidence he offered. He did not decline an opportunity to enlighten the court. We are satisfied the alleged error is presented without recourse to the doctrine of "plain error."
There is a different question with which the one just discussed should not be confused. That question is whether a litigant must spread on the record the essence of what he would have proved but for the adverse ruling. R.R. 4:44-3 provides "the examining attorney may make a specific offer of what he expects to prove by the answer of the witness." The rule in terms applies to civil matters but is merely declaratory of prior good practice and should be observed as well in criminal proceedings. Without such disclosure, an appellate court cannot readily evaluate whether the exclusion, although erroneous, resulted in manifest wrong or injury. State v. Micci, 46 N.J. Super. 454, 458 (App. Div. 1957); see State v. Gambutti, 36 N.J. Super. 219, 233 (App. Div. 1955); New Jersey Highway Authority v. Rudd, 36 N.J. Super. 1, 5 (App. Div. 1955).
Of course the details of the proffered proof ultimately depend upon the integrity of counsel, and that being so, a representation first made on appeal might be argued to be no less meaningful. But the proffer should be made at trial, for at least the reason that the statement may well induce the trial judge to reconsider and perhaps to reverse his ruling.
[78] Our experience indicates widespread failure to place such offers upon the trial record. Indeed, frequently we receive our first glimpse in response to questions at oral argument. In the present case the disclosure first appeared in the brief on appeal, wherein we are told defendant wanted to prove serious injuries and illness from which he was in the process of recovery at the time of the alleged offense. The admissibility of such proof on the issues of excessive force and of retreat is too evident to require discussion. The question disallowed was on its face suggestive of proof of that kind. Since the judgment must be reversed for other reasons already given, we need not speak further of the sufficiency of the record. But we take this opportunity to remind the bar that a failure to spread the offer on the trial record may lead the appellate court to conclude that it cannot find the error was harmful.
III.
Abbott further urges the State could not move the indictment against him because prior thereto it had brought Michael Scarano to trial for assault with intent to kill him, which trial resulted in an acquittal. We think the Appellate Division correctly rejected this contention.
IV.
Since the case must be remanded, we refer to a ruling of which Abbott does not here complain, lest it be repeated at a retrial. During direct examination Abbott was asked, "At any time did you intentionally strike anybody with this ax?" The State objected "on the ground it is leading," and was sustained. Curiously, a question essentially the same had already been asked and answered. After that question was answered, the State objected without specifying any ground. The trial court replied, "I think it is admissible and is answered anyway. I will permit it to stand."
The objection that the question was "leading" was unsound. In a sense every question is "leading." If [79] interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, "What is your position in this case?," is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440 (Sup. Ct. 1932).
Since the objection to the earlier question was not particularized, it is appropriate to add that questions addressed to the mental operations of a defendant are thoroughly proper when such operations are an ingredient of the State's case or of a defense. See State v. Myers, 7 N.J. 465, 483 (1951); State v. Len, supra (108 N.J.L. 439). Relevancy and materiality are obvious. And a defendant's competency to testify thereto is equally plain. Indeed no one knows better than he. Of course, he may not be believed, but his self-interest is not a bar, and has not been since the demise of the common-law rule which denied the stand to a party to a controversy. See 2 Wigmore, Evidence § 579, at p. 701 (3d ed. 1940).
The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.
For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For affirmance — None.
7.2.6.4.1.1.8 Florida Statute on Justifiable Use of Force 7.2.6.4.1.1.8 Florida Statute on Justifiable Use of Force
7.2.6.4.1.1.9. Posner, pp. 13-14, 89-91; Economic Analysis of Law
7.2.6.4.1.1.10. Restatement of Contracts, Second, § 77
7.2.6.4.1.2 IV.A.ii. Necessity 7.2.6.4.1.2 IV.A.ii. Necessity
Necessity may also justify action that would otherwise be criminal. The category is significantly narrower than self-defense, and claims of necessity are rarely successful. Necessity requires imminent and grave harm that results through no fault of the defendant. The defendant must take forceful action only when the benefits clearly outweigh the harms. As you will see, the cases in this section often deal with significantly more extreme fact patterns than the self-defense cases. Why is the necessity justification narrowly construed?
7.2.6.4.1.2.1 The Queen v. Dudley and Stephens 7.2.6.4.1.2.1 The Queen v. Dudley and Stephens
THE QUEEN v. DUDLEY AND STEPHENS
December 9, 1884
A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.
At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation: --
Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder.
INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.
At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated
“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”
The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.
Dec. 4.
Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the Crown. The record having been read, A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the statement in the verdict that the yacht was a registered British vessel, and that the boat in which the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they simply found the facts relating to the death of Parker, and nothing else was referred to them; thirdly, that the record could not be filed, for it had been brought Queen into the court by order only, and not by certiorari. Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be struck out of the record. With regard to the conclusion of the verdict it is according to the form of special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.
[THE COURT intimated that the points taken on behalf of the prisoners were untenable.]
With regard to the substantial question in the case -- whether the prisoners in killing Parker were guilty of murder -- the law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence against the acts of the person whose life is taken. This principle has been extended to include the case of a man killing another to prevent him from committing some great crime upon a third person. But the principle has no application to this case, for the prisoners were not protecting themselves against any act of Parker. If he had had food in his possession and they had taken it from him, they would have been guilty of theft; and if they killed him to obtain this food, they would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and Nations, which was referred to at the trial, has been found, upon examination in the British Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a judicial decision.[1]
[He was stopped.]
A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners were not guilty of murder, at the time when they killed Parker, but killed him under the pressure of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the case often put by casuists, of two drowning men on a plank large enough to support one only, and one thrusting the other off, the survivor could not be subjected to legal punishment. In the American case of The United States v. Holmes, the proposition that a passenger on board a vessel may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p. 221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked persons clinging to the same plank and one of them thrusting the other from it, finding that it will not support both, and says that this homicide is excusable through unavoidable necessity and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish. It is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft, but that is on the ground that there can be no such extreme necessity in this country. In the present case the prisoners were in circumstances where no assistance could be given. The essence of the crime of murder is intention, and here the intention of the prisoners was only to preserve their lives.
Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part of the crew of an English yacht, but for anything that appears on the special verdict the boat may have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v. Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by seamen employed or recently employed in a British ship. The special verdict cannot be amended in a capital case by stating the real facts.
Sir H. James, A.G., for the Crown.
[LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite us to take?]
To pronounce judgment and pass sentence. This was the practice even when, as formerly, the record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT intimated that judgment would be given on December 9th.
-- -- --
Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, BB) was delivered by
LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.
The special verdict as, after certain objections by Mr. Collins to which the Attorney General yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as above set out.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.
Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First it was contended that the conclusion of the special verdict as entered on the record, to the effect that the jury find their verdict in accordance, either way, with the judgment of the Court, was not put to them by my learned Brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office, that this has been the form of special verdicts in Crown cases for upwards of a century at least.
Next it was objected that the record should have been brought into this Court by certiorari, and that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record not of its own, but of another Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the Court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order; and we are all of opinion that the objection fails.
It was further objected that, according to the decision of the majority of the judges in the Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain, of a German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in the Franconia Case has been since not only enacted but declared by Parliament to have been always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.
There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by violence, violence justified so far as it was necessary for the object, any illegal violence used towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione, tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as justifying homicide is a necessity of the same nature.
It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)
But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)
But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?
It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael Foster “necessity and self-defence” (which he defines as "opposing force to force even to the death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it.
In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.
What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”
The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing that the necessity he was speaking of was a physical necessity, and the self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new authority, nor any fresh considerations. Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the island of St. Kitts, when that island was possessed partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us which must be decided on very different considerations.
The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, "necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.
There remains the authority of my Brother Stephen, who, both in his Digest and in his History of the Criminal Law, uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best authority for saying that it was not meant to cover it. If it had been necessary, we must with true deference have differed from him, but it is satisfactory know that we have, probably at least, arrived at no conclusion in which if he had been a member of the Court he would have been unable to agree. Neither are we in conflict with any opinion expressed upon the subject by the learned persons who formed the commission for preparing the Criminal Code. They say on this subject:
We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to, suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.
It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended but as it is we have, as they say, "to apply the principles of law to the circumstances of this particular case."
Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –
"So spake the Fiend, and with necessity
The tyrant's plea, excused his devilish deeds."
It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.
It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.[2]
[The COURT then proceeded to pass sentence of death upon the prisoners.[3]]
Solicitors for the Crown: The Solicitors for the Treasury.
Solicitors for the prisoners: Irvine & Hodges.
NOTES
[1] Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston Baker, a member of the Bar, and communicated to him as follows:
A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum, written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses. Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before seventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent home to St. Christopher.
[2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.
[3] This sentence was afterwards commuted by the Crown to six months imprisonment.
7.2.6.4.1.2.2 Cleveland v. Anchorage 7.2.6.4.1.2.2 Cleveland v. Anchorage
Ann Hisky CLEVELAND, Kristine M. Fardig, Robert L. Head, and Pamela Sigfried, Appellants,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.
Supreme Court of Alaska.
[1075] Wayne Anthony Ross and Donald J. Miller, Miller & Ross, Anchorage, and Patrick Monoghan, Idaho, for appellants.
Elaine Vondrasek, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.
Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.[*]
OPINION
RABINOWITZ, Chief Justice.
The facts underlying the four criminal convictions appealed from in this case are not in dispute.
On January 6, 1978, members of various anti-abortion groups staged a nationwide protest. In conjunction with that movement, members of Alaska Right to Life staged a demonstration outside of the building housing the Alaska Hospital and the Alaska Clinic in Anchorage. Having decided that they had "tried everything else" and that it was necessary "to try ... peacefully to stop the taking of human life," appellants Head, Fardig, Sigfried and Cleveland entered the Alaska Clinic to conduct a more emphatic protest than the one in progress outside the building. Head and Siegfried proceeded to attach themselves to the door of the Clinic's operating room with handcuffs and chains, while Cleveland and Fardig handcuffed themselves to the operating table.
Shortly after appellants had established themselves in the Clinic, Mingo, the building security supervisor, asked them to leave and then, in response to their refusal, obtained a set of boltcutters. Mingo first cut the handcuffs connecting Head and Sigfried to the door and escorted them from the building. He then returned and, overcoming relatively minor resistance, freed Fardig and Cleveland. Fardig was escorted outside and Cleveland, who refused to walk, was carried out on a sheet. All four were advised not to return unless they needed medical assistance.
Moments later, appellants re-entered the building and again approached the operating room; Mingo stopped them and again requested them to leave. Fardig, Cleveland and Siegfried then sat down on the floor, while Head removed himself to the building's main entrance and sat down there. At that point, city police were summoned. All four appellants were once again requested to leave the premises, and on refusing to do so, were arrested and then removed by police officers.
Appellants were each charged with violating Anchorage's criminal trespass ordinance[1] [1076] and all were convicted under that ordinance in the district court. The convictions were affirmed on appeal to the superior court, and are now before us on appeal from the superior court's affirmance.
Appellants' primary defense at trial was to have depended on the claim that their actions were necessary to avert imminent peril to human life. They allege error in the district court's refusal to instruct the jury on the defense of necessity. Although the trial court excluded that defense, it did allow appellants to defend on the ground that they acted under an honest and reasonable, but mistaken, belief that the necessity defense would protect them from criminal prosecution for their actions. They allege error on the ground that the instructions given on this latter defense were so "confusing and contradictory" as to require reversal. Appellants also seek reversal on the ground that the criminal complaints relied on by the state were defective and on the ground that the cumulative impact of the alleged errors deprived them of their due process rights under the United States Constitution and the Alaska Constitution.
I. DEFECTS IN THE COMPLAINTS.
Appellants argue that the criminal complaints in this case were defective in two respects. First, Fardig, Cleveland and Sigfried claim that they were arrested in the Alaska Clinic rather than the Alaska Hospital as alleged in each of the complaints. Second, pointing to the literal language of the Anchorage trespass ordinance,[2] appellants contend that they were not in violation of that ordinance because the person who requested them to leave the building was not an "owner or occupant thereof."
Under Alaska Dist.Ct.R.Crim.P. 1(a),[3] a complaint constitutes the accusatory pleading by which an offense is charged in a district court proceeding; it serves the same function as does an indictment or information in the superior court. Under Alaska R.Crim.P. 7(c),[4] a mere formal defect does not render an indictment insufficient unless it is of a magnitude sufficient to prejudice substantial rights of the defendant. Alaska Dist.Ct.R.Crim.P. 1 directs application of the general Criminal Rule provisions to district court proceedings "[w]herever practicable." In the present case, three of the four complaints were [1077] formally defective in that they alleged that the trespasses occurred in the Alaska Hospital rather than in the Alaska Clinic where they actually did occur. Appellant Head admits that he was arrested for trespassing in the Alaska Hospital as alleged. Both facilities, however, were in fact contained within a single building. Since no prejudice to any appellant is claimed, and since we can perceive none that could be claimed, this asserted defect did not warrant dismissal of the subject complaints. See Price v. State, 437 P.2d 330, 332 (Alaska 1968).
Appellants' second attack on the sufficiency of the complaints is that Anchorage Municipal Code 8.30.010(B)(3)[5] requires that a trespasser be requested to depart from the premises by an "owner or occupant" before he can be found to have violated that ordinance. Mingo, the security supervisor for the whole Hospital-Clinic building, was, according to appellants, neither an owner nor an occupant of the building and therefore was not qualified to request them to leave.
Beyond his statements that he was "the building security supervisor" and that he was "employed by the Teamster[s] Union, Local 959," there is nothing in the record to indicate the precise nature of Mingo's employment arrangement with the Hospital or Clinic. Appellants' attack, however, is not based on the extent of Mingo's authority to act on behalf of the Clinic; it depends, rather, on a very literal reading of the trespass statute.[6] Appellants' claim assumes without argument that under the ordinance, an "owner or occupant" can never make the request that trespassers depart by acting through an agent. In the absence of argument or authority to the contrary, we see no reason for suspending the general common law of agency in construing section 8.30.010(B)(3) of the Anchorage Municipal Code. Other courts have reasoned similarly. See Johnson v. State, 277 Ala. 655, 173 So.2d 824, 827-28 (1965); People v. Thompson, 56 Ill. App.3d 557, 14 Ill.Dec. 312, 372 N.E.2d 117, 121-22 (1978). The record indicates that Mingo was a duly authorized agent of an "owner or occupant" of the Clinic acting within the scope of his employment, and his request that appellants leave the premises therefore satisfied the requirements of Anchorage Municipal Code 8.30.010(B)(3). Thus we also reject this facet of appellants' attack on the sufficiency of the complaints.
II. THE DEFENSE OF NECESSITY.
Appellants' primary claim is that in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril. In spite of both argument and testimony offered at trial that is in apparent conflict with their present position, appellants now insist that:
It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the profile cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day.
In support of their position appellants cite newspaper articles[7] describing two unreported Fairfax County, Virginia, district court cases[8] in which trespassers in an abortion clinic were acquitted on this theory.
[1078] The defense of necessity requires a showing of three essential elements:
1) The act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.[9]
It is available if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. Nelson v. State, 597 P.2d 977, 979, 980 n. 6 (Alaska 1979).
Relying heavily on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the district court refused to allow the jury to consider the defense of necessity. Appellants argue that their presence "prevented the killing of children which was imminent" because "the potential victims and their mothers could not be brought to the abortion chambers through hallways and doors which the appellants were blocking."
There are several flaws in appellants' argument. First, the emergency which produces the "necessity" behind the charged act must generally be a result of the "physical forces of nature." W. LaFave & A. Scott, Criminal Law § 50, at 381. Generally, when the threatened harm emanates from a human source, an actor who violates the law in response to it can defend only on the grounds of duress, defense of others, or crime prevention. Id.[10] The defense [1079] of duress is clearly inappropriate here since appellants do not claim that their illegal acts were compelled by "the unlawful threats of another." E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974). The other two related defenses — defense of others and crime prevention — require that the harm avoided by the charged act be unlawful. R. Perkins, Criminal Law 1019 (2d ed. 1969).[11] Abortion, or the "killing of unborn children" as appellants characterize it, is not unlawful in this state, as appellants concede.[12] Given these principles, appellants' argument must fail since the alleged harm sought to be avoided did not arise from a natural source and was not unlawful.
Second, we find the reasoning of the Hawaii Supreme Court in State v. Marley, 509 P.2d 1095 (Hawaii 1973), persuasive. In Marley, the defendants were convicted of criminal trespass after entering the offices of Honeywell Corporation in an attempt to stop the "war crimes" being committed by Honeywell. As in the present case, the Marley defendants' behavior was nonviolent but was disruptive of normal business operations. Id. at 1099. Their necessity defense was rejected for three reasons, two of which we find applicable here: first, "[w]here there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of non-criminal protest were and are available to defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful." Marley, 509 P.2d at 1109 (citations omitted). Second, defendants are "unentitled to the defense of `necessity' because their actions were not reasonably designed to actually prevent the threatened greater harm... . Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt" the practices to which they objected. Id.
Appellants seek to distinguish Marley on the ground that the alleged harm in that case — the manufacture of weapons to be used in the Vietnam war — was specially and temporally remote from the site of the trespass whereas the abortions they prevented were scheduled in the very rooms appellants occupied and blocked, within minutes of the time of their entry. However, the lack of "imminence" in Marley was only one of the three grounds relied upon by the court, and the differences between this case and Marley do not render [1080] the other two grounds less applicable. In other respects, the facts of the two cases are closely analogous. In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.
Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view [as] harmful," id. at 1109, then, as appellants describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected.
Third, the defense of necessity requires a showing that the harm sought to be avoided was greater than the harm reasonably foreseeable as resulting from a defendant's illegal actions. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). That is, the harm reasonably foreseeably resulting from a failure to act must be balanced against that foreseeably resulting from the illegal action. We believe that harm to both the Clinic and its patients was reasonably foreseeable to the trespassers. The Clinic's schedule was disrupted and its operating room required resterilization; and it was certainly foreseeable that the patients scheduled to undergo abortions at the time the demonstration occurred would suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period.
Against this must be weighed the foreseeable results of appellants' failure to intervene — the routine performance of abortions, or, as appellants regard it, the killing of human life. Appellants acknowledge that the Supreme Court of the United States has expressly rejected the identification of fetuses as "persons" in this context. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 728-730, 156-59, 35 L.Ed.2d 147, 179-80, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). Appellants' view is that Roe v. Wade, although foreclosing the possibility of action by state officials to protect fetuses until viability, does not prohibit similar actions by individuals. The question, then, is a familiar one: whether appellants can, by appeal to a "higher law," justify their illegal attack on a form of government-approved behavior. Citing this court to two unreported cases[13] and the Nuremberg Trials,[14] appellants seek a ruling that, as a general principle, abortion is a more significant evil than trespass.
However, even assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context,[15] the United States Supreme Court is not the only authority to which we must defer in [1081] this area. The Alaska legislature is better suited to strike the balance than is this court. Indeed, the law of necessity itself requires us to consult the legislature's enactments:
The defense of necessity is available only in situations wherein the legislature has to itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.
LaFave and Scott, supra, § 50 at 382.[16]
Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade.[17] Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior.
We hold that the trial court's rejection of appellants' necessity defense was proper.[18] We are in agreement with the District of Columbia Court of Appeals' response to the [1082] necessity defense raised by participants in a similar anti-abortion demonstration:
Unlike medical necessity or other emergency situations, the necessity cited by appellants cannot shield them from criminal liability for their acts.
The rights to free speech, to assembly, and to petition the government for grievances are a cornerstone of the American system. So, too, is the right to be free from criminal interference. These appellants trespassed on the rights of others and did so without excuse.
Gaetano v. United States, 406 A.2d 1291, 1295 (D.C.App. 1979).
III. JURY INSTRUCTIONS.
Appellants assert that the following three instructions were so "confusing and contradictory" as to require reversal:
[NO. 7]
In the crime charged in the complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law.
[NO. 8]
In this case, if you find from the evidence that a defendant honestly believed that he or she had a right to remain on the premises occupied by Alaska Hospital and Clinic even after being instructed to leave, and that such belief was based upon reasonable grounds, and that the conduct of each defendant would have been lawful and proper had the facts been such as defendant honestly believed them to be, then you must find such defendant not guilty.
[NO. 9]
To constitute the defense of necessity, the defendants would have had to show that they were attempting to prevent some harm that was within their presence. Since the facts of this case have shown that the defendants were not attempting to prevent harm within their presence, the defense of necessity is not applicable. Therefore, you may not consider the defense of necessity in your deliberations.
On appeal, the superior court agreed that the instructions were inconsistent, but held that the inconsistency did not require reversal. In its written opinion, the superior court stated:
The real problem is that instruction no. 8 states a proposition of law that is inapplicable to these cases. In essence, instruction no. 8 is an instruction on mistake of law as a defense. Mistake of law is not a defense applicable to the municipal trespass ordinance (AO 8.30.010) under which appellants were charged. Consequently, the judge gave an unwarranted instruction. The fact that instructions nos. 7 and 9 were inconsistent with no. 8 simply served to cure the error of giving no. 8. The error was harmless, as it is clear that the jury rejected the erroneous mistake of law instruction, so that `the jury was not substantially swayed or affected by the error.' Adkins v. Lester, 530 P.2d 11, reh. den., 532 P.2d 1027 (Alaska 1974).
Instruction number eight was based upon the trial court's view that, although appellants could not defend on the basis of necessity, they could seek to excuse their conduct [1083] on the ground that they honestly and reasonably believed that that defense justified their presence at the Clinic. Three of the four appellants testified that they were aware of two judicial decisions in which, on facts virtually identical to those in the present case, defendants were acquitted on the ground of necessity.[19] All four testified that they believed they had a legal right to enter the Clinic in an attempt to prevent abortions from being performed. The instruction, then, would have required acquittal had the jury found these beliefs to be both honest and reasonable.
At trial, the state argued that the mistake of law defense, as presented by appellants, is only applicable if the mistaken reliance is upon the statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed. We have found no authority, and appellants cite none, for the proposition that an individual is justified in relying on the case law of other jurisdictions in deciding on a course of conduct.
Since the cases relied upon by appellants were both decided by a trial court in Fairfax County, Virginia, the defense of "reliance of a judicial decision" is inapplicable to the present case. The district court therefore committed error in giving instruction number eight.
We must agree with appellants' claim that the three instructions taken together were confusing. Instruction seven explains, correctly, that the criminal intent necessary to convict does not include intent to violate the law. Instruction eight, however, indicates that if the appellants honestly and reasonably believed their actions did not violate the law, they were not guilty. Instruction nine states the court's correct finding that the necessity defense was not available. Instructions eight and nine, taken together, express the court's erroneous view that an honest and reasonable belief in the availability of that defense could excuse the appellants' violations. Instruction seven, on the other hand, indicates that appellants need not have intended that their conduct be illegal to be convicted even if he thinks his conduct is legal and that he cannot be convicted. The instructions seem to say both that a defendant can be convicted if he reasonably and honestly believes his conduct to be legal.
As the superior court pointed out, instruction eight described a defense that was unavailable to appellants in this case. That instruction could have only operated in appellants' favor, however, and we agree with the superior court's conclusion that "it is clear that the jury rejected the erroneous ... instruction." We also agree with the superior court's further conclusion that "the jury was not substantially swayed or affected by the error"; as such, it did not affect appellants' substantial rights and was therefore harmless under Love v. State, 457 P.2d 622, 631 (Alaska 1969).
Having discerned only the single harmless error discussed above, we perceive no merit in appellants' final claim — that the cumulative effect of the errors alleged to have been committed by the trial court deprived them of the "level of procedural fairness" required by the due process clauses of the United States and Alaska Constitutions. The convictions of appellants are AFFIRMED.
DIMOND, Senior Justice, concurs.
COMPTON, J., not participating.
DIMOND, Senior Justice, concurring.
I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.
The defense of necessity is designed to justify otherwise illegal conduct taken to [1084] prevent a specific harm from occurring. See, e.g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App. 1979); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn.Mun. 1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F. Supp. 336, 338-40 (D.Md. 1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:
No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.
283 F. Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir.1969):
From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.
Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.
Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).
I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has [1085] attained viability. It stated its explanation for this conclusion as follows:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1973) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes `a definition for a syllogism,' and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).
In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.
The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:
[T]he fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is — either outside the womb or still inside the womb.
C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.
[V]iability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.
Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.
Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.
Id. at 212.
I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with [1086] their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.[1]
[*] Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.
[1] Anchorage Municipal Code 8.30.010 reads, in pertinent part, as follows:
Trespass — Posting of property — Penalty
A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property.
B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section.
The aforesaid enumerated acts shall include:... .
2. the pursuit of any course of conduct or action upon the land of another in violation of a notice posted or exhibited at the main entrance to the premises or at any point of approach or entry, or in violation of any notice, warning or protest given orally or in writing by any owner or occupant thereof;
3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; ... .
[2] Appellants rely on Anchorage Municipal Code 8.30.010(B)(3), under which "a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof" constitutes a trespass.
[3] Alaska Dist.Ct.R.Crim.P. 1(a) reads, in part:
"A criminal action is commenced by the filing of a complaint."
[4] Alaska R.Crim.P. 7(c) reads, in part:
No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.
[5] See note 2 supra.
[6] Appellants define "occupant" to mean "one having possession" of the premises.
[7] J. Beck, Success in Trespass Gives Right-to-Lifers a Legal Lift, The Washington Star, October 19, 1977, at B1; M. Weil, Va. Abortions Law Held Unconstitutional, The Washington Post, February 11, 1978, at B3.
[8] County of Fairfax v. Gaetano, No. 13974 (Gen.Dist.Ct. of Fairfax County, Va., October 17, 1977); County of Fairfax v. Smith, No. ___ (Gen.Dist.Ct. of Fairfax County, Va., February 11, 1978).
[9] Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). See E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); W. LaFave & A. Scott, Criminal Law § 50 at 385-88 (1972). See also AS 11.81.320, directing the courts to apply the common law to the defense of necessity in most situations.
[10] LaFave and Scott note that this requirement may be relaxed in some contexts:
With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity).
... .
The typical duress case, however, has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order — e.g., see People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597 (1969), where defendant alleged he escaped from prison to avoid being killed by other inmates — the situation ought to be dealt with as a form of necessity rather than duress. In Richards, the court held the defense of duress was not available because `there was no offer to show that anyone demanded or requested that the defendant escape.'
W. LaFave & A. Scott, Criminal Law § 50 at 381-82 (1972) (footnote integrated into text). Some jurisdictions have agreed. See, e.g., People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (Cal. App. 1974) (under certain circumstances, necessity defense based upon threats of forcible sodomy may be raised in prosecution of prisoner on escape charges). The United States Supreme Court has defined very narrowly the situations in which a necessity defense to an escape charge may be available, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), holding that defendants must produce evidence of a bona fide attempt to surrender or return to custody as soon as the claimed necessity had lost its coercive force. We do not disagree with this expansion of the necessity defense to encompass human threats, but we are in agreement with those commentators who have noted that it should be limited to cases in which the threatened man-made harm is illegal:
The courts which have held the [necessity] defense inapplicable based their decisions primarily on the holding that first trimester abortions are legal. These opinions imply that whenever the harm emanates from a human source, this harm must be unlawful before the necessity defense can be used. This assumption, although not explicit in the cases or statutes, is solidly based in the common law as developed in both older and more recent cases. The early cases did not face the question as they dealt only with harms caused by natural forces, which can never be illegal. When faced with cases involving human-created harms, the courts modified the necessity doctrine and required that the threatened harm be illegal. This requirement continued in the prison escape cases. Although these decisions held necessity to be a proper plea when the threatened harm emanated from a human source, the facts of the cases involved human-created threats of unlawful acts, usually rape, homicide or felonious assault. Recent codifications and judicial opinions discuss the necessity defense in broad terms, neither expressly designating the source of the threatened harm nor its character. They are meant to codify the common law and can fairly be assumed to embody common-law principles. Several states' inclusions of self-defense and defense of another, which both justify otherwise unlawful conduct in the face of another person's unlawful act, support this thesis.
Note, Necessity as a Defense to a Change of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 513 (1979).
[11] Prof. Perkins explains that the "defense of others" doctrine was originally limited to others within the defendant's family or household, or some other group as to whom he had a legal or socially recognized duty of protection. The common-law privilege of using force for crime prevention was not limited in terms of those to whose aid the defendant could come, but was limited to crimes involving felonious attacks. Both have been expanded beyond these original limitations. "The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack." R. Perkins, Criminal Law 1019 (2d ed. 1969).
The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to "what he reasonably believes to be the use of unlawful force." AS 11.81.330(a); 11.81.340.
Thus, even assuming that a fetus should be regarded as an "other" in the context of a "defense of others" claim, the requirement that the threatened harm be illegal precludes such a claim here.
[12] Appellants do argue, however, that abortion is violative of international law. Similar arguments were raised and rejected in Marley. State v. Marley, 509 P.2d 1095, 1109-12 (Hawaii 1973).
[13] See note 8 supra.
[14] United States of America v. Greifelt, 4 Trials of War Criminals Before the Nuernberg Military Tribunal 608 (1949).
[15] However, we are not certain that the distinction is a plausible one. By carving out a necessity defense in abortion protest cases, i.e., judicially sanctioning private attempts to deprive pregnant women of rights the Supreme Court has declared them to have as against the state, this court itself might trigger the "state action" requirement of the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the legislature cannot delegate a "veto power" to the patient's parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a "veto power" to strangers, to be exercised in such an obtrusive manner.
We note that, in Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980), the court upheld a district court injunction and contempt order under 42 U.S.C. § 1985 against Mr. Gaetano and other demonstrators who, under the protection of the Fairfax County rulings noted above in n. 8, were systematically blocking access to the abortion clinic without being prosecuted. The complaint charged these demonstrators, with the complicity of the state court judges and prosecutors (who had temporarily suspended prosecutions in such trespass cases), with denying the abortion clinic and its patients the right to perform and obtain abortions in conformity with the Federal Constitution.
[16] The new criminal code contains a similar limitation at AS 11.81.320:
Justification: Necessity. Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when
(1) neither this title nor any other statute defining the offense provides exemption or defenses dealing with the justification of necessity in the specific situation involved; and
(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.
[17] AS 18.16.010 reads:
Abortions. (a) No abortion may be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Welfare or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. `Abortion' in this section means an operation or procedure to terminate the pregnancy of a nonviable fetus. Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.
(b) A person who knowingly violates a provision of (a) of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both.
We express no opinion as to the constitutionality of these provisions. We only cite the statute to note that the legislature has resolved the "choice of evils" questions appellants would have us decide.
[18] A recent law review article cites several policy considerations that lead to the same conclusion:
When a court justifies an illegal act, it creates a new rule of law to govern the same dilemma in the future. In the clinic trespass context, this would mean that all sincere anti-abortion protesters who invaded clinics to prevent abortions would not be subject to criminal liability. There is even authority that clinic personnel or other persons could not use force to stop these justified actions. This could effectively close all abortion clinics so that women would have no means by which to effectuate their decision. This would occur even though clinic action causes no legal harm. There has never been an application of the necessity defense having such profound effects. The prison escape cases do not provide an adequate parallel since courts treat each case as unique, requiring a specific threat to the particular defendant. In the clinic cases a mere showing that abortions were being performed would be enough to acquit the anti-abortion intruder. Necessity was never meant to be applied in such an abusive manner.
The doctrine was developed to deal with unusual circumstances — ones never contemplated by the criminal or civil law. Abortions are not rare occurrences. They are sanctioned by the Constitution and by a substantial portion of society. This is not an area in which the law is silent. When a court applies necessity, its balancing of the harms reflects society's consensus. Necessity is meant to justify action that society would clearly want to exonerate. Trespasses that interfere with constitutional rights do not fall within this purpose.
Allowing necessity to justify these protests permits defendants to choose which laws they will obey based on their own moral code. This would justify acts of civil disobedience. The fact that these protests are the only means available at the moment to stop the abortion does not change the major purpose of the action which protesters and their lawyers admit is to change the law with regard to abortion. This simply cannot be accepted as a proper use of the necessity defense. [footnotes omitted]
Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 514-15 (1979).
[19] See note 8 supra.
[1] I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.
The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e.g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.
7.2.6.4.1.2.3. William Fisher, Promises to Keep (2004), Chapter 6
7.2.6.4.1.2.4 People v. Unger 7.2.6.4.1.2.4 People v. Unger
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
FRANCIS UNGER, Appellee.
Supreme Court of Illinois.
[334] [335] William J. Scott, Attorney General, of Springfield, and Martin Rudman, State's Attorney, of Joliet (James B. Zagel, Jayne A. Carr, and Steven J. Rosenberg, Assistant Attorneys General, of counsel), for the People.
Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
Affirmed and remanded.
MR. JUSTICE RYAN delivered the opinion of the court:
Defendant, Francis Unger, was charged with the crime [336] of escape (Ill. Rev. Stat. 1971, ch. 108, par. 121), and was convicted following a jury trial before the circuit court of Will County. Defendant was sentenced to a term of three to nine years to be served consecutively to the remainder of the sentence for which he was imprisoned at the time of the escape. The conviction was reversed upon appeal and the cause was remanded for a new trial over the dissent of one justice. (33 Ill. App.3d 770.) We granted leave to appeal and now affirm the judgment of the appellate court.
At the time of the present offense, the defendant was confined at the Illinois State Penitentiary in Joliet, Illinois. Defendant was serving a one- to three-year term as a consequence of a conviction for auto theft in Ogle County. Defendant began serving this sentence in December of 1971. On February 23, 1972, the defendant was transferred to the prison's minimum security, honor farm. It is undisputed that on March 7, 1972, the defendant walked off the honor farm. Defendant was apprehended two days later in a motel room in St. Charles, Illinois.
At trial, defendant testified that prior to his transfer to the honor farm he had been threatened by a fellow inmate. This inmate allegedly brandished a six-inch knife in an attempt to force defendant to engage in homosexual activities. Defendant was 22 years old and weighed approximately 155 pounds. He testified that he did not report the incident to the proper authorities due to fear of retaliation. Defendant also testified that he is not a particularly good fighter.
Defendant stated that after his transfer to the honor farm he was assaulted and sexually molested by three inmates, and he named the assailants at trial. The attack allegedly occurred on March 2, 1972, and from that date until his escape defendant received additional threats from inmates he did not know. On March 7, 1972, the date of the escape, defendant testified that he received a call on an institution telephone. Defendant testified that the caller, [337] whose voice he did not recognize, threatened him with death because the caller had heard that defendant had reported the assault to prison authorities. Defendant said that he left the honor farm to save his life and that he planned to return once he found someone who could help him. None of these incidents were reported to the prison officials. As mentioned, defendant was apprehended two days later still dressed in his prison clothes.
The State introduced prior statements made by the defendant which cast some doubt on his true reasons for leaving the prison farm. In these statements, defendant indicated that he was motivated by a desire for publicity concerning the sentence on his original conviction, which he deemed to be unfair, as well as fear of physical abuse and death.
Defendant's first trial for escape resulted in a hung jury. The jury in the second trial returned its verdict after a five-hour deliberation. The following instruction (People's Instruction No. 9) was given by the trial court over defendant's objection.
"The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons."
The appellate court majority found that the giving of People's Instruction No. 9 was reversible error. (33 Ill. App.3d 770, 777.) Two instructions which were tendered by defendant but refused by the trial court are also germane to this appeal. Defendant's instructions Nos. 1 and 3 were predicated upon the affirmative defenses of compulsion and necessity. (Ill. Rev. Stat. 1971, ch. 38, pars. 7-11 (compulsion), 7-13 (necessity).) Defendant's instructions Nos. 1 and 3 read as follows:
"It is a defense to the charge made against the Defendant that he left the Honor Farm of the Illinois State Penitentiary by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than [338] the injury which might reasonably result from his own conduct."
"It is a defense to the charge made against the Defendant that he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged."
The principal issue in the present appeal is whether it was error for the court to instruct the jury that it must disregard the reasons given for defendant's escape and to conversely refuse to instruct the jury on the statutory defenses of compulsion and necessity. In the appellate court the defendant successfully asserted that the giving of People's Instruction No. 9 was tantamount to directing a verdict against the defendant. The State contends that, under the facts and circumstances of this case, the defenses of compulsion and necessity are, as a matter of law, unavailable to defendant.
Both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 370; People v. Kalpak (1957), 10 Ill.2d 411, 425; People v. Khamis (1951), 411 Ill. 46, 53.) Section 3-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3-2) provides that a defendant, to raise the issue of an affirmative defense, must present "some evidence" thereon. Therefore, if the defenses asserted were available to the defendant, he was entitled to an instruction on these theories if "some evidence" was introduced to support them. Conversely, it was error to give People's Instruction No. 9, which required the jury to disregard the reasons for the escape.
Proper resolution of this appeal requires some preliminary remarks concerning the law of compulsion and necessity as applied to prison escape situations. Traditionally, the courts have been reluctant to permit the defenses [339] of compulsion and necessity to be relied upon by escapees. (See 1975 U. Ill. L.F. 271, 274-75 & n. 23, and the cases cited therein.) This reluctance appears to have been primarily grounded upon considerations of public policy. Several recent decisions, however, have recognized the applicability of the compulsion and necessity defenses to prison escapes. In People v. Harmon (1974), 53 Mich. App. 482, 220 N.W.2d 212, the defense of duress was held to apply in a case where the defendant alleged that he escaped in order to avoid repeated homosexual attacks from fellow inmates. In People v. Lovercamp (1974), 43 Cal. App.3d 823, 118 Cal. Rptr. 110, a limited defense of necessity was held to be available to two defendants whose escapes were allegedly motivated by fear of homosexual attacks.
As illustrated by Harmon and Lovercamp, different courts have reached similar results in escape cases involving sexual abuse, though the question was analyzed under different defense theories. A certain degree of confusion has resulted from the recurring practice on the part of the courts to use the terms "compulsion" (duress) and "necessity" interchangeably, though the defenses are theoretically distinct. (Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 115 (1975); Note, Duress — Defense to Escape, 3 Am. J. Crim. L. 331, 332 (1975).) It has been suggested that the major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings, whereas in situations of necessity the pressure on the defendant arises from the forces of nature. (LaFave and Scott, Handbook on Criminal Law 381 (1972).) Also, as noted in the dissenting opinion in the appellate court, the defense of compulsion generally requires an impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually charged. [340] (33 Ill. App.3d 770, 777 (Stengel, J., dissenting); People v. Terry (1975), 30 Ill. App.3d 713; People v. Davis (1974), 16 Ill. App.3d 846.) Additionally, where the defense of compulsion is successfully asserted the coercing party is guilty of the crime. LaFave and Scott, Handbook on Criminal Law 380 (1972).
It is readily discernible that prison escapes induced by fear of homosexual assaults and accompanying physical reprisals do not conveniently fit within the traditional ambits of either the compulsion or the necessity defense. However, it has been suggested that such cases could best be analyzed in terms of necessity. (LaFave and Scott, Handbook on Criminal Law 381-82 n. 2 (1972).) One commentator has stated that the relevant consideration should be whether the defendant chose the lesser of two evils, in which case the defense of necessity would apply, or whether he was unable to exercise a free choice at all, in which event compulsion would be the appropriate defense. Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 133 (1975).
In our view, the defense of necessity, as defined by our statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13), is the appropriate defense in the present case. In a very real sense, the defendant here was not deprived of his free will by the threat of imminent physical harm which, according to the Committee Comments, appears to be the intended interpretation of the defense of compulsion as set out in section 7-11 of the Criminal Code. (Ill. Ann. Stat., ch. 38, par. 7-11, Committee Comments, at 423-33 (Smith-Hurd 1972).) Rather, if defendant's testimony is believed, he was forced to choose between two admitted evils by the situation which arose from actual and threatened homosexual assaults and fears of reprisal. Though the defense of compulsion would be applicable in the unlikely event that a prisoner was coerced by the threat of imminent physical harm to perform the specific act of escape, no such [341] situation is involved in the present appeal. We, therefore, turn to a consideration of whether the evidence presented by the defendant justified the giving of an instruction on the defense of necessity.
The defendant's testimony was clearly sufficient to raise the affirmative defense of necessity. That defense is defined by statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13):
"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."
Defendant testified that he was subjected to threats of forced homosexual activity and that, on one occasion, the threatened abuse was carried out. He also testified that he was physically incapable of defending himself and that he feared greater harm would result from a report to the authorities. Defendant further testified that just prior to his escape he was told that he was going to be killed, and that he therefore fled the honor farm in order to save his life. Though the State's evidence cast a doubt upon the defendant's motives for escape and upon the reasonableness of defendant's assertion that such conduct was necessary, the defendant was entitled to have the jury consider the defense on the basis of his testimony. It is clear that defendant introduced some evidence to support the defense of necessity. As previously mentioned, that is sufficient to justify the giving of an appropriate instruction.
The State, however, would have us apply a more stringent test to prison escape situations. The State refers to the Lovercamp decision, where only a limited necessity defense was recognized. In Lovercamp, it was held that the defense of necessity need be submitted to the jury only where five conditions had been met. (43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115.) Those conditions are:
[342] "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 823, 831-32, 118 Cal. Rptr. 110, 115.
The State correctly points out that the defendant never informed the authorities of his situation and failed to report immediately after securing a position of safety. Therefore, it is contended that, under the authority of Lovercamp, defendant is not entitled to a necessity instruction. We agree with the State and with the court in Lovercamp that the above conditions are relevant factors to be used in assessing claims of necessity. We cannot say, however, that the existence of each condition is, as a matter of law, necessary to establish a meritorious necessity defense.
The preconditions set forth in Lovercamp are, in our view, matters which go to the weight and credibility of the defendant's testimony. The rule is well settled that a court will not weigh the evidence where the question is whether an instruction is justified. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) The absence of one or more of the elements listed in Lovercamp would not necessarily mandate a finding that the defendant could not assert the defense of necessity.
By way of example, in the present case defendant did [343] not report to the authorities immediately after securing his safety. In fact, defendant never voluntarily turned himself in to the proper officials. However, defendant testified that he intended to return to the prison upon obtaining legal advice from an attorney and claimed that he was attempting to get money from friends to pay for such counsel. Regardless of our opinion as to the believability of defendant's tale, this testimony, if accepted by the jury, would have negated any negative inference which would arise from defendant's failure to report to proper authorities after the escape. The absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not, therefore, automatically preclude an instruction on the defense. We therefore reject the contention that the availability of the necessity defense be expressly conditioned upon the elements set forth in Lovercamp.
In conclusion, we hold that under the facts and circumstances of the present case the defendant was entitled to submit his defense of necessity to the jury. It was, therefore, reversible error to give People's Instruction No. 9 to the jury and to refuse to give an appropriate instruction defining the defense of necessity, such as the instruction tendered by the defendant. In light of our disposition of this appeal, we need not consider contentions raised by defendant as to the propriety of his sentence.
Therefore, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Will County for further proceedings in accordance with the views expressed herein.
Affirmed and remanded.
MR. JUSTICE UNDERWOOD, dissenting:
My disagreement with my colleagues stems from an uneasy feeling that their unconditional recognition of [344] necessity as a defense to the charge of escape carries with it the seeds of future troubles. Unless narrowly circumscribed, the availability of that defense could encourage potential escapees, disrupt prison discipline, and could even result in injury to prison guards, police or private citizens. (People v. Whipple (1929), 100 Cal. App. 261, 279 P. 1008.) For these reasons courts have been quite reluctant to honor the defenses of duress, necessity or compulsion in prison escapes, and, until recent years, they were uniformly held insufficient to justify escapes. As Mr. Justice Stengel noted in his dissenting opinion in the appellate court: "`Until [People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (1974)], no reviewing court had ever upheld a defense of necessity in ordinary adverse situations such as threats from fellow inmates.' 1975 U. Ill. L.F. 271, 275." 33 Ill. App.3d 770, 777.
Lovercamp, however, imposed well-defined conditions which must be met before a defendant is entitled to have the defense of necessity submitted to the jury:
"* * * (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115.
I am not totally insensitive to the sometimes brutal and unwholesome problems faced by prison inmates, and [345] the frequency of sexually motivated assaults. Prisoner complaints to unconcerned or understaffed prison administrations may produce little real help to a prisoner or may actually increase the hazard from fellow inmates of whose conduct complaint has been made. Consequently, and until adequate prison personnel and facilities are realities, I agree that a necessity defense should be recognized. The interests of society are better served, however, if the use of that defense in prison-escape cases is confined within well-defined boundaries such as those in Lovercamp. In that form it will be available, but with limitations precluding its wholesale use.
It is undisputed that defendant here did not meet those conditions. He did not complain to the authorities on this occasion even though, following an earlier threat and demand by a fellow inmate that defendant submit to homosexual activity, defendant had requested and been granted a transfer to the minimum security honor farm. Nor did he immediately report to the authorities when he had reached a place of safety. Rather, he stole a truck some nine hours after his escape, drove to Chicago, and later drove to St. Charles, using the telephone to call friends in Canada. This conduct, coupled with his admitted intent to leave in order to gain publicity for what he considered an unfair sentence, severely strain the credibility of his testimony regarding his intention to return to the prison.
Since defendant's conduct does not comply with conditions such as those in Lovercamp which, in my judgment, should be required before a necessity defense may be considered by a jury, I believe the trial court did not err in its instructions.
I would accordingly reverse the appellate court and affirm the judgment of the trial court.
7.2.6.4.1.2.5 PCAT v. State of Israel 7.2.6.4.1.2.5 PCAT v. State of Israel
HCJ 5100/94
HCJ 4054/95
HCJ 6536/95
HCJ 5188/96
HCJ 7563/97
HCJ 7628/97
HCJ 1043/99
HCJ 5100/94
Public Committee Against Torture in Israel
v.
1. The State of Israel
2. The General Security Service
HCJ 4054/95
The Association for Civil Rights in Israel
v.
1. The Prime Minister of Israel
2. The Minister of Justice
3. The Minister of Police
4. The Minister of the Environment
5. The Head of the General Security Service
HCJ 6536/95
Hat’m Abu Zayda
v.
The General Security Service
HCJ 5188/96
1. Wa’al Al Kaaqua
2. Ibrahim Abd’allah Ganimat
3. Center for the Defense of the Individual
v.
1. The General Security Service
2. The Prison Commander—Jerusalem
HCJ 7563/97
1. Abd Al Rahman Ismail Ganimat
2. Public Committee Against Torture in Israel
v.
1. The Minister of Defense
2. The General Security Service
HCJ 7628/97
1. Fouad Awad Quran
2. Public Committee against Torture in Israel
v.
1. The Minister of Defense
2. The General Security Service
HCJ 1043/99
Issa Ali Batat
v.
The General Security Service
The Supreme Court Sitting as the High Court of Justice
[May 5, 1998, January 13 1999, May 26, 1999]
Before President A. Barak, Deputy President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: In its investigations, the General Security Service makes use of methods that include subjecting suspects to moderate physical pressure. The means are employed under the authority of directives. These directives allow for the use of moderate physical pressure if such pressure is immediately necessary to save human life. Petitioners challenge the legality of these methods.
Held: The Court held that the GSS did not have the authority employ certain methods challenged by the petitioners. The Court also held that the “necessity defense,” found in the Israeli Penal Law, could serve to ex ante allow GSS investigators to employ such interrogation practices. The Court's decision did not negate the possibility that the “necessity defense” would be available post factum to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought were brought against them.
Petition denied.
Counsel for the petitioner in HCJ 5100/94—Avigdor Feldman; Ronit Robinson
Counsel for the petitioner in HCJ 4054/95—Dan Yakir
Counsel for the petitioners in HCJ 6536/95 HCJ 5188/96 and HCJ 1043/99—Andre Rosenthal
Counsel for petitioner Number Three in HCJ 5188/96—Eliyahu Abram
Counsel for petitioners in HCJ 7563/97 and HCJ 7628/97—Leah Tzemel; Allegra Pachko
Counsel for respondents—Shai Nitzan; Yehuda Scheffer
JUDGMENT
President A. Barak
The General Security Service [hereinafter the “GSS”] investigates individuals suspected of committing crimes against Israel’s security. Authorization for these interrogations is granted by directives that regulate interrogation methods. These directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the “Shabach” position. These methods are permitted since they are seen as immediately necessary to save human lives. Are these interrogation practices legal? These are the issues before us.
Background
1. Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel’s annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—in areas of public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. (For an in depth description of this phenomenon see the Report of the Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities headed by Justice (ret.) M. Landau, 1987 [hereinafter the Report of the Commission of Inquiry]. See1 The Landau Book 269, 276 (1995).
The facts before this Court reveal that 121 people died in terrorist attacks between January 1, 1996 and May 14, 1998. Seven hundred and seven people were injured. A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel’s cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders, and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities. The GSS is the main body responsible for fighting terrorism.
In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorists in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means.
The Petitions
2. These petitions are concerned with the interrogation methods of the GSS. They outline several of these methods in detail. Two of the petitions are of a public nature. One of these (HCJ 5100/94) is brought by the Public Committee against Torture in Israel. It submits that GSS investigators are not authorized to investigate those suspected of hostile terrorist activities. Moreover, they claim that the GSS is not entitled to employ those methods approved by the Report of the Commission of Inquiry, such as “the application of non-violent psychological pressure” and of “a moderate degree of physical pressure.” The second petition (4054/95) is brought by the Association for Civil Rights in Israel. It argues that the GSS should be ordered to cease shaking suspects during interrogations.
The five remaining petitions involve individual petitioners. They each petitioned the Court to hold that the methods used against them by the GSS are illegal.
3. Petitioners in HCJ 5188/96 (Wa’al Al Kaaqua and Ibrahim Abd’alla Ganimat) were arrested at the beginning of June 1996. They were interrogated by GSS investigators. They appealed to this Court on July 21, 1996 through the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. They petitioned the Court for an order nisiprohibiting the use of physical force against them during their interrogation. The Court granted the order. The two petitioners were released from custody prior to the hearing. As per their request, we have elected to continue hearing their case, in light of the importance of the issues they raise.
4. Petitioner in HCJ 6536/96 (Hat’m Abu Zayda), was arrested on September 21, 1995 and interrogated by GSS investigators. He turned to this Court on October 22, 1995 via the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. He complained of the interrogation methods allegedly used against him, including sleep deprivation, shaking, beatings, and use of the “Shabach” position. We immediately ordered the petition be heard. The Court was then informed that petitioner’s interrogation had ended. Petitioner was subsequently convicted of activities in the military branch of the Hamas terrorist organization. He was sentenced to 74 months in prison. The court held that petitioner both recruited for Hamas and also helped construct its terrorist infrastructure. The purpose of this infrastructure was to carry out the kidnapping of Israeli soldiers as well as execute other terrorist attacks against Israeli security forces. During oral arguments, it was asserted that the information provided by petitioner during his interrogation led to the thwarting of a plan to carry out serious terrorist attacks, including the kidnapping of soldiers.
5. The petitioner in HCJ 7563/97 (Abd al Rahman Ismail Ganimat) was arrested on November 13, 1997 and interrogated by the GSS. He appealed to this Court on December 24, 1997 via the Public Committee against Torture inIsrael. He claimed to have been tortured by his investigators, through use of the “Shabach” position,” excessively tight handcuffs, and sleep deprivation. His interrogation revealed that he was involved in numerous terrorist activities, which resulted in the deaths of many Israeli citizens. He was instrumental in the kidnapping and murder of Sharon Edry, an IDF soldier. Additionally, he was involved in the bombing of Cafe “Appropo” in Tel Aviv, in which three women were murdered and thirty people were injured. He was charged with all these crimes and convicted at trial. He was sentenced to five consecutive life sentences plus an additional twenty years in prison.
Subsequent to the dismantling and interrogation of the terrorist cell to which petitioner belonged, a powerful explosive device, identical to the one detonated at Cafe “Appropo” in Tel Aviv, was found in Tzurif, petitioner’s village. Uncovering this explosive device thwarted an attack like the one at Cafe “Appropo.” According to GSS investigators, the petitioner possessed additional crucial information which he revealed only as a result of the interrogation. Revealing this information immediately was essential to safeguarding national and regional security and preventing danger to human life.
6. The petitioner in HCJ 7628/97 (Fouad Awad Quran) was arrested on December 10, 1997 and interrogated. He turned to this Court on December 25, 1997 via the Public Committee against Torture in Israel. Petitioners claimed that he was being deprived of sleep and was being seated in the “Shabach” position. The Court issued an order nisi and held oral arguments immediately. During the hearing, the state informed the Court that “at this stage of the interrogation, the GSS is not employing the alleged methods.” For this reason, no interim order was granted.
7. The petitioner in HCJ1043/99 (Issa Ali Batat) was arrested February 2, 1999, and interrogated by GSS investigators. The petition, brought via the Public Committee against Torture in Israel, argues that physical force was used against petitioner during the course of the interrogation. The Court issued an order nisi. During oral arguments, it came to the Court’s attention that the petitioner’s interrogation had ended and that he was being detained pending trial. The indictment alleges his involvement in hostile activities, the purpose of which was to harm the security and public safety of the “area” (Judea, Samaria and the Gaza Strip).
Physical Means
8. The GSS did not describe the physical means employed by GSS investigators. The State Attorney was prepared to present this information in camera. Petitioners opposed this proposal. As such, the information before the Court was provided by the petitioners and was not examined in each individual petition. This having been said, the state did not deny the use of these interrogation methods, and even offered justifications for these methods. This provided the Court with a picture of the interrogation practices of the GSS.
The decision to utilize physical means in a particular instance is based on internal regulations, which requires obtaining permission from the higher ranks of the GSS. The regulations themselves were approved by a special Ministerial Committee on GSS interrogations. Among other guidelines, the committee set forth directives regarding the rank required of an officer who was to authorize such interrogation practices. These directives were not examined by this Court. Different interrogation methods are employed in each situation, depending what is necessary in that situation and the likelihood of obtaining authorization. The GSS does not resort to every interrogation method at its disposal in each case.
Shaking
9. A number of petitioners (HCJ 5100/94; HCJ 4054/95; HCJ 6536/95) claimed that they were subject to shaking. Among the investigation methods outlined in the GSS interrogation regulations, shaking is considered the harshest. The method is defined as the forceful and repeated shaking of the suspect’s upper torso, in a manner which causes the neck and head to swing rapidly. According to an expert opinion submitted in HCJ 5584/95 and HCJ 5100/95, the shaking method is likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches.
The state entered several opposing expert opinions into evidence. It admits the use of this method by the GSS. It contends, however, that shaking does not present an inherent danger to the life of the suspect, that the risk to life as a result of shaking is rare, that there is no evidence that shaking causes fatal damage, and that medical literature has not, to date, reported a case in which a person died as a direct result of having been shaken. In any event, they argue, doctors are present at all interrogation areas, and the possibility of medical injury is always investigated.
All agree that, in one particular case, (HCJ 4054/95) the suspect expired after being shaken. According to the state, that case was a rare exception. Death was caused by an extremely rare complication which resulted in pulmonary edema. In addition, the state argues that the shaking method is only resorted to in very specific cases, and only as a last resort. The directives define the appropriate circumstances for its use, and the rank responsible for authorizing its use. The investigators were instructed that, in every case where they consider the use of shaking, they must examine the severity of the danger that the interrogation is intending to prevent, consider the urgency of uncovering the information presumably possessed by the suspect in question, and seek an alternative means of preventing the danger. Finally, the directives state that, in cases where this method is to be used, the investigator must first provide an evaluation of the suspect’s health and ensure that no harm comes to him. According to the respondent, shaking is indispensable to fighting and winning the war on terrorism. It is not possible to prohibit its use without seriously harming the ability of the GSS to effectively thwart deadly terrorist attacks. Its use in the past has lead to the prevention of murderous attacks.
Waiting in the “Shabach” Position
10. This interrogation method arose in several petitions (HCJ 6536/95, HCJ 5188/96, HCJ 7628/97). As per petitioners’ submission, a suspect investigated under the “Shabach” position has his hands tied behind his back. He is seated on a small and low chair, whose seat is tilted forward, towards the ground. One hand is tied behind the suspect, and placed inside the gap between the chair’s seat and back support. His second hand is tied behind the chair, against its back support. The suspect’s head is covered by a sack that falls down to his shoulders. Loud music is played in the room. According to the briefs submitted, suspects are detained in this position for a long period of time, awaiting interrogation.
Petitioners claim that prolonged sitting in this position causes serious muscle pain in the arms, the neck and headaches. The state did not deny the use of this method. It submits that both crucial security considerations and the safety of the investigators require the tying of the suspect’s hands as he is being interrogated. The head covering is intended to prevent contact with other suspects. Loud music is played for the same reason.
The "Frog Crouch"
11. This interrogation method appeared in one of the petitions (HCJ 5188/96). According to the petition, the suspect was interrogated in a “frog crouch” position. This refers to consecutive, periodical crouches on the tips of one’s toes, each lasting for five minute intervals. The state did not deny the use of this method, and the Court issued an order nisiin the petition. Prior to hearing the petition, however, this interrogation practice ceased.
Excessively Tight Handcuffs
12. In a number of petitions (HCJ 5188/96; HCJ 7563/97), several petitioners complained of excessively tight hand or leg cuffs. They contended that this practice results in serious injuries to the suspect’s hands, arms and feet, due to the length of the interrogations. The petitioners contend that particularly small cuffs were used. The state, for its part, denies the use of unusually small cuffs, arguing that those used were of standard issue and were properly applied. Even so, the state is prepared to admit that prolonged hand or foot cuffing is likely to cause injuries to the suspect’s hands and feet. The state contends, however, that injuries of this nature are inherent to any lengthy interrogation.
Sleep Deprivation
13. In a number of petitions (HCJ 6536/96; HCJ 7563/97; HCJ 7628/97) petitioners complained of being deprived of sleep as a result of being tied in the “Shabach” position, while subject to the playing of loud music, or of being subjected to intense non-stop interrogations without sufficient rest breaks. They claim that the purpose of depriving them of sleep is to cause them to break from exhaustion. While the state agrees that suspects are at times deprived of regular sleep hours, it argues that this does not constitute an interrogation method aimed at causing exhaustion, but rather results from the long amount of time necessary for conducting the interrogation.
Petitioners’ Arguments
14. Before us are a number of petitions. Different petitioners raise different arguments. All the petitions raise two essential arguments. First, they submit that the GSS is never authorized to conduct interrogations. Second, they argue that the physical means employed by GSS investigators not only infringe the human dignity of the suspect undergoing interrogation, but also constitute criminal offences. These methods, argue the petitioners, are in violation of international law as they constitute “torture.” As such, GSS investigators are not authorized to conduct these interrogations. Furthermore, the “necessity defense” is not relevant to the circumstances in question. In any event, the doctrine of "necessity" at most constitutes an exceptional post factum defense, exclusively confined to criminal proceedings against investigators. It cannot, however, provide GSS investigators with the authorization to conduct interrogations. GSS investigators are not authorized to employ any physical means, absent unequivocal authorization from the legislature which conforms to the constitutional requirements of the Basic Law: Human Dignity and Liberty. There is no purpose in engaging in a bureaucratic set up of the regulations and authority, as suggested by the Report of the Commission of Inquiry, since doing so would merely regulate the torture of human beings.
We asked petitioners whether the “ticking bomb” rationale was sufficiently persuasive to justify the use of physical means. This rationale would apply in a situation where a bomb is known to have been placed in a public area and will cause human tragedy if its location is not revealed. This question elicited different responses from the petitioners. There are those convinced that physical means are not to be used under any circumstances; the prohibition on such methods, to their mind, is absolute, whatever the consequences may be. On the other hand, there are others who argue that, even if it is acceptable to employ physical means in the exceptional circumstances of the “ticking bomb,” these methods are used even in absence of “ticking bomb” conditions. The very fact that the use of such means is illegal in most cases warrants banning their use altogether, even if doing so would include those rare cases in which physical coercion may have been justified. Whatever their individual views, all petitioners unanimously highlight the distinction between thepost factum possibility of escaping criminal liability and the advance granting of permission to use physical means for interrogation purposes.
The State’s Arguments
15. According to the state, GSS investigators are authorized to interrogate those suspected of committing crimes against the security of Israel. This authority comes from the government’s general and residual powers, as per article 40 of the Basic Law: the Government. Similarly, the authority to investigate is bestowed upon every individual investigator under article 2(1) of the Criminal Procedure Statute [Testimony]. With respect to the physical means employed by the GSS, the state argues that these methods do not violate international law. Indeed, it is submitted that these methods cannot be described as “torture,” as “cruel and inhuman treatment,” or as “degrading treatment,” which are all strictly prohibited under international law. The state further contends that the practices of the GSS do not cause pain and suffering.
Moreover, the state argues that these means are legal under domestic Israeli law. This is due to the “necessity defense” of article 34(11) of the Penal Law-1977. In the specific cases where the “necessity defense” would apply, GSS investigators are entitled to use “moderate physical pressure” as a last resort in order to prevent real injury to human life and well-being. Such “moderate physical pressure” may include shaking. Resort to such means is legal, and does not constitute a criminal offence. In any case, if a specific method is not deemed to be a criminal offence, there is no reason not to employ it, even for interrogation purposes. According to the state, there is no reason to prohibit a particular act if, in specific circumstances, it does not constitute a crime. This is particularly true with respect to GSS investigators who, according to the state, are responsible for the protection of lives and public safety. In support of their position, the state notes that the use of physical means by GSS investigators is most unusual and is only employed as a last resort in very extreme cases. Moreover, even in such cases, these methods are subject to strict scrutiny and supervision, as per the conditions and restrictions in the Report of the Commission of Inquiry. This having been said, when such exceptional conditions are present, these interrogation methods are fundamental to saving human lives and safeguarding Israel’s security.
The Report of the Commission of Inquiry
16. The authority of the GSS to employ particular interrogation methods was examined by the Commission of Inquiry. The Commission, appointed by the government under the Commission of Inquiry Statute-1968, considered the legal status of the GSS. Following a prolonged deliberation, the Commission concluded that the GSS is authorized to investigate those suspected of hostile terrorist acts, even in absence of an express statute, in light of the powers granted to it by other legislation as well as by the government’s residual powers, outlined in the Basic Law: the Government.See The Basic Law: The Government, § 40. In addition, the power to investigate suspects, granted to investigators by the Minister of Justice, as per article 2(1) of the Statute of Criminal Procedure [Testimony], also endows the GSS with the authority to investigate. Another part of the Report of the Commission of Inquiry deals with “defenses available to the investigator.” With regard to this matter, the Commission concluded that, in cases where the saving of human lives requires obtaining certain information, the investigator is entitled to apply both psychological pressure and “a moderate degree of physical pressure.” As such, an investigator who, in the face of such danger, applies a degree of physical pressure, which does not constitute abuse or torture of the suspect, but is proportionate to the danger to human life can, in the face of criminal liability, avail himself of the “necessity defense.” The Commission was convinced that its conclusions were not in conflict with international law, but were rather consistent with both the rule of law and the need to effectively protect the security of Israel and its citizens.
The commission approved the use of “moderate degree of physical pressure.” Such "moderate physical pressure" could be applied under stringent conditions. Directives to this effect were set out in the second, secret part of the report, and subject to the supervision of bodies both internal and external to the GSS. The commission’s recommendations were approved by the government.
The Petitions
17. A number of petitions dealing with the application of physical force by the GSS for interrogation purposes have made their way to this Court over the years. See, e.g., HCJ 7964/95 Billbissi v. The GSS (unreported decision); HCJ 8049/96 Hamdan v. The GSS (unreported decision); HCJ 3123/94 Atun v. The Head of the GSS (unreported decision); HCJ 3029/95 Arquan v. The GSS (unreported decision); HCJ 5578/95 Hajazi v. The GSS (unreported decision). Immediate oral arguments were ordered in each of these cases. In most of the cases, the state declared that the GSS did not employ physical means. As a result, petitioners requested to withdraw their petitions. The Court accepted these motions and informed petitioners of their right to set forth a complaint if physical means were used against them SeeHCJ 3029/95. In only a minority of complaints did the state did not issue such a notice. In other instances, an interim order was issued. At times, we noted that we "did not receive any information regarding the interrogation methods which the respondent [generally the GSS] seeks to employ and we did not take any position with respect to these methods." See HCJ 8049/96 Hamdan v. The GSS (unreported decision). In HCJ 336/96; HCJ 7954/95 Billbissi v. The GSS (unreported decision), the Court noted that, “[T]he annulment of the interim order does not in any way constitute permission to employ methods that do not conform to the law and binding directives.”
As such, the Court has not decided whether the GSS is permitted to employ physical means for interrogation under the defense of “necessity.” Until now, it was not possible for the Court to hear the sort of arguments that would provide a complete normative picture, in all its complexity. At this time, in contrast, a number of petitions have properly laid out complete arguments. For this we thank them.
Some of the petitions are rather general or theoretical while others are quite specific. Even so, we have decided to deal with all of them, since we seek to clarify the state of the law in this most complicated question. To this end, we shall begin by addressing the first issue—are GSS investigators authorized to conduct interrogations? We shall then proceed to examine whether a general power to investigate could potentially sanction the use of physical means—including mental suffering—the likes of which the GSS employs. Finally, we shall examine circumstances where such methods are immediately necessary to rescue human lives and shall decide whether such circumstances justify granting GSS investigators the authority to employ physical interrogation methods.
The Authority to Interrogate
18. The term “interrogation” takes on various meanings in different contexts. For the purposes of these petitions, we refer to the asking of questions which seek to elicit a truthful answer, subject to the privilege against self-incrimination.See the Criminal Procedure Statute (Testimony), § 2. Generally, the investigation of a suspect is conducted at the suspect’s place of detention. Any interrogation inevitably infringes the suspect’s freedom—including his human dignity and privacy—even if physical means are not used. In a country adhering to the rule of law, therefore, interrogations are not permitted in absence of clear statutory authorization, whether such authorization is through primary or secondary legislation. This essential principle is expressed in the Criminal Procedure Statute (Powers of Enforcement, Detention)-1996, §1(a):
Detentions and arrests shall be conducted only by law or by virtue of express statutory authorization.
Hence, the statute and regulations must adhere to the requirements of the Basic Law: Human Dignity and Liberty. The same principle applies to interrogations. Thus, an administrative body, seeking to interrogate an individual—an interrogation being defined as an exercise seeking to elicit truthful answers, as opposed to the mere asking of questions as in the context of an ordinary conversation—must point to an explicit statutory provision. This is required by the rule of law, both formally and substantively. Moreover, this is required by the principle of administrative legality. “If an authority cannot point to a statute from which it derives its authority to engage in certain acts, that act is ultra vires and illegal.” See I. Zamir, The Administrative Authority (1996) at 50. See also 1 B. Bracha, Administrative Law 25 (1987).
19. Is there a statute that authorizes GSS investigators to carry out interrogations? There is no specific provision that deals with the investigatory authority of GSS agents. “The status of the Service, its function and powers, are not outlined in any statute addressing this matter.” See the Report of the Commission of Inquiry, at 302. This having been said, the GSS constitutes an integral part of the executive branch. The fact that the GSS forms part of the executive branch is not, in itself, sufficient to invest it with the authority to interrogate. It is true that, under the Basic Law: The Government, § 40, the government does possess residual or prerogative powers:
The Government is authorized to perform, in the name of the state, all actions which are not in the jurisdiction of another authority. In performing such actions, the Government is subject to all applicable laws.
We cannot, however, interpret this provision as granting the authority to investigate. As noted, the power to investigate infringes a person’s individual liberty. The residual powers of the government authorize it to act whenever there is an “administrative vacuum.” See HCJ 2918/93 The City of Kiryat Gatt v. The State of Israel. There is no so-called “administrative vacuum” this case, as the field is entirely occupied by the principle of individual freedom. Infringing this principle requires specific directives, as President Shamgar insisted in HCJ 5128/94 Federman v. The Minister of Police:
There are means which do not fall within the scope of government powers. Employing them, absent statutory authorization, runs contrary to our most basic normative understanding. Thus, basic rights forms part of our positive law, whether they have been spelled out in a Basic Law or whether this has yet to be done. Thus, for example, the government is not endowed with the capacity to shut down a newspaper on the basis of an administrative decision, absent explicit statutory authorization, irrespective of whether a Basic Law expressly protects freedom of expression. An act of this sort would undoubtedly run contrary to our basic understanding regarding human liberty and the democratic nature of our regime, which provides that liberty may only be infringed upon by virtue of explicit statutory authorization.... Freedom of expression, a basic right, forms an integral part of our positive law. It binds the executive and does not allow it to stray from the prohibition respecting guaranteed human liberty, absent statutory authorization.
In a similar vein, Professor Zamir has noted:
In areas where the government may act under section 40 of the Basic Law: The Government, its actions must conform to the law. Clearly, this precludes the government from acting contrary to statutes. Moreover, it prevents the government from infringing basic rights. This, of course, is true regarding the rights explicitly protected by the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This is also the case for human rights not specifically enumerated in those Basic Laws. For instance, section 40 cannot authorize the government to limit the freedom of expression…. Section 40 only grants general executive powers that cannot serve to directly infringe human rights, unless there is explicit or implicit statutory authorization for doing so. This same conclusion can also be drawn from the fact that a grant of administrative authority cannot be interpreted as granting the power to infringe human rights, unless such powers are explicitly granted by statute.
See 1. I. Zamir, The Administrative Authority 337 (1996).
The same is true in this case. There are to be no infringements on an individual's liberty against interrogation absent statutory provisions which successfully pass constitutional muster. The government’s general administrative powers do not fulfill these requirements. Indeed, when the legislature sought to endow the GSS with the power to infringe individual liberties, it anchored these powers in specific legislation. Thus, for instance, statutes provide that the head of a security service, under special circumstances, is authorized to allow the secret monitoring of telephone conversations.See the Secret Interception of Communication Statute-1979, § 5; Compare the Protection of Privacy Statute-1981, § 19(3)(4). Is there a special statutory instruction endowing GSS investigators with interrogating powers?
20. A specific statutory provision authorizing GSS investigators to conduct interrogations does not exist. While it is true that directives, some with ministerial approval, were promulgated in the wake of the Report of the Commission of Inquiry, these do not satisfy the requirement that a grant of authority flow directly from statute or from explicit statutory authorization. These directives merely constitute internal regulations. Addressing such directives, in HCJ 2581/91Salhat v. The State of Israel , Justice Levin opined:
Clearly, these directives are not to be understood as being tantamount to a “statute,” as defined in article 8 of the Basic Law: Human Dignity. They are to be struck down if they are found not to conform to it
From where, then, do the GSS investigators derive their interrogation powers? The answer is found in article 2(1) of the Criminal Procedure Statute [Testimony] which provides:
A police officer, of or above the rank of inspector, or any other officer or class of officers generally or specially authorized in writing by the Chief Secretary to the Government, to hold enquiries into the commission of offences, may examine orally any person supposed to be acquainted with the facts and circumstances of any offence in respect whereof such officer or police or other authorized officer as aforesaid is enquiring, and may reduce into writing any statement by a person so examined.
It is by virtue of the above provision that the Minister of Justice authorized GSS investigators to conduct interrogations regarding the commission of hostile terrorist activities. It has been brought to the Court’s attention that, in the authorizing decree, the Minister of Justice took care to list the names of those GSS investigators who were authorized to conduct secret interrogations with respect to crimes committed under the Penal Law-1977, the Prevention of Terrorism Statute-1948, the (Emergency) Defense Regulations-1945, the Prevention of Infiltration Statute (Crimes and Judging)-1954, and crimes which are to be investigated as per the Emergency Defense Regulations (Judea, Samaria and the Gaza Strip-Judging in Crimes and Judicial Assistance-1967). It appears to us—and we have heard no arguments to the contrary—that the question of the authority of the GSS to conduct interrogations can be resolved. By virtue of this authorization, GSS investigators are, in the eyes of the law, like police officers. We shall not now, however, express our opinion as to whether this arrangement, as opposed to the explicit statutory regulation of GSS officers, is an ideal arrangement.
The Means Employed for Interrogation Purposes
21. As we have seen, GSS investigators are endowed with the authority to conduct interrogations. What is the scope of these powers and do they include the use of physical means in the course of the interrogation? Can use be made of the physical means presently employed by GSS investigators—such as shaking, the “Shabach” position, and sleep deprivation—by virtue of the investigating powers given the GSS investigators? Let us note that the state did not argue before us that all the means employed by GSS investigators are permissible by virtue of the “law of interrogation.” Thus, for instance, the state did not make the argument that shaking is permitted simply because it is an “ordinary” method of investigation in Israel. Even so, it was argued that some of the physical means employed by the GSS investigators are permitted by the “law of interrogation” itself. For instance, this is the case with respect to some of the physical means applied in the context of waiting in the “Shabach” position—the placing of the head covering to prevent communication between the suspects, the playing of loud music to prevent the passing of information between suspects, the tying of the suspect’s hands to a chair for the investigators’ protection, and the deprivation of sleep, as necessary from the needs of the interrogation. Does the “law of interrogation” sanction the use of these physical means?
22. An interrogation, by its very nature, places the suspect in a difficult position. “The criminal’s interrogation,” wrote Justice Vitkon over twenty years ago, “is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust.” Cr. A 216/74 Cohen v The State of Israel, at 352. An interrogation is a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and elicit the information that the investigator seeks to obtain. Quite accurately, it was noted that:
Any interrogation, be it the fairest and most reasonable of all, inevitably places the suspect in embarrassing situations, burdens him, penetrates the deepest crevices of his soul, while creating serious emotional pressure.
See Y. Kedmi, On Evidence 25 (1991)
Indeed, the authority to conduct interrogations, like any administrative power, is designed for a specific purpose, and must be exercised in conformity with the basic principles of the democratic regime. In setting out the rules of interrogation, two values clash. On the one hand, lies the desire to uncover the truth, in accord with the public interest in exposing crime and preventing it. On the other hand is the need to protect the dignity and liberty of the individual being interrogated. This having been said, these values are not absolute. A democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth. “The interrogation practices of the police in a given regime,” noted Justice Landau, “are indicative of a regime’s very character” Cr. A. 264/65 Artzi v. The Government’s Legal Advisor. At times, the price of truth is so high that a democratic society is not prepared to pay. SeeA. Barak, On Law, Judging and Truth, 27 Mishpatim 11, 13 (1997). To the same extent, however, a democratic society, desirous of liberty, seeks to fight crime and, to that end, is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect—provided that it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined in Cr. A. 183/78 Abu Midjim v. The State of Israel, at 546:
On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and that we do all that we can to restrain police investigators from prohibited and criminal means. On the other hand, it is also our duty to fight the growing crime rate which destroys the good in our country, and to prevent the disruption of public peace by violent criminals.
Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a "reasonable interrogation." See Bein, The Police Investigation—Is There Room for Codification of the ‘Laws of the Hunt’, 12 Iyunei Mishpat 129 (1987). These rules are based, on the one hand, on preserving the “human image” of the suspect, see Cr. A. 115/82 Mouadi v. The State of Israel, at 222-24, and on preserving the “purity of arms” used during the interrogation. Cr. A. 183/78, supra. On the other hand, these rules take into consideration the need to fight crime in general, and terrorist attacks in particular. These rules reflect “a degree of reasonableness, straight thinking, and fairness.” See Kedmi, supra, at 25. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.
23. It is not necessary for us to engage in an in-depth inquiry into the “law of interrogation” for the purposes of the petitions before us. These laws vary, depending on the context. For instance, the law of interrogation is different in the context of an investigator’s potential criminal liability, and in the context of admitting evidence obtained by questionable means. Here we deal with the “law of interrogation” as a power of an administrative authority. See Beinsupra. The “law of interrogation” by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting.
First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading conduct whatsoever. There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation. F.H. 3081/91 Kozli v. The State of Israel, at 446. Human dignity also includes the dignity of the suspect being interrogated. Compare HCJ 355/59 Catlan v. Prison Security Services, at 298 and C.A.4463/94 Golan v. Prison Security Services. This conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment.” See M. Evans & R. Morgan, Preventing Torture 61 (1998); N.S. Rodley, The Treatment of Prisoners under International Law 63 (1987). These prohibitions are “absolute.” There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can lead to the investigator being held criminally liable. See, e.g., the Penal Law: § 277. Cr. A. 64/86 Ashash v. The State ofIsrael (unreported decision).
Second, a reasonable investigation is likely to cause discomfort. It may result in insufficient sleep. The conditions under which it is conducted risk being unpleasant. Of course, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various sophisticated techniques. Such techniques—accepted in the most progressive of societies—can be effective in achieving their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time-wise, may be deemed disproportionate.
From the General to the Particular
24. We shall now turn from the general to the particular. Clearly, shaking is a prohibited investigation method. It harms the suspect’s body. It violates his dignity. It is a violent method which can not form part of a legal investigation. It surpasses that which is necessary. Even the state did not argue that shaking is an “ordinary” investigatory method which every investigator, whether in the GSS or the police, is permitted to employ. The argument before us was that the justification for shaking is found in the “necessity defense.” That argument shall be dealt with below. In any event, there is no doubt that shaking is not to be resorted to in cases outside the bounds of “necessity” or as part of an “ordinary” investigation.
25. It was argued before the Court that one of the employed investigation methods consists of compelling the suspect to crouch on the tips of his toes for periods of five minutes. The state did not deny this practice. This is a prohibited investigation method. It does not serve any purpose inherent to an investigation. It is degrading and infringes an individual’s human dignity.
26. The “Shabach” method is composed of several components: the cuffing of the suspect, seating him on a low chair, covering his head with a sack, and playing loud music in the area. Does the general power to investigate authorize any of the above acts? Our point of departure is that there are actions which are inherent to the investigatory power. Compare C.A. 4463/94, supra. Therefore, we accept that the suspect’s cuffing, for the purpose of preserving the investigators’ safety, is included in the general power to investigate. Compare HCJ 8124/96 Mubarak v. The GSS(unreported decision). Provided the suspect is cuffed for this purpose, it is within the investigator’s authority to cuff him. The state’s position is that the suspects are indeed cuffed with the intention of ensuring the investigators’ safety or to prevent the suspect from fleeing from legal custody. Even petitioners agree that it is permissible to cuff a suspect in such circumstances and that cuffing constitutes an integral part of an interrogation. The cuffing associated with the “Shabach” position, however, is unlike routine cuffing. The suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair’s seat and back support, while the other is tied behind him, against the chair’s back support. This is a distorted and unnatural position. The investigators’ safety does not require it. Similarly, there is no justification for handcuffing the suspect’s hands with especially small handcuffs, if this is in fact the practice. The use of these methods is prohibited. As has been noted, “cuffing that causes pain is prohibited.” Mubarak supra. Moreover, there are other ways of preventing the suspect from fleeing which do not involve causing pain and suffering.
27. The same applies to seating the suspect in question in the “Shabach” position. We accept that seating a man is inherent to the investigation. This is not the case, however, when the chair upon which he is seated is a very low one, tilted forward facing the ground, and when he is seated in this position for long hours. This sort of seating is not authorized by the general power to interrogate. Even if we suppose that the seating of the suspect on a chair lower than that of his investigator can potentially serve a legitimate investigation objective—for instance, to establish the “rules of the game” in the contest of wills between the parties, or to emphasize the investigator’s superiority over the suspect—there is no inherent investigative need to seat the suspect on a chair so low and tilted forward towards the ground, in a manner that causes him real pain and suffering. Clearly, the general power to conduct interrogations does not authorize seating a suspect on a tilted chair, in a manner that applies pressure and causes pain to his back, all the more so when his hands are tied behind the chair, in the manner described. All these methods do not fall within the sphere of a “fair” interrogation. They are not reasonable. They infringe the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner. They are not to be deemed as included within the general power to conduct interrogations.
28. We accept that there are interrogation related concerns regarding preventing contact between the suspect under interrogation and other suspects, and perhaps even between the suspect and the interrogator. These concerns require means to prevent the said contact. The need to prevent contact may, for instance, flow from the need to safeguard the investigators’ security, or the security of the suspects and witnesses. It can also be part of the “mind game” which pits the information possessed by the suspect, against that found in the hands of his investigators. For this purpose, the power to interrogate—in principle and according to the circumstances of each particular case—may include the need to prevent eye contact with a given person or place. In the case at bar, this was the explanation provided by the state for covering the suspect’s head with a sack, while he is seated in the “Shabach” position. From what was stated in the declarations before us, the suspect’s head is covered with a sack throughout his “wait” in the “Shabach” position. It was argued that the head covering causes the suspect to suffocate. The sack is large, reaching the shoulders of the suspect. All these methods are not inherent to an interrogation. They are not necessary to prevent eye contact between the suspect being interrogated and other suspects. Indeed, even if such contact is prevented, what is the purpose of causing the suspect to suffocate? Employing this method is not related to the purpose of preventing the said contact and is consequently forbidden. Moreover, the statements clearly reveal that the suspect’s head remains covered for several hours, throughout his wait. For these purposes, less harmful means must be employed, such as letting the suspect wait in a detention cell. Doing so will eliminate any need to cover the suspect’s eyes. In the alternative, the suspect’s eyes may be covered in a manner that does not cause him physical suffering. For it appears that, at present, the suspect’s head covering—which covers his entire head, rather than eyes alone—for a prolonged period of time, with no essential link to the goal of preventing contact between the suspects under investigation, is not part of a fair interrogation. It harms the suspect and his dignity. It degrades him. It causes him to lose his sense of time and place. It suffocates him. All these things are not included in the general authority to investigate. In the cases before us, the State declared that it will make an effort to find a “ventilated” sack. This is not sufficient. The covering of the head in the circumstances described, as distinguished from the covering of the eyes, is outside the scope of authority and is prohibited.
29. Cutting off the suspect from his surroundings can also include preventing him from listening to what is going on around him. We are prepared to assume that the authority to investigate an individual may include preventing him from hearing other suspects under investigation or voices and sounds that, if heard by the suspect, risk impeding the interrogation’s success. At the same time, however, we must examine whether the means employed to accomplish this fall within the scope of a fair and reasonable interrogation. In the case at bar, the detainee is placed in the “Shabach” position while very loud music is played. Do these methods fall within the scope or the general authority to conduct interrogations? Here too, the answer is in the negative. Being exposed to very loud music for a long period of time causes the suspect suffering. Furthermore, the entire time, the suspect is tied in an uncomfortable position with his head covered. This is prohibited. It does not fall within the scope of the authority to conduct a fair and effective interrogation. In the circumstances of the cases before us, the playing of loud music is a prohibited.
30. To the above, we must add that the "Shabach" position employs all the above methods simultaneously. This combination gives rise to pain and suffering. This is a harmful method, particularly when it is employed for a prolonged period of time. For these reasons, this method is not authorized by the powers of interrogation. It is an unacceptable method. "The duty to safeguard the detainee's dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially his dignity." Cr. A. 7223/95 The State of Israel v. Rotenstein.
A similar—though not identical—combination of interrogation methods were discussed in the case of Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 3 (1976). In that case, the Court examined five interrogation methods used by England to investigate detainees suspected of terrorist activities in Northern Ireland. The methods included protracted standing against a wall on the tip of one's toes, covering of the suspect's head throughout the detention (except during the actual interrogation), exposing the suspect to very loud noise for a prolonged period of time, and deprivation of sleep, food and drink. The Court held that these methods did not constitute "torture." However, since they subjected the suspect to "inhuman and degrading" treatment, they were nonetheless prohibited.
31. The interrogation of a person is likely to be lengthy, due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately. See, e.g., Mubaraksupra; HCJ 5318/95 Hajazi v. GSS (unreported decision). Indeed, a person undergoing interrogation cannot sleep like one who is not being interrogated. The suspect, subject to the investigators' questions for a prolonged period of time, is at times exhausted. This is often the inevitable result of an interrogation. This is part of the "discomfort" inherent to an interrogation. This being the case, depriving the suspect of sleep is, in our opinion, included in the general authority of the investigator. Compare HCJ 3429/94 Shbana v. GSS (unreported decision). Justice Shamgar noted as such in Cr. A. 485/76 Ben Loulou v. The State of Israel (unreported decision):
The interrogation of crimes and, in particular, murder or other serious crimes, cannot be accomplished within an ordinary work day...The investigation of crime is essentially a game of mental resistance...For this reason, the interrogation is often carried out at frequent intervals. This, as noted, causes the investigation to drag on ...and requires diligent insistence on its momentum and consecutiveness.
The above described situation is different from one in which sleep deprivation shifts from being a "side effect" of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or "breaking" him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.
32. All these limitations on an interrogation, which flow from the requirement that an interrogation be fair and reasonable, is the law with respect to a regular police interrogation. The power to interrogate granted to the GSS investigator is the same power the law bestows upon the ordinary police investigator. The restrictions upon the police investigations are equally applicable to GSS investigations. There is no statute that grants GSS investigators special interrogating powers that are different or more significant than those granted the police investigator. From this we conclude that a GSS investigator, whose duty it is to conduct the interrogation according to the law, is subject to the same restrictions applicable to police interrogators.
Physical Means and the "Necessity" Defense
33. We have arrived at the conclusion that GSS personnel who have received permission to conduct interrogations, as per the Criminal Procedure Statute [Testimony], are authorized to do so. This authority—like that of the police investigator—does not include most of the physical means of interrogation in the petition before us. Can the authority to employ these methods be anchored in a legal source beyond the authority to conduct an interrogation? This question was answered by the state in the affirmative. As noted, our law does not contain an explicit authorization permitting the GSS to employ physical means. An authorization of this nature can, however, in the state’s opinion, be obtained in specific cases by virtue of the criminal law defense of “necessity,” as provided in section 34(1) of the Penal Law. The statute provides:
A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person, from substantial danger of serious harm, in response to particular circumstances during a specific time, and absent alternative means for avoiding the harm.
The state’s position is that by virtue of this defense against criminal liability, GSS investigators are authorized to apply physical means—such as shaking—in the appropriate circumstances and in the absence of other alternatives, in order to prevent serious harm to human life or limb. The state maintains that an act committed under conditions of “necessity” does not constitute a crime. Instead, the state sees such acts as worth committing in order to prevent serious harm to human life or limb. These are actions that society has an interest in encouraging, which should be seen as proper under the circumstances. In this, society is choosing the lesser evil. Not only is it legitimately permitted to engage in fighting terrorism, it is our moral duty to employ the means necessary for this purpose. This duty is particularly incumbent on the state authorities—and, for our purposes, on the GSS investigators—who carry the burden of safeguarding the public peace. As this is the case, there is no obstacle preventing the investigators’ superiors from instructing and guiding them as to when the conditions of the “necessity” defense are fulfilled. This, the state contends, implies the legality of the use of physical means in GSS interrogations.
In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information? The state answers in the affirmative. The use of physical means should not constitute a criminal offence, and their use should be sanctioned, according to the state, by the “necessity” defense.
34. We are prepared to assume, although this matter is open to debate, that the “necessity defense” is available to all, including an investigator, during an interrogation, acting in the capacity of the state. See A. Dershowitz, Is it Necessary to Apply ‘Physical Pressure’ to Terrorists—And to Lie About It?, 23 Israel L. Rev. 193 (1989); K. Bernsmann, Private Self-Defense and Necessity in German Penal Law and in the Penal Law Proposal— Some Remarks, 30 Israel L. Rev. 171, 208-10 (1998). Likewise, we are prepared to accept—although this matter is equally contentious—that the “necessity defense” can arise in instances of “ticking bombs,” and that the phrase "immediate need" in the statute refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or even in a few weeks, provided the danger is certain to materialize and there is no alternative means of preventing it. See M. Kremnitzer, The Landau Commission Report—Was the Security Service Subordinated to the Law or the Law to the Needs of the Security Service?, 23 Israel L. Rev. 216, 244-47 (1989). In other words, there exists a concrete level of imminent danger of the explosion’s occurrence. See M. Kremnitzer & R. Segev, The Petition of Force in the Course of GSS Interrogations- A Lesser Evil?, 4 Mishpat U’Memshal 667, 707 (1989); See also S.Z. Feller, Not Actual “Necessity” but Possible “Justification”; Not “Moderate Pressure”, but Either “Unlimited” or “None at All”, 23 Israel L. Rev. 201, 207 (1989).
Consequently we are prepared to presume, as was held by the Report of the Commission of Inquiry, that if a GSS investigator—who applied physical interrogation methods for the purpose of saving human life—is criminally indicted, the “necessity defense” is likely to be open to him in the appropriate circumstances. See Cr. A. 532/91 Anonymous v. The State of Israel (unreported decision). A long list of arguments, from the fields of ethics and political science, may be raised in support of and against the use of the “necessity defense.” See Kremnitzer & Segev, supra, at 696; M.S. Moor, Torture and the Balance of Evils, 23 Israel L. Rev. 280 (1989); L. Shelf, The Lesser Evil and the Lesser Good—On the Landau Commission’s Report, Terrorism and Torture, 1 Plilim 185 (1989); W.L. & P.E. Twining, Bentham on Torture, 24 Northern Ireland Legal Quarterly 305 (1973); D. Stetman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U’ Mimshal 161, 175 (1997); A. Zuckerman, Coersion and the Judicial Ascertainment of Truth, 23 Israel L. Rev. 357 (1989). This matter, however, has already been decided under Israeli law. Israeli penal law recognizes the “necessity defense.”
35. Indeed, we are prepared to accept that, in the appropriate circumstances, GSS investigators may avail themselves of the “necessity defense” if criminally indicted. This, however, is not the issue before this Court. We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect. We are dealing with a different question. The question before us is whether it is possible, ex ante, to establish permanent directives setting out the physical interrogation means that may be used under conditions of “necessity.” Moreover, we must decide whether the “necessity defense” can constitute a basis for the authority of a GSS investigator to investigate, in the performance of his duty. According to the state, it is possible to imply from the “necessity defense”—available post factum to an investigator indicted of a criminal offence—the ex ante legal authorization to allow the investigator to use physical interrogation methods. Is this position correct?
36. In the Court’s opinion, the authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity defense.” The “necessity defense” does not constitute a source of authority, which would allow GSS investigators to make use physical means during the course of interrogations. The reasoning underlying our position is anchored in the nature of the “necessity defense.” The defense deals with cases involving an individual reacting to a given set of facts. It is an improvised reaction to an unpredictable event. See Feller, supra at 209. Thus, the very nature of the defense does not allow it to serve as the source of authorization. Authorization of administrative authority is based on establishing general, forward looking criteria, as noted by Professor Enker:
Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values...The defense of necessity does not define a code of primary normative behavior. Necessity is certainly not a basis for establishing a broad detailed code of behavior such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like.
See A. Enker, The Use of Physical Force in Interrogations and the Necessity Defense, in Israel and International Human Rights Law: The Issue of Torture 61, 62 (1995). In a similar vein, Kremnitzer and Segev note:
The basic rationale underlying the necessity defense is the impossibility of establishing accurate rules of behavior in advance, appropriate in concrete emergency situations, whose circumstances are varied and unexpected. From this it follows, that the necessity defense is not well suited for the regulation of a general situation, the circumstances of which are known and may repeat themselves. In such cases, there is no reason for not setting out the rules of behavior in advance, in order that their content be determined in a thought out and well-planned manner, which would allow them to apply in a uniform manner to all.
The “necessity defense” has the effect of allowing one who acts under the circumstances of “necessity” to escape criminal liability. The “necessity defense” does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act—due to the “necessity defense”—does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right. It shall be noted that the Commission of Inquiry did not conclude that the “necessity defense” is the source of authority for employing physical means by GSS investigators during the course of their interrogations. All that the Commission of Inquiry determined was that, if an investigator finds himself in a situation of “necessity,” forcing him to choose the “lesser evil”—harming the suspect for the purpose of saving human lives—the “necessity defense” shall be available to him. Indeed, the Commission of Inquiry noted that, “the law itself must ensure a proper framework governing the actions of the security service with respect to the interrogation of hostile terrorist activities and the related problems particular to it.” Id. at 328.
37. In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability. The principle of “necessity” cannot serve as a basis of authority. See Kremnitzer, supra at 236. If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would not flow from the “necessity defense,” but rather from the “justification” defense. This defense is provided for in section 34(13) of the Penal Law, which states:
A person shall not bear criminal liability for an act committed in one of the following cases:
(1) He was obliged or authorized by law to commit it.
This "justification" defense to criminal liability is rooted in an area outside the criminal law. This “external” law serves as a defense to criminal liability. This defense does not rest upon “necessity,” which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the answer is found in the laws of detention, which is external to the Penal Law. If a man is killed as a result of this application of force, the “justification” defense will likely come into play. See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor. The “necessity” defense cannot constitute the basis for rules regarding an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation. The power to enact rules and to act according to them requires legislative authorization. In such legislation, the legislature, if it so desires, may express its views on the social, ethical and political problems of authorizing the use of physical means in an interrogation. Naturally, such considerations did not come before the legislature when the “necessity” defense was enacted. See Kremnitzer, supra, at 239-40. The “necessity” defense is not the appropriate place for laying out these considerations. See Enker, supra, at 72.
Granting GSS investigators the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the suspect's dignity and liberty, raises basic questions of law and society, of ethics and policy, and of the rule of law and security. These questions and the corresponding answers must be determined by the legislative branch. This is required by the principle of the separation of powers and the rule of law, under our understanding of democracy. See HCJ 3267/97 Rubinstein v. Minister of Defense.
38. We conclude, therefore, that, according to the existing state of the law, neither the government nor the heads of the security services have the authority to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself. Similarly, the individual GSS investigator—like any police officer—does not possess the authority to employ physical means that infringe a suspect’s liberty during the interrogation, unless these means are inherent to the very essence of an interrogation and are both fair and reasonable.
An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity defense.” Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the “necessity defense” does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from “necessity.” A statutory provision is necessary to authorize the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation,” and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity defense” cannot serve as a basis for such authority.
A Final Word
39. This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.
This having been said, there are those who argue that Israel’s security problems are too numerous, and require the authorization of physical means. Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The debate must occur there. It is there that the required legislation may be passed, provided, of course, that the law “befit[s] the values of the State of Israel, is enacted for a proper purpose, and [infringes the suspect's liberty] to an extent no greater than required." See article 8 of the Basic Law: Human Dignity and Liberty.
40. Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged. Therefore, in deciding the law, we must act according to our purest conscience. We recall the words of Deputy President Landau, in HCJ 390/79 Dawikat v. The State of Israel, at 4:
We possess proper sources upon which to construct our judgments and have no need—and, indeed, are forbidden—to allow our personal views as citizens to influence our decisions. Still, I fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large will not be interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged. But what can we do, for this is our role and our obligation as judges?
The Commission of Inquiry pointed to the “difficult dilemma between the imperative to safeguard the very existence of the State of Israel and the lives of its citizens, and between the need to preserve its character—a country subject to the rule of law and basic moral values.” Report of the Commission, at 326. The commission rejected an approach that would consign our fight against terrorism to the twilight shadows of the law. The commission also rejected the “ways of the hypocrites, who remind us of their adherence to the rule of law, even as they remain willfully blind to reality.” Id. at 327. Instead, the Commission chose to follow “the way of truth and the rule of law.” Id. at 328. In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner open to examination to all of Israeli society.
Consequently, it is decided that the order nisi be made absolute. The GSS does not have the authority to “shake” a man, hold him in the “Shabach” position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a “frog crouch” position
and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the “necessity defense,” found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. Our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.
Deputy President S. Levin
I agree.
Justice T. Or
I agree.
Justice E. Mazza
I agree.
Justice M. Cheshin
I agree.
Justice I. Zamir
I agree.
Justice T. Strasberg-Cohen
I agree.
Justice D. Dorner
I agree.
Justice Y. Kedmi
I accept the conclusion reached by my colleague, the President, that the use of exceptional interrogation methods, according to the directives of the Ministerial Committee, "has not been authorized, and is illegal." I am also of the opinion that the time has come for this issue to be regulated by explicit, clear, and unambiguous legislation.
Even so, it is difficult for me to accept that, due to the absence of explicit legislation, the state should be helpless in those rare emergencies defined as "ticking bombs," and that the state would not be authorized to order the use of exceptional interrogation methods in such circumstances. As far as I am concerned, authority does exist under such circumstances, a result of the basic obligation of the state—like all countries of the world—to defend its existence, its well-being, and to safeguard the lives of its citizens. It is clear that, in those circumstances, the state—as well as its agents—will have the natural right of "self-defense," in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens.
Against this background, and in order to prevent a situation where the state stands helpless while the "bomb ticks" before our eyes, I suggest that this judgment be suspended for one year. During that year, the GSS will be allowed to employ exceptional interrogative methods in those rare cases of "ticking bombs," on the condition that explicit authorization is granted by the Attorney-General.
Such a suspension would not limit our present ruling that the use of exceptional interrogation methods—those that rely on directives of the Ministerial Committee—are illegal. The suspension of the judgment would not constitute authorization to continue acting according to those directives, and the authorization of the Attorney-General would not legalize the performance of an illegal action. This suspension would only affect the employment of exceptional interrogation methods under the emergency circumstances of a "ticking bomb."
During such a suspension period, the Knesset would be given an opportunity to consider the issue of exceptional interrogation methods in security investigations, both in general and in times of emergency. The GSS would be given the opportunity to cope with emergency situations until the Knesset considers the issue. Meanwhile, the GSS would also have an opportunity to adapt, after a long period during which the directives of the Ministerial Committee have governed.
I therefore join the judgment of the President, subject to my proposal to suspend the judgment for a period of one year.
Decided according to the opinion of the President.
September 6, 1999
7.2.6.4.1.2.6. Restatement of Contracts, Second, § 205
7.2.6.4.1.3 New York Times Co. v. U.S. Dept. of Justice 7.2.6.4.1.3 New York Times Co. v. U.S. Dept. of Justice
756 F.3d 100
The NEW YORK TIMES COMPANY, Charlie Savage, Scott Shane, American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs–Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, United States Department of Defense, Central Intelligence Agency, Defendants–Appellees.
Docket Nos. 13–422 (L), 13–445(CON).
United States Court of Appeals, Second Circuit.
Submitted: Oct. 1, 2013.Decided: June 23, 2014.
Revised: Aug. 25, 2014.
[102] David E. McCraw, The New York Times Company, New York, NY (Stephen N. Gikow, New York, NY, on the brief), for Plaintiffs–Appellants The New York Times Company, Charlie Savage, and Scott Shane.
Jameel Jaffer, American Civil Liberties Union Foundation, New York, NY (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, NY, Joshua Colangelo–Bryan, Dorsey & Whitney LLP, New York, NY, Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, M.N., on the brief), for Plaintiffs–Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.
Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, NY, Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants–Appellees.
(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs–Appellants.).
[103] (Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs–Appellants.).
Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act ("FOIA") presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs–Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively "N.Y. Times"), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively "ACLU") appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U.S. Dep't of Justice ("Dist. Ct. Op."), 915 F.Supp.2d 508 (S.D.N.Y.2013). The suits were brought against the Defendants–Appellees United States Department of Justice ("DOJ"), the United States Department of Defense ("DOD"), and the Central Intelligence Agency ("CIA") (sometimes collectively the "Government").
We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reasoning as to the lawfulness of the attacks.
The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called "Glomar responses" (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called "no number, no-list" responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC–DOD Memorandum and other OLC legal opinions, and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.
We conclude that (1) a redacted version of the OLC–DOD Memorandum must be disclosed, (2) a redacted version of the classifiedVaughn index (described below) submitted by OLC must be disclosed, (3) other legal opinions prepared by OLC must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction, (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camerainspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy ("OIP") search was sufficient. We therefore affirm in part, reverse in part, and remand.
[104] Background
The FOIA requests at issue in this case focus primarily on the drone attacks in Yemen that killed Anwar al-Awlaki[1] and Samir Khan in September 2011 and al-Awlaki's teenage son, Abdulrahman al-Awlaki, in October 2011. All three victims were United States citizens either by birth or naturalization.
Statutory Framework. FOIA provides, with exceptions not relevant to this case, that an "agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A) (2013). FOIA contains several exemptions, three of which are asserted in this case.
Exemption 1 exempts records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1) (2013). Executive Order 13526 allows an agency to withhold information that (1) "pertains to" one of the categories of information specified in the Executive order, including "intelligence activities (including covert action)," "intelligence sources or methods," or "foreign relations or foreign activities of the United States" and (2) if "unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security." Executive Order No. 13526 § 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed.Reg. 708, 709 (Dec. 29, 2009).
Exemption 3 exempts records that are "specifically exempted from disclosure by [another] statute" if the relevant statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(i), (ii) (2013). Two such statutes are potentially relevant here. The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence "shall be responsible for protecting intelligence sources or methods," and exempts CIA from "any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 3507 (2013). The National Security Act of 1947, 50 U.S.C. § 3024–1(i)(1) (2013), exempts from disclosure "intelligence sources and methods."
Exemption 5 exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (2013). Exemption 5 encompasses traditional common law privileges against disclosure, including the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep't of Justice,411 F.3d 350, 356 (2d Cir.2005).
The N.Y. Times FOIA requests and Government responses. Shane and Savage, New York Times reporters, submitted separate FOIA requests to OLC. Shane's request, submitted in June 2010, sought:
all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing of people suspected of [105] ties to Al–Qaeda or other terrorist groups by employees or contractors of the United States government.
Joint Appendix ("JA") 296–97.
Savage's request, submitted in October 2010, sought:
a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.
JA 300–01.
OLC denied Shane's request. With respect to the portion of his request that pertained to DOD, OLC initially submitted a so-called "no number, no list" response[2] instead of submitting the usual Vaughn index,[3] numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted. A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description. OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5.
As to documents pertaining to agencies other than DOD, OLC submitted a so-called "Glomar response."[4] This type of response neither confirms nor denies the existence of documents responsive to the request. See Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir.2009). OLC stated that the Glomar response was given "because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged" under 5 U.S.C. § 552(b)(1), (3), (5). CIA confirmed that it requested DOJ to submit a Glomar response on its behalf.[5]
OLC also denied Savage's request. Declining to submit either a Vaughn index or even a no number, no list response, OLC submitted aGlomar response, stating that, pursuant to Exemptions 1, 3, and 5, it was neither confirming nor denying the existence of documents described in the request. Unlike its letter denying the Shane request, OLC's response to the Savage request did not identify any responsive documents relating to DOD.
During the course of the litigation, OLC modified its responses to the Shane and Savage requests by identifying the existence of one document pertaining to DOD, what the District Court and the parties have referred to as the OLC–DOD Memorandum, but claimed that this document [106] was exempt from disclosure under Exemption 5. Because the OLC–DOD Memorandum was classified, it was presumably also withheld under Exemption 1. As to all other DOD documents, it is not clear whether OLC was continuing to assert aGlomar response, as it had made to Shane, or a no number, no list response, as it had made to Savage.
The ACLU FOIA requests and Government responses. In October 2011, ACLU submitted FOIA requests to three agencies: DOJ (including two of DOJ's component agencies, OIP and OLC), DOD, and CIA. The requests, quoted in the margin,[6] sought various documents concerning the targeted killings of United States citizens [107] in general and al-Awlaki, his son, and Khan in particular.
Both OLC and CIA initially submitted Glomar responses, refusing to confirm or deny the existence of responsive documents, pursuant to Exemptions 1, 3, and 5.
DOD initially stated that it could not respond to the request within the statutory time period because of the scope and complexity of the request.
During the course of the litigation, the Government agencies modified their original responses in light of statements by senior Executive Branch officials on the legal and policy issues pertaining to United States counterterrorism operations and the potential use of lethal force by the United States Government against senior operational leaders of al-Qaeda who are United States citizens.
OLC provided ACLU with a Vaughn index of sixty unclassified responsive documents, each described as an e-mail chain reflecting internal deliberations concerning the legal basis for the use of lethal force against United States citizens in a foreign country in certain circumstances. OLC withheld these documents pursuant to Exemption 5.
OLC also submitted a no number, no list response as to classified documents, stating that it could not provide the number or description of these documents because that information was protected from disclosure by Exemptions 1 and 3. OLC did describe one of these documents as an "OLC opinion related to DoD operations," Declaration of John E. Bies, Deputy Assistant Attorney General, OLC ¶ 38 ("Bies Decl."), JA 279, which it withheld in its entirety under Exemptions 1 and 3. This is apparently not the OLC–DOD Memorandum, which OLC said was exempt from disclosure under Exemption 5. That this document is not the OLC–DOD Memorandum is confirmed by OLC's assertion that this document "cannot be further identified or described on the public record." Id. The OLC–DOD Memorandum was withheld under Exemptions 1 and 5.
OIP located one responsive document, a set of talking points prepared for the Attorney General and others related to "hypothetical questions about Anwar al-Aulaqi's death," Declaration of Douglas R. Hibbard, Deputy Chief of the Initial Request Staff, OIP ¶ 8, JA 441, which it released to ACLU. OIP also issued a Vaughn index listing four unclassified records withheld under Exemptions 3, 5, and 6.[7]OIP also submitted a no number, no list response to various classified documents withheld under Exemptions 1 and 3.
DOD's revised response disclosed a speech given by Jeh Johnson, then-DOD General Counsel, at Yale Law School on February 22, 2012. DOD also provided ACLU with a Vaughn index listing ten unclassified records, withheld pursuant to Exemption 5. Seven of those documents were e-mail traffic regarding drafts of the speech given by Johnson at Yale Law School and a speech delivered by Attorney General Holder at Northwestern University School of Law. One of the withheld unclassified records was a presentation by Johnson in February 2012, regarding international law principles, to officers who had recently obtained the rank of O7. The remaining two withheld unclassified records were described as "memoranda from the Legal Counsel to the Chairman of the Joint Chiefs of Staff to the White House's National Security Council Legal Advisor addressing the legal basis for conducting [108] military operations against U.S. citizens in general." Declaration of Robert E. Neller, Lt. General, United States Marine Corp, Director of Operations for the Joint Staff at the Pentagon, ¶ 16 ("Neller Decl."). JA 334.
DOD also located responsive classified records. One of these was the previously mentioned OLC–DOD memorandum, which DOD withheld under Exemptions 1 and 5. As to the other classified documents, DOD submitted a no number, no list response.
CIA modified its initial Glomar responses in June 2012 by confirming the existence of "responsive records reflecting a general interest" in two areas described in the ACLU's request: (1) " 'the legal basis ... upon which U.S. citizens can be subjected to targeted killing' " and (2) " 'the process by which U.S. citizens can be subjected to targeted killing.' " Declaration of John Bennett, Director, National Clandestine Service, CIA, ¶ 27 (quoting ACLU request). In these two categories, CIA submitted a no number, no list response, relying on Exemptions 1 and 3, with the exception that CIA acknowledged that it possessed copies of speeches given by the Attorney General at Northwestern University Law School on March 5, 2012, and by the Assistant to the President for Homeland Security and Counterterrorism on April 30, 2012. See id.
The pending lawsuit and District Court opinions. In December 2011, N.Y. Times filed a lawsuit challenging the denials of the Shane and Savage requests. ACLU filed its suit in February 2012. After the suits were consolidated, both Plaintiffs and the Government filed cross-motions for summary judgment. In January 2013, the District Court denied both Plaintiffs' motions for summary judgment and granted the Defendants' motion in both cases, with one exception, which required DOD to submit a more detailed justification as to why the deliberative process exemption (asserted through Exemption 5) applied to two unclassified memos listed in its Vaughn index. See Dist. Ct. Op., 915 F.Supp.2d at 553. Later in January 2013, after receiving a supplemental submission from DOD, the District Court granted the Defendants' motion for summary judgment with respect to the two unclassified DOD memos. See New York Times Co. v. U.S. DOJ("Dist. Ct. Supp. Op."), Nos. 11 Civ. 9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan.22, 2013).
In its principal opinion, which we discuss in more detail in Parts III and IV, below, the Court first ruled that the Government had conducted an adequate search for responsive documents. See Dist. Ct. Op., 915 F.Supp.2d at 532–33. The Court then considered separately each of the Government's claims to an exemption.
As to Exemption 1, concerning properly classified documents, the Court first ruled that there was no evidence that any of the documents withheld pursuant to Exemption 1 had not been properly classified. See id. at 535. The Court specifically considered the Plaintiffs' claim that legal analysis could not be classified and rejected the claim. See id.
Turning to the Plaintiffs' claim of waiver, the Court, citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009), first ruled that waiver of Exemption 1 had not occurred with respect to classified documents containing operational details of targeted killing missions. See Dist. Ct. Op., 915 F.Supp.2d at 535–37. The Court then specifically considered whether waiver of Exemption 1 had occurred with respect to the OLC–DOD Memorandum and rejected the claim. See id. at 538.
As to Exemption 3, which protects records exempted from disclosure by statute, [109] the District Court first noted that section 102A(i)(1) of the National Security Act, now codified at 50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within the meaning of Exemption 3, and that this provision protects from disclosure "intelligence sources and methods." Id. at 539. The Court then reckoned with ACLU's contention that placing individuals on kill lists does not fall within the category of intelligence sources and methods. Agreeing with a decision of a district court in the District of Columbia, ACLU v. Dep't of Justice, 808 F.Supp.2d 280, 290–92 (D.D.C.2011) ("Drone Strike Case "), which was later reversed on appeal, see ACLU v. CIA, 710 F.3d 422 (D.C.Cir.2013), the District Court here rejected ACLU's argument. See Dist. Ct. Op., 915 F.Supp.2d at 540. The District Court then specifically focused on the issue whether legal analysis could fall within the category of intelligence sources and methods. Acknowledging that it is "entirely logical and plausible" that intelligence sources and methods could be redacted from legal analysis upon in camera inspection, the Court declined to make such inspection or resolve the issue because it concluded that Exemption 5 "plainly applies" to the legal analysis that is sought here. See id.
The District Court then determined that section 6 of the CIA Act, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013), is an exempting statute within the meaning of Exemption 3 and that section 6 protects from disclosure information concerning the "functions" of CIA. See id. at 541. Again, following the district court decision in the Drone Strike Case, before it was reversed, the District Court here ruled that Exemption 3 permitted CIA, in response to ACLU's request, to refuse to reveal the existence of records concerning drone strikes. See id.
As to Exemption 5, covering "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," the District Court noted that this exemption applies to documents withheld "under the deliberative process privilege (a.k.a., the executive privilege) and the attorney-client privilege," citing this Court's decision in Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d Cir.2002). See Dist. Ct. Op., 915 F.Supp.2d at 541–42. OLC relied on the deliberative process privilege to withhold the classified OLC–DOD Memorandum, which both Plaintiffs sought, and DOD relied on this privilege to withhold the two unclassified documents on its Vaughn index that ACLU requested. These two, numbered 9 and 10, were described as "Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents." JA 409.
With respect to the OLC–DOD Memorandum, the District Court, accepting N.Y. Times's concession that this document at one time might have been properly withheld under the deliberative process and/or attorney-client privileges, see id. at 544, rejected the Plaintiffs' contentions that these privileges had been lost because of one or more of the following principles: waiver, adoption, or working law, seeid. at 546–50.
As to documents 9 and 10 on DOD's Vaughn index, the Court initially found DOD's justification for invoking Exemption 5 inadequate,see id. at 545, but ruled that a subsequent submission sufficiently supported the application of the deliberative process privilege and hence Exemption 5 to these documents, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.
[110] Finally, the District Court considered the Glomar and no number, no list responses that were given by DOJ, DOD, and CIA. Apparently accepting the sufficiency of the affidavits submitted by officials of these agencies to justify the responses under Exemptions 1 and 3, the Court turned its attention to the Plaintiffs' claims that these protections had been waived. Again, following the district court opinion in the Drone Strike Case, before it was reversed, the District Court here concluded that none of the public statements of senior officials waived entitlement to submit Glomar or no number, no list responses because "[i]n none of these statements is there a reference to any particular records pertaining to the [targeted killing] program, let alone the number or nature of those records." Dist. Ct. Op., 915 F.Supp.2d at 553 (emphases in original).
Information made public after the District Court opinions.[8] After the District Court entered judgment for the Defendants, one document and several statements of Government officials that the Plaintiffs contend support their claims became publicly available. The document is captioned "DOJ White Paper" and titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al–Qaida or an Associated Force" ("DOJ White Paper"). As the Government acknowledges, see Br. for Appellees at 25, the 16–page, single-spaced DOJ White Paper was leaked to the press and subsequently officially disclosed by DOJ.[9]The leak occurred on February 4, [111] 2013; the official disclosure occurred four days later.
The statements are those of John O. Brennan, Attorney General Eric Holder, and President Obama. Brennan, testifying before the Senate Select Committee on Intelligence on February 7, 2013, on his nomination to be director of CIA, said, among other things, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Open Hearing on the Nomination of John O. Brennan to be Director of the Central Intelligence Agency Before the S. Select Comm. on Intelligence, 113 Cong. 57 (Feb. 7, 2013) ("Brennan Hearing "), available at http://www.intelligence.senate.gov/130207/transcript. pdf. Holder sent a letter to Senator Patrick J. Leahy, Chairman of the Senate Judiciary Committee on May 22, 2013 ("Holder Letter ").[10] In that letter Holder stated, "The United States ... has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi," Holder Letter at unnumbered second page, and acknowledged that United States counterterrorism operations had killed Samir Khan and Abdulrahman al-Awlaki, who, he states, were not targeted by the United States, see id. He also stated, "[T]he Administration has demonstrated its commitment to discussing with the Congress and the American people the circumstances in which it could lawfully use lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qaida or its associated forces, and is actively engaged in planning to kill Americans." Id.He also stated, "The decision to target Anwar al-Aulaki was lawful...." Id. at fourth unnumbered page. President Obama delivered an address at the National Defense University on May 23, 2013.[11] In that address, the President listed al-Awlaki's terrorist activities and acknowledged that he had "authorized the strike that took him out."
Discussion
I. FOIA Standards.
FOIA calls for "broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). The disclosure obligation is subject to several exemptions. However, "consistent with the Act's goal of broad disclosure, these exemptions have consistently been given a narrow compass." [112] Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted). Exemptions 1 (classified documents), 3 (documents protected by statute), and 5 (privileged documents), outlined above, have been invoked in this litigation. "The agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure."Wilner, 592 F.3d at 69. To meet its burden of proof, the agency can submit "[a]ffidavits or declarations giving reasonably detailed explanations why any withheld documents fall within an exemption." ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir.2012) (internal quotation marks omitted).
We review de novo a district court's grant of summary judgment in FOIA litigation. See Wilner, 592 F.3d at 69. When an agency claims that a document is exempt from disclosure, we review that determination and justification de novo. See id. When the claimed exemptions involve classified documents in the national security context, the Court must give "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." ACLU, 681 F.3d at 69 (emphasis in original) (internal quotation marks omitted).
II. Appellants' Claims
Narrowing the scope of the Shane request (OLC opinions that address the legal status of targeted killings) and the Savage request (OLC memoranda analyzing the circumstances under which it would be lawful to kill a United States citizen who is deemed to be a terrorist), Appellant N.Y. Times presses on appeal its request to OLC for disclosure of the OLC–DOD memorandum. N.Y. Times also requests a Vaughn index of all withheld documents, instead of the no number, no list and Glomar responses it has received. See Br. for N.Y. Times at 51–52. ACLU seeks disclosure of the OLC–DOD memorandum; what it refers to as "the Unclassified Memos," Br. for ACLU at 50, 61, which are documents nos. 9 and 10 on DOD's Vaughn index, see Dist. Ct. Op., 915 F.Supp.2d at 545; and "certain OLC memoranda that the agencies have not addressed in this litigation but whose existence they have officially acknowledged in public statements," Br. for ACLU at 50. ACLU also requests Vaughn indices and asks that OIP be required "to renew its search for responsive documents." Br. for ACLU at 61.
III. The OLC–DOD Memorandum
The OLC–DOD Memorandum, as described by OLC, is an "OLC opinion pertaining to the Department of Defense marked classified ... [t]hat ... contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country." Bies Decl. ¶ 30.
OLC withheld the OLC–DOD Memorandum as protected from disclosure by Exemption 5 "because it is protected by the deliberative process and attorney-client privileges." Id. DOD withheld the document under Exemptions 1 and 5 "because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities." Neller Decl. ¶ 17. General Neller stated that the classified information in the OLC–DOD Memorandum "is not reasonably segregable." Id.
In upholding the application of Exemption 1 to the OLC–DOD Memorandum, the District Court first ruled that the affidavits supplied by senior Government officials [113] demonstrated that classification had been properly made. See Dist. Ct. Op., 915 F.Supp.2d at 535. The Court then ruled that legal analysis may be classified, citing three district court opinions.[12]See id. After pointing out that Exemption 1 applies to documents properly classified pursuant to an Executive Order and that Executive Order No. 13526 "applies to any information that 'pertains to' military plans or intelligence activities (including covert action), sources or methods," id., the Court stated, "I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified," id.
In considering the application of Exemption 5 to the OLC–DOD Memorandum, the District Court noted the Government's claim that both the deliberative process and attorney-client privileges protected the document, and observed that N.Y. Times did not disagree that the document might at one time have been withheld under both privileges. See id. at 544.
After determining that Exemptions 1 and 5 applied to the OLC–DOD Memorandum, the Court considered and rejected the Plaintiffs' claims that the Government had waived application of these exemptions. With respect to waiver of Exemption 1, the Court stated that waiver occurs only where the government has "officially" disclosed the information sought, Dist. Ct. Op., 915 F.Supp.2d at 536 (citingHalpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999)), and that official disclosure of classified information occurs only if the classified information is " 'as specific as the information previously released,' " " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure,' " id. (quoting Wilson, 586 F.3d at 186). The District Court ruled that no official disclosure had been made concerning documents containing operational details of targeted killings, sought by ACLU, see id.,and that none of the public pronouncements cited by the Plaintiffs "reveals the necessary detailed legal analysis that supports the Administration's conclusion that targeted killing, whether of citizens or otherwise, is lawful," id. at 538 (footnote omitted).
With respect to waiver of Exemption 5, the District Court ruled that the deliberative process privilege had not been waived because "there is no evidence that the Government continually relied upon and repeated in public the arguments made specifically in the OLC–DOD Memo," id. at 549 (emphasis in original) (internal quotation marks omitted), and that "it is sheer speculation that this particular OLC memorandum ... contains the legal analysis that justifies the Executive Branch's conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a 'hot' field of battle," id. The Court saw no need to consider the plaintiffs' claim of waiver in the context of the attorney-client privilege because the deliberative process privilege protected the OLC–DOD Memorandum under Exemption 5. See id.
We agree with the District Court's conclusions that the OLCDOD Memorandum was properly classified and that no waiver of any operational details in that document has occurred. With respect to the document's legal analysis, we conclude that waiver of Exemptions 1 and 5 has [114] occurred.[13] "Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption," Dow Jones & Co. v. U.S. Dep't of Justice, 880 F.Supp. 145, 150–51 (S.D.N.Y.1995) (citing Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 700 (9th Cir.1989)), vacated in part on other grounds, 907 F.Supp. 79 (S.D.N.Y.1995), and the attorney-client and deliberative privileges, in the context of Exemption 5, may be lost by disclosure, see Brennan Center for Justice v. U.S. Dep't of Justice,697 F.3d 184, 208 (2d Cir.2012).
(a) Loss of Exemption 5. Exemption 5 " 'properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.' " Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). At the same time, we recognize that "the law extends the privilege to legal advice given by a lawyer to his client [because] statements by the lawyer often reveal—expressly or by necessary implication—assumptions of fact based on statements by the client," George A. Davidson & William H. Voth, Waiver of the Attorney–Client Privilege, 64 Oregon L.Rev. 637, 650 (1986).
In considering waiver of the legal analysis in the OLC–DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct." Dist. Ct. Op., 915 F.Supp.2d at 524. In a March 25, 2010, speech at the annual meeting of the American Society of International Law in Washington, D.C., then-Legal Adviser of the State Department Harold Hongju Koh said, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." JA 113, 124. In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, "summarize[d] ... some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against Al Qaeda and its associated forces," JA 399, and referring explicitly to "targeted killing," said, "In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice," JA 402.
In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, "[I]t is entirely lawful—under both United States law and applicable law of war principles—to target specific senior operational leaders of al Qaeda and associated forces." JA 449. He discussed the relevance of the Due Process Clause, id., and maintained that killing a senior al Qaeda leader would be lawful at least in circumstances where
[f]irst, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
JA 450. Amplifying this last point, he stated that "use of lethal force by the United States will comply with the four fundamental law of war principles governing [115] the use of force: ... necessity[,] ... distinction [,] ... proportionality[,] ... [and] humanity." Id. As the District Court noted, "The Northwestern Speech [by the Attorney General] discussed the legal considerations that the Executive Branch takes into consideration before targeting a suspected terrorist for killing" and "the speech constitutes a sort of road map of the decision-making process that the Government goes through before deciding to 'terminate' someone 'with extreme prejudice.' " Dist. Ct. Op., 915 F.Supp.2d at 537.
In an April 30, 2012, speech at the Wilson Center in Washington D.C., John O. Brennan, then-Assistant to the President for Homeland Security and Counterterrorism, said, "Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." JA 95. On Feb. 7, 2013, Brennan, testifying on his nomination to be director of CIA, said, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Brennan Hearing at 57.
Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC–DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated. That document is the DOJ White Paper, officially released on Feb. 4, 2013. See note 9, above. Before considering the relevance of the DOJ White Paper to the Government's claim to continued secrecy and privilege of the legal analysis in the OLC–DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail.
The OLC–DOD Memorandum is a 41–page classified document, dated July 16, 2010, captioned:
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shykh Anwar al-Aulaki[14]
It was prepared on the letterhead of OLC and signed by David J. Barron, Acting Assistant Attorney General.
The OLC–DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports intelligence that OLC has received concerning the relationship between Al–Qaida in the Arabian Peninsula ("AQAP") and al-Qaida, the organization and operation of AQAP, and the role al-Awlaki performs with AQAP. Parts I(B) and I(C) describe the manner in which government agencies would perform the targeted killing of al-Awlaki. Part II(A) considers Title 18 U.S.C. § 1119 (2013), entitled "Foreign murder of United States nationals" and explains why section 1119 does not proscribe killings covered by a traditionally recognized justification. Part II(B) explains why section 1119 incorporates one such justification, the public authority justification. Part III(A) explains why the public authority justification encompasses DOD's role in the contemplated targeted killing, and Part III(B) explains why that justification encompasses another agency's role in the killing. Part IV explains why the contemplated killing would not violate 18 U.S.C. § 956(a) (2013), entitled "Conspiracy to kill, maim, or injure [116] persons or damage property in a foreign country." Part V explains why the contemplated killing would not violate 18 U.S.C. § 2441 (2013), entitled "War crimes." Part VI explains why the contemplated killing would not violate the Fourth or Fifth Amendments of the Constitution.
The 16–page, single-spaced DOJ White Paper virtually parallels the OLC–DOD Memorandum in its analysis of the lawfulness of targeted killings. Like the Memorandum, the DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC–DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret. After the District Court's decision, Attorney General Holder publicly acknowledged the close relationship between the DOJ White Paper and previous OLC advice on March 6, 2013, when he said at a hearing of the Senate Committee on the Judiciary that the DOJ White Paper's discussion of imminence of threatened action would be "more clear if it is read in conjunction with the underlying OLC advice."[15]Oversight of the U.S. Department of Justice Before the Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013).
After senior Government officials have assured the public that targeted killings are "lawful" and that OLC advice "establishes the legal boundaries within which we can operate," and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC–DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.
The recent opinion of the District Court for the Northern District of California, First Amendment Coalition v. U.S. Dep't of Justice, No. 4:12–cv–01013–CW, 2014 WL 1411333 (N.D.Cal. April 11, 2014), denying an FOIA request for the OLC–DOD Memorandum, is readily distinguishable because the Court, being under the impression that "there has been no 'official disclosure' of the White Paper," id., 2014 WL 1411333 at 12, did not assess its significance, whereas in our case, the Government has conceded that the White Paper, with its detailed analysis of legal reasoning, has in fact been officially disclosed, see footnote 10, supra.
In resisting disclosure of the OLC–DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC's legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur. In La Raza, we explained that "[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy." 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice "establishes the legal boundaries within which we can operate"; it "cannot invoke that relied-upon authority and then shield it from public view." [117] Brennan Center, 697 F.3d at 207–08. Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.
The Government also argues that because the OLC–DOD Memorandum refers to earlier OLC documents that remain classified, those assessing the legal reasoning in the OLC–DOD Memorandum might find the reasoning deficient without an opportunity to see the previous documents. However, the reasoning in the OLC–DOD Memorandum is rather elaborate, and readers should have no difficulty assessing the reasoning on its own terms. Moreover, the Government had no similar concern when it released the DOJ White Paper, the reasoning of which cannot be properly assessed, on the Government's argument, without seeing the OLC–DOD Memorandum.Finally, the Government always has the option of disclosing redacted versions of previous OLC advice.
The loss of protection for the legal analysis in the OLC–DOD Memorandum does not mean, however, that the entire document must be disclosed. FOIA provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552b. The Government's waiver applies only to the portions of the OLC–DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed. Even within those portions of the document, there are matters that the Government contends should remain secret for reasons set forth in the Government's classified ex parte submission, which we have reviewed in camera.
One of those reasons concerns [redacted] the Government persuasively argues warrants continued secrecy. [redacted] We will redact all references to that [redacted].[16]
Two arguments concern facts mentioned within the legal reasoning portions of the OLC–DOD Memorandum that no longer merit secrecy. One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen. On September 30, 2011, DOD released a transcript reporting then-Secretary of Defense Panetta stating, "[W]e've been working with the Yemenis over a long period of time to be able to target Awlaki, and I want to congratulate them on their efforts, their intelligence assistance, their operational assistance to get the job done." JA 799. On October 25, 2011, President Obama, appearing on a network television program, said, referring to al-Awlaki, "[I]t was important that, working with the [Yemenis,][17]we were able to remove him from the field." Transcript of The Tonight Show with Jay Leno (Oct. 25, 2011). JA 556. On the day al-Awlaki was killed, September 3, 2011, DOD's Armed Forces Press Service reported, "A U.S. airstrike that killed Yemeni-based terrorist Anwar al-Awlaki early this morning is a testament to the close cooperation between the United States and Yemen, Defense Secretary Leon E. Panetta said today." JA 651. The report continued, "Obama and Panetta congratulated the Yemenis on their intelligence and operational [118] assistance in targeting [al-]Awlaki." Id. It is no secret that al-Awlaki was killed in Yemen. However, the OLC–DOD Memorandum contains some references to the Yemeni government that are entitled to secrecy and will be redacted.
The other fact within the legal reasoning portion of the OLC–DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency's identity. The argument comes too late.
A March 18, 2010, Wall Street Journal article quotes Panetta, then CIA Director:
"Anytime we get a high value target that is in the top leadership of al Qaeda, it seriously disrupts their operations," Mr. Panetta said. "It sent two important signals," Mr. Panetta said. "No. 1 that we are not going to hesitate to go after them wherever they try to hide, and No. 2 that we are continuing to target their leadership."
"Drone Kills Suspect in CIA Suicide Bombing," The Wall Street Journal (Mar. 18, 2010). Although the reference to "we" is not unequivocally to CIA and might arguably be taken as a reference to the Government generally, any doubt on this score was eliminated three months later.
In a June 27, 2010, interview with Jake Tapper of ABC News, Panetta said:
[W]e are engaged in the most aggressive operations in the history of the CIA in that part of the world, and the result is that we are disrupting their leadership. We've taken down more than half of their Taliban leadership, of their Al Qaida leadership. We just took down number three in their leadership a few weeks ago.
...
Awlaki is a terrorist and yes, he's a United States citizen, but he is first and foremost a terrorist and we're going to treat him like a terrorist. We don't have an assassination list, but I can tell you this. We have a terrorist list and he's on it.
Tr. of This Week telecast, available at http://abcnews.go.com/ThisWeek/week-transcriptpanetta/story?id=11025299&singlePage=true.
On October 7, 2011, Panetta, then Secretary of Defense, was quoted as saying in a speech to sailors and Marines at the United States Navy's 6th Fleet headquarters in Naples, "Having moved from the CIA to the Pentagon, obviously I have a hell of a lot more weapons available to me in this job than I had at the CIA, although the Predators aren't bad." "U.S.: Defense secretary refers to CIA drone use," Los Angeles Times (Oct. 7, 2011).
On January 29, 2012, the following occurred when Secretary of Defense Panetta was interviewed by Scott Pelley on the CBS television program "60 Minutes":
Asked, "You killed al-Awlaki?" Panetta "nodded affirmatively," as described by the District Court, see Dist. Ct. Op., 915 F.Supp.2d at 530. Then, when asked about identifying for killing a person who has been identified as an enemy combatant, Panetta says, "It's a recommendation we make, it's a recommendation the CIA director makes in my prior role ... the President of the United States has to sign off." Web Extra presentation, available at http:// www.cbsnews.com/video/watch/?id=7396830n, at 0:01, 2:30. CIA's former director has publicly acknowledged CIA's role in the killing of al-Awlaki.
[119] On February 7, 2014, Rep. Mike Rogers, chairman of the House Select Committee on Intelligence, disclosed that his committee has overseen the CIA's targeted-killing strikes since "even before they conducted that first air strike that took Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), http://cbsn.ws/ZgB9R.
On February 11, 2014, the following exchange occurred between Senator Bill Nelson and James R. Clapper, Director of National Intelligence, at a hearing of the Senate Armed Services Committee:
Senator NELSON. It is—you tell me if this is correct—the administration's policy that they are exploring shifting the use of drones, unmanned aerial vehicle strikes, from the CIA to the DOD. Is that an accurate statement?
Mr. CLAPPER. Yes, sir. it is.
Testimony on Current and Future Worldwide Threats to the National Security of the United States, Hearing Before the Senate Armed Services Comm., 113th Cong. 37 (2014), available at http://www.armed-services.senate.gov/imo/media/doc.14-07 - 2-11-14.pdf. It is no secret that CIA has a role in the use of drones.
(b) Loss of Exemption 1. Much of the above discussion concerning loss of Exemption 5 is applicable to loss of Exemption 1. As the District of Columbia Circuit has noted, "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.' " Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). But Gardels made it clear that the justification must be "logical" and "plausible" "in protecting our intelligence sources and methods from foreign discovery." 689 F.2d at 1105.
The District Court noted the Government's contention that " '[i]t is entirely logical and plausible that the legal opinion contains information pertaining to military plans, intelligence activities, sources and methods, and foreign relations.' (Gov't Memo. in Opp'n/Reply 6)." Dist. Ct. Op., 915 F.Supp.2d at 540. But the Court then astutely observed, "[T]hat begs the question. In fact, legal analysis is not an 'intelligence source or method.' " Id.
We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government. We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts. Aware of that possibility, we have redacted, as explained above, the entire section of the OLC–DOD Memorandum that includes any mention of intelligence gathering activities. The only other facts mentioned in the pure legal analysis portions of the OLC-DOD Memorandum—the identification of the country where the drone strike occurred and CIA's role—have both already been disclosed, also as explained above. With respect to disclosure of CIA's role, we can be confident that neither Senator Dianne Feinstein, Chairman of the Senate Select Committee on Intelligence, nor Representative Mike Rogers, Chairman of the House Select Committee on Intelligence, thought they were revealing a secret when they publicly discussed CIA's role in targeted killings by drone strikes.[18]
[120] The three-part test for "official" disclosure, relevant to Exemption 1, which the District Court took from Wilson, 586 F.3d at 186, has been sufficiently satisfied. The legal analysis in the OLC–DOD Memorandum is " 'as specific as the information previously released' " in the DOJ White Paper, it " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure.' " Dist. Ct. Op., 915 F.3d at 536 (quoting Wilson, 586 F.3d at 186). In reaching this conclusion, we do not understand the "matching" aspect of the Wilson test to require absolute identity. Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed.[19]
With the redactions and public disclosures discussed above, it is no longer either "logical" or "plausible" to maintain that disclosure of the legal analysis in the OLC–DOD Memorandum risks disclosing any aspect of "military plans, intelligence activities, sources and methods, and foreign relations." The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. The additional discussion of 18 U.S.C. § 956(a) in the OLC–DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost [121] by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
IV. Legal Analysis in Other Withheld Documents[20]
In addition to seeking at least the legal analysis in the OLC–DOD Memorandum, ACLU also seeks disclosure of the legal analysis in documents numbered 9 and 10 on DOD's unclassified Vaughn index and in other OLC legal memoranda the existence of which ACLU contends have been officially acknowledged in public statements. See Br. for ACLU at 50. ACLU contends that Senator Feinstein said at the confirmation hearing of Brennan to be CIA director that there are eleven such memoranda, see id. at 50 n. 25, of which four were provided to the Senate Select Committee on Intelligence, see id. at 24 & n. 9.
Documents numbered 9 and 10 are DOD legal memoranda, which were made available to this Court ex parte for in camerainspection. As to these documents, we agree with the District Court that the declaration of Richard C. Gross, Brigadier General, United States Army, JA 863, adequately supports the application of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL 238928, at *1. As General Gross pointed out, these brief documents (two and four pages respectively) are informal and predecisional. One does not even identify the sender or the receiver. They mention legal authorities, but in no way resemble the detailed, polished legal analysis in the disclosed DOJ White Paper. At most, they are "part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy." Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 875 (D.C.Cir.2010) (alteration in original) (internal quotation marks omitted). See also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006) (protecting as deliberative "the give-and-take of the consultative process") (internal quotation marks omitted). No waiver of Exemption 5 has occurred with respect to these two documents.
The other OLC legal memoranda have not been submitted to this Court for in camera inspection, and we are therefore unable to adjudicate the waiver issue as to these memoranda, nor determine, if waiver has occurred, what portions of these documents must be redacted. It is possible that waiver of any claimed privileges applies to the legal reasoning in these documents for the same reasons applicable to the OLC–DOD Memorandum. On remand, these memoranda must be produced to the District Court for in camera examination and determination of waiver and appropriate redaction, in light of our rulings with respect to disclosure and redaction of the legal reasoning in the OLC–DOD Memorandum.
V. Glomar and No Number, No List Responses
As set forth above, OLC, DOD, and CIA submitted either Glomar or no [122] number, no list responses to the N.Y. Times and ACLU requests, in addition to Vaughn indices. For clarification, we set forth in the margin a chart showing the revised responses of the three agencies.[21] An agency may withhold information on the number of responsive documents and a description of their contents if those facts are protected from disclosure by a FOIA exemption. See Wilner, 592 F.3d at 67–69; Hayden v. National Security Agency,608 F.2d 1381, 1384 (D.C.Cir.1979). However, we agree with the D.C. Circuit that "[s]uch a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit." ACLU, 710 F.3d at 433.
The Government's core argument to justify the Glomar and no number, no list responses, as it was with the effort to withhold the OLC–DOD Memorandum, is that identification of any document that provides legal advice to one or more agencies on the legality of targeted killings "would tend to disclose the identity of the agency or agencies that use targeted lethal force against certain terrorists who are U.S. citizens...." Br. for Appellees at 37. If one of those agencies is CIA, the Government's argument continues, disclosure of any information in a Vaughn index that "would tend to disclose the identity" of that agency must be protected because, the Government claims, "[T]he government has never disclosed (with the exception of the Bin Laden operation) whether the CIA has an operational role in the use of targeted lethal force or is authorized to use such force." Id. at 38.
As was true of waiver of privileges that might originally have protected the legal reasoning in the OLC–DOD Memorandum, the statements of Panetta when he was Director of CIA and later Secretary of Defense, set forth above, have already publicly identified CIA as an agency that had an operational role in targeted drone killings.[22] With CIA identified, the Appellees' main argument for the use ofGlomar and no number, no list responses evaporates. The Vaughn index submitted by OLC in camera must be disclosed, and DOD and CIA must submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.
As was also true of the OLC–DOD Memorandum, however, the requirement of disclosing the agencies' Vaughn indices does not necessarily mean that either the number or the listing of all documents on those indices must be disclosed. The Appellees argue persuasively that with respect to documents concerning a contemplated military operation, disclosure of the number of such documents must remain secret because a large number might alert [123] the enemy to the need to increase efforts to defend against attacks or to avoid detection and a small number might encourage a lessening of such efforts. Accordingly, all listings after number 271 on OLC'sVaughn index will remain secret. See Wilner, 592 F.3d at 70 (upholding Glomar response as to identification of documents that would reveal "details of [a] program's operations and scope"). The titles and descriptions of listings 67, 72, 119, 250, 262–65, 271, and all listings after 271; the titles of listings 8, 57–66, 68–71, 73, 76–80, 83, 88–91, 92, 93, 95–100, 102–104, 108, 117, 120, 123–28, 130, and 132; and the descriptions of listing numbers 1–4, 6, 69, 72, 80–82, 87, 92, 103–04, 244–49, and 256 reveal information entitled to be protected. Listing numbers 10–49, 51–56, 84–86, 94, 101, 105–09, 111–12, 114–15, 251, 255, 257–61, and 266–67 describe email chains (or copies of chains). Because the Plaintiffs informed the District Court that they were not seeking these items, see Dist. Ct. Op.,915 F.Supp.2d at 545, these listings need not be disclosed.
No reason appears why the descriptions of the remaining listed documents need to be kept secret. Listing number 5 is the OLC–DOD Memorandum; listing numbers 7 (except for the identity of the sending agency), 9, 50, 250, 262–64, 265 (except for the identity of the sending agency), and 269–71 describe documents and attorney notes concerning legal advice; listing numbers 57–66, 68, 70–71, 73–83, 88–91, 93, 95 (except for the identity of the sending agency), 96–100, 102–04, 110, 113, 116 (except for the identity of the sending agency), 117 (except for the identity of the sending agency), 118, 120–22, and 144–45 are described as including factual information concerning al-Awlaki; listing numbers 123–30 are described as unclassified open source materials; listing numbers 131–43 and 148–237 are described as drafts of the OLC–DOD Memorandum; listing numbers 238–43 are described as drafts of other documents; listing numbers 146–47 are described as drafts of Document 86A, a listing that does not appear on the OLC's Vaughn index; and listing numbers 252–54 and 268 are described as including [redacted][23].
Some, perhaps all, of the information in many of these documents might be protected as classified intelligence information or predecisional. If the Plaintiffs challenge the applicability of a cited exemption, the District Court, after in camera inspection, will be able to determine which of these documents need to be withheld and which portions of these documents need to be redacted as subject to one or more exemptions that have not been waived. At this stage, we decide only that the number, title, and description of all documents listed on OLC's classified Vaughn index must be disclosed, with the exceptions set forth above on page 122–23.
Unlike OLC, DOD and CIA did not provide this Court with classified Vaughn indices, and we are unable to distinguish among listed document numbers, which titles or descriptions merit secrecy. We will therefore direct that, upon remand, DOD and CIA will provide the District Court with classified Vaughn indices listing documents responsive to the Plaintiffs' requests. From these indices, the District Court, with the guidance provided by this opinion, should have little difficulty, after examining whatever further affidavits DOD and CIA care to submit to claim protection of specific listings, to determine which listings on these indices may be disclosed. See ACLU, 710 F.3d at 432 (prescribing a similar procedure after rejecting a Glomar response).
VI. Adequacy of OIP's Search
Finally, ACLU argues that OIP did not make an adequate search because it did not disclose thirty e-mail chains with other DOJ offices that were found during OLC's search for responsive [124] records. See Br. for ACLU at 60. However, as this Court has recognized, a search is not inadequate merely because it does not identify all responsive records. See Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir.1999). The adequacy of a search is not measured by its results, but rather by its method. See Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). To show that a search is adequate, the agency affidavit "must be relatively detailed and nonconclusory, and submitted in good faith." Grand Central Partnership, 166 F.3d at 489 (internal quotation marks omitted). The affidavit submitted by an OIP official, JA 412–419 ¶¶ 7–34, easily meets these requirements, and the November 3, 2011, cutoff date was reasonable as the date on which the search was commenced. See Edmonds Institute v. U.S. Dep't of Interior,383 F.Supp.2d 105, 110–11 (D.D.C.2005).
Conclusion
For the reasons stated above, we conclude that:
(1) a redacted version of the OLC–DOD Memorandum (attached as Appendix A to this opinion) must be disclosed;
(2) a redacted version of the classified Vaughn index submitted by OLC must be disclosed, including only
(a) the titles and descriptions of listings 5, 7 (except for the identity of the sending agency in the description), 9, 50, 74, 75, 110, 113, 121, 122, 129, 131, 133–243, 269, and 270, and
(b) the descriptions of listings 57, 58–61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 87, 88, 89–91, 92, 93, 95 (except for the identity of the sending agency in the description), 96, 97, 98, 99, 100, 102, 103, 104, 116 (except for the identity of the sending agency in the description), 117 (except for the identity of the sending agency in the description), 118, 120, 123–28, 130, and 132;
(3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction;
(4) the Glomar and "no number, no list" responses are insufficiently justified;
(5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction; and
(6) the OIP search was sufficient.
We therefore affirm in part, reverse in part, and remand.[24]
Appendix A
OLC–DOD Memorandum after appropriate redactions and deletion of classification codes (redactions in the OLC–DOD Memorandum are indicated by white spaces)
U.S. Department of Justice
Office of the General Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
July 16, 2010
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi
II.
We begin our legal analysis with a consideration of section 1119 of title 18, entitled [125] "Foreign murder of United States nationals." Subsection 1119(b) provides that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." 18 U.S.C. § 1119(b).[6] In light of the nature of the contemplated operations described above, and the fact that their target would be a "national of the United States" who is outside the United States, we must examine whether section 1119(b) would prohibit those operations. We first explain, in this part, the scope of section 1119 and why it must be construed to incorporate the public authority justification, which can render lethal action carried out by a governmental official lawful in some circumstances. We next explain in part III–A why that public authority justification would apply to the contemplated DoD operation. Finally, we explain in part III–I3 why that justification would apply to the contemplated CIA operation. As to each agency, we focus on the particular circumstances in which it would carry out the operation.
A.
Although section 1119(b) refers only to the "punish[ments]" provided under sections 1111, 1112, and 1113, courts have construedsection 1119(b) to incorporate the substantive elements of those cross-referenced provisions of title 18. See, e.g., United States v. Wharton, 320 F.3d 526, 533 (5th Cir.2003); United States v. White, 51 F.Supp.2d 1008, 1013–14 (E.D.Ca.1997). Section 1111 of title 18 sets forth criminal penalties for "murder," and provides that murder is the unlawful killing of a human being with malice aforethought.Id. § 1111(a). Section 1112 similarly provides criminal sanctions for "manslaughter," and states that "[m]anslaughter is the unlawful killing of a human being without malice." Id. § 1112. Section 1113 provides criminal penalties for "attempts to commit murder or manslaughter." Id. § 1113. It is therefore clear that section 1119(b) bars only "unlawful killings."[7]
This limitation on section 1119(b)'s scope is significant, as the legislative history to the underlying offenses that the section incorporates makes clear. The provisions section 1119(b) incorporates derive from sections 273 and 274 of the Act of March 4, 1909, ch. 321, 35 Stat. 1088, 1143. The 1909 Act codified and amended the penal laws of the United States. Section 273 of the enactment defined murder as "the unlawful killing of a human being with malice [126] aforethought," and section 274 defined manslaughter as "the unlawful killing of a human being without malice." 35 Stat. 1143.[8] In 1948, Congress codified the federal murder and manslaughter provisions at sections 1111 and 1112 of title 18 and retained the definitions of murder and manslaughter in nearly identical form, seeAct of June 25, 1948, ch. 645, 62 Stat. 683, 756, including the references to "unlawful killing" that remain in the statutes today—references that track similar formulations in some state murder statutes.[9]
As this legislative history indicates, guidance as to the meaning of what constitutes an "unlawful killing"-in sections 1111 and 1112—and thus for purposes of section 1119(b)—can be found in the historical understandings of murder and manslaughter. That history shows that states have long recognized justifications and excuses to statutes criminalizing "unlawful" killings.[10] [127] One state court, for example, in construing that state's murder statute explained that "the word 'unlawful' is a term of art" that "connotes a homicide with the absence of factors of excuse or justification," People v. Frye, 7 Cal.App.4th 1148, 10 Cal.Rptr.2d 217, 221 (1992). That court further explained that the factors of excuse or justification in question include those that have traditionally been recognized, id. at 221 n. 2. Other authorities support the same conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)(requirement of "unlawful" killing in Maine murder statute meant that killing was "neither justifiable nor excusable"); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982) ("Innocent homicide is of two kinds, (1) justifiable and (2) excusable.").[11]Accordingly, section 1119 does not proscribe killings covered by a justification traditionally recognized, such as under the common law or state and federal murder statutes. See White, 51 F.Supp.2d at 1013 ("Congress did not intend [section 1119] to criminalize justifiable or excusable killings.").
B.
Here, we focus on the potential application of one such recognized justification—the justification of "public authority"—to the contemplated DoD and CIA operations. Before examining whether, on these facts, the public authority justification would apply to those operations, we first explain why section 1119(b) incorporates that particular justification.
The public authority justification, generally understood, is well-accepted, and it is clear it may be available even in cases where the particular criminal statute at issue does not expressly refer to a public authority justification.[12] Prosecutions where such a "public authority" justification is invoked are understandably rare, [128] see American Law Institute, Model Penal Code and Commentaries § 3.03 Comment 1, at 24 (1985); cf. VISA Fraud Investigation, 8 Op. O.L.C. 284, 285 n. 2, 286 (1984), and thus there is little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials.[13] Nonetheless, discussions in the leading treatises and in the Model Penal Code demonstrate its legitimacy. See 2 Wayne R. LaFave, Substantive Criminal Law § 10.2(b), at 135 (2d ed.2003); Perkins & Boyce, Criminal Law at 1093 ("Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority."); see also Model Penal Code § 3.03(I)(a), (d), (e), at 22–23 (proposing codification of justification where conduct is "required or authorized by," inter alia, "the law defining the duties or functions of a public officer ..."; "the law governing the armed services or the lawful conduct of war"; or "any other provision of law imposing a public duty"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(1) ("Conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law."). And this Office has invoked analogous rationales in several instances in which it has analyzed whether Congress intended a particular criminal statute to prohibit specific conduct that otherwise falls within a government agency's authorities.[14]
The public authority justification does not excuse all conduct of public officials from all criminal prohibitions. The legislature may design some criminal prohibitions to place bounds on the kinds of governmental conduct that can be authorized by the Executive. Or, the legislature may enact a criminal prohibition in order to delimit the scope of the conduct that the legislature has otherwise authorized the Executive to undertake pursuant to another statute.[15] But the recognition that a [129] federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express. Cf, Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading "would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm").[16]
Here, we consider a federal murder statute, but there is no general bar to applying the public authority justification to such a criminal prohibition. For example, with respect to prohibitions on the unlawful use of deadly force, the Model Penal Code recommended that legislatures should make the public authority (or "public duty") justification available, though only where the use of such force is covered by a more particular justification (such as defense of others or the use of deadly force by law enforcement), where the use of such force "is otherwise expressly authorized by law," or where such force "occurs in the lawful conduct of war." Model Penal Code § 3.03(2)(b), at 22; see also id. Comment 3, at 26. Some states proceeded to adopt the Model Penal Code recommendation.[17] Other states, although not adopting that precise formulation, have enacted specific statutes dealing with the question of when public officials are justified in using-deadly force, which often prescribe that an officer acting in the performance of his official duties must reasonably have believed that such force was "necessary."[18] Other states have more broadly provided that the public authority defense is available where the government officer engages in a "reasonable exercise" of his official functions.[19] There is, however, no federal [130] statute that is analogous, and neither section 1119 nor any of the incorporated title 18 provisions setting forth the substantive elements of the section 1119(b) offense, provide any express guidance as to the existence or scope of this justification.
Against this background, we believe the touchstone for the analysis of whether section 1119 incorporates not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this criminal statute. We conclude that the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. There are no indications that Congress had a contrary intention. Nothing in the text or legislative history of sections 1111–1113 of title 18 suggests that Congress intended to exclude the established public authority justification from those that Congress otherwise must be understood to have imported through the use of the modifier "unlawful" in those statutes (which, as we explain above, establish the substantive scope of section 1119(b)).[20] Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability under that statute of this traditional justification for killings. On the contrary, the relevant legislative materials indicate that in enacting section 1119 Congress was merely closing a gap in a field dealing with entirely different kinds of conduct than that at issue here.
The origin of section 1119 was a bill entitled the "Murder of United States Nationals Act of 1991," which Senator Thurmond introduced during the 102d Congress in response to the murder of an American in South Korea who had been teaching at a private school there.See 137 Cong. Rec. 8675–77 (1991) (statement of Sen, Thurmond), Shortly after the murder, another American teacher at the school accused a former colleague (who was also a U.S. citizen) of having committed the murder, and also confessed to helping the former colleague cover up the crime. The teacher who confessed was convicted in a South Korean court of destroying evidence and aiding the escape of a criminal suspect, but the individual she accused of murder had returned to the United States before the confession. Id. at 8675 The United States did not have an extradition treaty with South Korea that would have facilitated prosecution of the alleged murderer and therefore, under then-existing law, "the Federal Government ho[d] no jurisdiction to prosecute a person residing in the United States who ha[d] murdered an American abroad except in limited circumstances, such as a terrorist murder or the murder of a Federal official." Id.
To close the "loophole under Federal law which permits persons who murder Americans in certain foreign countries to go punished," id,the Thurmond bill would have added a new section to title 18 providing that "[w]hoever kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under[131] sections 1111, 1112, and 1113 of this title." S. 861, 102d Cong. (1991) (incorporated in S. 1241, 102d Cong. §§ 3201–03 (1991)). The proposal also contained a separate provision amending the procedures for extradition "to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who commit violent crimes against U.S. nationals." 137 Cong. Rec. 8676 (1991) (statement of Sen. Thurmond) (discussing S. 861, 102d Cong., § 3).[21] The Thurmond proposal was incorporated into an omnibus crime bill that both the House and Senate passed, but that bill did not become law.
In the 103d Congress, a revised version of the Thurmond bill was included as part of the Violent Crime Control and Law Enforcement Act of 1994. H.R. 3355 § 60009, 103d Cong. (1994). The new legislation differed from the previous bill in two key respects. First, it prescribed criminal jurisdiction only where both the perpetrator and the victim were U.S. nationals, whereas the original Thurmond bill would have extended jurisdiction to all instances in which the victim was a U.S. national (based on so-called "passive personality" jurisdiction[22]). Second, the revised legislation did not include the separate provision from the earlier Thurmond legislation that would have amended the procedures for extradition. Congress enacted the revised legislation in 1994 as part of Public Law No. 103–322, and it was codified as section 1119 of title 18. See Pub.L. No. 103–322, § 60009, 108 Stat. 1796, 1972 (1994).
Thus, section 1119 was designed to close a jurisdictional loophole—exposed by a murder that had been committed abroad by a private individual—to ensure the possibility of prosecuting U.S. nationals who murdered other U.S. nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator's appearance at trial. This loophole had nothing to do with the conduct of an authorized military operation by U.S. armed forces or the sort of CIA counterterrorism operation contemplated here. Indeed, prior to the enactment of section 1119, the only federal statute expressly making it a crime to kill U.S. nationals abroad, at least outside the special and maritime jurisdiction of the United States, reflected what appears to have been a particular concern with protection of Americans from terrorist attacks' See 18 U.S.C. § 2332(a), (d) (criminalizing unlawful killings of U.S. nationals abroad where the Attorney General or his subordinate certifies that the "offense was intended to coerce, intimidate, or retaliate against a government or a civilian population").[23] It therefore would be anomalous [132] to now read section 1119's closing of a limited jurisdictional gap as having been intended to jettison important applications of the established public authority justification, particularly in light of the statute's incorporation of substantive offenses codified in statutory provisions that from all indications were intended to incorporate recognized justifications and excuses.
It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi's citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 1119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to "unlawful" killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not "unlawful" because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.
III.
Given that section 1119 incorporates the public authority justification, we must next analyze whether the contemplated Doll and CIA operations would be encompassed by that justification. In particular, we must analyze whether that justification would apply even though the target of the contemplated operations is a United States citizen. We conclude that it would—a conclusion that depends in part on our determination that each operation would accord with any potential constitutional protections of the United States citizen in these circumstances (see infra part VI). In reaching this conclusion, we do not address other cases or circumstances, involving different facts. Instead, we emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.[24]
A.
We begin with the contemplated DoD operation. We need not attempt here to identify the minimum conditions that might establish a public authority justification for that operation. In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the "lawful conduct of war"—a well-established variant of the public authority justification.[25]
[133] As one authority has explained by example, "if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder," whereas, for example, if that soldier intentionally kills a prisoner of war—a violation of the laws of war—"then he commits murder." 2 LaFave, Substantive Criminal Law § 10.2(c), at 136; see also State v. Gut, 13 Minn. 341, 357 (1868)("That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable; but to kill such an enemy after he laid down his arms, and especially when he is confined in prison, is murder."); Perkins & Boyce, Criminal Law at 1093 ("Even in time of war an alien enemy may not be killed needlessly after he has been disarmed and securely imprisoned").[26] Moreover, without invoking the public authority justification by terms, our Office has relied on the same notion in an opinion addressing the intended scope of a federal criminal statute that concerned the use of possibly lethal force. See United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) ("Shoot Down Opinion ") (concluding that the Aircraft Sabotage Act of 1984,18 U.S.C. § 32(b)(2), which prohibits the willful destruction of a civil aircraft and otherwise applies to U.S. government conduct, should not be construed to have "the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict").
In applying this variant of the public authority justification to the contemplated DoD operation, we note as an initial matter that DoD would undertake the operation pursuant to Executive war pOWers that Congress has expressly authorized. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [134] ). By authorizing the use of force against "organizations" that planned, authorized, and committed the September 11th attacks, Congress clearly authorized the President's use of "necessary and appropriate" force against al-Qaida forces, because al-Qaida carried out the September 11th attacks. See Authorization for Use of Military Force ("AUMF"), Pub.L. No. 107–40, 115 Stat. 224, § 2(a) (2001) (providing that the President may "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons,").[27] And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n. 5, the AUMF applies with respect to forces "associated with" al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are "associated with" al Qaida forces for purposes of the AUMF. On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority.
Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a "continued and imminent threat" of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.[28]
[135] Al–Aulaqi is a United States citizen, however, and so we must also consider whether his citizenship precludes the AUMF from serving as the source of lawful authority for the contemplated DoD operation. There is no precedent directly addressing the question in circumstances such as those present here; but the Supreme Court has recognized that, because military detention of enemy forces is "by 'universal agreement and practice,' [an] 'important incident [ ] of war,' " Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30, 63 S.Ct. 2, 87 L.Ed. 3 (1942)), the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. See id. at 517–19, 124 S.Ct. 2633 (plurality opinion).[29] In [136] addition, the Court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen. Id. at 519–24, 124 S.Ct. 2633; see also Quirin,317 U.S. at 37–38, 63 S.Ct. 2 ("[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts," may be treated as "enemy belligerents" under the law of war). Furthermore, lower federal courts have relied upon Hamdi to conclude that the AUMF authorizes DoD to detain individuals who are part of al-Qaida even if they are apprehended and transferred to U.S. custody while not on a traditional battlefield. See, e.g., Bensayah v. Obama, 610 F.3d 718, 720–21, 724–25, 727 (D.C.Cir. June 28, 2010) (concluding that the Department of Defense could detain an individual turned over to the U.S. in Bosnia if it demonstrates he was part of al-Qaida); Al–Adahi v. Obama, 613 F.3d 1102 (D.C.Cir.2010) (DoD has authority under AUMF to detain individual apprehended by Pakistani authorities in Pakistan and then transferred to U.S.); Anam v. Obama, 696 F.Supp.2d 1 (D.D.C.2010) (same); Razak Ali v. Obama, 2009 WL 4030864 (D.D.C.2009)(same); Sliti v. Bush, 592 F.Supp.2d 46 (D.D.C.2008) (same).
In light of these precedents, we believe the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization. The use of lethal force against such enemy forces, like military detention, is an " 'important incident of war,' " Hamdi, 542 U.S. at 518, 124 S.Ct. 2633(plurality opinion) (quotation omitted). See, e.g., General Orders No. 100: Instructions for the Government of Armies of the Untied States in the Field 15 (Apr. 24, 1863) (the "Lieber Code") ("[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies"); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug, 1999 and Relating to the Protection of Victims of Non–International Armed Conflicts (Additional Protocol II ) § 4789 (1987); Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 94 (2004) ( "Conduct of Hostilities ") ("When a person takes up arms or merely dons a uniform as a member of the armed forces, he automatically exposes himself to enemy attack."). And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of "necessary and appropriate" lethal force against a U.S. citizen who has joined such an armed force. Moreover, as we explain further in Part VI, DoD would conduct the operation in a manner that would not violate any possible constitutional protections that al-Aulaqi enjoys by reason of his citizenship. Accordingly, we do not believe al-Aulaqi's citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF otherwise authorizes.
In determining whether the contemplated DoD operation would constitute the "lawful conduct of war," LaFave, Substantive Criminal Law§ 10.2(c), at 136, we next consider whether that operation would comply with the international law rules to which it would be subject—a question that also bears on whether the operation would be authorized by the AUMF. See Response for Petition for Rehearing and Rehearing En Banc, Al Bihani v. Obama, No. 09–5051 at 7 (D.C.Cir. May [137] 13, 2010) (AUMF "should be construed, if possible, as consistent with international law") (citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains")); see also F. Hoffman–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (customary international law is "law that (we must assume) Congress ordinarily seeks to follow"). Based on the combination of facts presented to us, we conclude that DoD would carry out-its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict.
In Hamdan v. Rumsfeld, the Supreme Court held that the United States is engaged in a non-international armed conflict with al-Qaida.548 U.S. 557, 628–31, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In so holding, the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state armed group that are confined to the territory of the state itself; it held instead that a conflict between a transnational non-state actor and a nation, occurring outside that nation's territory, is an armed conflict "not of an international character" (quoting Common Article 3 of the Geneva Conventions) because it is not a "clash between nations." Id. at 630, 126 S.Ct. 2749.
Here, unlike in Hamdan, the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat between the United States and al-Qaida. That does not affect our conclusion, however, that the combination of facts present here would make the DoD operation in Yemen part of the non-international armed conflict with al-Qaida.[30] To be sure, Hamdan did not directly address the geographic scope of the noninternational armed conflict between the United States and al-Qaida that the Court recognized, other than to implicitly hold that it extended to Afghanistan, where Hamdan was apprehended. See 548 U.S. at 566, 126 S.Ct. 2749; see also id at 641–42, 126 S.Ct. 2749 (Kennedy, J., concurring in part) (referring to Common Article 3 as "applicable to our Nation's armed conflict with al Qaeda in Afghanistan"). The Court did, however, specifically reject the argument that non-international armed conflicts are necessarily limited to internal conflicts. The Common Article 3 term "conflict not of an international character," the Court explained, bears its "literal meaning"—namely, that it is a conflict that "does not involve a clash between nations." Id. at 630, 126 S.Ct. 2749 (majority opinion). The Court referenced the statement in the 1949 ICRC Commentary on the Additional Protocols to the Geneva Conventions that a non-international armed conflict " 'is distinct from an international armed conflict because of the legal status of the entities opposing each other,' " id. at 631, 126 S.Ct. 2749 (emphasis added). The Court explained that this interpretation—that the nature of the conflict depends at least in part on the status of the parties, rather than simply on the locations in which they fight—in turn accords with the [138] view expressed in the commentaries to the Geneva Conventions that "the scope of application" of Common Article 3, which establishes basic protections that govern conflicts not of an international character, "must be as wide as possible." Id.[31]
Invoking the principle that for purposes of international law an armed conflict generally exists only when there is "protracted armed violence between governmental authorities and armed groups," Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,Prosecutor v. Tadic, Case No. IT–94–1AR72, ¶ 70 (ICTY App. Chamber Oct. 2, 1995) ("Tadic Jurisdictional Decision "), some commentators have suggested that the conflict between the United States and al-Qaida cannot extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O'Connell, Combatants and the Combat Zone, 43 U. Rich. L.Rev. 845, 857–59 (2009); see also Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions ¶ 54, at 18 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) (acknowledging that a non-international armed conflict can be transnational and "often does" exist "across State borders," but explaining that the duration and intensity of attacks in a particular nation is also among the "cumulative factors that must be considered for the objective existence of an armed conflict"). There is little judicial or other authoritative, precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this issue, we must look to principles and statements from analogous contexts, recognizing that they were articulated without consideration of the particular factual circumstances of the sort of conflict at issue here.
In looking for such guidance, we have not come across any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location can never be part of the original armed conflict—and thus subject to the laws of war governing that conflict—unless and until the hostilities become sufficiently intensive and protracted within that new location. That does not appear to be the rule, or the historical practice, for instance,[139] in a traditional international conflict. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia. Questions of International Law (address before the Harnrnarskjold Forum of the Association of the Bar of the City of New York, May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28–30 (Richard A. Falk, ed.1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Nor do we see any obvious reason why that more categorical, nation-specific rule should govern in analogous circumstances in this sort of non-international armed conflict.[32] Rather, we think the determination of whether a particular operation would be part of an ongoing armed conflict for purposes of international law requires consideration of the particular facts and circumstances present in each case. Such an inquiry may be particularly appropriate in a conflict of the sort here, given that the parties to it include transnational non-state organizations that are dispersed and that thus may have no single site serving as their base of operations.[33]
We also find some support for this view in an argument the United States made to the International Criminal Tribunal for Yugoslavia (ICTY) in 1995. To be sure, the United States was there confronting a question, and a conflict, quite distinct from those we address here. Nonetheless, in that case the United States argued that in determining which body of humanitarian law applies in a particular conflict, "the conflict must be considered as a whole," and that "it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically, in an attempt to exclude the application of [the relevant] rules." Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. Dusan Tadic, Case No. IT–94–1AR72 (ICTY App. Chamber) at 27–28 (July 1995) ("U.S. Tadic Submission"). Likewise, the court in Tadic—although not addressing a conflict that was transnational in the way the U.S. conflict with al-Qaida is—also concluded that although "the definition of 'armed conflict' varies depending on whether the hostilities are international or internal ... the scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities." Tadic Jurisdictional Decision ¶ 67 (emphasis added); see also International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 18 (2003) (asserting that in order to assess whether an armed conflict exists it is necessary to determine "whether the totality of the violence taking place between states and transnational networks can be deemed to be armed conflict [140] in the legal sense"). Although the basic approach that the United States proposed in Tadic, and that the ICTY may be understood to have endorsed, was advanced without the current conflict between the U.S. and al-Qaida in view, that approach reflected a concern with ensuring that the laws of war, and the limitations on the use of force they establish, should be given an appropriate application.[34]And that same consideration, reflected in Hamdan itself; see supra at 24, suggests a further reason for skepticism about an approach that would categorically deny that an operation is part of an armed conflict absent a specified level and intensity of hostilities in the particular location where it occurs.
For present purposes, in applying the more context-specific approach to determining whether an operation would take place within the scope of a particular armed conflict, it is sufficient that the facts as they have been represented to us here, in combination, support the judgment that DoD's operation in Yemen would be conducted as part of the non-international armed conflict between the United States and al-Qaida. Specifically, DoD proposes to target a leader of AQAP, an organized enemy force[35] that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against the United States as part of the same comprehensive armed conflict, in league with the principal enemy. See supra at 9–10 & n. 5. Moreover, DoD would conduct the operation in Yemen, where, according to-the facts related to us, AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States.Finally, the targeted individual himself, on behalf of that force, is continuously planning attacks from that Yemeni base of operations against the United States, as the conflict with al-Qaida continues. See supra at 7–9. Taken together, these facts support the conclusion that the DoD operation would be part of the non-international armed conflict the Court recognized in Hamdan.[36]
[141] There remains the question whether DoD would conduct its operation in accord with the rules governing targeting in a non-international armed conflict—namely, international humanitarian law, commonly known as the laws of war. See Dinstein, Conduct of Hostilities at 17 (international humanitarian law "takes a middle road, allowing belligerent States much leeway (in keeping with the demands of military necessity) and yet circumscribing their freedom of action (in the name of humanitarianism")).[37] The 1949 Geneva Conventions [142] to which the United States is a party do not themselves directly impose extensive restrictions on the conduct of a non-international armed conflict—with the principal exception of Common Article 3, see Hamdan, 548 U.S. at 630–31, 126 S.Ct. 2749. But the norms specifically described in those treaties "are not exclusive, and the laws and customs of war also impose limitations on the conduct of participants in non-international armed conflict." U.S. Tadic Submission at 33 n. 53; see also, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Preamble ("Hague Convention (IV)"), 36 Stat. 2277, 2280 (in cases "not included" under the treaty, "the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience").
In particular, the "fundamental rules" and "intransgressible principles of international customary law," Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons IT 79, 1996 I.C.J. 226, 257 ("Nuclear Weapons Advisory Opinion"), which apply to all armed conflicts, include the "four fundamental principles that are inherent to all targeting decisions"—namely, military necessity, humanity (the avoidance of unnecessary suffering), proportionality, and distinction. United States Air Force, Targeting, Air Force Doctrine Document 2–1.9, at 88 (June 8, 2006); see also generally id. at 88–92; Dinstein, Conduct of Hostilities at 16–20, 115–16, 119–23. Such fundamental rules also include those listed in the annex to the Fourth Hague Convention, see Nuclear Weapons Advisory Opinion ¶ 80, at 258, article 23 of which makes it "especially forbidden" to, inter alia, kill or wound treacherously, refuse. surrender, declare a denial of quarter, or cause unnecessary suffering, 36 Stat. at 2301–02.
DoD represents that it would conduct its operation against al-Aulaqi in compliance with these fundamental law-of-war norms. SeeChairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 14.a, at 1 (Apr. 30, 2010) ("It is DOD policy that ... [m]embers of the DOD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."). In particular, the targeted nature of the operation would help to ensure that it would comply with the principle of distinction, and DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties will be disproportionate or that such a strike will in any other respect violate the laws of war. See DoD May 18 Memorandum for OLC, at 1 ("Any official in the chain of command has the authority and duty to abort" a strike "if he or she concludes that civilian casualties will be disproportionate or that such a strike will otherwise violate the laws of war.").
Moreover, although DoD would specifically target al-Aularli, and would do so without advance warning, such characteristics of the contemplated operation would not violate the laws of war and, in particular, would not cause the operation to violate the prohibitions on treachery and perfidy—which are addressed to conduct involving a breach of confidence by the assailant. See, e.g., Hague Convention IV, Annex, art. 23(b), 36 Stat. at 2301–02 ("[I]t is especially forbidden ... to kill or wound treacherously individuals belonging to the hostile nation or army"); cf. also Protocol Additional to the Geneva [143] Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 37(1) (prohibiting the killing, injuring or capture of an adversary in an international armed conflict by resort to acts "inviting the confidence of [the] adversary ... with intent to betray that confidence," including feigning a desire to negotiate under truce or flag of surrender; feigning incapacitation; and feigning noncombatant status).[38] Those prohibitions do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers, see U.S. Army Field Manual 27—10, 31 (1956) (article 23(b) of the Annex to the Hague Convention IV does not "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or else-where"), and we are not aware of any other law-of-war grounds precluding the use of such tactics. See Dinstein, Conduct of Hostilities at 94–95, 199; Abraham D. Sofaer, Terrorism, The Law, and the National Defense, 126 Mil. L.Rev. 89, 120–21 (1989).[39] Relatedly, "there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—as long as they are employed in conformity with applicable laws of war." Koh, The Obama Administration and International Law. DOD also informs us that if al-Aulaqi offers to surrender, DoD would accept such an offer.[40]
In light of all these circumstances, we believe DoD's contemplated operation against al-Aulaqi would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress's authorization to use "necessary and appropriate force" against al-Qaida. In consequence, the operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification. Accordingly, the contemplated attack, if conducted by DoD in the mariner described, would not result in an "unlawful" killing and thus would not violate section 1119(b).
[144] B.
We next consider whether the CIA's contemplated operation against al-Aulaqi in Yemen would be covered by the public authority justification. We conclude that it would be; and thus that operation, too, would not result in an "unlawful" killing prohibited by section 1119. As with our analysis of the contemplated DoD operation, we rely on the sufficiency of the particular factual circumstances of the CIA operation as they have been represented to us, without determining that the presence of those specific circumstances would be necessary to the conclusion we reach.
We explain in Part VI why the Constitution would impose no bar to the CIA's contemplated operation under these circumstances, based on the facts as they have been represented to us. There thus remains the question whether that operation would violate any statutory restrictions, which in turn requires us to consider whether 18 U.S.C. § 1119 would apply to the contemplated CIA operation.[42] Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification thatsection 1119 incorporates—and that would prevent the contemplated DoD operation from violating section 1119(b)—would also encompass the contemplated CIA operation.[43]
Specifically, we understand that the CIA, like DoD, would carry out the attack against an operational leader of an enemiforce, as Dart of the United States's ongoing non-international armed conflict with al-Qaida.
[redacted] the CIA—would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict, and in circumstances See supra at 10–11.[44]
[145] Nothing in the text or legislative history of section 1119 indicates that Congress intended to criminalize such an operation. Section 1119 incorporates the traditional public authority justification, and did not impose any special limitation on the scope of that justification. As we have explained, supra at 17–19, the legislative history of that criminal prohibition revealed Congress's intent to close a jurisdictional loophole that would have hindered prosecutions of murders carried out by private persons abroad. It offers no indication that Congress intended to prohibit the targeting of an enemy leader during an armed conflict in a manner that would accord with the laws of war when performed by a duly authorized government agency. Nor does it indicate that Congress, in closing the identified loophole, meant to place a limitation on the CIA that would not apply to DoD.
Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted][45]
[146] See also infra at 38–41 (explaining that the CIA operation under the circumstances described to us would comply with constitutional due process and the Fourth Amendment's "reasonableness" test for the use of deadly force).
Accordingly, we conclude that, just as the combination of circumstances present here supports the judgment that the public authority justification would apply to the contemplated operation by the armed forces, the combination of circumstances also supports the judgment that the CIA's operation, too, would be encompassed by that justification. The CIA's contemplated operation, therefore, would not result in an "unlawful" killing under section 1111 and thus would not violate section 1119.
IV.
For similar reasons, we conclude that the contemplated DoD and CIA operations would not violate another federal criminal statute dealing with "murder" abroad, 18 U.S.C. § 956(a). That law makes it a crime to conspire within the jurisdiction of the United States "to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States" if any conspirator acts within the United States to effect any object of the conspiracy.[redacted][46]
Like section 1119(b), section 956(a) incorporates by reference the understanding of "murder" in section 1111 of title 18. For reasons we explained earlier in this opinion, see supra at 12–14, section 956(a) thus incorporates the traditional public authority justification thatsection 1111 recognizes. As we have further explained both the CIA and DoD operations, on the facts as they have been represented to us, would be covered by that justification. Nor do we believe that Congress's reference in section 956(a) to "the special maritime and territorial jurisdiction of the United States" reflects an intent to transform such a killing into a "murder" in these circumstances—notwithstanding that our analysis of the applicability of the public authority justification is limited for present purposes to operations conducted abroad. A contrary conclusion would require attributing to Congress the surprising intention of criminalizing through section 956(a) an otherwise lawful killing of an enemy leader that another statute specifically prohibiting the murder of U.S. nationals abroad does not prohibit.
The legislative history of section 956(a) further confirms our conclusion that that statute should not be so construed. When [147] the provision was first introduced in the Senate in 1995, its sponsors addressed and rejected the notion that the conspiracy prohibited by that section would apply to "duly authorized" actions undertaken on behalf of the federal government. Senator Biden introduced the provision at the behest of the President, as part of a larger package of anti-terrorism legislation. See 141 Cong. Rec. 4491 (1995) (statement of Sen. Biden). He explained that the provision was designed to "MO a void in the law," because section 956 at the time prohibited only U.S.-based conspiracies to commit certain property crimes abroad, and did not address crimes against persons. Id. at 4506. The amendment was designed to cover an offense "committed by terrorists" and was "intended to ensure that the government is able to punish those persons who use the United States as a base in which to plot such a crime to be carried out outside the jurisdiction of the United States." Id. Notably, the sponsors of the new legislation deliberately declined to place the new offense either within chapter 19 of title 18, which is devoted to "Conspiracy," or within chapter 51, which collects "Homicide" offenses (including those established in sections 1111, 1112, 1113 and 1119). Instead, as Senator Biden explained, "[s]ection 956 is contained in chapter 45 of title 18, United States Code, relating to interference with the foreign relations of the United States," and thus was intended to "cover [ ] those individuals who, without appropriate governmental authorization, engage in prohibited conduct that is harmful to the foreign relations of the United States." Id. at 4507. Because, as Senator Biden explained, the provision was designed, like other provisions of chapter 45, to prevent private interference with U.S. foreign relations, "[i]t is not intended to apply to duly authorized actions undertaken on behalf of the United States Government." Id.; see also 8 Op. O.L.C. 58 (1984) (concluding that section 5 of the Neutrality Act, 18 U.S.C. § 960, which is also in chapter 45 and which forbids the planning of, or participation in, military or naval expeditions to be carried on from the United States against a foreign state with which the United States is at peace, prohibits only persons acting in their private capacity from engaging in such conduct, and does not proscribe activities undertaken by government officials acting within the course and scope of their duties as United States officers). Senator Daschle expressed this same understanding when he introduced the identical provision in a different version of the anti-terrorism legislation a few months later. See 141 Cong. Rec. 11,960 (1995) (statement of Sen. Daschle). Congress enacted the new section 956(a) the following year, as part of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104–132, tit. VII, § 704(a), 110 Stat. 1214, 1294–95 (1996). As far as we have been able to determine, the legislative history contains nothing to contradict the construction of.section 956(a) described by Senators Biden and Daschle.
Accordingly, we do not believe section 956(a) would prohibit the contemplated operations.
V.
We next consider the potential application of the War Crimes Act, 18 U.S.C. § 2441, which makes it a federal crime for a member of the Armed Forces or a national of the United States to "commit[ ] a war crime." Id. § 2441(a). Subsection 2441(c) defines a "war crime" for purposes of the statute to mean any conduct (i) that is defined as a grave breach in any of the Geneva Conventions (or any Geneva protocol to which the U.S. is a party); (ii) that is prohibited by four specified articles of the [148] Fourth Hague Convention of 1907; (iii) that is a "grave breach" of Common Article 3 of the Geneva Conventions (as defined elsewhere in section 2441) when committed "in the context of and in association with an armed conflict not of an international character"; or (iv) that is a willful killing or infliction of serious injury in violation of the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby–Traps and Other Devices. Of these, the only subsection potentially applicable here is that dealing with Common Article 3 of the Geneva Conventions.[47]
In defining what conduct constitutes a "grave breach" of Common Article 3 for purposes of the War Crimes Act, subsection 2441(d) includes "murder," described in pertinent part as "[t]he act of a person who intentionally kills, or conspires or attempts to kill ... one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." 18 U.S.C. § 2441(d)(1)(D). This language derives from Common Article 3(1) itself, which prohibits certain acts (including murder) against "[p]ersons. taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause." See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 3(1), 6 U.S.T. 3316, 3318–20. Although Common Article 3 is most commonly applied with respect to persons within a belligerent party's control, such as detainees, the language of the article is not so limited—it protects all "[p]ersons taking no active part in the hostilities" in an armed conflict not of an international character.
Whatever might be the outer bounds of this category of covered persons, we do not think it could encompass al-Aulaqi. Common Article 3 does not alter the fundamental law-of-war principle concerning a belligerent party's right in an armed conflict to target individuals who are part of an enemy's armed forces. See supra at 23. The language of Common Article 3 "makes clear that members of such armed forces [of both the state and non-state parties to the conflict] ... are considered as 'taking no active part in the hostilities' only once they have disengaged from their fighting function ('have laid down their arms') or are placed hors de combat; mere suspension of combat is insufficient." International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28 (2009); cf also id. at 34 ("individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function," in which case they can be deemed to be members of a non-state armed group subject to continuous targeting); accord Gherebi v. Obama, 609 F.Supp.2d 43, 65 (D.D.C.2009) ("the fact that 'members of armed forces who have laid down their arms and those placed hors de combat' are not 'taking [an] active part in the hostilities' necessarily implies that 'members of armed forces' who have not surrendered or been incapacitated are [149] ' taking [an] active part in the hostilities' simply by virtue of their membership in those armed forces"); id. at 67 ("Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to or fro as they please so long as, for example, shots are not fired, bombs are not exploded, and places are not hijacked"). Al-Aulaqi, an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks, can on that basis fairly be said to be taking "an active part in hostilities." Accordingly, targeting him in the circumstances posited to us would not violate Common Article 3 and therefore would not violate the War Crimes Act.
VI.
We conclude with a discussion of potential constitutional limitations on the contemplated operations due to al-Aulaqi's status as a U.S. citizen, elaborating upon the reasoning in our earlier memorandum discussing that issue. Although we have explained above why we believe that neither the DoD or CIA operation would violate sections 1119(b), 956(a) and 2441 of title 18 of the U.S.Code, the fact that al-Aulaqi is a United States citizen could raise distinct questions under the Constitution. As we explained in our earlier memorandum, Barron Memorandum at 5–7, we do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal, action under the facts represented to us by DoD, the CIA and the Intelligence Community.
Because al-Aulaqi is a U.S. citizen, the Fifth Amendment's Due Process Clause, as well as the Fourth Amendment, likely protects him in some respects even while he is abroad. See Reid v. Covert, 354 U.S. 1, 5–6, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion); United States v. Verdugo–Urquidez, 494 U.S 259, 269–70, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); see also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 170 n. 7 (2d Cir.2008).
In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces, explaining that "the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." 542 U.S. at 529, 124 S.Ct. 2633 (plurality opinion) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is "continued" and "imminent"
In addition to the nature of the threat posed by al-Aulaqi's activities, both agencies here have represented that they intend to capture rather than target al-Aulaqi if feasible; yet we also understand that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time.
Cf., e.g., Public Committee Against Torture in Israel v. Government of Israel, HO 769/02 S 40, 46 LL.M. 375, 394 (Israel Supreme Court sitting as the High Court [150] of Justice, 2006) (although arrest, investigation and trial "might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place," such alternatives "are not means which can always be used," either because they are impossible or because they involve a great risk to the lives of soldiers).
Although in the "circumstances of war," as the Hamdi plurality observed, "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process ... is very real," 542 U.S. at 530, 124 S.Ct. 2633, the plurality also recognized that "the realities of combat" render certain uses of force "necessary and appropriate," including against U.S. citizens who have become part of enemy forces—and that "due process analysis need not blink at those realities," id. at 531, 124 S.Ct. 2633. we conclude that at least where, as here, the target's activities pose a "continued and imminent threat of violence or death" to U.S. persons, "the highest officers in the Intelligence Community have reviewed the factual basis" for the lethal operation, and a capture operation would be infeasible—and where the CIA and DoD "continue to monitor whether changed circumstances would permit such an alternative," see also DoD May 18 Memorandum for OLC at 2—the "realities of combat" and the weight of the government's interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force. Cf. Hamdi, 542 U.S. at 535, 124 S.Ct. 2633 (noting that Court "accord[s] the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of war, and ... the scope of that discretion necessarily is wide") (plurality opinion).
Similarly, assuming that the Fourth Amendment provides some protection to a U.S. person abroad who is part of al-Qaida and that the operations at issue here would result in a "seizure" within the meaning of that Amendment,
The Supreme Court has made clear that the constitutionality of a seizure is determined by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (internal quotation marks omitted); accord Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Even in domestic law enforcement operations, the Court has noted that "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Garner, 471 U.S. at 11, 105 S.Ct. 1694. Thus, "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if, where feasible, some warning has been given." Id. at 11–12, 105 S.Ct. 1694.
The Fourth Amendment "reasonableness" test is situation-dependent. Cf. Scott, 550 U.S. at 382, 127 S.Ct. 1769 (Garner "did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force' "). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be [151] reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy's overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible. at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. and thus that the intrusion on any Fourth Amendment interests would be outweighed by "the importance of the governmental interests [that] justify the intrusion," Garner, 471 U.S. at 8, 105 S.Ct. 1694, based on the facts that have been represented to us.
Please let us know if we can be of further assistance.
[1] This spelling, which we adopt (except in quotations), is used by the District Court and in the Government's brief. The briefs of N.Y. Times and ACLU and numerous documents in the record render the name "al-Aulaqi."
[2] The term was apparently coined by CIA, see Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir.2004), and the CIA's use of no number, no list responses to FOIA requests has been considered by district courts in the District of Columbia. SeeNational Security Counselors v. CIA, 898 F.Supp.2d 233, 284–85 (D.D.C.2012); Jarvik v. CIA, 741 F.Supp.2d 106, 123 (D.D.C.2010).
[3] The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973).
[4] The term derives from the Hughes Glomar Explorer, a vessel built to recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d 1009, 1010–12 (D.C.Cir.1976). A Glomar response was first used in 1992 in a case challenging a Government agency's refusal to confirm or deny the existence of certain materials requested under FOIA, see Benavides v. DEA, 968 F.2d 1243, 1245 (D.C.Cir.1992).
[5] CIA made one exception to its request that OLC submit a Glomar response. Because CIA's involvement in the operation that resulted in the death of Osama bin Laden had been acknowledged and was not classified, the agency asserted that any OLC documents related to the agency's involvement in that operation would not be covered by a Glomar response, but added that there were no such documents.
[6] 1. All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles ("UAVs" or "drones") or by other means.
2. All records created after September 11, 2001, pertaining to the process by which U.S. citizens can be designated for targeted killings, including who is authorized to make such determinations and what evidence is needed to support them.
3. All memoranda, opinions, drafts, correspondence, and other records produced by the OLC after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which the targeted killing of Anwar al-Awlaki was authorized and upon which he was killed, including discussions of:
A. The reasons why domestic-law prohibitions on murder, assassination, and excessive use of force did not preclude the targeted killing of al-Awlaki;
B. The protection and requirements imposed by the Fifth Amendment Due Process Clause;
C. The reasons why International-law prohibitions on extrajudicial killing did not preclude the targeted killing of al-Awlaki;
D. The applicability (or non-applicability) of the Treason Clause to the decision whether to target al-Awlaki;
E. The legal basis authorizing the CIA, JSOC, or other U.S. Government entities to carry out the targeted killing of Anwar Al–Awlaki;
F. Any requirement for proving that al-Awlaki posed an imminent risk of harm to others, including an explanation of how to define imminence in this context; and
G. Any requirement that the U.S. Government first attempt to capture Al–Awlaki before killing him.
4. All documents and records pertaining to the factual basis for the targeted killing of Al–Awlaki, including:
A. Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;
B. Facts supporting a belief that al-Awlaki could not be captured or brought to justice using nonlethal means;
C. Facts indicating that there was a legal justification for killings persons other than al-Awlaki, including other U.S. citizens, while attempting to kill al-Awlaki himself;
D. Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities; and
E. Any other facts relevant to the decision to authorize and execute the targeted killings of al-Awlaki.
5. All documents and records pertaining to the factual basis for the killing of Samir Khan, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his proximity to al-Awlaki at the time the missiles were launched at al-Awlaki's vehicle, whether the United States took measures to avoid Khan's death, and any other facts relevant to the decision to kill Khan or the failure to avoid causing his death.
6. All documents and records pertaining to the factual basis for the killing of Abdulrahman al-Awlaki, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his presence when they launched a missile or missiles at his location, whether he was targeted on the basis of his kinship with Anwar al-Awlaki, whether the United States took measures to avoid his death, and any other factors relevant to the decision to kill him or the failure to avoid causing his death.
JA 252–53.
[7] Exemption 6, which is not in issue in this appeal, applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (2013).
[8] As a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court's review. See, e.g., Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C.Cir.1991) ("To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing."). On this basis, the Government argues that we cannot consider any official disclosures made after the District Court's opinion.
We disagree. Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed.R.Evid. 201(b)(2). The Government's post-request disclosures "go[ ] to the heart of the contested issue," Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C.Cir.1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims, including that the Government has never acknowledged CIA's operational involvement. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.
Moreover, the Government's request for an opportunity to submit new material concerning public disclosures made after the District Court's decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.
[9] The DOJ White Paper was leaked to Michael Isikoff, a reporter with NBC News, according to a report available at http://nbcnews.to/U1ZII 3; the text of the leaked document is available via a link at that website. (Hard copies of the documents available at this and all other websites cited in this opinion, as well as copies of videos available at websites cited in this opinion, to the extent they can be copied, have been docketed with the Clerk of Court for public reference.) The official disclosure, acknowledged by the Government, see Br. for Appellees at 25, was made by OIP on Feb. 4, 2013, in response to an FOIA request submitted by Truthout, according to a report available at http://www.truth-out. org/news/item/14585-targeted-killing-white-paperleaked-to-nbc-news-turned-over-totruthout-by-doj-in-response-to-asix-month-old-foia-request-four-dayslater; the text of the officially disclosed document is available via a link at that website and also at https://www.documentcloud. org/documents/602342-draft-white-paper.html. The document disclosed to Truthout is marked "draft"; the document leaked to Isikoff is not marked "draft" and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked "draft."
ACLU contends that DOJ did not release the DOJ White Paper in response to its FOIA request, nor list it on itsVaughn index. See Br. for ACLU at 21 n. 7. The Government responds that ACLU had narrowed its request to exclude "draft legal analyses," Letter from Eric A.O. Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ White Paper was part of document number 60 on the Vaughn index submitted by the Office of Legal Counsel as an attachment to a responsive e-mail. See Br. for Appellees at 25 n. 8. The OLC's Vaughn index describes document number 60 as "E-mail circulating draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens in certain circumstances, and discussion regarding interagency deliberations concerning the same" and invokes Exemption 5. Apparently, OLC expected ACLU to understand "circulating" to mean "attachment."
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked "draft," obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
[10] The Holder Letter is available at http://www.justice. gov/ag/AGletter-5-22-13.pdf.
[11] The President's address is available via a link at http://wh. gov/hrTq.
[12] New York Times Co. v. U.S. Dep't of Justice, 872 F.Supp.2d 309, 312–13, 317–18 (S.D.N.Y.2012), ACLU v. Office of the Director of National Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8 (S.D.N.Y. Nov. 15, 2011), and Center for International Environmental Law v. Office of the U.S. Trade Representative, 505 F.Supp.2d 150, 154 (D.D.C.2007).
[13] We therefore need not consider the Appellants' claim that the legal analysis in the OLC–DOD Memorandum was not subject to classification.
[14] We have deleted classification codes from the caption and throughout the document.
[15] The statement was made in a response to a question from Senator Mike Lee. A webcast of the hearing is available via a link at http://www. judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c10b084028087a4aa80a 73, at 1:51:30.
[16] The redactions made in this paragraph implement section 2(a) of our order of May 28, 2014.
[17] The Tonight Show transcript erroneously rendered this word "enemies," an error the Government acknowledged at oral argument.
[18] Although "the law will not infer official disclosure of information classified by the CIA from ... release of information by another agency, or even by Congress," Wilson, 586 F.3d at 186–87, these members of Congress have made public statements on this matter. Senator Feinstein has praised CIA for conducting drone strikes with less collateral damage than strikes conducted by the military. See "Senator Dianne Feinstein on Drones, Assault Weapons Ban," The Takeaway (Mar. 20, 2013), available at http:www.thetakeaway.org/story/276926-sen-diannefeinstein-drones-assaultweapons-ban/, at 2:00. Representative Rogers told CBS that his committee has overseen CIA's targeted killing strikes "even before they conducted that first strike that took [al-]Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), available at http://www.cbsnews. com/news/facethe-nation-transcripts-february10-2013-graham-reed-androgers/4/.
[19] Although we conclude that the three-part test of Wilson has been satisfied, and Wilson remains the law of this Circuit, we note that a rigid application of it may not be warranted in view of its questionable provenance. Wilson took the test fromWolf v. CIA, 473 F.3d 370, 378 (D.C.Cir.2007), which took the test from Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990). Fitzgibbon purported to find the test in Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C.Cir.1983). The issue in Afshar was whether several books submitted to CIA for clearance contained official disclosure of details of CIA's relationship with SAVAK, Iran's intelligence service prior to 1979 and the existence of a CIA station in Tehran prior to 1979. Afshar rejected the claim of official disclosure for three reasons: (1) none of the books revealed a continuing relationship between CIA and SAVAK after 1963, the date of the earliest withheld document; (2) the books provided only a general outline of such a relationship; and (3) none of the books was an official and documented disclosure. The second reason was supported by a citation to Lamont v. Dep't of Justice, 475 F.Supp. 761, 772 (S.D.N.Y.1979), with a parenthetical stating that the withheld information must have "already been specifically revealed to the public" (emphasis in Afshar). Lamont did not assert specific revelation as a requirement for disclosure; it observed that the plaintiff had raised a factual issue as to whether the information sought had been specifically revealed. More important, Afshar, the ultimate source of the three-part test, does not mention a requirement that the information sought "match[es] the information previously disclosed."
Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414 (2d Cir.1989). Clearwateralso cited Fitzgibbon and Afshar and drew from those opinions more rigidity than was warranted. The issue inClearwater was simply whether the Navy had previously disclosed, as the plaintiff claimed, that it was planning to deploy nuclear weapons at the New York Harbor Homeport. The Court rejected the claim, pointing out that the Navy had said only that the ships to be stationed at the Homeport were capable of carrying nuclear weapons. See id. at 421.
[20] Other than the legal analysis in the documents considered in this section, it is unclear whether the Appellants are seeking on appeal any other withheld documents. See, e.g., Br. for ACLU at 50 ("Plaintiffs do not challenge the bulk of those withholdings."). In any event, except as to the OLC–DOD Memorandum discussed in Section III, above, the documents discussed in this Section IV, and the indices discussed in Section V, below, on the current record, we affirm the District Court's decision to withhold all other documents sought. After the Government submits its classified Vaughn indices on remand, the District Court may, as appropriate, order the release of any documents that are not properly withheld.
OLC: |
DOD: |
CIA: |
Glomar to NYTimes; no number, no list to ACLU as to classified documents, except OLC–DOD Memorandum |
no number, no list to Shane, |
Glomar to NYTimes; no number, no list to ACLU |
[22] For purposes of the issues on this appeal, it makes no difference whether the drones were maneuvered by CIA or DOD personnel so long as CIA has been disclosed as having some operational role in the drone strikes.
[23] This redaction implements section 2(a) of our order of May 28, 2014.
[24] Prior to filing, we have made this opinion available to the Government in camera to afford an opportunity to advise whether any classified information, not intended to be disclosed by this opinion, has been inadvertently disclosed.
[6] See also 18 U.S.C, § 1119(a) (providing that "national of the United States" has the meaning stated in section 101(aX22) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22)).
[7] Section 1119 itself also expressly imposes various procedural limitations on prosecution. Subsection 1119(c)(1) requires that any prosecution be authorized in writing by the Attorney General, the Deputy Attorney General, or an-Assistant Attorney General, and precludes the approval of such an action "if prosecution has been previously undertaken by a foreign country for the same conduct." In addition, subsection I 119(c)(2) provides that "[n]o prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person's return"—a determination that "is not subject to judicial review," id
[8] A 1908 joint congressional committee report on the Act explained that "[u]nder existing law [i.e., prior to the 1909 Act], there [had been] no statutory definition of the crimes of murder or manslaughter." Report by the Special Joint Comm. on the Revision of the Laws, Revision and Codification of the Laws, Etc., H.R.Rep. No. 2, 60th Cong. 1st Sess., at 12 (Jan. 6, 1908) ("Joint Committee Report"). We note, however, that the 1878 edition of the Revised Statutes did contain a definition for manslaughter (but not murder): "Every person who, within any of the places or upon any of the waters [within the exclusive jurisdiction of the United States] unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, either on land or sea, within or without the United States, is guilty of the crime of manslaughter." Revised Statutes § 5341 (1878 ed.) (quoted in United States v. Alexander, 471 F.2d 923, 944–45 n. 54 (D.C.Cir.1972)). With respect to murder, the 1908 report noted that the legislation "enlarges the common-law definition, and is similar in terms to the statutes defining murder in a large majority' of the States." Joint Committee Report at 24; see also Revision of the Penal Laws: Hearings on S. 2982 Before the Senate as a Whole, 60th Cong., 1st Sess. 1184, 1185 (1908) (statement of Senator Heyburn) (same). With respect to manslaughter, the report stated that "[w]hat is said with respect to [the murder provision] is true as to this section, manslaughter being defined and classified in laneuaee similar to that to be found in the statutes of a large majority of the States." Joint Committee Report at 24.
[9] See, e.g., Cal. Penal Code § 187(a) (West 2009) ("Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."); Fla. Scat. § 782.04(1)(a) (West 2009) (including "unlawful killing of a human being" as an element of murder); Idaho Code Ann. § 18–4001 (West 2009) ("Murder is the unlawful killing of a human being"); Nev.Rev.Stat. Ann. § 200.010 (West 2008) (including "unlawful killing of a human being" as an element of murder); R.I. Gen. Laws § 11–23–1 (West 2008) ("The unlawful killing of a human being with malice aforethought is murder."); Tenn.Code Ann. § 39–13–201 (West 2009) ("Criminal homicide is the unlawful killing of another person"). Such statutes, in turn, reflect the view often expressed in the common law of murder that the crime requires an "unlawful" killing. See, e.g., Edward Coke, The Third Part of the Institutes of Laws of England 47 (London, W. Clarke & Sons 1809) ("Murder is when a man of sound meinory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum naturaunder the king's peace, with malice fore-thought, either expressed by the party, or implied by law, so as the party wounded, or hurt, & c. die of the wound, or hurt, & c. within a year and a day after the same."); 4 William Blackstone,Commentaries on the Laws of England 195 (Oxford 1769) (same); see also A Digest of Opinions of the Judge Advocates General of the Army 1074 n. 3 (1912) ("Murder, at common law, is the unlawful killing by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, which malice aforethought either express or implied.") (internal quotation marks omitted).
[10] The same is true with respect to other statutes, including federal laws, that modify a prohibited act other than murder or manslaughter with the term "unlawfully." See, e.g., Territory v. Gonzales, 14 N.M. 31, 89 P. 250, 252 (N.M.Terr.1907)(construing the term "unlawful" in statute criminalizing assault with a deadly weapon as "clearly equivalent" to "without excuse or justification"). For example, 18 U.S.C. § 2339C makes it unlawful, inter alia, to "unlawfully and willfully provide[ ] or collect[ ] funds" with the intention that they be used (or knowledge they are to be used) to carry out an act that is an offense within certain specified treaties, or to engage in certain other terrorist acts. The legislative history of section 2339C makes clear that "[t]he term 'unlawfully' is intended to embody common law defenses." H.R.Rep. No. 107–307, at 12 (2001), 2002 U.S.C.C.A.N. 521. Similarly, the Uniform Code of Military Justice makes it unlawful for members of the armed forces to, "without justification or excuse, unlawfully kill[ ] a human being" under certain specified circumstances.10 U.S.C. § 918. Notwithstanding that the statute already expressly requires lack of justification or excuse, it is the longstanding view of the armed forces that "[k]illing a human being is unlawful " for purposes of this provision "when done without justification or excuse." Manual for Courts–Martial United States (2008 ed.), at IV–63, art. 118, comment (c)(1) (emphasis added).
[11] [missing text]
[12] Where a federal criminal statute incorporates the public authority justification, and the government conduct at issue is within the scope of that justification, there is no need to examine whether the criminal prohibition has been repealed, impliedly or otherwise, by some other statute that might potentially authorize the governmental conduct, including by the authorizing statute that might supply the predicate for the assertion of the public authority justification itself. Rather, in such cases, the criminal prohibition simply does not apply to the particular governmental conduct at issue in the first instance because Congress intended that prohibition to be qualified by the public authority justification that it incorporates. Conversely, where another statute expressly authorizes the government to engage in the specific conduct in question, then there would be no need to invoke the more general public authority justification doctrine, because in such a case the legislature itself has, in effect, carved out a specific exception permitting the executive to do what the legislature has otherwise generally forbidden. We do not address such a circumstance in this opinion.
[13] The question of a "public authority" justification is much more frequently litigated in cases where a private party charged with a crime interposes the defense that he relied upon authority that a public official allegedly conferred upon him to engage in the challenged conduct. See generally United States Attorneys' Manual tit. 9, Criminal Resource Manual § 2055 (describing and discussing three different such defenses of "governmental authority"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(2); Model Penal Code § 3.03(3)(b); see alsoUnited States v. Fulcher, 250 F.3d 244, 253 (4th Cir.2001); United States v. Rosenthal, 793 F.2d 1214, 1235–36 (11th Cir.1986); United States v. Duggan, 743 F.2d 59, 83–84 (2d Cir.1984); Fed.R.Crim.P. 12.3 (requiring defendant to notify government if he intends to invoke such a public authority defense). We do not address such cases in this memorandum, in which our discussion of the "public authority" justification is limited to the question of whether a particular criminal law applies to specific conduct undertaken by government agencies pursuant to their authorities.
[14] See, e.g., Memorandum for see also Visa Fraud Investigation, 8 Op. O.L.C. at 287–88 (concluding that civil statute prohibiting issuance of visa to an alien known to be ineligible did not prohibit State Department from issuing such a visa where "necessary" to facilitate important Immigration and Naturalization Service undercover operation carried out in a "reasonable" fashion).
[15] See, e.g., Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (government wiretapping was proscribed by federal statute);
[16] In accord with our prior precedents, each potentially applicable statute must be carefully and separately examined to discern Congress's intent in this respect—such as whether it imposes a less qualified limitation than section 1119imposes. See generally, e.g., United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994); Application of Neutrality.Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).
[17] See, e.g., Neb.Rev.Stat. § 28–1408(2)(b); Pa.C.S.A. § 504(b)(2); Tex. Penal Code tit. 2, § 9.21(c).
[18] See, e.g., Ariz.Rev.Stat. § 13–410.C; Maine Rev. Stat. Ann. tit. 17, § 102.2.
[19] See, e.g., Ala. Stat. § 13A–3–22; N.Y. Penal Law § 35.05(1); LaFave, Substantive Criminal Law § 10.2(b), at 135 n. 15;see also Robinson, Criminal Law Defenses § 149(a), at 215 (proposing that the defense should be available only if the actor engages in the authorized conduct "when and to the extent necessary to protect or further the interest protected or furthered by the grant of authority" and where it "is reasonable in relation to the gravity of the harms or evils threatened and the importance of the interests to be furthered by such exercise of authority"); id. § 149(c), at 218–20.
[20] In concluding that the use of the term "unlawful" supports the conclusion that section ¶ 19 incorporates the public authority justification, we do not mean to suggest that the absence of such a term would require a contrary conclusion regarding the intended application of a criminal statute to otherwise authorized government conduct in other cases. Each statute must be considered on its own terms to determine the relevant congressional intent. See supra note 16.1
[21] The Thurmond proposal also contained procedural limitations on prosecution virtually identical to those that Congress ultimately enacted and codified at 18 U.S.C. § 1119(c). See S. 861, 102d Cong. § 2.
[22] See Geoffrey R. Watson, The Passive Personality Principle, 28 Tex. Int'l L.J. I, 13 (1993); 137 Cong. Rec. 8677 (1991) (letter for Senator Ernest F. Hollings, from Janet G. Mullins, Assistant Secretary, Legislative Affairs, U.S. State Department (Dec. 26, 1989), submitted for the record during floor debate on the Thurmond bill) (S4752) ("The United States has generally taken the position that the exercise of extraterritorial criminal jurisdiction based solely on the nationality of the victim interferes unduly with the application of local law by local authorities.").
[23] Courts have interpreted other federal homicide statutes to apply extraterritorially despite the absence of an express provision for extraterritorial application. See, e.g., 18 U.S.C. § 1114 (criminalizing unlawful killings of federal officers and employees); United States v. Al Kassar, 582 F.Supp.2d 488, 497 (S.D.N.Y.2008) (construing 18 U.S.C. § 1114 to apply extraterritorially).
[24] In light of our conclusion that section 1119 and the statutes it cross-references incorporate this justification, and that the operations here would be covered by that justification, we need not and thus do not address whether other grounds might exist for concluding that the operations would be lawful.
[25] See. e.g., 2 Paul H. Robinson, Criminal Law Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal statute is justified and thus not unlawful "Iwinere the exercise of military authority relies upon the law governing the armed forces or upon the conduct of war"); 2 LaFave, Substantive Criminal Law § 10.2(c), at 136 ("another aspect of the public duty defense is where the conduct was required or authorized by 'the law governing the armed services or the lawful conduct of war' ") (internal citation omitted); Perkins & Boyce, Criminal Law at 1093 (noting that a "typical instance[ ] in which even the extreme act of taking human life is done by public authority" involves "the killing of an enemy as an act of war and within the rules of war"); Frye, 10 Cal.Rptr.2d at 221 n. 2 (identifying "homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war," as one example of a justifiable killing that would not be "unlawful" under the California statute describing murder as an "unlawful" killing); State v. Gut, 13 Minn. 341, 357 (1868) ("that it is legal to kill an alien enemy in the heat and exercise of war, is undeniable"); see alsoModel Penal Code § 3.03(2)(b) (proposing that criminal statutes expressly recognize a public authority justification for a killing that "occurs in the lawful conduct of war," notwithstanding the Code recommendation that the use of deadly force generally should be justified only if expressly prescribed by law); see also id. at 25 n. 7 (collecting–representative statutes reflecting this view enacted prior to Code's promulgation); 2 Robinson, Criminal Law Defenses § 148(b), at 210–11 nn. 8–9 (collecting post-Model Code state statutes expressly recognizing such a defense).
[26] Cf. Public Committee Against Torture in Israel v. Government of Israel, 11CJ 769/02 ¶ 19, 46 I.L.M. 375, 382 (Israel Supreme Court sitting as the High Court of Justice, 2006) ("When soldiers of the Israel Defense Forces act pursuant to the laws of aimed conflict, they are acting 'by law', and they have a good justification defense [to criminal culpability]. However, if they act contrary to the laws of armed conflict they may be, inter alia, criminally liable for their actions.");Calley v. Callaway, 519 F.2d 184, 193 (5th Cir.1975) ("an order to kill unresisting Vietnamese would be an illegal order, and ... if [the defendant] knew the order was illegal or should have known it was illegal, obedience to an order was not a legal defense").
[27] We emphasize this point not in order to suggest that statutes such as the AUMF have superseded or implicitly repealed or amended section 1119, but instead as one factor that helps to make particularly clear why the operation contemplated here would be covered by the public authority justification that section 1119 (and section 1111) itself incorporates.
[28] See Hamlily, 616 F.Supp.2d at 75 (construing AUMF to reach individuals who "function[ ] or participate[ ] within or under the command structure of [al–Qaida]"); Gherebi v. Obama, 609 F.Supp.2d 43, 68 (D.D.C.2009); see also al–Marri v. Pucciarelli, 534 F.3d 213, 325 (4th Cir.2008) (en banc) (Wilkinson, J., dissenting in part) (explaining that the ongoing hostilities against al-Qaida permit the Executive to use necessary and appropriate force under the AUMF against an "enemy combatant," a term Judge Wilkinson would have defined as a person who is (1) "a member of" (2) "an organization or nation against whom Congress has declared war or authorized the use of military force," and (3) who "knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization"), vacated and remanded sub nom. al–Marri v. Spagone, 555 U.S. 1220, 129 S.Ct. 1545, 173 L.Ed.2d 671 (2009); Government March 13th Guanuinamo Bay Detainee Brief at (arguing that AUMF authorizes detention of individuals who were "part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces").
Several of the Guantiniuno habeas petitioners, as well as some commentators, have argued that in a non-international conflict of this sort, the laws of war and/or the AUMF do not permit the United States to treat persons who are part of al-Qaida as analogous to members of an enemy's armed forces in a traditional international armed conflict, but that the United States instead must treat all such persons as civilians, which (they contend) would permit targeting those persons only when they are directly participating in hostilities. Cf also al–Marri, 534 F.3d at 237–47 (Mott, J. concurring in the judgment, and writing for four of nine judges) (arguing that the AUIVIT and the Constitution, as informed by the laws of war, do not permit military detention of an alien residing in the United States whom the government alleged was "closely associated with" al-Qaida, and that such individual must instead be treated as a civilian, because that person is not affiliated with the military arm of an enemy nation); Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions 58, at 19 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) ("Report of the Special Rapporteur") (reasoning that because "[u]nder the [international humanitarian law] applicable to non-international armed conflict, there is no such thing as a 'combatant' "—i.e., a non-state actor entitled to the combatant's privilege—it follows that "States are permitted to attack only civilians who 'directly participate in hostilities' "). Primarily for the reasons that Judge Walton comprehensively examined in the Gherebi case, see 609 F.Supp.2d at 62–69, we do not think this is the proper understanding of the laws of war in a non-international armed conflict, or of Congress's authorization under the AUMF.Cf. also International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28, 34 (2009) (even if an individual is otherwise a "citizen" for purposes of the laws of war, a member of a non-state armed group can be subject to targeting by virtue of having assumed a "continuous combat function" on behalf of that group); Alston, supra, ¶ 65, at 30–31 (acknowledging that under the ICRC view, if armed group members take on a continuous command function, they can be targeted anywhere and at any time); infra at 37–38 (explaining that al-Aulaqi is continually and "actively" participating in hostilities and thus not protected by Common Article 3 of the Geneva Conventions).
[29] See also Al Odah v. U.S., 611 F.3d 8, 9–10 (D.C.Cir.2010), and other D.C. Circuit cases cited therein (D.C.Cir.2010) (AUMF gives United States the authority to detain a person who is "part of" al-Qaida or Taliban forces); Hamlily, 616 F.Supp.2d at 74 (Bates, J.); Gherebi, 609 F.Supp.2d at 67 (Walton, J.); Mattan v. Obama, 618 F.Supp.2d 24, 26 (D.D.C.2009) (Lamberth, C.J.); Al Mutairi v. United States, 644 F.Supp.2d 78, 85 (D.D.C.2009) (Kollar–Kotelly, J,); Awad v. Obama, 646 F.Supp.2d 20, 23 (D.D.C.2009) (Robertson, J.); Anam v. Obama, 653 F.Supp.2d 62, 64 (D.D.C.2009)(Hogan, J.); Hatim v. Obama, 677 F.Supp.2d 1, 7 (D.D.C.2009) (Urbina, J.); Al–Adahi v. Obama, No. 05–280, 2009 WL 2584685 (D.D.C. Aug. 21, 2009) (Kessler, J.), rev'd on other grounds, 613 F.3d 1102 (D.C.Cir.2010).
[30] Our analysis is limited to the circumstances presented here, regarding the contemplated use of lethal force in Yemen. We do not address issues that a use of force in other locations might present. See also supra note 1.
[31] We think it is noteworthy that the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes, and that nearly a decade after its enactment, none of the three branches of the United States Government has identified a strict geographical limit on the permissible scope of the authority the AUMF confers on the President with respect to this armed conflict. See, e.g., Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (June 15, 2010) (reporting, "consistent with ... the War Powers Resolution," that the armed forces, with the assistance of numerous international partners, continue to conduct operations "against al-Qaida terrorists," and that the United States has "deployed combat–equipped forces to a number of locations in the U.S. Central ... Command area[ ] of operation in support of those [overseas counter-terrorist] operations"); Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate, from President Barack Obama (Dec. 16, 2009) (similar); DoD May 18 Memorandum for OLC, at 2 (explaining that U.S. armed forces have conducted AQAP targets in Yemen since December 2009, and that DoD has reported such strikes to the appropriate congressional oversight committees).
[32] In the speech cited above, Legal Adviser Stevenson was referring to cases in which the government of the nation in question is unable to prevent violations of its neutrality by belligerent troops.
[33] The fact that the operation occurs in a new location might alter the way in which the military must apply the relevant principles of the laws of war—for example, requiring greater care in some locations in order to abide by the principles of distinction and proportionality that protect civilians from the use of military force. But that possible distinction should not affect the question of whether the laws of war govern the conflict in that new location in the first instance
[34] See also Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, 81 Temp. L.Rev. 787, 799 (2008) ("If ... the ultimate purpose of the drafters of the Geneva Conventions was to prevent 'law avoidance' by developing de facto law triggers—a purpose consistent with the humanitarian foundation of the treaties—then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose."); cf. also Derek Jinks,September 11 and the Laws of War, 28 Yale J. Intl L. 1, 40–41 (2003) (arguing that if Common Article 3 applies to wholly internal conflicts, then it "applies a fortiori to armed conflicts with international or transnational dimensions," such as to the United States's armed conflict with al-Qaida).
[35] Cf. Prosecutor v. Haradnizaj, No IT–04–84–T 60 (ICTY Trial Chamber I, 2008) (an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means—a condition that can be evaluated with respect to non-state groups by assessing "several indicative factors, none of which are, in themselves, essential to establish whether the 'organization' criterion is fulfilled," including, among other things, the existence of a command structure, and disciplinary rules and mechanisms within the group, the ability of the group to gain access to weapons, other military equipment, recruits and military training, and its ability to plan, coordinate, and carry out military operations).
[36] We note that the Department of Defense, which has a policy of compliance with the law of war "during all armed conflicts, however such conflicts are characterized, and in all other military operations," Chairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 4.a, at 1 (Apr, 30, 2010) (emphasis added), has periodically used force—albeit in contexts different from a conflict such as this—in situations removed from "active battlefields," in response to imminent threats. See, e.g., Nat'l Comm'n on Terrorist Attacks Upon the United States, The 9/11 Commission Report 116–17 (2004) (describing 1998 cruise missile attack on al-Qaida encampments in Afghanistan following al-Qaida bombings of U.S. embassies in East Africa); W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Army Lawyer, at 7 (Dep't of Army Pamphlet 27–50–204) (Dec.1989) ( "Assassination ") at 7 n. 8 (noting examples of uses of military force in "[s]elf defense against a continuing threat," including "the U.S. Navy air strike against Syrian military objections in Lebanon on 4 December 1983, following Syrian attacks on U.S. Navy F–14 TARPS flights supporting the multinational peacekeeping force in Beirut the preceding day," and "air strikes against terrorist-related targets in Libya on the evening of 15 April 1986"); see also id at 7 ("A national decision to employ military force in self defense against a legitimate terrorist or related threat would not be unlike the employment of force in response to a threat by conventional forces; only the nature of the threat has changed, rather than the international legal right of self defense. The terrorist organizations envisaged as appropriate to necessitate or warrant an armed response by U.S. forces are well-financed, highly-organized paramilitary structures engaged in the illegal use of force."); Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons ¶ 42, I996 I.C.J. 226, 245 ("Nuclear Weapons Advisory Opinion") (fundamental law-of-war norms are applicable even where military force might be employed outside the context of an armed conflict, such as when using powerful weapons in an act of national self-defense); cf. also 9/11 Commission Report at 116–17 (noting the Clinton Administration position—with respect to a presidential memorandum authorizing CIA assistance to an operation that could result in the killing of Usama Bin Ladin "if the CIA and the tribals judged that capture was not feasible"—that "under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination"). As we explain below, DoD likewise would conduct the operation contemplated here in accord with the laws of war and would direct its lethal force against an individual whose activities have been determined to pose a "continued and imminent threat" to U.S. persons and interests.
[37] Cf. Nuclear Weapons Advisory Opinion ¶ 25, 1996 I.C.J. at 240 (explaining that the "test" of what constitutes an "arbitrary" taking of life under international human rights law, such as under article 6(1) of the International Covenant of Civil and Political Rights (ICCPR), must be determined by "the law applicable in armed conflict which is designed to regulate the conduct of hostilities," and "can only be decided by reference to the law applicable in armed conflict and not deduced from terms of the Covenant itself"); Written Statement of the Government of the United States of. America before the International Court of Justice, Re: Request by the United Nations General Assermbly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons at 44 (June 20, 1995) (ICCPR prohibition on arbitrary deprivation of life "was clearly understood by its drafters to exclude the lawful taking of human life," including killings "lawfully committed by the military in time of war"); Dinstein, Conduct of Hostilities at 23 (right to life under human rights law "does not protect persons from the ordinary consequences of hostilities"); cf also infra Part VI (explaining that the particular contemplated operations here would satisfy due process and Fourth Amendment standards because, inter alia, capturing al-Aulaqi is currently infeasible).
[38] Although the United States is not a party to the First Protocol, the State Department has announced that "we support the principle that individual combatants not kill, injure, or capture enemy personnel by resort to perfidy." Remarks of Michael J, Matheson, Deputy Legal Adviser, Department of State, The Sixth Annual American Red Cross–Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. of Int'I L. & Pol'y 415, 425 (1987).(U)
[39] There is precedent for the United States targeting attacks against particular commanders. See, e.g., Patricia Zengel,Assassination and the Law of Armed Conflict, 134 Mil. L.Rev. 123, 136–37 (1991) (describing American warplanes' shoot-down during World War II of plane carrying Japanese Admiral Isoroku Yamamoto); see also Parks, Assassination, Army Lawyer at 5.
[40] See Geneva Conventions Common Article 3(1) (prohibiting "violence to life and person, in particular murder of all kinds," with respect to persons "taking no active part in the hostilities" in a non-international armed conflict, "including members of armed forces who have laid down their arms"); see also Hague Convention IV, Annex, art. 23(c), 37 Stat. at 2301–02 ("it is especially forbidden ... [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion"); id art. 23(d) (forbidding a declaration that no quarter will be given); 2 William Winthrop, Military Law and Precedents 788 (1920) ("The time has long passed when 'no quarter' was the rule on the battlefield, or when a prisoner could be put to death simply by virtue of his capture.").
[42] We address potential restrictions imposed by two other criminal laws—18 §§ 956(a) and 2441—in Parts IV and V of this opinion.
[43] We note, in addition, that the "lawful conduct of war" variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal.Rptr.2d at 221 n. 2 ("homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war"); Perkins & Boyce, Criminal Law at 1093 ("the killing of an enemy as an act of war and within the rules of war").
[44] If the killing by a member of the armed forces would comply with the law of war and otherwise be lawful, actions of CIA officials facilitating that killing should also not be unlawful. See, e.g., Shoot Down Opinion at 165 n. 33 ("[O]ne cannot be prosecuted for aiding and abetting the commission of an act that is not itself a crime.") (citing Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963)).
Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war. It is true that CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war—an immunity that the armed forces enjoy by virtue of their status.See Report of the Special Rapporteur ¶ 71, at 22; see also Dinstein, Conduct of Hostilities, at 31. Nevertheless, lethal activities conducted in accord with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant's privilege. The contrary view "arises ... from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection." Richard R. Baxter, So–Called "Unprivileged Belligerency" Spies, Guerillas, and Saboteurs, 28 Brit. Y.B. Int'l L. 323, 342 (1951) ("the law of nations has not ventured to require of states that they ... refrain from the use of secret agents or that these activities upon the part of their military forces or civilian population be punished"). Accord Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 103–16 (Y. Dinstein ed., 1989);
Statements in the Supreme Court's decision in Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), are sometimes cited for the contrary view. See, e.g., id. at 36 n. 12, 63 S.Ct. 2 (suggesting that passing through enemy lines in order to commit "any hostile act" while not in uniform "renders the offender liable to trial for violation of the laws of war"); id. at 31, 63 S.Ct. 2 (enemies who come secretly through the lines for purposes of waging war by destruction of life or property "without uniform" not only are "generally not to be entitled to the status of prisoners of war," but also "to be offenders against the law of war subject to trial and punishment by military tribunals"). Because the Court inQuirin focused on conduct taken behind enemy lines, it is not clear whether the Court in these passages intended to refer only to conduct that would constitute perfidy or treachery. To the extent the Court meant to suggest more broadly that any hostile acts performed by unprivileged belligerents are for that reason violations of the laws of war, the authorities the Court cited (the Lieber Code and Colonel Winthrop's military law treatise) do not provide clear support.See John C. Dehn, The Hamdan Case and the Application of a Municipal Offense, 7 J. Int'l Crim. J. 63, 73–79 (2009);see also Baxter, So–Called "Unprivileged Belligerency," 28 Brit. Y.B. Int'l L. at 339–40; Michael N. Schmitt,Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int'l L. 511, 521 n. 45 (2005); W. Hays Parks, Special Forces' Wear of Non–Standard Uniforms, 4 Chic. J. Int'l L. 493, 510–11 n. 31 (2003). We note in this regard that DoD's current Manual for Military Commissions does not endorse the view that the commission of an unprivileged belligerent act, without more, constitutes a violation of the international law of war. See Manual for Military Commissions, Part IV, § 5(13), Comment, at IV–11 (2010 ed., Apr. 27, 2010) (murder or infliction of serious bodily injury "committed while the accused did not meet the requirements of privileged belligerency" can be tried by a military commission "even if such conduct does not violate the international law of war").
[45] As one example, the Senate Report pointed to the Department of Justice's conclusion that the Neutrality Act, 18 U.S.C. § 960, prohibits conduct by private parties but is not applicable to the CIA and other government agencies. Id. The Senate Report assumed that the Department's conclusion about the Neutrality Act was premised on the assertion that in the case of government agencies, there is an "absence of the mens rea necessary to the offense." Id. In fact, however, this Office's conclusion about that Act was not based on questions of mens rea, but instead on a careful analysis demonstrating that Congress did not intend the Act, despite its words of general applicability, to apply to the activities of government officials acting within the course and scope of their duties as officers of the United States. See Application of Neutrality Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).
[46] Cf. also VISA Fraud Investigation, 8 Op. O.L.C. at 287 (applying similar analysis in evaluating the effect of criminal prohibitions on certain otherwise authorized law enforcement operations, and explaining that courts have recognized it may be lawful for law enforcement agents to disregard otherwise applicable laws "when taking action that is necessary to attain the permissible law enforcement objective, when the action is carried out in a reasonable fashion"); id at 288 (concluding that issuance of an otherwise unlawful visa that was necessary for undercover operation to proceed, and done in circumstances—"for a limited purpose and under close supervision"—that were "reasonable," did not violate federal statute).
[47] The operations in question here would not involve conduct covered by the Land Mine Protocol. And the articles of the Geneva Conventions to which the United States is currently a party other than Common Article 3, as well as the relevant provisions of the Annex to the Fourth Hague Convention, apply by their terms only to armed conflicts between two or more of the parties to the Conventions. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 2, 6 U.S.T. 3316, 3406.
7.2.6.4.2 IV.B. Excuse 7.2.6.4.2 IV.B. Excuse
7.2.6.4.2.1 IV.B.i. Duress 7.2.6.4.2.1 IV.B.i. Duress
Excuses, unlike justifications, do not assert that an action was morally right: instead, they deem an action to have been wrong, but less blameworthy under the circumstances. Every category of excuse, however, raises problems. In the case of duress, the question becomes what level of duress is necessary to excuse a crime, and what crimes can it excuse? As you will see, there is both a traditional duress doctrine and a reformed doctrine promoted by the Model Penal Code. Consider the differences between duress (an excuse) and necessity (a justification). What is the distinction between them, and why does blameworthiness attach to one but not the other?
7.2.6.4.2.1.1. 28 U.S.C. § 1332 (a), (c)
7.2.6.4.2.1.2 Banyard v. State 7.2.6.4.2.1.2 Banyard v. State
Demarious Latwan BANYARD a/k/a Lil Murray a/k/a Mur-Mur
v.
STATE of Mississippi.
Supreme Court of Mississippi.
[678] Robert B. McDuff, Bryan A. Stevenson, attorneys for appellant.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
EN BANC.
ON WRIT OF CERTIORARI
LAMAR, Justice, for the Court:
¶ 1. Demarious Banyard was convicted of capital murder and sentenced to life in prison without the possibility of parole. Banyard appealed, claiming, among other things, that the trial court erred when it refused his proffered duress instruction. Finding that Banyard was entitled to have an instruction given the jury which presented his theory of the case, we reverse and remand for a new trial.
[679]
FACTS AND PROCEDURAL HISTORY
¶ 2. Demarious Banyard and Dennis Ragsdale[1] were indicted by a Hinds County grand jury for the capital murder of Robin Ballard, a killing which occurred during the commission of a robbery. Banyard, who was thirteen years old at the time of the crime, filed a motion requesting that his case be transferred to youth court, which the trial court denied. Banyard subsequently filed a motion to sever, which the trial court granted.
¶ 3. At trial, witnesses testified that, on the night of the murder, a group of teenagers was playing basketball at an apartment complex in Jackson. Among the players were nineteen-year-old Dennis Ragsdale and thirteen-year-old Demarious Banyard. According to Traven Kyser, one of the other players, someone came around the corner and said that the "pizza man is out there, let's go rob him."[2] At that point, Ragsdale went to his jeep, got a gun, and came back to the group. Kyser testified that Ragsdale cocked the gun and then took the clip out, but that Banyard did not see him do it. Ragsdale handed the gun to Banyard and said "let's go rob the pizza man." At that point, Kyser testified, Ragsdale and Banyard began walking up to the apartment gate. When asked if he thought Banyard could have "changed his mind if he wanted to," Kyser responded, "Not really, no."
¶ 4. Adrian Addison, a resident of the apartment complex, testified that he had pulled up to the apartment gate to leave, and that a black Malibu (the pizza delivery man's car) was two cars ahead of him. He noticed that there were "two guys" standing on the driver's side of the Malibu. After a couple of seconds, Addison heard a gunshot, and then witnessed the "two guys" run past his vehicle back into the apartment complex. When the black Malibu did not pull out of the complex, Addison began blowing his horn. After the Malibu still did not move, Addison got out of his car to investigate. When he got to the driver's side window, he saw that the driver, later identified as Robin Ballard, had been shot in the neck. He put the car in park so that it would not roll into the street and yelled for someone to call an ambulance.
¶ 5. Kent Daniels, one of the first detectives on the scene, testified that he arrived at the Westwick Apartments a little after 6 p.m. the night of the murder. He was able to identify the victim as twenty-five-year-old Robin Ballard. As Daniels was talking to the witnesses and beginning to establish a suspect list, one of the other detectives got a call from Banyard's mother, who said that Banyard wanted to turn himself in. Daniels interviewed Banyard that same evening, with his mother present. After waiving his Miranda[3] rights, Banyard made a statement, implicating himself and Ragsdale in the shooting.
¶ 6. Banyard took the stand in his own defense. He testified that he was getting ready to take his younger cousin home after the basketball game when Ragsdale came up to him, handed him the gun, and said "let's go rob the pizza man." Banyard testified that he did not want to rob the pizza man, but that Ragsdale was looking "serious and mean," and that he was scared of him. Banyard testified that he [680] had met Ragsdale before, and that Ragsdale had "jumped on [him]" the first time they had met. Although Ragsdale had told Banyard that the gun was unloaded, Banyard testified that he was still scared, because he thought Ragsdale would "put the bullets in the gun and shoot [him]" if he didn't go. They began walking toward the apartment gate, with Ragsdale walking "real close" to Banyard the entire time, saying "go [a]head, come on." When asked why he did not run as they were getting closer to the car, Banyard again responded that he thought Ragsdale would "catch me, put the bullet in and shoot me."
¶ 7. When they reached the Malibu, Ragsdale went around to the passenger side and told Banyard to go to the driver's side. Ragsdale told Ballard to "give [him the] money." Banyard testified that he "guessed [Ragsdale] couldn't get the money" because he "came back around" to the driver's side. As Banyard was handing Ragsdale the gun, his finger "tapped the thing and it went off." At that point, Ragsdale started laughing and ran off with the gun, and Banyard followed.
¶ 8. At the close of the evidence, defense counsel proffered a duress instruction,[4] which the trial judge denied as an "improper statement of law." The record is unclear as to what part of the instruction the trial judge deemed to be incorrect. The trial judge then refused defense counsel's request to submit another duress instruction, stating: "No ma'am. You can argue that but we'll not have a case of law. You want to put that into instructions what your arguments are going to be and the court is not going to just put in your arguments." The trial judge opined that the lesser-included-offense instruction of simple murder covered the duress theory, because she later stated:
The lesser included instruction of murder includes those arguments that the defense wants to make regarding duress. But it does not entitle this defendant to a duress instruction because the court has allowed the lesser included offense of murder. ... You don't to get a two-fer [sic]. I allowed the lesser included offense and under the statute you can argue duress, you can argue accident, you can argue misfortune and anything else you want to argue. But I'm not going to give an instruction on that because that's already included in the defense of the lesser included offense of murder.
¶ 9. The jury found Banyard guilty of capital murder. Banyard appealed, arguing that the trial court erred when it (1) [681] refused any instruction with the lesser offense of manslaughter; (2) refused defense counsel's duress instruction; and (3) refused to appoint a psychiatrist to aid in his defense. We assigned the case to the Court of Appeals, which affirmed Banyard's conviction and sentence, and we granted certiorari.[5] See Banyard v. State, 47 So.3d 708 (Miss.Ct.App.2009).
¶ 10. While Banyard raises four issues on certiorari, we find the denial of the duress instruction dispositive. We also address Banyard's claim that the trial court "unconstitutionally shifted the burden of proof" when it gave a jury instruction that required the jury to "unanimously find beyond a reasonable doubt that the defendant is not guilty" in order to return a verdict of not guilty.
ANALYSIS
I. Whether the trial court improperly denied Banyard's proffered duress instruction.
¶ 11. "On appellate review of the trial court's grant or denial of a proposed jury instruction, our primary concern is that `the jury was fairly instructed and that each party's proof-grounded theory of the case was placed before it.'"[6] "We ask whether the instruction at issue contained a correct statement of law and was warranted by the evidence."[7] "While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence."[8]
¶ 12. "A defendant is entitled to have instructions on his theory of the case presented, even though the evidence that supports it is weak, inconsistent, or of doubtful credibility."[9] "If the defendant presents sufficient evidence in the record to support his theory of the case, he should then be given an instruction on his theory of the case. There needs [sic] not be even a plausible explanation."[10] "A criminal defendant is entitled to have his jury instructed on all offenses of which an evidentiary basis exists in the record, even where the evidence. ... arises only in the defendant's own testimony."[11]
¶ 13. This Court has held that "where a person reasonably believes that he is in danger of physical harm he may be excused for some conduct which ordinarily would be criminal."[12] We have approvingly cited the four-part test for duress set forth by the Fifth Circuit Court of Appeals:
[682] (1) the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury; (2) that he had not recklessly or negligently placed himself in the situation; (3) that he had no reasonable legal alternative to violating the law; (4) that a direct causal relationship may be reasonably anticipated between the criminal action and the avoidance of harm.[13]
¶ 14. Banyard's theory of the case is that he participated in the robbery under duress (thus lacking the necessary specific intent), and that Ballard was accidentally shot when Banyard was handing Ragsdale the gun. He claims that sufficient evidence was presented at trial to support this theory. Thus, Banyard argues, the trial court erred when it refused his duress instruction, because the refusal effectively disallowed the jury from considering Banyard's theory of the case.[14]
¶ 15. The Court of Appeals agreed with the trial judge's ruling that the proffered duress instruction was an incorrect statement of law because it included a manslaughter instruction. The Court of Appeals reasoned that, because Banyard had killed Ballard during the course of a robbery, he was not entitled to a manslaughter instruction.[15]
¶ 16. The Court of Appeals also held that there was no evidentiary basis to support Banyard's proffered duress instruction. Specifically, the Court of Appeals noted that Banyard had the gun in his hand throughout much of the ordeal, and that he "failed to present evidence that he did not have a reasonable opportunity to avoid participating in the crime," thus negating his duress claim.[16] We address both findings.
Was there evidentiary support for a duress instruction?
¶ 17. A defendant is entitled to have an instruction given to the jury presenting his theory of the case even when "the evidence that supports it is weak, inconsistent, or of doubtful credibility."[17] After a thorough review of the record, we conclude that Banyard presented sufficient evidence to support his duress theory. Traven Kyser testified that, in his opinion, Banyard could not change his mind once Ragsdale set the events in motion. Banyard testified consistently that he did not want to rob the pizza man, but that Ragsdale was looking "serious and mean," and that he was scared of him. Banyard testified that Ragsdale had "jumped on him" the first time they had met. Although Ragsdale had told Banyard that the gun was unloaded, Banyard testified that he was still scared, because he thought Ragsdale would "put the bullets in the gun and [683] shoot [him]" if he didn't go. As they walked toward the apartment gate, Ragsdale walked "real close" to Banyard the entire time, saying "go [a]head, come on." When asked why he did not run as they were getting closer to the car, Banyard again responded that he thought Ragsdale would "catch me, put the bullet in and shoot me."
¶ 18. The merits of Banyard's duress claim are for a properly instructed jury to weigh. The jurors are the judges of the credibility of the witnesses, not the appellate courts. We need only decide whether Banyard presented sufficient evidence to meet the minimum threshold necessary to require an instruction on his theory. We find that he did. Thus, we find that it was error to deny Banyard's duress instruction.
Was the proffered duress instruction an improper statement of law because it included a manslaughter option?
¶ 19. The Court of Appeals held that the duress instruction was an improper statement of law because it included a manslaughter instruction, an option that, it reasoned, Banyard was not entitled to because Ballard was killed during a robbery. Mississippi Code Section 97-3-27[18] is a manslaughter statute which specifically excepts the killing of an individual during a robbery from being manslaughter. But Banyard's theory throughout the entire case was that he had committed the robbery under duress. Duress is a valid defense for many crimes, including robbery.[19] Thus, if the jury found that Banyard was indeed acting under duress, he could not be found guilty of the robbery of Ballard, one of the essential elements of the capital-murder charge. Upon that finding, the jury then could proceed to consider whether he was proven guilty of any lesser offenses which the trial court had determined were supported by the record, whether they be murder, manslaughter, or both.
¶ 20. Thus, because we find that Banyard presented a sufficient evidentiary basis to support a duress instruction, the inclusion of a manslaughter instruction was not necessarily improper, as he would be entitled to instructions on lesser offenses should the jury find that he had committed the armed robbery under duress.
II. Whether the trial court unconstitutionally shifted the burden of proof.
¶ 21. Although we find that the trial court's failure to grant Banyard's proffered duress instruction requires reversal, we briefly address Banyard's claim that the trial court "unconstitutionally shifted the burden of proof" when it instructed the jury that in order to find the defendant not [684] guilty, it had to "unanimously find beyond a reasonable doubt that the defendant is not guilty. ..." The relevant part of Jury Instruction 8, the form of the verdict instruction, stated:
The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt that the Defendant is NOT GUILTY of either "Capital Murder" or "Murder," then the verdict shall be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER:
"We the Jury [find] the Defendant NOT GUILTY of Capital Murder AND the jury finds the Defendant NOT GUILTY of Murder."
¶ 22. Obviously, this instruction was erroneous. It is axiomatic that the burden of proof never shifts to a defendant during a criminal trial, and there is no requirement that the defendant be found not guilty beyond a reasonable doubt.[20] As this Court stated in Pittman v. State: "[T]he prosecution always has the burden of proving the guilt of [the] accused beyond a reasonable doubt, accused never has the burden of satisfying the jury of his innocence, or to disprove facts necessary to establish the offense charged. ..."[21]
¶ 23. The State argues that the jury instructions, read as a whole, properly instructed the jury. Specifically, it argues that Jury Instruction 5, a general burden-of-proof instruction,[22] "cured" the defect in Jury Instruction 8. We disagree. We have said that the rule which requires that all instructions should be read together "does not cure an erroneous instruction in conflict with a proper instruction on a vital issue where the proper instruction does not modify or clarify the erroneous instruction."[23]
The giving of an erroneous instruction containing reversible error cannot be cured by the giving of an inconsistent and correct instruction. ... A material error in an instruction, complete in itself, is not cured by a correct statement of law in another instruction, for the jury cannot know which instruction is correct and the court cannot know which instruction influenced the jury.[24]
¶ 24. Thus, we find that the portion of Jury Instruction 8 which required the jury to "unanimously find beyond a reasonable doubt that the defendant is not guilty" was improper and could not have been cured by other correct, yet conflicting, instructions, as we "cannot know which instruction influenced the jury."[25]
CONCLUSION
¶ 25. We hold that the trial court erred when it refused Banyard's proffered duress instruction. We reverse the judgments of the Hinds County Circuit Court [685] and the Court of Appeals and remand this case for a new trial.
¶ 26. REVERSED AND REMANDED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, KITCHENS, AND PIERCE, JJ., CONCUR. RANDOLPH, J., CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN PART BY RANDOLPH, J.
RANDOLPH, Justice, concurring in part and in result:
¶ 27. I concur with the majority's conclusion on Issue II. Without question, the trial court unconstitutionally shifted the burden of proof by instructing the jurors that, in order to acquit Banyard, they must find him not guilty "beyond a reasonable doubt." Regardless of when the issue was raised, this plain error requires reversal for a new trial.
¶ 28. Since this case must be remanded for a new trial, we need not decide whether or not duress as to robbery was established. Duress may be an issue at trial upon remand, dependent on the evidence adduced. I do agree with Justice Chandler, based on the evidence presently before us, that Banyard was not entitled to a duress instruction, but that determination is irrelevant to the same issue on retrial. As we do not know what proof will be presented, we cannot know what finding may be appropriate. In my humble opinion, the majority unnecessarily addressed duress. Therefore, I would reverse and remand solely on the constitutional error, Issue II.
CHANDLER, Justice, dissenting:
¶ 29. Because I believe that the trial court properly refused to give Banyard a duress instruction, I respectfully dissent. This Court's longstanding precedent has been that duress is not a defense to murder. See Wilson v. State, 390 So.2d 575, 576 n. 1 (Miss.1980); Watson v. State, 212 Miss. 788, 55 So.2d 441 (1951); Taylor v. State, 158 Miss. 505, 130 So. 502 (1930). Application of this principle logically has been applied to capital murder cases. See Ruffin v. State, 992 So.2d 1165 (Miss.2008); West v. State, 725 So.2d 872 (Miss.1998) (overruled on other grounds); Fuqua v. State, 938 So.2d 277 (Miss.Ct.App.2006). Additionally, I write to address the majority's concern about jury instruction 8.
I.
¶ 30. This Court reads jury instructions as a whole and not in isolation. Walker v. State, 913 So.2d 198, 234 (Miss.2005). When the instructions are read as a whole, "if the instructions fairly announce the law of the case and create no injustice[,]" the appellate court will find no reversible error. Montana v. State, 822 So.2d 954, 958 (Miss.2002). "A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would support a jury's finding on that theory." Id. at 962. However, a trial court may refuse a jury instruction when it is an incorrect statement of law, fairly covered in other instructions, or has no foundation in the evidence. Ruffin v. State, 992 So.2d 1165, 1176 (Miss.2008); Poole v. State, 826 So.2d 1222, 1230 (Miss.2002) (citing Smith v. State, 802 So.2d 82, 88 (Miss.2001)). Reversal is not warranted when instructions, taken as a whole, fairly, though not perfectly, announce the law. Rushing v. State, 911 So.2d 526, 537 (Miss.2005).
II.
¶ 31. This Court has upheld a trial court's refusal to grant duress instructions [686] in capital murder cases. In Ruffin, Ruffin was charged and convicted of robbery and capital murder with the underlying felony of kidnapping. Ruffin, 992 So.2d at 1169. The trial court allowed a duress instruction for the robbery charge because no eyewitnesses refuted Ruffin's claim of duress as to the robbery. Id. at 1177. But the jury also received a jury instruction stating that duress is not a defense to capital murder. Id. Ruffin argued that an additional duress instruction should have been given for kidnapping — the underlying felony in the capital murder charge against him — because the evidence demonstrated that his actions resulted from his fear of being killed by another individual. Id.
¶ 32. This Court determined that Ruffin failed to support his theory of duress with sufficient evidence. Ruffin, 992 So.2d at 1177. This Court acknowledged that duress constitutes a defense to most crimes, such as kidnapping, with homicide the exception to the rule. Id. at 1178 (citations omitted). Notwithstanding the acknowledgment that homicide is an exception to a duress defense, the Court analyzed the issue of duress and whether Ruffin proved a "present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." Id. (citing West, 725 So.2d at 890 n. 7). This Court found that not only was this case weaker than West, discussed below, but also, no rational juror could have found that Ruffin acted under duress, especially since he had the only gun in his possession on more than one occasion. Id. Additionally, the Court determined that Ruffin had reasonable alternatives to committing the crime. Id. (citing West, 725 So.2d at 887-90).
¶ 33. This Court has addressed a similar fact pattern in another capital murder trial with alleged duress contributing to the robbery and subsequent murder, as in Banyard's case. In West, a defendant was convicted of capital murder for the murder of a convenience store clerk in the course of a robbery. West, 725 So.2d at 877. On appeal, West asserted another claim similar to Banyard's: the trial court erred by refusing a simple murder or a manslaughter instruction where the armed robbery occurred under duress. Id. at 887. Unlike Banyard, the trial court granted a duress instruction to West. Id. at 890. On appeal, however, this Court found that "no rational juror could have found West to have been acting under common-law duress." Id. at 890. In other words, West was not entitled to the duress instruction. The Court determined that West's theory of duress was unsubstantiated by the evidence. Id. Notwithstanding the fact that West received the erroneous duress instruction on the robbery charge, this Court found that West was not entitled to a duress instruction for the armed robbery, the underlying felony which elevated the charge of murder to capital murder.
¶ 34. Likewise, in Fuqua, the defendant was charged with capital murder, with the underlying felony of sexual battery, and a separate arson charge. Fuqua, 938 So.2d at 280-81. Again, similar to Banyard, Fuqua argued that the trial court erred by refusing to grant a jury instruction on duress. Id. at 283. Fuqua claimed that Albert Pitts killed the victim and threatened Fuqua with death if he told anyone about the murder. Id. at 280. The Court of Appeals affirmed the trial court's denial of the instruction, finding that "[a] person is not authorized to take the life of another person at the command of a third person, whether he is in fear of such person or not. ..." Id. at 283 (quoting Wilson v. State, 390 So.2d 575, 576 (Miss.1980)). And assuming that Fuqua had a valid point, the Court of Appeals determined that "no evidence at trial [supported] a finding that Fuqua's death or serious bodily [687] injury was imminent, or that Fuqua was not negligent by placing himself in such a situation." Id.
¶ 35. Banyard was not entitled to a duress instruction on the underlying felony of robbery, because he too failed to provide any evidence that supported "present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." Ruffin, 992 So.2d at 1178 (citing West, 725 So.2d at 890 n. 7); Fuqua, 938 So.2d at 283. Similar to Ruffin and West, Banyard had sole possession of the gun as he walked toward the driver's side of Robin Ballard's vehicle. Ragsdale, the alleged threatener, thereafter went to the opposite side of the victim's vehicle from Banyard. When the victim did not hand over his money, Ragsdale went to the driver's side of the car, and Banyard claims that the gun fired when he was giving it to Ragsdale.
¶ 36. Banyard stated that he had been afraid of Ragsdale due to a previous altercation earlier in the year. While Banyard stated that he feared that Ragsdale would shoot him, Ragsdale never verbally threatened him. Instead, Banyard described Ragsdale as "serious" and "mean." Further, there was no evidence that Ragsdale possessed any other weapon. Therefore, Banyard failed to prove "any present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." Because Banyard had possession of the only known gun, he had reasonable alternative means other than shooting the victim.
III.
¶ 37. While the majority determined that the issue of duress was dispositive to this appeal, it also addressed whether the language in jury instruction 8 unconstitutionally shifted the burden of proof to the defendant. Reading the entire instruction in context coupled with jury instructions 5 and 7, instruction 8 did not shift the burden of proof, and the instructions, taken as a whole, adequately instructed the jury on the charges against Banyard. Jury instruction 8, in its entirety, stated:[26]
CAPITAL MURDER
The Court instructs the Jury, that in order for you to convict the Defendant of the crime of Capital Murder, you must unanimously find beyond a reasonable doubt from the evidence in this case that the Defendant, Demarious Banyard, on or about February 24, 2003, wilfully, unlawfully, and feloniously did then and there feloniously take or attempt to take the personal property of Robin Ballard, from the presence of Robin Ballard, against the will of the said Robin Ballard, by violence to his person or by putting Robin Ballard, in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a gun. The commission of such offense is defined as Armed Robbery.
If the jury first unanimously finds beyond a reasonable doubt that Defendant committed the crime of Armed Robbery or Attempted Armed Robbery, then the Jury must also next find, beyond a reasonable doubt, that on said date, while engaged in the commission of the aforesaid crime of Armed Robbery or [A]ttempted [688] Armed Robbery, that the Defendant Demarious Banyard, wilfully, unlawfully and feloniously, without authority of law, by any means or by any manner, not in necessary self-defense, did then and there kill Robin Ballard, a human being.
In the event that the Jury unanimously finds beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence, from the evidence in this case, that the Defendant, Demarious Banyard, committed both the Armed Robbery and the Killing of Robin Ballard, as defined in this instruction, then the Defendant is Guilty of "Capital Murder", and the form of your verdict should be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER.
"We, the Jury, find the Defendant Guilty of Capital Murder."
MURDER
The Court further instructs the Jury that if you DO NOT unanimously find the Defendant, Demarious Banyard, is Guilty of Capital Murder, you may continue your deliberations and determine whether the Defendant is guilty of the lesser included offense of "Murder."
"Murder" is defined as the killing of a human being without the authority of law by any means or in any manner when done with deliberate design to effect the death of the person killed, or of any human being. Therefore, if you DO NOT unanimously find beyond a reasonable doubt that the Defendant is guilty of Capital Murder, but you DO find, beyond a reasonable doubt, that the Defendant, Demarious Banyard, alone or with another, on or about February 24, 2003, did unlawfully and feloniously, without authority of law and not in necessary self-defense, kill Robin Ballard, a human being, with deliberate design to effect the death of Robin Ballard, then the Defendant, Demarious Banyard, is guilty of Murder.
In the event the Jury unanimously finds beyond a reasonable doubt from the evidence in this case and to the exclusion of any reasonable hypothesis consistent with the innocence, that the Defendant committed Murder as defined in this instruction, then and in that event, the form of your verdict should be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER:
"We the Jury, find the Defendant Guilty of Murder."
NOT GUILTY
The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt the Defendant is NOT GUILTY of either "Capital Murder" or "Murder", then the verdict shall be in the following form, WRITTEN ON A SEPARATE SHEET OF PAPER:
"We the Jury finds [sic] the Defendant NOT GUILTY of Capital Murder AND the jury finds the Defendant NOT GUILTY of Murder."
PLEASE NOTIFY THE BAILIFF WHEN YOU HAVE REACHED YOUR UNANIMOUS VERDICT.
¶ 38. At issue is the language of the last portion of the instruction under the "NOT GUILTY" section, which in part states: "The Court further instructs the Jury that if you unanimously find beyond a reasonable doubt the Defendant is NOT GUILTY of either "Capital Murder" or "Murder", then the verdict shall be in the following form. ..." (Emphasis added.) This instruction provided the elements for capital murder and murder and contained a form of the verdict. Within the first portion of the instruction pertaining to capital murder, the jury had the elements of armed [689] robbery and murder and unanimously had to find beyond a reasonable doubt and to the exclusion of any reasonable hypothesis consistent with innocence, from the evidence in the case, that Banyard committed both armed robbery and the killing of Ballard. If the jury did not find that the evidence met these elements, then the jury was instructed on the elements of murder. Only if the jury found that the evidence failed to meet either capital murder or murder, was the jury instructed on the form of the "not-guilty" verdict. The instruction clearly set out the options of potential findings of either capital murder, murder, or not guilty. Thus, if the jury found that Banyard was guilty of capital murder, as it did, then the jury had no need to continue with the instruction. But apart from that, the instruction clearly stated that only if the elements for each crime were met could the jury find the defendant guilty of capital murder or, alternately, murder.
¶ 39. Additionally, the jury had instruction 5, which explicitly instructed the jury that a person charged with a crime is presumed innocent, that the State has the burden of proving a defendant's guilt of each element of a crime beyond a reasonable doubt, and that a defendant is not required to prove his innocence. Jury instruction 5 stated:
The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the Defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty. The presumption of innocence attends the Defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt. The Defendant is not required to prove his innocence.
¶ 40. Jury instruction 7 instructed the jury on reasonable doubt. It stated:
The Court instructs the Jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, or the insufficiency of the evidence, but, however it arises, if it arises, it is your sworn duty to find the Defendant "Not Guilty."
¶ 41. Based on a contextual reading of jury instruction 8 and considering the instructions as a whole, the jury received adequate instructions, and the burden did not shift to Banyard.
IV.
¶ 42. For the above reasons, I respectfully dissent and would affirm the judgments of the trial court and the Court of Appeals.
RANDOLPH, J., JOINS THIS OPINION IN PART.
[1] Ragsdale ultimately pleaded guilty to manslaughter and was sentenced to twenty years in prison.
[2] Kyser testified that he did not know the identity of the speaker because it was dark.
[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[4] Banyard's proffered jury instruction D-13 read:
The Court instructs the jury that in order for duress to be a defense to a criminal charge, the impelling danger must be present, imminent, and impending, and such a nature as to induce in a person well-grounded apprehension of death or serious bodily harm if the act is not done and that the danger to the defendant must be continuous.
If you find from the evidence that Demarious Banyard acted under coercion and duress and the coercion and duress was created by Dennis Ragsdale and that the coercion and duress was present, imminent, and impending and induced Demarious Banyard['s] apprehension of death or serious bodily injury if he did not comply with Dennis Ragsdale's wishes and that such apprehension was continuous throughout the commission by him of the criminal act, then you should find Demarious Banyard not guilty of capital murder.
If you find Demarious Banyard not guilty of capital murder, then you may proceed with your deliberations to decide whether he is guilty of manslaughter.
If you find from the evidence that Robin Ballard was killed by the act, procurement, or culpable negligence of Demarious Banyard and without authority of law, then you should find him guilty of manslaughter.
[5] Banyard filed a motion for rehearing and raised an additional Eighth-Amendment argument not raised at trial or in the initial appeal. The Mississippi Youth Justice Project, joined by several other organizations, requested permission to file an amicus brief, raising several additional issues, which the Court of Appeals granted. After additional briefing on rehearing, the Court of Appeals denied Banyard's motion.
[6] Young v. Guild, 7 So.3d 251, 259 (Miss. 2009) (quoting Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992)).
[7] Id. at 259.
[8] Id.
[9] Ellis v. State, 778 So.2d 114, 118 (Miss. 2000) (citing Giles v. State, 650 So.2d 846, 854 (Miss. 1995)).
[10] Walker v. State, 913 So.2d 198, 235 (Miss. 2005).
[11] West v. State, 725 So.2d 872, 888 (Miss. 1998), overruled on other grounds by Jackson v. State, 860 So.2d 653 (Miss.2003).
[12] West, 725 So.2d at 891 (Miss. 1998).
[13] Ruffin, 992 So.2d at 1177 (citing West, 725 So.2d at 890 n. 7) (citing United States v. Harper, 802 F.2d 115, 117 (5th Cir.1986)).
[14] See, e.g., Reddix v. State, 731 So.2d 591, 595 (Miss. 1999) (reversing where "the jury could not have acquitted Reddix based upon self defense because it was not informed of any law permitting them to do so").
[15] Banyard v. State, 47 So.3d 708, 712-13 (Miss.Ct.App.2009). See Miss.Code Ann. § 97-3-27 (Rev.2006) ("The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except those felonies enumerated in Section 97-3-19(2)(e) and (f), or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter.") (emphasis added).
[16] Banyard, 47 So.3d at 712-13.
[17] Ellis v. State, 778 So.2d 114, 118 (Miss. 2000) (citing Giles v. State, 650 So.2d 846, 854 (Miss. 1995)) (emphasis added).
[18] "The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except those felonies enumerated in Section 97-3-19(2)(e) and (f), or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter." Miss.Code Ann. § 97-3-27 (Rev.2006) (emphasis added).
The excepted felonies are found in Section 97-3-19(2)(e) and (f):
(e) When done with or without any design to effect death, by any person engaged in the commission of the crime of ... robbery.. . .
[19] See, e.g., Wilson v. State, 390 So.2d 575, 576 n. 1 (Miss. 1980) ("Duress is a valid defense for many crimes including robbery; [h]omicide is an exception.") (citing Watson v. State, 212 Miss. 788, 55 So.2d 441, 443 (1951) ("[T]he law will excuse a person, when acting under coercion or compulsion, for committing most, if not all, crimes, except taking the life of an innocent person.")).
[20] See, e.g., Pittman v. State, 297 So.2d 888, 891 (Miss. 1974).
[21] Id.
[22] Instruction 5 stated: "The law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the Defendant guilty of every material element of the crime with which he is charged. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty. The presumption of innocence attends the Defendant throughout the trial and prevails at its close unless overcome by evidence which satisfies the Jury of his guilt beyond a reasonable doubt. The Defendant is not required to prove his innocence."
[23] McHale v. Daniel, 233 So.2d 764, 768 (Miss. 1970).
[24] Id. at 769.
[25] Id.
[26] The trial judge read the instructions into the record. Her reading of instruction 8 had a few minor differences from the written instruction cited in this separate opinion. The only noticeable difference was that the judge did not read the "CAPITAL MURDER," "MURDER," and "NOT GUILTY" headers. Instructions 5 and 7 were read as written and cited in this separate opinion.
7.2.6.4.2.1.3 U.S. v. Fleming 7.2.6.4.2.1.3 U.S. v. Fleming
7 USCMA 543, 23 CMR 7
UNITED STATES
v.
FLEMING
No. 7943
Decided February 8, 1957
[23 CMR 11] On petition of the accused below. CM 377846, reported below at 19 CMR 438. Affirmed.
Major Frank C. Stetson, Allen E. Gramza, Esq., and Alfred E. LaFrance, Esq., argued the cause for Appellant, Accused.
First Lieutenant Arnold I. Burns argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Thomas J. Newton.
Opinion of the Court
HOMER FERGUSON, Judge: The accused Army officer was tried by general court-martial for three specifications alleging violations of Article of War 95, 10 USC § 1567 (1946 ed) (Charge I), two specifications reciting similar acts-allegedly violative of Article of War 96, 10 USC § 1568 (1946 ed) (Charge II), one specification of violating Article 133, Uniform Code of Military Justice, 10 USC § 933 (Charge III), and an identical specification purportedly violating Article 134, Uniform Code of Military Justice, 10 USC § 934 (Charge IV). He pleaded not guilty to all charges and specifications but was convicted with certain exceptions and substitutions of specification 3 of Charge I, specification 2 of Charge II, and the specifications and Charges III and IV. The accused was sentenced to total forfeitures, and to be dismissed from the service. After modifications of the findings, the convening authority approved the findings and sentence. An Army board of review, exercising its fact-finding powers, disapproved the findings of guilty of Charges III and IV and, after excepting an allegation from the identical specifications laid under Articles of War 95 and 96, supra, affirmed the findings of guilty and the sentence. In order to more clearly understand the case, the now remaining allegations in the two identical specifications of which the accused now stands convicted state as follows:
That the accused, "then Major and held as a prisoner of war by the enemy, did at or in the vicinity of Pyongyang, North Korea, between 1 February 1951 and 30 May 1951, willfully, unlawfully, and knowingly, collaborate, communicate, and hold intercourse directly with the enemy by joining with, participating in, and leading discussion groups and classes reflecting views and opinions that the United Nations and United States were illegal aggressors in the [23 CMR 12] Korean conflict, . . .[1] and by participating in the preparation and making communist propaganda recordings designed to promote disloyalty and disaffection among United States troops, by praising the enemy and attacking the war aims of the United States, which recordings were later broadcasted in English over the Pyongyang radio, to wit: a statement which was broadcasted on or about 13 April 1951, stating in effect that the communists were treating prisoners of war in accordance with the principles' of humanity and democracy, and that the United States made a grave error in interferring [sic] in Korean internal affairs and should leave at once; an appeal to the 'Five Great Powers' (USSR, Peoples Republic of China, United Kingdom, United States, and France) broadcasted on or about 24 April 1951, urging them to sign a peace pact, and urging that anyone of the powers which refused to attend conferences for that purpose be considered a government with aggressive intentions; an appeal to President Truman and General McArthur [sic] broadcasted on or about 24 April 1951, urging them to withdraw United Nations forces immediately from Korea; a surrender appeal broadcasted on or about 27 April 1951, inviting United Nations Troops to surrender and promising kind treatment by the communists; and a round-table conference or panel of five prisoners of war broad casted on or about 4 May 1951,urging support for the Communist sponsored Second World Peace Congress, in which he served as moderator; thereby giving aid and comfort to the enemy."
This Court granted the accused's petition for review, setting forth in pertinent part the following issues:
1. Whether the evidence is sufficient to support the findings of guilt.
2. Whether the law officer erred by instructing the court that in order to excuse a criminal act on ground of coercion, compulsion, or necessity, one must have acted upon a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm.
3. Whether the law officer erred by refusing to give the defense requested instructions on partial mental responsibility.
4. Whether the law officer erred by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life.
5. Whether the law officer erred by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a.
6. Whether employment by the accuser and the convening authority of pleadings designated by the accused as embodying a "shot gun" technique prejudiced the accused.
The record before us in this case is voluminous and the two specifications remaining for consideration recite a course of conduct which permeates the entire trial record. Therefore a detailed statement of the facts will be necessary. There is, however, little dispute between the parties as to what happened. Basically the issue boils down not so much as to what the accused did or did not do, but rather to the justifications for his actions. As stated in the defense appellate brief, "the issues with which we are here concerned are not the acts of the accused but whether the affirmative defenses of these acts were rebutted by the prosecution evidence."
The accused was captured by the Chinese Communists near the Yalu River in the northern reaches of Korea. After his capture he was marched to different locations and ended up being interned in the Valley Camp for about two months and for a month at a camp near Pyoktong. At the Valley Camp an English-speaking North Korean officer, whom we will hereafter refer to as Colonel Kim or Kim, informed the accused that arrangements were being [23 CMR 13] made to enable the prisoners to broadcast radio messages informing their families of their whereabouts. On January 29, 1951, Colonel Kim notified the accused, Lieutenant Colonel, then Major, Liles, and Major MacGhee, the three senior American officers in this particular prisoner of war group, that the time had arrived for the broadcast. The day following, these three officers, in company with seventeen other prisoners, departed by truck for Pyongyang. En route, the party stopped at the badly damaged village of Tackchon. The populace was hostile and evinced a threatening attitude toward the prisoners. A People's Court or Town Meeting was called, attended by about eighty-five Korean civilians. Questions were asked by the villagers as to why the Americans had come to Korea. According to a number of witnesses at the trial, most of the questions were answered by the accused and Colonel Liles through Colonel Kim, who acted as interpreter. Captain Galing testified that the accused stated that South Korea was the aggressor; that the war was propagated at the instigation of the imperialistic war mongers of Wall Street; and that President Truman and General MacArthur were the tools of the Wall Street conspiracy. Major MacGhee could not recall the accused specifically answering any questions; however he did remember that the answers given were to the effect that the United States was the aggressor in Korea; that its forces had no business there, and that the war and slaughter should be ended. The accused admitted that in order to placate Kim and the hostile and threatening crowd, he might have used some "party line" phrases.
Upon arrival at Pyongyang on February 2, 1951, the accused was elected compound leader. Not only was he responsible for the discipline and organization of the prisoners but he was also the link between the prisoners and Colonel Kim. He transmitted the captors' orders to the prisoners of war, and, conversely, the complaints and requests of the group to their captors. The accused held the position of group leader until June 1, 1951, at which time Captain Allen succeeded him.
After arrival at Pyongyang, Kim informed the prisoners that they were to prepare radio scripts describing their capture and Korean experiences. The accused testified that up to this time his idea had been only to let his wife know he was alive. To that end the accused submitted a short script. This was returned and he was informed by Kim that his broadcast time had been lengthened to fifteen minutes. The script was written, rewritten and revised some twenty or thirty times until finally broadcast. According to the accused he resisted the propaganda directed against President Truman along with demands that only United Nations troops be withdrawn from Korea. He testified that he succeeded in getting by with comments about the Roosevelt administration and a statement that all foreign armies—which of course included the Chinese—be withdrawn from Korea. Also included in the broadcast were statements that the prisoners were being treated according to the principles of democracy and humanity, and that the United States erred when it interfered in the internal affairs of Korea.
The accused testified that after the broadcast, Kim informed him that he was dissatisfied with the cooperation he had been receiving from the prisoners. They were insincere and, apparently to educate them, he was going to commence round-table discussions. The accused objected, but he was forced to pick four other prisoners to participate in a panel discussion, of which he was to act as moderator. Subsequently a month was spent in preparation of the script, after which time the panel discussion recording was made. The subject matter was the "Second World Peace Congress." The accused testified that Kim had inserted in the script as broadcast a number of his own Communist line phrases. A member of the panel, Lieutenant Wilson, testified that included among the points discussed were reduction of armaments and the outlawing of mass destruction weapons.
While the round-table script was being prepared, Kim read several "appeals" to the prisoners. The substance of these appeals is related in the specifi [23 CMR 14] cations. In brief, they were for a Five Great Powers Peace Pact; for President Truman and General MacArthur to withdraw United Nations forces from Korea; and for the United Nations troops to lay down their arms and surrender, being assured of kind treatment by the Communists. Each appeal was reduced to writing on a separate sheet of paper. They were laid on a table and a blank sheet for signature was placed underneath. The accused testified that he wrote his name on two of the blank sheets of paper. However, blank sheets of paper, or not, he pointed out that it made little difference whether the prisoners did or did not sign the appeals, for the Communists had already obtained the prisoners' signatures and would simply superimpose any signature upon any publication or article they desired.
Toward the end of April 1951, the prisoners were taken to a Korean house, which had electricity, where the roundtable discussion and the appeals were to be recorded. After the panel discussion was recorded, the appeals were read into the microphone. When an appeal was read, each prisoner by order of rank trooped to the front of the room and "voice signed" his name, rank and serial number. The accused admitted voice signing the Five Great Powers Peace Conference Appeal. However, he and the other prisoners objected to signing a demand to President Truman and General MacArthur to withdraw United Nations troops from Korea. The prisoners finally prevailed in that the word "demand" was changed to "appeal." The accused then voice signed it. In addition he admitted voice signing the surrender appeal. After the accused and Colonel Liles had voice signed the latter appeal, dissension began to develop among the prisoners in the back of the room. This dissension grew into outright refusal to sign this appeal. The objections became so vehement that Kim thereafter abandoned any attempt to secure voice signatures to the surrender appeal.
To keep the picture in focus, it is advisable at this point to drop back and pick up the coercive circumstances leading up to the accused's surrender, and his participation in the propaganda broadcasts. The accused testified that just before his capture, while firing upon the enemy, he was rendered unconscious by a shell blast. The blast resulted in approximately fifteen superficial wounds in his back and legs. His first recollection after the blast was being kicked in the head by a Chinese soldier. He struggled to his feet and noticed a wounded fellow officer who had been his assistant as an advisor to a South Korean regiment. While prevented at bayonet point from rendering aid to this officer, another Communist soldier walked over to where he lay and killed him with a burp gun. The accused was marched south about seventy miles. He was questioned on numerous occasions and during one of the interrogations, when he continued to refuse to give more than his name, rank and serial number, he was physically abused by being slapped, knocked down, kicked, and pushed around on the floor. For about ten days he was given practically no food and water. He was subsequently taken to the Valley Camp. By this time, due to wounds, mistreatment, malnutrition and debilitation, he had lost approximately forty pounds. Conditions at the Valley Camp—not only according to the accused, but other prisoners as well—were extremely bad. Few of the captured soldiers had other than summer clothing. The accused in company with twelve other prisoners, occupied one small room. There was not enough space for all the prisoners to lie down at night and stretch out. Two cups of millet per day constituted the daily sustenance. Approximately sixty per cent of the prisoners were unable to walk and the mortality rate was so high that the dead were not buried for days, merely stacked up like cordwood outside in the freezing weather. The accused made numerous demands upon his captors for more food and for other necessities of life, such as medical attention and medical supplies for the sick and wounded. He felt that he was able to restore some type of discipline, organization, and the will to live among the prisoners. Toward the end of 1950 the prisoners were marched to another location. The accused testified that due [23 CMR 15] to his intercessions, the sick and wounded were carried in ox carts, instead of being marched on foot, which would have resulted in death to a sizable number. The accused was himself so weak that he was unable to carry his own knapsack. Conditions at the new camp were as bad, if not worse than those at the original location. The accused continued his efforts to obtain better treatment from his captors.
After the twenty prisoners arrived at Pyongyang, the food and living conditions markedly improved.
Before making the broadcasts, the accused testified that he was constantly harangued and pressured by Colonel Kim. According to Kim, there were two kinds of people: those for peace and those against peace. Those against peace were war criminals and not fit to live. If the accused fitted into that category he would be put in a "hole" and would never come out. But if he were for peace, he was a friend. His actions would indicate whether he was for or against peace. When the accused initially refused to do the acts to prove his "friendliness," he was asked if he wanted to return to the previous camp up north. The accused replied in the affirmative and Kim informed him that he could start walking the 150-200 mile distance. It was midwinter, the accused's shoes had been stolen, and he was wearing rags wrapped around is feet. These factors, plus his greatly weakened physical condition, led the accused to the conclusion that he would never reach the north camp alive. Thereafter, on each occasion when the accused objected to Kim's propaganda efforts, he was threatened with the walk north.
Colonel Liles testified that when Kim insisted on the manuscripts being prepared, the accused informed him that the prisoners could not comply unless more food was forthcoming. Kim, promised to try to accomplish that objective, but subsequently returned and said he was unable to secure additional rations. In the meanwhile nothing more had been done on the manuscripts. Kim was angry and declared that any man who refused to make a radio recording would march back to Pyoktong on foot. After this threat, the writing commenced. Major Allen also testified to numerous threats to march the prisoners north to the Yalu River. In his opinion, none could have survived the march.
The accused ascribed as further reasons for lending support to the roundtable panel and the appeals, the fact that due to his weakened physical condition and the constant psychological hammering of Colonel Kim, he was in a state of complete confusion, frustration, and hopelessness. Morale among the prisoners had reached bottom. The food was barely sufficient to sustain life, and during the arguments over the appeals Kim even threatened to cut that off.
Also Kim's subsequent threat of the caves made to the accused and the other prisoners of war unless they cooperated undoubtedly affected prisoner cooperation. After completion of the accused's broadcast at Pyongyang, the prisoners were moved to a location near the caves. The latter were recesses in the hillside. They were wet and muddy with little or no heating facilities. The prisoners lived in the muck and mire like animals. Primarily the caves were used for South Korean prisoners, but also some American and British soldiers were incarcerated there. Also a great many transient, sick and wounded, and in some instances recalcitrant prisoners, resided in the caves. The mortality rate in the indescribable filth and privation of these holes in the ground was extremely high. The prisoners felt that a sentence to the caves was almost tantamount to a sentence of death. Of the prisoner group with whom the accused was associated at least eight were punished by being sent to the caves. Fortunately these eight survived, except that one officer died shortly after being taken out of the caves because of his weakened condition. Almost all who testified were of the opinion that had their confinement in the caves lasted much longer, they would have died. Major MacGhee, one of the officers sentenced to the caves, testified that all twenty-three Ameri [23 CMR 16] cans already there when he arrived died.
The accused testified that when he objected to a round-table discussion, Kim took him to see fourteen recently captured young American enlisted men huddled together in the filth of a small cave. They were sick, dirty, had no latrine, little water, and no hope. The accused tried to get them moved to his camp, and they pleaded with him to try to accomplish this objective. Kim kept the accused "dangling" with vague promises. According to the accused, whenever he balked on the propaganda, Kim reminded him of the Americans in the caves and again took him to see them. Each time marked fewer numbers. On the last trip only one American remained. He was lying in the mud, too sick to rise, and he informed the accused that all the rest had died, and that he too was dying.
Discussion groups were formed and classes were held in the prisoner of war camp. Initially, Mr. and Mrs. Suh came over in the evenings and discussed political matters. These discussions and subsequent developments will be related through the witnesses.
According to Captain Galing, after the twenty prisoners were taken to Pyongyang, Kim or his secretary, Suh, came to their rooms on a number of occasions and one or two hour discussions would be held with respect to who started, and who was responsible for the Korean war. Magazine articles were sometimes read, followed by questions. The accused responded to these questions and some of his statements were to the effect that South Korea was the aggressor; that Americans had no business interfering in a Korean civil war, and that Wall Street was backing the war for financial gain.
Major MacGhee testified that study classes were supervised by Suh or Colonel Kim. These classes were held in the evenings after Communist propaganda for study had been given to the accused for distribution to the prisoners during the day. During the study sessions one of the prisoners would be called upon to read a portion of the material and thereafter the group would discuss it. MacGhee recalled that on one such occasion, the accused made remarks with respect to business in America, which highlighted the decadence of capitalism. Quite often the Korean who had commenced the class would leave. When that happened, normally the accused or Colonel Liles led the discussion.
Lieutenant Wilson testified that he remembered the general tenor of one of the articles discussed was that the "people" were speaking out for peace, disarmament, and the outlawing of weapons of mass destruction. Wilson was aware of the fact that the accused participated in a number of the discussions, but he had no present recollection of what he said.
Master Sergeant Christie recalled that he remembered hearing the accused and other prisoners of war discuss the eventual collapse of the monopoly controlled American economy. On one occasion the accused used as an example Argentina, pointing out that with a lower standard of living, it could produce wheat on the world market cheaper than the United States.
When the twenty prisoners, together with another group of fifteen prisoners who had joined them two weeks earlier, were moved to the new location near the caves—sometime in March 1951—two-hour indoctrination classes were held during the day followed by two-hour evening discussion periods. Sergeant Gardiner testified that the accused appeared to be in charge of these evening sessions. He could not recall that anything anti-American was stated by the accused. A number of witnesses testified that when the Korean monitors left the room, the accused would slant his discussion favorably to the United States.
John Narvin, formerly private first class, recalled being posted by the accused to watch for the Koreans during one of the discussions. Colonel Liles testified that when the captors were absent the accused attempted to point out flaws in the Communist system.
An article appearing in a North Korean magazine bore the accused's name and picture. It stated that United States forces should leave Korea. The [23 CMR 17] accused testified that although he did not author the article it appeared to contain language similar to his first broadcast. He pointed out that it was an easy matter for the Communists to obtain one's picture and signature on any publication they desired. They frequently took pictures of the prisoners and had everyone's signature.
After June 1st, 1951, Captain Allen was elected group leader and the accused was made librarian. He was responsible for a considerable quantity of Communist propaganda. He did not let the prisoners use the material for toilet paper because it was inventoried and he was held responsible for the missing items.
The accused's policy with respect to cooperation with the enemy by the other prisoners was predicated upon his belief that every prisoner had to be guided by his own conscience. The record is clear that Fleming did make statements to that effect to a number of the prisoners. But there is also testimony in the record that he urged some of the prisoners to complete propaganda writings and not hold back from involvement in the political activities, or else Kim might make some changes. The accused's idea of his policy as to the propaganda activities can best be described by his own testimony. He testified:
"A. I know in my own mind that if I had taken the policy of saying to these men: 'Resist them; everybody resist them,’ that information would have gone to headquarters so fast that they would have known it about as fast as everybody else. And I had a pretty good idea of what would happen to me.
"Secondly, I then would be the individual responsible for any beatings, tortures or deaths that may occur to anyone of the men there.
"Another thing was that a policy like that was absolutely not practical because you have to take human nature into this thing. They wouldn't have done it.
"So it had to be one where the individual himself, in the final analysis, was going to be the one that said: ‘I stop here regardless of what happens.'
"And I am firmly convinced in my own mind that the policy was right. It proved itself right when the flare-up came during the recordings of the so-called appeals; when some of these people went to the end and stopped, and that was it.
"That is the only policy I could see that would have any practicability at all and be workable.
"By doing that we could resist in every way that we could think of as individuals. I resisted in every way that I could, and I know that every other individual resisted in every way that he could, and the resistance was different as the situations developed. Some of it was blunt resistance; some of it was passive; some of it took the turn, as I have mentioned so many times, of delay, double talk, sabotage, not understanding, everything we could think of to hold off.
. . . . .
"A. I felt this way, and this was certainly nothing new at Camp Twelve. It had started long before I had anything to do with Camp Twelve. The most futile thing in the world was a dead prisoner of war in North Korea. And I had determined a long time before this that I was going to do everything in my power to keep those people alive. By doing so I was, in some small way, defeating what the Communists were trying to do.
"As I said before, the best thing that could happen to the Communists was to have us all die. And, secondly, in a situation like that you have many thoughts of home. I thought, and everyone else thought-not only thoughts of just yourself getting home, but the thoughts of those people at home that are waiting for you to get home, the mothers, and the wives, and the fathers. And the way I feel about it personally is, and I think I am right, that for these men that came hack that may have done things wrong over there, it means more to their mothers and their families than a little bit of Com [23 CMR 18] munist indoctrination that actually may have more Communist heroes than anything else.
"A. I feel that there are innumerable officers and enlisted men that have had a long-time experience as prisoners of the Communist armies, that can give invaluable information to not only the American military establishment as to what can be done to better the situation if and when we fight the Communists again, for those that may be captured in the future; lessons that were learned by our mistakes, and by the suffering of the men that were over there. But also to show the American people our side of what Communism really is. And, believe me, the American people need to be shown.”
There is evidence in the record that by virtue of the accused's efforts more favorable conditions were obtained for the prisoners. A kitchen was set up with some degree of cleanliness, which helped reduce dysentery which was fatal to so many prisoners in Korea. Some semblance of discipline was restored and the prisoners were forced to exercise and follow a more or less military routine. They were not allowed, as Fleming testified, to merely lie down, give up and die. On at least one occasion, the accused obtained hospitalization for two prisoners which possibly saved their lives. Also he was able to secure a certain amount of medical attention and supplies. He pushed some of his demands so forcefully that, according to his testimony, on at least two occasions Colonel Kim flew into a ranting rage, pulled out his pistol, and threatened to kill him. Other witnesses testified that they recalled one instance when the accused was forced to get up before the prisoner group and condemn himself for his persistent behavior.
To counterbalance the scale, there is evidence that a number of prisoners reached a point from which they refused to budge with regard to Communist propaganda. These prisoners unquestionably knew that their refusal would mean banishment to the caves.
They nevertheless threw back the challenge to their Communist captors and refused to go any further. One British soldier, Sergeant O'Hara, refused from the inception to have anything to do with the Communist propaganda. A devoutly religious man, he was apparently able to withstand the Communist pressure. He eventually ended up in the caves but survived the war.
Evidence was introduced of the accused's outstanding military record.
There was psychiatric testimony that the accused was able at the time of the commission of the offenses to distinguish right from wrong and to adhere to the right. However, both psychiatrists—one for the accused and one for the Government—declared that under the circumstances described, the extreme stress and privation impaired the accused's ability to adhere to the right.
The assignments of error in this case will be taken up seriatim:
I
Is the evidence sufficient to support the findings of guilty?
As previously stated, there is actually little dispute on the facts. For all practical purposes the accused admits that he committed the acts alleged but insists that under the circumstances he was justified in so doing. According to the accused the acts were committed (1) to protect the lives and well-being of the fellow-prisoners of war; (2) under coercion and duress; and (3) while incapable of adhering to the right. These defenses will be dealt with chronologically.
There is considerable evidence in the record indicating that the accused was motivated—in part at least—by the well-being of his fellow-prisoners of war. There is other evidence, however, which casts a doubt as to the accused's primary motivation. Major MacGhee testified that when he refused to make a recording, Fleming informed him that he, Fleming, would have to report to Colonel Kim that MacGhee had double-crossed him. Within a short space of time thereafter MacGhee was transferred to the caves. According to Ser [23 CMR 19] geant Gardiner, the accused informed him that if he didn't straighten out he would be "shipped to the caves." Lieutenant Van Orman recalled that the accused told him that Kim's "got his eye on some of the people laying down around here and trying to get by and not get involved in the political program." And "Kim is getting sick of people hanging around here who are not producing, and is thinking about lowering the strength of the camp." Van Orman took the last statement to mean that if he didn't start cooperating, he would be transferred to the caves. But under the circumstances of this case, as it pertains to the issue now under discussion, we will assume that the motives of the accused were to "protect the lives and well-being of his fellow prisoners of war." However, good motives are not a defense to a crime.
In United States v Batchelor, 7 USCMA 354, 22 CMR 144, the Court had before it the defense contention that under the law officer's instructions the members of the court-martial could convict the accused if they were satisfied that he had voluntarily and knowingly communicated with the enemy without proper authority "even though the accused believed his acts contributed to world peace and the best interests of his fellow-prisoners and his country." The Court concluded that "the instruction is a good statement as to what the law is in this field," adding:
". . . The question then becomes one of whether what might be a laudable motive—in entirely different circumstances—will serve to exculpate a defendant charged with improper communication with the enemy.
"In Chandler v United States, 171 F2d 921 (CA 1st Cir) (1948), the accused, an American citizen, was charged with treason. It was argued that treason is a crime dependent upon the actor's motives, and that the jury should have been told that the defendant could not be found to have had an 'intent to betray' if they believed that he acted from patriotic motives upon a firm conviction that what he did was for the best interests of the United States. The Circuit Court rejected this argument, and we believe its language is appropriate here. Chief Judge Magruder, the organ for the court, disposed of the matter as follows:
‘. . . if appellant's argument in this connection were sound, it would of course be applicable whatever might be the character of the overt acts of aid and comfort to the enemy. Suppose Chandler had obtained advance information of the Anglo-American plans for the invasion of North Africa and had passed the information on to the enemy. Would a treason prosecution fail if he could convince the jury that, in his fanatical and perhaps misguided way, he sincerely believed his country was on the wrong side of the war; that he sincerely believed his country's ultimate good would be served by an early withdrawal from the war; that he sincerely believed that the best, perhaps the only, way to accomplish this good end was to bring it about that the first major military operation of the United States should be a resounding fiasco, thereby stimulating such a revulsion among the American people that the perfidious administration would be forced to negotiate a peace? It is hardly necessary to state the answer to that question.
'When war breaks out, a citizen's obligation of allegiance puts definite limits upon his freedom to act on his private judgment. If he trafficks with enemy agents, knowing them to be such, and being aware of their hostile mission intentionally gives them aid in steps essential to the execution of that mission, he has adhered to the enemies of his country, giving them aid and comfort within our definition of treason. He is guilty of treason, whatever his motive.'''
In United States v Schniederman, 106 F Supp 906, 930 (S .D. Calif) (1952), the Federal District Court had before it, allegedly, violations of the Smith Act; i.e., teaching and advocating the [23 CMR 20] overthrow of the United States Government by force and violence. With respect to motive, the court made the following observation:
"Intent and motive should never be confused. Motive is that which prompts a person to act. Intent refers only to the state of mind with which the act is done.
"Personal advancement and financial gain are two well-recognized motives for much of human conduct. These laudable motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.
"Good motive alone is never a defense where the act done is a crime. If a person intentionally does an act which the law denounces as a crime, motive is immaterial except insofar as evidence of motive may aid determination of the issue as to intent." [Emphasis supplied.]
The evidence in the instant case is ample to support the conclusion that the accused intended to do the acts charged. Since, as we will hereafter discuss, the offenses here require no specific intent, the accused's motives are immaterial, except, of course, as they relate to the determination of an appropriate sentence.
The accused next argues that the evidence is insufficient because he was excused from the legal consequences of his actions by virtue of duress and coercion. In substance, the law officer instructed the court that in order to convict it had to find beyond a reasonable doubt that the accused did not act under a well-grounded apprehension of immediate and impending death, or of immediate serious bodily harm. The trial court did not so find. The members of the court had all the facts laid before them. Whether or not they chose to believe Fleming and, if so, to what extent, was a matter solely within their province. They had the right to assess to the witnesses, including the accused, whatever weight they desired, in the light of all the testimony in the case. Being the sole judges of the credibility of the witnesses, they were entitled to accord to the evidence such weight as they considered under all the circumstances of the case it merited under proper instructions. The real issue then is whether the instructions on the claimed defense of duress and coercion were legally correct. This issue is decided in subdivision II hereinafter. Since this Court cannot weigh the facts as to this, for the accused to prevail we would have to find as a matter of law that the accused's actions were committed under a well-grounded apprehension of immediate death or serious bodily harm. Although by civilized standards conditions in the prisoner of war camp were deplorable, we cannot conclude as a matter of law that the threat of duress or coercion was so immediate as to legally justify the accused's acts. Admittedly, lingering in the background at the camp was the threat of the caves. Moreover it appears that the accused was threatened with a 150-200 mile hike back north. At the time of this threat the accused was without shoes and he deduced that he would be unable to successfully accomplish the trip alive. However, assuming this fact to be true, the court-martial did not find that the threat, standing alone, fell within the immediacy contemplated by the law. Perhaps they felt that accused should have determined by refusal what would have then happened; whether and under what conditions the threat would have been carried out. He might have been given shoes. He might have been called upon to make the march in stages that he could have endured. We note that as a matter of fact many threats were made by the Communists which were not carried out. Major MacGhee testified that after several months' captivity, he definitely concluded that his captors would not carry out their threats to the death. He thereafter refused to "cooperate" and although sent to the caves, he survived. Also, the court-martial could have found that daily life in the prisoner camp did not equate to fear of immediate death or great bodily harm. During the accused's tenure as group leader, not a single prisoner of war died. Many people who resided in the caves died; many did not. Of the eight prisoners in Colonel Fleming's group [23 CMR 21] who eventually ended up in the caves, all survived. One, Lieutenant Crockett, died shortly after his release; he had long been seriously ill. At one time he had been hospitalized by his captors. The rigors of prison life eventually exacted their toll and this fine officer—like many others—died. Further, there is evidence in the record which indicates that the accused had already communicated and cooperated with his captors prior to his knowledge of the caves. He testified that he made his initial recording in Pyongyang and then moved to the new location near the caves. Before the move he had not been impressed with Kim's threats to put him into a "hole," and it was not until later that he was aware of the fact that the threat actually referred to the caves. But prior to that time he had made a recording allegedly stating that prisoners were being treated humanely and the United States had made a mistake in interfering in Korea. He had addressed the town meeting in Tackchon, purportedly declaring that the war was being fought at the behest of the Wall Street profiteers. He had also participated in some of the discussion groups. Finally, the fact-finders could have concluded that the prisoners were not—with isolated exceptions—physically abused. A number of witnesses testified that they were not subjected to physical abuse and that they had never noticed marks of physical violence upon the accused.
After a careful study of the facts in this case, we cannot conclude that the court-martial erred as a matter of law in not finding that the threats of duress and coercion fell within the law officer's definition of immediacy, which would excuse the accused's conduct. Stated differently, the court on the evidence of record could have reasonably found that the accused acted without any well-grounded apprehension of immediate death or serious bodily harm.
The accused next maintains that the evidence is insufficient in that his ability to adhere to the right was so impaired or diminished by harassment, deprivation, degradation, or physical impairment as to make it impossible for him to refuse his captor's demands or to adhere to the right with respect to the particular acts charged.
The expert psychiatric testimony adduced by both the prosecution and the defense was to the effect that although the accused was responsible for his acts and could adhere to the right, his ability with respect to the latter was limited or impaired. In this regard this Court has repeatedly approved the test set out in paragraph 120b, Manual for Courts-Martial, United States, 1951, which provides:
". . . A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase 'mental defect, disease, or derangement' comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the rig ht as to the act charged." [Emphasis supplied.]
The law officer in his charge to the court gave this portion of paragraph 120b practically verbatim. There is simply no evidence of record that the accused's ability to distinguish right from wrong or adhere to the right was completely impaired. Evidence that the accused's ability to adhere to the right was impaired is not a good defense. Furthermore, under the facts of this case, the fact-finders were justified in finding that the accused could adhere to the right. The accused testified on two occasions he was so adamant in his stand that Colonel Kim threatened to kill him, and he told Kim to go ahead and pull the trigger. And after he left the Pyongyang area, according to his testimony, he no longer cooperated with [23 CMR 22] his captors and was considered a reactionary. These factors do not indicate even a partial inability to adhere to the right.
II
Did the law officer err by instructing the court that in order to excuse a criminal act on grounds of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm?
That part of the law officer's instruction on duress and coercion, objected to by the accused, is set forth below:
"However, this doctrine of coercion, compulsion or necessity is hedged about with certain positive rules of law and is recognized only in clear cases. In order to excuse a criminal act on the ground of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.
"Fear of injury to one's property or of remote bodily harm does not excuse a crime. Moreover, the threat of immediate and impending death or of serious and immediate bodily injury must have continued throughout the entire period of time during which the crime was allegedly committed. If the accused had a reasonable opportunity to avoid committing the crime without such danger, he cannot invoke duress as a defense. In other words, this coercion or compulsion that will excuse a criminal act must be present, immediate and im1Jencling, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done." [Emphasis supplied.]
During an out-of-court conference, the defense counsel, after objecting to the wording of the law officer's proposed instruction—as above given—offered a substitute:
". . . First of all, with reference to the instruction on coercion and compulsion, we object to the last sentence on page 21, which carries on to page 22, in which the Law Officer proposes to instruct the Court as follows:
"'In order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.'
"We submit that in lieu of the statement just read the following be incorporated in the instruction:
"'Coercion, which will excuse the commission of an act, otherwise criminal, must be immediate and of such nature as to induce a well-grounded apprehension of immediate, imminent, or impending death, or serious bodily injury, and leave no reasonable opportunity to escape the compulsion without committing the act.'
"Now, in this connection it is our position that in light of the testimony in this case, notwithstanding the Manual instruction on the subject, it would be improper to instruct a jury that one must have acted under a well-grounded apprehension of immediate and impending death.
"The fear of mediate or a delayed, or a wasting death from starvation, deprivation or other like conditions, can just as well spell coercion and compulsion as the fear of immediate death.
"The instruction that we have requested is substantially taken from the case of R. I. Recreational Center vs Aetna Casualty & Surety Company, 172 [sic, 177J Fed. 2d, 603, and cited in 12 ALR 2d, at page 230, and in 14 CMR, at Page 350 [sic 356].” [Emphasis supplied.]
A similar instruction was before this Court in United States v Olson, 7 USCMA 460, 22 CMR 250. In that case Judge Latimer, writing for the Court, upheld the instruction as being in accordance with the Federal holdings.
In their brief, counsel for the accused admit that the law officer's instruction on duress and coercion is a correct statement of the law when prof [23 CMR 23] fered as a defense to a routine crime committed in a civilized society. However, in a case such as this the defense argues that "to attempt to apply such law to the situation overwhelmingly shown by this record of trial, and by history to have existed in the prisoner of war camps, where every breath was drawn under constant pressure by unscrupulous captors, and in the ever present shadow of death, is to ignore reality to the grave prejudice of the accused." To buttress his position, the accused cites an 1865 opinion of the Judge Advocate General of the Army to the effect that the severe rule of duress, as laid down in Respublica v McCarty, 2 Dallas 86 (US 1781) (which held that the only excuse for joining the King's forces was the fear of immediate death), could not be properly applied in all its strictness to cases of Union prisoners—during the war between the States—who were held in Confederate prisons and allegedly subjected to "authenticated cruelties" and were thereby "induced" to join the Southern forces. This opinion, however, is not the law and merely expounds a policy pertinent to those times, that certain recaptured Union prisoners should not be court-martialed. On the other hand, we have ample Federal law on this precise subject which is as the law officer instructed.
In Iva Ikuko Toguri D'Aquino v United States, 192 F2d 338 (CA9thCir) (1951) the defendant was convicted of treason, which arose from radio broadcasts from Japan (Tokyo Rose) during World War II. The defendant raised the defense of duress and coercion. The Court of Appeals held that:
". . . The Court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the statement that 'in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one's property or remote bodily harm do not excuse an offense.' It will be noted that the court's instruction was almost identical to that approved in Gillars v. United States, supra, 182 F. 2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L. Ed. 300; Shannon v. United States, 10 Cir., 76 F. 2d 490; R. I. Recreation Center v. Aetna Casualty & Surety Co., 1 Cir., 177 F. 2d 603, 12 A.L.R. 2d 230. [Emphasis supplied.]
"Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable. To get protection from the United States and where the compulsion is on the part of the enemy government itself.
“. . . We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch."
In Gillars v United States, 182 F2d 962 (CA DC Cir) (1950), the defendant, Mildred Gillars, was convicted of treason for taking part in psychological warfare against the United States by [23 CMR 24] broadcasting radio programs from Germany during World War II (a German Tokyo Rose). The defense of duress and coercion was raised and the jury instructed as set forth in Footnote 14:
"'Moreover, the force and fear, in order to constitute a defense in a case of treason, must continue during all the time of such service with the enemy, and one who makes force his defense must show that he left the service as soon as he could. In other words, ladies and gentlemen of the jury, this coercion or compulsion that will excuse a criminal act must be present, immediate and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.
"'* * * Nor is it sufficient that the defendant thought she might be sent to a concentration camp, if you so find, nor are threats to other persons sufficient. * * *'" [Emphasis supplied.]
The court concluded "The instructions which were granted were indeed all that the evidence warranted." We must necessarily note that both the civil and the military have repeatedly affirmed this same test over a period of many years. See Shannon v United States, 76 F2d 490 (CA10th Cir) (1935); United States v Floyd, 18 CMR 362; Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, pages 297, 635; Snedeker, "Military Justice under the Uniform Code," § 2405 (b) (1) (1953); Davis, "A Treatise on Military Law of the United States," 3d ed, page 138.
In the present case the board of review had this to say about the defense of coercion and duress (United States v Fleming [CM 377846], 19 CMR 438, 450):
"We are not unmindful of the hardships or the pressures to which the accused and his fellow prisoners were subjected prior to the time of his collaboration with the enemy. Obviously living conditions were not good, the diet was poor, and threats were made of worse things to come if cooperation was not forthcoming. It could hardly be argued that the accused was not under great pressure. However, it is important to note that,: at the times accused committed the acts alleged, the food ration, though scarcely abundant, was considerably improved over the ration in Camp Five. Furthermore, we cannot overlook the fact that accused cooperated with his captors upon the mere assertion of the threats. Thus, when first threatened with being forced to walk north to Pyoktong, the accused immediately proceeded to write and record his propaganda broadcast, without attempting to ascertain that his captors actually meant to carry out their threat. These circumstances preclude a finding that accused's fears were well grounded. But even assuming that accused was justified in believing that his captors would execute their threat, the defense of duress was not established, for the threat was not of immediate and impending death or serious bodily harm. It was not at all certain at the time the threat was made that walking north to Pyoktong would cause death at all, much less immediately. By way of comparison, if, for example, accused's captors had actually made him start on foot for Camp Five, and it then became evident that he could not survive the march, a valid defense of duress might have arisen for capitulation at that point. But that is not this case. Here the danger of death was problematical and remote. Even more damaging to the cause of the accused was the instance of the 'surrender appeal.' Accused 'voice-signed' this monstrous item of propaganda apparently upon the threat of having the food rations cut off or curtailed, and of being sent to the 'Caves'. The junior officers and enlisted men present refused en masse, although they were subject to substantially the same pressures as accused. Despite the example of capitulation set by the accused, a field grade officer and their leader, they at least were willing to determine whether their captors would send them to the Caves or cut off the food if they refused to collaborate. [23 CMR 25] Accused was not. As the court stated in D'Aquino v. United States, supra, 'The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch' (182 F. 2d at 359 ). Accused's resistance had not 'brought him to the last ditch'; the danger of death or great bodily harm was not immediate. Accused can not now avail himself of the defense of duress."
The final disposition here as to duress and coercion must be determined by the law which is without exception that the defense is only available under a reasonably grounded fear of immediate death or great bodily harm. The fact-finders found such not to be the fact in this case.
III
Did the law officer err by refusing to give the defense requested instructions on insanity?
The defense requested, during an out-of-court hearing, the following instruction as to the effect of physical impairment on the accused's ability to adhere to the right and resist his captors:
"In connection with your consideration of the elements of coercion and duress about which I have just instructed you, you are further instructed that you may take into consideration, in your deliberations, the elements of harassment, deprivation, degradation, and physical impairment, if any, as revealed by all of the evidence in this case. If, in your determination of the accused's ability to adhere to the right, you find, from the testimony that has been offered in this case, that the ability of the accused so to do was so impaired or diminished by harassment, deprivation, degradation, or physical impairment, so as to make it impossible for the accused to refuse to comply with the demands of his captors or to adhere to the right, then, you must find him not guilty of those charges in which these elements are involved." [Emphasis supplied.]
We have already noted that the instructions given by the law officer on duress and coercion were correct. The above requested instruction appears to be an effort to combine elements of the duress, coercion, and insanity defenses. We further observe that the law officer thereafter instructed the court concerning the approved test with respect to the ability to adhere to the right. Without ruling whether such an instruction as requested by the defense here would ever be required, suffice it to say that the defensive theories of duress and coercion were adequately covered by the law officer. The requested instruction would have changed the test of insanity as approved by this Court and set forth in paragraph 120b of the Manual for Courts-Martial, supra (and as given by the law officer) which declares that lack of mental responsibility must result from mental defect, disease, or derangement. Under the instruction as requested, the accused could have been acquitted by reason of mental irresponsibility even though he was not suffering from a disease of the mind. In addition, the requested instruction would have permitted acquittal of the accused by a showing that his ability to adhere to the right had only been impaired or diminished by factors other than mental sickness whereas the law as recognized by this Court requires complete deprivation of the ability to adhere to the right.
The only evidence of record touching upon mental capacity was the testimony of Drs. Arnold and Baker, psychiatrists, who testified that the accused was not suffering from mental defect, disease or derangement of the mind, but that his ability to adhere to the right was possibly impaired or diminished due to the stresses and strains of prison life and nutritional deficiencies. Defense witness, Dr. Baker, testified that the accused was not suffering from a psychiatric or psychoneurotic disorder. It is quite apparent, therefore, that the accused was not suffering from the type of physical infirmity recited by the Manual and approved by this Court.
One further facet of the accused's [23 CMR 26] argument as to insanity should be commented upon. The accused attempts to bring himself within the rule of United States v Kunak, 5 USCMA 346, 17 CMR 346, and United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, wherein it was held that partial mental irresponsibility arising from a mental impairment falling short of legal insanity was a defense to an offense requiring a specific criminal intent. The difficulty with this argument, however, is that the accused does not stand convicted of offenses requiring a specific criminal intent. The charges here are similar to the offense defined by Article of War 81, 10 USC § 1553 (1946 ed). The argument was raised in United States v Batchelor, supra, that Article 104 (the aiding the enemy Article of the Uniform Code of Military Justice which replaces Article of War 81) required a specific criminal intent. The Court held that the offense of knowingly communicating, corresponding, or holding intercourse with the enemy, in violation of Article 104, does not require a specific intent; that an instruction requiring only a finding of general criminal intent and a finding of words importing criminality is sufficient. We hold that the same reasoning should apply to the offenses now before this Court. See also paragraph 183d, Manual for Courts-Martial, supra, and paragraph 169c, Manual for Courts-Martial, U. S. Army, 1949.
Also throughout the lengthy record of this trial, it was never claimed by the accused or defense witnesses that he did not know he was communicating with the enemy. The accused testified at considerable length that he not only was aware that he was communicating with the enemy, but he resisted their efforts by delay, technicalities, and general sabotage. He recalled with vigor—and we believe him—that he never for an instant believed any of the "malarky" they were trying to get across to the prisoners. Absent is the claim that the accused was acting under any type of mental illness which deprived him of the ability to form a criminal intent.
IV
Did the law officer err by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life?
According to the Manual for Courts-Martial, U. S. Army, 1949, the sentence for a conviction under the Article of War 95 was dismissal, and for Article 96 as a court-martial might direct. Paragraph 117c of the 1949 Manual, supra, provides that:
". . . If an offense not listed in the table [Table of Maximum Punishments] is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment."
So if no punishment is listed in the Table of Maximum Punishments with respect to an offense, we must examine the Table for a closely related offense. See United States v Stewart, 2 USCMA 321, 8 CMR 121; United States v Blevens, 5 USCMA 480, 8 CMR 104. The only similar offense to the instant one is Article of War 81 which provided that any person who, without proper authority, "knowingly holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct." However the Table does not list a maximum punishment for that offense. We are therefore referred back to the Article itself. Thus it would appear that the law officer did not err by instructing the court that the maximum punishment was life imprisonment.
V
Did the law officer err by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a? The parties stipulated that Prosecution Exhibits 3 and 5 were magnetic tape recordings of radio broadcasts, purportedly emanating from the Central Broadcasting Station of the Democratic People's Republic of Korea located at Pyongyang, Korea. The broadcasts [23 CMR 27] were intercepted and recorded on the tapes on Okinawa by the United States Foreign Broadcast Information Service. Prior to their introduction into evidence, the records were played during an out-of-court hearing. Several witnesses identified their own and other voices and recognized segments of the recordings as containing appeals to the Five Great Powers, President Truman, and General MacArthur. Sergeant Mares identified the accused's voice and Warrant Officer Coxe believed that one of the voices was similar to the accused. Lieutenant Wilson testified that besides recognizing his own voice, he recognized the voices of the accused and other individuals who participated in the panel discussion. When the court reopened Wilson identified the panel discussion recording. It is quite true that the records were garbled with extraneous noises and obviously the witnesses had difficulty recognizing clearly and distinctly the participants. However, since the source of the broadcasts was admitted and agreed upon by the parties, any difficulty in understanding portions of the broadcast would appear to affect only the weight to be assessed to the exhibits by the fact-finders, not their admissibility.
In United States v Schanerman, 150 F2d 941 (CA3d Cir) (1945), the accused was prosecuted for bribery of a draft board member to obtain a deferment. The court declared:
"No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between Appellant and Finneran were 'played' in the hearing of the jury during the trial. This type of evidence was admissible upon the authority of Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 . . . but the mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the 'playing' of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses."
Besides the garbled nature of the tapes, the accused argues that the broadcasts should also have been excluded because the Communists may have through trickery altered the recordings after they had been made. This possibility would also affect weight rather than admissibility. If valid, certainly such an argument should in all instances comparable to this render recordings from enemy territory inadmissible. However, similar recordings were admitted in the Iva Ikuko Toguri D' Aquino and Gillars cases, supra.
One further complaint remains with respect to the recordings. After the president of the court expressed his dissatisfaction about the lack of clarity of the tapes, an alleged expert in the field of radio and audiofrequency ran the recordings through an electric audio filter process and re-recorded them. This "expert" testified at the trial that since this filtering process removed only the high frequency noises it would not materially alter the sound characteristics of a male voice. The re-recordings were admitted into evidence as Exhibits 3a and 5a. The defense strenuously objected that since the original tapes were available, the best evidence rule precluded the admissibility of the secondary evidence. We agree with the holding of the court in People v Stephens, 117 Cal App2d 653, 256 P2d 1033 that re-recordings made from a tape and wire recording "would appear . . . admissible in evidence and that the best evidence rule is not applicable." In the present case the recordings were improved by the filtering process and the contents thereof were not changed. There is no logical reason why the benefits of scientific developments should be denied access to the courtroom so long as the rights of the accused are fully protected.
Moreover, in this case the accused never denied that he made recordings for his captors. His defensive posture [23 CMR 28] was that he committed the acts but under the unusual circumstances he was justified. On the witness stand, he admitted recording the round-table discussion and voice signing the appeals. Besides the accused, other witnesses testified to the content of the recordings. As we stated in the beginning of this opinion, the issue was not whether the accused did the acts, but whether the illegality thereof was more than offset by the accused's explanation—along with other evidence—justifying his conduct. We hold, therefore, that the accused was not prejudiced by the admission of these recordings into evidence.
VI
Was the accused prejudiced by the Government's use of a “shot gun" type of pleading?
The accused stoutly contends that his rights were substantially prejudiced by frivolous pleadings on the part of the Government. He attempts to support his argument by quoting from a dissenting opinion of Judge Brosman in United States v Voorhees, 4 USCMA 509, 16 CMR 83, wherein the Judge condemned a "shot gun" type of pleading, which evinced an attempt to get a conviction despite the merits or lack of evidence as to all of the particular specifications and charges. The defense points the accusing finger at one of the specifications wherein it was alleged that during a crowded truck ride, the accused stomped on the foot of Corporal Gorr. The investigating officer recommended that the charge be dropped because, "I do not believe that the alleged offense committed under such circumstances was sufficiently serious as to warrant trial." Perhaps the advice of the investigating officer should have been heeded. But the convening authority has discretion in referring the charges. Under the circumstances we do not believe the accused was prejudiced or that the convening authority abused his discretion in referring this charge to trial. United States v Greenwalt, 6 USCMA 569, 20 CMR 285.
We are not unmindful of the rigors and horrors of the prisoner of war camps in Korea. Our sympathy goes out to the men who were unfortunately forced to endure the inhuman treatment foisted upon them by their barbaric captors. However, we cannot let a hard case make bad law. "War is a harsh business and Colonel Fleming was a field grade officer in the United States Army. He was senior to most of the other prisoners of war in his group and acted as a group leader. The exigencie s of the situation called upon him to be an example to his men. If anything, due to his superior rank and senior position, he was called upon to exercise a conduct more exemplary than the other prisoners. In this regard we think a quotation from the board of review holding in United States v Floyd [CM 374314], 18 CMR 362, is appropriate:
". . . As a commissioned officer of the United States Army, Colonel Keith, whether the senior American officer present in the particular camp or not, and although deprived of many of the functions and prerogatives of his office by his Communist captors, had the responsibility and duty to take such actions as were available to him (and if the senior officer present to exercise such command as he was able) to assist his fellow prisoners, to help maintain their morale, and to counsel, advise and, where necessary, order them to conduct themselves in keeping with the standards of conduct traditional to American servicemen."
The court-martial, convening authority, and the board of review found that he failed to meet those high standards demanded by the Army of an officer of his rank. Under the circumstances we cannot hold that they were wrong.
The decision of the board of review is affirmed.
Judge LATIMER concurs.
QUINN, Chief Judge (concurring in the result):
I disagree with a number of statements made in the majority opinion. Most important is my disagreement with the majority's conclusion that, as a matter of law, a threat of confinement in the caves did not constitute a sufficient [23 CMR 29] threat of, at least, grievous bodily harm. The principal opinion itself notes that the "prisoners felt that a sentence to the caves was almost tantamount to a sentence of death"; that twenty-three Americans died in the caves between Major MacGhee's confinement and release; that the accused was taken to see fourteen newly captured prisoners confined in the caves, and by his last visit, all had died except one, and "he too was dying." In my opinion, this evidence is sufficient to raise a defense of coercion or necessity.
Raising a defense, however, does not mean that the court-martial was bound to accept it. Other evidence shows that the accused had freely and materially cooperated with and helped the enemy before he had heard or seen anything of the caves. Acts of misconduct prior to those charged can be considered by the court-martial in determining the accused's purpose or design in the commission of the offenses alleged. United States v Dickenson, 6 USCMA 438, 456, 462, 20 CMR 154. And, as the majority opinion indicates, there is evidence tending to show that the accused freely helped his enemy captors in enforcing their efforts to subjugate the prisoners. On the basis of this evidence, the court-martial could reject the accused's defense and find that he committed the acts charged without duress or compulsion. The question then is whether the court-martial received proper instructions from the law officer on the legal principles relating to the defense.
It is conceded, and the cases support the concession,[2] that the law officer's instructions are a correct general statement of the law. However, at the trial the accused contended that the court members should not be instructed that to establish his defense of coercion, it must appear that he "acted under a well-grounded apprehension of immediate and impending death,” but that it would be sufficient if he were confronted with death, “or a wasting death from starvation, deprivation or other like conditions.” As I have already noted, in my opinion, the evidence of the many deaths that occurred in the caves provides a basis from which the court members could find that a threat of confinement therein was sufficient for a "well-grounded apprehension" of immediate and impending death or serious bodily harm, especially since the threat bears the "color" of the conditions that existed there. See United States v Olson, 7 USCMA 460, 22 CMR 250. The requested instruction, however, does not present that issue. On the contrary, it attempts to substitute a general fear of future possible mistreatment for the requirement of a present threat of present harm. Accordingly, the law officer was justified in rejecting the request to instruct. Since the instructions which he gave are correct and appropriate, the accused cannot complain.
Further particularization of my disagreement with statements in the majority opinion is unnecessary. Suffice it to say that I agree with the conclusions on the points discussed. Consequently, I join in the result.
Notes
[1] This omission "and extolling the virtues of communism" is the portion of the specifications excepted by the board of review in their decision dated July 28, 1955.
[2] Parenthetically, I do not read the 1865 JAG opinion cited by the majority as expressing merely a policy not to punish returned Union prisoners. It seems to me that the JAG opinion approaches the modern view that a threat of serious bodily harm as well as a threat of death gives rise to the defense of coercion or necessity. See United States v Olson, 7 USCMA 460, 22 CMR 250.
7.2.6.4.2.1.4 United States v. Chi Tong Kuok 7.2.6.4.2.1.4 United States v. Chi Tong Kuok
UNITED STATES of America, Plaintiff-Appellee,
v.
CHI TONG KUOK, AKA Yoko Chong, AKA Eddy, AKA Yoko Kawasaki, AKA Edison Kuok, AKA James Kuok, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[934] Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant.
Peter Ko, Assistant U.S. Attorney, San Diego, CA, for the appellee.
Before: HARRY PREGERSON and JAY S. BYBEE, Circuit Judges, and GLEN H. DAVIDSON, Senior District Judge.[*]
OPINION
BYBEE, Circuit Judge:
Chi Tong Kuok was convicted after a jury trial on four counts of conspiracy and attempt to export defense articles without a license, money laundering, and conspiracy and attempt to smuggle goods from the United States. Kuok raises a variety of challenges to his conviction and sentence. We first conclude that venue was proper in the Southern District of California. We disagree with Kuok that the Arms Export Control Act violates the nondelegation principle. We next conclude that Kuok's conviction on count three must be vacated as a matter of law, because attempting to cause an export of a defense article is not a federal crime. Likewise, Kuok's conviction on count four must be vacated for lack of jurisdiction. Finally, because the district court should have allowed Kuok to present evidence of duress to the jury, we reverse and remand for a new trial on counts one and two. Given this disposition, we do not reach Kuok's arguments regarding his sentence.
I
Kuok is a citizen of Macau, a special administrative region of the People's Republic of China and, until recently, a colony of Portugal. For roughly a decade, Kuok engaged in efforts to import protected defense articles from the United States into China, without the licenses required by law. In the summer of 2009, his activities caught up with him, and Kuok was arrested by U.S. Immigration and Customs Enforcement ("ICE") agents at the Atlanta airport. The indictment, filed in July 2009, charged, in count one, conspiracy to export items on the U.S. Munitions List without the required license and conspiracy to buy items knowing they were intended for export in violation of law. 18 U.S.C. §§ 371, 554(a); 22 U.S.C. § 2778(b)(2). Count two charged Kuok with buying a KG-175 Taclane encryptor knowing that it was "intended for exportation contrary to . . . law." 18 U.S.C. § 554(a). Count three charged Kuok with attempting to export the encryptor from [935] the United States without the required license. 22 U.S.C. § 2778(b)(2); 22 C.F.R. § 127.1(a)(1). Count four charged Kuok with transmitting $1700 in funds with the intent to promote the carrying on of "specified unlawful activity": the smuggling and the export offenses charged in counts two and three. 18 U.S.C. § 1956(a)(2)(A).
At trial, the government presented evidence that, over the course of a two-and-a-half year period between 2006 and 2009, Kuok tried to purchase from vendors in the United States various types of communication equipment commonly used by the U.S. military. The government's investigation began in December 2006 when Kuok approached a British company to obtain materials for a device used to transfer data to and from aircraft. Kuok's contact at the company referred the case to ICE, who proceeded to investigate Kuok via undercover agents. As part of the investigation, ICE subpoenaed Kuok's eBay records and discovered that Kuok had purchased two-way radios from a Los Angeles seller. After raiding the seller's home, undercover ICE agents took over and continued to discuss transactions for similar equipment with Kuok. Kuok eventually grew suspicious of the undercover agents, and broke off negotiations. ICE continued in this vein, opening several other investigations into Kuok's eBay activity and tracking him via undercover agents until Kuok broke off communications.
The crux of the government's case lies in the encryptor described in the indictment—a device called the KG-175 Taclane Encryptor offered for sale on eBay by an Arizona company. Kuok's attempts to purchase the device prompted another investigation by undercover ICE agents, who pretended to be willing to sell this device to Kuok. Kuok arranged for a money order transfer to pay for the encryptor. The encryptor never showed up, and the undercover agent claimed it had been confiscated in customs in Alaska. Despite Kuok's repeated suspicions that he was dealing with law enforcement, he arranged to meet the agent in Panama to obtain the encryptor. Kuok promptly informed his contact that he would be traveling through Atlanta to get to Panama, which—unsurprisingly—resulted in his arrest in the Atlanta airport.
At trial, Kuok did not dispute the facts described above, nor the government's evidence that the items Kuok purchased or attempted to purchase required a license to export them from the United States—a license which Kuok did not possess. Kuok also did not dispute that he knew his actions violated U.S. law. Rather, Kuok's entire defense strategy rested on a theory of duress.
Defense counsel raised the issue of duress in his opening statement. He described the facts supporting the duress defense to the jury, explaining that Kuok had lived in Macau all his life. Kuok started his own business in 2000, installing and maintaining building management systems. A few years before he opened this business, Kuok developed contacts with a businessman who identified himself as a Chinese cultural official, Kung Pen Zheng. Zheng began asking Kuok to buy items from abroad that could not be obtained in China, and Kuok cooperated in order to develop this business contact. The items were available on eBay, and Kuok generally had no problems acquiring them, but troublingly, it would often take a long time for Zheng to pay Kuok back.
According to Kuok's counsel, what started out as a friendly relationship turned serious at one business dinner, when Zheng—after encouraging Kuok to drink to excess—pressured Kuok into signing a note promising to locate and purchase certain items that could not be obtained in [936] China. The next day, Kuok realized that he might be in a bad situation and attempted to back out by telling Zheng that his wife was ill and work needed his attention. Zheng reminded Kuok that he had signed the contract promising to find these items. Zheng then contacted Kuok's wife, who was surprised to hear that she was supposed to be ill. Kuok—who had never given Zheng his home telephone number— was unhappy when he heard about Zheng's phone call to his wife, and spoke to Zheng again later that day. Zheng asked Kuok why he had lied, and Kuok asked Zheng not to call his wife again. Zheng replied: "Why? Are you afraid we're going to hurt her?" Kuok interpreted this as a clear threat to harm his family, but by that point he knew that the threat was coming from the Chinese government itself and that he could not go to the local police, who were under the Chinese government's control.
According to counsel, Kuok's situation only escalated from there: he was presented with reports detailing his wife's comings-and-goings, and her employer's name and address. Kuok was shown reports of this type for the next several years, as well as photos of himself with his wife and child out in public, with the clear implication that his family was being tracked. Zheng even sent Kuok a gift after the birth of his son, although Kuok had never told Zheng that his wife was pregnant.
Around 2002, Zheng stopped being subtle. He explained to Kuok that others were doing the same things Kuok was being made to do, and if they refused, a family member would be arrested and held in a "black jail"—where the Chinese government sends people to "take [them] off the grid." In 2005, Kuok first learned that his actions could violate U.S. export laws. He went to Zheng again and asked to stop. Zheng refused to let him out of the deal, instead telling Kuok that he had no choice. In 2007, Kuok was diagnosed with a tumor and hospitalized for a week, again begging to be let out of Zheng's schemes, but still Zheng refused.
After opening statements concluded, Kuok made a Brady request for any materials in the government's possession that would support his duress defense. The government objected to the Brady request, and the district court denied it as untimely.[1] The government also objected to the duress defense on the grounds that Kuok should have given notice of his defense before trial.[2] The district court ordered the parties to brief the duress issue. The government argued that there was insufficient evidence to support the duress defense, and the district court agreed. Kuok filed a motion to reconsider, which contained a more detailed proffer of the defense case. For instance, he claimed that Zheng told Kuok that if his wife were taken to a black jail, she would be harmed and might not ever return. Kuok also asserted that he had attempted to tell the ICE agents at the airport that he had been forced to act. Finally, Kuok added details explaining how he knew that Zheng and the other officials worked for the Ministry of State Security, China's equivalent of the CIA.
The district court denied the motion for reconsideration. The case proceeded to [937] trial, and the jury found Kuok guilty on all counts. Prior to sentencing, Kuok served another Brady request on the government, asking for evidence to support an imperfect duress defense. The district court denied the request. At sentencing, the district court calculated the applicable Guidelines range to be 63 to 78 months. The district court varied upward and sentenced Kuok to 96 months on counts two through four, and 60 months on count one, to run concurrently. This appeal followed.
II
We first address Kuok's claims common to all counts: that venue in the Southern District of California was improper, and the statutory export control regime violates the nondelegation doctrine.[3] Our review of both claims is de novo, United States v. Bozarov, 974 F.2d 1037, 1040 (9th Cir.1992) (non-delegation doctrine); United States v. Ruelas-Arreguin, 219 F.3d 1056, 1059 (9th Cir.2000) (venue), and we reject Kuok's arguments.
A
Kuok challenges venue on counts two through four, which are based on Kuok's purchase of the Taclane encryptor.[4] The Constitution requires that venue lie in the state and district where a crime was committed. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; see also Fed. R.Crim.P. 18. "The burden of establishing proper venue by a preponderance of the evidence rests with the government." Ruelas-Arreguin, 219 F.3d at 1060. The government argues that venue was plainly proper in the Southern District of California, because the undercover ICE agent withdrew funds in a San Diego bank from Kuok's money transfer.
Kuok argues that venue is not proper because the government manufactured venue in the Southern District of California by its own activities. This argument fails. Kuok cites two cases in support of his argument, neither of which even mention the word "venue." See United States v. Coates, 949 F.2d 104, 106 (4th Cir.1991) ("`[M]anufactured jurisdiction' cannot form the basis for a federal prosecution."); United States v. Archer, 486 F.2d 670, 681 (2d Cir.1973) ("Whatever Congress may have meant by [18 U.S.C.] § 1952(a)(3), it certainly did not intend to include a telephone [938] call manufactured by the Government for the precise purpose of transforming a local bribery offense into a federal crime."). Both cases deal with manufacturing jurisdiction for a crime, which is a distinct question from the manufacturing of venue. In fact, the Fourth Circuit has distinguished Coates on this very ground: "There is no such thing as `manufactured venue' or `venue entrapment.'" United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir.1995); see also United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir.2006) (holding that the entrapment doctrine does not apply to venue, and that the proper remedy for prosecutorial forum shopping is Federal Rule of Criminal Procedure 21(b)).
Although we have not yet adopted a similar holding rejecting manufactured venue in this circuit, we need not decide the issue today. We have noted that Archer "cannot offer . . . generally applicable principles" and that it has been limited to cases involving "extreme" law enforcement tactics. United States v. Bagnariol, 665 F.2d 877, 898 n. 15 (9th Cir.1981). We find nothing "extreme" about an ICE undercover operation, based in San Diego, deciding to cash Kuok's money order in a bank in San Diego. Therefore, because part of the conduct that formed the offense occurred in the Southern District of California, even if that conduct was performed by an undercover government agent, venue there was proper.
B
Kuok argues that the Arms Export Control Act ("AECA"), 22 U.S.C. § 2778, invalidly delegates legislative authority. Section 2778(a)(1) of Title 22 provides:
In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.
22 U.S.C. § 2778(a)(1); see 22 C.F.R. § 121.1 (setting forth the U.S. Munitions List). Section 2778(b)(2) provides that "no defense articles or defense services designated by the President [on the U.S. Munitions List] may be exported or imported without a license." 22 U.S.C. § 2778(b)(2). Any person who violates § 2778(b)(2), or "any rule or regulation issued under th[at] section," may be fined not more than $1,000,000 or imprisoned for not more than 20 years, or both. Id. § 2778(c). Kuok argues that Congress, in enacting the AECA, failed to "clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Mistretta v. United States, 488 U.S. 361, 372-73, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (internal quotation marks omitted).
The argument is easily answered. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. I, § 1. From this language and first principles of separation of powers, the Supreme Court has announced a nondelegation principle: "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Accordingly, when "Congress confers decisionmaking [939] authority upon agencies Congress must `lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.'" Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)).
The AECA authorizes the President to maintain the United States Munitions List, which consists of "those items which shall be considered as defense articles and defense services." 22 U.S.C. § 2778(a)(1). Although the defining principle for "articles" and "services" has not been set forth with particularity, it is intelligible: the President is to designate those articles or services "which shall be considered as defense articles and defense services." Id. Articles or services that are not regarded as belonging to defense may not be so designated. Furthermore, Congress prefaced the delegation to the President by referring to its shared interest in the "furtherance of world peace and the security and foreign policy of the United States." Id. The "[d]elegation of foreign affairs authority is given even broader deference than in the domestic arena." Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9th Cir.1996).
The Supreme Court rejected a similar nondelegation challenge in United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Congress had authorized the President to prohibit the sale of "arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco." Id. at 312, 57 S.Ct. 216 (internal quotation marks omitted). Congress made it a criminal act to violate the President's prohibition. The Supreme Court recognized that it was "dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations." Id. at 319-20, 57 S.Ct. 216. The Court commented on the "unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards" and declined to "condemn[] legislation like that under review as constituting an unlawful delegation of legislative power." Id. at 321-22, 57 S.Ct. 216; see id. at 329, 57 S.Ct. 216 ("[T]here is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the re-establishment of peace. . . ."). This logic applies with equal force to the present case. The AECA does not violate the constitutional prohibition on delegation of legislative power.
III
We next address Kuok's argument that the district court lacked jurisdiction over count four of the indictment, which arises under the money laundering statute, 18 U.S.C. § 1956.[5] We review jurisdictional questions de novo. See United States v. Moncini, 882 F.2d 401, 403 (9th Cir.1989).
Section 1956(a)(2) of Title 18 prohibits the transmission of funds from a place outside the United States to a place inside the United States with the intent to promote the carrying on of specified unlawful activity. The government's theory at trial was that Kuok violated this provision by [940] transmitting funds in exchange for the Taclane encryptor, in order to promote the violation of export control laws and anti-smuggling laws. Section 1956 comes with its own restriction on any assertion of extraterritorial jurisdiction. It provides:
There is extraterritorial jurisdiction over the conduct prohibited by this section if—
(1) the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and
(2) the transaction or series of related transactions involves funds or monetary instruments of a value exceeding $10,000.
18 U.S.C. § 1956(f).
At trial, the government established that the relevant conduct occurred in part in the United States. But the government did not establish that the transaction involved funds of a value exceeding $10,000. Rather, the evidence established—and the government concedes—that the transaction involved a total value of only $5,400.
The government attempts to bypass subsection (f) entirely by arguing that subsection (f) is only invoked when the case involves purely extraterritorial conduct. The government argues that Kuok's case, because it involves conduct that occurred in part in the United States, does not invoke extraterritorial jurisdiction at all, arguing that the issue of "extraterritorial jurisdiction" arises only if no part of the offense occurred in the United States.
The government's argument would render subsection (f) a nullity. If the government were correct that subsection (f) can only be invoked in cases that involve conduct taking place entirely outside of the United States, the second part of subsection (f)(1) would be meaningless, and proscribe no possible set of conduct. That is, if "extraterritorial jurisdiction" only need be invoked when prohibited conduct by a non-U.S. citizen occurred entirely outside the United States, the statement in § 1956(f)(1) ("There is extraterritorial jurisdiction over the conduct prohibited by this section if . . . in the case of a non-United States citizen, the conduct occurs in part in the United States") could never be invoked. We presume that Congress did not intend to enact a literally meaningless statute. Because the government failed to satisfy the amount-in-controversy requirement of § 1956(f)(2), Kuok's conviction on count four must be vacated for lack of jurisdiction.
IV
We now turn to Kuok's conviction on count three. Count three arises under the AECA and its implementing regulations, specifically 22 C.F.R. § 127.1(a)(1). The government charged Kuok with violating the AECA by asking the undercover agent to send him the Taclane encryptor in exchange for a $1700 wire transfer. Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.[6] We review de novo. See United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.2003) (en banc).
Section 127.1(a)(1) makes it unlawful "[t]o export or attempt to export from the United States . . . by a U.S. person of any defense article . . . or by anyone of any U.S. origin defense article . . . for which a license or written approval is required . . . [941] without first obtaining the required license." 22 C.F.R. § 127.1(a)(1). Kuok notes that the government's evidence did not establish that he exported or attempted to export the Taclane encryptor. Rather, the government's theory was that he attempted to cause an undercover ICE agent to export the encryptor. Kuok then argues that § 127.1(a)(1) does not make it illegal to cause a "U.S. person" to "export or attempt to export" a defense article. In response, the government points to 18 U.S.C. § 2(b), which states: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
By overlaying § 2(b) on 22 C.F.R. § 127.1(a)(1), it becomes clear that § 2(b) prohibits causing an export or an attempted export: an export or an attempted export is an "act . . . which if directly performed by [Kuok] would be an offense against the United States." However, the government's case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the encryptor without a license. Neither an export nor an attempted export occurred: the ICE agent did not form the mens rea sufficient for an illegal export or an attempt, because he was an undercover agent working for the government the whole time. Kuok, for his part, intended to import the device into Macau, not export it from the United States. See 22 C.F.R. § 120.17(a)(1)(defining "export" as "[s]ending or taking a defense article out of the United States in any manner"). Rather, there was an attempt to cause an export: Kuok tried to get the undercover agent to export the encryptor.
We have long recognized that "[t]here is no general federal `attempt' statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt." United States v. Hopkins, 703 F.2d 1102, 1104(9th Cir.1983); see also United States v. Joe, 452 F.2d 653, 654 (10th Cir.1972) ("[I]t is well settled that the only attempts to commit crimes which are made Federal crimes are those specifically so proscribed by Federal law."); United States v. Padilla, 374 F.2d 782, 787 n. 7 (2d Cir.1967) ("[U]nlike many state criminal codes, federal criminal statutes contain no general attempt provision. An attempt to commit a federal crime is punishable only where the section defining the crime specifically includes an attempt within its proscription." (citations omitted)). For the government's theory to be viable, therefore, either 18 U.S.C. § 2(b) would have to contain an attempt provision, or 22 C.F.R. § 127.1 would have to contain an attempted causation provision. Since neither statute does so, Kuok cannot be convicted on this count based on the government's evidence at trial. The government's argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.
The government cites to United States v. Giese, in which we approved an indictment charging that the defendant "conspired `to commit and cause to be committed certain offenses against the United States.'" 597 F.2d 1170, 1179-80 (9th Cir. 1979). The reasoning in Giese is not analogous here because, unlike for attempt, there does exist a general federal statute for conspiracy. See 18 U.S.C. § 371. Thus, for example, conspiracy to cause an export or attempted export would be a federal crime.
The United States also points to cases from the Sixth and Eighth Circuits which [942] approve of an "attempt to cause" theory. In United States v. May, the defendant placed a call to a retired general, asking him to destroy certain records. 625 F.2d 186, 194 (8th Cir.1980). The general attempted to do so by calling a friend, but the attempt failed when his friend refused. Id. May was then charged with "`unlawfully attempt(ing) to cause to have concealed, obliterated, or destroyed' government records" in violation of 18 U.S.C. § 2071. Id. We do not find May persuasive on this issue, because, while the indictment may have charged "attempting to cause," it is clear that May's actions in that case actually constituted "causing an attempt": that is, May caused the retired general to attempt to violate 18 U.S.C. § 2071. The May court correctly characterized May's position as arguing that "`causing' an attempt is not prohibited by the statute," and relied on § 2(b) to reject this proposition, noting that "section 2(b), like section 2(a), is applicable to the entire criminal code." Id. (internal quotation marks omitted). This reasoning, however, is not helpful for purposes of the present case: even if § 2(b) is applicable to the entire criminal code, there is no general federal attempt provision that would be applicable to § 2(b).
Similarly, United States v. Zidell affirmed the defendant's conviction on the charge of "attempt[] to cause the possession with intent to distribute methamphetamine," but it is clear that this case also deals with causing an attempt, rather than attempting to cause. 323 F.3d 412, 424-25 (6th Cir.2003) (emphasis removed) (internal quotation marks omitted). In Zidell, the defendant, living in Texas, received a visit from his co-conspirators from Tennessee. He distributed methamphetamine to both of them, and sent them on their way back to Tennessee. Id. at 421-22. As the court explained, "[t]his conduct gave rise to an attempt charge, as opposed to a charge of a completed drug distribution offense, when [the coconspirators] were stopped by the police before they reached their intended destination." Id. at 422. In other words, the defendant caused his coconspirators to attempt to commit a drug distribution crime. Moreover, the defendant in Zidell did not even raise a challenge to this language in the indictment: rather, his argument was that venue in Tennessee was improper. Id. at 421-25.
Therefore, both May and Zidell are factually inapposite to Kuok's case: whereas Kuok's attempt to cause illegal activity failed because he was working with an undercover law enforcement officer, the defendants in May and Zidell successfully caused an attempt because the coconspirators in those cases had each formed the mens rea necessary to charge them with attempt, had the government so chosen. And to the extent May and Zidell stand for the proposition advanced by the government based on the wording of the indictments, we disagree.
We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok's conviction on count three.
V
Kuok challenges his conviction on count two because he argues that the government did not satisfy all of the elements of 18 U.S.C. § 554, which criminalizes smuggling goods into or out of the United States. This count is based on Kuok's purchase of the Taclane encryptor. We do not agree with Kuok's interpretation of the statute, and decline to vacate his conviction on count two.
The relevant section states:
Whoever fraudulently or knowingly exports or sends from the United States, [943] or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 554(a).
Kuok argues, first, that he never took physical possession of the encryptor, thus making it impossible for the government to satisfy the element that he "bought" it; second, because both Kuok and the undercover ICE agent lacked the intent to export the encryptor, the encryptor was not "intended for exportation"; and third, that since the encryptor was not exported, the government could not satisfy the statutory requirement that the conduct occur "prior to exportation." These arguments present issues of statutory construction, which we review de novo. Cabaccang, 332 F.3d at 624-25.
A
The indictment charged Kuok with "buy[ing]" the encryptor, but Kuok only wired money to the undercover agent and never actually received the encryptor, since it was never sent. The parties point to two different definitions of the word "buy" that support their respective cases. Kuok cites to one definition of the word indicating that "buy" entails obtaining possession of the item paid for. See Shorter Oxford English Dictionary 316 (5th ed.2002) (defining "buy" as to "[g]et possession of by giving an equivalent, usu. in money; obtain by paying a price"). The government cites to another definition of the word "buy," which includes "to get possession or ownership of by giving or agreeing to give money in exchange." See Webster's Third New International Dictionary 306 (2002) (emphasis added). Kuok argues that competing definitions render the statutory text ambiguous and require application of the rule of lenity. See United States v. Santos, 553 U.S. 507, 513-14, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008).
We think the government has the better argument. Whatever ambiguity appears after consulting dictionaries fades when we construe the statute as a whole. Section 554(a) applies to anyone who "receives, [or] conceals, [or] buys, [or] sells" any merchandise, article, or object contrary to law. If we were to adopt Kuok's definition of "buy"—requiring receipt or possession—then the term "receive" would become superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). To avoid interpreting one phrase so as to render another superfluous, we accept the government's interpretation of the statute.[7]
[944]
B
Kuok argues that § 554(a) requires proof of his "intent to export." The statutory language actually requires that a person buy an item "knowing the same to be intended for exportation contrary to any law or regulation." 18 U.S.C. § 554(a). The mens rea requires only "knowing" the item is intended for export, rather than an "intent to export." Because of the passive construction of the phrase "intended for exportation," no specific actor need form the intent to export the item. Thus, although Kuok was not doing the exporting himself (his scheme involved receiving an import, not sending an export), he certainly intended that another actor (the undercover agent) intend to export the item. In other words, the government's case need not establish that the defendant intended to export the encryptor, because Congress did not specify who must form the intent to export the item, only that the defendant know that the item was intended for export contrary to U.S. law.
C
Kuok argues that since the statute applies to "[w]hoever . . . buys . . . such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to" law, id., the government must prove that the item was actually exported, or else the condition "prior to exportation" cannot be satisfied. The government responds that "prior to exportation" simply limits prosecutions to purchases that occurred during or before exportation. This is not superfluous with the phrase "knowing the same to be intended for exportation contrary to any law," the government argues, because while the latter phrase does exclude prosecutions from taking place after the exportation has been completed, it does not exclude prosecutions against one who buys an item while it is in transit, whereas the former phrase does.
Alternatively, the government argues that superfluity is not always to be avoided: the "hesitancy to construe statutes to render language superfluous does not require [courts] to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity." United States v. Atl. Research Corp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007).
Kuok replies that the portion of § 554(a) under which he was charged lacks an attempt provision, and the government's efforts to charge him under this statute, without proving that an export actually took place, constructively read an attempt provision into it. We do not agree with Kuok, but we do note that the statutory text is challenging to parse. The operative phrase states:
Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object. . . .
18 U.S.C. § 554(a) (emphasis added). The emphasized "or" above divides this statute into two clauses: the first applying to exporters, and the second to buyers. This might lend support to Kuok's reading; that is, the attempt provision can be read only as far as the "or," and thus applies uniquely to exporters, not buyers. On the other hand, the reference to "such merchandise" could be read as incorporating the entire exporters clause; that is, "such" merchandise is "merchandise" that has [945] been the object of an "export[ing] or send[ing] from the United States, or attempt[ed]. . . export[ing] or send[ing] from the United States . . . contrary to any law or regulation." The latter interpretation is persuasive because there is no other phrase in the exporters clause indicating the type of merchandise at issue ("contrary to any law or regulation of the United States" is an adverbial clause modifying the verbs "exports" and "attempts to export," not an adjectival clause modifying the noun "merchandise"). Without a phrase that limits or defines the merchandise, the second clause's use of the word "such" is meaningless.[8]
We find that the attempt provision spans the "or." There is no extratextual reason to interpret the statute in a manner that treats exporters and buyers differently, and there are strong intratextual reasons for treating them similarly. Kuok's interpretation of "prior to exportation" "render[s] the entire provision a nullity," and we reject it. Cf. Atl. Research Corp., 551 U.S. at 137, 127 S.Ct. 2331. In sum, we have considered Kuok's objections to count two, and have found them without merit.
VI
Kuok brings multiple challenges to the jury instructions given in this case. We review "de novo whether the jury instructions accurately define the elements of a statutory offense." United States v. Summers, 268 F.3d 683, 687 (9th Cir.2001).
First, Kuok argues that the jury instructions with respect to count two were improper for the same reasons that he argued his conviction on count two must be vacated. Because we have rejected his arguments and concluded that Kuok's conviction under § 554(a) need not be vacated as a matter of law, we disagree that the jury instructions were improper.
Second, Kuok argues that the instructions with respect to count one are invalid because they allowed the jury to convict based on the "attempt to cause an export" theory of count three. Instruction 21, relating to count three, states in full:
Count 3 of the Indictment charges the defendant with attempted export of a defense article without a license. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, on or about April 29, 2009, the defendant intended to commit the crime of willfully causing the export of a KG-175 Taclane Encryptor which was designated on the United States Munitions List, without first obtaining a license or written approval from the Department of State, Directorate of Defense Trade Controls, and,
Second, the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.
Mere preparation is not a substantial step toward committing the crime of exporting defense articles without a license.
An act is done "willfully" if it is voluntarily committed with the knowledge that it was prohibited by law and with the purpose of disobeying or disregarding the law. While the government must prove beyond a reasonable doubt that the defendant intended to violate the law, it is not necessary for the government to prove that the defendant had [946] read, was aware of, or had consulted the specific regulations governing his activities. In other words, in this case, while the government must prove beyond a reasonable doubt that the defendant intended to violate the law, the government is not required to prove that the defendant had read or consulted the United States Munitions List or the specific export licensing requirements of the Arms Export Control Act.
As discussed above, we vacate Kuok's conviction on count three because there is no crime of attempting to cause an export contrary to U.S. law. Kuok argues that his conviction on count one was "tainted" by this invalid offense theory because the instruction on count one refers to the same substantive offense as that in count three (exporting without a license). Instruction 16, relating to count one, states in full:
As mentioned, Count 1 of the Indictment alleges two possible criminal objects of the conspiracy.
The elements of the crime of buying merchandise, articles, or objects prior to exportation, knowing they would be exported contrary to the laws and regulations of the United States are:
First, the defendant knowingly bought merchandise, articles, and objects, prior to exportation, and
Second, at that time, the defendant knew the same to be intended for exportation contrary to any law or regulation of the United States.
The elements of the crime of exporting defense articles without a license are:
First, the defendant exported, or caused to be exported, from the United States an item or items designated on the United States Munitions List;
Second, the defendant did not obtain a license or written approval from the Department of State to export the item or items; and
Third, the defendant acted willfully.
The term "willfully" is defined in Court's Instruction 21.
To willfully "cause" an act to be done means to intentionally bring it about, with knowledge that it is prohibited by law and with the purpose of disobeying or disregarding the law.
There is no taint here. Instruction 21 is invalid because it allowed the jury to convict on an "attempt to cause an export" theory, but instruction 16 allowed the jury to convict on a "conspiracy to cause an export" theory. We have already concluded that because of the existence of a general federal conspiracy statute, a conspiracy to cause an act to be undertaken is prohibited by U.S. law in a way that an attempt to cause an act to be undertaken is not. See Giese, 597 F.2d at 1179-80; see also 18 U.S.C. § 371. The cross-reference for the definition of "willfully" does not alter this analysis, as the meaning of the term "willfully" is entirely irrelevant to the question of whether instruction 21 is invalid. This cross-reference does not incorporate the "attempt to cause an export" theory.
Kuok's third argument fails for the same reason. He challenges the correctness of the phrase in instruction 16 indicating that a possible object of the conspiracy for count one was that "the defendant exported, or caused to be exported" a defense article. Kuok argues both that a "causation" theory was not charged in the indictment, and that no authority supports the causation theory in the context of conspiracy liability. We disagree. "[A]n indictment need not specifically charge . . . `causing' the commission of an offense . . . to support a jury verdict based upon a finding of [causation]." United States v. Armstrong, 909 [947] F.2d 1238, 1241 (9th Cir.1990) (internal quotation marks omitted). And as discussed above, conspiracy to cause an export is a valid offense theory. See Giese, 597 F.2d at 1179-80; see also 18 U.S.C. § 371.
VII
Because we hold that the government's theory on counts one and two is viable as a matter of law, we finish by considering Kuok's claim that he should have been permitted to present evidence of duress to the jury. We review the district court's decision to exclude the duress defense de novo.[9] United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir.2008).
Duress is not a statutory defense, but a common-law defense that allows a jury to find that the defendant's conduct is excused, even though the government has carried its burden of proof. See Dixon v. United States, 548 U.S. 1, 12-14 & n. 9, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). To establish duress, the burden of proof is on the defendant to show that: (1) he was under an immediate threat of death or serious bodily injury, (2) he had a well grounded fear that the threat would be carried out, and (3) he had no reasonable opportunity to escape. United States v. Shapiro, 669 F.2d 593, 596 (9th Cir.1982); see also Dixon, 548 U.S. at 7, 126 S.Ct. 2437; United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). "Factfinding is usually a function of the jury, and the trial court rarely rules on a defense as a matter of law." United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984). Because we consider this defense as a matter of law, we must accept Kuok's proffer as true in its entirety. Here, the parties' dispute concerns the first and the third elements.[10]
A
The threat to Kuok's family was both immediate and serious. According to his counsel's opening statement, Zheng made it clear to Kuok that his family was being monitored, through Zheng's actions in giving Kuok reports on his wife's daily activities, calling her at the family's home phone number, and sending Kuok various pictures of his wife and his son taken in public. When Kuok attempted to get out of his dealings with the government, Zheng explicitly threatened to send Kuok's wife to a "black jail," and told Kuok that this was "somewhere where we take people off the grid if they don't do what we ask them to do."
Our decision in United States v. Contento-Pachon is most similar to the present case. In Contento-Pachon, a taxi driver was lured into a meeting with a drug dealer when the drug dealer promised him a job driving a private car. 723 F.2d at 693. What the drug dealer actually wanted was a mule to smuggle drugs into the United States. Id. The defendant protested, but capitulated in the face of threats to his family. Id. The drug dealer revealed that he knew private details about the defendant's life—details that the defendant [948] had never mentioned to the drug dealer. Id. We held that this evidence supported a defense of duress because
[the drug dealer] had gone to the trouble to discover that Contento-Pachon was married, that he had a child, the names of his wife and child, and the location of his residence. These were not vague threats of possible future harm. According to the defendant, if he had refused to cooperate, the consequences would have been immediate and harsh.
Id. at 694; see also id. ("Contento-Pachon contends that he was being watched by one of [the drug dealer]'s accomplices at all times during the airplane trip.").
The government contends that the threats to Kuok's family were not "immediate" because Kuok could not demonstrate that "someone was present to enforce the threat immediately during the entire criminal conduct." United States v. Sawyer, 558 F.3d 705, 712 (7th Cir.2009) (coercion over a year-long period was insufficient to prove duress because defendant could not show that someone was present at all times the defendant was involved in illegal activity).
The government cites United States v. Becerra in support of its position. 992 F.2d 960 (9th Cir.1993). In that case, the defendant believed that his family was threatened when an undercover agent said he would "take care" of the defendant's family if the defendant did not go through with various drug transactions. Id. at 964. We found that this was not enough, because the threat was not "immediate," even though the undercover agent was "almost constantly" around the defendant. Id. The government argues that this indicates that surveillance must rise above the level of "almost constant," but we think this confuses "constant surveillance" with "specificity."
Our case law makes it clear that to be immediate, a threat must be specific: "A veiled threat of future unspecified harm will not satisfy this requirement." Contento-Pachon, 723 F.2d at 694 (internal quotation marks omitted) (alteration omitted). To that effect, we rejected the defense in Becerra, where the threat to "take care" of the defendant's family did not include a specific time frame, and lacked detail. 992 F.2d at 964. In United States v. Karr, we found that no evidence supported the duress defense when the defendant testified only that "Harry threatened his daughter, his mother and himself." 742 F.2d 493, 497 (9th Cir.1984). Similarly, in United States v. Moreno, we rejected the defense where, "[d]uring [a] three week period, Moreno saw Joker on only three occasions. No one else made any threats or appeared to follow Moreno. Joker did not know Moreno's address, or where in the `westside' his daughters could be located." 102 F.3d 994, 997 (9th Cir.1996). Put simply, vague and undetailed threats will not suffice.
Kuok's case is close, but we find that the threats against his family were not vague. Kuok was told his wife would be arrested and disappear into a secret prison if he refused to cooperate. Immediacy is demonstrated by the fact that Zheng clearly indicated that harm to Kuok's wife would be the specific and direct consequence of refusing to obey the government's commands. It is further supported by the fact that Zheng knew his family's movements and other intimate details that demonstrated that his family was regularly monitored. Kuok believed that Zheng represented the Chinese intelligence service, whose capacity to carry out its threats would be far greater than the run-of-the-mill criminal organization. The vivid detail in Zheng's threat distinguishes it from threats in cases rejecting the duress defense [949] when the defendant received only generic threats against himself or his family.
B
Kuok argues that he had no reasonable opportunity to escape his situation because the government was monitoring him and his family, because he could not turn to the local police for help, and because even if he could leave the country on his travels and seek help from U.S. law enforcement, his family would have remained vulnerable. This issue should have been submitted to the jury. We have held that the inability to seek help from the local police is a relevant factor in assessing the opportunity to escape. In Contento-Pachon, the defendant believed that the police were corrupt and paid off by drug traffickers. 723 F.2d at 693. We held that the case had to be submitted to the jury for it to "decide whether one in Contento-Pachon's position might believe that some of the Bogota police were paid informants for drug traffickers and that reporting the matter to the police did not represent a reasonable opportunity of escape." Id. at 694. Here also, a jury should decide whether Kuok, who claims the government itself was threatening him, could not seek aid from local authorities.
Furthermore, the possibility of packing up and moving out of the dangerous environment, abandoning one's work and displacing one's entire family, does not necessarily present a reasonable opportunity for escape. Again, Contento-Pachon is instructive: "To flee, Contento-Pachon, along with his wife and three year-old child, would have been forced to pack his possessions, leave his job, and travel to a place beyond the reaches of the drug traffickers. A juror might find that this was not a reasonable avenue of escape." Id. Here, Kuok might have been able to escape Macau, but it is less clear that he could have reasonably escaped with his wife and son, and it was their safety that been threatened.[11]
The government contends that if Kuok had an opportunity to notify U.S. law enforcement about his situation, he was required to do so. However, the cases the government cites are inapposite. First, we have not held that a defendant must surrender to authorities after reaching a place of safety, except in prison escape cases. See Bailey, 444 U.S. at 412-13, 100 S.Ct. 624. Second, the cases upon which the United States relies involve seeking the help of local police. For example, in Moreno, we noted that "[u]nlike the defendant in Contento-Pachon, . . . Moreno presented no evidence that he could not flee from his gang's reach, or that he could not seek help from local law enforcement agencies because they were corrupt and controlled by gang members." 102 F.3d at 997; see also United States v. Sixty Acres in Etowah Cnty., 930 F.2d 857, 861 (11th Cir.1991) (holding that the duress defense was insufficient because the defendant did not show he had no reasonable opportunities to inform the police); United States v. Charmley, 764 F.2d 675, 676-77 (9th Cir. 1985) (same); Shapiro, 669 F.2d at 596-97 & n. 4 (same). In any event, the government's suggestion that Kuok should have cooperated with the authorities immediately upon landing in the Atlanta airport may be unreasonable, given that Kuok knew his family was still in danger of being jailed by Chinese government officials beyond the [950] control of U.S. authorities. See United States v. Otis, 127 F.3d 829, 835 (9th Cir. 1997) ("The government argues that . . . [the defendant] could have escaped by cooperating with the American authorities. We do not see how protection would have protected his father in Colombia.").
In short, the ultimate factfinders may or may not accept Kuok's story, but he has alleged facts sufficient to present his defense to the jury.
VIII
We vacate Kuok's convictions on counts three and four. We remand to the district court for a new trial on counts one and two, with instructions to allow Kuok to present evidence of duress to the jury.
REVERSED; REMANDED.
[*] The Honorable Glen H. Davidson, Senior District Judge for the U.S. District Court for the Northern District of Mississippi, sitting by designation.
[1] The government had no notice of the duress defense, and the request would have entailed a continuance of the trial. See United States v. Hayes, 120 F.3d 739, 743 (8th Cir.1997) ("The defendants offered no good cause for waiting six months [two days after the start of their trial] to request this alleged Brady material."). We express no opinion, however, on the merits of the issue should a timely request occur on remand.
[2] On appeal, the government does not brief the claim that the duress defense should be excluded because pretrial notice was not given.
[3] Although Kuok raises the nondelegation argument in the context of count three, it is clear that this argument is common to all counts, which arise under or depend in some way on the validity of the Arms Export Control Act.
[4] At the close of the government's case, Kuok made a general motion for a judgment of acquittal, which the district court kept under submission. Kuok only explicitly raised the venue issue in briefing following the jury's verdict. The government raises a non-frivolous argument that Kuok has therefore waived his challenge to venue. This turns out to be a complex issue, given the state of the law in this circuit. See United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000) ("[V]enue objections made at the close of the government's case-in-chief are timely if the defect in venue is not apparent on the face of the indictment."); United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974) ("[V]enue may be waived, and where, as here, the objection was not raised until after the jury had returned its verdict of guilty, we find that waiver did in fact occur." (citation omitted)); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir. 1966) (general motion for acquittal, when "specifically limited" to grounds other than venue, does not preserve a timely venue objection); Hanson v. United States, 285 F.2d 27, 28-29 (9th Cir. 1960) (holding that venue must be raised before the close of the government's case, and disagreeing with the appellant's contention that a "timely motion for a directed verdict of acquittal" preserved the challenge). Because we think that Kuok's venue objection is easily disposed of on the merits, we do not deal with the waiver issue.
[5] Kuok also contends that count four, as charged, presents a merger problem. See United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). Because we agree with Kuok on the jurisdictional issue, we do not reach the merger issue.
[6] Because of our resolution, we do not reach Kuok's other arguments pertaining to count three.
[7] In reply, Kuok argues that "buy" and "receive" are not superfluous because "`buy' means to pay for something and obtain possession of it, and `receive' means to take delivery of something." We do not see the relevance of the difference between obtaining possession and taking delivery of something. Especially in the context of exports from the United States into a foreign country, it can hardly be expected that one could obtain possession of an export without taking delivery of it.
Article 2 of the Uniform Commercial Code lends support to our interpretation: it defines the term "buyer" as "a person that buys or contracts to buy goods," U.C.C. § 2-103(1)(a) (emphasis added), and the term "receipt of goods" as "taking physical possession of goods," id. § 2-103(1)(l). The U.C.C. therefore adopts neither Kuok's definition of "buy" nor his proposed distinction between receiving goods and obtaining possession of those goods.
[8] "Such" in this context means "of the sort or degree previously indicated or implied." Webster's Third New International Dictionary 2283 (2002).
[9] After the district court first precluded Kuok's duress defense, Kuok filed a motion to reconsider, which included additional detail and a proffer of his entire defense case. Motions to reconsider are reviewed for abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Because we conclude that the duress defense should have been sent to the jury on the basis of the facts presented to the district court before the motion to reconsider, we limit this discussion to those facts and review the legal issue de novo.
[10] The government does not challenge the sufficiency of Kuok's proffer with respect to the second element of duress.
[11] There is some evidence in the record that Kuok did, in fact, take multiple trips outside Macau, including family vacations. Given the other evidence Kuok proffered, we think this is evidence a jury should consider in assessing the reasonableness of Kuok's duress defense, rather than evidence that precludes his duress defense as a matter of law.
7.2.6.4.2.2 IV.B.ii. Insanity 7.2.6.4.2.2 IV.B.ii. Insanity
The insanity excuse has been around for a long time, even as society’s social and scientific understandings of insanity have evolved. As an excuse, rather than a justification, insanity doctrine does not hold that the criminal act was morally correct, but rather that the insane person is not responsible for a morally wrong action. The cases and readings in this section introduce some of the formulations of the insanity defense that are currently in use. Consider how the various formulations balance the moral and the medical. According to one insanity rule, the ability to tell right from wrong is central to the insanity inquiry. According to another, self-control is key, as an irresistible impulse may excuse culpability. The Model Penal Code applies a sort of hybrid. Each major test is followed in a variety of jurisdictions, and some jurisdictions follow yet another test or provide for no insanity defense at all. What does the sheer diversity of approaches and standards tell us about the insanity excuse? Should the very diversity of approaches implicate fairness concerns? Consider why our criminal justice system may not seek to punish the insane. How does insanity implicate the traditional justifications of punishment (retribution, deterrence, incapacitation, and rehabilitation)? Since criminal punishment undoubtedly has a moral component, what should be the role of science in defining who is insane and who is excused due to insanity? Are those the same questions, or are they different? Lastly, insanity may implicate more than the question of excuse. Even if someone is guilty, they may be “guilty but mentally ill.” Consider what role insanity or mental illness may play in establishing the other elements of a crime, such as mens rea.
7.2.6.4.2.2.1 18 U.S.C.A. § 17. Federal Insanity defense 7.2.6.4.2.2.1 18 U.S.C.A. § 17. Federal Insanity defense
18 U.S.C.A. § 17. Insanity defense
(a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
7.2.6.4.2.2.2 The King v. Porter 7.2.6.4.2.2.2 The King v. Porter
HIGH COURT OF AUSTRALIA
THE KING against PORTER.
Criminal Law - Insanity - Temporary - Charge of Murder.
Charge to the jury upon a plea of temporary insanity set up to an indictment for murder.
TRIAL on Indictment.
On 31st January and 1st February 1933 (before the passing of the Seat of Government Supreme Court Act 1933) Bertram Edward Porter was tried on indictment for murder at Canberra before Dixon J. sitting in the original jurisdiction of the High Court under sec. 30B of the Judiciary Act 1903-1932.
It appeared that the prisoner had administered strychnine to his infant son aged eleven months and had then attempted to take strychnine himself but had been interrupted by the entry of the police. The child died, and this was the murder with which he was charged. His defence was that he was insane at the time he committed the act.
The facts set up in support of the defence were briefly as follows :- After a period of separation from his wife during which he looked after the child, he had made desperate but unsuccessful efforts to fleet a reconciliation. He became extremely emotional and showed symptoms of a nervous breakdown. He was sleepless, and took quantities of aspirin, phenacetin and caffein. He then travelled with the child from Canberra to Sydney in circumstances which made it probable that he was without sleep for three nights. On his return he had a final interview with his wife, in which he appeared to have lost all control of his emotions. On her refusing to have anything to do with him or the child, he told her he would poison himself and the child and hastened away to obtain the strychnine. She informed the police, who found him shut in his house, sobbing. He had just given the strychnine to the child and was about to take it himself.
P. V. Storkey, for the Crown.
O'Sulliva.n and Hidden, for the prisoner.
DIXON J., in summing up, said :-
The accused stands charged under the name of Bertram Edward Porter, for the murder of his child, Charles Robert Porter, committed on 28th November 1932. The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another. To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is not for the Crown to prove that any man is of sound mind; it is for the defence to establish inferentially that he was not of sufficient soundness of mind, at the time that he did the actions charged, to be criminally responsible. On the other hand, every person is to be presumed to be innocent of the actions charged against him until it is proved to the satisfaction of the jury beyond any reasonable doubt that he committed them.
You will see, gentlemen, that the presumptions are not of equal strength. The criminal law requires that, when a crime is charged, the things which constitute that crime shall be proved to the complete satisfaction of the jury; that they shall be so satisfied that those things were done that they have no reasonable doubt about it. On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.
You will therefore see that the first questions in this case for your consideration are these: Did the prisoner administer strychnine to his infant son with the intention of causing his death; and, did its death result from his so doing? Unless you are so satisfied, beyond reasonable doubt, that he did administer strychnine to the child with the intention of causing his death, and that death resulted from strychnine, then it is your simple duty to return a plain verdict of not guilty, because he would not have done the things which constitute murder.
Probably you will have no difficulty at all in arriving at the conclusion that the prisoner did administer strychnine to his son with the intention of causing its death, and that death did result from the strychnine. I am bound to add that it is entirely for you to give effect to that evidence, and, if you think the evidence is not so strong as Ind the Crown Prosecutor have suggested it is, you will stop the case at that stage. You will not go any further and consider the question of insanity.
[His Honour referred to the facts material to the commission of the acts constituting the crime and proceeded :--]
The facts, as I have said, appear to me to be clear, but if you disagree with that, you should give effect to your disagreement by finding the prisoner not guilty. The responsibility is yours, and not mine. If, on the contrary, you are satisfied beyond reasonable doubt, to the exclusion of all doubt, of these three matters – (1) that he did administer strychnine to the child; (2) that he did so with the intention of killing it; and 3) that the child's death did result from that administration – then you will turn and proceed to consider whether, at that particular time when he did those things, his state of mind was such as to make him criminally responsible for his act. That means, has it been made out to your reasonable satisfaction that, at the time, the prisoner’s faculties were so disordered that he is not in law criminally responsible for what he did. If you form the opinion that his faculties were so disordered that he is not criminally responsible, you will find a verdict of not guilty on the ground that the prisoner was insane at the time the offence was committed. You do not find him guilty but insane, as they do in some British countries. According to the law in this country the technical verdict is such a case is: Not guilty on the ground of insanity at the time of the commission of the offence charged. It is your function specifically to state that ground for your verdict of not guilty, because the legal consequences are quite different from those which follow a plain verdict of not guilty on the ground that the prisoner did not do the things charged. If you think it is not proved that the prisoner poisoned his child and brought about his death, your verdict, of course, will be simply not guilty, and he will be completely free. If, however, you think that he did the things charged against him, but that, at the time, his mind was so disordered that he could not be held responsible, then you will find him not guilty on the ground of insanity at the time of the offence charged.
There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime, and a ground for your finding such a verdict as I have indicated. It is my duty to explain that standard to you. It is plain from what passed the witness-box this morning, when Dr. Henry was giving evidence, that the legal standard is a matter which he himself wished to discuss, but I prevented him, and kept him to his medical function. In my judgment, from remarks which have been made at the Bar in the course of speeches, it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts.
Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law jn the hope that by doing so you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health? In considering that, it will not perhaps, if you have ever reflected upon the matter, have escaped your attention that a great number of people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their dispositions and peculiarly tempered. That is markedly the case in sexual offences. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect I of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is.
The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how we has before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive.
The next thing I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to for you to form your opinion upon it. In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. In this case, except for the prisoner's own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged.
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression "disease, disorder or disturbance of the mind." That does not mean (as you heard from the doctor's replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing- with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression "know," "knew that what he was doing was wrong." We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?
If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.
[His Honour reviewed the circumstances affecting the question of the prisoner's state of mind at the time of the commission of the acts charged and the medical evidence and proceeded:~]
In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of administering the poison to the child the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness. If you answer that question in his favour you will find him not guilty on the ground of insanity at the time of the commission of the offence charged. If you answer the question against him, and you have already formed a conviction on that question, that he committed the actual act which constituted murder with the necessary intention of bringing about death, you will find him guilty of murder. I repeat that the burden of establishing to your complete satisfaction to the exclusion of all reasonable doubt that he did all the acts with the requisite intention of killing which constitutes murder and brought about death, is upon the Crown. I think upon the evidence you will have little difficult on that point.
The burden of establishing to your reasonable satisfaction, not to the exclusion of all doubt but on the balance of probability, that his state of mind was one which I have described is upon the prisoner. If you are in the condition of mind of being quite unable to answer that question it will be your duty then to find him guilty, assuming that you have arrived at the conclusion that you are convinced that the act, if that of a sane man, would amount to murder. Three verdicts upon this view of the case are open to you. You may find him completely not guilty, which would mean that you are not satisfied beyond reasonable doubt that he caused the death but at the time his intelligence was so disordered that he was in such a state that he was not criminally responsible for his act.
Finally, you may find him guilty of murder.
You will now retire to consider your verdict.
The jury returned the following verdict :-
Not guilty on the ground of insanity at the time of commission of the act charged.
Solicitor for the Crown, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitor for the prisoner, Felix Mitchell, Cooma.
7.2.6.4.2.2.3 M'Naughten's Case 7.2.6.4.2.2.3 M'Naughten's Case
DANIEL M'NAGHTEN'S CASE.
May 26, June 19, 1843.
[Mews' Dig. i. 349; iv. 1112. S.C. 8 Scott N.R. 595; 1 C. and K. 130; 4 St. Tr. N.S, 847. The rules laid down in this case have been accepted in the main as an authoritative statement of the law (cf. Beg. v. Townley, 1863, 3 F. and F. 839; Beg. v. Southey, 1865, 4 F. and F. 864; Beg. v. Leigh, 1866, 4 F. and F. 919). But they have been adversely criticised both by legal and medical text writera (see 2 Steph. Hist Crim. Law, 124-186; Mayne Ind. Crim. Law (ed. 1896), 368), have been rejected by many of the American States (see e.g. Parsons v. State, 1887, 81 Ala. 577), and frequently receive a liberal interpretation in England. On point as to questions to the Judges, see note to London and Westminster Bank Case, 2 Cl. and F. 191.]
Murder-Evidence-lnsanity.
The House of Lords has a right to require the Judges to answer abstract questions of existing law (see London and Westminster Bank Case, ante [2 Cl. and F.], p. 191 [and note thereto].
Notwithstanding a party accused did an act, which was in itself criminal, under the influence of insane delusion, with a view of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time that he was acting contrary to law.
That if the accused was conscious that the act was one which he ought not to do; and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.
That a party labouring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts, in respect to which the delusion exists, were real.
That where an accused person is supposed to be insane, a medical man, who has been present in Court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong.
The prisoner had been indicted for that he, on the 20th day of January 1843, at the parish of Saint Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, in and upon one Edward Drummond, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Daniel M'Naghten, a certain pistol of the value of 20s., loaded and [201] charged with gunpowder and a leaden bullet (which pistol he in his right hand had and held), to, against and upon the said Edward Drummond, feloniously, wil-fully, and of his malice aforethought, did shoot and discharge; and that the said Daniel M'Naghten, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder, etc., the said Edward Drummond, in and upon the back of him the said Edward Drummond, feloniously, etc. did strike, penetrate and wound, giving to the said Edward Drummond, in and upon the back of the said Edward Drummond, one mortal wound, etc., of which mortal wound the said E. Drummond languished until the 25th of April and then died; and that by the means aforesaid, lie the prisoner did kill and murder the said Edward Drummond. The prisoner pleaded Not guilty.
Evidence having been given of the fact of the shooting of Mr .Drummond, and of his death in consequence thereof, witnesses were called on the part of the prisoner, to prove that he was not, at the time of committing the act, in a sound state of mind. The medical evidence was in substance this: That persons of otherwise sound mind, might be affected by morbid delusions: that the prisoner was in that condition: that a person so labouring under a morbid delusion, might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had connexion with his delusion: that it was of the nature of the disease with which the prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible [202] intensity: that a man might go on for years quietly, though at the same time under its influence, but would all at once break out into the most extrava- gant and violent paroxysms.
Some of the witnesses who gave this evidence, had previously examined the prisoner: others had never seen him till he appeared in Court, and they formed their opinions on hearing the evidence given by the other witnesses.
Lord Chief Justice Tindal (in his charge): -The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.
Verdict, Not guilty, on the ground of insanity.
This verdict., and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort, having been made the subject of debate in the House of Lords (the 6th and 13th March 1843 ; see Hansard's Debates, vol. 67, pp. 288, 714), it was determined to take the opinion of the Judges on the law governing such cases. Accordingly, on the 26th of May, all the Judges attended their Lordships, but no questions were then put.
On the 19th of June, the Judges again attended the House of Lords; when (no argument having been [203] had) the following questions of law were propounded to them:-
1st. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for in- stance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?
2d. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and in-sanity is set up as a defence?
3d. In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?
4th. If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?
5th. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?
[204] Mr. Justice Maule :--I feel great difficulty in answering the questions put by your Lordships on this occasion :-First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the questions: this difficulty is the greater, from the practical experience both of the bar and the Court being confined to questions arising out of the facts of particular cases :-Secondly, because I have heard no argument at your Lordships' bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argu- ment:-and Thirdly, from a fear of which I cannot divest myself, that as these ques- tions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions; but as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself.
The first question, as I understand it, is, in effect, What is the law respecting the alleged crime, when at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act [205] with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?-If I were to understand this question according to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for their solution. I am quite unable to do so, and, indeed, doubt whether it be possible to be done; and therefore request to be permitted to answer the question only so far as it comprehends the question, whether a person, circumstanced as stated in the question, is, for that reason only, to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding? and I am of opinion that he is not. "'There is no law, that I am aware of, that makes persons in the state described in the question not re.:ponsible for their criminal acts. To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of unsoundness of mind. If the state described in the question be one which involves or is necessarily connected with such an unsoundness, this is not a matter of law but of physiology, and not of that obvious and familiar kind as to be inferred without proof.
Second, the questions necessarily to be submitted to the jury, are those questions of fact which are [206] raised on the record. In a criminal trial, the question com- monly is, whether the accused be guilty or not guilty: but, in order to assist the jury in coming to a right conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions, as the course which the trial has taken may have made it convenient to direct their attention to. What those questions are, and the manner of submitting them, is a matter of discretion for the Judge: a discretion to be guided by a consideration of all the circumstances at- tending the inquiry. In performing this duty, it is sometimes necessary or con- venient to inform the jury as to the law; and if, on a trial such as is suggested in the question, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in my answer to the first question, as being, in my opinion, the law on this subject.
Third, there are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the dis- cretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.
Fourth, the answer which I have given to the first question, is applicable to this. Fifth, whether a question can be asked, depends, 'not merely on the questions of fact raised on the record, but on the course of the cause at the time it is proposed to ask it; and the state of an inquiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such, that such a question as either of those suggested, is proper to be asked and answered, though the witness has [207] never seen the person before the trial, and though he has merely been present and heard the witnesses: these circumstances, of his never having seen the person before, and of his having merely been present at the trial, not being necessarily suffi- cient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful; though I will not say that an inquiry might not be in such a state, as that these circumstances should have such an effect.
Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence; it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts, as makes it irrelevant to the inquiry. But such ques- tions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evi- dence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of The Queen v. M'Naghten, tried at the Central Criminal Court in March last, before the Lord Chief Justice, Mr. Justice Williams, and Mir. Justice Coleridge, in which counsel of the highest eminence were engaged on both sides; and I think the course and practice of receiving such evidence, confirmed by the very high authority of these Judges, who not only received it, but left it, as I understand, to the jury, without any remark derogating from its [208] weight, ought to be held to warrant its reception, notwith- standing the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament.
Lord Chief Justice Tindal :-ly Lords, Her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships' House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time danger- ous to tbe administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lord- ships' questions.
They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in [209] the same opinion, they desire me to express such their unanimous opinion to your Lordships.
The first question proposed by your Lordships is this: "What is the law respect- ing alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of re- dressing or revenging some supposed grievance or injury, or of producing some sup- posed public benefit ?"
In answer to which question, assuming that your Lordships' inquiries are con- fined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.
Your Lordships are pleased to inquire of us, secondly, "What are the proper ques- tions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly, "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when [210] the act was committed? " And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be. that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be respon- sible for his crimes,until the contrary be proved to their satisfaction ; and that to estab- lish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not, know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a convic- tion ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was con- scious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore [211] has been to leave the question to the jury, whether the party accused had a suffi- cient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.
The fourth question which your Lordships have proposed to us is this :-"If a person under an insane delusion as to existing facts, commits an offence in conse- quence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsi- bility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that-the deceased had in- flicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
The question lastly proposed by your Lordships is :-" Can a medical man con- versant with the disease of insanity, who never saw the prisoner previously tothe trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commis- sion of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and [212] what delusion at the time?" In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.
Lord Brougham:- My Lords, the opinions of the learned Judges, and the very able manner in which they have been presented to the House, deserve our best thanks. One of the learned Judges has expressed his regret that these questions were not argued by counsel. Generally speaking, it is most important that in questions put for the consideration of the Judges, they should have all that assistance which is afforded to them by an argument by counsel: but at the same time, there can be no doubt of your Lordships' right to put, in this way, abstract questions of law to the Judges, the answer to which might be necessary to your Lordships in your legislative capacity. There is a precedent for this course, in the memorable instance of Air. Fox's Bill on the law of libel; where, before passing the Bill, this House called on the Judges to give their opinions on what was the law as it then existed.
Lord Campbell :- My Lords, I cannot avoid express-[213]-ing my satisfaction, that the noble and learned Lord on the woolsack carried into effect his desire to put these questions to the Judges. It was most fit that the opinions of the Judges should be asked on these matters, the settling of which is not a mere matter of speculation; for your Lordships may be called on, in your legislative capacity, to change the law; and before doing so, it is proper that you should be satisfied beyond doubt what the law really is. It is desirable to have such questions argued at the bar, but such a course is not always practicable. Your Lordships have been reminded of one prece-dent for this proceeding, but there is a still more recent instance; the Judges having been summoned in the case of the Canada Reserves, to express their opinions on what was then the law on that subject. The answers given by the Judges are most highly satisfactory, and will be of the greatest use in the administration of justice.
Lord Cottenham :- My Lords, I fully concur with the opinion now expressed, as to the obligations we owe to the Judges. It is true that they cannot be required to say what would be the construction of a Bill, not in existence as a law at the moment at which the question is put to them; but they may be called on to assist your Lord- ships, in declaring their opinions upon abstract questions of existing law.
Lord Wynford :- My Lords, I never doubted thatyour Lordships possess the power to call on the Judges to give their opinions upon questions of existing law, proposed to them as these questions have been. I myself recollect, that when I had the honour to hold the office of Lord Chief Justice of the Court of [214] Common Pleas, I com- municated to the House the opinions of the Judges on questions of this sort., framed with reference to the usury laws. Upon the opinion of the Judges thus delivered to the House by me, a Bill was founded, and afterwards passed into a law.
The Lord Chancellor :- My Lords, I entirely concur in the opinion given by my noble and learned friends, as to our right to have the opinions of the Judges on ab- stract questions of existing law; and I agree that we owe our thanks to the Judges, for the attention and learning with which they have answered the questions now put to them.
7.2.6.4.2.2.4. Model Penal Code sec. 4.01
7.2.6.4.2.2.5 State v. Singleton 7.2.6.4.2.2.5 State v. Singleton
—N.J.—
STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
BOYCE SINGLETON, JR., Defendant-Respondent.
SUPREME COURT OF NEW JERSEY
No. 067756
Argued January 31, 2012 – Decided July 30,2012
On certification to the Superior Court, Appellate Division, whose opinion is reported at 418 N.J. Super. 177 (2011).
Frank J. Ducoat, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).
John W. Douard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In New Jersey, we adhere to the general proposition that a defendant who has the mental capacity to know basic societal mores that distinguish objectively between right and wrong is legally responsible for his criminal conduct. See State v. Sikora, 44 N.J. 453, 470 (1965). Mental illness does not in and of itself eliminate moral blameworthiness under the test for criminal insanity enshrined in the Code of Criminal Justice 2 (Code). See N.J.S.A. 2C:4-1. As our Model Jury Charge illuminates for jurors, “[t]he law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrists.” Model Jury Charges (Criminal), § 2C:4-1 Insanity (Oct. 17, 1988). And, moreover, jurors are informed that the law does not require that the defendant actually consider the wrongness of his act when accomplishing the deed. Rather,
[t]he question is not whether the defendant, when (he/she) engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether defendant had sufficient mind and understanding to have enabled (him/her) to comprehend that it was wrong if defendant had used (his/her) faculties for that purpose.
[Ibid.]
Thus, the test hinges on a defendant’s general knowledge of society’s mores and objective expectations about behavior. In State v. Worlock, 117 N.J. 596 (1990), a narrow caveat was added for the delusional defendant who, at the time of a homicidal act, affirmatively acts under a direct command from God to kill the victim. This appeal raises an issue concerning Worlock’s applicability.
In September 2005, defendant Boyce Singleton Jr. killed his pregnant girlfriend, Michelle Cazan. He was indicted and tried in June 2008, on a charge of first-degree murder and other 3 related offenses, including tampering with evidence and hindering. Defendant has never disputed that he killed Cazan. His defense at trial was keyed to whether he should be found not guilty by reason of insanity. Afflicted with schizoaffective disorder, defendant had developed the delusional religious belief that he was in a form of communication with God and that he was authorized to kill those who violated “God’s word.” Defendant’s mental illness was the centerpiece of the parties’ summations and the trial court included the model charge on the insanity defense, which refers to the defendant’s ability to comprehend that his action is wrong, in its instructions to the jury. Defendant interposed no objection to the insanity charge’s content.
Defendant’s insanity defense proved unsuccessful as the jury convicted him of murder, as well as the other charged offenses. In a motion for a new trial, defendant claimed for the first time that the jury should have been provided with a variant of the insanity-defense jury charge informing the jury that a defendant can be found not guilty by reason of insanity if he lacks the capacity to understand that his actions are morally wrong, even if he understands that they are legally wrong. In Worlock, supra, we recognized in dicta that such a jury charge might be necessary in cases where a defendant claims to have been compelled by a “command from God.” 117 N.J. at 4611; cf. State v. Winder, 200 N.J. 231 (2009) (rejecting Worlock’s applicability to facts of case). Finding no evidence that defendant acted under compulsion of a command from God when he murdered Cazan, the trial court concluded that circumstances warranting a “Worlock” variation to the model charge were not present. The court denied the motion for a new trial and imposed sentence on September 12, 2008.
Defendant appealed and a panel of the Appellate Division reversed the conviction and remanded for a new trial based on finding the insanity-defense jury charge to have been incomplete. State v. Singleton, 418 N.J. Super. 177, 204-05 (App. Div. 2011).
The State filed a petition for certification, which was granted. 207 N.J. 188 (2011). We now reverse.
I.
A. Background
Defendant’s expert in forensic psychology and the State’s expert agree that defendant suffers from schizoaffective disorder.[1] At trial defendant produced lay witnesses –- five family members and one friend –- and testified on his own behalf to provide insight into his mental illness prior to and during the events related to Cazan’s death. That testimony showed that defendant had developed a set of delusional religious beliefs derived from his perspective on scripture. Importantly, he believes that he has an obligation to kill sinners, especially sinners who attempt to deter him from honoring God’s word according to his strongly held, personal interpretation of the Bible’s Old Testament.
Defendant’s mental illness significantly manifested itself during his relatively brief period of attendance at college. In 2003, he turned to religious study for guidance, discipline, and a means of control over his life, but soon developed a preoccupation with the Bible and God and became obsessed with the Old Testament. His interpretation of scripture developed into a delusional system that, the experts agree, distorts his logical reasoning. For example, defendant came to believe that money was the root of all evil because people idolized it, rather than God. On one occasion, his distaste for money led him to choose imprisonment for failure to pay a court fine over violating his belief in the wrongness of using money. His mother obtained his release by paying the fine herself.
According to defendant, over time, he became convinced that he was a “soldier” for God. He testified that he came to believe that God communicates with him, although he does not 6 claim to hear a distinct voice speaking or commanding him. Rather, he receives messages or communications from God while asleep.[2] As he explained in his testimony, and in a statement to police after Cazan’s death, he felt a general obligation to kill sinners who did not comport themselves in accordance with his beliefs about God’s expectations, once he explained those expectations to them. Indeed, in 2005, not long before Cazan’s murder, defendant, who had moved back into his parents’ home, told his older sister, Lakeisha, “if I didn’t love you so much, you would have already been dead, because the voices told me to kill all of you all because you’re sinning.”
On another occasion, during the spring of 2005, defendant threatened the gay friend of his younger sister Shakia, who was staying at their parents’ home. Defendant claimed that he “heard something say to me go downstairs and kill him because he was homosexual.” Shakia’s friend left the home without being physically harmed, but by July 2005, defendant’s beliefs and behaviors had become too extreme for his mother and siblings. Although defendant had not yet acted on his beliefs, he was asked to leave the home.[3]
On July 27, 2005, he moved in with Michelle Cazan, a friend of Shakia and a participant in the same bible studies group as defendant’s mother and Shakia. The relationship became intimate within one week’s time and, on September 12, 2005, Cazan told defendant that a home pregnancy test had confirmed that she was pregnant. Defendant killed her the next day. We turn next to the murder and subsequent events.
B. Cazan’s murder
On September 13, 2005, while Cazan was at work, defendant went with a friend to an Air Force and Army recruiting center to discuss enlistment, which he explained was motivated by a desire to help his “family,” meaning his parents and siblings who were struggling, not Cazan. He claimed that he trusted in God to look after Cazan and the baby that was on the way. Still, he was conflicted about enlisting even to help his parents and siblings because he would be working for money, which would be contrary to his religious beliefs.
That afternoon defendant picked up Cazan from work later than she expected, causing her to miss an appointment she had scheduled with an organization that might have provided a source of employment for defendant. He knew that she was not happy about missing the appointment, but testified that they did not argue about it. However, there was tension between the two and they had a discussion during which he considered leaving Cazan’s vehicle, but did not. Instead, he agreed to accompany her on a visit to her hometown of East Rutherford to see places that were important to her, including her brother’s gravesite.
During the trip north, the two quarreled over their future. Cazan was concerned about his ability to provide for the baby. As for defendant, he had reached the conclusion that he would not enlist in military service because he was uncomfortable with the idea of serving “a God other than my God” by earning “evil” money. And, he became increasingly disturbed over Cazan’s change of heart from earlier discussions in which they had talked about going “into the woods” and living apart from a money-based civilization. He felt she had turned from the religious beliefs and principles he thought they shared. He grew more upset with Cazan during that conversation because he felt as though she had not fully adopted his religious beliefs and, worse, she was driving a wedge between him and God. He testified that he began to view Cazan “[a]s a prostitute,” because “she was prostituting herself to another God.” Defendant said he “didn’t trust her,” and that he “didn’t want 9 to be around her . . . [or] with her anymore.” Moreover, on arriving in East Rutherford, defendant did not respond favorably as Cazan showed him the area. He said he became “enraged” by her “stories of mob activity” that allegedly had occurred in the vicinity. He regarded her as “bragging” about it, which offended him.
At approximately 10:30 p.m., the two arrived home at Cazan’s condominium in Mansfield. Defendant claims that, at this point, he was very upset. After using the first-floor bathroom, he went upstairs to the bedroom where Cazan was and asked her to give him the keys to her BMW. She refused. He admitted at trial that had she given him the keys he would have left. However, when she would not give him the car keys, he pulled a revolver from his waistband and shot her four times, emptying the gun. One bullet went through her face and out behind her ear, another entered her chest and passed through her rib cage, chest cavity, and lungs, exiting through her lower back. Forensic evidence showed that Cazan was shot twice more in the back while on her hands and knees. One bullet traveled through her trachea and exited through her neck. Cazan began to choke on her own blood. Defendant said he “didn’t want her to suffer,” so he stabbed her, four times, in the chest and abdomen, one of which pierced her lung. The stab wounds were between three and six inches in depth. She died within minutes.
Defendant took the knife, but left behind the handgun, and drove Cazan’s car to the home of his friend William Britt, where both William and his brother John were. There he washed his hands of blood and gunshot residue and changed his clothes. During the next few hours, defendant and his friends drank alcohol and smoked marijuana. Although defendant told William and John that he had killed Cazan, neither believed him.
Early the next morning, defendant left Cazan’s car around the corner from Britt’s home in Trenton and walked to Morrisville, Pennsylvania where his parents lived. Along the way, he threw the knife into a canal. He did so because he said he had learned from “movies” that “you’re supposed to get rid of the murder weapon.” According to defendant, at that time, he “planned on running” and “kill[ing] everybody . . . until [he] got killed.” However, when he arrived in Morrisville at about 2:00 a.m., he met his older sister Lakeisha also arriving home and asked her to drive him to Cazan’s house. According to Lakeisha, he told her that he had shot and stabbed Cazan, that she was dead, and that he had left the gun behind at the house. Lakeisha testified that during this trip, defendant had “many rambling conversations” in which he was not talking directly to her: “Whoever he was talking to or whatever he was hearing, he was responding to. But the conversation wasn’t for me.” At Cazan’s home, he asked Lakeisha to let him out in the back of the home and to wait for him in the car.
According to defendant, after determining that no police or others were in or around Cazan’s home, he went inside, retrieved his gun, wiped down the door handles, and otherwise attempted to clean the blood splatter. He placed the gun and the cleaning materials he had used in a garbage bag and left, returning to Lakeisha’s car. He asked her to take him to Britt’s home. Along the way she convinced him to go instead to their parents’ home in Morrisville. There he told his father what he had done and fled the area, intending to go to a family member’s home in North Carolina, along the way retrieving his duffle bag from Britt’s home. In his later statements he explained that the police were his enemy because, if he was captured, he could not serve God. However, when he reached Baltimore, he abandoned his plan and returned home after talking with his mother.
Arriving back at his parents’ home, he told his family that he planned to turn himself in but wanted to “hold Cazan” before doing so. So, on September 15, he drove Cazan’s BMW to her home. His brother, Damon, rode with him, and Lakeisha and his mother followed in a separate car. Damon testified that during the trip defendant “was talking to someone” other than him. Defendant entered Cazan’s home alone, repositioned her body and clothing, and placed a stuffed animal, sprayed with perfume, at her side. Concerned by the amount of time that had elapsed, Damon entered the condo and said that he found defendant holding Cazan’s body, “trying to wake her [and] telling her [to] wake up.” Meanwhile, defendant’s mother had arranged for the police to be contacted by one of Cazan’s neighbors.
Mansfield Patrolman Jason Abadia responded and, after backup arrived, he arrested defendant. Abadia testified that defendant stated, “I killed her. I killed her. Don’t leave her like that. Cover her up. I killed her.” Abadia read defendant his Miranda[4] rights and defendant again stated that he had killed Cazan, explaining also what he had done with the knife and gun.
Detective Sergeant Lindsey Cooper of the New Jersey State Police took over the investigation approximately one hour later. To obtain a recorded statement from defendant, Cooper reread the Miranda rights to defendant. During the interrogation, defendant admitted killing Cazan and claimed that he could see a vision of her smiling through the window of the squad car when he was first placed under arrest, and later from the vantage of the room in which he was interrogated. In explaining his killing of Cazan, he stated that he was angry because of “that damn book,” which he clarified as referring to the Bible. Defendant told the officers, “I lost it and the devil kept f...ing with me, he just kept f...ing with me and I lost it . . . .” When asked if anyone else was involved in Cazan’s killing, defendant answered, “No, the devil, god and the devil (inaudible) inside of me, outside of me, all over the place, all over the place.”
C. Trial
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); thirddegree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1).
At trial, in addition to the family members who testified, Dr. Maureen Santina, a clinical and forensic psychologist, testified as an expert for defendant. She diagnosed defendant with schizoaffective disorder which causes hallucinatory experiences and delusional perceptions. [5] She testified that as a result of his delusional system, defendant lost his “ability to regulate his interpretation of the world and his reaction to the world.” She explained that defendant became obsessed with his delusions, including his belief that God wanted him to kill sinners, even his own family, and concluded as follows:
I think that he knew that he was killing her but I don’t think that he understood the nature of his killing her. In other words, I think that he believed that he was supposed to kill her. Whether he wanted to or not, he was supposed to kill her. And that he was supposed to kill her because God was ordering it.
On redirect, Dr. Santina clarified,
As I said, [defendant] believed that God was telling him to do it. He said, I didn’t want to kill her. He in the past, had family members that he had said God was telling him to kill them because he was seeing these people as being bad. And saying I don’t want to do it but feeling he had to. He even talked to himself as not having the courage to do what God wanted.
So in that moment when he feels that God wants him to do it he says I have to do it, I’m supposed to do it because God wants me to do it. He believed that he was following God’s word. And God as being the supreme authority who has the right to decide what’s right or wrong.
The State’s expert, Dr. Elliot Atkins, agreed with Dr. Santina’s conclusion that defendant suffered from the severe mental illness of schizoaffective disorder. The State’s expert further agreed that defendant operated under a delusional system. However, Dr. Atkins disagreed with Dr. Santina’s conclusion that defendant was legally insane at the time of the killing. Dr. Atkins emphasized that defendant admitted to not hearing voices at the time of the killing. Rather, Dr. Atkins testified that defendant was merely acting on his interpretation of what God wanted. On direct examination, Dr. Atkins testified:
For example, he said that he only really heard the voices when he was sleeping. He said that most of these were really not voices, but just thoughts in his head. That he wasn’t even able to describe the voice. And he said to me it was probably just some subconscious thing going on rather than a voice.
That the last time God had spoken to him was two years before the killing. That although he indicated that the idea that he should hurt someone came from God, he said that that information had never been transmitted to him from any voices. And he said it was just my interpretation. I never heard the voice of God.
When I asked him whether he had heard any voices on the night of the incident, he said no. So, although I agree that he was mentally ill at the time, what was going on at that time was not a psychotic episode where a voice is saying this is what you’ve got to do.
When asked on cross-examination whether defendant believed he could talk to God, Dr. Atkins responded, “he clarified for me that he didn’t believe God was actually talking to him. But he believed in this delusional system that what he was thinking was God’s wishes or God’s will.”
Dr. Atkins also pointed to several considerations that, in his opinion, indicated defendant knew what he was doing was wrong. First, defendant had a history of violence and aggression toward women, pointing to defendant’s experiences with the mother of one of his children, and to the fact that he had been fighting with Cazan on the day of the killing. Second, defendant had stated that he stabbed Cazan, not to serve God, but to put her out of her misery. Third, Defendant drank alcohol and smoked marijuana at the Britts’ apartment, which could indicate that defendant sought to dull the guilt he felt. Last, defendant’s forensic evaluation test results indicated he was trying to “make himself look better . . . by claiming that it was God that had him do this.” Dr. Atkins also noted that defendant’s decision to evade police was inconsistent with his claims of righteousness. Based on his evaluation of those considerations, Dr. Atkins opined that defendant was not acting in accordance with his delusional system at the time of the killing and that, therefore, “he knew that what he was doing was wrong.”
The jury instruction that the court and all parties agreed would be given in this matter was the Model Jury Charge for the insanity defense. Drawing from the model charge, the court instructed the jury as follows:
Apart from his general denial of guilt, the defendant maintains that he is not guilty of the crimes charged by reason of insanity. . . .
. . . .
A hostile act, that is an illegal act, may in one case spring from wickedness, and in another from some infirmity or sickness of the mind, which the individual did not design. . . .
. . . .
The law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrist[s]. If, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if defendant did know it, that he did not know what he was doing was wrong, defendant –- the defendant is then legally insane, and therefore, not criminally responsible for his conduct.
As you can see, the law regards insanity as a disease of the mind. It may be temporary or permanent in its nature, but the condition must be a mental disease. An accused may have the most absurd and irrational notions on some subject. He may be unsound in mind and be a fit subject for confinement and treatment in a mental hospital, but if at the time of the offenses, the defendant had the mental capacity to distinguish right from wrong, and to understand the nature and quality of the acts done by him, he is subject to the criminal law.
. . . .
The question is not whether the defendant, when he engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether the defendant had sufficient mind and understanding to have enabled him to comprehend that it was wrong, if the defendant has used –- had used his faculties for that purpose.
The jury rejected defendant’s insanity defense and convicted him of murder and the other charges. His post-trial challenge to the insanity-defense jury instruction was denied by the court. At sentencing, the court imposed a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction, and a five-year prison term for the hindering conviction, to be served consecutively to the fifty-year term. The judge also imposed lesser terms that were made concurrent to the sentences for the murder and hindering convictions.
On appeal, the Appellate Division reversed the conviction and remanded for a new trial. Singleton, supra, 418 N.J. Super. 177. The panel held that defendant had presented sufficient evidence at trial to have required the trial court, sua sponte, to fashion a deific-command variant to the insanity-defense jury charge based on Worlock. Id. at 202-04. The panel was persuaded that the instruction was necessary because defendant testified that he believed killing his girlfriend was “the right thing because it was something God was telling [him] to do.” Id. at 202. The panel noted also the confirming expert testimony that defendant believed he was compelled to obey what he perceived to be a command from God. Id. at 201. In light of that evidence, the panel concluded that failure to provide a deific-command instruction constituted plain error requiring reversal of the conviction. Id. at 203-04. On remand for a new trial, the panel held that “the judge must instruct that the defendant may not be held responsible for his actions ‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’” Id. at 204 (quoting Winder, supra, 200 N.J. at 251).[6]
We granted the State’s petition for certification. 207 N.J. 188 (2011).
II.
The State offers alternative arguments why the decision of the Appellate Division should be reversed. First, the State maintains that the evidence presented at trial supports the trial court’s decision to give only the model charge for the insanity defense and forego the deific-command variation described in Worlock. The Worlock charge is only appropriate in the “clearest and narrowest category of cases” in which a defendant believes that he or she has received a direct command from God ordering the defendant to commit an illegal act. Winder, supra, 200 N.J. at 251. The State contends that defendant’s decision to kill Cazan sprang not from a perception that he had received a direct deific command, but rather from defendant’s subjective, religiously derived, moral code under which he was generally obligated to kill those who did not interpret the Bible and follow God in the way that he did. Moreover, the State emphasizes that the circumstances surrounding the killing indicate that defendant’s immediate motivation for murdering Cazan was his anger over Cazan’s pregnancy and refusal to hand over her car keys, not his religious beliefs.
In the alternative, the State asks that we reject Worlock, “abandon the ‘deific decree’ variation of the insanity defense and abolish the distinction between legal and moral wrong.” The State argues that Worlock introduced uncertainty and subjectivity into the operation of the insanity defense. The State contends that reinterpreting the insanity test, so that a defendant who is able to understand the nature and quality of his acts can only invoke the defense if he is unable to comprehend that his acts are illegal, would create a more objective and workable standard.
Defendant argues that the Appellate Division correctly concluded that a Worlock jury charge was necessary in this matter. He points to several instances in the record, many relied on by the Appellate Division, where he claimed to have received direct communications from God. Defendant also contends that Worlock does not require a defendant to experience actual auditory hallucinations of the voice of God to secure a deific-decree jury charge; rather, he argues that it is enough that a defendant delusionally believes that God wants him to kill. In this case, defendant claims that there is no real dispute that he “suffered from a relatively stable delusion, over a period of years, that he was communicating with God, and that God was telling him to kill those who violated the Word.”
In response to the State’s argument that the deific decree jury charge should be abandoned, defendant contends that the charge is required by the statutory language of the test for legal insanity in New Jersey. Because the Legislature adopted that language, defendant argues that only the Legislature can discard the Worlock charge. Moreover, even if the courts were free to abandon it, to do so in this case would violate the Ex Post Facto clauses of the United States and New Jersey Constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.
III.
A.
The insanity defense exists in criminal law not to identify the mentally ill, but rather to determine who among the mentally ill should be held criminally responsible for their conduct. Sikora, supra, 44 N.J. at 470. As a sister jurisdiction has observed, “[t]he insanity defense is not available to all who are mentally deficient or deranged; legal insanity has a different meaning and a different purpose than the concept of medical insanity.” State v. Crenshaw, 659 P.2d 488, 491 (Wash. 1983) (en banc). In New Jersey, N.J.S.A. 2C:4-1 sets forth the test for legal insanity:
A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence.
N.J.S.A. 2C:4-1 codifies the common-law M’Naghten[7] test for legal insanity, which was originally formulated in England in the 1840s. See Winder, supra, 200 N.J. at 242-45 (discussing history of M’Naghten test in England and New Jersey); Worlock, supra, 117 N.J. at 602-04 (same). Our state adopted the M’Naghten test shortly after it was introduced in England, see State v. Spencer, 21 N.J.L. 196, 204-05 (Oyer and Terminer 1846), and has employed it consistently thereafter, see, e.g., State v. Coleman, 46 N.J. 16, 39 (1965); State v. Lucas, 30 N.J. 37, 72 (1959); State v. Maioni, 78 N.J.L. 339, 341-42 (E. & A. 1909). When the Legislature adopted N.J.S.A. 2C:4-1 in 1978, L. 1978, c. 95, it chose to preserve the M’Naghten test in spite of a recommendation from the New Jersey Criminal Law Commission to abandon it in favor of the Model Penal Code test. See 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96-97 (1971).
The M’Naghten test provides two distinct paths for a defendant to demonstrate that he was legally insane at the time he committed an act and therefore not criminally responsible for his conduct. First, a defendant can show that “he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing.” N.J.S.A. 2C:4-1. Second, even if the defendant did know the nature and quality of the act, he can still establish legal insanity if, because of a “disease of the mind,” “he did not know what he was doing was wrong.” Ibid.
In the century-and-a-half since the M’Naghten test was formulated, courts have recognized that the term “wrong” in the second part of the test is susceptible of multiple interpretations. See People v. Schmidt, 110 N.E. 945, 946-49 (N.Y. 1915) (recognizing ambiguity and discussing possible interpretations); see also Diestel v. Hines, 506 F.3d 1249, 1271-73 (10th Cir. 2007), cert. denied, 553 U.S. 1079, 128 S. Ct. 2875, 171 L. Ed. 2d 812 (2008) (same); Crenshaw, supra, 659 P.2d at 492-94 (same). One interpretation would equate the term “wrong” with illegality. Under that understanding, a defendant invoking the insanity defense must demonstrate that despite knowing “the nature and quality of the act he was doing,” he suffered a disease of the mind that prevented him from understanding that the act was illegal. See N.J.S.A. 2C:4-1. A minority of states that follow the M’Naghten test have adopted that interpretation. See State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979); State v. Boan, 686 P.2d 160, 168 (Kan. 1984); see also Regina v. Windle, 2 Q.B. 826 (1952) (interpreting “wrong” to mean legal wrong in England).
However, a majority of states following the M’Naghten test have interpreted “wrong” as encompassing legal as well as moral wrong. See State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978); People v. Skinner, 704 P.2d 752, 764 (Cal. 1985); People v. Serravo, 823 P.2d 128, 137 (Colo. 1992) (en banc); State v. Cole, 755 A.2d 202, 210 (Conn. 2000); Schmidt, supra, 110 N.E. at 949; State v. Pittman, 647 S.E.2d 144, 170 (S.C. 2007); State v. Cameron, 674 P.2d 650, 653–54 (Wash. 1983) (en banc); Wilson v. State, 78 N.W.2d 917, 920 (Wis. 1956); see also United States v. Ewing, 494 F.3d 607, 617 (7th Cir. 2007) (discussing federal courts’ position that wrong encompasses “the broader meaning of moral rather than criminal wrongfulness” (citation omitted)). Under that interpretation, a defendant who understands that his actions are contrary to law nonetheless may successfully invoke the insanity defense if he lacked the capacity to understand that his actions were morally wrong. Courts that follow that approach generally assess moral wrong from a societal, and not a personal, standard, requiring a defendant to show that he did not understand that his actions contravened generally accepted objective societal notions of morality. See, e.g., Serravo, supra, 823 P.2d at 137-38 (adopting that standard and citing other jurisdictions adopting same approach); Crenshaw, supra, 659 P.2d at 493-94 (same).
B.
Our Court addressed the ambiguity in the term “wrong” for the first time in Worlock. In that case, the defendant was convicted of murder after shooting and killing two friends. Worlock, supra, 117 N.J. at 599-01. At trial, the defendant did not deny his involvement in the killings, but relied instead on a defense of legal insanity. Id. at 601. He claimed to have believed the killings were justified because “might makes right” and the laws of society are only meant for “subservient people,” and the defendant did not consider himself to be in that category. Id. at 614. After the defendant presented his defense, the trial court charged the jury with the legal definition of insanity, but did not define the meaning of the term “wrong.” Id. at 612. On appeal, the defendant argued that the trial court should have instructed the jury that the term “wrong” can mean either legal or moral wrong, so that the jury would have known that it could acquit in the event it found that he did not understand that his actions were morally wrong, even if he knew them to be against the law. Id. at 606.
We held that the term “wrong” embraces more than just the concept of legal wrong, id. at 610, and that “a defendant’s ability to appreciate society’s morals may be relevant to the determination of his sanity,” id. at 609. Importantly, we added that
[i]n the vast majority of cases, if the defendant was capable of understanding that he was acting contrary to law, he would also have sufficient capacity to understand that he was acting contrary to the morals of society. Law is largely the crystallization of societal morals. Rarely would an allegedly illegal act not also be wrongful morally. Thus, “wrong” as used in the insanity defense will generally incorporate notions of both legal and moral wrong. [Id. at 609-10.]
Because legal and moral wrong are usually “coextensive,” especially when the criminal act at issue is murder, we held that a jury charge explaining that “wrong” encompasses both legal and moral wrong is almost always unnecessary and would more often than not only serve to confuse the jury. Id. at 610-11. But, in the odd case in which a defendant is able to recognize that his actions are legally wrong but is nonetheless incapable of understanding that they are morally wrong, we held that “the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.” Id. at 611.
We emphasized that the insanity defense has always been premised on a “defendant’s ability to comprehend whether his or her actions would ordinarily be disapproved by society.” Id. at 610. Thus, we held that “the concept of moral wrong must be judged by societal standards, not the personal standard of the individual defendant. As a general rule, it will not be sufficient, therefore, that a defendant’s personal moral code justified a killing otherwise prohibited by law and societal morals.” Ibid. (citations omitted). In other words, in order to warrant a jury charge explaining the concepts of legal and moral wrong, a defendant would have to show that, at the time he committed the crime, he believed that his actions were morally right under prevailing social norms, not just his own “idiosyncratic code of morality.” Id. at 614.
We observed that there is only one “generally-recognized” situation in which legal and moral wrong become sufficiently distinct to necessitate a jury charge defining the term wrong: when “the defendant contends that he or she knowingly killed another in obedience to a command from God.” Id. at 611. In such a scenario, a defendant could justifiably believe that although he acted contrary to law, society would consider his actions to have been morally right. Ibid. We noted that there might be situations other than a deific decree to kill in which a defendant could at the same time understand that his actions were legally wrong but believe them to be morally right under prevailing social values, but declined to speculate on what those scenarios might be. Ibid.
Applying the above standard to the facts of the case, we held that Worlock had not demonstrated that he believed society would have approved of his killings. Id. at 614. Indeed, we noted that he “viewed society with contempt” and candidly admitted that the moral code by which he lived was not for “the folly-ridden mass.” Ibid. Thus, because it was clear that Worlock had the capacity to understand that his actions were morally wrong under conventional notions of morality, we held that the trial court did not err in declining to define the word “wrong” for the jury. Ibid.
Recently, we had occasion to revisit the standard introduced in Worlock and again consider whether a defendant had presented the kind of insanity defense that would necessitate a jury charge defining the term “wrong.” In Winder, supra, the defendant shot and killed a cab driver outside of a police station, and immediately turned himself in to confess to the crime. 200 N.J. at 238. The defendant maintained that he killed the driver because he believed that his parents were trying to kill him and was convinced that prison was the only place he could be safe from them. Id. at 238, 249. The defendant pursued an insanity defense at trial, presenting an expert witness who testified that he suffered from paranoid schizophrenia and heard voices compelling him to kill. Id. at 239. At the charge conference, defense counsel requested that the jury be given an insanity instruction that, following Worlock, included an explanation that the term “wrong” encompasses both legal and moral wrong. Id. at 240. The trial court denied the request and instructed the jury with the model insanity charge. Ibid. The jury found the defendant guilty of first-degree murder and related weapons offenses. Ibid.
On appeal, the defendant challenged the trial court’s decision to forego the Worlock charge, contending that his case presented one of the “‘other delusion-based exceptions’” that we intimated could necessitate a jury charge on the definition of “wrong.” Id. at 249 (quoting Worlock, supra, 117 N.J. at 611). We disagreed, and reemphasized that, outside of the “deificcommand delusion” discussed in dicta in Worlock, situations in which a defendant could understand that his actions were illegal but be incapable of understanding that society would disapprove of them are exceedingly rare. Id. at 249-50. We explained that
[o]ur reference to other delusion-based exceptions in Worlock was not meant to expand the narrow field of potential exceptions to the general understanding that legal and moral wrong, particularly in murder cases, are coextensive. The hurdle to overcoming societal disapproval of the killing of another human being cannot be accomplished easily by references to subjective beliefs, personal preferences, or even alternative notions of morality, unrelated to mental illness, that clash with the law and the mores of society. [Id. at 250.]
We held that the defendant in Winder was not entitled to a Worlock charge because his actions immediately before and after the killing “demonstrated knowledge of the social unacceptance of his deed.” Id. at 249. Moreover, the defendant’s delusions had no apparent impact on his ability to appreciate the way in which society would view the murder. Id. at 250. The defendant believed that the only way he could be safe from his parents’ machinations was to go to prison, and settled on murder as the best way to effect his entry. Id. at 249. There was no indication that the defendant delusionally believed that society would give its blessing to his use of murder to escape his parents. Id. at 250. Thus, because we could discern “no credible claim of moral rightness” flowing from the defendant’s delusions, we upheld the trial court’s decision to give the standard insanity charge. Ibid.
IV.
We dispense at the outset with the State’s argument that we should abandon Worlock’s recognition of a deific-command exception to the general charge covering criminal insanity. Stare decisis and other stabilizing principles of the law compel us to reject that request.
As recently as this term we noted that “[s]tare decisis is a principle to which we adhere for the sake of certainty and stability.” State v. Shannon, 210 N.J. 225, 226 (2012) (citations omitted). Nonetheless, stare decisis is not so inviolate that it should “foreclose reanalysis” when warranted. Ibid. (citations omitted). It is undeniably a healthy practice for a court of last resort to re-examine its own doctrine, but, consistent with the practice of other courts of last resort, we have required “special justification” to overturn the persuasive force of precedent. See Luchejko v. City of Hoboken, 207 N.J. 191, 208-09 (2011) (citations omitted); State v. Brown, 190 N.J. 144, 157 (2007). Finding such circumstances can depend on whether a particular decision has proven to be unsound or unworkable in practice, as the State here argues. See AlliedSignal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768, 783, 112 S. Ct. 2251, 2261, 119 L. Ed. 2d 533, 549 (1992). However, in matters where a judiciary may rely on legislative correction, special justification for disturbing precedent is difficult to establish.
Statutory-based decisions are less likely to be subject to reconsideration because the legislative branch can correct a mistaken judicial interpretation of a legislative enactment. Indeed, as a principle of statutory construction, the legislative branch is presumed to be aware of judicial constructions of statutory provisions. See White v. Twp. of N. Bergen, 77 N.J. 538, 556 (1978) (“[T]here is ample precedent in New Jersey to support the proposition that, where a statute has been judicially construed, the failure of the Legislature to subsequently act thereon evidences legislative acquiescence in the construction given the statute.”); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 49:10 at 137 (7th ed. 2008) (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation.”). Thus, legislative acquiescence to an interpretation of a statute renders the judicial decision an unlikely candidate for abandoning stare decisis. That is precisely the circumstance here.
Worlock’s explanation of the general confluence of legal wrong with moral wrong in the legislative use of the single term, “wrong,” in N.J.S.A. 2C:4-1, and our holding out of the possibility that a special instruction may be necessary to explain a divergence of the two only in the clearest and narrowest category of class of cases, occurred more than two decades ago. Worlock’s interpretation of the M’Naghten test, adopted by the Legislature in N.J.S.A. 2C:4-1, has stood since, without reaction by the legislative branch in the interim. Nor has there been a legislative reaction since Winder reinforced a restrictive approach to the application of Worlock, not a more expansive one as the concurrence in Winder had urged. Due to the Legislature’s longstanding acceptance of Worlock, and the fact that we are addressing a settled interpretation of case law, we decline to accept the invitation to overturn Worlock at this point in time, even were we to concede some merit to the argument.
We turn therefore to consider whether there was plain error in the trial court’s jury instruction on the insanity defense in this matter.
V.
A.
Certain principles pertain in the review of jury instructions. Jury charges must provide a “comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.” State v. Green, 86 N.J. 281, 287–88 (1981). The charge as a whole must be accurate. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971). If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant’s case. State v. Macon, 57 N.J. 325, 333–34 (1971).
At trial, defendant did not challenge the jury instruction that used the model charge on insanity until after a guilty verdict had been returned. Thus, the question here presented is whether the trial court erred in not sua sponte including additional language separating defendant’s ability to appreciate legal wrong from moral wrong based on “deific commands” to kill. [8]
Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge. See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) (“[T]he failure to object to a jury instruction requires review under the plain error standard.”). Plain error is that which is “clearly capable of producing an unjust result.” R. 2:10-2. In respect of a late claim of error in a jury instruction, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’” State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
B.
In State v. Walker, 203 N.J. 73 (2010), we recently addressed the issue of “when a trial court should instruct the jury on the defense to statutory felony murder in the absence of a request to charge from counsel.” Id. at 86. We determined that a requested jury instruction should be given if “there is a rational basis in the record to give it . . . . On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it.” Id. at 87.
The delusional command variation of the insanity defense is a much more limited defense than that which we considered in Walker. See Winder, supra, 200 N.J. at 250-51; Worlock, supra, 117 N.J. at 611. We said clearly in Worlock that “[b]elief in an idiosyncratic code of morality does not constitute the defense of criminal insanity.” 117 N.J. at 614; see also Crenshaw, supra, 659 P.2d at 493-94 (concluding that personal moral beliefs will not exculpate defendant when he or she knew killing was contrary to societal moral and legal norms). “Worlock cracked open the door only to a command delusion that, objectively viewed, could have rendered it impossible for its hearer to know the difference between right and wrong.” Winder, supra, 200 N.J. at 249. A rigorous standard was expressed and applied in Winder consistent with the few decisions around the country to have grappled with such circumstances. [9]
Applying to this case that stringent standard for qualification into the narrow and clear class of case envisioned to satisfy a deific command to kill, we conclude that the evidence does not clearly indicate that it was impossible for defendant to appreciate that killing Cazan was contrary to society’s morals. The Worlock variation of the insanity-defense jury charge is not available to all those who intuit reprehensible obligations or develop idiosyncratic moral compulsions from interpreting religious material. Were that all that was required in order to constitute a deific “command,” then acting pursuant to any such personal belief system would qualify as lack of knowledge of having committed “moral” wrong and a defendant would no longer have to show that he believed that society would not objectively disapprove of the moral wrongness of the action. The decision in Winder was circumscribed carefully to ensure that such a result would not come to fruition. See Winder, supra, 200 N.J. at 248-51.
Here, defendant claimed to have formed a general belief that he ought to kill sinners who refused to follow his explanation of God’s expectations. In essence, defendant had an idiosyncratic personal belief system analogous, albeit in different form, to that in Worlock. See also State v. DiPaolo, 34 N.J. 279, 292-93 (1961) (distinguishing between insane delusion that negates consciousness of immorality of act from delusion that does not prevent defendant from simultaneously appreciating that deed was contrary to law); Crenshaw, supra, 659 P.2d at 494-95 (holding that defendant claiming Moscovite belief system that calls for killing as retribution for adultery is not entitled to deific-command adjustment to jury charge on criminal insanity).
Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God, which does not render his belief system in his “right to kill” certain sinners the equivalent of a command from God to kill.
Moreover, defendant had demonstrated on prior occasions the ability to exercise his own will and resist the obligation he perceived from God’s teachings. Defendant had chosen not to kill his family or their friends despite his religious delusions generally and his specific belief, expressed on occasion, that they were sinners. Defendant also determined that he would not kill anyone to whom he had not had a chance to explain his religious beliefs. For example, he decided that he would not attempt to hurt or kill Britt’s brother because defendant had not taught him to believe in God’s word as defendant interpreted it, and also because he was bigger and apparently stronger than defendant. Defendant’s inconsistent application of “God’s will” and the concomitant deific desire that he kill sinners, which he claims to have perceived, and his reluctance to kill those whom he had not tried to convert, indicates his awareness of an objective societal disapproval of the personal religious belief system he had developed.
Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing. As explained in Winder, an amplified criminal insanity charge differentiating between legal and moral wrong is available only to a defendant whose will is overborne by a perceived divine command that overcomes the ability to be conscious of society’s law and mores disapproving of that “command.” See Winder, supra, 200 N.J. at 247-48 (citing Crenshaw, supra, 659 P.2d at 494-95; DiPaolo, supra, 34 N.J. at 293). There is a necessary temporal proximity to the action for which a defendant is charged and the overbearing of his will by God’s order or command at the time of the action. In rejecting a Worlock instruction in Winder, we curbed expansion of Worlock in part because there was no showing that the defendant was operating under a direct command from God at the time of the killing. Here, defendant admitted that he never heard a voice or saw a vision that commanded him to kill Cazan when he committed the murderous act. [10] Moreover defendant admitted that he had not received any specific command to kill Cazan at the moment of the killing, and indeed had not received any communications from God for some time.
Nothing in Winder’s application of the law to its facts supports the extrapolation made by the appellate panel in this matter, which would permit anyone who interprets a religious text in an outrageous and violent manner to a deific-command, insanity-defense charge. Isolated references to voices, and to communication with God through scripture and in dreams, are not the equivalent of a command from God, at the time of the killing, sufficient to demonstrate that it deprived defendant of his ability to appreciate society’s disapproval of his action. The appellate panel mistakenly accepted defendant’s belated argument that the charge, given in its classic form, was insufficient for the jury to consider his insanity defense. Plain error is not present in the charge given here on this record.
Defendant’s complaints post-trial and on appeal that, in light of Worlock and Winder, the charge required clarification are not consistent with precedent as to the factual requirements needed to trigger a deific command variation to the insanity defense jury charge. [11] What the record shows is that, based on defendant's interpretation of the Bible, he believed Cazan was a sinner. And, he similarly interpreted “God’s word” to direct that he kill sinners. That is not the type of case to which we referred in Winder when we discussed a deific-command clarification to the insanity-defense charge. And, more pointedly, there is too tenuous a connection between any “alleged” deific-command and the murder that occurred in this matter on which to base a reversal on plain error. Defendant admitted that he would have left and not killed Cazan if she only had given him the car keys. He thereafter stated that he stabbed Cazan, not to kill her, but to put her out of her misery. Since the killing, defendant has questioned whether it was God’s will for him to kill Cazan. [12]
In sum, we conclude that the evidence does not clearly indicate defendant killed Cazan as a result of a deific command. Defendant was entitled to assert an insanity defense, and he did. He received an insanity jury charge. The trial court did not commit plain error by failing to give, sua sponte, a Worlock charge as part of the insanity-defense jury instruction. Defendant’s conviction should not have been reversed on appeal on that basis. We express no view on the other claims of error raised on appeal that were not addressed by the Appellate Division. Those issues can be addressed on remand.
VI.
The judgment of the Appellate Division is reversed and the matter is remanded to the Appellate Division for consideration of defendant’s remaining claims of error.
JUDGE WEFING (temporarily assigned) joins in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON, joined by CHIEF JUSTICE RABNER, filed a separate opinion concurring in the judgment. JUSTICE HOENS filed a separate, dissenting opinion in which JUSTICE ALBIN joins.
JUSTICE PATTERSON, concurring.
I concur with the majority opinion, which reverses the determination of the Appellate Division panel and holds that defendant Boyce Singleton, Jr. was not entitled to the deific command jury instruction addressed by this Court in State v. Worlock, 117 N.J. 596, 611 (1990). The majority opinion faithfully follows the reasoning in Worlock and State v. Winder, 200 N.J. 231 (2009). For the reasons articulated by Justice LaVecchia, I agree that defendant’s belated invocation of the deific command variation of the insanity defense was unsupported in the circumstances of his crime.
I write separately because in my opinion, the deific command concept is neither mandated by the Legislature in N.J.S.A. 2C:4-1 nor firmly rooted in our jurisprudence, and should not be part of our law. It invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage. The deific command concept does not meaningfully guide a jury’s exploration of the intricate issues raised by the insanity defense. Instead, it can reduce the dispassionate analysis of a defendant’s mental state, envisioned by the Legislature when it codified the insanity defense, to a superficial review of the defendant’s religious utterances. Application of the deific command results in inequitable treatment of defendants who have committed similar crimes based on nothing more than one person’s assertion of a religious delusion. In my view, a defendant’s claim that he or she heeded a deity’s purported instruction to commit a murder or other crime should not prompt a jury instruction that suggests a finding of legal insanity within the meaning of N.J.S.A. 2C:4-1.
Neither the plain language nor the legislative history of N.J.S.A. 2C:4-1 warrants special consideration for defendants who claim that deific commands prompted their crimes. The statute at issue bars the imposition of criminal responsibility for conduct if, at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.” N.J.S.A. 2C:4-1. The Legislature did not expressly or by implication define the word “wrong” as used in N.J.S.A. 2C:4-1. It provided no instruction that a defendant’s failure to comprehend that his or her act was “wrong” should mean anything other than he or she did not understand that it was an illegal act.
As the majority notes, the statute codified the test articulated by the House of Lords in M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843), long accepted as the formulation of the insanity defense in New Jersey case law. Statement to Senate Bill No. 738, at 3 (May 15, 1978). The M’Naghten rule, reflected in our statute, did not differentiate between defendants who invoke deific commands and defendants who do not. In this Court’s articulation of the M’Naghten rule -- relied on by the drafters of New Jersey’s Penal Code, 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96 (1971) -- the Court held that a defendant could invoke the insanity defense if “the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.” State v. Coleman, 46 N.J. 16, 39 (1965). That construction, adopted nearly verbatim by the Legislature in N.J.S.A. 2C:4-1, refers to “wrong” without reference to religious belief. It does not contemplate a deific delusion as part of the test for insanity.
To the extent that the deific command permutation of the insanity defense has gained a foothold in New Jersey law, it has done so through this Court’s dicta, not legislative action. The concept originated in the New York Court of Appeals, finding its source in dicta written by Judge Cardozo in People v. Schmidt, 110 N.E. 945 (N.Y. 1915). There, the defendant concocted -- and later recanted -- an elaborate account of visions and voices conveying directions from God that he should kill a woman “as a sacrifice and atonement.” Id. at 945. Although the defendant conceded “that he never saw the vision and never heard the command,” id. at 950, Judge Cardozo nonetheless introduced to New York law a distinction between legal and moral “wrong” illustrated by a hypothetical scenario:
A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong. [Id. at 949.]
Schmidt was first noted by this Court in State v. DiPaolo, 34 N.J. 279, 292-93, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). However, it was not until 1990, more than a decade after the enactment of N.J.S.A. 2C:4-1, that the Court suggested in Worlock that the statute could be construed to incorporate the deific command concept.
As the majority recounts, the principle that a deific delusion could illustrate a potential distinction between legal and moral wrong was addressed for the first time by this Court in Worlock, supra, 117 N.J. at 608-09. Like the discussion of the deific command in Schmidt, the Court’s first articulation of this theory was in dicta and did not apply to the facts of the case. The defendant in Worlock attributed his killing of two friends not to a purported deific command, but to his stated belief that he was exempt from the laws of society, which in his view were intended to govern only the “subservient.” Id. at 614. The Court discussed the distinction between “legal” and “moral” wrong, noting that in most cases the two concepts converge. Id. at 610-11. The Court made the following observation:
Occasionally, however, the distinction between moral and legal wrong may be critical. For example, if the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane. Schmidt, supra, 110 N.E. at 949; see also DiPaolo, supra, 34 N.J. at 291-93 (“The experts disagreed upon whether there was evidence of a psychosis to support the alleged delusion, but none suggested that if defendant in fact suffered an insane delusion that God commanded the deed, he nonetheless was legally sane if he simultaneously appreciated that the deed was contrary to law.”). [Id. at 611.]
Although the Worlock defendant had not suggested that the murders he committed were directed by any deity, the Court postulated that in an “exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.” Ibid. For defendant Worlock, the Court found no such exceptional circumstances. Id. at 613-14.
In Winder, the Court recognized its prior discussion of the deific command, but nonetheless rejected the defendant’s claim that he was entitled to a jury charge regarding the distinction between legal and moral wrong in his trial for the murder of a taxi driver. Winder, supra, 200 N.J. at 250. The Court concluded that the defendant in Winder, who attempted to justify his act by professing his belief that his parents were trying to kill him, was not entitled to the jury instruction that he sought. In doing so, the Court reiterated the narrow scope of any “delusion-based” exceptions to the rule that legal wrong and moral wrong are coextensive. Id. at 248. Thus, in the three cases in which it has considered the “deific command” issue –- Worlock, Winder, and the present case -- the Court has never concluded that a defendant is entitled to a deific command charge.
Given this history, I respectfully submit that the deific command concept has a tenuous connection to New Jersey law. Special consideration for defendants relying on a deific command theory is not, in my view, compelled by the Legislature’s use of the term “wrong” in N.J.S.A. 2C:4-1, which codifies M’Naghten but makes no reference to the notion of a defendant’s inability to perceive “moral wrong.” The concept was not introduced to our law by the circumstances of an actual case involving a deific delusion. Instead, in both New York and New Jersey, it originated as nothing more than a hypothetical illustration of a setting in which a defendant could perceive an act as legally but not morally wrong. Schmidt, supra, 110 N.E. at 949; Worlock, supra, 117 N.J. at 608-09. Its limits were further underscored by the Court in Winder, supra, 200 N.J. at 248.
The jury instruction formulated by the Appellate Division panel below -- to be given in a retrial of defendant -- would direct the jury to find defendant not guilty by reason of insanity if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command, or “‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’” State v. Singleton, 418 N.J. Super. 177, 204 (App. Div. 2011) (quoting Winder, supra, 200 N.J. at 251). The Appellate Division’s proposed jury instruction demonstrates the hazards of the deific command concept. The instruction could be construed to suggest that a defendant’s invocation of a deific command presumptively resolves what should be a fact-sensitive, dispassionate inquiry into the psychiatric condition of a criminal defendant. It poses the real danger of confusing and distracting a jury, and could reward the defendant who fabricates an account of visions, voices and divine commands. In my opinion, the insanity defense should be reserved for a defendant whose psychiatric condition renders him or her unable to appreciate the illegality of the crime at issue, and the deific command theory should be jettisoned.
I fully subscribe to the majority’s observations about the principle of stare decisis; it is an important foundation of our legal system, “‘to which we adhere for the sake of certainty and stability.’” Ante at ___ (slip op. at 31) (quoting State v. Shannon, 210 N.J. 225, 226 (2012)). However, I consider this case to present the unusual setting in which the principle of stare decisis does not compel the Court to precisely conform its holding to prior decisions.
Given the factual setting of Worlock, its discussion of the deific command is dicta. In Winder, the Court also declined to apply the deific command theory to the defendant in that case. Winder, supra, 200 N.J. at 250-51. As a result, the discussions are authoritative even though they were not essential to the disposition of either case. See State v. Rose, 206 N.J. 141, 182-84 (2011).
But even if we were to treat the dicta in Worlock and Winder as though they had the full weight of precedent, there are still “special justifications” that would warrant overturning the deific command construct. Luchejko v. City of Hoboken, 207 N.J. 191, 209 (2011). Such justifications include “when a rule creates unworkable distinctions [or] when a standard defies consistent application by lower courts,” ibid., or when “‘conditions change and as past errors become apparent,’” White v. Twp. of N. Bergen, 77 N.J. 538, 551 (1978) (quoting Fox v. Snow, 6 N.J. 12, 27 (1950) (Vanderbilt, C.J., dissenting)). In my opinion, that standard is easily met here. The deific command concept is not required by the text of the statute or its legislative history. Our Court has not once held that the facts before it have entitled a defendant to an expanded jury instruction based on this theory. Such an instruction has the tendency to mislead and confuse jurors, and raises the specter of rewarding the fabrication of deific delusions. Its arguable utility is therefore offset by its potential to lead to inequitable results.
The majority characterizes this case as one in which the judiciary may rely on legislative correction, and finds the deific command concept to be fortified by the Legislature’s failure over the years to nullify it by statute. Ante at ___ (slip op. at 32) (citing White, supra, 77 N.J. at 556). In this regard, I must part company with the majority. As we have held, “[t]he Legislature need not explicitly amend a statute . . . every time [a court] takes action inconsistent with it in order to avoid the implication that the Legislature concurs.” State v. Cannon, 128 N.J. 546, 566-67 (1992). The Court has noted in other contexts that “[l]egislative inaction has been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’ in construing a statute.” GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 313 (1993) (citations omitted); see also Amerada Hess Corp. v. Dir., Div. of Taxation, 107 N.J. 307, 322 (1987), aff’d, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed. 2d 58 (1989).
Here, the Legislature enacted N.J.S.A. 2C:4-1 before this Court construed the simple word “wrong” to permit an insanity defense based on deific command delusions, whether in dicta or in any holding. I cannot presume that the Legislature’s failure to address this specific issue, given its many priorities, amounts to an endorsement of the deific command. In my view, the inclusion of a deific command notion as part of N.J.S.A. 2C:4-1 is the creation of our case law. The principles of stare decisis do not require that we apply it now or in the future.
Except as noted above, I join in the majority’s decision to reverse the determination of the Appellate Division panel and remand to the Appellate Division for consideration of defendant’s remaining arguments.
CHIEF JUSTICE RABNER joins in this opinion. SUPREME COURT OF NEW JERSEY
JUSTICE HOENS, dissenting.
A man, having given himself over to the study of religious texts and tracts, believes that he is called by God to carry out various acts that no sane man would perform. His family grows fearful of his numerous expressions of what he believes he has been called to do in order to cleanse the world of them or to cleanse them of their sins. Some of his pronouncements include expressions that he is resisting God’s orders; others make it plain that he is intent on complying with God’s will as he understands it, even to the point of putting others to death.
His family first tries to use the powers of reason in an effort to convince him that his views do not comport with traditional religious teachings and in order to convince him of the errors in his increasingly bizarre and frightening pronouncements. Failing that, they essentially force him from their home. He moves in with a woman who then becomes pregnant with his child. Believing that she is nothing more than a harlot in the eyes of God and that she is in need of cleansing, he kills her. In the aftermath of that horrific act, his behavior includes some actions that appear to be consistent with efforts to elude detection and some lucid statements, but his family members report that he is babbling, obviously talking to and hearing the voice of someone they can neither see nor hear.
By the time of his trial, the explanations he has given about his behavior to the mental health professionals include both assertions that he was acting in accordance with what he believed to be the will of God and expressions of remorse that he now recognizes that he was duped by the devil into doing things contrary to the will of God. Nonetheless, his own testimony at trial explained that sometimes he heard directives and sometimes the “Spirit ministered to me and that I received like — a talk from Him” and that killing his girlfriend “was the right thing because it was something God was telling me to do.” Expert testimony included the opinion that defendant killed his girlfriend because he “believed that he was being compelled to do this by God and that therefore he had to obey that belief.”
No one disputes that defendant Boyce Singleton is mentally ill. The question before the Court today is whether the factual setting in which he acted and the expert testimony concerning his mental status is sufficient to meet the test that we have devised for the deific command variation on the traditional insanity defense. See State v. Winder, 200 N.J. 231, 246-48 (2009) (considering difference between deific command and personal moral code); State v. Worlock, 117 N.J. 596, 611 (1990) (recognizing deific command variation on insanity defense). More to the point, the question before this Court is whether, in light of that record, the trial court’s failure to charge the jury in accordance with Worlock was an error that entitles defendant to a new trial. The Appellate Division concluded that it was, as do I. Therefore, I respectfully dissent.
I.
We have long recognized that “clear and correct jury instructions are fundamental to a fair trial.” State v. Adams, 194 N.J. 186, 207 (2008). In the context of a criminal trial in particular, we have cautioned that erroneous jury charges presumptively constitute reversible error, State v. Jordan, 147 N.J. 409, 422 (1997), and are “poor candidates for rehabilitation under the harmless error philosophy,” State v. Vick, 117 N.J. 288, 289 (1989) (citation omitted). Those expressions of our deeply held concern for ensuring that all defendants are accorded a fair trial are no more compelling than they are in the case of one facing a charge of murder.
To be sure, we have fixed different standards against which to test such errors based upon whether a defendant requested a charge or failed to do so. In the latter circumstance, we have established a stringent standard, one that requires the defendant to demonstrate that the failure to include the charge was plain error and therefore clearly capable of producing an unjust result. R. 2:10-2; see State v. Burns, 192 N.J. 312, 341 (2007). Although the plain error standard is an exacting one, the record in this case, fairly and objectively viewed, surely meets it.
Indeed, it is only by redefining the meaning of Worlock’s deific command variation on the insanity defense, by imposing a new and exceedingly narrow view of the type of command that will qualify for that defense, by altering our previously-accepted notion of the difference between a true deific command and acts based on a personal moral code, and by ignoring the abundant evidence adduced at trial through fact and expert testimony in support of the conclusion that defendant fit within the traditional bounds of the deific command defense, that the majority can conclude that the failure to give the charge sua sponte did not amount to reversible error. In adopting this approach, the majority has created a test so narrow as to be essentially non-existent. It is, therefore, a new test that stands in clear disregard of the statutory definition of insanity, that is contrary to our previous decisions explaining the sources from which that statute was drawn and that is at odds with both religious practices and psychiatry.
Whether a jury would find that defendant met the definition of insanity had they been correctly charged we cannot know; that defendant has been deprived of the chance to be judged fairly in accordance with the statutory commands that define insanity in terms of both legal and moral wrong is the essence of injustice.
II.
The essential reasons for my disagreement with the majority’s reasoning and conclusion can be explained succinctly. First, the majority fails to recognize that the issue presented in Worlock, as to which the deific command discussion was but a small component, was nothing less than this Court’s clear articulation of the fundamental basis upon which we, and our Legislature, have embraced a definition of insanity that includes both legal and moral wrong. Worlock, supra, 117 N.J. at 606 (describing issue as one of first impression). It was there that this Court traced the concept back to its roots in M’Naghten, see id. at 603-07, there that the Court described the evolution of the concept here and around the country, id. at 608-09, and there that this Court adopted Judge Cardozo’s reasoning that serves as the essential underpinning of our now well-established recognition of the deific command defense, ibid. (quoting People v. Schmidt, 110 N.E. 945, 949 (1915)). To dismiss that scholarly explanation on such an important subject as a “narrow caveat,” ante at ___ (slip op. at 2), suggests that the majority deems both this Court’s decision in Worlock and the entire notion of the deific command defense to be unworthy of our attention.
Second, the majority overemphasizes the confined focus that this Court had in the more recent Winder decision, implying that Winder forged new ground. In fact, this Court in Winder merely recognized that a defendant who acts based on a personal moral code cannot claim the benefit of the deific command defense that we authorized in Worlock. The defendant in Winder made little effort to suggest that he acted pursuant to a deific command. Rather, his defense was that there were “other delusion-based exceptions” that Worlock suggested might be available and for which he qualified. Winder, supra, 200 N.J. at 249. Although the Court referred to the deific command defense as a narrow one, the Court did so in the context of a refusal to expand it to one who failed to demonstrate that the delusion he identified could or did fall into the category of legal but not moral wrong. Id. at 249-50. Nothing in that decision suggests, as the majority today prefers, that the true deific command has lost any of its vitality as a variant of the insanity defense.
Third, the majority’s analysis of the record today alters the distinction we recognized and applied both in Winder and in Worlock between defendants who respond to true deific commands and those whose criminal acts are instead motivated by adherence to a personal moral code. The defendant in Worlock believed that he was permitted to kill his victims because “they’re the folly-ridden mass, they’re controlled by their popular beliefs” and because he lived by the code of “might makes right,” not because he was responding to any deific directive. Worlock, supra, 117 N.J. at 614. The defendant in Winder contended that he feared his parents were planning to kill him and murdered an innocent cab driver in order to be sent to prison where he would be safe from them. Winder, supra, 200 N.J. at 236-39. That logic, too, had all of the hallmarks of a purely personal code of conduct and none of the criteria by which a deific command can be identified. It was in that context that we cited precedents of our own, see id. at 247-48 (citing State v. DiPaolo, 34 N.J. 279, 293 (1961)), as well as the leading authority from another jurisdiction, id. at 247 n.6 (discussing State v. Crenshaw, 659 P.2d 488, 494-95 (Wash. 1983)), that demonstrate that a belief system that is contrary to societal mores is not sufficient.
This accepted distinction between deific commands and personal moral codes is best illustrated by the decision of the Supreme Court of Washington. See Crenshaw, supra, 659 P.2d at 494-95. There, the defendant acted in conformance with his Muscovite beliefs which, he contended, obligated him to kill his wife for her infidelity. Rejecting his assertion that he was entitled to claim the “sanctuary of the insanity defense,” the court held that “some notion or morality, unrelated to a mental illness, which disagrees with the law and mores of our society is not an insane delusion.” Id. at 495. Such a set of beliefs would no more be insane and would no more be a defense than the man who, coming from a culture where women are property and beating them is the accepted norm, claimed entitlement to walk free from the crime of assault if he beat his wife here. See S.D. v. M.J.R., 415 N.J. Super. 417, 431-33 (App. Div. 2010) (rejecting contention that asserted religious beliefs about husband’s marital rights negated ability to form criminal intent); see also Reynolds v. United States, 98 U.S. 145, 166, 25 L. Ed. 244, 250 (1879) (concluding that First Amendment’s guarantee of freedom of religion did not shield defendant from polygamy conviction).
The reliance on a moral code that is on its face rational but unacceptable to our legal system is not a form of insanity. But that is not what deific commands are all about. The reason that the deific command qualifies as a defense to murder is that it is the one corner of insanity in which legal and moral wrong do not coincide. See Worlock, supra, 117 N.J. at 610-11. One who acts in accordance with a sincerely held belief that he has been directed by God to carry out a murder may well appreciate that the crime is legally wrong, but will nonetheless act on the directive because he equally believes that it is a moral imperative. And it is only by recognizing the deific command that we, as a Court, can give full meaning and content to the Legislature’s statutory definition of insanity. N.J.S.A. 2C:4- 1. That body chose the word “wrong” rather than the word “illegal” in defining the insanity defense; it made that choice against the backdrop of the decades, in fact more than a century, of precedent extending back to the M’Naghten formulation of the distinction between legal and moral wrong. This Court is not free to abandon that distinction through today’s crabbed interpretation.
Fourth, the majority redefines Worlock and Winder to suit the current purpose. It does so by altering the meaning of deific command so that it means one thing and one thing only, namely a direct, apparently verbally transmitted, command from God to do a specific act that the defendant then cannot help himself from carrying out. That view of deific command, however, finds no real support in any of this Court’s prior cases, nor in the precedents on which they were based. The majority’s decision expresses a new and rigid view of just what sort of a command from God it now believes is needed to so blur the line between legal and moral wrong as to call for the Worlock charge. Apparently only a booming voice from heaven, presumably admitting of only a singular direction, will meet the test for deific command. That constricted version of the test serves only to substitute as part of the fabric of our law an exceedingly narrow view of religious traditions found only in the cinema.
More troubling to me, that articulation of the sort of command that the majority now finds will define the Worlock variant on the insanity defense is sadly lacking in an understanding of either religion or psychiatry. While I do not profess to be expert in either, there is abundant support for the proposition that deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed. See, e.g., People v. Coddington, 2 P.3d 1081, 1111 (Cal. 2000) (permitting insanity defense for defendant who believed, among other things, that God communicated to him through traffic signals and numbers), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 449 (N.H. 1999) (permitting insanity defense based on defendant’s contention that God appeared while he was in “trance”); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001) (permitting insanity defense for Mormon fundamentalist who killed his sister-in-law and her infant child based on God’s “removal revelation”).
The majority’s suggestion that henceforth only a very specific variation of a command from God will suffice also ignores the fact that entirely sane people of faith profess to receive directions from God in ways far different from the cinematic version of how God speaks. They see visions, they find directions in dreams, they feel called, they express their knowledge of the will of God in myriad different ways. By extension, why would an insane person who believes he is directed by God to do something we would all say is illegal not similarly profess to have received that command in one of these other, entirely traditional manners?
Indeed, if we accept, as the majority apparently does, that for an insane person, there is but one version of a deific command and that it takes the sole form of an audible voice directing an immediate action, we are resurrecting, without perhaps intending to do so, the irresistible impulse approach to insanity that we long ago discarded. See State v. Cordasco, 2 N.J. 189, 196 (1949) (adhering to M’Naghten rule and rejecting irresistible impulse formulation of insanity); Mackin v. State, 59 N.J.L. 495, 496-97 (E. & A. 1896) (same). This is so not because of the requirement that it be a voice, but because the majority has coupled that requirement with notions about commands, orders, and “do this now” language as to which the recipient cannot but comply. I see no basis for such a remarkable alteration in the law that governs the insanity defense.
Nor does the majority’s opinion remain faithful to the psychiatrists’ view of what might qualify as a delusional deific command. The experts in this case did not quarrel over whether the form in which defendant said he had received his instructions from God would suffice, they in fact agreed that defendant suffered from delusions that caused him to believe he had been called in some way by God. What they disputed was whether it was a call to commit this murder or whether the murder was instead triggered by defendant’s history of aggressions against women, his strained and troubled relationship with the victim, or the victim’s refusal to turn over the car keys when he asked for them. For the majority to substitute its newfound belief that God only speaks in one way, or more precisely, that we will only recognize that an insane person hears the instruction from God or the call of God in a single format, is a dramatic and unsupported departure indeed.
Fifth, the majority, rather than reviewing the evidence in the record in accordance with our usual principles concerning the review on appeal of whether there is enough evidence in the record to require that the jury be charged sua sponte, proceeds instead to draw its own conclusions about the result it would have reached about whether defendant was insane. We have held that the trial court is obliged to charge a jury sua sponte “only when the evidence clearly indicates the appropriateness of such a charge[.]” State v. Walker, 203 N.J. 73, 87 (2010) (considering court’s obligation to charge statutory defense to felony murder without request); see State v. Rivera, 205 N.J. 472, 488-90 (2011) (applying same standard to evaluate court’s obligation to charge any defense sua sponte); State v. Denofa, 187 N.J. 24, 41 (2006) (applying same standard in considering requirement to charge lesser-included offenses).
Utilizing our well-established test, the question is whether the evidence in the record “clearly indicates the appropriateness” of the Worlock charge. Tested in accordance with that standard, rather than tested in accordance with the majority’s approach of viewing the evidence through the lens of its new definition of the contours of the deific command variation of insanity, one can only conclude that the substantial evidence concerning defendant’s behavior, beliefs and rationale sufficed. That there is evidence suggesting that defendant was not insane, or did not act in accordance with a deific command is not the point; rather, the existence of such evidence and the manner in which it should have been weighed and balanced is the proper function of a jury and not of this Court. The fundamental error of the majority’s analysis is that it tries to make rational sense out of what in the end is clear evidence of a disordered and delusional mind. Mistaking a few glimmers of lucidity or perhaps some sane behaviors for an organized thought process, the majority finds so little evidence of the deific command that it deprives defendant of the defense entirely. In doing so, it inappropriately substitutes its view for that of the finder of fact.
III.
In the end, I dissent because the majority has adopted a crabbed view of Worlock, has announced a view of Winder not expressed by the majority of the Court who joined it, and has retreated to an indefensible understanding of concepts of insanity and deific commands. I therefore respectfully dissent.
JUSTICE ALBIN joins in this opinion.
[1] The evidence concerning defendant’s mental illness was presented to support defendant’s insanity defense and also to show that mental illness could have affected his capacity to knowingly or purposely commit the offense. Defendant’s claim of error based on the trial court’s failure to give a diminished capacity instruction was not addressed in the Appellate Division’s resolution of this matter.
[2] In explaining an instance of such a communication that occurred prior to the events surrounding Cazan’s death, he identified a message related to his younger sister who suffered from serious seizures and was on medication. Defendant awoke one morning to inform her that he had received a message from God that she should cease taking the medication. He described the communication as follows: “His Spirit ministered to me and that I received like — a talk from Him, yes. Not, per se, did I hear His — His voice, specifically.” He explained, “I was happy that God was talking to me. I mean, I was happy about that. You know, I felt like He used me, so if He used me, there was something about me that He obviously was pleased with.”
[3] In fact, as a result of the incident involving Shakia’s friend, defendant’s family started to pursue eviction proceedings against him.
[4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 13
[5] As explained by Dr. Santina, a hallucination occurs when the mentally ill person hears a voice or sees visions. A person experiencing delusions does not necessarily experience hallucinations, but rather he or she will come to know God is speaking to them “within themselves” and then act accordingly; thus, a delusional person may believe he or she is receiving commands from God without hearing a voice or seeing a vision.
[6] The panel granted relief on this basis alone. Although defendant had other points of error, which the State contested, the panel did not address them in light of its holding on the jury-charge issue.
[7] M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).
[8] Like the situation in the cases cited by the dissent, see post at ___ (slip op. at 10), defendant was not denied the opportunity to assert an insanity defense, and the jury received the model jury charge on the defense, see People v. Coddington, 2 P.3d 1081, 1139-40 (Cal. 2000), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 450 (N.H. 1999); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001). Our dissenting colleagues’ observation that “deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed” misses that essential point when seemingly asserting that those cases undermine what occurred in this matter. Post at ___ (slip op. at 10). Defendant’s insanity defense was not “rejected” by the trial court.
[9] In one of the few jurisdictions to have addressed such circumstances, Washington state courts similarly have hewed to a path in respect of deific commands, requiring a substantial showing that a defendant’s will has been “subsumed.” Crenshaw, supra, 659 P.2d at 494-95 (requiring that will be subsumed in order for specialized instruction to be utilized). See, e.g., State v. Rice, 757 P.2d 889, 904 (Wash. 1988) (adhering to strident test that authorizes jury instruction on legal-moral dichotomy only when defendant presents evidence that “his free will has been subsumed by his belief in the deific decree”), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105 L. Ed. 2d 707 (1989).
[10] It is insufficient that defendant can point to isolated references he made to hearing a voice, or “hearing” God speaking to him through his scripture study or in his dreams. The Appellate Division’s citation to such examples, here and there, in the record do not comprise the quality or quantity of evidence that was contemplated by our earlier decisions. See Singleton, supra, 418 N.J. Super. at 197-99.
[11] Winder signaled a restrictive application of a deific-command variation to the model charge on criminal insanity, to the extent it would ever be allowed. The Appellate Division’s interpretation of Winder, as well as the dissent’s, instead expands it and would send even more arguable cases than this one to the jury.
[12] The defense expert testified to the following: “And [defendant] said to me that now in retrospect looking at it, he felt that God, that Satan had actually tricked him into thinking that it was God. And that God was actually trying to stop him but that he was tricked by Satan.”
7.2.6.4.2.2.6 Galloway v. State 7.2.6.4.2.2.6 Galloway v. State
Gregory L. GALLOWAY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
Supreme Court of Indiana.
[703] Stacy R. Uliana, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Stephen Creason, Angela N. Sanchez, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 33A01-0906-CR-280
SULLIVAN, Justice.
Despite nonconflicting expert and lay opinion testimony that defendant Gregory Galloway was insane, the trial court rejected the insanity defense after concluding that the defendant could continue to be a danger to society because of an inadequate State mental health system. This was insufficient to sustain the trial court's finding because there was no probative evidence from which an inference of sanity could be drawn.
Background
The defendant, Gregory Galloway, was found guilty but mentally ill for the October, 2007, murder[1] of his grandmother, Eva B. Groves. The defendant raised the "insanity defense"[2] at his bench trial. The trial court found that although the defendant had a long history of mental illness, he did not meet his burden of proving that he was "insane" at the time of the crime.
The trial court concluded, based on the expert testimony and the numerous medical records introduced into evidence, that the defendant suffers from bipolar disorder, an Axis I psychiatric disorder.[3] This evidence showed that prior to his killing [704] his grandmother, the defendant had had a long history of mental illness, and he had had many "contacts" with the mental health system.[4] He had been diagnosed with bipolar disorder by up to twenty different physicians, often with accompanying psychotic and manic symptoms. He had also been voluntarily and involuntarily detained or committed for short-term treatment more than fifteen times.
The defendant was first diagnosed with an Axis I mental illness in 1989, when he was a senior in high school. By 2000, his mental health became more problematic; he had difficulty holding a steady job, he struggled with substance abuse,[5] and his marriage failed. Despite these difficulties, he had very few encounters with law enforcement that were not traffic or mental illness related. After his divorce, the defendant moved in with his grandmother, who lived next door to his parents. He had a great relationship with his grandmother; "he loved [her] very much and considered [her to be] his best friend." Appellant's Br. 3; see also Appellant's App. 183; Tr. 40-41, 83-84, 175.
Since 2001, the defendant experienced psychotic episodes with increased frequency and severity. See Galloway v. State, 920 N.E.2d 711, 713-14 (Ind.Ct.App.2010) (chronicling the defendant's psychotic episodes). For instance, in February, 2002, he was involuntarily committed after his parents found him with a gun and looking for ammunition — he planned to kill his grandmother because she was the devil and he was Jesus Christ, and he planned to kill his neighbor because he believed his neighbor was controlling his son. Then in June, 2004, the defendant drove to Dayton, Ohio, after God told him to leave his job; he was hospitalized in Ohio after being found in a stranger's driveway looking for the perfect wife for the son of God. In July, 2005, the defendant was admitted to a hospital after crashing his car during a car chase with his mother; he believed she was the devil and was chasing her so that he could kill her, and he believed he was protected because he was an alien.
In the year leading up to the murder, the defendant had at least twelve contacts with the mental health system. In January, 2007, he pulled over on the side of the interstate near Lafayette, Indiana, got out of his car, and began erratically yelling and talking to himself. Because the air temperature was 27 degrees, concerned bystanders called the police. When the medics arrived, he was sitting in the back of a police car; his skin was cold to the touch, and there were ice particles in the facial hair under his nose. At the emergency room, the defendant was uncooperative, mumbling to himself, acting aggressively toward staff, and reacting to audio and visual hallucinations; he was admitted to a Lafayette hospital for a few days.
In March, 2007, after refusing to eat or sleep for one week because he was fearful of something bad happening to him, the defendant lacerated his stomach while trying [705] to get into his grandmother's house through a window after he was accidentally locked out. At the emergency room, he was attending to internal stimuli, having difficulty concentrating, and experiencing auditory hallucinations and paranoid delusions. He was transferred to an Anderson hospital, where he was confused and disoriented, detached from reality, and in a catatonic-like state; he was discharged after a few days. Several days later, the defendant was involuntarily committed after the court found him to be a danger to himself because he did not know who or where he was, he had been staying awake all night, he had been trying to sleep with his parents in their bed because he believed someone was in his room, and he was hearing voices; again, he was released after a few days.
In June, 2007, the defendant was admitted to a hospital in Tennessee after police found him driving a semi-truck full of gasoline, threatening to blow up a gas station; he was confused and disoriented, responding to internal stimuli and laughing inappropriately, experiencing racing thoughts and auditory hallucinations, and had not slept for three days. He was discharged from the Tennessee hospital within days. A few days later, he went to counseling where he was delusional about raping a girl (there was no evidence that any rape had occurred). He did not take medications prescribed for him in Tennessee.
In the days leading up to the murder, the defendant heard voices and thought that his grandmother's trailer was haunted. To abate his fears, he slept on the floor next to his parents' bed while holding his mother's hand. The night before the murder, he drank a pint of whiskey, finishing around 3:00 or 4:00 a.m., and did not sleep.
The defendant reported feeling strange on October, 26, 2007, the morning of the murder. He was supposed to pick up his friend from work, but he refused to do so because he was feeling strange. When the friend called to ask about the ride, the defendant uncharacteristically yelled at him. The defendant also spoke with his father that morning, and during their conversation, his father became concerned because his son was not acting normal and seemed to be in another world. The defendant told the police that during this conversation, his father was telling him through coded verbal messages that he needed to kill his grandmother.
During the early afternoon, the defendant went shopping with his grandmother and his aunt (the victim's daughter). They shopped for only fifteen minutes and then went to lunch, though the defendant did not eat much. While eating lunch, the defendant began thinking that his grandmother was against him and "that life should be more colorful" and that it would be if she were gone-life would be better again once he killed his grandmother. Appellant's App. 194. He believed that she was the devil, that she was out to get him, and that he needed to kill her to restore his powers. As they sat there eating, he was hoping that his grandmother would die. After lunch, they stopped at a gas station, where the defendant pumped their gas and purchased cigarettes. They returned home a little more than an hour after they had originally left; there had been no arguments, and nothing unusual had occurred during their outing. On the way home, the defendant's grandmother remarked that it had been a wonderful day.
Once they arrived home, the defendant went next door to his parents' house while his grandmother and aunt sat on a couch inside the grandmother's trailer and talked. While at his parents' house, the defendant began believing that he was [706] reading his father's mind; his father was communicating telepathically, telling the defendant that he needed to kill his grandmother "to feel good again[,] to see like the bright lights and the flowers and the pretty things." Appellant's App. 194.
The defendant then went back to his grandmother's house and sat on the porch swing. Shortly thereafter, the defendant's fifteen-year-old son, Cory, arrived and said "hi" to his dad. Cory had seen his father cycle from normal to psychotic before and could tell that something was not quite right. At the same time, the defendant's father, who had come over from next door, was entering the grandmother's house.
The defendant entered the house at the same time as his father and went to his bedroom, grabbed his knife, and came back down the hallway to the living room, where his aunt and grandmother were sitting on a couch. According to his aunt, the defendant had a "wild look" in his eye that she had seen before — it was the look he gets right before he "lose[s] it." Tr. 60. With his father, son, and aunt in the room, and with no plan or motive, the defendant jumped on top of his grandmother, straddled her, and stabbed her in the chest while yelling "you're going to die, I told you, you're the devil." Tr. 50, 74-75. His father yelled, "What have you done!," and the defendant responded that she "was going to kill me." Tr. 86.
As soon as everyone started screaming, the defendant realized that he did not feel better like he thought he would, and he hoped that his grandmother would survive. His father was able to commandeer the knife and store it in a safe place until the police arrived. As the defendant's son applied pressure to the wound, the defendant told his grandmother that he loved her and that he did not mean to do it. He pleaded for the paramedics to save his grandmother's life. When the police arrived, he told them that he loved his grandmother and would not hurt her. When the police were getting ready to take him to the police station, he did not understand what was happening and asked where he was going. But he was cooperative during the police interrogation, which occurred two-and-a-half hours later.
Prior to trial, the defendant was examined by three experts: Dr. Parker, a psychiatrist engaged by the defense; Dr. Coons, a court-appointed psychiatrist; and Dr. Davidson, a court-appointed psychologist. All three experts agreed that he suffers from a mental illness, suffers paranoid delusions (a symptom of severe psychosis), and has suffered from intermittent psychosis since 1999. Dr. Parker and Dr. Coons both testified (and submitted in their preliminary reports) that the defendant was legally insane at the time of the murder. They both opined that he was jolted out of his delusion when he realized that he did not feel better and had just harmed someone he loved. The psychologist, Dr. Davidson, submitted a preliminary opinion to the court that the defendant was sane at the time of the murder. The basis for his opinion was that it was unlikely the defendant would have been insane only for the few moments that it took for him to grab the knife and stab his grandmother. But while testifying, Dr. Davidson withdrew his opinion in light of additional facts that he did not have when he submitted his preliminary opinion. Among other things, Dr. Davidson was unaware that the defendant had been experiencing delusions and responding to internal stimuli in the days leading up to the murder and on the day of the murder. Dr. Davidson also was unaware that eyewitnesses heard the defendant call his grandmother the devil as he stabbed her. After being presented with all of the facts while on the witness stand, Dr. Davidson [707] ultimately testified that he could not give an opinion on the matter.
After the close of trial, but before a verdict was rendered, the defendant stopped taking his medication and deteriorated to the point where he was found incompetent to stand trial. He regained competence after treatment at a state mental hospital.
On May 4, 2009, the trial court found the defendant guilty but mentally ill for murdering his grandmother, rejecting the insanity defense. Finding that none of the experts or lay witnesses testified that the defendant was sane, the trial court based its conclusion on demeanor evidence. Specifically, the court found that the defendant and his grandmother had interacted with each other and other people on the day of the murder, he had committed the offense in front of several family members and made no effort to conceal his crime, he had not attempted to evade police, and he had cooperated with law enforcement. Additionally, the defendant had been alert and oriented throughout the trial proceedings and had been able to assist counsel. The court also found that the defendant's "psychotic episodes increased in duration and frequency" and that he "lacks insight into the need for his prescribed medication." Appellant's App. 255. The court then found that the defendant had "repeatedly discontinued medication because of side effect complaints and would self medicate" by abusing alcohol and illicit drugs. Id. Furthermore, there was "no evidence that this pattern of conduct [would] not continue if the Defendant [were] hospitalized and released, posing a danger to himself and others in the community." Id. The court concluded that the defendant "is in need of long term stabilizing treatment in a secure facility." Id.
During the sentencing hearing, on June 2, 2009, the trial court indicated that the preferred route would be to commit the defendant to a mental health facility for the rest of his life but concluded that route was not an option.
There is absolutely no evidence that this mental illness is [feigned], or malingered, or not accurate and there is no dispute as to that. But quite frankly, this is a tragedy that's ripped apart a family and there is very little this Court can do to remedy that. This case is as much a trial of our mental health system as it is of a man. For 20 years, Mr. Galloway's family has sought long-standing permanent treatment for Mr. Galloway, and the fact that there may not be the funds available to pay for the mentally ill in the State of Indiana does not mean that we don't have mentally ill people in the State of Indiana. . . . [T]his is difficult for everyone[,] and I can pick apart about 20 mental health records that were submitted to this Court where I would have begged a mental health provider to keep Mr. Galloway long term in a civil commitment, but they have not. Mr. Galloway is able to take his medication when forced to do so in a very structured setting, but we have a 20-year history which shows when he is not in that setting that he will not take his medication, that he will continue to have episodes[,] and most concerning for this Court is that he will endanger others and himself. One of my options is not to say that he's committed for the rest of his life in a mental health institution. That would have been easy, but that's not one of my choices. . . . I cannot in good conscience allow someone with the severe mental health illness to return to the community[,] and that is what has made this case so very difficult.
[708] Tr. 389-91. After considering the aggravating and mitigating factors under Weeks v. State, 697 N.E.2d 28, 30 (Ind.1998), the court sentenced the defendant to 50 years imprisonment.
The Court of Appeals affirmed the defendant's conviction, holding that this Court's decision in Thompson v. State, 804 N.E.2d 1146 (Ind.2004), compelled such a result. Galloway, 920 N.E.2d at 720. The Court of Appeals interpreted Thompson as holding that where a defendant appeals claiming that his insanity defense should have prevailed, the conviction must be affirmed "if there is any evidence whatsoever supporting the verdict, no matter how slight." Id.
The defendant sought, and we granted, transfer, Galloway v. State, 929 N.E.2d 790 (Ind.2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).
Discussion
I
To sustain a conviction, the State must prove each element of the charged offense beyond a reasonable doubt. See I.C. § 35-41-4-1(a); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Even where the State meets this burden, a defendant in Indiana can avoid criminal responsibility by successfully raising and establishing the "insanity defense."[6] See I.C. § 35-41-3-6(a). A successful insanity defense results in the defendant being found not responsible by reason of insanity ("NRI"). See I.C. §§ 35-36-2-3, -4.
The defendant bears the burden of establishing the insanity defense by a preponderance of the evidence.[7] I.C. § 35-41-4-1(b). To meet this burden, the defendant must establish both (1) that he or she suffers from a mental illness and (2) that the mental illness rendered him or her unable to appreciate the wrongfulness of his or her conduct at the time of the offense.[8] See I.C. § 35-41-3-6(a). Thus, mental illness alone is not sufficient to relieve criminal responsibility. See Weeks v. State, 697 N.E.2d 28, 29 (Ind.1998). Rather, a defendant who is mentally ill but fails to establish that he or she was unable to appreciate the wrongfulness of his or her conduct may be found guilty but mentally ill ("GBMI").[9] See, e.g., Taylor v. State, 440 N.E.2d 1109, 1112 (Ind.1982).
[709] Whether a defendant appreciated the wrongfulness of his or her conduct at the time of the offense is a question for the trier of fact. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004). Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist the trier of fact in determining the defendant's insanity.[10] Such expert testimony, however, is merely advisory, and even unanimous expert testimony is not conclusive on the issue of sanity. Cate v. State, 644 N.E.2d 546, 547 (Ind.1994). The trier of fact is free to disregard the unanimous testimony of experts and rely on conflicting testimony by lay witnesses. Barany v. State, 658 N.E.2d 60, 63 (Ind.1995). And even if there is no conflicting lay testimony, the trier of fact is free to disregard or discredit the expert testimony. Thompson, 804 N.E.2d at 1149.
Because it is the trier of fact's province to weigh the evidence and assess witness credibility, a finding that a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. See Barany, 658 N.E.2d at 63. A defendant claiming the insanity defense should have prevailed at trial faces a heavy burden because he or she "is in the position of one appealing from a negative judgment." Thompson, 804 N.E.2d at 1149. A court on review will not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact (even though "more reasonable" inferences could have been made). Id. at 1149-50.
Although this standard of review is deferential, it is not impossible, nor can it be. The Indiana Constitution guarantees "in all cases an absolute right to one appeal." Ind. Const. art. VII, § 6. An impossible standard of review under which appellate courts merely "rubber stamp" the fact finder's determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory. Cf. Serino v. State, 798 N.E.2d 852, 856 (Ind.2003) (standard of review for sentencing claims so high that it risked impinging upon the [710] constitutional right to appeal). As such, this Court has long held that where the defendant claims the insanity defense should have prevailed, the conviction will be set aside "when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed." Thompson, 804 N.E.2d at 1149 (emphasis added); see also Barany, 658 N.E.2d at 63-64 (citation omitted).
II
We have on several occasions addressed a defendant's claim that his or her insanity defense should have prevailed at trial because of nonconflicting expert testimony that the defendant was insane at the time of the crime. Each time we have upheld the conviction(s) because the evidence as to the defendant's insanity was in conflict and thus sufficient to sustain the trier of fact's determination of sanity. See, e.g., Thompson, 804 N.E.2d 1146; Gambill v. State, 675 N.E.2d 668 (Ind.1996); Barany, 658 N.E.2d 60; Cate, 644 N.E.2d 546; Rogers v. State, 514 N.E.2d 1259 (Ind. 1987); Green v. State, 469 N.E.2d 1169 (Ind.1984). That is, in each of the cases where there has been nonconflicting expert opinion testimony that a defendant was insane, there has been other sufficient probative evidence from which a conflicting inference of sanity reasonably could be drawn. See Thompson, 804 N.E.2d at 1152 (Sullivan, J., concurring).
A
The strongest showing of an evidentiary conflict occurs where the experts disagree as to whether the defendant was insane at the time of the offense. Our cases have consistently held that conflicting credible expert testimony is sufficiently probative of sanity. See, e.g., Robinette v. State, 741 N.E.2d 1162, 1167 (Ind.2001); Weeks, 697 N.E.2d at 29; Metzler v. State, 540 N.E.2d 606, 610 (Ind.1989); Smith v. State, 502 N.E.2d 485, 490 (Ind.1987); Reed v. State, 479 N.E.2d 1248, 1253 (Ind.1985). Such a conflict arises where one or several experts opine that the defendant was insane at the time of the offense, while one or several other experts opine that the defendant was sane at the time of the offense.
A-1
A conflict does not exist, however, where one or several experts testify that the defendant was insane at the time of the offense and another expert testifies that he or she is unable to give an opinion as to the defendant's sanity at the time of the offense.
In Green, three of four experts testified that the defendant was insane at the time of the crime. 469 N.E.2d at 1172. The fourth expert testified that the defendant met only one of the requirements of insanity under then-applicable law, but he could not form an opinion as to the second. Id. Even though there was no actual conflict in the expert testimony, we affirmed the conviction because the "other evidence" presented to the jury was sufficient to support its finding that the defendant was sane at the time of the crime.[11] Id. Similarly, in Rogers, the court-appointed expert [711] testified that the defendant was insane at the time of the crime, while the defendant's expert testified that he could not render an opinion on the matter. 514 N.E.2d at 1261. Although there was no actual conflict in the experts' testimony, this Court once again affirmed the conviction based on the conflict presented by the lay testimony. Id. The Court cited Green for the proposition that a jury may reject expert testimony of insanity and rely upon lay testimony that the defendant was sane at the time of the crime. Id. Like Green, the conflicting evidence that provided sufficient grounds for the jury's finding of sanity was based on a conflict between lay testimony and expert testimony, not a conflict between experts.[12] Id.
Moreover, as a matter of law, a person is either sane or insane at the time of the crime; there is no intermediate ground. Marley v. State, 747 N.E.2d 1123, 1128 (Ind.2001) (quoting Cowell v. State, 263 Ind. 344, 331 N.E.2d 21, 24 (1975) (providing that "complete mental incapacity must be demonstrated before criminal responsibility can be relieved")). The trier of fact therefore has one of only two options with regard to insanity. And its decision must be based on probative evidence, which means "[e]vidence that tends to prove or disprove a point in issue." Black's Law Dictionary 639 (9th ed.2009). An expert witness who is called to testify as to his or her opinion, in an effort to aid the trier of fact, and who testifies that he or she has no opinion does not provide probative evidence.
A-2
The expert testimony in this case did not conflict. Although Dr. Davidson submitted a preliminary report opining that the defendant was sane at the time of the murder, he recanted that opinion under cross-examination in light of learning critical facts. The State contends that Dr. Davidson's equivocation illustrates that the expert testimony was in conflict. We disagree.
First, the State's argument is not consistent with our prior cases. Both Green and Rogers involved an expert who was unable to form an opinion as to the defendant's sanity. We affirmed the convictions in both cases only because there was conflicting lay evidence. Under the State's view that no opinion represents a conflicting opinion, both Green and Rogers could have been affirmed without a discussion of the lay evidence, given our consistent holdings as to the value and sufficiency of conflicting expert testimony.
Second, the trial court's findings preclude the possibility of a true conflict in the expert testimony because it did not give any weight to the expert testimony in this case. Rather, the trial court focused its analysis on demeanor evidence to support its finding that the defendant was guilty but mentally ill. It mentions the experts only once, as a preface to its finding that the defendant meets the definition of "mentally ill," and merely states that "[e]ach of the examining doctors . . . were divided on the issue of insanity." Appellant's App. 258. Given the consistent holdings of this Court with respect to the strength of conflicting expert testimony in sustaining a finding of sanity, and given the trial court's analysis in this case, the trial court clearly did not make a finding that the expert testimony was in conflict. Thus, the experts' testimony about the defendant's [712] insanity at the time of the crime did not conflict.
B
Where there is no conflict among the expert opinions that the defendant was insane at the time of the offense, there must be other evidence of probative value from which a conflicting inference of sanity can be drawn. See Thompson, 804 N.E.2d at 1152 (Sullivan, J., concurring). Such probative evidence is usually in the form of lay opinion testimony that conflicts with the experts or demeanor evidence that, when considered in light of the other evidence, permits a reasonable inference of sanity to be drawn.
B-1
In many cases, there will be lay opinion testimony that the defendant was sane at the time of the crime. Credible and informed lay opinion testimony as to the defendant's mental state at the time of the crime may be sufficiently probative to support a trier of fact's determination of sanity, even where there is unanimous expert testimony to the contrary. See, e.g., Barany, 658 N.E.2d at 64; Green, 469 N.E.2d at 1172. Lay witnesses who are familiar with and observe the defendant at or around the time of the crime reasonably may be able to give a more accurate account of the defendant's mental state at the time of the crime than experts who examine the defendant months later. See Thompson, 804 N.E.2d at 1149.
For instance, in Gambill, we affirmed the conviction of a mother convicted of murdering her son because there was lay opinion testimony that conflicted with the unanimous expert testimony. 675 N.E.2d 668. One of the officers who spent time with the defendant at the hospital in the immediate aftermath of her arrest had attended high school with the defendant, and based on his familiarity with her and his observations of her on the day of the murder, he testified that, in his lay opinion, she was able to appreciate the wrongfulness of her conduct at the time of the crime. Id. at 672; see also Green, 469 N.E.2d at 1172. A jail-house informant with whom the defendant discussed the murder also testified that she believed the defendant was able to appreciate the wrongfulness of her conduct at the time of the murder. Gambill, 675 N.E.2d at 671-72. Additionally, the defendant made several self-serving exculpatory statements during the immediate aftermath of the murder — namely, she did not tell medical personnel of her heavy drug use that day, and she told a motorist who gave her a ride that she had been raped and that her former boyfriend had hurt her son. Id. at 672-73.
B-2
Even where there is no conflict among the experts and the lay witnesses, a finding that a defendant was sane at the time of the crime still may be sustained by probative demeanor evidence from which a conflicting inference of sanity may be drawn. See Thompson, 804 N.E.2d at 1149. We have recognized the importance of demeanor evidence in insanity cases. Demeanor is useful because a defendant's "behavior before, during, and after a crime may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later." Id. (citing Barany, 658 N.E.2d at 64).
Demeanor evidence may be most useful where there is some indication that the defendant is feigning mental illness and insanity. E.g., Thompson, 804 N.E.2d 1146; Cate, 644 N.E.2d 546. In Thompson, we affirmed the defendant's conviction for residential entry because there was sufficient evidence of probative value to [713] sustain the trial court's finding that the defendant was not insane at the time of the crime. 804 N.E.2d at 1150. For instance, the defendant removed only her possessions once she entered the victim's residence, which reasonably suggested that she was aware that it was wrong to take things that did not belong to her. Id. at 1148. Moreover, as she fled from the scene of the crime, she was stopped momentarily by police but allowed to leave, which reasonably suggested that she was sufficiently lucid to continue about her business. Id. Thompson had also recently been discharged from the hospital with "no active psychotic symptoms . . . and was calm and pleasant without agitation." Id. at 1150. Finally, Thompson had a history of lying and "avoiding criminal responsibility through her illness." Id. Based on all of the probative evidence, the trial judge concluded that Thompson "knew her actions were wrong but was using her illness to manipulate the system." Id.; see also Cate, 644 N.E.2d at 547-48 (affirming the defendant's conviction because of inconsistencies in his story, which suggested feigning, and because there was probative demeanor evidence of defendant's lucidity upon arrest).
To be sure, demeanor evidence may be appropriate in cases where there is no evidence of feigning. For instance, the defendant in Barany was found by all three experts to have been legally insane at the time of the crime, but we affirmed his murder conviction because there was conflicting evidence of sanity given by lay witnesses. 658 N.E.2d at 64. Specifically, an investigating police detective testified that the defendant "talked about the victim's complaints and nagging" only a few hours after the crime. Id. Additionally, one of the defendant's friends testified that although the defendant engaged in unusual topics of conversation, he "seemed O.K." Id. Finally, the defendant told his sister that he believed the victim was calling the police when he killed her. Id. We concluded that "[t]he jury could have decided that this testimony about [the defendant's] behavior was more indicative of his actual mental health at the time of the killing than medical examinations conducted four weeks after the arrest." Id.
Although demeanor evidence often is useful, there are limits to its probative value. First, demeanor evidence is of more limited value when the defendant has a long history of mental illness with psychosis. As the Court of Appeals previously explained:
While the jury is the ultimate finder of fact, we fail to see how evidence of a defendant's demeanor before and after a crime can have much probative value when a schizophrenic defendant is involved.. ..
. . . .The proposition that a jury may infer that a person's actions before and after a crime are "indicative of his actual mental health at the time of the" crime is logical when dealing with a defendant who is not prone to delusional or hallucinogenic episodes. However, when a defendant has a serious and well-documented mental disorder, such as schizophrenia, one that causes him to see, hear, and believe realities that do not exist, such logic collapses. . . .
Moler v. State, 782 N.E.2d 454, 458-59 (Ind.Ct.App.2003), trans. denied, 792 N.E.2d 43 (Ind.2003) (table). Demeanor evidence requires the trier of fact to infer what the defendant was thinking based on his or her conduct. The trier of fact uses its common knowledge of what is normal and what is abnormal to make these inferences. But insanity is not limited to the stereotypical view of a "raging lunatic" — a [714] person experiencing a psychotic delusion may appear normal to passersby.
Second, Indiana's insanity test is a purely cognitive test — it asks only what the defendant was thinking and whether he or she could appreciate the wrongfulness of his or her conduct. At one time, Indiana included, as a second basis for insanity, whether a defendant had the capacity to conform his or her conduct to the law — i.e., the irresistible impulse test. Green, 469 N.E.2d at 1171 (citing Ind.Code § 35-41-3-6(a) (Burns 1979)). This volitional component was removed from the statute in 1984. See Act of Feb. 24, 1984, No. 184, § 1, 1984 Ind. Acts 1501, 1501. Demeanor evidence thus had more probative value to negate a defense of insane conduct because of the volitional component of the insanity test. See, e.g., Taylor, 440 N.E.2d 1109.
Finally, demeanor evidence before and after a crime is of more limited value than the defendant's demeanor during the crime. The insanity defense concerns the defendant's mental state at the time of the crime. As such, Indiana law recognizes the defense of "temporary insanity." Gambill, 675 N.E.2d at 674-75; Flowers v. State, 236 Ind. 151, 139 N.E.2d 185, 196 (1956). The law thus allows for the possibility that a defendant will be legally insane at the time of the crime, but compos mentis immediately before and immediately after the crime. Therefore, a defendant's demeanor before and after a crime may be even less indicative of the defendant's mental state during the crime than demeanor evidence normally is.
Thus, as a general rule, demeanor evidence must be considered as a whole, in relation to all the other evidence. To allow otherwise would give carte blanche to the trier of fact and make appellate review virtually impossible. For instance, in Thompson and Gambill, the trial courts found that the defendant's flight from police was probative of sanity. But in Lyon v. State, the fact that the defendant did not flee but rather waited for police in the next room was probative of sanity. 608 N.E.2d 1368, 1369-70 (Ind.1993). If a piece of demeanor evidence standing alone is considered probative, evidence of the defendant's actions after the crime could be used as the sole basis for a finding of sanity, whether the defendant cooperated with police or not.
C
In this case, there was not sufficient evidence of probative value from which an inference of sanity could be drawn sufficient to create a conflict with the (nonconflicting) expert testimony that the defendant was insane at the time of the offense. First, there was no lay opinion testimony given that conflicted with the experts' opinions that the defendant was insane at the time of the stabbing. The three eyewitnesses to the stabbing called by the State testified that the defendant was showing familiar signs of "losing it." The defendant's aunt, who was sitting on the couch as her mother was stabbed only a few feet away, testified that the defendant had a "wild look" in his eye and that she recognized this as the look he gets right before he loses it. She also heard the defendant call his beloved grandmother the devil as he stabbed her. Two other witnesses — the defendant's mother and the defendant's friend — also testified that the defendant was showing signs of losing it in the days and hours leading up to the murder. Thus, unlike Thompson, where there was no lay opinion evidence on the issue of insanity, there were five lay witnesses in this case whose testimony supports the experts' opinions.
Second, there was not sufficient demeanor evidence of probative value from which [715] an inference of sanity could be drawn. The trial court based its findings on very little evidence. It found as probative of sanity the fact that, over the course of an hour, the defendant shopped, ate, and filled a car with gasoline without incident. It also found as probative the fact that the defendant cooperated with police after the fact. Viewed in isolation, each of these events may indeed represent the normal events of daily life. However, when viewed against the defendant's long history of mental illness with psychotic episodes, the defendant's demeanor during the crime, as testified to by three eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor evidence is simply neutral and not probative of sanity.
Additionally, we are unable to agree with the trial court's conclusions that certain facts were probative of sanity. Two investigating officers testified that there was absolutely no evidence of a plan or motive. In light of this, the trial court found as probative of sanity the fact that the defendant, without any warning, stabbed his grandmother, his best friend with whom he had lived for seven years, in front of three family members while calling her the devil. We see nothing connecting the absence of plan or motive and the defendant acting without warning as he did as probative of sanity.
The trial court also found as probative of sanity the fact that the defendant deteriorated during trial to the point that he was deemed legally incompetent and was committed to a state hospital to regain competence. We do not find the defendant's deteriorating to incompetence to stand trial to be probative of his sanity at the time of the offense.
The trial court expressly found that the defendant deteriorates mentally and experiences psychosis when he does not take his medication. At the time of the stabbing, the defendant was supposed to be taking his medications twice a day. He told police, however, that he had not taken any prescription medication in two days. The trial court found this failure to take medication to be probative of sanity, but we do not, especially in light of the trial court's finding that the defendant became psychotic when not on his medication.
The trial court also relied on the defendant's demeanor during trial, when he was competent to stand trial, as probative of his sanity at the time of the crime. As discussed at length supra, a defendant's demeanor during court proceedings is certainly probative of sanity with regard to his or her competence to stand trial. See Manuel v. State, 535 N.E.2d 1159, 1162 (Ind.1989) (per curiam). But the probative value of a defendant's courtroom demeanor during trial as to his or her mental state at the time of the crime is doubtful. The justification for considering a defendant's demeanor before and after the crime is that conduct occurring in temporal proximity to the crime "may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later." Thompson, 804 N.E.2d at 1149. Trial proceedings, however, often occur many months or even years after the crime. In this case, the two-day bench trial occurred nearly a year after the murder. Thus, we do not find the fact that the defendant "was alert and oriented throughout the proceedings and assisted his counsel and the investigator" to be probative of his sanity at the time of the crime.
Finally, unlike Thompson and Cate, where there were suggestions of feigning or malingering, there is no evidence or suggestion that the defendant here feigned [716] his mental illness. The trial court expressly found as much with regard to defendant's long history of mental illness.
III
Because the insanity defense relieves a defendant of criminal responsibility, even where it is established beyond a reasonable doubt that he or she committed the criminal act, there is an inherent risk of abuse. We are mindful of these risks, which is why substantial deference is given to the trier of fact's finding of sanity. The trier of fact is in the best position to judge the credibility of the witnesses and to observe the defendant over a period of time. Accordingly, whether a defendant is malingering or feigning mental illness or insanity is clearly an appropriate consideration for the trier of fact. See Part II.B, supra.
It was not appropriate, however, for the trier of fact to consider the condition of our State's mental health system. Although raising the insanity defense opens the door to examining the defendant's entire life and allows in evidence that might otherwise be inadmissible under our rules of evidence, see Garner v. State, 704 N.E.2d 1011, 1014 (Ind.1998), what may or may not happen to the defendant in the future cannot be considered. The trier of fact must make its determination as to whether the defendant was insane at the time of the offense using only evidence and considerations that are relevant[13] to the defendant's mental state at the time of the offense.
The insanity defense may not be a constitutional mandate, see Clark v. Arizona, 548 U.S. 735, 748-49, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), but it dates back to the twelfth century, see Francis Bowes Sayre, Mens Rea, 45 Harv. L.Rev. 974 (1932). Prior to the twelfth century, criminal law was based on principles of strict liability — the only inquiry was whether the criminal defendant committed the criminal act. See Sayre, supra, at 977. Toward the end of the twelfth century, the influences of ancient Roman law and canon law began to call into question the morality of punishing someone for a criminal act committed without criminal intent. See id. at 982-84. Insanity, like self-defense, thus became a basis for a royal pardon wherein the insane defendant was convicted of the charged offense but pardoned by the King. See id. at 1004-05.
Over the centuries, insanity became a defense to criminal responsibility. See, e.g., 4 William Blackstone, Commentaries on the Laws of England 24-25 (1769). Arguably the most clear and influential statement of the insanity defense came from the House of Lords in M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.). It was there held that the common law test for insanity had been and was "whether the accused at the time of doing the act knew the difference between right and wrong." Id. at 722. That is, a defendant was not criminally responsible if, at the time of the offense, he was unable to appreciate the wrongfulness of his conduct.
The insanity defense has undergone many changes since the mid-nineteenth century. One of the most significant was the development of the irresistible impulse test, which recognized volitional impairment as a basis for the insanity defense, and the subsequent expansion of both the cognitive and volitional tests embodied in the Model Penal Code. See Christopher Slobogin, An End to Insanity: Recasting [717] the Role of Mental Disability in Criminal Cases, 86 Va. L.Rev. 1199, 1211-12 (2000). Although many states, including Indiana, adopted some variation of the broader insanity defense during the 1960s and 1970s, most states repealed the volitional test after John Hinckley was found not guilty by reason of insanity for the attempted assassination of President Ronald Reagan in the early 1980s. See id. at 1214. Since then, many states, like Indiana, have reverted back to the original common law insanity test described in M'Naghten. Id. In fact, several states have abolished the insanity defense completely. See, e.g., Idaho Code Ann. § 18-207 (2004); Kan. Stat. Ann. § 22-3220 (2007); Mont.Code Ann. § 46-14-102 (2009).[14]
The Indiana General Assembly has chosen to return to our common law roots and hold criminally responsible only those defendants who are morally responsible for their actions. Judges must apply that law and find not responsible by reason of insanity those defendants who establish each component of the insanity defense by a preponderance of the evidence. It is not for the judicial branch to decide that a legally insane defendant should be convicted and sentenced to prison because of the condition of the State's mental health system.
The trial court erred in this case by entering a verdict of guilty but mentally ill when the evidence presented reasonably led only to a conclusion that the defendant was legally insane at the time of the offense. Underlying the trial court's decision was not a concern of malingering or feigning but a concern about the State's mental health system and the defendant's need for structure and constant supervision. Among the trial court's findings is that the defendant "lacks in-sight into the need for his prescribed medication" and "is in need of long term stabilizing treatment in a secure facility." The trial court also found that the defendant "repeatedly discontinued medication" and there was "no evidence that this pattern of conduct will not continue if [the defendant] is hospitalized and released, posing a danger to himself and others in the community."
Though made after the verdict, the trial court's statements at sentencing cast light on the rationale underlying the verdict.[15] The trial court confessed at sentencing that it viewed "[t]his case . . . as much a trial of our mental health system as . . . of a man." The court lamented that it could not simply commit the defendant to a mental health institution for the rest of his life — the "easy" decision. What made the court's decision so difficult was that it could not "in good conscience allow someone with . . . severe mental illness to return to the community."
To be sure, the trial court was not unreasonable in finding that the defendant's history of mental illness, his lack of insight into the need for medication, and his track record of mentally deteriorating after stopping his medication creates a high probability that the defendant will be a danger to himself and to others in the community if treated and released. Although such considerations may be relevant and appropriate during a commitment proceeding, [718] they are not relevant or appropriate in determining whether the defendant was legally insane at the time of the offense. Thus, while we sympathize with the difficulty of the trial court's decision, we cannot sustain it.
Conclusion
We reverse the judgment of the trial court.
RUCKER and DAVID, JJ., concur.
SHEPARD, C.J., dissents with separate opinion in which DICKSON, J., joins.
SHEPARD, Chief Justice, dissenting.
Gregory Galloway is someone who went shopping at a going-out-of-business sale in the morning, had some lunch at a local restaurant with his aunt and grandmother, and stopped off at a gas station to buy fuel and cigarettes. Galloway appeared normal all day; "everybody was happy," one of his companions said.
When Galloway arrived home, he stabbed his grandmother to death, and then immediately announced that he regretted what he had done. The finder of fact in this case, Judge Mary Willis, concluded on the basis of the admitted evidence that Galloway was not insane at the time of the crime, that is to say, that he knew killing his grandmother was wrong.
Of course, all of the testimony by psychiatrists and psychologists necessarily came from witnesses who were not present at the scene of the crime. They offered their observations based on records of Galloway's medical history from moments other than the hour of the killing and on direct observations of Galloway that occurred months or even years after the crime. One of these experts, Dr. Glenn Davidson, appointed by the court, concluded that Galloway was not insane at the time of the crime. Eyewitness evidence about how Galloway acted before and after the crime also supported the trial court's decision.
This was one of those cases where the defense argued that the perpetrator was sane right before the crime and sane right after the crime, but insane for the sixty seconds or so it took to commit it. Dr. Davidson's basic view was that it was unlikely that Galloway qualified as insane on the basis of a "very thin slice of disorganized thinking." (Tr. at 228.)
Defense counsel's vigorous cross-examination confronted Dr. Davidson with a host of hypotheticals ("now what if I told you") and asked as to each new proposed fact whether it would affect his diagnosis. It was twenty to thirty pages of the sort of energetic cross-examination tactics to which we lawyers are inured but which often befuddle the uninitiated. It finally left the witness saying, in the face of this onslaught, that he was unsure.
As the majority points out, juries and judicial factfinders are not required to take as completely true all or none of what witnesses say. They are entitled to believe and disbelieve some, all, or none of the testimony of experts and non-experts alike. Indeed, their assignment is to sort out truth from cacophony. It was altogether plausible that Judge Willis could credit Dr. Davidson's opinion that Galloway was sane and treat the doctor's answers under cross as less compelling. She could also, of course, give weight to Galloway's own contemporaneous declaration of regret right after he killed his grandmother.
To be sure, if the right of appeal is to be meaningful, both trial and appellate judges must be open to the possibility of mistake. We set a pretty tough standard for trial judges as to casting aside jury verdicts, for example, saying that they may do only when the jury's verdict is "against the weight of the evidence" or "clearly erroneous." [719] Ind. Trial Rule 59(J). Our rules require that the judge who sets aside a jury verdict explain in detail, if you will, why the judge is better at weighing the evidence than the members of the jury. The appellate standard is roughly the same, and appellate judges regularly declare that we who have not even seen the witnesses or the defendant should be extremely restrained when we contemplate announcing that our assessment of the weight of the evidence is superior to that of juries or judges who have seen both.
It seems straightforward enough that Dr. Davidson's testimony and the defendant's own demeanor at the time of the offense support Judge Willis's judgment. Thus, the appellate standard for reversal has not been met. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004) ("evidence is without conflict and leads only to the conclusion the defendant was insane.")
The majority declares that it is not relevant what may happen as a result of this reversal by appellate judges. Not many of our fellow citizens would not recognize this disclaimer of responsibility as legitimate.
As the majority does acknowledge, there is risk involved when appellate judges second-guess a jury or trial judge and acquit a criminal offender. If Galloway is declared not guilty by this Court, the prosecutor will initiate a civil commitment process to determine whether Galloway should be confined because his mental illness makes him a danger to himself or to others.
The one thing we know for sure about Mr. Galloway is that he is in actual fact a danger to others.
We also know what is likely to occur as a result of this Court setting aside Judge Willis's judgment: sooner or later, probably sooner rather than later, Galloway will be determined safe and turned back into society.
The reason we know that is that the civil commitment process has produced such an outcome over and over again with Mr. Galloway. The majority has recited the long trail of medical treatments and mental commitments. It has not focused much in that recitation on how the exercise of expert medical judgments and the civil commitment processes have combined to turn him back out on the street over and over again.
I count perhaps seventeen identifiable encounters by Galloway. But just to name a few, call it number 5, there was a May 1999 event in which Galloway's wife brought him in because he had been carrying around a gun and threatening to use it on his supervisor at work. This trip produced a prescription for medication and a period of outpatient treatment, then a failure to take his medications and a medical trail gone cold.
During encounter number 7, in April 2001, Galloway was admitted to the hospital because of aggressive and frightening behavior at home. He said he had been receiving messages from the television. This interaction with the system produced several months of monitoring during which Galloway took some of his medicines and not others. And then he was out.
During encounter number 8, Galloway was involuntarily committed because he had threatened to kill his neighbor and his grandmother. He was released from commitment and then admitted again just a month later, in March 2002. He stayed a few months at Richmond State Hospital before being declared safe for release.
In encounter number 13, not long before Galloway killed his grandmother, Galloway came under care after he stopped taking his medicines and began reporting hallucinations [720] and recurring thoughts of suicide. After being stabilized, he was discharged to live with his grandmother, with a result plain and painful for all to see.
I mention this litany—just salient elements in an even longer story—to suggest that some innocent future victim is placed at risk by this Court's decision to second-guess Judge Willis. A society that responds to such violence with tolerance should well expect that it will experience more violence than it would if it finally said, "This is unacceptable." Not knowing what I would say to the next victim, I choose to stand with Judge Willis and affirm the judgment of guilty but mentally ill.
DICKSON, J., joins.
[1] Ind.Code § 35-42-1-1(1) (2008).
[2] I.C. § 35-41-3-6(a).
[3] Axis I disorders are the mental health disorders recognized by the DSM-IV, except for personality disorders and mental retardation (which are both reported on Axis II). See Am. Psychiatric Ass'n, DSM-IV: Diagnostic and Statistical Manual of Mental Disorders 25-26 (4th ed.1994). Thus, a finding that the defendant has an Axis I disorder means that he has a recognized mental illness.
[4] The trial court tabulated the defendant's contacts with the mental health system; he has had at least 40 contacts since 1989, but more than 30 occurred after 2000. See Appellant's App. 251-55.
[5] Substance abuse is highly prevalent among people with mental illness, particularly schizophrenia and bipolar disorder. See generally Peter F. Buckley, Prevalence and Consequences of the Dual Diagnosis of Substance Abuse and Severe Mental Illness, 67 J. Clinical Psychiatry (Supp.7) 5 (2006). The probability of a person with bipolar disorder also having drug-abuse problems "is 11 times greater than in those with out bipolar disorder." Darrel A. Regier et al., Comorbidity of Mental Disorders with Alcohol and Other Drug Abuse: Results from the Epidemiologic Catchment Area (ECA) Study, 264 J. Am. Med. Ass'n 2511, 2514-15, 2516 tbl.3, 2517 (1990).
[6] The rationale underlying the insanity defense is that a legally insane person is unable to form the requisite criminal intent. See Truman v. State, 481 N.E.2d 1089, 1089-90 (Ind.1985) ("the inability to form intent by reason of insanity" is a defense to crime in Indiana).
[7] "Preponderance of the evidence" means "[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force." Black's Law Dictionary 1301 (9th ed.2009). Thus, a defendant must convince the trier of fact that, in consideration of all the evidence in the case, he or she was more probably legally insane than legally sane at the time of the crime. See Gambill v. State, 675 N.E.2d 668, 676 (Ind. 1996).
[8] Indiana Code section 35-41-3-6 provides that a person is not criminally responsible for engaging in criminal acts "if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense," and it defines a "mental disease or defect" as a "severely abnormal mental condition that grossly and demonstrably impairs a person's perception."
[9] The results of an NRI verdict and of a GBMI verdict are different. When an NRI verdict is rendered, the prosecutor is required to initiate a civil commitment proceeding under either section 12-26-6-2(a)(3) (temporary commitment) or section 12-26-7 (regular commitment) of the Indiana Code. See I.C. § 35-36-2-4. The defendant remains in custody pending the completion of the commitment proceeding. Id. The trial court may order the defendant committed if it finds by clear and convincing evidence that the defendant is currently mentally ill and either dangerous or gravely disabled. See Deal v. State, 446 N.E.2d 32, 34 (Ind.Ct.App.1983) (citing Addington v. Texas, 441 U.S. 418, 425-33, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)), trans. denied. But see Foucha v. Louisiana, 504 U.S. 71, 87-88, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (O'Connor, J., concurring) (stating that it might be permissible for a state "to confine an insanity acquittee who has regained sanity if . . . the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness"); Jones v. United States, 463 U.S. 354, 361-70, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (holding that a defendant who successfully establishes the insanity defense may be committed to a mental institution on the basis of the insanity judgment alone).
Unlike an NRI verdict, a GBMI verdict is a conviction. See I.C. § 35-36-2-5(a). The trial court sentences a GBMI defendant "in the same manner as a defendant found guilty of the offense," id., but the full consequences of a GBMI verdict are different from the consequences of a guilty verdict. See Georgopulos v. State, 735 N.E.2d 1138, 1141 (Ind.2000). Specifically, a physician must evaluate the GBMI defendant before sentencing, and the defendant must be appropriately treated and evaluated once in the Department of Correction's custody. Id. (citing I.C. § 35-36-2-5(b), (c)).
[10] The trial court is required to appoint two or three disinterested experts to examine the defendant and testify at trial as the court's witnesses, after the State and the defendant have both presented their respective cases. I.C. § 35-36-2-2(b). Additionally, the State and the defense may each employ its own expert(s) to testify along with the court's witnesses. Id.
[11] The "other evidence" included testimony from a detective that, based on his interactions with the defendant, in his lay opinion the defendant was sane. Green, 469 N.E.2d at 1172.
Moreover. . . . [a]fter beating her daughter with the skillet, Defendant changed her clothing, told her daughter's schoolmate that [the victim] was not going to school, packed a suitcase, ripped a page from an address book bearing the name of a friend in Chicago, withdrew money from the bank, purchased a bus ticket, and went to her friend's house.
Id.
[12] In Rogers, there was lay testimony that although the defendant "had a `weird' facial expression" earlier in the day, his speech and actions were "calmer" and he was not acting "crazy" at the time of the crime. 514 N.E.2d at 1261.
[13] Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Ind. Evidence Rule 401.
[14] Nevada also abolished the insanity defense, see Act of July 5, 1995, ch. 637, § 5, 1995 Nev. Stat. 2448, 2450, but the Nevada Legislature reinstated the defense in 2003, see Act of May 28, 2003, ch. 284, § 4, 2003 Nev. Stat. 1456, 1457 (codified as amended at Nev. Rev.Stat. Ann. § 174.035 (West Supp.2010)).
[15] We have previously considered the trial court's sentencing statements as illustrative of its reasoning with regard to the verdict, at least where the trial court was both the trier of law and the trier of fact. See Thompson, 804 N.E.2d at 1150.
7.2.6.4.2.3 IV.B.iii. Environmental Deprivation and Psychological Injury 7.2.6.4.2.3 IV.B.iii. Environmental Deprivation and Psychological Injury
If insanity and duress can excuse criminal behavior, why can’t social and economic distress affect culpability? The theory that environmental deprivation or a “rotten social background” should excuse criminal liability has been widely discussed. Some research indicates that growing up in impoverished, unstable, and violent environments can affect moral judgment—implicating the M’Naghten test—or other attributes such as self-control—perhaps implicating the irresistible impulse test. Nevertheless, the idea of an environmental deprivation excuse remains highly controversial, and there are many distinctions between insanity and environmental deprivation. As you read the following passages, consider both the similarities and the differences between environmental deprivation and the excuses we have studied. Remember, too, that criminal law is partly moral, and partly instrumental. What would be the practical effects of recognizing an environmental deprivation defense?
7.2.6.4.2.3.1. U.C.C. §2-204(1)-(2)
7.2.6.4.2.3.2. U.C.C. § 2-209
7.2.6.4.2.3.3. FRCP 8(a), (d) and (e)
7.2.6.5 V. Sex Offenses 7.2.6.5 V. Sex Offenses
7.2.6.5.1. Richard Prince Wins Major Victory in Landmark Copyright Suit - Brian Boucher
7.2.6.5.2. FRCP 3
7.2.6.5.3. Janet Halley, Split Decisions
7.2.6.5.4. Byron Hurt, Rape, A Loaded Issue for Black Men
7.2.6.5.5 V.A. Offenses 7.2.6.5.5 V.A. Offenses
To a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties. The traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives. As the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question whether there was consent. Consider what problems consent itself may have as a central element of rape law. As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?
7.2.6.5.5.1 V.A.i. Statutes 7.2.6.5.5.1 V.A.i. Statutes
7.2.6.5.5.1.1 CA Penal Code, Title 9 sec. 261 (1950) 7.2.6.5.5.1.1 CA Penal Code, Title 9 sec. 261 (1950)
Title IX.
Crimes Against the Person, Public Decency and Morals
§261. Rape—Acts Constituting.
Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances:
1. Where the female is under the age of eighteen years;
2. Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent;
3. Where she resists, but her resistance is overcome by force or violence;
4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anesthetic, substance, administered by or with the privity of the ascused;
5. Where she is at the time unconscious of the nature of the act, and this is known to the accused;
6. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief. Leg.H. 1872, 1889 p. 223, 1897 p. 201, 1913 p. 212.
See §290 infra as to registering with sheriff or chief of police by one convicted under div. 3 and 4 of this section.
Assault with intent to rape, see ante §220.
Anno. 22 Cal.J. 357-359; 52 C.J. 1005 §2; 22 RCL. 1171: Rape A.Dig. §1; McK.D. §2-7.
New—W.S.C.L. Crimes §§44, 67.
7.2.6.5.5.1.2 CA Penal Code, Title 9 secs. 261-269 (2011) 7.2.6.5.5.1.2 CA Penal Code, Title 9 secs. 261-269 (2011)
CA Penal Code §261
(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.
CA Penal Code § 261.5
(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)
(1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
CA Penal Code § 261.6
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.
CA Penal Code § 261.7
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
CA Penal Code § 261.9
(a) Any person convicted of seeking to procure or procuring the sexual services of a prostitute in violation of subdivision (b) of Section 647, if the prostitute is under 18 years of age, shall be ordered by the court, in addition to any other penalty or fine imposed, to pay an additional fine in an amount not to exceed twenty-five thousand dollars ($25,000).
(b) Every fine imposed and collected pursuant to this section shall, upon appropriation by the Legislature, be available to fund programs and services for commercially sexually exploited minors in the counties where the underlying offenses are committed.
CA Penal Code § 262
(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.
(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another.
(d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
CA Penal Code § 263
The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.
CA Penal Code § 264
(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.
(b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
(c)
(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.
(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
CA Penal Code § 264.1
(a) The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years.
(b)
(1) If the victim of an offense described in subdivision (a) is a child who is under 14 years of age, the defendant shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(2) If the victim of an offense described in subdivision (a) is a minor who is 14 years of age or older, the defendant shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
CA Penal Code § 264.2
(a) Whenever there is an alleged violation or violations of subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5, 286, 288a, or 289, the law enforcement officer assigned to the case shall immediately provide the victim of the crime with the "Victims of Domestic Violence" card, as specified in subparagraph (G) of paragraph (9) of subdivision (c) of Section 13701.
(b)
(1) The law enforcement officer, or his or her agency, shall immediately notify the local rape victim counseling center, whenever a victim of an alleged violation of Section 261, 261.5, 262, 286, 288a, or 289 is transported to a hospital for any medical evidentiary or physical examination. The victim shall have the right to have a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, and a support person of the victim's choosing present at any medical evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary or physical examination arising out of a sexual assault, a victim shall be notified orally or in writing by the medical provider that the victim has the right to have present a sexual assault counselor and at least one other support person of the victim's choosing.
(3) The hospital may verify with the law enforcement officer, or his or her agency, whether the local rape victim counseling center has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or physical examination if the law enforcement officer or medical provider determines that the presence of that individual would be detrimental to the purpose of the examination.
CA Penal Code § 265
Every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.
CA Penal Code § 266
Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment.
CA Penal Code § 266a
Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).
CA Penal Code § 266b
Every person who takes any other person unlawfully, and against his or her will, and by force, menace, or duress, compels him or her to live with such person in an illicit relation, against his or her consent, or to so live with any other person, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.
CA Penal Code § 266c
Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.
As used in this section, "fear" means the fear of physical injury or death to the person or to any relative of the person or member of the person's family.
CA Penal Code § 266d
Any person who receives any money or other valuable thing for or on account of placing in custody any other person for the purpose of causing the other person to cohabit with any person to whom the other person is not married, is guilty of a felony.
CA Penal Code § 266e
Every person who purchases, or pays any money or other valuable thing for, any person for the purpose of prostitution as defined in subdivision (b) of Section 647, or for the purpose of placing such person, for immoral purposes, in any house or place against his or her will, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.
CA Penal Code § 266f
Every person who sells any person or receives any money or other valuable thing for or on account of his or her placing in custody, for immoral purposes, any person, whether with or without his or her consent, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.
CA Penal Code § 266g
Every man who, by force, intimidation, threats, persuasion, promises, or any other means, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution, or connives at or consents to, or permits, the placing or leaving of his wife in a house of prostitution, or allows or permits her to remain therein, is guilty of a felony and punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years; and in all prosecutions under this section a wife is a competent witness against her husband.
CA Penal Code § 266h
(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years.
(b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows:
(1) If the person engaged in prostitution is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.
(2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
CA Penal Code § 266i
(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:
(1) Procures another person for the purpose of prostitution.
(2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.
(3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state.
(4) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.
(5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution.
(6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution.
(b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows:
(1) If the other person is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.
(2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
CA Penal Code § 266j
Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000).
CA Penal Code § 266k
(a) Upon the conviction of any person for a violation of Section 266h or 266i, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed five thousand dollars ($5,000). In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, whether the defendant derived any economic gain as the result of the crime, and the extent to which the victim suffered losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs under Section 13837.
(b) Upon the conviction of any person for a violation of Section 266j or 267, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed twenty thousand dollars ($20,000).
(c) Fifty percent of the fines collected pursuant to subdivision (b) and deposited in the Victim-Witness Assistance Fund pursuant to subdivision (a) shall be granted to community-based organizations that serve minor victims of human trafficking.
(d) If the court orders a fine to be imposed pursuant to this section, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.
CA Penal Code § 267
Every person who takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).
CA Penal Code § 269
(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
(2) Rape or sexual penetration, in concert, in violation of Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section 289.
(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.
(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.
7.2.6.5.5.1.3 NY Penal Law Article 130 7.2.6.5.5.1.3 NY Penal Law Article 130
NY Penal Law § 130.00 Sex offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.
2. (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.
(b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.
3. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.
4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.
5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.
6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.
7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
8. "Forcible compulsion" means to compel by either:
a. use of physical force; or
b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.
9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.
10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.
11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child.
12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law.
13. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.
NY Penal Law § 130.05 Sex offenses; lack of consent.
1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.
2. Lack of consent results from:
(a) Forcible compulsion; or
(b) Incapacity to consent; or
(c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or
(d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.
3. A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital. For purposes of this paragraph, "employee" means (i) an employee of the state department of corrections and community supervision who, as part of his or her employment, performs duties:
(A) in a state correctional facility in which the victim is confined at the time of the offense consisting of providing custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services or direct supervision to inmates; or
(B) of supervising persons released on community supervision and supervises the victim at the time of the offense or has supervised the victim and the victim is still under community supervision at the time of the offense; or
(ii) an employee of the office of mental health who, as part of his or her employment, performs duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law in which the inmate is confined at the time of the offense, consisting of providing custody, medical or mental health services, or direct supervision to such inmates; or
(iii) a person, including a volunteer, providing direct services to inmates in a state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of corrections and community supervision or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or
(f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, "employee" means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates. For purposes of this paragraph, "employee" shall also mean a person, including a volunteer or a government employee of the state department of corrections and community supervision or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that such person received written notice concerning the provisions of this paragraph; or
(g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, "employee" means an employee of the office of children and family services or of a residential facility in which such person is committed to or placed at the time of the offense who, as part of his or her employment, performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, vocational training, or direct supervision to persons committed to or placed in a residential facility operated by the office of children and family services; or
(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.
(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or
(i) a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. For purposes of this paragraph, "employee" means either: an employee of the agency operating the residential facility, who knows or reasonably should know that such person is a resident or inpatient of such facility and who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility and who is in direct contact with residents or inpatients; provided, however, that the provisions of this paragraph shall only apply to a consultant, contractor or volunteer providing services pursuant to a contractual arrangement with the agency operating the residential facility or, in the case of a volunteer, a written agreement with such facility, provided that the person received written notice concerning the provisions of this paragraph; provided further, however, "employee" shall not include a person with a developmental disability who is or was receiving services and is also an employee of a service provider and who has sexual contact with another service recipient who is a consenting adult who has consented to such contact.
NY Penal Law § 130.10 Sex offenses; limitation; defenses.
1. In any prosecution under this article in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.
2. Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article.
3. In any prosecution for the crime of rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55 in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.
4. In any prosecution under this article in which the victim's lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old, mentally disabled, a client or patient and the actor is a health care provider, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.
NY Penal Law § 130.16 Sex offenses; corroboration.
A person shall not be convicted of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim's mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:
(a) Establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact, as the case may be, at the time of the occurrence; and
(b) Connect the defendant with the commission of the offense or attempted offense.
NY Penal Law § 130.20 Sexual misconduct.
A person is guilty of sexual misconduct when:
1. He or she engages in sexual intercourse with another person without such person's consent; or
2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or
3. He or she engages in sexual conduct with an animal or a dead human body. Sexual misconduct is a class A misdemeanor.
NY Penal Law § 130.25 Rape in the third degree.
A person is guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or
3. He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. Rape in the third degree is a class E felony.
NY Penal Law § 130.30 Rape in the second degree.
A person is guilty of rape in the second degree when:
1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Rape in the second degree is a class D felony.
NY Penal Law § 130.35 Rape in the first degree.
A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years old or more.
Rape in the first degree is a class B felony.
NY Penal Law § 130.40 Criminal sexual act in the third degree.
A person is guilty of criminal sexual act in the third degree when:
1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or
3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.
Criminal sexual act in the third degree is a class E felony.
NY Penal Law § 130.45 Criminal sexual act in the second degree.
A person is guilty of criminal sexual act in the second degree when:
1. being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or
2. he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.
Criminal sexual act in the second degree is a class D felony.
NY Penal Law § 130.50 Criminal sexual act in the first degree.
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years old or more.
Criminal sexual act in the first degree is a class B felony.
NY Penal Law § 130.52 Forcible touching.
A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.
For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.
Forcible touching is a class A misdemeanor.
NY Penal Law § 130.53 Persistent sexual abuse.
A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree as defined in section 130.55 of this article, sexual abuse in the second degree, as defined in section 130.60 of this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.
Persistent sexual abuse is a class E felony.
NY Penal Law § 130.55 Sexual abuse in the third degree.
A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.
Sexual abuse in the third degree is a class B misdemeanor.
NY Penal Law § 130.60 Sexual abuse in the second degree.
A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:
1. Incapable of consent by reason of some factor other than being less than seventeen years old; or
2. Less than fourteen years old.
Sexual abuse in the second degree is a class A misdemeanor.
NY Penal Law § 130.65 Sexual abuse in the first degree.
A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:
1. By forcible compulsion; or
2. When the other person is incapable of consent by reason of being physically helpless; or
3. When the other person is less than eleven years old; or
4. When the other person is less than thirteen years old and the actor is twenty-one years old or older.
Sexual abuse in the first degree is a class D felony.
NY Penal Law § 130.65-a Aggravated sexual abuse in the fourth degree.
1. A person is guilty of aggravated sexual abuse in the fourth degree when:
(a) He or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or
(b) He or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old.
2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the fourth degree is a class E felony.
NY Penal Law § 130.66 Aggravated sexual abuse in the third degree.
1. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.
3. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the third degree is a class D felony.
NY Penal Law § 130.67 Aggravated sexual abuse in the second degree.
1. A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the second degree is a class C felony.
NY Penal Law § 130.70 Aggravated sexual abuse in the first degree.
1. A person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:
(a) By forcible compulsion; or
(b) When the other person is incapable of consent by reason of being physically helpless; or
(c) When the other person is less than eleven years old.
2. Conduct performed for a valid medical purpose does not violate the provisions of this section.
Aggravated sexual abuse in the first degree is a class B felony.
NY Penal Law § 130.75 Course of sexual conduct against a child in the first degree.
1. A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration:
(a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or
(b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.
2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the first degree is a class B felony.
NY Penal Law § 130.80 Course of sexual conduct against a child in the second degree.
1. A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration:
(a) he or she engages in two or more acts of sexual conduct with a child less than eleven years old; or
(b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.
2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.
Course of sexual conduct against a child in the second degree is a class D felony.
NY Penal Law § 130.85 Female genital mutilation.
1. A person is guilty of female genital mutilation when:
(a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or
(b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child's labia majora or labia minora or clitoris.
2. Such circumcision, excision, or infibulation is not a violation of this section if such act is:
(a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or
(b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.
3. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.
Female genital mutilation is a class E felony.
NY Penal Law § 130.90 Facilitating a sex offense with a controlled substance.
A person is guilty of facilitating a sex offense with a controlled substance when he or she:
1. knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person's consent and with intent to commit against such person conduct constituting a felony defined in this article; and
2. commits or attempts to commit such conduct constituting a felony defined in this article.
Facilitating a sex offense with a controlled substance is a class D felony.
NY Penal Law § 130.91 Sexually motivated felony.
1. A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification.
2. A "specified offense" is a felony offense defined by any of the following provisions of this chapter: assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in section 120.07, stalking in the first degree as defined in section 120.60, strangulation in the second degree as defined in section 121.12, strangulation in the first degree as defined in section 121.13, manslaughter in the second degree as defined in subdivision one of section 125.15, manslaughter in the first degree as defined in section 125.20, murder in the second degree as defined in section 125.25, aggravated murder as defined in section 125.26, murder in the first degree as defined in section 125.27, kidnapping in the second degree as defined in section 135.20, kidnapping in the first degree as defined in section 135.25, burglary in the third degree as defined in section 140.20, burglary in the second degree as defined in section 140.25, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, arson in the first degree as defined in section 150.20, robbery in the third degree as defined in section 160.05, robbery in the second degree as defined in section 160.10, robbery in the first degree as defined in section 160.15, promoting prostitution in the second degree as defined in section 230.30, promoting prostitution in the first degree as defined in section 230.32, compelling prostitution as defined in section 230.33, disseminating indecent material to minors in the first degree as defined in section 235.22, use of a child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by a child as defined in section 263.10, promoting a sexual performance by a child as defined in section 263.15, or any felony attempt or conspiracy to commit any of the foregoing offenses.
NY Penal Law § 130.92 Sentencing.
1. When a person is convicted of a sexually motivated felony pursuant to this article, and the specified felony is a violent felony offense, as defined in section 70.02 of this chapter, the sexually motivated felony shall be deemed a violent felony offense.
2. When a person is convicted of a sexually motivated felony pursuant to this article, the sexually motivated felony shall be deemed to be the same offense level as the specified offense the defendant committed.
3. Persons convicted of a sexually motivated felony as defined in section 130.91 of this article, must be sentenced in accordance with the provisions of section 70.80 of this chapter.
NY Penal Law § 130.95 Predatory sexual assault.
A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:
1. In the course of the commission of the crime or the immediate flight therefrom, he or she:
(a) Causes serious physical injury to the victim of such crime; or
(b) Uses or threatens the immediate use of a dangerous instrument; or
2. He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or
3. He or she has previously been subjected to a conviction for a felony defined in this article, incest as defined in section 255.25 of this chapter or use of a child in a sexual performance as defined in section 263.05 of this chapter.
Predatory sexual assault is a class A-II felony.
NY Penal Law § 130.96 Predatory sexual assault against a child.
A person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and the victim is less than thirteen years old.
Predatory sexual assault against a child is a class A-II felony.
7.2.6.5.5.1.4 WI Statues Ch 940 7.2.6.5.5.1.4 WI Statues Ch 940
940.01 First-degree intentional homicide.
(1) Offenses.
(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.
(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:
(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).
History: 1987 a. 399; 1997 a. 295.
Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of "intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.
The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense "has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N. 173 Wis. 2d 343, 497 N.W.2d 141 (Ct. App. 1992).
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
Barring psychiatric or psychological opinion testimony on the defendant's capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F. 2d 384 (1990) citing Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).
A privilege for excusable homicide by accident or misfortune is incorporated in s. 939.45 (6). Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant may demonstrate that he or she was acting lawfully, a necessary element of an accident defense, by showing that he or she was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm. A defendant seeking a jury instruction on unnecessary defensive force under sub. (2) (b) to a charge of first-degree intentional homicide is not required to satisfy the objective threshold. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
A defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim's violent character and past acts of violence to show a satisfactory factual basis that he or she actually believed he or she was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend himself or herself, even if both beliefs were unreasonable. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
940.02 First-degree reckless homicide.
(1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.
(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:
(a) By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled substance included in schedule I or II under ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of s. 961.41 occurs.
3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of s. 961.41 is guilty under this paragraph.
(b) By administering or assisting in administering a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
History: 1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109.
Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan, 44 Wis. 2d 68 (1969); State v. Weso, 60 Wis. 2d 404 (1973).
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt, 21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons, 164 Wis. 2d 506, 476 N.W.2d 283 (Ct. App. 1991).
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), 98-2171.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for human life. State v. Geske, 2012 WI App 15, 339 Wis. 2d 170, 810 N.W.2d 226, 10-2808.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.03 Felony murder.
Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.
History: 1987 a. 399; 2001 a. 109; 2005 a. 313.
Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson, 5 Wis. 2d 595, 93 N.W.2d 355 (1958). [Bill 191-S]
To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase "while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994), State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994) and State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).
Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.
Oimen affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.04 Abortion.
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
(a) Intentionally destroys the life of an unborn quick child; or
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
(5) This section does not apply to a therapeutic abortion which:
(a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
(6) In this section "unborn child" means a human being from the time of conception until it is born alive.
History: 2001 a. 109; 2011 a. 217.
Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).
Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe v. Wade. State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113 (1973).
The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9 (1975).
The viability of an unborn child is discussed. Colautti v. Franklin, 439 U.S. 379 (1979).
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297 (1980).
Abortion issues are discussed. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Simopoulas v. Virginia, 462 U.S. 506 (1983).
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).
Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970).
When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).
State regulation of abortion. 1970 WLR 933.
940.05 Second-degree intentional homicide.
(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
(2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.
(3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.
History: 1987 a. 399; 1997 a. 295.
Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.06 Second-degree reckless homicide.
(1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]
Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.07 Homicide resulting from negligent control of vicious animal.
Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class G felony.
History: 1977 c. 173; 2001 a. 109.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
(1) Except as provided in sub. (3), whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
History: 1977 c. 173; 1985 a. 293; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.09 Homicide by intoxicated use of vehicle or firearm.
(1) Any person who does any of the following may be penalized as provided in sub. (1c):
(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(1c)
(a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony.
(b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2).
(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.
(1g) Any person who does any of the following is guilty of a Class D felony:
(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
(1m)
(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); any combination of sub. (1) (c), (cm), or (e); any combination of sub. (1g) (a), (am), or (b) or; any combination of sub. (1g) (c), (cm), or (d) for acts arising out of the same incident or occurrence.
(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.
(2)
(a) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e) or (1g) (b) or (d).
(b) In any action under sub. (1) (am) or (cm) or (1g) (am) or (cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.
(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.
History: 1977 c. 173; 1981 c. 20, 184, 314, 391; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 32, 277; 1993 a. 317; 1995 a. 425, 436; 1997 a. 237, 295, 338; 1999 a. 32, 109; 2001 a. 16, 109; 2003 a. 30, 97; 2009 a. 100.
NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).
Each death caused by an intoxicated operator's negligence is chargeable as a separate offense. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).
Because driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver's intoxication and the victim's death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985). Affirmed. State v. Fonte, 2005 WI 77, 281 Wis. 2d 654, 698 N.W.2d 594, 03-2097.
The definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).
Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 Wis. 2d 432, 538 N.W.2d 821 (Ct. App. 1995), 94-2187.
The defense under sub. (2) does not require an intervening cause; a victim's conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim's negligence in relation to causation. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.
Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is prospectively abrogated. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Defendant's conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1399.
This statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (W. D. Wis. 1986).
Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.
940.10 Homicide by negligent operation of vehicle.
(1) Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a vehicle is guilty of a Class G felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988 Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]
A motorist was properly convicted under this section for running a red light at 50 m.p.h., even though the speed limit was 55 m.p.h. State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).
The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
A corporation may be subject to criminal liability under this section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc. 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.
It is not a requirement for finding criminal negligence that the actor be specifically warned that his or her conduct may result in harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999), 98-2239.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.11 Mutilating or hiding a corpse.
(1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class F felony.
(2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime or notwithstanding s. 49.141 (7), 49.49 (1), or 49.795 with intent to collect benefits under one of those sections, is guilty of a Class G felony.
(3) A person may not be subject to prosecution under both this section and s. 946.47 or under both this section and s. 948.23 (2) for his or her acts regarding the same corpse.
History: 1991 a. 205; 2001 a. 109; 2011 a. 268.
Evidence that the defendant dragged a corpse behind a locked gate into a restricted, secluded wildlife area, then rolled the corpse into water at the bottom of a ditch was sufficient for a jury to conclude that the defendant hid a corpse in violation of this section. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.
940.12 Assisting suicide.
Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony.
History: 1977 c. 173; 2001 a. 109.
940.13 Abortion exception.
No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
History: 1985 a. 56.
940.15 Abortion.
(1) In this section, "viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.
(2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class I felony.
(3) Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.
(4) Any abortion performed under sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.
(5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.
(6) Any physician who intentionally performs an abortion under sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class I felony.
(7) Subsections (2) to (6) and s. 939.05, 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.
History: 1985 a. 56; 2001 a. 109.
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).
940.16 Partial-birth abortion.
(1) In this section:
(a) "Child" means a human being from the time of fertilization until it is completely delivered from a pregnant woman.
(b) "Partial-birth abortion" means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.
(2) Except as provided in sub. (3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.
(3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.
History: 1997 a. 219.
A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 949, 147 L. Ed. 2d 743 (2000).
Enforcement of this section is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).
SUBCHAPTER II
BODILY SECURITY
940.19 Battery; substantial battery; aggravated battery.
(1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.
(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.
(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.
(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.
(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:
(a) If the person harmed is 62 years of age or older; or
(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.
History: 1977 c. 173; 1979 c. 111, 113; 1987 a. 399; 1993 a. 441, 483; 2001 a. 109.
Under the "elements only" test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).
"Physical disability" is discussed. State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988).
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).
The act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999), 98-1811.
Section 941.20 (1), 1st-degree recklessly endangering safety, is not a lesser included offense of sub. (5), aggravated battery. State v. Dibble, 2002 WI App 219, 257 Wis. 2d. 274, 650 N.W.2d 908, 02-0538.
940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.
(1) Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class A misdemeanor.
(2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class I felony.
(4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class H felony.
(5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class E felony.
(6) Whoever intentionally causes bodily harm to an unborn child by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.
History: 1997 a. 295; 2001 a. 109.
940.20 Battery: special circumstances.
(1) Battery by prisoners. Any prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally causes bodily harm or a soft tissue injury, as defined in s. 946.41 (2) (c), to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.
(1g) Battery by certain committed persons. Any person placed in a facility under s. 980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.
(1m) Battery by persons subject to certain injunctions.
(a) Any person who is subject to an injunction under s. 813.12 or a tribal injunction filed under s. 806.247 (3) and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
(b) Any person who is subject to an injunction under s. 813.125 and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
(2) Battery to law enforcement officers, fire fighters, and commission wardens. Whoever intentionally causes bodily harm to a law enforcement officer or fire fighter, as those terms are defined in s. 102.475 (8) (b) and (c), or to a commission warden, acting in an official capacity and the person knows or has reason to know that the victim is a law enforcement officer, fire fighter, or commission warden, by an act done without the consent of the person so injured, is guilty of a Class H felony.
(2m) Battery to probation, extended supervision and parole agents and aftercare agents.
(a) In this subsection:
1. "Aftercare agent" means any person authorized by the department of corrections to exercise control over a juvenile on aftercare.
2. "Probation, extended supervision and parole agent" means any person authorized by the department of corrections to exercise control over a probationer, parolee or person on extended supervision.
(b) Whoever intentionally causes bodily harm to a probation, extended supervision and parole agent or an aftercare agent, acting in an official capacity and the person knows or has reason to know that the victim is a probation, extended supervision and parole agent or an aftercare agent, by an act done without the consent of the person so injured, is guilty of a Class H felony.
(3) Battery to jurors. Whoever intentionally causes bodily harm to a person who he or she knows or has reason to know is or was a grand or petit juror, and by reason of any verdict or indictment assented to by the person, without the consent of the person injured, is guilty of a Class H felony.
(4) Battery to public officers. Whoever intentionally causes bodily harm to a public officer in order to influence the action of such officer or as a result of any action taken within an official capacity, without the consent of the person injured, is guilty of a Class I felony.
(5) Battery to technical college district or school district officers and employees.
(a) In this subsection:
1. "School district" has the meaning given in s. 115.01 (3).
2. "Technical college district" means a district established under ch. 38.
(b) Whoever intentionally causes bodily harm to a technical college district or school district officer or employee acting in that capacity, and the person knows or has reason to know that the victim is a technical college district or school district officer or employee, without the consent of the person so injured, is guilty of a Class I felony.
(6) Battery to public transit vehicle operator, driver or passenger.
(a) In this subsection, "public transit vehicle" means any vehicle used for providing transportation service to the general public.
(b) Whoever intentionally causes bodily harm to another under any of the following circumstances is guilty of a Class I felony:
1. The harm occurs while the victim is an operator, a driver or a passenger of, in or on a public transit vehicle.
2. The harm occurs after the offender forces or directs the victim to leave a public transit vehicle.
3. The harm occurs as the offender prevents, or attempts to prevent, the victim from gaining lawful access to a public transit vehicle.
(7) Battery to emergency medical care providers.
(a) In this subsection:
1e. "Ambulance" has the meaning given in s. 256.01 (1).
1g. "Emergency department" means a room or area in a hospital, as defined in s. 50.33 (2), that is primarily used to provide emergency care, diagnosis or radiological treatment.
2. "Emergency department worker" means any of the following:
a. An employee of a hospital who works in an emergency department.
b. A health care provider, whether or not employed by a hospital, who works in an emergency department.
2g. "Emergency medical technician" has the meaning given in s. 256.01 (5).
2m. "First responder" has the meaning given in s. 256.01 (9).
3. "Health care provider" means any person who is licensed, registered, permitted or certified by the department of health services or the department of safety and professional services to provide health care services in this state.
(b) Whoever intentionally causes bodily harm to an emergency department worker, an emergency medical technician, a first responder or an ambulance driver who is acting in an official capacity and who the person knows or has reason to know is an emergency department worker, an emergency medical technician, a first responder or an ambulance driver, by an act done without the consent of the person so injured, is guilty of a Class H felony.
History: 1977 c. 173; 1979 c. 30, 113, 221; 1981 c. 118 s. 9; 1983 a. 189 s. 329 (4); 1989 a. 336; 1993 a. 54, 164, 491; 1995 a. 27 s. 9126 (19); 1995 a. 77, 145, 225, 343; 1997 a. 35, 143, 283; 1999 a. 85; 2001 a. 109; 2005 a. 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 27, 130; 2011 a. 32, 74.
Resisting or obstructing an officer, s. 946.41, is not a lesser-included offense of battery to a peace officer. State v. Zdiarstek, 53 Wis. 2d 776, 193 N.W.2d 833 (1972).
A county deputy sheriff was not acting in an official capacity under s. 940.205 [now s. 940.20 (2)] when making an arrest outside of his county of employment. State v. Barrett, 96 Wis. 2d 174, 291 N.W.2d 498 (1980).
A prisoner is "confined to a state prison" under sub. (1) when kept under guard at a hospital for treatment. State v. Cummings, 153 Wis. 2d 603, 451 N.W.2d 463 (Ct. App. 1989).
A defendant's commitment to a mental institution upon a finding of not guilty by reason of mental disease or defect rendered him a "prisoner" under sub. (1). State v. Skamfer, 176 Wis. 2d 304, N.W.2d (Ct. App. 1993).
There is no requirement under sub. (2) that the officer/victim be acting lawfully when he or she is hit by a defendant. When an officer was assaulted when doing something within the scope of what the officer was employed to do, the lawfulness of the officer's presence in the house where the defendant hit him was not material to a violation of sub. (2). State v. Haywood, 2009 WI App 178, 322 Wis. 2d 691, 777 N.W.2d 921, 09-0030.
940.201 Battery or threat to witnesses.
(1) In this section:
(a) "Family member" means a spouse, child, stepchild, foster child, parent, sibling, or grandchild.
(b) "Witness" has the meaning given in s. 940.41 (3).
(2) Whoever does any of the following is guilty of a Class H felony:
(a) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is or was a witness by reason of the person having attended or testified as a witness and without the consent of the person harmed or threatened.
(b) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is a family member of a witness or a person sharing a common domicile with a witness by reason of the witness having attended or testified as a witness and without the consent of the person harmed or threatened.
History: 1997 a. 143; 2001 a. 109; 2009 a. 28.
Battery to a prospective witness is prohibited by s. 940.206 [now s. 940.201]. McLeod v. State, 85 Wis. 2d 787, 271 N.W.2d 157 (Ct. App. 1978).
940.203 Battery or threat to judge.
(1) In this section:
(a) "Family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(b) "Judge" means a supreme court justice, court of appeals judge, circuit court judge, municipal judge, temporary or permanent reserve, judge or circuit, supplemental, or municipal court commissioner.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any judge under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a judge or a member of his or her family.
(b) The judge is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1993 a. 50, 446; 2001 a. 61, 109; 2009 a. 28.
Only a "true threat" is punishable under this section. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. Jury instructions must contain a clear definition of a true threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.
940.205 Battery or threat to department of revenue employee.
(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of revenue official, employee or agent under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of revenue official, employee or agent or a member of his or her family.
(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1985 a. 29; 1993 a. 446; 2001 a. 109; 2009 a. 28.
940.207 Battery or threat to department of safety and professional services or department of workforce development employee.
(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of safety and professional services or department of workforce development official, employee or agent under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of safety and professional services or department of workforce development official, employee or agent or a member of his or her family.
(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1993 a. 86, 446; 1995 a. 27 ss. 7227 to 7229, 9116 (5), 9130 (4); 1997 a. 3; 2001 a. 109; 2009 a. 28; 2011 a. 32.
940.208 Battery to certain employees of counties, cities, villages, or towns.
Whoever intentionally causes bodily harm to an employee of a county, city, village, or town under all of the following circumstances is guilty of a Class I felony:
(1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town.
(2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity.
(2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement.
(3) There is no consent by the victim.
History: 2007 a. 193.
940.21 Mayhem.
Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.
History: 1977 c. 173; 2001 a. 109.
The forehead qualifies as an "other bodily member" under s. 940.21 because "other bodily member" encompasses all bodily parts. State v. Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W.2d 447, 06-0499.
Failure to instruct a jury that great bodily harm is an essential element of mayhem was reversible error. Cole v. Young, 817 F. 2d 412 (1987).
940.22 Sexual exploitation by therapist; duty to report.
(1) Definitions. In this section:
(a) "Department" means the department of safety and professional services.
(b) "Physician" has the meaning designated in s. 448.01 (5).
(c) "Psychologist" means a person who practices psychology, as described in s. 455.01 (5).
(d) "Psychotherapy" has the meaning designated in s. 455.01 (6).
(e) "Record" means any document relating to the investigation, assessment and disposition of a report under this section.
(f) "Reporter" means a therapist who reports suspected sexual contact between his or her patient or client and another therapist.
(g) "Sexual contact" has the meaning designated in s. 940.225 (5) (b).
(h) "Subject" means the therapist named in a report or record as being suspected of having sexual contact with a patient or client or who has been determined to have engaged in sexual contact with a patient or client.
(i) "Therapist" means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.
(2) Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.
(3) Reports of sexual contact.
(a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient's or client's identity will be included in the report.
(b) Within 30 days after a patient or client consents under par. (a) to a report, the therapist shall report the suspicion to:
1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board or affiliated credentialing board.
2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1. is not applicable.
(c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of sub. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.
(d) Whoever intentionally violates this subsection by failing to report as required under pars. (a) to (c) is guilty of a Class A misdemeanor.
(4) Confidentiality of reports and records.
(a) All reports and records made from reports under sub. (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim. The report of information under sub. (3) and the disclosure of a report or record under this subsection does not violate any person's responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.
(b)
1. The department, a district attorney, an examining board or an affiliated credentialing board within this state may exchange information from a report or record on the same subject.
2. If the department receives 2 or more reports under sub. (3) regarding the same subject, the department shall communicate information from the reports to the appropriate district attorneys and may inform the applicable reporters that another report has been received regarding the same subject.
3. If a district attorney receives 2 or more reports under sub. (3) regarding the same subject, the district attorney may inform the applicable reporters that another report has been received regarding the same subject.
4. After reporters receive the information under subd. 2. or 3., they may inform the applicable patients or clients that another report was received regarding the same subject.
(c) A person to whom a report or record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this section.
(d) Whoever intentionally violates this subsection, or permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, is guilty of a Class A misdemeanor.
(5) Immunity from liability. Any person or institution participating in good faith in the making of a report or record under this section is immune from any civil or criminal liability that results by reason of the action. For the purpose of any civil or criminal action or proceeding, any person reporting under this section is presumed to be acting in good faith. The immunity provided under this subsection does not apply to liability resulting from sexual contact by a therapist with a patient or client.
History: 1983 a. 434; 1985 a. 275; 1987 a. 352, 380; 1991 a. 160; 1993 a. 107; 1995 a. 300; 2001 a. 109; 2011 a. 32.
This section applies to persons engaged in professional therapist-patient relationships. A teacher who conducts informal counseling is not engaged as a professional therapist. State v. Ambrose, 196 Wis. 2d 768, 540 N.W.2d 208 (Ct. App. 1995), 94-3391.
Even though the alleged victim feigned her role as a patient at the last counseling session she attended, attending as a police agent for the purpose of recording the session to obtain evidence, any acts that occurred during the session were during an ongoing therapist-patient relationship as those terms are used in this section. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.
The totality of the circumstances determine the existence of an ongoing therapist-patient relationship under sub. (2). A defendant's state of mind, a secret unilateral action of a patient, and explicit remarks of one party to the other regarding the relationship may be factors, but are not necessarily dispositive. Other factors may be: 1) how much time has gone by since the last therapy session; 2) how close together the therapy sessions had been to each other; 3) the age of the patient; 4) the particular vulnerabilities experienced by the patient as a result of mental health issues; and 5) the ethical obligations of the therapist's profession. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.
It was constitutional error to give a pattern jury instruction that never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether the defendant clergy member performed or purported to perform psychotherapy. State v. Draughon, 2005 WI App 162, 285 Wis. 2d 633, 702 N.W.2d 412, 04-1637.
940.225 Sexual assault.
(1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.
(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.
(c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
(b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.
(c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.
(cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.
(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.
(f) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.
(g) Is an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.
(h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
(i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
(j) Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c), and has sexual contact or sexual intercourse with a client of the entity.
(3) Third degree sexual assault. Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony. Whoever has sexual contact in the manner described in sub. (5) (b) 2. or 3. with a person without the consent of that person is guilty of a Class G felony.
(3m) Fourth degree sexual assault. Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.
(4) Consent. "Consent", as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d), (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):
(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.
(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
(5) Definitions. In this section:
(abm) "Client" means an individual who receives direct care or treatment services from an entity.
(acm) "Correctional institution" means a jail or correctional facility, as defined in s. 961.01 (12m), a juvenile correctional facility, as defined in s. 938.02 (10p), or a juvenile detention facility, as defined in s. 938.02 (10r).
(ad) "Correctional staff member" means an individual who works at a correctional institution, including a volunteer.
(ag) "Inpatient facility" has the meaning designated in s. 51.01 (10).
(ai) "Intoxicant" means any alcohol beverage, controlled substance, controlled substance analog, or other drug or any combination thereof.
(ak) "Nonclient resident" means an individual who resides, or is expected to reside, at an entity, who is not a client of the entity, and who has, or is expected to have, regular, direct contact with the clients of the entity.
(am) "Patient" means any person who does any of the following:
1. Receives care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program or from a person providing services under contract with a facility or program.
2. Arrives at a facility or program under s. 940.295 (2) (b), (c), (h) or (k) for the purpose of receiving care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k), or from a person providing services under contract with a facility or program under s. 940.295 (2) (b), (c), (h) or (k).
(ar) "Resident" means any person who resides in a facility under s. 940.295 (2) (b), (c), (h) or (k).
(b) "Sexual contact" means any of the following:
1. Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19 (1):
a. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.
b. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.
2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
3. For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.
(c) "Sexual intercourse" includes the meaning assigned under s. 939.22 (36) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.
(d) "State treatment facility" has the meaning designated in s. 51.01 (15).
(6) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.
(7) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.
History: 1975 c. 184, 421; 1977 c. 173; 1979 c. 24, 25, 175, 221; 1981 c. 89, 308, 309, 310, 311; 1985 a. 134; 1987 a. 245, 332, 352; 1987 a. 403 ss. 235, 236, 256; 1993 a. 445; 1995 a. 69; 1997 a. 220; 2001 a. 109; 2003 a. 51; 2005 a. 273, 344, 388, 435, 436.
Legislative Council Note, 1981: Presently, [in sub. (5) (a)] the definition of "sexual intercourse" in the sexual assault statute includes any intrusion of any part of a person's body or of any object into the genital or anal opening of another person. This proposal clarifies that the intrusion of the body part or object may be caused by the direct act of the offender (defendant) or may occur as a result of an act by the victim which is done in compliance with instructions of the offender (defendant). [Bill 630-S]
Failure to resist is not consent under sub. (4). State v. Clark, 87 Wis. 2d 804, 275 N.W.2d 715 (1979).
Injury by conduct regardless of life is not a lesser-included crime of first-degree sexual assault. Hagenkord v. State, 94 Wis. 2d 250, 287 N.W.2d 834 (Ct. App. 1979).
Separate acts of sexual intercourse, each different in kind from the others and differently defined in the statutes, constitute separate chargeable offenses. State v. Eisch, 96 Wis. 2d 25, 291 N.W.2d 800 (1980). See also State v. Ziegler, 2012 WI 73, ___ Wis. 2d ___, 816 N.W.2d 238, 10-2514.
The trial court did not err in denying the accused's motions to compel psychiatric examination of the victim and for discovery of the victim's past addresses. State v. Lederer, 99 Wis. 2d 430, 299 N.W.2d 457 (Ct. App. 1980).
The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983).
A jury instruction that touching the "vaginal area" constituted sexual contact was correct. State v. Morse, 126 Wis. 2d 1, 374 N.W.2d 388 (Ct. App. 1985).
"Unconscious" as used in sub. (2) (d) is a loss of awareness that may be caused by sleep. State v. Curtis, 144 Wis. 2d 691, 424 N.W.2d 719 (Ct. App. 1988).
The probability of exclusion and paternity are generally admissible in a sexual assault action in which the assault allegedly resulted in the birth of a child, but the probability of paternity is not generally admissible. HLA and red blood cell test results showing the paternity index and probability of exclusion were admissible statistics. State v. Hartman, 145 Wis. 2d 1, 426 N.W.2d 320 (1988).
Attempted fourth-degree sexual assault is not an offense under Wisconsin law. State v. Cvorovic, 158 Wis. 2d 630, 462 N.W.2d 897 (Ct. App. 1990).
The "use or threat of force or violence" under sub. (2) (a) does not require that the force be directed toward compelling the victim's submission, but includes forcible contact or the force used as the means of making contact. State v. Bonds, 165 Wis. 2d 27, 477 N.W.2d 265 (1991).
A dog may be a dangerous weapon under sub. (1) (b). State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Ct. App. 1992).
Convictions under both subs. (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992).
A defendant's lack of intent to make a victim believe that he was armed was irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed was reasonable, that is enough. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).
Sub. (2) (d) is not unconstitutionally vague. Expert evidence regarding sleep based solely on a hypothetical situation similar, but not identical, to the facts of the case was inadmissible. State v. Pittman, 174 Wis. 2d 255, 496 N.W.2d 74 (1993).
Convictions under both sub. (2) (a) and (e) did not violate double jeopardy. State v. Selmon, 175 Wis. 2d 155, 877 N.W.2d 498 (Ct. App. 1993).
"Great bodily harm" is a distinct element under sub. (1) (a) and need not be caused by the sexual act. State v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).
Intent is not an element of sub. (2) (a); lack of an intent element does not render this provision constitutionally invalid. State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993).
A previous use of force, and the victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995).
Violation of any of the provisions of this section does not immunize the defendant from violating the same or another provision in the course of sexual misconduct. Two acts of vaginal intercourse are sufficiently different in fact to justify separate charges under sub. (1) (d). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995).
Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 Wis. 2d 84, 572 N.W.2d 496 (Ct. App. 1997), 96-2961.
For a guilty plea to a sexual assault charge to be knowingly made, a defendant need not be informed of the potential of being required to register as a convicted sex offender under s. 301.45 or that failure to register could result in imprisonment, as the commitment is a collateral, not direct, consequence of the plea. State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, 98-2196.
Sub. (2) (g) was not applicable to an employee of a federal VA hospital as it is not a facility under s. 940.295 (2). The definition of inpatient care facility in s. 940.295 incorporates s. 51.35 (1), which requires that all of the specifically enumerated facilities be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.
Expert testimony is not required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under sub. (2) (c). State v. Perkins, 2004 WI App 213, 277 Wis. 2d 243, 689 N.W.2d 684, 03-3296.
The statutory scheme of the sexual assault law does not require proof of stimulation of the clitoris or vulva for finding cunnilingus under sub. (5) (c). The notion of stimulation of the victim offends the principles underpinning the sexual assault law. State v. Harvey, 2006 WI App 26, 289 Wis. 2d 222, 710 N.W.2d 482, 05-0103.
Sub. (2) (h) does not extend to a sheriff's deputy, who was assigned to work as a bailiff in the county courthouse. State v. Terrell, 2006 WI App 166, 295 Wis. 2d 619, 721 N.W.2d 527, 05-1499.
This section criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
The plain language of sub. (3) requires the state to prove beyond a reasonable doubt that the defendants attempted to have sexual intercourse with the victim without the victim's words or overt actions indicating a freely given agreement to have sexual intercourse. The state does not have to prove that the victim withheld consent. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
One who has sexual contact or intercourse with a dead person cannot be charged with 1st- or 2nd-degree sexual assault, because the facts cannot correspond with the elements of those two charges. However, the possibility that the facts of a particular case will not come within the elements necessary to establish every crime listed in the statute does not mean the statute is absurd, but rather that the evidence necessary for all potential crimes under this section does not exist in all cases. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
Sub. (7) does not limit sub. (3) to only those circumstances in which the perpetrator kills and has sexual intercourse with the victim in a series of events. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
Conviction on 2 counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel, 478 F. Supp. 752 (1979).
A conviction for attempted 1st-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F. Supp. 1264 (1979).
940.23 Reckless injury.
(1) First-degree reckless injury.
(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.
(b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class D felony.
(2) Second-degree reckless injury.
(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.
(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class F felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, 98-3175.
Utter disregard requires more than a high degree of negligence or recklessness. To evince utter disregard, the mind must not only disregard the safety of another but be devoid of regard for the life of another. A person acting with utter disregard must possess a state of mind that has no regard for the moral or social duties of a human being. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
In evaluating whether there is sufficient proof of utter disregard for human life, factors to be considered include the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim's injuries, and the degree of force that was required to cause those injuries. Also considered are the type of victim and the victim's age, vulnerability, fragility, and relationship to the perpetrator, as well as whether the totality of the circumstances showed any regard for the victim's life. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
Pointing a loaded gun at another is not conduct evincing utter disregard if it is otherwise defensible, even if it is not privileged. When conduct was to protect the defendant and his friends, although not found to be self defense, the conduct is inconsistent with conduct evincing utter disregard. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
Jensen does not create a rule assigning less weight to a defendant's after-the-fact conduct. When evaluating whether a defendant's conduct reflects utter disregard for human life, the fact-finder should examine the totality of the circumstances surrounding the crime, considering all relevant conduct before, during, and after a crime, giving each the weight it deems appropriate under the circumstances. State v. Burris, 2011 WI 32, 333 Wis. 2d 87, 797 N.W.2d 430, 09-0956.
940.235 Strangulation and suffocation.
(1) Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony.
(2) Whoever violates sub. (1) is guilty of a Class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1.
History: 2007 a. 127.
940.24 Injury by negligent handling of dangerous weapon, explosives or fire.
(1) Except as provided in sub. (3), whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
(2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
History: 1977 c. 173; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]
Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh, 226 Wis. 2d 718, 595 N.W.2d 330 (1999), 97-0495.
940.25 Injury by intoxicated use of a vehicle.
(1) Any person who does any of the following is guilty of a Class F felony:
(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.
(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.
(cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.
(1m)
(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); or any combination of sub. (1) (c), (cm), or (e) for acts arising out of the same incident or occurrence.
(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. or 3., under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require.
(2)
(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).
(b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.
History: 1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100.
NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983).
The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (1990).
The offense under sub. (1) (am) has 2 elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in his or her blood; and 2) the defendant's operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieves the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.
The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that he or she is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.
"Materially impaired" as used in the definition of "under the influence of an intoxicant" in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.
940.285 Abuse of individuals at risk.
(1) Definitions. In this section:
(ag) "Abuse" means any of the following:
1. Physical abuse, as defined in s. 46.90 (1) (fg).
2. Emotional abuse, as defined in s. 46.90 (1) (cm).
3. Sexual abuse, as defined in s. 46.90 (1) (gd).
4. Treatment without consent, as defined in s. 46.90 (1) (h).
5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).
6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.
(am) "Adult at risk" has the meaning given in s. 55.01 (1e).
(dc) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(dg) "Individual at risk" means an elder adult at risk or an adult at risk.
(dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.
(2) Abuse; penalties.
(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):
1. Intentionally subjects an individual at risk to abuse.
2. Recklessly subjects an individual at risk to abuse.
3. Negligently subjects an individual at risk to abuse.
(b)
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.
1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.
940.29 Abuse of residents of penal facilities.
Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class I felony.
History: 1975 c. 119; 1975 c. 413 s. 18; 1977 c. 173; 1979 c. 124; 1981 c. 20; 1987 a. 161 ss. 12, 13m; 1987 a. 332; 1993 a. 445; 2001 a. 109.
940.291 Law enforcement officer; failure to render aid.
(1) Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.
(2) Any peace officer who knowingly permits another person to violate sub. (1), while acting in the course of employment or under the authority of employment, is guilty of a Class A misdemeanor.
History: 1983 a. 27.
940.295 Abuse and neglect of patients and residents.
(1) Definitions. In this section:
(ad) "Abuse" has the meaning given in s. 46.90 (1) (a).
(ag) "Adult at risk" has the meaning given in s. 55.01 (1e).
(am) "Adult family home" has the meaning given in s. 50.01 (1).
(b) "Bodily harm" has the meaning given in s. 46.90 (1) (aj).
(c) "Community-based residential facility" has the meaning given in s. 50.01 (1g).
(cr) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(d) "Foster home" has the meaning given in s. 48.02 (6).
(e) "Great bodily harm" has the meaning given in s. 939.22 (14).
(f) "Group home" has the meaning given in s. 48.02 (7).
(g) "Home health agency" has the meaning given in s. 50.49 (1) (a).
(h) "Hospice" has the meaning given in s. 50.90 (1).
(hr) "Individual at risk" means an elder adult at risk or an adult at risk.
(i) "Inpatient health care facility" has the meaning given in s. 50.135 (1).
(k) "Neglect" has the meaning given in s. 46.90 (1) (f).
(km) "Negligence" means an act, omission, or course of conduct that the actor should realize creates a substantial and unreasonable risk of death, great bodily harm, or bodily harm to another person.
(L) "Patient" means any person who does any of the following:
1. Receives care or treatment from a facility or program under sub. (2), from an employee of a facility or program or from a person providing services under contract with a facility or program.
2. Arrives at a facility or program under sub. (2) for the purpose of receiving care or treatment from a facility or program under sub. (2), from an employee of a facility or program under sub. (2), or from a person providing services under contract with a facility or program under sub. (2).
(o) "Recklessly" means conduct that creates a situation of unreasonable risk of death or harm to and demonstrates a conscious disregard for the safety of the patient or resident.
(p) "Resident" means any person who resides in a facility under sub. (2).
(r) "State treatment facility" has the meaning given in s. 51.01 (15).
(s) "Treatment facility" has the meaning given in s. 51.01 (19).
(2) Applicability. This section applies to any of the following types of facilities or programs:
(a) An adult day care center.
(b) An adult family home.
(c) A community-based residential facility.
(d) A foster home.
(e) A group home.
(f) A home health agency.
(g) A hospice.
(h) An inpatient health care facility.
(i) A program under s. 51.42 (2).
(j) The Wisconsin Educational Services Program for the Deaf and Hard of Hearing under s. 115.52 and the Wisconsin Center for the Blind and Visually Impaired under s. 115.525.
(k) A state treatment facility.
(L) A treatment facility.
(m) A residential care center for children and youth operated by a child welfare agency licensed under s. 48.60 or an institution operated by a public agency for the care of neglected, dependent, or delinquent children.
(n) Any other health facility or care-related facility or home, whether publicly or privately owned.
(3) Abuse and neglect; penalties.
(a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. (b):
1. Intentionally abuses or intentionally neglects a patient or resident.
2. Recklessly abuses or recklessly neglects a patient or resident.
3. Except as provided in par. (am), abuses, with negligence, or neglects a patient or a resident.
(am) Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.
(b)
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death to an individual at risk is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death to an individual at risk is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm to an individual at risk is guilty of a Class E felony.
1r. Except as provided in subd. 1m., any person violating par. (a) 1. under circumstances that cause great bodily harm is guilty of a Class F felony. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
3. Except as provided in subd. 1m., any person violating par. (a) 2. or 3. under circumstances that cause great bodily harm is guilty of a Class H felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1993 a. 445; 1995 a. 225; 1997 a. 180; 1999 a. 9; 2001 a. 57, 59, 109; 2005 a. 264, 388; 2007 a. 45; 2011 a. 2.
Evidence that residents suffered weight loss and bedsores was sufficient to support the conviction of a nursing home administrator for abuse of residents. State v. Serebin, 119 Wis. 2d 837, 350 N.W.2d 65 (1984).
Section 50.135 (1), as incorporated in sub. (1) (i), requires that all of the specifically enumerated facilities must be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state and thus not within the definition of inpatient health care facility. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.
Seeking Justice in Death's Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.
A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 2004.
940.30 False imprisonment.
Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony.
History: 1977 c. 173; 2001 a. 109.
False imprisonment is not a lesser included offense of the crime of kidnapping. Geitner v. State, 59 Wis. 2d 128, 207 N.W.2d 837.
A victim need only take advantage of reasonable means of escape; a victim need not expose himself or herself or others to danger in attempt to escape. State v. C.V.C. 153 Wis. 2d 145, 450 N.W.2d 463 (Ct. App. 1989).
False imprisonment, or confinement, is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.
In the context of false imprisonment, consent means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. Under the circumstances of the case, even if the jury did not believe that the victim said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint. State v. Long, 2009 WI 36, 317 Wis. 2d 92, 765 N.W.2d 557, 07-2307.
940.302 Human trafficking.
(1) In this section:
(a) "Commercial sex act" means sexual contact for which anything of value is given to, promised, or received, directly or indirectly, by any person.
(b) "Debt bondage" means the condition of a debtor arising from the debtor's pledge of services as a security for debt if the reasonable value of those services is not applied toward repaying the debt or if the length and nature of the services are not defined.
(c) "Services" means activities performed by one individual at the request, under the supervision, or for the benefit of another person.
(d) "Trafficking" means recruiting, enticing, harboring, transporting, providing, or obtaining, or attempting to recruit, entice, harbor, transport, provide, or obtain, an individual without consent of the individual.
(2)
(a) Except as provided in s. 948.051, whoever knowingly engages in trafficking is guilty of a Class D felony if all of the following apply:
1. One of the following applies:
a. The trafficking is for the purposes of labor or services.
b. The trafficking is for the purposes of a commercial sex act.
2. The trafficking is done by any of the following:
a. Causing or threatening to cause bodily harm to any individual.
b. Causing or threatening to cause financial harm to any individual.
c. Restraining or threatening to restrain any individual.
d. Violating or threatening to violate a law.
e. Destroying, concealing, removing, confiscating, or possessing, or threatening to destroy, conceal, remove, confiscate, or possess, any actual or purported passport or any other actual or purported official identification document of any individual.
f. Extortion.
g. Fraud or deception.
h. Debt bondage.
i. Controlling any individual's access to an addictive controlled substance.
j. Using any scheme or pattern to cause an individual to believe that any individual would suffer bodily harm, financial harm, restraint, or other harm.
(b) Whoever benefits in any manner from a violation of par. (a) is guilty of a Class D felony if the person knows that the benefits come from an act described in par. (a).
(3) Any person who incurs an injury or death as a result of a violation of sub. (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.
History: 2007 a. 116.
Halting Modern Slavery in the Midwest: The Potential of Wisconsin Act 116 to Improve the State and Federal Response to Human Trafficking. Ozalp. 2009 WLR 1391.
940.305 Taking hostages.
(1) Except as provided in sub. (2), whoever by force or threat of imminent force seizes, confines or restrains a person without the person's consent and with the intent to use the person as a hostage in order to influence a person to perform or not to perform some action demanded by the actor is guilty of a Class B felony.
(2) Whoever commits a violation specified under sub. (1) is guilty of a Class C felony if, before the time of the actor's arrest, each person who is held as a hostage is released without bodily harm.
History: 1979 c. 118; 1993 a. 194; 2001 a. 109.
The constitutionality of s. 940.305 is upheld. State v. Bertrand, 162 Wis. 2d 411, 469 N.W.2d 873 (Ct. App. 1991).
940.31 Kidnapping.
(1) Whoever does any of the following is guilty of a Class C felony:
(a) By force or threat of imminent force carries another from one place to another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or
(b) By force or threat of imminent force seizes or confines another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or
(c) By deceit induces another to go from one place to another with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will.
(2)
(a) Except as provided in par. (b), whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class B felony.
(b) Whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class C felony if the victim is released without permanent physical injury prior to the time the first witness is sworn at the trial.
History: 1977 c. 173; 1993 a. 194, 486; 2001 a. 109.
A conviction under sub. (1) (c) does not require proof of express or implied misrepresentations. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).
"Service," as used in this section includes acts done at the command of another and clearly embraces sexual acts performed at the command of another. State v. Clement, 153 Wis. 2d 287, 450 N.W.2d 789 (Ct. App. 1989).
Parental immunity does not extend to an agent acting for the parent. State v. Simplot, 180 Wis. 2d 383, 509 N.W.2d 338 (Ct. App. 1993).
Forced movement of a person from one part of a building to another satisfies the "carries another from one place to another" element of sub. (1) (a). State v. Wagner, 191 Wis. 2d 322, 528 N.W.2d 85 (Ct. App. 1995).
Confinement is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.
Sub. (2) (b) allows for a lesser degree of kidnapping if two additional elements are present: 1) the victim is released prior to the first witness testimony, and 2) there is no permanent physical injury to the victim. Once there is some evidence of the mitigating factor of no permanent injury, the burden is on the state to prove the absence of that factor and a court accepting a guilty plea to a charged kidnapping offense under sub. (2) (a) should ascertain a factual basis for excluding the lesser-related offense under sub. (2) (b). State v. Ravesteijn, 2006 WI App 250, 297 Wis. 2d 663, 727 N.W.2d 53, 05-1955.
940.32 Stalking.
(1) In this section:
(a) "Course of conduct" means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:
1. Maintaining a visual or physical proximity to the victim.
2. Approaching or confronting the victim.
3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.
4. Appearing at the victim's home or contacting the victim's neighbors.
5. Entering property owned, leased, or occupied by the victim.
6. Contacting the victim by telephone or causing the victim's telephone or any other person's telephone to ring repeatedly or continuously, regardless of whether a conversation ensues.
6m. Photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the victim. This subdivision applies regardless of where the act occurs.
7. Sending material by any means to the victim or, for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to a member of the victim's family or household or an employer, coworker, or friend of the victim.
8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.
9. Delivering an object to a member of the victim's family or household or an employer, coworker, or friend of the victim or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim.
10. Causing a person to engage in any of the acts described in subds. 1. to 9.
(am) "Domestic abuse" has the meaning given in s. 813.12 (1) (am).
(ap) "Domestic abuse offense" means an act of domestic abuse that constitutes a crime.
(c) "Labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
(cb) "Member of a family" means a spouse, parent, child, sibling, or any other person who is related by blood or adoption to another.
(cd) "Member of a household" means a person who regularly resides in the household of another or who within the previous 6 months regularly resided in the household of another.
(cg) "Personally identifiable information" has the meaning given in s. 19.62 (5).
(cr) "Record" has the meaning given in s. 19.32 (2).
(d) "Suffer serious emotional distress" means to feel terrified, intimidated, threatened, harassed, or tormented.
(2) Whoever meets all of the following criteria is guilty of a Class I felony:
(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.
(2e) Whoever meets all of the following criteria is guilty of a Class I felony:
(a) After having been convicted of sexual assault under s. 940.225, 948.02, 948.025, or 948.085 or a domestic abuse offense, the actor engages in any of the acts listed in sub. (1) (a) 1. to 10., if the act is directed at the victim of the sexual assault or the domestic abuse offense.
(b) The actor knows or should know that the act will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
(c) The actor's act causes the specific person to suffer serious emotional distress or induces fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.
(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:
(a) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v), or (1x).
(b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.
(c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.
(d) The person violates s. 968.31 (1) or 968.34 (1) in order to facilitate the violation.
(e) The victim is under the age of 18 years at the time of the violation.
(3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:
(a) The act results in bodily harm to the victim or a member of the victim's family or household.
(b) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v) or (1x), the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.
(c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1) (a) 1. to 9.
(3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under sub. (2) (c) or (2e) (c).
(4)
(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:
1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.
2. Assembling peaceably.
3. Peaceful picketing or patrolling.
(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.
(5) This section does not apply to conduct arising out of or in connection with a labor dispute.
(6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.
History: 1993 a. 96, 496; 2001 a. 109; 2003 a. 222, 327; 2005 a. 277.
This section does not violate the right to interstate travel and is not unconstitutionally vague or overbroad. State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), 96-2280.
The actor's "acts" under sub. (2) (c) are not the equivalent of the actor's "course of conduct" under sub. (2) (a). There must be proof that the actor's acts caused fear and not that the course of conduct caused fear. State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998), 97-2185.
A "previous conviction for a violent crime" is a substantive element of the Class H felony stalking offense under sub. (2m) (a), not a penalty enhancer. It was not error to allow the introduction of evidence at trial that the defendant had stipulated to having a previous conviction for a violent crime, nor was it error to instruct the jury to make a finding on that matter. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.
The 7-year time restriction specified in sub. (2m) (b) requires that only the final act charged as part of a course of conduct occur within 7 years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.
Although the acts in this case spanned apparently fewer than 15 minutes, this section specifically provides that stalking may be a series of 2 acts over a short time if the acts show a continuity of purpose. State v. Eichorn, 2010 WI App 70, 325 Wis. 2d 241, 783 N.W.2d 902, 09-1864.
940.34 Duty to aid victim or report crime.
(1)
(a) Whoever violates sub. (2) (a) is guilty of a Class C misdemeanor.
(b) Whoever violates sub. (2) (b) is guilty of a Class C misdemeanor and is subject to discipline under s. 440.26 (6).
(c) Whoever violates sub. (2) (c) is guilty of a Class C misdemeanor.
(2)
(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.
(b) Any person licensed as a private detective or granted a private security permit under s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
(c)
1. In this paragraph, "unlicensed private security person" means a private security person, as defined in s. 440.26 (1m) (h), who is exempt from the permit and licensure requirements of s. 440.26.
2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
(d) A person need not comply with this subsection if any of the following apply:
1. Compliance would place him or her in danger.
2. Compliance would interfere with duties the person owes to others.
3. In the circumstances described under par. (a), assistance is being summoned or provided by others.
4. In the circumstances described under par. (b) or (c), the crime or alleged crime has been reported to an appropriate law enforcement agency by others.
(2m) If a person is subject to sub. (2) (b) or (c), the person need not comply with sub. (2) (b) or (c) until after he or she has summoned or provided assistance to a victim.
(3) If a person renders emergency care for a victim, s. 895.48 (1) applies. Any person who provides other reasonable assistance under this section is immune from civil liability for his or her acts or omissions in providing the assistance. This immunity does not apply if the person receives or expects to receive compensation for providing the assistance.
History: 1983 a. 198; 1985 a. 152, 332; 1987 a. 14; 1995 a. 461.
This section is not unconstitutional. For a conviction, it must be proved that an accused believed a crime was being committed and that a victim was exposed to bodily harm. The reporting required does not require the defendant to incriminate himself or herself as the statute contains no mandate that an individual identify himself or herself. Whether a defendant fits within an exception under sub. (2) (d) is a matter of affirmative defense. State v. LaPlante, 186 Wis. 2d 427, 521 N.W.2d 448 (Ct. App. 1994).
940.41 Definitions.
In ss. 940.42 to 940.49:
(1g) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
(1r) "Malice" or "maliciously" means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.
(2) "Victim" means any natural person against whom any crime as defined in s. 939.12 or under the laws of the United States is being or has been perpetrated or attempted in this state.
(3) "Witness" means any natural person who has been or is expected to be summoned to testify; who by reason of having relevant information is subject to call or likely to be called as a witness, whether or not any action or proceeding has as yet been commenced; whose declaration under oath is received as evidence for any purpose; who has provided information concerning any crime to any peace officer or prosecutor; who has provided information concerning a crime to any employee or agent of a law enforcement agency using a crime reporting telephone hotline or other telephone number provided by the law enforcement agency; or who has been served with a subpoena issued under s. 885.01 or under the authority of any court of this state or of the United States.
History: 1981 c. 118; 1993 a. 128.
940.42 Intimidation of witnesses; misdemeanor.
Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.
History: 1981 c. 118.
When a mother and child were to testify against the defendant and the defendant sent letters to the mother urging that she and the child not testify, regardless of whether the letters were addressed to the child or the child was aware of the letter's contents, the defendant attempted to dissuade the child through her mother. As the mother of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with the child, and to influence whether the child cooperated with the court proceedings, there was sufficient evidence to convict. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.
This section supports charging a person with a separate count for each letter sent, and each other act performed, for the purpose of attempting to dissuade any witness from attending or giving testimony at a court proceeding or trial. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.
940.43 Intimidation of witnesses; felony.
Whoever violates s. 940.42 under any of the following circumstances is guilty of a Class G felony:
(1) Where the act is accompanied by force or violence or attempted force or violence upon the witness, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the witness, or any person sharing a common domicile with the witness.
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).
(4) Where the act is in furtherance of any conspiracy.
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
(7) Where the act is committed by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.
History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2005 a. 280; 2007 a. 96; 2009 a. 28.
Conspiracy to intimidate a witness is included under sub. (4). State v. Seibert, 141 Wis. 2d 753, 416 N.W.2d 900 (Ct. App. 1987).
940.44 Intimidation of victims; misdemeanor.
Except as provided in s. 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:
(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
(2) Causing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.
History: 1981 c. 118.
A jury instruction for a violation of s. 940.44 should specify the underlying crime and that a defendant cannot be found guilty of intimidating a victim of a crime unless the elements of the underlying crime are proved beyond a reasonable doubt. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).
Acquittal on the underlying charge does not require acquittal on a charge under s. 940.44 as the jury may have exercised its right to return a not guilty verdict irrespective of evidence on the underlying charge. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).
The disorderly conduct statute, s. 947.01, does not require a victim, but when the disorderly conduct is directed at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under this section. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95-1484.
In the phrase "causing a complaint ... to be sought and prosecuted and assisting in the prosecution thereof" in sub. (2), "and" is read in the disjunctive. Sub. (2) includes alleged acts of intimidation that occur after a victim has caused a complaint to be sought and applies to all acts of intimidation that attempt to prevent or dissuade a crime victim from providing any one or more of the following forms of assistance to prosecutors: 1) causing a complaint, indictment or information to be sought; 2) causing a complaint to be prosecuted; or, more generally, 3) assisting in a prosecution. State v. Freer, 2010 WI App 9, 323 Wis. 2d 29, 779 N.W.2d 12, 08-2233.
940.45 Intimidation of victims; felony.
Whoever violates s. 940.44 under any of the following circumstances is guilty of a Class G felony:
(1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the victim, or any person sharing a common domicile with the victim.
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).
(4) Where the act is in furtherance of any conspiracy.
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2007 a. 96; 2009 a. 28.
940.46 Attempt prosecuted as completed act.
Whoever attempts the commission of any act prohibited under ss. 940.42 to 940.45 is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or in fact intimidated is not a defense against any prosecution under ss. 940.42 to 940.45.
History: 1981 c. 118.
940.47 Court orders.
Any court with jurisdiction over any criminal matter, upon substantial evidence, which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, may issue orders including but not limited to any of the following:
(1) An order that a defendant not violate ss. 940.42 to 940.45.
(2) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, not violate ss. 940.42 to 940.45.
(3) An order that any person described in sub. (1) or (2) maintain a prescribed geographic distance from any specified witness or victim.
(4) An order that any person described in sub. (1) or (2) have no communication with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.
History: 1981 c. 118.
940.48 Violation of court orders.
Whoever violates an order issued under s. 940.47 may be punished as follows:
(1) If applicable, the person may be prosecuted under ss. 940.42 to 940.45.
(2) As a contempt of court under ch. 785. A finding of contempt is not a bar to prosecution under ss. 940.42 to 940.45, but:
(a) Any person who commits a contempt of court is entitled to credit for any punishment imposed therefor against any sentence imposed on conviction under ss. 940.42 to 940.45; and
(b) Any conviction or acquittal for any substantive offense under ss. 940.42 to 940.45 is a bar to subsequent punishment for contempt arising out of the same act.
(3) By the revocation of any form of pretrial release or forfeiture of bail and the issuance of a bench warrant for the defendant's arrest or remanding the defendant to custody. After hearing and on substantial evidence, the revocation may be made whether the violation of order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by the defendant.
History: 1981 c. 118.
940.49 Pretrial release.
Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed to include a condition that the defendant neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by ss. 940.42 to 940.45 and any willful violation of the condition is subject to punishment as prescribed in s. 940.48 (3) whether or not the defendant was the subject of an order under s. 940.47.
History: 1981 c. 118.
7.2.6.5.5.1.5. como recuperar a tu ex
7.2.6.5.5.1.6 Cal.Penal Code, Title 15, sec. 647(j) (2014) - Revenge Porn 7.2.6.5.5.1.6 Cal.Penal Code, Title 15, sec. 647(j) (2014) - Revenge Porn
Title XV
Miscellaneous Crimes
§ 647. Disorderly Conduct
Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:
(j)(1) Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments.
(2) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy.
(3)(A) Any person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person.
(B) Neither of the following is a defense to the crime specified in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(4)(A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
(B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.
(C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.
(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:
(i) The distribution is made in the course of reporting an unlawful activity.
(ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
(iii) The distribution is made in the course of a lawful public proceeding.
(5) This subdivision shall not preclude punishment under any section of law providing for greater punishment.
7.2.6.5.5.1.7. Proposed Model Penal Code Article 213
7.2.6.5.5.2 V.A.ii. Cases 7.2.6.5.5.2 V.A.ii. Cases
7.2.6.5.5.2.1 State v. Rusk 7.2.6.5.5.2.1 State v. Rusk
STATE OF MARYLAND
v.
EDWARD SALVATORE RUSK
Court of Appeals of Maryland.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Stephen H. Sachs, Attorney General, with whom were Deborah K. Handel and Kathleen M. Sweeney, Assistant Attorneys General, on the brief, for appellant.
Ira C. Cooke, with whom were Melnicove, Kaufman & Weiner, P.A. on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court. SMITH, DIGGES and COLE, JJ., dissent. COLE, J., filed a dissenting Opinion at page 247 infra, which SMITH and DIGGES, JJ., concur.
Edward Rusk was found guilty by a jury in the Criminal [232] Court of Baltimore (Karwacki, J. presiding) of second degree rape in violation of Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 463 (a) (1), which provides in pertinent part:
"A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; ...."
On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction; it concluded by an 8 — 5 majority that in view of the prevailing law as set forth in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury. Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979). We granted certiorari to consider whether the Court of Special Appeals properly applied the principles of Hazel in determining that insufficient evidence had been produced to support Rusk's conviction.
At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.
The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E.J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily [233] interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.
Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "`I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "`Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.
Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "`Now, will you come up?'" Pat explained her subsequent actions:
"At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.
"Now, I know that I should have blown the horn. I should have run. There were a million things I [234] could have done. I was scared, at that point, and I didn't do any of them."
Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said `Come on up, come on up;' and when he took the keys, I knew that was wrong."
It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "`Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.
Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:
"I was still begging him to please let, you know, let me leave. I said, `you can get a lot of other girls down there, for what you want,' and he just kept saying, `no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, `If I do what you want, will you let me go without killing me?' [235] Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, `If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."
Pat testified that Rusk made her perform oral sex and then vaginal intercourse.
Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "`Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, `Yes;' and he asked me for my telephone number; and I said, `No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.
On her way home, Pat stopped at a gas station, went to the ladies room, and then drove "pretty much straight home and pulled up and parked the car." At first she was not going to say anything about the incident. She explained her initial reaction not to report the incident: "I didn't want to go through what I'm going through now [at the trial]." As she sat in her car reflecting on the incident, Pat said she began to "wonder what would happen if I hadn't of done what he wanted me to do. So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car." She reported the incident to the police at about 3:15 a.m. Subsequently, Pat took the police to Rusk's apartment, which she located without any great difficulty.
Pat's girlfriend Terry corroborated her testimony concerning the events which occurred up to the time that Pat left the bar with Rusk. Questioned about Pat's alcohol consumption, Terry said she was drinking screwdrivers that night but normally did not finish a drink. Terry testified about her acquaintanceship with Rusk: "I knew his face, and his first name, but I honestly couldn't tell you — apparently I ran into him sometime before. I couldn't tell you how I know him. I don't know him very well at all."
[236] Officer Hammett of the Baltimore City Police Department acknowledged receiving Pat's rape complaint at 3:15 a.m. on September 22, 1977. He accompanied her to the 3100 block of Guilford Avenue where it took Pat several minutes to locate Rusk's apartment. Officer Hammett entered Rusk's multi-dwelling apartment house, which contained at least six apartments, and arrested Rusk in a room on the second floor.
Hammett testified that Pat was sober, and she was taken to City Hospital for an examination. The examination disclosed that seminal fluid and spermatazoa were detected in Pat's vagina, on her underpants, and on the bed sheets recovered from Rusk's bed.
At the close of the State's case-in-chief, Rusk moved for a judgment of acquittal. In denying the motion, the trial court said:
"There is evidence that there is a taking of automobile keys forcibly, a request that the prosecuting witness accompany the Defendant to the upstairs apartment. She described a look in his eye which put her in fear.
"Now, you are absolutely correct that there was no weapon, no physical threatening testified to. However, while she was seated on a chair next to the bed, the Defendant excused himself, and came back in five minutes; and then she testifies, he pulled her on to the bed by reaching over and grabbing her wrists, and/or had her or requested, that she disrobe, and assist him in disrobing.
"Again, she said she was scared, and then she testified to something to the effect that she said to him, she was begging him to let her leave. She was scared. She started to cry. He started to strangle her softly she said. She asked the Defendant, that if she'd submit, would he not kill her, at which point he indicated that he would not; and she performed oral sex on him, and then had intercourse."
[237] Rusk and two of his friends, Michael Trimp and David Carroll, testified on his behalf. According to Trimp, they went in Carroll's car to Buggs' bar to dance, drink and "tr[y] to pick up some ladies." Rusk stayed at the bar, while the others went to get something to eat.
Trimp and Carroll next saw Rusk walking down the street arm-in-arm with a lady whom Trimp was unable to identify. Trimp asked Rusk if he needed a ride home. Rusk responded that the woman he was with was going to drive him home. Trimp testified that at about 2:00 — 2:30 a.m. he returned to the room he rented with Rusk on Guilford Avenue and found Rusk to be the only person present. Trimp said that as many as twelve people lived in the entire building and that the room he rented with Rusk was referred to as their "pit stop." Both Rusk and Trimp actually resided at places other than the Guilford Avenue room. Trimp testified that there was a telephone in the apartment.
Carroll's testimony corroborated Trimp's. He saw Rusk walking down the street arm-in-arm with a woman. He said "[s]he was kind of like, you know, snuggling up to him like.... She was hanging all over him then." Carroll was fairly certain that Pat was the woman who was with Rusk.
Rusk, the 31-year-old defendant, testified that he was in the Buggs Tavern for about thirty minutes when he noticed Pat standing at the bar. Rusk said: "She looked at me, and she smiled. I walked over and said, hi, and started talking to her." He did not remember either knowing or speaking to Terry. When Pat mentioned that she was about to leave, Rusk asked her if she wanted to go home with him. In response, Pat said that she would like to, but could not because she had her car. Rusk then suggested that they take her car. Pat agreed and they left the bar arm-in-arm.
Rusk testified that during the drive to her apartment, he discussed with Pat their similar marital situations and talked about their children. He said that Pat asked him if he was going to rape her. When he inquired why she was asking, Pat said that she had been raped once before. Rusk expressed his sympathy for her. Pat then asked him if he [238] planned to beat her. He inquired why she was asking and Pat explained that her husband used to beat her. Rusk again expressed his sympathy. He testified that at no time did Pat express a fear that she was being followed by her separated husband.
According to Rusk, when they arrived in front of his apartment Pat parked the car and turned the engine off. They sat for several minutes "petting each other." Rusk denied switching off the ignition and removing the keys. He said that they walked to the apartment house and proceeded up the stairs to his room. Rusk testified that Pat came willingly to his room and that at no time did he make threatening facial expressions. Once inside his room, Rusk left Pat alone for several minutes while he used the bathroom down the hall. Upon his return, he switched the light on but immediately turned it off because Pat, who was seated in the dark in a chair next to the bed, complained it was too bright. Rusk said that he sat on the bed across from Pat and reached out
"and started to put my arms around her, and started kissing her; and we fell back into the bed, and she — we were petting, kissing, and she stuck her hand down in my pants and started playing with me; and I undid her blouse, and took off her bra; and then I sat up and I said `Let's take our clothes off;' and she said, `Okay;' and I took my clothes off, and she took her clothes off; and then we proceeded to have intercourse."
Rusk explained that after the intercourse, Pat "got uptight."
"Well, she started to cry. She said that — she said, `You guys are all alike,' she says, `just out for,' you know, `one thing.'
"She started talking about — I don't know, she was crying and all. I tried to calm her down and all; and I said, `What's the matter?' And she said, that she just wanted to leave; and I said, `Well, okay;' [239] and she walked out to the car. I walked out to the car. She got in the car and left."
Rusk denied placing his hands on Pat's throat or attempting to strangle her. He also denied using force or threats of force to get Pat to have intercourse with him.
In reversing Rusk's second degree rape conviction, the Court of Special Appeals, quoting from Hazel, 221 Md. at 469, noted that:
"Force is an essential element of the crime [of rape] and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety."
Writing for the majority, Judge Thompson said:
"In all of the victim's testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that `the way he looked' fails utterly to support the fear required by Hazel." 43 Md. App. at 480.
The Court of Special Appeals interpreted Hazel as requiring a showing of a reasonable apprehension of fear in instances where the prosecutrix did not resist. It concluded:
"we find the evidence legally insufficient to warrant a conclusion that appellant's words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of `the look in his eyes.' After both were undressed and in the bed, and [240] she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the `lightly choking' could have been a heavy caress. We do not believe that `lightly choking' along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape." Id. at 484.
In argument before us on the merits of the case, the parties agreed that the issue was whether, in light of the principles of Hazel, there was evidence before the jury legally sufficient to prove beyond a reasonable doubt that the intercourse was "[b]y force or threat of force against the will and without the consent" of the victim in violation of Art. 27, § 463 (a) (1). Of course, due process requirements mandate that a criminal conviction not be obtained if the evidence does not reasonably support a finding of guilt beyond a reasonable doubt. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, as the Supreme Court made clear in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the reviewing court does not ask itself whether it believes that the evidence established guilt beyond a reasonable doubt; rather, the applicable standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319 (emphasis in original).
The vaginal intercourse once being established, the remaining elements of rape in the second degree under § 463 (a) (1) are, as in a prosecution for common law rape (1) force — actual or constructive, and (2) lack of consent. The terms in § 463 (a) (1) — "force," "threat of force," "against the will" and "without the consent" — are not defined in the statute, but are to be afforded their "judicially determined meaning" as applied in cases involving common law rape. [241] See Art. 27, § 464E.[1] In this regard, it is well settled that the terms "against the will" and "without the consent" are synonymous in the law of rape.[2]
Hazel, which was decided in 1960, long before the enactment of § 463 (a) (1), involved a prosecution for common law rape, there defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." 221 Md. at 468-69. The evidence in that case disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The Court said that the issue before it was whether "the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law." Id. at 468. It was in the context of this evidentiary background that the Court set forth the principles of law which controlled the [242] disposition of the case. It recognized that force and lack of consent are distinct elements of the crime of rape. It said:
"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id. at 469.
As to the element of lack of consent, the Court said in Hazel:
"[I]t is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent." Id.
The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear. The degree of fear necessary to obviate the need to prove resistance, and thereby establish lack of consent, was defined in the following manner:
"The kind of fear which would render resistance by a woman unnecessary to support a conviction of [243] rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist." Id. at 470.
Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and nonconsent, particularly when a threat rather than actual force is involved.
The Court noted in Hazel that the judges who heard the evidence, and who sat as the trier of fact in Hazel's non-jury case, had concluded that, in light of the defendant's acts of violence and threats of serious harm, there existed a genuine and continuing fear of such harm on the victim's part, so that the ensuing act of sexual intercourse under this fear "`amounted to a felonious and forcible act of the defendant against the will and consent of the prosecuting witness.'" In finding the evidence sufficient to sustain the conviction, the Court observed that "[t]he issue of whether the intercourse was accomplished by force and against the will and consent of the victim was one of credibility, properly to be resolved by the trial court." 221 Md. at 470.
Hazel did not expressly determine whether the victim's fear must be "reasonable." Its only reference to reasonableness related to whether "the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm...." 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious [244] bodily harm would suffice. The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.[3] We think that, generally, this is the correct standard.
As earlier indicated, the Court of Special Appeals held that a showing of a reasonable apprehension of fear was essential under Hazel to establish the elements of the offense where the victim did not resist. The Court did not believe, however, that the evidence was legally sufficient to demonstrate the existence of "a reasonable fear" which overcame Pat's ability to resist. In support of the Court's conclusion, Rusk maintains that the evidence showed that Pat voluntarily entered his apartment without being subjected to a "single threat nor a scintilla of force"; that she made no effort to run away nor did she scream for help; that she never exhibited a will to resist; and that her subjective reaction of fear to the situation in which she had voluntarily placed herself was unreasonable and exaggerated. Rusk claims that his acts were not reasonably calculated to overcome a will to resist; that Pat's verbal resistance was not resistance within the contemplation of Hazel; that his alleged menacing look did not constitute a threat of force; and that even had he pulled Pat to the bed, and lightly choked her, as she claimed, [245] these actions, viewed in the context of the entire incident — no prior threats having been made — would be insufficient to constitute force or a threat of force or render the intercourse nonconsensual.
We think the reversal of Rusk's conviction by the Court of Special Appeals was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had "trampled upon the first principle of appellate restraint ... [because it had] substituted [its] own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury ... [and had thereby] improperly invaded the province allotted to those tribunals." 43 Md. App. at 484-85. In view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); State v. Baldwin, 571 S.W.2d 236 (Mo. 1978); People v. Yannucci, 283 N.Y. 546, 29 N.E.2d 185 (1940); Schrum v. Commonwealth, 246 S.E.2d 893 (Va. 1978); Tryon v. State, 567 P.2d 290 (Wyo. 1977). The principle of these cases was applied in Giles v. State, 229 Md. 370, 382, 183 A.2d 359 (1962), a common law rape prosecution involving conflicting evidence as to the use of force and lack of consent, where the Court concluded that the question "whether the intercourse had been consented to or had been accomplished by force, was clearly one to be resolved by the trier of facts." Johnson v. State, 232 Md. 199, 192 A.2d 506 (1963), another rape case, is to the same effect. Applying the constitutional standard of review articulated in Jackson v. Virginia, supra, i.e. — whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt — it is readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. Of course, it was for the jury to observe the witnesses and their demeanor, and to judge their credibility and weigh their testimony. Quite obviously, the [246] jury disbelieved Rusk and believed Pat's testimony. From her testimony, the jury could have reasonably concluded that the taking of her car keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was not familiar; that after Pat had repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared that Rusk intended to rape her; that unable to think clearly and believing that she had no other choice in the circumstances, Pat entered Rusk's apartment; that once inside Pat asked permission to leave but Rusk told her to stay; that he then pulled Pat by the arms to the bed and undressed her; that Pat was afraid that Rusk would kill her unless she submitted; that she began to cry and Rusk then put his hands on her throat and began "`lightly to choke'" her; that Pat asked him if he would let her go without killing her if she complied with his demands; that Rusk gave an affirmative response, after which she finally submitted.
Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel, supra; Dumer v. State, 64 Wis.2d 590, 219 N.W.2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v. Benavidez, 63 Cal. Rptr. 357, 255 C.A.2d 563 (1967); State v. Douglas, 256 La. 572, 237 So.2d 382, death sentence vacated, 408 U.S. 937, 92 S.Ct. 2864, 33 L.Ed.2d 756 (1970); State v. Bouldin, 153 Mont. 276, 456 P.2d 830 (1969); Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980). That a victim did not scream out for help or attempt to escape, while bearing on the question of consent, is unnecessary where she is restrained by fear of violence. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); Holland v. State, 356 N.E.2d 686 (Ind. App. 1976); State v. Stevenson, 195 N.W.2d 358 (Iowa 1972).
Considering all of the evidence in the case, with particular focus upon the actual force applied by Rusk to Pat's neck, we conclude that the jury could rationally find that the essential [247] elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.
Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that it affirm the judgment of the Criminal Court of Baltimore; costs to be paid by the appellee.
Cole, J., dissenting:
I agree with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape. I, therefore, respectfully dissent.
The standard of appellate review in deciding a question of sufficiency, as the majority correctly notes, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, it is equally well settled that when one of the essential elements of a crime is not sustained by the evidence, the conviction of the defendant cannot stand as a matter of law.
The majority, in applying this standard, concludes that "[i]n view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine." In so concluding, the majority has skipped over the crucial issue. It seems to me that whether the prosecutrix's fear is reasonable becomes a question only after the court determines that the defendant's conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist. In other words, the fear must stem from his articulable conduct, and equally, if not more importantly, [248] cannot be inconsistent with her own contemporaneous reaction to that conduct. The conduct of the defendant, in and of itself, must clearly indicate force or the threat of force such as to overpower the prosecutrix's ability to resist or will to resist. In my view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.
This Court defined rape in Hazel v. State, 221 Md. 464, 468-69, 157 A.2d 922 (1960), as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." The Court went on to declare that "[f]orce is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety." 221 Md. at 469. We noted that "no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances." Id. However, we hastened to add that "[i]f the acts and threats of the defendant [are] reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she [is] placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id.
To avoid any confusion about the substantive law to be applied, we further stated in Hazel that while
[t]he authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent ... the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or so terrified by threats as to overcome her will to resist. [221 Md. at 469-70.]
[249] By way of illustration, we cited certain cases. In State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946), the victim and her friend, Straughan, were riding in a car which stalled and could not be started again even with the help of the defendants, who were strangers. One of the defendants persuaded Straughan to accompany him down the road to get a chain for the purpose of towing the car. After Straughan and one defendant left, the other three forcibly took the victim from her car into an unfinished house, a block away, and each had intercourse with her. The victim did not object to intercourse with the three defendants because she was frightened and afraid they would kill her. In addition, it was plainly a jury question whether the prosecutrix was "[i]n such place and position that resistance would have been useless." 40 S.E.2d at 625 (quoting Mills v. United States, 164 U.S. 644, 649, 17 S.Ct. 210, 41 L.Ed. 584 (1879)).
In State v. Dill, 3 Terry 533, 40 A.2d 443 (Del. 1944), the State produced evidence to show that the victim, her husband, and two children were impeded in their return home when their automobile stalled on the highway near a tavern. The husband got out and began walking home for gas, leaving his wife and two children in the car. Sometime later, the defendant happened upon the scene and induced the wife to let him take her in his automobile for the purpose of overtaking her husband along the road. Instead, the defendant drove his car off the highway into a private lane. When the car stopped, the wife got out of the car and attempted to flee but was overtaken by the defendant who on the grass plot between the two highway lanes had sexual intercourse with her.
The trial judge, in submitting the case to the jury, instructed them, in part, as follows:
In the absence of excusing circumstances it must be shown that the woman did resent the attack made upon her in good faith and without pretense, with an active determination to prevent the violation of her person, and was not merely passive and perfunctory in her resistance. [40 A.2d at 445.] [Emphasis supplied.]
[250] In State v. Hoffman, 228 Wis. 235, 280 N.W. 357 (1938), the complaining witness entered the defendant's car under friendly circumstances and was driven out into the country without protest. When the defendant made his advances she shouted she was going home, pulled away from him and ran. He caught up with her and there was a tussle; she fell and tried to kick him. Again she ran and he caught her and said "if you run again I will choke you and throw you in the ditch...." 280 N.W. at 360. After that she walked with him back to the car. He did not order her to get in, but begged her. No force was used thereafter. Finally, she consented and acquiesced in the events which followed. At trial the complainant testified she was terribly frightened. Nevertheless the court concluded:
Suffice it to say that we have painstakingly read and re-read her testimony with the result that in our opinion it falls far short of proving that resistance which our law requires, unless her failure to resist was excused because of a fear of death or of great bodily harm or unless she was so terrified as to be unable to resist the defendant. It is apparently conceded by the State that her resistance was insufficient to prove the crime of rape unless her acquiescence or submission to the defendant was the result of that fear which our settled rules require. From the testimony of the complaining witness, it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof and that she was in no reasonable sense dominated by that fear which excused the "utmost resistance" within her power.
While the evidence is well calculated to arouse keen indignation against the defendant who so persistently and importunately pursued the complaining witness, who at that time was a virgin, it falls short, in our opinion, of proving a case of rape. [280 N.W. at 360-361.]
[251] In Selvage v. State, 148 Neb. 409, 27 N.W.2d 636 (1947), an 18-year-old woman went to a dance with her brother and later decided to go to a cafe with the defendants and some other acquaintances. They drove to a ball park several blocks away where she and the defendant and another got out. The others in the car drove away. She and the two males walked about a block into the park; she refused their advances for intercourse. She claimed they threw her to the ground, held her while they took turns having sexual intercourse. While this was going on a car with its lights on drove up and the two young men hurried some distance away from her. She made no outcry, nor attempted to communicate with the people in this car. Later at a different place in the park, she claimed each had intercourse with her again. The three walked back to the cafe, drank coffee, and waited to get a car to take them to the city near her home. When they finally got a car, she testified the two repeated the acts of intercourse with her. She resisted but made no complaint to those riding in the front seat. When she got home she related to her parents what had happened.
The Supreme Court of Nebraska, in holding the evidence insufficient to convict for rape, said:
Resistance or opposition by mere words is not enough; the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman. She must resist the consummation of the act, and her resistance must not be a mere pretense, but must be in good faith, and must persist until the offense is consummated. [27 N.W.2d at 637.]
In Kidd v. State, 97 Okla. Crim. 415, 266 P.2d 992 (1953), the rape took place in a car in an isolated spot. One assailant in that case told the victim that if she did not shut up he would kill her with a beer bottle. "By the time [the defendant] took over," the court concluded, "this victim was whipped down and demoralized." 266 P.2d at 1001.
These cases make plain that Hazel intended to require clear and cognizable evidence of force or the threat of force [252] sufficient to overcome or prevent resistance by the female before there would arise a jury question of whether the prosecutrix had a reasonable apprehension of harm.[*] The majority today departs from this requirement and places its imprimatur on the female's conclusory statements that she was in fear, as sufficient to support a conviction of rape.
It is significant to note that in each of the fourteen reported rape cases decided since Hazel, in which sufficiency of the evidence was the issue, the appellate courts of this State have adhered to the requirement that evidence of force or the threat of force overcoming or preventing resistance by the female must be demonstrated on the record to sustain a conviction. In two of those cases, Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, certiorari dismissed as improvidently granted, September 18, 1979, and Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970), the convictions were reversed by the Court of Special Appeals. Goldberg concerned a student, professing to be a talent agent, who lured a young woman to an apartment upon the pretext of offering her a modeling job. She freely accompanied him, and though she protested verbally, she did not physically resist his advances. The Court of Special Appeals held:
The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant's advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be "the equivalent of force". (Hazel v. State, supra, at 469.) Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. [41 Md. App. at 69.] [Footnote omitted.]
[253] In Winegan, the appellant's conviction was reversed because, although the prosecutrix accompanied him to a boarding house and had sexual intercourse only because she thought he had a gun, he in fact had no gun nor at any time claimed to have one. It was on this basis, coupled with the facts that (1) the complainant at no time made outcry and (2) she followed him up the steps to his room, that the court concluded that her fear, if actually present, was so unreasonable as to preclude a conviction for rape.
Of the other twelve cases, four from this Court, not one contains the paucity of evidence regarding force or threat of force which exists in the case sub judice. In Johnson, Jr. v. State, 232 Md. 199, 192 A.2d 506 (1963), the court stated that although there was some evidence tending to indicate consent, which, standing alone, might have justified a judgment of acquittal, there was also evidence of violent acts and verbal threats on the part of the appellant, which, if believed, would have been the equivalent of such force as was reasonably calculated to create the apprehension of imminent bodily harm which could have impaired or overcome the victim's will to resist. In that case, the court related:
The acts alluded to took place at the parked car. The jury had testimony before it that obscene remarks and threats were directed to her and [her companion] while they were locked in the car, and that rocks were thrown at the windows, breaking them. [The prosecutrix] testified that one of the three men suggested shooting [her companion]. The victim may have submitted to sexual relations but that does not necessarily imply consent. [232 Md. at 204.]
In Thompson v. State, 230 Md. 113, 186 A.2d 461 (1962), the victim was murdered and there was no question whether the act had been accomplished by force. The woman died as a result of injuries she sustained.
In Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 [254] (1963), as in Johnson, there was some evidence tending to indicate consent, "[b]ut there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force...." 229 Md. at 381.
In Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960), as in Thompson, the victims were killed in the attempt or perpetration of rape.
In Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980), the Court of Special Appeals upheld a rape conviction in a case in which the victim was physically harmed in the assault. She "received substantial injuries to her genital area, requiring as noted, surgical suturing. This was force, raw, actual force; unnecessary force; force beyond that normally involved in completing the coital act." 45 Md. App. at 70 (emphasis supplied). In addition, the assailant made "pointed and repeated reference to having a knife, [which,] under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in [the victim's] mind a real apprehension of serious and imminent bodily injury if she did not comply...." 45 Md. App. at 70-71. At the time, the court concluded, the victim was absolutely helpless.
In Briscoe v. State, 40 Md. App. 120, 388 A.2d 153, cert. denied, 283 Md. 730 (1978), the facts were similar to those in Hazel. The assailant broke into the victim's home, pointed a shotgun at her and tied her up.
In Dove v. State, 33 Md. App. 601, 365 A.2d 1009 (1976), "the victim tried to run, but was leaped upon and smothered when she fell. There [was] nothing to indicate she would not have been injured more substantially if she had continued to resist his advances." 33 Md. App. at 617.
Along the same lines was Burnette v. State, 15 Md. App. 371, 290 A.2d 816 (1972). The victim "was alone with appellant who in a lonely spot assaulted and beat her." 15 Md. App. at 377. And in Coward v. State, 10 Md. App. 127, 268 A.2d 508, cert. denied, 259 Md. 730 (1970), the victim was driven to a wooded area by two men, and the driver threatened to break her neck.
[255] In Rice v. State, 9 Md. App. 552, 267 A.2d 261, cert. denied, 259 Md. 735 (1970), it was explained: "Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter." 9 Md. App. at 560.
And in Walter v. State, 9 Md. App. 385, 264 A.2d 882, cert. denied, 258 Md. 731 (1970), and Lucas v. State, 2 Md. App. 590, 235 A.2d 780, cert. denied, 249 Md. 732 (1968), the circumstances were also persuasive to show fear induced by force or threats. In Walter a police officer subdued a woman who, realizing he had a gun, became hysterical. She was also afraid of his abrupt tone of voice. The court concluded that it was "apparent the accused deliberately placed the victim in a situation where she would be afraid, with the expectation she would thereby yield to his lustful demands without physical resistance." 9 Md. App. at 395. In Lucas the perpetrator threatened the victim and her four infant children with a knife.
In each of the above 12 cases there was either physical violence or specific threatening words or conduct which were calculated to create a very real and specific fear of immediate physical injury to the victim if she did not comply, coupled with the apparent power to execute those threats in the event of non-submission.
While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance. She may not simply say, "I was really scared," and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist. She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. The law [256] regards rape as a crime of violence. The majority today attenuates this proposition. It declares the innocence of an at best distraught young woman. It does not demonstrate the defendant's guilt of the crime of rape.
My examination of the evidence in a light most favorable to the State reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be so fearful that she should fail to resist and thus, the element of force is lacking in the State's proof.
Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances. They drink and talk together. She agrees to give him a ride home in her car. When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses. According to her testimony he takes her keys, walks around to her side of the car, and says "Now will you come up?" She answers, "yes." The majority suggests that "from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar...." But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above. How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm? There was no weapon, no threat to inflict physical injury.
She also testified that she was afraid of "the way he looked," and afraid of his statement, "come on up, come on up." But what can the majority conclude from this statement coupled with a "look" that remained undescribed? There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination.
After reaching the room she described what occurred as follows:
[257] I was still begging him to please let, you know, let me leave. I said, "you can get a lot of other girls down there, for what you want," and he just kept saying, "no," and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, "If I do what you want, will you let me go without killing me?" Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat and started lightly to choke me; and I said "If I do what you want, will you let me go?" And he said, yes, and at that time, I proceeded to do what he wanted me to.
The majority relies on the trial court's statement that the defendant responded affirmatively to her question "If I do what you want, will you let me go without killing me?" The majority further suggests that the jury could infer the defendant's affirmative response. The facts belie such inference since by the prosecutrix's own testimony the defendant made no response. He said nothing!
She then testified that she started to cry and he "started lightly to choke" her, whatever that means. Obviously, the choking was not of any persuasive significance. During this "choking" she was able to talk. She said "If I do what you want will you let me go?" It was at this point that the defendant said yes.
I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse. In the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, I find it difficult to understand how a victim could participate in these sexual activities and not be willing.
What was the nature and extent of her fear anyhow? She herself testified she was "fearful that maybe I had someone following me." She was afraid because she didn't know him [258] and she was afraid he was going to "rape" her. But there are no acts or conduct on the part of the defendant to suggest that these fears were created by the defendant or that he made any objective, identifiable threats to her which would give rise to this woman's failure to flee, summon help, scream, or make physical resistance.
As the defendant well knew, this was not a child. This was a married woman with children, a woman familiar with the social setting in which these two actors met. It was an ordinary city street, not an isolated spot. He had not forced his way into her car; he had not taken advantage of a difference in years or any state of intoxication or mental or physical incapacity on her part. He did not grapple with her. She got out of the car, walked with him across the street and followed him up the stairs to his room. She certainly had to realize that they were not going upstairs to play Scrabble.
Once in the room she waited while he went to the bathroom where he stayed for five minutes. In his absence, the room was lighted but she did not seek a means of escape. She did not even "try the door" to determine if it was locked. She waited.
Upon his return, he turned off the lights and pulled her on the bed. There is no suggestion or inference to be drawn from her testimony that he yanked her on the bed or in any manner physically abused her by this conduct. As a matter of fact there is no suggestion by her that he bruised or hurt her in any manner, or that the "choking" was intended to be disabling.
He then proceeded to unbutton her blouse and her bra. He did not rip her clothes off or use any greater force than was necessary to unfasten her garments. He did not even complete this procedure but requested that she do it, which she did "because he asked me to." However, she not only removed her clothing but took his clothes off, too.
Then for a while they lay together on the bed kissing, though she says she did not return his kisses. However, without protest she then proceeded to perform oral sex and later submitted to vaginal intercourse. After these activities [259] were completed, she asked to leave. They dressed and he walked her to her car and asked to see her again. She indicated that perhaps they might meet at Fells Point. He gave her directions home and returned to his apartment where the police found him later that morning.
The record does not disclose the basis for this young woman's misgivings about her experience with the defendant. The only substantive fear she had was that she would be late arriving home. The objective facts make it inherently improbable that the defendant's conduct generated any fear for her physical well-being.
In my judgment the State failed to prove the essential element of force beyond a reasonable doubt and, therefore, the judgment of conviction should be reversed.
Judges Smith and Digges have authorized me to state that they concur in the views expressed herein.
APPENDIX
In the following cases rape convictions were overturned because the requirement of force necessary to affirmatively demonstrate lack of consent was not strictly complied with, or the facts were so sketchy or inherently improbable that this element could not be established, as a matter of law, beyond a reasonable doubt.
In Zamora v. State, 449 S.W.2d 43 (Tex. Crim. App. 1969), it was held that the evidence was insufficient to sustain a conviction of rape by force and threats where the sixteen-year-old prosecutrix, who had been engaging in sexual relations with the defendant stepfather for about six years, went to his bedroom to take him coffee, did not try to leave, took off part of her clothes at his request, made no outcry, and did not resist in any way, even though she knew what was going to happen when she sat on the bed. On appeal reference was made to certain threats which, if sufficient, would have excused the complainant's failure to resist. The defendant threatened to put the girl in a juvenile home and to whip her younger brother and sisters if she told her [260] mother. But the court explained, "the threats that were made occurred after the alleged act and were not made to cause the prosecutrix to yield, but to prevent her from informing her mother." 449 S.W.2d at 47 (emphasis supplied). The conviction was reversed.
In People v. Bales, 74 Cal. App.2d 732, 169 P.2d 262 (1946), the complaining witness testified that she met the appellant in a bar and later he physically forced her into his car and drove off. (The evidence in this respect was sufficient to sustain a charge of kidnapping.) Appellant next drove the woman down the highway and stopped the car off the road. He "came around to her side, and make a remark to the effect that he would then find out what kind of woman she was." 169 P.2d at 264. She testified "that she was `afraid' of the threat." Id. The court concluded:
There is an entire absence of evidence that she voiced any objection, made any appeal for help or tried to fight or struggle. There is no evidence of any force or threat by the appellant at that time, and no substantial evidence of any apprehension of immediate bodily harm accompanied by apparent power of execution. The evidence material to his charge fails to show either any reasonable resistance or any reasonable excuse for its absence. The old rule that there must be resistance to the utmost has been relaxed (People v. Cline, 117 Cal. App. 181, 3 P.2d 575), but not to the extent of doing away with the need of showing some resistance or, in proper cases, showing facts which fairly indicate some good reason for not resisting. [169 P.2d at 265.]
In Farrar v. United States, 275 F.2d 868 (D.C. Cir.1959), opinion amended (1960), the words of Chief Judge Prettyman, speaking for the court, are better left to speak for themselves:
As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it [261] is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, "I was scared," and thus transform an apparent consent into a legal non-consent which makes the man's act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.
In the case at bar there was an apparent acquiescence on the girl's part. She said she took off all her clothes, lay down on the bed, and had intercourse twice, some forty-five minutes apart. But she said she did this because she was scared. And she was quite clear, emphatic and insistent upon the cause of her fear; the man had a knife in his hand. The reason for her fear was tangible and definite. It was a knife, and it was in his hand. She so testified repeatedly.
But she never saw any knife. Now it is perfectly apparent that, if this man had had a knife in his hand while he was doing all the things she said he did over this two or three hour period, she must have seen it. He could not have had a knife and have done all these things, with her watching him as she said she did, without her seeing the knife. As a matter of fact, at the close of the Government's testimony the trial judge struck from the record all the testimony concerning the knife, "leaving her testimony in that it was something that felt sharp and felt like a knife." The judge said if there had been a knife the girl would have seen it.
...
Upon the foregoing facts and circumstances, when the knife disappeared from the record as a possible fact, the charge of rape disappeared, as I view the matter. The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear. The only factual substance to [262] any of the intangible threats allegedly made by him to her was the knife. There was no force or violence and no threat or fear of force or violence except for the knife. The charge of rape rested upon the presence of the knife. The Government failed to prove a case of rape. [275 F.2d at 876-77.] [Footnotes omitted.]
In Gonzales v. State, 516 P.2d 592 (Wyo. 1973), the complaining witness was 33 years old and the divorced mother of three children. She was working in a bar and defendant, someone she knew, came in shortly before closing and had been drinking. He asked her for a ride home and she refused, but he followed her and got into her car anyway. She testified she was nervous and scared at the time and made no further protest nor signalled with her horn. On a side road "[h]e asked her to stop `to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car...." 516 P.2d at 593.
When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, "I'm going to do it. You can have it one way or the other." [Id.]
There were no other threats. The witness testified she knew defendant's temper and was scared of him. She related several previous incidents to sustain her knowledge of his temper. The court concluded, "This is not a firm basis upon which to sketch a man of violence and one who would inspire fear." 516 P.2d at 593-94. It should be noted that although the conviction was reversed on other grounds, the court concluded that:
[i]nasmuch as the case must be retried in conformity with these principles [having quoted from Farrar and cited Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970)] we do not deem it amiss to state it is not entirely fair to a trial court or to the defendant to rely on the sketchy showing and lack of detail presented at this trial. [516 P.2d at 595.]
[263] There are a number of other cases in which the threats relied upon were found insufficient. In State v. Horne, 12 Utah, 2d 162, 364 P.2d 109 (1961), the prosecutrix was a 21-year-old married woman with two young children. They lived in a trailer. The defendant and she were acquainted, and he had visited her on previous occasions. On this particular night he entered her trailer uninvited and stated he was going to make love to her. She protested, she struggled, and her little girl, who had been asleep in her mother's bed, awoke and began crying. Finally he let her go to the bathroom and she refused to come out. He came and got her and they struggled some more. Eventually she gave in. She testified she was afraid for her children.
The court set forth the rule to be applied and applied it to the facts:
The old rule of "resistance to the utmost" is obsolete. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make reasonable for her to do in order to manifest her opposition. However, in determining the sufficiency of the evidence, there must be considered the ease of assertion of the forcible accomplishment of the sexual act, with impossibility of defense except by direct denial, or of the proneness of the woman, when she finds the fact of her disgrace discovered or likely of discovery to minimize her fault by asserting force or violence, which had led courts to hold to a very strict rule of proof in such cases.
...
The prosecutrix did not attempt to leave the trailer to seek help, although she had ample opportunity. When she went to the bathroom the defendant, according to her testimony, had already removed his pants and had made indecent proposals and advances. Yet, she did not avail herself of the opportunity to seek help. It is the natural impulse of every honest and virtuous female to flee from threatened outrage. Her explanation that she did [264] not want to leave the children alone with the defendant is a rather weak one, to say the least. It would have taken less than a minute to rouse her neighbors. Furthermore, she left the defendant with the children for 10 to 15 minutes while she was in the bathroom.
...
There was no evidence of any threats made to either the prosecutrix or her children.
We have carefully evaluated the testimony of the prosecutrix and conclude that it is so inherently improbable as to be unworthy of belief and that, upon objective analysis, it appears that reasonable minds could not believe beyond a reasonable doubt that the defendant was guilty. The jury's verdict cannot stand. [364 P.2d at 112-13.] [Footnotes omitted.]
In Johnson v. State, 118 So.2d 806 (Fla. Dist. Ct. App. 1960), the evidence was insufficient to sustain a jury finding that the prosecutrix was forced against her will to have intercourse with defendant or that her fear was sufficient for the jury to find that defendant was guilty of rape through fear. In this case an eighteen-year-old high school student accepted a ride home from an acquaintance, which eventually led to her seduction. At no time did the defendant threaten her with any weapon. She screamed, but did not resist in any other way, nor attempt to flee. Quoting from State v. Remley, 237 S.W. 489, 492 (Mo. 1922), the Florida court stated:
The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts [265] to which they relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, [41 S.W. 973, 43 S.W. 1095]. But we do hold that statements made by a witness that are not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness, and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding. [118 So.2d at 815-16.]
And in People v. Blevins, 98 Ill. App.2d 172, 240 N.E.2d 434 (1968), the evidence was insufficient where there were unexplained inconsistencies in the prosecution's case and the defendant was found peacefully asleep at the scene of the "crime" when arrested.
Even in the closest cases which have been upheld by other jurisdictions there existed more evidence of threat-induced fear of imminent bodily harm than existed in the present case.
In Brown v. State, 59 Wis. 200, 207 N.W.2d 602 (1973), the defendant threatened his victim with a water pistol. She had reason to believe it was real, and reason to believe he would shoot her if she did not comply.
In Johnson v. United States, 426 F.2d 651, 654 (D.C. Cir.1970), the victim's failure to resist "was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location and told her it would be useless for her to scream because no one would hear." (Emphasis in original.)
In Brown v. State, 581 P.2d 189 (Wyo. 1978), the victim was treated very roughly and bruised. She didn't resist because she was three or four months pregnant (which the defendant knew) and because she was afraid for both her own and her baby's lives.
[266] In Tryon v. State, 567 P.2d 290 (Wyo. 1970), the victim did not resist, out of fear. Although he did not threaten her, the conviction was sustained. The court explained:
We find here a child afraid of the dark alone with this defendant several miles from her home, very late at night — and with a man whom she knew had been drinking and quarreling with the woman for whom she had been baby-sitting. We cannot help but suggest that all of these elements could totally terrify a child of tender years or that the jury could have so reasonably inferred.
...
Although the defendant did not express threats, wielded no weapons, and did not strike the victim, the force applied when considered in light of the facts previously related is sufficient to support the jury's finding of non-consent. [567 P.2d at 292-93.]
[1] Section 464E provides as follows:
"Undefined words or phrases in this subheading which describe elements of the common-law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading."
[2] See, e.g., McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Wilson v. State, 49 Del. 37, 109 A.2d 381 (1954), cert. denied, 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955); Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, cert. denied, 359 U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959); State v. Catron, 317 Mo. 894, 296 S.W. 141 (1927); State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); Commonwealth v. Stephens, 143 Pa. Super. 394, 17 A.2d 919 (1941); R. Perkins, Perkins on Criminal Law, 160-61 (2d ed. 1969).
[3] See State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979); People v. Hunt, 72 Cal. App.3d 190, 139 Cal. Rptr. 675 (1977); State v. Dill, 42 Del. 533, 40 A.2d 443 (1944); Arnold v. United States, 358 A.2d 335 (D.C. App. 1976); Doyle v. State, 39 Fla. 155, 22 So. 272 (1897); Curtis v. State, 236 Ga. 362, 223 S.E.2d 721 (1976); People v. Murphy, 124 Ill. App.2d 71, 260 N.E.2d 386 (1970); Carroll v. State, 263 Ind. 86, 324 N.E.2d 809 (1975); Fields v. State, 293 So.2d 430 (Miss. 1974); State v. Beck, 368 S.W.2d 490 (Mo. 1963); Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947); State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933, 96 S.Ct. 288, 46 L.Ed.2d 264 (1975); State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975); Brown v. State, 576 S.W.2d 820 (Tex. Cr. App. 1979); Jones v. Com., 219 Va. 983, 252 S.E.2d 370 (1979); State v. Baker, 30 Wash.2d 601, 192 P.2d 839 (1948); Brown v. State, 581 P.2d 189 (Wyo. 1978).
Some jurisdictions do not require that the victim's fear be reasonably grounded. See Struggs v. State, 372 So.2d 49 (Ala. Cr. App.), cert. denied, 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195 (1979); Kirby v. State, 5 Ala. App. 128, 59 So. 374 (1912); Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976), citing Hazel v. State, supra; State v. Herfel, 49 Wis.2d 513, 182 N.W.2d 232 (1971). See also Salsman v. Com., 565 S.W.2d 638 (Ky. App. 1978); State v. Havens, 264 N.W.2d 918 (S.D. 1978).
[*] See the attached Appendix for a further recitation of cases which support this view.
7.2.6.5.5.2.2. “Internet Makes Dow Jones Open to Suit in Australia,” Felicity Barringer. The New York Times (December 11, 2002)
7.2.6.5.5.2.3. U.C.C. §2-305(1), (4)
7.2.6.5.5.2.4. Catharine MacKinnon, Rape: On Coercion and Consent
7.2.6.5.5.2.5 State v. Thompson 7.2.6.5.5.2.5 State v. Thompson
STATE of Montana, Plaintiff & Appellant,
v.
Gerald Roy THOMPSON, Defendant & Respondent.
Supreme Court of Montana.
[1104] Mark Murphy, Patti Powell, Asst. Attys. Gen., Helena, Sarah Arnott, Judith Basin County Atty., Stanford, for plaintiff and appellant.
Torger Oaas, Lewistown, for defendant and respondent.
SHEEHY, Justice.
On May 25, 1989, the defendant Gerald Roy Thompson was charged with two counts of sexual intercourse without consent and one count of sexual assault. Subsequently, Thompson moved to dismiss Counts I and II of the information, those counts charging defendant with sexual intercourse without consent. Thompson moved to dismiss Counts I and II of the information on the specific ground that the probable cause affidavit was insufficient. On September 1, 1989, the District Court, Tenth Judicial District, Judith Basin County, granted Thompson's motion and dismissed Counts I and II of the information for lack of probable cause in the supporting affidavit. The State now appeals the District Court. We affirm.
The State raised the following issue on appeal: Did the District Court err when it granted defendant's motion to dismiss Counts I and II of the information charging defendant with sexual intercourse without consent for failure to state offenses?
The defendant, Gerald Roy Thompson, the principal and boys basketball coach at Hobson High School, was accused of two counts of sexual intercourse without consent, and one count of sexual assault. This appeal only concerns the two counts of sexual intercourse without consent. The information, filed with the District Court, alleged the defendant committed the crime of sexual intercourse without consent, and stated the following:
Count I
On or between September, 1986 and January, 1987 in Judith Basin County, Montana, the defendant knowingly had sexual intercourse without consent with a person of the opposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in an act of oral sexual intercourse.
Count II
On or between February, 1987 and June, 1987 in Judith Basin County, Montana, the defendant knowingly had sexual intercourse without consent with a person of the opposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in act of oral sexual intercourse.
The affidavits filed in support of this information contained facts and allegations supporting the two counts of sexual intercourse without consent. In essence, they alleged that the threats "caused Jane Doe great psychological pain and fear."
The State contended that fear of the power of Thompson and his authority to keep her from graduating forced Jane Doe into silence until after she graduated from [1105] high school in June of 1987. On November 25, 1988, Jane Doe filed a letter with the Hobson School Board describing the activities against her by Thompson. After investigations by both the school board and the Judith Basin County prosecutor's office, the prosecutor filed an information on May 25, 1989. The information charged Thompson with two counts of sexual intercourse without consent, both felonies in violation of § 45-5-503, MCA, and with one count of attempted sexual assault, a felony.
Defendant filed a number of motions, requesting, among other things, a motion to dismiss Counts I and II of the information for lack of probable cause in the supporting affidavit. The District Court granted Thompson's motion, due to the fact the State failed to meet the element of "without consent" under § 45-5-501, MCA.
I
Did the District Court err when it granted defendant's motion to dismiss Counts I and II of the information charging defendant with sexual intercourse without consent for failure to state offenses?
We agree with the District Court that the facts in the information, in regards to Counts I and II, fail to state offenses. The code of criminal procedures requires that an affidavit be filed for application for leave to file an information. State v. Renz (Mont. 1981), 628 P.2d 644, 645. The affidavit must include sufficient facts to convince a judge that there is probable cause to believe the named defendant may have committed the crime described in the information. Section 46-11-201, MCA. If there is no probable cause, the District Court lacks jurisdiction to try the offense. State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42, 43. This Court has held that a showing of mere probability that defendant committed the crime charged is sufficient for establishing probable cause to file a criminal charge. Judges, when receiving probable cause affidavits, should use their common sense in determining whether probable cause exists. Renz, 628 P.2d at 645; State v. Hamilton (1980), 185 Mont. 522, 532, 605 P.2d 1121, 1127, cert. denied, 447 U.S. 924, 100 S.Ct. 3017, 65 L.Ed.2d 1117 (1980); State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255.
The allegations in the affidavit, however, do not indicate a probability that Thompson committed the crime of sexual intercourse without consent.
Thompson was charged with two counts of alleged sexual intercourse without consent under § 45-5-503, MCA. Section 45-5-503, MCA, states the following:
A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent...
The phrase "without consent" — the key element of the crime — has a very specific definition in Montana's criminal code. This phrase is defined in § 45-5-501, MCA, which states in pertinent part:
As used in 45-5-503 and 45-5-505, the term "without consent" means:
(i) the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone; ...
Section 45-5-501, MCA, makes it clear that the element of "without consent" is satisfied if submission of the victim is obtained either by force or by threat of imminent death, bodily injury, or kidnapping. No other circumstances relating to force or threat eliminate consent under the statute.
Thompson challenged the probable cause affidavit in the District Court, contending it failed to state any fact or circumstance showing that Jane Doe's submission to an alleged act of sexual intercourse was obtained by force or by any of the threats listed in § 45-5-501, MCA. In contrast, the State argues that Thompson's actions constitute sexual intercourse through force or threats. The District Court, in its opinion and order, agreed with Thompson's contentions, and found that the facts in the affidavit supporting the information failed to show the element of "without consent." In reaching this conclusion, the District Court first considered whether or not there were facts or circumstances in the probable cause affidavit to indicate that submission [1106] to the alleged act of sexual intercourse without consent was obtained "by force." In order to determine whether Thompson forced Jane Doe to submit to the sexual act, the District Court had to define the phrase "by force" since there is no definition contained in the Montana Criminal Code. The District Court in its order defined force as follows:
The word "force" is used in its ordinary and normal connotation: physical compulsion, the use or immediate threat of bodily harm, injury.
Next, the District Court examined the information and probable cause affidavit to determine if there were any facts or circumstances constituting force. The District Court found that "force was not alleged in the information nor in the affidavit in support of it."
In contrast, the State argues the District Court's definition of force is too limited. The State, relying on Raines v. State (1989), 191 Ga. App. 743, 382 S.E.2d 738, 739, argues that intimidation and fear may constitute force. The State also contends that Thompson, in his position of authority as the principal, intimidated Jane Doe into the alleged acts. Furthermore, the State argues the fear and apprehension of Jane Doe show Thompson used force against her. We agree with the State that Thompson intimidated Jane Doe; however, we cannot stretch the definition of force to include intimidation, fear, or apprehension. Rather, we adopt the District Court's definition of force.
Other jurisdictions, such as California, have expanded the definition of force, beyond its physical connotation. People v. Cicero (1984), 157 Cal. App.3d 465, 204 Cal. Rptr. 582. The California Supreme Court adopted the following reasoning to expand the word force:
... the fundamental wrong at which the law of rape is aimed is not the application of physical force that causes physical harm. Rather, the law of rape primarily guards the integrity of a women's will and the privacy of her sexuality from an act of intercourse undertaken without her consent. Because the fundamental wrong is the violation of a woman's will and sexuality, the law of rape does not require that "force" cause physical harm. Rather, in this scenario, "force" plays merely a supporting evidentiary role, as necessary only to ensure an act of intercourse has been undertaken against a victim's will.
Cicero, 204 Cal. Rptr. at 590.
The California Supreme Court's definition of the word force is too broad under Montana's definition of the crime. Until the legislature adopts a definition for the word "force", we must adopt the ordinary and normal definition of the word "force" as set forth by the District Court.
The State in its information and accompanying affidavit complain that Thompson deprived Jane Doe of consent to the sexual act by threatening that he would prevent her from graduating from high school. The threat required in § 45-5-501, MCA, is "a threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone ..." The District Court found that something more than a threat is necessary to satisfy the statutory requirement. A threat one will not graduate from high school is not one of the threats listed under § 45-5-501, MCA. The State argues that the definition "threat of bodily injury" includes psychological impairment. Unfortunately, the statute sets forth bodily injury, not psychological impairment. A threat that eventually leads to psychological impairment is not sufficient under the statute. The statute only addresses the results of three specific kinds of threats, and psychological impairment is not one of them.
The State urges this Court to adopt the definitions of threat set forth in § 45-2-101(68), MCA. Section 45-2-101(68), MCA, has no application in regard to the crime of sexual intercourse without consent. Section 45-5-501, MCA, plainly and succinctly lays out the types of threats necessary to make the victim act "without consent."
Under § 45-5-501, MCA, the threat also must be of "imminent death, bodily injury, or kidnapping." Thompson's threats cannot be considered imminent. The alleged [1107] sexual act and threat occurred in December of 1986. Jane Doe graduated from Hobson High School in June of 1987. Clearly, Thompson's alleged threats were not imminent.
Peppered throughout the State's brief is the contention that "under Montana law the issue of consent is a fact question, and therefore a question for the jury to decide." The State is correct, the jury is the proper trier of facts in regard to issues such as consent. However, in this case, the State's information and probable cause affidavit have failed to set forth any facts or circumstances to show that the alleged act of sexual intercourse were within the statute defining the elements of the crime. So, the issue in this case is not whether the jury was denied its role as trier of the facts, but whether the State sufficiently set forth facts or circumstances to show the element of "without consent." The court properly granted defendant's motion to dismiss for lack of probable cause.
This case is one of considerable difficulty for us, as indeed it must have been for the District Court judge. The alleged facts, if true, show disgusting acts of taking advantage of a young person by an adult who occupied a position of authority over the young person. If we could rewrite the statutes to define the alleged acts here as sexual intercourse without consent, we would willingly do so. The business of courts, however, is to interpret statutes, not to rewrite them, nor to insert words not put there by the legislature. With a good deal of reluctance, and with strong condemnation of the alleged acts, we affirm the District Court.
TURNAGE, C.J., and HARRISON, HUNT and McDONOUGH, JJ., concur.
7.2.6.5.5.2.6 State of New Jersey in the Interest of M.T.S. 7.2.6.5.5.2.6 State of New Jersey in the Interest of M.T.S.
STATE OF NEW JERSEY IN THE INTEREST OF M.T.S.
The Supreme Court of New Jersey.
[424] Carol M. Henderson, Deputy Attorney General, argued the cause for appellant, State of New Jersey (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Jessica S. Oppenheim, Deputy Attorney General, of counsel and on the brief).
Susan Herman, Assistant Deputy Public Defender, argued the cause for respondent M.T.S. (Wilfredo Caraballo, Public Defender, attorney).
The opinion of the Court was delivered by HANDLER, J.
Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by [425] this appeal is whether the element of "physical force" is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.
That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.
The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J. Super. 254, 588 A.2d 1282 (1991). We granted the State's petition for certification. 126 N.J. 341, 598 A.2d 897 (1991).
I
The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.
On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept [426] downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager's testimony.
C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.
C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.
[427] C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.
At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.
According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."
M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as [428] C.G. pushed him off, she said "stop, get off," and he "hopped off right away."
According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving ... I'm going with my real girlfriend, don't talk to me ... I don't want nothing to do with you or anything, stay out of my life ... don't tell anybody about this ... it would just screw everything up." He then walked downstairs and went to sleep.
On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.
Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed [429] the juvenile's adjudication of delinquency for that offense. 247 N.J. Super. at 260-61, 588 A.2d 1282.
II
The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual penetration" "with another person" with the use of "physical force or coercion."[1] An unconstrained reading of the statutory language indicates that both the act of "sexual penetration" and the use of "physical force or coercion" are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be [430] understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that "physical force" had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.
The parties offer two alternative understandings of the concept of "physical force" as it is used in the statute. The State would read "physical force" to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of "physical force" to mean force "used to overcome lack of consent." That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.
Current judicial practice suggests an understanding of "physical force" to mean "any degree of physical power or strength used against the victim, even though it entails no injury and leaves no mark." Model Jury Charges, Criminal 3 (revised Mar. 27, 1989). Resort to common experience or understanding does not yield a conclusive meaning. The dictionary provides several definitions of "force," among which are the following: (1) "power, violence, compulsion, or constraint exerted upon or against a person or thing," (2) "a general term for exercise of strength or power, esp. physical, to overcome resistance," or (3) "strength or power of any degree that is exercised without justification or contrary to law upon a person or thing." Webster's Third New International Dictionary 887 (1961).
Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words "physical force" do not evoke a single [431] meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42, 342 A.2d 199 (1975). With respect to a law, like the sexual assault statute, that "alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy." Grobart v. Grobart, 5 N.J. 161, 166, 74 A.2d 294 (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98, 155 A.2d 547 (1959) (noting that ambiguous statutory phrases should be interpreted in light of the occasion and necessity of the law, mischief felt, and remedy in view). We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature. See State v. Des Marets, 92 N.J. 62, 68-70, 455 A.2d 1074 (1983); State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956).
The provisions proscribing sexual offenses found in the Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), became effective in 1979, and were written against almost two hundred years of rape law in New Jersey. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as "carnal knowledge of a woman against her will." Cynthia A. Wicktom, Note, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender's Forceful Conduct). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim's will. Id. at 402 [432] (citing Rollin Perkins & Ronald Boyce, Criminal Law 211 (3d ed. 1982)). As of 1796, New Jersey statutory law defined rape as "carnal knowledge of a woman, forcibly and against her will." Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape — carnal knowledge, forcibly, and against her will — remained the essential elements of the crime until 1979. Leigh Bienen, Rape III — National Developments in Rape Reform Legislation, 6 Women's Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III).
Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman's will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind. "Thus, the perpetrator's use of force became criminal only if the victim's state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent." National Institute of Law Enforcement and Criminal Justice, Forcible Rape — An Analysis of Legal Issues 5 (March 1978) (Forcible Rape). Although the terms "non-consent" and "against her will" were often treated as equivalent, see, e.g., Wilson v. State, 109 A.2d 381 (Del. 1954), cert. den., 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955), under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will. As a Delaware court stated, "If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape." State v. Brown, 83 A. 1083, 1084 (O.T. 1912); 75 C.J.S. Rape § 11-12 (1952).
The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the [433] intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, "assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness." Offender's Forceful Conduct, supra, 56 Geo. Wash.L.Rev. at 403. Evidence of resistance was viewed as a solution to the credibility problem; it was the "outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent." Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).
The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. See, e.g., State v. Brown, 127 Wis. 193, 106 N.W. 536 (1906) (overturning forcible rape conviction based on inadequate resistance by the victim); People v. Dohring, 59 N.Y. 374 (1874). Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes, 42 Cal.3d 284, 228 Cal. Rptr. 228, 721 P.2d 110, 117 (1986) (observing that "[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force"). In many jurisdictions the requirement was that the woman have resisted to the utmost. "Rape is not committed unless the woman oppose the man to the utmost limit of her power." People v. Carey, 223 N.Y. 519, 119 N.E. 83 (N.Y. 1918). "[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost." Moss v. State, 208 Miss. 531, 45 So.2d 125, 126 (1950). Other states [434] followed a "reasonableness" standard, while some required only sufficient resistance to make non-consent reasonably manifest. Forcible Rape, supra, at 5.
At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. In State v. Harris, 70 N.J. Super. 9, 174 A.2d 645 (1961), the Appellate Division recognized that the "to the uttermost" test was obsolete. Id. at 16, 174 A.2d 645. "The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent." Id. at 16-17, 174 A.2d 645. Nonetheless, the "resistance" requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: "[W]e have rejected the former test that a woman must resist `to the uttermost.' We only require that she resist as much as she possibly can under the circumstances." State v. Terry, 89 N.J. Super. 445, 449, 215 A.2d 374.
The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant's conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant's actions as on the nature of the victim's response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505-07 (1975) (Definition of Forcible Rape). "[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault." State v. Terry, supra, 89 N.J. Super. at 449, 215 A.2d 374. Under the pre-reform law, the resistance offered had to be "in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory." State v. Terry, supra, 89 N.J. Super. at 450, 215 A.2d 374. That the law put the rape victim on trial was clear.
[435] The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim's will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex.Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that "the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female"). In New Jersey the amount of force necessary to establish rape was characterized as "`the degree of force sufficient to overcome any resistance that had been put up by the female.'" State v. Terry, supra, 89 N.J. Super. at 451, 215 A.2d 374 (quoting jury charge by trial court). Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. See, e.g., Moss v. State, supra, 45 So.2d at 125. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the "force" element of the offense. E.g., Pomeroy v. State, 94 Ind. 96 (1884); State v. Atkins, 292 S.W. 422 (Mo. 1926); Lee v. State, 322 So.2d 751, 752 (Miss. 1975).
The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary [436] rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. See, e.g., Allison v. United States, 409 F.2d 445, 448 (D.C. Cir.1969). Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. State v. Conner, 97 N.J.L. 423, 424, 118 A. 211 (Sup.Ct. 1922). Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).
During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack. See, e.g., House [of Delegates] Urges New Definition of Rape, 61 A.B.A.J. 464 (1975); Note, Toward a Consent Standard in the Law of Rape, 43 U.Chi.L.Rev. 613, 638 (1976) (Toward a Consent Standard); see also People v. Barnes, supra, 721 P.2d at 117 (discussing influence of distrust of female rape victims on legal standards). Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that "[d]istrust of the complainant's credibility [had] led to an exaggerated insistence on evidence of resistance," resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. [437] See Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to "bring[] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence").
To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result. Menachem Amir, Patterns in Forcible Rape, 164-65, 169-171 (1971); Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506; Note, Elimination of the Resistance Requirement and Other Rape Law Reforms: The New York Experience, 47 Alb.L.Rev. 871, 872 (1983). That research discredited the assumption that resistance to the utmost or to the best of a woman's ability was the most reasonable or rational response to a rape.
The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman's will or the insult to her chastity but in the forcible attack itself — the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.
That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal [438] exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. See, e.g., State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981); see also Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 184, 207 (noting that common-law principles excluded spouses from prosecution in New Jersey as in most other jurisdictions). Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender's Forceful Conduct, supra, 58 Geo.Wash.L.Rev. at 402; Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258-60 (1986); see also Hale, supra, at 629 (noting that "a `ravished' woman could `redeem' the convicted offender and save him from execution by marrying him").
Critics of rape law agreed that the focus of the crime should be shifted from the victim's behavior to the defendant's conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse, Towards a Consent Standard, supra, 43 U.Chi.L.Rev. 613; others urged the elimination of any reference to consent from the definition of rape, Offender's Forceful Conduct, supra, 56 Geo.Wash.L.Rev. at 401. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented. Ibid.
Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that [439] depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of "bodily integrity." Susan Estrich, Rape, 95 Yale L.J. 1087, 1105, (1986). In urging that the "resistance" requirement be abandoned, reformers sought to break the connection between force and resistance.
III
The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.
In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute's Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14-1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14-1(b)(1). The comments to the MPC, on which the proposed Code was based, state that "[c]ompulsion plainly implies non-consent," [440] and that the words "compels to submit" require more than "a token initial resistance." A.L.I., MPC, § 213.1, comments at 306 (revised commentary 1980).
The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L. 1978, c. 95 § 2C:14-1 to -7; N.J.S.A. 2C:14-1 to -7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. Id. at 207-08. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. Leigh Bienen, Rape II, 3 Women's Rts.L.Rep. 90 (1977). The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), [M.C.L.A. § 750.520d] and on the reform statutes in New Mexico, Minnesota, and Wisconsin. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. The stated intent of the drafters of the Philadelphia Center's Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would "`normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.'" Stuart Marques, Women's Coalition Lauds Trenton Panel: Tough Rape Law Revisions Advance, Newark Star Ledger, (May 10, 1978) at 1 (quoting Roberta Kaufman, New Jersey Coalition Against Rape).
Since the 1978 reform, the Code has referred to the crime that was once known as "rape" as "sexual assault." The crime now requires "penetration," not "sexual intercourse." It requires "force" or "coercion," not "submission" or "resistance." [441] It makes no reference to the victim's state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional "carnal knowledge."[2] Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.
The reform statute defines sexual assault as penetration accomplished by the use of "physical force" or "coercion," but it does not define either "physical force" or "coercion" or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining "physical force" too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 181. The task of defining "physical force" therefore was left to the courts.
That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape "[t]he prohibition of force or `forcible compulsion' ends up being defined in terms of a woman's resistance"). That risk was encountered by the Michigan Supreme Court in People v. Patterson, 428 Mich. 502, 410 N.W.2d 733 (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of [442] the court concluded that the defendant had not used force as required by the statute because there was "no evidence of physical overpowering ... [and] there was no submission." Id. 410 N.W.2d at 740. Justice Boyle, in dissent, soundly criticized the majority's position as a distortion of the legislature's intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in "defin[ing] force by measuring the degree of resistance by the victim," the majority had effectively "reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted." Id. at 747-49.
Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to "overcoming the will" of the victim, or to the "physical overpowering" of the victim, or the "submission" of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.
The Legislature's concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as "the unlawful application of force to the person of another." 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another [is] a battery." Perna v. Pirozzi, 92 N.J. 446, 462, 457 A.2d 431 (1983). Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse [443] between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.
The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.
The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature's decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.
[444] We note that the contrary interpretation of force — that the element of force need be extrinsic to the sexual act — would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.
Because the statute eschews any reference to the victim's will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.
Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. See Ill. Rev. Stat. ch. 38, para. 12-17 (1984) (defining consent as "freely given agreement"); see also, People v. [445] Patterson, supra, 410 N.W.2d at 749 (Boyle, J., dissenting) (reasoning that "force" may include "a sexual touching brought about involuntarily," and may consist of "a contact which occurs before consent can be given or refused"); cf. N.J.S.A. 2C:2-10(c)(3) (indicating that "consent" does not constitute a defense sufficient to negate an element of a crime if consent was induced or accomplished by force or coercion). Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.
Our understanding of the meaning and application of "physical force" under the sexual assault statute indicates that the term's inclusion was neither inadvertent nor redundant. The term "physical force," like its companion term "coercion," acts to qualify the nature and character of the "sexual penetration." Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of "physical force" encompasses the notion of "unpermitted touching" derived from the Legislature's decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving "sexual penetration," the term "physical force" serves to define and explain the acts that are offensive, unauthorized, and unlawful.
That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is [446] possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle Paint Oil Co., 129 N.J. 81, 94-96, 609 A.2d 11 (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106, 609 A.2d 11 (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting "physical force" to include any touching that occurs without permission we seek to respect that goal.
Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1529 (arguing that "forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person's bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature").
We emphasize as well that what is now referred to as "acquaintance rape" is not a new phenomenon. Nor was it a "futuristic" concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the [447] stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. Acquaintance Rape, supra, at 10. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Acquaintance Rape, supra, at 10. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s. Id. at 18.
The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.
IV
In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant's act of penetration was undertaken in circumstances that led the defendant reasonably [448] to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.
In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant's actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable.
In these cases neither the alleged victim's subjective state of mind nor the reasonableness of the alleged victim's actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.
In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of [449] surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.
In the context of a sexual penetration not involving unusual or added "physical force," the inclusion of "permission" as an aspect of "physical force" effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2-10c(3). The definition of "permission" serves to define the "consent" that otherwise might allow a defendant to avoid criminal liability. Because "physical force" as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the "consent" necessary to negate such "physical force" under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.
In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. 247 N.J. Super. at 260, 588 A.2d 1282. It acknowledged that its conclusion was "anomalous" because it recognized that "a woman has every right to end [physically intimate] activity without sexual penetration." Ibid. Thus, it added to its holding that "[e]ven the force of penetration might... be sufficient if it is shown to be employed to overcome the victim's unequivocal expressed desire to limit the encounter." Ibid.
The Appellate Division was correct in recognizing that a woman's right to end intimate activity without penetration is a [450] protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman's unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim's will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person's failure to protest or resist cannot be considered or used as justification for bodily invasion.
We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court's disposition.
Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.
For reversal and reinstatement — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
Opposed — None.
[1] The sexual assault statute, N.J.S.A.: 2C:14-2c(1), reads as follows:
c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:
(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;
(2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;
(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;
(4) The victim is at least 16 but less than 18 years old and:
(a) The actor is related to the victim by blood or affinity to the third degree; or
(b) The actor has supervisory or disciplinary power over the victim; or
(c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;
(5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.
Sexual assault is a crime of the second degree.
[2] The reform replaced the concept of carnal abuse, which was limited to vaginal intercourse, with specific kinds of sexual acts contained in a broad definition of penetration:
Sexual penetration means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. [N.J.S.A. 2C:14-1.]
7.2.6.5.5.2.7 People v. Liberta 7.2.6.5.5.2.7 People v. Liberta
64 N.Y.2d 152 (1984)
The People of the State of New York, Respondent,
v.
Mario Liberta, Appellant.
Court of Appeals of the State of New York.
Argued November 13, 1984.
Decided December 20, 1984.
Barbara Howe, Rose H. Sconiers and James A. W. McLeod for appellant.
Richard J. Arcara, Erie County District Attorney (John J. DeFranks and Jo W. Faber of counsel), for respondent.
Sarah Wunsch, Anne E. Simon, Laurie Woods, Joanne Schulman and Rhonda Copelon for Center for Constitutional Rights and others, amici curiae.
Elizabeth Holtzman, Kings County District Attorney (Barbara D. Underwood and Evan Wolfson of counsel), for Elizabeth Holtzman, amicus curiae.
Chief Judge COOKE and Judges JASEN, JONES, MEYER and KAYE concur; Judge SIMONS taking no part.
[158] WACHTLER, J.
The defendant, while living apart from his wife pursuant to a Family Court order, forcibly raped and sodomized her in the presence of their 2½ year old son. Under the New York Penal Law a married man ordinarily cannot be prosecuted for raping or sodomizing his wife. The defendant, however, though married at the time of the incident, is treated as an unmarried man under the Penal Law because of the Family Court order. On this appeal, he contends that because of the exemption for married men, the statutes for rape in the first degree (Penal Law, § 130.35) and sodomy in the first degree (Penal Law, § 130.50), violate the equal protection clause of the Federal Constitution (US Const, 14th Amdt). The defendant also contends that the rape statute violates equal protection because only men, and not women, can be prosecuted under it.
I
Defendant Mario Liberta and Denise Liberta were married in 1978. Shortly after the birth of their son, in October of that year, Mario began to beat Denise. In early 1980 Denise brought a proceeding in the Family Court in Erie County seeking protection from the defendant. On April 30, 1980 a temporary order of protection was issued to her by the Family Court. Under this order, the defendant was to move out and remain away from the family home, and stay away from Denise. The order provided that the defendant could visit with his son once each weekend.
On the weekend of March 21, 1981, Mario, who was then living in a motel, did not visit his son. On Tuesday, March 24, 1981 he called Denise to ask if he could visit his son on that day. Denise would not allow the defendant to come to her house, but she did agree to allow him to pick up their son and her and take them both back to his motel after being assured that a friend of his would be with them at all times. The defendant and his friend picked up Denise and their son and the four of them drove to defendant's motel.
When they arrived at the motel the friend left. As soon as only Mario, Denise, and their son were alone in the motel room, Mario attacked Denise, threatened to kill her, and forced her to perform fellatio on him and to engage in sexual intercourse with him. The son was in the room during the entire episode, and the [159] defendant forced Denise to tell their son to watch what the defendant was doing to her.
The defendant allowed Denise and their son to leave shortly after the incident. Denise, after going to her parents' home, went to a hospital to be treated for scratches on her neck and bruises on her head and back, all inflicted by her husband. She also went to the police station, and on the next day she swore out a felony complaint against the defendant. On July 15, 1981 the defendant was indicted for rape in the first degree and sodomy in the first degree.
II
Section 130.35 of the Penal Law provides in relevant part that "A male is guilty of rape in the first degree when he engages in sexual intercourse with a female * * * by forcible compulsion". "Female", for purposes of the rape statute, is defined as "any female person who is not married to the actor" (Penal Law, § 130.00, subd 4). Section 130.50 of the Penal Law provides in relevant part that "a person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person * * * by forcible compulsion". "Deviate sexual intercourse" is defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva" (Penal Law, § 130.00, subd 2). Thus, due to the "not married" language in the definitions of "female" and "deviate sexual intercourse", there is a "marital exemption" for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. For purposes of the rape and sodomy statutes, a husband and wife are considered to be "not married" if at the time of the sexual assault they "are living apart * * * pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation" (Penal Law, § 130.00, subd 4).
Defendant moved to dismiss the indictment, asserting that because he and Denise were still married at the time of the incident[1] he came within the "marital exemption" to both rape and sodomy. The People opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart, and they in fact were living apart, and thus were "not [160] married" for purposes of the statutes. The trial court granted the defendant's motion and dismissed the indictment, concluding that the temporary order of protection did not require Mario and Denise to live apart from each other, but instead required only that he remain away from her, and that therefore the "marital exemption" applied.
On appeal by the People, the Appellate Division reversed the trial court, reinstated the indictment, and remanded the case for trial. The Appellate Division held that a Family Court order of protection is within the scope of "[an] order * * * which by its terms or in its effect requires such living apart" even though it is directed only at a husband, and thus found that Mario and Denise were "not married" for purposes of the statute at the time of the incident.
The defendant was then convicted of rape in the first degree and sodomy in the first degree and the conviction was affirmed by the Appellate Division. Defendant asserts on this appeal that the temporary order of protection is not the type of order which enables a court to treat him and Denise as "not married" and that thus he is within the marital exemption. Defendant next asserts, assuming that because of the Family Court order he is treated just as any unmarried male would be, that he cannot be convicted of either rape in the first degree or sodomy in the first degree because both statutes are unconstitutional. Specifically, he contends that both statutes violate equal protection because they burden some, but not all males (all but those within the "marital exemption"), and that the rape statute also violates equal protection for burdening only men, and not women. The lower courts rejected the defendant's constitutional arguments, finding that neither statute violated the equal protection clause in the Fourteenth Amendment. Although we affirm the conviction of the defendant, we do not agree with the constitutional analysis of the lower courts and instead conclude that the marital and gender exemptions must be read out of the statutes prohibiting forcible rape and sodomy.
III
We first address the defendant's argument that, despite the order of protection, he was within the "marital exemption" to rape and sodomy and thus could not be prosecuted for either crime. Until 1978, the marital exemption applied as long as the marriage still legally existed. In 1978, the Legislature expanded the definition of "not married" to include those cases where the husband and wife were living apart pursuant to either a court [161] order "which by its terms or in its effect requires such living apart" or a decree, judgment, or written agreement of separation (L 1978, ch 735; see Penal Law, § 130.00, subd 4). We agree with the Appellate Division that the order of protection in the present case falls squarely within the first of these situations.
The legislative memorandum submitted with the original version of the 1978 amendment, after referring to the situations brought within the scope of "not married", stated: "In each of the alternatives set forth in this bill, there must be documentary evidence of a settled and mutual intention to dissolve the marital relationship, or a court determination that the spouses should, for the well-being of one or both, live apart" (NY Legis Ann, 1978, pp 403-404). Although the language of the amendment was subsequently changed to the form in which it was enacted, this legislative memorandum was submitted with the final version of the bill. In addition to this clear statement of legislative intent, the plain language of the statute indicates that an order of protection is within the meaning of an order "which by its terms or in its effect requires [the spouses to live] apart". This language would be virtually meaningless if it did not encompass an order of protection, as the statute separately provides for the other obvious situation where a court order would require spouses to live apart, i.e., where there is a decree or judgment of separation.[2]
Accordingly, the defendant was properly found to have been statutorily "not married" to Denise at the time of the rape.
IV
The defendant's constitutional challenges to the rape and sodomy statutes are premised on his being considered "not married" to Denise and are the same challenges as could be made by any unmarried male convicted under these statutes. The defendant's claim is that both statutes violate equal protection because they are underinclusive classifications which burden him, but not others similarly situated (see Tribe, American Constitutional Law, p 997). A litigant has standing to raise this claim even though he does not contend that under no circumstances could the burden of the statute be imposed upon him (see Michael M. v Sonoma County Superior Ct., 450 US 464, 472, n 8, 473; Orr v Orr, 440 US 268, 272-273). This rule of standing applies as well to a defendant in a criminal prosecution who, [162] while conceding that it is within the power of a State to make criminal the behavior covered by a statute, asserts that the statute he is prosecuted under violates equal protection because it burdens him but not others (see Linda R. S. v Richard D., 410 US 614, 619, n 5; Skinner v Oklahoma, 316 US 535; People v Illardo, 48 N.Y.2d 408, 417; Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 4-8). Thus, defendant's constitutional claims are properly before this court.
A. THE MARITAL EXEMPTION
As noted above, under the Penal Law a married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for rape[3] (see 1881 Penal Code, tit X, ch II, § 278). Although a marital exemption was not explicit in earlier rape statutes (see 1863 Rev Stats, part 4, ch I, tit 2, art 2, § 22), an 1852 treatise stated that a man could not be guilty of raping his wife (Barbour, Criminal Law of State of New York [2d ed], p 69). The assumption, even before the marital exemption was codified, that a man could not be guilty of raping his wife, is traceable to a statement made by the 17th century English jurist Lord Hale, who wrote: "[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract" (1 Hale, History of Pleas of the Crown, p 629). Although Hale cited no authority for his statement it was relied on by State Legislatures which enacted rape statutes with a marital exemption and by courts which established a common-law exemption for husbands.[4]
The first American case to recognize the marital exemption was decided in 1857 by the Supreme Judicial Court of Massachusetts, which stated in dictum that it would always be a defense to rape to show marriage to the victim (Commonwealth v Fogerty, 74 Mass 489). Decisions to the same effect by other [163] courts followed, usually with no rationale or authority cited other than Hale's implied consent view.[5] In New York, a 1922 decision noted the marital exemption in the Penal Law and stated that it existed "on account of the matrimonial consent which [the wife] has given, and which she cannot retract" (People v Meli, 193 NYS 365, 366 [Sup Ct]).
Presently, over 40 States still retain some form of marital exemption for rape.[6] While the marital exemption is subject to an equal protection challenge, because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals (Reed v Reed, 404 US 71, 75-76). Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon "some ground of difference that rationally explains the different treatment" (Eisenstadt v Baird, 405 US 438, 447; People v Onofre, 51 N.Y.2d 476, 491, cert den 451 US 987).
We find that there is no rational basis for distinguishing between marital rape and nonmarital rape. The various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny. We therefore declare the [164] marital exemption for rape in the New York statute to be unconstitutional.
Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has been cited most frequently in support of the marital exemption ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 21). Any argument based on a supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm (see Coker v Georgia, 433 US 584, 597-598; Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, 1527-1528). To ever imply consent to such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand (see De Angelis v De Angelis, 54 AD2d 1088; "Abolishing The Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 207; "Marital Rape Exemption", supra, at n 5, 52 NYU L Rev, at pp 311-312). Certainly, then, a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman ("Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at pp 19-20; cf. Planned Parenthood v Danforth, 428 US 52). If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should seek relief in the courts governing domestic relations, not in "violent or forceful self-help" (State v Smith, 85 NJ 193, 206).
The other traditional justifications for the marital exemption were the common-law doctrines that a woman was the property of her husband and that the legal existence of the woman was "incorporated and consolidated into that of the husband" (1 Blackstone's Commentaries [1966 ed], p 430; see State v Smith, supra, at pp 204-205; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 309-310). Both these doctrines, of course, have long been rejected in this State. Indeed, "[n]owhere in the common-law world — [or] in any modern society — is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being" (Trammel v United States, 445 US 40, 52).
Because the traditional justifications for the marital exemption no longer have any validity, other arguments have been advanced in its defense. The first of these recent rationales, [165] which is stressed by the People in this case, is that the marital exemption protects against governmental intrusion into marital privacy and promotes reconciliation of the spouses, and thus that elimination of the exemption would be disruptive to marriages. While protecting marital privacy and encouraging reconciliation are legitimate State interests, there is no rational relation between allowing a husband to forcibly rape his wife and these interests. The marital exemption simply does not further marital privacy because this right of privacy protects consensual acts, not violent sexual assaults (see Griswold v Connecticut, 381 US 479, 485-486; "Equal Protection Considerations", supra, n 6, 16 N Eng L Rev, at p 23). Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife,[7] he cannot justifiably rape his wife under the guise of a right to privacy.
Similarly, it is not tenable to argue that elimination of the marital exemption would disrupt marriages because it would discourage reconciliation. Clearly, it is the violent act of rape and not the subsequent attempt of the wife to seek protection through the criminal justice system which "disrupts" a marriage (Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, at p 855). Moreover, if the marriage has already reached the point where intercourse is accomplished by violent assault it is doubtful that there is anything left to reconcile (see Trammel v United States, 445 US 40, 52, supra; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 315). This, of course, is particularly true if the wife is willing to bring criminal charges against her husband which could result in a lengthy jail sentence.
Another rationale sometimes advanced in support of the marital exemption is that marital rape would be a difficult crime to prove. A related argument is that allowing such prosecutions could lead to fabricated complaints by "vindictive" wives. The difficulty of proof argument is based on the problem of showing lack of consent. Proving lack of consent, however, is often the most difficult part of any rape prosecution, particularly where the rapist and the victim had a prior relationship (see "Spousal Exemption to Rape", supra, at n 4, 65 Marq L Rev, at p 125; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314). Similarly, the possibility that married women will fabricate complaints would seem to be no greater than the possibility of unmarried women doing so ("Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 314; "Equal Protection Considerations", [166] supra, n 6, 16 N Eng L Rev, at p 24).[8] The criminal justice system, with all of its built-in safeguards, is presumed to be capable of handling any false complaints. Indeed, if the possibility of fabricated complaints were a basis for not criminalizing behavior which would otherwise be sanctioned, virtually all crimes other than homicides would go unpunished.
The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. The fact that rape statutes exist, however, is a recognition that the harm caused by a forcible rape is different, and more severe, than the harm caused by an ordinary assault (see "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at p 316; "Abolishing the Marital Exemption", supra, n 4, 1983 U of Ill L Rev, at p 208). "Short of homicide, [rape] is the `ultimate violation of self'" (Coker v Georgia, 433 US 584, 597 [citation omitted], supra). Under the Penal Law, assault is generally a misdemeanor unless either the victim suffers "serious physical injury" or a deadly weapon or dangerous instrument is used (Penal Law, §§ 120.00, 120.05, 120.10). Thus, if the defendant had been living with Denise at the time he forcibly raped and sodomized her he probably could not have been charged with a felony, let alone a felony with punishment equal to that for rape in the first degree.[9]
Moreover, there is no evidence to support the argument that marital rape has less severe consequences than other rape. On the contrary, numerous studies have shown that marital rape is frequently quite violent and generally has more severe, traumatic effects on the victim than other rape (see, generally, Russell, Rape In Marriage, pp 190-199; "Rape Prosecution", supra, at n 6, [167] 7 Vt L Rev, at pp 45-46; "Abolishing the Marital Exemption", supra, at n 4, 1983 U of Ill L Rev, at p 209).
Among the recent decisions in this country addressing the marital exemption, only one court has concluded that there is a rational basis for it (see People v Brown, 632 P2d 1025 [Col]).[10] We agree with the other courts which have analyzed the exemption, which have been unable to find any present justification for it (see People v De Stefano, 121 Misc 2d 113; Commonwealth v Chretien, 383 Mass 123; State v Smith, 85 NJ 193, supra; Weishaupt v Commonwealth, 227 Va 389, supra; State v Rider, 449 So 2d 903 [Fla App]; State v Smith, 401 So 2d 1126 [Fla App]). Justice Holmes wrote: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past" (Holmes, The Path of the Law, 10 Harv L Rev 457, 469). This statement is an apt characterization of the marital exemption; it lacks a rational basis, and therefore violates the equal protection clauses of both the Federal and State Constitutions (US Const, 14th Amdt, § 1; NY Const, art I, § 11).
B. THE EXEMPTION FOR FEMALES
Under the Penal Law only males can be convicted of rape in the first degree.[11] Insofar as the rape statute applies to acts of "sexual intercourse", which, as defined in the Penal Law (see Penal Law, § 130.00) can only occur between a male and a female, it is true that a female cannot physically rape a female and that therefore there is no denial of equal protection when punishing only males for forcibly engaging in sexual intercourse with females.[12] The equal protection issue, however, stems from the fact that the statute applies to males who forcibly rape females but does not apply to females who forcibly rape males.
Rape statutes historically applied only to conduct by males against females, largely because the purpose behind the proscriptions [168] was to protect the chastity of women and thus their property value to their fathers or husbands (see State v Smith, 85 NJ, at p 204, supra; 2 Burdick, Law of Crime, pp 218-225; Comment, Rape Laws, Equal Protection, and Privacy Rights, 54 Tulane L Rev 456, 457 [hereafter cited as "Rape Laws"]). New York's rape statute has always protected only females, and has thus applied only to males (see Penal Law, § 130.35; 1909 Penal Law, § 2010; 1881 Penal Code, tit X, ch II, § 278). Presently New York is one of only 10 jurisdictions that does not have a gender-neutral statute for forcible rape.[13]
A statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective (Caban v Mohammed, 441 US 380, 388; Craig v Boren, 429 US 190, 197; People v Whidden, 51 N.Y.2d 457, 460, app dsmd 454 US 803). This test applies whether the statute discriminates against males or against females (Caban v Mohammed, 441 US, at p 394, supra; Orr v Orr, 440 US 268, 279, supra; People v Whidden, supra). The People bear the burden of showing both the existence of an important objective and the substantial relationship between the discrimination in the statute and that objective (Wengler v Druggists Mut. Ins. Co., 446 US 142, 151-152; Caban v Mohammed, 441 US, at p 393, supra). This burden is not met in the present case, and therefore the gender exemption also renders the statute unconstitutional.
The first argument advanced by the People in support of the exemption for females is that because only females can become pregnant the State may constitutionally differentiate between forcible rapes of females and forcible rapes of males. This court and the United States Supreme Court have upheld statutes which subject males to criminal liability for engaging in sexual intercourse with underage females without the converse being true (People v Whidden, supra; Michael M. v Sonoma County Superior Ct., 450 US 464, supra). The rationale behind these decisions was that the primary purpose of such "statutory rape" laws is to protect against the harm caused by teenage pregnancies, there being no need to provide the same protection to young males (see Michael M. v Sonoma County Superior Ct., 450 US, at pp 470-473, supra; People v Whidden, 51 NY2d, at p 461, supra).
[169] There is no evidence, however, that preventing pregnancies is a primary purpose of the statute prohibiting forcible rape, nor does such a purpose seem likely (see "Rape Laws", op. cit., 54 Tulane L Rev, at p 467). Rather, the very fact that the statute proscribes "forcible compulsion" shows that its overriding purpose is to protect a woman from an unwanted, forcible, and often violent sexual intrusion into her body (cf. Ballard v United States, 430 A2d 483 [DC App]; "Rape Laws", op. cit., at p 468).[14] Thus, due to the different purposes behind forcible rape laws and "statutory" (consensual) rape laws, the cases upholding the gender discrimination in the latter are not decisive with respect to the former, and the People cannot meet their burden here by simply stating that only females can become pregnant.
The People also claim that the discrimination is justified because a female rape victim "faces the probability of medical, sociological, and psychological problems unique to her gender". This same argument, when advanced in support of the discrimination in the statutory rape laws, was rejected by this court in People v Whidden (51 NY2d, at p 461, supra), and it is no more convincing in the present case. "[A]n `"archaic and overbroad" generalization' * * * which is evidently grounded in long-standing stereotypical notions of the differences between the sexes, simply cannot serve as a legitimate rationale for a penal provision that is addressed only to adult males" (id., quoting Craig v Boren, 429 US, at p 198, supra; cf. Orr v Orr, 440 US, at p 283, supra; Tribe, Constitutional Law, p 1066).
Finally, the People suggest that a gender-neutral law for forcible rape is unnecessary, and that therefore the present law is constitutional, because a woman either cannot actually rape a man or such attacks, if possible, are extremely rare. Although the "physiologically impossible" argument has been accepted by several courts (see People v Reilly, 85 Misc 2d 702, 706-707; Brooks v State, 24 Md App 334; Finley v State, 527 SW2d 553 [Tex Crim App]), it is simply wrong. The argument is premised on the notion that a man cannot engage in sexual intercourse unless he is sexually aroused, and if he is aroused then he is consenting to intercourse. "Sexual intercourse" however, "occurs upon any penetration, however slight" (Penal Law, § 130.00); this degree of contact can be achieved without a male being aroused and thus without his consent.
As to the "infrequency" argument, while forcible sexual assaults by females upon males are undoubtedly less common than [170] those by males upon females this numerical disparity cannot by itself make the gender discrimination constitutional. Women may well be responsible for a far lower number of all serious crimes than are men, but such a disparity would not make it permissible for the State to punish only men who commit, for example, robbery (cf. Craig v Boren, 429 US, at pp 200-204, supra).
To meet their burden of showing that a gender-based law is substantially related to an important governmental objective the People must set forth an "`exceedingly persuasive justification'" for the classification (Mississippi Univ. for Women v Hogan, 458 US 718, 724; Kirchberg v Feenstra, 450 US 455, 461), which requires, among other things, a showing that the gender-based law serves the governmental objective better than would a gender-neutral law (Orr v Orr, 440 US, at pp 281-282, supra; "Rape Laws", op. cit., 54 Tulane L Rev, at p 468; cf. Michael M. v Sonoma County Superior Ct., 450 US, at p 464, supra). The fact that the act of a female forcibly raping a male may be a difficult or rare occurrence does not mean that the gender exemption satisfies the constitutional test. A gender-neutral law would indisputably better serve, even if only marginally, the objective of deterring and punishing forcible sexual assaults. The only persons "benefitted" by the gender exemption are females who forcibly rape males. As the Supreme Court has stated, "[a] gender-based classification which, as compared to a gender-neutral one, generates additional benefits only for those it has no reason to prefer cannot survive equal protection scrutiny" (Orr v Orr, 440 US, at pp 282-283, supra).
Accordingly, we find that section 130.35 of the Penal Law violates equal protection because it exempts females from criminal liability for forcible rape.
V
Having found that the statutes for rape in the first degree and sodomy in the first degree are unconstitutionally underinclusive, the remaining issue is the appropriate remedy for these equal protection violations. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the coverage of the statute to those formerly excluded (Califano v Westcott, 443 US 76, 89; Welsh v United States, 398 US 333, 361 [Harlan, J., concurring]; Matter of Burrows v Board of Assessors, 64 N.Y.2d 33; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136). Accordingly, the unconstitutionality of [171] one part of a criminal statute does not necessarily render the entire statute void (see United States v Jackson, 390 US 570, 585; People v Mancuso, 255 N.Y. 463, 473).
This court's task is to discern what course the Legislature would have chosen to follow if it had foreseen our conclusions as to underinclusiveness (Matter of Westinghouse Elec. Corp. v Tully, 63 N.Y.2d 191). As Judge Cardozo wrote over 50 years ago, "`The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether'" (People v Mancuso, 255 N.Y. 463, 474, supra; cf. United States v Jackson, 390 US 570, 585, supra ["`(u)nless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law'"]). These principles of severance apply as well where elimination of an invalid exemption will impose burdens on those not formerly burdened by the statute (see Orr v Orr, 440 US 268, 271-272, 283-284, supra; Goodell v Goodell, 77 AD2d 684; Childs v Childs, 69 AD2d 406), and where the exemption is part of a criminal statute (see Skinner v Oklahoma, 316 US 535, 543, supra; State v Books, 225 NW2d 322, 325 [Iowa]; cf. Welsh v United States, 398 US, at p 361 [Harlan, J., concurring], supra).
The question then is whether the Legislature would prefer to have statutes which cover forcible rape and sodomy, with no exemption for married men who rape or sodomize their wives and no exception made for females who rape males, or instead to have no statutes proscribing forcible rape and sodomy. In any case where a court must decide whether to sever an exemption or instead declare an entire statute a nullity it must look at the importance of the statute, the significance of the exemption within the over-all statutory scheme, and the effects of striking down the statute (Califano v Westcott, 443 US, at p 90, supra; Welsh v United States, 398 US, at pp 365, 366 [Harlan, J., concurring], supra; Developments in the Law — Equal Protection, 82 Harv L Rev 1065, 1136-1137). Forcible sexual assaults have historically been treated as serious crimes and certainly remain so today (see, generally, Coker v Georgia, 433 US 584, supra; 1 Callaghan's Criminal Law in New York [Groble, 3d ed], § 19:01). Statutes prohibiting such behavior are of the utmost importance, and to declare such statutes a nullity would have a disastrous effect on the public interest and safety. The inevitable conclusion is that the Legislature would prefer to eliminate [172] the exemptions and thereby preserve the statutes. Accordingly we choose the remedy of striking the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree. Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed.
Though our decision does not "create a crime", it does, of course, enlarge the scope of two criminal statutes. We recognize that a court should be reluctant to expand criminal statutes, due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictate our following such a course in light of the catastrophic effect that striking down the statutes and thus creating a hiatus would have (cf. Goodell v Goodell, 77 AD2d, at p 685, supra). Courts in other States have in numerous cases applied these same principles in eliminating an unconstitutional exception from a criminal statute and thereby enlarging the scope of the statute.[15] The decision most similar factually to the present one comes from the Alaska Supreme Court in Plas v State (598 P2d 966). That court addressed an equal protection challenge by a female prostitute to a statute which criminalized prostitution, and defined it as a female offering her body for sexual intercourse for hire. The court agreed with the defendant that the statute violated equal protection because it covered only females, but chose to remedy this underinclusion by striking the definition, thereby expanding the statute to cover any person who engaged in prostitution, and affirmed her conviction.[16]
The defendant cannot claim that our decision to retain the rape and sodomy statutes, and thereby affirm his conviction, denies him due process of the law. The due process clause of the [173] Fourteenth Amendment requires that an accused have had fair warning at the time of his conduct that such conduct was made criminal by the State (see Bouie v City of Columbia, 378 US 347). Defendant did not come within any of the exemptions which we have stricken, and thus his conduct was covered by the statutes as they existed at the time of his attack on Denise.
Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (US Const, 14th Amdt), and the prohibition against ex post facto laws (US Const, art I, § 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision.
To reverse the defendant's conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. Indeed if we were to reverse no person arrested for forcible rape or sodomy prior to the date of this decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have the conviction vacated. As the equal protection clause does not require us to reach such a result, we decline to do so.
Accordingly, the order of the Appellate Division should be affirmed.
Order affirmed.
[1] The defendant and Denise were divorced several months after the assault in the motel room.
[2] The other prerequisite for finding a husband and wife to be "not married" based on an order of protection is that they were in fact living apart at the time of the incident. This is a question of fact which was resolved against the defendant by the jury and will not be disturbed by this court.
[3] Although the discussion of the marital exemption will focus on rape, the constitutional analysis is applicable to sodomy as well.
[4] The influence of Hale's statement, despite its failure to cite any authority has been discussed by several courts and commentators (see State v Smith, 85 NJ 193, 199; Commonwealth v Chretien, 383 Mass 123, 124, n 1; State v Rider, 449 So 2d 903, 904 [Fla App]; Note, Abolishing The Marital Exemption For Rape: A Statutory Proposal, 1983 U of Ill L Rev 201, 202 [hereafter cited as "Abolishing the Marital Exemption"]; Note, Spousal Exemption To Rape, 65 Marq L Rev 120, 121 [hereafter cited as "Spousal Exemption"]). Interestingly, Hale's statement has not been fully accepted in England (see Weishaupt v Commonwealth, 227 Va 389, 315 SE2d 847, 850-852).
[5] See, generally, State v Smith, 85 NJ, at p 200; "Spousal Exemption", supra, at n 4, at pp 129-130; Note, Marital Rape Exemption, 52 NYU L Rev 306, 309 (hereafter cited as "Marital Rape Exemption").
[6] Statutes in nine States provide a complete exemption to rape as long as there is a valid marriage (Alabama, Arkansas, Kansas, Montana, South Dakota, Texas, Vermont, Washington, West Virginia). In 26 other States, statutes provide for a marital exemption but with certain exceptions, most typically where the spouses are living apart pursuant to either a court order or a separation agreement (Alaska, Arizona, Colorado, Idaho, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Wyoming, Wisconsin). In three other States (Georgia, Mississippi, Nebraska) and the District of Columbia the exemption appears to still exist as a common-law doctrine, and it may still have a limited application in Virginia (see Weishaupt v Commonwealth, 227 Va 389). Finally, in Connecticut, Delaware, Hawaii, and Iowa, there is a marital exemption for some, but not all degrees of forcible rape (see, generally, for statutory references, Schwartz, Spousal Exemption for Criminal Rape Prosecution, 7 Vt L Rev 33, 38-41 [hereafter cited as "Rape Prosecution"]; Note, Clancy, Equal Protection Considerations of the Spousal Sexual Assault Exclusion, 16 N Eng L Rev 1, 2-3, n 4 [hereafter cited as "Equal Protection Considerations"]; "Abolishing the Marital Exemption", supra, at n 4, at pp 203-205).
[7] A wife may sue her husband for torts he commits against her, including assault and battery (General Obligations Law, § 3-313).
[8] The stigma and other difficulties associated with a woman reporting a rape and pressing charges probably deter most attempts to fabricate an incident; rape remains a grossly under-reported crime (see Note, Rape Reform and a Statutory Consent Defense, 74 J of Crim L & Criminology 1518, 1519, n 7; "Marital Rape Exemption", supra, n 5, 52 NYU L Rev, at pp 314-315; "Spousal Exemption", supra, n 4, 65 Marq L Rev, at p 126).
[9] Rape in the first degree and sodomy in the first degree are "Class B violent felony offenses", the minimum sentence for which is a jail term of 2-6 years, and the maximum sentence for which is a jail term of 8 1/3-25 years (Penal Law, § 70.02). The defendant possibly could have been charged with coercion in the first degree, a class D felony (Penal Law, § 135.65), but not all forcible rapes meet all the elements of the coercion statute (see People v Greer, 42 N.Y.2d 170, 174-175), and thus if a husband cannot be prosecuted under the rape statute when he forcibly rapes his wife he may be able to escape prosecution for any felony.
[10] The Colorado Supreme Court, relying on a 1954 Law Review comment, stated that the marital exemption "may remove a substantial obstacle to the resumption of normal marital relations" and "averts difficult emotional issues and problems of proof inherent in this sensitive area" (632 P2d, at p 1027). We have considered, and rejected, both of these arguments.
[11] The sodomy statute applies to any "person" and is thus gender neutral. Defendant's gender-based equal protection challenge is therefore addressed only to the rape statute.
[12] A female can, however, be convicted under the present statute as an accomplice to a forcible rape of a female (Penal Law, §§ 20.00, 20.05, subd 3; People v Evans, 58 AD2d 919).
[13] The other nine jurisdictions are Alabama, Delaware, District of Columbia, Georgia, Idaho, Kansas, Mississippi, Oregon, and Virginia. Some of these other States, like New York (see Penal Law, § 130.65), have other statutes which proscribe conduct including the forcible rape of a male by a female and which have less severe punishments than for forcible rape of a female by a male.
[14] In at least two States there is a specific statute which states that "[t]he essential guilt of rape consists in the outrage to the person and feelings of the female" (Okla Stats Ann, tit 21, § 1113; Idaho Code Ann, § 18-6103).
[15] See Plas v State, 598 P2d 966 (Alaska); People v Henry, 131 Cal App 82; State v Books, 225 NW2d 322 (Iowa); City of Duluth v Sarette, 283 NW2d 533 (Minn); Tom & Jerry v Nebraska Liq. Control Comm., 183 Neb 410; State v Fowler, 193 NC 290; State v McLeary, 65 NC App 174, affd 311 NC 397; State v Burgun, 49 Ohio App 2d 112; State v Watkins, 259 SC 285, vacated on other grounds 413 US 905; Matter of Tullos, 541 SW2d 167 (Tex Crim App).
[16] We note also that in the decision previously discussed which found a rational basis for the marital exemption, People v Brown (632 P2d 1025 [Col]), the court stated that if it did find that the exemption was unconstitutional it would strike just the exemption and leave intact the sexual assault statute which would then cover all persons (id., at p 1027).
7.2.6.5.5.2.8 Commonwealth v. Appleby 7.2.6.5.5.2.8 Commonwealth v. Appleby
380 Mass. 296 (1980)
402 N.E.2d 1051
COMMONWEALTH
vs.
KENNETH A. APPLEBY.
Supreme Judicial Court of Massachusetts, Hampden.
December 3, 1979.
April 1, 1980.
Present: HENNESSEY, C.J., QUIRICO, WILKINS, LIACOS, & ABRAMS, JJ.
[297] John P. Ward for the defendant.
Dianne M. Dillon, Special Assistant District Attorney, for the Commonwealth.
QUIRICO, J.
On November 22, 1978, a Superior Court jury convicted Kenneth A. Appleby of assault and battery with a dangerous weapon, to wit: a riding crop. G.L.c. 265, § 15A.[1] The judge sentenced Appleby to eight to ten years in the Massachusetts Correctional Institution at Walpole. Appleby appealed pursuant to G.L.c. 278, §§ 33A-33G, and we granted his petition for direct appellate review. He alleges error in (1) the judge's denial of a directed verdict, and (2) the judge's instructions to the jury on the issues of consent and intent. We affirm the conviction.
Kenneth Appleby and Steven Cromer were engaged in a homosexual, sadomasochistic relationship for over two years, during most of which period they lived together. Appleby frequently beat Cromer. Appleby's general defense to the indictments was that Cromer had consented to the beatings, and that he, Appleby, had intended them for Cromer's sexual gratification. In addition to pressing his arguments on consent and intent in this appeal, he maintains that he should have had a directed verdict because the Commonwealth failed to present a prima facie case of assault and battery by means of a dangerous weapon as set forth in G.L.c. 265, § 15A.
By far the major portion of the Commonwealth's case consisted of the testimony of the alleged victim, Steven Cromer. There follows a summary of his testimony; material from other sources is so noted. The summary continues to the point where we first mentioned Appleby's motion for a directed verdict.
Cromer lived with Appleby during most of the period from June, 1974, until August 31, 1976 (the date of the incident for which Appleby was convicted). His entire relationship [298] with Appleby, including the homosexual acts, was forced upon him; he lived with Appleby as a "servant," performing household and other duties. Appleby beat him when he was dissatisfied with Cromer's performance of these duties. Their residence was like a "military camp," with Appleby owning a variety of weapons and employing them on persons in his "torture chamber," which Cromer was forced to help design.
In October, 1975, an enraged Appleby beat Cromer badly with a bullwhip and baseball bat, fracturing his kneecap. Cromer was hospitalized for this injury until December 4. He received surgery to repair the kneecap, and he spent several weeks on crutches thereafter.
En route to the hospital, Appleby suggested to Cromer that they tell hospital personnel that Cromer had had an epileptic seizure and fallen down some stairs, and Cromer, who had had seizures before, agreed and maintained the story throughout the hospital stay. They fabricated the story "[t]o cover things up." When he left the hospital, Cromer returned to Appleby's residence in West Springfield, where he resumed his "duties" as best he could.
When asked what distinguished this October, 1975, incident from other beatings, Cromer stated that it was "going a little over what I was used to." The October, 1975, incident formed the basis of the first indictment, on which the jury acquitted Appleby.
A second incident, the subject of the second indictment, allegedly occurred on February 28, 1976, when Appleby beat Cromer with a bullwhip because of displeasure with a sandwich Cromer had prepared. A friend of Appleby was outside at the time, and Appleby called to this person to bring snow to apply to Cromer's wounds. Cromer liked this "attention": "Other beatings I had, nothing came. No attention was made to me like that. It was unusual in that respect." The jury acquitted Appleby on this indictment as well.
The third incident occurred on August 31, 1976. Cromer served Appleby some ice cream which had melted. This enraged [299] Appleby, who reached for a riding crop with which he hit Cromer. Cromer described the blow as follows: "He just connected on the back.... He was sitting down.... [H]e just lashed with it like that (Indicates.) And it just barely connected with my back. There were some thongs at the end and I just felt them hit me, and he was losing his temper.... I felt the whip hit me. A glancing blow." Cromer, in his underwear, ran from the house and to a monastery, where a priest encouraged him to telephone his relatives. His brother and sister-in-law came to the monastery for him, and later helped him to remove his personal belongings from Appleby's residence. Cromer never returned to Appleby's place thereafter. The jury convicted Appleby on the indictment involving the riding crop incident.
Cromer maintained that Appleby was sadistic, but denied that he was engaged in a sadomasochistic relationship with Appleby. He denied that he was a homosexual, and he claimed the homosexual acts were forced upon him from the beginning. He said he could not recall whether violence and sexual activity with Appleby occurred close in time. Cromer said "Mr. Appleby explained later that he delighted in violence to an extent that he said it was almost sexual or sexual."
Cromer acquiesced in this relationship because Appleby "took me over in a way.... He had convinced me that people were constantly following me and observing my every action and reporting to him." Cromer told no one about the relationship, and sought aid from no one, because Appleby told him no one would believe him, that he was a "hippie," a "weirdo," and on drugs. He thought that even the police could not "stop" Appleby. He was under "duress" the entire time because he feared that Appleby would harm him or members of his family if he did not continue in their relationship.
At one point Cromer stated that he never protested or told Appleby to stop, because he was afraid to do so. At [300] another point he stated that he did protest Appleby's sadistic activity.
Cromer had a low opinion of himself for having got into the situation, and he "lost" himself in his functions at the Appleby residence. He said that after the bullwhip incident, "I felt that I was just a joke — that I had taken the beating and had done nothing about it. Just took the beating, and when he told me to clean up the food off the floor after that, I did, and Jay Robbins [Appleby's friend] came in and saw me on my hands and knees doing this."
At the close of the Commonwealth's case-in-chief, which covered almost 700 pages of the trial transcript, Appleby moved for a directed verdict on the basis that the Commonwealth had failed to establish a prima facie case. The judge denied the motion. The defendant then presented evidence which, including his own testimony, covered almost 600 pages of the transcript. The defendant renewed his motion for a directed verdict at the end of the trial, and it was again denied.
Since the principal question for the jury was one of the credibility of the two main witnesses, Cromer and Appleby, we also summarize Appleby's account of his relationship with Cromer. This summary will continue to the point where we refer to the defense witness Webster.
Appleby's general defense to the three charges was that Cromer had consented to their sadomasochistic relationship. He admitted that he had whipped or beaten Cromer almost daily. He denied, however, that the fractured kneecap was caused by a beating; rather, he asserted the truth of the story of the epileptic seizure and fall down the stairs. (He also testified to witnessing a prior seizure and presented medical evidence of Cromer's epilepsy.) As to the second incident, he denied that he ever beat Cromer severely and said that February 28, 1976, did not stick out in his mind as involving any incident different from the usual daily whippings. Regarding the riding crop incident, Appleby testified that Cromer ran out of the house in his underwear on a rainy night, but said that this occurred on July 24, [301] 1976, after a conversation, and that there was no beating or whipping of any kind that evening.
Appleby trained attack dogs for a living, and kept whips in his house for that purpose. He ascribed the initiation of the sadomasochistic activities entirely to Cromer. He met Cromer while the latter was "hustling" sex for money on a Springfield street. At that time Appleby was a "conventional" homosexual. The first night they met, Cromer showed him a braided rope he had made from clothesline, and said he liked to be beaten with that. Appleby refused to engage in beatings. Cromer beat himself with the clothesline, and Appleby told him not to use it. In the months before Cromer moved in, their "regular sexual ritual" consisted solely of fellatio and anal intercourse. Cromer told Appleby that he took drugs, and Appleby saw Cromer injecting himself and taking pills.
One evening, Cromer asked to go home with Appleby; the latter assented on the condition that Cromer not bring any drugs. Shortly after they arrived, Cromer spotted one of the whips Appleby used to train dogs. Cromer asked Appleby to beat him with the whip, but the latter refused.
The next day, Cromer telephoned Appleby and asked if he could come to live with him, because some people were following him and trying to kill him. Appleby told Cromer he had taken too many pills. Shortly thereafter, Cromer arrived at Appleby's home and begged to be let in. Appleby told him he could move in if he fulfilled four conditions; Cromer balked at the condition that he give up drugs, but finally acquiesced, and moved all of his belongings into Appleby's home. One of the other conditions was that there would be no beatings, but within two weeks Appleby reneged on this condition and agreed to strike Cromer for the latter's sexual fulfilment.[2] He did this because Cromer begged for it, and because he, Appleby, had a sexual reaction to the sexual effect of the beatings on Cromer.
[302] After this, their relationship became a sadomasochistic one, as well as homosexual, and involved daily beatings of Cromer. At first, Cromer was able to attain sexual satisfaction with only a few strokes of a whip, but gradually he began to require more variety. Together they acquired or constructed leg irons, handcuffs, a torture rack, several other implements of torture, and a room which Cromer liked to call the "torture chamber."
When shown the riding crop on direct examination, Appleby denied ever using it on Cromer. On cross-examination, however, he admitted that the riding crop "was employed many times," and said that Cromer "favored" the crop, that "he would be whipped until he reached sexual orgasm." The riding crop never caused "welts," but only "redness;" in fact none of the beatings caused more than "redness." Appleby never enjoyed whipping Cromer; he enjoyed the sexual effect it had on Cromer and the fact that Cromer allowed him to have anal intercourse after each beating. When asked if he intended to strike Cromer, he said, "I did it with the intent to turn him on sexually."
Appleby had several other sadomasochistic relationships after Cromer left, and used the implements he had purchased or made for Cromer. All of the implements, including the riding crop, were found at Appleby's house in 1978.
Appleby presented as part of his case expert testimony of Dr. John Peter Webster, a minister and psychotherapist. Webster, who had counseled Appleby after his arrest, also had some knowledge of sadomasochism. We summarize his testimony. He defined sadomasochism as involving a fusion of the sexual and aggressive drives, and said the masochist may need to be "punished" in order to release inhibited sexual feelings. He said that the beatings are generally inseparable from the sexual part of the relationship, and that typically the masochist needs to feel helpless and dependent. Cromer's staying with Appleby under fear of harm to himself or his family "would certainly fit the pattern of masochism."
[303] The propriety of the denial of the motions for a directed verdict and the correctness of the judge's instructions to the jury both turn on certain questions of law, and we therefore address them first. Those questions are: (1) whether the riding crop was a "dangerous weapon" for purposes of G.L.c. 265, § 15A, (2) what sort of criminal intent is required by said § 15A, and (3) what role Appleby's consent defense should play in this case.
1. General Laws c. 265, § 15A reads: "Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one half years." Courts have classified dangerous weapons into two categories: those dangerous per se and those dangerous as used. See Commonwealth v. Farrell, 322 Mass. 606, 615 (1948).
(a) A "dangerous weapon per se" is an instrumentality designed and constructed to produce death or great bodily harm. State v. Luckey, 69 Ohio Op.2d 111, 113 (Ohio App. 1974). See also Farrell, supra. Thus, for example, firearms, daggers, stilettos and brass knuckles are usually classified as dangerous per se, because they are designed for the purpose of bodily assault or defense. On the other hand, pocket knives, razors, hammers, wrenches and cutting tools are not so classified. People v. Vaines, 310 Mich. 500, 505 (1945) (dictum). In one case dealing with a "driving whip," the court held that the whip was not dangerous per se because it was not designed for the offense or defense of persons. State v. Page, 15 S.D. 613, 615-616 (1902).[3]
A riding crop is not designed to inflict death or serious bodily harm upon either persons or animals. It is designed [304] to inflict temporary pain in order to cause an animal to move. Therefore it is not dangerous per se.
(b) Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be "dangerous weapons." See Farrell, supra (lighted cigarette); Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (automobile door used to strike police officer); Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 486-487 (1974) ("kitchen-type" knife and German shepherd dog may both be used as "dangerous weapons"), S.C., 367 Mass. 411 (1975); United States v. Loman, 551 F.2d 164, 169 (7th Cir.) (walking stick used with enough force to break it), cert. denied, 433 U.S. 912 (1977); United States v. Johnson, 324 F.2d 264, 266 (4th Cir.1963) (chair brought down upon victim's head); Bennett v. State, 237 Md. 212, 216 (1964) (microphone cord tied around victim's neck, causing inability to speak and marks on throat); Vaines, supra at 505-506 (ordinary jackknife); People v. Buford, 69 Mich. App. 27, 30 (1976) (dictum) (automobile, broomstick, flashlight and lighter fluid may all be dangerous as used); State v. Howard, 125 N.J. Super. 39, 45 (1973) (straight razor). Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case. Farrell, supra at 614-615. Tarrant, 2 Mass. App. Ct. at 487. Vaines, supra at 505. Buford, supra at 32. Howard, supra at 47.
A riding crop, such as the one involved in this case, is capable of being used to inflict serious bodily harm, and possibly even to cause death. The riding crop Cromer identified as that which Appleby used on August 31, was admitted in evidence. We have examined it. It is approximately eighteen inches in length, and constructed of heavy braided leather wrapped around a solid leather core. At its thickest point, it is slightly less than one inch in diameter, tapering off to a diameter of about one-third of an inch. Cromer and Appleby both testified that leather thongs were missing from the end by the time of the trial. The riding crop is more substantial than one might anticipate an ordinary riding crop to be. It resembles instead a short whip. We [305] are satisfied that it could be employed to inflict serious bodily harm. Therefore, we cannot hold as a matter of law that it can never be a dangerous weapon as used.
(c) The jury in this case had to find that the riding crop was in fact dangerous as used in order to convict Appleby under § 15A. Whether they could lawfully have done so depends on the gravamen of the offense of assault and battery by means of a dangerous weapon as set forth in § 15A.
The meaning of "dangerous weapon" depends to a certain extent on the context in which it is used. We have held that the thrust of the offense of assault with a dangerous weapon, for example, is the outward demonstration of force which breaches the peace, and therefore even an unloaded gun (known only by the defendant to be unloaded) may be a dangerous weapon in that context. Commonwealth v. Henson, 357 Mass. 686, 692 (1970). See also United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir.1971) (assault with dangerous weapon does not require proof gun was loaded). The gist of the offense of armed robbery is robbery "while armed," and thus there is no need to prove the defendant used a weapon other than to threaten. Henson, supra at 690. Commonwealth v. Tarrant, 367 Mass. 411, 415-416, 418 (1975) (dog may be "dangerous weapon" for armed robbery, G.L.c. 265, § 17, and Commonwealth need not prove actually dangerous or used in harm-inflicting manner).
Thus the relevant behavior for the offense of assault with a dangerous weapon, G.L.c. 265, § 15B, is an outward demonstration of force, and § 15B requires only apparent ability to injure. Henson, supra at 692-693. The behavior for robbery while armed with a dangerous weapon, G.L.c. 265, § 17, which distinguishes it from unarmed robbery, G.L.c. 265, § 19, is the objectively menacing behavior of the defendant with the instrumentality causing fear in his victims. Tarrant, 367 Mass. at 415. Whether a weapon not dangerous per se qualifies for either of these statutory crimes is a question of fact to be decided "by objective standards [306] and not by the victim's subjective apprehension." Tarrant, 367 Mass. at 416. Henson, supra at 693.
One of the principal distinctions between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon is in the punishment. The maximum penalty for the former is five years, G.L.c. 265, § 15B, and for the latter is ten years, G.L.c. 265, § 15A. We must therefore ask what behavior distinguishes the two crimes, and whether the meaning of "dangerous weapon" is different.
"The definition of an assault is, an attempt or offer with force and violence to do injury to a person either from malice or wantonness; and a battery is where an injury is actually inflicted under such circumstances." Commonwealth v. Ruggles, 6 Allen 588, 590-591 (1863). "An assault and battery is the intentional and unjustified use of force upon the person of another, however slight ..." (emphasis supplied). Commonwealth v. McCan, 277 Mass. 199, 203 (1931).[4] Under § 15A, the battery must be accomplished by means of the dangerous weapon, and not merely while possessing the weapon. Salemme v. Commonwealth, 370 Mass. 421, 424 (1976). Commonwealth v. Manning, 6 Mass. App. Ct. 430, 436, 438 (1978). Commonwealth v. Jacobs, 6 Mass. App. Ct. 618, 622-623 (1978). Therefore, § 15A requires an assault by means of a dangerous weapon, see Henson, supra, and also an intentional, unjustified touching, however slight, by means of that dangerous weapon. The criminal law of assault and battery by means of a dangerous weapon expresses society's desire to punish [307] the use of an instrument which is capable of producing serious bodily harm. We hold that there was sufficient evidence for the jury to find that the riding crop, used as it was by Appleby in this case, was a dangerous weapon.[5] The law need not wait until the instrument actually does cause serious bodily harm in order to classify the weapon as dangerous. Any touching with a potentially dangerous weapon can be assault and battery by means of a dangerous weapon for purposes of § 15A, provided that the assault element and the intentional application of force are established. Commonwealth v. Hawkins, 157 Mass. 551, 553 (1893), and cases cited.
2. We next examine the type of criminal intent necessary for the crimes punishable under G.L.c. 265, § 15A. It has been held that assault and battery by means of a dangerous weapon (G.L.c. 265, § 15A) is a general intent crime in Massachusetts. See Commonwealth v. Randall, 4 Gray 36, 38-39 (1855); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 759 n. 8 (1978). Compare G.L.c. 265, § 15A, with G.L.c. 265, § 14 (mayhem: "with malicious intent to maim or disfigure" and "by such assault disfigures") and G.L.c. 265, § 15 (assault with intent to murder or maim); cf. Commonwealth v. Hogan, 379 Mass. 190, 192 (1979). Section 15A does not require specific intent to injure; it requires only general intent to do the act causing injury. Hawkins, supra. See generally W.R. Lafave & A.W. Scott, Jr., Criminal Law § 28 (1972).[6]
[308] The required intent is satisfied by proof of intent to commit the lesser included crime of assault with a dangerous weapon. See Henson, supra; Commonwealth v. Slaney, 345 Mass. 135, 137-139, 141 (1962). Once an actor intends to commit assault with an object capable of causing bodily harm,[7] he is threatening to use the instrumentality in a dangerous fashion. The offense of assault and battery by means of a dangerous weapon is complete once the threat is consummated by the application of any force upon the victim by means of the instrumentality. Hawkins, supra. This effectuates the policy of § 15A to deter the use of "neutral" objects in a dangerous fashion.
In sum, the offense of assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A, requires that the elements of assault be present (see Henson, supra; Slaney, supra), that there be a touching, however slight (McCan, supra), that that touching be by means of the weapon (Salemme, supra), and that the battery be accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.
3. The evidence in this case must be viewed in a strained manner in order to support Appleby's argument that the jury were required to find that Cromer consented to be hit with the riding crop. Cromer testified that he did not consent to any of the beatings, that the riding crop incident occurred [309] after an argument over melted ice cream, and that he immediately ran from the house when Appleby "lost his temper" and struck him. Appleby did not testify that there was any beating that evening which related to sexual activity or to which Cromer otherwise consented; he flatly denied that a beating had occurred on the night Cromer ran to the monastery. He further said this night was July 24, but Father Murray (from the monastery), Leon Cromer (Cromer's brother), and Mary Cromer (Cromer's sister-in-law) all testified that the monastery incident occurred on August 31. Furthermore, the riding crop incident was remote in time from the earlier alleged incidents, when a claim that Cromer consented to the relationship might have received more support in the evidence.
The only conceivable way that consent by Cromer on August 31 could be raised by the evidence is by inferences that a) Cromer consented to the relationship generally, and b) Appleby subjectively believed on the night in question that Cromer would consent to be hit with the crop on the basis of his past behavior. Giving Appleby the benefit of this rather strained construction, we shall briefly discuss the legal viability of Appleby's contention that as a matter of law Cromer could consent to their sadomasochistic relationship.
(a) Assuming that the riding crop incident occurred in relation to sexual behavior, the question is whether the State can regulate, by the law of assault and battery, violent behavior which occurs in private, consensual sexual relationships.
We held in Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), that G.L.c. 272, § 35, prohibiting "unnatural and lascivious" acts, "must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific conduct, which is inherent in § 35, requires such an interpretation. We do not decide whether a statute which explicitly prohibits sexual conduct, even if consensual and private, would be constitutionally infirm."
[310] After Balthazar, consent is a defense to a charge of "unnatural and lascivious" acts under c. 272, § 35. See also Commonwealth v. Hill, 377 Mass. 59, 62-63 (1979) (applying Balthazar retroactively); Balthazar v. Superior Court, 573 F.2d 698, 699 (1st Cir.1978) (dictum); People v. Onofre, 72 App. Div.2d 268 (N.Y. 1980). Appleby has cited no case, and we are aware of none, extending protection on either statutory or constitutional grounds beyond the sexual acts and to accompanying force or violence by means of dangerous weapons. See generally Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Towler v. Peyton, 303 F. Supp. 581 (W.D. Va. 1969) (defendant may constitutionally be convicted of forced acts of sodomy with wife). Any right to sexual privacy that citizens enjoy, and we do not here decide what the basis for such a right would be if it exists,[8] would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations. See generally Balthazar v. Superior Court, supra at 701 (dictum) (sadomasochistic behavior "universally condemned"); Onofre, supra (dictum) (privacy right not absolute; State may regulate conduct which "has the potential for working harm"; prevention of "physical violence and disorder" probably valid State interest).
General Laws c. 265, § 15A, is not aimed at regulating sexual conduct. Appleby was in no way charged with a crime for committing homosexual acts. Rather he was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of an assault and battery with a dangerous weapon. Farrell, supra at 620-621. See also Commonwealth v. Collberg, 119 Mass. 350 (1876).
[311] (b) The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another, as Appleby testified) does not prevent the State from protecting its citizens against physical harm. The invalidity of the victim's consent to a battery by means of a dangerous weapon would be the same, however, whether or not the battery was related to sexual activity. The general rule is: "It is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial." Farrell, supra at 620.[9] Regardless of whether sexual activity was involved in the incident in question, Cromer's consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime charged punishable under G.L.c. 265, § 15A.
4. Appleby alleges that the judge erred in denying his motions for a directed verdict.[10] The standard we apply is whether there was enough evidence in the case-in-chief, when taken in the light most favorable to the Commonwealth, "that could have satisfied a rational trier of fact of each [essential element of the offense] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Commonwealth v. Rosenberg, 379 Mass. 334, 337 (1979).
We hold that the Commonwealth presented in its case-in-chief enough evidence of the elements of assualt and battery [312] with a dangerous weapon, to which Cromer by law could not consent, to support the denial of the motion. We have already said that an assault with a dangerous weapon coupled with slight, intentional touching can qualify for assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A. Even if Appleby subjectively intended to use the crop for his own sexual purposes, the evidence was sufficient to permit the jury to find that he possessed the requisite intent to use the riding crop in a dangerous manner and thereby commit a battery.
The evidence, both at the close of the Commonwealth's case and after both sides had rested, supports a jury finding that Appleby intentionally placed Cromer in fear and struck him with the riding crop, an instrumentality which was then being used as a dangerous weapon. There was no error in the denial of the directed verdict.
5. Appleby alleges error in the jury instructions, and in the denial of his request for instructions that (a) intent to cause sexual gratification precludes a finding of guilty of the offense charged, and (b) private, consensual sadomasochistic behavior is an "absolute defense to the charge of assault and battery with a dangerous weapon." We have reviewed the judge's charge, and find no error. Appleby's requested instructions squarely conflict with our holdings today and with the holdings of Farrell, supra.
For all the foregoing reasons, we affirm Appleby's conviction. While we express some reservation on the severity of the sentence imposed for the particular assault and battery on August 31, 1976, as established by the jury verdict, albeit an assault and battery by means of a dangerous weapon, that subject is not open to review by this tribunal. See G.L.c. 278, §§ 28A-28C.
Judgment affirmed.
HENNESSEY, C.J. (concurring).
I concur with the result and the reasoning of the court's opinion. I add these few [313] words to bring emphasis to the court's expressed "reservation" as to the severity of the sentence imposed. The only incident which resulted in a guilty verdict was minor. It was a blow which "barely connected" with the victim's back; it was a "glancing blow," with no evidence of visible injury or after effects. We may speculate that the sentencing process was perhaps influenced by the indictments as to two more serious episodes of violence. However, the jury, by their not guilty verdicts, rejected those charges, and as a consequence they would have no proper bearing on the sentence. Perhaps the sentence here was unduly influenced by knowledge of other charges pending against the defendant at the time of this trial. Perhaps, also, the sentence was influenced by certain related circumstances which are abhorrent to most persons, but the defendant was not charged with those circumstances in any indictment. In sum, the sentencing result here is one which focuses on the compelling need for reasoned application of the broad sentencing discretion ordinarily available to our trial court.
[1] The jury acquitted Appleby on two other indictments charging assault and battery with a dangerous weapon, to wit: a bat, and assault and battery with a dangerous weapon, to wit: a whip.
[2] The two other conditions were that Cromer (a) attend church every Sunday with Appleby, and (b) not engage in any "hustling."
[3] Page was decided in the context of a statute prohibiting rioting, and providing for higher penalties for rioting while carrying a "deadly or dangerous weapon." Because no use of the weapon was required for conviction of the higher offense, the court held that the weapon must be dangerous per se. State v. Page, 15 S.D. 613 (1902).
[4] The judge in Appleby's case charged the jury that a battery "is the intentional and unjustified use of force, however slight, upon the person of another. Now, not every touching or brushing is a battery. It must be intentional touching or brushing. Everyday social intercourse of urban and suburban life in shopping and public assemblies, in sporting events, persons in crowds are subject to a certain amount of jostling, pushing and shoving — while these contacts may be somewhat offensive, they do not constitute battery because they enjoy a measure of justification if they're not excessive. So there can be a touching or brushing and that can be a battery if it's intentional."
[5] Of course, the question whether a weapon is dangerous as used is always one for the fact finder. "In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled." Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975). Thus the holding of the present case should not be construed to mean that any intentional unjustified touching with an object previously held in a different case to have been capable of being a dangerous weapon constitutes a crime under G.L.c. 265, § 15A. A reasonable jury might well reach a different conclusion as to a riding crop when used in different circumstances.
[6] Weapons which are dangerous per se will qualify for § 15A convictions when used to commit an assault and a battery of any kind, and without a jury determination that the weapon was dangerous as used. This is because public policy discourages the use of such weapons, and persons are charged with knowledge of their inherently dangerous nature. See Commonwealth v. Smith, 312 Mass. 557, 558-560 (1942); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 758 (1978). See also Tarrant, 367 Mass. at 416 (for armed robbery, where weapon not dangerous per se, potential danger must be assessed by fact finder using objective standards and not victim's subjective apprehension).
[7] "Bodily harm" is defined as "any hurt or injury calculated to interfere with the health or comfort of the [victim]." Commonwealth v. Farrell, 322 Mass. 606, 621 (1948), quoting from Rex v. Donovan, [1934] 2 K.B. 498, 507.
[8] See generally Commonwealth v. Balthazar, 366 Mass. 298, 301 n. 2 (1974), and cases cited.
[9] Farrell involved a female victim who had gone to a hotel room with the defendant, apparently for the purpose of having sexual intercourse, although this is not clearly stated in the review of the evidence. The defendant cut her with a razor and disfigured her body with lighted cigarettes. It appears from the facts that she neither knew this would occur nor consented to it, but this court held that as a matter of law she could not have consented.
[10] The Commonwealth argues that the classification of the riding crop as a dangerous weapon is not properly before this court because Appleby did not state grounds for his motion for directed verdict and the thrust of his defense was consent. The motion for a directed verdict raises the question of the sufficiency of the evidence as to all essential elements of the offense, however. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
7.2.6.5.5.2.9 Commonwealth v. Sherry 7.2.6.5.5.2.9 Commonwealth v. Sherry
COMMONWEALTH
vs.
EUGENE SHERRY (and eight companion cases[1]).
Supreme Judicial Court of Massachusetts, Suffolk.
Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ.
Patricia A. O'Neill for Eugene Sherry.
Kenneth M. Goldberg for Arif Hussain.
Joseph J. Balliro (Juliane Balliro with him) for Alan Lefkowitz.
Michael J. Traft, Assistant District Attorney (Kathleen Coffey, Assistant District Attorney, with him) for the Commonwealth.
LIACOS, J.
Each defendant was indicted on three charges of aggravated rape (G.L.c. 265, § 22) and one charge of kidnapping (G.L.c. 265, § 26). A jury acquitted the defendants [684] of kidnapping and convicted them of so much of each of the remaining three indictments as charged the lesser included offense of rape without aggravation. Each defendant was sentenced on each conviction to be imprisoned at the Massachusetts Correctional Institution, Walpole, for a term of not more than five years nor less than three years. Six months of the sentence was to be served, with the balance of the sentence to be suspended. On completion of the sentence served, each defendant was to be placed on probation for the term of one year. The sentences on the second and third convictions of each defendant were to be served concurrently with the first sentence. The trial judge ordered a stay of execution of sentence, pending appeal. The defendants appeal from their convictions and from the denial of their posttrial motions to set aside the verdicts and to enter findings of not guilty. Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). We transferred the appeals here on our own motion. We now affirm each of the defendants' convictions on one charge of rape and vacate each defendant's convictions on the other two charges of rape.
The defendants contend that the trial judge erred (1) by denying their motions for a required finding of not guilty; (2) by denying their motions for a mistrial alleging prosecutorial misconduct; (3) by admitting hearsay evidence of the victim's fresh complaint and refusing to admit other hearsay statements of the victim; and (4) in instructing the jury on the lesser included offense of unaggravated rape and refusing to instruct the jury according to the defendants' requests. The defendants also contend that the jury verdicts were impossible as a matter of law, so that a new trial must be granted or the verdicts set aside. We consider each of these claims of error.
There was evidence of the following facts. The victim, a registered nurse, and the defendants, all doctors, were employed at the same hospital in Boston. The defendant Sherry, whom the victim knew professionally, with another doctor was a host at a party in Boston for some of the hospital [685] staff on the evening of September 5, 1980. The victim was not acquainted with the defendants Hussain and Lefkowitz prior to this evening.
According to the victim's testimony, she had a conversation with Hussain at the party, during which he made sexual advances toward her. Later in the evening, Hussain and Sherry pushed her and Lefkowitz into a bathroom together, shut the door, and turned off the light. They did not open the door until Lefkowitz asked them to leave her in peace.[2] At various times, the victim had danced with both Hussain and Sherry.
Some time later, as the victim was walking from one room to the next, Hussain and Sherry grabbed her by the arms and pulled her out of the apartment as Lefkowitz said, "We're going to go up to Rockport." The victim verbally protested but did not physically resist the men because she said she thought that they were just "horsing around" and that they would eventually leave her alone.[3] She further testified that, once outside, Hussain carried her over his shoulder to Sherry's car and held her in the front seat as the four drove to Rockport. En route, she engaged in superficial conversation with the defendants. She testified that she was not in fear at this time. When they arrived at Lefkowitz's home in Rockport, she asked to be taken home. Instead, Hussain carried her into the house.
Once in the house, the victim and two of the men smoked some marihuana, and all of them toured the house. Lefkowitz invited them into a bedroom to view an antique bureau, and, once inside, the three men began to disrobe. The victim was frightened. She verbally protested, but the three men proceeded to undress her and maneuver her onto [686] the bed. One of the defendants attempted to have the victim perform fellatio while another attempted intercourse. She told them to stop. At the suggestion of one of the defendants, two of the defendants left the room temporarily. Each defendant separately had intercourse with the victim in the bedroom. The victim testified that she felt physically numbed and could not fight; she felt humiliated and disgusted. After this sequence of events, the victim claimed that she was further sexually harassed and forced to take a bath.
Some time later, Lefkowitz told the victim that they were returning to Boston because Hussain was on call at the hospital. On their way back, the group stopped to view a beach, to eat breakfast, and to get gasoline. The victim was taken back to where she had left her car the prior evening, and she then drove herself to an apartment that she was sharing with another woman.
The defendants testified to a similar sequence of events, although the details of the episode varied significantly. According to their testimony, Lefkowitz invited Sherry to accompany him from the party to a home that his parents owned in Rockport. The victim was present when this invitation was extended and inquired as to whether she could go along. As the three were leaving, Sherry extended an invitation to Hussain. At no time on the way out of the apartment, in the elevator, lobby, or parking lot did the victim indicate her unwillingness to accompany the defendants.
Upon arrival in Rockport, the victim wandered into the bedroom where she inquired about the antique bureau. She sat down on the bed and kicked off her shoes, whereupon Sherry entered the room, dressed only in his underwear. Sherry helped the victim get undressed, and she proceeded to have intercourse with all three men separately and in turn. Each defendant testified that the victim consented to the acts of intercourse.
Motions for a required finding of not guilty. At the close of the Commonwealth's case, the defendants moved for a required finding of not guilty on each of the indictments. [687] Mass. R. Crim. P. 25, 378 Mass. 896 (1979). The defendants argued that there was no evidence of force or threat of bodily injury, a required element of the crime of rape. The defendants also argued that aggravating circumstances, i.e., kidnapping or rape by joint enterprise, had not been proved. The judge denied their motions.
The defendants contend that, at the close of the Commonwealth's case, see Commonwealth v. Wilborne, 382 Mass. 241, 244 (1981), the evidence was insufficient to persuade a rational trier of fact of each of the elements of the crime charged beyond a reasonable doubt. We consider whether the evidence, in the light most favorable to the Commonwealth, "is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Casale, 381 Mass. 167, 168 (1980). The defendants may prevail on this claim of error only if we are convinced that no "rational trier of fact could have found the essential elements of [rape] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).
The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury. See G.L.c. 265, §§ 22 (a) & (b). At the close of the Commonwealth's case, the evidence viewed in the light most favorable to the Commonwealth established the following. The victim was forcibly taken from a party by the three defendants and told that she would accompany them to Rockport. Despite her verbal protestations, the victim was carried into an automobile and restrained from leaving until the automobile was well on its way. Notwithstanding her requests to be allowed to go home, the victim was carried again and taken into a house. The three defendants undressed and began to undress the victim and to [688] sexually attack her in unison over her verbal protestations. Once they had overpowered her, each in turn had intercourse with her while the others waited nearby in another room.
The evidence was sufficient to permit the jury to find that the defendants had sexual intercourse with the victim by force and against her will. The victim is not required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is "honest and real." Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). The jury could well consider the entire sequence of events and acts of all three defendants as it affected the victim's ability to resist. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981). Commonwealth v. Chapman, 8 Mass. App. Ct. 260, 262 (1979). Cf. Commonwealth v. Burke, 105 Mass. 376 (1870). There was no error in the denial of the defendants' motions.
Motions for a mistrial. The defense called as a witness one Barbara Gariepy, the victim's nursing supervisor at the hospital. On cross-examination of Gariepy, the prosecutor asked her a series of questions pertaining to the defendant Sherry's sobriety. The prosecutor asked Gariepy if she told a certain detective that Sherry was "falling down drunk." Gariepy stated that she did not know if she had used that terminology. The prosecutor then confronted the witness with a written communication from her to the detective stating that Sherry was "falling down drunk."
The following day of trial, defense counsel moved for a mistrial, alleging that the prosecutor had instructed Gariepy before trial not to use the word "drunk" if she should testify. Thus, the defendants claimed the prosecutor intentionally created the prospect of her impeachment by a prior inconsistent statement. The judge questioned Gariepy in his lobby, and she confirmed that the prosecutor had instructed her not to use the term "drunk" while testifying, because "drunk" was a conclusion or a judgment. She stated that, while testifying, she attempted to describe how Sherry appeared and that she became confused when directly asked whether Sherry was drunk.
[689] The judge concluded there was nothing dishonest or unethical in the prosecutor's conduct and denied the motion for mistrial. The judge also denied the defense motion to strike Gariepy's testimony on cross-examination. During closing argument, the prosecutor restated Gariepy's testimony regarding Sherry's sobriety as illustrative of a hospital-wide conspiracy designed to protect the doctors. The prosecutor also commented on the unbelievability of the testimony of other defense witnesses, implying that they were all "closing ... the ranks" behind the doctors. Defense counsel again moved for a mistrial based on the prosecutor's comment on Gariepy's prior inconsistent statement.
We find no error in the denial of the motion for a mistrial. The record does not indicate any scheme or design by the prosecutor to confuse or trap the witness. We cannot say that the trial judge erred in determining that the prosecutor's cross-examination of Gariepy was neither dishonest nor unethical. It appears that the advice the prosecutor gave Gariepy was designed to avoid the strictures of the so called opinion rule. Whether the advice was well taken or not, the judge could correctly conclude that this incident was not ground for a mistrial. As to the argument, since the evidence had not been excluded, Commonwealth v. Burke, 373 Mass. 569, 575 (1977), it was fair for the prosecutor to comment on it. See Commonwealth v. Dilone, 385 Mass. 281, 286 (1982); S.J.C. Rule 3:08, PF-13 (a), as appearing in 382 Mass. 802 (1981). "Counsel may argue as to the evidence and the fair inferences from the evidence." Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring), citing Leone v. Doran, 363 Mass. 1, 18 (1973). Arguably, Gariepy sought to minimize any testimony damaging to the defendants and thus the prosecutor, in his closing, did not refer to facts which he knew to be untrue. See Leone v. Doran, supra. "This is not a case where a criminal conviction has been obtained by the knowing use of false testimony and, consequently, such cases cited by the defendant as Napue v. Illinois, 360 U.S. 264 (1959), and Giglio [690] v. United States, 405 U.S. 150 (1972), are not controlling." Commonwealth v. Gilday, 367 Mass. 474, 490 (1975). Compare Commonwealth v. Daigle, 379 Mass. 541, 546 (1980) (unintentional use of false testimony not reviewed under strict standard of materiality). We note further that the judge clearly instructed the jury on the use of impeachment testimony.[4]
Evidence of fresh complaint. The defendants contend that the judge erred in admitting testimony indicating that the victim made a fresh complaint of the rape to several persons. The defendants do not dispute the general principle that "testimony reporting statements made by the victim shortly after [a rape] are universally admitted to corroborate the victim's testimony." Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Rather, the defendants argue, in substance, that the victim's delay in making the statements disqualifies the complaints as being admissible, particularly in light of opportunities she may have had to complain while still in the company of the defendants.
The evidence of fresh complaint that was admitted was as follows. The victim's roommate testified that the victim related the facts of the rape to her in their apartment in the early hours of the morning following the incident. Another friend of the victim testified that the victim told her about the rape over the telephone at approximately 9 A.M. on the same morning. The police officer who spoke with the victim the day following the incident testified as to what the victim told him about the rape, and a hospital report reciting the events that occurred was also admitted in evidence.
[691] Although the judge made no explicit preliminary findings whether the statements were sufficiently prompt to constitute fresh complaint, see Commonwealth v. Cleary, 172 Mass. 175, 177 (1898), the record indicates that the judge looked at all the circumstances of the case and concluded that on these particular facts the victim's complaints were reasonably prompt. The judge instructed the jury that they could reject the proffered evidence as being corroborative of the victim's testimony if they did not find that the complaints were made "reasonably promptly." See Commonwealth v. McGrath, 364 Mass. 243, 250 (1973).
We cannot say that the judge abused his discretion. There is no rule that requires a victim to complain of a rape to strangers in an unfamiliar place while still in the company of the alleged rapist. The actions of the victim were reasonable in the particular circumstances of the case. Cf. Commonwealth v. Izzo, 359 Mass. 39, 42-43 (1971). The victim first reported the rape to her friend and roommate within a few hours after being dropped off by the defendants. There was no error.[5]
Exclusion of victim's prior out-of-court statements. Defense counsel sought a pretrial ruling regarding the admissibility of two out-of-court statements of the victim. A voir dire was conducted, during which one Cheryl Rowley testified that the victim had made statements at a rape crisis seminar. Rowley testified that the victim stated at the seminar "that she had been raped in the past, and that she had had a couple of occasions where she was almost raped. [692] And she told us about different ways that she got out of being raped — the times that she did." Rowley testified further that "[t]he one that I remembered the most was that she had been taken to a sand pit by some man, and he was attempting to rape her, and she said that she got out of it by what she said, `Jerking the guy off.'" The trial judge ruled that this evidence would not be admitted.
The defendants argue that the judge erred in light of our decision in Commonwealth v. Bohannon, 376 Mass. 90 (1978). There was no error. There was no showing that the statements were false or even an exaggeration of the truth; hence, the Bohannon case is inapplicable. Without evidence of falsity, the statements become irrelevant to any issue in the case, including the credibility of the complainant. See Commonwealth v. Bohannon, supra at 95 (evidence of prior false accusations of specific crime that is subject of trial may damage complainant's credibility).
The defendants further argue that the judge's exclusion of the statement concerning how the victim would extricate herself from a rape situation constitutes reversible error. At trial, the defendants argued that, since the victim would testify that she was confused, disoriented, and unable to react to the acts of the defendants, the prior statement was inconsistent and, thus, directly affected her credibility. Defense counsel was permitted on cross-examination of the victim to ask the following:
DEFENSE COUNSEL: "Do you recall ... saying at the Rape Crisis Seminar, that you attended, that you could never be raped because if anybody tried to rape you, all you'd do was reach down and jerk him off."
PROSECUTOR: "Objection, your Honor."
JUDGE: "I'll take the answer. Do you remember saying that?"
WITNESS: "No, I don't."
DEFENSE COUNSEL: "You don't remember saying that?"
WITNESS: "No, I don't."
Some time later at trial, defense counsel sought, in direct examination, to introduce Rowley's testimony, as stated in the [693] voir dire, to impeach the victim's credibility. The judge excluded the question, apparently on the basis that the evidence related to a collateral matter. The defendants claim that this ruling was in error and denied them their right to present their defense.
"Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge." Commonwealth v. Chasson, 383 Mass. 183, 187 (1981). The trial judge, in his sound discretion, may exclude evidence if the danger of confusion, unfair prejudice, or undue consumption of time in trial of collateral issues outweighs the probative worth of the evidence offered. Robitaille v. Netoco Community Theatre, 305 Mass. 265, 267-268 (1940). In the circumstances of this case, we cannot say that the judge abused his discretion.
The out-of-court statement of the victim was hearsay and was offered only to impeach her credibility generally and not as to her description of the events in issue. Consequently, Rowley's testimony was collateral to all issues in the case, save the victim's credibility. The victim's testimony on matters not relevant to contested issues in the case cannot, as of right, be contradicted by extrinsic evidence. P.J. Liacos, Massachusetts Evidence 135 (5th ed. 1981). See, e.g., Commonwealth v. Chase, 372 Mass. 736, 746-748 (1977).[6]
[694] Jury charge on unaggravated rape. The defendants contend that the judge erred in charging the jury that they could find the defendants guilty of unaggravated rape. The defendants objected to the charge, arguing that the Commonwealth's theory throughout the case was an aggravated rape by joint enterprise or kidnapping. The judge, however, stated that the jury could find the defendants guilty of unaggravated rape if there was insufficient evidence of the aggravating factors, viz., kidnapping or joint enterprise, but that rape was otherwise proved. The defendants, on appeal, rely on two theories for reversal: first, that the defendants' convictions on a charge not tried constituted a denial of procedural due process; second, that the trial judge erred in instructing the jury on unaggravated rape because the greater offense of aggravated rape did not require the jury to find a disputed factual element not required for the lesser included offense.
General Laws c. 265, § 22, as appearing in St. 1980, c. 459, § 6, states in part that "(a) Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of [certain felonies] shall be punished by imprisonment in the state prison for life or for any term of years.... (b) Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.... For the purposes of prosecution, the offense described in subsection (b) shall be a lesser included offense to that described in subsection (a)" (emphasis supplied).
"It has long been held that lesser included offenses are those necessarily included in the offense as charged." Commonwealth [695] v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981), citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The offense stated in G.L.c. 265, § 22 (b), is by its exact description, necessarily included in § 22 (a). In order to convict under § 22 (a), all the elements of § 22 (b) must be found, plus an additional aggravating factor. Thus, as determined by the Legislature, the unaggravated rape described in § 22 (b) is a lesser included offense of the aggravated rape described in § 22 (a). We fail to perceive how the defendants were denied their right to procedural due process by the judge's charge. See Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 117-118 (1974), and cases cited. Contrary to the claim of the defendants, the evidence provided a rational basis for jury verdicts that the defendants committed the crime of unaggravated rape. See Commonwealth v. McKay, 363 Mass. 220, 228 (1973). On the state of the evidence, the jury were warranted in concluding that the victim did not consent to intercourse with any of the defendants. The jury could have accepted or rejected the evidence that the defendants were engaged in a joint enterprise, or raped the victim in the course of a kidnapping. The charge properly put the factual issues raised by the evidence to the jury. This was not error.[7]
[696] Instructions to the jury. The defendants next contend that because the judge failed to give two instructions exactly as requested, the judge's jury charge, considered as a whole, was inadequate and the cause of prejudicial error. The requested instructions in their entirety are set out in the margin.[8]
The defendants were not entitled to any particular instruction as long as the charge as a whole was adequate. See Commonwealth v. Aronson, 330 Mass. 453, 457-458 (1953) (impression created by charge as whole constitutes test of adequacy); Commonwealth v. MacDougall, 2 Mass. App. Ct. 896 (1974) (judge need not grant specific requested instructions as long as substance is covered). Cf. Commonwealth v. DeChristoforo, 360 Mass. 531, 540 (1971).
The instructions given by the trial judge placed before the jury the essential elements of the crime required to be proved. The judge instructed the jury that intercourse must be accomplished with force "such [as] to overcome the woman's will; that it be sufficient to accomplish the man's purpose of having sexual intercourse against her will" or by threats of bodily harm, inferred or expressed, which engendered fear "reasonable in the circumstances ... so that it was reasonable for her not to resist." He later reiterated that "[t]he act of the defendant must have been against the will, that is without the woman's consent, and there must have been sufficient force used by him to accomplish his purpose."
These instructions correctly stated the elements of proof required for a rape conviction. See Commonwealth v. [697] McDonald, 110 Mass. 405, 406 (1872). Moreover, the judge was not required to comment upon particular facts of the case supposed to tend in favor of the defendants. Commonwealth v. Miller, 297 Mass. 285, 287 (1937). The judge was not bound to discuss every subsidiary fact and possible inference, but only to give generally accurate and complete instructions. Commonwealth v. Monahan, 349 Mass. 139, 171 (1965).
To the extent the defendants, at least as to the first requested instruction, appear to have been seeking to raise a defense of good faith mistake on the issue of consent, the defendants' requested instruction would have required the jury to "find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent" (emphasis added). The defendants, on appeal, argue that mistake of fact negating criminal intent is a defense to the crime of rape. The defense of mistake of fact, however, requires that the accused act in good faith and with reasonableness. See Commonwealth v. Presby, 14 Gray 65, 69 (1860); Commonwealth v. Power, 7 Met. 596, 602 (1844); R. Perkins, Criminal Law 939-940 (2d ed. 1969). Whether a reasonable good faith mistake of fact as to the fact of consent is a defense to the crime of rape has never, to our knowledge, been decided in this Commonwealth. We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable good faith mistake of fact. We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness, as a defense; nor do the defendants cite such authority. There was no error.
Inconsistent verdicts. The defendants' final argument is that the judge erred in denying their motions to set aside the verdicts or, in the alternative, to grant a new trial as a result of verdicts which were impossible at law. The defendants were each tried on three charges of aggravated rape and one charge of kidnapping, and the jury returned verdicts of not [698] guilty of kidnapping and so much of the indictments as charged aggravated rape. The defendants argue that the jury, having acquitted them of joint enterprise and kidnapping, could not find them guilty of three counts of the lesser included offense of simple rape. The defendants argue that the verdicts must not be permitted to stand because there was no joint venture theory for the lesser offense, or separate indictments for lesser offenses, nor were there any jury instructions on the theory of joint venture relative to the lesser offense.
The defendants rely on the line of cases that have reversed convictions because of jury verdicts that were impossible at law. See, e.g., Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965) (convictions for larceny of stock and larceny of money proceeds from same stock, error); Commonwealth v. Haskins, 128 Mass. 60, 61 (1880) (convictions of larceny and receipt of same stolen goods, inconsistent in law).
These cases are inapposite. "[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969). See Commonwealth v. White, 363 Mass. 682 (1973). See also Harris v. Rivera, 454 U.S. 339, 347-348 (1981) (verdict will not be set aside based on inconsistency). Although the defendants claim that they do not argue inconsistency of verdicts but rather legal impossibility of verdicts as the basis of the alleged error, the verdicts do not appear to us to be inconsistent. Nor do the verdicts appear to be legally impossible in the sense in which that term was used in Carson, supra, and Haskins, supra. The defendants cannot now complain because the jury did not specifically find the aggravating circumstances necessary for a conviction of aggravated rape. The fact of intercourse between each defendant and the victim was not contested. If the jury believed that each act of intercourse was against the will of the victim, the jury could find, as instructed, that each defendant [699] raped the victim, although they did not find rape by a joint enterprise.
Alternatively, it is possible that the jury were convinced that the defendants raped the victim in a joint enterprise, but were disposed through leniency to convict of the lesser included offense. Cf. Commonwealth v. Dickerson, 372 Mass. 783, 796-798 (1977); id. at 811-812 (Quirico, J., concurring). See Dunn v. United States, 284 U.S. 390, 393-394 (1932). We have stated that "the jury, within their power to appraise evidence selectively, might have accepted as credible enough evidence [to convict the defendants of rape], but might have declined to accept such further evidence as tended to prove [any aggravating circumstances]." Commonwealth v. Dickerson, supra at 796. Although the jury may have the power to act contrary to their legal obligation to return a verdict of guilty of the highest crime which had been proved beyond a reasonable doubt, see Dickerson, supra at 797, this does not mean that a verdict of guilt as to a lesser included offense may withstand a motion to set aside, if the record reveals that there is no evidence to sustain it.
The motion of each defendant to set aside the verdicts, or to grant a new trial, specified an additional ground, namely that the verdicts were "totally contrary to the weight of the evidence." Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). A judge may consider such a motion where, as here, motions for required findings of not guilty had been filed under Mass. R. Crim. P. 25 (a). A verdict of guilty cannot stand when it is wholly contrary to the weight of the evidence. Commonwealth v. Woods, 382 Mass. 1, 7-8 (1980). This situation obtains as to two verdicts of guilty of unaggravated rape as to each defendant. Thus, to this extent, denial of these motions was error. There was no evidence of three separate rapes by each defendant which would warrant a conviction on all three indictments. Cf. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981).
[700] Although affirmance of all of the convictions would have no practical effect on the terms of incarceration, since the multiple sentences were imposed concurrently, we believe that justice requires that the convictions on two of the indictments as to each defendant be set aside.[9] Cf. Commonwealth v. Jones, 382 Mass. 387, 395-397 (1981). We affirm the defendant Sherry's conviction on so much of indictment number 033745 as charges unaggravated rape and vacate the convictions on the indictments numbered 033746 and 033911. In the defendant Hussain's case, we affirm his conviction on so much of indictment number 033737 as charges unaggravated rape and vacate his convictions on the indictments numbered 033738 and 033739. Similarly, we affirm the defendant Lefkowitz's conviction on so much of the indictment number 033741 as charges unaggravated rape and vacate the convictions on indictments numbered 033743 and 033744.[10]
So ordered.
[1] Two are against Eugene Sherry, three are against Arif Hussain, and three are against Alan Lefkowitz.
[2] The victim testified that after this incident she complained to a Dr. Sheskey about the defendant Hussain's behavior. Dr. Sheskey corroborated this testimony.
[3] The victim testified that she was not physically restrained as they rode down an elevator with an unknown fifth person, or as they walked through the lobby of the apartment building where other persons were present.
[4] At trial, the defendants also objected to another comment made by the prosecutor during his closing argument. The prosecutor stated: "And don't you think that if there wasn't sperm in that vagina they [the defendants] would have denied even having sex." Defense counsel objected, and the judge instructed the jury that they "should disregard that remark." In his instructions to the jury, the judge also stated that "the statements and arguments of counsel are not evidence." The judge's action in instructing the jury to disregard the remark, and his instructions to the jury that arguments are not evidence, were sufficient to cure any conceivable prejudice. See Commonwealth v. Dougan, 377 Mass. 303, 312 (1979).
[5] The defendants' argument that spontaneity is the linchpin of the fresh complaint exception to the hearsay rule is misplaced. Unlike the practice of some States, evidence of a fresh complaint in a rape case is not admitted as part of the res gestae in this Commonwealth. See Commonwealth v. Cleary, 172 Mass. 175, 176-177 (1898). Rather, admission of the evidence is justified on the ground that the victim's failure to make a prompt complaint might be viewed by the jury as inconsistent with a rape charge, and, in the absence of such evidence, the jury might assume that no complaint was made. Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Thus, "the ground of admission is held to be the corroboration of the testimony of the complainant as a witness." Glover v. Callahan, 299 Mass. 55, 57 (1937).
[6] Counsel for the defendants repeatedly asserted during trial that the proffered evidence did not fall within the rape-shield statute. G.L.c. 233, § 21B. The record is unclear regarding the precise grounds on which the evidence was excluded, although there is some indication that the judge considered the rape-shield statute in making his ruling.
The defendant Hussain argues on appeal that the rape-shield statute is unconstitutional because it absolutely bars evidence of the rape victim's sexual conduct. The defendant, in his brief, alleges that "it is clear that testimony revealing her reputation and also the defendant's knowledge of her reputation for engaging in this type of sexual activity under similar circumstances would clearly have been relevant to the issues of whether her resistance was honest and real and whether the defendant possessed the requisite criminal intent" (emphasis added). We do not reach the issue whether such evidence would be relevant, or whether, in that context, the statute's bar to reputation evidence would be unconstitutional. The defendant did not seek to introduce reputation evidence in the lower court.
[7] The defendants, however, rely on Sansone v. United States, 380 U.S. 343, 349-350 (1965), and further argue that a charge for the lesser included offense could not be given because the defendants did not dispute the alleged joint enterprise. We find no merit in the defendants' assertion that this case falls within the ambit of Sansone simply because the defendants now claim that they did not contest the joint enterprise element of the crime of aggravated rape. The case of United States v. Harary, 457 F.2d 471 (2d Cir.1972), on which the defendants rely is also inapposite. There the charge was bribery, and the defense was entrapment. Additionally, the defendant admitted the specific intent to bribe. See 18 U.S.C. § 201(b) (2) (1976). The court concluded, therefore, that the lesser offense of giving a gratuity for an official act performed or to be performed (18 U.S.C. § 201[f] [1976]), was not in issue, and a conviction of that lesser offense could not stand in light of the acquittal of the bribery charge. Here the defendants did not admit to the existence of a joint enterprise. To the contrary, they contested this issue and, in their motion for a required finding of not guilty, the defendants argued that there was insufficient evidence to establish a joint venture.
[8] "Unless you find beyond a reasonable doubt that [the victim] clearly expressed her lack of consent, or was so overcome by force or threats of bodily injury that she was incapable of consenting, and unless you find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent, then you must find them not guilty."
"If you find that [the victim] had a reasonable opportunity to resist being taken to Rockport, Massachusetts, from the apartment..., and had a reasonable opportunity to avoid or resist the circumstances that took place in the bedroom, at Rockport, but chose not to avail herself of those opportunities, then you must weigh her failure to take such reasonable opportunities on the credibility of her claim that she was kidnapped and raped."
[9] It was not legally impossible for the three defendants to be convicted on three charges of rape on another theory of guilt. The jury could have found that each defendant was an accessory before the fact to the other two acts of rape and the principal to the rape he perpetrated. See Commonwealth v. Morrow, 363 Mass. 601, 609 (1973). The jury, however, were not instructed on the law regarding the liability of principals and accessories and thus could not have based their verdict on this theory.
[10] We perceive no need in this case to remand for resentencing. See Commonwealth v. Layne, ante 291 (1982).
7.2.6.5.5.2.10 Commonwealth v. Fischer 7.2.6.5.5.2.10 Commonwealth v. Fischer
COMMONWEALTH of Pennsylvania, Appellee,
v.
Kurt FISCHER, Appellant.
Superior Court of Pennsylvania.
[1112] Michael M. Mustokoff, Huntington Valley, for appellant.
Before DEL SOLE, SCHILLER and BECK, JJ.
BECK, J.:
This case prompts our consideration of the law with respect to forcible compulsion and consent in sexual assault cases. After a careful review of the record and an in-depth analysis of the issue at hand, we affirm.
Appellant, an eighteen year-old college freshman, was charged with involuntary deviate sexual intercourse (IDSI), aggravated indecent assault and related offenses in connection with an incident that occurred in a Lafayette College campus dormitory. The victim was another freshman student appellant met at school.
At trial, both the victim and appellant testified that a couple of hours prior to the incident at issue, the two went to appellant's dorm room and engaged in intimate contact. The victim testified that the couple's conduct was limited to kissing and fondling. Appellant, on the other hand, testified that during this initial encounter, he and the victim engaged in "rough sex" which culminated in the victim performing fellatio on him. According to appellant, the victim acted aggressively at this first rendezvous by holding appellant's arms above his head, biting his chest, stating "You know you want me," and initiating oral sex.
After the encounter, the students separated and went to the dining hall with their respective friends. They met up again later and once more found themselves in appellant's dorm room. While their accounts of what occurred at the first meeting contained significant differences, their versions of events at the second meeting were grossly divergent. The victim testified that appellant locked the door, pushed her onto the bed, straddled her, held her wrists above her head and forced his penis into her mouth. She struggled with appellant throughout the entire encounter and warned him that "someone would look for her" and "someone would find out." She also told him that she was scheduled to be at a mandatory seminar and repeatedly stated that she did not want to engage in sex, but her pleas went unheeded.
According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers. He then placed his penis inside the torn jeans, removed it and ejaculated on her face, hair and sweater. Thereafter, he turned her over onto her stomach, pulled down her underpants and attempted to penetrate her anally. Throughout the incident, appellant made various statements to the victim, including "I know you want it," "I know you want my dick in your mouth" and "Nobody will know [1113] where you are." When the victim attempted to leave, appellant blocked her path. Only after striking him in the groin with her knee was the victim able to escape.
Appellant characterized the second meeting in a far different light. He stated that as he led the victim into his room, she told him it would have to be "a quick one." As a result, appellant figured that their sexual liaison would be brief. Thereafter, according to appellant, he began to engage in the same type of behavior the victim had exhibited in their previous encounter. Appellant admitted that he held the young woman's arms above her head, straddled her and placed his penis at her mouth. He testified that at that point he told her "I know you want my dick in your mouth." When she replied "no," appellant answered "No means yes." After another verbal exchange that included the victim's statement that she had to leave, appellant again insisted that "she wanted it." This time she answered "No, I honestly don't." Upon hearing this, appellant no longer sought to engage in oral sex and removed himself from her body. However, as the two lay side by side on the bed, they continued to kiss and fondle one another.
Appellant admitted to touching the victim's genitalia and to placing his penis inside the hole in her jeans. According to appellant, the victim enjoyed the contact and responded positively to his actions. At some point, however, she stood up and informed appellant that she had to leave. When appellant again attempted to touch her, this time on the thigh, she told him she was "getting pissed." Before appellant could "rearrange himself," so that he could walk the victim to her class, she abruptly left the room.
At trial, both sides presented evidence to support their positions. Appellant's college friends testified that after the first encounter, but before the second, appellant showed them bite marks on his chest that he had received from the victim during the first encounter. Numerous character witnesses testified on appellant's behalf.
The Commonwealth offered physical evidence of sperm found on the victim's sweater. Medical personnel testified to treating the victim on the night in question. Many of the victim's friends and classmates described her as nervous, shaken and upset after the incident.
Defense counsel argued throughout the trial and in closing that appellant, relying on his previous encounter with the victim, did not believe his actions were taken without her consent. Presenting appellant as sexually inexperienced, counsel argued that his client believed the victim was a willing participant during their intimate encounters. In light of his limited experience and the victim's initially aggressive behavior, argued counsel, appellant's beliefs were reasonable. Further, the victim's conduct throughout the second encounter, as testified to by appellant, would not make appellant's actions "forcible" since it appeared that the victim was enjoying the encounter. Finally, as soon as appellant realized that the victim truly did not wish to engage in oral sex a second time, appellant stopped seeking same. As a result, appellant's actions could not be deemed forcible compulsion.
The jury returned a verdict of guilty on virtually all counts.[1] Appellant was sentenced to two to five years in prison. On direct appeal, he retained new counsel who has raised a single issue of ineffectiveness before this court. He argues that trial counsel provided ineffective assistance in failing to request a jury charge on the defense of mistake of fact. Specifically, appellant claims that counsel should have asked the court to instruct the jurors that if they found appellant reasonably, though mistakenly, believed that the victim was consenting to his sexual advances, they could find him not guilty.
The standard of review for ineffectiveness challenges is clear. Appellant must establish: 1) an underlying issue of arguable merit; 2) the absence of a reasonable strategy on the part of counsel in acting or failing to act; and 3) prejudice as a result of counsel's action or inaction. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303, 1305 (1991). In all instances we presume that [1114] counsel is effective and place the burden on appellant to prove otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990).
Our initial inquiry is whether counsel would have been successful had he requested a mistake of fact instruction. Counsel cannot be deemed ineffective for failing to pursue a baseless claim. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Further, the quality of counsel's stewardship is based on the state of the law as it existed at time of trial; counsel is not ineffective if he fails to predict future developments or changes in the law. Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997).
The Commonwealth relies on two bases for dispensing with appellant's claims. It first argues that appellant's claim does not warrant consideration because he testified that the victim did not perform oral sex on him at the second encounter. The Commonwealth insists that appellant's testimony prevents him from claiming a mistake of fact regarding commission of the crime. The record, however, establishes otherwise. Throughout the trial, counsel clearly relied on appellant's previous contact with the victim to support his claim that appellant reasonably believed the victim consented to his advances. While on the stand, appellant admitted that he placed his penis on the victim's mouth. He testified: "the head of my penis went halfway in, but then she closed her mouth and turned to the side." Because the crime of IDSI is complete at the point of "penetration, however slight," appellant clearly admitted that the physical element/requirement of the crime was met. 18 Pa.C.S.A. § 3101. The Commonwealth's first argument, therefore, is unavailing.
The Commonwealth's second line of attack is its reliance on an opinion by a panel of this court. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (Pa.Super.1982), concerned the rape and assault of a Temple University student. The facts established that the victim accepted a ride from the appellant on a snowy evening in Philadelphia. Instead of taking the young woman to the bus station, appellant drove her to a dark area, threatened to kill her and informed her that he wanted sex. The victim told Williams to "go ahead" because she did not wish to be hurt.
After his conviction and sentence, appellant filed a direct appeal and argued, among other things, that the trial court erred in refusing to instruct the jury "that if the defendant reasonably believed that the prosecutrix had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charge." Id. 439 A.2d at 767. This court rejected Williams's claim and held:
In so refusing the proffered charge the court acted correctly. The charge requested by the defendant is not now and has never been the law of Pennsylvania. When one individual uses force or the threat of force to have sexual relations with a person not his spouse and without the person's consent he has committed the crime of rape. If the element of the defendant's belief as to the victim's state of mind is to be established as a defense to the crime of rape then it should be done by our legislature which has the power to define crimes and offenses. We refuse to create such a defense.
Id. (emphasis supplied.) The Commonwealth insists that under Williams, appellant was not entitled to the instruction he now claims trial counsel should have requested.
In response, appellant makes two arguments. First, he argues that the "stranger rape" facts of Williams were far different from those of this case, making the case inapplicable. Second, he maintains that the law with respect to rape and sexual assault has changed significantly over the last decade, along with our understanding of the crime and its permutations, making a mistake of fact instruction in a date rape case a necessity for a fair trial.
In support of his argument, appellant draws our attention to many sources, including the evolution of sexual assault case law in this Commonwealth, recent amendments to our sexual offenses statutes, commentary accompanying the Pennsylvania Standard Jury Instructions, law review articles and treatment of the issue in other jurisdictions. Because [1115] we find appellant's arguments thoughtful and compelling, we will address them here.
The issues of consent and forcible compulsion raised in sexual assault prosecutions have always been complex. Unless the incident is witnessed by a third party, or is accompanied by conspicuous injury, a rape case is often reduced to a credibility battle between the complainant and the defendant. Our laws have sought continually to protect victims of sexual assault, and in the process, have undergone significant change. Although the rape and IDSI laws have always required the element of "forcible compulsion," that term was not initially defined. The definition of that term and its relation to the concept of consent have been the frequent topic of discussion among lawmakers, courts and scholars.[2]
Not long after Williams was decided, our supreme court published Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). In that case, a twenty-year-old man was accused of raping an eight-year-old girl. The evidence established that the appellant took the victim, whom he knew, to an abandoned building and sexually assaulted her. The child complied with all of the appellant's instructions until she felt pain, whereupon she asked him to stop. Medical tests showed the presence of semen in the child's vaginal and rectal areas, as well as a "rectovaginal fissure (tear)." A panel of this court reversed Rhodes's rape conviction based on insufficient evidence. The panel held that while the crime of statutory rape clearly was established given the victim's age, there was no evidence of the forcible compulsion necessary for the rape conviction.
Our supreme court disagreed. Noting that sexual assault crimes present "perplexing, controversial and emotionally charged problems for the criminal justice system," the court borrowed the language of Williams and stated that "the degree of force required to constitute rape [or IDSI] is relative and depends upon the facts and particular circumstances of the case." Id. at 554-56, 510 A.2d at 1226. Defining forcible compulsion as including "not only physical force or violence but also moral, psychological or intellectual force," the court held that forcible compulsion was established.
There is an element of forcible compulsion, or threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ("prevent resistance"), without the use of physical force or violence or the explicit threat of physical force or violence.
Id. at 556-58, 510 A.2d at 1227.
The Rhodes court's inclusion of types of forcible compulsion other than physical was a significant change in the law. Of course, defining those new types was not an easy task. In Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988), our supreme court again faced the issue of what constitutes forcible compulsion necessary for a rape conviction. In that case, the appellant was charged with raping a fourteen-year-old girl, his former neighbor who had been released to his wife's custody. The child was no longer living with her parents because she was involved in a theft and had spent a period of time in a juvenile detention center. When the appellant instructed the girl to disrobe, she refused. He responded by [1116] threatening to send her back to the detention home if she did not comply. The victim acquiesced and on several occasions thereafter, the appellant engaged in vaginal and oral intercourse with her.
After convictions on counts of rape, IDSI, assault and related charges, the appellant came before this court. The en banc court ultimately ruled, in a five to four majority, that the rape and attempted rape charges must be reversed for lack of proof of forcible compulsion.
Upon review, the supreme court was evenly divided and so the reversal by this court was sustained. The supreme court's opinion in support of affirmance recognized that physical violence was not the only manner in which forcible compulsion could be accomplished, however it also stated that "forcible compulsion was [not] intended by the General Assembly, in this context, to be extended to embrace appeals to the intellect or the morals of the victim." Id. at 252-53, 542 A.2d at 1338. The court reasoned:
Certainly psychological coercion can be applied with such intensity that it may overpower the will to resist as effectively as physical force. See e.g., Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). The purpose of the term was to distinguish between assault upon the will and the forcing of the victim to make a choice regardless how repugnant. Certainly difficult choices have a coercive effect but the result is the product of the reason, albeit unpleasant and reluctantly made. The fact cannot be escaped that the victim has made the choice and the act is not involuntary.
Id. at 260-62, 542 A.2d at 1342.
In his opinion in support of reversal, Justice Larsen opined that under Rhodes, the element of forcible compulsion was met. He further implored the legislature to correct what he characterized as a "misreading of its intention." Id. at 273-75, 542 A.2d at 1349.
A correction by the legislature did not occur immediately after Mlinarich or even shortly thereafter. Indeed, it was not until the supreme court's decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), that the legislature amended the law with respect to sexual assaults.[3] Berkowitz, like the case before us, involved an incident between two young college students in a dormitory room. The complainant testified that she entered the appellant's room hoping to find his roommate. She stayed in the room at the appellant's request. At some point, the appellant moved toward the complainant, touched her breasts and attempted to put his penis in her mouth. He then removed her pants and undergarments and penetrated her vagina with his penis. Throughout the encounter, the complainant repeatedly told the appellant "no," but she made no attempt to leave even though she could have done so as the appellant was not restraining her in any manner.
Our supreme court considered the facts set out above and concluded that the element of forcible compulsion was not established. While recognizing that the complainant said "no" throughout the incident, the court stated that the legislature intended the term forcible compulsion to mean "something more than a lack of consent." Id. at 150-51, 641 A.2d at 1165. Berkowitz's rape conviction was reversed.
Less than one year after the Berkowitz decision, the legislature amended the sexual assault law by adding a definition for forcible compulsion. The language of the amendment closely followed that used by the Rhodes court:
"Forcible Compulsion." Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person's death, whether the death occurred [1117] before, during or after sexual intercourse.
18 Pa.C.S.A. § 3101.
It is this broader definition, argues appellant in this case, that prompts the necessity for a mistake of fact jury instruction in cases where such a defense is raised. According to appellant:
The language of the present statute inextricably links the issues of consent with mens rea. To ask a jury to consider whether the defendant used "intellectual or moral" force, while denying the instruction as to how to consider the defendant's mental state at the time of alleged encounter is patently unfair to the accused.
Appellant's Brief at 24.
Appellant's argument is bolstered by the fact that the concept of "mistake of fact" has long been a fixture in the criminal law. The concept is codified in Pennsylvania and provides:
Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or
(2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense
18 Pa.C.S.A. § 304.
The notion that one charged with sexual assault may defend by claiming a reasonable belief of consent has been recognized in other jurisdictions. The New Jersey Supreme Court has stated:
If there is evidence to suggest that the defendant reasonably believed that ... permission had been given, the State must demonstrate either that the defendant did not actually believe that affirmative permission had been freely-given or that such belief was unreasonable under all of the circumstances.
In the Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266, 1279 (N.J.1992).
Courts in other jurisdictions have likewise held that jury instructions regarding the defendant's reasonable belief as to consent are proper. See State v. Smith, 210 Conn. 132, 554 A.2d 713 (Conn.1989) ("We agree with the California courts that a defendant is entitled to a jury instruction that a defendant may not be convicted of this crime if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented.") See also People v. Mayberry, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337 (Cal.1975).
Although the logic of these other cases is persuasive, we are unable to adopt the principles enunciated in them because of the binding precedent with which we are faced, namely, Williams. In an effort to avoid application of Williams, appellant directs our attention to the Subcommittee Notes of the Pennsylvania Criminal Suggested Standard Jury Instructions. The possible conflict between Williams and § 304 (Mistake of Fact) was not lost on the Subcommittee.
Quaere whether Williams is wholly consistent with Crimes Code §§ 302(c) and 304(1). In the Subcommittee's opinion, the courts should recognize as a defense a defendant's non-recklessly held, mistaken belief regarding consent. The jury ought to be told in what circumstances a mistaken belief may preclude a defendant's forceful conduct from being forcible compulsion or threat of forcible compulsion.
Subcommittee Note, Pa. Suggested Standard Crim. Jury Instructions at 15.3121A.
Appellant's insistence that Williams should be disregarded in light of the legislature's broader and more complex definition of forcible compulsion is echoed by the Subcommittee:
In the opinion of the Subcommittee there may be cases, especially now that Rhodes has extended the definition of force to psychological, moral and intellectual force, where a defendant might non-recklessly or even reasonably, but wrongly, believe that his words and conduct do not constitute force or the threat of force and that a non-resisting female is consenting. An example might be "date rape" resulting from mutual misunderstanding. The boy does [1118] not intend or suspect the intimidating potential of his vigorous wooing. The girl, misjudging the boys' character, believes he will become violent if thwarted; she feigns willingness, even some pleasure. In our opinion the defendant in such a case ought not to be convicted of rape.
Id.
It is clear that the Subcommittee gave extensive thought to the ever-changing law of sexual assault and our understanding of sexual behavior in modern times. We agree with the Subcommittee that the rule in Williams is inappropriate in the type of date rape case described above. Changing codes of sexual conduct, particularly those exhibited on college campuses, may require that we give greater weight to what is occurring beneath the overt actions of young men and women. Recognition of those changes, in the form of specified jury instructions, strikes us an appropriate course of action.
Despite appellant's excellent presentation of the issues, there remain two distinct problems precluding relief in this case. First is appellant's reliance on the evolution of our sexual assault laws to avoid the application of Williams. As is obvious from our discussion above, the changes in the statute are significant and have served to extend culpability in rape and IDSI cases to a variety of new circumstances, including incidents involving psychological, moral and intellectual force.
This case, however, is not one of the "new" varieties of sexual assault contemplated by the amended statute. It does not involve the failure to resist due to a tender age, as in Rhodes, or the threat of punishment for failure to comply, as in Mlinarich. Nor is it a situation where the complainant admits she offered no resistance and the evidence shows that nothing prevented her escape, as in Berkowitz. This is a case of a young woman alleging physical force in a sexual assault and a young man claiming that he reasonably believed he had consent.[4] In such circumstances, Williams controls.
We are keenly aware of the differences between Williams and this case. Most notable is the fact that Williams and his victim never met before the incident in question. Here, appellant and the victim not only knew one another, but had engaged in intimate contact just hours before the incident in question.[5] It is clear however, that the Williams court's basis for denying the jury instruction was its conclusion that the law did not require it and, further, that the judiciary had no authority to grant it. Even if we were to disagree with those conclusions, we are powerless to alter them.
In any event, distinguishing Williams on the basis of the parties' previous contacts, and therefore holding that it should not apply here, is not enough to allow appellant the relief he seeks. Even if we decide that we are persuaded by appellant's arguments chronicling the history of sexual assault law and the Jury Instructions Subcommittee's views, we face a second barrier. Because this appeal raises ineffective assistance of counsel, we are required to find that appellant's trial lawyer made a mistake. That mistake is the failure to ask the trial court for an instruction that the Williams case held is unwarranted. In other words, we would have to find that counsel's failure to argue for a change in the law constituted ineffectiveness. This, of course, is not possible. We simply cannot announce a new rule of law and then find counsel ineffective for failing to predict same. Todaro, supra.
Assuming that we have the authority to declare that the instruction is one to which appellant should be entitled, we cannot hold that counsel erred in failing to demand it. The relief appellant seeks represents a significant departure from the current state of the law. Despite its compelling nature, it [1119] cannot be the basis for an ineffective assistance of counsel claim.
Judgment of sentence affirmed.
DEL SOLE, J., concurs in the result.
[1] Appellant was acquitted of criminal attempt.
[2] It is clear from a reading of the relevant statutes and accompanying case law that the rape and IDSI statutes rely on the same definitions. See generally 18 Pa.C.S.A §§ 3101; 3121; 3123. See also Commonwealth v. Smolko, 446 Pa.Super. 156, 666 A.2d 672 (Pa.Super.1995) (forcible compulsion for rape and IDSI is identical); Commonwealth v. Poindexter, 435 Pa.Super. 509, 646 A.2d 1211 (Pa.Super.1994) (IDSI addresses forcible acts of anal and oral intercourse), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). Therefore, despite the fact that this is an IDSI case, our discussion of rape laws and cases involving rape convictions is relevant to and probative of the issue before us.
[3] Apparently, calls to "overhaul" sexual assault laws came before Berkowitz was handed down, but the actual amendments were not enacted until after the decision was published. The case itself was a focal point in several legislative discussions. Theresa A. McNamara, Act 10: Remedying Problems of Pennsylvania's Rape Laws or Revisiting Them?. 10 Dick.L.Rev. 203, 210-14 (1996).
[4] We observe that the facts of this case are not the same as those set out in the Subcommittee's "date rape" scenario. The victim in this case testified that she was physically forced to engage in sex against her will, that she resisted verbally and physically and that she had to strike appellant in order to leave the room. Appellant characterized the victim as a sexually experienced woman who initiated oral sex in the first encounter, declined it in the second and made a false rape claim thereafter.
[5] The nature of that contact was disputed by the parties. It is, of course, the jury's task to resolve issues of credibility.
7.2.6.5.5.2.11 People v. John Z. 7.2.6.5.5.2.11 People v. John Z.
In re JOHN Z., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
John Z., Defendant and Appellant.
Supreme Court of California.
[784] Carol L. Foster, under appointment by the Supreme Court, Sacramento, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Assistant Attorney General, Michael J. Weinberg, Stan Cross and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Wendy J. Murphy, Boston, MA, Barbara F. Berenson, Cambridge, MA; Gina S. McClard, Douglas E. Beloof, Portland, OR; Bingham McCutchen, Leslie G. Landau and Alison Beck, Boston, MA, for the Victim Advocacy and Research Group, the National Crime Victim Law Institute, the California Coalition Against Sexual Assault and the National Sexual Violence Resource Center as Amici Curiae on behalf of Plaintiff and Respondent.
CHIN, J.
We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape (Pen.Code, § 261, subd. (a)(2)) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161 (Vela) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846, 91 Cal.Rptr.2d 921 (Roundtree) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.
[785] The juvenile court, after holding a contested jurisdictional hearing on a unitary petition (Welf. & Inst.Code, §§ 602, 777, subd.(a)) filed on behalf of John Z. (defendant), found that he committed forcible rape (Pen.Code, § 261, subd. (a)(2)) and that his previous juvenile court disposition had been ineffective. (Further undesignated statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch. On appeal, defendant contends the evidence is insufficient to sustain the finding that he committed forcible rape. We disagree.
FACTS
The following facts are largely taken from the Court of Appeal opinion in this case. During the afternoon of March 23, 2000, 17-year-old Laura T. was working at Safeway when she received a call from Juan G., whom she had met about two weeks earlier. Juan wanted Laura to take him to a party at defendant's home and then return about 8:30 p.m. to pick him up. Laura agreed to take Juan to the party, but since she planned to attend a church group meeting that evening she told him she would be unable to pick him up.
Sometime after 6:00 p.m., Laura drove Juan to defendant's residence. Defendant and Justin L. were present. After arranging to have Justin L.'s stepbrother, P. W., buy them alcohol, Laura picked up P.W. and drove him to the store where he bought beer. Laura told Juan she would stay until 8:00 or 8:30 p.m. Although defendant and Juan drank the beer, Laura did not.
During the evening, Laura and Juan went into defendant's parents' bedroom. Juan indicated he wanted to have sex but Laura told him she was not ready for that kind of activity. Juan became upset and went into the bathroom. Laura left the bedroom and both defendant and Justin asked her why she "wouldn't do stuff." Laura told them that she was not ready.
About 8:10 p.m., Laura was ready to leave when defendant asked her to come into his bedroom to talk. She complied. Defendant told her that Juan had said he (Juan) did not care for her; defendant then suggested that Laura become his girlfriend. Juan entered the bedroom and defendant left to take a phone call.
When defendant returned to the bedroom, he and Juan asked Laura if it was her fantasy to have two guys, and Laura said it was not. Juan and defendant began kissing Laura and removing her clothes, although she kept telling them not to. At some point, the boys removed Laura's pants and underwear and began "fingering" her, "playing with [her] boobs" and continued to kiss her. Laura enjoyed this activity in the beginning, but objected when Juan removed his pants and told defendant to keep fingering her while he put on a condom. Once the condom was in place, defendant left the room and Juan got on top of Laura. She tried to resist and told him she did not want to have intercourse, but he was too strong and forced his penis into her vagina. The rape terminated when, due to Laura's struggling, the condom fell off. Laura told Juan that "maybe it's a sign we shouldn't be doing this," and he said "fine" and left the room. (Although Juan G. was originally a codefendant, at the close of the victim's testimony he admitted amended charges of sexual battery (§ 243.4) and unlawful sexual intercourse (§ 261.5, subd. (b)), a misdemeanor.)
Laura rolled over on the bed and began trying to find her clothes; however, because the room was dark she was unable to do so. Defendant, who had removed his clothing, then entered the bedroom and walked to where Laura was sitting on the [786] bed and "he like rolled over [her] so [she] was pushed back down to the bed." Laura did not say anything and defendant began kissing her and telling her that she had "a really beautiful body." Defendant got on top of Laura, put his penis into her vagina "and rolled [her] over so [she] was sitting on top of him." Laura testified she "kept ... pulling up, trying to sit up to get it out ... [a]nd he grabbed my hips and pushed me back down and then he rolled me back over so I was on my back ... and ... kept saying, will you be my girlfriend." Laura "kept like trying to pull away" and told him that "if he really did care about me, he wouldn't be doing this to me and if he did want a relationship, he should wait and respect that I don't want to do this." After about 10 minutes, defendant got off Laura, and helped her dress and find her keys. She then drove home.
On cross-examination, Laura testified that when defendant entered the room unclothed, he lay down on the bed behind her and touched her shoulder with just enough pressure to make her move, a nudge. He asked her to lie down and she did. He began kissing her and she kissed him back. He rolled on top of her, inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him. She was on top of him for four or five minutes, during which time she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop. He said, "just give me a minute," and she said, "no, I need to get home." He replied, "give me some time" and she repeated, "no, I have to go home." Defendant did not stop, "[h]e just stayed inside of me and kept like basically forcing it on me." After about a "minute, minute and [a] half," defendant got off Laura.
Defendant testified, admitting that he and Juan were kissing and fondling Laura in the bedroom, but claimed it was with her consent. He also admitted having sexual intercourse with Laura, again claiming it was consensual. He claimed he discontinued the act as soon as Laura told him that she had to go home.
DISCUSSION
Although the evidence of Laura's initial consent to intercourse with John Z. was hardly conclusive, we will assume for purposes of argument that Laura impliedly consented to the act, or at least tacitly refrained from objecting to it, until defendant had achieved penetration. (But see § 261.6 [defining the type of consent at issue under § 261 as "positive cooperation in act or attitude pursuant to an exercise of free will"].) As will appear, we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.
Vela, supra, 172 Cal.App.3d 237, 218 Cal.Rptr. 161, held that where the victim consents to intercourse at the time of penetration but thereafter withdraws her consent, any use of force by her assailant past that point is not rape. (Id. at pp. 242-243, 218 Cal.Rptr. 161.) The court in Vela found "scant authority" on point (id. at p. 241, 218 Cal.Rptr. 161), relying on two out-of-state cases which had held that if consent is given prior to penetration, no rape occurs despite the withdrawal of consent during intercourse itself. (See Battle v. State (1980) 287 Md. 675, 414 A.2d 1266, 1268-1270; State v. Way (1979) 297 N.C. 293, 254 S.E.2d 760, 762.) According to Vela, these cases held that "the presence or absence of consent at the moment of initial penetration appears to be the crucial [787] point in the crime of rape." (Vela, supra, 172 Cal.App.3d at p. 242, 218 Cal.Rptr. 161.)
Vela agreed with these cases, reasoning that "the essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood. It would seem, therefore, that the essential guilt of rape as stated in ... section 263 is lacking in the withdrawn consent scenario." (Vela, supra, 172 Cal. App.3d at p. 243, 218 Cal.Rptr. 161.)
With due respect to Vela and the two sister state cases on which it relied, we find their reasoning unsound. First, contrary to Vela's assumption, we have no way of accurately measuring the level of outrage the victim suffers from being subjected to continued forcible intercourse following withdrawal of her consent. We must assume the sense of outrage is substantial. More importantly, section 261, subdivision (a)(2), defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator .... [¶] ... [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Nothing in section 261 conditions the act of rape on the degree of outrage of the victim. Section 263 states that "[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." But no California case has held that the victim's outrage is an element of the crime of rape.
In Roundtree, supra, 77 Cal.App.4th 846, 91 Cal.Rptr.2d 921, the court recognized that, by reason of sections 261 and 263, "[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim's will. The outrage to the victim is complete." (Roundtree, supra, 77 Cal. App.4th at p. 851, 91 Cal.Rptr.2d 921.) Roundtree cited several cases from other states either criticizing Vela or reaching a contrary conclusion. (See State v. Crims (Minn.Ct.App.1995) 540 N.W.2d 860, 865; State v. Jones (S.D.1994) 521 N.W.2d 662, 672; State v. Siering (1994) 35 Conn.App. 173, 644 A.2d 958, 963; State v. Robinson (Me.1985) 496 A.2d 1067, 1071; see also McGill v. State (Alaska Ct.App.2001) 18 P.3d 77, 84 [Vela's view that sexual assault statute is based on considerations of "`outrage' " to victim's "`womanhood'" represents "archaic and outmoded social conventions"]; Note, Post-Penetration Rape— Increasing the Penalty (1991) 31 Santa Clara L.Rev. 779, 804-808 [criticizing Vela and advocating legislation to punish forcible and nonconsensual postpenetration intercourse as second degree rape].)
As the Court of Appeal in this case stated, "while outrage of the victim may be the cause for criminalizing and severely punishing forcible rape, outrage by the victim is not an element of forcible rape. Pursuant to section 261, subdivision [788] (a)(2) forcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it."
In the present case, assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence shows that she withdrew her consent and, through her actions and words, communicated that fact to defendant. Despite the dissent's doubt in the matter (dis. opn., post, 128 Cal. Rptr.2d at pp. 789-790, 791-792, 60 P.3d at pp. 188-189, 190-191), no reasonable person in defendant's position would have believed that Laura continued to consent to the act. (See People v. Williams (1992) 4 Cal.4th 354, 360-361, 14 Cal.Rptr.2d 441, 841 P.2d 961 [requiring reasonable and good faith belief, supported by substantial evidence, that the victim voluntarily consented to intercourse]; cf. CALJIC No. 10.65 [same].) As the Court of Appeal below observed, "Given [Laura's testimony], credited by the court, there was nothing equivocal about her withdrawal of any initially assumed consent."
Vela appears to assume that, to constitute rape, the victim's objections must be raised, or a defendant's use of force must be applied, before intercourse commences, but that argument is clearly flawed. One can readily imagine situations in which the defendant is able to obtain penetration before the victim can express an objection or attempt to resist. Surely, if the defendant thereafter ignores the victim's objections and forcibly continues the act, he has committed "an act of sexual intercourse accomplished .... [¶] ... against a person's will by means of force (§ 261, subd. (a)(2).)
Defendant, candidly acknowledging Vela's flawed reasoning, contends that, in cases involving an initial consent to intercourse, the male should be permitted a "reasonable amount of time" in which to withdraw, once the female raises an objection to further intercourse. As defendant argues, "By essence of the act of sexual intercourse, a male's primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge ...."
We disagree with defendant's argument. Aside from the apparent lack of supporting authority for defendant's "primal urge" theory, the principal problem with his argument is that it is contrary to the language of section 261, subdivision (a)(2): Nothing in the language of section 261 or the case law suggests that the defendant is entitled to persist in intercourse once his victim withdraws her consent.
In any event, even were we to accept defendant's "reasonable time" argument, in the present case he clearly was given ample time to withdraw but refused to do so despite Laura's resistance and objections. Although defendant testified he withdrew as soon as Laura objected, for purposes of appeal we need not accept this testimony as true in light of Laura's contrary testimony. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) As noted above, Laura testified that she struggled to get away when she was on top of defendant, but that he grabbed her waist and pushed her down onto him. At this point, Laura told defendant that if he really cared about her, he [789] would respect her wishes and stop. Thereafter, she told defendant three times that she needed to go home and that she did not accept his protestations he just needed a "minute." Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home. According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and "just stayed inside of me and kept like basically forcing it on me," for about a "minute, minute and [a] half." Contrary to the dissent's concerns (dis. opn., post, 128 Cal.Rptr.2d at p. 792, 60 P.3d at pp. 190-191), the force defendant exerted in resisting Laura's attempts to stop the act was clearly ample to satisfy section 261, subdivision (a)(2). (See People v. Mom (2000) 80 Cal.App.4th 1217, 1224, 96 Cal. Rptr.2d 172, and cases cited [force "substantially different from or substantially greater than that necessary to accomplish the rape itself'].)
Although the dissent herein would prefer more guidance for future cases, this is an appeal from a juvenile court adjudication rather than a jury trial, and the briefing does not address what pinpoint instructions, if any, might be appropriate in these withdrawn consent cases. Accordingly, we do not explore or recommend instructional language governing such matters as the defendant's knowledge of the victim's withdrawal of consent, the possibly equivocal nature of that withdrawal, or the point in time at which defendant must cease intercourse once consent is withdrawn.
We disapprove Vela, supra, 172 Cal. App.3d 237, 218 Cal.Rptr. 161, to the extent that decision is inconsistent with our opinion. The judgment of the Court of Appeal is affirmed.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, and MORENO, JJ.
Dissenting Opinion by BROWN, J.
A woman has an absolute right to say "no" to an act of sexual intercourse. After intercourse has commenced, she has the absolute right to call a halt and say "no more," and if she is compelled to continue, a forcible rape is committed. Although California's rape statutes are gender neutral, the criminalization of more subtle forms of sexual violence reflects a new view of women as "responsible, autonomous beings who possess the right to personal, sexual, and bodily self-determination." (Berger et al., The Dimensions of Rape Reform Legislation (1988) 22 L. & Soc'y Rev. 329, 330.) Thus, both courts and legislatures have expanded the concept of rape to include spousal rape, lesser degrees of rape, and what has been characterized as postpenetration rape. (See, e.g., McGill v. State (Alaska Ct.App.2001) 18 P.3d 77, 84; State v. Siering (1994) 35 Conn.App. 173, 644 A.2d 958, 962-963; State v. Robinson (Me.1985) 496 A.2d 1067, 1070-1071; State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865.)
To the extent the majority holds the clear withdrawal of consent nullifies any earlier consent and forcible persistence in what then becomes nonconsensual intercourse is rape, not assault and battery as the Court of Appeal held in People v. Vela (1985) 172 Cal.App.3d 237, 243, 218 Cal. Rptr. 161, I concur in that portion of its reasoning. However, because the majority ignores critical questions about the nature and sufficiency of proof in a postpenetration rape case, I cannot concur in the rest of the majority opinion. The majority opinion is deficient in several respects. First, the opinion fails to consider whether the victim's statements in this case clearly communicated her withdrawal of consent. [790] Second, there is no attempt to define what constitutes force in this context. Finally, questions about wrongful intent are given short shrift.
The People must prove the elements of a crime beyond a reasonable doubt (Pen. Code, § 1096; U.S. Const., 14th Amend.). As relevant to this case, "Rape is an act of sexual intercourse ... with a person not the spouse of the perpetrator" "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Pen.Code, § 261, subd. (a)(2).) Presumably, in a postpenetration rape case, the prosecution still has the burden of showing, beyond a reasonable doubt, that the victim clearly communicated withdrawal of consent and the defendant exercised some degree of force to continue.[1] Moreover, a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 Cal.4th 354, 360, 14 Cal.Rptr.2d 441, 841 P.2d 961; People v. Mayberry (1975) 15 Cal.3d 143, 154-155, 125 Cal.Rptr. 745, 542 P.2d 1337.) To be acquitted, a defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. Thus, to convict in such a case, the People must prove the absence of such a belief beyond a reasonable doubt.
Ordinarily, these cases involve a credibility contest in which the victim tells one story, the defendant another. The trial judge in this juvenile matter relied primarily on Laura's testimony and rejected John Z.'s testimony in its entirety. Even so, "assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant" (maj. opn., ante, 128 Cal.Rptr.2d at p. 788, 60 P.3d at p. 186), the facts in this described solely by the prosecution witness, create doubt both about the withdrawal of consent and the use of force.
This is a sordid, distressing, sad little case. From any perspective, its facts are appalling. Laura T., a 17-year-old girl, finds herself alone in a house with four young men, ranging in age from 16 to 21. One of them, Juan, is "sort of her boyfriend. Laura and Juan met at a bus stop near her workplace and had known each other for about two weeks when they arrived at the "party" at John Z.'s house on March 23, 2000. Laura drove to the party in her own vehicle. She planned to drop Juan off and leave. The other partygoers were unknown to Laura. John Z. was introduced to her after they arrived. Instead of leaving, Laura remained at John Z.'s house for several hours. During the evening she was openly affectionate with Juan, and sporadically engaged in some mutual kissing with John Z.—in the kitchen and later in the master bedroom when Juan was sulking in the bathroom.
This is how she described subsequent events:
Around 8:00 p.m., Laura decided she was ready to leave. Before she walked out the door, John asked if he could talk to her. She walked back into the house and went into his bedroom, which was completely dark. She did not ask to turn on the light. She entered the room willingly and was not restrained from leaving. They sat in the dark, talking. John told her Juan never cared about her, was only "using [her] and anyone else could use [her] too." John said he really liked her; she should dump Juan and become John's girlfriend. When Juan came into the bedroom, Laura confronted him with what [791] John had said. He denied it. The boys asked if she had ever fantasized about having "two guys." Laura said she had not, but she continued to sit on the bed in John's darkened bedroom with both Juan and John while one or both of them removed various items of her clothing. At first, she tried to replace her clothing, but after pulling her bra back into place a couple of times, she made no further efforts to retrieve her clothes. Asked why she did not leave, she responded: "There is no reason. I just didn't. I didn't think about it. I had already tried to leave once, and they asked me to go in the bedroom and talk."
Feeling there was "no point in fighting" because there was nothing she could do about it anyway, she laid back on the bed, with Juan on one side of her and John on the other. She did not say anything and she was not fighting or resisting while the rest of her clothing was removed. The boys were "fingering" her and playing with her "boobs" and kissing her and "like just trying to like keep me satisfied type of thing." She acknowledged that she enjoyed these activities, enjoyed it "because it was like a threesome"; she was laughing and liked being the center of attention.
After that prelude and after she had intercourse with Juan, which ended when the condom kept falling off and she told him perhaps that was a sign they "shouldn't be doing this," we come to the facts which form the basis of John Z.'s adjudication. According to Laura, she was sitting on the bed naked when John Z. came into the room, naked or partially unclothed. She had been unable to find her clothes in the dark. John sat on the bed behind her and touched her with one hand on her shoulder. He did not pull or push her backward. He nudged her with one hand. His left hand was in a cast. She laid back down on the bed. John began kissing her. She kissed him back. He climbed on top of her and achieved penetration. She did not say anything. She did not push him away, slap him or strike him. He made no threats and he did not hurt her. John asked her repeatedly "will you be my girlfriend?"
He rolled over so she was on top. She remained in that position for four to five minutes. Although he held her only with one hand on her waist—not hard enough for her to feel the pressure or to create a bruise—she was unable to extricate herself or break the connection. There was no conversation when intercourse began and she said nothing while she was on top of him. When she found herself on the bottom again, she said: "If he really did care about me, he wouldn't be doing this to me and if he really did want a relationship, he should wait and respect that I don't want to do this." John responded: "I really do care about you." She never "officially" told him she did not want to have sexual intercourse.
Sometime later she said: "I should be going now." "I need to go home." John said: "Just give me a minute." Several minutes later, she said again: "I need to get home." He said: "[G]ive me some time." She said: "No. I have to go home." The third time she told him she had to go home she was a little more urgent. She never "officially" cried, but she was starting to. When asked if at anytime while having intercourse with John Z., she had told him "no," Laura answers: "No," and repeats her contingent statement. Calling a halt, her answers suggest, was entirely John Z.'s responsibility. He said he cared about her, "but he still just let it happen."
The majority finds Laura's "actions and words" clearly communicated withdrawal of consent in a fashion "no reasonable person in defendant's position" could have mistaken. (Maj. opn., ante, 128 Cal. [792] Rptr.2d at p. 788, 60 P.3d at p. 187.) But, Laura's silent and ineffectual movements could easily be misinterpreted. And, none of her statements are unequivocal. While Laura may have felt these words clearly conveyed her unwillingness, they could reasonably be understood as requests for reassurance or demands for speed. And, Laura's own testimony demonstrates that is precisely how John Z. interpreted what she said. Indeed, Laura demonstrates a similar ambivalence. When asked if she had made it clear to John that she didn't want to have sex, Laura says "I thought I had," but she acknowledges she "never officially told him" she did not want to have sexual intercourse. When asked by the prosecutor on redirect why she told John "I got to go home," Laura answers: "Because I had to get home so my mom wouldn't suspect anything."
Furthermore, even if we assume that Laura's statements evidenced a clear intent to withdraw consent, sexual intercourse is not transformed into rape merely because a woman changes her mind. (State v. Robinson, supra, 496 A.2d at p. 1070; People v. Roundtree (2000) 77 Cal. App.4th 846, 851, 91 Cal.Rptr.2d 921.) As the majority acknowledges, by reason of Penal Code sections 261 and 263, "`[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim's will.'" (Maj. opn., ante, 128 Cal.Rptr.2d at p. 787, 60 P.3d at p. 186, quoting Roundtree, at p. 851, 91 Cal.Rptr.2d 921, italics added.) In other words, an act of sexual intercourse becomes rape under these circumstances if all the elements of rape are present. Under the facts of this case, however, it is not clear that Laura was forcibly compelled to continue. All we know is that John Z. did not instantly respond to her statement that she needed to go home. He requested additional time. He did not demand it. Nor did he threaten any consequences if Laura did not comply.
The majority relies heavily on John Z.'s failure to desist immediately. But, it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? (See People v. Mom (2000) 80 Cal. App.4th 1217, 1224, 96 Cal.Rptr.2d 172 [suggesting force must be "substantially different from or substantially greater" than that necessary to accomplish the act itself].) And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape? Such questions seem inextricably tied to the question of whether a reasonable person would know that the statement "I need to go home" should be interpreted as a demand to stop. Under these circumstances, can the withdrawal of consent serve as a proxy for both compulsion and wrongful intent?
The majority finds these deficiencies insignificant because this is a juvenile adjudication. But, if John Z. is convicted of a felony as an adult, the same juvenile adjudication will qualify as a strike. Thus, the absence of a jury or jury instructions cannot justify a lesser standard of proof.
In reviewing a criminal conviction challenged as lacking evidentiary support we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 [793] Cal.4th 469, 496, 117 Cal.Rptr.2d 45, 40 P.3d 754.) Presumably, in determining guilt beyond a reasonable doubt, the juvenile court would have to consider and resolve the same questions the majority declines to address. Because the record contains no indication the juvenile court did so, I respectfully dissent.
[1] The People did not use the term "postpenetration rape" during the juvenile adjudication. The theory is first articulated by the Court of Appeal.
7.2.6.5.5.2.12 Boro v. Superior Court 7.2.6.5.5.2.12 Boro v. Superior Court
DANIEL KAYTON BORO, Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Court of Appeals of California, First District, Division One.
[1225] COUNSEL
Vincent J. O'Malley and Allen & O'Malley for Petitioner.
James P. Fox, District Attorney, for Respondent.
John K. Van de Kamp, Attorney General, Eugene W. Kaster, Herbert F. Wilkinson and Blair W. Hoffman, Deputy Attorneys General, for Real Party in Interest.
OPINION
NEWSOM, J.
By timely petition filed with this court, petitioner Daniel Boro seeks a writ of prohibition to restrain further prosecution of count II of the information on file against him in San Mateo County Superior Court No. C-13489 charging him with a violation of Penal Code section 261, [1226] subdivision (4),[1] rape: "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused."[2]
(1) Petitioner contends that his motion to dismiss should have been granted with regard to count II because the evidence at the preliminary hearing proved that the prosecutrix, Ms. R., was aware of the "nature of the act" within the meaning of section 261, subdivision (4). The Attorney General contends the opposite, arguing that the victim's agreement to intercourse was predicated on a belief — fraudulently induced by petitioner — that the sex act was necessary to save her life, and that she was hence unconscious of the nature of the act within the meaning of the statute.
In relevant part the factual background may be summarized as follows. Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as "Dr. Stevens" and said that he worked at Peninsula Hospital.
"Dr. Stevens" told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.
"Dr. Stevens" further explained that there were only two ways to treat the disease. The first was a painful surgical procedure — graphically described — costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, "Dr. Stevens" explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, nonsurgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the "doctor" suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the nonsurgical alternative and consented to intercourse with the mysterious donor, believing "it was the only choice I had."
After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted "Dr. [1227] Stevens" by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called "Dr. Stevens" to give him her room number.
About a half hour later the defendant "donor" arrived at her room. When Ms. R. had undressed, the "donor," petitioner, after urging her to relax, had sexual intercourse with her.
At the time of penetration, it was Ms. R.'s belief that she would die unless she consented to sexual intercourse with the defendant: as she testified, "My life felt threatened, and for that reason and that reason alone did I do it."
Petitioner was apprehended when the police arrived at the hotel room, having been called by Ms. R.'s supervisor. Petitioner was identified as "Dr. Stevens" at a police voice lineup by another potential victim of the same scheme.
Upon the basis of the evidence just recounted, petitioner was charged with five crimes, as follows: Count I: section 261, subdivision (2) — rape: accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. Count II: section 261, subdivision (4) — rape "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused." Count III: section 266 — procuring a female to have illicit carnal connection with a man "by any false pretenses, false representation, or other fraudulent means, ..." Count IV: section 664/487 — attempted grand theft. Count V: section 459 — burglary (entry into the hotel room with intent to commit theft).
A section 995 motion to set aside the information was granted as to counts I and III — the latter by concession of the district attorney. Petitioner's sole challenge is to denial of the motion to dismiss count II.
The People's position is stated concisely: "We contend, quite simply, that at the time of the intercourse Ms. R., the victim, was `unconscious of the nature of the act': because of [petitioner's] misrepresentation she believed it was in the nature of a medical treatment and not a simple, ordinary act of sexual intercourse." Petitioner, on the other hand, stresses that the victim was plainly aware of the nature of the act in which she voluntarily engaged, so that her motivation in doing so (since it did not fall within the proscription of section 261, subdivision (2)) is irrelevant.
[1228] Our research discloses sparse California authority on the subject. A victim need not be totally and physically unconscious in order that section 261, subdivision (4) apply. In People v. Minkowski (1962) 204 Cal. App.2d 832 [23 Cal. Rptr. 92], the defendant was a physician who "treated" several victims for menstrual cramps. Each victim testified that she was treated in a position with her back to the doctor, bent over a table, with feet apart, in a dressing gown. And in each case the "treatment" consisted of the defendant first inserting a metal instrument, then substituting an instrument which "felt different" — the victims not realizing that the second instrument was in fact the doctor's penis. The precise issue before us was never tendered in People v. Minkowski because the petitioner there conceded the sufficiency of evidence to support the element of consciousness.
The decision is useful to this analysis, however, because it exactly illustrates certain traditional rules in the area of our inquiry. Thus, as a leading authority has written, "if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, p. 1079.)
The victims in Minkowski consented, not to sexual intercourse, but to an act of an altogether different nature, penetration by medical instrument. The consent was to a pathological, and not a carnal, act, and the mistake was, therefore, in the factum and not merely in the inducement.
Another relatively common situation in the literature on this subject — discussed in detail by Perkins (supra, at p. 1080) is the fraudulent obtaining of intercourse by impersonating a spouse. As Professor Perkins observes, the courts are not in accord as to whether the crime of rape is thereby committed. "[T]he disagreement is not in regard to the underlying principle but only as to its application. Some courts have taken the position that such a misdeed is fraud in the inducement on the theory that the woman consents to exactly what is done (sexual intercourse) and hence there is no rape; other courts, with better reason it would seem, hold such a misdeed to be rape on the theory that it involves fraud in the factum since the woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery. Her innocence seems never to have been questioned in such a case and the reason she is not guilty of adultery is because she did not consent to adulterous intercourse. Statutory changes in the law of rape have received attention earlier and need not be [1229] repeated here." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, pp. 1080-1081, fns. omitted.)
In California, of course, we have by statute[3] adopted the majority view that such fraud is in the factum, not the inducement, and have thus held it to vitiate consent. It is otherwise, however, with respect to the conceptually much murkier statutory offense with which we here deal, and the language of which has remained essentially unchanged since its enactment (as § 261, subd. (5), now subd. (4)) in 1872.
The language itself could not be plainer. It defines rape to be "an act of sexual intercourse" with a nonspouse, accomplished where the victim is "at the time unconscious of the nature of the act ..." (§ 261, subd. (4).) Nor, as we have just seen, can we entertain the slightest doubt that the Legislature well understood how to draft a statute to encompass fraud in the factum (§ 261, subd. (5)) and how to specify certain fraud in the inducement as vitiating consent.[4] Moreover, courts of this state have previously confronted the general rule that fraud in the inducement does not vitiate consent. (People v. Harris (1979) 93 Cal. App.3d 103, 113-117 [155 Cal. Rptr. 472]; Mathews v. Superior Court (1981) 119 Cal. App.3d 309, 312 [173 Cal. Rptr. 820].) Mathews found section 266 (fraudulent procurement of a female for illicit carnal connection) inapplicable where the facts showed that the defendant, impersonating an unmarried woman's paramour, made sexual advances to the victim with her consent. While the facts demonstrate classic fraud in the factum, a concurring opinion in Mathews specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in section 261, subdivision (5) and then-section 268.
The People, however, direct our attention to Penal Code section 261.6, which in their opinion has changed the rule that fraud in the inducement does not vitiate consent. That provision reads as follows: "In prosecutions under sections 261, 286, 288a or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an act of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."
[1230] We find little legislative history for this section beyond that contained in the 1982 Summary Digest, to wit:
"Existing law proscribes certain forms of sexual conduct, such as oral copulation under specified circumstances and penetration of the genital or anal openings of another person by a foreign object, as specified.
"This bill would revise the above provisions; provide that penetration of the genital or anal openings of another by a foreign object by force and violence, in concert with another, is punishable by imprisonment for 5, 7, or 9 years; establish the crime of sexual battery, as defined; and define the term `consent' for the purpose of designated prosecutions in which consent is at issue." In addition, the author of a Pacific Law Journal article has concluded that the statute was enacted in response to People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337], in order to provide an explicit definition of consent to be used in prosecutions in which consent was at issue. (Review of 1982 Legislation (1983) 14 Pacific L.J. 357, 547, 548, fn. 8.) Section 261.6 was enacted as a part of Chapter 1111, Statutes of 1982, which amended various substantive sex crime statutes and created the crime of sexual battery. (§ 243.4.)
If the Legislature at that time had desired to correct the apparent oversight decried in Mathews, supra,[5] — it could certainly have done so. But the Attorney General's strained reading of section 261.6 would render section 261, subdivision (5) meaningless surplusage; and we are "`exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.'" (People v. Olsen (1984) 36 Cal.3d 638, 647 [205 Cal. Rptr. 492, 685 P.2d 52].)
Finally, the Attorney General cites People v. Howard (1981) 117 Cal. App.3d 53 [172 Cal. Rptr. 539]. There, the court dealt with section 288a, subdivision (f) and section 286, subdivision (f) making criminal oral copulation or sodomy between adults where one person is "unconscious of the nature of the act." But in Howard, supra, the victim was a 19-year-old with the mental capacity of a 6-to-8-year-old, who "simply [did] not understand the nature of the act in which he participat[ed]." (117 Cal. App.3d 53, 55.) Whether or not we agree with the Howard court's analysis, we note that here, in contrast, there is not a shred of evidence on the record before us to suggest that as the result of mental retardation Ms. R. lacked the capacity to appreciate the nature of the sex act in which she engaged. [1231] On the contrary, her testimony was clear that she precisely understood the "nature of the act," but, motivated by a fear of disease, and death, succumbed to petitioner's fraudulent blandishments.
To so conclude is not to vitiate the heartless cruelty of petitioner's scheme, but to say that it comprised crimes of a different order than a violation of section 261, subdivision (4).
Let a peremptory writ of prohibition issue restraining respondent from taking further action upon count II (a violation of Pen. Code, § 261, subd. (4)) in People v. Daniel Kayton Boro, aka Jerry K. Russo, Emmett Boro and Dan Borghello, San Mateo County Superior Court No. C-13489, other than dismissal. The stay of trial heretofore imposed shall remain in effect until the finality of this opinion.[6]
Racanelli, P.J., concurred.
HOLMDAHL, J.
I respectfully dissent.
All concerned with this case are handicapped by what my colleagues call "sparse California authority on the subject" before us. Neither are we aided by the "little legislative history" concerning the 1982 enactment of Penal Code section 261.6.[1]
I agree with my colleagues' conclusion that in enacting section 261.6 the Legislature could have corrected, but did not, "the apparent oversight decried in Mathews ...." I disagree, however, with their apparent conclusion that section 261.6 does not apply in the present case.
While Mathews did involve alleged false pretenses, that opinion was concerned solely with an interpretation of section 266. The new section 261.6 does not apply to prosecutions under section 266. Section 261.6 does, however, expressly apply to "prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue...."
The case before us concerns a prosecution under section 261, subd. (4), and "consent is at issue." Consequently, section 261.6, defining "consent" applies in this case.[2] It is apparent from the abundance of appropriate adjectives [1232] and adverbs in the statute that the Legislature intended to the point of redundancy to limit "consent" to that which is found to have been truly free and voluntary, truly unrestricted and knowledgeable. Thus, section 261.6 provides: "In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (Italics added.)
"[C]ourts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. [Citations.]" (People v. Jones (1964) 228 Cal. App.2d 74, 83 [39 Cal. Rptr. 302].) Recourse to the Oxford English Dictionary (1978) indicates that the "positive" of "positive cooperation" is that which is "free from qualifications, conditions, or reservations; absolute, unconditional; opposed to relative and comparative." (Id., vol. 4, p. 1152, italics in original.)
"Free will" is defined as "[s]pontaneous will, unconstrained choice (to do or act) ... left to or depending upon one's choice or election." (Id., vol. 4, "F.," p. 528.)
"Freely" is defined as "[o]f one's own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly." (Id., vol. 4, "F.," p. 526.)
"Voluntarily" is defined as "[o]f one's own free will or accord; without compulsion, constraint, or undue influence by others; freely, willingly.... Without other determining force than natural character or tendency; naturally, spontaneously." (Id., vol. 12, "V.," p. 302.)
Further, I take the statute's use of "act or attitude" and "act or transaction" to mean more than an alleged victim's knowledge that she would be engaging in the physical act of sexual intercourse and more than that she intended to do so. Those phrases, in combination with the adjectives and adverbs discussed, lead me to conclude that while the Legislature in section 261.6 did not expressly repeal the legalisms distinguishing "fraud in the factum" and "fraud in the inducement," its intention certainly was to restrict "consent" to cases of true, good faith consent, obtained without substantial fraud or deceit.
[1233] I believe there is a sufficient basis for prosecution of petitioner pursuant to section 261, subd. (4). I would deny the writ.
A petition for a rehearing was denied February 21, 1985. Holmdahl, J., was of the opinion that the petition should be granted. The petition of real party in interest for a hearing by the Supreme Court was denied April 4, 1985.
[1] Unless otherwise noted, all further statutory references are to the California Penal Code.
[2] Petitioner makes no challenge to count IV, attempted grand theft (§§ 664/487) and count V, burglary (§ 459) of the information. Count I and count III (§§ 261, subd. (2) and 266) were dismissed below.
[3] Section 261, subdivision (5) reads as follows: "Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief."
[4] Prior to its repeal by Statutes 1984, chapter 438, section 2, section 268 provided that: "Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison, or by a fine of not more than five thousand dollars [$5,000], or by both such fine and imprisonment."
[5] It is not difficult to conceive of reasons why the Legislature may have consciously wished to leave the matter where it lies. Thus, as a matter of degree, where consent to intercourse is obtained by promises of travel, fame, celebrity and the like — ought the liar and seducer to be chargeable as a rapist? Where is the line to be drawn?
[6] We note that by separate opinion filed this date in A027931, we have commanded respondent to sever the remaining charge in this case from a separate fraud case on file in San Mateo County Superior Court No. C-13551.
[1] Apparently, no published decision as yet deals with section 261.6.
[2] While the word "consent" appears only in section 261, subd. (1), all the subdivisions concern the victim's state of mind.
7.2.6.5.5.2.13 State v. Limon 7.2.6.5.5.2.13 State v. Limon
280 Kan. 275 (2005)
STATE OF KANSAS, Appellee,
v.
MATTHEW R. LIMON, Appellant.
No. 85,898
Supreme Court of Kansas
Opinion filed October 21, 2005.
James D. Esseks, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of New York, New York, argued the cause, and Tamara Lange, of American Civil Liberties Union Foundation, Lesbian & Gay Rights Project, of San Francisco, California, and Paige A. Nichols, of Lawrence, were with him on the briefs for appellant.
Jared S. Maag, deputy attorney general, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.
Jeffrey E. Goering, of Thompson, Stout & Goering, LLC, of Wichita, and Matthew D. Staver, of Liberty Counsel, of Longwood, Florida, were on the brief for amicus curiae Kansas Legislators.
Timothy M. O'Brien and Chelsi K. Hayden, of Shook, Hardy & Bacon, L.L.P., of Overland Park, and Julie M. Carpenter and Nicole G. Berner, of Jenner & Block, LLC of Washington, D.C., were on the brief for amicus curiae DKT Liberty Project.
Eric D. Barton, of Wagstaff & Cartmell, LLP, of Kansas City, Missouri, and Hayley Gorenberg, of Lambda Legal, of New York, New York, were on the brief for amici curiae Kansas Public Health Association, American Public Health Association, American Academy of HIV Medicine, American Foundation for AIDS Research, HIV Medicine Association, International Association of Physicians in AIDS Care, National Alliance of State and Territorial AIDS Directors, and National Minority AIDS Council.
Melanie S. Morgan, of Kansas City, and Ruth N. Borenstein, Leecia Welch, and Sylvia M. Sokol, of Morrison & Foerster, LLP, of San Francisco, California, were [276] on the brief for amici curiae National Association of Social Workers and Kansas Chapter of the National Association of Social Workers.
The opinion was delivered by
LUCKERT, J.:
The principal issue presented in this case is whether the Kansas unlawful voluntary sexual relations statute, K.S.A. 2004 Supp. 21-3522, violates the equal protection provision of the Fourteenth Amendment to the United States Constitution. Matthew Limon argues that the United States Supreme Court decision in Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003), requires this court to find the statute unconstitutional because it results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex.
The statute subject to this challenge, commonly referred to as the Romeo and Juliet statute, applies to voluntary sexual intercourse, sodomy, or lewd touching when, at the time of the incident, (1) the victim is a child of 14 or 15; (2) the offender is less than 19 years of age and less than 4 years older than the victim; (3) the victim and offender are the only ones involved; and (4) the victim and offender are members of the opposite sex. K.S.A. 2004 Supp. 21-3522. Limon's conduct meets all of the elements of the Romeo and Juliet statute except the one limiting application to acts between members of the opposite sex.
When the Romeo and Juliet statute applies, prison terms are shorter and other consequences, such as postrelease supervision periods and sex offender registration requirements, are less harsh than when general rape, sodomy, and lewd touching statutes apply. Because these disparities are based upon the homosexual nature of Limon's conduct, he argues the Romeo and Juliet statute creates a classification which violates the equal protection principles announced by the United States Supreme Court. Limon suggests we apply a strict level of scrutiny when reviewing his claim, but asserts that even if the rational basis test applies, under the guidance of Lawrence, the classification bears no rational relationship to legitimate State interests.
[277] We agree that the United States Supreme Court's decision in Lawrence controls our analysis and, when considered in conjunction with several equal protection decisions of the United States Supreme Court, requires us to hold that the State does not have a rational basis for the statutory classification created in the Romeo and Juliet statute.
Because we reach this conclusion, we will not reach Limon's other constitutional attacks upon his conviction. However, we will discuss his argument that his sentence violates the principles enunciated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Factual and Procedural Background
Limon was convicted of criminal sodomy pursuant to K.S.A. 21-3505(a)(2) after a bench trial on stipulated facts. The stipulation established that on February 16, 2000, Limon had consensual oral contact with the genitalia of M.A.R. Both Limon and M.A.R. are male. Limon turned 18 years of age just 1 week before the incident; his date of birth is February 9, 1982. He was less than 4 years older than M.A.R., who turned 15 years of age the month following the incident. M.A.R.'s date of birth is March 17, 1985.
After his conviction, Limon filed a motion for a downward durational departure from the presumptive sentence under the Kansas sentencing guidelines. He also renewed his argument that his equal protection rights had been violated by the conviction. These motions were argued and evidence was presented at the sentencing hearing.
The contact occurred at a school for developmentally disabled children where Limon and M.A.R. were residents. Although there is a discrepancy between Limon's and M.A.R.'s functioning, the difference is minor. Intellectually, Limon falls between the ranges described as borderline intellectual functioning and mild mental retardation. M.A.R. functions in the upper limits of the range of mild mental retardation. M.A.R. consented to the sexual contact, and when he asked Limon to stop, Limon did so.
The trial court rejected Limon's equal protection argument and denied the motion for downward durational departure. The trial [278] court found that Limon's criminal history category was B because of two prior juvenile adjudications for aggravated criminal sodomy. Limon was sentenced to 206 months' imprisonment, which was the mitigated term under the Kansas sentencing guidelines for a severity level 3 crime where the defendant has a criminal history falling in category B. As a consequence of Limon's conviction, he is subject to 60 months' of postrelease supervision and is required to register as a persistent sexual offender. K.S.A. 22-4902 et seq. By contrast, had Limon been convicted of sodomy under the unlawful sexual relations statute, the presumptive sentence at the time of the offense (and now) would have been only 13, 14, or 15 months' imprisonment. K.S.A. 1999 Supp. 21-4704. Moreover, those sentenced under the unlawful sexual relations statute are not subject to the provisions regarding sentencing of persistent sexual offenders (K.S.A. 2004 Supp. 21-4704[j] and K.S.A. 2004 Supp. 22-3717[d][2]) or required to register as a sex offender (K.S.A. 22-4902).
Limon appealed, and the Court of Appeals affirmed his conviction and sentence in State v. Limon, No. 85,898, unpublished opinion filed February 1, 2002, rev. denied 274 Kan. 1116 (2002) (Limon I). The Court of Appeals' decision was based primarily upon Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986), overruled by Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003).
Limon sought this court's review of the Court of Appeals' decision; his petition was denied. Limon then filed a petition for writ of certiorari to the United States Supreme Court. While his petition was pending, the Supreme Court issued its decision in Lawrence v. Texas, which involved two adult men who engaged in private, consensual anal sex; they were charged and convicted under a Texas statute which prohibited "deviate sexual intercourse" between persons of the same sex.
In an opinion authored by Justice Kennedy and joined by Justices Stevens, Souter, Ginsburg, and Breyer, the Court held that the Texas statute violated the Due Process Clause. In doing so, the Court focused upon Bowers, the decision upon which the Kansas Court of Appeals had relied in the instant case. In Bowers, the [279] United States Supreme Court sustained a Georgia criminal sodomy statute against a claim the provision violated the Due Process Clause. In a turnabout of the holding in Bowers, the Lawrence Court concluded: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled." 539 U.S. at 578.
The Lawrence Court recognized a liberty interest and considered whether the State's infringement of that interest was justified by a legitimate State interest:
"The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. `It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' [Citation omitted.] The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578.
Justice O'Connor concurred, finding the Texas statute unconstitutional. However, she did not join in the majority's analysis that the statute violated the Due Process Clause. She would have found the statute unconstitutional as a violation of equal protection. She concluded her analysis by stating: "A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review." 539 U.S. at 585 (O'Connor, concurring).
Justice Scalia wrote a dissenting opinion which Chief Justice Rehnquist and Justice Thomas joined. For our purposes, the dissent is instructive because of its discussion of what the majority opinion does or does not do. Especially significant to our review is Justice Scalia's conclusion that the majority opinion means that "the promotion of majoritarian sexual morality is not even a legitimate state interest" and that criminal legislation on matters such as "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" [280] cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).
One day after issuing this decision, the Supreme Court granted Limon's petition, vacated the judgment, and remanded the case to the Kansas Court of Appeals "for further consideration in light of Lawrence v. Texas." Limon v. Kansas, 539 U.S. 955, 156 L. Ed. 2d 652, 123 S. Ct. 2638 (2003).
The decision upon remand was fractured; each judge on the three judge panel of the Court of Appeals filed a separate opinion. Although stating a different rationale, two judges agreed that Limon's conviction and sentence should once again be affirmed. The Court of Appeals majority opinion, authored by Judge Green, dismissed the application of Lawrence, concluding it "is factually and legally distinguishable from the present case." State v. Limon, 32 Kan. App. 2d 369, 373, 83 P.3d 229 (2004). The Court of Appeals majority focused upon Justice Kennedy's explanation that "[t]he present case does not involve minors." 32 Kan. App. 2d at 373-74 (quoting Lawrence, 539 U.S. at 578). Rather, Lawrence involved "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." 539 U.S. at 578. Additionally, the Court of Appeals majority distinguished the legal analysis, noting that the Lawrence majority declined to apply an equal protection analysis and instead determined the Texas statute violated the Due Process Clause. In contrast, Limon does not assert a due process challenge.
Judge Green applied the lowest level of scrutiny, the rational basis test, when analyzing Limon's equal protection claim and found that the legislature "could have rationally determined that heterosexual sodomy between a child and an adult could be put in a class by itself and could be dealt with differently than homosexual sodomy between a child and an adult." 32 Kan. App. 2d at 375. Judge Green identified four interests which he believed provided a rational basis for the classification:
(1) Protection of Children. "[T]he legislature could well have concluded that homosexual sodomy between children and young adults could disturb the traditional sexual development of children.. . . K.S.A. [2004 Supp.] 21-3522 is designed to discourage [281] voluntary sexual behavior between young adults and children which deviates from traditional sexual mores." 32 Kan. App. 2d at 377. The classification which gives a more lenient sentence to members of the opposite sex is proper "because it is rationally related to the purpose of protecting and preserving the traditional sexual mores of society and the historical sexual development of children." 32 Kan. App. 2d at 377.
(2) Marriage and Procreation. Judge Green concluded the government has a legitimate interest in protecting marriage and procreation because the survival of society requires replenishment of its members. Since sexual acts between same-sex couples do not lead to procreation, he reasoned that the classification contained in K.S.A. 2004 Supp. 21-3522 advances the government's interest in protecting and advancing the family as the commonly recognized unit for procreation. 32 Kan. App. 2d at 378.
(3) Parental Responsibility. Judge Green also observed that the legislature might have determined that lengthy incarceration of a young adult offender who has become a parent as a result of a heterosexual relationship with a minor would be counterproductive to that young adult's duty to support his or her child. Because same-sex relationships do not generally lead to unplanned pregnancies, the need to release a same-sex offender from incarceration is absent. Thus, Judge Green concluded, K.S.A. 2004 Supp. 21-3522 advances the government's interest in getting a young adult parent involved in providing financial support for the child. 32 Kan. App. 2d at 378-79.
(4) Prevention of Sexually Transmitted Disease. Finally, Judge Green concluded that the legislature could have considered the fact "that certain health risks are more generally associated with homosexual activity than with heterosexual activity," thus K.S.A. 2004 Supp. 21-3522 is rationally related to the government's legitimate interest in protecting public health. 32 Kan. App. 2d at 379.
Judge Green also rejected Limon's claims that K.S.A. 2004 Supp. 21-3522 impermissibly discriminates on the basis of gender and that his conviction and sentence violated the Eighth Amendment prohibition against cruel and unusual punishment because his sentence [282] was disproportionate to the crime of criminal sodomy. 32 Kan. App. 2d at 380-81.
In his concurring opinion, Judge Malone agreed that K.S.A. 2004 Supp. 21-3522 does not discriminate on the basis of gender. He also agreed that Lawrence was both factually and legally distinguishable because it involved adults and was decided on due process rather than equal protection grounds. 32 Kan. App. 2d at 386. Judge Malone agreed with Judge Green's analysis that the Romeo and Juliet law should be evaluated under the rational basis test and stated:
"I cannot embrace every rational basis suggested in the majority opinion for upholding the constitutionality of K.S.A. [2004] Supp. 21-3522, and in fact I disagree with many of the positions advanced in the majority opinion. However, if the only rational basis justifying the statute is the legislature's intention to protect children from increased health risks associated with homosexual activity until they are old enough to be more certain of their choice, it is within the legislature's prerogative to make that determination. This rationale, although tenuous in some respects, provides a `reasonably conceivable state of facts' sufficient to justify the statutory classification." 32 Kan. App. 2d at 388.
Judge Pierron dissented. Although he, too, applied the rational basis test in determining whether K.S.A. 2004 Supp. 21-3522 was constitutional, he emphasized that "[l]egislative disapproval of homosexuality alone is not enough to justify any measures the legislature might choose to express its disapproval. Under the rational basis test, there must be a showing that the measures adopted have a rational relationship to a legitimate legislative concern." 32 Kan. App. 2d at 396. Reviewing each of the reasons offered by the State to justify the discriminatory sentencing provision, Judge Pierron determined that none of them bore any rational relationship to the statute's classification. 32 Kan. App. 2d at 396-400. He concluded: "The purpose of the law is not to accomplish any of the stated aims other than to punish homosexuals more severely than heterosexuals for doing the same admittedly criminal acts." 32 Kan. App. 2d at 400. Judge Pierron would hold that the classification violates the Due Process Clause of the Fifth and Fourteenth Amendments and would strike the unconstitutional classification from the statute. 32 Kan. App. 2d at 400.
[283] Limon filed a petition for review which this court granted.
Analysis
In this appeal, Limon primarily argues that to punish criminal voluntary sexual conduct between teenagers of the same sex more harshly than criminal voluntary sexual conduct between teenagers of the opposite sex is a violation of the equal protection provision of the United States Constitution.
"Whether a statute violates equal protection is a question of law over which this court has unlimited review." State v. Mueller, 271 Kan. 897, 902, 27 P.3d 884 (2001).
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution demands that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." The guiding principle of the Equal Protection Clause is that similarly situated individuals should be treated alike. Cleburne v. Cleburne Living Center, 473 U.S. 432, 440, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Chiles v. State, 254 Kan. 888, 895, 869 P.2d 707, cert. denied 513 U.S. 850 (1994).
Limon's arguments are constructed entirely upon the precedent of United States Supreme Court cases, and those precedents command our decision in this case. However, Limon also cites § 1 of the Kansas Constitution Bill of Rights and, thus, preserves a state constitutional claim.
Sections 1 and 2 of the Kansas Constitution Bill of Rights "are given much the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law." Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987). Section 1 applies in cases such as this one when an equal protection challenge involves individual rights. 241 Kan. at 667.
Traditionally, when analyzing an equal protection claim, the United States and Kansas Supreme Courts employ three levels of scrutiny: strict scrutiny, intermediate scrutiny, and the rational basis test. Chiles, 254 Kan. at 891-92. The level of scrutiny applied by the court depends on the nature of the legislative classification and the rights affected by that classification. Romer v. Evans, 517 U.S. 620, 632, 134 L. Ed. 2d 855, 116 S. Ct. 1620 (1996). The [284] general rule is that a law will be subject to the rational basis test unless the legislative classification targets a suspect class or burdens a fundamental right. 517 U.S. at 631. In Farley, this court stated:
"When a statute is attacked on equal protection grounds, the general rule is that the statute is presumed constitutional, and the burden is on the party attacking the statute to prove otherwise. Only in cases involving `suspect classifications' or `fundamental interests' is the presumption of constitutionality displaced and the burden placed on the party asserting constitutionality to demonstrate a compelling state interest which justifies the classification." 241 Kan. at 667.
Thus, when an equal protection claim is made, the first step of the analysis is to determine the nature of the legislative classification and the rights which are affected by the classification. That determination will dictate the level of scrutiny which applies. The final step of the analysis requires determining whether the classification withstands the scrutiny.
Classification
In the first step, we must examine the nature of the classification created by the Romeo and Juliet statute. The State argues that the statute applies only to conduct and does not discriminate against any class of individual, in particular against homosexual persons. The State also argues that nothing in the record establishes that either Limon or M.A.R. is homosexual.
Indeed, there is no per se classification of homosexuals, bisexuals, or heterosexuals in the statute, nor do we know which classification applies to Limon or M.A.R. However, that does not mean that Limon's argument fails. As Justice Scalia noted in his dissent in Romer, "there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." (Emphasis added.) 517 U.S. at 641. The majority in Lawrence similarly noted that making homosexual conduct criminal and not legislating against "deviate sexual intercourse" committed by persons of different sexes "in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." 539 U.S. at 575. Throughout the Lawrence opinion, the majority refers to the stigmatizing and demeaning effect of criminalizing conduct commonly engaged in by [285] homosexuals and concludes that a state may not "demean their existence or control their destiny." 539 U.S. at 578. Additionally, Lawrence makes it clear that Romer applies to "persons who were homosexuals, lesbians, or bisexual either by `orientation, conduct, practices or relationships.'" Lawrence, 539 U.S. at 574 (quoting Romer, 517 U.S. at 624).
This case is different from Lawrence, where homosexual conduct was criminal and heterosexual conduct was not. The Lawrence Court focused upon the "stigma" the criminal statute imposed which it characterized as "not trivial." 539 U.S. at 575. Here, both types of conduct are criminalized and, thus, stigma attaches to the heterosexual conduct covered by the Romeo and Juliet statute. However, there is an enormous escalation in the severity of punishment for those punished under the general rape, sodomy, and lewd act statutes. The Kansas Sentencing Guidelines impose a presumptive sentence of prison upon all defendants, including those with no prior criminal history, who are convicted of a severity level 3 felony, the severity level applying to Limon's conviction. In contrast, a presumption of probation applies to all sentences, except those for defendants with criminal histories of "A" or "B," who are sentenced for a severity level 9 crime, which would be the applicable severity level for sodomy if the Romeo and Juliet statute applied.
Additionally, the presumptive terms of imprisonment for a severity level 3 felony, as noted earlier, are approximately 15 times that of a severity level 9 felony. As also discussed earlier, for Limon, whose criminal history score was a B, this classification means the difference between a 13-, 14-, or 15-month prison sentence and a 206-month prison sentence. K.S.A. 2004 Supp. 21-4704. For a defendant with no criminal history, a conviction of criminal sodomy (as charged in this case) entails a sentencing range of 55-59-61 months' presumptive imprisonment while a conviction of unlawful voluntary sexual relations under the Romeo and Juliet statute entails a sentencing range of 5-6-7 months with the presumption of probation. K.S.A. 2004 Supp. 21-4704. This represents an extreme disparity in sentencing.
[286] There is also the distinction that Limon faces the stigma of sex offender registration; those convicted under the Romeo and Juliet statute do not. K.S.A. 22-4902.
Furthermore, the demeaning and stigmatizing effect upon which the Lawrence Court focused is at least equally applicable to teenagers, both the victim and the offender, as it is to adults and, according to some, the impact is greater upon a teen.
Based upon these considerations we conclude there is a discriminatory classification requiring us to examine the level of scrutiny to be applied in testing the constitutionality of the classification.
Level of Scrutiny
The next step of our analysis is to determine the appropriate level of scrutiny to apply. Limon argues that under the holding in Lawrence the highest level of scrutiny should apply because the statute creates a classification of homosexuals which the Lawrence Court recognized as suspect. Contrary to this argument, the United States Supreme Court has not recognized homosexuals as a suspect classification. In addition, as Justice Scalia notes in his dissenting opinion in Lawrence, "Though there is discussion of `fundamental proposition[s]' and `fundamental decisions,' nowhere does the Court's opinion declare that homosexual sodomy is a `fundamental right.'" 539 U.S. at 586 (Scalia, J., dissenting). See Lofton v. Secretary of Dept. of Children & Family, 358 F.3d 804, 817 (11th Cir. 2004) (concluding it would be "a strained and ultimately incorrect reading of Lawrence to interpret it to announce a new fundamental right"); Standhardt v. Superior Court ex rel. County of Maricopa, 206 Ariz. 276, 77 P.3d 451 (2003), rev. denied May 26, 2004 (no fundamental right to same-sex marriage where Lawrence did not recognize fundamental right to engage in same-sex sexual conduct). Thus, strict scrutiny does not apply to our analysis of whether the Romeo and Juliet provision unconstitutionally discriminates based upon sexual orientation.
Justice O'Connor, in her concurring opinion in Lawrence, suggests "a more searching form of rational basis review" applies when a law exhibits a "desire to harm a politically unpopular group." 539 U.S. at 580 (O'Connor, J., concurring). Her suggestion was not [287] discussed by the Lawrence majority, which did not analyze the Texas statute on equal protection grounds. The majority did note that the "alternative" argument that the Texas statute was invalid under the Equal Protection Clause
"is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." 539 U.S. at 574-75.
Despite not deciding the case on equal protection grounds and never explicitly identifying the standard utilized for its due process analysis, the Lawrence majority, by approvingly citing and discussing the equal protection analysis in Romer, at least implied that the rational basis test is the appropriate standard when a statute is attacked because of its classification of homosexual conduct. In Romer, the Court considered whether "Amendment 2" to the Colorado Constitution, which prohibited government protection of the status "homosexual, lesbian, bisexual orientation, conduct, practices or relationships," violated the Equal Protection Clause. In Lawrence, the Court summarized the Romer decision, noting that the amendment named a "solitary class . . . and deprived them of protection under state antidiscrimination laws. We concluded that the provision was `born of animosity toward the class of persons affected' and further that it had no rational relation to a legitimate governmental purpose." 539 U.S. at 574.
The Lawrence opinion contains another oblique indication that the rational basis test would apply, stating: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." 539 U.S. at 578. (Emphasis added.) Typically, a search for a legitimate interest signifies a rational basis analysis.
Hence, we apply the rational basis test to determine whether the Romeo and Juliet statute is unconstitutional because of its exclusion of homosexual conduct.
Rational Basis Test
The Court of Appeals applied the rational basis test and upheld the statute upon finding minimal congruence between the classifying [288] means and the one legislative end upon which the two judges who comprised the majority could agree: public health.
As the Court of Appeals noted, the basic contours of the rational basis test are well-defined: "For a statute to pass constitutional muster under the rational basis standard, it therefore must meet a two-part test: (1) It must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals." Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 198, 62 P.3d 236 (2003).
In explaining the test, the United States Supreme Court has said that, although the rational basis test is "the most deferential of standards, we insist on knowing the relation between the classification adopted and the object obtained." Romer, 517 U.S. at 632. The Court observed that the "search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature. . . ; and it marks the limits of our own authority." 517 U.S. at 632. The Court continued: "By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. . . . `If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect.'" 517 U.S. at 633 (quoting U.S. Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 181, 66 L. Ed. 2d 368, 101 S. Ct. 453 [1980]) (Stevens, J., concurring).
Romer and other United States Supreme Court decisions instruct that we must examine the scope of the classification. Over-inclusiveness, where the legislation burdens a wider range of individuals than necessary given the State's interest, may be particularly invidious and unconstitutional. Romer, 517 U.S. at 632. Likewise, a failure to create a classification which is sufficiently broad to effectively accommodate the State's interest, i.e., the creation of an under-inclusive class, may evidence an animus toward those burdened. Cleburne, 473 U.S. at 450. Paradoxically, a class may be both under-and over-inclusive; Limon argues the Romeo and Juliet statute creates such a class.
[289] Justice O'Connor, in her concurring opinion in Lawrence, cites and synthesizes four cases which illustrate these points:
"In Department of Agriculture v. Moreno, [413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 (1973),] for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U.S. at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. [413 U.S. at 535-38]. In Eisenstadt v. Baird, 405 U.S. 438, 447-455, [31 L. Ed. 2d 349], 92 S. Ct. 1029 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences — like fraternity houses and apartment buildings — did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that `impos[ed] a broad and undifferentiated disability on a single named group' — specifically, homosexuals. 517 U.S. at 632." Lawrence, 539 U.S. at 580 (O'Connor, J., concurring).
Of the four cases Justice O'Connor discusses, two are particularly analogous to this case. As Justice O'Connor indicated, in Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972), the Court invalidated on rational basis grounds a Massachusetts statute banning the distribution of contraceptives to unmarried persons. The state's highest court had found the legislative purpose to be "the State's interest in protecting the health of its citizens" by "preventing the distribution of articles designed to prevent conception which may have undesirable, if not dangerous, physical consequences" and "to protect morals" by discouraging premarital sexual intercourse. 405 U.S. at 442. Addressing the purpose of preventing premarital sex, the Supreme Court concluded: "`The rationality of this justification is dubious, particularly in light of the admitted widespread availability to all persons . . . , unmarried as well as married, of birth-control devices for the prevention of disease, as distinguished from the prevention of contraception.'" 405 U.S. at 448-49 (quoting Griswold v. Connecticut, 381 U.S. 479, 498, 14 L. Ed. 2d 510, 85 S. Ct. 1678 [1965] [Goldberg, J., concurring]). The Court concluded that "the Massachusetts statute [290] is thus so riddled with exceptions that deterrence of premarital sex cannot reasonably be regarded as its aim." 405 U.S. at 449.
The Eisenstadt Court also explained, if the State genuinely considered contraceptives to pose a health risk, it would have banned their use by both married and unmarried persons. Protecting only single persons from the alleged dangers of contraceptives, and even then only when used to prevent pregnancy rather than the spread of disease, was "both discriminatory and overbroad" and "illogical to the point of irrationality." Eisenstadt, 405 U.S. at 450-51.
In the other case cited by Justice O'Connor which is particularly analogous, Romer, the Court was reviewing the Colorado constitutional amendment which the State argued protected the associational rights of landlords and employers with moral objections to homosexuality and furthered the State's interest in "conserving resources to fight discrimination against other groups." Romer, 517 U.S. at 635. The Court found it "impossible to credit" these proffered purposes. 517 U.S. at 635. Noting that rational basis inquiry was meant to "ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law," 517 U.S. at 633, the Court held that
"[e]ven laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it." 517 U.S. at 635.
The Court faulted the Colorado constitutional amendment for imposing a "broad and undifferentiated disability on a single named group." 517 U.S. at 632. The Court further condemned the statute because "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects." 517 U.S. at 632. Additionally, the amendment was "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests." 517 U.S. at 635. Because of these faults, the Court reached "the inevitable inference that the disadvantage imposed is born of animosity toward the class of [291] persons affected." 517 U.S. at 634. "`[D]esire to harm a politically unpopular group cannot constitute a legitimate governmental interest.'" 517 U.S. at 634 (quoting U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 534, 37 L. Ed. 2d 782, 93 S. Ct. 2821 [1973]). The result of these deficiencies was that, whatever else might be said of the amendment, it "offended" the "conventional and venerable" principle that "a law must bear a rational relationship to a legitimate governmental purpose." 517 U.S. at 635.
With these holdings to direct us, we begin our search for a rational basis for the harshly disparate sentencing treatment of those 18 years old and younger who engage in voluntary sex with an underage teenager of the same sex.
Legislative History
Although the legislature need not have articulated the basis for the classification the State relies upon when the classification is challenged, we begin with an examination of the legislative record to determine if a purpose for the classification is suggested therein.
The Kansas unlawful voluntary sexual relations (Romeo and Juliet) statute was originally drafted as an amendment to K.S.A. 21-3520, rather than as a free-standing statute. See L. 1999, ch. 164, sec. 38; 1999 S.B. 131. As it appeared in S.B. 131, the provision contained no requirement that the prohibited activity occur between members of the opposite sex. In other words, it would not have differentiated between a Romeo and Juliet relationship, a Romeo and Romeo relationship, or a Juliet and Juliet relationship.
The Kansas Sentencing Commission, which drafted the bill, offered the following testimony with regard to the provision:
"Numerous concerns have been raised by judges on the sentencing when the parties are in a mutual relationship and the parents or other parties initiate prosecution. This would allow for the sanctioning of the activity as a person felony, but would designate a presumptive nonprison sentence. In addition, a conviction under this new section would not require the offender to register as a sex offender, which may result in long term consequences." Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.
The Commission also noted that the provision was one of several recommendations that attempted to address proportionality issues. [292] The Commission's recommendations were based on the guiding principles that incarceration should be reserved for the most violent and chronic offenders and that the length of sentences should increase in proportion to the severity of the offense, with loss of human life being the most severe threat to public safety. Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.
There was significant opposition to the provision, although none of the recorded criticism faulted the statute for not containing language limiting the provision to heterosexual teen relations. The Kansas County & District Attorneys Association offered the following testimony opposing the provision:
"[W]e are opposed to the provisions that distinguish sex crimes based on the offender's age on two grounds:
"1. POLICY. A crime is a crime, whether committed by a 19-year-old or a 22-year-old, and, historically, the offender's age has only determined whether the case is filed in juvenile or adult court. As the attached testimony submitted by the Reno County Attorney there is a strongly-held belief that there are predatory relationships out there, regardless of the proximity in age between predator and victim. Those cases truly involving Romeo and Juliet are better left to prosecutor discretion; or more correctly victim and police discretion, since the prosecutor rarely hears about true Romeo and Juliet situations. Likewise, the bundling of the various consensual sex acts between Romeo and Juliet into a single crime is indicative that the State makes no distinction between heavy petting, sodomy or intercourse. Those . . . involved in the problem of teen pregnancy would beg to differ with that decision.
"2. LEGAL. . . . What is the state interest in making a distinction based on the difference in age? Is the victim less fondled or, in the extreme case, made less pregnant, simply because a defendant is near her own age? . . ." Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999.
The Reno County Attorney testified that the law "will send a dangerous message to the young men and women of this State . . . that fourteen and fifteen year old girls are entitled to less protection and it is somehow less of an offense if the perpetrator happens to be near them in age." He noted that not all sexual relations between teenagers involve romantic relationships. Testimony on S.B. 131 before the Senate Judiciary Committee, February 11, 1999. Representatives of the Kansas Peace Officers' Association and the Attorney General also opposed the provision, [293] objecting on similar grounds. Kansas Peace Officers' Testimony on S.B. 131 before the House Judiciary Committee, March 16, 1999; Attorney General's Testimony on S.B. 131 before the Senate Judiciary Committee, February 11, 1999.
After S.B. 131 received hearings in committee and was reported to the Senate, the Senate passed the bill on a vote of 35 "ayes" and 5 "nays." Sen. J., 1999, p. 242. Although S.B. 131 was heard by the House Judiciary Committee, the House did not take final action on the bill. Eventually, in conference committee, the provisions of S.B. 131 were amended into 1999 S.B. 149. At that point, the phrase limiting the statute to relations between members of the opposite sex, making it a true Romeo and Juliet statute, was added along with other revisions not relevant to the facts of this case. See House J., 1999, p. 1165. Although the version of the Romeo and Juliet law which appears in S.B. 149 is different from the one contained in S.B. 131, there are no minutes reflecting how or why it was changed to include the "opposite sex" language. S.B. 149, and previously S.B. 131, contained many other juvenile and crime provisions. When the Senate voted to accept the conference report, 30 "yea" votes and 9 "nay" votes were cast. Sen. J., 1999, p. 1003.
As this review of the legislative history reflects, there is nothing in the legislative record regarding the legislative purpose for adding the opposite sex requirement. The only legislative purposes recorded relate to the general goal of less harsh punishment for those 18 years old and younger who had voluntary sex with another teen who was at least 14 and the goal of adjusting sentence disparities. It was opponents to the legislation who raised public health and moral concerns and none of them related to the difference between heterosexual and homosexual conduct.
Although the legislative history does not suggest the State's interest in including the phrase "and are members of the opposite sex," the State argues several possibilities. In addition, we must consider the rationales utilized by the Court of Appeals majority. These various possible State interests can be categorized as: (1) the protection and preservation of the traditional sexual mores of society; (2) preservation of the historical notions of appropriate sexual development of children; (3) protection of teenagers against coercive [294] relationships; (4) protection of teenagers from the increased health risks that accompany sexual activity; (5) promotion of parental responsibility and procreation; and (6) protection of those in group homes.
Traditional Sexual Mores and Development
Limon counters this theoretical justification by arguing that the State's moral disapproval of homosexuality is an illegitimate justification for discrimination.
The Lawrence decision rejected a morality-based rationale as a legitimate State interest. The Court recognized that many people condemn homosexuality as immoral:
"[T]he Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives." 539 U.S. at 571.
However, the Court continued by stating: "These considerations do not answer the question before us." 539 U.S. at 571. The Court framed the issue as "whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. `Our obligation is to define the liberty of all, not to mandate our own moral code.' Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 [, 120 L. Ed. 2d 674, 112 S. Ct. 2791] (1992)." 539 U.S. at 571.
Thus, when Texas argued that its anti-sodomy law furthered the promotion of morality (539 U.S. at 582 [O'Connor, J., concurring]), the Court in Lawrence rejected the argument and adopted the following reasoning from Justice Stevens' dissent in Bowers: "`[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.'" 539 U.S. at 577 (quoting Bowers, 478 U.S. at 216 [Stevens, J., dissenting]).
This holding followed the precedent of Casey, Eisenstadt, Romer, and other cases. The Court in Romer explained that our [295] laws are often morality-based which, in and of itself, is not objectionable if the laws are applied fairly to all. However, the right to equal protection of those laws is offended when legal classifications are drawn for the purpose of invoking moral disapproval with "the purpose of disadvantaging the group burdened by the law." Romer, 517 U.S. at 633.
The Court of Appeals majority would dismiss this analysis in Lawrence because of the due process context in which the discussion was made. The Lawrence majority, however, signaled application of the principles to equal protection analysis: "Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests." 539 U.S. at 575. In essence, the Lawrence decision recognized that the substantive due process analysis at issue in that case and the equal protection analysis necessary in this case are inevitably linked.
This court has described this link as follows:
"The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. The test in determining the constitutionality of a statute under due process or equal protection concepts weighs almost identical factors." (Emphasis added.) Chiles v. State, 254 Kan. 888, Syl. ¶ 10, 869 P.2d 707 (1994).
Thus, we are directed in our equal protection analysis by the United States Supreme Court's holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest.
Historical Notions of Appropriate Sexual Development of Children
The Court of Appeals also determined the Lawrence holding did not apply to this case because Lawrence involved adults and this case involved an adult in a relationship with a minor. Likewise, the State focuses its argument on the State's interest in the moral and sexual development of children.
[296] Undoubtedly, the State has broad powers to protect minors. This point was noted by the United States Supreme Court in Carey v. Population Services International, 431 U.S. 678, 52 L. Ed. 2d 675, 97 S. Ct. 2010 (1977). Carey involved a constitutional challenge to a prohibition on distribution of contraceptives to persons under 16 years of age. The appellants argued that the free availability of contraceptives might encourage sexual activity among minors and the State had a legitimate interest in discouraging such behavior. In response, the appellees argued that minors as well as adults had a privacy right to engage in consensual sexual behavior. The Carey court noted that "in the area of sexual mores, as in other areas, the scope of permissible state regulation is broader as to minors than as to adults." 431 U.S. at 694 n.17.
However, Carey held that "the right to privacy in connection with decisions affecting procreation extends to minors as well as adults" and invalidated the prohibition in question. 431 U.S. at 693. The Court noted that "State restrictions inhibiting privacy rights of minors are valid only if they serve `any significant state interest. . . that is not present in the case of an adult.' [Citation omitted.]" 431 U.S. at 693.
Although this case does not involve the fundamental right to privacy in connection with decisions affecting procreation or legislation which inhibits the rights of minors, the Carey rationale suggests that even when the articulated interest is the protection of minors, there still must be a connection between the State's interest and the classification and, if the burden would not be allowed if placed upon an adult, the State's interest must be unique to children. So, unless the justifications for criminalizing homosexual activity between teenagers more severely than heterosexual activity between teenagers are somehow different than the justifications for criminalizing adult homosexual activity, those justifications must fail.
Neither the Court of Appeals nor the State cites any scientific research or other evidence justifying the position that homosexual sexual activity is more harmful to minors than adults.
After this court accepted review of the Court of Appeals decision, the National Association of Social Workers and the Kansas [297] Chapter of the National Association of Social Workers filed an amici brief which specifically questions the Court of Appeals' conclusion that the exclusion of gay teens from the application of the unlawful sexual relations statute protects the traditional sexual development of children. That brief cites a number of studies indicating that sexual orientation is already settled by the time a child turns 14, that sexual orientation is not affected by the sexual experiences teenagers have, and that efforts to pressure teens into changing their sexual orientation are not effective.
We conclude, as the United States Supreme Court stated in Romer, the "status-based enactment [is so] divorced from any factual context" we cannot "discern a relationship" to the espoused State interest (Romer, 517 U.S. at 635) that the law preserves the sexual development of children consistent with traditional sexual mores. Additionally, we again recognize the Lawrence Court's conclusion that moral disapproval of a group cannot be a legitimate governmental interest.
Coercive Effect Upon Minors
The State at various times refers to the coercive effect often existing in a relationship between an adult and a child. Certainly, the State has a significant interest in prohibiting sex between adults and minors, not only because of the potentially coercive effect of an adult's influence but also because of concern regarding the minor's ability to arrive at an informed consent. These concerns are addressed by and form the fundamental policy rationale of statutory rape provisions. Limon's argument accepts and supports this State interest; he agrees he deserves punishment. He simply disputes that he should be punished more severely for having sex with a member of the same sex.
Additionally, the policy decision made by the legislature in enacting the Romeo and Juliet statute undercuts this argument. The legislature determined, at least as to those in a heterosexual relationship, that a mutual relationship between teenagers is less likely to involve the same coercion that a relationship between an older adult and a child might and is more likely to be one where the minor's participation is voluntary, although not legally consensual.
[298] This, however, begs the question of whether there is a rational basis to distinguish between a class of those 18 years old and younger who engage in voluntary sex with minors aged 14 or 15 who are of the same sex and a class of those 18 years old and younger who engage in voluntary sex with such minors of the opposite sex. We see no basis to determine that as a class one group or the other would have a higher tendency to be coercive. A distinction on this basis has no factual support.
The State makes the same argument in a narrower fashion as applied to the facts of this case, stating the activity between Limon and M.A.R. was "less than consensual and more likely coercive." Where the State stipulated below that the sexual activity between Limon and M.A.R. was consensual, it cannot be heard to argue on appeal that Limon's actions were "coercive and predatory." We agree the wording in the stipulation that the oral sex between Limon and M.A.R. was "consensual" was a legal misnomer and a better term would have been "voluntary," but that distinction does not permit the State to back away from its stipulation at this stage of the case.
Public Health
As to the public health justification, Limon argues that excluding gay teenagers from the lesser penalties of the Romeo and Juliet law has no connection with the State's interest in reducing the spread of sexually transmitted diseases. Specifically, the State focuses upon the risks of HIV and in support of its argument cites briefs filed before the United States Supreme Court in the Lawrence case.
We first note that there is no basis to determine that public health risks for minors engaging in same-gender sexual relations is greater than the risk for adults. That Lawrence did not discuss the often-cited justifications of public health and morality tells us that those interests are either not legitimate interests at all, or more likely, that they are not sufficient to overcome an individual's right to liberty and privacy.
At a minimum, we cannot distinguish between the health risks for the adults involved in Lawrence and the minor involved in this [299] case. Additionally, we find persuasive Limon's argument that for this justification to be rational, the prohibited sexual activities would have to be more likely to transmit disease when engaged in by homosexuals than by heterosexuals; however, this proposition is not grounded in fact.
Again, we have the benefit of additional arguments, including the amici curiae brief of a number of public health organizations which provided scientific and statistical information. These studies persuade us that the Romeo and Juliet statute presents one of those seemingly paradoxical situations where the classification is both over-and under-inclusive.
Using statistics from the United States Centers for Disease Control and Prevention (CDC) and other studies, the amici support the argument that the Court of Appeals majority and the State focus on the wrong population in citing the statistics regarding the incidence of HIV infection in adult homosexual males. Significantly, they point to the CDC's Basic Statistics which reflect that among the population of HIV-positive young people ages 13-19, which includes the age range covered by the Romeo and Juliet statute, 61 percent are female. Yet, the risk of transmission of the HIV infection through female to female contact is negligible. Recognizing that HIV is transmitted through intravenous drug use of shared needles and other mechanisms besides sexual transmission, the gravest risk of sexual transmission for females is through heterosexual intercourse.
There is a near-zero chance of acquiring the HIV infection through the conduct which gave rise to this case, oral sex between males, or through cunnilingus. And, although the statute grants a lesser penalty for heterosexual anal sex, the risk of HIV transmission during anal sex with an infected partner is the same for heterosexuals and homosexuals.
The legislative history reveals that the concern of conferees was more focused upon teenage pregnancy. Obviously, this public health risk is not addressed through this legislation. According to the Kansas Department of Health and Environment's Teenage Pregnancy Report for 2003, there were 1,559 pregnancies in Kansas teens age 15 to 17. In contrast, the same agency reports that [300] from 2000 to 2002 there were two cases of AIDS in Kansas among teenagers 13-19 years old.
Dissenting Judge Pierron cited several scenarios in which the statute did not protect against activities which raise a public health risk. In part, he stated:
"[U]nder the law a female infected with every venereal disease yet identified, and engaging in acts quite likely to infect or actually infecting a male minor, will receive a much lighter sentence. A disease-free male engaging in sex with another male in a manner not likely to spread disease if it was present will receive a much heavier sentence. Perversely, under the law, a male with a venereal disease who infects and impregnates an underage female will also receive a much lighter sentence." 32 Kan. App. 2d at 397-98.
In essence, the Romeo and Juliet statute is over-inclusive because it increases penalties for sexual relations which are unlikely to transmit HIV and other sexually transmitted diseases. Thus, the statute burdens a wider range of individuals than necessary for public health purposes. Simultaneously, the provision is under-inclusive because it lowers the penalty for heterosexuals engaging in high-risk activities. In other words, the statute proscribes conduct unrelated to a public health purpose and does not proscribe conduct which is detrimental to public health.
Thus, the conclusions of the Romer Court are, again, particularly salient. The status-based distinction in the Kansas Romeo and Juliet statute is so broad and so divorced from supporting facts that we cannot discern a relationship to the facially legitimate interest of protecting public health and "its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects." 517 U.S. at 632. The "statute's superficial earmarks as a health measure" (Eisenstadt, 405 U.S. at 452) do not satisfy scrutiny under the rational basis test.
Promoting Parental Responsibility and Procreation
Limon also contends that there is no rational connection between the classification and the Court of Appeals' parental responsibility and procreation justifications. The Court of Appeals stated that the legislature might have determined that lengthy incarceration [301] of a young adult offender who has become a parent as a result of a heterosexual relationship with a minor would be counterproductive to that young adult's duty to support his or her child. But, because same-sex relationships do not lead to unplanned pregnancies, the need to release a same-sex offender from incarceration is absent.
Limon argues this justification and Judge Green's findings regarding the State's interest in relationships which lead to procreation make no sense since the State's interest is to discourage teen pregnancies, not encourage them. Further, the statute does not reduce penalties solely for conduct that results in pregnancy, but also for heterosexual intercourse which does not result in pregnancy, i.e., sodomy and lewd contact. Again, the relationship between the objective and the classification is so strained that we cannot conclude it is rational.
Protection of Those in Group Homes
The State also makes an argument that the State has an interest in gender segregation in group homes. The Romeo and Juliet statute has no limitation related to living arrangements or disability. If the statute punished similar behavior in segregated group homes for juveniles, the State's argument could conceivably justify a harsher penalty. However, the statute is not limited in this manner. If the legislative purpose is to protect those in group homes, the statute's overbreadth in covering situations both inside and outside residential living environments suggests animus toward teenagers who engage in homosexual sex. See Romer, 517 U.S. at 632.
No Rational Basis
We conclude that K.S.A. 2004 Supp. 21-3522, the Kansas unlawful voluntary sexual relations statute, does not pass rational basis scrutiny under the United States Constitution Equal Protection Clause or, because we traditionally apply the same analysis to our state constitution, under the Kansas Constitution Equal Protection Clause. The Romeo and Juliet statute suffers the same faults as found by the United States Supreme Court in Romer and Eisenstadt; adding the phrase "and are members of the opposite sex" [302] created a broad, overreaching, and undifferentiated status-based classification which bears no rational relationship to legitimate State interests. Paraphrasing the United States Supreme Court's decision in Romer, the statute inflicts immediate, continuing, and real injuries that outrun and belie any legitimate justification that may be claimed for it. Furthermore, the State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).
Because we determine the statute violates constitutional equal protection guarantees based upon a rational basis analysis, we need not reach Limon's other arguments that strict scrutiny should be applied, including his argument that the statute discriminates based on sex.
Appropriate Remedy
Given our holding, we must determine the appropriate remedy. Limon asks this court to: (1) strike the language from the Romeo and Juliet statute that limits its application to members of the opposite sex and (2) reverse and remand this case with instructions that the State initiate any further proceedings under the Romeo and Juliet law within 30 days. The State argues that this court cannot judicially rewrite the statute and contends that, if the court were to declare the challenged classification unconstitutional, it must nullify the statute.
On several occasions, this court has considered severing an unconstitutional provision from a statute and leaving the remainder in force. Each time, we have reiterated that the determination of whether the provision may be severed "depends on the intent of the legislature." State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, Syl. ¶ 16, 955 P.2d 1136 (1998). See, e.g., State v. Carpenter, 231 Kan. 235, 240-41, 642 P.2d 998 (1982) (striking phrase from statute as unconstitutionally vague); Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 588, [303] 618 P.2d 837 (1980) (striking phrase from statute which unlawfully delegated legislative power). We have applied the same test when reading judicial requirements into statutes which otherwise were overbroad, if doing so reflects the "manifest intention of the legislature." State v. Motion Picture Entitled "The Bet," 219 Kan. 64, 71, 547 P.2d 760 (1976) (imposing constitutional standard upon statutory definition of "obscene").
When an alteration of a statute — either through striking language or adding judicial requirements to the statute — would be contrary to legislative intent, courts must nullify the statute. This point was emphasized in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2005), cert. granted ___ U.S. ___, 161 L. Ed. 2d 1109 (2005), in which this court nullified the Kansas death penalty statute after finding it unconstitutional. Marsh raised the constitutionality of the statute because the jury had been instructed, consistent with the statute, that the death penalty must be imposed if aggravating and mitigating circumstances weighed equal, in other words were in equipoise. Marsh argued his death sentence must be reversed because this equipoise provision had been found to violate the Eighth Amendment in State v. Kleypas, 272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002). Marsh also argued that this constitutional infirmity required nullification of the death penalty statute, a result which would require reversing portions of the Kleypas decision. Specifically, Marsh argued the Kleypas court had erroneously applied precedent and improperly rewritten an unambiguous statute in a manner clearly contrary to legislative intent.
The majority in Marsh agreed with this argument. First, the Marsh court noted, "the avoidance doctrine [under which courts seek to construe statutes as constitutional] is applied appropriately only when a statute is ambiguous, vague, or overbroad." 278 Kan. at 539. The provision of the death penalty statute was not ambiguous, vague, or overbroad. The express language adopted by the legislature made it clear that the legislature intended to mandate the imposition of a death sentence where the existence of aggravating circumstances is not outweighed by any mitigating circumstances found to exist. In other words, there was no ambiguity and, therefore, no basis to apply rules of statutory construction. Second, [304] the Marsh court, citing decisions of this court and of the United States Supreme Court, reiterated the long-standing and well-established rule that a court can only "`construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.'" 278 Kan. at 539. The majority concluded that the statutory construction adopted in Kleypas was not within the apparent intent of the legislature. The legislative history of the death penalty statute showed that the attorney general had presented the legislature the precise question of whether the equipoise provision was constitutional. The attorney general recommended that the statute provide that the aggravating circumstances must outweigh the mitigating circumstances before a death sentence may be imposed and advised that without this change the constitutionality of the statute was in question. Despite this specific recommendation and advice, the legislature did not act on the attorney general's advice. 278 Kan. at 540. Thus, to read the statute in the manner suggested in Kleypas was contrary to legislative intent. The Marsh court concluded it was a violation of the separation of powers doctrine for the court to rewrite a statute in a manner so clearly contrary to the legislative intent. The only option in such a situation is to nullify the statute.
In this case, it is the State suggesting that the statute must be nullified if found unconstitutional. Limon, noting that the statute is overbroad, thus making it appropriate for the court to consider the remedy of striking language, suggests there is evidence of a legislative intent to have the offending language struck rather than to nullify the entire provision. He points to the severance provision within the sex crimes statutes.
We have noted that, although our decision to strike language is not dependent upon the presence of a severance provision, "[t]he enactment of a severability clause in a statute or series of statutes evidences the intent of the legislature that if some portion or phrase in the statute is unconstitutional, the balance shall be deemed valid." State v. Next Door Cinema Corp., 225 Kan. 112, Syl. ¶ 8, 587 P.2d 326 (1978). In this case there is an applicable severability provision which applies to all sex crimes and provides: "If any provision of this act is held to be invalid or unconstitutional, it shall [305] be conclusively presumed that the legislature would have enacted the remainder of this act without such invalid or unconstitutional provision." K.S.A. 2004 Supp. 21-3521. The severability clause was already in place (it was enacted in 1998) at the time the Romeo and Juliet law was enacted in 1999. Thus, it is conclusively presumed the legislature would have enacted the statute even if it did not include the phrase "and are members of the opposite sex."
There are other considerations which also lead us to conclude that the legislative intent would be to strike the offending language rather than nullify the entire statute. These considerations were discussed in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004). At issue in Denney was whether there was an equal protection violation because K.S.A. 21-3502 allowed postconviction DNA testing in a rape case but not in an aggravated criminal sodomy case. After concluding there was no rational basis for allowing DNA testing for rapists but not allowing testing for Denney who had penetrated a female's anus with his penis, we concluded the statute was under-inclusive.
In considering a remedy, we extensively discussed applicable general rules and specifically examined use of those rules in two cases: Califano v. Westcott, 443 U.S. 76, 61 L. Ed. 2d 382, 99 S. Ct. 2655 (1979), and People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567 (1984). We need not repeat the full discussion here. Summarizing that discussion, we stated:
"[T]he question before us is whether the Kansas Legislature would prefer to have statutes which cover DNA testing for those convicted of aggravated criminal sodomy like Denney, or instead to have no statutes providing for postconviction DNA testing. To answer this question, we first consider the legislative purpose.. . . We next consider the public's needs. . . .
"As an additional consideration, we also examine the overall statutory scheme." Denney, 278 Kan. at 659-60.
In this case, the first two inquiries mentioned—legislative purpose and public need—are closely related. As previously discussed, the principal legislative purposes of the Romeo and Juliet statutes were to accommodate the situation where a teen relationship reduces the level of coercion potentially involved in a sexual relationship between an adult and a minor and to adjust the proportionality [306] of sentences. These purposes are not harmed by striking the language and, some would argue, are actually furthered through the revision.
The next consideration under Denney is the overall statutory scheme. We have stated: "Where parts of a statute or a section of a statute can be readily separated, then the part which is constitutional may stand while the unconstitutional part is rejected." State ex rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. at 316. In this case, the phrase "and are members of the opposite sex" can readily be struck without creating an ambiguous statute.
In State ex rel. Tomasic we also noted that, if from the legislative scheme "it can be said that the act would have been passed without the objectionable portion and if the statute would operate effectively to carry out the intent of the legislature with such portion stricken, the remainder of the law will stand as valid." 264 Kan. 293, Syl. ¶ 16.
In this case, we are assisted in this inquiry by the legislative history, specifically, the Senate vote on S.B. 131, which did not include the language that makes the provision unconstitutional. The Senate approved that proposal on a vote of 35 "ayes" to 5 "nays." Sen. J., 1999, p. 242. Hence, although a vote was not taken in both chambers of the legislature on S.B. 131, we know that the Senate, at least, supported the legislation without the offending language—indeed, with more yea votes than the measure drew once the offending language had been added.
From this examination, we conclude that several factors—the severability clause, the legislative purposes, the public need, the legislative scheme, and the legislative history—reveal that striking the offending language rather than nullifying the statute would be consistent with legislative intent.
Conclusion of Equal Protection Analysis
We hold K.S.A. 2004 Supp. 21-3522 unconstitutional as violating the equal protection provisions of the United States and Kansas Constitutions and strike from the statute the words "and are members of the opposite sex." We further hold that Limon's conviction [307] and sentence for criminal sodomy pursuant to K.S.A. 21-3505(a)(2) violate his right to equal protection of the laws.
We further grant Limon's requested remedy of imposing a time limit upon further proceedings in this case and order that the State will have 30 days in which to: (1) charge Limon under the provisions of K.S.A. 2004 Supp. 21-3522 without the words "members of the opposite sex" or (2) take other action.
Because we reach these holdings, we need not decide Limon's argument that his sentence was cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.
Apprendi Argument
We must, however, consider one additional issue raised by Limon. He contends that increasing his sentence based on his prior juvenile adjudications violates the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). Limon recognizes that this argument was rejected in State v. Hitt, 273 Kan. 224, 235-36, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), but raises the issue to preserve it for future review in the federal courts and to give this court a chance to reconsider Hitt.
Hitt held that juvenile adjudications "enjoy ample procedural safeguards" and are encompassed in the Apprendi exception for prior crimes. 273 Kan. at 236. This court has declined to overrule Hitt as recently as June 2004. See State v. Carter, 278 Kan. 74, 91 P.3d 1162 (2004).
More importantly, Limon did not raise this issue before the Court of Appeals; thus the issue is not properly before this court. See State v. Layton, 276 Kan. 777, 784, 80 P.3d 65 (2003) (where issue raised in petition for review was neither presented to nor decided by Court of Appeals, issue was not properly before this court).
Reversed and remanded with directions.
[308] DAVIS, J., and GERNON, J., not participating.
LARSON, S.J., assigned.
7.2.6.5.5.2.14 Connecticut Dept. of Public Safety v. Doe 7.2.6.5.5.2.14 Connecticut Dept. of Public Safety v. Doe
538 U.S. 1 (2003)
CONNECTICUT DEPARTMENT OF PUBLIC SAFETY ET AL.
v.
DOE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED.
No. 01-1231.
Supreme Court of United States.
Argued November 13, 2002.
Decided March 5, 2003.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
[2] REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 8. SOUTER, J., filed a concurring opinion, in which GINSBURG, J., joined, post, p. 9. STEVENS, J., filed an opinion concurring in the judgment, post, p. 110.
Richard Blumenthal, Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Gregory T. D'Auria, Associate Attorney General, and Lynn D. Wittenbrink, Perry Zinn Rowthorn, and Mark F. Kohler, Assistant Attorneys General.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Clement, Gregory G. Garre, Leonard Schaitman, and Mark W. Pennak.
[3] Shelley R. Sadin argued the cause for respondents. With her on the brief were Drew S. Days III, Beth S. Brinkmann, Seth M. Galanter, Philip Tegeler, and Steven R. Shapiro.[1]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined [4] the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F. 3d 38, 44, 46 (2001) (internal quotation marks omitted). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme.
"Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U. S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted [5] of sexually violent offenses must register for life. Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001).
The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. §§ 54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "`Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" § 54-258a.
Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website:
"`The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" 271 F. 3d, at 44.
Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe (hereinafter respondent) is a convicted sex offender who is subject to Connecticut's Megan's [6] Law. He filed this action pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "`dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest — his reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard." 271 F. 3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F. Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions.
The Court of Appeals affirmed, 271 F. 3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "`disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "`identifying [them] as being included in the Registry.'" Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U. S. 1077 (2002).
In Paul v. Davis, 424 U. S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute [7] the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute.
In cases such as Wisconsin v. Constantineau, 400 U. S. 433 (1971), and Goss v. Lopez, 419 U. S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F. 3d, at 44 ("`Individuals included within the registry are included solely by virtue of their conviction record and state law'" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§ 54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F. 3d, at 44 ("`[DPS] has made no determination that any individual included in the registry is currently dangerous'").
In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any [8] hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in `procedural due process' terms." Reno v. Flores, 507 U. S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondents 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U. S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (STEVENS, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process.
Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore
Reversed.
JUSTICE SCALIA, concurring.
I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondents, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due" — just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondents have not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, [9] as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring.
I join the Court's opinion and agree with the observation that today's holding does not foreclose a claim that Connecticut's dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut's disclaimer, ante, at 5, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents' situation.
Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. A court may exempt a convict from registration altogether if his offense was unconsented sexual contact, Conn. Gen. Stat. § 54-251(c) (2001), or sexual intercourse with a minor aged between 13 and 16 while the offender was more than two years older than the minor, provided the offender was under age 19 at the time of the offense, § 54-251(b). A court also has discretion to limit dissemination of an offender's registration information to law enforcement purposes if necessary to protect the identity of a victim who is related to the offender or, in the case of a sexual assault, who is the offender's spouse or cohabitor. §§ 54-255(a), (b).[2] [10] Whether the decision is to exempt an offender from registration or to restrict publication of registry information, it must rest on a finding that registration or public dissemination is not required for public safety. §§ 54-251(b), 54-255(a), (b). The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislative decision to make courts responsible for granting exemptions belies the State's argument that courts are unequipped to separate offenders who warrant special publication from those who do not.
The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. See, e. g., 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 17.6 (3d ed. 1999); L. Tribe, American Constitutional Law § 16-34 (2d ed. 1988). The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Today's case is no occasion to speak either to the possible merits of such a challenge or the standard of scrutiny that might be in order when considering it. I merely note that the Court's rejection of respondents' procedural due process claim does not immunize publication schemes like Connecticut's from an equal protection challenge.
[For opinion of JUSTICE STEVENS concurring in the judgment, see post, p. 110.]
[1] Briefs of amici curiae urging reversal were filed for the District of Columbia et al. by Robert R. Rigsby, Corporation Counsel of the District of Columbia, Charles L. Reischel, Deputy Corporation Counsel, and Edward E. Schwab, Senior Assistant Corporation Counsel, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Robert Torres of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodríguez of Puerto Rico, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the National Governors Association et al. by Richard Ruda and James I. Crowley; for the Center for the Community Interest by Robert J. Del Tufo; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Briefs of amici curiae urging affirmance were filed for the Association for the Treatment of Sexual Abusers by David A. Reiser; for the Office of the Public Defender for the State of New Jersey by Peter A. Garcia, Michael Z. Buncher, and Brian J. Neff; and for the Public Defender Service for the District of Columbia et al. by James W. Klein, Samia A. Fam, and Corinne A. Beckwith.
Lucy A. Dalglish and Gregg P. Leslie filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae.
[2] To mitigate the retroactive effects of the statute, offenders in these categories who were convicted between October 1, 1988, and June 30, 1999, were allowed to petition a court for restricted dissemination of registry information. §§ 54-255(c)(1)-(4). A similar petition was also available to any offender who became subject to registration by virtue of a conviction prior to October 1, 1998, if he was not incarcerated for the offense, had not been subsequently convicted of a registrable offense, and had properly registered under the law. § 54-255(c)(5).
7.2.6.5.6 V.B. Proof 7.2.6.5.6 V.B. Proof
Criminal prosecutions, strictly speaking, are between the state and the defendant. In homicides, the victims are, for obvious reasons, absent. How should the criminal system deal with rape victims? In rape cases, the criminal system has attempted to balance the defendant’s rights to confront his accuser and prove his case with the concern for victim’s privacy and dignity. As with rape law more generally, the cases in this section pose provocative questions about where the proper balance lies, and reflect the process of law and social change.
7.2.6.5.6.1 Federal Rule of Evidence 412 (Enacted 1978; Amended 1994) 7.2.6.5.6.1 Federal Rule of Evidence 412 (Enacted 1978; Amended 1994)
7.2.6.5.6.2 State v. DeLawder 7.2.6.5.6.2 State v. DeLawder
STATE OF MARYLAND
v.
LEE FRANKLIN DeLAWDER.
Court of Special Appeals of Maryland.
[213] The cause was argued before ORTH, C.J., and MELVIN, J., and EDWARD F. BORGERDING, Administrative Judge of the District Court of Maryland for District 1, specially assigned.
Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State's Attorney for Montgomery County, and Jerome C. Schaefer, Assistant State's Attorney for Montgomery County, on the brief, for appellant.
Michael G. Trainer, Assigned Public Defender, for appellee.
ORTH, C.J., delivered the opinion of the Court.
STATEMENT OF THE CASE
On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A 15 year sentence was imposed. The judgment was affirmed on direct appeal. DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md. App. 740, cert. denied, 269 Md. 757. He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a. DeLawder sought leave to appeal. Code, Art. 27, § 645-I; Maryland Rule BK46. We granted the application and ordered the case remanded for compliance with Rule BK45 b requiring that the order of the hearing court shall be accompanied by a short memorandum [214] which shall include the reasons for the action taken thereon. DeLawder v. Warden, 23 Md. App. 435.
One of the grounds presented in the post conviction proceeding as reason why the order should be reversed was that the court in the trial of the substantive offense had denied DeLawder his constitutional right to cross-examine the witnesses against him as that right was to be enjoyed in the light of Davis v. Alaska, 415 U.S. 308, decided 27 February 1974. On remand, the hearing court held that the right had been violated and that Davis was to be given full retroactive application. By order issued 14 January 1975 it vacated the judgment and ordered that DeLawder be given a new trial. The State applied for leave to appeal. We granted the application by our order of 25 February 1975 and directed that the case be transferred to our regular appeal docket. Briefs were duly filed and oral argument received.
ISSUES FOR DECISION
1) Whether DeLawder's right of cross-examination was violated under the rule of Davis v. Alaska, supra.2) If so, whether Davis has retroactive application
THE LAW
In affirming the judgment on direct appeal, we held that the trial court did not err in sustaining objections made to questions attempting to show that the prosecuting witness had sexual intercourse with other men on other occasions. The general rule is that because consent is not an issue in a carnal knowledge prosecution, evidence that the prosecutrix had prior intercourse with men other than the accused, or that her reputation for chastity was bad is immaterial when offered as an excuse or justification, and so is inadmissible for that reason. Annot., 140 A.L.R. 364, 365; 1 Wharton's Criminal Evidence § 237 at 522 (13th ed. 1972). This rule was stated by the Court of Appeals in Rau v. State, 133 Md. 613, 615:
"The prosecutrix under the law by reason of her [215] age was not capable of consenting to sexual intercourse with the traverser and the question of her prior intercourse with another or her chastity was not a material issue and could not reflect upon his guilt or innocence, under the fourth count of the indictment [carnal knowledge]."
There is an exception to the general rule when it appears that the hymen of the prosecutrix has been ruptured or injured and it is alleged that the trauma was caused by the defendant. To rebut such proof the defendant may introduce evidence of acts of prior unchastity of the prosecutrix as tending to show that another was responsible for the trauma. 140 A.L.R. at 367. Compare Duvall v. State, 151 Md. 38, 42. The only acts of intercourse, however, which may be shown are those occurring about the time of the act which, in the nature of things, could have caused the condition. Wharton, supra, at 525.
The trial judge correctly applied these rules. He restricted the introduction of evidence concerning the unchastity of the prosecutrix on the ground that consent is not an element of the crime of carnal knowledge. He permitted testimony concerning her sexual activity "within a day or two" of the alleged crime because when she was medically examined about 6 hours after the time the crime was alleged to have been committed, there was bruising and discoloration around the hymen or introitus of the vaginal canal. It was the opinion of the examining physician that the bruising occurred within two or three days prior to the examination. DeLawder, however, contends that in the light of Davis the trial court, by restricting cross-examination, violated his constitutional right to confront his accusers. Our holding on direct appeal did not necessarily finally litigate the contention as presented upon collateral attack. Code, Art. 27, § 645A (d) provides:
"For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any [216] decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposed upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence."
As Davis, was decided subsequent to our decision, we must determine whether it affects the validity of DeLawder's conviction.
The Confrontation Clause of the Sixth Amendment
In Davis, at 315, the Supreme Court of the United States reviewed the reach of the Confrontation Clause of the Sixth Amendment to the federal Constitution. "The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution `to be confronted with the witnesses against him.' This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400 (1965). Confrontation means more than being allowed to confront the witness physically. `Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.' Douglas v. Alabama, 380 U.S. 415, 418 (1965)." "Cross-examination", the Court observed, at 316, "is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness's perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness." A witness may be discredited by a general attack on his credibility by introducing evidence of a prior criminal [217] conviction of that witness. "By so doing the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." Id. A witness may also be discredited by a more particularized attack. This is done by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. "The partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970)." Id. The Supreme Court has recognized "that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496 (1959)." Id., at 316-317. The denial of effective cross-examination "`would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.'" Id., at 318, quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966) as quoted in Smith v. Illinois, 390 U.S. 129, 131 (1968).
We look to see how these rules were applied in Davis.
The Davis Ruling
Davis was convicted of burglary and grand larceny in a state court at a trial in which the court on motion of the prosecution issued a protective order prohibiting the questioning of Richard Green, a key prosecution witness,[1] concerning Green's adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he was to testify. The motion was [218] granted in reliance on a state rule and statute which preserved the confidentiality of juvenile adjudications of delinquency. The evidence against Davis was entirely circumstantial and the defense wanted to point out to the jury that Green was on probation for robbery, suggesting the possibility that he acted either out of fear or concern for his probationary status. The defense made clear that it did not intend to use Green's juvenile record to impeach his credibility generally, but only as necessary to examine him for any possible bias and prejudice. "Not only might Green have made a hasty and faulty identification of [Davis] to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identification under fear of possible parole revocation." 415 U.S. at 311. See 43 U. Cin. L. Rev. 647 (1974). The trial court rejected even this limited use of Green's adjudication, but defense counsel did his best to expose Green's state of mind at the time he discovered the safe. Green, however, made a flat denial to questions whether he was upset by the fact that the safe was found on his property, whether he felt the authorities might suspect him, and whether he felt uncomfortable about it. Asked, "Did you suspect for a moment that the police might somehow think you were involved in this?", he replied, "I thought they might ask a few questions is all." It was elicited that Green was questioned about the incident by the investigating officers. He was then asked, "Had you ever been questioned like that before by any law enforcement officers?" and answered, "No." The prosecution objected and the court sustained the objection. Davis, at 312-313. Thus "[w]hile counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Davis, at 318.
The Alaska Supreme Court refused to reach the issue of whether the State's policy of preserving the anonymity of a juvenile offender denied Davis his Sixth Amendment right of confrontation. It affirmed the conviction on the grounds [219] that the scope of cross-examination allowed was adequate to develop the issue of bias and convey it to the jury. Id., at 315; Davis v. State, 499 P.2d 1025, 1036. The Supreme Court did not accept this. It said, at 318:
"On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a `rehash' of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness."
It held that disallowance of the defense's attempt to show bias of the prosecution's crucial witness by cross-examination concerning the witness' juvenile record violated Davis's Sixth and Fourteenth Amendment rights. Id.[2] It is clear that Davis turned on the correctness of the [220] Alaska court's evaluation of the "adequacy" of the scope of the cross-examination permitted. The Supreme Court reversed because it disagreed with the Alaska court's interpretation of the Confrontation Clause. Id., at 315. The view of the Supreme Court was that the matter suppressed was necessary in the case in order "to show the existence of possible bias and prejudice...." Id., at 317.[3]
THE INSTANT CASE
DeLawder's counsel made clear from the onset of the case that the defense strategy would be to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives in alleging that DeLawder carnally knew her in the early morning of 20 January 1972. This strategy would be pursued by the tactic of proving that at the time of the alleged incident, she thought she was pregnant by someone else and claimed that DeLawder raped her because she was afraid to tell her mother she voluntarily had sexual intercourse with others.[4] To show that she thought she was pregnant at the time of the alleged encounter with DeLawder, it would be necessary to establish that she had engaged in prior acts of sexual intercourse. The [221] proposed strategy was first disclosed when the State offered a motion in limine immediately before the start of the retrial. The motion was that the defense refrain from any questions or any remarks in opening or closing statement as to the reputation of the prosecutrix for chastity. Defense counsel objected to the grant of the motion:
"In regard to the first motion made by the State, we proffer that there are two witnesses, one which will testify that he had a conversation with this young lady two days after this incident allegedly occurred, at which time she told him she was pregnant by another man.Her mother, there will be testimony to the effect that her mother is very strict, not the type of person that a girl could come home and tell her mother she was pregnant.We have testimony from the girl's best friend that this girl, [the prosecutrix], told the best friend that she was pregnant, and that either Stanley Hicks or Darrell McDonald was the father.This supposedly occurred prior to the time this alleged rape took place."
The strategy was iterated and reiterated during vain attempts to pursue the point on cross-examination of the prosecutrix. On appeal, DeLawder puts it this way:
"The Appellee [DeLawder] readily admits that in the case of statutory rape, consent is not an element of the crime and, therefore, the question of the chastity of the prosecutrix is entirely immaterial and evidence related thereto should be excluded. Rau v. State, 133 Md. 613 (1919). However, at the trial of this case Appellee was not offering evidence to show consent or chastity of the prosecutrix, but was attempting to adduce evidence directly relating to the prosecutrix' credibility and the veracity of her testimony. The attempts by defense counsel to cross-examine the prosecutrix in [222] this case and his proffers to the Court throughout the course of the trial indicate that evidence of her prior conduct was not introduced `to show prior acts of sexual intercourse ... (but) to show motive on the part of (the prosecutrix), and that she lies about these things,' ... and that she had made prior accusations of statutory rape against other individuals.... While this type of evidence necessarily involves the prior sexual conduct and chastity of the prosecutrix, its purpose goes beyond this issue to the issue of the credibility of the witness, an issue that must be tested in order to insure a full and fair trial to the accused."
On cross-examination DeLawder's counsel attempted to question the prosecutrix concerning her sexual activities prior to the incident in order to impeach her credibility. He asked her if she had talked to a Tommy Soper[5] after the alleged crime:
"Q. Do you recall having a conversation two days after this incident took place with a boy named Tommy Soper?A. No, sir.Q. You do not recall having such a conversation?A. No, sir.Q. Do you recall that Kenny Jones and Tommy Soper came to your house at that time?A. Yes, sir; I do.Q. And you did not have a conversation with Tommy Soper?A. No, sir.Q. You never said a word to him?A. No."
[223] The cross-examination continued:
"Q. At the time of this alleged rape, I am talking about before the alleged rape took place, did you think you were pregnant?A. No, sir.Q. Do you know a girl named Pamela Henning?[[6]]A. Yes, sir.Q. As a matter of fact, she is your best friend, isn't she?A. Yes, sir.Q. You do not recall telling her something different?MR. MITCHELL [Assistant State's Attorney]: I object now, Your Honor. Pamela testified at the trial.MR. SMALLWOOD [Defense Counsel]: No, sir.THE COURT: Objection be sustained."
Precluded from questioning the prosecutrix concerning her conversations with Pamela Henning, defense counsel iterated his reasons for pursuing this line of questioning:
"Your Honor, in order to properly defend this man, I have got to show a motive for this girl lying about it.I proffer that her mother is very strict and has on occasion beat this girl until she was black and blue with a board, never allowed her to date....And this girl was scared to death of her mother and could not go home and tell her mother that she was pregnant; but if she could go home and tell her mother, `I've been raped; now, I am pregnant,' she could then get off the hook.I state, Your Honor, that it is perfectly proper for me to bring this fact out to show this girl's motive [224] for lying, especially when two witnesses who will testify that this girl said she was pregnant around that time by either Stanley Hicks or Darrell Anderson; and she also phoned another boy by the name of Russell Alder and accused him, or his cousin, of making her pregnant.I state, Your Honor, that that is sufficient to give this girl a motive for lying about a man raping her.Not only that, but at the time she went to the hospital, before she went to the hospital, she lied to the police officer and told him that she had intercourse with a boy named Michael Ryan."
The Court refused to accept this argument:
"You know all of this is not going to be permitted at this trial. This is a carnal knowledge of a girl under fourteen.... [[7]]You are talking about all kinds of conjecture which I think really is going beyond the proper evidence in this case."
Later counsel was denied the opportunity to cross-examine the prosecutrix about her conversation with Russell Alder. The court ruled that such evidence "would be before the fact, several weeks." The trial court also restricted counsel when inquiring into the prosecutrix's conversations with Officer Householder:[8]
"Q. What did you tell Officer Householder?A. Just what I told you all.Q. You did not tell him anything additional to what you told us?[225]A. No.Q. Did you tell him anything about Michael Ryan?MR. MITCHELL: I object, Your Honor.THE COURT: You may answer that yes or no. Do not say anything more.THE WITNESS: Yes, I did.BY MR. SMALLWOOD:Q. What did you tell him?MR. MITCHELL: I object,THE COURT: Objection be sustained:
When counsel attempted to cross-examine the prosecutrix concerning her relationship to her mother, he was again thwarted by the court:
"Q. Are you afraid of your mother?MR. MITCHELL: I object.THE COURT: Sustained.MR. SMALLWOOD: May we approach the bench, Your Honor?(Whereupon, bench conference as follows:)MR. SMALLWOOD: Your Honor, I would like to establish the relationship between this girl and her mother as to her fear of telling her mother that she thought she was pregnant at that time.I think that is very relevant to this case as establishing her motive for lying about this alleged rape.I mean the jury is not going to believe a man's story if they cannot see some motive for the girl lying. If she is scared to death of her mother, she is not about to walk through the door and say, `Ma, I'm pregnant.'MR. MITCHELL: The rules of evidence do not conform to counsel's theory in the case.THE COURT: All right, you have your statement in the record. I do not think that that — well, I think the exception is well taken.[226] Whether she was scared of her mother per se is not relevant in this case at this time."
Later in the trial, during the direct examination of the prosecutrix, called by DeLawder to testify in his behalf after the court refused to allow the defense to call her as a hostile witness, the court, citing Rau v. State, supra, to the effect that consent is no element of the crime of statutory rape, said: "In my judgment, what you are trying to do now under the guise of impeachment, is trying to bring in chastity, the lack of chastity. None of this is relevant here. Her statements about relations on New Year's Eve, whether they were by one boy or another boy, concerning chastity, are in my judgment, or should not be gone into any further here, because no criminal charges are brought against either one of these people; and to put it very bluntly, what you are wishing to do now is to indirectly do what you cannot do directly, and that is, bring the prior chastity into this picture, and so to sum it all up, what you wish to do is impeach her chastity or [reputation], which you mentioned or other extraneous matters; and she has already been on the stand, and you have had ample opportunity."
DECISION
The Applicability of Davis
Defense counsel did his best to show the existence of possible bias, prejudice or ulterior motive of the prosecutrix, causing her to assert that DeLawder carnally knew her. We cannot speculate, more than the Court could in Davis, as to whether the jury, as the sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to present it fully. But we do conclude, as the Court concluded in Davis, that the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment as to the weight to place on the prosecutrix's testimony which provided "a crucial link in the proof ... of [the accused's] act." Douglas v. Alabama, supra, at 419. The accuracy and [227] truthfulness of the prosecutrix's testimony, perhaps even more so than was the case with the witness in Davis, were key elements in the State's case against DeLawder. In fact, its case depended entirely on her veracity. The claim of bias, prejudice or ulterior motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the prosecutrix's possible fear of her mother. The defense was unable to make a record from which to argue to the jury why the prosecutrix might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.[9] It seems clear to us, in the light of Davis, that defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. By being prevented from so doing DeLawder was denied the right of effective cross-examination, a constitutional error of the first magnitude which no amount of showing of want of prejudice would cure.
Our decision does not portend a general departure from the rule enunciated in Rau v. State, supra.[10] It is only that [228] in the setting here, the right of confrontation is paramount to a rule of evidence.[11] We conclude, as the Court concluded in Davis, at 320, that the desirability that the prosecutrix fulfill her public duty to testify free from embarrassment and with her reputation unblemished must fall before the right of an accused to seek out the truth in the process of defending himself.
The Retroactivity of Davis
It is manifest from our application of the Davis dictates to the case at hand that we believe that Davis has retroactive effect. Foremost among the three criteria guiding resolution of the question of the retroactive effect of a holding of the Supreme Court of the United States is the purpose to be served by the new rule. Desist v. United States, 394 U.S. 244, 249. When the purpose involves the reliability of the fact determining process of guilt or innocence, the Supreme Court has accorded full retroactivity to its decision without regard to the other two criteria. State v. Ingel, 18 Md. App. 514, 522. The right of confrontation guaranteed by the Sixth Amendment has been held to be retroactive. Barber v. Page, 390 U.S. 719; Berger v. California, 393 U.S. 314. We so consider the Davis dictates.
We note that DeLawder did not seek leave to appeal from the denial of relief with regard to the allegation of incompetency of trial counsel and the allegation of the use of perjured testimony by the State. Neither of these allegations are properly before us, although DeLawder presents the question of his trial counsel's competence in his brief.
Order of 14 January 1975 of the Circuit Court for Montgomery County affirmed; costs to be paid by Montgomery County.
[1] In the early morning hours of 16 February 1970 a safe was stolen from the Polar Bar in Anchorage, Alaska. Green, then 16 years of age, discovered the safe the next day near his home. He told investigating officers that he had seen and spoken with two black men near where the safe had been found. He identified Davis as one of the men from photographs and in a lineup. Davis v. Alaska, supra, at 309-310:
[2] The Court did not challenge the State's interest as a matter of its own policy in the administration of criminal; justice to seek to preserve the anonymity of a juvenile offender.
"Here, however, petitioner sought to introduce evidence of Green's probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State's case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner's right to probe into the influence of possible bias in the testimony of a crucial identification witness....
The State's policy interest in protecting the confidentiality of a juvenile offender's record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness." Id., at 319-320.
[3] Mr. Justice Stewart wrote a concurring opinion to emphasize that "the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions." Id., at 321.
Mr. Justice White, joined by Mr. Justice Rehnquist, wrote a dissenting opinion in which he saw no constitutional principle at stake. "This is nothing more than a typical instance of a trial court exercising its discretion to control or limit cross-examination, followed by a typical decision of a state appellate court refusing to disturb the judgment of the trial court and itself concluding that limiting cross-examination had done no substantial harm to the defense." He objected to the Court "second-guessing the state courts...." Id., at 321.
[4] DeLawder was indicated on 9 February 1972 on charges of rape, assault with intent to rape, carnal knowledge, attempted carnal knowledge, assault and battery, and assault. He went to trial before a jury on 8 May 1972. Before the jury retired to deliberate its verdict the State entered a nolle prosequi to all counts of the indictment except that charging rape and that charging carnal knowledge. The jury were unable to agree on a verdict and on 12 May 1972 the court declared a mistrial. On 19 May 1972 the State nol prossed the rape count and retrial commenced on 27 June 1972 on the charge of carnal knowledge.
[5] During the argument on the motion in limine defense counsel proffered that a witness would testify that the prosecutrix had told him two days after the alleged rape that she was pregnant by another. It is patent that this witness was Soper.
[6] It is apparent that Pamela Henning was the other witness whose testimony was proffered during the argument of the motion in limine.
[7] The court continued: "and she has already said that she was afraid she might have been pregnant. She answered that question, and do not pursue it any more." The prosecutrix in fact denied she thought she was pregnant at the time of the alleged coitus with DeLawder. The court later recognized that the prosecutrix had indicated only that she was afraid she was pregnant as a result of the alleged rape.
[8] Householder was a Montgomery County deputy sheriff who had conducted an investigation into the allegations of the prosecutrix.
[9] In Chelton v. State, 45 Md. 564 (1877), the Court of Appeals said, at 570:
"The rule is well settled that while it is competent to prove that a witness for the State has a bias or ill-will against a prisoner, so that the jury may know what weight is to be given to his testimony, it is altogether inadmissible to go into any inquiry as to the causes or circumstances which have created such bias. This as has been correctly argued by the Attorney General would introduce into the trial innumerable side issues, not pertinent or proper for the consideration of the jury."
It seems that Chelton has not been cited in a subsequent opinion of the Court, and the rule of law it enunciated does not appear to have been specifically affirmed or further applied. See Beasley v. State, 271 Md. 521 (1974); DeLilly v. State, 11 Md. App. 676, 681 (1971).
[10] We point out that the Court in Davis, quoted, at 320, Alford v. United States, 282 U.S. 687, 694:
"[N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him."
[11] Our interpretation of Davis is not to be construed as an abrogation of the rule that a witness can be impeached by extrinsic evidence only with regard to material facts and not with respect to facts that are collateral, irrelevant or immaterial to issues of the case. Smith v. State, 273 Md. 152. Matters which affect the bias, prejudice and ulterior motives of a witness are material and not collateral. McCormick on Evidence, § 36 (2d ed. 1972).
7.2.6.5.6.3 Government of Virgin Islands v. Scuito 7.2.6.5.6.3 Government of Virgin Islands v. Scuito
GOVERNMENT OF the VIRGIN ISLANDS
v.
Louis SCUITO, Appellant.
United States Court of Appeals, Third Circuit.
Larry J. Ritchie, Washington, D.C. (argued), John E. Stout, Grunert, Stout, Hymes, Mayer & Smock, Charlotte Amalie, St. Thomas, V.I., for appellant.
David B. Smith (argued), Dept. of Justice, Washington, D.C., Ishmael A. Meyers, U.S. Atty., Terry M. Halpern, Asst. U.S. Atty., Charlotte Amalie, St. Thomas, V.I., for appellee.
Before ADAMS, MARIS and SLOVITER, Circuit Judges.
[870]
OPINION OF THE COURT
ADAMS, Circuit Judge.
In this appeal from a conviction for forcible rape,[1] the defendant Louis Scuito asserts two errors: (1) The trial judge erred in not barring a new trial on double jeopardy grounds after a mistrial was declared on Scuito's motion because of certain prejudicial questions asked by the prosecutor. (2) The trial judge abused or failed to exercise his discretion in denying the defendant's motion for a psychiatric examination of the complainant. Finding neither ground persuasive, we will affirm the conviction.
I.
The complainant worked as a waitress at the Drunken Shrimp restaurant, where the defendant was a frequent patron. When the complainant worked late on the night of July 9, 1978, the owner of the restaurant arranged for Scuito to give the complainant a ride to her apartment. It is undisputed that Scuito took a detour down a beach road, where the two had sexual intercourse, after which he took the complainant home. The crucial issue at trial was solely whether she consented.
According to the complainant, Scuito turned down the beach road to relieve himself, and then continued to a turnaround, stopped the jeep, and began kissing her. She expressed lack of interest, but the defendant then told her he had a knife and would throw her into the ocean if she did not cooperate. She testified that she did not actually see the knife in the dark, but felt "something metal" cut into her neck, after which she ceased resistance and attempted to calm him and avoid harm by cooperating. At trial there was medical and other testimony of a cut on the side of the complainant's neck where she said the knife was held. After taking off her clothes, the defendant raped and sodomized her. During the course of the assault she prayed and recited her "mantra."[2] Upon being dropped off at home, she kissed the defendant on the forehead because, she testified, "I was praying for him" and "it was just kind of like an end to the prayer."
Scuito testified that he casually knew the complainant and her sister and had previously driven them home from the restaurant. He said that on the night of July 9, when he gave the complainant a ride to her apartment, she seemed "a little spaced, not all there." While riding home, she offered him marijuana and he drove off the main road to smoke it with her. He later "came on to her," he said. Although initially she protested, he eventually changed her mind without using or threatening any physical force.
Prior to the first trial there had been a discussion between counsel and the court regarding the admissibility of evidence that Scuito previously had raped another young woman after threatening to shoot her with a flare gun. Defense counsel contended that such evidence would be relevant only if the defendant put his character in issue, which he did not at that time intend to do. The prosecutor agreed not to mention the other alleged rape in the opening statement to the jury, but reserved the right to seek admission of the evidence under Fed.R. Evid. 404(b),[3] if the testimony that was adduced created the opportunity. The trial judge asserted that the evidence could be [871] admissible only if he became satisfied that it was relevant and met the Fed.R.Evid. 403 standard of probative value outweighing prejudice to the defendant. "For that purpose," he said, "I will hear testimony to be offered outside of the presence of the jury and make that determination."
The defense called two witnesses at the first trial: the defendant himself and a next-door neighbor who was defendant's former roommate. The latter answered "no" to defense counsel's question whether he knew anything about the defendant that would indicate any abnormal sexual behavior on his part. Prior to cross-examining the former roommate, the prosecutor asked for "a ruling with respect to my specific question," to which the court replied, "Well, ask the question, I don't give any rulings in advance." The prosecutor thereafter asked the witness whether he would consider rape to be abnormal sexual behavior. The next question, "Would your consider a man that took a flare gun—," was interrupted by defense counsel's objection that the prosecutor "was getting into the same line we were discussing previously."
Asked if the question was a hypothetical one, "not related to the facts," the prosecutor replied: "It is not related to the facts of this case." The objection was overruled and the prosecutor asked: "Would you consider a man taking a flare gun, holding it at a woman and telling her he will disfigure her if she didn't allow him to have intercourse with her, would you consider that to be abnormal, aberrant sexual behavior?" After an affirmative reply, the prosecutor asked, "If you had heard—," only to be cut off by the court disallowing the question and indicating that it "goes to something that has not been put in issue." Shortly thereafter, when the defense rested and the jury was excused, defense counsel moved for a mistrial on the basis of the question about the flare gun.
The trial judge granted a mistrial, and said he based his decision on three incidents in the trial. First, when the owner of the Drunken Shrimp testified, she made two spontaneous outbursts indicating her belief that Scuito was guilty.[4] Second, the complainant had put the defendant's character in issue by suggesting he had had homosexual relationships. Third was the reference to the flare gun.
In motions preceding the second trial, the defendant asked that the indictment be dismissed on double jeopardy grounds, or, if it were not, for an order requiring a psychiatric examination of the complainant "and further providing that the results of [the] examination be made available to the defense for possible use at trial." Both motions were denied and, after a trial with essentially the same evidence as in the first, but without the prejudicial incidents noted by the judge, Scuito was convicted.
II.
The double jeopardy clause of the Fifth Amendment protects a defendant in a criminal proceeding against repeated prosecutions for the same offense as well as against multiple punishments. Underlying the safeguard is the belief that the state should not be allowed to make repeated attempts to convict an individual. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The reach of the clause's bar to successive prosecutions may extend to terminations of trials by mistrials as well as by acquittals. Because the accused has a "valued right . . to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), a mistrial on the prosecution's motion or by the court on its own initiative should be declared only when there is "manifest necessity" for it. United States v. Perez, 9 Wheat. 579, 580, 22 U.S. 256, 256, 6 L.Ed. 165 (1824).
[872] Different considerations have been held to apply to mistrials declared on a defendant's motion as opposed to those declared without the defendant's assent. Whereas the "manifest necessity" standard applies to the latter, with the former a retrial is barred only when the circumstances causing the mistrial are "`attributable to prosecutorial or judicial overreaching.'" United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (quoting United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971)). Defendants are to be protected against "`bad faith' conduct by judge or prosecutor," as when government actions are "intended to provoke mistrial requests." Id., 424 U.S. at 611, 96 S.Ct. at 1081. Elsewhere the Supreme Court has stated: "Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was `motivated by bad faith or undertaken to harass or prejudice,' . . would there be any barrier to retrial." Lee v. United States, 432 U.S. 23, 32-33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977) (quoting Downum, 424 U.S. at 611, 96 S.Ct. at 1081).
Scuito argues that the trial judge erred in denying his motion to dismiss the indictment by applying the wrong legal standard to his double jeopardy claim. He contends that the court required a showing of "substantial prosecutorial misconduct," whereas "gross negligence" ought to be sufficient.[5] On the other hand, the Government urges us to restrict the double jeopardy bar to mistrials declared because of prosecutorial recklessness.[6]
The practical difference between "gross negligence" and "recklessness" is not always clear,[7] although both connote a more extreme departure from a reasonable standard of conduct than does "mere negligence," which is clearly insufficient to preclude reprosecution.[8]
[873] Assuming that either gross negligence or recklessness might constitute prosecutorial overreaching that would trigger the double jeopardy bar to retrial,[9] and assuming that a significantly lower level of egregiousness could be termed gross negligence but not recklessness,[10] we conclude that a retrial was nevertheless permissible in this case. The first two reasons given by the judge in declaring a mistrial concerned events not attributable to prosecutorial misconduct. The improper utterances of the restaurant owner were spontaneous and in no way elicited by the prosecutor. It is somewhat unclear whether the prosecution or defense first put the defendant's character in issue,[11] but since defense counsel did not object we find it somewhat incongruous for him now to claim that any error in questioning as to character constituted gross negligence.
The only significant question, therefore, is how to describe the prosecutor's introduction of questions about the flare gun incident. The most accurate characterization, we believe, and the one seemingly put forth by the trial judge, is that the improper questioning was the result of a misunderstanding.[12]
It had been decided at pretrial discussions that the alleged other rape would not be [874] mentioned in the prosecutor's opening statement and that the prosecutor would request a hearing out of the presence of the jury if subsequent events led the government to believe the evidence was admissible. The prosecutor did not in fact mention the incident in her opening statement and believed she was complying with the pretrial decision when she asked for a sidebar conference. Thinking more routine matters were at stake, the judge instructed her to continue questioning and said that he would wait for an objection before making a ruling.
The trial judge ascribed no bad motives to the prosecutor's conduct and indeed, concluded that, at most, "misjudgment" rather than "misconduct" was involved.[13] Thus, whether the standard be gross negligence, recklessness, or misconduct of a more intentional nature, any prosecutorial error in conducting the first trial did not trigger the Fifth Amendment's bar to double jeopardy.
III.
As an alternative to his double jeopardy claim, Scuito moved before the second trial for a psychiatric examination of the complainant. In a supporting affidavit, his attorney made the following specific representations:
[1] I have been informed by any number of persons in the community that the said complainant appears to be often, if not almost constantly, in a "spaced out" or trancelike state; I have personally observed this; I have been further informed by persons in the community that the said complainant is addicted to, and does continually use, controlled substances, and that she is frequently in altered states of consciousness therefrom; and I have further observed and been told of the said complainant's habit of dressing and being seen publically in seethrough top garments which seem indicative of socially aberrant behavior;[2] Further, my observation of the said complainant at the first trial herein showed, in my opinion, a rather strange and mysterious countenance on her part, and her testimony appeared strange, not only from the standpoint of her account of not reporting the alleged crimes until the next day, but particularly from her admitted interest and devotion to a certain book, written by a guru devotee of Timothy Leary which contains passages of religious-like worship of LSD and other mind-altering drugs; [and][3] That the foregoing observations are highly indicative of a personality which fantasizes to extremes and which indulges in and seeks altered states of consciousness[.]
The trial judge denied the motion because to require a psychiatric examination "would violate the spirit of [Fed.R.Evid.] 412." Scuito contends that any reliance on Rule 412 is legal error and that, by relying on the rule, the judge either abused his discretion or failed properly to exercise his discretion. It is apparent, though the defendant does not so state, that different consequences would flow from these alternative conclusions: if the judge abused his discretion to the prejudice of defendant, a new trial should be ordered; if he failed to exercise his discretion out of a mistaken belief that Rule 412 controlled the issue, we should remand so that he may consider the matter anew. We conclude that the court exercised its discretion and that it was not abused.
Defendant does not press the extreme position, espoused by Wigmore, that a psychiatric examination of a complainant should be required in all sexual offense prosecutions.[14] Rather, defendant agrees [875] with the Government that the decision to order an examination is "entrusted to the sound discretion of the trial judge in light of the particular facts." United States v. Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1972) (Bazelon, C. J.); see Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (Cal.1966). But cf. United States v. Dildy, 39 F.R.D. 340, 342 (D.D.C. 1966) (courts have no power absent a statute to compel complainant to submit to psychiatric examination).
This discretion is not, of course, unbounded, for there are countervailing considerations weighing heavily against ordering a psychiatric examination of a complainant. As set out by the Court of Appeals for the District of Columbia Circuit, they are that
a psychiatric examination may seriously impinge on a witness' right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all.
United States v. Benn, 476 F.2d at 1131. Benn, it should be noted, held that the trial judge did not abuse his discretion in declining to order the examination of an admittedly mentally defective complainant.[15]
Fed.R.Evid. 412 is specifically addressed to evidence of a rape victim's prior sexual conduct,[16] whereas defendant's motion was not an attempt to introduce such evidence, but an effort to obtain an expert opinion regarding the complainant's general ability to perceive reality and separate fact from fantasy. Because the rule does not directly apply to his motion, the defendant argues that the court either abused or did not exercise its discretion in denying the motion. The judge's ruling, however, was not based on the letter but on the spirit of Rule 412. The principal purpose of that rule is, as its legislative history demonstrates,[17] quite similar to the countervailing considerations quoted above: "to protect rape victims [876] from the degrading and embarrassing disclosure of intimate details about their private lives."[18] The rationale, according to one commentator, "is to prevent the victim, rather than the defendant, from being put on trial."[19]
We hold that in relying on the spirit of Rule 412 the trial judge exercised discretion, and that nothing alleged in defense counsel's affidavit indicates that he abused his discretion. To the extent admissible, and we express no opinion on that matter, evidence that the complainant was thought by members of the community to indulge in drugs leading to "altered states of consciousness" or to dress in a manner "indicative of socially aberrant behavior" could be introduced by direct rather than expert testimony. If, however, such matters are not relevant or otherwise admissible, there is no justification for letting them into the trial by allowing an expert to give his opinion regarding them. As to defense counsel's observations of the complainant at the first trial, we note that the trial judge as well had an opportunity to observe whether her manner or testimony was sufficiently indicative of mental disturbance to justify a psychiatric examination.
III.
The judgment of the trial court will be affirmed.
[1] The defendant was convicted under V.I. Code Ann., tit. 14, § 1701(3).
[2] A mantra has been defined as ["a] sound aid used while meditating. Each meditator has his own personal mantra which is never to be revealed to any other person." Malnak v. Yogi, 592 F.2d 197, 198 (3d Cir. 1979). When asked on cross-examination what a "mantra" is, the complainant stated:
It's something that you do to put yourself (sic) rather than worrying about all the other things that are going on outside of your own self you try to center your consciousness and like bring it to a good state of mind.
[3] That rule states:
1. Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[4] At one point the witness, obviously distraught, had blurted out, "Louie, why did you do it." Later she said, "I have known Louie for one year, I can't believe [he] would do that." Both times, the court admonished her not to volunteer such comments and instructed the jury to disregard them.
[5] The gross negligence standard for precluding retrial has been adopted by two courts of appeals. See United States v. Crouch, 566 F.2d 1311, 1318 n. 9 (5th Cir. 1978) ("We have held . . . that prosecutorial overreaching includes gross negligence."); United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976) (same); United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); United States v. Martin, 561 F.2d 135, 139-40 (8th Cir. 1977).
[6] The standard the Government would have us adopt is stated thus: "[W]here a prosecutor engages in intentional misconduct which he or she knows has the potential for producing a mistrial and the court determines that the prosecutor was either indifferent to such an outcome or had reason to seek it, the Double Jeopardy Clause bars a retrial." Brief for Appellee at 20; see id. at 22 (retrial should not be barred unless there is good reason to believe that the court or prosecutor was "indifferent" to possibility of mistrial).
[7] Dean Prosser describes gross negligence as follows:
As it originally appeared, this was very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring willful misconduct, or recklessness, or such utter lack of all care as will be evidence of either—sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that "gross negligence" falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences; and that it is, in other words, merely an extreme departure from the ordinary standard of care.
W. Prosser, Handbook of the Law of Torts § 34, at 183-84 (4th ed. 1971) (footnotes omitted). The Model Penal Code distinguishes between acting recklessly and acting negligently according to whether a person "consciously disregarded" or simply "should be aware of" a substantial and unjustifiable risk. Model Penal Code § 2.02, reprinted in 10 Uniform Laws Ann. at 465. No definition of gross negligence appears.
[8] United States v. DiSilvio, 520 F.2d 247, 250 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); see United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1970) (dictum). In DiSilvio, we suggested that prosecutorial misconduct must be "intentional," and not simply negligent, regardless of the level of the negligence, to bar retrial. See 520 F.2d at 250.
[9] It is unclear why the Government conceded that recklessness was sufficient to bar reprosecution, rather than arguing from the Supreme Court cases that intentional, bad faith misconduct was required. In any event, we do not find it necessary in this case to choose among the proffered standards.
[10] Intention as to result is irrelevant to both concepts. See note 6 supra. Rather, the distinguishing characteristic, to the extent one may be found, seems to be whether or not the indifference to a prescribed standard of conduct was conscious or intentional. See id.
[11] In a colloquy on the mistrial motion between defense counsel and the court, the trial judge seemed to indicate that defense counsel, Mr. Stout, first put the defendant's character at issue:
MR. STOUT: I was not the one that put this aspect of character in issue anyway. It was the questioning as I recall of Mrs. Halpern of Mr. Scuito about any homosexual relationship, about the possibility of it.
THE COURT: You started [it] in a sense [when] you asked him did he live with anyone and he said yes and you asked him male or female.
MR. STOUT: But that wasn't to show anything about homosexuality, that was to show that he was accustomed to living with a lady.
THE COURT: Exactly, which is the negative of saying he is not [sic] a homosexual.
MR. STOUT: Not for that purpose at all. It was strictly for the purpose [of showing] that he is not like some little old demented men walking around and doesn't have any source of sexual intercourse and I think it is clear that this was the reason why that evidence was put in.
On the other hand, in giving his oral decision regarding the mistrial motion, the judge stated that the complainant was "the one that put this defendant's character in issue, not the defendant. She is the one as I recall the testimony who first suggested that there was some improper relationship between the defendant and [another man] whom she described as `gay.'"
[12] The characterization as a misunderstanding is apparent in the following explanation from the bench:
Then came the question about the flare gun. It is true that counsel had asked to come to sidebar about a question and it is true that I declined to have counsel come to sidebar. I declined that several times when Mr. Stout wanted to come to sidebar also and I do that because in nine cases out of ten the sidebar conference is a waste of time.
I see my function as sitting as a Judge and not as a professor of law and nine times out of ten it is to ask the Court a question that counsel should have researched and informed himself or herself of the answer before coming to court. That flare gun question did not need a sidebar conference as I see it because I had previously ruled that before we went into any aspect, and I ruled this before the trial began, before we went into any aspect of this extrinsic wrongful act of this defendant, I would hold a hearing outside of the presence of the jury and I would hear the testimony and I will decide its relevancy and I will decide the possible prejudice before the jury heard anything about it. And if that was all counsel desired there was no need to ask for a sidebar conference. The simple thing was to say I am ready for that hearing and it would have been accorded. But nobody asked for a hearing.
[13] In the opinion denying defendant's motion to dismiss the indictment before the second trial, the court stated:
The distinction must be made between misjudgment and misconduct. If anything the former may have been present in this case. Evidence as to the latter, if present, escaped the Court's notice. Counsel on both sides it appears, committed trial error.
[14] See 3A Wigmore on Evidence § 924a, at 737 (Chadbourne rev. 1970) ("No judge should let a sex offense charge go to the jury unless the female complainant's social history and mental makeup have been examined and testified to by a qualified physician.") (italics deleted). The Wigmore position does not seem to be accepted in any jurisdiction. See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 547 n. 11 (1980) (describing Wigmore's position as "untenable as a general rule").
[15] The trial judge in Benn declined to order a psychiatric examination, observing that corroborating evidence was present. See 476 F.2d at 1131. The Supreme Court of California has stated that a necessity authorizing the court to order the complainant to undergo such an examination "would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition on her veracity." Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (1966). In the case sub judice, a key element of the complainant's testimony was corroborated. She testified that the defendant held a knife to her throat, and the medical examiner reported a cut on the side of her throat where the weapon was held.
One scholar's examination of the problem led to the following recommendation:
In the face of compelling circumstances (such as lack of corroboration and reason to doubt the witness' story), a judge could properly decide to take [the] drastic tack [of ordering a psychiatric examination]. If such an interview—or some other reliable source—yields conclusions supportive of the defense's theory [that the defendant is truly disturbed, distorts reality, or is a pathological liar], the accused should clearly be permitted to prove these highly relevant facts.
Berger, Man's Trial. Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 68-69 (1977) (footnotes omitted).
[16] The principle portion of the Rule qualified in subsections (b)-(d), states:
Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.
[17] There was no committee report on the Privacy Protection for Rape Victims Act of 1978, which added Rule 412 to the Federal Rules of Evidence. Comments on the floor of the House by Representatives Mann, Wiggins, and Holtzman are reported at 124 Cong.Rec. H 11944-45 (Oct. 10. 1978) and reprinted in 28 U.S.C.A. Fed.R.Evid. 412 note (Supp.1979). Comments in the Senate by Senators Thurmond, Bayh and Biden are reported at 124 Cong.Rec. S 18579-81 (Oct. 12, 1978).
[18] 124 Cong.Rec. H 11945 (Oct. 10, 1978) (Rep. Mann).
[19] 2 J. Weinstein & M. Berger, Weinstein's Evidence § 412[01], at 412-9 (1979). The rule may also be seen as part of a movement toward making rape prosecutions less special and treating the rape complainant like complainants in other crimes. See Berger, supra note 15, at 97.
7.2.6.5.6.4 McCullum v. Commonwealth of Kentucky 7.2.6.5.6.4 McCullum v. Commonwealth of Kentucky
Samuel Earl MCCULLUM Appellant
v.
COMMONWEALTH OF KENTUCKY Appellee
No. 2003–SC–001009–MR.
Supreme Court of Kentucky.
Feb. 23, 2006.
Bruce P. Hackett, Assistant Public Defender, Office of the Louisville Metro Public Defender, Louisville, KY, for Appellant.
Gregory D. Stumbo, Attorney General of Kentucky, Carlton S. Shier, Assistant Attorney General, Office of Criminal Appeals, Attorney General's Office, Frankfort, KY, for Appellee.
Honorable Lisabeth Hughes Abramson, Judge.
Appellant, Samuel Earl McCullum, was convicted in the Jefferson Circuit Court of first-degree Sodomy and first-degree Unlawful Imprisonment and Possession of a Firearm by a Convicted Felon. He was sentenced to thirty-five (35) years in prison and appeals to this Court as a matter of right. For the reasons set forth herein, we reverse Appellant's convictions and remand for a new trial consistent with this opinion.
FACTS
On Sunday, May 19, 2002, the Appellant encountered the victim, hereinafter referred to as "A.J.," at the bus stop on the comer of 18th and Broadway in Louisville. A.J., who testified she was waiting for a bus to take her home after spending the night with a friend, arrived at the bus stop at approximately 7:45 a.m. (though the bus was not scheduled to arrive until 8:30 a.m.). Appellant was traveling from his home in Jeffersonville, Indiana to his auto repair business on Dixie Highway. On the way he drove past A.J. Mistakenly believing he recognized her, he returned to the bus stop—then realized he was wrong. Nonetheless, he offered A.J. a ride, which she accepted. They drove to within two houses of her residence, when she indicated she did not want to get out of the car and asked Appellant to take her to the White Castle restaurant so she could get something to eat. Appellant complied, but told A.J. he needed to stop by his business, The Tool Box, for a few minutes to print some paperwork. A.J.'s and Appellant's versions of the story are much the same up to this point, but from here on, they diverge—with A.J.'s version detailing a day of forcible rape and sodomy—while Appellant's version reflects a day of consensual sex.
A.J. testified that once the pair arrived at The Tool Box and after she had finished eating her White Castle meal, she was raped three times by Appellant and held against her will, bound with chains and duct tape, for approximately seven and one-half hours and then forcibly sodomized after making a 911 call, but be fore rescue by the police. A.J. testified she was raped twice downstairs and then a third time in the upstairs portion of the building, all occurring by approximately 9:30 a.m.
She testified after the third rape and after returning downstairs, Appellant came in and out of the room she was in and, on one of these trips, bound her to a pole with duct tape and then left again. However, she was able to free herself. When Appellant returned the next time, he bound her again with the duct tape, using more and this time covering her mouth and wrapping it around her head. Nonetheless, she was once again able to free herself.
Because A.J. was able to escape again, Appellant wrapped a chain around her neck and waist and padlocked her to the pole. He then duct-taped her and put a rag in her mouth. She testified that once Appellant left again (this time for approximately one hour and forty-five minutes) she was again able to free herself and dialed 911 on her cellular telephone.[1] She testified that during the call, she heard the door open so she threw the phone down, without disconnecting the call, and sat back down by the pole.
A.J. testified Appellant then re-entered the room and stated that he knew she would get out and that he had gone home to take care of some business. According to A.J., Appellant again wanted to engage in sexual relations with her. She testified that he unzipped his pants, took out his penis and demanded she put it in her mouth; A.J. refused, the Appellant slapped her, told her not to say what she would not do, and grabbed her by the neck and forced his penis in her mouth. This, according to A.J., caused her to vomit. Appellant was displeased and told her to lie down and he proceeded to get on top of her. At that point, they heard loud knocking on the door. Appellant immediately jumped up and chained her back against the pole. The loud knocking turned out to be the police responding to the 911 call.
Appellant's version of the story is quite different. He testified that A.J. was eating her food and he was going over an ignition circuit diagram for a car he was working on. He stated that he first initiated sex with A.J. by placing his hands on her thighs and she reciprocated by doing the same to him. This led to sexual intercourse. Shortly thereafter, the pair engaged in sexual intercourse again in the same office. He stated that the third occasion of sexual intercourse occurred after A.J. expressed curiosity in an upstairs office and the pair went up to that office.
Appellant testified that A.J. smoked a cigar on numerous occasions during the day. At one point he observed her hollowing a cigar out and inquired of her what she was doing. A.J. replied she was "freaking it," or removing the filter and tobacco and replacing it with marijuana. He testified that the second time she smoked one of her cigars, he could smell marijuana.
Appellant testified that during one of their conversations, A.J. asked him if he had ever been handcuffed. He said he had experimented with an old girlfriend, but was "not into it." He advised A.J. to use silk scarves, etc., rather than metal handcuffs. The use of the duct tape, however, began when he introduced A.J. to what he called "the kissing game." According to Appellant, part of the game was to kiss the other person on different parts of the body without using the hands in any way. When A.J. kept using her hands, he wrapped them together with the tape. A.J. participated willingly and was able to pull her hands apart afterward. He testified that she asked him if she could do the same to him and he declined.
Appellant testified that A.J. had brought up the subject of money for sex on two occasions. First, she told him that she was supposed to be braiding her aunt's hair for which she would get $25.00. She asked Appellant if he would give her $25.00. Appellant told her he would and interpreted the request as payment for sex since she had waited until after the sex to make the request. Second, A.J. asked Appellant if he would take her to the Jefferson Mall. He responded that he could do that later. A.J. told him a long list of things that she wanted him to buy for her. Appellant testified that he had no intention of buying the things A.J. wanted. It was after this discussion that A.J. mentioned her upcoming graduation from high school. Appellant testified that he sensed something was wrong as A.J. had earlier told him she was 21 years old, and then, later told him she was 18 years old.
Appellant testified that once A.J. realized he was not going to take her to the mall and buy her the things she wanted, she threatened to call the police and say she was only seventeen and Appellant had raped her. Appellant testified that he panicked upon hearing the threat and led A.J. to a back room where he taped her to the pole; Appellant did not use the chains which were in the room. Appellant testified he taped A.J. to the pole to give her time to cool off.
At this point, Appellant testified that he received a phone call and traveled to his home in Jeffersonville, Indiana, returning to The Tool Box approximately 45 minutes later. When he returned, A.J. had freed herself from the duct tape. She asked him how long he had been gone and said that she had been calling for him. He testified that she was aggravated that he had left.
Appellant stated that the conversation again led to sex. A.J. was the aggressor this time, performing oral sex on Appellant. Appellant had no idea A.J. had already made a 911 call and given her general location.
During all this, Louisville Metro Police Officer Heather Boggs arrived on the scene, unsure at that time if the location was that of the 911 call, as A.J. had put the phone down before she could give her exact location. Officer Boggs believed she may have found the location, one fitting the description given by A.J. She noticed the gate to The Tool Box was open. This was unusual because it was Sunday and she had observed the business to be closed on the prior Sunday. Because the 911 call had not been disconnected, the dispatcher, Melissa Harley, could assist the officer in determining that she was at the correct location. Specifically, the officer inquired as to whether the dispatcher could hear her knocking and kicking on the shop doors and whether the dispatcher could hear the barking dogs inside the shop. The dispatcher confirmed she could hear the knocking as well as the barking dogs.
As Officer Boggs was attempting to gain entry into the shop, Officer Darren Utsey arrived. Both he and Officer Boggs continued kicking on doors until Officer Utsey managed to kick one open. At that time, Officer Boggs returned to her cruiser to retrieve a flashlight so the officers could make their way through the building. By the time the officers were just inside the door, they were met by the Appellant.
The officers informed Appellant they were responding to a 911 call and needed to confirm that everything was alright. Appellant told the officers that he and his girlfriend were fighting and it was probably a "crank call."
Appellant walked them through the building and told them of A.J.'s presence and that she wanted to "play this game." As they continued through the building, they heard a scream from another room leading the officers to immediately handcuff Appellant. By this point, a third officer, Detective Finch, had arrived on the scene. Officer Utsey remained with Appellant, while the other officers continued the search for the then unknown 911 caller.
Ultimately, the officers located A.J. in a small room in the back of the building. When they found her, she was crying and appeared "clearly in absolute distress." She was duct taped with a chain around her neck and padlocked to a pole. She was seated with her pants pulled down to her ankles. After her release from the chain and duct tape, A.J. informed the officers that the Appellant had a gun. The officers located a loaded handgun in the office near his briefcase.
Appellant admitted using duct tape on A.J., but denied binding her with the chains. He stated the chains were in the room with A.J. when he left to see what the police were doing but that he did not know how the chain got on her.
A.J. was transported to the hospital where she was seen by Dr. Lisa Reynolds. Dr. Reynolds collected "rape kit" evidence from A.J. to compare with evidence from the Appellant.[2]
As part of the investigation, Appellant's business computer was seized as evidence. This led to the discovery that on May 19, 2002, someone accessed a video clip entitled "Asian—Two Guys Rape Japanese Girl." Specifically, the video was accessed at 10:02 a.m. that day, after the three initial sexual encounters, but before the alleged implementation of the duct tape, chain and sodomy.
Also, a day planner/calendar or "diary" was retrieved from a purse belonging to A.J. The "diary" included numerous entries detailing A.J.'s sexual exploits and personal drug use. The diary noted the name and the date of the sexual encounters and in one instance detailed their financial nature.
A.J.'s cell phone records were obtained and revealed several incoming calls to the phone on May 19, 2002, beginning at 10:23 a.m. One of the calls was four minutes in duration and originated from A.J.'s friend Corey Brown, with whom she had spent the previous night.
At trial, Appellant moved to introduce the "diary" belonging to A.J. However, the trial court denied the defense's motion. The trial court, however, over Appellant's objection, admitted the testimony by Detective Kevin Lamkin as to the computer "rape" video, even though it had previously ruled it inadmissible. The trial court's ruling of admissibility was premised on the basis that Appellant had opened the door when he stated he only did work on his computer that day.
After deliberations, the jury returned not guilty verdicts on the three rape charges, but guilty on the Sodomy and Unlawful Imprisonment. In the sentencing phase, the jury returned verdicts recommending the maximum sentence of 20 years for Sodomy and 5 years for Unlawful Imprisonment.
Thereafter, Appellant also entered a plea of guilty to Possession of a Firearm by a Convicted Felon. His later motion to amend the guilty plea to an "Alford" plea was denied and Appellant was sentenced to the maximum 10 years on the firearm charge. All sentences were ordered to be served consecutively for a total of 35 years imprisonment. Appellant appeals his convictions.
He claims the trial court: (1) erred in instructing the jury; (2) erred in ruling Appellant could be impeached by a 19–year–old conviction from New Jersey; (3) erred by allowing the Commonwealth to present evidence of the "Asian Rape video"; (4) erred when it refused introduction of A.J.'s "diary" into evidence; and (5) erred when it refused to allow Appellant to withdraw his guilty plea and substitute an "Alford" plea. We will address each claim of error separately.
PROPOSED JURY INSTRUCTIONS
Appellant's first claim of error arises from the instructions submitted to the jury upon the close of evidence at trial. Appellant claims the trial court should have adopted his version because his proposed instructions more accurately reflected the proper allocation of the burden of proof. The trial judge rejected the tendered written instructions stating that she was going to use "what I always use in criminal cases," that is, instructions that are "right out of Cooper." Appellant claims that the rejected instructions were actually similar to the language contained in 1 Cooper, Kentucky Instructions to Juries (Criminal), §§ 2.10A–2.01D, pp. 67–68 (4th ed. Anderson 1999) (hereinafter Cooper). We disagree.
Appellant's proposed jury instructions were phrased to read, "You will find the Defendant, Samuel McCullum, not guilty of ... under this instruction unless and only if, you believe from the evidence beyond a reasonable doubt all of the following...." The instructions actually given provided that the jury "will find the Defendant, Samuel McCullum, guilty under this Instruction if and only if, you believe from the evidence beyond a reasonable doubt ..." Further, Instruction No. 1 specifically put the jury on notice that it could find the Defendant not guilty, or could find him guilty. Instruction No. 7 notified the jury of the presumption of innocence, and specifically stated:
"The law presumes a defendant to be not guilty of a crime and the indictment shall not be considered as evidence or as having any weight against him. You shall find the defendant not guilty unless you are satisfied from the evidence alone and beyond a reasonable doubt that he is guilty. If upon the whole case, you have a reasonable doubt that he is guilty, you shall find him not guilty."
In comparing the proposed instructions and those submitted to the jury, it is clear that the trial court provided the jury with proper instructions. Moreover, the "Cooper instructions" are worded just as those submitted by the trial judge. As such, we find no error in the trial court's jury instructions.
MCCULLUM'S 19–YEAR–OLD CONVICTION
As his second claim of error, Appellant argues the trial court abused its discretion by admitting evidence of his 1984 New Jersey conviction for second-degree sexual assault.
Appellant claims the prejudice resulting from his impeachment by a 19–year–old prior felony conviction was not substantially outweighed by any probative value the conviction may have possessed, even though the jury was not informed of the nature of the prior conviction.
KRE 609(b) provides:
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.
The balancing of the probative value of such evidence against the danger of undue prejudice is a task properly reserved for the sound discretion of the trial judge. Rake v. Commonwealth, 450 S.W.2d 527, 528 (Ky.1970). And such decisions of the trial court will not be overturned on appeal absent an abuse of that discretion. See Partin v. Commonwealth, 918 S.W.2d 219, 222 (Ky.1996).
Here, the trial judge held:
"Well, let me state this ruling differently. The probative value of the conviction substantially outweighs its prejudicial effect. The New Jersey case was essentially for the same type of conduct that's on trial here. And there was a conviction in that case. It's an adjudicated conviction. It's a jury verdict. Okay, here we are, once again, in front of a jury. And once again, Mr. McCullum's charged with the same type of conduct. And once again, presumably he denied it last time or he wouldn't have gone to trial. And it's being denied this time. I think it's highly probative. I think it's a prime example of what 609(b) was designed for, which was to state a ten-year guideline generally, but to give the trial judge discretion, if they think it has probative value. And in my exercise of discretion, I conclude that it does have probative value because his whole defense here is that this was all voluntary acts, as I understand it, on the part of the victim.And I think under those circumstances, when he's got an adjudicated determination that conduct occurred in the past and he was guilty of it, I don't see any reason why this jury shouldn't hear that he's been convicted of a felony. Now, once he acknowledges the felony conviction, under our rules, that's the end of it. They won't hear what it was for unless there's some manner in which he opens the door.
This "similarity rationale" is suggestive of a propensity analysis—he did something like this before, thus it is believable he would again—but the rationale is violative of the principles enunciated in KRE 404(b). "Courts have universally agreed for more than a century that evidence of other crimes, wrongs, or bad acts cannot be used to prove a defendant's propensity to commit crimes in order to show that he or she committed the charged crime." R. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], p. 124 (4th ed.2003).
Under KRE 609(a) and (b), the nature of the charge is not disclosed; nor was the jury otherwise advised here. Thus, the conviction wasn't admitted to show "propensity," but to show the Appellant wasn't a trustworthy or truthful person. In this regard, it seems the probative grounds weighed in the analysis must be relevant under KRE 609(b). Propensity's inadmissibility under KRE 404(b) suggests it should not be a relevant consideration under KRE 609(b). And as credibility appears to be the focus under KRE 609(b), there must be some intended correlation between the aged conviction submitted and the credibility of the witness.
When a trial court is charged with determining admissibility of an aged conviction, "[t]he balancing test that is normally used to determine admissibility (KRE 403) is turned on its head and trial judges are directed to tilt strongly in favor of excluding such convictions." Lawson, supra, § 2.25 [2], at 318.[3]
"The age of a conviction (its recentness or remoteness to the date of trial) has always been viewed as a factor bearing on its probative value, because the conviction is admitted as proof of the witness' character for truthfulness as of the time cf his or her testimony at trial."Id. at 317. Thus, this Court has upheld the admissibility of a 13–year–old conviction, but we have also held a 17–year–old conviction inadmissible...." Brown v. Commonwealth, 812 S.W.2d 502, 503 (Ky.1991) (held error to admit 22–year–old conviction), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883 (Ky.1997).
More recently, we have recognized that the impact of a witness' testimony is a factor in the probative balancing under KRE 609(b).Miller ex rel. Monticello Banking Co. v. Marymount Medical Center, 125 S.W.3d 274 (Ky.2004). Another factor in the probative balancing would be the nature of the prior conviction, e.g., " .... [a conviction for burglary is a crime of dishonesty that ....would be more probative of untruthfulness than a conviction of e.g., rape." Id. at 284—85 (trial court properly admitted evidence of Plaintiff's 10–plus–year–old burglary conviction) citing Commonwealth v. Richardson, 674 S.W.2d 515, (Ky.1984); a holding suggestive of a more stringent relevancy to an untruthfulness requirement under KRE 609(b).
In Cotton v. Commonwealth, 454 S.W.2d 698, 701 (Ky.1970), we held "that except for felonies involving dishonesty, fraud, false swearing or theft, the prejudice ....outweighed the impeachment value of such proof." Richardson at 518. Richardson overruled Cottonand is the basis for KRE 609(a), but it is not the basis for KRE 609(b).
We have always retained a belief that "[t]he device of admitting past felony convictions that are not actually related to the issue of credibility is unnecessary and unfair." Cotton at 701; cf. Miller at 284–85 ("a conviction for burglary is a crime of dishonesty"). This isKRE 609(b)—and the farther away the age of the conviction is from the 10 year floor of KRE 609(b)—the stronger our conviction.
Having considered the matter, we do not believe that the "similarity" in convictions—which is more akin to a "propensity analysis"—is a proper ground upon which to weigh the probative value of the aged conviction. It is just too much like the "lustful inclination" analysis disapproved under Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985), and does not reflect well on the age analysis of the older convictions. Cf. Brown, at 203. The more attenuated the conviction, the more relevant the balance tested probative issue should be to the central issue of untruthfulness. "As a conviction recedes into the past, the value on the issue of credibility wanes proportionately, while its prejudice as to guilt is less easily dispelled." Sommers v. Commonwealth, 226 Mo.App. 172, 43 S.W.2d 879, 887 (Ky.1992) (17—18 year-old felony held error).
Ultimately, when a trial court is faced with determining the admissibility of a state conviction (significantly older than the 10 year minimum floor for KRE 609(b)), it must evaluate the nature of the crime committed and determine if that crime is one that is indicative of untruthfulness. If the trial court finds the conviction to be for a crime that reflects on the untruthfulness of the witness, then the trial court must use its discretion to further determine if the probative value of that conviction on the issue of untruthfulness substantially outweighs its prejudicial effect. Obviously, some crimes will be more probative than others—depending on the nature of the crime. And other factors, such as the value of the witness' evidence to the case, should be considered. But the ultimate answer to most KRE 609(b) questions on significantly older cases will be resolved properly by analyzing the relationship of conviction to the issue of untruthfulness along with consideration of the age of the case versus its prejudicial effect.
As the grounds weighed here in regards to its probative value dealt only with "propensity"—and this was a 19–year–old conviction—we find the KRE 609(b) balancing analysis was improper; thus there was an abuse of discretion and error; error which, under the circumstances of this case, we cannot say was harmless.
TESTIMONY REGARDING "RAPE" VIDEO
Appellant also argues the trial court abused its discretion when it allowed testimony regarding the "rape video" found on his computer.
At pretrial, the court held the video would not be admissible. However, during cross-examination, the Commonwealth asked Appellant about his use of the computer at the shop on the day of the incident. When he explained that he had used the computer to view diagrams of the car he was working on that day and later affirmed he did not think he had used the computer for any other purpose that day, the Commonwealth pounced on the Appellant's testimony and informed the court that it then intended to impeach Appellant's testimony regarding the computer usage on the day in question by pointing out the access of the "rape video."
Two theories were then offered for admitting evidence of the video. First, the evidence was admissible for impeachment purposes—Appellant testified he only used the computer for work-related activities. Second, the video demonstrated "preparation" for his sexual acts against A.J., as well as intent. Over Appellant's objection, the trial court then ruled Appellant had "opened the door" by testifying the computer was only used for business purposes. Additionally, the trial court ruled the evidence was admissible under KRE 404(b) to show "preparation" and "intent." In making its determination, the trial court concluded, however, that it would not allow the Commonwealth to play the video for the jury as it would be too prejudicial. It limited the evidence to the fact that this "rape video" had been accessed.
Thus, Detective Kevin Lamkin, the Commonwealth's computer forensic analyst, was permitted to testify that his examination of the hard drive on the computer revealed that on May 19, 2002, at 10:02 a.m., someone accessed and opened a 30–second–long movie file entitled "Asian–Two Guys Rape Japanese Girl." However, he could not testify as to who viewed the file. Interestingly enough, according to A.J.'s testimony, the video was said to have been viewed after the completion of the rapes and nearly six hours prior to the sodomy. The issue then, is whether the trial court "abused its discretion" by admitting evidence of the "rape video" at trial. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.1999).
The rules of evidence are quite clear that a trial court is free to reconsider its prior rulings on motions in limine. KRE 103(d) ends its discussion of such motions by matter-of-factly stating "Nothing in this rule precludes the court from reconsidering at trial any ruling made on a motion in limine."
Plainly, however, the "rape video" was not admissible as evidence of "preparation or intent" as described in KRE 404(b); such a holding in matters such as this would broaden KRE 404(b) beyond recognition. Even so, if this evidence fell under the province of KRE 404(b), the Commonwealth would not have acquiesced in the Appellant's original motion to suppress in the first place. It was correct the first time—this is not proper evidence of "preparation" or "intent" What this evidence would do—is show Appellant's "lustful inclinations." InPendleton, 685 S.W.2d at 552, we held evidence tending only to prove a "lustful inclination" is not admissible.
Moreover, it has been a long-standing principle in our jurisprudence that impeachment on collateral facts is not a proper basis for admitting otherwise inadmissible evidence. "A prosecutor cannot make improper inquiries about collateral matters on cross-examination and then introduce otherwise inadmissible evidence in rebuttal under the guise of impeachment." Purcell v. Commonwealth, 149 S.W.3d 382, 397 (Ky.2004); citing Stansbury v. United States, 219 F.2d 165, 168–71 (5th Cir.1955).
"A witness may not be impeached on matters that are irrelevant or collateral to the issue being tried. Incompetent evidence cannot be made the foundation for impeachment of a witness. A witness's answers to questions relating to his previous conduct are regarded as so far collateral that they cannot be contradicted by the party cross-examining unless they go to matter which the law permits to be shown for the purpose of impairing credibility."
Id. (quoting Keene v. Commonwealth, 307 Ky. 308, 210 S.W.2d 926, 929 (1948).
"Although there is no provision in the Kentucky Rules of Evidence prohibiting impeachment on collateral facts, we have continued to recognize the prohibition as a valid principle of evidence." Id. at 397–98, 210 S.W.2d 926 (citing Neal v. Commonwealth, 95 S.W.3d 843, 849 (Ky.2003); Slaven v. Commonwealth, 962 S.W.2d 845, 858 (Ky.1997); Eldred v. Commonwealth, 906 S.W.2d 694, 705 (Ky.1994), abrogated on other grounds by Commonwealth v. Barroso, 122 S.W.3d 554, 563–64 (Ky.2003)).
In Purcell, this Court noted that Professor Lawson suggests that the issue is more properly decided by applying the KRE 403balancing test, i.e., weighing the probative value of the impeachment against the prejudicial effect of the evidence and its possible confusion of the issue and that it would be a rare occurrence, when the prejudicial effect of the evidence of "other bad acts" would not substantially outweigh the impeachment value of such evidence. Id. at 398 (citing Lawson, supra, § 4.05[3], at 276. Plainly, in this instance, this was a collateral matter to which the Appellant was not subject to impeachment on extrinsic evidence. Whoever did access the "rape video" apparently did so after the alleged rapes for which Appellant was acquitted, but almost six hours prior to the sodomy for which he was convicted.
We find the trial court committed error by admitting the "rape video" into evidence and it was not harmless.
A.J.'s "DIARY"
Appellant further claims the trial court erred by depriving him of the right to present a defense when it refused to permit the introduction of A.J.'s day planner/calendar or "diary" into evidence.
A.J.'s "diary" contained 63 entries made by her between January 2, 2002 and May 18, 2002. Thirty-one of the entries had to do with sexual encounters with named individuals, including entries documenting sex with multiple partners on the same day, as each of these entries were symbolized "HSW." One of the entries noted the "$" symbol.[4]
Subsequent to the admission of the "Rape video," the appellant moved the trial court to admit the diary into evidence as it was relevant to support his contention that (1) A.J. was expecting money in exchange for sex and, thus, was a defense to the allegations of rape and sodomy to punish him for not giving her money or taking her shopping at the mall,[5] and (2) to refute the natural tendency to believe that it would have been Appellant that accessed the "rape video"—rather than A.J. (the minor female), whose sexual proclivity appears from a review of the diary (a female child is presumed not to be sexually active—Barnett v. Commonwealth, 828 S.W.2d 361, 363 (Ky.1992)).
The trial court, however, denied Appellant's motion to admit the "diary" holding that it was irrelevant and inadmissible and did not meet any of the three exceptions in KRE 412 (the Kentucky Rape Shield Rule). The Appellant then tendered the "diary" as an avowal.
KRE 412 exists to generally prohibit admission of evidence of prior sexual conduct of a complaining witness to insure that a victim does not become the party on trial through the admission of evidence that is neither material, nor relevant to the charge made. The rule does not prohibit the introduction of relevant, probative evidence at trial, if the evidence of prior sexual conduct directly pertains to the crime with which the defendant is charged. Barnett at 363 (citing former KRS 510.145, repealed by 1990 Ky. Acts, ch. 88, § 92, eff. July 1, 1992, and Bixler v. Commonwealth, 712 S.W.2d 366 (Ky.App.1986)).
The goal of KRE 412 is to protect victims of sex crimes against embarrassing and humiliating disclosures about private sexual activities. The rule is crucial in protecting victims from being prosecuted and even persecuted by defendants who attempt to draw attention from their own alleged crimes by making the victim look like the criminal. KRE 412 permits admission of evidence of an alleged victim's past sexual history only after the proffered evidence is determined to fall under one of the three narrow exceptions toKRE 412 and after determination is made by the trial court that the prejudicial effect is substantially outweighed by the probative value, as required by subsection (c).[6] R. Lawson, The Kentucky Evidence Law Handbook, at 168–70.
To be admissible, evidence of an alleged rape victim's behavior must be: (1) evidence of past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, i.e., the source of semen or injury; (2) evidence of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which an offense is alleged; or (3) any other evidence directly pertaining to the offense charged. KRE 412(b).
The drafters of this third exception, KRE 412(b)(1)(C), noted, "it recognizes the difficulty of anticipating every circumstance in which evidence of a prior sexual conduct may have a necessary and proper role in a case other than as evidence of an alleged victim's character." Id. at 113. "It is, in other words, a safety valve, albeit one that needs to be administered 'carefully and sparingly' [and without violating] the objective of protecting against unwarranted attacks on the character of an alleged victim." Id. at 166 (citing Evidence Rules Study Comm., Ky. Rules of Evidence—Final Draft, p. 36 (Nov.1989)).
Notably, the Federal Rape Shield Rule (FRE 412) has the same exception, yet with somewhat different language. It allows "evidence the exclusion of which would violate the constitutional right of the defendant." FRE 412(b)(1)(C). KRE 412(b)(1)(C) and FRE 412(b)(1)(C) serve essentially the same function, as the U.S. Supreme Court has held that a criminal defendant has a constitutional right to "a meaningful opportunity to present a complete defense." California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2533, 81 L.Ed.2d 413 (1984). "... [R]estrictions on a criminal defendant's right to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve." Rock v. Arkansas, 483 U.S. 44, 55–56, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987).
Pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Section 11 of the Kentucky Constitution, a criminal defendant is guaranteed the right not only to confront witnesses against him, but also to compel witnesses in his favor. "[T]he exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988).
Olden involved a Caucasian woman allegedly raped by the defendant, who was African–American. She first reported being raped to her friend, with whom she was visiting, when dropped off at his house by the defendant. The friend, also an African–American male, had come out on his porch, just as she got out of the defendant's car.
At the time of the trial, she had separated from her husband and was living with this friend (who had also separated from his wife), and the defendant sought to introduce their co-habitation as part of his defense that she had fabricated the rape charge to protect her then future, and now present, relationship with this other man. Interestingly enough, this Court (then the Kentucky Court of Appeals) held this evidence of a fabrication was not barred by Kentucky's Rape Shield Law [then KRS 510.145 (Michie, 1985) ]. However, it was excluded by this Court upon the finding that "[t]he defendant's right to effective cross examination was outweighed by the danger that revealing [her] interracial relationship would prejudice the jury against her." Id. at 232.
In finding the exclusion erroneous, the U.S. Supreme Court stated, "While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecuting witness, to take account of such factors as 'harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that would be repetitive, or only marginally relevant, ....the limitation here was beyond reason'." Id.
In finding that the error was not harmless, the Court stressed "the central, indeed crucial" role her testimony played in the prosecution, since she was the only witness/victim. Id. at 233. In addition, the Court placed great weight upon the apparent inconsistencies between the jury verdicts and the prosecution's theory of the case: "Based on the evidence at trial, the jury acquitted [another defendant] of being either a principal or an accomplice to any of the charged offenses. Petitioner was likewise acquitted of kidnapping and rape. However, in a somewhat puzzling turn of events, the jury convicted Petitioner of forcible sodomy." Id. at 230. "As demonstrated graphically by the jury's verdicts, which cannot be squared with the state's theory of the alleged crime, the state's case against Petitioner was far from overwhelming." Id. at 233.
Here, Appellant claimed that A.J. expected money or other material remuneration (at the mall) in exchange for providing him sex. He did not deny engaging in sexual activities with A.J. He consistently claimed the occasions of sexual intercourse and oral sex were consensual, stating that A.J. became angry and issued threats to accuse him of rape when she realized he was not going to "pay" or "take her to the mall." His sole defense was that A.J. was fabricating the claims against him as retribution for his not satisfying her demands. He, too, was acquitted of the rape charges, but convicted of the sodomy charge. Also a somewhat puzzling turn of events in this case.
Having reviewed the record and the "diary," we believe the facts of this case, as well as its closeness on the evidence, are such to transform A.J.'s "diary," or most of its entries,[7] from evidence properly excluded under KRE 412, into one of the rare instances where evidence of the victim's past sexual activity is admitted under KRE 412(b)(1)(C), the residual exception clause. To hold otherwise would be a fundamental violation of the Appellant's constitutional right to confrontation and effective cross-examination.[8]
"The Due Process Clause affords a criminal defendant the fundamental right to a fair opportunity to present a defense. Crane v. Kentucky, 476 U.S. 683, 690–91, 106 S.Ct. 2142, 2146, 90 L.Ed.2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297; Beatty v. Commonwealth, 125 S.W.3d 196, 206 (Ky.2003). The exclusion of evidence violates that constitutional right when it "significantly undermine[s] fundamental elements of the defendant's defense." United States v. Scheffer, 523 U.S. 303, 315, 118 S.Ct. 1261, 1267–68, 140 L.Ed.2d 413 (1998)." Harris v. Commonwealth, 134 S.W.3d 603, 606 (Ky.2004). Thus, we believe the line of demarcation between the "right to confrontation" and the "Rape Shield rule" is crossed when the "shield" becomes a "sword."
In Anderson v. Commonwealth, 63 S.W.3d 135 (Ky.2001), we warned against excessive use of the residual exception stating, " '[t]he purpose of the Rape Shield Statute is to insure that [the victim] does not become the party on trial through the admission of evidence that is neither material[,] nor relevant to the charge made .'.... We stand by this sound principle, and by no means want to expand the law to admit more evidence than is necessary to allow a defendant a fair trial." Id. at 140; quoting Barnett at 363).
However, we cannot find the error in this case harmless for the same reasons set out in Olden.
THE TRIAL COURT'S DENIAL OF APPELLANT'S MOTION TO AMEND HIS GUILTY PLEA
Following the jury verdict convicting Appellant of first-degree sodomy and first-degree unlawful imprisonment and recommending a sentence of twenty-five (25) years, Appellant entered a plea of guilty on the other charge, possession of a firearm by a convicted felon. Yet later, at the sentencing hearing on November 14, 2003, counsel for Appellant moved to amend this plea of guilty to an "Alford" plea. The trial court, however, requested the motion be reduced to writing. Ultimately, after the motion to amend and the response thereto were filed, it was denied. Appellant argues the trial court erred in denying the motion.
The U.S. Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), allowed the use of a "best interest" guilty plea. When entering an "Alford" plea, the defendant acknowledges the weight of the evidence against him, yet still chooses to maintain his innocence. The impetus for entry of such a plea is hope for a lesser sentence in exchange for the entry of a plea.
The decision to accept an Alford plea in the first place is within the discretion of the trial court. Even in Alford, the U.S. Supreme Court stated:
Our holding does not mean that a trial judge must accept every constitutionally valid guilty plea merely because a defendant wishes so to plead. A criminal defendant does not have the absolute right under the Constitution to have his plea accepted by the court.... [T]he States may bar their courts from accepting guilty pleas from any defendants who assert their innocence.
Id. at 33.
Although we do allow such pleas at the discretion of the trial court, the Kentucky Rules of Criminal Procedure do not provide for their entry.[9] They provide for pleas of guilty, not guilty, or guilty but mentally ill.
In this case, Appellant participated in a full plea colloquy during which he waived his right to a jury trial.[10] The Appellant "knowingly, understandingly and voluntarily" waived his right to a jury trial. He entered a guilty plea with no promise of a recommendation of a lesser sentence by the Commonwealth. More accurately, he entered an "open" and unconditional guilty plea, acknowledging to the court his guilt.
Thus, we find no error in the trial court's decision to deny Appellant's motion to amend his guilty plea to an "Alford" plea.
CONCLUSION
In that we conclude the trial court committed reversible error in admitting evidence of the 19–year–old conviction, in admitting evidence of the "rape" video, as well as in the exclusion of the "diary," the Appellant's convictions for first degree sodomy and first degree unlawful imprisonment are hereby reversed and this case is remanded to the trial court for a new trial consistent with the rulings herein.We affirm the judgment and sentencing on the possession of a firearm, subject to the trial court's re-evaluation of the plea pursuant to the rulings herein.
LAMBERT, C.J.; GRAVES, ROACH, SCOTT and WINTERSHEIMER, JJ., concur. COOPER, J., dissents by separate opinion, withJOHNSTONE, J., joining that dissent.
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority opinion except insofar as it holds that Appellant may, upon retrial, introduce excerpts from the victim's diary showing that she engaged in other acts of consensual sex with other men in exchange for money or other remuneration.
Except for a forty-five-minute period during which Appellant left A.J. alone while he purchased some beer and delivered it to his residence, Appellant and A.J. were together at Appellant's place of business from approximately 8:00 a.m. to 4:00 p.m. on Sunday, May 19, 2002. They both testified that during the period from 8:00 a.m. until 10:30 a.m., they engaged in sexual intercourse three times, twice in the reception office and once in an upstairs office. A.J. claimed she was forcibly raped on each occasion; Appellant claimed the intercourse was consensual. Appellant testified that after their first act of intercourse, A.J. asked him if he would give her twenty-five dollars and he told her that he would (though he apparently never did). He then testified that, after the third act of intercourse, A.J. asked him to take her to the Jefferson Mall and recited a list of items that she wanted him to purchase for her. According to Appellant, he told her that he had no intention of purchasing any of those items for her.
Both parties testified that after Appellant returned from purchasing and delivering the beer, and after A.J. had called the 911 emergency operator and reported that she had been raped, A.J. performed an act of oral sodomy on Appellant. Again, A.J. claimed she was forcibly compelled to do so; Appellant claimed that A.J. initiated the contact and voluntarily performed the act without any force or threat from him. Neither testified that A.J. demanded any money or gifts before or after this incident, which occurred shortly before the police arrived and placed Appellant under arrest. Appellant was subsequently indicted for, inter alia, three counts of rape in the first degree and one count of sodomy in the first degree.
The trial court sustained the Commonwealth's objection to the introduction of excerpts from A.J.'s diaries which indicated that she had been paid for sex by other men in the past, including a man with whom she had spent the previous evening. The majority opinion holds that the excerpts were admissible because they tended to show that A.J. was a practicing prostitute who had consensual intercourse with Appellant in expectation of remuneration. However, the exception to the rape-shield rule with respect to proof of consent allows only evidence of prior sexual behavior by the victim with the accused. KRE 412(b)(1)(B). The majority opinion relies on the exception atKRE 412(b)(1)(C) ("any other evidence directly pertaining to the offense charged"). Nothing in A.J.'s diary directly pertains to the offenses charged in this case. Appellant simply wants to avoid the restriction in KRE 412(b)(1)(B) and prove consent by evidence that A.J. had engaged in prior consensual sexual conduct with other persons. This case is unlike Anderson v. Commonwealth, 63 S.W.3d 135, 140 (Ky.2001), and Barnett v. Commonwealth, 828 S.W.2d 361, 363 (Ky.1992), in which evidence of previous sexual activity with third parties was introduced to rebut the inference drawn from medical evidence of frequent sexual activity by female children, who are generally presumed not to be sexually active. Nor does the exclusion of this evidence violate Appellant's Sixth Amendment right to present a defense. "[T]he right to present relevant testimony is not without limitation. The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." ' Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973)). To the extent it holds that the Sixth Amendment guarantees Appellant the right to present evidence of A.J.'s sexual conduct with other men, the majority's analysis of KRE 412(b)(1)(C) effectively writes the rape shield rule out of the books. Most evidence of a victim's sexual activity with a third party that is precluded by KRE 412(a) would be admitted under this interpretation of KRE 412(b)(1)(C); the exception swallows the rule of inadmissibility, itself.
Where evidence excluded by rape-shield laws is offered only for the purpose of impeachment or, as here, as circumstantial evidence of consent, the defendant's interest in presenting the evidence is outweighed by the state's interest in protecting the privacy of sexual assault victims. Hammer v. Karlen, 342 F.3d 807, 812 (7th Cir.2003); Jones v. Goodwin, 982 F.2d 464, 469 (11th Cir.1993)(rape-shield exclusion does not violate Confrontation Clause). See also Smith v. Commonwealth, 566 S.W.2d 181, 183 (Ky.App.1978)(upholding constitutionality of former KRS 510.145). The U.S. Supreme Court has held that exclusion of this type of evidence for failure to comply with a notice-hearing requirement, see KRE 412(c), does not violate a defendant's Sixth Amendment right to present a defense. In fact, Appellant was not denied the right to present his defense. He "had an opportunity to testify regarding the events of the day leading up to the rape, to argue the victim's ability to consent, and to cross-examine [the victim] regarding the events of the day."Hardaway v. McKane, 125 Fed. Appx. 955, 957 (10th Cir.2005). He was only precluded from introducing evidence regarding A.J.'s previous sexual experiences with other persons.
Regardless, under Appellant's own version of the facts, he had told A.J. that he was not going to provide her with money or gifts in exchange for sexual intercourse by approximately 10:30 a.m., after the occurrence of the alleged rapes but some five hours before the occurrence of the alleged sodomy. The diary entries were probative only as a defense to the rape charges because Appellant admits that any discussion of remuneration for sex had been terminated prior to the act of sodomy. Since Appellant was acquitted of the rape charges, the entries are now irrelevant unless the Commonwealth can re-introduce evidence of the rape allegations upon retrial.
This case is factually distinguishable from Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), the case upon which the majority opinion primarily relies. In Olden, the U.S. Supreme Court held that the defendant's Sixth Amendment right to confrontation was violated when he was prevented from presenting evidence that the alleged rape victim was cohabitating with another man for the purpose of showing her motive to fabricate the accusation that the defendant had raped her. Id. at 232, 109 S.Ct. at 483.While the diary excerpts in the case sub judice tend to show that A.J. fabricated the rape charges, they do not tend to show a motive for fabricating the remaining sodomy charge.
There is no Constitutional prohibition against the admission at retrial of evidence of the three acts of sexual intercourse between Appellant and A.J. Dowling v. United States, 493 U.S. 342, 348–50, 110 S.Ct. 668, 672–73, 107 L.Ed.2d 708 (1990). Because the standard of proof is lower for admission of evidence under KRE 104(a) than for a criminal conviction, Appellant's acquittal of the three rape charges does not preclude their admission under KRE 404(b) at retrial, so long as the evidence falls within the "proper purpose" exception established by that Rule, Dowling, 493 U.S. at 348–50, 110 S.Ct. at 672–63; Hampton v. Commonwealth, 133 S.W.3d 438, 441–42 (Ky.2004), and provided the trial court admonishes the jury that Appellant has been previously acquitted of forcible rape with respect to those acts. Dowling, 493 U.S. at 345–46, 110 S.Ct. at 674–75; Hampton, 133 S.W.3d at 442.
The KRE 404(b) problem here is that evidence of the three acts of consensual sexual intercourse does not satisfy the "other purpose" requirement for admission under KRE 404(b)(1). Both parties admitted to engaging in three acts of sexual intercourse and one act of oral sodomy. Since the jury found Appellant not guilty of the rapes, they must have found that the three acts of sexual intercourse were consensual. The only remaining issue at retrial is whether the sodomy was consensual or the product of forcible compulsion. The three prior acts of consensual sexual intercourse do not tend to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" with respect to a subsequent forcibly compelled sodomy. It would only tend to prove a "lustful inclination," which is not permitted in Kentucky. Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985). If the Commonwealth attempts to claim at retrial that the three acts of sexual intercourse were forcibly compelled, it is faced not only with the trial court's admonition to the jury that Appellant was acquitted of those charges but also with the introduction of the diary excerpts, which are far more devastating to the Commonwealth's case than proof of alleged nonconsensual acts of sexual intercourse for which he has been acquitted.
Nor are the three consensual sexual acts so "inextricably intertwined" with the alleged nonconsensual sexual act as to compel admission under KRS 404(b)(2). As we noted in Funk v. Commonwealth, 842 S.W.2d 476 (Ky.1992):
[T]he key to understanding this exception is the word "inextricably." The exception relates only to evidence that must come inbecause it "is so interwoven with evidence of the crime charged that its introduction is unavoidable."
Id. at 480 (emphasis added) (quoting Robert G. Lawson, The Kentucky Evidence Law Handbook § 2.20, at 37 (2d ed.1984)). See alsoFleming v. Commonwealth, 284 Ky. 209, 144 S.W.2d 220, 221 (1940) (evidence is inextricably intertwined where "two or more crimes are so linked together in point of time or circumstances that one cannot be fully shown without proving the other"). It would be a simple (and prudent) matter for the Commonwealth to introduce all of the other evidence leading up to the alleged forcible sodomy, excluding the three acts of consensual intercourse.
In fact, Appellant is more likely to move for the introduction of evidence of consensual intercourse pursuant to KRE 412(b)(1)(B)("evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconductoffered by the accused to prove consent" ) than is the Commonwealth to move for its introduction pursuant to KRE 404(b). But if Appellant introduces evidence that the intercourse was consensual (as circumstantial evidence that the sodomy was also consensual), the diary excerpts, i.e., evidence of sex for money, remain irrelevant because their only purpose is to rebut the claim of nonconsensualsexual intercourse, not the claim of nonconsensual oral sodomy. A.J. could not have expected money or gifts in return for performing a consensual act of sodomy, since Appellant had already told her he had no intention of giving her money or gifts, and A.J. knew the police would soon arrive and arrest Appellant as a result of her 911 call charging him with rape.
Accordingly, I dissent with respect to the majority's holding that the diaries are admissible at retrial; otherwise, I concur in the majority opinion.
JOHNSTONE, J., joins this opinion.
[1] Police records show the 911 call to have been placed at 3:32 p.m.
[2] At trial, the parties stipulated that the male DNA profile from the vaginal specimen matched Appellant and that the saliva swabs from Appellant's penis matched A.J.
[3] Federal Courts, in addressing "stale convictions," have stated that such convictions should be admitted rarely and only under exceptional circumstances. Id.
[4] The March 23, 2002 entry.
[5] The 911 call was placed from A.J.'s cell phone at 3:32 p.m., and thereafter the "police rescue" occurred. However, A.J. received a four-minute call from the man she spent the night before with sometime after 10:23 a.m.; the three "rapes" were committed by approximately 9:30 a.m., yet no 911 call was placed as a result of this conversation (nor was there any independent attempt at rescue).
[6] This test is the same as that applied to KRE 609 (Appellant's 19–year–old conviction).
[7] The "burnt up my bird and buried it in the yard" entry and other similar entries of irrelevant material should be redacted.
[8] See Sixth Amendment to the United States Constitution and Section 11 of the Kentucky Constitution.
[9] See. RCr 812; RCr 8.08. Cf. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 549 (Ky.App.1984) (holding that criminal rules do not provide for a plea of nolo contendere).
[10] The jury was still present and the trial judge explained to Appellant that they could be brought back in to try the firearm charge. Though, it appears from the circumstances that the Appellant made the decision to enter a plea to end all of the proceedings against him out of frustration; a decision that may have been made precipitously and in the "clutch of frustration" following the other convictions; yet the standard we must following in this review is whether it was made knowingly, intelligently, and voluntarily.
7.2.6.5.7 V.C. Campus 7.2.6.5.7 V.C. Campus
7.2.6.5.7.1 Title IX (1972) 7.2.6.5.7.1 Title IX (1972)
7.2.6.5.7.2. Dept. of Ed. Dear Colleague Letter (2011)
7.2.6.5.7.3. MIT Sexual Assault Survey (2014)
7.2.6.5.7.4 CA Education Code § 67386 (2015) 7.2.6.5.7.4 CA Education Code § 67386 (2015)
§ 67386. Adoption of policy concerning sexual assault, domestic violence, dating violence, and stalking; receipt of state funds; contents of policy
Effective: January 1, 2015
(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused’s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution’s personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution’s policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution’s overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student’s orientation.
7.2.6.5.7.5. Restatement of Contracts, Second §20
7.2.6.5.7.6. Antioch College Policy
7.2.6.5.7.7. Yale Sexual Misconduct Scenarios (2013)
7.2.6.5.7.8. Harvard University Sexual Harassment Policy (2014)
7.2.6.5.7.9. Harvard University Procedures for Handling Complaints (2014)
7.2.6.5.7.10. Nancy Gertner, "Sex, Lies and Justice," Am. Prospect (2015)
7.2.6.5.7.11. Alexandra Brodsky, "Fair Process, Not Criminal Process, Is the Right Way to Address Campus Sexual Assault," Am. Prospect (2015)
7.2.6.5.7.12. HLS Sexual Harassment Resources and Procedures for Students (2014)
7.2.6.5.7.13. Janet Halley, Trading the Megaphone for the Gavel, Harv. L. Rev. (2015)
7.2.6.5.7.14 Email to University of Buffalo Community (2014) 7.2.6.5.7.14 Email to University of Buffalo Community (2014)
Sex Offender Community Notification
Under amendments to "Megan's Law," adopted to comply with a federal law known as the Campus Sex Crimes Prevention Act of 2000, sex offenders registered in New York are required to notify the registry of any institution of higher education at which he or she is, or expects to be, enrolled, attending or employed -- and whether such sex offender resides or expects to reside in a facility operated by the institution.
In accordance with this law, the University at Buffalo will notify the campus community when a Level 2 or Level 3 registered sexual offender has become part of the campus community, either through enrollment or employment.
The individual identified in the link below is taking classes at UB, but he is not residing on campus. While University Police do not see this as a specific threat, the university is sharing this information in accordance with the law:
www.criminaljustice.ny.gov/
Questions about this notification should be directed to University Police at 716-645-2227.
Additional information about sex offender notifications and definitions of Levels 1, 2, and 3 sex offenders is available at www.student-affairs.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
DO NOT REPLY TO THIS MESSAGE. This email account is not monitored.
UB Alert is the official emergency-notification system of the University at Buffalo.
For emergency updates, please visit the UB Alert - Emergency Information website:
http://emergency.buffalo.edu
To report an emergency or a crime, please call University Police at 716-645-2222.
7.2.6.6 VI. Significance of Resulting Harm 7.2.6.6 VI. Significance of Resulting Harm
7.2.6.6.1 VI.A. Causation 7.2.6.6.1 VI.A. Causation
While much of our study of criminal law has focused on two elements of a crime—actus reus and mens rea—criminal law also concerns itself with the resulting harm. Causation, the subject of this section, focuses on how the harm comes about. Attempt, the subject of the next section, considers criminal liability when the result of the crime does not occur at all. In most criminal cases, causation does not pose very difficult problems. As in other areas of law such as torts, causation requires a showing of both the “but-for cause,” or cause in fact, and “proximate” or legal cause. The cases in this section examine causation by looking at scenarios in which the but-for cause can be difficult to ascertain, or when the proximate cause becomes too strained or remote. Consider why the courts find causation in some cases and not others. What rules, beyond a sense of moral culpability, govern causation?
7.2.6.6.1.1 People v. Acosta 7.2.6.6.1.1 People v. Acosta
232 Cal. App. 3d 1375; 284 Cal.Rptr. 117
THE PEOPLE, Plaintiff and Respondent,
v.
VINCENT WILLIAM ACOSTA, Defendant and Appellant.
Court of Appeals of California, Fourth District, Division Three.
No.G008518.
July 31, 1991.
NOTICE: NOT CITABLE - ORDERED NOT
PUBLISHED
SUBSEQUENT HISTORY: As Modified August 2, 14, and 28, 1991. Review Denied October 31, 1991.
PRIOR-HISTORY: Superior Court of Orange County, No. C-67678, Robert R. Fitzgerald, Judge.
COUNSEL: Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Janelle B. Davis and John T. Swan, Deputy Attorneys General, for Plaintiff and Respondent.
JUDGES: Moore, Acting P.J., concurring in part and dissenting. Crosby, J., concurring and dissenting.
OPINION BY: WALLIN
OPINION
WALLIN, J.
Vincent William Acosta appeals his conviction on three counts of second degree murder (Pen. Code, § 187) and one count of unlawfully driving another's vehicle without consent (Veh. Code, § 10851), contending: (1) there was insufficient evidence his conduct was the proximate cause of the deaths; (2) there was insufficient evidence of malice; (3) the jury was erroneously instructed on implied malice; (4) the trial court erred in admitting his postarrest statements; and (5) his sentence constituted cruel and unusual punishment. In the published portion of the opinion, I agree with his second contention and reverse the murder convictions. I discuss his fourth contention in the unpublished portion and conclude his fifth contention is moot.
At 10 p. m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street. The officers approached Acosta and identified themselves. Acosta inched the Pulsar forward, then accelerated rapidly. He lead Salceda, Francis and officers from other agencies on a 48-mile chase along numerous surface streets and freeways throughout Orange County. The chase ended near Acosta's residence in Anaheim.
During the chase, Acosta engaged in some of the most egregious driving tactics imaginable. He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him. Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection. When leaving the freeway in Anaheim, he drove over a cement shoulder.
Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly. At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.
Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled. Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.
Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta. During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights. The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter. As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead. The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet. At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.
At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right. Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it. Both helicopters fell to the ground. Three occupants in the Costa Mesa helicopter died as a result of the crash.
Menzies Turner, a retired Federal Aviation Administration (FAA) investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360-degree turn and closed too rapidly on the Newport Beach helicopter. He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude. He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.[2]
Turner could not think of any reason for the Costa Mesa helicopter's erratic movement. The maneuver was not a difficult one, and was not affected by the ground activity at the time. He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters.[3]
After his arrest Acosta told the police he knew the Pulsar was stolen and he fled the police to avoid arrest. He also saw two helicopters with spotlights, and turned off the Pulsar's lights to evade them. Acosta knew that his flight was dangerous "to the bone," but he tried to warn other cars by flashing the car lights and by otherwise being "as safe as possible."
I
Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder: that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice. (People v. Scola (1976) 56 Cal.App.3d 723, 726 [128 Cal.Rptr. 477] [proximate cause]; People v. Spring (1984) 153 Cal.App.3d 1199, 1204 [200 Cal.Rptr. 849] [malice].) He is correct on the latter claim.
As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident. He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause. Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.
Proximate cause in criminal cases is determined by ordinary principles of causation. (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)[4] It is initially a question of fact for the jury to decide. (People v. Harris (1975) 52 Cal.App.3d 419, 427 [125 Cal.Rptr. 40].) When the sufficiency of the evidence is challenged, the court is not required to ""ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R 4th 1255].)
"In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must . . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the jury and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial ; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "[n]ot every surface conflict of evidence remains substantial in the light of other facts." [Citation.]" (26 Cal.3d at pp. 576-577.)
To determine whether Acosta's conduct was not, as a matter of law, a proximate cause of death of the Costa Mesa helicopter's occupants, I enter a legal realm not routinely considered in published California cases. When a causation issue arises, it does so almost invariably in homicide cases (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 126, p. 146), and often involves a discussion of the subject severely limited to an expedient disposition of the narrow question at hand. This leaves the possibility for misapprehension about the number of factors which actually should be (or implicitly were) considered in resolving the issue. [5] I approach the issue broadly because several theoretical concepts of proximate cause impinge on this case.
"Proximate cause" is the term historically used[6] to separate those results for which an actor will be held responsible from those not carrying such responsibility. The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice. (Perkins & Boyce, supra , at p. 776.) Because such concerns are sometimes more a matter of "common sense" than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed. (Id . at pp. 776-777.) That does not mean general guidelines and approaches to analysis cannot be constructed.
The threshold question in examining causation is whether the defendant's act was an "actual cause" of the victim's injury. It is a sine qua non test: But for the defendant's act would the injury have occurred? Unless an act is an actual cause of the injury, it will not be considered a proximate cause. (Perkins & Boyce, supra , at pp. 771-772, 774; see People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269 Cal.Rptr. 250] [defendant's joyriding not shown to be the cause of accident]; People v. Scola, supra , 56 Cal.App.3d at p. 726 [defendant's speeding was actual cause of accident].)[7]
The next inquiry is whether the defendant's act was a "substantial factor" in the injury. This test excludes those actual causes which, although direct, play only an insignificant role in the ultimate injury.[8] Although there is no strict definition, the Restatement Second of Torts, supra , section 433, lists considerations in determining whether a factor is "substantial": (1) the number and extent of other factors contributing to the harm; (2) whether the forces created by the actor are continuous in producing the harm or merely create a condition upon which independent forces act; and (3) any lapse of time between the act and the harm. (Rest.2d Torts, supra , § 433, at p. 433.)
In California, the substantial factor issue has arisen most often where multiple causes act concurrently, but independently,[9] to produce the harm.[10] The test is one of exclusion only. Unless a cause is a substantial factor in the harm it will not be considered a proximate cause, but some substantial factor causes may not be deemed proximate causes. (Perkins & Boyce, supra , at p. 780; see People v. Caldwell, supra , 36 Cal.3d at pp. 220-221 [citing Perkins & Boyce]; People v. Pike (1988) 197 Cal.App.3d 732, 746 [243 Cal.Rptr. 54].)[11]
A related concept which may lead to a refusal to treat an actual cause as a proximate cause is where a force set in motion by the defendant has "come to rest in a position of apparent safety.'" (Perkins & Boyce, supra , at pp. 780-781; see People v. Caldwell, supra , 36 Cal.3d at pp. 219-220.) Perkins and Boyce give the example of the actor who dislodges a rock which comes to rest against a tree. If the tree bends or breaks six months later, releasing the rock, the original action is not considered the proximate cause of any resulting harm. (Perkins & Boyce, supra , at p. 780.)[12]
To this point I have spoken only of direct causes, "[causes] which produce[] a result without the aid of any intervening cause . . . ." (Perkins & Boyce, supra , at p. 787.) Because it is tautological, the definition is of little value in identifying a cause in the absence of a working definition of an indirect cause. However, Perkins and Boyce list several examples of direct causation, headed by the observation that, "If sequences follow one another in such a customary order that no other cause would commonly be thought of as intervening, the causal connection is spoken of as direct for juridical purposes even though many intervening causes might be recognized by a physicist." (Id . at p. 788, italics added.)
The critical concept at this juncture is that a direct cause which is a substantial factor in the ensuing injury is almost always a proximate cause of it. (Id. at pp. 788-790; see People v. French (1978) 77 Cal.App.3d 511, 523-525 [143 Cal.Rptr. 782] [defendant's drunk driving was direct cause of bicyclist's death].) This is so even if the result is exacerbated by a latent condition in the victim or caused by a third party. (People v. Fugatt * (Cal.App.) [drunken defendant struck allegedly defective gas tank of victims' car]; People v. Stamp (1969) 2 Cal.App.3d 203, 210-211 [82 Cal.Rptr. 598] [defendant triggered heart attack in store clerk during armed robbery]; 1 Witkin & Epstein, supra , at pp. 147-148.)[13] The only exception is where the result is "highly extraordinary" in view of its cause. (See Rest.2d Torts, supra , § 435, p. 449.)[14]
However, the defendant is not always the direct cause of the harm. Sometimes forces arise between the act of the defendant and the harm, called "intervening causes." They are of two types, dependent and independent, and include acts of God. (1 Witkin & Epstein, supra , at pp. 148-150; Perkins & Boyce, supra , at p. 791.)
An intervening cause is dependent if it is a normal or involuntary response to, or result of, the defendant's act. (1 Witkin & Epstein, supra , at p. 148; see also Perkins & Boyce, supra , at p. 791 ["[a]n intervening cause . . . produced by the first cause."].) These include flight and other voluntary or involuntary responses of victims, as well as defense, rescue and medical treatment by third parties. Even where such responses constitute negligent conduct, they do not supersede the defendant's act; i.e., they are nevertheless considered proximate causes of the harm. (People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim foolishly chose to attempt to swim to shore after defendant capsized the boat]; Perkins & Boyce, supra , at pp. 792-809.)[15]
Conversely, when the defendant's conduct merely places the eventual victim in a position which allows some other action to cause the harm, the other action is termed an independent intervening cause. It usually supersedes the defendant's act; i.e., precludes a finding of proximate cause. (Perkins & Boyce, supra , at pp. 791, 809 ["merely happen[s] to take effect upon a condition created by the first cause[;] [P] operates upon a condition produced by an antecedent [cause] but is in no sense a consequence thereof"]; 1 LaFave & Scott, supra , at pp. 406-407 [distinguishing matters of "response" from matters of "coincidence"]; see 1 Witkin & Epstein, supra , at pp. 149-150.) The issue usually arises when the victim has been subjected to the independent harm after being disabled by the defendant, or is somehow impacted by the defendant's flight. (See People v. Pike, supra , 197 Cal.App.3d at pp. 747-748 [one police officer killed when struck by another while pursuing defendant]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [pursuing officer kills third party while pursuing defendant]; Perkins & Boyce, supra , at pp. 809-811 [falling stone hits man disabled by defendant; girl recovering from gunshot wound contracts scarlet fever from treating physician; bystander kicks to death victim knocked down by defendant; decedent may have inexplicably run into fire caused by defendant].)
An independent intervening variable will not be superseding in three instances: (1) where it is merely a contributing cause to the defendant's direct cause;[16] (2) where the result was intended; or (3) where the resultant harm was reasonably foreseeable when the act was done. (Perkins & Boyce, supra , at pp. 809-810; see also 1 Witkin & Epstein, supra , at p. 150; 1 LaFave & Scott, supra , at pp. 413-415.) As to the third exception, "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , 52 Cal.App.3d at p. 427.)
As Perkins and Boyce put it, "Foreseeability' is not a 'test' which can be applied without the use of common sense; it presents one of those problems in which 'we must rely on the common sense of the common man as to common things.' It is employed in the sense of 'appreciable probability.' It does not require such a degree of probability that the intervention was more likely to occur than not; and on the other hand it implies more than that someone might have imagined it as a theoretical possibility. It does not require that the defendant himself actually thought of it. For the purposes of proximate cause 'an appreciable probability is one which a reasonable man in ordering his conduct in view of his situation and his knowledge and means of knowledge, should, either consciously or unconsciously, take into account in connection with the other facts and probabilities then apparent.'" (Perkins & Boyce, supra , at pp. 817-818, fns. omitted.)[17]
Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results. (Prosser & Keeton, supra , at p. 300.) I agree. The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using "the common sense of the common man as to common things.'" (Perkins & Boyce, supra , at p. 817.)[18] As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.
The "highly extraordinary result" standard serves that purpose. It is consistent with the definition of foreseeability used in California. (See People v. Harris, supra , 52 Cal.App.3d at p. 427.) It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts.[91] Like numerous other legal definitions, what it means in practice will be determined as case law develops. Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.
Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry. The analysis is: (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)? (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?
If the first question is answered no, proximate cause is lacking. If answered yes, the next question must be examined. If the second question is answered yes, proximate cause is established. If answered no, the next question must be examined. If the third question is answered no, proximate cause is lacking. If answered yes, proximate cause is established unless the fourth question is answered yes, in which case it is lacking. The analysis does away with the need to consider the distinction between direct, concurrent, contributory, and dependent and independent intervening causes. It focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary. (See Perkins & Boyce, supra , at pp. 823-824 [using a similar approach].)
Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash. However, there was no evidence he intended the harm, so I must examine questions three and four.
Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash. He was fleeing when the accident occurred, and there was no lapse of time between his flight and the crash his action had not "come to rest." The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot. Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor. No similar case has held otherwise, although the third party collisions all have involved accidents on the ground. (See People v. Pike, supra , 197 Cal.App.3d 732; People v. Harris, supra , 52 Cal.App.3d 419; see also People v. Kemp (1957) 150 Cal.App.2d 654 [310 P.2d 680] [drag racer was proximate cause of accident involving the other racer].)
The result was not highly extraordinary.[20] Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was "a possible consequence which reasonably might have been contemplated.'" (People v. Harris, supra , 52 Cal.App.3d at p. 427.) Given the emotional dynamics of any police pursuit, there is an "appreciable probability" that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry. (Perkins & Boyce, supra , at p. 817.)[21] That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.[22]
Justice Crosby's opinion parts company with this analysis, reasoning that "neither the intervening negligent conduct nor the risk of harm was foreseeable." (Separate opn. of Crosby, J., post , at p. 1407.) He justifies this conclusion by reference to the well-traveled opinion of Justice Cardozo in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253]. Reliance on Palsgraf reveals the error in the analysis.[23] Justice Cardozo approached the problem from the perspective of duty, concluding that the defendant owed no duty of care to an unforeseeable plaintiff. Although the interesting facts and novel analysis of Palsgraf[24] have made it a favorite in law school texts, the four-to-three decision is not the gospel on proximate cause. (See generally Prosser & Keeton, supra , at pp. 273-274, 280-281, 284-289.) Because of its confusion between foreseeability as it relates to negligence and as it relates to causation, I have eliminated it from the proximate cause analysis.
Doing so avoids the undesirable risk of completely absolving a defendant of all liability on causation grounds when morally he should suffer some punishment for the consequences. When a defendant is the actual and substantial cause of the harm,[25] the consequences of the act should depend upon the mens rea involved. (See Perkins & Boyce, supra , at p. 813; 1 LaFave & Scott, supra , at pp. 398-399.)
The undisputed facts of this case mandate the result. Contrary to Justice Moore's assertion (separate opn. of Moore, J., post , at p. 1400), I do not find the result extraordinary, but almost so. I presume he does not dispute that it was extremely unusual. In fact, he cites no similar instances of aircraft colliding during police pursuits.[26] But neither does Justice Crosby cite any case to support his claim the result was highly extraordinary. [27]
Neither concurring opinion offers case law "on all fours," suggesting this case is unique and presents a close question. Partly because this is so, it is appropriate to rely on two compelling factors: the jury found proximate cause based on proper instructions,[27] and the dearth of case law to support a rejection of that finding. Given these circumstances, a finding of proximate cause is appropriate.[28]
II
Acosta also contends the evidence was insufficient as a matter of law to show he acted with malice, arguing it failed to establish he acted with a conscious disregard for a substantial risk of death. I agree.
Penal Code section 188 defines malice: "[It] may be express or implied. It is express when there is manifested a deliberate intention unlawfully to [kill]. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."
No contention is made that Acosta intentionally killed the victims. I deal with implied malice, a concept not well defined by the statute. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217 [264 Cal.Rptr. 841, 783 P.2d 200].) Over the years the cases expressed the concept two ways. As People v. Dellinger, supra , described it, "[In one line of cases] we construed . . . implied malice as that state of mind where 'the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.' [Citations.] [P] [In another line of cases], we phrased the definition in a different way, holding that malice is presumed when '"the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." [Citations.]" (Id . at p. 1218.)
The definitions contained two notable differences. The first mentions a wanton disregard for life, but the second uses a conscious disregard for life. And the first definition speaks of a high probability of death, while the second refers to consequences which are merely dangerous to life. Later cases remedied confusion arising from these disparities.
In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held that "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id . at pp. 296-297.) This conclusion comports with the analyses of the major commentators. (Perkins & Boyce, supra , at p. 858 ["heedless disregard of a harmful result, foreseen as a likely possibility"]; 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 205 ["to convict of murder . . . subjective realization should be required"].) People v. Dellinger, supra , 49 Cal.3d at page 1221 held that the term "conscious disregard for human life" best expresses the subjective appreciation standard.
Whether there must be a high probability of death arising from the defendant's conduct was considered by the Supreme Court in People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], a second degree felony-murder case. A majority of the court found that a high probability of death was necessary for second degree felony murder because that is the standard required to show implied malice. In doing so it relied on substantial precedent. (Id . at pp. 626-627, 640-641; see also People v. Davenport (1985) 41 Cal.3d 247, 262 [221 Cal.Rptr. 794, 710 P.2d 861]; People v. Watson, supra , 30 Cal.3d at p. 300; People v. Poddar (1974) 10 Cal.3d 750, 757 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Spring, supra , 153 Cal.App.3d at p. 1205.)[29] I can only conclude the requirement for implied malice is that there be a high probability that death will result from the defendant's act.[30]
Thus, to sustain Acosta's conviction, I must conclude that a reasonable jury could find beyond a reasonable doubt (see People v. Johnson, supra , 26 Cal.3d at p. 576) that Acosta committed an act with a high probability it would result in death and a conscious disregard for the risk involved. (People v. Watson, supra , 30 Cal.3d at pp. 296-297, 300.)[31] Our first task is to identify "the risk involved."
Relying on People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the Attorney General asserts the risk is that to human life in general. In Albright the court rejected the defendant's claim that the evidence must show he consciously disregarded the risk to the life of the ultimate victim. The court reasoned: "Nowhere in its opinion did the [court in People v. Watson, supra , 30 Cal.3d 290] suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. [Citations.]" (Id . at p. 887, fn. omitted.)
The result in Albright was correct. The suicidal defendant drove at speeds of 90 to 110 miles per hour while under the influence of alcohol, missing 3 cars but striking the last and killing the occupant. There was no requirement that he consciously disregard the safety of the actual victim to be guilty of murder. But if the Albright court meant to say he was liable for any death which ensued if he consciously disregarded the life of anyone , I respectfully disagree. I review the cases and authorities relied upon in Albright to discern the basis for the court's statement.
The first case cited was a decision by this court, People v. Spring, supra , 153 Cal.App.3d 1199. There, we said, "Malice aforethought neither presupposes nor requires any ill will or hatred of a particular victim." (Id . at p. 1204.) But the facts involved a direct physical assault by the defendant upon the victim. The emphasis was upon the absence of an ill will requirement, not the culpability of a defendant whose assault fells an unexpected victim.
Likewise, similar statements in People v. Poddar, supra , 10 Cal.3d at pages 759-760 and People v. Conley (1966) 64 Cal.2d 310, 321-322 [49 Cal.Rptr. 815, 411 P.2d 911] were general in nature and directed to diminished capacity issues. People v. Marcy (Colo. 1981) 628 P.2d 69, an out-of-state case, involved a man who shot his wife. The statement that ""extreme indifference to human life," by definition, does not address itself to the life of the victim, but to human life generally,'" was quoted as part of a discussion distinguishing Colorado's extreme indifference murder from an intentional killing. (Id . at p. 76.)
The only case cited in People v. Albright, supra , 173 Cal.App.3d 883 which dealt with a "nonspecific" victim was People v. Stein (1913) 23 Cal.App. 108 [137 P. 271]. (173 Cal.App.3d at p. 887.) There, the drunken defendant, apparently angered by noise emanating from an electric piano at the hotel where he was staying, ran into the room and fired five shots into the assembled crowd, killing a man.[32] In affirming the judgment, the court opined, "The deliberate and unnecessary discharging of a gun into a multitude of people, with an utter disregard of the consequences of the act, whereby human life is destroyed, is murder, and malice will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired. [Citation.]" (23 Cal.App. at pp. 114-115, italics added.)
The statement of law is correct. If the defendant had "malice," in either the legal or informal sense, against the ultimate victim, the logical conclusion would be that the killing was intentional and done with "actual" malice. (Pen. Code, § 188.) But in both People v. Stein, supra , 23 Cal.App. 108 and People v. Albright, supra , 174 Cal.App.3d 883, the ultimate victim came from that group which his reckless act directly put at risk. In Stein it was the crowd in the piano room; in Albright it was motorists on the street. Factually, neither of these cases can stand for the proposition that if a defendant acts recklessly toward a discernable high risk group, he is strictly liable for a death which might occur outside the group.
Under the definition of implied malice, the defendant's conduct must carry a high probability of death. It is that risk which the defendant must consciously disregard and which must result in the death . Any other interpretation would allow a defendant to be held culpable for murder based upon a death which was barely foreseeable,[33] and which had no conscious disregard associated with it.
Our Supreme Court has not countenanced such a result. In People v. Caldwell, supra , 36 Cal.3d 210, the defendant claimed that affirming his vicarious liability murder conviction[34] would result in a "cleavage between culpability and criminal liability . . . ." (Id . at p. 223.) The court responded that "a common sense recognition of the idea that an act should be considered in the light of its natural and foreseeable results when they occur [citation] does not preclude inquiry into the felons' subjective knowledge of the likely result of their actions; rather, it informs the inquiry. The proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct which it is highly probable (not merely foreseeable) will result in death, evincing a conscious disregard of human life. [Citations.]" (Ibid .)[35]
The victim in Caldwell , an accomplice of the defendants as, along with the defendants, a felon who resisted capture by a display of arms, and within the group which faced a high probability of death. The victims here were not. The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to "be there." There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death.[36] No juror could have reasonably found to the contrary.
Furthermore, there is no evidence Acosta had a conscious disregard for any risk to the helicopters. Although he stated he knew his conduct was dangerous "to the bone," nothing connected the statement to the aerial surveillance. His knowledge that there were helicopters involved in the pursuit does not suffice. In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable.[37]
III
Amicus curiae argues the prosecution's special instruction on the issue of proximate causation was erroneous. Taken together, however, the instructions adequately advised the jury.[38]
The trial court gave four instructions on proximate cause. One was a modified combination of CALJIC No. 3.41 (5th ed. 1989 pocket pt.), and No. 8.56 (5th ed. 1988) and discussed concurrent casues and proximate cause in general.[39] The other three dealt with the concept of intervening causes. The first two were submitted by Acosta and the third by the prosecution.[40]
Jury instructions must be read together and their correctness determined from the entire charge given, not from parts of an instruction or one instruction alone. (People v. Burgener (1986) 41 Cal.3d 505, 538-539 [224 Cal.Rptr. 112, 714 P.2d 1251]; People v. Talamantez (1985) 169 Cal.App.3d 443, 454 [215 Cal.Rptr. 542].) The prosecution's special instruction cannot be considered in a vacuum. Through all of the instructions, the court properly explicated the concepts of proximate cause: actual cause, substantial factor, concurrent cause, intervening cause and extraordinary results. The court advised the jury to exonerate Acosta if it found the helicopter collision to be highly unusual or extraordinary. Amicus curiae does not contend the other proximate causation instructions were erroneous or deficient. At worst, the prosecution's instruction was superfluous.
The language of the prosecution's instruction was taken, almost verbatim, from four cases. (People v. Pike, supra , 197 Cal.App.3d at pp. 747, 749; People v. Armitage, supra , 194 Cal.App.3d at pp. 420-421; People v. Harris, supra , 52 Cal.App.3d at p. 427; People v. Hebert (1964) 228 Cal.App.2d 514, 521 [39 Cal.Rptr. 539].) Although the instructions were not stated in the simplified terms I have set forth, they were ample and cogent.
IV *
[Text omitted.]
The judgment is reversed on the murder counts and is affirmed in all other respects.[43]
CONCUR BY: MOORE (In part) CROSBY (In part)
DISSENT BY: MOORE (In part) CROSBY (In part)
DISSENT
MOORE, Acting P. J., Concurring and Dissenting.
I dissent. Once again, the lead opinion of this court expresses its antipathy with the concept of implied malice by ignoring Supreme Court precedent. In People v. Dellinger (1989) 49 Cal.3d 1212 [264 Cal.Rptr. 841, 783 P.2d 200], the Supreme Court reversed this court, holding the "wanton disregard for human life" definition of implied malice, while not as comprehensible as the "conscious disregard for human life" standard, was equivalent to the latter test and adequately conveyed to a jury the requirement that the defendant subjectively realize his or her conduct presents a life-threatening risk to others. (Id . at pp. 1215, 1219-1221.) The court specifically approved the definition of implied malice contained in the most recent revisions of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.). (49 Cal.3d at p. 1222.) Nonetheless, the lead opinion now wants to create a new definition of implied malice and then employ it to conclude the evidence does not support appellant's conviction for murder. Justice Crosby's concurrence and dissent finds no criminal liability at all because the victims were in aircraft, not ground units.[1]
With respect to the other issues presented in this case, I concur in the result, though not the lead opinion's reasoning concerning the sufficiency of the evidence and instruction of the jury on proximate cause. I also agree appellant's postarrest statements were properly admitted at trial. Finally, I would conclude the lower court's sentence was proper. The judgment should be affirmed in its entirety.
I. Proximate Cause
I agree the evidence supports the jury's finding appellant proximately caused the victims' deaths. But I find the lead opinion's creation of a new test for proximate cause unnecessary and inappropriate. I also conclude the lower court's instructions on proximate cause were correct.
"The question whether defendant's acts or omissions criminally caused the victim's death is to be determined according to the ordinary principles governing proximate causation. [Citations.] Proximate cause of a death has traditionally been defined in criminal cases as 'a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.' [Citations.]" (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)
Negligence on the part of the victim or another will not necessarily break the chain of causation. (People v. Armitage, supra ,194 Cal.App.3d at p. 420; People v. Harris (1975) 52 Cal.App.3d 419, 426 [125 Cal.Rptr. 40].) "Although defendant's own unlawful act must be a proximate cause of the death, negligence on the part of the victim is not a defense to criminal liability. [Citations.] Moreover, defendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle. [Citations.] . . . [P] A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '(1) The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. (2) The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , at pp. 426-427.)
The present case is analogous to prior cases. In People v. Harris, supra , 52 Cal.App.3d 419, the Court of Appeal reversed the dismissal of a vehicular manslaughter prosecution where a police car pursuing defendant in a high speed chase collided with another vehicle killing one of its passengers. "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase." (Id . at p. 427.)
In People v. Pike (1988) 197 Cal.App.3d 732 [243 Cal.Rptr. 54], the Court of Appeal affirmed a vehicular manslaughter conviction that arose when two police cars pursuing the defendant in a high-speed chase collided resulting in the death of one of the officers. The evidence reflected the deceased officer's negligence contributed to the collision. (Id . at pp. 748-750.) Citing Harris , the court stated: "Defendant's . . . acts consisted of his seeking to elude the pursuing law enforcement officers by charging through traffic at extremely high speeds. . . . The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" (Id . at pp. 749-750.)
I fail to see any significant difference between Pike, Harris and this case. Three persons died when two police vehicles collided during a nighttime, high-speed vehicle pursuit between contiguous cities located in a densely populated area. The pursuit arose when appellant chose to flee rather than submit to a detention by two police officers.
The mere fact the collision involved aircraft rather than ground vehicles is a distinction without a difference. The use of helicopters by the police is well known; their advantage in assisting ground units to locate and pursue a fleeing vehicle is obvious. Given the route chosen by appellant, it was foreseeable police helicopters from different cities would participate in the chase. Furthermore, appellant knew that more than one helicopter was involved in the chase. The possibility that during the nighttime chase one of the helicopter pilots might negligently operate his craft and thereby cause a midair collision was as foreseeable as the negligent operation of the police cars in Pike and Harris .
Both the lead opinion and Justice Crosby's opinion suggest the helicopter collision was an "extraordinary" event, noting research has not unearthed any prior case involving a similar incident. (Lead. opn., ante , at pp. 1380, fn. 3; 1389; 1391, fn. 27: separate opn. of Crosby, J., post , at p. 1408.) But this case does not present the first recorded collision between two aircraft while in flight. Over the past several years there have been several incidents of either midair collisions or "near misses" between aircraft. Furthermore, these incidents occurred in routine flight operations. Indeed, many experts have expressed a concern that the potential for midair collisions between aircraft is increasing. If such accidents occur between aircraft engaged in routine operations, it should come as no surprise that two police helicopters participating in the nighttime pursuit of a fleeing motorist might also collide with each other.
The mere fact a midair collision between two helicopters has never occurred before does not defeat the existence of proximate cause. In Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36], defendant radio station conducted a contest where listeners could win prizes by being the first to locate a radio personality at specified locations in the Los Angeles area. During the contest, two participants in the contest were following the radio personality. While maneuvering for position, the two participants forced plaintiffs' decedent's car onto the center divider where it overturned. Plaintiffs successfully sued the participants and radio station for wrongful death. The station appealed. Claiming it owed no duty to the decedent because of its conduct, the station argued the accident was not foreseeable because there had been no similar prior injury.
The Supreme Court affirmed, rejecting the station's argument. "Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. 'The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.' [Citation.] Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts." (Weirum v. RKO General, Inc., supra , 15 Cal.3d at p. 47.)
This case presents an analogous situation. While Weirum involved the question of a defendant's duty to exercise due care, the test of foreseeability is the same where the issue is proximate cause. (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1159 [221 Cal.Rptr. 675]; Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 542 [6 Cal.Rptr. 65]. See also Maupin v. Widling (1987) 192 Cal.App.3d 568, 576 [237 Cal.Rptr. 521]; Premo v. Grigg (1965) 237 Cal.App.2d 192, 195 [46 Cal.Rptr. 683]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 751, p. 90.)
The events leading up to the helicopter collision were set in motion by appellant's decision to flee from the police. It was predictable that, in response, the police would pursue appellant and use whatever means available to them to locate and capture him. The possibility that during the chase the pursuing police vehicles might be operated in a negligent manner thereby causing a collision was sufficiently foreseeable to establish appellant's conduct as the proximate cause of the accident. Therefore, I conclude the evidence is sufficient to support the jury's finding of proximate cause.
II. Implied Malice
The lead opinion holds implied malice requires proof the defendant committed an act with a high probability it would result in death. (Lead opn., ante , pp. 1391-1392, 1393-1394.) Furthermore, the lead opinion concludes the persons killed in the helicopter collision were not within the class of persons who faced a high probability of death from appellant's conduct. (Lead opn., ante , p. 1394.) This new standard is unsupported by any authority and contrary to recent decisions of the Supreme Court.
In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held a defendant who, while intoxicated, drove a car at excessive speeds through city streets nearly colliding with other vehicles before striking and killing one motorist, could be prosecuted for second degree murder based on implied malice. (Id . at pp. 299-301.) In explaining the concept of implied malice, the court referred to two definitions of the term. "We have said that second degree murder based on implied malice has been committed when a person does '"'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life'" . . . .' [Citations.] Phrased in a different way , malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (Id . at p. 300, italics added.)
In People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], the Supreme Court granted review in a case from this court to consider the question of whether a defendant could be prosecuted for second degree felony murder where the victim died after ingesting cocaine furnished to her by the defendant in violation of Health and Safety Code section 11352. The trial court concluded the statute could be violated in ways that would not constitute an inherently dangerous felony and dismissed the murder charge. On appeal, this court affirmed that ruling. (Id . at p. 619.)
In a badly divided decision, the Supreme Court reversed this court's decision and concluded that, while the elements of a crime must be viewed in the abstract to determine whether it is an inherently dangerous felony (49 Cal.3d at pp. 620-622), since section 11352 had no "primary element" a court should focus on the defendant's furnishing cocaine in deciding whether the offense was inherently dangerous. (Id . at pp. 622-625, 627-628.)
For guidance, the court then considered the meaning of the phrase "inherently dangerous to life." In this context, Justice Kennard's lead opinion stated: "Implied malice, for which the second degree felony-murder doctrine acts as a substitute, has both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' [Citation.] [P] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed 'an act, the natural consequences of which are dangerous to life' [citation], thus satisfying the physical component of implied malice. [P] The definition of 'inherently dangerous to life' in the context of the implied malice element of second degree murder is well established. An act is inherently dangerous to human life when there is 'a high probability that it will result in death.' [Citations.] [P] We therefore conclude by analogy to the established definition of the term 'dangerous to life' in the context of the implied malice element of second degree murder [citation] that, for purposes of the second degree felony-murder doctrine, an 'inherently dangerous felony' is an offense carrying 'a high probability' that death will result. . . ." (49 Cal.3d at pp. 626-627. Fns. omitted.)
Justices Mosk, Broussard and Panelli concurred in the definition of what constitutes an inherently dangerous felony. (49 Cal.3d at pp. 640-641.) No member of the court questioned or criticized Justice Kennard's definition of implied malice.
Three and one-half months later, the Supreme Court, by a six-to-one vote, again reversed a decision by this court in People v. Dellinger, supra , 49 Cal.3d 1212. The defendant was convicted of the second degree murder of his stepdaughter, a two-year-old infant, who died as a result of a blow to her head and the ingestion of cocaine. At trial, the lower court instructed the jury on implied malice using the 1983 version of CALJIC No. 8.11 (4th ed. pocket pt.) which contained both of the definitions stated in People v. Watson, supra , 30 Cal.3d at page 300, connected by the disjunctive word "or." Defendant challenged the use of the "wanton disregard for human life" definition and this court reversed, concluding that definition was confusing and failed to convey the requirement a defendant subjectively appreciate the life-threatening risk his conduct posed to the victim. (49 Cal.3d at p. 1217.)
The Supreme Court granted review and reversed the decision of this court. First, the court concluded the "wanton disregard for human life" definition adequately conveyed that the defendant must have a subjective appreciation of his conduct's life-threatening risk. (People v. Dellinger, supra , 49 Cal.3d at pp. 1217-1221.) In so ruling, the court noted "the two definitions of implied malice which [had] evolved . . . articulated one and the same standard." (Id . at p. 1219.)
Nonetheless, Dellinger concluded the "wanton disregard for human life" definition had become "superfluous," and "[t]he better practice in the future is to charge juries solely in the straight-forward language of the 'conscious disregard for human life' definition of implied malice." (People v. Dellinger, supra , 49 Cal.3d at p. 1221.) The court then considered the 1988 revision of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) which employs only the "conscious disregard for human life" test and stated: "We approve of this newly revised implied malice instruction, and agree with the CALJIC committee's conclusion that the 'conscious disregard for human life' definition, standing alone, is 'more comprehensible to the average juror.' [Citation.]" (Id . at p. 1222.) A few months later, the Supreme Court reaffirmed this holding in People v. Douglas (1990) 50 Cal.3d 468, 515-516 [268 Cal.Rptr. 126, 788 P.2d 640].
The foregoing cases contradict the attempt by the lead opinion to redefine implied malice. Its author derives the requirement that the prosecution must prove the defendant committed an act with a high probability it would result in death from People v. Patterson, supra , 49 Cal.3d 615. But that case involved the felony-murder doctrine. It is axiomatic that in a murder prosecution based upon a felony-murder theory, independent proof of malice is not required because it is not an element of the offense. (People v. Dillon (1983) 34 Cal.3d 441, 465, 474-476 [194 Cal.Rptr. 390, 668 P.2d 697].)
Adding a high probability of death requirement to the present "conscious disregard for life" definition of implied malice is absurd. Both Watson and Dellinger make patently clear the "wanton disregard for human life" and "conscious disregard for life" definitions are equivalent. Therefore, the present definition of implied malice found in CALJIC Nos. 8.11 and 8.31, which was read to the jury in this case, properly defined the concept. Adding the high probability of death requirement to the "conscious disregard for life" definition is merely redundancy.
The same issue was recently considered by Division One of this court in People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146]. There, the defendant was convicted of second degree murder based on his assisting a person to commit suicide. On appeal, defendant argued the current versions of CALJIC Nos. 8.11 and 8.31 were erroneous because they referred to an act "The natural consequences [of which] are dangerous to human life," and not an act "involving a high degree of probability that it will result in death . . . ." Citing Watson and Dellinger , Division One stated: "Moreover, contrary to Cleaves's suggestion, Supreme Court precedent does not establish that the term 'high probability of death,' as opposed to the phrase 'dangerous to human life,' has been utilized as the pivotal terminology to define implied malice. Rather, the two phrases have been used as alternative definitions for the same concept. . . . [P] Cleaves has cited no authority which requires that implied malice be defined with the phrase high probability as opposed to dangerous to human life. The phrases can be viewed as synonymous i.e., an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death. . . ." (229 Cal.App.3d at pp. 377-378.)
The lead opinion attempts to avoid the foregoing by concluding "the focus of the court in Dellinger was only upon the use of 'conscious disregard for human life' in place of 'wanton disregard for human life.' The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. 'It is axiomatic that cases are not authority for propositions not considered.' [Citations.]" (Lead opn., ante , p. 1393, fn. 30.)
However, Dellinger made clear the Supreme Court's position concerning the definitions of implied malice. "Although we hold that the 'wanton disregard for human life' definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the 'subjective awareness' requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge. The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction that malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citations.]" (People v. Dellinger, supra , 49 Cal.3d at p. 1215.)
Later in the opinion, the court repeats this conclusion and expressly approves the most recent revisions of CALJIC Nos. 8.11 and 8.31 which incorporate only the "conscious disregard for life" definition. (49 Cal.3d at pp. 1221-1222.) Subsequent appellate decisions have employed the revised definition of implied malice without finding it necessary to add the "high probability of death" requirement. (See People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr. 656]; People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498]; People v. Butler * (Cal.App.)) In light of the Supreme Court's repeated approval of the current implied malice definition, the lead opinion's contrary reading of Dellinger is but another manifestation of its author's revulsion for implied malice.
I also reject the lead opinion's conclusion the victims were not within the zone of danger created by appellant's conduct. The opinion asserts "The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to 'be there.' There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death. . . ." (Lead opn., ante , at p. 1396, fn. omitted.) This analysis merely employs the concept of proximate causation under the guise of implied malice.
In People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the court rejected a claim the evidence must show the defendant encountered a risk knowing it posed a high probability of danger to the life of the ultimate victim. "Nowhere in its opinion did the Watson court suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson , whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. . . ." (Id . at p. 887. fn. omitted.)
The lead opinion questions the holding in Albright arguing it is erroneous to conclude a defendant would be "liable for any death which ensued if he consciously disregarded the life of anyone . . . ." (Lead opn., ante , at p. 1394.) But Albright was concerned with the element of malice, not proximate cause. The reasoning employed in that case assumed the defendant had proximately caused the victim's death. Here, as well, the jury was required to decide whether appellant proximately caused the victims' deaths and found that he did. Furthermore, the lower court fully and adequately instructed them on the subject and the lead opinion concedes the evidence supports the jury's finding on proximate causation.
I also conclude the evidence supports the jury's finding appellant acted with implied malice. After consuming alcohol, cocaine, and heroin, appellant took the police on a 50-mile chase through a highly urban county, exceeding the speed limit, driving the wrong way, driving with his lights off, ignoring traffic control devices, making illegal turning movements, colliding with one vehicle and nearly causing several other accidents. He admitted he knew police vehicles, including helicopters, were pursuing him, and that his conduct was dangerous at the time, but defiantly continued driving in the same fashion anyway.
Appellant frequently drove on the wrong side of roads during the chase, ignored traffic control devices, and even left the road where necessary to skirt other traffic. Appellant slowed his vehicle only where it was necessary to negotiate a turn or steep grade, or because of heavy traffic, not in deference to the health and safety of his fellow motorists. His attempts to warn other drivers by flashing the Pulsar's headlights was, at best, only a minimal effort to avoid collisions. Contrary to appellant's claim, he crossed and recrossed freeway traffic lanes on several occasions during the chase.
The judgment should be affirmed. [2]
CROSBY, J., Concurring and Dissenting.
Whether the defendant may be held criminally culpable for the tragic deaths in this case is the key issue before us. Justice Wallin says yes, but not for murder. Justice Moore says yes and for murder. I disagree with both because the law does not assign blame to an otherwise blameworthy actor when neither the intervening negligent conduct nor the risk of harm was foreseeable.[1] (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210-211 [186 Cal.Rptr. 847]; People v. Hebert (1964) 228 Cal.App.2d 514, 520 [39 Cal.Rptr. 539].)
Or, as Justice Cardozo put it, "We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences.[2] Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253].) The occupants of these helicopters were surely not "within the range of apprehension" of a fleeing criminal on the ground.[3]
To be sure, defendant represented a threat to everyone traveling the same roads and would have been responsible for any injury directly or indirectly caused by his actions in those environs; but to extend that responsibility to persons in the air, whose role was merely to observe his movements, a simple enough task in far speedier helicopters, defies common sense.[4] It was perfectly foreseeable that someone would be hurt on the ground via some sort of causal chain connecting to defendant's conduct; the opposite is true of the airborne observers. They were not in the zone of danger in this case by any stretch of the imagination, and the manner and circumstances of the collision could hardly have reasonably been foreseen. Indeed, the lead opinion admits no similar accident has ever occurred anywhere according to our own research, as well as the trial expert. Although less remote than a dispatcher suffering a coronary, perhaps, this was a "highly extraordinary result" (lead opn., ante , p. 1388) by any measure and, properly viewed, beyond the long arm of the criminal law.[5]
I do not address the implied malice issue, except to concur in the result reached in the lead opinion and to note that its resolution there appears entirely inconsistent with the conclusion reached in the proximate cause discussion. For the reasons noted above, I would reverse with directions to dismiss the charges based on the helicopter collision.[6]
[2] The pilot of the Newport Beach helicopter also testified that the correct procedure in changing the lead helicopter is for the helicopter relinquishing the lead to make a gradual climbing turn, stay in radio communication, and keep a safe distance away.
[3] Our research yielded no published civil or criminal case nationwide which involved a two-helicopter collision.
[4] But see Perkins and Boyce, Criminal Law (3d ed. 1982) pages 776-777, cautioning against use of tort law causation cases to determine the outcome in criminal cases where different factors and interests come into play. (See also 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.12, pp. 397-398.)
[5] For example, in People v. Scola, supra , 56 Cal.App.3d 723, the court stated that the prosecution's burden of showing proximate cause is met "if the state produces evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the accident. [Citations.]" (Id . at p. 726.) Under the facts of that case, the statement was correct because there was no intervening cause and the resulting harm was not extraordinary. But, as I shall discuss, it would be incorrect to infer that the prosection need never show more.
[6] The American Law Institute has urged the use of "legal cause" instead. (Perkins & Boyce, supra , at p. 775.) Although there is some merit to its arguments, I abide with the traditional term, "proximate cause."
[7] A tricky situation is presented where two independent actors each inflict wounds which would alone be fatal. Perkins and Boyce deal with the problem by reasoning that but for the individual act of each, the death would not have occurred as it did . (Perkins & Boyce, supra , at p. 773.) LaFave and Scott submit that a sine qua non analysis does not work, but actual cause may be found if the act was a substantial factor in the death. (1 LaFave & Scott, supra , at pp. 394-395.)
Although the approach of Perkins and Boyce is somewhat artificial, I prefer it over that of LaFave and Scott. It could be argued that a cause is not substantial if the victim would have died anyway. And, as I shall discuss, the substantial factor issue is best reserved for exclusion from culpability; i.e., "but for" causes are not sufficient unless they are a substantial factor in the harm.
Under both approaches the result is the same. An actor who delivers a deadly blow will suffer the consequences even though another independent deadly force is also applied, a result in keeping with the use of proximate cause analysis to assign appropriate culpability.
[8] I will consider cases where there is an intervening cause separately, as the commentators have. Arguably, an independent intervening cause could be explained by saying it rendered the defendant's act "insubstantial." However, the traditional approach has been to determine only whether the defendant's act is substantial in the abstract or in comparison with a contributory or concurrent cause. If it is not, the analysis goes no further. If it is, the question becomes whether there is an intervening cause which should relieve the defendant of responsibility. (Perkins & Boyce, supra , at pp. 790-823; 1 Witkin & Epstein, supra , at pp. 148-151; 1 LaFave & Scott, supra , at pp. 406-411, 413-414; see also Rest.2d Torts, § 435 et seq., pp. 449 et seq.)
[9] If the actors are acting in concert, both would be culpable using an aiding and abetting theory, even if only one directly caused the death. (See People v. Ross (1979) 92 Cal.App.3d 391, 400-401 [154 Cal.Rptr. 783] [defendant also culpable on aiding and abetting theory]; 1 LaFave & Scott, supra , at p. 396.)
[10] For example, in People v. Caldwell (1984) 36 Cal.3d 210 [203 Cal.Rptr. 433, 681 P.2d 274], the Supreme Court found the provocative conduct of two of the defendants in resisting apprehension was a substantial factor in comparison to the threatening behavior of a codefendant who was eventually killed by the police. Perkins and Boyce give as an example two actors who independently inflict knife wounds upon the victim, one of which severs the jugular while the other barely breaks the skin. Although technically a concurrent cause, the latter is insubstantial. (Perkins & Boyce, supra , at p. 779.) However, if a cause is "substantial," it will be treated as a proximate cause even if there is another concurrent or contributory cause. (People v. Ross, supra , 92 Cal.App.3d at pp. 400-401 [defendant brought victim to room and helped tie him before codefendant beat him and set him on fire]; People v. Vernon (1979) 89 Cal.App.3d 853, 864 [152 Cal.Rptr. 765] [defendant participated in beating victim to death]; see also 1 LaFave & Scott, supra , at pp. 394-396 [suggesting the substantial factor test is only appropriate in concurrent cause cases].)
Perkins and Boyce treat "contributory negligence" of the victim or a third party as a contributory cause. (Perkins & Boyce, supra , at pp. 782-787, but see p. 787 [discussing third party negligence as intervening].) "Contributory negligence" can manifest itself when victims are negligent in escape efforts or are involved in automobile accidents, or when third parties render defense or treatment. Although it is a rather fine distinction, the approach which analyzes such acts as intervening causes, which I discuss below, makes better sense, at least when they are done in response to an act of the defendant. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim drowned in attempt to swim to shore after drunken defendant capsized the boat]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [officer pursuing defendant at great speeds involved in accident killing victim]; Perkins & Boyce, supra , at p. 809 [discussing a contributory cause as intervening.)
[11] I have noted the potential mischief in the statement in People v. Scola, supra , 56 Cal.App.3d at page 726, that the prosecution meets its burden by producing "evidence from which it may be reasonably inferred that [the defendant's] act was a substantial factor in producing the accident." In cases with a question of intervening cause, the analysis does not stop at that point unless intervening cause issues are subsumed under the substantial factor test. (See fn. 7, ante .)
[12] Perkins and Boyce also give the example of a wife who is forced out into freezing weather by her husband, and opine that the action of the husband comes to a point of rest when the wife refuses an opportunity to take shelter at her father's residence. They eschew using the "contributory negligence' of the wife" as the explanation for the lack of proximate causation, reasoning that contributory negligence is not a defense to the prosecution. (Id . at p. 781, fn. 74.)
I part company with this analysis. The husband's act has not "come to rest in a position of apparent safety," albeit only due to the wife's affirmative decision not to go inside her father's house. And, although the principle that the victim's contributory negligence is not a defense is frequently quoted in California cases (see, e.g., People v. Pike, supra , 197 Cal.App.3d at pp. 747-748; People v. Armitage, supra , 194 Cal.App.3d at p. 420; People v. Harris, supra , 52 Cal.App.3d at p. 426; CALJIC No. 8.56), it is not applicable, as phrased, in a proximate cause analysis.
Contributory negligence involves the concept of determining civil responsibility based upon lack of care by the parties. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809-811 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Almost by definition it would not be a defense to a criminal action. Even so, it deals with a state of mind, not causation. As I shall discuss, its only relevance is in determining the foreseeability that an intervening act, independent of the defendant, will cause harm.
Thus, Perkins and Boyce's example is better explained by concluding the wife's refusal of shelter in freezing weather was the extraordinary end produce of the husband's action. If this example is excluded, the "comes to rest" concept can be categorized as a corollary of the substantial factor rule.
[13] Perkins and Boyce treat the activation of a latent condition as a dependent intervening cause. (Perkins & Boyce, supra , at p. 792.) Although their approach is plausible, I prefer to treat such situations as the exacerbated direct results of the defendant's acts. (See 1 Witkin & Epstein, supra , at pp. 147-148.)
[14] Criticizing the use of this term, Prosser and Keeton describe it as "the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlikely, . . . the cock-eyed and far-fetched . . . ." (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 299.) They point out that the limitation, coupled with the principle that the exact result of the actor's conduct need not have been foreseen or foreseeable (1 Witkin & Epstein, supra , at p. 150), produces confusion and varied results. (Prosser & Keeton, supra , at pp. 299-300.)
Nevertheless, there is a need for some flexibility and common sense in the determination of proximate cause. (Perkins & Boyce, supra , at pp. 776-777.) Where there is flexibility in any legal standard, it will invariably be applied with some inconsistency. But no court or commentator of which I am aware has argued for absolute liability for all directly caused results.
To see why, I need only hypothesize that the excitement of the Acosta pursuit triggered a fatal heart attack in a police dispatcher. Acosta's conduct would be a direct and substantial factor in it, but I doubt any court would hold the conduct to be the proximate cause of the death. The only analytical route to absolve Acosta would be to find the heart attack was too extraordinary a result to merit culpability. (Compare People v. Stamp, supra , 2 Cal.App.3d 203 [defendant directly threatened clerk with a gun].)
[15] The refusal to allow "contributory negligence" to be a bar to a proximate cause finding need not be the product of any mechanical policy rule. It can be grounded in the notion that it is not "abnormal" for people to react less "reasonably" under stress than if the stress were not present. For purposes of ascribing causal responsibility it may be said that a negligent or foolish response is "normal."
To the extent that a dependent intervening cause is thought to "directly" carry through the act of the defendant to a harmful result, this analysis comports well with the rule that a defendant's act is the proximate cause of any harm caused directly by his act unless the result is "highly extraordinary." It also allows the court to find that a negligent, but highly extraordinary response precludes a finding of proximate cause, while a reckless but predictable response does not. (See, e.g., People v. Armitage, supra , 194 Cal.App.3d at p. 421 [victim's reckless reaction was not "wholly abnormal"]; compare Mull v. Ford Motor Co. (2d Cir. 1966) 368 F.2d 713 [negligent driving by taxi driver superseded negligent design and manufacture of taxi]; Batts v. Faggart (1963) 260 N.C. 641 [133 S.E.2d 504] [negligence of second driver superseded accident caused by first driver].) The focus is properly on the objective conditions present at the time the defendant perpetrated the causal act and the predictable, albeit sometimes unreasonable, responses of human beings to them. (See Perkins & Boyce, supra , at p. 809; 1 LaFave & Scott, supra , at pp. 407-408.)
[16] Of course, this is a restatement of the principle that the defendant is culpable if his direct cause is a substantial factor in the harm, even if there is a concurrent cause.
[17] Although this statement is cogent, it is unfortunate the last sentence falls back into the concept of foresight from the perspective of a reasonable person. The focus should remain solely on the probability of the result under the circumstances.
[18] Ultimately, law involves the attempt to deal with life on paper. I adhere to the principle that until and unless humans can use language precisely to deal with every problem and situation, some amount of vagueness in legal standards is necessary and desirable. It allows triers of fact to use valid human instincts to reach the correct result, even when language cannot adequately describe the path. (See Christie, Vagueness and Legal Language (1964) 48 Minn.L.Rev. 885.)
[19] The Model Penal Code takes a similar approach, focusing on whether the result is "too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense." (Model Pen. Code, § 2.03(2)(b).) LaFave and Scott also appear to look to the extraordinary nature of the result in determining causal responsibility, although they discuss it in terms of foreseeability. (1 LaFave & Scott, supra , at pp. 390, 396-397, 400, 402-405, 407-415.)
[20] I reach this conclusion with due regard to LaFave and Scott's observation that proximate cause should not be found as readily in non-intentional crimes, i.e., those involving recklessness or negligence. (1 LaFave & Scott, supra , at pp. 398-399.)
[21] As I have mentioned (see fn. 15, ante), reckless conduct is not "highly extraordinary" per se. It depends upon the circumstances. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420.) I need not deal with that problem here. The Costa Mesa pilot was negligent, but there was no evidence he was reckless. No statements show his state of mind. Turner opined he violated an FAA regulation prohibiting "reckless and careless " flying without specifying the precise standard of care the pilot failed to meet. Substantial evidence supports the inference he was merely negligent.
[22] In People v. Pike, supra , 197 Cal.App.3d at page 750, the court concluded, "The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" And in People v. Harris, supra , 52 Cal.App.3d at page 427, the court reasoned, "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase."
Although the analyses in Pike and Harris are couched in terms of foreseeability, the reasoning is predicated upon the logical assumption that the flight of a suspect creates an appreciable probability that the police will chase, and in doing so sometimes be involved in accidents. Where helicopters are involved the probabilities are undoubtedly reduced, but remain appreciable.
[23] Despite Justice Crosby's assertion to the contrary (separate opn. of Crosby, J., post , at p. 1408, fn. 4), I specifically caution against using civil proximate cause analyses in a criminal case. (See fn. 4, ante .)
[24] The defendant's railway attendants accidentally knocked a package of fireworks from a passenger's arms while boarding a train, causing a concussive explosion which overturned scales on the platform which struck the plaintiff.
[25] Justice Crosby does not dispute that such is the case here.
[26] To use his terminology (separate opn. of Moore, J., post , at p. 1398, fn. 1), while it may become usual in the 21st century, it is unusual in the late 20th century. The automobile pursuit cases provide guidance in the analysis, but do not serve as binding precedent because the air crashes are qualitatively different, at least in terms of probability.
[27] His opinion does provide two hypothetical fact situations. (Separate opn. of Crosby, J., post , at p. 1408, fn. 4.) As to the first, more facts are necessary to determine whether the defendant was a substantial factor in the crash. The mere fact he was in an accident would probably be insufficient. As to the second, the same question arises. Further, the defendant would only be convicted if his conduct constituted at least gross negligence vis-a-vis the victim.
[28] See part III, post .
[29] Again, the commentators are in accord. (Perkins & Boyce, supra , at pp. 60, 859, 860 ["grave risk of death"; "strong likelihood"; "obvious likelihood"]; 2 LaFave & Scott, supra , at p. 200 ["very high degree' of risk"].)
[30] The Attorney General argues that the approval of CALJIC Nos. 8.11 and 8.31 in People v. Dellinger, supra , 49 Cal.3d at pages 1221-1222, mandates a contrary result because those instructions do not contain the "high probability" standard. But the focus of the court in Dellinger was only upon the use of "conscious disregard for human life" in place of "wanton disregard for human life." The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].)
The string citation of People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr.], People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498], and People v. Butler *(Cal.App.) in Justice Moore's opinion (separate opn. of Moore, J., post , at p. 1405) does not change this fact. None of those cases addressed the "high probability" issue. People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146] did so, and concluded CALJIC Nos. 8.11 and 8.31 correctly stated the law because "an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death." (Id . at p. 378.) That an act can be dangerous to human life without involving a high probability of death needs no explication. If the Cleaves court meant to say that the term "dangerous to human life" in the instruction presumes a high probability, it deals with an instructional issue not presented here because, as a matter of law, the officers in the helicopter were not exposed to a high probability of death. I hold this opinion not because of any "revulsion for implied malice" (separate opn. of Moore, J., post , at pp. 1405-1406), but because numerous references to a "high probability of death" by our Supreme Court mandate it. *Reporter's Note: Opinion D008448 deleted upon direction of Supreme Court by order dated January 30, 1991.
[31] People v. Dellinger, supra , 49 Cal.3d at pages 1217-1218 added the words "to human life" to the term "the risk involved." Although the words are proper because the risk at issue in a murder case is the risk to human life (see 1 LaFave & Scott, supra , at p. 336), they are superfluous to our analysis.
[32] I assume the "electric piano" was what I would call a player piano. Thus, I am led to believe the defendant did not shoot the piano player.
[33] Put in our terms for proximate cause, it would be a death which was "almost extraordinary."
[34] See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136-138 [145 Cal.Rptr. 524, 577 P.2d 659].
[35] Perkins and Boyce apparently agree with this approach. In speaking of the rigorous standard for implied malice, they describe an act "done with 'knowledge of such circumstances that according to common experience there is a plain and strong likelihood that' a certain type of social harm will ensue." (Perkins & Boyce, supra , at p. 859, fn. omitted, italics added.) By this, I understand them to mean that the defendant must consciously disregard the type of harm which actually ensues. For example, they recognize that "[i]n a case in which it has no bearing upon the issue of proximate cause, foreseeability [of the ensuing harm] may be a determinant of the degree of guilt, or even of the fact of guilt." (Id . at p. 813, fns. omitted.)
[36] At oral argument amicus counsel described a situation which might have qualified. Had Acosta purposely maneuvered the helicopters into tall transmission towers, high wires, or a similar hazard with apparent conscious disregard for the well being of the occupants, malice could be inferred.
[37] Justice Crosby also claims that our resolution of the malice issue "appears entirely inconsistent with the conclusion reached in the proximate cause discussion." (Separate opn. of Crosby, J., post , at pp. 1408-1409.) Not so. A nonextraordinary result for proximate cause purposes does not require a "high risk" victim; implied malice does. Similarly, Justice Crosby's concern that the victim be in a zone of danger (Palsgraf v. Long Island R. Co., supra , 248 N.Y. 339 [162 N.E. 99, 100]) properly belongs in an analysis of gross negligence as it relates to involuntary manslaughter. Because Acosta was convicted of second degree murder, I have not considered that question.
[38] Acosta's argument that the court erred in instructing on malice is moot. However, by our foregoing analysis, the court should have informed the jury that a high probability of death was required. (People v. Watson, supra , 30 Cal.3d at p. 300.) This omission would provide an independent ground for reversal.
[39] This instruction read: "To constitute murder or involuntary manslaughter or vehicular manslaughter, there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. [P] A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred. [P] There may be more than one proximate cause of a death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death if that conduct was a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death. [P] If you find that the defendant's conduct was a proximate cause of a death to another person, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death except in the event that you find that conduct to be unforeseeable."
[40] The first instruction read: "An intervening cause which breaks the chain of causation from the original act is itself regarded as the proximate cause of the death and relieves the original actor of criminal liability. [P] The test of whether an independent intervening act, which operated to produce the deaths, breaks the chain of causation is the foreseeability of that act. [P] An act is not foreseeable and thus is a superseding cause of the death if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen."
The second instruction advised: "If you find that the operation of either or both of the helicopters was so highly unusual or extraordinary as to be a superseding cause of death not reasonably foreseeable, then you must find defendant is not the proximate cause of the deaths and acquit him . . . ."
The prosecution's instruction stated: "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is dependent and not a superseding cause and will not relieve defendant of liability. The consequence need not have been a strong probability, a possible consequence which might reasonably have been contemplated is enough. The precise consequence need not have been foreseen. It is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act. An intervening act may be so disconnected and unforeseeable as to be a superseding cause, that in such a case the defendant's act will be a remote and not a proximate cause. It is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause."
[43] Of course, reversal of the murder counts for insufficient evidence precludes retrial on those charges. Acosta's claim of a cruel and unusual sentence is therefore rendered moot.
[1] While my colleague is willing to embrace the era of the automobile in the 20th century by citation to a 1928 opinion of Justice Cardozo, he is not ready to leave and enter the 21st century.
[2] To the extent my colleagues cannot agree, I am forced to agree that defendant may be retried.
[1] If despicable behavior alone were enough to affix criminal responsibility on a defendant for any remote consequence, no matter how unexpected, that would constitute the wholesale adoption of the concept of strict liability into the law of crimes. Many might view that as desirable, but that is not the law at present.
[2] (Conc. and dis. opn.) In 1928 Cardozo was not concerned with helicopter crashes or heart attacks visiting excited dispatchers. (See lead opn., ante , pp. 1385-1386, fn. 14.) But he did recognize that a wrongdoer's responsibility for an unintended injury has a limit, as the balance of the quotation reveals.
[3] Occasionally, screen protagonists, such as James Bond, do usually deliberately fell pursuing helicopters from the ground by various means. That is not the real world, thankfully; and this is not such a case in any event.
[4] A slippery concept at best, proximate cause is ultimately a judicial application of educated common sense to a given set of facts. Because the tort and criminal formulations of the term are interchangeable, if the lead opinion is correct, the driver who causes a freeway accident could be liable in tort for the crash of helicopters broadcasting traffic advisories at the scene. Such a motorist should have every reason to anticipate the arrival of aerial surveillance, but it is inconceivable that a court would find him liable for the negligence of a pilot under such circumstances. The lead opinion suggests there may be different factors involved in tort and criminal analyses of proximate cause. (Lead opn., ante , p. 1381, fn. 4.) Maybe so, but the law of crimes virtually always employs more conservative standards in fixing responsibility than does the civil law. Does the lead opinion mean to imply that this defendant is criminally, but not civilly, liable for this collision? If anything, I would think the opposite would be the case.
In some remote parts of our state, traffic laws are enforced from the air. Signs along the highway warn of this. Can an ordinary speeder be guilty of manslaughter when a police aircraft in the process of clocking him crashes because of the negligence of some third party? The theory of the lead opinion would seemingly support such a prosecution.
[5] The lead opinion makes the tautological accusation that I cite no case for this conclusion. (Lead opn., ante , p. 1391.) That, of course, is the point. If a similar case did exist, however it was decided, it would tend to undermine, not support, my view that this was a highly extraordinary accident. But the reverse is also true. My colleagues both correctly note that the first defendant to cause harm in a particular way should not necessarily be free from prosecution; but to apply that particular rule to these unusual facts is to jettison the exception for highly extraordinary events while pretending it still exists.
[6] I join in the unpublished portions of the lead opinion.
7.2.6.6.1.2 People v. Arzon 7.2.6.6.1.2 People v. Arzon
Page 156
v.
Nelson ARZON, Defendant.
Page 157
Robert M. Morgenthau, Dist. Atty., New York County by Seth L. Rosenberg, Asst. Dist. Atty., for the People.
George Sheinberg, Brooklyn, for defendant.
E. LEO MILONAS, Judge.
The defendant was indicted on September 28, 1977 for two counts of murder in the second degree and arson in the third degree after he allegedly intentionally set fire to a couch, thus causing a serious fire on the fifth floor of an abandoned building at 358 East 8th Street in New York County. The New York City Fire Department, in responding to the conflagration, arrived to find the rear portion of the fifth and sixth floors burning. The firemen attempted to bring the situation under control, but making no progress and there being no additional assistance available, they decided to withdraw from the building. At that point, they were suddenly enveloped by a dense smoke, which was later discovered to have arisen from another independent fire that had broken out on the second floor.
Although this fire was also determined to have originated in arson, there is virtually no evidence implicating the defendant in its responsibility. However, the combination of the thick smoke and the fifth floor fire made evacuation from the premises extremely hazardous, and, in the process, Fireman Martin Celic sustained injuries from which he subsequently died. Accordingly, the defendant was accused of murder in the second degree for having, "Under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of death to another person," thereby causing the death of Martin Celic, and with felony murder. The third charge of the indictment, arson, is not at issue for purposes of the instant application.
It is the defendant's contention that the evidence before the grand jury is insufficient to support the first two counts. He argues that his conduct does not fall within the contemplation of section 125.25(2) of the Penal Law in that there is no proof, first, that he was aware of and then disregarded a substantial and unjustifiable risk that someone might get killed as a result of his action and, secondly, that, in fact, such a danger existed since the building in question was "abandoned." Similarly, felony murder requires a causal link between the underlying crime and the death, a connection which, in the defendant's view, is here lacking.
There is remarkably little authority on precisely what sort of behavior constitutes "depraved indifference to human life." In the leading case on the subject, People v. Kibbe, 35 N.Y.2d 407, 362 N.Y.S.2d 848, 321 N.E.2d 773 (1974), the Court of Appeals affirmed the conviction of defendants who had abandoned their helplessly intoxicated robbery victim by the side of a dark road in subfreezing temperature, one-half mile from the nearest structure, without shoes or eyeglasses, with his trousers at his ankles, his shirt pulled up and his outer
Page 158
Clearly, an obscure or merely probable connection between the defendant's conduct and another person's death is not enough to support a charge of homicide. People v. Stewart, supra. In Stewart, the victim had been operated upon for a stab wound in the stomach inflicted by the defendant. Afterwards, the surgeon performed an entirely unrelated hernia procedure on him, and he died. According to the court, "the prosecutor must, at least, prove that the defendant's conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death . . . ." At p. 697, 389 N.Y.S.2d at p. 807, 358 N.E.2d at p. 491. In this instance, the possibility that death resulted from a factor not attributable to the defendant could not be ruled out beyond a reasonable doubt, since the patient would, in all likelihood, have survived except for the hernia operation.
Further, in order for an individual to be liable for murder, as opposed to manslaughter, it is not sufficient for him to have simply behaved in a reckless manner; it is essential that, acting recklessly, he manifested a depraved indifference to human life. People v. Poplis, 30 N.Y.2d 85, 330 N.Y.S.2d 365, 281 N.E.2d 167 (1972). In Poplis, the court decided that the defendant had been properly convicted of murder when he repeatedly administered physical beatings to his wife's three and one-half year old child. See also People v. France, 57 A.D.2d 432, 394 N.Y.S.2d 891 (1st Dept., 1977), in which the court declared that "the act must be 'perpetrated with a full consciousness of the probable consequences' . . . and certainly be one which would support the observation that 'the imminently dangerous act, the extreme depravity of mind, and the regardlessness of human life properly place the crime upon the same level as the taking of life by premeditated design' . . . ." At p. 434, 394 N.Y.S.2d at p. 893.
It is generally difficult to distinguish between conduct which is merely reckless, on the one hand, and conduct when it is reckless under circumstances evincing a depraved indifference to human life, on the other. However, having carefully examined the facts of the instant case, this court is satisfied that the evidence before the grand jury is sufficient to support the crimes charged against the defendant.
In his statement to an assistant district attorney, the defendant admitted having entered the premises at 358 East 8th Street and, at the rear of the fifth floor, having deliberately ignited the couch that started the fire. He also asserted that on the first floor he noticed three or four persons whom he believed to be "winos," and he passed a number of other people as he left. His purpose in setting the fire was, he claimed, to destroy the building so that "winos" and "junkies," who he disliked, could no longer utilize it. Therefore, the building, while abandoned, was not necessarily unoccupied, a situation of which the defendant was apparently quite aware. As for the building itself, it was a wood frame tenement house in the midst of a crowded neighborhood. A major conflagration and the fire which the defendant began was a severe one could easily have engulfed the surrounding area with considerable loss of life. The fire did, in fact, spread to a nearby structure, which was occupied. Under those circumstances, it is hardly credible that the defendant's action was not of such a magnitude as to demonstrate a wanton and depraved indifference to human life. Fire is indeed, as the People argue, non-selective and uncontrollable in its destructiveness.
Page 159
Moreover, the defendant's conduct need not be the sole and exclusive factor in the victim's death. In the standard established by People v. Kibbe, supra, and People v. Stewart, supra, an individual is criminally liable if his conduct was a sufficiently direct cause of the death, and the ultimate harm is something which should have been foreseen as being reasonably related to his acts. It is irrelevant that, in this instance the fire which had erupted on the second floor intervened, thus contributing to the conditions that culminated in the death of Fireman Celic. In Kibbe, the victim was killed when he was struck by a truck. This did not relieve the defendants in that case from criminal responsibility for his murder, as it does not absolve the defendant here. Certainly, it was foreseeable that firemen would respond to the situation, thus exposing them, along with the persons already present in the vicinity, to a life-threatening danger. The fire set by the defendant was an indispensable link in the chain of events that resulted in the death. It continued to burn out of control, greatly adding to the problem of evacuating the building by blocking off one of the access routes. At the very least, the defendant's act, as was the case in Kibbe, placed the deceased in a position where he was particularly vulnerable to the separate and independent force, in this instance, the fire on the second floor.
Consequently, the defendant's motion to dismiss the first count of the indictment is denied.
The defendant's claim that there is no evidence showing a causal connection between the arson and the concomitant death sufficient to sustain the second count is also rejected for the reasons already set forth. Thus, the motion to dismiss the felony murder charge is denied as well.
7.2.6.6.1.3 People v. Campbell 7.2.6.6.1.3 People v. Campbell
PEOPLE
v.
CAMPBELL
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert H. Cleland, Prosecuting Attorney, C. Denton Wolf, Chief Appellate Attorney, and David M. Dean, Assistant Prosecuting Attorney, for the people.
[335] Huegli & Parrish (by Sharon Parrish), for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and D.C. RILEY and C.J. HOEHN,[*] JJ.
C.J. HOEHN, J.
Defendants, Steven Paul Campbell, was charged with open murder, MCL 750.316; MSA 28.548, in connection with the suicide death of Kevin Patrick Basnaw. Following a preliminary examination in district court on March 10, 1981, defendant was bound over to circuit court for trial. Defendant moved to quash the information and dismiss the defendant on the ground that providing a weapon to a person, who subsequently uses it to commit suicide, does not constitute the crime of murder. The motion to quash was denied by the circuit court, and this Court granted leave to appeal.
The concise statement of facts is as follows.
On October 4, 1980, Kevin Patrick Basnaw committed suicide. On the night in question, Steven Paul Campbell went to the home of the deceased. They were drinking quite heavily.
The testimony indicates that late in the evening the deceased began talking about committing suicide. He had never talked about suicide before.
About two weeks before, the defendant, Steven Paul Campbell, caught the deceased in bed with defendant's wife, Jill Campbell. Some time during the talk of suicide, Kevin said he did not have a gun. At first the defendant, Steven Paul Campbell, indicated Kevin couldn't borrow or buy one of his guns. Then he changed his mind and told him he would sell him a gun, for whatever amount of money he had in his possession. Then the deceased, [336] Kevin Basnaw, indicated he did not want to buy a gun, but Steve Campbell continued to encourage Kevin to purchase a gun, and alternately ridiculed him.
The defendant and the deceased then drove to the defendant's parent's home to get the weapon, leaving Kimberly Cleland, the deceased's girlfriend, alone. Even though she knew of the plan, she did not call anyone during this period of time. She indicated she thought the defendant was saying this to get a ride home.
The defendant and the deceased returned in about 15 minutes with the gun and five shells. The deceased told his girlfriend to leave with the defendant because he was going to kill himself. He put the shells and the gun on the kitchen table and started to write a suicide note.
The defendant and the deceased's girlfriend left about 3 to 3:30 a.m. When they left, the shells were still on the table.
Steven, out of Kevin's presence and hearing, told Kimberly not to worry, that the bullets were merely blanks and that he wouldn't give Kevin real bullets. Kimberly and Steven prepared to leave.
On the way home, Kimberly asked Steven if the bullets he had given Kevin were really blanks. Steven said that they were and said "besides, the firing pin doesn't work". The girlfried indicated that both defendant and deceased were about equally intoxicated at this point. The deceased's blood alcohol was found to be .26%.[1]
The deceased's girlfriend drove herself to the defendant's home and remained there overnight. [337] The deceased's roommate, Alfred Whitcomb, arrived home at approximately 4 a.m. His testimony indicates that when he arrived home he looked for Kevin Basnaw throughout the home and was unable to find him, but he did see the suicide note on the kitchen table. He waited up about 20 to 30 minutes. The deceased did not come home, so he went to sleep on the couch.
Next morning, one Billy Sherman arrived at about 11:30 a.m. and he and the deceased's roommate found the deceased slumped at the kitchen table with the gun in his hand. Dr. Kopp, the county pathologist, listed the cause of death as suicide; self-inflicted wound to the temple. No autopsy was performed. No time of death was established.
The prosecutor and the trial court relied on People v Roberts, 211 Mich 187; 178 NW 690 (1920), to justify trying defendant for open murder. In that case, Mr. Roberts' wife had terminal multiple sclerosis. She was in great pain. In the past, she had unsuccessfully attempted suicide by ingesting carbolic acid. At his wife's request, Mr. Roberts made a potion of water and poison and placed it within her reach. Defendant Roberts was convicted of murder in the first degree.
We are not persuaded by defendant's attempts to distinguish this case from Roberts, supra.
We now consider whether the Roberts case still represents the law of Michigan, and we find that it does not. Recent cases of our Supreme Court cast doubt on the vitality of the 1920 Roberts decision.
The Roberts case, without discussion, assumed that a murder had occurred and considered only the degree of that crime. It then determined that the act of placing poison within the reach of the deceased constituted the administration of poison [338] within the meaning of 1915 CL 15192, now MCL 750.316; MSA 28.548, which provided:
"All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life."
The prosecutor argues that inciting to suicide, coupled with the overt act of furnishing a gun to an intoxicated person in a state of depression, falls within the prohibition "or other wilful, deliberate and premeditated killing".
There exists no statutory definition of the term "murder". That crime is defined in the common law.
"Homicide is the killing of one human being by another. * * * `homicide' is not a crime. In this state, it is `murder' and `manslaughter' that are crimes." People v Allen, 39 Mich App 483, 501; 197 NW2d 874 (1972) (LEVIN, J., dissenting), adopted by the Supreme Court in People v Allen, 390 Mich 383; 212 NW2d 21 (1973).
The term suicide excludes by definition a homicide. Simply put, the defendant here did not kill another person.
A second ground militates against requiring the defendant to stand trial for murder.
"Courts might well emphasize that juries can convict of murder only when they are convinced beyond a reasonable doubt that (1) the defendant intended * * * to kill * * *." People v Morrin, 31 Mich App 301, 323; 187 NW2d 434 (1971).
[339] Defendant had no present intention to kill. He provided the weapon and departed. Defendant hoped Basnaw would kill himself but hope alone is not the degree of intention requisite to a charge of murder.
The common law is an emerging process. When a judge finds and applies the common law, hopefully he is applying the customs, usage and moral values of the present day. It is noted that in none of the cases decided since 1920 has a defendant, guilty of incitement to suicide, been found guilty of murder. Instead, they have been found guilty of crimes ranging from the equivalent of negligent homicide to voluntary manslaughter.
In State v Bier, 181 Mont 27; 591 P2d 1115 (1979), the defendant was found guilty of negligent homicide where the defendant had cocked the gun and thrown it on the bed during an argument with his drunken wife.
In Persampieri v Commonwealth, 343 Mass 19; 175 NE2d 387 (1961), the defendant was found guilty of manslaughter where he loaded and gave a gun to his wife, who had previously attempted suicide, urged her to shoot herself, called her "chicken", and advised her to take off her shoes when she couldn't reach the trigger. This case is especially interesting because it shows a change of attitude by one of the courts on which the Roberts Court relied.[2]
In State v Marti, 290 NW2d 570 (Iowa, 1980), the defendant was found guilty of involuntary manslaughter when he loaded a gun, clicked the hammer twice to bring a live round into the chamber and then placed the gun uncocked within [340] the reach of his girlfriend, who was intoxicated and seriously depressed.
A number of legislatures have considered the problem and have enacted legislation which may be accepted as evidence of present day social values in this area. A number of states have made, or proposed making, incitement to suicide a crime. The penalties imposed by some of these states include:
Arkansas — 10 years Colorado — Manslaughter Florida — 15 years Maine — 1 year Minnesota — 15 years Missouri — 15 years Oregon — 10 years Wisconsin — 5 years Michigan proposed — 10 years
Incitement to suicide has not been held to be a crime in two-thirds of the states of the United States. In the states where incitement to suicide has been held to be a crime, there has been no unanimity as to the nature or severity of the crime.
Most certainly, Michigan's imposition of a mandatory life sentence, without parole, for this type of conduct stands as the most severe punishment afforded.
No Legislature has classified such conduct as murder.
Lastly, it is not clear that incitement to suicide was ever considered murder at the common law. Certainly, attempted suicide was not held to be attempted murder. Regina v Burgess, 9 Cox Crim Cas 247. (1862). Only three cases in the entire history of the United States have held such conduct [341] to be murder, one of those cases having been decided in Massachusetts.
Whether incitement to suicide is a crime under the common law is extremely doubtful.
The Court finds no unanimity of custom or usage strong enough to be given the title of "common law". What conduct constitutes the crime of incitement to suicide is vague and undefined and no reasonably ascertainable standard of guilt has been set forth.
"The United States Supreme Court has frequently ruled that juries cannot be permitted to determine criminal liability without a reasonably ascertainable standard of guilt. Absent such standards, the jury has the sort of naked and arbitrary power which is inconsistent with due process." People v Morrin, supra, 31 Mich App 329.
While we find the conduct of the defendant morally reprehensible, we do not find it to be criminal under the present state of the law.
The remedy for this situation is in the Legislature. We invite them to adopt legislation on the subject as set forth in the Michigan Proposed Criminal Code.
The trial court is reversed and the case is remanded with instructions to quash the information and warrant and discharge the defendant.
M.F. CAVANAGH, P.J., concurred.
D.C. RILEY, J., concurred in the result only.
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The prosecution contends these statements were fraud, however, the fraud, coercion or duress necessary to constitute murder would have to be practiced on the deceased.
[2] Persampieri concerned a charge of murder and the jury found manslaughter. The case is set forth as an expression of public opinion on the subject. Massachusetts cases are based on statute and are, therefore, not precedent in Michigan cases.
7.2.6.6.1.4 Stephenson v. State 7.2.6.6.1.4 Stephenson v. State
205 Ind. 141
STEPHENSON
v.
STATE.
No. 25310.
Supreme Court of Indiana.
Jan. 19, 1932.
Appeal from Circuit Court, Hamilton County; Will M. Sparks, Judge.
David C. Stephenson was convicted of murder in the second degree, and he appeals.
Judgment affirmed.
[634] John H. Kiplinger, of Rushville, Thomas Miller, of Muncie, Paul Newman, of Gary, Clarence E. Benadum, of Muncie, L. O. Hill, of Indianapolis, and Blankenbaker & Hall, of Terre Haute, for appellant.
Wm. H. Remy and Ralph Kane, both of Indianapolis, Chas. E. Cox, Dale F. Stansbury, and Edw. J. Lennon, Jr., Dep. Attys. Gen., [635] and Arthur L. Gilliom, Former Atty. Gen., for the State.
PER CURIAM.
Appellant, together with Earl Gentry and Earl Klinck, was charged with the crime of homicide by an indictment in four counts returned by the grand jury of Marion county, Ind., which indictment, omitting the formal parts, reads as follows:
"The Grand Jurors for the County of Marion and State of Indiana upon their oaths, present that David C. Stephenson, Earl Gentry and Earl Klinck, on or about the 16th day of April, A. D. 1925, at and in the County of Marion and State aforesaid, did then and there unlawfully, feloniously and with premeditated malice kill and murder Madge Oberholtzer in the manner and form and by the means following, towit: That said David C. Stephenson, Earl Gentry and Earl Klinck did then and there on the 16th day of March, 1925, wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear and against her will take possession of the body and person of her, the said Madge Oberholtzer, and did then and there wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will place her in a drawing room of a certain pullman passenger car which was then and there a part of a railroad train, which train was then and there scheduled to and did shortly thereafter depart from the city of Indianapolis for a regular trip to the City of Chicago; and said defendants did then and there wrongfully, unlawfully and feloniously, by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will restrain her of her liberty in the drawing room of said car on said train during the progress of said train to the city of Chicago until the city of Hammond, in the State of Indiana, was reached; and said defendants did unlawfully and feloniously while so holding possession of the body and person of said Madge Oberholtzer, as aforesaid, and so restraining her of her liberty in the drawing room of said car as aforesaid, upon the body and person of her, the said Madge Oberholtzer, commit an assault, and did her, the said Madge Oberholtzer, unlawfully and feloniously in a rude and insolent manner her the said Madge Oberholtzer strike, beat, bite and grievously wound with the unlawful and felonious intent her, the said Madge Oberholtzer, to ravish and carnally know forcibly and against her will; and said defendants when said train arrived at the City of Hammond at about 6 o'clock in the morning of the 17th day of March, 1925, still unlawfully and feloniously, while so holding possession of her the said Madge Oberholtzer and so restraining her of her liberty as aforesaid did cause her to depart from said car of said train and to enter the room of a hotel in said city of Hammond and to occupy a bed with said defendant Stephenson; that thereafter on the said 17th day of March, 1925, in said city of Hammond, the said Madge Oberholtzer, distracted with the pain and shame so inflicted upon her by said defendants as aforesaid, did procure and swallow into her stomach a large quantity of deadly poison, towit: Bichloride of mercury; that said defendants on said day with full knowledge that she the said Madge Oberholtzer had taken said poison as aforesaid and although requested by her so to do did unlawfully, feloniously and wilfully wholly fail and refuse to procure for or furnish to her the said Madge Oberholtzer any antidote for said poison or any attention or help from any physician or any one skilled in counteracting the effects of said poison although they and each of them were then and there fully able to procure such antidote and the help of such physician; that said defendants did, on the afternoon and night of said March 17th, still unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear holding possession of the body and person of her the said Madge Oberholtzer and restraining her of her liberty, place her in an automobile and by said vehicle did transport her back to the city of Indianapolis and did during said night and until near noon of the 18th day of March so hold possession of her body and person and restrain her of her liberty as aforesaid in a room in a garage of said defendant Stephenson, and did at all times during said return and at all times during the imprisonment of her the said Madge Oberholtzer in said garage unlawfully and feloniously wholly fail and refuse to furnish or provide for or administer to her any antidote for said poison and did unlawfully and feloniously wholly fail and refuse to procure for her or furnish to her any attention by or help from any physician or any one skilled in counteracting the effects of said poison although they said defendants and each of them were then and there fully able to procure such antidote and help from such physician; that thereafter she the said Madge Oberholtzer did at and in the County of Marion aforesaid languish and languishing did thereafter on April 14, 1925, in said County die from the effect of her wounds inflicted as aforesaid and said poison taken as aforesaid.
"And so the Grand Jurors aforesaid upon their oaths aforesaid do charge and present that said defendants did, by the manner and means aforesaid her the said Madge Oberholtzer unlawfully, feloniously and with premeditated malice kill and murder, contrary [636] to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.
"Count two. And the Grand Jurors aforesaid, upon their oaths aforesaid do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck on the 16th day of March, A. D. 1925, at and in the County of Marion and State aforesaid did then and there unlawfully, feloniously and purposely and with premeditated malice kill and murder one Madge Oberholtzer by then and there unlawfully and purposely causing to be administered to the said Madge Oberholtzer by her own hand a certain deadly poison, commonly called Bichloride of mercury which the said Madge Oberholtzer acting under fear and duress and the compulsion of said David C. Stephenson, Earl Gentry and Earl Klinck, then and there swallow into her stomach and body by which she then and there thereby died.
"And so the Grand Jurors aforesaid upon their oaths aforesaid do present and charge that David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully, purposely, feloniously and with premeditated malice, in the manner and form and by the means aforesaid the said Madge Oberholtzer, kill and murder contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.
"Count three. And the Grand Jurors aforesaid upon their oaths do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck, on the 16th day of March, 1925, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously make an assault upon the body and person of one Madge Oberholtzer, a woman of the age of twenty-eight years, and her the said Madge Oberholtzer did then and there unlawfully and feloniously touch, beat, strike, bite and wound the body and person of the said Madge Oberholtzer with the unlawful and felonious intent then and there and thereby forcibly and against her will her the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which said touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer, did then and there sicken, languish and die.
"And so the Grand Jurors aforesaid upon their oaths aforesaid discharge and present that said David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully and feloniously in the manner and form and by the means aforesaid the said Madge Oberholtzer kill and murder, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.
"Count four. The Grand Jurors aforesaid, upon their oaths aforesaid, further present that David C. Stephenson, Earl Gentry and Earl Klinck on or about the 16th day of April A. D. 1925, at and in the County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one, Madge Oberholtzer, in the manner following to wit: that they the said David C. Stephenson, Earl Gentry, Earl Klinck and each of them did then and there unlawfully, feloniously, wilfully and forcibly take possession of and assume and undertake the custody and control of the body and person of the said Madge Oberholtzer against her will, she the said Madge Oberholtzer being then and there in a weak, sick and helpless condition, and did then and there assault, beat, strike and bite and wound the said Madge Oberholtzer with the unlawful and felonious intent then and there to rape, ravish and carnally know her the said Madge Oberholtzer against her will, that by reason of said assault and wounds aforesaid, the said Madge Oberholtzer was then and there in great distress of mind and body and distracted with pain and grief and did then and there while in the throes of such bodily pain and mental grief and distraction procure and swallow a quantity of poison towit: bi-chloride of mercury, that thereupon said Madge Oberholtzer became violently ill and was then and there in need of medical treatment, attention and the services of a physician, such medical services and treatment being then and there necessary to the preservation and prolongation of the life of her, the said Madge Oberholtzer, all of which was then and there well known to the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them, and they and each of them being then and there able to provide such medical attention, services and assistance and she, the said Madge Oberholtzer being then and there weak, helpless and dependent upon the said David C. Stephenson, Earl Gentry and Earl Klinck for such medical care, treatment and services; that they the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them did then and there unlawfully, feloniously and forcibly imprison, restrain and prevent said Madge Oberholtzer from obtaining such medical assistance and services with the unlawful and felonious intent on the part of each of them to kill and murder the said Madge Oberholtzer; that due to said acts aforesaid, on the part of the defendants aforesaid, and each of them, in preventing her from obtaining such medical attention and preventing from obtaining the services of a physician she the said Madge Oberholtzer then and there languished and afterward towit: on the 14th day of April A. D. 1925, she the said Madge Oberholtzer then and there and thereby died from the effects of said poison aforesaid, and so the Grand Jurors aforesaid, upon their oaths aforesaid do say and charge that said David C. Stephenson, Earl Gentry and Earl Klinck [637] in manner and form aforesaid, did kill and murder said Madge Oberholtzer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana." Gentry and Klinck were acquitted.
The trial court sustained a demurrer to appellant's plea in abatement, overruled his motion to strike out parts of count one and four, and to quash the indictment, to all of which rulings proper exceptions were reserved. Appellant entered a plea of not guilty, and filed his motion for a change of venue from the county, which motion was sustained by the court, and the cause was sent to Hamilton county for trial. Appellant there filed a motion to be let to bail, and to require the state to elect upon which count of the indictment it would go to trial. Each of said motions were overruled and exceptions saved. During the trial, appellant twice moved to have the court set aside the submission of said cause and discharge the jury, and, at the conclusion of the state's evidence, moved for an instructed verdict in his favor, which motions the court overruled.
The court instructed the jury in writing, giving fifty-seven instructions, twelve of which were tendered by appellant, and twenty-seven given by the court of his own motion, over the objections of appellant.
The jury returned a verdict finding appellant "guilty of murder in the second degree as charged in the first count of the indictment," and fixing his punishment at life imprisonment, on which verdict judgment was entered on November 16, 1925.
Appellant filed a motion to set aside and vacate the judgment; that he be held in the Hamilton county jail pending the preparation and filing of his motion for a new trial; motion in arrest of judgment; motion for a new trial; each of which was overruled by the court.
Appellant by his first, second, third, and fourth assignments of error presents the question of whether the Hamilton circuit court acquired jurisdiction over the person of the defendant, over the subject-matter of the action, to try said cause and pronounce judgment thereof. Appellant's only reason for this contention is because the transcript of the proceedings in the Marion circuit court was not signed by the clerk of the Marion circuit court. Appellant says that the omission of the signature of the clerk is fatal, and that there never was a legal transcript of the proceedings in the Marion circuit court filed with the clerk of the Hamilton circuit court, and cites in support thereof sections 2239, 2240, 11846, Burns' Ann. St. 1926, and Fawcett v. State (1880) 71 Ind. 590.
Section 2239, supra, provides that "When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases *** punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of the court, and, having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly. ***" Section 2240, supra, provides that "The jurisdiction of the court to which the change of venue is granted shall be complete, and the cause must be docketed and stand for trial at the first term thereafter; and such court shall take cognizance of such cause and proceed thereon to trial, judgment and execution in all respects as if the indictment therein had been found and returned by a grand jury impaneled in such court. ***" The appellant, as stated above, does not contend that the procedure set out in the latter part of section 2239, supra, was not followed. It will be observed that neither section 2239 nor section 2240 expressly requires the transcript to be certified, but only requires the clerk to make a transcript, which means a copy. Webster defines the word transcript as "that which has been transcribed; a copy of any kind." Worcester says it is a "writing made from or after an original; a copy." Burill defines it as "a copy, particularly of a record." Bouv. Law Dict., Vol. 3, page 3308, as "a copy of an original writing or deed." Our own court defined the word transcript in the case of Mitchell et al. v. Beissenherz (1922) 192 Ind. 587, 135 N. E. 885, as follows: "A transcript is what the name implies, a copy." The Supreme Court of Nevada in State v. Board of Equalization, 7 Nev. 83, 95,said: "The word 'transcript' at once suggests the idea of an original writing. The word, not only in its popular but legal sense, means a copy of something already reduced to writing." Then was there, in fact, a transcript made by the clerk of Marion county, sealed up with the original papers, delivered to the sheriff, who in turn deposited them in the office of the clerk of the Hamilton circuit court? This is the only requirement of the two sections above. But appellant says that section 11846, supra, is applicable here, and calls our attention to Fawcett v. State, which holds that the certificate of the clerk, signed and sealed, is necessary to the legality of the transcript, and without it there is legally no transcript. Section 11846, supra, reads as follows: "In all cases where a complete record is dispensed with, the production of the papers and entries relating thereto, and all transcripts thereof, certified and attested with the seal of such court as complete copies of all the papers and entries of such cause, shall have the same force in evidence as a transcript of a complete record thereof." The Fawcett Case [638] holds that the last above quoted section of the statute is applicable in a change of venue case, and requires the transcript thereof to be signed by the clerk; to which reasoning we cannot agree. We are of the opinion that section 1846, supra, has no application to a case of this kind, and was never intended by the Legislature to require the clerk of the circuit court to certify to a transcript on change of venue. Therefore, in so far as the case of Fawcett v. State, 71 Ind. 590, conflicts with the views herein expressed, the same should be, and is hereby, overruled. We are further strengthened in our view of the above statutes, for we find that the Legislature, when they required a transcript to be certified, used appropriate language to that effect. Section 1946, Burn's Ann. St. 1926, governing appeals from the justice of the peace to the circuit court, expressly provides that the justice shall make out and certify a complete transcript, etc.; also section 716, Burns' Ann. St. 1926 which has to do with transcripts on appeal to this court, expressly provides that the transcript shall be certified and sealed by the clerk. We find no such provision in the statute governing the procedure in changes of venue cases. We do not desire to be understood by what we have said as discouraging the practice which has been very general in this state, of the clerk of the circuit court certifying to transcripts on change of venue, as we feel this is very good practice, but we cannot agree that the failure of the clerk to affix his signature to the certificate is essential to the legality of the transcript, where all the requirements of the statute have been satisfied.
Appellant's fifth assignment of error relates to the action of the court in sustaining appellee's demurrer to his plea in abatement. Appellant alleges in his plea in abatement that there was no legal evidence before the grand jury, on which it could return an indictment. This question was decided adversely to appellant's contention in the case of Pointer v. State (1883) 89 Ind. 255, in which case the following language was used: "The questions attempted to be presented by the first and second causes for a new trial could, therefore, only have been raised by pleading them in abatement, and by pleading in bar all matters in abatement were waived. *** It is, nevertheless, no ground for a plea in abatement, that the indictment was found without evidence, or without sufficient evidence, or that no vote was taken by the grand jury on the indictment." See 31 C. J. 586, § 50; Guy v. State (1906) 37 Ind. App. 691, 77 N. E. 855.
Appellant's sixth and seventh assignments of error relate to the overruling of his motion to strike out parts of count one of the indictment; particularly the latter part thereof which relates to the happenings subsequent to the taking of poison by Miss Oberholtzer, and which charged that appellant failed to provide medical aid. A motion to strike out parts of an indictment is not provided for by our Code of Criminal Procedure; yet this court has recognized such procedure for the purpose of removing from an indictment such allegations as serve only to prejudice the court or jury against the defendant, without aiding or contributing to the statement of the offense charged. In Torphy v. State (1918) 187 Ind. 73, 118 N. E. 355, 356, the defendant was charged with the crime of keeping and operating a place where intoxicating liquor was sold in violation of section 8351, Burns' Ann. St. 1914, Acts 1907, c. 293, p. 689. Following the statement of the charge, the indictment further alleges that appellant had previously been convicted of a similar offense, although the statute on which the prosecution was based made no provision concerning a second or subsequent conviction on the charge of keeping or operating a place where intoxicating liquor was sold in violation of law. The defendant filed a motion to strike out that part of the indictment that alleged a prior conviction, which motion was overruled by the court. On appeal this court said that "The fact of a prior conviction was not, under the issue in this proceeding, a circumstance which could properly be brought to the attention of the jury in any manner as a part of the state's case *** and all reference thereto should have been omitted from the indictment." The court held that it was reversible error for the lower court to overrule the motion to strike out, for the reason that it could serve no other purpose than to prejudice the jury against the defendant. Such is not the case here. The allegations or recitals sought to be stricken out of the first count were facts and circumstances which could have been and were properly brought, under the issues in this case, to the attention of the jury by evidence in support of the crime charged in the fourth count of the indictment. Had the court sustained appellants' motion, no evidence would have been withheld from the jury by reason thereof. Evidence of the facts concerning appellant's treatment of Miss Oberholtzer after she swallowed the poison was competent under the fourth count, and therefore the action of the trial court in overruling appellant's motion to strike out the latter part of count one could not have had the effect of prejudicing the jury against him, by permitting the state to bring certain facts to their attention that it could not have presented in any other way under the issues. In other words, the court should not permit an indictment to be used as a means of conveying facts to the jury that could not be properly presented in evidence from the witness stand. The rule as laid down in the case of Torphy v. State, supra, is not broad enough to cover the facts here, and we do not deem it advisable [639] to extend the rule as heretofore announced. The allegations in the latter part of count one, and set out in the second specification of appellant's motion to strike out, at the most could only be surplusage that in nowise could have injured appellant. Bechtelheimer v. State (1876) 54 Ind. 128; Musgrave v. State (1892) 133 Ind. 297, 32 N. E. 885.
Appellant's eighth and ninth assignments of errors questions the ruling of the court on his motion to quash the first count of the indictment. Appellant's motion to quash states the statutory grounds (a) that the facts stated in count one do not constitute a public offense; (b) that count one does not state the offense with sufficient certainty. Appellant states that the law requires the facts and circumstances constituting the offense to be stated in plain and concise language; also that it must be shown by proper allegations that the alleged act or acts of the accused was the proximate cause of the death as distinguished from the cause of a condition affording an opportunity for the compassing of death by some other unconnected agency. It is contended by appellant in his brief that the indictment is fatally defective, for he says the facts show that an independent supervening cause of death is given; it being alleged that deceased voluntarily procured and swallowed a large quantity of deadly poison, and this is given as one of the joint causes of death. Then appellant urges that it is the law that when wounds are inflicted by one person on another, which wounds are not within themselves fatal, and a supervening cause intervenes, such supervening cause not being at the direction, request, or connivance of the one inflicting the wounds, and that but for such supervening cause death would not have resulted, the inflicting of the wounds is not the proximate cause of death, but the supervening cause is the proximate cause, and the one responsible for the death. We readily agree with appellant's statement of the law, and that in case of Bush v. Commonwealth (1880) 78 Ky. 268; Rigsby v. State (1910) 174 Ind. 284, 91 N. E. 925; Kelley v. State (1876) 53 Ind. 311, and other cases cited by appellant, we think the above rules were correctly and properly applied. So if it be true, as appellant contends, that the indictment alleges that Madge Oberholtzer voluntarily committed suicide, that is, that she took her own life while in sound mind, such an act on her part would constitute an intervening responsible agent such as would break the causal connection between the acts of appellant and the death of Madge Oberholtzer. But we cannot agree with appellant in this construction of the first count of the indictment, for it is alleged in said count, in effect, that Madge Oberholtzer was, at the time she swallowed the poison, distracted with the pain and shame inflicted upon her by appellant. If the allegations be true, and we must so consider them on a motion to quash, then the act of Madge Oberholtzer in taking the poison was not the act of a responsible agent, and the chain of cause and effect between the acts of appellant and the death would not be broken, and appellant would be guilty of murder, provided the alleged irresponsible mental condition of Madge Oberholtzer could be said to be the natural and probable result of the alleged treatment by appellant. Whether or not the alleged treatment accorded Madge Oberholtzer by appellant would naturally and probably result in rendering her distracted and mentally irresponsible was a question of fact for the jury. We think the facts and circumstances alleged and set out in the indictment were sufficient if proven to justify a finding of guilty by the jury. Regina v. Pitts [1842] Car. & Mar. Rep. 284; Rex v. Beech [1912] 23 Cox Crim. L. Cases 181; Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 56 A. L. R. 455; Wharton on Homic. §§ 374, 375; Wharton Crim. Law (10th Ed.) § 167.
Appellant contends that said first count is defective, in that it nowhere charges the appellant with the purpose to kill Madge Oberholtzer. This allegation, we think, is not necessary where it is alleged that life is taken in the commission of a felony, such as attempted rape, as is charged in the first count of the indictment, section 2412, Burns' Ann. St. 1926; Moynihan v. State (1880) 70 Ind. 126, 36 Am. Rep. 178; Cole v. State (1922) 192 Ind. 29, 134 N. E. 867. The sufficiency or insufficiency of an indictment may be tested by the answer to the following question: "Can the facts properly alleged be true, and the defendant innocent of the offense charged against him?" If the answer must be in the affirmative, the indictment is bad; if in the negative, the indictment is good. State v. Hilgendorf (1899) 23 Ind. App. 207, 55 N. E. 102. An indictment which charges a public offense with reasonable certainty is good, although the offense may not be charged with strict formality, and there may be surplusage in the indictment. Hobbs v. State (1893) 133 Ind. 404, 32 N. E. 1019, 18 L. R. A. 774; State v. White (1891) 129 Ind. 153, 28 N. E. 425; Fisher v. State (1891) 2 Ind. App. 365, 28 N. E. 565; State v. McDonald (1886) 106 Ind. 233, 6 N. E. 607; Myers v. State (1885) 101 Ind. 379. Defects that do not affect the substantial rights of the defendant are not sufficient to require the quashing of an indictment or information. Billings v. State (1886) 107 Ind. 54, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; Woodward v. State (1885) 103 Ind. 127, 2 N. E. 321. An indictment that fairly informs the accused of the offense charged against him and enables the court to pronounce judgment according to the right of the case is sufficient. Woodward v. State, supra; State v. Shaw (1892) 22 Or. 287, 29 P. 1028. Under the Code of Criminal Procedure in this [640] state, no more certainty is required in criminal than in civil pleading; all that is required is that the averments be certain to a common intent. Meiers v. State (1877) 56 Ind. 336, 342; McCool v. State (1864) 23 Ind. 127, 129; State v. Jenkins (1889) 120 Ind. 268, 269, 22 N. E. 133; State v. Hopper (1892) 133 Ind. 460, 464, 32 N. E. 878; Gillett's Criminal Law (2d Ed.) § 125. Testing the first count of the indictment in this case by the rules above stated, we are forced to the conclusion that the indictment is good.
Appellant next urges that the court below erred in not requiring the state to elect on which count it would go to trial. Where an indictment contains several counts each charging the murder of the same person, but in a different manner, the state cannot be compelled to elect between such count. Merrick v. State (1878) 63 Ind. 327.
In his motion in arrest of judgment, appellant urges the same reasons that he urged in his motion to quash, and we need say nothing further on this question.
Appellant contends that the trial court erred in not permitting him to remain in the Hamilton county jail pending the preparation and filing of his motion for a new trial. The statutes, sections 2358, 2359, Burns' Ann. St. 1926, provide that the clerk after the conviction and sentence must without delay certify a copy of the judgment to the sheriff, and the sheriff must within five days convey the convict to the prison. It is true that this court in Ex parte Huffman (1914) 181 Ind. 241, 104 N. E. 511, 512, held that under article 1, § 13, Const., section 65, Burns' Ann. St. 1926, the right of an accused "to be heard by himself" continues until the disposition of a motion for a new trial, and that "the trial court would not be warranted in ordering the sheriff to take the petitioner to the state prison, pending the determination of his motion for a new trial." But in the case at bar, the court on its own motion ordered the appellant returned to Hamilton county on December 12, when his motion for a new trial and other motions were filed and ruled upon. No showing is made that appellant's constitutional right to be heard was in anyway infringed, or that he or his counsel were prevented from preparing a proper and complete motion for a new trial. On the contrary, the motion appears to be longer and more involved than it needed to be. The procedure that was had in this case, in this regard may have been necessary in the opinion of the court, either for the protection of the prisoner or to secure the state from his possible escape. No reversible error appears from the record on this question.
Appellant objected to certain testimony of Dr. John K. Kingsbury. After stating his name, residence, age, etc., he stated that he was called by telephone about 11:30 a. m., March 17, and went immediately to the Oberholtzer home, and there found Madge Oberholtzer lying on a bed in a state of shock, pale, body cold, rapid pulse, that her clothing was disheveled, her dress open in front exposing bruises on her chest; that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been in an automobile accident). He was then asked if, in the course of his examination, she said anything in reference to whether or not she expected to die, and what it was. He answered (over the objections of appellant) that "She said that she didn't expect to get well; didn't want to get well; that she wanted to die." He was then asked, "Now doctor, just detail any conversation which you may have had with her concerning her condition?" He then again related his superficial examination, and pressed her for an answer as to how it happened. At this point, appellant interposed an objection on the ground that it had not been shown that the deceased was in extremis, or that she thought that she was going to die soon, which objection was overruled. The doctor then proceeded to relate in answer to the question a narration, as told to him by Miss Oberholtzer, of all the events occurring from the time she left home until she returned. This narration was in substance the same as the written declaration of Miss Madge Oberholtzer, which will in substance hereinafter be set out. Mrs. Eunice Shultz, who was a roomer at the Oberholtzer home, had previously testified that the man who brought Madge home told her that "She was hurt in an automobile accident, *** he did not think any bones were broken." That she saw the bruises on various parts of Madge's body, which she described. That "her clothing was mussed up and she was very dirty ***, that she looked very white around the mouth and groaned" and that Madge said to her, "Oh, Mrs. Shultz, I am dying." The rule of law governing the admission in evidence of unsworn statements as dying declarations is very clearly and definitely settled in Indiana, and appellant has set it out very fully and concisely in his brief. See McKee v. State (1926) 198 Ind. 590, 154 N. E. 372; 21 Cyc. 976, 977; Watson v. State (1878) 63 Ind. 548; Morgan v. State (1869) 31 Ind. 193; Jones v. State (1880) 71 Ind. 66.
The trial court had not only the statements of Miss Oberholtzer that she was dying, and that she could not get well, but the conduct, manner, symptoms, and condition of Miss Oberholtzer, at the time she made the statements, were detailed to the court. It was said in the case of Williams v. State, 196 Ind. 84, 147 N. E. 153, 154, that, "The competency of this evidence [meaning dying declaration] was a question for the trial court to be determined by the proof relative to the declarant's [641] state of mind at the time he made the declarations. The proof preceding the admission of such declarations must convince the trial judge that they were uttered under a sense of impending death without hope of recovery, or that the declarant fully believed that death was so near that all motives to falsehood were superseded by the strongest motives to strict veracity. *** Proof of the fact thus to be settled by the judge is not limited to the declarant's statements alone, 'but it may be inferred from the general statements, conduct, manner, symptoms and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound, or the state of his illness."' In the case of Hill v. State (1923) 194 Ind. 688, 141 N. E. 639, 641, the court said: "The admissibility of these statements was first for the trial court to determine, and that decision will not be disturbed unless it is manifest that the facts did not warrant such ruling." Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881; 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238. We cannot say that the admission of Dr. Kingsbury's testimony was manifestly erroneous.
Appellant's points 9, 10, 11, 12, 13, 14, and 15 relate to admission of evidence over his objections. We have examined each of these objections, and find that they either relate to portions of what was admitted in evidence as a dying declaration, or evidence relating to the crime charged in count four of the indictment, on which appellant was acquitted. We find no reversible error in any of the court's rulings under these points. Appellant's points 17 to 43, inclusive, also relate to the court's rulings in the admission or rejection of certain evidence. Most of these objections are very technical, or relate to counts other than count one under which appellant was convicted. We find no reversible error in the action taken by the court, and we are of the opinion that appellant suffered no substantial injury thereby.
Appellant's sixteenth point is based upon his motion to withdraw the submission and discharge the jury on account of certain remarks made by the trial judge in ruling upon the admissibility in evidence, of a conversation had between the witness and his daughter (the deceased) out of the presence of appellant, which conversation was sought to be introduced as a dying declaration. The appellant interposed an objection to the question put by the state, "Now Mr. Oberholtzer, at that time, I wish you would tell the jury what she told you happened on this trip?" for the reason that it was not shown that Madge Oberholtzer at the time labored under the belief that there was to be immediate dissolution, nor that she believed that her end was near, etc., and also that dying declarations are not competent in case of suicide. The remarks of the court, objected to, were addressed to the last part of the objection, and was a statement of the law as the court understood it, when dying declarations were admissible, when the defendant made the contention that the deceased committed suicide, and the remarks of the court were meant to answer appellant's contention that Madge Oberholtzer committed suicide, and therefore the evidence was not admissible. We are persuaded that the jury fully understood that the court was ruling on the admissibility of evidence and not instructing them in the law, which they should apply when deliberating upon the guilt or innocence of appellant in the jury room after the case was finally submitted to them. We cannot say that we approve of the practice generally of either arguments by counsel on questions of the admissibility of evidence or of the court discussing the law relating thereto. We think it better practice that the court have the jury retire during the discussion and ruling.
Appellant in his motion to vacate and set aside the verdict raises the same question as he did in his motion to quash. We have heretofore set out our views on these questions, and we need not say anything further on this subject.
Appellant by his motion for a new trial challenges the sufficiency of the evidence to support the verdict, and this question necessitates a statement of the facts proven at the trial. In substance, they are as follows:
The victim of this homicide is Miss Madge Oberholtzer, who was a resident of the city of Indianapolis and lived with her father and mother at 5802 University avenue, Irvington. She was twenty-eight years of age; weighed about 140 pounds, and had always been in good health; was educated in the public primary and high school and Butler College. Just prior to the time of the commission of the alleged acts in the indictment of appellant upon her, she was employed by the state superintendent of public instruction as manager of the Young People's Reading Circle.
Miss Oberholtzer was introduced to appellant by her escort at a banquet in the city of Indianapolis, January 12, 1925. This introduction was their first meeting.
Appellant resided at - street, Irvington, city of Indianapolis, at the time of the beginning of the actions disclosed by the evidence. His home was but a short distance; some two or three city blocks from the home of the Oberholtzers. After the meeting of appellant and Miss Oberholtzer at the banquet, he invited her several times for a "date." She gave him no definite answer. She later consented to his insistent invitation to take dinner with him at a hotel in Indianapolis, and, upon the occasion, he came to her home for her with his automobile and they dined together. Thereafter, appellant [642] called her several times by telephone, and once again she had dinner with him at the same hotel, at which another person was a third member of the party. Subsequent to the second dinner, Miss Oberholtzer was at Stephenson's home at a party with several prominent people, where both ladies and gentlemen were guests. The two principal actors to this tragedy did not see each other again until late Sunday evening, March 15, 1925. The afternoon of that Sunday she had been away from home and returned between nine and ten o'clock in the evening. Upon her return, her mother, Mrs. Matilda Oberholtzer, informed her that a telephone message came for her, which the mother delivered to her daughter, which was a piece of paper upon which there was the telephone number, Irvington 0492. Miss Oberholtzer called the number and Stephenson answered the call. He asked her to come to his home for he wished to see her about something very important to herself, and that he was leaving for Chicago and it was necessary that he see her before he departed. In the telephone conversation, Stephenson said to Miss Oberholtzer that he could not leave, but that he would send some one for her. Very soon thereafter, a Mr. Gentry, whom Miss Oberholtzer had never seen, came for her and said he was from Stephensons. She walked with Gentry to Stephenson's home. When they arrived, they went inside the home and there saw Stephenson. He had been drinking. Stephenson's chauffeur, whom he called "Shorty," was there also. As soon as she got inside the house, she grew very much afraid when she learned that there was no other woman about and that Stephenson's housekeeper was away, or at least not to be seen. Immediately upon her arrival at Stephenson's home, he, with the other men, took her into the kitchen and some kind of drinks were produced. At this time another man by the name of Klinck came in by the back door. She said she did not want to drink, but Stephenson and the other men forced her to drink, and she submitted because she was afraid to refuse, and drank three small glasses of the liquor produced. The drinks made her very ill and dazed, and the effects of them caused her to vomit. Stephenson then said to her, "I want you to go to Chicago with me." She said she couldn't and would not; and that she was much terrified and did not know what to do, and said that she wanted to go home. Stephenson replied to her, "No, you cannot go home. Oh yes! you are going with me to Chicago. I love you more than any woman I have ever known." She then tried to call her home by telephone, but could get no answer. Later, when she again tried to get to the telephone, they prevented her from so doing.
The men then took her up to Stephenson's room, and Stephenson opened a dresser drawer which was filled with revolvers. He told each of the men to take one, and he selected a pearl handled revolver and had "Shorty" load it. Stephenson then said first to her that they were going to drive through to Chicago. She told him that she would not go. Then Gentry called a hotel in Indianapolis, at Stephenson's order, and secured reservations in a drawing-room for two persons. Then all of the men took her to the automobile at the rear of Stephenson's yard and they started the trip. She thought they were bound for Chicago, but did not know. She begged them to drive past home so that she might get her hat on a ruse that if she did get inside her home she would be safe from them. Before they left Stephenson's house, Stephenson said to Klinck, "You get in touch with," an officer, "right away and tell him we are going to Chicago on a business deal to make money for all of us." Then they started. Klinck was not one of the party in the automobile. Stephenson and Gentry sat in the car all of the time with her until they got to the train. On the trip from Stephenson's home to the railway station in Indianapolis, the automobile was stopped at the hotel, and there "Shorty" went into the hotel and came back. While at this stop, Stephenson and Gentry refused to let her out of the automobile. At this time she was in a dazed and terrified condition and feared that her life would be taken by Stephenson. He told her that he was the law in Indiana and said to Gentry, "I think I am pretty smart to have gotten her."
Stephenson, Gentry, and she boarded the train, where all three went at once into the compartment or drawing-room. She was in such condition that she could not remember all that happened after that, but she did remember that Gentry got into the top berth of the compartment. Stephenson then took hold of the bottom of her dress and pulled it over her head, against her wishes, and she tried to fight him away, but was weak and unsteady. Then Stephenson took hold of her two hands and held her, but she did not have strength to get away, because what she had drunk was affecting her. Then Stephenson took off all her clothes and pushed her into the lower berth. After the train started, Stephenson got into the berth with her and attacked her, and, in so doing, he held her so she couldn't move and did not know and did not remember all that happened. She did remember that he chewed her all over her body; bit her neck and face; chewed her tongue; chewed her breasts until they bled and chewed her back, her legs, and her ankles, and mutilated her all over her body. She remembered of hearing a buzz early in the morning, and the porter calling them to get up for Hammond. Then Gentry shook her and said it was time to get up and that they were to leave the train at Hammond, Ind. At this time, she became [643] more conscious, and, before they left the train, Stephenson was flourishing his revolver. Then she asked him to shoot her. He held the revolver against her side and she said to him again to kill her, but he put the gun away in his grip. During the night on the train, she heard no sound from Gentry. After the car porter called them, Stephenson and Gentry helped her to dress; then the two men dressed and took her off the train at Hammond. After leaving the train, she was able to walk with the two men to the Indiana hotel. During the night she begged Stephenson to send a telegram to her mother. At the Indiana hotel, Stephenson registered for himself and wife under the name of Mr. and Mrs. W. B. Morgan, address, Franklin, and were assigned to room No. 416. Gentry then registered under the name of Earl Gentry, address Indianapolis, Ind., and was assigned to room No. 417. The time they reached the hotel was about 6:30 o'clock in the morning. In the hotel lobby, when they entered, were two colored bell boys and two colored girls. The three, as guests of the hotel, were taken up the elevator and shown to their rooms. During this time Miss Oberholtzer continued begging Stephenson to send a telegram to her mother. Stephenson then made her write a telegram and told her what to say in it. After the telegram was written, Gentry took it and said he would send it immediately. Stephenson then laid down on the bed and slept, while Gentry put hot towels and witch hazel on her head and bathed her body to relieve her suffering.
Breakfast was served in their room. Stephenson ate grapefruit, coffee, sausage, and buttered toast. She drank some coffee, but ate nothing. At this time, "Shorty" came in the room. He said to Stephenson that he had been delayed getting them because he could not find the hotel where they were guests in Hammond. Then she asked Stephenson to give her some money, for she had none, so that she might purchase herself a hat. Stephenson told "Shorty" to give her money, and he gave her $15 and took her out in the automobile. "Shorty" waited for her while she went into a store and purchased a hat, for which she paid $13.50. When she returned to the car, she asked "Shorty" to drive her to a drug store so that she might purchase some rouge. He then drove the car to a drug store, where she purchased a box of bichloride of mercury tablets, put them in her coat pocket, and returned with "Shorty" in the automobile to the hotel. During the morning at the hotel, the men got more liquor at Stephenson's direction. Stephenson said they were all going to drive on to Chicago, and made her write the telegram to her mother saying that they were going to Chicago. This was the telegram that Gentry took.
After she and "Shorty" returned to the hotel, she said to Stephenson to let her go into room 417, which was the room assigned to Gentry, so that she might lie down and rest. Stephenson replied, "Oh no, you are not going there, you are going to lie right down here by me." She then waited awhile and until she thought Stephenson was asleep and then went into room 417 and Gentry remained in room 416 with Stephenson. There was no glass in room 417, so she procured a glass from room 416, laid out eighteen of the bichloride of mercury tablets and at once took six of them, which was about ten o'clock in the morning of Monday, March 16, 1925. She only took six of the tablets because they burnt her so. Earlier in the morning she had taken Stephenson's revolver and thought to kill herself in Stephenson's presence while he was asleep. It was then she decided to try and get poison and take it in order to save her mother from disgrace. She knew it would take longer for the mercury tablets to kill her. After she had taken the tablets, she lay down on the bed and became very ill. It was nearly four o'clock in the afternoon of Monday that "Shorty" came into the room and sat down to talk to her. He said to her that she looked ill and asked her what was wrong, and she replied, "Nothing." He asked her where she had pain and she replied that pain was all over her. He then said to her that she could not have pain without cause. When she asked him, "Can you keep a secret?" He answered, "Yes." She said, "I believe you can." Then she told him she had taken poison, but that he should not tell Stephenson. She had been vomiting blood all day. When she said to him that she had taken poison, "Shorty" turned pale and said that he wanted to take a walk. He left the room, and, in a few minutes, Stephenson, Gentry, and "Shorty" came into the room very much excited. Stephenson then said, "What have you done?" She answered, "I asked 'Shorty' not to tell." Stephenson then ordered a quart of milk and made her drink it, and then she said to him and to the others that she had taken six bichloride of mercury tablets, and said, "If you don't believe it, there is evidence on the floor and in the cuspidor." Stephenson then emptied the cuspidor, which was half full of clotted blood, into the bathtub and saw some of the tablets. She then asked Stephenson what he intended to do, to which he replied, "We will take you to a hospital and you can register as my wife. Your stomach will have to be pumped out." He said that she could tell them at the hospital that she had gotten mercury tablets through a mistake instead of aspirin. To Stephenson's suggestion, she refused to comply as his wife. Then it was that Stephenson said that they would take her home. She then said to Stephenson [644] that she would not go home, but would stay at the hotel, and asked them to leave her and go about their own business or to permit her to register at another hotel under her own name. Stephenson then said, "We will do nothing of the kind. We will take you home," and that the best way out of it was for them to go to Crown Point and there she marry him, to which suggestion Gentry said he agreed it was the thing to do. She refused. Stephenson then snapped his fingers and instructed "Shorty" to pack the grips. They then departed from the hotel. Stephenson assisted her down the stairs. Before leaving she asked "Shorty" to telephone to her mother. Stephenson said that he had already called her. She asked what her mother said, and Stephenson answered that she said it would be all right if her daughter did not come home that night.
"Shorty" checked out of the hotel for the three, and they then put her in the back seat of the automobile with Stephenson and the luggage and started for home. Her mind was in a daze and she was in terrible agony. After they had proceeded in the automobile a short distance, Stephenson ordered "Shorty" to take the auto license plates off the car, which "Shorty" did, and Stephenson then directed him to say, if questioned, that they had parked in the last town where the auto plates had been stolen. On the journey back to Indianapolis she screamed for a doctor, and said she wanted a hypodermic to relieve the pain, but the men refused to stop. She begged Stephenson to leave her along the road some place, that some one would stop and take care of her, and said to Stephenson, that he was even then more cruel to her than he had been the night before. He promised to stop at the next town, but did not. Just before reaching a town he would say to "Shorty," "Drive fast, but don't get pinched." She vomited in the car all over the back seat and the luggage. Stephenson did nothing to make her comfortable upon the trip. He said to Gentry, "This takes guts to do this Gentry. She is dying"; and that he said to Gentry he had been in a worse mess than this before and got out of it. Stephenson and Gentry drank liquor during the entire trip. Stephenson said also that he had power and that he had made a quarter of a million dollars, and that his word was law.
Upon reaching Indianapolis, they drove straight to Stephenson's house by way of Thirty-Eighth street and Emerson avenue in Indianapolis. When the car reached Stephenson's garage, Stephenson said, "There is someone at the front door of the house," and told "Shorty" to go and see who it was. "Shorty" returned and informed Stephenson that it was Miss Oberholtzer's mother. Then Stephenson said, "You will stay right here until you marry me." One of the three men then carried her upstairs into the loft above the garage. Stephenson did nothing to relieve her pain while they left her in the garage until she was carried to her home about noon Tuesday, March 17, 1925. A big man, as she says, Mr. Klinck by name, shook her and awakened her and said to her that she must go home. She asked him where Stephenson was, and he told her he did not know. She remembered here that Stephenson had told her to tell every one that she had been in an automobile accident and then said to her, "You must forget this, what is done has been done. I am the law and the power." He repeated to her several times that his word was law. On account of her agony and suffering, she begged Klinck to take her home in Stephenson's Cadillac car. He said he would order a taxi, but finally said he would take her in Stephenson's car. Klinck then dressed her and carried her downstairs from the loft and put her in the back seat of the automobile and drove to the home of her mother. She asked him to drive in the driveway, which he did, and then carried her into the house and upstairs and placed her on her bed.
At the time she was returned to her home by Klinck, her mother was away from home. There was in the house, at the time she returned, Mrs. Shultz, who roomed at the Oberholtzer home with her eldest son George. When Klinck carried Miss Oberholtzer into the house, Mrs. Shultz was preparing lunch in the kitchen for her son and heard a terrible groaning at the front door and then went to the dining room and saw Miss Oberholtzer being carried in. She then went to the stairway and saw her carried upstairs by a large man, whose name she did not know. When he came downstairs alone, she asked "Is Madge hurt?" He replied, "Yes," and said she was hurt in an automobile accident. Mrs. Shultz asked him how badly, and he replied he didn't think any bones were broken. Then, she said to him, "I will get a doctor quickly," and he said, "Yes." Then Mrs. Shultz asked him who he was and he replied, "My name is Johnson from Kokomo," and said, "I must hurry," and, hurrying on, kept his face toward the door. Mrs. Shultz got a good look at his face as he came down the stairway and recognized him and identified him in the courtroom at the trial of appellant. This man, who gave his name as Johnson, was Earl Klinck.
Upon Klinck's departure from the house, Mrs. Shultz went up to see Miss Oberholtzer, whom she called Madge. The door to her room was closed and Mrs. Shultz knocked and heard Madge moaning, so she opened the door and went in and saw Madge on the bed. When she went in, Madge was groaning and was pale and could hardly speak or answer. Mrs. Shultz noted the bruises on Madge. The one on her right cheek was a dented wound of [645] dark color; and on the left side of her chest were similar wounds, which were deeper and darker in color. The wound on her breast and the wound Mrs. Shultz noted were similar in shape and appearance. She noted that Madge had bruises across her stomach, on her limbs and ankles, which bruises were very dark in color in some places. The skin on her left breast was open. Her clothing, a black velvet dress and black shoes, was very mussed up and very dirty. Her coat had dropped off there in her room. She had on no hat. She looked very white around her mouth and groaned. "Oh!" and "Dear mother." She then said, "Oh, Mrs. Shultz, I am dying."
Miss Oberholtzer told Mrs. Shultz to call Doctor Kingsbury, which she did, and he arrived in less than an hour. Mrs. Oberholtzer, her mother, returned to her home about two o'clock in the afternoon. Upon Dr. Kingsbury's arrival at the home, he went immediately to see Madge and found her lying on her bed. He said she was in a state of shock. Her clothing was in a disheveled state; her face was pale; her body was cold and her pulse rapid. Her dress lay open in the front on her breast exposing bruised areas over her chest, with two or three lacerations, little cuts on the left chest; her right check had a bruised elevated area, dark in color, egg-shaped in formation. He had been informed that she had been injured in an automobile accident and made a superficial examination through her clothing to determine whether bones were broken. After such examination, he had a conversation with her in which she told him she did not expect to get well and that she wanted to die. He told her that he found that no bones were broken and asked her how she happened to be in this condition, to which she replied, "When I get better, I will tell you the whole story." Because of the state of shock and the condition, the doctor did not know how severely she was hurt or injured and pressed her for a reply. She then related to him the story, as related above, of the telephone call; her being escorted to Stephenson's home; of the drinking; of the ride to Hammond on the train; of her purchase of a hat and the poison and of her taking of the poison; and of the return trip to Indianapolis; of her pain and agony on the trip; how she begged Stephenson to procure a physician on the return and of his refusal to do so; of the arrival at Indianapolis about midnight and of her being taken to Stephenson's garage, where she was held a captive until 11:30 a. m. the following morning, and of her being taken home by Klinck, who told Mrs. Shultz that she had been injured in an automobile accident, and when site heard Klinck say this to Mrs. Shultz, she, Madge, raised upon her elbow and called, "He lies"; how that she had begged Stephenson, during the night in the garage after the return, to call a physician for her and that he did not grant her request.
After Dr. Kingsbury had heard her story, as thus related, he made a careful physical examination after a Miss Spratley, a nurse, had been called to care for her, and after Miss Spratley had removed the patient's clothes and cleaned her. As a result of this careful physical examination, Dr. Kingsbury found that Miss Oberholtzer had numerous bruised areas over her body, on her right cheek, over the chest, with lacerations on the left chest; a bruise as large as a dinner plate on the left hip and buttock; bruised and torn tissues down at the point of the vagina; a bruised discoloration, bruised areas down over her limbs and ankles; body very cold and pulse rapid. The doctor then had the patient catheterized and obtained some urine for examination, which he took with him to his office. He then washed her stomach and obtained mucus and blood therefrom. Upon examination, her urine showed a large collection of albumin, casts, and blood cells, which were all evidence of acute kidney inflammation; that in his opinion, examination of the bruises and lacerations, the ones on the left breast and right cheek were inflicted by teeth; but he could form no opinion of the cause of the wounds in the vagina. He attended the patient until her death, April 14, 1925, in Marion county, Ind., during which time he attended the patient by calls three to five times each day, and called in other medical assistance. The lacerations on the left breast became infected, but had healed at the time of her death, leaving scars. The nature of the infection was the ordinary pus producer, which, ordinarily, was responsible for a pus infection, and was such an infection as might result from a bite.
Dr. Kingsbury did not have any further conversation with her concerning any other matter than her progress or the type of medication, except on March 28th in the early evening, when he advised her of her condition and outlook and, when no one else was present, he told her that she had no chance of recovery and no chance to get well, and that she was going to die, and told her why, which was the result of the things that had happened to her, the shock, the loss of food, loss of rest, and the action of the poison on her system and her lack of early treatment, and that the blood test, made that afternoon or the day before, was very much worse; and that her progress was unfavorable and that he was thus forced to inform her that she had no chance of recovery. She replied, "That is all right doctor, I am ready to die. I understand you doctor. I believe you and I am ready to die."
The other physicians, who were called in the case by Dr. Kingsbury, were Dr. H. O. Mertz of Indianapolis, who was a recognized [646] authority on treatment of kidney disorders; Dr. John Warvel of Indianapolis, pathologist at the Methodist Hospital for some time; Dr. J. A. McDonald of Indianapolis, as a consulting physician; Dr. B. G. Jackson, of Indianapolis, specialist.
The statement of Dr. Kingsbury in evidence is that the chances, both for prolonging the victim's life and for her getting well would have been better had she had treatment earlier, or within four or five hours after taking the poison; the delay caused by the automobile ride from Hammond to Indianapolis and the subsequent detention certainly tended to lessen her chances for recovery, or to shorten her life.
An attorney, a friend of the Oberholtzer family, visited at the Oberholtzer home frequently from March 17th, the time of Miss Oberholtzer's return from Hammond, to April 14, 1925, the day on which she died. Miss Oberholtzer told the attorney the story of the incidents related, and informed him that she knew she had no chance for recovery and was ready to die. From the statements so made by her to him, he prepared and had transcribed by typewriter a dying statement, which was read to her and in which she made corrections, and which was afterwards again prepared and read to her and approved, and she signed the statement, saying therein that she had no hope of recovery; and that she believed and knew that she was about to die and that she took an oath before a notary public of the truth of the statements made in the dying declaration.
The testimony of the physicians, who were in attendance upon Miss Oberholtzer as their patient during portions of the time after her return from Hammond until her death, and the consulting physicians, by their testimony, showed that the minimum fatal dose of bichloride of mercury is two or three grains; but larger doses are not necessarily more apt to be fatal, but the danger rests upon the amount of poison absorbed and retained; the form in which taken, whether tablets or powder; the promptness of vomiting or purging, efficiency of treatment; the fullness or emptiness of the stomach at the time the poison is taken by way of the mouth. Medical history shows that recoveries have occurred when as much as 500 grains were swallowed; the per cent. of fatalities since A. D. 1910 is about 25 per cent. and as low as 6 per cent. in one hospital. The average time for the life of the patient after having taken the poison in a fatal dose is from five to twelve days. Medical history shows that some patients have died within a few hours after taking the poison, and the longest reported case in medical history is that the patient died the 25th day after taking the poison, and that all reported cases of patients who lived beyond 25 days after taking the poison had recovered; that in a severe case, where the patient survived 29 to 30 days, as did Miss Oberholtzer, after taking the poison, and died, the consensus of opinion was stated that some other factor played a part in causing the death. The action of this poison, if the patient lives more than a few days, expresses itself in the kidneys and causes an acute nephritis of the kidneys to such an extent that there is a failure to secrete urine by those organs. Nephritis, caused by the poison if the patient lives beyond the twelfth day, diminishes, and the kidneys begin a process of repair and resumption of their function, and that medical history shows that it requires five to twelve days for a human being to die if the kidneys are completely out of function.The report of the post mortem upon Miss Oberholtzer in evidence showed that the physician making such examination found an acute nephritis, the effect of bichloride of mercury on the kidney, degeneration of other organs in the liver and heart muscle, irritation of gastro-intestinal tract, abscess on one of her lungs, recently healed injuries on the surface of her body, four or five on the surface of her chest; one of which showed evidence of previous supporation, which was caused by the entrance of bacteria in that wound. Portions of the liver and kidneys were subjected to examination by Dr. Harger of Indiana University School of Medicine, the result of which, according to his evidence, showed that the injury to the kidney by the poison, which injury was termed nephritis, had almost healed, and that the kidney tissues were in a state of advanced repair; the abscess in the lung contained pus or pus-forming germs which are carried by the blood stream by which circulation these germs, coming from an infected wound, cause blood poisoning or pyemia; the symptoms of such pyemia are weakness, a rapid pulse, and fever. The post mortem examination showed that the lacerated and recently healed infection over one of her breasts was the only one found from which such pyemia could probably have resulted. The injury made on her breast could have been infected by human teeth, and wounds so made are apt to be infected by bacteria on the teeth and the mouth of the person biting, or such bacteria may be on the skin which are carried in beneath the skin by the injury. The opinion was that the infection in the lungs came from the infected area on the chest, and that the kidneys were also infected by the same bacteria, which, on account of the poisoning, would be less able to resist infection by the pus germs. The abscess in the lung, the infection in the blood stream, and the infection in the kidney all tended to prevent recovery, and that it was highly probable that such infection contributed to the death of Miss Oberholtzer; but that she would have recovered from the effects of the mercurial poisoning had she not been so infected by the pus germs coming from the [647] wound on her chest, because the kidneys had already accomplished a large amount of repair sufficient to carry on their function. The opinion was that the wounds made on her body could not have been caused in any manner by mercuric chloride.
The result of the post mortem showed no effects of influenza in her lungs. There was no condition in the esophagus, mouth, stomach, intestines, or liver due to mercuric chloride, which could of itself have resulted in death. It was stated that taking into consideration the facts given in evidence of the taking of possession of Miss Oberholtzer by appellant; her trip to Hammond; the taking of the poison; the return home, and the time intervening from then until her death, a delay of twenty-four to twenty-six hours in administering remedies for mercuric chloride poisoning, materially reduced her chances of recovery.
A hypothetical question was asked of some of the physicians who had attended Miss Oberholtzer, the statements of which were the facts which had been introduced in evidence, with the addition of the following, that bichloride of mercury tablets, which she purchased and had taken, were, "perhaps 7 1/2 or 7 3/8 grains each." The final sentence of the hypothetical question was: "Upon this hypothesis, Doctor, state what, in your opinion, was the cause of her death?" One doctor answered: "She died from an acute infection, superimposed upon an acute nephritis, in my opinion." And answering further as to what was the nature of the acute infection, his answer was "that she had Staphylococci (pus) infection in her kidney." And answered further, in reference to mercuric nephritis, that delay in medical treatment affected her chance of recovery, in that it would allow more absorption of the drug and result in greater damage to the kidney. One of the other physicians testified: "The cause of her death, in my opinion, was some secondary complication superimposed upon nephritis." And further, that but for this infection, superimposed upon the mercuric nephritis, "I believe she would have recovered," and further that the delay of twenty-four to twenty-six hours in giving medical and nursing attention greatly increased chances of fatality.
Appellant was arrested by a party of four officers at his room in a hotel in Indianapolis. One of the officers knocked at the door of appellant's room, and, upon appellant opening the door, one of the officers asked him, "If Mr. Stephenson was in." Appellant answered, "No, Mr. Stephenson is not in, but I am his secretary, Mr. Butler." Upon further questioning, the man who opened the door and who said he was Mr. Butler, admitted that he was Mr. Stephenson, the appellant. The hotel clerks, the maid, and the bell boys of the Indiana Hotel, Hammond, and the hotel clerk of the Washington Hotel, Indianapolis, where appellant had lodging, and where he was arrested, were witnesses, and whose testimony was corroborative of the facts in relation to what happened in the two hotels as narrated. The pullman conductor and pullman porter of the car, in which appellant and the others made the journey to Hammond, testified. The conductor identified Earl Klinck as the person from whom he took up three tickets in the Union Station in Indianapolis. He testified of the three, including appellant and Miss Oberholtzer, occupying the drawing-room in the pullman car; that he heard the woman vomiting in the toilet room which is connected with the drawing-room; that appellant ordered the other men to wet a towel in cold water to bathe her face; that, while in the room preparing the beds, appellant showed his revolver to the pullman porter, and identified the taller one of the two men in the courtroom, who occupied the drawing-room that trip, as Gentry, who was indicted with this appellant.
Appellant very earnestly argues that the evidence does not show appellant guilty of murder. He points out in his brief that, after they reached the hotel, Madge Oberholtzer left the hotel and purchased a hat and the poison, and voluntarily returned to his room, and at the time she took the poison she was in an adjoining room to him, and that she swallowed the poison without his knowledge, and at a time when he was not present. From these facts he contends that she took her life by committing suicide; that her own act in taking the poison was an intervening responsible agent which broke the causal connection between his acts and the death; that his acts were not the proximate cause of her death, but the taking of the poison was the proximate cause of death. In support of his contention, he citesState v. Preslar (1856) 48 N. C. 421; Reg. v. Donovan (1850) 4 Cox 399; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Treadwell v. State (1884) 16 Tex. App. 560; Bush v. Com. (1880) 78 Ky. 268; State v. Shelledy (1859) 8 Iowa, 477; Hendrickson v. Com. (1887) 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596, and other cases from other jurisdictions. In the case of State v. Preslar supra, the defendant in the nighttime fought with his wife, and she left to go to the home of her father. When she reached a point about two hundred yards from her father's home, she, for some reason, did not want to go in the house till morning, laid down on a bed cover, which she had wrapped around her, till daylight. The weather was cold and the next morning she could not walk, but made herself known. She afterwards died. The court held that the wife without necessity exposed herself, and the defendant was not guilty. In the case of Reg. v. Donovan, supra, the defendant struck his wife, and she went to the window to call for help and fell out. [648] Defendant was charged with throwing his wife out of the window with intent to kill. The court held that the evidence must show that by his treatment he intended to make her jump out of the window. In the case of Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, the defendant broke into a house with intent to rob. The deceased ran out of the house and jumped into a well and remained there, and died from exposure. The indictment charged death by violence, to wit, beating and striking. The court held that the evidence did not show the killing was by force and violence as charged, and did not follow the allegations in the indictment, and for that reason the cause was reversed. In Treadwell v. State, supra, the defendant shot the deceased, who lived from November till the following September. A few weeks before his death he had heart attack and convulsions. The court found that he died from heart attacks, and the wounds inflicted by defendant had nothing to do with the death. In the case of State v. Shelledy, supra, the defendant with others went in a body to the home of one W. armed with revolvers, and forcibly took possession of W. and bound his arms so as to render him helpless, and in the presence of W. avowed their purpose to kill W. and placed him in a hack and started to the timber with him, and when on the banks of the Iowa river he leaped from the wagon into the water, and they permitted him to drown, while standing by, and made no effort to rescue the said W., where by reasonable effort they might have done so. The court held that the defendant would be guilty of murder under these circumstances. In Bush v. Com., 78 Ky. 268, defendant wounded one V. who was taken to the hospital and treated by a physician who communicated to her scarlet fever from which disease she died. The court held in that case, that if the wound is not dangerous, and when in the natural course of events a new and intervening cause appears and causes the death, there is no guilt. If death was not connected with the wound in the regular chain of cause and consequence, there ought not to be any responsibility. If a new and wholly independent instrumentality interposed and produced death, the wound is not the proximate cause. The principle laid down in the last case is well supported by decided cases and text-book writers, and we agree that the reasoning is sound and that it was properly applied in those cases. It is quite clear that in the Bush Case there was no causal connection between the wound inflicted and the death. But we do not believe that the rule stated in the above case is controlling here.In the recent case of Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 646, 56 A. L. R. 455, the question of causal connection was discussed. In that case, the commissioner awarded compensation to the claimant as a dependent of the deceased. The deceased had been librarian at the library of respondent employer, and, as such, was under the supervision of its trustees, in full charge of the library. She was very conscientious in her work, temperamentally zealous for the good of the library, working many hours overtime at her home evenings. She also engaged in outside activities, which was occasioned by her position as librarian. The various works which she engaged in are set out in the opinion of the court, which we will not take the time or space to set out here. Finally her health broke, which was followed by a nervous breakdown, and, while mentally irresponsible, committed suicide. The court found that the worry, anxiety, and excessive nervous and mental activity in connection with the library work were all contributing factors in the ultimate mental breakdown. Her physical, mental, and nervous disorder were all attributable to that work and traceable to her employment. The court said: "Before he can make a valid award the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. *** Was the employment a proximate cause of the disablement? ***" the court held that it was, and affirmed the award. See Wharton on Homicide, § 374; Rex v. Beech (1912) 23 Cox Cr. Law Cas. 181; Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 56 A. L. R. 455. In the case of Rex v. Beech, supra, the prosecutrix was the village nurse and lived alone. At 11:45 p. m. on an evening in November, the appellant came to her house when she was in bed. He entered the house by breaking a window and went upstairs to the bedroom occupied by the prosecutrix. The door was locked, and the appellant threatened to break it open if the prosecutrix would not let him in. She refused, and the appellant then tried to burst open the door. The prosecutrix called out that if he got in he would not find her in the room, and, as the appellant continued his attack upon the door, the prosecutrix jumped out of the window sustaining injuries. The prosecutrix also testified that the appellant had attempted to interfere with her on a previous occasion when she had threatened to take poison if he touched her. The court approved the proposition as stated by the lower court as follows: "*** Whether the conduct of the prisoner amounted to a threat of causing injury to the young woman; was the act of jumping the natural consequence of the conduct of the prisoner and was the grievous bodily harm the result of the conduct of the prisoner." The court held that, if these questions were answered in the affirmative, he would be guilty. In Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go along with him to a secluded [649] apartment, and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him, and was killed by the fall. The accused was held guilty of murder. Bishop in his work on Criminal Law, vol. 2, (9th Ed.) page 484, says: "When suicide follows a wound inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it." See, also, People v. Lewis (1889) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783. We do not understand that by the rule laid down by Bishop, supra, that the wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape, and inflicts upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder. In the case at bar, appellant is charged with having caused the death of Madge Oberholtzer while engaged in the crime of attempted rape. The evidence shows that appellant, together with Earl Gentry and the deceased, left their compartment on the train and went to a hotel about a block from the depot, and there appellant registered as husband and wife, and immediately went to the room assigned to them. This change from their room on the train to a room in the hotel is of no consequence, for appellant's control and dominion over the deceased was absolute and complete in both cases. The evidence further shows that the deceased asked for money with which to purchase a hat, and it was supplied her by "Shorty," at the direction of appellant, and that she did leave the room and was taken by Shorty to a shop and purchased a hat and then, at her request, to a drug store where she purchased the bichloride of mercury tablets, and then she was taken back to the room in the hotel, where about 10 o'clock a. m. she swallowed the poison. Appellant argues that the deceased was a free agent on this trip to purchase a hat, etc., and that she voluntarily returned to the room in the hotel. This was a question for the jury, and the evidence would justify them in reaching a contrary conclusion. Appellant's chauffeur accompanied her on this trip, and the deceased had, before she left appellant's home in Indianapolis, attempted to get away, and also made two unsuccessful attempts to use the telephone to call help. She was justified in concluding that any attempt she might make, while purchasing a hat or while in the drug store to escape or secure assistance, would be no more successful in Hammond than it was in Indianapolis. We think the evidence shows that the deceased was at all times from the time she was entrapped by the appellant at his home on the evening of March 15th till she returned to her home two days later, in the custody and absolute control of appellant. Neither do we think the fact that the deceased took the poison some four hours after they left the drawing-room on the train or after the crime of attempted rape had been committed necessarily prevents it from being a part of the attempted rape. Suppose they had not left the drawing-room on the train, and, instead of the deceased taking poison, she had secured possession of appellant's revolver and shot herself or thrown herself out of the window of the car and died from the fall. We can see no vital difference. At the very moment Madge Oberholtzer swallowed the poison she was subject to the passion, desire, and will of appellant. She knew not what moment she would be subjected to the same demands that she was while in the drawing-room on the train. What would have prevented appellant from compelling her to submit to him at any moment? The same forces, the same impulses, that would impel her to shoot herself during the actual attack or throw herself out of the car window after the attack had ceased, was pressing and overwhelming her at the time she swallowed the poison. The evidence shows that she was so weak that she staggered as she left the elevator to go to the room in the hotel, and was assisted by appellant and Gentry. That she was very ill, so much so that she could not eat, all of which was the direct and proximate result of the treatment accorded her by appellant. We think the situation no different here than we find in the Beech Case or the Valade Case, supra. To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer, and that the treatment accorded her by appellant had no causal connection with the death of Madge Oberholtzer would be a travesty on justice. The whole criminal program was so closely connected that we think it should be treated as one transaction, and should be governed by the same principles of law as was applied in the case of Rex v. Beech and Rex v. Valade, supra. We therefore conclude that the evidence was sufficient and justified the jury in finding that appellant by his acts and conduct rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment, and that the appellant was guilty of murder in the second degree as charged in the first count of the indictment.
Appellant complains of instruction No. 41, given by the court of its own motion. This instruction reads as follows: "The law presumes that one intends the natural and probable consequences of his acts, whether he actually intended or anticipated them or not. Of course such presumption cannot be indulged in and carried to the extent of making [650] one guilty of homicide on account of voluntary suicide of a sane person, where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she had assented voluntarily. But if in such case, there be no voluntary assent on the part of such person taking his or her life, to such past action which caused such remorse, grief, shame and humiliation but that he or she was compelled to participate in such action causing such remorse, grief, shame or humiliation through force, threats, coercion and restraint of another. Then it is for the jury to determine whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such other person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."
It may be questioned whether this instruction applies to count one or count two of the indictment, but even though it applies to count one we do not think it erroneous when read in the light of the allegations of count one and in the light of the evidence. The words "the suicide," as stated by appellant in his brief, were used in this instruction in their common and usually accepted meaning, and the jury must have so understood the court to mean when he said "the suicide," it meant the act of self-destruction, as shown by the evidence, and if they find that the suicide was the natural and probable result of the acts of appellant they necessarily had to find that the acts of appellant resulted, first, in rendering the deceased distracted and mentally irresponsible, for the willful and deliberate destruction of one's own life is not the natural and probable action of one who is in sound mind. While it may be true that a person while in sound mind may deliberately and willfully take his own life, yet we cannot say that such an act is either the natural or probable thing for him to do. While on the other hand, it is the natural or at least the probable act of a person who has been rendered distracted and mentally irresponsible by the unlawful and criminal acts and conduct of another. We do not think the court erred in giving said instruction.
Instruction No. 43, given by the court of his own motion, told the jury that one who inflicts an injury on another is deemed by the law to be guilty of homicide, if the injury contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor from responsibility. While it is true that a person cannot be killed twice, yet it is equally true that two persons can contribute to cause the death of another, in which case each will be responsible for such death.
We think the evidence justified the court in submitting the question to the jury, as there was evidence that the deceased died from the joint effect of the injuries inflicted on her, which, through natural cause and effect, contributed mediately to the death. We think the proposition of law stated in this instruction is well supported by authority. "The general rule, both of law and reason, is, that whenever a man contributes to a particular result, brought about, either by sole volition of another, or by such volition added to his own, he is to be held responsible for the result, the same as if his own unaided hand had produced it. The contribution, however, must be of such magnitude and so near the result that sustaining to it the relation of cause and effect, the law takes it within its cognizance. Now, these propositions conduct us to the doctrine, that whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it; provided, that the blow really contributed mediately or immediately to the death as it actually took place in a degree sufficient for the law's notice." Bishop on Criminal Law, § 653; 2 Whart. Am. Crim. Law, § 941; Michie, Homicide, Vol. 1, p. 11, § 5; Bishop on Criminal Law, Vol. 2, § 639 (2), p. 483; Brill Enc. Crim. Law, Vol. 2, § 606; Kee v. State (1873) 28 Ark. 155; Dumas v. State (1909) 159 Ala. 42, 49 So. 224, 133 Am. St. Rep. 17; Bishop v. State (1905) 73 Ark. 568, 84 S. W. 707; People v. Lewis (1899) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783; People v. Williams (1915) 27 Cal. App. 297, 149 P. 768.
Appellant's requested instruction No. 26 was, in effect, a directed verdict in favor of appellant on count one. There was no error in refusing this instruction.
Instructions Nos. 58, 68, 84, 96, and 111, tendered by appellant and refused by the court, had to do with the question of reasonable doubt. The jury was sufficiently advised on this subject by instructions Nos. 16, 18, 19, and 20, given by the court, and for the court to read additional instructions on this question would have been only to repeat, in substance, what the court had already told the jury.
Instruction No. 78, requested by appellant and refused in substance, told the jury that each juror must be convinced beyond a reasonable doubt of appellant's guilt before they were entitled under the law to return a verdict of guilty. This proposition was fully covered by the court's own instruction No. 17.
[651] Appellant says the court erred in refusing his tendered instruction No. 83, which reads as follows: "The court instructs you that if you should find Madge Oberholtzer had been assaulted and raped or had been assaulted and beaten with intent to rape, by the defendants, or either of them, and that said act by the defendants had already been completed and ended, and if you find that no attempt was being made by the defendants, or either of them, to repeat said act or acts, and if you further find that said Madge Oberholtzer under such circumstances voluntarily swallowed a fatal dose of bichloride of mercury poison with intent to take her own life, because she felt aggrieved on account of said prior acts of the defendants, or either of them, and that said bichloride of mercury caused her death, then you would not be warranted in finding the defendants guilty, and you should find them not guilty."
This, in effect, is a peremptory instruction, and we think it entirely too narrow. All facts stated in this instruction if true would not entitle appellant to an acquittal. If this instruction be the law, there a person would go acquitted if he succeeded in completing his crime before the act of self-destruction was done, regardless as to what effect such acts might have upon the victim, or without regard to the question of natural or probable result of such criminal acts. We think this instruction was correctly refused.
Appellant's instructions Nos. 85, 99, 101, 116, 131, 132, 133, 145, 147, 148, 149 were covered by instructions given and no error resulted from such refusal.
There was no reversible error in refusing appellant's tendered instructions Nos. 129, 135, 137, 138, and 140, as they are directed to the crime alleged in count four, and appellant was convicted on count one, and in effect was found not guilty under count four.
We have examined all of appellant's alleged errors, and find none that would justify a reversal of this cause.
Judgment affirmed.
MARTIN, J. (dissenting in part, concurring in part, dissenting in the conclusion).
Charges contained in the several counts. Count 3 of the indictment charged that appellant did "unlawfully and feloniously touch, beat, strike, bite and wound the body and person of the said Madge Oberholtzer with the unlawful and felonious intent then and there and thereby forcibly and against her will the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer did then and there sicken, languish and die," and "did unlawfully and feloniously in the manner and form and by the means aforesaid the said Modge Oberholtzer, kill and murder. ***"
Count 2 of the indictment charged that the appellant "did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer by then and there unlawfully and purposely causing to be administered to the said Madge Oberholtzer by her own hand a certain deadly poison commonly called bichloride of mercury which the said Madge Oberholtzer acting under fear and duress and the compulsion of said David C. Stephenson, Earl Gentry, and Earl Klinck, did then and there swallow into her stomach and body by which she then and there thereby died."
Count 4 of the indictment charged that appellant "did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer", and "being then and there able to provide such medical attention, services and assistance *** did *** unlawfully, feloniously and forcibly imprison, restrain and prevent the said Madge Oberholtzer from such medical assistance services with the unlawful and felonious intent *** to kill and murder the said Madge Oberholtzer."
The verdict of the jury finding the appellant guilty only on the first count of the indictment amounted to a finding in his favor on the foregoing three counts.
Count one of the indictment narrated at length the facts which the state proposed to prove, following in the main the statements contained in decedent's dying declaration. (The first nine pages of the seventeen page statement of the facts proven at the trial set out in the prevailing opinion is identical with the written dying declaration of the deceased, Madge Oberholtzer, except that its relation of those facts are in the third person, while her narration of them is in the first person.) Count one charged "that thereafter she the said Madge Oberholtzer did *** die from the effects of her wounds inflicted as aforesaid and said poison taken aforesaid," and concluded that appellant "did, by the manner and means aforesaid, her, the said Madge Oberholtzer, unlawfully, feloniously and with premeditated malice, kill and murder." There is no charge in this court that the acts of appellant were purposely done; it being apparent, and the state conceding, that it is not a charge of willful murder under that portion of section 347, c. 169, Acts 1905, section 2412, Burns' Ann. St. 1926, which provides that "whoever, purposely and with premeditated malice *** kills any human being, is guilty of murder," but is a charge under that portion of the same section which provides that "whoever *** in the perpetration of, or attempt to perpetrate, a rape *** or by administering poison, or causing the same to [652] be administered, kills any human being, is guilty of murder."
The two theories relied upon to sustain the conviction. The state in its brief, and in the oral argument which was held on April 30, 1928, sought to uphold the verdict of second degree murder and the judgment of the lower court imposing life imprisonment on two separate theories: First, that a contributing cause of Miss Oberholtzer's death was an abscess in her lung resulting from an infection in a bite on her breast inflicted by appellant during the course of his assault upon her; and, second, that the death was caused by the poison, and that Stephenson was legally responsible for her having taken the poison. The prevailing "per curiam" opinion of the court apparently adopts the second theory; but on the ground that the deceased was mentally irresponsible when she took the poison and that the acts of appellant were the cause of such mental irresponsibility. The per curiam opinion does not discuss the first theory, notwithstanding the sharp conflict between the parties with reference thereto, and I assume that such theory is rejected by the court, in which action I concur. At the risk of extending this opinion beyond its proper limits I shall discuss both these theories, which are ably briefed by the parties, since the points decided in this novel case have a far-reaching effect on the criminal law as it relates to the crime of murder.[1]
Verdict of guilty based on infliction of a bite during the perpetration of a rape could be sustained if the bite caused death (1) directly or (2) indirectly through development of infection, unaffected by intervening human action. The bite or wound on deceased's breast inflicted during the perpetration, or attempt to perpetrate, a rape, and if such wound caused the death directly, or if it caused the death indirectly, through a chain of natural effects and causes unchanged by human action, a verdict of guilty based thereon could be sustained. Hall v. State (1928) 199 Ind. 592, 159 N. E. 420; Kelley v. State (1876) 53 Ind. 311. In other words, if an infection developed from the bite, which infection unaffected by any intervening human action caused the decedent's death, then the bite can be considered, in law, the cause of death. In a note to Hall v. State, supra, a number of cases are collected in which this principle of law has been applied.
The state failed to prove that infection from the bite on deceased's breast was the cause of an abscess on her lung or infection in her kidneys. Even if infection from bite was the cause of such secondary infection, medical testimony that death was caused by infection "superimposed" upon poisoning must be considered in light of the fact the poisons was taken subsequent to the infliction of the bite.
The fact that deceased, by reason of the bite, may have been more susceptible to the fatal effects of the poison does not render the bite the proximate cause of death unless the taking of the poison was the natural result of the bite.
Dr. Kingsbury, one of the principal witnesses for the state, testified that the lacerations on deceased's left breast became infected. He was asked, "Were they infected at the time of her death?" and answered, "No they had healed, there were scars there." He was asked the nature of the infection, and replied, "oh, the ordinary pus producer, ordinarily staphylococci, sometimes-it is nearly always responsible for pus infection." The trained nurse who attended deceased testified that she sterilized the abrasions, and that they healed up. The evidence shows that the bite on deceased's breast was not a serious wound calculated to destroy or endanger life, nor was the infection resulting therefrom shown by the testimony of any witness to have been serious enough, of itself, to destroy life. It therefore cannot be contended that death resulted directly from the bite; but it is contended by the state that such bite and infection is a responsible cause of death, for the reason that deceased might have, or would have, recovered from the effects of the poison which she afterwards took, except for the existence of the infection from the bite. There is opinion evidence by physicians, called as expert witnesses for the state, that deceased might have, or would have, recovered from the mercurial poisoning had it not been for an infection which developed, and which may have resulted from the previously inflicted bite.
This opinion evidence must be considered in connection with the other medical evidence, not in conflict therewith, regarding the bite and the infection. The evidence of the state does not establish the fact that the abscess in the lung or the infection in the kidney discovered by a post mortem examination was the result of infection from the bite on the breast. Dr. Warvel, witness for the state, testified: "I would not say certain that because there was an abrasion on one of the breasts and an abscess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." It was undisputed that the deceased had recently suffered from the flu (influenza), from which such an abscess might have resulted.
Physicians as expert witnesses for the state testified that an infection could be carried from a surface wound to the lung by the blood stream; that such a process was known [653] as septicemia, or infection of the blood (blood poisoning), and results in the development of pyemia or localization of the infection; and that such a condition would be accompanied by a marked rise in the temperature of the patient and could be definitely established by a microscopic examination of the patient's blood. The detailed record of deceased's temperature from March 17 to April 14, inclusive, as given by the nurse from her records, shows a gradual and not a marked rise of temperature, and although it clearly appears that the patient's blood was tested and examined, there was no testimony that the blood ever showed a condition of septicemia caused by the staphylococci infection on the breast. It thus appears that while the state proved that an abscess on the lung might or could result from an infection resulting from a bite on the breast, it did not establish as a fact that the infection of this decedent's lung was carried by her blood stream from an infected breast, nor did the state prove in the language of its own expert that "there was no other avenue of infection."
Drs. Moon, McDonald, and Mertz, as expert witnesses for the state, in answer to a hypothetical question approximately eight hundred words in length, propounded by the prosecuting attorney, testified that the cause of death in such a hypothetical case was "toxic nephritis due to mercuric chloride ingestion with a terminal *** superadded infection"-"an acute staphylococci infection superimposed upon an acute nephritis in the kidney," etc. Dr. Warvel, another of the state's experts, testified that in his opinion the cause of death in such hypothetical case was "some secondary complication" or infection, the nature of which he was unable to state, "superimposed upon nephritis." These expert witnesses on cross-examination stated that they had testified at a former hearing (on a petition by the defendant to be let to bail) that they then diagnosed the death of decedent to have been due to bichloride of mercury poisoning. Two of them there testified that the lacerations on the breast did not produce or were not the cause of death. One of them, in reporting to the coroner the result of the autopsy, stated that he found on the lung a "localized solitary superative pulmonary lesion, possibly tuberculous."
We have pointed out that the state did not prove that the staphylococci infection referred to resulted from the bite on deceased's breast. But even if the evidence of the state could be considered as establishing the fact that death resulted, not from the poison alone, but from the effect of an infection from the bite on the breast superimposed from the nephritis caused by the poison, then such proof would necessarily have to be considered in connection with a consideration of the facts regarding the time of the infliction of the bite and the time of the taking of the poison, in order to determine the proximate cause of deceased's death. From the viewpoint of these medical experts of the state, the infection may have been "superimposed" upon the nephritis; but from the viewpoint of a court in determining the guilt or innocence of one charged with murder by infliction of a bite (which was not in itself a dangerous wound), such bite and the infection resulting therefrom could not be "superimposed" upon the dangerous condition arising from poison which was afterwards taken, so as to make the bite and not the poison the proximate cause of the death.
The fact that deceased, by reason of the bite and its resulting infection, may have been more susceptible to the fatal effects of the poison than she otherwise would have been, does not render the poison any the less the proximate cause of the death, 2 Brill Cyc. Cr. L. 1017, and does not render the bite, which was not a serious wound, the proximate cause of the death, unless the taking of the poison was the natural result of the wound. See discussion infra.
If the state had proved that infection in the lung and kidneys resulted from the bite on the breast, and that appellant inflicted the bite after the deceased took the poison, and an infection which resulted naturally from the bite then supervened or was superimposed upon the nephritis, a different case would be presented for our consideration.
Where wound is not dangerous and death results from cause subsequently arising (not at the direction of the one inflicting the first wound) the supervening cause is the proximate cause of death. Where a wound is inflicted by one person on another, which is not in itself dangerous or necessarily fatal, and death results, not from such wound directly, nor from such wound indirectly "through a chain of natural effects and causes, unchanged by human action," but death results from some cause subsequently arising not at the direction or connivance of the one inflicting the first wound, and but for such subsequently arising cause death would not have resulted, the infliction of the first wound is not the proximate cause of death, but the supervening cause is the proximate cause and the one responsible for the death. Bush v. Com. (1880) 78 Ky. 268; Livingston v. Com. (1857) 14 Grat. (Va.) 592; People v. Elder (1894) 100 Mich. 515, 59 N. W. 237; Quinn v. State (1914) 106 Miss. 844, 64 So. 738; Treadwell v. State (1884) 16 Tex. App. 560; Walker v. State (1902) 116 Ga. 537, 42 S. E. 787, 67 L. R. A. 426; State v. Johnson (1893) 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405; Notes, 16 Ann. Cas. 579; 8 A. L. R. 520.
"Contributing" cause of death must constitute a proximate contribution to sustain [654] criminal responsibility. The state cites numerous cases as supporting its proposition that "when a cause for which one is responsible contributed to death, he is not relieved from criminal responsibility by reason of the fact that another or other causes for which he is not responsible also contributed to such death," and in 29 C. J. 1079, it is said: "If an injury caused by defendant contributed to the death, defendant is responsible although a subsequent mortal wound inflicted independently by another also contributed thereto." The use of the words "contributes" and "contributed" in the foregoing statements is apt to prove confusing, unless a review is made of the cases upon which the statement is based, from which review it is seen that a proximate contribution is necessary to sustain criminal responsibility. In most of the cases cited, the first wound was a mortal wound, and in practically all of the cases the court held that the injury inflicted by the defendant, who was found guilty, was the proximate cause of the death. Of the six cases cited by Corpus Juris, five were cases where men were killed in fights as the result of joint acts of two assailants.[2]
Unlawful act must be the proximate cause of death. "To render a person responsible for the death of another *** his unlawful act or omission must be the proximate cause of the death of the person killed." 2 Brill Cyc. Cr. L. 1013-1014. In Dunville v. State (1919) 188 Ind. 373, 123 N. E. 689, 690, in an appeal from a conviction for manslaughter, it was held that "it is always necessary that the evidence show that the unlawful act is the proximate cause of the death." The part of the manslaughter act (section 2416, Burns' Ann. St. 1926), under which that conviction was had, provides that "Whoever unlawfully kills any human being without malice, express or implied, *** involuntarily, but in the commission of some unlawful act, is guilty of manslaughter. ***" The part of the statute under which this prosecution is based, section 2412 Burns' Ann. St. 1926, has been quoted supra, and it is likewise necessary to sustain a conviction under it that the evidence show that the act of the defendant in the perpetration of, or attempt to perpetrate, the felony specified is the proximate cause of the death. In the case at bar the evidence is not sufficient to show that the bite or the infection resulting therefrom was the proximate cause responsible for decedent's death, but it appears that bichloride of mercury poisoning was the supervening, proximate, and responsible cause thereof.[3]
Responsibility for deceased's having taken poison. While the state maintains that the wound inflicted during the attempted rape and the infection resulting therefrom was the cause of death and that appellant was guilty of murder by reason thereof, "even though the poison as a concurrent cause of death were taken by her without legal responsibility therefor by appellant"; yet it also contends that appellant is guilty of murder for the reason that he is legally responsible for deceased's having taken the poison.
It is unnecessary to consider here the much-mooted question as to whether suicide is a crime, or to consider the criminal liability of one who advises or aids another to commit suicide. See 37 Cyc. 521. Our statute, as already noted, provides that "Whoever *** by administering poison, or causing the same to be administered, kills any human being, is guilty of murder." See People v. Roberts (1920) 211 Mich. 187, 178 N. W. 690, 13 A. L. R. 1253. There was no evidence that appellant "administered" the poison or "caused the same to be administered" [655] to deceased, or that at the time the deceased took the poison she was under any restraint or compulsion by appellant, which would cause her act to be considered in law the act of the appellant.
Where, upon deliberation, one commits suicide because of shame, humiliation, or remorse, the one who caused such mental state, although he may be morally responsible for the death in the sight of God, is not guilty of murder under the law, unless he in some way procured, advised, compelled, assisted, or exercised control over the person performing the act. See 1 Hale, Pleas of Crown 429; 1 East P. C. c. 5, § 13; Com. v. Webster (1854) 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Reg. v. Murton (1862) 3 F. & F. 492.
It is said that the rule of the early common law that a homicide to be criminal must have resulted from corporeal injury (see 29 C. J. 1080) has been gradually modified and greatly relaxed in modern times, and that fright, fear, nervous shock, or producing mental disturbances can now be made the basis of a prosecution for homicide. 13 R. C. L. 846. This may be true in a proper case, but I do not believe that such a case has been made out here, nor can I follow the reasoning (nor in view of Potter v. State (1904) 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, can we approve the holding) of the case usually cited to sustain the statement made in R. C. L., supra, viz., In re Heigho (1910) 18 Idaho, 566, 110 P. 1029, 32 L. R. A. (N. S.) 877, Ann. Cas. 1912A, 138(which case held that where a bystander observed an altercation between two men, one of whom was armed, and died as the result of fright, terror, and nervous shock, the man who was armed was guilty of manslaughter under an Idaho statute defining the crime).
There is no charge in count one of the indictment, under which the conviction was had (as there is in count two), that deceased took the poison "acting under fear and duress and the compulsion of said D. C. Stephenson," but the charge in count one is that deceased "distracted with pain and shame so inflicted upon her by said defendants did procure and swallow into her stomach a large quantity of deadly poison, to-wit, bichloride of mercury." We must presume from the fact that the jury made no finding of guilty under count two that it did not consider the evidence sufficient to show that deceased destroyed her life under a well-grounded apprehension of immediate violence or injury from appellant so as to make her act "the act of him who compelled the deceased to take the step." Regina v. Pitts (1842) 1 Carrington & Marshmans 284; Hendrickson v. Com. (1887) 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596; State v. Shelledy (1859) 8 Iowa, 477, 506. See, also, Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233; Norman v. State (1902) 20 App. D. C. 494, and other cases cited infra.
Taking of poison as a natural consequence of the rape, attempted rape or bite. Only one argument by which the state sought to sustain the verdict of guilty under the first count of the indictment remains for consideration, viz., that one who inflicts a wound is held to contemplate and be responsible for the natural consequence of his act, and that at the time appellant committed the rape, or the attempted rape, he was bound to anticipate deceased's act of taking bichloride of mercury. I do not find any evidence to justify a finding that the taking of poison by deceased was such an act as a reasonable person under similar circumstances would have committed,Henderson v. State (1914) 11 Ala. App. 37, 65 So. 721; State v. Preslar (1856) 48 N. C. 421; Reg. v. Donovan (1850) 4 Cox, 397; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, or was a natural consequence of the rape (or attempted rape, or the bite made during the same) which the appellant was bound by law to contemplate. Quinn v. State, supra; Treadwell v. State, supra; Bush v. Com., supra; Livingston v. Com., supra; Note 8 A. L. R. 520. The facts in this case do not bring it within the rule laid down in the cases where the direct cause of death was an act of the deceased reasonably due to defendant's unlawful conduct, such as Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go alone with him to a secluded apartment and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him and was killed by the fall; Norman v. State (1902) 20 App. D. C. 494, where death was caused by falling into a canal while attempting to escape from violent assault; Hendrickson v. Com., supra, where accused used such force and violence as to cause his wife from fear of death or great bodily harm to leave the house on a cold night, whereby she died of exposure. See, also, Thornton v. State (1899) 107 Ga. 683, 33 S. E. 673; Adams v. People (1886) 109 Ill. 444, 50 Am. Rep. 617; State v. Preslar, supra.
After a consideration of all the foregoing propositions by the court, the per curiam opinion was adopted, which holds that the allegation in the indictment that Miss Oberholtzer was "distracted with pain and shame" when she took bichloride of mercury was sufficient to charge that she was mentally irresponsible when she took the poison; and that the evidence was sufficient to show the infliction of physical and mental injuries which rendered the deceased mentally irresponsible at the time of her "suicide." I do not believe the adjective clause of the indictment "distracted with pain and shame" is equivalent to a charge that the deceased was of unsound mind or was mentally unbalanced. Charges in an indictment must be clear and [656] plain, and if the grand jury had intended to make a charge that the appellant had by his acts caused Madge Oberholtzer to become mentally unbalanced and of unsound mind they would have done so by a definite and certain charge to that effect.
The trial was not had on any such theory, and there is no evidence to indicate that at any time the mind of the deceased was not clear and sound. We cannot assume otherwise without proof. An assumption that every person who commits suicide is insane as well as an unqualified holding that one who mistreats another so as to cause insanity is responsible for the criminal acts thereafter committed by such person, would lead to most dangerous legal consequences. There was no expert testimony to the effect that Miss Oberholtzer was at any time mentally irresponsible, and her own very carefully prepared "dying declaration" does not state nor does it indicate any unsoundness of mind at the time she took the poison. On the contrary, such declaration minutely describes her mental processes, and narrates and describes the events with great particularity; even to detailing the menu of Stephenson's breakast. It appears very clearly from her statement that she committed suicide because of "shame, humiliation or remorse." She expressly stated that she decided to take her life "in order to save my mother from disgrace," and that she wanted to kill herself "in Stephenson's presence." The evidence shows she was not accompanied by Stephenson, Klinck, or "Shorty," the chauffeur, or under their control when she was in the store where she purchased the hat or in the drug store where she purchased the poison, and that she returned without any compulsion to their rooms at the hotel where she took the poison.
I do not believe that the evidence is sufficient to sustain a finding of guilty under the first count of the indictment, and for that reason, as well as other reasons hereinafter stated, believe that the judgment should be reversed, with directions to grant appellant a new trial.
Conferring of jurisdiction upon change of venue. I agree with the conclusion reached by the per curiam opinion on the question as to whether the Hamilton circuit court had jurisdiction of the cause, the person, and the subject-matter in this prosecution. Appellant's contention is that jurisdiction over the cause and over his person could only be gained by the Hamilton circuit court by the depositing in that court of a transcript of the proceedings had in the criminal court of Marion county, duly authenticated by the signature of the clerk and by the seal of said criminal court; that the signature of the clerk to the certificate of the transcript was omitted and does not appear in the transcript, and that therefore there was in fact no transcript at all, and that the Hamilton circuit court did not acquire any jurisdiction. Appellant does not contend that the criminal court of Marion county did not grant the change of venue and order the case sent to Hamilton county for trial, nor does he contend that the transcript of the record transferred to the Hamilton circuit court was incorrect in any particular. The transcript was complete and in proper form, except for the signature of the clerk to the certificate.
Jurisdiction over a defendant is not conferred upon the court to which a change of venue is taken by the signature on the certificate to the transcript of the clerk of the court in which the case was pending before the change, but it is conferred by the order of the court which grants the change and directs where the cause is sent for trial. The change of venue and of jurisdiction is not completed until the requirements of the statute are met, with respect to the depositing of the transcript in the office of the clerk of the court to which the change is granted (sections 2239, 2240, Burns' Ann. St. 1926), but where a transcript, regular in form and sealed with the seal of the court, is deposited in the court to which the cause is sent, the jurisdiction of that court attaches, and the lack of the signature of the clerk of the other court, in the absence of any attack on the authenticity of the transcript, will be deemed a technical informality which might have been amended in the trial court, and which renders the transcript defective, but not void. A proper certification and attestation for a transcript is the signature of the clerk and the affixing of the seal of the court; but the absence of such signature of the clerk to the certificate could have been easily cured, and it does not appear that such defect in any way prejudiced any of the appellant's rights.
The appellant did not raise any jurisdictional question in the Hamilton circuit court, but acquiesced in the jurisdiction exercised by it and proceeded to trial therein. Appellant points out that no acts on the part of the defendant in a criminal case involving the deprivation of life or liberty can serve to waive that which the law makes essential, or that which the statute prescribes as necessary in order that the court may acquire jurisdiction; but it is also well settled that a party, by asking for a change of venue and appearing to the action in the court to which it is removed, waives his right to complain of any mere irregularity in the matter of the change. The Hamilton circuit court properly exercised jurisdiction in this case.
This appellant, in an application to the Laporte circuit court for a writ of habeas corpus for release from the Indiana state prison, presented the same question in this regard that is here decided. That court denied his application, and upon appeal to this court its[657] judgment was affirmed. Stephenson v. Daly (1927) 200 Ind. 196, at page 202 (see syllabus points 10, 11, and 12), 158 N. E. 289.
Admissibility of dying declarations. The principal questions in this case upon the admissibility of evidence arose upon the admission of the written dying declaration of deceased, and the testimony of a doctor to whom deceased made oral statements to the same effect as those contained in the written dying declaration. The law concerning the admission in evidence of dying declarations has been discussed in this appeal as exhaustively perhaps as in any case that has ever been before it. I therefore deem it important to state somewhat more fully than has been done in the per curiam opinion the questions involved and the law relating thereto. I concur in the decision reached by the court as to the admissibility of the written dying declaration, but believe that the testimony of the doctor was admitted without the necessary foundation being laid therefor.
Deceased's written dying declaration. The written dying declaration of the deceased consisted of more than three thousand words. It was signed by her on March 28, ten days after her trip to Hammond and seventeen days before her death. It appears from the evidence that just before it was read to and signed by her, her physician for the first time advised her that she was going to die. He told her that she had no chance for recovery; that she was going to die, and told her why; that the blood test that afternoon showed a worse condition and that her condition was unfavorable, and that he wanted her to understand it. He gave as reasons to her that she could not recover that her kidneys were broken down and destroyed from the poison, and that poison had made such a spread in her system that she could not recover. She said, "Doctor *** I understand you, I believe you and I am ready to die." This, together with other evidence which is in the record of her statements, and of her physical condition as a result of the poison, meets the two essential requirements for an admissible dying declaration hereinbefore stated, viz., that the declarant shall be in extremis and shall have abandoned hope of recovery and be under a firm conviction that death is inevitable and near at hand.
The dying declaration was prepared for the deceased's signature by Mr. Asa J. Smith, an attorney and friend of the Oberholtzer family, and others who were assisting him. Mr. Smith went to the Oberholtzer home and saw deceased on the afternoon of the day she returned home. At the request of deceased's mother he had helped to search for her on the previous night, March 16 (after her departure from home on the night of March 15 and the receipt by her mother of a telegram from her dated at Hammond), and had gone with the mother to appellant's home during the search. He was employed by the deceased's father to bring a civil suit against appellant, or "do whatever was necessary in the matter." Mr. Smith visited deceased practically every day from March 17, to March 28. Three or four days before March 28 he began the preparation of the dying declaration. He made notes from memory of what deceased at different times had told him of the events which occurred on her trip to Hammond and reduced the same to writing in his law office. Miss Ermina Moore, an intimate friend of deceased, on March 26 took to Mr. Smith's office notes which she had made, and they also were incorporated by him into the written statement. He selected the words and built up the phrases to make what he thought was the substance of what deceased had told him. This he read over and corrected, and then in the presence of Miss Moore and Mr. Griffith D. Dean, his law office associate, he dictated to a stenographer, from what he had written, the entire statement. Two days later (March 28) Mr. Smith and Miss Moore went through this draft of the statement and again corrected it. Then Mr. Smith again rewrote a part of it in longhand, then redictated to the stenographer the entire statement, except the pages he had rewritten. About 6 p. m. the same day at deceased's bedside, with Mr. Dean, Miss Moore, and Dr. Kingsbury also present, Mr. Smith read the statement to deceased very slowly and distinctly. He stopped in the course of the reading after each sentence for her affirmance or denial, and made some corrections which she desired. As he proceeded with his reading, he asked deceased if she understood it and if it was correct, and she said "I do understand it *** it is correct," except at certain times she said things were not correct and Mr. Smith made, in ink, the changes she desired. He showed her the place to sign and told her if it was true she could sign it and she said, "I will sign it," and did so.
The exception to the rule against hearsay evidence which permits the introduction and consideration in felonious homicide cases of dying declarations was introduced into the law less than two hundred years ago as matter of the fullest necessity or public policy to detect and punish those guilty of crime, since by their crime, usually committed in secret, offenders may still the tongues of the only persons in the world who could affirm their guilt. The reasons against admitting such evidence (that they do not [usually] bear the sanction of an oath, are not subject to the test of cross-examination, eliminate the right of the accused to confront the witness, are subject to misconstruction by auditors or amanuensis who are ignorant, inattentive, or criminally motivated, that they may permit a conviction on the statement of one whose [658] body is weakened and whose mind may be disordered by the panic of momentary death, and who may harbor malice and vindictiveness) were only put aside on the theory that the immediate approach of death, under the sanction of a moral sense of certain and just retribution, silences every motive to falsehood, and by the most powerful considerations induces the mind to speak the truth, creates a situation so solemn and awful as to exclude the supposition that the party making them could have been influenced by malice, revenge, or any conceivable motive to misrepresent, and amounts to an obligation equal to that imposed by a solemn oath in a court of justice. See cases collected in Note, 56 L. R. A. 353.
It was not shown, nor was it necessary to show, that deceased was under a firm conviction of impending death at the time she held the conversations with the attorney from which he constructed the statement, for it does appear that at the time she adopted and signed the statement as her dying declaration she had abandoned hope of recovery and had a firm conviction of impending death. 30 C. J. 257. The fact that the declaration was prepared by a lawyer who was interested in a civil action against appellant should render such a declaration subject to the closest scrutiny; but we cannot say that the declaration was rendered inadmissible by the fact that he prepared it. In the absence of any evidence of improper conduct on the part of the attorney such objection to the dying declaration would not go to its admissibility, but to its weight, which is solely a question for the jury. 1 R. C. L. 547. In Harper v. State (1902) 79 Miss. 575, 31 So. 195, 56 L. R. A. 372, a dying declaration was held to have been erroneously admitted; the court (after doubting the authenticity of the declaration) holding that there was not sufficient evidence of a solemn sense of impending dissolution when the deceased signed the statement. The statement had been prepared by deceased's attorney, who feared a fatal result might ensue, to be signed by the patient whenever he came to think he would die. The court said: "Moreover, we think a declaration prepared by a person in full possession of his mental faculties, and in confident hope of recovery, to be signed in the possible event of subsequent conviction of a fatal termination, is too much tainted to be admissible in evidence." This dicta is not applicable to the facts here, nor do we approve it unqualifiedly as a correct statement of law.
Appellant's objection to the admission of State's Exhibit No. 1 (the dying declaration) was addressed "separately and severally as to each word, phrase, sentence, paragraph, part, conclusion and opinion" and stated at length his objection to the declaration as a whole (that the corpus delicti had not been established independently of the declaration, that the declaration is one of suicide, that it shows that death was not the proximate result of defendant's acts, that it was made nineteen days before death and when deceased was not in extremis and when she had not abandoned hope and was not under a sense of impending dissolution, that no causal connection was shown between the defendant's act and her death, that it is a recital of past events and the conclusions and opinions of the declarant and is not limited to declarations to identify defendant with the circumstances producing and attending death). The objection was sufficient to raise the general questions concerning the declaration as a whole which we have already discussed, but it was not sufficient as an objection to specific parts of the declaration. An objection generally to "every word, phrase, sentence," etc., does not point out to the court with sufficient certainty the part or parts of the statement which the party deems objectionable.
The court properly struck out of the statement sentences telling of deceased being "impressed with Stephenson's power and influence"; of her being "attracted by his apparent influence and power with the state officials and his general political influence"; of what he said to her at dances, and what he said when he drove her to her home "while the legislature was in session"; because it is not permissible to show by a dying declaration matters occurring anterior to, and not immediately connected with, the homicide, nor to show the conduct of the parties at another time nor to show the opinions and mental conclusions of the deceased. Montgomery v. State (1881) 80 Ind. 338, 41 Am. Rep. 815; Binns v. State (1874) 46 Ind. 311; Jones v. State (1880) 71 Ind. 66. For the same reason the court, if proper objections had been made, should have struck out of the statement those sentences stating that deceased "first met David C. Stephenson at the banquet given for the Governor at the Athletic Club early in January 1925," telling of her various dinner engagements with appellant at a hotel, and of a party at his home "with several prominent people."
Appellant points out specifically in his brief numerous statements in the dying declaration which he says are merely "conclusions, opinions and recitals of mental operations of deceased." A mere conclusion or expression of opinion or belief by a dying person is not admissible as a dying declaration, Boyle v. State (1886) 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218; Montgomery v. State, supra; Binns v. State, supra, but where a dying declaration contains unimportant expressions of opinion or conclusions such as a number of those statements here objected to are, and which taken in connection with the entire declaration are not prejudicial, their admission is not error. Cleveland v. Com. (1907) 101 S. W. 931, 31 Ky. Law Rep. 115.
[659] Dying declarations are limited to a recital of facts connected with the res gestæ of the alleged crime. Under the several counts of the indictment under which appellant was tried, the alleged criminal act was murder in the perpetration of, or attempt to perpetrate, a rape, in the administering of poison, and by restraining and preventing medical assistance and services; hence the rather wide scope of the dying declaration here was not improper.
Deceased's oral statements to physician. The doctor, John F. Kingsbury, after stating his residence, age, and professional training, testified that he was called by telephone at 11:30 a. m. March 17, and went immediately to the Oberholtzer home; that he found Miss Madge Oberholtzer lying on a bed in a state of shock, pale and cold, and with a rapid pulse; that she was dressed in clothing in a disheveled state, her dress being open in the front exposing bruises on her chest, and that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been injured in an automobile accident). He was then asked if, in the course of his examination, she said anything in reference to whether or not she expected to die, and what it was. He replied (over objection) that "she said she didn't expect to get well, didn't want to get well, that she wanted to die." He was then asked: "Now doctor, just detail any conversation which you may have had with her concerning her condition?" He replied: "I asked her how badly she was hurt; she said she didn't know. I then made a hasty examination of her, found no bones broken and told her I found none, and I asked her how it happened. She said: 'When I get better I will tell you the whole story.' Because of her state of shock, and being thrown in on to that condition without preparation, I didn't know how severely she was hurt or injured and pressed her for a reply to my question, she then said. ***" At this point, appellant again interposed an objection including the ground that it had not been shown that deceased was in extremis, or that she thought she was going to die soon, which objection was overruled. The doctor then proceeded to relate in an answer that occupies 145 lines of the typewritten record a narration, as told him by Miss Oberholtzer, of all the events occurring from before the time she left home until she returned.
The only other evidence which had been adduced, up to the time Dr. Kingsbury testified, that would bear on the admissibility of deceased's statement to the doctor as a dying declaration was that given by Mrs. Eunice Shultz, who was a roomer at the Oberholtzer home. She testified that the man who brought Madge home told her that "She was hurt in an automobile accident *** he said he did not think any bones were broken"; that she saw the bruises on various parts of Madge's body which she described. In reply to the following question by the state, "Now Mrs. Shultz what, if anything, did Madge say to you when you came in the room?" Mrs. Shultz testified, "She said 'Oh I am dying Mrs. Shultz. ***"' The witness further testified that Madge "groaned 'Oh' and 'Dear Mother,"' and told her to call a physician.
The conditions essential for the admission in evidence, as an exception to the hearsay rule, of unsworn statements of a dying person regarding the circumstances of the homicide in the trial of one accused thereof are (1) that the person making the dying declaration must be in extremis, i. e., beyond hope of recovery; and (2) that such person must have abandoned all hope of recovery from the injury alleged to have been inflicted by the accused, and be under a firm conviction that his death is inevitable and is near at hand. McKee v. State (1926) 198 Ind. 590, 154 N. E. 372; Morgan v. State (1869) 31 Ind. 193; Watson v. State (1878) 63 Ind. 548; Jones v. State (1880) 71 Ind. 66; Archibald v. State (1890) 122 Ind. 122, 23 N. E. 758; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Williams v. State (1907) 168 Ind. 87, 79 N. E. 1079. These conditions were not proven to have existed at the time the deceased made the statements to the physician which were here admitted in evidence. There was no testimony that at that time there was no hope of deceased's recovery or that she was near death. Deceased stated that she didn't know how badly she was hurt, and the doctor testified that at that time he did not know how severely she was hurt or injured. Regarding deceased's mental attitude toward her condition, she told the doctor that she didn't expect to get well and didn't want to get well, and said to Mrs. Shultz "I am dying," yet she had Mrs. Shultz send for the doctor and said to the doctor "When I get better I'll tell you the whole story."
Contradictory statements as to expectation of impending death have been held to prevent the admission of a statement as a dying declaration, 30 C. J. 266, citing Bilton v. Terr., 1 Okl. Cr. 566, 99 P. 163.
The appellee contends that the words last above quoted "could not have been meant literally"; that deceased spoke the words to avoid further questioning by the doctor; and that regardless of such words the deceased at that time was under a firm conviction of impending death. It is possible that even where a declarant expressed an opinion that he would recover, the circumstances may show that such was not his real belief. 30 C. J. 266. Also the fact that a declarant said he would not recover or would die does not show that he was without hope and expected a speedy dissolution; his statements in this regard also may be overcome by the surrounding [660] circumstances. 30 C. J. 265, 266; Morgan v. State, supra.
Prior to the introduction in evidence of the testimony of Dr. Kingsbury regarding what deceased told him, there had been no evidence received showing wounds or injuries so serious or illness so critical that an inference would necessarily arise that the declarant was under a pending sense of dissolution. See Gipe v. State, supra; McKee v. State, supra. The only witnesses who had testified were the mother of deceased and Mrs. Shultz, and no circumstances had been detailed in evidence which would serve to meet the conditions stated above under which the statements of deceased to Dr. Kingsbury would be admissible as dying declarations of Madge Oberholtzer.
It may be noted further that at the time Dr. Kingsbury testified concerning what deceased told him, no proof had been offered by the state to show that Madge Oberholtzer died, or the date when she died. The only thing in evidence, at that time, in which her death was referred to, even indirectly, was a question to Matilda Oberholtzer, "What relation did you sustain to Madge Oberholtzer during her lifetime?" which was answered "I am her mother." The death did not occur until about a month later than the conversation detailed by Dr. Kingsbury. While the admissibility of such evidence does not depend upon the length of the interval between the declaration and the death, Jones v. State (1880) 71 Ind. 66, 73, 74; Wigmore, Evidence (2d Ed.) § 1441, yet such length of time is a proper element to be considered in determining whether the declarations were made under a sense of impending death. State v. Colvin (1910) 226 Mo. 446, 126 S. W. 448; State v. Schmidt (1887) 73 Iowa, 469, 35 N. W. 590.
Statement made by the court to the jury. I cannot concur in the holding of the per curiam opinion regarding the remarks of the trial judge in ruling on the admissibility of evidence (Appellant's sixteenth point). This court disapproves the practice of such discussion by the trial court in the presence of the jury, but by affirming the judgment holds that such remarks were not reversible error.
The state in examining, as a witness, the father of the deceased asked him to relate what deceased told him had happened on her trip to Hammond. An objection was made by appellant on several grounds stated; the principal one being that a proper foundation for its introduction as a dying declaration had not been laid. Thereupon, in the presence of the jury and over the objection of the appellant, the court made the following statement: "On the question of dying declarations, gentlemen, this is the court's view: I think I can explain that. The dying declaration may be based on conditions rather than statements; I mean, not rather than statements but as well as statements. She may make a statement to the effect that she does not think she is going to get well, she is sure she is going to die; that would form the basis of a dying declaration. It has also been held that if her condition is such that she must know that she can't get well, then that is sufficient upon which to base a dying declaration, even though she might not utter a word about that condition. The counsel stated, perhaps unthoughtedly, because he did state she more than once said to him that she did not think she would get well, she made it the first time and at the time he tried to encourage her, this language was, 'Daddy, I can't get well'; she made that several times. Now the question is not provable only in murder cases that is true, but the theory is that, while it is not sufficient in a case of suicide, but this comes perhaps a little nearer by the line, along this line. In England there are crimes for persons to commit suicide, but here is the situation: it is not a question we are trying of suicide, but the complaint proceeds that murder has been committed indirectly, by causing the suicide, now the question is, whether that can be done, and I am letting this go to the jury for the purpose because I think it can. Here is the situation, suppose it is suicide, this is for the jury, I am not deciding the question but that is the reason I am ruling on the evidence. Suppose-and I am not saying anything about what kind of a lady Miss Oberholtzer was, but suppose she was a virtuous woman, suppose anybody, I don't take her case, suppose any woman was a virtuous woman and she was attacked for the purpose of committing rape, if that be true, assuming that, not as being true, but just for the purpose of the argument. She might be confronted with this condition, I have either got a chance to lose my virtue or life, suppose her virtue was dearer to her than her life, suppose that was true, would the law say to her, no, you can't take your life, you must submit your virtue. The question is, must these men anticipate this suicide as a reasonable result of their acts. Suppose I attack a virtuous woman, what must I presume? Will the law allow me to presume she does not attach greater value to her virtue than her life; will the law say that I am not presumed to indulge this presumption that she would take her life because she regards her virtue more than her life; will the law say that? I think that is the thing for the jury. The question is, am I presumed she would stake her virtue or take her life, if that is the only theory, if it is reasonable to be presumed she will take her life if a virtuous woman. That is for the jury to determine; if they determine that is a reasonable thing for her to do, then I have committed murder, if it is unreasonable, I have not; if the law says to the man who has attacked a virtuous woman,-I am not saying that is the condition here, but I am saying it [661] on a supposed case, but in passing on the evidence and giving a reason, and I do this once for all. If the law charges me under such condition, I attack a real virtuous woman I am presumed to intend the natural consequences of my acts; now what are the natural consequences? I might place a virtuous woman where she would have to say, I stand every chance of losing my virtue or losing my life; must I presume that woman-am I allowed to presume that woman regards her life dearer than her virtue; on the other hand, must I anticipate that she regards her virtue dearer than her life? If that is the fact, that is a fact for the jury to determine; then I must anticipate this woman is liable to kill herself, and if that is the natural consequence of the act that I have done, then it is for the jury to determine, and if it considered it a natural consequence, then this evidence is admissible."
Appellant's objection to the statement made by the court in the presence of the jury was overruled, as was his motion to set aside the submission and discharge the jury on account of the making of such statement. Appellant's counsel then asked leave to discuss with the court the law on the questions involved, which the court declined to hear, and then made the following further statement: "I would not want the attorneys to think the court had not carefully considered, and I would not want them to say I have not; I don't say I am right but that is my opinion; I would not shoot off that way unless I had given it thought, and I don't suppose the counsel means to intimate, but we will take that up, gentlemen, and discuss it later."
The question to be decided by the trial court was whether it should sustain or overrule the objections made by defendant's counsel. The ruling of the court could easily have been announced in two words; yet the court used 700 words. Stating aloud to the jury the long series of mental processes by which the court reached its conclusion could serve no useful purpose. Instructions to juries at the proper time and in an orderly manner are provided for by law, and it is highly improper for a court to make a long discourse in the presence of the jury on the law or the theory of the case, which can be, and doubtless was in this case, accepted by the jury as an instruction. If the judge desired to expound to counsel his view of the law involved, he should have done it out of the presence of the jury. It would have been proper for him, in the absence of the jury, to have listened to argument by counsel on the question involved. In its remarks, the court assumed certain situations of fact to exist which were not alleged in the indictment nor shown to exist by evidence in the case; it made uncertain and incomplete statements regarding certain theories and rules of law which were of doubtful application to the case at bar, and I believe that such remarks were prejudicial to appellant's rights.
Scope of cross-examination of interested witness. The attorney who prepared the deceased's written dying declaration testified that he had gone with deceased's mother to appellant's house hunting for her on the night the party returned from Hammond, and that he had gone to deceased's home practically every day from March 17 to 28, during which time he wrote, corrected, and rewrote the dying declaration. On cross-examination, he testified that he had been employed by deceased's father to collect money from appellant, or to do whatever was necessary; but the state's objections were sustained to questions asking him whether he had prepared a complaint in the case and whether he had gone to see appellant at his office about a settlement of the case. A defendant has the right to fully cross-examine the witnesses against him and to test thereby their credibility or show their interest, bias, or prejudice against him. Bedgood v. State (1889) 115 Ind. 275, 281, 17 N. E. 621; Hyland v. Milner (1885) 99 Ind. 308, 311; Kinsman v. State (1881) 77 Ind. 132, 137. I believe it would have been proper to have permitted the questions asked to be answered; but by the evidence adduced in response to questions which the court did not permit to be answered, the nature of the attorney's employment and his interest appeared, and we cannot say that the trial court abused its discretion in limiting as it did the scope of the cross-examination. Foust v. State (1928) 200 Ind. 76, 161 N. E. 371.
Inapplicable instructions. Instruction No. 45, given by the court of its own motion, read as follows: "The law declares that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor, although the death would not have resulted from the injury, but for the diseased and wounded condition of the person so injured, already existing at the time of such act of acceleration."
This instruction is selected as one of several which are not applicable to the evidence. The giving of such inapplicable instructions could only tend to mislead and confuse the jury. I cannot agree that the court was justified in giving instruction 45 upon the theory that under counts 2 and 4 appellant is charged with willful murder by poison, and that the act of acceleration referred to in the instruction was the poison.
I am in accord with all the statements made in the separate opinion of TREANOR, J., which do not conflict with the views expressed herein.
TREANOR, J. (dissenting in part, concurring in part, dissenting from the conclusion).
I agree with the per curiam opinion that there was no error in overruling the motion [662] to quash the first count, and reach this conclusion by construing the first part of the first count down to and including the allegations respecting the taking of poison as charging a killing in an attempted rape. The first count contains three more or less distinct sets of allegations, each setting out a species of wrongful conduct. One set centers around the actual rape, or attempted rape; the second includes the facts of the procuring and taking of the poison; and the third relates to the withholding of aid after the poison had been taken. But since the first count closes with the allegation that Madge Oberholtzer died "from the effects of her wounds inflicted as aforesaid and said poison taken as aforesaid" it may be construed to charge that the defendants caused the death of Madge Oberholtzer by reason of wounds inflicted during the perpetration of the attempted rape and by reason of poison taken as a result of the attempted rape. I also agree with the per curiam opinion in construing "distracted with the pain and shame so inflicted upon her" to be equivalent to saying that the victim of the assault was in a state of mental irresponsibility when she procured and took the poison. As I shall later point out, I do not think that the trial was conducted on the theory that these words imported the fact of mental irresponsibility; but as against a motion to quash they should be so construed. See 18 C. J. 1289; Webster's New International Dictionary under "distraction." See, also, sections 3424 and 900, cl. 3, Burns' Ann. Ind. St. 1926, and in connection therewith, Goodwin v. State, 96 Ind. 550, especially on Petition for Rehearing; Sage v. State, 91 Ind. 141, 145. But this construction of count 1, which enables us to say that there was no error in overruling the motion to quash, eliminates from the charge of murder in an attempt to rape all of those allegations respecting the withholding of aid, and forces the conclusions that the trial court erred in overruling the motion to strike out that portion of count 1 which contained these allegations of failure to furnish aid during the return trip to, and after arrival in, Indianapolis. For despite the state's insistence that "the whole trip from Indianapolis to Hammond and return forms a part of the res gestæ relating to attempted rape," we cannot ignore the plain fact that there was no attempt to commit a rape after the parties registered at the hotel at Hammond. The allegations respecting the taking of poison are properly included in the first count charging murder in an attempted rape on the assumption that the count charges that the actual attempt to rape caused the taking of the poison; but since the alleged acts of failure to provide aid were not a part of the attempted rape, or causally connected therewith, their inclusion in the first count cannot be justified by calling them "a part of the res gestæ of attempted rape."
We understand the per curiam opinion to hold that these allegations should have been stricken out as surplusage, but that the refusal to strike out was harmless error. The case of Torphy v. State, 187 Ind. 73, 118 N. E. 355, is authority for the rule that a motion to strike out is the correct procedure to remove improper matter from an indictment when the presence of the improper matter does not constitute one of the statutory grounds for a motion to quash; and in that case this court held that the trial court committed reversible error in overruling a motion to strike out of the indictment certain prejudicial allegations. We agree with the analysis of Torphy v. State, supra, contained in the per curiam opinion, but do not accept the reasoning by which the opinion reaches the conclusion that the force and authority of that case is limited to the error in overruling a motion to strike out allegations from an indictment only when these allegations serve the purpose of "conveying facts to the jury that could not be properly presented in evidence from the witness stand." Per curiam opinion, supra, 179 N. E. page 638.
That particular danger did not exist in the instant case since, as the majority opinion points out, the objectionable allegations in the first count were all included in the fourth count, and any evidence which might have been admitted to support the allegations in the first count was clearly admissible under the fourth count. In fact most, if not all, of the facts alleged in the first count relating to failure to furnish aid were competent evidence under the res gestæ rule of evidence. But the defendant's interests were seriously prejudiced because the retention of the allegations in question must have confused and misled members of the jury as to the scope of count 1, and as to the proper application of that part of the evidence which supported the allegations. Indeed, when we consider instructions 46 to 50, it seems inevitable that the jury understood that the objectionable allegations in themselves constituted and charged a separate and distinct offense of felonious homicide under count 1. The substance of these instructions, as applied to the evidence in the case, is fully and clearly indicated by instruction No. 48, which is as follows: "If you are convinced by the evidence beyond a reasonable doubt that these defendants or any of them voluntarily took Madge Oberholtzer into their custody while she was in a weak, sick or helpless condition from any cause whatsoever, and continued to exercise control and custody over her, and that while they were so exercising such control and custody over her, she became violently ill from any cause whatsoever, [663] then I instruct you that it was their duty under the law to care for her without wicked negligence, to supply her with care and medical attention if necessary within their means and to render her whatever assistance the evidence in this case shows beyond a reasonable doubt to have been necessary to the preservation or the prolongation of her life and if you believe from all the evidence in this case that they did so take her into custody, and that she did become violently ill for any reason whatsoever, and if you further find that they failed and refused to render her such medical attention and assistance within their means, and if you further find that she afterward died as a result of such failure to render her such medical assistance, or her life was shortened by the failure on the part of these defendants or any of them so to act, then I instruct you that they are guilty of manslaughter if you find said omission to act was mere negligence, but if you find that such omission or failure to act was done willfully, with a reckless disregard of the consequences, then I instruct you that they would be guilty of murder."
The state insists that instructions 46, 47, and 48 were "clearly confined to count 4, which was the only one on the theory of willful murder by reason of failure of appellant to perform the legal duty of affording care and medical relief after the poison was taken"; although "the State agrees with appellant that Instruction No. 47 given by the Court is not applicable to Count 1 under which alone the appellant was found guilty." Appellee's brief, p. 153. If these instructions were "clearly confined" to count 4, it must be presumed that the jury so understood, and consequently any intrinsic defects in the instructions were rendered harmless by the failure of the jury to convict on count 4. But it appears to the writer that these instructions clearly were not confined to count 4. In none of the instructions 46 to 50, inclusive, is there any statement expressly limiting the instruction to count 4; and the phraseology and content suggest equally the objectionable allegations in count 1 and the allegations in count 4; and when we consider instructions 49 to 50 it is clear that the trial court intended that the jury should apply these instructions to count 1. To get the full force of these two instructions, it is necessary to consider that the evidence did not clearly show to what extent Klinck, one of the defendants, participated in the criminal transaction, and especially that part of the affair which involved the trip to Hammond and the criminal assault. In instruction 49, the court correctly charged the jury respecting Klinck's responsibility for acts of his codefendants committed outside his presence, and in instruction 50 makes the following statement: "*** Unless you are convinced beyond a reasonable doubt that said Klinck was a party to, or participated in a plan of said other two defendants or either of them to entrap and to make a criminal assault upon the person of Madge Oberholtzer, as alleged in the indictment, with knowledge of the purpose of said plan, he could not be liable for the acts of said other two defendants or either of them, outside his presence, and during said trip to Hammond, if you find such trip was made; *** and although he might not have been a party to such a plan, as alleged, and hence not liable for the acts of said other defendants, while on said trip, if such trip was made, yet if you are convinced by the evidence beyond a reasonable doubt that subsequently said Madge Oberholtzer was returned to the garage of the defendant Stephenson, in a weakened and helpless condition, in which condition she was placed into the custody and control of said Klinck in said garage which he assumed and undertook to perform, then I instruct you that at that time there was a legal duty resting upon him to use all reasonable means within his power to care for her, and if he failed to do so, either by an act of commission or an act of omission, by reason of which her life was shortened he would be guilty of felonious homicide under the first or fourth count of the indictment." (Our italics.)
In the foregoing, the trial court told the jury that Klinck might be convicted of felonious homicide under the first count, even though the jury should find that he was not responsible for any of the acts of his codefendants prior to the trip back to Indianapolis, provided only the jury should find that he was criminally responsible for withholding aid, and that such withholding of aid shortened the life of Madge Oberholtzer; and we must necessarily conclude that the trial court and the jury understood that the allegations in the first count covering the failure of defendants to supply aid constituted either a charge of felonious homicide as a substantive offense, separate from and independent of the charge of murder in the attempted rape, or an essential element in the offense of murder in the attempted rape, to the same purpose and effect as the wounding and the taking of the poison. If the former was the jury's understanding, then the appellant Stephenson was in fact, no matter what this court's theory of the scope and construction of count 1 may be, tried and convicted on a count charging two distinct and separate substantive offenses, on one of which he could be convicted of murder without any allegation or proof of purpose to kill, and on the other of which the degree of homicide might range from involuntary manslaughter to first degree murder. If the latter was the jury's understanding, the appellant was convicted under a count which permitted the jury to find [664] him guilty of murder in the attempted perpetration of a rape, in case the jury should find that he was guilty of an attempted rape and also found that he accelerated or caused the death of his victim by negligently failing or refusing to supply aid; and he could be convicted thus, without the necessity of the jury's finding that the appellant was legally responsible for the taking of the poison, or to what extent, if any, the wounds contributed to the death of the victim. The injury to the appellant is obvious. The evidence showed only three possible causes of death, the wound on the breast, the poison, and the withholding of aid. The evidence connecting the wound with the death is, at the best, strikingly weak and unsatisfactory. The jury reasonably might have found that it was not a factor. Both the per curiam and the individual opinions agree that, in order for the appellant to be legally responsible for the taking of the poison by his victim, it was necessary that the jury find that the natural and probable consequence of appellant's mistreatment of Madge Oberholtzer was to render her mentally irresponsible, and also find that while thus mentally irresponsible, and as a result thereof, she procured and swallowed the poison. Under the foregoing test, the jury reasonably could have concluded that Stephenson was not legally responsible for Madge Oberholtzer's act of taking the poison. Further, both the per curiam and the individual opinions agree that the alleged acts of Stephenson in refusing or withholding aid cannot be considered a part of the offense of murder in attempted rape. In view of the foregoing, it is clear that the defendant was entitled to have the jury understand that he could not be convicted on the charge of murder in an attempted rape unless the jury should find (1) that the wound, with the resulting infection, caused death; or (2) that the defendant was legally responsible for the taking of the poison, and that death was caused by the poison; or (3) that the defendant was legally responsible for the taking of the poison, and that the death resulted from the concurring effects of the wound and the poison. The defendant was entitled also to have the jury understand that the allegations respecting withholding of aid, in so far as they charged a public offense, charged the offense of homicide in the commission of an unlawful act, and that the defendant might be convicted on this charge only under count 4, and could be convicted of murder on this charge only in case the jury should find that the unlawful act (i. e., failing or refusing to afford aid) was committed for the purpose of causing the death of Madge Oberholtzer. Further, it was of vital importance to the defendant's legitimate defense that the jury clearly understand that the unlawful act of refusing aid could not be substituted as a cause of death, for either the wounding or taking of poison, in order to make out the offense of murder in attempted rape, as charged in the first count. I do not mean to say that evidence of the failure to supply aid could not be introduced to show the efficacy of either the poison or the infection from the wound in causing death. But I do mean to say that if the jury concluded that the infection from the wound on the breast was not an appreciable factor in causing death, and if the jury also concluded that the defendant was not legally responsible for the taking of the poison, both of which conclusions would not have been unreasonable, then the jury could not have found the defendant guilty of murder in an attempted rape, even though we assume that the jury was convinced beyond a reasonable doubt that the defendant was under a legal duty to furnish care and medical aid to Madge Oberholtzer, and that by reason of his failure or refusal to do so accelerated or caused her death. Under the last assumption, the defendant was undoubtedly guilty of felonious homicide under count 4, but the degree of homicide had to depend upon the mental state of the defendant in fact, and could not be supplied by, or presumed from, the fact of the attempted rape.
I am convinced that the retention in the first count of the objectionable allegations and the effect given them, as indicated by instructions 46 to 50, misled the jury as to the scope of the first count, as construed and limited by both the per curiam and individual opinions, and consequently substantially prejudiced the interests of the defendant.
I think the trial court committed further reversible error in the giving of instruction No. 41. This instruction is as follows: "The law presumes that one intends the natural and probable consequences of his acts, whether he actually intended or anticipated them or not. Of course such presumption can not be indulged in and carried to the extent of making one guilty of homicide on account of voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she has assented voluntarily. But if in such case, there be no voluntary assent on the part of such person taking his or her life, to such past action which caused such remorse, grief, shame and humiliation but that he or she was compelled to participate in such action causing such remorse, grief, shame or humiliation through force, threats, coercion and restraint of another. Then it is for the jury to determine whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."
[665] Instruction 41 undoubtedly referred to, and was understood by the jury to refer to, that particular part of count 1 which alleged the facts respecting the taking of poison by Madge Oberholtzer, since that part alone involves the question of suicide.
This instruction must be considered in the light of the holding of both the per curiam and individual opinions that the defendant was not legally responsible for Madge Oberholtzer's act of procuring and swallowing the poison unless the poison was procured and swallowed by her while in a state of mental irresponsibility induced by the wrongful acts of the defendant, and the natural and probable result thereof. See per curiam, supra, 179 N. E. 649. And I believe that instruction 41 violates the foregoing by omitting the element of mental irresponsibility and by making the responsibility of the defendant for the act of self-destruction depend on the simple test of whether, according to the standard of the jury, her act was the natural and probable consequence of the misconduct of the defendant. I appreciate that the per curiam opinion, while recognizing the necessity of the element of mental irresponsibility, construes the instruction to mean that if the jury found "that the suicide was the natural and probable result of the acts of appellant they necessarily had to find that the acts of appellant resulted first in rendering the deceased distracted and mentally irresponsible; for the willful and deliberate destruction of one's own life is not the natural and probable action of one who is in sound mind." But as I construe instruction 41, it told the jury that it could find "that the suicide in such a case" was the "natural and probable consequence of the acts of such person," even if the one committing suicide was of sound mind. I agree with the per curiam statement that a deliberate and willful taking of one's own life is not a natural and probable act of one of sound mind; and consequently it follows that a wrongdoer is not required by law to anticipate such an act, by one of sound mind, as a legal consequence of the acts of the wrongdoer. But we cannot assume that one of sound mind will not commit suicide, and then, by a process of reasoning backward, conclude that one who commits suicide is not of sound mind. The fatal defect in instruction 41, as I interpret it, is that the jury could find the appellant legally responsible for the deceased's act of procuring and taking poison without definitely determining (1) whether the victim was in fact rendered mentally irresponsible by the acts of the appellant; (2) whether this condition was the natural and probable consequence of appellant's acts; and (3) whether the act of self-destruction was the natural and probable consequence of the mental derangement. The last-mentioned element has a special significance in this case, since it would seem necessary that there be some reasonable relation between the act of the mentally irresponsible person and the particular type of mental irresponsibility.
In instruction 6, tendered by appellant, the court defines suicide thus: "Suicide is taking one's own life while possessed of sound mind." (Our italics.)
Instruction 41 first carefully stated that a person cannot be held to anticipate, as a consequence of his acts, a "voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame, or humiliation growing out of some past action of himself or herself and another to which he or she has assented voluntarily." (Our italics.) The court then states the conditions under which it is "for the jury to determine whether or not the suicide in such a case, after considering all the circumstances relating thereto, is the natural and probable consequence of the acts of such other person." It is clear from this statement of conditions that the criminal responsibility is made to depend upon the question whether the victim of self-destruction was a willing or unwilling participant in the "past action causing such remorse, grief," etc. There is no suggestion that the mental irresponsibility of the victim is a factor "in such a case," and we think it impossible to construe the instruction to require the jury to find that the defendant should have anticipated, as the natural and probable result of his conduct, that Madge Oberholtzer would be rendered mentally irresponsible; and to further find that she was rendered mentally irresponsible, and as a consequence of her mental irresponsibility committed suicide. The fact of forced participation would, of course, be important evidence in gauging the mental and emotional reaction of the victim for the purpose of determining whether she was in fact rendered mentally irresponsible; but such fact should not be made the basis of a rule of law which creates a class of cases in which criminal responsibility is determined by the varying and undefined standards of juries as to when a "suicide of a sane person" is the natural and probable consequence of the acts of another.
Instruction 42 sets out in detail the facts to be considered by the jury in determining whether the deceased was a "willing or unwilling participant on the trip in question, ***" and obviously the instruction was given to supplement instruction 41 and to help the jury to determine the specific question of whether there was "voluntary assent *** to such past action which caused such remorse, grief," etc. When we consider instructions 41 and 42 together, we are the more firmly convinced that the plain and natural meaning is that the jury should first determine whether the deceased was a voluntary participant in the acts which caused the shame and humiliation; and if it was found [666] that she was not a voluntary participant, then it was for the jury simply to determine, on the basis of its own standard, "whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such other person."
That the trial court did not consider mental irresponsibility a necessary factor in determining the responsibility of the defendant for the procuring and taking of the poison is indicated by the remarks of the judge, before the jury, when overruling an objection to the introduction of an alleged dying declaration. These remarks are set out in full in the opinion of MARTIN, J., in connection with his discussion of their prejudicial effect upon the jury, and I shall not repeat them here. Since I agree with MARTIN, J., that their prejudicial character was in itself sufficient to constitute reversible error, I shall call attention merely to their significance in connection with instruction 41. Nowhere in the trial court's comments is there any suggestion of the necessity of the element of mental irresponsibility in order to transform the "suicide" into homicide. The tenor of the remarks is indicated by the following: "The question is, must these men anticipate this suicide (our italics) as a reasonable result of their acts?" or by "*** then I must anticipate this woman is liable to kill herself, and if that is the natural consequence of the act that I have done, then it is for the jury to determine, and if it considered it a natural consequence, then this evidence is admissible."
The trial court's refusal to give instruction 116 tendered by appellant is understandable only on the assumption that soundness or unsoundness of mind was not the determining factor in fixing the responsibility of the appellant for the act of self-destruction of Madge Oberholtzer. The tendered instruction is as follows: "The law presumes that one intends the natural consequences of his acts, I instruct you, however, that such presumption cannot be indulged in and carried to the extent of making an accused guilty of homicide, an account of the voluntary suicide of a sane person, even where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of the accused on or against the deceased."
We think the above instruction was clearly proper and should have been given under the theory, which is accepted by both the per curiam and individual opinions, that the appellant was not legally responsible for the deceased's act of procuring and taking poison if at the time of such act she was of sound mind.
We, of course, recognize that if one is not free to refrain even from an act of self-destruction by reason of present physical or mental coercion by another, or by reason of a state of mental irresponsibility induced by present or past acts of another, that an act of self-destruction may be, in fact and in law, the act of the one exercising the physical or mental coercion or causing the state of mental irresponsibility. But it is equally true that one cannot be criminally responsible for the voluntary self-determined act of another, who at the time of doing the act is in a position to act or refuse to act. The law does not give the victim of criminal misconduct the power to transform, by his own deliberate act, this criminal misconduct into a more serious criminal offense. So in this case, no matter how reprehensible the conduct of the defendant was prior to the moment the deceased took the poison, he was not a murderer, and the unfortunate victim of his misconduct could not by deliberately choosing to destroy her own life make him a murderer.
Evidence of Mental Irresponsibility.
I think there was some evidence to support a finding that Madge Oberholtzer was mentally irresponsible when she procured and swallowed the poison. There were facts and statements which, standing alone, would indicate a clear-minded and reasoned act of self-destruction, attended by a complete comprehension of the moral and physical consequences of her act and a sufficient mental power and control to make a choice. But we cannot ignore the terrific array of facts relating to the bestial mistreatment of the deceased; nor can we safely estimate the precise effect on the mind of the victim of her terrible experience. The irresistible impulse test of insanity, as recognized in Indiana, increases, I think, the danger of saying there was no evidence to support a finding of mental irresponsibility amounting to insanity; and if that question had been presented to the jury under proper instructions I could agree with the per curiam opinion in holding that such finding was supported by the evidence.
The Wound on the Breast as a Cause of Death.
There is sufficient evidence to establish that the appellant caused a laceration of the deceased's breast while engaged in the attempt to commit the rape; and the evidence also establishes that this wound became infected. The post mortem examination discloses an abscess in one lung, and at least one expert testified that in his opinion "the infection found in the lungs came from the infected area, recently healed, in the skin on the chest." Dr. Warvel, expert witness for the state, testified as follows: "I would not say for certain that because there was an abrasion on one of the breasts and an abscess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." The evidence showed conclusively[667] that Madge Oberholtzer had suffered an attack of flu a short time before her death, and the evidence of experts established that one of the common after-effects of flu is an abscessed condition of the lungs. In view of all of the evidence on this point, I feel that the conclusion that the abscessed condition of the lung was caused by the infected abrasion on the skin must be as nearly a purely speculative inference as any conclusion can be, and yet be entitled to the name of expert opinion. But granting that it was admissible, and it evidently was, I do not feel free to say there was no evidence to show that the abscess in the lung was the result of the infected abrasion on the breast. But there still remains the problem of deciding whether the infection in the lung can be held to have been a proximate cause of the death, or whether, at the most, it merely created a condition which might or might not have added to the efficacy of the poison. I agree with the conclusion of MARTIN, J., that "from the viewpoint of a court in determining the guilt or innocence of one charged with murder by infliction of a bite (which was not in itself a dangerous wound), such bite and the infection resulting therefrom could not be 'superimposed' upon the dangerous condition arising from poison which was afterwards taken, so as to make the bite and not the poison the proximate cause of the death." See opinion of Martin, J., 179 N. E. page 653, and preceding discussion.
Jurisdiction of the Hamilton Circuit Court.
I concur with the per curiam opinion in holding that the Hamilton circuit court acquired jurisdiction of the subject-matter of this cause despite the fact that, upon change of venue from the criminal court of Marion county to the Hamilton circuit court, the copy of the orders and proceedings had in the cause while pending in the criminal court of Marion county was not authenticated by the signature of the clerk of that court.
Admissibility of Dying Declarations.
As respects the admissibility of the two dying declarations, one written and the other oral, I think both the per curiam opinion and the opinion of MARTIN, J., conclusively show that the written declaration was properly admitted. There is some room for doubt about the admissibility of the oral declaration, the content of which was testified to by Dr. Kingsbury. At the time the statements which constitute this declaration were made to Dr. Kingsbury, the deceased also made some remarks which indicated she was not anticipating immediate death; and death did not ensue for some time after the declaration was made. But inasmuch as the evidence shows that poison had been taken by the declarant for the purpose of causing her death, and since various remarks by her indicated that she firmly believed that she would eventually die as a result of her condition, and since she did in fact die as a result of such condition, I think that the requirement that such declarations be made with a definite and firm conviction of impending death was satisfied. It is true that at the time the declaration was offered in evidence the proper foundation had not been laid for its introduction; but since all the proof necessary for such foundation was later offered and admitted, I feel that the technical error in admitting the dying declaration without this proof first having been offered was harmless, and especially so, in view of the fact that the substance of the oral declaration was included in the written declaration which was admitted after the proper foundation had been laid.
The reasons which I have given in support of my conclusion that the trial court committed prejudicial error in overruling the motion to strike out and in giving instruction 41 are not intended to imply that the trial judge was either confused or inconsistent in his rulings. His construction of count 1 and his rulings and instructions based thereon were consistent. Yet it is evident that the trial court's construction of count 1, as understood by the writer, would, if accepted by this court, make count 1 bad as against a motion to quash on the ground of uncertainty. But the vital consideration is that the trial court's theory of the first count, and not this court's theory, was actually applied during the trial, and determined the character of his rulings and instructions; and if the writer is correct in his interpretation of the trial court's theory, and has properly estimated the effect of such theory on the conduct of the trial, it is clear that the appellant was deprived of substantial rights to which he was entitled under both the per curiam and individual opinions.
Since I believe the defendant's legitimate interests were prejudiced by the trial court's theory of count 1, and the rulings and instructions based thereon, I conclude that the judgment should be reversed, and a new trial granted.
[1] Some aspects of this case not treated in the opinion appear in Cornelius, Cross-Examination of Witnesses (Bobbs-Merrill 1929) which devotes chapter 27, pages 509 to 622 to the case.
[2] Many of the cases cited by the state to sustain its contention last stated have no direct application to questions arising in the case at bar. Hamblin v. State (1908) 81 Neb. 148, 115 N. W. 850, 16 Ann. Cas. 569; People v. Kane (1915) 213 N. Y. 260, 107 N. E. 655, L. R. A. 1915F, 607, Ann. Cas. 1916C, 685; Hopkins v. U. S. (1894) 4 App. D. C. 430; State v. Hambright (1892) 111 N. C. 707, 16 S. E. 411, and Odeneal v. State (1913) 128 Tenn. 60, 157 S. W. 419, involve questions of the effect of unskillful or improper medical treatment; of deceased's neglect to obtain medical treatment or to take proper care of himself; of a surgical operation made necessary by a wound and performed with reasonable skill. These questions are not involved in the case at bar, nor are the rules announced therein so directly applicable as to require discussion. See Hall v. State, supra, where at page 607 of 199 Ind., 159 N. E. 420, the well-known passage from Hale, Pleas of Crown, page 428, is quoted, and the rules applicable where death results from a disease caused by a wound or injury, or from the treatment thereof, are discussed, State v. Smith (1887) 73 Iowa, 32, 34 N. W. 597; Com. v. Fox (1856) 7 Gray (Mass.) 586 and Harvey v. State (1916) 15 Ala. App. 311, 73 So. 200, cited by the state, were cases where ill and enfeebled wives died from assaults committed by their husbands; while Fisher v. State (1882) 78 Tenn. (10 Lea) 151; Duque v. State (1909) 56 Tex. Cr. R. 214, 119 S. W. 687; and People v. Ah Fat (1874) 48 Cal. 61, cited by appellee (like the list of five cases cited in Corpus Juris) involved deaths resulting from more than one injury sustained in fights participated in by several persons.
The five cases cited in C. J. and referred to above are: Tidwell v. State, 70 Ala. 33; Henderson v. State, 11 Ala. App. 37, 65 So. 721; People v. Carter, 96 Mich. 583, 56 N. W. 79; U. S. v. Abiog, 37 Philippine Rep. 137; Wilson v. State (Tex. Cr. App.) 24 S. W. 409.
[3] The foregoing statement is made, based only on a consideration of that evidence properly admissible to support count one of the indictment on which the conviction was had, and disregarding the evidence introduced to support count four on which there was no finding of guilty. The doctors testifying for the state said that in their opinion the delay in securing medical attention for deceased greatly increased the chances of fatality and tended to shorten the life of deceased. On a retrial (which I believe should be ordered) the question might arise as to whether the mercurial poisoning or the delay in furnishing medical attention constitutes the proximate cause of the death; but such question is not before us on this appeal. The granting of a new trial would return this cause to the lower court for a trial de novo on all counts of the indictment the same "as if no trial had been had," section 2324, Burns' Ann. St. 1926; Veatch v. State (1878) 60 Ind. 291, 295; State v. Balsley (1902) 159 Ind. 395, 65 N. E. 185; Ex Parte Bradley (1874) 48 Ind. 548.
7.2.6.6.1.5 Bailey v. Commonwealth 7.2.6.6.1.5 Bailey v. Commonwealth
Joseph A. BAILEY
v.
COMMONWEALTH of Virginia.
Supreme Court of Virginia.
[38] David J. Damico, Martin R. Willis, Roanoke (Willis, Damico & Apgar, Roanoke, on briefs), for appellant.
Margaret Poles Spencer, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Russell C. Williams, Asst. Atty. Gen., on brief), for appellee.
Present: All the Justices.
CARRICO, Chief Justice.
Indicted for involuntary manslaughter, Joseph A. Bailey was convicted in a jury trial and sentenced in accordance with the jury's verdict to serve six months in jail and to pay a fine of $1,000. The question on appeal is whether it was proper to convict Bailey of involuntary manslaughter when, in his absence, the victim was killed by police officers responding to reports from Bailey concerning the victim's conduct.
The death of the victim, Gordon E. Murdock, occurred during the late evening of May 21, 1983, in the aftermath of an extended and vituperative conversation between Bailey and Murdock over their citizens' band radios. During the conversation, which was to be the last in a series of such violent incidents, Bailey and Murdock cursed and threatened each other repeatedly.
Bailey and Murdock lived about two miles apart in the Roanoke area. On the evening in question, each was intoxicated. Bailey had consumed a "twelve-pack" of beer and a "fifth of liquor" since mid-afternoon; a test of Murdock's blood made during an autopsy showed alcoholic content of ".271% ... by weight." Murdock was also "legally blind," with vision of only 3/200 in the right eye and 2/200 in the left. Bailey knew that Murdock had "a problem with vision" and that he was intoxicated on the night in question.
Bailey also knew that Murdock owned a handgun and had boasted "about how he would use it and shoot it and scare people off with it." Bailey knew further that Murdock was easily agitated and that he became especially angry if anyone disparaged his war hero, General George S. Patton. During the conversation in question, Bailey implied that General Patton and Murdock himself were homosexuals.
Also during the conversation, Bailey persistently demanded that Murdock arm himself with his handgun and wait on his front porch for Bailey to come and injure or kill him. Murdock responded by saying he would be waiting on his front porch, and he told Bailey to "kiss [his] mother or [his] wife and children good-bye because [he would] never go back home."
[39] Bailey then made two anonymous telephone calls to the Roanoke City Police Department. In the first, Bailey reported "a man ... out on the porch [at Murdock's address] waving a gun around." A police car was dispatched to the address, but the officers reported they did not "see anything."
Bailey called Murdock back on the radio and chided him for not "going out on the porch." More epithets and threats were exchanged. Bailey told Murdock he was "going to come up there in a blue and white car"[1] and demanded that Murdock "step out there on the ... porch" with his gun "in [his] hands" because he, Bailey, would "be there in just a minute."
Bailey telephoned the police again. This time, Bailey identified Murdock by name and told the dispatcher that Murdock had "a gun on the porch," had "threatened to shoot up the neighborhood," and was "talking about shooting anything that moves." Bailey insisted that the police "come out here and straighten this man out." Bailey refused to identify himself, explaining that he was "right next to [Murdock] out here" and feared revealing his identity.
Three uniformed police officers, Chambers, Beavers, and Turner, were dispatched to Murdock's home. None of the officers knew that Murdock was intoxicated or that he was in an agitated state of mind. Only Officer Beavers knew that Murdock's eyesight was bad, and he did not know "exactly how bad it was." Beavers also knew that Murdock would get "a little 10-96 (mental subject) occasionally" and would "curse and carry on" when he was drinking.
When the officers arrived on the scene, they found that Murdock's "porch light was on" but observed no one on the porch. After several minutes had elapsed, the officers observed Murdock come out of his house with "something shiny in his hand." Murdock sat down on the top step of the porch and placed the shiny object beside him.
Officer Chambers approached Murdock from the side of the porch and told him to "[l]eave the gun alone and walk down the stairs away from it." Murdock "just sat there." When Chambers repeated his command, Murdock cursed him. Murdock then reached for the gun, stood up, advanced in Chambers' direction, and opened fire. Chambers retreated and was not struck.
All three officers returned fire, and Murdock was struck. Lying wounded on the porch, he said several times, "I didn't know you was the police." He died from "a gunshot wound of the left side of the chest." In the investigation which followed, Bailey stated that he was "the hoss that caused the loss."
In an instruction granted below and not questioned on appeal, the trial court told the jury it should convict Bailey if it found that his negligence or reckless conduct was so gross and culpable as to indicate a callous disregard for human life and that his actions were the proximate cause or a concurring cause of Murdock's death. Bailey concedes that the evidence at trial, viewed in the light most favorable to the Commonwealth, would support a finding that his actions constituted negligence so gross and culpable as to indicate a callous disregard for human life. He contends, however, that he "did not kill Murdock."
Bailey argues that his conviction can be sustained only if he was a principal in the first degree, a principal in the second degree, or an accessory before the fact to the killing of Murdock. The Attorney General concedes that Bailey was not a principal in the second degree or an accessory before the fact, but maintains that he was a principal in the first degree.
Countering, Bailey argues he was not a principal in the first degree because only the immediate perpetrators of crime occupy that status. Here, Bailey says, the immediate perpetrators of Murdock's killing were the police officers who returned Murdock's [40] fire.[2] He was in his own home two miles away, Bailey asserts, and did not control the actors in the confrontation at Murdock's home or otherwise participate in the events that occurred there. Hence, Bailey concludes, he could not have been a principal in the first degree.
We have adopted the rule in this Commonwealth, however, that one who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. Collins v. Commonwealth, 226 Va. 223, 233, 307 S.E.2d 884, 890 (1983) (undercover policewoman ruled innocent agent to collect fees for defendant charged with pandering); Dusenbery v. Commonwealth, 220 Va. 770, 772, 263 S.E.2d 392, 393 (1980) (person who acts through an innocent or unwitting agent is a principal in first degree, but not in rape cases). And, in State v. Benton, 276 N.C. 641, 653, 174 S.E.2d 793, 801 (1970), cited with approval in Collins, the court stated that the innocent-agent rule applies even though the person accused was not present at the time and place of the offense.
Bailey argues that the present case is distinguishable from Collins. There, Bailey says, the accused and the undercover policewoman were working in concert, pursuing a common goal of soliciting and collecting fees for sexual favors; although the policewoman was innocent of the crime of pandering because she had no intent to perform sexual acts, the accused was guilty nevertheless because the fees were collected on his behalf. Here, Bailey asserts, he and the police shared no common scheme or goal. Neither, Bailey says, did he share a common goal with Murdock; indeed, "Murdock's intent was to kill Bailey."
The question is not, however, whether Murdock was Bailey's innocent or unwitting agent but whether the police officers who responded to Bailey's calls occupied that status. And, in resolving this question, we believe it is irrelevant whether Bailey and the police shared a common scheme or goal. What is relevant is whether Bailey undertook to cause Murdock harm and used the police to accomplish that purpose, a question which we believe must be answered affirmatively.
Knowing that Murdock was intoxicated, nearly blind, and in an agitated state of mind, Bailey orchestrated a scenario on the evening of May 21, 1983, whose finale was bound to include harmful consequences to Murdock, either in the form of his arrest or his injury or death. Bailey angered Murdock with accusations of homosexuality concerning Murdock himself as well as his war hero. Bailey then demanded repeatedly that Murdock arm himself with his handgun and wait on his front porch for Bailey to arrive. Bailey also threatened repeatedly that when he arrived at Murdock's home he would inflict serious injury upon Murdock and even kill him.
Having aroused Murdock's wrath and having led him to expect a violent confrontation, Bailey made two anonymous telephone calls to the police. In those calls, he falsely reported Murdock's conduct by saying the latter had threatened to "shoot up" the neighborhood and to shoot anything that moved, when Murdock had not made such threats. Bailey falsified his own ability to observe Murdock's conduct by telling the police that he, Bailey, was "right next to [Murdock] out here," when he was actually two miles away. And Bailey neglected to tell the police that Murdock was intoxicated and blind and in an agitated state of mind.
From a factual standpoint, it is clear from the sum total of Bailey's actions that his purpose in calling the police was to induce them to go to Murdock's home and unwittingly create the appearance that Bailey himself had arrived to carry out the threats he had made over the radio. And, from a legal standpoint, it is clear that, for Bailey's mischievous purpose, the police officers who went to Murdock's home and confronted him were acting as Bailey's innocent or unwitting agents.
[41] But, Bailey argues, he cannot be held criminally liable in this case unless Murdock's death was the natural and probable result of Bailey's conduct. Bailey maintains that either Murdock's own reckless and criminal conduct in opening fire upon the police or the officers' return fire constituted an independent, intervening cause absolving Bailey of guilt.
We have held, however, that "[a]n intervening act which is reasonably foreseeable cannot be relied upon as breaking the chain of causal connection between an original act of negligence and subsequent injury." Delawder v. Commonwealth, 214 Va. 55, 58, 196 S.E.2d 913, 915 (1973) (defendant lost control of vehicle while racing and struck pedestrian; striking of defendant's vehicle by other car not intervening cause). Here, under instructions not questioned on appeal, the jury determined that the fatal consequences of Bailey's reckless conduct could reasonably have been foreseen and, accordingly, that Murdock's death was not the result of an independent, intervening cause but of Bailey's misconduct. At the least, the evidence presented a jury question on these issues. See id.
Finally, Bailey maintains that his conviction is improper in light of our decision in Wooden v. Commonwealth, 222 Va. 758, 284 S.E.2d 811 (1981). There, the accused participated in a robbery with accomplices Anthony and Frye. The victim shot and killed Anthony, and Frye then shot and killed the victim. The accused was convicted of felony-murder for both killings. We reversed the conviction for the killing of the co-felon. We said that because malice is an essential element of felony-murder and because there was no evidence that the victim killed the co-felon with malice, there was no malice in the death of the co-felon that could be imputed to the accused under the felony-murder rule. Accordingly, we held that "a criminal participant in a felony may not be convicted of the felony-murder of a co-felon killed by the victim of the initial felony." Id. at 765, 284 S.E.2d at 816.
Reading our opinion to say that we reversed in Wooden because the killing of the co-felon was a justifiable homicide, Bailey argues that we should take the same action here because "Murdock's death was [also] a justifiable homicide." As the Attorney General points out, however, we did not reverse in Wooden because the victim's killing of the co-felon constituted a justifiable homicide but because malice, an essential element of a murder prosecution, was lacking. In this case, a manslaughter prosecution, proof of malice is not required, and, moreover, there is no lack of proof of any of the elements essential to Bailey's conviction. Accordingly, we will affirm the conviction.
Affirmed.
[1] Bailey owned a blue and white vehicle; the police vehicles were also blue and white.
[2] Bailey admits the officers acted in self-defense.
7.2.6.6.2 VI.B. Attempt 7.2.6.6.2 VI.B. Attempt
Attempt, an “inchoate” offense, lies somewhere between merely thinking about committing a crime and successfully completing it. How far should someone have to go before his actions are criminal? On the other end of the spectrum, if someone fully intends and attempts to commit a crime—say, fires a bullet intending to kill a person—why should he punished less because he missed, or because he grievously injured but did not kill the target? Why does the law take into account the actual result at all, if the act and the mens rea are the elements that establish individual blameworthiness? The cases in this section consider the level of mens rea and actus reus needed for an attempted crime. Consider how the court adjusts these requirements in attempt cases to balance a broad variety of social aims, such as punishing blameworthiness; deterrence; creating incentives for abandonment; minimizing the arbitrariness of criminal punishment; and giving potential criminals the opportunity to change their minds.
7.2.6.6.2.1 State v. Hutchinson 7.2.6.6.2.1 State v. Hutchinson
The STATE of Ohio, Appellee,
v.
HUTCHINSON, Appellant.
Court of Appeals of Ohio, Twelfth District, Brown County.
[460] Thomas F. Grennan, Brown County Prosecuting Attorney, for appellee.
David H. Bodiker, State Public Defender, and Jennifer D. Schaffer, for appellant.
POWELL, Presiding Judge.
Defendant-appellant, Ronald Brian Hutchinson, appeals from his convictions in the Brown County Court of Common Pleas for attempted rape and attempted aggravated murder. We affirm the decision of the trial court.
On Friday, April 24, 1998, Eura S. and her husband went away for the weekend, after making arrangements to leave their three sons at the home of their uncle, Wil S. When Eura and her husband returned on Sunday, Wil S. and his wife were having a picnic. Eura's sons and some friends of the family were present, as well as appellant. When Eura spoke with her eight-year-old son, J.S., he told her that appellant was gay. Eura, who already knew about appellant's sexual orientation, told her son that he should not judge other people.
After J.S. came home from school on Monday, he again told his mother that appellant was gay, and Eura asked her son why he continued to say that. Upset and crying, J.S. said that on Saturday night, appellant had laid down beside him on the floor and "had pulled his pants down and tried to stick his thing in his [461] [J.S.'s] butt." When Eura asked J.S. what he meant by "thing," he pointed to his penis.
That night Eura took J.S. to the Brown County Hospital, where J.S. was given a physical examination and was referred to the Brown County Department of Human Services. On Tuesday evening J.S. underwent a physical examination at Children's Hospital in Cincinnati.
Barry Creighton, a criminal investigator for Brown County Department of Human Services who specializes in cases of sexual abuse, interviewed J.S. Creighton then contacted appellant, who agreed to meet with him. When confronted with the allegations against him, appellant admitted that on the night in question he had slept on the floor next to J.S. but denied having sexual intercourse with the boy, saying that because he had AIDS, that would be murder and he would not do that. Appellant also made a statement implying that because he was going to die, there was nothing that anyone could possibly do to punish him.
Appellant was charged with rape and attempted aggravated murder. At his jury trial, appellant stipulated to the fact that he has tested positive for human immunodeficiency virus ("HIV"). As of the date of the trial, J.S. had not tested positive for HIV. At the conclusion of the state's evidence, appellant moved for acquittal under Crim.R. 29(A), arguing that the state had failed to present sufficient evidence to show that appellant had intended to kill, an element of attempted aggravated murder. Appellant's motion was overruled, and appellant was found guilty of attempted rape and attempted aggravated murder. The trial court sentenced appellant to seven years in prison for attempted rape and eight years in prison for attempted aggravated murder, sentences to be served consecutively. Appellant then filed this appeal, raising the following assignment of error.
"The trial court erred in dismissing appellant's motion for acquittal as to the attempted aggravated murder offense, in violation of his due process rights pursuant to the Ohio and federal Constitutions."
In his sole assignment of error, appellant asserts that it was error for the trial court to overrule his motion for acquittal with regard to his attempted aggravated murder charge. Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses."
An appellate court's review of a ruling on a Crim.R. 29(A) motion must evaluate the sufficiency of the evidence, construing the evidence in a light most favorable to the state. State v. Dunaway (Feb. 18, 1997), Butler App. No. CA96-08-152, [462] unreported, at 3, 1997 WL 71305, citing State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492, 503. The appellate court must examine the evidence to determine "whether such evidence, if believed, is sufficient for a reasonable mind to conclude that all elements of the crime have been proven beyond a reasonable doubt." Id. at 8, citing Jenks at 273, 574 N.E.2d at 503.
Appellant was charged with an attempt crime. R.C. 2923.02(A) defines attempt as the following: "No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense."
Appellant was charged with attempted aggravated murder, a violation of R.C. 2903.01(B), which states: "No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape." (Emphasis added.)
The mens rea of "purposely" is defined in R.C. 2901.22(A):
"A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature."
Appellant contends that the state failed to present sufficient evidence tending to prove that he possessed the requisite mental state for attempted aggravated murder. Specifically, appellant argues that no inference of intent to kill can be drawn when an individual infected with HIV knowingly exposes another to the risk of HIV infection and the risk of death by Acquired Immune Deficiency Syndrome ("AIDS"). This is a case of first impression in the state of Ohio.[1]
Because appellant was convicted of attempted aggravated murder under R.C. 2903.01(B), the state had to prove that appellant had attempted murder during the commission or attempt of a felony. In this case, the state presented evidence that appellant had raped or attempted to rape J.S. J.S., who was found to be competent to testify, stated that appellant had "pulled down my pants and he stuck his thing [his penis] up my butt." J.S.'s mother testified to the same.
[463] J.S.'s statements were supported by medical evidence presented by the state. The state's witness, Dr. Dennis Fitzgerald, the chief resident in emergency at University Hospital and a resident at the Children's Hospital, testified that he had interviewed and examined J.S. Dr. Fitzgerald found that there were two tears in the boy's anal region, as well as evidence of a contusion. The doctor testified that these injuries are indicative of sexual abuse and are consistent with anal penetration. Dr. Mary Patterson, a pediatric emergency medicine physician at Children's Hospital, examined J.S. along with Dr. Fitzgerald and observed the same injuries. Dr. Patterson agreed that the medical findings were consistent with an incident of sexual abuse.
Considering this testimony, we find that there was evidence sufficient for a reasonable mind to conclude beyond a reasonable doubt that appellant committed or attempted to commit a rape, which, in this case, is the underlying felony of the attempted aggravated murder offense. Appellant concedes as much in his appeal, as he does not argue that it was error for the trial court to overrule his Crim.R. 29(A) motion with regard to attempted rape. However, appellant argues that the state failed to present sufficient evidence to prove attempted aggravated murder because it failed to prove that appellant intended to kill.
The Supreme Court of Ohio has acknowledged that intent is not directly provable by objective evidence, as it lies within the privacy of a person's intimate thoughts. State v. Garner (1995), 74 Ohio St.3d 49, 60, 656 N.E.2d 623, 634. Intent "'"can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances * * *."'" State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293, 302, quoting State v. Huffman (1936), 131 Ohio St. 27, 5 O.O. 325, 1 N.E.2d 313, paragraph four of the syllabus. See, also, Garner. When determining intent, "persons are presumed to have intended the natural, reasonable and probable consequences of their voluntary acts." Garner at 60, 656 N.E.2d at 634, citing State v. Carter (1995), 72 Ohio St.3d 545, 554, 651 N.E.2d 965, 974.
Dr. Siegel, who has completed a fellowship in infectious disease, testified in detail about the HIV virus. He stated that the HIV virus, which is the cause of AIDS, may be transmitted in many ways, and that the highest risk of transmission occurs during anal receptive intercourse. The doctor stated that the risk is even greater when a child is involved. From reviewing appellant's medical records, which indicated that appellant had a CD4 count of 232 on March 20, 1997, Dr. Siegel determined that appellant is HIV positive and either has or is very close to having the AIDS syndrome.
Dr. Siegel testified that if an HIV positive adult male who had the AIDS syndrome were to anally rape a boy so that the boy suffered anal tears and [464] bruising, this would be a "very, very high risk sexual situation." Adult data estimates that there is about a one in one hundred chance of contracting HIV from unprotected anal receptive intercourse with an HIV infected person. Dr. Siegel stated that the statistical risk of HIV infection is even greater where a child is anally raped by an adult. Dr. Siegel testified that there is no known cure for HIV and that it is fatal. He testified that a person who is HIV positive and possibly suffering from early stages of the AIDS syndrome places others in danger when he has sexual relations; in fact, Dr. Siegel said he would consider such a person's bodily fluids to be a dangerous instrument.
Appellant knew that he was HIV positive and possibly AIDS infected, and he attempted to anally rape an eight-year-old boy. Appellant's deliberate actions put his victim in grave risk of death. Appellant stated that because he had AIDS, having sexual intercourse with the boy would be murder and commented that there was nothing that anyone could possibly do to punish him. Reviewing appellant's actions as well as his words, a reasonable mind could conclude beyond a reasonable doubt that appellant intended to kill.
Therefore, we find that the trial court did not commit error when it overruled appellant's Crim.R. 29(A) motion as it pertained to the offense of attempted aggravated murder. Appellant's assignment of error is overruled.
Judgment affirmed.
WILLIAM W. YOUNG and VALEN, JJ., concur.
[1] The Supreme Court of Ohio reviewed a case containing an issue similar to the one sub judice but resolved that case without ruling on the issue. In State v. Bird (1998), 81 Ohio St.3d 582, 692 N.E.2d 1013, the defendant appealed his conviction for felonious assault with a deadly weapon, which was based on an incident in which defendant, who was infected with HIV, spat in the face of a police officer. The Supreme Court of Ohio stated, "It is unnecessary to decide whether the human immunodeficiency virus may be communicated through saliva and whether saliva may be considered a deadly weapon. By pleading no contest, appellant admitted the truth of the allegations in the indictment." Id. at 585, 692 N.E.2d at 1015.
7.2.6.6.2.2 People v. Rizzo 7.2.6.6.2.2 People v. Rizzo
246 N.Y. 334, 158 N.E. 888, 55 A.L.R. 711
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
CHARLES Rlzzo, Appellant, Impleaded with Others.
Court of Appeals of New York.
Argued October 17, 1927.
Decided November 22, 1927.
Crimes -- attempt to commit robbery -- construction of section 2 of Penal Law defining attempt to commit crime defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery.
1. In construing section 2 of the Penal Law, providing that an act done with intent to commit a. crime, and tending but failing to effect its commission, is an attempt to commit that crime, the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.
2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.
People v. Rizzo, 221 App. Div. 353, reversed.
(Argued October 17, 1927; decided November 22, 1927.)
APPEAL, by permission, from a, judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.
James F. Donnelly, Mark Eisner and Merwin Lewis for appellant. The evidence failed to establish the crime. John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent. The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep.22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stiles, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People V. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’C0nnell, 60 Hun, 109.)
CRANE, J.
The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a, payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. . The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four `men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.
Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a, given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference." The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People Mills (178 N. Y. 274,284) it was said: “Felonious intent alone is not enough, but there must be an overt: act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.” Halsbury in his Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth V. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.
The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People V. Collins, 234 N. Y. 355; People V. Sobieskoda, 235 N. Y. 411; People V. Werblow, 241 N.Y. 55.)
How shall we apply this rule of immediate nearness to this case? The defendants were looking fort the payroll man to rob him of his money. This is the charge -in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of- robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)
For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.
A very strange situation has arisen in this case.. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same, evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only` one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now he1d that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.
The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.
KELLOGG and O’BR1EN, JJ., concur.
Judgment accordingly.
7.2.6.6.2.3 State v. Green 7.2.6.6.2.3 State v. Green
The State, Respondent,
v.
Benjamin P. Green, Appellant.
Supreme Court of South Carolina.
Deputy Chief Appellate Defender Wanda H. Carter, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney General John McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., of Columbia, Solicitor James Strom Thurmond, Jr, of Aiken, for Respondent.
JUSTICE BEATTY:
Benjamin P. Green appeals his convictions for criminal solicitation of a minor[1] and attempted criminal sexual conduct ("CSC") with a minor in the second-degree.[2] In challenging his convictions, Green contends the trial judge erred in: (1) denying his motion to dismiss the charge of criminal solicitation of a minor on the ground the statute is unconstitutionally overbroad and vague; (2) denying his motions to dismiss and for a directed verdict on the charge of attempted CSC with a minor in the second-degree; (3) admitting certain photographs; and (4) denying his request for a jury charge on attempted assault and battery of a high and aggravated nature ("ABHAN"). We affirm.
I. Factual/Procedural History
On October 13, 2006 at 5:38 p.m., Green entered a Yahoo! online chat room under the screen name "blak slyder" and initiated an online chat with "lilmandy14sc" ("Mandy"). On Mandy's profile page was a picture of a female sitting on a bed. Unbeknownst to Green, Mandy was actually an online persona created by Investigator Tommy Platt of the Aiken County Sheriff's Office as part of the Internet Crimes Against Children Task Force.
In response to Green's initial question, Mandy answered "i hooked up with a 16 year old." Green then asked Mandy, "how young are you?" to which Mandy stated, "14." Green countered that he was "21."[3] Immediately thereafter, the chat turned sexual in nature with Green asking Mandy whether she would have sex with him. During the chat, Green sent Mandy two pictures of his penis and stated that he could "show it to [her] in person."[4] Green then arranged to meet Mandy at 7:30 p.m. on a secluded road in Beech Island, South Carolina, which is located in Aiken County.
When Green arrived at the predetermined location, he was met by several law enforcement officers who arrested him. In response to the officers' questions, Green admitted that "he was there to meet a 14-year-old girl." A search of Green's vehicle revealed a cell phone, a bottle of alcohol, two DVDs, condoms, male enhancement cream and drugs, and handwritten directions to the location.
Subsequently, Green was indicted and ultimately convicted by a jury for criminal solicitation of a minor and attempted CSC with a minor in the second-degree. Green appealed his convictions to the Court of Appeals. This Court certified the appeal from the Court of Appeals pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.
II. Discussion
A. Constitutionality of Criminal Solicitation of a Minor Statute
In a pre-trial hearing and at the conclusion of the State's case, Green moved for the trial judge to declare unconstitutional section 16-15-342, the criminal solicitation of a minor statute, on the grounds it is overbroad and vague. Specifically, he claimed the statute is not narrowly tailored and, as a result, "chills free speech." The judge summarily denied the motion.
On appeal, Green challenges section 16-15-342 as facially overbroad because one can be found guilty under the statute "when he contacts a minor for any one of six activities under 16-15-375(5) or any one of at least twenty-nine activities under 16-1-60." Because the statute does not identify what forms of communication are prohibited, Green claims the content of any communication would "trigger a violation of the statute." Ultimately, Green claims the statute is "so overbroad that it ensnares" protected speech.
In a related argument, Green asserts this lack of specificity demonstrates that the statute is vague. Green contends the provisions of the statute are vague as to "what forms of communications and what content of such communications would be criminalized as solicitations." Because the statute is not sufficiently definite, Green avers that "[a] person of ordinary intelligence would not know what speech, expression or contact would result in a violation of the statute."
"When the issue is the constitutionality of a statute, every presumption will be made in favor of its validity and no statute will be declared unconstitutional unless its invalidity appears so clearly as to leave no doubt that it conflicts with the constitution." State v. Gaster, 349 S.C. 545, 549-50, 564 S.E.2d 87, 89-90 (2002). "This presumption places the initial burden on the party challenging the constitutionality of the legislation to show it violates a provision of the Constitution." State v. White, 348 S.C. 532, 536-37, 560 S.E.2d 420, 422 (2002).
Applying these well-established rules regarding the constitutionality of a statute, our analysis begins with a review of the text of the challenged statute. Section 16-15-342 provides in pertinent part:
(A) A person eighteen years of age or older commits the offense of criminal solicitation of a minor if he knowingly contacts or communicates with, or attempts to contact or communicate with, a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen, for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16-15-375(5) or a violent crime as defined in Section 16-1-60, or with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen.
(B) Consent is a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is at least sixteen years old.
(C) Consent is not a defense to a prosecution pursuant to this section if the person under the age of eighteen, or the person reasonably believed to be under the age of eighteen, is under the age of sixteen.
(D) It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity.
S.C. Code Ann. § 16-15-342 (Supp. 2011). Section 16-15-375 defines "sexual activity" by identifying six acts, which include "vaginal, anal, or oral intercourse" and "touching, in an act of apparent sexual stimulation or sexual abuse." S.C. Code Ann. § 16-15-375(5) (2003).
1. Overbroad[5]
"It has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
In discussing the overbreadth doctrine, the United States Supreme Court ("USSC") has stated:
According to our First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech. The doctrine seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects. In order to maintain an appropriate balance, we have vigorously enforced the requirement that a statute's overbreadth be substantial, not only in an absolute sense, but also relative to the statute's plainly legitimate sweep. Invalidation for overbreadth is strong medicine that is not to be casually employed.
United States v. Williams, 553 U.S. 285, 292-93 (2008) (citations omitted) (emphasis in original). "To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615.
In analyzing Green's constitutional challenge to section 16-15-342, we initially note that speech used to further the sexual exploitation of children has been routinely denied constitutional protection as the State has a compelling interest in preventing the sexual abuse of children. In fact, the USSC has expressly stated that "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection." Williams, 553 U.S. at 297. Moreover, "[c]ourts have recognized that speech used to further the sexual exploitation of children does not enjoy constitutional protection, and while a statute may incidentally burden some protected expression in carrying out its objective, it will not be held to violate the First Amendment if it serves the compelling interest of preventing the sexual abuse of children and is no broader than necessary to achieve that purpose." Cashatt v. State, 873 So. 2d 430, 434-35 (Fla. Dist. Ct. App. 2004); see New York v. Ferber, 458 U.S. 747, 756-57 (1982) (recognizing that the prevention of sexual exploitation of children and abuse of children constitutes a government objective of surpassing importance).
In view of this compelling interest, the question becomes whether section 16-15-342 is narrowly tailored to achieve the interest for which it was intended. As will be discussed, we find the statute is narrowly drafted to prohibit criminal conduct rather than protected speech.
Significantly, the statute includes the term "knowingly." Thus, it affects only those individuals who intentionally target minors for the purpose of engaging or participating in sexual activity or a violent crime. Conversely, it does not criminalize any inadvertent contact or communications with minors. See United State v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000) (concluding that statute proscribing knowing efforts to persuade minors to engage in illegal sexual activity did not violate First Amendment); State v. Ebert, 263 P.3d 918, 922 (N.M. Ct. App. 2011) (concluding that statute criminalizing child solicitation by electronic communication device was not constitutionally overbroad as "[t]ailoring [was] primarily accomplished through the `knowingly' scienter requirement"; noting that "the statute does not restrict adults from communicating about sex to children, nor does it restrict adults from soliciting sex from one another over the internet," in fact, "the statute prohibits only that conduct necessary to achieve the State's interest"); State v. Snyder, 801 N.E.2d 876, 883 (Ohio Ct. App. 2003) (finding statute that prohibited adults from using telecommunications device to solicit minor for sexual activity is not "aimed at the expression of ideas or beliefs; rather, it is aimed at prohibiting adults from taking advantage of minors and the anonymity and ease of communicating through telecommunications devices, especially the Internet and instant messaging devices, by soliciting minors to engage in sexual activity").
Because the statute does not criminalize protected speech and is narrowly tailored to achieve a compelling state interest, we find the statute is not unconstitutionally overbroad as any alleged overbreadth is unsubstantial when considered in relation to "its plainly legitimate sweep."
2. Vague
In view of our finding, the analysis turns to a determination of whether the statute is void for vagueness.
"The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication." City of Beaufort v. Baker, 315 S.C. 146, 152, 432 S.E.2d 470, 473 (1993) (quoting State v. Albert, 257 S.C. 131, 134, 184 S.E.2d 605, 606 (1971)). "The constitutional standard for vagueness is the practical criterion of fair notice to those to whom the law applies." Huber v. S.C. State Bd. of Physical Therapy Exam'rs, 316 S.C. 24, 26, 446 S.E.2d 433, 435 (1994). A law is unconstitutionally vague if it forbids or requires the doing of an act in terms so vague that a person of common intelligence must necessarily guess as to its meaning and differ as to its application. Toussaint v. State Bd. of Med. Exam'rs, 303 S.C. 316, 400 S.E.2d 488 (1991). "[O]ne to whose conduct the law clearly applies does not have standing to challenge it for vagueness as applied to the conduct of others." In re Amir X.S., 371 S.C. 380, 391, 639 S.E.2d 144, 150 (2006) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982)).
As an initial matter, we find that Green does not have standing to assert a facial challenge for vagueness as the statute provided adequate notice that his conduct fell within that proscribed by section 16-15-342. Green, who was twenty-seven years old at the time of the offense, knowingly initiated an online chat with a female he reasonably believed to be fourteen years old. As evidenced by the text of the chat, Mandy represented her age to be 14, Green acknowledged that she was too young to drive his vehicle, and admitted to the arresting officers that he was there to meet a fourteen-year-old girl. Moreover, Green's sexually-explicit conversation was intended for no other purpose than to persuade Mandy to engage in sexual activity as defined in section 16-15-675(5).
Even assuming standing, we find that Green's challenge is without merit. We hold that section 16-15-342 is sufficiently precise to provide fair notice to those to whom the statute applies. The criminal solicitation statute specifically identifies the following distinct elements: "(1) the defendant is eighteen years of age or older; (2) he or she knowingly contacts or communicates with, or attempts to contact or communicate with; (3) a person who is under the age of eighteen, or a person reasonably believed to be under the age of eighteen; (4) for the purpose of or with the intent of persuading, inducing, enticing, or coercing the person to engage or participate in a sexual activity as defined in Section 16-15-375(5) or a violent crime as defined in Section 16-1-60; or (5) with the intent to perform a sexual activity in the presence of the person under the age of eighteen, or person reasonably believed to be under the age of eighteen." State v. Reid, 383 S.C. 285, 301, 679 S.E.2d 194, 202 (Ct. App. 2009), aff'd, 393 S.C. 325, 713 S.E.2d 274 (2011).
Although each of these terms is not defined, we believe a person of common intelligence would not have to guess at what conduct is prohibited by the statute. We also find the Legislature purposefully did not define "contacts" or "communicates," as we believe it sought to encompass all methods of communications. Unlike the solicitation statutes found in other jurisdictions, the South Carolina statute does not confine the method of solicitation strictly to computers.[6] Instead, one charged with this crime could have used a letter, a telephone, a computer, or other electronic means to communicate with or contact the minor victim.
Based on the foregoing, we conclude that Green has not satisfied his burden to prove that section 16-15-342 violates the First Amendment of the Constitution.
We note that other jurisdictions, which have analyzed statutes similar to this state's, have also determined that the statutes are neither unconstitutionally overbroad nor vague. See, e.g., Cashatt v. State, 873 So. 2d 430 (Fla. Dist. Ct. App. 2004); People v. Smith, 806 N.E.2d 1262 (Ill. App. Ct. 2004); LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005); State v. Penton, 998 So. 2d 184 (La. Ct. App. 2008); State v. Pribble, 285 S.W.3d 310 (Mo. 2009) (en banc); State v. Rung, 774 N.W.2d 621 (Neb. 2009); State v. Snyder, 801 N.E.2d 876 (Ohio Ct. App. 2003); Maloney v. State, 294 S.W.3d 613 (Tex. Ct. App. 2009); State v. Gallegos, 220 P.3d 136 (Utah 2009). See generally Marjorie A. Shields and Jill M. Marks, Annotation, Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications, 33 A.L.R. 6th 373, §§ 4-10 (2008 & Supp. 2012) (analyzing state cases that have determined state child-luring statute was constitutionally valid).
Having rejected Green's constitutional challenges, the question becomes whether the trial judge erred in declining to grant Green's motions to dismiss or for a directed verdict as to the charged offenses.
B. Motions to Dismiss and for a Directed Verdict
Prior to trial, Green moved to dismiss the charged offenses. In support of this motion and his directed verdict motion, Green claimed it was legally impossible to "carry out the criminal sexual conduct" because the alleged victim was not a minor but, rather, a fictitious person created by Investigator Platt. During trial, Green also established that the picture on Mandy's profile page was actually that of Lynda Williamson, a twenty-four-year-old former probation officer who provided the photograph to an investigator with the Aiken County Sheriff's Office. Because the woman in the picture was "over the age of consent," Green claimed he could not be convicted of attempted CSC with minor in the second-degree.
As an additional ground, Green asserted the State failed to prove his specific intent to commit CSC with a minor in the second-degree and an overt act in furtherance of the crime. During his argument, Green pointed to the text of the online chat where he stated that he would not pressure Mandy to do anything that she did not want to do and that she could change her mind about having sex.
On appeal, Green reiterates these arguments in support of his contention that the trial judge erred in denying his motions to dismiss and for a directed verdict. In addition, Green elaborates on his claim of legal impossibility. Citing United States v. Frazier, 560 F.2d 884 (8th Cir. 1977), Green explains that this defense applies "where the impossibility of a defendant's successfully committing a crime eliminates the culpability of his having tried to do so." According to this statement, Green claims he should not have been convicted of the charged offenses as he "could not commit criminal sexual conduct with a fictitious person."
1. Legal Impossibility
"[L]egal impossibility occurs when the actions that the defendant performs or sets in motion, even if fully carried out as he or she desires, would not constitute a crime, whereas factual impossibility occurs when the objective of the defendant is proscribed by the criminal law but a circumstance unknown to the actor prevents him or her from bringing about that objective." 21 Am. Jur. 2d Criminal Law § 156 (2008). "According to some authorities, legal impossibility is a defense to a charge of attempt, but factual impossibility is not." Id. In view of this distinction and Green's arguments, we have confined our analysis of this issue to the defense of legal impossibility.
As we interpret Green's trial and appellate arguments, his claim of legal impossibility encompasses both the solicitation charge and the CSC charge. Specifically, the intent element in the solicitation statute and the necessary intent for the attempted CSC charge warrant a similar analysis with respect to Green's challenge that no actual minor was involved. Accordingly, we address Green's claims as to both charges.
Section 16-15-342(D) definitively discounts Green's arguments with respect to the solicitation charge as this provision states, "It is not a defense to a prosecution pursuant to this section, on the basis of consent or otherwise, that the person reasonably believed to be under the age of eighteen is a law enforcement agent or officer acting in an official capacity." S.C. Code Ann. § 16-15-342(D) (Supp. 2011). Thus, based on the plain language of the statute, the Legislature clearly intended to eliminate the defense of impossibility as to the charge of criminal solicitation of a minor if a law enforcement officer impersonated the minor. State v. Dingle, 376 S.C. 643, 659 S.E.2d 101 (2008) (recognizing that in interpreting statutes, appellate courts look to the plain meaning of the statute and the intent of the Legislature).
Similarly, the fact that an actual minor was not the subject of Green's intent did not preclude his prosecution and conviction for attempted CSC with a minor in the second-degree.
A person is guilty of CSC with a minor in the second-degree if "the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age." S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011). "A person who commits the common law offense of attempt, upon conviction, must be punished as for the principal offense." S.C. Code Ann. § 16-1-80 (2003). "Thus, the elements of attempted CSC with a minor in the second degree are: (1) an attempt; (2) to engage in a sexual battery; (3) with a victim; (4) who is fourteen years of age or less; (5) but who is at least eleven years of age." Reid, 383 S.C. at 292, 679 S.E.2d at 197.
In discussing attempt crimes, this Court has stated, "In the context of an `attempt' crime, specific intent means that the defendant consciously intended the completion of acts comprising the choate offense." State v. Sutton, 340 S.C. 393, 397, 532 S.E.2d 283, 285 (2000). Accordingly, "[t]o prove attempt, the State must prove that the defendant had the specific intent to commit the underlying offense, along with some overt act, beyond mere preparation in furtherance of the intent." State v. Reid, 393 S.C. 325, 329, 713 S.E.2d 274, 276 (2011) (emphasis in the original).
Based on the above-outlined definitions, we find Green's actions were sufficient to prove the offense of attempted CSC with a minor in the second-degree. As noted, an attempt crime does not require the completion of the object offense. Thus, Green was not required to complete the sexual battery in order to be prosecuted and convicted of the offense. Accordingly, the fact that the intended victim was not an actual minor was irrelevant as the State was only required to prove Green had the specific intent to commit a sexual battery on a victim between the ages of eleven and fourteen years old coupled with some overt act toward the commission of the offense. See State v. Curtiss, 65 P.3d 207 (Idaho Ct. App. 2002) (holding that impossibility did not constitute a defense to charge of attempted lewd conduct with a minor under the age of sixteen in a case where detective posed as a fourteen-year-old girl in online chat room); Hix v. Commonwealth, 619 S.E.2d 80 (Va. 2005) (holding that the fact defendant was communicating with an adult law enforcement officer posing as a child was not a defense to the charge of attempted indecent liberties with a minor).
A decision to this effect is consistent with our state's limited jurisprudence regarding Internet sex crimes. See Reid, 383 S.C. at 300, 679 S.E.2d at 201-02 (recognizing "the policy goal of stopping dangerous persons through earlier intervention by law enforcement by punishing the attempted conduct as a crime, especially in any cybermolester type cases where the conduct also clearly manifests or strongly corroborates the intent to commit such a dangerous object crime").
Finally, other state jurisdictions have concluded that a defendant may be prosecuted for criminal solicitation of a minor, as well as attempted sexual offenses, where the online persona is an undercover officer and not an actual minor. See, e.g., Karwoski v. State, 867 So. 2d 486 (Fla. Dist. Ct. App. 2004); People v. Thousand, 631 N.W.2d 694 (Mich. 2001); State v. Coonrod, 652 N.W.2d 715 (Minn. Ct. App. 2002); Shaffer v. State, 72 So. 3d 1070 (Miss. 2011); Johnson v. State, 159 P.3d 1096 (Nev. 2007); State v. Robins, 646 N.W.2d 287 (Wis. 2002).[7]
C. Sufficiency of the Evidence As to Specific Intent and Overt Act in Furtherance of Attempted CSC with a Minor
Finding that an actual minor was not required for the prosecution of the charge of attempted CSC with a minor, the question becomes whether the State proved that Green possessed the requisite intent and that he engaged in some overt act in furtherance of the charge.
Viewing the evidence in the light most favorable to the State, we conclude the trial judge properly denied Green's motion for a directed verdict as to the charge of attempted CSC with a minor in the second-degree. Green clearly expressed his specific intent to have a sexual encounter with Mandy, a fourteen-year-old female. A review of the online chat reveals that Green was not dissuaded by the fact that Mandy stated she was fourteen years old. Instead, Green continued the sexually explicit conversation and sent Mandy pictures of his genitals.
In furtherance of his specific intent, Green committed an overt act in orchestrating a meeting for the sexual encounter. Green asked Mandy whether her parents would let her out after dark and whether he could meet her at her home. Ultimately, Green arranged to meet Mandy on a secluded street that night at a specific time. Green then traveled to the predetermined location where he was arrested and found to be in possession of alcohol, condoms, and male enhancement products. Accordingly, the trial judge properly submitted the charge to the jury. See State v. Reid, 393 S.C. 325, 713 S.E.2d 274 (2011) (finding attempted second-degree CSC with a minor charge was properly submitted to the jury where appellant, who through a chat with an online persona created by a law enforcement officer, clearly communicated his desire to have a sexual encounter with a fourteen-year-old girl, arranged to meet the fictitious minor at a designated place and time, and travelled to that location); State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006) (recognizing that if there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must find the case was properly submitted to the jury).
D. Admission of Photographs
In a pre-trial hearing and during the trial, Green objected to the admission of the two photographs of his penis. Green contended the photographs were more prejudicial than probative and, thus, should be excluded. In response, the Solicitor offered the photographs "to show the furtherance of the conduct to solicit sex from the underage child as a form of grooming, as a form of soliciting sex." The trial judge rejected Green's motion, finding the photographs were "highly relevant" and that "any prejudicial effect" was outweighed.
On appeal, Green contends the trial judge erred in allowing the jury to view these photographs as "the prejudicial value of a visual of [his] computer screen name of ["blak slyder"] through pictures of the same far outweighed its probative value." Although Green concedes the "sexual conversation" in the chat room was relevant, he contends the photographs should have been excluded as they were "inflammatory to both male and female" jurors. He characterizes the admission of these photographs as an "exceptional circumstance" that warrants reversal of his convictions as he was deprived of his constitutional right to a fair trial.
"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of the State of South Carolina, statutes, [the South Carolina Rules of Evidence], or by other rules promulgated by the Supreme Court of South Carolina." Rule 402, SCRE. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, SCRE. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Rule 403, SCRE.
The relevancy, materiality, and admissibility of photographs as evidence are matters left to the sound discretion of the trial court. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). If the offered photograph serves to corroborate testimony, it is not an abuse of discretion to admit it. State v. Todd, 290 S.C. 212, 349 S.E.2d 339 (1986). To warrant reversal based on the wrongful admission of evidence, the complaining party must prove resulting prejudice. Vaught v. A.O. Hardee & Sons, Inc., 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005). Prejudice occurs when there is reasonable probability the wrongly admitted evidence influenced the jury's verdict. Id.
We find the trial judge did not abuse his discretion in admitting the photographs. Although clearly offensive, the photographs corroborated Investigator Platt's testimony and served to establish Green's intent to solicit the minor to engage in sexual activity. Furthermore, the photographs negated Green's claim that he did not intend to have sex with a minor. After sending the photographs, Green commented that "I can show it to you in person." This comment in conjunction with the photographs provided the jury with evidence of Green's specific intent as to the charged crimes. Accordingly, we agree with the trial judge that the photographs were relevant and that their probative value outweighed any prejudicial impact. See State v. Martucci, 380 S.C. 232, 249, 669 S.E.2d 598, 607 (Ct. App. 2008) (finding no abuse of discretion where trial judge admitted photographs that were relevant and necessary and were not introduced with the intent to inflame, elicit the sympathy of, or prejudice the jury; recognizing that a trial judge is not required to exclude evidence because it is unpleasant or offensive).
Moreover, even if the judge erred in admitting the photographs, we find any error to be harmless given that the text of the online chats, the testimony of the investigating officers, and the evidence found in Green's car conclusively established the elements of the crimes for which Green was charged. See State v. Bailey, 298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989) (recognizing that an insubstantial error not affecting the result of the trial is harmless where "guilt has been conclusively proven by competent evidence such that no other rational conclusion can be reached"); State v. Knight, 258 S.C. 452, 454, 189 S.E.2d 1, 2 (1972) ("[A] conviction will not be reversed for nonprejudicial error in the admission of evidence.").
E. Request to Charge ABHAN
At the conclusion of the State's case, Green requested the judge charge the lesser-included offense of attempted ABHAN. The trial judge denied Green's request on the ground there was "no evidence [or] conduct that could have been construed as an ABHAN."
On appeal, Green asserts the trial judge erred in denying his request to charge as the evidence warranted a charge on attempted ABHAN. Because he believed Mandy was actually a woman in her twenties, based on the online profile picture, and that he did not intend to engage in sexual activity once he met Mandy,[8] Green claims he was entitled to a charge on the lesser-included offense of attempted ABHAN.
"The law to be charged must be determined from the evidence presented at trial." State v. Knoten, 347 S.C. 296, 302, 555 S.E.2d 391, 394 (2001). A trial judge is required to charge the jury on a lesser-included offense if there is evidence from which it could be inferred the lesser, rather than the greater, offense was committed. State v. Drayton, 293 S.C. 417, 428, 361 S.E.2d 329, 335 (1987).
"ABHAN is a lesser included offense of ACSC, notwithstanding that technically ACSC does not contain all of the elements of ABHAN." State v. Geiger, 370 S.C. 600, 606, 635 S.E.2d 669, 672 (Ct. App. 2006); see 3 S.C. Jur. Assault and Battery § 26 (Supp. 2012) (discussing cases involving a jury instruction for ABHAN as a lesser-included offense). "ABHAN is the unlawful act of violent injury to another accompanied by circumstances of aggravation." State v. Fennell, 340 S.C. 266, 274, 531 S.E.2d 512, 516 (2000). "Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, infliction of serious bodily injury, great disparity in the ages or physical conditions of the parties, a difference in gender, the purposeful infliction of shame and disgrace, taking indecent liberties or familiarities with a female, and resistance to lawful authority." Id. at 274, 531 S.E.2d at 516-17.[9]
As previously stated, a person is guilty of CSC with a minor in the second-degree if "the actor engages in sexual battery with a victim who is fourteen years of age or less but who is at least eleven years of age." S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011).
We find the trial judge properly declined to charge attempted ABHAN. As evidenced by the text of the online chat, Green's clear intent was to engage in sexual activity with Mandy, who he believed to be fourteen years old. After Mandy responded that she was fourteen years old, the conversation turned sexual in nature with Green asking Mandy about her previous sexual experiences, whether she would have sex with him, and sending her the explicit pictures. Moreover, when Mandy asked Green, "u aint like gonna kill me or kidnap me r u?", Green responded "lol hell no." Thus, Green intended only to "engage in sexual battery with a victim who is fourteen years of age or less." Accordingly, there was no evidence demonstrating that Green was guilty of the lesser-included offense of attempted ABHAN rather than the crime of attempted CSC with a minor in the second-degree.
III. Conclusion
In conclusion, we affirm Green's convictions for criminal solicitation of a minor and attempted CSC with a minor in the second-degree as: (1) the criminal solicitation of a minor statute is not unconstitutionally overbroad or vague; (2) the use of a law enforcement officer to impersonate a minor victim was legally permissible to support both convictions; (3) Green had the requisite specific intent and committed an overt act in furtherance of the CSC charge under Reid; (4) the challenged photographs were relevant and their probative value outweighed any prejudicial effect; and (5) there was no evidence to support Green's request to charge attempted ABHAN.
AFFIRMED.
TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.
[1] S.C. Code Ann. § 16-15-342 (Supp. 2011).
[2] S.C. Code Ann. § 16-3-655(B)(1) (Supp. 2011).
[3] At the time of the chat, Green was actually twenty-seven years old as his date of birth is December 9, 1978.
[4] The officers executed a search warrant for Green's home computer and discovered the photographs that Green sent to Mandy during the online chat.
[5] Although we have not definitively ruled on an overbreadth challenge to the statute at issue, we have implicitly rejected a First Amendment objection. See State v. Gaines, 380 S.C. 23, 28 n.1, 667 S.E.2d 728, 731 n.1 (2008) (affirming defendant's convictions for criminal solicitation of a minor and stating, "the First Amendment does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent").
[6] See, e.g., La. Rev. Stat. Ann. § 14:81.3(A)(1) (West 2012) ("Computer-aided solicitation of a minor is committed when a person seventeen years of age or older knowingly contacts or communicates, through the use of electronic textual communication, with a person who has not yet attained the age of seventeen where there is an age difference of greater than two years, or a person reasonably believed to have not yet attained the age of seventeen and reasonably believed to be at least two years younger, for the purpose of or with the intent to persuade, induce, entice, or coerce the person to engage or participate in sexual conduct or a crime of violence as defined in R.S. 14:2(B), or with the intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of seventeen, or person reasonably believed to have not yet attained the age of seventeen."); Utah Code Ann. § 76-4-401(2)(a) (Supp. 2011) ("A person commits enticement of a minor when the person knowingly uses or attempts to use the Internet or text messaging to solicit, seduce, lure, or entice a minor or another person that the actor believes to be a minor to engage in any sexual activity which is a violation of state criminal law.").
[7] The majority of federal jurisdictions have also rejected Green's argument with respect to a similar federal statute, 18 U.S.C. § 2422(b), which prohibits a person from using the mail or interstate commerce to "knowingly persuade [], induce [], entice [], or coerce []" someone under the age of 18 "to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempt [] to do so." See United States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006) ("After examining the text of the statute, its broad purpose and its legislative history, we conclude that Congress did not intend to allow the use of an adult decoy, rather than an actual minor, to be asserted as a defense to § 2422(b)."); United States v. Hicks, 457 F.3d 838, 841 (8th Cir. 2006); ("[A] defendant may be convicted of attempting to violate § 2422(b) even if the attempt is made towards someone the defendant believes is a minor but who is actually not a minor."); see also United States v. Gagliardi, 506 F.3d 140 (2d Cir. 2007); United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001); United States v. Meek, 366 F.3d 705, 717-20 (9th Cir. 2004); United States v. Sims, 428 F.3d 945 (10th Cir. 2005).
[8] In support of this assertion, Green references this Court's decision in State v. Drafts, 288 S.C. 30, 340 S.E.2d 784 (1986), wherein this Court reversed the defendant's conviction for assault with intent to commit criminal sexual conduct in the first degree for failure to charge ABHAN based on the defendant's testimony that "he did not want to do anything" with the victim. We find Drafts to be inapposite as the defendant in that case admitted "taking indecent liberties" with the female victim, which clearly would have supported an ABHAN charge. Id. at 33-34, 340 S.E.2d at 786.
[9] In 2010, after this matter arose, the South Carolina General Assembly codified offenses involving assault and battery and these provisions are now applicable. S.C. Code Ann. § 16-3-600 (Supp. 2011).
7.2.6.6.2.4 McQuirter v. State 7.2.6.6.2.4 McQuirter v. State
McQUIRTER
v.
STATE.
Court of Appeals of Alabama.
Windell C. Owens, Monroeville, for appellant.
Si Garrett, Atty. Gen., and Maury D. Smith, Asst. Atty. Gen., for the State.
PRICE, Judge.
Appellant, a Negro man, was found guilty of an attempt to commit an assault with intent to rape, under an indictment charging an assault with intent to rape. The jury assessed a fine of $500.
[389] About 8:00 o'clock on the night of June 29, 1951, Mrs. Ted Allen, a white woman, with her two children and a neighbor's little girl, were drinking Coca-Cola at the "Tiny Diner" in Atmore. When they started in the direction of Mrs. Allen's home she noticed appellant sitting in the cab of a parked truck. As she passed the truck appellant said something unintelligible, opened the truck door and placed his foot on the running board.
Mrs. Allen testified appellant followed her down the street and when she reached Suell Lufkin's house she stopped. As she turned into the Lufkin house appellant was within two or three feet of her. She waited ten minutes for appellant to pass. When she proceeded on her way, appellant came toward her from behind a telephone pole. She told the children to run to Mr. Simmons' house and tell him to come and meet her. When appellant saw Mr. Simmons he turned and went back down the street to the intersection and leaned on a stop sign just across the street from Mrs. Allen's home. Mrs. Allen watched him at the sign from Mr. Simmons' porch for about thirty minutes, after which time he came back down the street and appellant went on home.
Mrs. Allen's testimony was corroborated by that of her young daughter. The daughter testified the appellant was within six feet of her mother as she approached the Lufkin house, and this witness said there was a while when she didn't see appellant at the intersection.
Mr. Lewis Simmons testified when the little girls ran up on his porch and said a Negro was after them, witness walked up the sidewalk to meet Mrs. Allen and saw appellant. Appellant went on down the street and stopped in front of Mrs. Allen's home and waited there approximately thirty minutes.
Mr. Clarence Bryars, a policeman in Atmore, testified that appellant stated after his arrest that he came to Atmore with the intention of getting him a white woman that night.
Mr. W. E. Strickland, Chief of Police of Atmore, testified that appellant stated in the Atmore jail he didn't know what was the matter with him; that he was drinking a little; that he and his partner had been to Pensacola; that his partner went to the "Front" to see a colored woman; that he didn't have any money and he sat in the truck and made up his mind he was going to get the first woman that came by and that this was the first woman that came by. He said he got out of the truck, came around the gas tank and watched the lady and when she started off he started off behind her; that he was going to carry her in the cotton patch and if she hollered he was going to kill her. He testified appellant made the same statement in the Brewton jail.
Mr. Norvelle Seals, Chief Deputy Sheriff, corroborated Mr. Strickland's testimony as to the statement by appellant at the Brewton jail.
Appellant, as a witness in his own behalf, testified he and Bill Page, another Negro, carried a load of junk-iron from Monroeville to Pensacola; on their way back to Monroeville they stopped in Atmore. They parked the truck near the "Tiny Diner" and rode to the "Front," the colored section, in a cab. Appellant came back to the truck around 8:00 o'clock and sat in the truck cab for about thirty minutes. He decided to go back to the "Front" to look for Bill Page. As he started up the street he saw prosecutrix and her children. He turned around and waited until he decided they had gone, then he walked up the street toward the "Front." When he reached the intersection at the telegraph pole he decided he didn't want to go to the "Front" and sat around there a few minutes, then went on to the "Front" and stayed about 25 or 30 minutes, and came back to the truck.
He denied that he followed Mrs. Allen or made any gesture toward molesting her or the children. He denied making the statements testified to by the officers.
He testified he had never been arrested before and introduced testimony by two residents of Monroeville as to his good reputation for peace and quiet and for truth and veracity.
[390] Appellant insists the trial court erred in refusing the general affirmative charge and in denying the motion for a new trial on the ground the verdict was contrary to the evidence.
"`An attempt to commit an assault with intent to rape,' * * * means an attempt to rape which has not proceeded far enough to amount to an assault". Burton v. State, 8 Ala.App. 295, 62 So. 394, 396.
Under the authorities in this state, to justify a conviction for an attempt to commit an assault with intent to rape the jury must be satisfied beyond a reasonable doubt that defendant intended to have sexual intercourse with prosecutrix against her will, by force or by putting her in fear. Morris v. State, 32 Ala.App. 278, 25 So.2d 54; Burton v. State, 8 Ala.App. 295, 62 So. 394.
Intent is a question to be determined by the jury from the facts and circumstances adduced on the trial, and if there is evidence from which it may be inferred that at the time of the attempt defendant intended to gratify his lustful desires against the resistance of the female a jury question is presented. McCluskey v. State, 35 Ala.App. 456, 48 So.2d 68.
In determining the question of intention the jury may consider social conditions and customs founded upon racial differences, such as that the prosecutrix was a white woman and defendant was a Negro man. Pumphrey v. State, 156 Ala. 103, 47 So. 156; Kelly v. State, 1 Ala.App. 133, 56 So. 15.
After considering the evidence in this case we are of the opinion it was sufficient to warrant the submission of the question of defendant's guilt to the jury, and was ample to sustain the judgment of conviction.
Defense counsel contends in brief that the testimony of the officers as to defendant's declarations of intent was inadmissible because no attempt or overt act toward carrying that intent into effect had been proven.
Defendant's grounds of objection to this evidence were that it was "irrelevant, incompetent and immaterial." Proper predicates were laid for the introduction of each of said statements. In the absence of a ground of objection calling the court's attention to the fact that the corpus delicti has not been sufficiently proven to authorize admission of a confession such question cannot be reviewed here. Edgil v. State, Ala.App., 56 So.2d 677 and authorities there cited.
Moreover, if any facts are proven from which the jury may reasonably infer that the crime has been committed proof of the confession is rendered admissible. Rutland v. State, 31 Ala.App. 43, 11 So.2d 768; Ratliff v. State, 212 Ala. 410, 102 So. 621; Hill v. State, 207 Ala. 444, 93 So. 460.
We find no reversible error in the record and the judgment of the trial court is affirmed.
Affirmed.
7.2.6.6.2.5 Ross v. State 7.2.6.6.2.5 Ross v. State
Sammy Joe ROSS
v.
STATE of Mississippi.
Supreme Court of Mississippi.
Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for appellant.
Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.
PRATHER, Justice, for the Court:
I. INTRODUCTION
This attempted-rape case arose on the appeal of Sammy Joe Ross from the ten-year sentence imposed on July 7, 1988 by the Circuit Court of Union County. The appellant timely filed a notice of appeal and dispositively raises the issue:
Whether the trial court erred in denying the defendant's motion for directed verdict on the charge of attempted rape.
This Court reverses and renders the conviction for attempted rape.
A. Facts
On September 16, 1987, sometime around 2:15 in the afternoon, Deputy Sheriff Edwards of the Union County Sheriff's Department was driving on Highway 30 heading east. Before he turned south onto Highway 9, he saw an oncoming truck, a white, late-model Ford pickup, turn left onto the first gravel road. Because the truck had out-of-county tags and turned down a road on which several crimes had occurred, Edwards jotted down the tag number, which action he described as routine practice.
[873] Dorothy Henley[1] and her seven-year-old daughter lived in a trailer on the gravel road. Henley was alone at home and answered a knock at the door to find Sammy Joe Ross asking directions. Henley had never seen Ross before. She stepped out of the house and pointed out the house of a neighbor who might be able help him. When she turned back around, Ross pointed a handgun at her. He ordered her into the house, told her to undress, and shoved her onto the couch. Three or four times Ross ordered Henley to undress and once threatened to kill her. Henley described herself as frightened and crying. She attempted to escape from Ross and told him that her daughter would be home from school at any time. She testified:
I started crying and talking about my daughter, that I was all she had because her daddy was dead, and he said if I had a little girl he wouldn't do anything, for me just to go outside and turn my back.
As instructed by Ross, Henley walked outside behind her trailer. Ross followed and told her to keep her back to the road until he had departed. She complied.
Henley was able to observe Ross in her sunlit trailer with the door open for at least five minutes. She stated that she had an opportunity to look at him and remember his physical appearance and clothing. Henley also described Ross's pickup truck, including its color, make, and the equipment i.e., a tool-box.
Deputy Sheriff Edwards, while returning on Highway 9 where he had previously observed the white pickup, saw Union County Sheriff Bryant's car parked, but did not stop. A short time later, he heard the sheriff radio for county units to be on the lookout for a white pickup truck driven by a white male. Edwards "radioed" back to tell Bryant of the previous sighting. Edwards then radioed in a registration check on the tag number, which turned out to be registered to Ross. Later that day, Sheriff Bryant photographed the tire tracks at Henley's home and compared them with photographs of the tires on Ross's truck. He described the comparison as a "definite match." Ross claimed an alibi as his defense.
B. Procedural History
On December 21, 1987, a Union County grand jury indicted Sammy Joe Ross for the attempted rape of Henley, charging that Ross "did unlawfully and feloniously attempt to rape and forcibly ravish" the complaining witness, an adult female. On January 25, 1988, Ross waived arraignment and pled not guilty.
On June 23, 1988, The jury found Ross guilty. On July 7, the court sentenced Ross to a ten-year term. When Ross moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial, the court denied the motion. Ross timely filed a notice of appeal.
II. ANALYSIS
Whether the trial court erred in denying the defendant's motion for directed verdict on the charge of attempted rape.
Although other issues relating to pre-trial lineup and in-court identification are raised, the primary issue here is whether sufficient evidence presents a question of fact as to whether Ross abandoned his attack as a result of outside intervention. Ross claims that the case should have gone to the jury only on a simple assault determination. Ross asserts that "it was not ... Henley's resistance that prevented her rape nor any independent intervening cause or third person, but the voluntary and independent decision by her assailant to abandon his attack." The state, on the other hand, claims that Ross "panicked" and "drove away hastily."
As recited above, Henley told Ross that her daughter would soon be home from school. She also testified that Ross stated if Henley had a little girl, he wouldn't do anything to her and to go outside [the house] and turn her back [to him]. Ross moved that the court direct a verdict in his favor on the charge of attempted rape, which motion the court denied.
[874] The trial court instructed the jury that if it found that Ross did "any overt act with the intent to have unlawful sexual relations with [the complainant] without her consent and against her will" then the jury should find Ross guilty of attempted rape. The court further instructed the jury that:
before you can return a verdict against the defendant for attempted rape, that you must be convinced from the evidence and beyond a reasonable doubt, that the defendant was prevented from completing the act of rape or failed to complete the act of rape by intervening, extraneous causes. If you find that the act of rape was not completed due to a voluntary stopping short of the act, then you must find the defendant not guilty.
Ross did not request, and the court did not give, any lesser included offense instructions.
Review of a directed verdict made at the close of the Defendant's case consists of this Court's applying a reasonable doubt standard to the verdict, while viewing the evidence in a light most favorable to the verdict. Stever v. State, 503 So.2d 227, 230 (Miss. 1987). This Court may not then discharge the defendant unless the Court concludes that no reasonable, hypothetical juror could have found the defendant guilty. Pearson v. State, 428 So.2d 1361, 1364 (Miss. 1983).
The statutory definition of the crime of attempted rape lies in two statutes: rape, section 97-3-65(2)[2] and attempt[3], section 97-1-7. In the Interest of R.T., 520 So.2d 136, 137 (Miss. 1988); see Miss. Code Ann. §§ 97-3-65(2) (Supp. 1988), 97-1-7 (1972). The Mississippi Code defines rape as "forcible ravish[ing]." Miss. Code Ann. § 97-3-65(2) (Supp. 1988). In Harden v. State, 465 So.2d 321, 325 (Miss. 1985), this Court held that lewd suggestions coupled with physical force constituted sufficient evidence to establish intent to rape. See also Clemons v. State, 470 So.2d 653, 655 (Miss. 1985).
The crime of attempt to commit an offense occurs when a person
shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same... .
Miss. Code Ann. § 97-1-7 (1972). Put otherwise, attempt consists of "1) an intent to commit a particular crime; 2) a direct ineffectual act done toward its commission, and 3) failure to consummate its commission." Pruitt v. State, 528 So.2d 828, 830 (Miss. 1988) (attempted rape was voluntarily abandoned by defendant when he told victim she was free to leave); accord Edwards v. State, 500 So.2d 967, 969 (Miss. 1986); Bucklew v. State, 206 So.2d 200, 202 (Miss. 1968).
The Mississippi attempt statute requires that the third element, failure to consummate, result from extraneous causes. West v. State, 437 So.2d 1212, 1214 (Miss. 1983) (attempted sexual battery case). Thus, a defendant's voluntary abandonment may negate a crime of attempt. Where a defendant, with no other impetus but the victim's urging, voluntarily ceases his assault, he has not committed attempted rape. See In the Interest of R.T., 520 So.2d 136, 137 (Miss. 1988). In Pruitt, 528 So.2d at 830-831, where the assailant released his throathold on the unresisting victim and told her she could go, after [875] which a third party happened on the scene, the Court held that the jury could not have reasonably ruled out abandonment. See also West v. State, 437 So.2d at 1213-14 (Miss. 1983) (finding no attempted sexual battery).
In comparison, this Court has held that where the appellant's rape attempt failed because of the victim's resistance and ability to sound the alarm, the appellant cannot establish an abandonment defense. Alexander v. State, 520 So.2d 127, 130 (Miss. 1988). In the Alexander case, the evidence sufficiently established a question of attempt for the jury. The defendant did not voluntarily abandon his attempt, but instead fled after the victim, a hospital patient, pressed the nurse's buzzer; a nurse responded and the victim spoke the word "help." Alexander, 520 So.2d at 128. The Court concluded, "[T]he appellant ceased his actions only after the victim managed to press the buzzer alerting the nurse." Alexander, 520 So.2d at 130. In another case, the court properly sent the issue of attempt to the jury where the attacker failed because the victim resisted and freed herself. Harden v. State, 465 So.2d 321, 325 (Miss. 1985).
Thus, abandonment occurs where, through the verbal urging of the victim, but with no physical resistance or external intervention, the perpetrator changes his mind. At the other end of the scale, a perpetrator cannot claim that he abandoned his attempt when, in fact, he ceased his efforts because the victim or a third party intervened or prevented him from furthering the attempt. Somewhere in the middle lies a case such as Alexander, where the victim successfully sounded an alarm, presenting no immediate physical obstacle to the perpetrator's continuing the attack, but sufficiently intervening to cause the perpetrator to cease his attack.
In this case, Ross appeals the denial of his motion for directed verdict; thus, he challenges only the sufficiency of the evidence, that is, whether it raised a sufficient factual issue to warrant a jury determination. Even under this rigorous standard of review, Ross's appeal should succeed on this issue. The evidence does not sufficiently raise a fact question as to whether he attempted rape. The evidence uncontrovertibly shows that he did not, but instead abandoned the attempt.
The key inquiry is a subjective one: what made Ross leave? According to the undisputed evidence, he left because he responded sympathetically to the victim's statement that she had a little girl. He did not fail in his attack. No one prevented him from completing it. Henley did not sound an alarm. She successfully persuaded Ross, of his own free will, to abandon his attempt. No evidence shows that Ross panicked and hastily drove away, but rather, the record shows that he walked the complainant out to the back of her trailer before he left. Thus, the trial court's failure to grant a directed verdict on the attempted rape charge constituted reversible error. As this Court stated in Pruitt, 528 So.2d 831, this is not to say that Ross committed no criminal act, but "our only inquiry is whether there was sufficient evidence to support a jury finding that [Ross] did not abandon his attempt to rape [Henley]." This Court holds that there was not.
III. CONCLUSION
Ross raises a legitimate issue of error in the sufficiency of the evidence supporting his conviction for attempted rape because he voluntarily abandoned the attempt. This Court reverses and renders.
REVERSED AND APPELLANT DISCHARGED.
ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and ROBERTSON, SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.
[1] The complainant's name has been changed.
[2] Miss. Code Ann. § 97-3-65(2) (Supp. 1991) provides:
Every person who shall forcibly ravish any person of the age of fourteen (14) years and upward, or who shall have been convicted of carnal knowledge of any person about the age of fourteen (14) years without such person's consent, ...
[3] Miss. Code Ann. § 97-1-7 Attempt to commit offense
Every person who shall design and endeavor to commit an offense, and shall do any overt act toward commission thereof, but shall fail therein, or shall be prevented from committing the same, or conviction thereof, shall where no provision is made by law for the punishment of such offense, be punished as follows:
... .
if the offense attempted be punishable by imprisonment in the penitentiary, or by fine and imprisonment in the county jail, then the attempt to commit such offense shall be punished for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted.
7.2.6.6.2.6 State v. Davis 7.2.6.6.2.6 State v. Davis
319 Mo 1222
6 S.W. (2d) 609
THE STATE
v.
CARL B DAVIS, Appellant
Court en Banc
May 18, 1928.
[1226] The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.
On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief, as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of AIberdina, killed, so that they could obtain the insurance on his life; aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or: three weeks In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined, his plan, offering Dill the sum of six hundred dollars, with the further agreement that AIberdina, who was to be with her husband at the time of the contemplated, assault; would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences, on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie, could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P. M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alber[1227] dina was to be mussed up and the diamonds taken from her so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to bake his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o 'clock P. M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person. As Dill and the officers entered the room; she turned her face to the wall as planned. Two officers took charge of Edmon and Alberdina, Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.
Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, to whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie. It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds, Alberdina telling defendant that she thought he was a master mind among criminals. The confession was made o the night of February 13, 1926. The evidence establishes that all of the acts complained of occurred in Kansas City, Jackson County, Missouri, during January and February, 1923.
The evidence on the part of defendant tends to establish that defendant was urged to agree to the arrangement by Dill and Leverton, but that after paying the money he abandoned the crime before ' an overt act was committed. There was also testimony that Alberdina, the co-conspirator, abandoned the plot, which abandonment was communicated to Dill and defendant. Defendant was addicted to; drink and had been an inmate of a sanatorium. It was asserted that all these facts were known to Dill and Leverton, who purchased and gave him liquor while persuading him to continue the plot. Such other facts as we find pertinent, if any, will later be noted.
[1228] Section 3683, Revised Statutes 1919, upon; which the indictment and prosecution are based, reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented, or intercepted in executing the same, upon conviction thereof, shall, in cases where no, provision is made by law for the punishment of such attempt, be punished as follows." The remaining portion of the section sets forth the punishment prescribed, which it is unnecessary to recite.
The sufficiency of the evidence to sustain the conviction is raised. The defining of an attempt to commit a crime and the ascertaining of its essential elements is necessary in the consideration of its essential elements is necessary in the consideration of the question. 16 Corpus Juris, page 112, in defining an attempt, says: “An attempt to commit a crime 'may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime.” The elements of an attempt are stated in 16 Corpus Juris, page 113, thus: “An attempt to commit a crime consists of three elements: (1) The intention to commit, the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission."
The proof adduced advises us that the only debatable question is the presence of sufficient facts to demonstrate the second element. The record develops the presence of the intent to commit the crime and the failure to consummate its commission. We therefore dismiss the first and third elements of an attempt from further consideration. However, as there must be coincidence as to every element of the offense, the lack of one essential element demonstrates a failure to commit the crime of attempted murder. Our sole inquiry then relates to the performance of some act upon the part of defendant toward the commission of the crime.
The physical overt act, which, with intent and failure to consummate, brings the crime of attempt into existence, is distinguishable from solicitation and preparation. An attempt to commit a crime involves an act on the part of the defendant moving directly toward the commission of the offense. With these concepts in mind we proceed to review the solicitations and preparations by defendant to murder Lourie as constituting an overt act.
In State v. Hayes, 78 Mo. 307, this court through PHILIPS, C., said: “It is the recognized law of this country that the solicitation of another to commit a crime is an act toward the commission." How [1229] ever, the proof in the above case developed in addition to solicitations an act on the part of the accused extending beyond solicitation or preparation, that of saturating a portion of the floor with coal oil as well as, the furnishing of plans and an oil can. Conceding that the court reached the proper result in, that case, concerning which it is unnecessary to express an opinion, the basic facts there shown extend far beyond the facts here developed. While a few of the courts have treated solicitation to commit a crime as an attempt, the great weight of authority warrants the assertion that mere solicitation, unaccompanied by, an act moving directly toward the commission of the intended crime, is not an overt act constituting an element of the crime of attempt. Solicitation of itself is a distinct offense when declared so by law. [16 C. J. 118; 8 R. C. L. 277.] Therefore, in conformity with the weight of authority, we hold that, merely soliciting one to commit a crime does not constitute an attempt.
The State contends that the arrangement of a plan for the accomplishment of the murder of Lourie and the selecting and hiring of the means or instrumentality by which the murder was to be consummated were demonstrated. We take it that the State means by the foregoing declarations that overt acts were shown. To that we do not agree. The evidence goes no further than developing a verbal arrangement with Dill, the selection of Dill as the one to kill Lourie, the delivery of a certain drawing and two photographs of Lourie to Dill and the payment of a portion of the agreed consideration. These things were mere acts of preparation failing to lead directly or proximately to the consummation of the intended crime. In this regard we have found no authority which holds that preparations constitute an overt act.
The distinguishment between the overt act and preparation is stated by FIELDs, C. J., in People v. Murray, 14 Cal. 159, reading "Between preparation for, the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.”
In Reg. v. Taylor, 1 Fost. &. F. 512, the court say: "The act to constitute a criminal attempt must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner in such, circumstances that he has the power of carrying ,his intent into execution.”
The plans or arrangements amounted to nothing more than mere preparation. The contract of hiring entered into between defendant and Dill also fails to extend beyond mere preparation. In regard to the hiring the trial court instructed the jury that the payment of [1230] money by defendant to Dill to commit the intended crime did not constitute such an overt act as was tantamount to an attempt. The ruling of the court we think was right, for the payment of money was not an act moving directly toward the consummation of the intended crime. The only case we have found involving the actual payment of money to another as the consideration for the proposed crime is Reg. v Williams 1 Car. & K. 589, 1 Den. C. C. 39. In that case the facts develop the actual delivery of money to the agent who straight-way went with the poison given him for that purpose to the home of the intended victims. However, on his arrival he disclosed to them the plan to kill, handing over the poison. The fifteen judges who considered the case on appeal held the conviction erroneous.
The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. [Ex: parte Floyd, 95 Pac. 175; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. 891, Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653; State v. Rider, 90 Mo. 54; State v. Baller, 26 W. Va. 90; People v. Youngs, 122 Mich. 292; McDade v. People, 29 Mich. 50; State v. Fraker, 148 Mo. 143, 49 S.W. 1017; State v. Harney, 101 Mo. 470, 14 S. W. 657.]
Whether it is necessary to make an actual assault before the crime of attempt can be said to come into existence, we need not decide, for the solicitations and preparations upon the part of defendant were not equivalent to an overt act which must take place before the crime of attempt comes into existence. In addition to the case of State v. Hayes, 78 Mo. 307, we have considered the case of State v. Mitchell, 170 Mo. 633; 71 S. W. 175, but do not think it is apposite to the facts here developed, for in that case the intended victim was absent from the bed where he usually slept when defendant, with intent to harm him, fired through the window into the pillow of the bed. In that case the proof shows an overt act which develops the crime.
Our statute, Section 3683, Revised Statutes 1919, in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt. The statute we think follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act, must move direct [1231] ly in consummation of the crime, in other words, toward the commission of the offense. People v. Youngs, 122 Mich. 292, supports this ruling.
It follows from what we have said that the judgment must be reversed and the defendant discharged. It is so ordered. Higbee and Henwood, CC., concur.
PER CURIUM:—This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of court en Banc. Graves, Atwood and Ragland, JJ., concur; White, J., concurs in a separate opinion, in which Blair and Gantt, J.J., concur; Walker, C. J. dissents in separate opinion.
WHITE, J., (concurring).— I concur the conclusion reached in the opinion, of DAVIS,C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is the decisive of the case.
Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687, Revised Statues 1919.He did not attempt to commit the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.
I.
The principle of the law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:
“There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed (3) that the principle committed the crime."
And again (pp. 134-5):
"To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam sui principalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."
A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where the defendant [1232] was charged as accessory before the fact in commission of murder. The court said, at page 596:
“The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .
"The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).
In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:
"The error in this instruction is glaring and manifest. . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased.”
The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.
In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:
"The offense of the accessory, though different from that of the principal, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot subsist without it.”
In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l. c. 253):
"It is not a violation of the law with reference to the conviction of an accomplice in that he simply furnished the means, advised or aided; there would be no offense unless the offense in contemplation was subsequently committed.”
In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said: (l. c. 52):
“It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that person must be established.”
In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as [1233] principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l. c. 332):
"Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting was done by Sam Hickam in the attempted accomplishment of a purpose in his mind to kill Davenport of which such defendant had knowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given.”
The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal. In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l. c. 252):
“If appellant be punished under the facts in this case, it must be because her offense is within the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal there is no accessory.
That was concurred in by all of the judges of Division Two.
The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l. c. 80):
“The trial court told the jury in this instruction that defendant was guilty of burglary; if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal.”
And at page 81:
“The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter’s felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent. But he was not a passive agent in this transaction. He was an active one. He acted of his own volition. He [319 Mo. Sup.78] [1234] did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured.
Quoting from a Kansas case, the court added:
“’The act of a detective may, perhaps, be not imputable to the defendant, as there is want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.’”
The court then cites authorities and reasons at length upon the principle, too long to quote here.
The effect of the above authorities is that, in order to convict one as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed' by the overt act in the commission or attempted commission of the crime.
II.
But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent.
Counsel for the State in his argument suggests that it is an indictable offense at common law to counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an, offense, at common law. [16 C. J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C. J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C. J. 119.] The common law recognizes these three distinct offenses. The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. St. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit a crime at all. That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. St. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a felonious attempt to poison one Waring with intent to commit the crime of murder. The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing. He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme. The defendant was convicted on [1235] both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l. c. 654):
“The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed.”
And further:
“In the present case it 'is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested.”
And further commenting on the facts, the court said (l. c. 655):
"If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860.”
That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State’s position.
Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the “Old Man’s coffee," the old man being the intended victim. L had no intention to administer the poison. It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (1. c. 896):
"'Merely soliciting someone to do an act is an attempt to do that act’ (citing an old case).
“‘In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted but at the ensuing term the case was considered by the fifteen judges who held the conviction wrong.’”
And further.
“Here, undoubtedly, there was an intent to commit murder, but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."
That case and this are as like as two peas.
In the case of Hall v. State, 52 Tex. Crim. l. c. 253, the appellant was charged as an accomplice in a burglary, and the court said:
“It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed."
[1236] Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.
State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.
In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.
It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done—things, absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the! first man who offered his services.
The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.
Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine eases upon the law, as it is written, and as it has been adjudged for generations.
The judgment is properly reversed.
WALKER, C. J., (dissenting).—The charge against the defendant was based upon the following statute, so far as the same is definitory of the offense: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any [1237] act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall in cases where no provision is made by law for the punishment of such attempt, be punished as follows:” (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).
"An attempt,” as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if hot hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter, then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l. c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l. c. 298.] The presence of the essentials necessary to constitute the crime are, threefold: (1) the intent; (2) the doing of acts toward the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l. c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S. W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a mariner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.
In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure—due to no cause of his.
Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are out introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: “or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished,: etc.
[1238] Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein. He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67, L. R. A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act toward its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l. c. 316.] The evil intent in the mind of the defendant—the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]
I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no. intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.
In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.” In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.
Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110, Mo. App. l. c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar. It there said:
“It has been at times suggested that to merely: solicit the unlawful offense was not doing an act, and that the law could not notice a mere [1239] desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l. c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may, also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation, is not an attempt to have the offense committed. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.
“Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor. [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: ‘According to the well-established principles of the common law, the proposal, to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked by appropriate punishment. [Walsh v. The People, 65 Ill. 58]’”
The proof of defendant’s guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended, victim planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur, the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for, news of the murder. His paramour—but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband.
[1240] The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually participating in its commission.
Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.
7.2.6.6.2.7. Craswell, Contract Remedies, Renegotiation, and Efficient Breach
7.2.6.6.2.8. Restatement of Contacts, Second, §45
7.2.6.6.2.9 U.S. v. Church 7.2.6.6.2.9 U.S. v. Church
29 M.J. 679
UNITED STATES
v.
Senior Airman William M. CHURCH, FR United States Air Force.
ACM 27324.
U.S. Air Force Court of Military Review.
Sentence Adjudged 16 Sept. 1988.
Decided 26 Oct. 1989.
Accused, a senior airman in the United States Air Force, Was convicted by general court-martial convened at Grand Forks Air Force Base, North Dakota, Stephen R. Bloss, J., of attempted premeditated murder of his wife, and he appealed. The United States Air Force Court of Military Review, Blommers, J., held that evidence supported conviction, although person whom accused attempted to hire to kill wife was undercover agent and accused argued that his conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder.
Affirmed.
1. Military Justice
There can be no conspiracy when supposed participant merely feigns acquiescence in criminal venture to secure another’s detection and apprehension by proper authorities.
2. Military Justice
Evidence supported accused’s conviction for attempted premeditated murder of his Wife, although person he attempted to hire to kill Wife was undercover agent and it was claimed accused’s conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder; accused obtained services of purported hit man to murder his wife, participated in detailed planning of intended crime, and paid agreed-upon consideration before crime and after he was apprised that crime had occurred. UCMJ, Art. 80, 10 U.S.C.A. § 880; MCM 1984, Pt. IV, H4, subd. c.
3. Military Justice
Variances between attempted murder specification, which alleged that crime occurred at particular Air Force base and alleged dates on or about 25-26 April, and proof of meeting between accused and undercover agent posing as hit man 78 miles from where -base was located and on 22 April, were not fatal variances; companion attempted conspiracy charge that was dismissed alleged offense occurring between 19-22 April at both air base and town in which meeting took place, so accused was not misled so as to affect his ability to adequately prepare for trial and would be fully protected against another prosecution for the same offense.
Appellate Counsel for the Appellant: Colonel Richard F. O'Hair and Major Lynne H. Wetzell.
Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and Captain Morris D. Davis.
Before LEWIS, BLOMMERS and KASTL, Appellate Military Judges.
Decision
BLOMMERS, Judge:
[1] Before a general court-martial with members, the appellant, contrary to his pleas, was found guilty of the attempted premeditated murder of his wife in violation of Article 80, UCMJ, 10 U.S.C. 880.[1] His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances; and reduction to airman basic (E-1). The principal issue raised before us is framed by appellate counsel as follows:
WHETHER THE MILITARY JUDGE ERRED IN DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR A FINDING OF NOT GUILTY OF THE CHARGE AND SPECIFICATION OF ATTEMPTED PREMEDITATED MURDER, AS THE EVIDENCE FAILED TO SHOW ANY ACTS ON THE PART OF THE APPELLANT BEYOND MERE PREPARATION, NOR THAT ANY ACT OF THE APPELLANT TENDED TO EFFECT THE COMMISSION OF THE INTENDED OFFENSE.
Simply stated, it is asserted that the evidence is not sufficient to support findings of guilty of attempted murder. We disagree and affirm. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).
This case involves contracting out for the commission of a crime. As appellate counsel note, the facts of this case present an issue of first impression for the military appellate courts in applying principles of law relating to “attempt" crimes. The specification in question alleges that the appellant “did, at Grand Forks Air Force Base, North Dakota, from on or about 25 April 1988 to on or about 26 April 1988, attempt to, with premeditation, murder [his wife] by procuring, assisting, and counseling Nicholas J. Karnezis to commit, for payment in United States currency, the premeditated murder of the said [wife]." In order to be found guilty of an attempt, the evidence must establish “a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM, Part IV, para. 4c(1) (1984). The act in question must amount to more than mere preparation to commit the offense.[2] A solicitation to commit an offense in violation of Article 134, UCMJ, 10 U.S.C. 934, on the other hand, is committed if one counsels or advises another to commit an offense with the specific intent that the offense solicited be committed. No overt act directly tending to accomplish the unlawful purpose is required. During oral argument, appellate defense counsel conceded that the appellant is guilty of soliciting another to commit murder, but argued forcefully that he was not guilty of attempted murder because no act beyond mere preparation was proven.[3] To resolve this matter, it will be necessary to review the evidence of record in some detail.
Facts
The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.
Sometime between Thanksgiving and Christmas of 1987, the appellant, a security policeman, asked Senior Airman Mohon, a former co-worker, if he knew anyone the appellant could hire to kill his wife. Mohon did not take the appellant seriously. Sometime January 1988, Senior Airman Kowalkowski, a co-worker, and the appellant were talking about the appellants, marital difficulties, and the appellant commented that he would be better off if was dead. Shortly thereafter, during another conversation, the appellant asked Kowalkowski if he had any friends from a big city. Kowalkowski did not take the appellant seriously either.
On about 31 March 1988, Airman Meyer, another co-worker, was talking with the appellant in the hallway of their dormitory. The appellant said that since. Meyer was from a big city, he wondered if Meyer knew anybody who could do a job for him. Knowing the appellant’s family situation, Meyer believed the appellant was talking about getting someone to kill his wife so he could regain custody of his son. Meyer replied that he would check around and make some calls, but really did not take the appellant seriously. A couple of days later, he made one call to a friend back in New York in the appellant’s presence. He asked his friend, “Do you know anybody that you could find to eliminate this guy’s wife so he can get custody of his kid?” The appellant gave no indication he had just been kidding around or joking when Meyer asked this question. On another occasion when Meyer was present, the appellant made a rough drawing of the residence where his wife was living and explained how easily someone could gain access to it. On about 6 April, Meyer went with the appellant to the city of Grand Forks to pick up tax returns. During the trip, the appellant said he was expecting an $800.00 refund and implied it could be used to pay for his wife’s killing.
On 7 April 1988, Sergeant Skyberg, a co-worker and friend, received a message that the appellant wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could . . . [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but some» thing he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).
After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.
Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It Was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.
The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick„With pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, Where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30
Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.
On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial).
An Attempt or Only a Solicitation?
[2] On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. See Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 810, 56 L.Ed. 1114, 1134 (1911) (Justice Holmes dissenting); Perkins, Criminal Law 572 (2d Ed.1969). Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma.[4] See, e.g., State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Ct.App.1977); Johnson v. Sheriff Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal. App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); State v. Miller, 252 A.2d 321 (Me.1969); State v. Laurie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928). In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime.[5] For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.
Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an exconvict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Lourie’s. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape~ On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Lourie’s were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Lourie S, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:
The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)
State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State.v Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)
Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. See, e.g., Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will Support an attempt conviction. For example in Gay, payment by the solicitor was considered a sufficient overt act directed toward commission of the intended crime.
Appellate defense counsel urge that it would be inappropriate to adopt this minority view under military law. Doing so, it is argued, would violate “the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.” Perhaps so, because our law requires “a direct movement toward the commission of the offense," and provides that “[s]oliciting another to commit an offense does not constitute an attempt” (though solicitation can be a lesser included offense). MCM, Part IV, para. 4c (1984).[6]
We are not convinced, however, that military law should extend so far as to hold that a factual situation such as that present in the Davis and Laurie cases will not constitute an attempt to commit a crime. In this regard, we find solace in the reasoning of some of the dissenters in the foregoing cases. In Davis, Chief Justice Walker wrote: “Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.” State v. Davis, 6 S.W.2d at 616. In State v. Otto (defendant soliciting undercover agent to commit murder, paying him $250.00 up front with promise of larger sum after crime was committed, not sufficient to support conviction of attempted murder), Chief Justice Bakes observed:
[T]he acts here went far beyond an offer of “employment” [a solicitation]. . .. [T]he type of weapon to be utilized and the manner in which the hit was to be made were discussed, an agreement was reached, payment was made, and the defendant completed all necessary steps preliminary to the “hit” being made.
The real question is whether acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law’s notice.
Whether a person takes on for himself the task of trying to kill another person, or tries to bring about that killing through hiring another to perform the deed, is in actuality nothing but a matter of personal choice. While the principal is guilty of murder when the contract is performed, an attempt has been made when the bargain is struck…If criminals are going to contract out their services, and if there are persons who will retain those services, there is no reason why the criminal courts should decline to respect those contracts.
State v. Otto, P.2d at 653-654.
To a great extent, resolution of the issue we face is dependent upon the facts of the case. United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976); 40 Am.Jur.2d 830. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.
As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” United States v. Guevara, 26 M.J. 779, 781 (A.F.C.M.R.1988). In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:
[T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); ALI Model Penal Code, Sec. 5.01 (1962).
See also United States v. Stallworth, 543 F.2d 1038 (2d Cir.1976); United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278, 285-286 (1962). The Court of Military Appeals most recently affirmed reliance upon this test in United States v. Hyska, 29 MJ. 122 (C.M.A.1989)~but the Court did not apply the test to the facts of the case as it was decided on other grounds. See also United States v. Presto, 24 M.J. 350 (C.M.A.1987).
In Mandujano, an informant introduced an undercover narcotics agent to the defendant. After some general conversation, the subject turned to drugs. The agent said he was from out of town, and was looking for an ounce sample of heroin to determine the quality of the material in the local area. Mandujano replied that he could get good brown Mexican heroin for $650.00 an ounce. He indicated he had a good contact, but would need the money up front. The agent gave Mandujano $650.00, and he departed. He returned about an hour later, explained that he was unable to locate his contact, and gave the money back to the agent. The Court found that the request for and receipt of the $650.00 from the agent constituted a substantial step toward distribution of heroin.” United States v. Mandujano, 499 F.2d at 379. Thus, the jury’s verdict of guilty of an attempt to distribute heroin in violation of 21 U.S.C. § 846 was upheld. The Court, noting that the statute did not define an “attempt" assessed the case law and concluded that in order to constitute a criminal attempt, the defendant must have (1) acted “with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,” and, (2) “engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” at 376~377. This test was derived in large part from the Model Penal Code standard.[7]
United States v. Jackson, supra, involved an attempted bank robbery. The Court examined various approaches taken in an effort to distinguish preparation from attempt, and then affirmed the trial court’s use of the Mandujano test. The Court noted that once criminal intent is established, the key question remaining is “the substantiality of the steps taken and how strongly this corroborates the firmness of [the] obvious criminal intent.” 560 F.2d at 120. This determination is a matter of degree, and a mixed question of law and fact.
As noted above, the Court of Military Appeals applied the Mandujano/Jackson test in United States v. Byrd, supra. Byrd met SP4 Calloway (who was a drug suppression team member, though Byrd did not know this at the time) at the Community Center on Fort Gordon, Georgia. After some general conversation, Byrd mentioned Something about marijuana. Calloway asked Byrd if he could get some marijuana for him. Byrd said he knew someone who could get him a five dollar bag for ten dollars. Byrd attempted to contact a certain taxi cab driver for this purpose, but found out he was not working that day. He told Calloway to meet him at the Community Center the following day. When they met, Calloway was accompanied by an undercover military police investigator who was posing as an individual interested in obtaining drugs. Byrd took them to another location on post and introduced them to the cab driver Byrd knew. The Cab driver told them he could get marijuana for them for ten dollars. The investigator then gave Byrd ten dollars. It was agreed that Byrd would meet the investigator at the Community Center in half an hour with the marijuana. The cab driver then took Byrd to an offpost liquor store where marijuana was sold. The stipulation of fact in this guilty plea case provided: “The accused purchased a bottle of liquor with the money . . . [the investigator] gave him because he was afraid he’d be caught lf he tried bringing marijuana back on post.” During the providence inquiry, Bryd explained that on the way to the liquor store he decided not to purchase any marijuana. He did not want to get a reputation as a drug peddler.
Based upon these facts, the Court of Military Appeals found that Byrd’s guilty plea to attempted distribution of marijuana was improvident. Receipt of $10.00 from the undercover agent and traveling to a liquor store where marijuana could be purchased did not constitute conduct going beyond preparation. The Court concluded:
Riding to the liquor store with the other occupants` of the taxi-cab was not ‘strongly corroborative of the firmness of’ Byrd’s intent to distribute marijuana. The act is simply too ambiguous; and too many other steps remained before the distribution could be consummated.
United States v. Byrd, 24 MJ. at 290. We believe that Byrd’s renunciation of his criminal purpose was an important factor to the outcome in his case. Chief Judge Everett, writing for the Court, discussed the principle of renunciation and the defense of Voluntary abandonment in some detail. Id. at 290-293.
In United States v. Presto, supra, the accused, pursuant to his pleas, was found guilty of the attempted sale of three kilograms of marijuana. He had previously sold over 500 grams of marijuana to two acquaintances, one a confidential source, the other an undercover agent. They asked if he could get them an additional ten kilograms. He agreed to try to do so, but told them he doubted he could get more than two or three kilograms. He contacted the people he had dealt with, indicated they would try to get the ten kilograms. A couple days later he contacted them again, but they did not have it yet. Later that day he was arrested. The Court stated: “Although placing a call to a potential source in order to determine the availability of drugs tends to corroborate appellant’s criminal intent, we are unconvinced that the statutory requirement of ‘more than mere preparation’ has been met.” United States v. Presto, 24 M.J. at 352. The Court relied upon the test adopted in Byrd in reaching this conclusion. In the case now before us, the appellant’s acts far exceed those of the accused in Byrd and Presto.
Conclusion
Applying the test adopted in Byrd and the principles set forth in the Manual (MCM, Part IV, para. 4 (1984)), we are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. See also Article 66(c), UCMJ. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108, 113 (1969). Or, using an example contained in the Manual: “if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire.” MCM, Part IV, para. 4c(3) (1984). If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense»-no contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. Cf. United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278, 283 (1957). To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime. United States v. Guevara, supra.
Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gun shot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.[8]
We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder. We further find the sentence to be appropriate for commission of this crime. Our attention has also been invited to issues raised at trial which centered around the composition of the court panel. We find them to be without merit. Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Smith, 27 M.J. 242, 250 (C.M.A.1988); United States v. Cunningham, 21 M.J. 585 (A.C.M.R.1985), pet. denied, 22 M.J. 275 (C.M.A.1986); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981); Article 25, UCMJ, 10 U.S.C. 825; R.C.M. 502(a)(1), 503(a)(v.
[3] One other matter warrants brief comment. As noted early on in this opinion, the attempted murder specification alleged that the crime occurred “at Grand Forks Air Force Base,” yet the evidence established that the two meetings between the appellant and Nick took place in a motel room in Fargo, North Dakota, a distance of some 78 miles from Grand Forks, North Dakota, where the base is located. Additionally, the dates alleged in the specification were on or about 25-26 April 1988, but the key meeting between Nick and the appellant where plans for this crime were made occurred on 22 April. We do not find these to be fatal variances between pleadings and proof. The companion attempted conspiracy charge dismissed by the military Judge alleged that the offense occurred between 19-22 April 1988 at both Grand Forks Air Force Base and Fargo. Clearly, the appellant was in no Way misled so as to affect his ability to adequately prepare for trial, and he will be fully protected against another prosecution for the same offense. Therefore, there is no prejudice. United States v. Lee, 1 M.J. 15 (C.M.A.1975); United States v. Rath, 27 M.J. 600 (A.C.M. R.1988); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984).
The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are
AFFIRMED.
Senior Judges LEWIS and KASTL concur.
Senior Judge LEWIS took final action on this case prior to his retirement.
[1] He was also charged with attempted conspiracy to commit premeditated murder, but the military judge granted a defense motion to dismiss that offense as being multiplicious with the offense of attempted premeditated murder. We also note that there can be no conspiracy when a supposed participant merely feigns acquiescence in the criminal venture to secure another's detection and apprehension by proper authorities. United States v. LaBossiere, 13 MA. 337, 32 C.M.R. 337 (1962).
[2] Other parts of paragraph 4c, Part IV of the Manual provide the following guidance:
(2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson lo applying [sic] a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the Combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.
(3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger. A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.
(4) Solicitation. Soliciting another to commit an offense does not constitute an attempt
The Analysis to the 1984 Manual indicates that these provisions are based on paragraph 159 of the 1969 Manual. MCM, App. 21, para. 4 at (1984). Paragraph 159 provided in part:
An accused may be guilty of an attempt even though the commission of the intended offense was impossible because of unexpected intervening circumstances or even though the consummation of the intended offense was prevented by a mistake on the part of the accused. The physical impossibility of committing the intended crime does not constitute a defense.
MCM. 1969 (Rev.), para. 159 at 28-7.
[3] Among other punishments, confinement for 20 years is authorized for attempted murder, whereas the period of confinement authorized for soliciting another to commit murder is 5 years. At trial, the parties agreed that solicitation to commit murder was a lesser included offense to the attempt as charged, and the court members were appropriately so instructed.
[4] Our research has revealed only two reported military cases involving a factual situation (contract murder) similar to the one present in this case. United States v. Vanderlip, 28 MJ. 1070 (N.M.C.M.R.l989); United States v. Jones, 14 M.J. 740 (A.F.C.M.R.l982). In both those cases the accused was charged with soliciting another to commit murder, not attempted murder. They are not dispositive of the issue we face. See also United States v. Thomas, 13 U.S.C.M.A. 278. 32 C.M.R. 278 (1962) for an excellent and extensive discussion of the various principles developed by courts and legal scholars in an effort to deal with attempt crimes where impossibility of completion of the substantive crime is involved.
[5] It should be recognized that many of these decisions rest, at least in part, upon interpretation of state statutes.
[6] See Annotation, What Constitutes Attempted Murder. 54 ALR 3d 612 (1974) for an extensive discussion of this subject.
[7] Section 5.01 of the ALI Model Penal Code addresses criminal attempt. It provides in part:
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another t0 commit a crime which would establish his complicity under Section 2.06 if the crime were committed by such other person is guilty of an attempt to commit the crime, although the crime is not Committed or attempted by such other person.
Section 2.06 deals with liability for conduit of another.
[8] The defense theory at trial was that Senior Airman Church was a peaceful, happy-go-lucky individual, hurting from a difficult divorce, who fell victim to an OSI machine. His counsel forcefully argued this position on his behalf. “This machine was used lo scare, intimidate, and overwhelm Airman Church lo go along with the plan that was designed and created by the OSI. The situation was induced. They create an offense where there never was one." The military judge provided the members instructions on the defense of entrapment. By their findings, the jury determined this defense did not exist. We agree.
7.2.6.7 VII. Discretion 7.2.6.7 VII. Discretion
7.2.6.7.1 Rules 7.2.6.7.1 Rules
7.2.6.7.1.1 ABA Criminal Justice Standards: Prosecution Function 7.2.6.7.1.1 ABA Criminal Justice Standards: Prosecution Function
Prosecution Function
GENERAL STANDARDS
Standard 3- 1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
Standard 3-1.3 Conflicts of Interest
(a) A prosecutor should avoid a conflict of interest with respect to his or her official duties.
(b) A prosecutor should not represent a defendant in criminal proceedings in a jurisdiction where he or she is also employed as a prosecutor.
(c) A prosecutor should not, except as law may otherwise expressly permit, participate in a matter in which he or she participated personally and substantially while in private practice or nongovernmental employment unless under applicable law no one is, or by lawful delegation may be, authorized to act in the prosecutor's stead in the matter.
(d) A prosecutor who has formerly represented a client in a matter in private practice should not thereafter use information obtained from that representation to the disadvantage of the former client unless the rules of attorney-client confidentiality do not apply or the information has become generally known.
(e) A prosecutor should not, except as law may otherwise expressly permit, negotiate for private employment with any person who is involved as an accused or as an attorney or agent for an accused in a matter in which the prosecutor is participating personally and substantially.
(f) A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.
(g) A prosecutor who is related to another lawyer as parent, child, sibling, or spouse should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer. Nor should a prosecutor who has a significant personal or financial relationship with another lawyer participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer, unless the prosecutor's supervisor, if any, is informed and approves or unless there is no other prosecutor authorized to act in the prosecutor's stead.
(h) A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless requested by the accused person or witness to make such a recommendation, and should not make a referral that is likely to create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an accused person or witness who is seeking or may seek such counsel's services unless requested by such person.
Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under this Standard.
Standard 3-1.5 Duty to Respond to Misconduct
(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.
(b) If, despite the prosecutor's efforts in accordance with section
(a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.
ORGANIZATION OF THE PROSECUTION FUNCTION
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official
The prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline.
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State
(a) Local authority and responsibility for prosecution is properly vested in a district, county, or city attorney. Wherever possible, a unit of prosecution should be designed on the basis of population, caseload, and other relevant factors sufficient to warrant at least one full-time prosecutor and the supporting staff necessary to effective prosecution.
(b) In some states, conditions such as geographical area and population may make it appropriate to create a statewide system of prosecution in which the state attorney general is the chief prosecutor and the local prosecutors are deputies.
(c) In all states, there should be coordination of the prosecution policies of local prosecution offices to improve the administration of justice and assure the maximum practicable uniformity in the enforcement of the criminal law throughout the state. A state association of prosecutors should be established in each state.
(d) To the extent needed, a central pool of supporting resources and personnel, including laboratories, investigators, accountants, special counsel, and other experts, should be maintained by the state government and should be available to assist all local prosecutors.
Standard 3- 2.3 Assuring High Standards of Professional Skill
(a) The function of public prosecution requires highly developed professional skills. This objective can best be achieved by promoting continuity of service and broad experience in all phases of the prosecution function.
(b) Wherever feasible, he offices of chief prosecutor and staff should be full-time occupations.
(c) Professional competence should be the basis for selection for prosecutorial office. Prosecutors should select their personnel without regard to partisan political influence.
(d) Special efforts should be made to recruit qualified women and members of minority groups for prosecutorial office.
(e) In order to achieve the objective of professionalism and to encourage competent lawyers to accept such offices, compensation for prosecutors and their staffs should be commensurate with the high responsibilities of the office and comparable to the compensation of their peers in the private sector.
Standard 3- 2.4 Special Assistants, Investigative Resources, Experts
(a) Funds should be provided to enable a prosecutor to appoint special assistants from among the trial bar experienced in criminal cases, as needed for the prosecution of a particular case or to assist generally.
(b) Funds should be provided to the prosecutor for the employment of a regular staff of professional investigative personnel and other necessary supporting personnel, under the prosecutor's direct control, to the extent warranted by the responsibilities and scope of the office; the prosecutor should also be provided with funds for the employment of qualified experts as needed for particular cases.
Standard 3- 2.5 Prosecutor's Handbook; Policy Guidelines and Procedures
(a) Each prosecutor's office should develop a statement of (i) general policies to guide the exercise of prosecutorial discretion and (ii) procedures of the office. The objectives of these policies as to discretion and procedures should be to achieve a fair, efficient, and effective enforcement of the criminal law.
(b) In the interest of continuity and clarity, such statement of policies and procedures should be maintained in an office handbook. This handbook should be available to the public, except for subject matters declared "confidential," when it is reasonably believed that public access to their contents would adversely affect the prosecution function.
Standard 3- 2.6 Training Programs
Training programs should be established within the prosecutor's office for new personnel and for continuing education of the staff. Continuing education programs for prosecutors should be substantially expanded and public funds should be provided to enable prosecutors to attend such programs.
Standard 3- 2.7 Relations With Police
(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.
(b) The prosecutor should cooperate with police in providing the services of the prosecutor's staff to aid in training police in the performance of their function in accordance with law.
Standard 3- 2.8 Relations With the Courts and Bar
(a) A prosecutor should not intentionally misrepresent matters of fact or law to the court.
(b) A prosecutor's duties necessarily involve frequent and regular official contacts with the judge or judges of the prosecutor's jurisdiction. In such contacts the prosecutor should carefully strive to preserve the appearance as well as the reality of the correct relationship which professional traditions, ethical codes, and applicable law require between advocates and judges.
(c) A prosecutor should not engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before the judge.
(d) A prosecutor should not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the prosecutor to be directly adverse to the prosecutor's position and not disclosed by defense counsel.
(e) A prosecutor should strive to develop good working relationships with defense counsel in order to facilitate the resolution of ethical problems. In particular, a prosecutor should assure defense counsel that if counsel finds it necessary to deliver physical items which may be relevant to a pending case or investigation to the prosecutor the prosecutor will not offer the fact of such delivery by defense counsel as evidence before a jury for purposes of establishing defense counsel's client's culpability. However, nothing in this Standard shall prevent a prosecutor from offering evidence of the fact of such delivery in a subsequent proceeding for the purpose of proving a crime or fraud in the delivery of the evidence.
Standard 3- 2.9 Prompt Disposition of Criminal Charges
(a) A prosecutor should avoid unnecessary delay in the disposition of cases. A prosecutor should not fail to act with reasonable diligence and promptness in prosecuting an accused.
(b) A prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis.
(c) The prosecution function should be so organized and supported with staff and facilities as to enable it to dispose of all criminal charges promptly. The prosecutor should be punctual in attendance in court and in the submission of all motions, briefs, and other papers. The prosecutor should emphasize to all witnesses the importance of punctuality in attendance in court.
(d) A prosecutor should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance.
(e) A prosecutor, without attempting to get more funding for additional staff, should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the interests of justice in the speedy disposition of charges, or may lead to the breach of professional obligations.
Standard 3- 2.10 Supercession and Substitution of Prosecutor
(a) Procedures should be established by appropriate legislation to the end that the governor or other elected state official is empowered by law to suspend and supersede a local prosecutor upon making a public finding, after reasonable notice and hearing, that the prosecutor is incapable of fulfilling the duties of office.
(b) The governor or other elected official should be empowered by law to substitute special counsel in the place of the local prosecutor in a particular case, or category of cases, upon making a public finding that this is required for the protection of the public interest.
Standard 3- 2.11 Literary or Media Agreements
A prosecutor, prior to conclusion of all aspects of a matter, should not enter into any agreement or understanding by which the prosecutor acquires an interest in literary or media rights to a portrayal or account based in substantial part on information relating to that matter.
INVESTIGATION FOR PROSECUTION DECISION
Standard 3-3.1 Investigative Function of Prosecutor
(a) A prosecutor ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but the prosecutor has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.
(b) A prosecutor should not invidiously discriminate against or in favor of any person on the basis of race, religion, sex, sexual preference, or ethnicity in exercising discretion to investigate or to prosecute. A prosecutor should not use other improper considerations in exercising such discretion.
(c) A prosecutor should not knowingly use illegal means to obtain evidence or to employ or instruct or encourage others to use such means.
(d) A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.
(e) A prosecutor should not secure the attendance of persons for interviews by use of any communication which has the appearance or color of a subpoena or similar judicial process unless the prosecutor is authorized by law to do so.
(f) A prosecutor should not promise not to prosecute for prospective criminal activity, except where such activity is part of an officially supervised investigative and enforcement program.
(g) Unless a prosecutor is prepared to forgo impeachment of a witness by the prosecutor's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present the impeaching testimony, a prosecutor should avoid interviewing a prospective witness except in the presence of a third person.
Standard 3-3.2 Relations With Victims and Prospective Witnesses
(a) A prosecutor should not compensate a witness, other than an expert, for giving testimony, but it is not improper to reimburse an ordinary witness for the reasonable expenses of attendance upon court, attendance for depositions pursuant to statute or court rule, or attendance for pretrial interviews. Payments to a witness may be for transportation and loss of income, provided there is no attempt to conceal the fact of reimbursement.
(b) A prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the right to counsel whenever the law so requires. It is also proper for a prosecutor to so advise a witness whenever the prosecutor knows or has reason to believe that the witness may be the subject of a criminal prosecution. However, a prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying.
(c) The prosecutor should readily provide victims and witnesses who request it information about the status of cases in which they are interested.
(d) the prosecutor should seek to insure that victims and witnesses who may need protections against intimidation are advised of and afforded protections where feasible.
(e) The prosecutor should insure that victims and witnesses are given notice as soon as practicable of scheduling changes which will affect the victims' or witnesses' required attendance at judicial proceedings.
(f) The prosecutor should not require victims and witnesses to attend judicial proceedings unless their testimony is essential to the prosecution or is required by law. When their attendance is required, the prosecutor should seek to reduce to a minimum the time they must spend at the proceedings.
(g) The prosecutor should seek to insure that victims of serious crimes or their representatives are given timely notice of: (i) judicial proceedings relating to the victims' case; (ii) disposition of the case, including plea bargains, trial and sentencing; and (iii) any decision or action in the case which results in the accused's provisional or final release from custody.
(h) Where practical, the prosecutor should seek to insure that victims of serious crimes or their representatives are given an opportunity to consult with and to provide information to the prosecutor prior to the decision whether or not to prosecute, to pursue a disposition by plea, or to dismiss the charges.
Standard 3-3.3 Relations With Expert Witnesses
(a) A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert's opinion on the subject. To the extent necessary, he prosecutor should explain to the expert his or her role in the trial as an impartial expert called to aid the fact finders and the manner in which the examination of witnesses is conducted.
(b) A prosecutor should not pay an excessive fee for the purpose of influencing the expert's testimony or to fix the amount of the fee contingent upon the testimony the expert will give or the result in the case.
Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.
(b) Prosecutors should take reasonable care to ensure that investigators working at their direction or under their authority are adequately trained in the standards governing the issuance of arrest and search warrants and should inform investigators that they should seek the approval of a prosecutor in close or difficult cases.
(c) The prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted.
(d) Where the law permits a citizen to complain directly to a judicial officer or the grand jury, the citizen complainant should be required to present the complaint for prior approval to the prosecutor, and the prosecutor's action or recommendation thereon should be communicated to the judicial officer or grand jury.
Standard 3-3.5 Relations with Grand Jury
(a) Where the prosecutor is authorized to act as legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to its status as an independent legal body.
(b) The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury.
(c) The prosecutor's communications and presentations to the grand jury should be on the record.
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury
(a) A prosecutor should only make statements or arguments to the grand jury and only present evidence to the grand jury which the prosecutor believes is appropriate or authorized under law for presentation to the grand jury. In appropriate cases, the prosecutor may present witnesses to summarize admissible evidence available to the prosecutor which the prosecutor believes he or she will be able to present at trial. The prosecutor should also inform the grand jurors that they have the right to hear any available witnesses, including eyewitnesses.
(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.
(c) A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.
(d) If the prosecutor believes that a witness is a potential defendant, the prosecutor should not seek to compel the witness's testimony before the grand jury without informing the witness that he or she may be charged and that the witness should seek independent legal advice concerning his or her rights.
(e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of the inquiry if the witness states in advance that if called he or she will exercise the constitutional privilege not to testify, unless the prosecutor intends to judicially challenge the exercise of the privilege or to seek a grant of immunity according to the law.
(f) A prosecutor in presenting a case to a grand jury should not intentionally interfere with the independence of the grand jury, preempt a function of the grand jury, or abuse the processes of the grand jury.
(g) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury in order to obtain tangible, documentary or testimonial evidence to assist the prosecutor in preparation for trial of a defendant who has already been charged by indictment or information.
(h) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury for the purpose of aiding or assisting in any administrative inquiry.
Standard 3-3.7 Quality and Scope of Evidence for Information
Where the prosecutor is empowered to charge by information, the prosecutor's decisions should be governed by the principles embodied in Standards 3-3.6 and 3-3.9, where applicable.
Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the availability of noncriminal disposition, formal or informal, in deciding whether to press criminal charges which would otherwise be supported by probable cause; especially in the case of a first offender, the nature of the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist in the evaluation of cases for diversion from the criminal process.
Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.
(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Illustrative or the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions.
(e) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.
(f) The prosecutor should not bring or seek charges greater in number of degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.
(g) The prosecutor should not condition a dismissal of charges, nolle prosequi, or similar action on the accused's relinquishment of the right to seek civil redress unless the accused has agreed to the action knowingly and intelligently, freely and voluntarily, and where such waiver is approved by the court.
Standard 3-3.10 Role in First Appearance and Preliminary Hearing
(a) A prosecutor who is present at the first appearance (however denominated) of the accused before a judicial officer should not communicate with the accused unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused. A prosecutor should not fail to make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.
(b) The prosecutor should cooperate in good faith in arrangements for release under the prevailing system for pretrial release.
(c) The prosecutor should not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.
(d) The prosecutor should not seek a continuance solely for the purpose of mooting the preliminary hearing by securing an indictment.
(e) Except for good cause, the prosecutor should not seek delay in the preliminary hearing after an arrest has been made if the accused is in custody.
(f) The prosecutor should ordinarily be present at a preliminary hearing where such hearing is required by law.
Standard 3-3.11 Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
(b) A prosecutor should not fail to make a reasonably diligent effort to comply with a legally proper discovery request.
(c) A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution's case or aid the accused.
PLEA DISCUSSIONS
Standard 3-4.1 Availability for Plea Discussions
(a) The prosecutor should have and make known a general policy or willingness to consult with defense counsel concerning disposition of charges by plea.
(b) A prosecutor should not engage in plea discussions directly with an accused who is represented by defense counsel, except with defense counsel's approval. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant, although, where feasible, a record of such discussions should be made and preserved.
(c) A prosecutor should not knowingly make false statements or representations as to fact or law in the course of plea discussions with defense counsel or the accused.
Standard 3-4.2 Fulfillment of Plea Discussions
(a) A prosecutor should not make any promise or commitment assuring a defendant or defense counsel that a court will impose a specific sentence or a suspension of sentence; a prosecutor may properly advise the defense what position will be taken concerning disposition.
(b) A prosecutor should not imply a greater power to influence the disposition of a case than is actually possessed.
(c) A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present.
Standard 3-4.3 Record of Reasons for Nolle Prosequi Disposition
Whenever felony criminal charges are dismissed by way of nolle prosequi (or its equivalent), the prosecutor should make a record of the reasons for the action.
THE TRIAL
Standard 3-5.1 Calendar Control
Control over the trial calendar should be vested in the court. The prosecuting attorney should advise the court of facts relevant in determining the order of cases on the court's calendar.
Standard 3-5.2 Courtroom Professionalism
(a) As an officer of the court, the prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom.
(b) When court is in session, the prosecutor should address the court, not opposing counsel, on all matters relating to the case.
(c) A prosecutor should comply promptly with all orders and directives of the court, but the prosecutor has a duty to have the record reflect adverse rulings or judicial conduct which the prosecutor considers prejudicial. The prosecutor has a right to make respectful requests for reconsideration of adverse rulings.
(d) Prosecutors should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction.
Standard 3-5.3 Selection of Jurors
(a) The prosecutor should prepare himself or herself prior to trial to discharge effectively the prosecution function in the selection of the jury and the exercise of challenges for cause and peremptory challenges.
(b) In those cases where it appears necessary to conduct a pretrial investigation of the background of jurors, investigatory methods of the prosecutor should neither harass nor unduly embarrass potential jurors or invade their privacy and, whenever possible, should be restricted to an investigation of records and sources of information already in existence.
(c) The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. A prosecutor should not intentionally use the voir dire to present factual matter which the prosecutor knows will not be admissible at trial or to argue the prosecution's case to the jury.
Standard 3-5.4 Relations With Jury
(a) A prosecutor should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during trial. The prosecutor should avoid the reality or appearance of any such communications.
(b) The prosecutor should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience.
(c) After discharge of the jury from further consideration of a case, a prosecutor should not intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service. If the prosecutor believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available.
Standard 3-5.5 Opening Statement
The prosecutor's opening statement should be confined to a statement of the issues in the case and the evidence the prosecutor intends to offer which the prosecutor believes in good faith will be available and admissible. A prosecutor should not allude to any evidence unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence.
Standard 3-5.6 Presentation of Evidence
(a) A prosecutor should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon discovery of its falsity.
(b) A prosecutor should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.
(c) A prosecutor should not permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration by the judge or jury until such time as a good faith tender of such evidence is made.
(d) A prosecutor should not tender tangible evidence in the view of the judge or jury if it would tend to prejudice fair consideration by the judge or jury unless there is a reasonable basis for its admission in evidence. When here is any substantial doubt about the admissibility of such evidence, it should be tendered by an offer of proof and a ruling obtained.
Standard 3-5.7 Examination of Witnesses
(a) The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.
(b) The prosecutor's belief that the witness is telling the truth does not preclude cross-examination, but may affect the method and scope of cross-examination. A prosecutor should not use the power of cross-examination to discredit or undermine a witness if the prosecutor knows the witness is testifying truthfully.
(c) A prosecutor should not call a witness in the presence of the jury who the prosecutor knows will claim a valid privilege not to testify.
(d) A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.
Standard 3-5.8 Argument to the Jury
(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.
(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.
Standard 3-5.9 Facts Outside the Record
The prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.
Standard 3-5.10 Comments by Prosecutor After Verdict
The prosecutor should not make public comments critical of a verdict, whether rendered by judge or jury.
SENTENCING
Standard 3-6.1 Role in Sentencing
(a) The prosecutor should not make the severity of sentences the index of his or her effectiveness. To the extent that the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.
(b) Where sentence is fixed by the court without jury participation, the prosecutor should be afforded the opportunity to address the court at sentencing and to offer a sentencing recommendation.
(c) Where sentence is fixed by the jury, the prosecutor should present evidence on the issue within the limits permitted in the jurisdiction, but the prosecutor should avoid introducing evidence bearing on sentence which will prejudice the jury's determination of the issue of guilt.
Standard 3-6.2 Information Relevant to Sentencing
(a) The prosecutor should assist the court in basing its sentence on complete and accurate information for use in the presentence report. The prosecutor should disclose to the court any information in the prosecutor's files relevant to the sentence. If incompleteness or inaccurateness in the presentence report comes to the prosecutor's attention, the prosecutor should take steps to present the complete and correct information to the court and to defense counsel.
(b) The prosecutor should disclose to the defense and to the court at or prior to the sentencing proceeding all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
7.2.6.7.1.2 Crime Victims’ Rights Act 7.2.6.7.1.2 Crime Victims’ Rights Act
Crime Victims' Rights Act
18 U.S.C. § 3771. Crime victims' rights
(a) RIGHTS OF CRIME VICTIMS.--A crime victim has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
(b) RIGHTS AFFORDED.--In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record.
(c) BEST EFFORTS TO ACCORD RIGHTS.--
(1) GOVERNMENT.--Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).
(2) ADVICE OF ATTORNEY.--The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection(a).
(3) NOTICE.--Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person.
(d) ENFORCEMENT AND LIMITATIONS.--
(1) RIGHTS.--The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter.
(2) MULTIPLE CRIME VICTIMS.--In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.
(3) MOTION FOR RELIEF AND WRIT OF MANDAMUS.--The rights described in subsection(a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.
(4) ERROR.--In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates.
(5) LIMITATION ON RELIEF.--In no case shall a failure to afford a right under this chapter provide grounds for a 2263 new trial. A victim may make a motion to re-open a plea or sentence only if--
(A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 10 days; and
(C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim's right to restitution as provided in title 18, United States Code.
(6) NO CAUSE OF ACTION.--Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.
(e) DEFINITIONS.--For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter, but in no event shall the defendant be named as such guardian or representative.
(f) PROCEDURES TO PROMOTE COMPLIANCE.--
(1) REGULATIONS.--Not later than 1 year after the date of enactment of this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims.
(2) CONTENTS.--The regulations promulgated under paragraph (1) shall--
(A) designate an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim;
(B) require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, and otherwise assist such employees and offices in responding more effectively to the needs of crime victims;
(C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and
(D) provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant."
7.2.6.7.1.3 Fed R Crim Proc. Rule 11: Pleas 7.2.6.7.1.3 Fed R Crim Proc. Rule 11: Pleas
Rule 11. Pleas
(1) In General. A defendant may plead not guilty, guilty, or (with the court's consent) nolo contendere.
(2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice.
(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(A) the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant is pleading;
(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court's authority to order restitution;
(L) the court's obligation to impose a special assessment;
(M) in determining a sentence, the court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §3553(a);
(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and
(O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.
(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
(1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment.
(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified inRule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.
(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.
(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.
(g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c).
(h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights
7.2.6.7.1.4 ABA Criminal Justice Standards: Pleas of Guilty 7.2.6.7.1.4 ABA Criminal Justice Standards: Pleas of Guilty
PLEAS OF GUILTY
PART I.
RECEIVING AND ACTING UPON THE PLEA
Pleading by defendant; alternatives
(a) A defendant may plead not guilty, guilty, or (when allowed under the law of the jurisdiction) nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered, with due corporate authorization, by counsel or a corporate officer. A defendant may plead nolo contendere only with the consent of the court.
(b) As part of the plea process, appropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice.
Standard 14- 1.2. Pleading to other offenses
Upon entry of a plea of guilty or nolo contendere or after conviction on a plea of not guilty, the defendant's counsel may request permission for the defendant to enter a plea of guilty or nolo contendere as to other crimes committed within the jurisdiction of coordinate courts of that government. Upon written approval of the prosecuting attorney of the governmental unit in which these crimes are charged or could be charged, the defendant should be allowed to enter the plea (subject to the court's discretion to refuse a nolo contendere plea). Entry of such a plea constitutes a waiver of the following: venue, as to crimes committed in other governmental units of the government; and formal charge, as to offenses not yet charged.
Standard 14- 1.3. Aid of counsel; time for deliberation
(a) A defendant should not be called upon to plead until an opportunity to retain counsel has been afforded or, if eligible for appointment of counsel, until counsel has been appointed or waived. A defendant with counsel should not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant's interests.
(b) When a defendant has properly waived counsel and tenders a plea of guilty or nolo contendere, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, set by rule or statute, after the defendant received the advice from the court required in Standard14-1 .4.
Standard 14- 1.4. Defendant to be advised
(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:
(i) the nature and elements of the offense to which the plea is offered, and the terms and conditions of any plea agreement;
(ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or any special circumstances affecting probation or release from incarceration;
(iii) that, if the defendant has been previously convicted of an offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment;
(iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant's behalf, and to have compulsory process in securing their attendance;
(v) that by pleading guilty the defendant generally waives the right to file further motions in the trial court, such as motions to object to the sufficiency of the charging papers to state an offense or to evidence allegedly obtained in violation of constitutional rights; and
(vi) that by pleading guilty the defendant generally waives the right to appeal, except the right to appeal a motion that has been made, ruled upon and expressly reserved for appeal and the right to appeal an illegal or unauthorized sentence.
(b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences.
(c) Before accepting a plea of guilty or nolo contendere, the court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant's immigration status. The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea.
(d) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel.
Standard 14- 1.5. Determining voluntariness of plea
The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney, the defendant, and defense counsel, if any, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what discussions were had and what agreement has been reached. If the plea agreement contemplates the granting of charge or sentence concessions which are subject to judicial approval, the court should advise the defendant, consistent with standard 14-3.3(e), whether withdrawal of the plea will be allowed if the charge or sentence concessions are rejected. The court should address the defendant personally to determine whether any other promises or any force or threats were used to obtain the plea.
(a) In accepting a plea of guilty or nolo contendere, the court should make such inquiry as may be necessary to satisfy itself that there is a factual basis for the plea. As part of its inquiry, the defendant may be asked to state on the record whether he or she agrees with, or in the case of a nolo contendere plea, does not contest, the factual basis as proffered.
(b) Whenever a defendant pleads nolo contendere or pleads guilty and simultaneously denies culpability, the court should take special care to make certain that there is a factual basis for the plea. The offer of a defendant to plead guilty should not be refused solely because the defendant refuses to admit culpability. Such a plea may be refused where the court has specific reasons for doing so which are made a matter of record.
Standard 14- 1.7. Record of proceedings
A verbatim record of the proceedings at which the defendant enters a plea of guilty or nolo contendere should be made and preserved. The record should include the court's advice to the defendant (as required in Standard14-1 .4), the inquiry into the voluntariness of the plea (as required in Standard14-1.5), and the inquiry into the factual basis of the plea (as required in Standard14-1.6). Such proceedings should be held in open court unless good cause is present for the proceedings to be held in chambers. For good cause, the judge may order the record of such proceedings to be sealed.
Standard 14- 1.8. Consideration of plea in final disposition
(a) The fact that a defendant has entered a plea of guilty or nolo contendere should not, by itself alone, be considered by the court as a mitigating factor in imposing sentence. It is proper for the court to approve or grant charge and sentence concessions to a defendant who enters a plea of guilty or nolo contendere when consistent with governing law and when there is substantial evidence to establish, for example, that:
(i) the defendant is genuinely contrite and has shown a willingness to assume responsibility for his or her conduct;
(ii) the concessions will make possible alternative correctional measures which are better adapted to achieving protective, deterrent, or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(iii) the defendant, by making public trial unnecessary, has demonstrated genuine remorse or consideration for the victims of his or her criminal activity; or
(iv) the defendant has given or agreed to give cooperation.
(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the protective, deterrent, or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove guilt at trial rather than to enter a plea of guilty or nolo contendere.
PART II.
WITHDRAWAL OF THE PLEA
Standard 14- 2.1. Plea withdrawal and specific performance
(a) After entry of a plea of guilty or nolo contendere and before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason. In determining whether a fair and just reason exists, the court should also weigh any prejudice to the prosecution caused by reliance on the defendant's plea.
(b) After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere, the court should allow the defendant to withdraw the plea whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. A timely motion for withdrawal is one made with due diligence, considering the nature of the allegations therein.
(i) Withdrawal may be necessary to correct a manifest injustice when the defendant proves, for example, that:
(A) the defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule;
(B) the plea was not entered or ratified by the defendant or a person authorized to so act in the defendant's behalf;
(C) the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed;
(D) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or
(E) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement, which was either tentatively or fully concurred in by the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or withdraw the plea; or
(F) the guilty plea was entered upon the express condition, approved by the judge, that the plea could be withdrawn if the charge or sentence concessions were subsequently rejected by the court.
(ii) The defendant may move for withdrawal of the plea without alleging that he or she is innocent of the charge to which the plea has been entered.
(c) As an alternative to allowing the withdrawal of a plea of guilty or nolo contendere, the court may order the specific performance by the government of promises or conditions of a plea agreement where it is within the power of the court and the court finds, in its discretion, that specific performance is the appropriate remedy for a breach of the agreement.
Standard 14- 2.2. Withdrawn plea and discussions not admissible
(a) A plea of guilty or nolo contendere that has been withdrawn should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(b) Any statement made in the course of any proceedings concerning a plea of guilty or nolo contendere that has been withdrawn, or in plea discussions with the prosecuting attorney that result in a plea of guilty or nolo contendere that is later withdrawn, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or
(ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
PART III.
PLEA DISCUSSIONS AND PLEA AGREEMENTS
Standard 14- 3.1. Responsibilities of the prosecuting attorney
(a) The prosecuting attorney may engage in plea discussions with counsel for the defendant for the purpose of reaching a plea agreement. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant. Where feasible, a record should be made and preserved for all such discussions with the defendant.
(b) The prosecuting attorney should make known any policies he or she may have concerning disposition of charges by plea or diversion.
(c) The prosecuting attorney, in considering a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case:
(i) to make or not to oppose favorable recommendations or to remain silent as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere, including such terms of the sentence as criminal forfeiture, restitution, fines and alternative sanctions;
(ii) to dismiss, to seek to dismiss, or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant's conduct;
(iii) to dismiss, to seek to dismiss, or not to oppose dismissal of other charges or potential charges if the defendant enters a plea of guilty or nolo contendere;
(iv) where appropriate, to enter an agreement with the defendant regarding the disposition of related civil matters to which the government is or would be a party, including civil penalties and/or civil forfeiture; or
(v) in lieu of a plea agreement, to enter an agreement permitting the diversion of the case from the criminal process where appropriate and permissible to do so.
(d) Similarly situated defendants should be afforded equal plea agreement opportunities.
(e) The prosecuting attorney should make every effort to remain advised of the attitudes and sentiments of victims and law enforcement officials before reaching a plea agreement.
(f) The prosecuting attorney should not knowingly make false statements or representations as to law or fact in the course of plea discussions with defense counsel or the defendant.
(g) The prosecuting attorney should not, because of the pendency of plea negotiations, delay any discovery disclosures required to be made to the defense under applicable law or rules.
(h) In connection with plea negotiations, the prosecuting attorney should not bring or threaten to bring charges against the defendant or another person, or refuse to dismiss such charges, where admissible evidence does not exist to support the charges or the prosecuting attorney has no good faith intention of pursuing those charges.
Standard 14- 3.2. Responsibilities of defense counsel
(a) Defense counsel should keep the defendant advised of developments arising out of plea discussions conducted with the prosecuting attorney, and should promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney.
(b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed.
(c) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the defendant.
(d) Defense counsel should not knowingly make false statements or representations as to law or fact in the course of plea discussions with the prosecuting attorney.
(e) At the outset of a case, and whenever the law, nature and circumstances of the case permit, defense counsel should explore the possibility of a diversion of the case from the criminal process.
(f) To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.
Standard 14- -3.3. Responsibilities of the judge
(a) The judge should not accept a plea of guilty or nolo contendere without first inquiring whether the parties have arrived at a plea agreement and, if there is one, requiring that its terms and conditions be disclosed.
(b) If a plea agreement has been reached by the parties which contemplates the granting of charge or sentence concessions by the judge, the judge should:
(i) order the preparation of a preplea or presentence report, when needed for determining the appropriate disposition;
(ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and
(iii) in every case advise the defendant whether the judge accepts or rejects the contemplated charge or sentence concessions or whether a decision on acceptance will be deferred until after the plea is entered and/or a preplea or presentence report is received.
(c) The judge should not through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.
(d) A judge should not ordinarily participate in plea negotiation discussions among the parties. Upon the request of the parties, a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sentence would be imposed. Discussions relating to plea negotiations at which the judge is present need not be recorded verbatim, so long as an appropriate record is made at the earliest opportunity. For good cause, the judge may order the record or transcript of any such discussions to be sealed.
(e) In cases where a defendant offers to plead guilty and the judge decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement and the court, following entry of the plea, decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea shall be allowed if:
(i) the judge had previously concurred, whether tentatively or fully, in the proposed charge or sentence concessions; or
(ii) the guilty plea is entered upon the express condition, approved by the judge, that the plea can be withdrawn if the charge or sentence concessions are subsequently rejected by the court.
In all other cases where a defendant pleads guilty pursuant to a plea agreement and the judge decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea may be permitted as set forth in standard 14-2.1.
Standard 14- 3.4. Inadmissibility of nolo contendere pleas, pleas not accepted, and plea discussions
(a) A plea of nolo contendere should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(b) A plea of guilty or nolo contendere that is not accepted by the court should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(c) Any statement made in the course of any proceedings concerning a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, or in the course of plea discussions with the prosecuting attorney that do not result in a plea of guilty or that result in a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or
(ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
PART IV.
DIVERSION AND OTHER ALTERNATIVE RESOLUTIONS
Standard 14-4.1. Diversion and other alternative resolutions
(a) Where the interests of justice will be served, the prosecuting attorney and the defense may agree that a prosecution be suspended for a specified period of time, after which time it will be dismissed if the offender has met specified conditions during the suspension period. Such a diversion may be appropriate, for example, where:
(i) the offender is charged with an offense designated as appropriate for diversion;
(ii) the offender does not have a prior criminal record that would make diversion inappropriate;
(iii) the offender poses no threat to the community under the conditions specified in the diversion program; and
(iv) the needs of the offender and the government can be better met outside the traditional criminal justice process.
(b) An agreement to diversion should be contained in a writing reflecting all of the conditions agreed upon. As a condition of diversion, an offender may be required, where permissible under law, to waive speedy trial rights and to toll a statute of limitations, and may also be required to fulfill other appropriate conditions, for example, to enter a treatment program, to provide community service, to make restitution, and/or to refrain from drug use and criminal activity.
(c) Diversion programs should be governed by written policies setting forth the Standards for eligibility and the procedures for participation, so that all eligible offenders have an equal opportunity to participate. An offender's eligibility to participate in diversion should not depend on his or her ability to pay restitution or other costs.
(d) The development of other, alternative forms of noncriminal resolution for appropriate cases should also be encouraged.
7.2.6.7.1.5 Federal Standard for Imposition of Sentence 7.2.6.7.1.5 Federal Standard for Imposition of Sentence
18 U.S. Code § 3553 - Imposition of a sentence
(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced. [1]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
(b) Application of Guidelines in Imposing a Sentence.—
(1) In general.— Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses.—
(A) [2] Sentencing.—In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that—
(I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994 (a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence different from that described; or
(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.
(c) Statement of Reasons for Imposing a Sentence.— The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994 (w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.
If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,, [3] and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) Presentence Procedure for an Order of Notice.— Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall—
(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.
(e) Limited Authority To Impose a Sentence Below a Statutory Minimum.— Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
(f) Limitation on Applicability of Statutory Minimums in Certain Cases.— Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
7.2.6.7.2 Cases 7.2.6.7.2 Cases
7.2.6.7.2.1 Inmates of Attica Correctional Facility v. Rockefeller 7.2.6.7.2.1 Inmates of Attica Correctional Facility v. Rockefeller
477 F.2d 375 (1973)
INMATES OF ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants,
v.
Nelson A. ROCKEFELLER et al., Defendants-Appellees.
No. 596, Docket 72-1450.
United States Court of Appeals, Second Circuit.
Argued March 21, 1973.
Decided April 18, 1973.
[376] Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiffs-appellants.
Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees.
T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr.
Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:
This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State's Attica Correctional Facility ("Attica"), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur O. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons.
They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm.
The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.
The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates' takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, "has not investigated, nor does he intend to investigate, any crimes committed by state [377] officers." Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.[1]
With respect to the sole federal defendant,[2] the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs' federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below.
As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to "prosecute the defendants forthwith," and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen's free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).[3]
Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented.
[378] Standing
At the outset, we must note that the Supreme Court's recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of "any parent" to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed:
"The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149.
The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue.
Thus a more immediate and direct danger of injury resulting from nonenforcement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child's mother would be the jailing of the child's father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm.
It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, [379] the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals.
Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities.
The Insufficiency of the Complaint
(1) Claim Against the United States Attorney
With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only "to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are "`not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,'" United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir.1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967).
This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970).
The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine.
"Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere [380] with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra 342 F.2d at 171.
Accord, Pugach v. Klein, supra 193 F. Supp. at 634; Moses v. Kennedy, 219 F. Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578.
Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor's decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.
In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming "superprosecutors." In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor's file may serve to protect the accused's reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor's file and the grand jury's minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P.
Nor is it clear what the judiciary's role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong "test" case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?
These difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion [381] to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.
Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987[4] that the United States Attorneys are "authorized and required . . . to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]" (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word "required" as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) ("each United States attorney, . . . shall—(1) prosecute for all offenses against the United States; . . ." (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 ("it shall be the duty of United States attorneys to vigorously prosecute all offenders" of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth).
Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler's Sportsman's Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff'd. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that "considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action." See also Peek v. Mitchell, supra.
Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent [382] against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified.
It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305.
(2) Claims Against the State Officials
With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an "impartial" state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings.[5] The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable.
Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that "the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising." But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state's investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.
The only authority supporting the extraordinary relief requested here is the Seventh Circuit's recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had "systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional [383] rights." Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court's dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney's quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, "does not extend to complete freedom from injunction," id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of "periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints." Id. at 415.
However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court's decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.
The order of the district court is affirmed.
[1] The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming.
[2] See note 3 infra.
[3] As originally filed, the complaint also sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Mancusi, and other defendants named in the complaint, declaring them to be "unfit to administer Attica Correctional Facility and the prison system of New York," and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant.
[4] 1987. Prosecution of violation of certain laws
"The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense."
7.2.6.7.2.2 U.S. v. Armstrong 7.2.6.7.2.2 U.S. v. Armstrong
116 S.Ct. 1480
134 L.Ed.2d 687
v.
ARMSTRONG et al.
In response to their indictment on ``crack'' cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleging that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argument, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dismissed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated.
Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp. 4-14.
(a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not support the result reached by the Ninth Circuit in this case. Rule 16(a)(1)(C) -- which, inter alia, requires the government to permit discovery of documents that are "material to the preparation of the . . . defense" or "intended for use by the government as evidence in chief"--applies only to the preparation of the "defense" against the Government's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all government work product under Rule 16(a)(1)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 4-6.
(b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U. S. 500. Batson v. Kentucky, 476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished. Although Ah Sin involved federal review of a state conviction, a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Discovery imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v. United States, 504 U. S. 181, the justifications for a rigorous standard of proof for the elements of such a case thus require a correspondingly rigorous standard for discovery in aid of it. Thus, in order to establish entitlement to such discovery, a defendant must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not. In this case, respondents have not met this required threshold. Pp. 6-14. 48 F. 3d 1508, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which Breyer, J., joined in part. Souter, J., and Ginsburg, J., filed concurring opinions. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion.
Chief Justice Rehnquist delivered the opinion of the Court.
In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.
In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U. S. C. Section(s) 841 and 846 (1988 ed. and Supp. IV), and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found more crack and a loaded gun. The agents later arrested the other respondents as part of the ring.
In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a "Paralegal Specialist," employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 Section(s) 841 or 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a "study" listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case. 1
The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation "that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them." App. 150. The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses. Id., at 161-162.
The Government moved for reconsideration of the District Court's discovery order. With this motion it submitted affidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents' study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, because
"there was over 100 grams of cocaine base involved, over twice the threshold necessary for a ten year mandatory minimum sentence; there were multiple sales involving multiple defendants, thereby indicating a fairly substantial crack cocaine ring; . . . there were multiple federal firearms violations intertwined with the narcotics trafficking; the overall evidence in the case was extremely strong, including audio and videotapes of defendants; . . . and several of the defendants had criminal histories including narcotics and firearms violations." Id., at 81.
The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that "[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack." J. Featherly & E. Hill, Crack Cocaine Overview 1989; App. 103.
In response, one of respondents' attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are "an equal number of caucasian users and dealers to minority users and dealers." Id., at 138. Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack offenses, id., at 141, and a newspaper article reporting that Federal "crack criminals . . . are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black," Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1; App. 208-210.
The District Court denied the motion for reconsideration. When the Government indicated it would not comply with the court's discovery order, the court dismissed the case. 2
A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, holding that, because of the proof requirements for a selective-prosecution claim, defendants must "`provide a colorable basis for believing that `others similarly situated have not been prosecuted'" to obtain discovery. 21 F. 3d 1431, 1436 (1994) (quoting United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598 (1985)). The Court of Appeals voted to rehear the case en banc, and the en banc panel affirmed the District Court's order of dismissal, holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated." 48 F. 3d 1508, 1516 (1995) (emphasis deleted). We granted certiorari to determine the appropriate standard for discovery for a selective-prosecution claim. 516 U. S. ___ (1995).
Neither the District Court nor the Court of Appeals mentioned Federal Rule of Criminal Procedure 16, which by its terms governs discovery in criminal cases. Both parties now discuss the Rule in their briefs, and respondents contend that it supports the result reached by the Court of Appeals. Rule 16 provides, in pertinent part:
"Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. Rule Crim. Proc. 16(a)(1)(C).
Respondents argue that documents "within the possession . . . of the government" that discuss the government's prosecution strategy for cocaine cases are "material" to respondents' selective-prosecution claim. Respondents argue that the Rule applies because any claim that "results in nonconviction" if successful is a "defense" for the Rule's purposes, and a successful selective-prosecution claim has that effect. Tr. of Oral Arg. 30.
We reject this argument, because we conclude that in the context of Rule 16 "the defendant's defense" means the defendant's response to the Government's case-in-chief. While it might be argued that as a general matter, the concept of a "defense" includes any claim that is a "sword," challenging the prosecution's conduct of the case, the term may encompass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged. "defense" means an argument in response to the prosecution's case-in-chief, there is a perceptible symmetry between documents "material to the preparation of the defendant's defense," and, in the very next phrase, documents "intended for use by the government as evidence in chief at the trial." If this symmetry were not persuasive enough, paragraph (a)(2) of Rule 16 establishes beyond peradventure that "defense" in section (a)(1)(C) can refer only to defenses in response to the Government's case-in-chief. Rule 16(a)(2), as relevant here, exempts from defense inspection "reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case." Under Rule 16(a)(1)(C), a defendant may examine documents material to his defense, but, under Rule 16(a)(2), he may not examine Government work product in connection with his case. If a selective-prosecution claim is a "defense," Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own. Because respondents' construction of "defense" creates the anomaly of a defendant's being able to examine all Government work product except the most pertinent, we find their construction implausible. We hold that Rule 16(a)(1)(C) authorizes defendants to examine Government documents material to the preparation of their defense against the Government's case-in-chief, but not to the preparation of selective-prosecution claims.
In Wade v. United States, 504 U. S. 181 (1992), we considered whether a federal court may review a Government decision not to file a motion to reduce a defendant's sentence for substantial assistance to the prosecution, to determine whether the Government based its decision on the defendant's race or religion. In holding that such a decision was reviewable, we assumed that discovery would be available if the defendant could make the appropriate threshold showing, although we concluded that the defendant in that case did not make such a showing. See id., at 186. We proceed on a like assumption here.
A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. These cases afford a "background presumption," cf. United States v. Mezzanatto, 513 U. S. ___, ___ (1995) (slip op., at 8) that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.
A selective-prosecution claim asks a court to exercise judicial power over a "special province" of the Executive. Heckler v. Chaney, 470 U. S. 821, 832 (1985). The Attorney General and United States Attorneys retain "`broad discretion'" to enforce the Nation's criminal laws. Wayte v. United States, 470 U. S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed." U. S. Const., Art. II, Section(s) 3; see 28 U. S. C. Section(s) 516, 547. As a result, "[t]he presumption of regularity supports" their prosecutorial decisions and "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).
Of course, a prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).
In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are "properly hesitant to examine the decision whether to prosecute." 470 U. S., at 608. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Ibid.
The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." Id., at 608. The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.; accord, Oyler, supra, at 456. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U. S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco county ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. Id., at 503. He alleged in his habeas petition "that the ordinance is enforced `solely and exclusively against persons of the Chinese race and not otherwise.'" Id., at 507. We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced." Id., at 507-508.
The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo, 118 U. S., at 374. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings "under similar conditions." Ibid. We explained in Ah Sin why the similarly situated requirement is necessary:
"No latitude of intention should be indulged in a case like this. There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a State." 198 U. S., at 508 (emphasis added).
Although Ah Sin involved federal review of a state conviction, we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute.
Respondents urge that cases such as Batson v. Kentucky, 476 U. S. 79 (1986), and Hunter v. Underwood, 471 U. S. 222 (1985), cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individuals. We disagree. In Hunter, we invalidated a state law disenfranchising persons convicted of crimes involving moral turpitude. Id., at 233. Our holding was consistent with ordinary equal protection principles, including the similarly situated requirement. There was convincing direct evidence that the State had enacted the provision for the purpose of disenfranchising blacks, id., at 229-231, and indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: Blacks were "`by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under'" the law in question. Id., at 227 (quoting Underwood v. Hunter, 730 F. 2d 614, 620 (CA11 1984)). Hunter thus affords no support for respondent's position.
In Batson, we considered "[t]he standards for assessing a prima facie case in the context of discriminatory selection of the venire" in a criminal trial. 476 U. S., at 96. We required a criminal defendant to show "that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race" and that this fact, the potential for abuse inherent in a peremptory strike, and "any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Ibid. During jury selection, the entire res gestae take place in front of the trial judge. Because the judge has before him the entire venire, he is well situated to detect whether a challenge to the seating of one juror is part of a "pattern" of singling out members of a single race for peremptory challenges. See id., at 97. He is in a position to discern whether a challenge to a black juror has evidentiary significance; the significance may differ if the venire consists mostly of blacks or of whites. Similarly, if the defendant makes out a prima facie case, the prosecutor is called upon to justify only decisions made in the very case then before the court. See id., at 97-98. The trial judge need not review prosecutorial conduct in relation to other venires in other cases.
Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.
The parties, and the Courts of Appeals which have considered the requisite showing to establish entitlement to discovery, describe this showing with a variety of phrases, like "colorable basis," "substantial threshold showing," Tr. of Oral Arg. 5, "substantial and concrete basis," or "reasonable likelihood," Brief for Respondents Martin et al. 30. However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals "require some evidence tending to show the existence of the essential elements of the defense," discriminatory effect and discriminatory intent. United States v. Berrios, 501 F. 2d 1207, 1211 (CA2 1974).
In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discriminatory effect element. The Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. 48 F. 3d, at 1516. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. United States v. Parham, 16 F. 3d 844, 846-847 (CA8 1994); United States v. Fares, 978 F. 2d 52, 59-60 (CA2 1992); United States v. Peete, 919 F. 2d 1168, 1176 (CA6 1990); C. E. Carlson, Inc. v. SEC, 859 F. 2d 1429, 1437-1438 (CA10 1988); United States v. Greenwood, 796 F. 2d 49, 52-53 (CA4 1986); United States v. Mitchell, 778 F. 2d 1271, 1277 (CA7 1985). As the three-judge panel explained, "`[s]elective prosecution' implies that a selection has taken place." 21 F. 3d, at 1436. 3
The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes-not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F. 3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show that: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.
The Court of Appeals also expressed concern about the "evidentiary obstacles defendants face." 48 F. 3d, at 1514. But all of its sister Circuits that have confronted the issue have required that defendants produce some evidence of differential treatment of similarly situated members of other races or protected classes. In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California, were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of different treatment of similarly situated persons-adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.
In the case before us, respondents' "study" did not constitute "some evidence tending to show the existence of the essential elements of" a selective-prosecution claim. Berrios, supra, at 1211. The study failed to identify individuals who were not black, could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents' evidence in opposition to the Government's motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents' affidavits, which recounted one attorney's conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
djq Justice Souter, concurring.
I join the Court's opinion, but in its discussion of Federal Rule of Criminal Procedure 16 only to the extent of its application to the issue in this case.
djq Justice Ginsburg, concurring.
I do not understand the Court to have created a "major limitation" on the scope of discovery available under Federal Rule of Criminal Procedure 16. See post, at 5 (Breyer, J., concurring in part and concurring in judgment). As I see it, the Court has decided a precise issue: whether the phrase "defendant's defense," as used in Rule with the Court, for reasons the opinion states, that subsection not called upon to decide here whether Rule 16(a)(1)(C) applies in any other context, for example, to affirmative defenses unrelated to the merits. With the caveat that I do not read today's opinion as precedent foreclosing issues not tendered for review, I join the Court's opinion.
djq Justice Breyer, concurring in part and concurring in the judgment.
I write separately because, in my view, Federal Rule of Criminal Procedure 16 does not limit a defendant's discovery rights to documents related to the Government's case-in-chief (ante, at 5). The Rule says that "the government shall permit the defendant to inspect and copy" certain physical items (I shall summarily call them "documents") "which are material to the preparation of the defendant's defense." Fed. Rule including (1) a simple response to the Government's case-in-chief, (2) an affirmative defense unrelated to the merits (such as a Speedy Trial Act claim), (3) an unrelated claim of constitutional right, (4) a foreseeable surrebuttal to a likely Government rebuttal, and others. The Rule's language does not limit its scope to the first item on this list. To interpret the Rule in this limited way creates a legal distinction that, from a discovery perspective, is arbitrary. It threatens to create two full parallel sets of criminal discovery principles. And, as far as I can tell, the interpretation lacks legal support.
The Court bases its interpretation upon what it says is a "perceptible symmetry," ante, at 6, between two phrases in Rule defense," and the next phrase, "intended for use by the government as evidence in chief at the trial." To test the Court's argument, consider these two phrases in context. The Rule says:
"Upon request of the defendant the government shall permit the defendant to inspect and copy [documents and other items] . . . which are material to the preparation of the defendant's defense or [2] are intended for use by the government as evidence in chief at the trial, or [3] were obtained from or belong to the defendant." Fed. Rule
Though symmetry may reside in the eye of the beholder, I can find no relevant symmetry here. Rather, the language suggests a simple three-part categorization of the documents and other physical items that the Rule requires the Government to make available to the defendant. From a purely linguistic perspective, there is no more reason to import into the first category a case-in-chief-related limitation (from the second category) than some kind of defendant's-belongings-related limitation (from the third category).
Rule 16 creates these three categories for a reason that belies "symmetry"--namely to specify two sets of items (the Government's case-in-chief evidence, the defendant's belongings) that the Government must make available to the defendant without a preliminary showing of "materiality." The Rule's first category creates a residual classification (items "material to the preparation of the defendant's defense") that require a preliminary "materiality" showing. The Committee thought, however, that "[l]imiting the rule to situations in which the defendant can show that the evidence is material seems unwise. . . . For this reason subdivision (a)(1)(C) also contains language to compel disclosure if the government intends to use the property as evidence at the trial or if the property was obtained from or belongs to the defendant." Advisory Committee's Notes on Fed. Rule Crim. Proc. 16, 18 U. S. C. App., p. 762 (second and third categories added to specify that, without a special showing of materiality, certain items are almost always "material") (citing 1 C. Wright, Federal Practice and Procedure Section(s) 254, p. 510, n. 58, p. 513, n. 70 (1969)). Nothing in the Notes, or in the Rule's language, suggests that the residual category of items "material to the preparation of the defendant's defense," means to cover only those items related to the case-in-chief.
The only other reason the majority advances in support of its "case-in-chief" limitation concerns a later part of the Rule, paragraph 16(a)(2). As relevant here, that paragraph exempts Government attorney work product from certain of Rule 16's disclosure requirements. In the majority's view, since (1) a defendant asserting a valid "selective prosecution" defense would likely need prosecution work product to make his case, but (2) the Rule exempts prosecution work product from discovery, then (3) the Rule must have some kind of implicit limitation (such as a "case-in-chief" limitation) that makes it irrelevant to defense efforts to assert "selective prosecution" defenses.
The majority's conclusion, however, does not follow from its premises. For one thing, Rule 16's work-product exception may itself contain implicit exceptions. After all, "[t]he privilege derived from the work-product doctrine is not absolute." United States v. Nobles, 422 U. S. 225, 239 (1975); see also 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure Section(s) 2022, p. 324 (2d ed. 1994) (in civil context, work product "is discoverable only on a substantial showing of `necessity or justification'") (quoting Hickman v. Taylor, 329 U. S. 495, 510 (1947)); J. Ghent, Development, Since Hickman v. Taylor, of Attorney's "Work Product" Doctrine, 35 A.L.R. 3d 412, 465-469, Section(s) 25 (1971) (in civil context, work product protection is not absolute, but is a "qualified privilege or immunity"). To the extent such a reading permits a defendant to obtain "work product" in an appropriate case (say, with a strong prima facie showing of selective prosecution), the Court's problem does not exist. Of course, to read the work product exception as containing some such implicit exception itself represents a departure from the Rule's literal language. But, is it not far easier to believe the Rule's authors intended some such small implicit exception to an exception, consistent with the language and purpose of the Rule, than that they intended the very large exception created by the Court?
For another thing, even if one reads the work product exception literally, the Court's problem disappears as long as courts can supplement Rule 16 discovery with discovery based upon other legal principles. The language of the work product exception suggests the possibility of such supplementation, for it says, not that work product is "exemp[t]" from discovery, ante, at 6, but that "this rule" does not authorize discovery of the prosecutor's work product. Fed. Rule Civ. Proc. 16(a)(2). The Advisory Committee's Notes make clear that the Committee believed that other rules of law may authorize (or require) discovery not mentioned in the Rule. See, e.g., Advisory Committee's Notes on Rule 16, 18 U. S. C. App., p. 762, 763 (discussion of Brady v. Maryland, 373 U. S. 83 (1963), which the Rule does not codify); 18 U. S. C. App., p. 761 ("[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases"); see also 2 C. Wright, Federal Practice and Procedure Section(s) 254, p. 81, and n. 60 (2d ed. 1982) ("Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady" (footnotes omitted). Of course, the majority, in a sense, reads the Rule as permitting supplementation, but it does more. It goes well beyond the added (say, constitutionally related) rule supplementation needed to overcome its problem; instead, it shrinks the Rule by unnecessarily creating a major limitation on its scope.Finally, and in any event, here the defendants sought discovery of information that is not work product. See ante, at 2-3. Thus, we need not decide whether in an appropriate case it would be necessary to find an implicit exception to the language of Rule 16(a)(2), or to find an independent constitutional source for the discovery, or to look for some other basis.
In sum, neither the alleged "symmetry" in the structure of Rule the majority's limitation of discovery under Rule 16(a)(1)(C) to documents related to the government's "case-in-chief." Rather, the language and legislative history make clear that the Rule's drafters meant it to provide a broad authorization for defendants' discovery, to be supplemented if necessary in an appropriate case. Whether or not one can also find a basis for this kind of discovery in other sources of whether the defendants' discovery request satisfied the Rule's requirement that the discovery be "material to the preparation of the defendant's defense."I believe that the defendants' request did not satisfy this threshold. Were the "selective prosecution" defense valid in this case--i.e., were there "clear evidence," United States v. Chemical Foundation, Inc., 272 U. S. 1, 14 (1926), that the Federal Government's prosecutorial policy "had a discriminatory effect and . . . was motivated by a discriminatory purpose," Wayte v. United States, 470 U. S. 598, 608 (1985), it should have been fairly easy for the defendants to find, not only instances in which the Federal Government prosecuted African Americans, but also some instances in which the Federal Government did not prosecute similarly situated caucasians. The defendants' failure to do so, for the reasons the Court sets forth, amounts to a failure to make the necessary threshold showing in respect to materiality. See 2 C. Wright, Federal Practice and Procedure Section(s) 254, pp. 66-67 (2d ed. 1982); United States v. Balk, 706 F. 2d 1056, 1060 (CA9 1983); United States v. Johnson, 577 F. 2d 1304, 1309 (CA5 1978); United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977).
djq Justice Stevens, dissenting.
Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that "they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. Oyler v. Boles, 368 U. S. 448, 456 (1962). For that reason, it has long been settled that the prosecutor's broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined. See ante, at 13, n. 3.
The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the performance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the Judge to determine whether there is a factual basis for such a concern. I agree with the Court that Rule 16 of the Federal Rules of Criminal Procedure is not the source of the District Court's power to make the necessary inquiry. I disagree, however, with its implicit assumption that a different, relatively rigid rule needs to be crafted to regulate the use of this seldom-exercised inherent judicial power. See Advisory Committee's Notes on Rule 16, 18 U. S. C. App., p. 761 (Rule 16 is "not intended to limit the judge's discretion to order broader discovery in appropriate cases").
The Court correctly concludes that in this case the facts presented to the District Court in support of respondents' claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery, either under Rule 16 or under the District Court's inherent power to order discovery in appropriate circumstances. Like Chief Judge Wallace of the Court of Appeals, however, I am persuaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney's Office. See 48 F. 3d 1508, 1520-1521 (CA9 1995). Perhaps the discovery order was broader than necessary, but I cannot agree with the Court's apparent conclusion that no inquiry was permissible.
The District Judge's order should be evaluated in light of three circumstances that underscore the need for judicial vigilance over certain types of drug prosecutions. First, the Anti-Drug Abuse Act of 1986 and subsequent legislation established a regime of extremely high penalties for the possession and distribution of so-called "crack" cocaine. 4 Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine. 5 The Sentencing Guidelines extend this ratio to penalty levels above the mandatory minimums: for any given quantity of crack, the guideline range is the same as if the offense had involved 100 times that amount in powder cocaine. 6 These penalties result in sentences for crack offenders that average three to eight times longer than sentences for comparable powder offenders. 7 United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 145 (Feb. 1995) (hereinafter Special Report).
Second, the disparity between the treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. For a variety of reasons, often including the absence of mandatory minimums, the existence of parole, and lower baseline penalties, terms of imprisonment for drug offenses tend to be substantially lower in state systems than in the federal system. The difference is especially marked in the case of crack offenses. The majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government. See id., at x, 129-138. For example, if respondent Hampton is found guilty, his federal sentence might be as long as a mandatory life term. Had he been tried in state court, his sentence could have been as short as 12 years, less worktime credits of half that amount. 8
Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black. Id., at 39, 161. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6-7 (Dec. 1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a "primary cause of the growing disparity between sentences for Black and White federal defendants." Special Report 163.
The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that District. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.
Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender's Office in 1991, 24 out of 24 involved black defendants. To supplement this evidence, they submitted affidavits from two of the attorneys in the defense team. The first reported a statement from an intake coordinator at a local drug treatment center that, in his experience, an equal number of crack users and dealers were caucasian as belonged to minorities. App. 138. The second was from David R. Reed, counsel for respondent Armstrong. Reed was both an active court-appointed attorney in the Central District of California and one of the directors of the leading association of criminal defense lawyers who practice before the Los Angeles County courts. Reed stated that he did not recall "ever handling a [crack] cocaine case involving non-black defendants" in federal court, nor had he even heard of one. Id., at 140. He further stated that "[t]here are many crack cocaine sales cases prosecuted in state court that do involve racial groups other than blacks." Id., at 141 (emphasis in original).
The majority discounts the probative value of the affidavits, claiming that they recounted "hearsay" and reported "personal conclusions based on anecdotal evidence." Ante, at 14. But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. See 48 F. 3d, at 1518, n. 8. It was certainly within the District Court's discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.
The criticism that the affidavits were based on "anecdotal evidence" is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor's personal observations or on an attorney's practice in two sets of courts, state and federal, can "ten[d] to show the existence" of a selective prosecution. Ante, at 12.
Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery. There can be no doubt that such individuals exist, and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand information from the Government's files to support or refute respondents' evidence. The presumption that some whites are prosecuted in state court is not "contradicted" by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes. See ante, at 13. Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes. But, as discussed above, in the case of crack far greater numbers of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before her significant and to require some explanation from the Government. 9
In sum, I agree with the Sentencing Commission that "[w]hile the exercise of discretion by prosecutors and investigators has an impact on sentences in almost all cases to some extent, because of the 100-to-1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects." Special Report 138. 10 The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. Cf. McCleskey v. Kemp, 481 U. S. 279, 366 (1987) (Stevens, J., dissenting). In this case, the evidence was sufficiently disturbing to persuade the District Judge to order discovery that might help explain the conspicuous racial pattern of cases before her Court. I cannot accept the majority's conclusion that the District Judge either exceeded her power or abused her discretion when she did so. I therefore respectfully dissent.
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
1 Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions. App. 83. Both motions were denied. One District Judge explained from the bench that the 23-person sample before him was "statistically insignificant," and that the evidence did not indicate "whether there is a bias in the distribution of crime that says black people use crack cocaine, hispanic people use powdered cocaine, caucasian people use whatever it is they use." Id., at 119, 120.
2 We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race. Here, "it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie." 48 F. 3d 1508, 1510 (CA9 1995).
3 We reserve the question whether a defendant must satisfy the similarly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose." Brief for United States 15.
4 100 Stat. 3207, 21 U. S. C. Section(s) 841 et seq.
5 Compare 21 U. S. C. Section(s) 841(b)(1)(A)(iii) with Section(s) 841(b)(1)(A)(ii). Similarly, a mandatory 5-year sentence is prescribed for distribution of 500 grams of cocaine or 5 grams of crack. Compare Section(s) 841(b)(1)(B)(ii) with Section(s) 841(b)(1)(B)(iii). Simple possession of 5 grams of crack also produces a mandatory 5-year sentence. The maximum sentence for possession of any quantity of other drugs is one year. Section(s) 844(a).
With one prior felony drug offense, the sentence for distribution of 50 grams of crack is a mandatory 20 years to life. Section(s) 841(b)(1)(A). With two prior felony drug offenses, the sentence is a mandatory life term without parole. Ibid.
6 See United States Sentencing Commission, Guidelines Manual
7 Under the guidelines, penalties increase at a slower rate than drug quantities. For example, 5 grams of heroin result in a base offense level of 14 (15-21 months) while 10 grams of heroin (double the amount) result in an offense level of 16 (21-27 months). USSG translate into sentences that are 100 times as long.
8 Hampton was charged with conspiracy to distribute, four counts of crack distribution, and the use or carrying of a firearm in relation to a drug crime. According to an information filed by the Government, Hampton had three prior convictions for felony drug offenses. See Information Establishing Prior Felony Narcotics Convictions (June 24, 1992). Therefore, he potentially faces a mandatory life sentence on the drug charges alone.
Under California law at the time of the offenses, possession for sale of cocaine base involving 50 grams carried a penalty of imprisonment for either three, four, or five years. Cal. Health & Safety Code Ann. Section(s) 11351.5 (West 1988). If the defendant had no prior convictions, he could be granted probation. Section(s) 11370. For each prior felony drug conviction, the defendant received an additional 3-year sentence. Section(s) 11370.2. Thus, with three priors and the possibility of worktime reductions, see Cal. Penal Code Ann. Section(s) 2933 (West Supp. 1996), Hampton could have served as little as six years under California law. Since the time of the offenses, California has raised several of these penalties, but the new punishments could not be applied to respondents.
9 Also telling was the Government's response to respondents' evidentiary showing. It submitted a list of more than 3,500 defendants who had been charged with federal narcotics violations over the previous 3 years. It also offered the names of 11 nonblack defendants whom it had prosecuted for crack offenses. All 11, however, were members of other racial or ethnic minorities. See 48 F. 3d, at 1511. The District Court was authorized to draw adverse inferences from the Government's inability to produce a single example of a white defendant, especially when the very purpose of its exercise was to allay the Court's concerns about the evidence of racially selective prosecutions. As another court has said: "Statistics are not, of course, the whole answer, but nothing is as emphatic as zero . . . ." United States v. Hinds County School Bd., 417 F. 2d 852, 858 (CA5 1969) (per curiam).
10 For this and other reasons, the Sentencing Commission in its Special Report to Congress "strongly recommend[ed] against a 100-to-1 quantity ratio." Special Report 198. The Commission shortly thereafter, by a 4-to-3 vote, amended the guidelines so as to equalize the treatment of crack and other forms of cocaine, and proposed modification of the statutory mandatory minimum penalties for crack offenses. See Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy (May 1, 1995). In October 1995, Congress overrode the Sentencing Commission's guideline amendments. See Pub. L. 104-38, 109 Stat. 334. Nevertheless, Congress at the same time directed the Commission to submit recommendations regarding changes to the statutory and guideline penalties for cocaine distribution, including specifically "revision of the drug quantity ratio of crack cocaine to powder cocaine." Section(s) 2(a). /BODY
7.2.6.7.2.3 Brady v. United States 7.2.6.7.2.3 Brady v. United States
v.
UNITED STATES.
Page 743
Peter J. Adang, Albuquerque, N.M., for petitioner.
Joseph J. Connolly, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
In 1959, petitioner was charged with kidnaping in violation of 18 U.S.C. § 1201(a).1 Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.2
Page 744
Petitioner was sentenced to 50 years' imprisonment, later reduced to 30.
In 1967, petitioner sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201(a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.3
Page 745
After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201(a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty 'by reason of other matters and not by reason of the statute' or because of any acts of the trial judge. The court concluded that 'the plea was voluntarily and knowingly made.'
The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. 404 F.2d 601 (1968). We granted certiorari, 395 U.S. 976, 89 S.Ct. 2146, 23 L.Ed.2d 764 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). We affirm.
In United States v. Jackson, supra, the defendants were indicted under § 1201(a). The District Court dismissed the § 1201(a) count of the indictment, holding
Page 746
the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court 'that the death penalty provision * * * imposes an impermissible burden upon the exercise of a constitutional right * * *.' 390 U.S., at 572, 88 S.Ct., at 1211. The problem was to determine 'whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' 390 U.S., at 581, 88 S.Ct., at 1216. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right,' 390 U.S., at 583, 88 S.Ct., at 1217, and was therefore unconstitutional.
Since the 'inevitable effect' of the death penalty provision of § 1201(a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.
The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that
Page 747
every defendant who enters a guilty plea to a charge under the Act does so involuntarily.' 390 U.S., at 583, 88 S.Ct., at 1217. Cited in support of this statement, 390 U.S., at 583 n. 25, 88 S.Ct., at 1217, was Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.
Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201(a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, 'however clear (the defendants') guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.' '(T)hat jury waivers and guilty pleas may occasionally be rejected' was no ground for automatically rejecting all guilty pleas under the statute, for such a rule 'would rob the criminal process of much of its flexibility.' 390 U.S., at 584, 88 S.Ct., at 1218.
Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid wheth-involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711—1712, 23 L.Ed.2d 274 (1969).4
Page 748
That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression of his own choice.5 But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.6 On neither score was Brady's plea of guilty invalid.
Page 749
The trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea.
The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty.7 But
Page 750
even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a 'but for' cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.
The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for
Page 751
the crime charged if a conviction is obtained after the State is put to its proof.
Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations,8 as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not
Page 752
constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.9 It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty,10 a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or
Page 753
the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.
A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.
Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." 168 U.S., at 542—543, 18 S.Ct., at 187. More recently, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.11
Page 754
Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.12
Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to
Page 755
the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary.
The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
"(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).' 242 F.2d at page 115.'13
Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.14
Page 756
The record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.
It is true that Brady's counsel advised him that § 1201(a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction.
Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly
Page 757
sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.
This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are
Page 758
necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.
Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.
Affirmed.
Mr. Justice BLACK, while adhering to his belief that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.
1. 'Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
2. Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:
'THE COURT: * * * Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?
'DEFENDANT BRADY: I want to let that plea stand, sir.
'THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
'DEFENDANT BRADY: Yes, your Honor.
'THE COURT: And you do do that?
'DEFENDANT BRADY: Yes, I do.
'THE COURT: You plead guilty to the charge?
'DEFENDANT BRADY: Yes, I do.' App. 29—30.
3. When petitioner pleaded guilty, Rule 11 read as follows:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.'
Rule 11 was amended in 1966 and now reads as follows:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.
4. The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.
5. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965—966, 86 L.Ed. 1302 (1942); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).
6. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).
Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Von Moltke v. Gillies, 332 U.S. 708 and 727, 68 S.Ct. 316 and 325, 92 L.Ed. 309 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968).
The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See nn. 3 and 4, supra.
7. Such a possibility seems to have been rejected by the District Court in the § 2255 proceedings. That court found that 'the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute * * *.'
8. We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady's case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.
9. For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37—52 (Approved Draft 1968).
10. It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).
11. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). See also Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528 (1963); Wilson v. United States, 162 U.S. 613, 622—623, 16 S.Ct. 895, 899—900, 40 L.Ed. 1090 (1896).
12. 'The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege (against compelled self-incrimination). His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.' Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623 (1966).
13. Shelton v. United States, 246 F.2d 571, 572 n. 2 (C.A.5th Cir. 1957) (en banc), rev'd on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
14. Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F.2d 457 (C.A.2d Cir. 1970); United States v. Thomas, 415 F.2d 1216 (C.A.9th Cir. 1969); Pindell v. United States, 296 F.Supp. 751 (D.C.Conn.1969); McFarland v. United States, 284 F.Supp. 969 (D.C.Md.1968), aff'd, No. 13,146 (C.A.4th Cir., May 1, 1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1525, 25 L.Ed.2d 811; Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967); Gilmore v. California, 364 F.2d 916 (C.A.9th Cir. 1966); Busby v. Holman, 356 F.2d 75 (C.A.5th Cir. 1966); Cooper v. Holman, 356 F.2d 82 (C.A.5th Cir.), cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Godlock v. Ross, 259 F.Supp. 659 (D.C.E.D.N.C.1966); United States ex rel. Robinson v. Fay, 348 F.2d 705 (C.A.2d Cir. 1965), cert. denied, 382 U.S. 997, 86 S.Ct. 583, 15 L.Ed.2d 484 (1966); Overman v. United States, 281 F.2d 497 (C.A.6th Cir. 1960), cert. denied, 368 U.S. 993, 82 S.Ct. 612, 7 L.Ed.2d 530 (1962); Martin v. United States, 256 F.2d 345 (C.A.5th Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682.
7.2.6.7.2.4 Bordenkircher v. Hayes 7.2.6.7.2.4 Bordenkircher v. Hayes
v.
Paul Lewis HAYES.
See 435 U.S. 918, 98 S.Ct. 1477.
Syllabus
The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365.
(a) "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. Pp. 361-362.
(b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 2072, 2082, 23 L.Ed.2d 656, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364.
(c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365.
547 F.2d 42, 6 Cir., reversed.
Robert L. Chenoweth, Frankfort, Ky., for petitioner.
J. Vincent Aprile II, Frankfort, Ky., for respondent.
Page 358
Mr. Justice STEWART delivered the opinion of the Court.
The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.
The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save[d] the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act,1 then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of
Page 359
life imprisonment by reason of his two prior felony convictions.2 Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the pros cutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.
A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,3 and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process.
Page 360
On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.4 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269.
It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do o was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.5 As a practical matter, in short, this
Page 361
case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.
The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.6 Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.7 The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.
We have recently had occasion to observe: "[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice sys-
Page 362
tem. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.
This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.' " Blackledge v. Perry, 417 U.S., at 27, 94 S.Ct., at 2102.
In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, 397 U.S. 790,
Page 363
809, 90 S.Ct. 1458, 1474, 1479, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02.
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct., at 2082 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct., at 1986. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.
Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, 397 U.S., at 752, 90 S.Ct., at 1471. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758, 90 S.Ct., at 1474. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App. Draft 1968);
Page 364
Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 751, 90 S.Ct., at 1470; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"—and permissible—"attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, 412 U.S., at 31, 93 S.Ct., at 1985. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.8 Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion,
Page 365
may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S., at 76, 97 S.Ct., at 1630.
There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.9 And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.
Accordingly, the judgment of the Court of Appeals is
Reversed.
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
I feel that the Court, although purporting to rule narrowly (that is, on "the course of conduct engaged in by the prosecutor in this case," ante, this page), is departing from, or at least restricting, the principles established in North Carolina v.
Page 366
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). If those decisions are sound and if those principles are salutary, as I must assume they are, they require, in my view, an affirmance, not a reversal, of the judgment of the Court of Appeals in the present case.
In Pearce, as indeed the Court notes, ante, at 362, it was held that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S., at 725, 89 S.Ct., at 2080. Accordingly, if on the new trial, the sentence the defendant receives from the court is greater than that imposed after the first trial, it must be explained by reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding," other than his having pursued the appeal or collateral remedy. Id., at 726, 89 S.Ct., at 2081. On the other hand, if the sentence is imposed by the jury and not by the court, if the jury is not aware of the original sentence, and if the second sentence is not otherwise shown to be a product of vindictiveness, Pearce has no application. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
Then later, in Perry, the Court applied the same principle to prosecutorial conduct where there was a "realistic likelihood of 'vindictiveness.' " 417 U.S., at 27, 94 S.Ct., at 2102. It held that the requirement of Fourteenth Amendment due process prevented a prosecutor's reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution's "considerable stake" in discouraging the appeal. Ibid.
The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante,
Page 367
at 363, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry ; the prosecutor here admitted, see ante, at 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.1 Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates "a strong inference" of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially "makes a discretionary determination that the interests of the state are served by not seeking more serious charges." Hayes v. Cowan, 547 F.2d 42, 44 (1976). I therefore do not understand why, as in Pearce, due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.
Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante, at 362, as the exercise of a "legal right to attack his original conviction,"
Page 368
and vindictiveness in the " 'give-and-take negotiation common in plea bargaining.' " Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.
It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court's holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.2
Mr. Justice POWELL, dissenting.
Although I agree with much of the Court's opinion, I am not satisfied that the result in this case is just or that the
Page 369
conduct of the plea bargaining met the requirements of due process.
Respondent was charged with the uttering of a single forged check in the amount of $88.30. Under Kentucky law, this offense was punishable by a prison term of from 2 to 10 years, apparently without regard to the amount of the forgery. During the course of plea bargaining, the prosecutor offered respondent a sentence of five years in consideration of a guilty plea. I observe, at this point, that five years in prison for the offense charged hardly could be characterized as a generous offer. Apparently respondent viewed the offer in this light and declined to accept it; he protested that he was innocent and insisted on going to trial. Respondent adhered to this position even when the prosecutor advised that he would seek
Page 370
a new indictment under the State's Habitual Criminal Act which would subject respondent, if convicted, to a mandatory life sentence because of two prior felony convictions.
The prosecutor's initial assessment of respondent's case led him to forgo an indictment under the habitual criminal statute. The circumstances of respondent's prior convictions are relevant to this assessment and to my view of the case. Respondent was 17 years old when he committed his first offense. He was charged with rape but pleaded guilty to the lesser included offense of "detaining a female." One of the other participants in the incident was sentenced to life imprisonment. Respondent was sent not to prison but to a reformatory where he served five years. Respondent's second offense was robbery. This time he was found guilty by a jury and was sentenced to five years in prison, but he was placed on probation and served no time. Although respondent's prior convictions brought him within the terms of the Habitual Criminal Act, the offenses themselves did not result in imprisonment; yet the addition of a conviction on a charge involving $88.30 subjected respondent to a mandatory sentence of imprisonment for life.1 Persons convicted of rape and murder often are not punished so severely.
No explanation appears in the record for the prosecutor's decision to escalate the charge against respondent other than respondent's refusal to plead guilty. The prosecutor has conceded that his purpose was to discourage respondent's assertion of constitutional rights, and the majority accepts this characterization of events. See ante, at 358 n. 1, 364.
It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the
Page 371
exercise of a prosecutor's discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed.2 But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute.3 I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.
There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially
Page 372
to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor's motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset. See ante, at 360-361.
But this is not such a case. Here, any inquiry into the prosecutor's purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent's insistence on exercising his constitutional rights. We have stated in unequivocal terms, in discussing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that "Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional.' " Chaffin v. Stynchcombe, 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 1986, 36 L.Ed.2d 714 (1973). And in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we drew a distinction between the situation there approved and the "situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470.
The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. Cf. n. 2, supra. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor's actions denied respondent due
Page 373
process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.
1. While cross-examining Hayes during the subsequent trial proceedings the prosecutor described the plea offer in the following language:
"Isn't it a fact that I told you at that time [the initial bargaining session] if you did not intend to plead guilty to five years for this charge and . . . save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?" Tr. 194.
2. At the time of Hayes' trial the statute provided that "[a]ny person convicted a . . . third time of felony . . . shall be confined in the penitentiary during his life." Ky.Rev.Stat. § 431.190 (1973) (repealed 1975). That statute has been replaced by Ky.Rev.Stat. § 532.080 (Supp. 1977) under which Hayes would have been sentenced to, at most, an indeterminate term of 10 to 20 years. § 532.080(6)(b). In addition, under the new statute a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed. At least one of Hayes' prior convictions did not meet these conditions. See n. 3, infra.
3. According to his own testimony, Hayes had pleaded guilty in 1961, when he was 17 years old, to a charge of detaining a female, a lesser included offense of rape, and as a result had served five years in the state reformatory. In 1970 he had been convicted of robbery and sentenced to five years' imprisonment, but had been released on probation immediately.
4. The opinion of the District Court is unreported.
5. Compare United States ex rel. Williams v. McMann, 436 F.2d 103 (CA2), with United States v. Ruesga-Martinez, 534 F.2d 1367, 1370 (CA9). In citing these decisions we do not necessarily endorse them.
6. "Although a prosecutor may in the course of plea negotiations offer a defendant concessions relating to prosecution under an existing indictment . . . he may not threaten a defendant with the consequence that more severe charges may be brought if he insists on going to trial. When a prosecutor obtains an indictment less severe than the facts known to him at the time might permit, he makes a discretionary determination that the interests of the state are served by not seeking more serious charges. . . . Accordingly, if after plea negotiations fail, he then procures an indictment charging a more serious crime, a strong inference is created that the only reason for the more serious charges is vindictiveness. Under these circumstances, the prosecutor should be required to justify his action." 547 F.2d, at 44-45.
7. "In this case, a vindictive motive need not be inferred. The prosecutor has admitted it." Id., at 45.
8. This case does not involve the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused, see ALI Model Code of Pre-Arraignment Procedure, Commentary to § 350.3, pp. 614-615 (1975), which might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider. Cf. Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747.
9. This potential has led to many recommendations that the prosecutor's discretion should be controlled by means of either internal or external guidelines. See ALI Model Code of Pre-Arraignment Procedure for Criminal Justice §§ 350.3(2)-(3) (1975); ABA Project on Standards for Criminal Justice, The Prosecution Function §§ 2.5, 3.9 (App. Draft 1971); Abrahms, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L.Rev. 1 (1971).
1. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where the Court as a premise accepted plea bargaining as a legitimate practice, it nevertheless observed:
"We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470. See also Colon v. Hendry, 408 F.2d 864 (CA5 1969); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), aff'd, 550 F.2d 1224 (CA9 1977), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 34 L.Ed.2d 85 (1977); United States v. Ruesga Martinez, 534 F.2d 1367, 1369 (CA9 1976).
2. That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today's decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor's exercise of discretion in initial charging decisions.
Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without
any knowledge of the particular defendant's willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.
Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.
Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was gi en another chance to plead guilty to the forged check charge in exchange for a five-year sentence.
1. It is suggested that respondent will be eligible for parole consideration after serving 15 years.
2. The majority suggests, ante, at 360-361, that this case cannot be distinguished from the case where the prosecutor initially obtains an indictment under an enhancement statute and later agrees to drop the enhancement charge in exchange for a guilty plea. I would agree that these two situations would be alike only if it were assumed that the hypothetical prosecutor's decision to charge under the enhancement statute was occasioned not by consideration of the public interest but by a strategy to discourage the defendant from exercising his constitutional rights. In theory, I would condemn both practices. In practice, the hypothetical situation is largely unreviewable. The majority's view confuses the propriety of a particular exercise of prosecutorial discretion with its unreviewability. In the instant case, however, we have no problem of proof.
3. Indeed, the Kentucky Legislature subsequently determined that the habitual criminal statute under which respondent was convicted swept too broadly and did not identify adequately the kind of prior convictions that should trigger its application. At least one of respondent's two prior convictions would not satisfy the criteria of the revised statute; and the impact of the statute, when applied, has been reduced significantly in situations, like this one, where the third offense is relatively minor. See ante, at 359 n. 2.
7.2.6.7.2.5 US v. Deegan 7.2.6.7.2.5 US v. Deegan
605 F.3d 625 (2010)
UNITED STATES of America, Appellee,
v.
Dana DEEGAN, Appellant.
No. 08-2299.
United States Court of Appeals, Eighth Circuit.
Submitted: December 9, 2008.
Filed: May 25, 2010.
[627] William D. Schmidt, AFPD, argued, Bismarck, ND, Jeffrey L. Viken, Federal Public Defender, on the brief, for appellant.
David D. Hagler, AUSA, argued, Clare R. Hochhalter, AUSA, on the brief, Bismarck, ND, for appellee.
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. The district court[1] sentenced Deegan to 121 months' imprisonment, which was the bottom of the advisory guideline range. Deegan appeals the sentence, and we affirm.
I.
Deegan is a member of the Three Affiliated Tribes. On October 20, 1998, Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort Berthold Indian Reservation. The baby was alive and breathing when he was delivered. Deegan had kept her pregnancy hidden, and no other adult was present at the time of the delivery. Deegan's three other minor children were in the home, but they were unaware of the birth.
Approximately two hours after delivering her son, Deegan fed, cleaned, and dressed him, and then placed him in a basket. She then left the house with her three other children, intentionally leaving the baby alone without food, water, or a caregiver. Deegan did not return to her home for approximately two weeks. When she returned, she found the baby dead in the basket where she had left him. She put his remains in a suitcase, and deposited the suitcase in a rural ditch area near her residence.
On November 4, 1999, a man working on a fence line found the suitcase containing the baby's remains. He reported the discovery to law enforcement, and the Federal Bureau of Investigation ("FBI") commenced an investigation. In March 2004, Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample and confirmed that Deegan was the mother of the deceased baby. When Deegan was interviewed by the FBI in late February 2007, she falsely claimed that the baby was stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and provided a written statement to that effect.
Later during the May 2007 interview, however, Deegan admitted that her earlier statements were false and acknowledged that the baby had been born alive. She stated that she intentionally left him alone in her home, knowing that he would die. When asked why she did so, Deegan responded [628] that she was unable to care for a fourth child, neither she nor her common-law husband were employed, and her husband spent what little money they did have to purchase drugs.
On June 6, 2007, a grand jury returned a two-count indictment charging Deegan with first-degree murder and making false statements to the FBI. Deegan pled not guilty to both charges. On November 11, 2007, Deegan entered into a written plea agreement with the government, in which she agreed to plead guilty to one count of second-degree murder. In the factual portion of the agreement, Deegan acknowledged that the baby was born alive and breathing when she delivered him, and that she unlawfully and with malice aforethought caused his death by leaving him alone in the house for approximately two weeks. On November 30, 2007, the government filed an information charging Deegan with second-degree murder.
On December 10, 2007, Deegan pled guilty to second-degree murder. At the plea hearing, the district court noted that the sentencing guidelines in effect at the time of Deegan's offense provided for an advisory sentence of eight to ten years' imprisonment for second-degree murder. The court advised Deegan that based on "what little information" it had about the offense at the plea hearing, the court was "not comfortable" with a range of eight to ten years, because the terms of imprisonment for other defendants convicted of second-degree murder "were not even close to that range." The court remarked that there were a number of provisions in the advisory guidelines "that would justify an upward departure."
In an order filed on January 22, 2008, the court formally notified the parties that it was "contemplating an upward departure from the applicable Sentencing Guideline range," based on USSG § 5K2.8, which provides for an increased sentence where "the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim." The court expressed its view that Deegan's conduct "was unusually heinous, cruel, and brutal," but stated that it would await review of the presentence investigation report ("PSR"), psychological evaluations, and a review of relevant case law before making a final decision on sentencing.
Applying the 1997 sentencing guidelines in effect at the time of the offense, the PSR recommended an advisory sentencing range of 121 to 151 months' imprisonment, which corresponded to a total offense level of 32 and a criminal history category of I. The total offense level represented a base offense level of 33, USSG § 2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim, id. § 3A1.1(b), and a three-level decrease for acceptance of responsibility, id. § 3E1.1(a), (b). Deegan objected to the two-level vulnerable-victim adjustment, arguing that there had been no factual finding that the infant was vulnerable, and that she had not admitted as much in the plea agreement.
Following preparation of the PSR, both parties submitted sentencing memoranda to the court. Deegan again objected to the two-level vulnerable-victim adjustment. She also urged the court to vary from the advisory guidelines and sentence her to probation or to a very short period of incarceration. She based her argument for leniency on what she described as her "psychological and emotional condition" at the time of the offense, her history as a victim of abuse, and the fact that she acted impulsively, among other reasons.
As support, she submitted a report prepared by Dr. Phillip Resnick, an expert in "neonaticide." "Neonaticide" is a term coined by Resnick to describe the killing of [629] an infant within the first twenty-four hours following birth. See Susan Hatters Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The report addressed what Resnick viewed as an "extraordinary number of mitigating circumstances," and expressed the opinion that a prison sentence was not necessary to deter other women from committing neonaticide. The report concluded that Deegan suffered from an extensive history of abuse throughout her childhood and as an adult, suffered from major depression and dissociation at the time of the homicide, acted impulsively in leaving her baby alone, presented a very low risk of reoffending, and did not merit a lengthy prison sentence, especially because other women convicted in state court of committing similar offenses were usually sentenced to no more than three years in prison.
At the sentencing hearing on May 18, 2008, the district court adopted the sentencing guideline calculation in the PSR. The court agreed with the probation office that the vulnerable-victim enhancement was warranted, and that Deegan's advisory range was 121 to 151 months' imprisonment. Finally, after calling Dr. Resnick to testify about his report and hearing arguments from counsel and testimony from Deegan herself, the court sentenced Deegan to 121 months' imprisonment.
On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard, United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008), which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No objection was required to preserve Deegan's substantive claim that the sentence imposed is unreasonably long with regard to § 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007), but we review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
II.
A.
Deegan appears to raise four alleged procedural errors at sentencing. One is that the district court "failed on the record to engage in any meaningful discussion whatsoever of the § 3553(a) factors." The Supreme Court in Gall explained that a sentencing court "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." 552 U.S. at 50, 128 S.Ct. 586. Deegan did not object to the adequacy of the district court's explanation or request any elaboration. On plain error review, we conclude that the explanation is not obviously inadequate.
As the Supreme Court has explained, "[t]he appropriateness of brevity or length, conciseness or detail, when to [630] write, what to say, depends upon circumstances." Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). "The law leaves much, in this respect, to the judge's own professional judgment." Id. "[A] district court is not required to provide a `full opinion in every case,' but must `set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita, 551 U.S. at 356, 127 S.Ct. 2456). Sentencing courts need not "categorically rehearse the § 3553(a) factors on the record, as long as it is clear that the court considered those factors." United States v. Hernandez, 518 F.3d 613, 616 (8th Cir.2008). Nor have we required district courts to make specific findings on the record about each § 3553(a) factor. Perkins, 526 F.3d at 1110. "[A]ll that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors." Id.
The district court in this case said plenty to avoid an obvious shortcoming under a plain error standard of review. The court twice stated that it had "carefully considered" the § 3553(a) factors, even remarking that it had "spent many, many days and nights thinking about this case." The court listed nearly all of the § 3553(a) factors on the record. Dr. Resnick, the expert who reported on Deegan's psychological condition, structured his testimony at the sentencing hearing around many of the § 3553(a) factors, and cross-examination highlighted other statutory factors. The court heard all of this testimony and took it into account. The court read Resnick's written report, which was explicit in its reference to the § 3553(a) factors, "at least three times." The court twice stated that it had carefully reviewed the PSR, the parties' sentencing memoranda, the psychological evaluation of Deegan by another doctor, the many letters of support filed on her behalf, and the DVD presentation by her family. See United States v. Henson, 550 F.3d 739, 743 (8th Cir.2008) (observing that the presentence report contains extensive information regarding the factors under § 3553(a)).
In explaining why it chose a sentence of 121 months' imprisonment rather than a greater punishment, the court acknowledged that Deegan's life had not been "easy," and that it had been plagued with physical abuse and sexual abuse. Referring back to its statement at the plea hearing that it was likely to impose a sentence above the advisory range of eight to ten years, the court observed that Resnick's report and testimony were "helpful and insightful," and that the court had gained "far better insight" into the case after reviewing the report. The court told Deegan that it had "real compassion for [her] and [her] family and what [she had] gone through," including the fact that she had three children and that her brother had been murdered. The court said that it "underst[ood] why [Deegan] took the steps that she did in 1998," and that "under the circumstances," a sentence under the 2007 guidelines in effect at the time of sentencing, i.e., 19.5 to 24.5 years' imprisonment, would not have been fair.
But the court also thought a lesser sentence would not be sufficient, explaining that it must "ensure that justice is done," and that it could not "ignore the fact that there was an innocent life that was lost." The court remarked that justice in this case probably "lies between the extremes of public opinion," and that the advisory range of 121 to 151 months' imprisonment was reasonable for "a case of this nature."
This discussion is sufficient to permit meaningful appellate review and to ensure [631] the public that Deegan's case was given fair consideration. In the face of this record, which shows a district judge deliberating at length over a difficult case, and even changing his tentative conclusion between the plea hearing and the sentencing hearing, we cannot agree with our dissenting colleague that the district court "exercised no discretion." Post, at 659-60. Deegan has not established plain error that would require a remand for a more elaborate statement of reasons.
B.
Deegan also argues that the court procedurally erred by treating the advisory guidelines as mandatory. Gall, 552 U.S. at 51, 128 S.Ct. 586. This contention is based on an isolated statement by the district court at the sentencing hearing, to which Deegan lodged no objection:
In this case, the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998. If the guidelines that were in effect today were imposed, your sentence would be in the range of 19-and-a-half to 24-and-a-half years.
(S. Tr. at 60) (emphasis added).
The court evidently misspoke when it used the word "impose" (rather than "consider"), because the record as a whole makes clear that the court understood its discretion to sentence outside the advisory guideline range. There is no reason to believe that the district court applied the guidelines as mandatory, and if Deegan had objected at sentencing to the word "impose," we are confident that the court would have corrected itself. Elsewhere, the court clearly explained that it was aware of its discretion to vary from the advisory guideline range:
I'm also familiar with the recent decisions from the United States Supreme Court in the cases of Gall and Kimbrough which have established that district court judges around the country in the federal system have discretion to impose nonguideline sentences or variances from the sentencing guidelines. And I'm equally aware of my authority and my discretion to impose a nonguideline sentence.
. . . .
. . . I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentencing range that's been provided for in the sentencing guidelines in this particular case is reasonable.
(S. Tr. 56, 58-59) (emphases added). On Deegan's contention that the district court treated the guidelines as mandatory, there is no plain error warranting relief.[2]
C.
Deegan also contends that the district court committed procedural error by considering the advisory guideline range [632] that applied to Deegan's offense under the 2007 sentencing guidelines. Deegan committed the offense in 1998, and the court calculated her advisory range according to the 1997 guidelines, which were in effect at the time of the offense. The court apparently followed the rule that application of the guidelines in effect at the time of sentencing would violate the Ex Post Facto Clause, see United States v. Bell, 991 F.2d 1445 (8th Cir.1993); USSG § 1B1.11(b), although the endurance of that rule is an open question in this circuit after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), now that the guidelines are merely a starting point that a court must consult and take into account. See United States v. Anderson, 570 F.3d 1025, 1033 n. 7 (8th Cir.2009) (assuming, without deciding, that the Ex Post Facto Clause applies to a district court's application of the sentencing guidelines after Booker); compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that use of the guidelines in effect at time of sentencing does not violate Ex Post Facto Clause after Booker), with United States v. Turner, 548 F.3d 1094, 1098-1101 (D.C.Cir.2008) (disagreeing with Demaree).
Although the court used the 1997 guidelines as the initial starting point, it also discussed the advisory range that would apply under the 2007 guidelines. The court observed that if Deegan had been sentenced under the 2007 guidelines, her advisory sentence would have been almost twice as long as the sentencing range under the 1997 guidelines. The court also noted that if Deegan had been convicted of voluntary manslaughter rather than second-degree murder, then her advisory range under the 2007 guidelines would be roughly the same range as the advisory range for second-degree murder under the 1997 guidelines. With this background, the court concluded:
I guess what I'm trying to say is that if we used guidelines today, the sentence would be double what you're currently looking at, and I don't think that's fair under the circumstances. But when I reflect upon what a voluntary manslaughter charge carries under the current guidelines and what second degree murder carries under the guidelines that existed in 1998, I believe that those are reasonable guidelines for a case of this nature.
Deegan did not object to the district court's reference to the 2007 guidelines, and we see no obvious error in the court's consideration of that information. Now that the guidelines are merely advisory, district courts are free to vary from the advisory range "based solely on policy considerations," Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal quotation omitted), or to sentence within the advisory range based on policy considerations. The 2007 guidelines simply represent another policy view — different from the view embodied in the 1997 guidelines — of the appropriate sentence under § 3553(a) for second-degree murder or voluntary manslaughter in a run-of-the-mine case. The court was free to consider that view as part of its analysis of the appropriate sentence for Deegan under § 3553(a). There was no plain procedural error.
D.
Deegan's remaining procedural argument is that the district court erred by assuming that the advisory guideline for second-degree murder was the product of empirical data and national experience. She points to this excerpt from the district court's comments at sentencing:
We have sentencing guidelines in the federal system that are designed to ensure [633] that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that — in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.
Deegan did not object to these comments at sentencing, and we see no obvious error that warrants relief.
Insofar as Deegan argues that the court procedurally erred by "selecting a sentence based on clearly erroneous facts," see Gall, 552 U.S. at 51, 128 S.Ct. 586, we disagree. The court's discussion of the guidelines was an accurate statement about the general purpose and methodology behind the sentencing guidelines. See generally USSG Ch. 1, Pt. A, intro. comment. The court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of "neonaticide" cases, or that Deegan's offense was a typical fact pattern for second-degree murder.
The district court may have believed that the second-degree murder guideline considered in Deegan's case was based on empirical data and national experience, but Deegan has not shown that this premise would have been incorrect. Citing United States v. Grant, No. 07-242, 2008 WL 2485610, at *4-5 (D.Neb. June 16, 2008), Deegan argues that amendments to the murder guidelines promulgated in 2002, 2004, 2006, and 2007 were not based on empirical data and national experience. But whatever the merits of that position, these amendments say nothing about how the Sentencing Commission established the 1997 guideline for second-degree murder, on which Deegan's advisory range was based.[3]
Even with respect to the 1997 guideline, moreover, the district court simply treated the advisory guideline range as an initial starting point, while determining the final sentence after consideration of all of the § 3553(a) factors taken as a whole. There is no showing that an erroneous assumption about the underlying basis for the second-degree murder guideline drove the determination of Deegan's sentence.
In sum, Deegan has not identified an obvious procedural error at sentencing. The district court correctly calculated the advisory guideline range, allowed the parties [634] to present evidence and argument regarding the sentence to be imposed, recognized its discretion to impose a sentence outside the advisory range, considered all of the § 3553(a) factors, determined the final sentence based on those factors, and adequately explained its rationale.
III.
A.
We also conclude that Deegan's sentence at the bottom of the advisory guideline range is substantively reasonable. We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard, see Gall, 552 U.S. at 41, 128 S.Ct. 586, cognizant that "it will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (internal quotation omitted). While many critics of the mandatory federal sentencing system believed that the guidelines resulted in excessive terms of imprisonment, the post-Booker system is not a one-way ratchet in favor of leniency. A district judge who favors a tough sentence is entitled to the same degree of deference as a district judge who opts for a lesser punishment.
Where, as here, a sentence imposed is within the advisory guideline range, we typically accord it a presumption of reasonableness. See United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007). The presumption "simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable." Rita, 551 U.S. at 350, 127 S.Ct. 2456. But even if we do not apply such a presumption here, on the view that Deegan's offense is not a "mine run" second-degree murder, the district court did not abuse its considerable discretion by selecting a sentence of 121 months' imprisonment.
The record in this case includes evidence in aggravation and mitigation. As the district court observed in its presentencing order, a court reasonably could view Deegan's offense as "unusually heinous, cruel, and brutal," and deserving of harsh punishment. She left a newborn baby alone in a basket in an empty house without food and water for two weeks until the child died. Deegan countered with testimony from an expert who believes, among other things, that women who commit "neonaticide" are unlikely to reoffend, and that harsh punishment of such an offender is unlikely to deter others from committing the same offense. Deegan also presented evidence of her troubled personal history and family circumstances, and of course we share our dissenting colleague's condemnation of violence against American Indian women.
Deegan's mitigating evidence convinced the district court that a sentence of more than ten years, which the court had contemplated at the time of the guilty plea, was greater than necessary to satisfy the statutory purposes of sentencing. But we are firm in our view that the district court did not abuse its discretion by refusing to impose a more lenient sentence. Whatever the deterrent effect of this sentence, general or specific, and whatever Deegan's personal history, the court was entitled to consider the need for the sentence imposed to "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). The district court was justified in saying that it could not "ignore the fact that there was [635] an innocent life that was lost," and that there was a "need to ensure that justice is done." The court believed that justice in this case "lies between the extremes of public opinion," and that may be so. There likely are those, like Deegan's expert, who believe that a term of imprisonment is unnecessary, and there may be others who feel that no term of imprisonment is too long for one who murders a helpless infant in this manner. We need only determine whether the district court's middle ground is a permissible choice. Applying a deferential abuse-of-discretion standard, we conclude that the sentence of 121 month's imprisonment is reasonable with regard to § 3553(a).
B.
Our dissenting colleague contends that Deegan's sentence is unreasonably long, and that we should direct the district court to impose a shorter term of imprisonment. We believe that such a disposition would be inconsistent with the substantial deference now owed to the judgments of the sentencing courts. Cf. United States v. Burns, 577 F.3d 887, 896 (8th Cir.2009) (en banc) (Bright, J., concurring) (asserting that Gall "puts the discretion at sentencing in the district court, just where it should be, with due regard for the guidelines and the statutes relating to the goals of sentencing. Appellate courts are not sentencing courts."). The guidelines are advisory only, and we "must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard." Gall, 552 U.S. at 41, 128 S.Ct. 586. The question is not whether the former mandatory guideline system would have called for a downward departure below the mandatory guideline range, cf. post, at 647-48, but whether the district court's sentence of 121 months' imprisonment is reasonable in light of the statutory considerations described in § 3553(a).
To support its conclusion that the district court's chosen sentence was unreasonably harsh, the dissent cites a case involving a student at North Dakota State University ("NDSU") who was prosecuted in North Dakota state court and sentenced to probation. The record of this case includes almost nothing about the NDSU case. Defense counsel stated that his summary, recounted by the dissent, post, at 657, was drawn from a newspaper article. The district court surely did not abuse its discretion by failing to conform Deegan's federal sentence to a North Dakota state court case about which no evidence was presented.
We disagree, moreover, with the dissent's contention that the district court should have considered the "disparity" between Deegan's sentence and the sentence that may have been imposed if Deegan, like the NDSU student, had been prosecuted in state court. Post, at 656-57, 657-58, 660-61. This argument contradicts the well-settled proposition that "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6), refers only to disparities among federal defendants. It would have been error for the district court to consider potential federal/state sentencing disparities under § 3553(a)(6). United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir.2006) ("Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after Booker."); United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) ("If, at the time of sentencing, federal courts were to take into consideration a potential state sentence based upon similar state-charged offenses, [636] the Sentencing Commission's goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered.").[4]
* * *
For the foregoing reasons, we conclude that the district court did not commit plain procedural error, and the court's sentence of 121 months' imprisonment is not substantively unreasonable with regard to 18 U.S.C. § 3553(a). The judgment of the district court is affirmed.
BRIGHT, Circuit Judge, dissenting.
I respectfully dissent.
This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev'd and remanded to 327 Fed. Appx. 93 (10th Cir.2009).
In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.[5]
For reversal, the dissent relies on the following Supreme Court cases: Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d [637] 392 (1996), and the holdings in United States v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir.2008), and United States v. Greene, 513 F.3d 904 (8th Cir.2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (discussing and commenting on sentencing procedure and stating the greatest respect to variance from guidelines when particular case is outside the "heartland").
I.
SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW
A. Summary of Contentions
Ms. Deegan's crime consisted of a special sort of homicide called "neonaticide," well documented in medical and legal literature, which describes the conduct of a parent, ordinarily the mother, who is often suffering from depression or other mental illness causing the death of an infant child within twenty-four hours of birth.
First, Ms. Deegan's conduct as neonaticide does not now, nor has it ever, come within the "run-of-the-mine" guidelines for second-degree murder, the charge to which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this case fell within the second-degree murder guidelines. Thus, the sentence imposed was procedurally gross error.
Second, the district court presumed that the guidelines were reasonable. This is plain error.
Third, because this case is outside the heartland of second-degree murder cases, the district court's 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this case required imposition of a sentence completely apart from the guidelines and under § 3553(a). This the district court did not do.
Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan's sentence is substantively unreasonable. The district court's approach to sentencing served to elevate a guidelines sentence above an individualized assessment of the facts and circumstances of this case. Each error compounded the next one and these mistakes require reversal and remand.
Finally, the failure to follow proper sentencing procedures and methodology led to a highly excessive sentence for Ms. Deegan. Her crime requires a different approach than taken by the district court and approved by the majority.
B. Standard of Review
I express my disagreement with the majority's application of plain error in reviewing this sentence. In my view, defense counsel preserved the errors argued on appeal.
The majority asserts:
On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial [638] proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
Maj. op. at 629.
Further, the majority reviews the following under the plain error standard: (a) the district court's failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to "this type of crime." Id. at 632-33.
Comparing the sentencing transcript with Ms. Deegan's brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor's recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, "The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56 (emphasis added).
The contentions raised on appeal, see Appellant's Brief at 19-24, that the sentence was "unreasonable," "greater than necessary," and that a guideline sentence should not apply to Ms. Deegan, were the same arguments raised before the district court.
Defense counsel should not need to say more to preserve error in a criminal sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in support of that recommendation. When defense counsel asserted that the prosecutor's recommendation called for a sentence that was flawed and excessive, and requested a lesser sentence, the sentencing issue should be considered fully preserved. See Rita, 551 U.S. at 345 (error raised), 351, 127 S.Ct. 2456 (sentencing procedures discussed); but see United States v. Bain, 586 F.3d 634 (8th Cir.2009).
To state that matters raised by Ms. Deegan should be considered as plain error is incorrect. But in any event, the procedural and substantive mistakes here are great and require reversal under any standard of review-plain error or preserved error.[6]
[639] As will be discussed more fully, the prosecutor mistakenly told the sentencing judge:
The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.
Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that principle in imposing a guideline sentence of ten years and one month (121 months) imprisonment, echoing a resounding "yes" to this incorrect advice as the court said the guidelines are for people like you who "commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59. And further adding, "I'm required to impose those guidelines. . . ." Id. Such statements imply more than a presumption that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists plain error in sentencing procedure leading to an excessive, improper, and unfair sentence. See Alvizo-Trujillo, 521 F.3d at 1018.
II.
BACKGROUND
To understand the errors in sentencing, this case requires a full accounting of Ms. Deegan's life. All of the facts discussed below were before the district court at the sentencing hearing and were not disputed by the government.[7]
A. Childhood Abuse
Ms. Deegan's life is marked by a history of extensive and cruel abuse. Her alcoholic father beat her on an almost daily basis and dominated every aspect of life in the Deegan family. Ms. Deegan reported having out-of-body experiences during the beatings, as if she was watching herself being assaulted from outside of her body. Some of the beatings were so severe that her father kept her home from school to avoid reports to Child Protective Services. She and her siblings were eventually removed from her parents' house due to the abuse, placed in a variety of foster homes, and periodically returned to her parents' house. While in foster care, Ms. Deegan was separated from her siblings where she experienced physical abuse from some of her foster family members. In conversation with Dr. Resnick, Ms. Deegan said, "I think I will be forgiven [by my maker]. I've lived my hell throughout my childhood." Add. 2, p. 12 (Resnick Report).
Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of age, her father's drinking buddies began sexually abusing her. By age nine, five or six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the perpetrators held her head under water several times to make her submissive and threatened her so she would not disclose the abuse.[8] At age eleven, the sexual [640] abuse ended when Ms. Deegan finally disclosed the abuse to her mother. Her father responded by beating her for being a "slut and allowing it to happen." Add. 2, p. 5 (Resnick Report).
Ms. Deegan spent much of her childhood caring for and protecting her six younger siblings. Her siblings reported that she frequently suffered physical abuse in their stead. As an adult the abuse continued and Ms. Deegan protected her siblings from her father's alcoholic, depressive, and abusive states. On one occasion, her father attacked her while she was pregnant with her second child. She jumped through a window to escape. Add. 2, p. 7 (Resnick Report).
B. Abuse from Shannon Hale
At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr. Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for thirty days to receive assistance for the domestic violence she had endured. She bore four children fathered by Mr. Hale, including the infant victim in this case.
After Ms. Deegan's third child was born, she became depressed. At this time in her life, Mr. Hale was physically abusing her two to three times per week, forcing her to have sexual intercourse with him, and refusing to care for their children.[9] He was not present at any of the births or to take Ms. Deegan home after the deliveries of the children. Mr. Hale continued abusing Ms. Deegan throughout their relationship, including during her pregnancies. Prenatal care records document that two days before she delivered their third child, Mr. Hale choked her and threw her onto gravel, causing injuries that persisted for several months.[10]
Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he repeatedly assured her that he would reduce his drinking and stop abusing her. Ms. Deegan reported that she sometimes went to live with her parents when the abuse was most severe, but then her father would physically and verbally abuse her. Ms. Deegan also explained that she did not feel that she could leave Mr. Hale because of her relationship with his mother. Ms. Deegan reported that Mr. Hale's mother "seemed to make things okay," caused her to feel safe, and encouraged her to stay with Mr. Hale for the children's sake. Ms. Deegan feared that if she left Mr. Hale, his mother, a prominent member of the Indian community, would acquire custody [641] of her children.[11]
When Ms. Deegan learned she was pregnant with a fourth child (the child victim), she did not believe she was really pregnant. Ms. Deegan reported she had not developed a plan for coping with the birth of a fourth child because she had put the pregnancy out of her mind. She had previously suffered three miscarriages. She reported feeling so depressed that she could barely take care of herself and her three children.
Ms. Deegan's state of despair and depression was not merely the result of the physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan sustained herself and her family on food stamps and whatever money she could acquire to provide food for her young children: ages one, two, and five. When Ms. Deegan obtained any money, Mr. Hale took it and bought methamphetamine.
Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the homicide of her fourth child:
1) Ms. Deegan was raised in a home in which she saw her father repeatedly beat her mother. This aberrant model of marriage was all she knew.
2) Ms. Deegan feared that if she left Shannon Hale she would lose her relationship with the Hale family.... Irene Hale encouraged her to stay with Shannon so her children would have a father.
3) Ms. Deegan had virtually no financial resources. Shannon Hale used any available money for his alcohol and methamphetamine addiction. Irene Hale at least made sure that Ms. Deegan had groceries so she could feed her daughters and herself.
4) Based on Ms. Deegan's foster care experience, she knew that leaving one family situation sometimes resulted in a worse situation rather than an improvement.
5) As is common in men who batter their wives, Shannon Hale told Ms. Deegan that he would not assault her again and promised to control his drinking and use of illegal drugs.
6) Ms. Deegan did not have a viable alternative to staying with Shannon Hale. If she took her daughters to live in her parental home, she and her daughters would be subjected to physical and emotional abuse by her father. No shelter for battered women was available in her area.
7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who enjoyed an excellent reputation in the community, would take her daughters away from her.... Caring for her three daughters was the most important thing in her life. She feared that if Shannon Hale attempted to raise her three young daughters, they would not be safe because of his methamphetamine addiction and his demonstrated propensity for physical abuse.
[642] 8) Ms. Deegan feared that if she sought counseling for her marital problems, she might lose her daughters' custody.
9) On the prior occasions when Ms. Deegan sought help from individuals and institutions, they failed to assist or protect her.
Add. 2, p. 20-21 (Resnick Report).
C. The Birth Circumstances
On October 20, 1998, at twenty-five years of age, alone in her mobile home with her three children, Ms. Deegan went into labor with her fourth child. She endured the labor alone, did not tell anyone she was in labor, and delivered the child herself. She reported not feeling anything physically from the labor and that she had assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and fed her child. She then put clothes on him, placed him in a basket, and left him in the home alone. When asked why she left her child in the home alone, she replied:
I couldn't take anymore. I couldn't handle it. I had everything on my shoulders. I couldn't even help myself. I had nobody to help me. I had no job, no nothing. I had all my babies to care for, a welfare mom. I had the feeling of being worthless. What could I do? I was overwhelmed and depressed. I didn't want to live through any of it anymore. I didn't want to be there anymore, as a spouse, as a mother, as a daughter.
Add. 2, p. 11 (Resnick Report).[12] Ms. Deegan returned to her home approximately two weeks later. Ms. Deegan put her son's body in a suitcase and placed the suitcase in a ditch near her home. The body was discovered approximately one year later.
With an understanding of the background of Ms. Deegan and the circumstances surrounding the infant's death, I turn to a discussion of neonaticide.
III.
NEONATICIDE
Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the topic of parents causing the death of their children. He has written nearly 100 articles, several on neonaticide and infanticide, and frequently presents and lectures on this subject. Every year he teaches a course on neonaticide for the American Psychiatric Association. He is considered the foremost neonaticide expert in this country.
As defined by Dr. Resnick:
[N]eonaticide is simply the killing of a newborn infant on the first day of life. It's actually a term that I coined in an article I wrote in 1969 where I was distinguishing that type of killing of a baby, which has very different characteristics, from the killing of a baby who is older or a child. And so neonaticide has universally been accepted now as a [643] particular phenomenon when the baby is killed the first day of life.
Sent. Tr. 16.
Dr. Resnick and other scholars explain the circumstances that lead to this tragic crime. Such a mother is often in an overwhelming state of desperation at the time of her infant's birth and lacks adequate resources to mentally handle the situation of delivering a child.[13] She often conceals and denies her pregnancy, lacks insight into the situation, shows poor judgment, is cognitively immature with limited intelligence, and lacks sufficient coping skills.[14] "[The] commonly reported profile [of a homicidal mother] describes a woman usually in her twenties, who grew up or currently lives in poverty, is under-educated, has a history of abuse (both physical and sexual), remains isolated from social supports, has depressive and suicidal tendencies, and is usually experiencing rejection by a male lover at the time of the murders."[15]
"Although the majority of women who commit neonaticide do not have any longterm psychological pathologies, it is likely that often they experience abnormal mental functioning during their pregnancies."[16] "During a homicidal episode, therefore, a mother may view a child as a mere extension of herself rather than as a separate being. A mother's suicidal inclinations may often transform into filial homicide. In other words, killing her children may be much like killing herself."[17]
In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms. Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He diagnosed Ms. Deegan with suffering or having suffered from the following three psychiatric disorders:
Major Depressive Disorder, recurrent, severe, without psychotic features at the time of the homicide, now in partial remission.
....
Posttraumatic Stress Disorder, chronic. This diagnosis is supported by Ms. Deegan's history of exposure to multiple traumatic events as a child of physical and sexual abuse. At the time she had intense feelings of helplessness, horror, and the fear of dying....
Dysthymic Disorder
This diagnosis is based on the fact that during Ms. Deegan's childhood she had a depressed mood for most of the day for more days than not for several years. Her depression was manifested by overeating, insomnia, low self esteem, and feelings of hopelessness.
Add. 2, p. 13 (Resnick Report). Dr. Resnick explained that at the time Ms. Deegan delivered her infant, she was severely depressed, overwhelmed by the state of her life, and "simply did not have the psychological resources to care for a fourth child." Sent. Tr. 36.
Dr. Resnick further testified that women who commit neonaticide are unable to cope with the pregnancy and endure great pain [644] at the expense of keeping the child's birth a secret:
[Such women] are willing to put themselves through a great deal of anguish. They often will deliver the baby with no anesthesia, no pain relief, no emotional support. They'll stifle their screams, and that is how intensely important it is for them not to have their family, who may be in the house, actually know that they're pregnant and having a baby.
Sent. Tr. 33.
The manner in which Ms. Deegan delivered her child conforms with other women's acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and kept the birth a secret. She coped with the pain of childbirth by dissociating.[18] Dr. Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by having out-of-body experiences, she used dissociation to separate herself from the intense pain of delivering the infant.
Dr. Resnick also addressed Ms. Deegan's belief that she was not pregnant. Dr. Resnick explained that, as is common in cases of neonaticide, Ms. Deegan neither planned for the killing of the infant or for the caring of the infant. As he succinctly stated, "They just put it out of their minds." Sent. Tr. 28-29. Dr. Resnick further testified that in Ms. Deegan's case, it was particularly easy for her to convince herself that she was not pregnant because she had previously miscarried three times and had experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick explained that even though Ms. Deegan may have known she was pregnant, she may have made the assumption that she might miscarry or just did not accept that she was truly pregnant.
Dr. Resnick also testified that the manner in which Ms. Deegan carried out the neonaticide indicated that it was an impulsive act. He explained, unlike one who hides evidence of a crime, Ms. Deegan left her infant in a place where he "might have been discovered and she would be caught." Sent. Tr. 29.[19] Dr. Resnick explained that such conduct is not what one would expect from someone who is planning to take another's life and seeks to "get away with it." Sent. Tr. 29. He further explained that despite her psychological inability to cope with raising the child, Ms. Deegan still sought to keep the infant close to her home because of her emotional attachment to him.[20] Dr. Resnick reasoned, "had it been other circumstances, [Ms. Deegan] would have cherished the baby." Sent. Tr. 30.
Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support system from her family and community. She lived in a mobile home in a rural area of North Dakota. She lacked the financial resources to leave her abusive and troubled family life. Ms. Deegan did not have outreach services with which she could have received assistance, nor were there shelters for victims of domestic violence. At the time of her actions, North Dakota did not yet have a Safe Haven Law, whereby parents could bring a child for which they felt unable to provide care.[21] Further, individuals and institutions had [645] consistently failed Ms. Deegan when she needed help.
It is apparent from Ms. Deegan's background and the expert testimony in this case that every adverse factor that may play some role in neonaticide was suffered to an advanced degree by Ms. Deegan. As the dissent shows below, the district court made two critical errors in evaluating the record. First, the court thought the guidelines applied to this case. Second, the court recognized this testimony but failed to properly apply this important evidence in imposing its sentence.
IV.
REVIEW OF SENTENCING
A. Inapplicability of second-degree murder guidelines
Ms. Deegan's crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.
First, consider the Sentencing Reform Act of 1984 and the goals of the United States Sentencing Commission. It is axiomatic that the Sentencing Reform Act, through the imposition of mandatory guidelines, worked a sea-change in federal sentencing. But even then, Congress recognized that the goals of certainty and uniformity must in some instances yield to unique circumstances:
These provisions introduce a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing.
S.Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis added). Likewise, the Sentencing Commission instructs that:
The sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range.
U.S.S.G. ch.1, pt. A, intro cmt. n. 2 (1997) (emphasis added). Thus both Congress and the Commission contemplated that not every crime would fall within the ambit of the guidelines.
The presentence report is lamentable in this regard. Despite the seemingly obvious fact that neonaticide is an unusual crime in federal court, the presentence report makes no mention that this is an "atypical" case. Even more distressing, the presentence report fails to indicate much in the way of the abusive circumstances Ms. Deegan faced during her childhood and at the time she gave birth to the infant victim. These circumstances, detailed so graphically in this dissent, were simply not a part of the presentence report, which asserted that no factors warranted departure from the guidelines.
Far worse than the omissions from the presentence report were the prosecutor's statements at sentencing, which lack any basis in fact or law, about the applicability of the guidelines to Ms. Deegan's conduct. At sentencing, Ms. Deegan's counsel requested [646] a non-guideline sentence. But the prosecutor mistakenly informed the district court that the Sentencing Commission took this type of crime into consideration in adopting the guidelines for second-degree murder:
MR. HOCHHALTER: Yes, Your Honor. Your Honor, the United States Sentencing Commission was in existence back as early as the late eighties and certainly at the time of this event, and certainly at the time of events across the country where, as Dr. Resnick has pointed out, this has been occurring for many years. The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.
Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged, to no avail, that a guideline sentence was far greater than necessary.
Despite defense counsel's request, the district court determined—entirely without precedent—that the guidelines apply to "this type" of crime and that it believed application of the guidelines was "reasonable." The court stated:
Well, I have carefully reviewed the presentence report, and I adopt the factual findings and the sentencing guideline calculations spelled out in that presentence report that establish that this offense carries a total adjusted offense level of 32, a criminal history category of 1.
....
We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that—in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.
In this case the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998.
....
Pursuant to the Sentencing Reform Act of 1984, it's my judgment, Ms. Deegan, that you shall be committed to the custody of the Bureau of Prisons to be imprisoned for a period of 121 months. I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable.
Sent. Tr. 55, 59, 60-61 (emphasis added). Notwithstanding the district court's belief, no basis exists to place neonaticide within the mine-run guidelines for second-degree murder.
The foundation statements for application of the sentencing guidelines in this case amounted to error of great proportions. Once Dr. Resnick's report became known, a modicum of research by any of the persons engaged in the sentencing process would have easily disclosed that the guidelines did not contemplate crimes such [647] as Ms. Deegan's.[22] An obligation to inform the judge of the applicable sentencing procedures and law rested on the prosecutor.
In the seminal case of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),[23] the Court explained that the then-mandatory guidelines carve out a "heartland" of typical cases and the Court provided an approach for delineating which cases fall within that heartland. Koon concerned the well-publicized conduct of Los Angeles police clubbing an arrestee, Rodney King, with their police batons. Id. at 86-87, 116 S.Ct. 2035. In Koon, the applicable guidelines called for a sentencing range of 70 to 87 months' imprisonment for the convicted police officers. Id. at 89, 116 S.Ct. 2035. The district court granted a downward departure for several reasons, which the Ninth Circuit rejected. United States v. Koon, 34 F.3d 1416 (9th Cir.1994). The police officers petitioned for certiorari to the United States Supreme Court. Koon, 518 U.S. at 91, 116 S.Ct. 2035.
In the process of reviewing the sentence, the Court explained the difference between ordinary or typical guideline cases and the "unusual" one:
A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.
....
The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
....
The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure.
Id. at 92-94, 116 S.Ct. 2035 (internal citations omitted) (emphasis added).
The Supreme Court noted that because of Mr. King's provocative behavior, the guidelines should not apply. Id. at 105, 116 S.Ct. 2035. The Court quoted the district court's analysis of heartland cases:
However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force.
[648] The two situations are clearly different. Police officers are always armed with `dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such `heartland' offenses and the case at hand.
Id. at 102-03, 116 S.Ct. 2035 (quoting United States v. Koon, 833 F.Supp. 769, 787 (C.D.Cal.1993)).
Applying this rationale, whether Ms. Deegan's conduct fell outside the heartland and therefore was not contemplated by the sentencing guidelines depends on whether her conduct significantly differed from the norm. "The norm" is certainly not what we have here-an American Indian woman so beset by the serious problems in her life she cannot cope with another child, cannot think with logic, and believes she has no alternative but to run away and abandon her newborn child. Tragic yes, typical no!
Is that just this writer's assumption? What is in and what is out of the heartland? To determine whether the Commission contemplated neonaticide by a mother in its guidelines for second-degree murder, this writer inquired of the Sentencing Commission. The response from Glenn Schmitt, Director of the Office of Research and Data for the United States Sentencing Commission, is of great interest:[24]
We reviewed 157,000 federal criminal cases sentenced since June 2006 (the date when our records became stored electronically, which enables us to review them more quickly than when they were stored off-site in paper). We found 605 cases in which the guideline providing for the highest punishment as either murder (2A1.1), 2nd degree murder (2A1.2), voluntary manslaughter (2A1.3), or involuntary manslaughter (2A1.4). Of these, the offender was a woman in 51 cases. We've gone back into each of the 51 cases and reviewed them in light of your inquiry.
....
In only one case did we find facts that meet the definition of neonaticide. In that case a 26-year-old mother gave birth to a child (her fourth) at home. She cleaned him, diapered[] him[,] dressed him, and fed him. She then placed him in a basket and left eh [sic] house with her other three children leaving the baby alone for two weeks. She testified that she knew the baby would die. When she returned and found him dead, she placed him in a suitcase and placed the suitcase in a ditch near her residence on an Indian reservation where it was discovered.
... As you can see from this analysis, cases like this are exceedingly rare in the federal system....
Mr. Schmitt's letter reflects that the Sentencing Commission was unable to locate another case of neonaticide besides the present case, which it described. Similarly, my research of non-habeas, federal appellate second-degree murder cases from [649] 1975 to the present discloses only one other clear case of neonaticide, with a drastically lesser sentence than that imposed on Ms. Deegan.[25]
Further, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), makes clear that the district court erred in imposing a guideline sentence. In Rita, the Court reaffirmed that the Sentencing Commission intended for the guidelines to apply to the typical case but not to cases outside the "heartland." See Rita, 551 U.S. at 351, 127 S.Ct. 2456 ("[The judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG § 5K2.0[.]"). As the Court further explained, in a run of the mine case, the "Guidelines [ ] seek to embody the § 3553(a) considerations, both in principle and in practice." Id. at 350, 127 S.Ct. 2456. Therefore, "[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general." Id.
Rita establishes that no neonaticide case was considered in developing the guidelines. The Court in Rita stated that the Commission employed an empirical approach when developing the guidelines by examining tens of thousands of sentences. Id. at 349, 127 S.Ct. 2456. The paucity of reported federal cases illustrates that neonaticide cases were not included in the sampling. Thus, a neonaticide case clearly falls outside the "heartland" for second-degree murder sentences. Moreover, because neonaticide is not accounted for by the guidelines, a guideline sentence is not "a decision that is fully consistent with the Commission's judgment in general." See id. at 350, 127 S.Ct. 2456.
When the prosecutor asserted, "[t]he United States believes that the Sentencing Commission took into account these types of events," Sent. Tr. 43, it is obvious that he had done no legal or other research on the matter. Yes, the Sentencing Commission examined second-degree murder cases when it formulated the guidelines for that offense. But that certainly does not mean the Commission contemplated neonaticide when formulating a sentencing range for second-degree murder offenses.
The prosecutor's incorrect statement became an error of law when the judge agreed that a guideline sentence needed to be applied. The judge believed that the guideline sentence in this particular case was "reasonable" because "[the guidelines] are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases." Sent. Tr. 59. The judge stated that the guidelines apply "for people that commit this type of crime with the same type of criminal history that you [Ms. Deegan] have." Id. (emphasis added). But this conclusion is wrong.
[650] In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court affirmed the sentencing principles described in Rita.[26] The Court made clear that a district court should begin all sentencing proceedings by correctly calculating the applicable guidelines range and that the guidelines apply in "mine run" cases. Gall, 552 U.S. at 40, 49, 128 S.Ct. 586. This case falls so far from the heartland of guideline sentencing that it is a complete stranger to crimes ordinarily charged and considered as second-degree murder. As such, the district court significantly erred in sentencing when it concluded that the guidelines provided a "reasonable" sentence for neonaticide.
The inapplicability of the second-degree murder guidelines to this case requires reversal and remand. The district court should not have applied a guideline sentence because this is not a "mine run" case. Instead, the district court should have focused significant attention on the § 3553(a) factors. As detailed in the following section, Rita explains that the appropriateness of a district court's § 3553(a) analysis depends on the circumstances of the case. 551 U.S. at 356, 127 S.Ct. 2456. The circumstances here require a detailed and thorough analysis of the statutory sentencing factors, which the sentencing judge failed to do.
The majority reasons that Ms. Deegan's sentence is proper even if the case is not a run-of-the-mine case. Maj. op. at 634. That approach is wrong. Ms. Deegan's crime is not a run-of-the-mine case. The district court erred at the first step of the sentencing procedure. See Rita, 551 U.S. at 350-51, 127 S.Ct. 2456. Based on Rita and Gall, the district court erred in sentencing Ms. Deegan, and her sentence must be vacated.
B. Presumption of Reasonableness
The district court stated it was "required" to impose the guidelines that were in effect in 1998. Sent. Tr. 59. This amounts to a presumption and more that the guideline is reasonable. The further comment, "I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable[,]" in effect presumed the guidelines sentence was reasonable. Sent. Tr. 61. Such an approach is plain error in this circuit. See Alvizo-Trujillo, 521 F.3d at 1018 (stating that language that such a presumption applies is "a significant procedural error"); Greene, 513 F.3d at 907.
Rita makes clear that "[i]n determining the merits of these arguments [that the guidelines should not apply], the sentencing court does not enjoy the benefit of a legal presumption that the guidelines sentence should apply." 551 U.S. at 351, 127 S.Ct. 2456 (emphasis added). Further, as stated in Greene, the district court's mandate is not to impose a "reasonable" sentence, but "to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of § 3553(a)(2)." 513 F.3d at 907 (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)).
C. Section 3553(a)
I dissent from the majority's conclusion that the district court did not err in considering the 18 U.S.C. § 3553(a) factors.
[651] In discussing sentencing procedure, the Court in Rita observed that the sentencing court must give reasons for the sentence "in the typical case." 551 U.S. at 356-57, 127 S.Ct. 2456. Importantly, the Court adds:
The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.
....
In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.... Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.
Id.
As explained, Ms. Deegan's crime was not "the typical case." Therefore, the district court could not just rely upon the Sentencing Commission's reasoning that the guideline sentence is a proper one. Instead, the district court needed to consider all of the § 3553(a) factors and make an individualized assessment based on the facts presented. Gall, 552 U.S. at 49-50, 128 S.Ct. 586.
The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
....
(5) any pertinent policy statement—
....
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). With respect to § 3553(a), the sentencing judge made these comments at the sentencing hearing:
The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a). And I am very familiar with each and every one of those sentencing factors that I'm required to consider in every case. And believe me, I've carefully considered them in this case.
....
In this case I have spent considerable time reflecting not only on the presentence report, but on the sentencing memorandums of the parties. I've carefully [652] reviewed Dr. Peterson's psychological evaluation that I ordered. I've carefully reviewed Dr. Resnick's report. I've read it over at least three times. I've read every letter that was submitted in this case, letters of support. I have reviewed the DVD that was shown here in the courtroom several times. I've considered the testimony of Dr. Resnick today and the arguments of counsel.
And I was very impressed with Dr. Resnick's report and his testimony here today. To me it was helpful and insightful, and I have real respect for his opinions. He has—he's a nationally renowned specialist who has testified in some of the most famous cases that we have experienced here in the United States. And his report was a very reasonable, insightful report, and I have far better insight into what went on in this case after reviewing Dr. Resnick's report than I ever had at the time that I took a change of plea from Ms. Deegan.
And I certainly have a much better understanding today as to all the contributing factors and stressors that existed in her life back in 1998. And I know that you haven't had an easy life, Ms. Deegan. I know that it was plagued with physical abuse and sexual abuse, both at the hands of your father and the hands of the father of your children.
....
And believe me, I have real compassion for you and your family and what you have gone through....
But I also need to ensure that justice is done, and I don't know if anybody knows what justice is in this case. I reflected upon Mr. Hochhalter's [the prosecutor's] comment in his brief that justice lies between the extremes of public opinion, and that's probably a pretty fair assessment of where things lie in this case.
But after careful review of this entire record, I have in this case—and I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentence range that's been provided for in the sentencing guidelines in this particular case is reasonable....
Sent. Tr. 56-59.
The majority finds this a satisfactory analysis of the § 3553(a) factors. I do not. The district court demonstrates familiarity with the sentencing record, but offers no analysis of the record as it relates to the statutory factors.
To be sure, the district court states, "I have carefully considered all of the factors." But this statement does not constitute an "explanation" for why a ten-year sentence is sufficient but not greater than necessary. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (stating a failure to "adequately explain" a chosen sentence is significant procedural error). A "statement of reasons" explaining a particular sentence is not equivalent to stating "I have considered all of the factors." As explained in Rita, "[i]n the present context [§ 3553(a) analysis], a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." 551 U.S. at 356, 127 S.Ct. 2456.[27] [653] In my view, the district court never justified its sentence under § 3553(a). It becomes so very plain that the district court made the choice of a guideline sentence. However, it must follow that if the guidelines do not apply to Ms. Deegan's non-heartland crime, the court needed to explain its sentence with respect to every factor under § 3553(a) in order to arrive at a proper sentence. The district court's "reasons" for imposing this sentence are wholly inadequate.
The district court states, "I cannot ignore the fact that there was an innocent life that was lost, but believe me, I understand why you took the steps that you did...." Sent. Tr. 60. This seems to be a "reason" for the sentence. But every neonaticide causes the death of a newborn child. That statement alone cannot justify this ten-year sentence.
The district court states, "I don't know if anybody knows what justice is in this case," but justice is reflected by the brief of the prosecutor that "justice lies between the extremes of public opinion...." Sent. Tr. 58. Wrong! Public opinion should not factor into a sentence. The factors are those in section 3553(a). Public opinion is not disclosed by the record in this case.
The district court states it was "obligated to apply the [1998] guidelines," and also noted that if it applied the 2008 Guidelines in effect at the time of sentencing, Ms. Deegan's sentence "would be in the range of 19-and-a-half to 24-and-a-half years." Sent. Tr. 55, 59-60. Wrong! The faulty underlying premise of both comments is that the guidelines contemplated neonaticide.[28]
The other "reason" offered by the district court for its sentence is the belief that a guideline sentence is reasonable. This is simply not supported by the law. As previously discussed, this is not a mine-run case to which the second-degree murder guidelines apply. In other words, the district court could not simply "rest[] his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence...." Rita, 551 U.S. at 357, 127 S.Ct. 2456. Unfortunately, the district court did exactly that in sentencing Ms. Deegan.
But even more erroneous, in finding the guidelines "reasonable," the district court stood sentencing procedure on its head. As explained in Greene, a district court's job is not to impose a "reasonable" sentence. 513 F.3d at 907. The district court's job is to impose a sentence sufficient but not greater than necessary to comply with the purposes of § 3553(a). Id. Reasonableness is the appellate standard of review in judging whether a district court has accomplished that task. Id. Analysis of the § 3553(a) factors demonstrates the unreasonableness of Ms. Deegan's ten-year sentence.
1. Circumstances of the offense and characteristics of the defendant
This dissent amply describes the nature and circumstances of the offense and the history and characteristics of the defendant. This factor favors leniency. The district court never explained how the nature and circumstances of the offense and history and characteristics of Ms. Deegan supported its determination that a ten-year [654] sentence was sufficient but not greater than necessary.
2. Deterrence and recidivism
As to deterrence, Dr. Resnick testified that incarcerating Ms. Deegan would not likely deter other individuals from committing neonaticide. He explained that deterrence was unlikely for several reasons, including:
[T]hat since Ms. Deegan's crime, safe haven laws have been passed in all 50 states, and now if a woman feels overwhelmed by a baby, whether she's a teenager or whatever, she can drop that baby off at a hospital or a police station, no questions asked, and not have to kill the baby. And there have been more than a thousand drop-offs since those laws have begun to be passed in 1999.
Secondly, when a women [sic] commits neonaticide, most of the cases it is a teenager. Actually, the mean age for neonaticide in the United States is age 19, and most of these young women are... willing to put themselves through a great deal of anguish.
....
And women who are willing to put themselves through that I don't think are going to be significantly influenced by whether someone is sentenced to ten years or two years or probation.
Sent. Tr. 33-34.
As to recidivism of Ms. Deegan, Dr. Resnick stated:
Ms. Deegan presents an extremely low risk that she would commit any further conduct which was criminal in nature. With regard to harming a future baby, that's a nonissue because Ms. Deegan has had a tubal ligation. She's not going to have any more babies.
With regard to other criminal conduct, Ms. Deegan has been a law-abiding citizen her entire life, has no juvenile offenses, no adult offenses, not an alcohol or drug abuser, which is associated with criminality, has shown considerable remorse for what she has done, and is no longer in the desperate situation that she was in October 1998, where she was abused, overwhelmed, did not feel that she could care for the baby, didn't feel she could keep her babies—her three existing children safe if she was overwhelmed with another baby.
And the one follow-up study which has been done in women who have killed newborn children shows that most of them go on to marry and be good mothers, and that suggests that this is a crime which is based upon circumstances as opposed to bad character in the perpetrator.
And in Ms. Deegan's case, we have an example of where she has already in the nine years between the act and being brought to trial, has already demonstrated the quality of being a good mother, so rather than have to prognosticate, we have a nine-year period where we can show that she has got her life together, been a good mother, and not been a risk to the community.
Sent. Tr. 31-32. Dr. Resnick added:
[In spite of the abuse to Ms. Deegan], she has been a devoted, caring mother and made every effort to protect her children, raise her children to be good citizens so that—you know, there are occasions when there's what's called a cycle of violence where children who are abused go on to abuse their children. Not all mothers do that, but some do, and Ms. Deegan has taken a protective role and made sure that her children are well cared for.
Sent. Tr. 32.
As this testimony shows, the evidence before the district court overwhelmingly [655] established that incarcerating Ms. Deegan would not deter others from committing neonaticide and that Ms. Deegan would not commit future crimes.
As with the first sentencing factor, the district court never addressed what role deterrence and recidivism played in its ten-year sentence. Thus appellate review seems limited to noting that (1) this factor favors leniency; and (2) the district court never expressly discussed this factor.
3. Seriousness of offense
Of course neonaticide is a serious offense-as is any offense causing loss of life. Dr. Resnick provided some interesting background as to how other governments look at neonaticide.
There are 26 countries that have a particular law called an infanticide statute. This exists in Canada. It exists in England. It exists in Australia. And these countries have recognized that a woman taking a young baby is sometimes due to psychiatric factors, and finding them guilty of murder just does not comport with their sense of justice. So the persons found guilty of infanticide, rather than murder, have the equivalent sentence of voluntary manslaughter, rather than murder. And in England, most of these women who are found guilty of infanticide are placed on probation. They're not considered a danger to the community.
Sent. Tr. 30.
Despite all of the reasons given by defense counsel, the prosecutor and court's sole reason (besides reliance on the guidelines) for imposing a ten-year prison sentence was the tragic death of the infant. While it is tragic that a life was lost, that is the nature of any neonaticide. That alone is not sufficient to justify this sentence.
4. Family ties
While the guidelines do not ordinarily consider matters such as family ties, such a consideration is permissible under § 3553(a). Rita, 551 U.S. at 364-65, 127 S.Ct. 2456 (Stevens, J., concurring). The defense presented and the court received as evidence a DVD relating to the Deegan family. In that presentation, Ms. Deegan's younger sister related that Ms. Deegan protected her small siblings against the vicious abuses which their father sought to inflict.
Also Ms. Deegan's children exhibited their Native Indian regalia made by Ms. Deegan. The youngest child described Ms. Deegan as smart, pretty, and elegant.
In her allocution, Ms. Deegan spoke of her children's needs for her:
I've written a letter I'd like to read to you. [Judge], with respect to the Court, my family and my community, I am humbly addressing you today asking for a downward departure from the sentencing guidelines, not for my own sake, but for the sake of my daughters. They are at the age where they need me most now. I have spent my life trying to protect them from all [ ] that I had to endure. They need me to guide them, to love them and help them get through this difficult time, and to continue to help them grow to be grown good women.
Sent. Tr. 54.
Instead of the prosecutor acknowledging that the children's needs can play a role in reducing a federal sentence, he justified the guideline sentence saying, "[T]he punishment that comes to those siblings as well comes at the hand of the defendant. Basically her choice is what has caused all of this." Sent. Tr. 53. With respect to these comments, I offer this observation as to the laying of blame. There is plenty of [656] blame to go around. Ms. Deegan's father is dead. But what blame should be placed on Mr. Hale who did not support the children he fathered and consistently abused Ms. Deegan? And what about the failures of society to assist Ms. Deegan in her travail?
When it comes to blame, Dr. Resnick's report needs to be recalled:
a) When Ms. Deegan reported being the victim of sexual abuse to her mother at age 11, she reasonably expected protection from further abuse. Instead, she received a beating from her father for "whoring."
b) After being removed from her parents by the Child Protective Service, Ms. Deegan reasonably expected protection from further abuse. Instead, she was later returned to her parents and suffered further physical abuse from her father. Furthermore, while in some foster homes, she was physically abused.
c) When Ms. Deegan became a foster daughter to Irene Hale, she reasonably expected to be safe from physical abuse. Instead, she was physically abused by Irene's son, Shannon Hale.
d) When Ms. Deegan participated in joint therapy sessions with Shannon Hale in his substance abuse treatment, she reasonably expected Shannon's behavior to improve. Instead, Shannon beat her for "running her mouth."
e) When Ms. Deegan filed for a restraining order against Shannon Hale, she reasonably expected protection. Instead, a court officer took Shannon home to their trailer drunk.
Add. 2, p. 21 (Resnick Report).
Indeed, the great improvement in lifestyle by Ms. Deegan after escaping her abusive home meant a better life for her family. Did the prosecutor or the district court give any weight to that accomplishment? No! Yet that factor lends strong support to a lenient prison sentence. See Gall, 552 U.S. at 59, 128 S.Ct. 586 (stating that the district court gave this factor "great weight").
5. Promoting respect for the law and avoiding disparity
A district court should consider whether a sentence promotes respect for the law and consider the need to avoid unwarranted disparity among defendants who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(2)(A) and (a)(6).
The sentencing record reveals that defense counsel informed the court of another neonaticide crime in the State of North Dakota, but committed by a young woman, off the Indian reservation and, thus, subject to North Dakota state laws. As the defense counsel described the case:
There was an NDSU student who gave birth to a child, wrapped the baby up, stuck the child under a bed, and then ultimately disposed of the child, very similar kinds of situations here. That person got three years probation. Now, granted, certainly there are always differences in every case, but my point, Your Honor, is that if this had happened perhaps off the reservation, the consequences or at least the potential consequences are significant. And in disparity situations. I don't think you can operate in a vacuum, that you're dealing simply with disparities in the federal system. I think you have to look at what goes on.
Sent. Tr. 51.
The prosecutor stated:
Your Honor, just to clarify, I think counsel suggested that [the][ ] case in Cass County was three years probation. [657] I'm wondering if it was three years prison term that was the sentence in that case. I'm not positive, but I believe it was a prison term.
Sent. Tr. 52-53.
Also, Dr. Resnick informed the court that women who plead guilty to neonaticide are "infrequently sentenced to more than three years in prison." Add. 2, p. 24 (Resnick Report). These are all state sentences and, as observed by the majority, ordinarily state sentences are not germane to showing disparities in sentencing.
But here, we ought to consider the difference in sentence between (1) Ms. Deegan, a woman living in North Dakota and generally subject to state and tribal laws, except as to some aspects of federal law because of her residency on an Indian reservation, and (2) a North Dakota woman who committed a neonaticide crime off the reservation.
As the court said in Gall, quoting with approval the reasoning of the district court:
the unique facts of Gall's situation provide support for the District Judge's conclusion that, in Gall's case, "a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing."
Gall, 552 U.S. at 54, 128 S.Ct. 586 (citations omitted).
This statement echoes the situation here. What respect should be given to federal criminal law which imposed a harsh punishment for this woman's crime on the reservation, when compared to the lenient sentence upon a woman off the reservation for this special crime of neonaticide? I submit that the sentence here promotes disrespect for the law and the judicial system.[29]
In this regard, a letter from Ms. Deegan's sister to the court before sentencing becomes relevant and significant:
Our family has endured depression, anxiety, and post-traumatic stress disorder [PTSD]. Our childhood home was a war zone; there were some good times of laughter and love, but one never knew when an attack of rage and violence was about to happen.
Our family has taken great lengths to reconcile the pain and scars that have been left on our souls. Understanding the intergenerational historical trauma of our American Indian Grandfathers and Grandmothers that came before us, has helped my family to forgive and love our father, knowing that he too suffered. Non-Indian people may not easily internalize this sense of loss and powerlessness so deeply ingrained by American Indian people still today. The cultural deprivations and discriminations of our people merely because of our heritage has contributed to the psychological deficits that Dana, at that particular low time in her life, was unable to overcome. I fear that these same cultural factors may also contribute to harsher penalties of an already oppressed woman.
....
She was then as she is now, only trying to survive while caring for her daughters. She has spent her adult life trying to protect her children from a life she had to endure. If Dana is sentenced to prison, it is yet another tragedy, this [658] time in the name of justice, that her daughters will be victims too.
R. at 29 (attachment to Defendant's Sentencing Memorandum, sealed in the district court) (emphasis added).
Reading this letter should give us all pause. How many of us can really comprehend the misery of Ms. Deegan's situation as described in this record? None of these matters made any difference to the district court when sentencing under the guidelines. I ask what respect should be given to this guideline sentence?
The sentence here is unjust, excessive, and treats a woman on the reservation disparately with a woman off the reservation. Does this disparity not indicate another example of unfair treatment of an American Indian living on a reservation?
In summary, with respect to § 3553(a) the district court committed several errors. The district court believed the that the guidelines were "reasonable" and that they applied to Ms. Deegan. Wrong! This is not a mine run case.
The district court's § 3553(a) analysis was wholly insufficient considering the circumstances of this case. The statute and the Supreme Court require a statement of reasons, which in this case was not satisfied by the district court's statement that it "considered" the statutory factors.
The district court expressly relied on the Commission's view of an appropriate sentence, but the Commission never considered neonaticide. Examination of the record in light of the § 3553(a) factors shows the substantive unreasonableness of Ms. Deegan's sentence.
Finally, the district court never explained how this ten-year sentence comports with the most crucial aspect of sentencing: that a sentence be sufficient, but not greater than necessary to comply with the purposes of § 3553(a). Instead, the court imposed an almost mechanical sentence based on its erroneous view that the guidelines applied to "this type of crime."
D. Guideline Sentence as Virtually Mandatory
The reader may wonder how an experienced prosecutor and a well-regarded district judge could err so grievously in the imposition of this sentence. Justice Souter's separate opinion in Rita may suggest the answer:
What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range.
Rita, 551 U.S. at 391, 127 S.Ct. 2456 (Souter, J., dissenting) (citations omitted).[30] Moreover, as Justice Stevens commented, "I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker." Id. at 366, 127 S.Ct. 2456 (Stevens, J., concurring).
I ask isn't that precisely describing the sentencing procedure and comments here?
The majority stresses discretion by the district court. Maj. op. at 634-35. But the sentencing judge did not exercise his discretion. He merely adopted the recommendation of the prosecutor for a guideline [659] sentence. Rather than consider the specific facts and circumstances in this case, the district court imposed a guideline sentence. This court addressed the limits of "discretion" in the pre-guideline case of Woosley v. United States, 478 F.2d 139 (8th Cir.1973) (en banc).
Woosley arose thirty-seven years ago when appellate courts almost never reviewed the district court sentence. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The relevant facts are as follows. A sincere and religiously motivated member of Jehovah's Witnesses had refused a conscientious objector classification in the Selective Service draft and had refused to report for induction. 478 F.2d at 140. The sentencing judge in Woosley recognized the defendant "as a fine young man." Id. However, the judge gave him the maximum sentence under the law (five years) pursuant to the judge's policy of always imposing the maximum penalty to men who refused induction into the military. See id. at 140, 143. That sort of sentence was imposed regardless of the underlying circumstances as to each defendant.
The Woosley court said, "we deal with a predetermined sentence resting upon a policy followed by the trial judge.... A mechanical approach to sentencing [that] plainly conflicts with the sentencing guidelines announced by the Supreme Court...." 478 F.2d at 143 (emphasis added) (citation omitted).
Here, rather than looking at the law espoused by the Supreme Court and truly considering what sentence was sufficient but not greater than necessary, the court imposed the guideline sentence. It blindly followed the government's belief "that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines...." Sent. Tr. 43. Interestingly, the district court observed that Ms. Deegan's life had not been easy and he expressed compassion for what she had gone through. But the judge disregarded the specific circumstances of her crime and imposed the guideline sentence. This case was out of the "heartland" and did not fall within the guidelines sentence structure. Despite that, the district court failed to exercise its discretion in imposing a sentence.
In Woosley, the court observed that the great majority of individuals committing a similar crime received probation, not a jail sentence. 478 F.2d at 147. Here the judge gave no consideration to the plea for a lenient sentence, even though that matter was brought to his attention by defense counsel and Dr. Resnick. The sentence in this case manifests a gross abuse of discretion.
The Woosley en banc court concluded the opinion with this language, which I suggest is very pertinent to this case:
We find it difficult to conceive of a situation offering more compelling circumstances to justify leniency than that in the instant case.
....
The broad and unreviewable discretion possessed by federal district courts in matters of sentencing does not extend to the meting out of punishment manifestly disproportionate to the nature of the crime and the character of the criminal.
Id. at 147-48. Although in a different time and relating to a different crime, the two cases have parallels.
Yes, this judge stands by the view that district courts should exercise discretion in sentencing. But that discretion is not unfettered. United States v. Burns, 577 F.3d 887, 897 (8th Cir.2009) (en banc) (Bright, J., concurring). The record here makes clear that the district judge exercised [660] no discretion but merely agreed with and adopted the government's recommendation and applied the guideline sentence. This amounted to grievous, gross error.
V.
REMEDY
A simple remand for resentencing will not do. This neonaticide crime is a novel one in the federal courts. As I have noted, I have never seen a crime as completely out of the "heartland" as this one. As such, this court should provide the district court with guidance. In Woosley, the circuit court remanded the sentence to the district court with special instructions, including one for the court to consider "changed family circumstances which may disclose additional considerations dictating leniency of treatment." 478 F.2d at 148. Moreover, pending disposition of the en banc appeal, this court released Woosley from prison on his personal recognizance. Id. at 140 n. 2.
In Ms. Deegan's circumstances, I suggest that (1) she be immediately released from prison pending disposition of this appeal and resentencing; (2) the district court reconsider the creation of a sentencing disparity between two North Dakota women who both committed neonaticide; and (3) the district court consider imposing a new sentence to time served in prison.
Regardless of the above suggestion, what judicial or societal harm can come from a remand? The process of remanding for resentencing goes on every day in the federal courts.
VI.
CONCLUSION
Ms. Deegan's case cries out for justice and a reversal. The guideline sentence for second-degree murder does not apply to her crime of neonaticide. Ms. Deegan has suffered enough. I will not put my imprimatur on this harsh sentence, which reeks with error in the sentencing process. Ms. Deegan has suffered immense cruelty at the hands of her father, his male friends, and the father of her children. Now her lifetime of travail becomes magnified by an unjust and improper prison sentence. Her sentence of ten years' incarceration rests on a misreading or ignorance of the law.
For almost the first time in a federal appeal, this court addresses the fairness of a sentence imposed on a woman on the Indian reservation whose prior life has been a "hell" and where the punishment ignores the needs of her children, who were the objects of her protection in committing a tragic crime.
In essence, the issue in this case is whether the district court imposed a sentence under § 3553(a). The majority says it did. Maj. op. at 633-34. I believe the answer is a resounding No! The problem with the majority's analysis is that the very words of the actors in the sentencing process seem to disagree.[31]
In mine run cases, the guidelines account for § 3553(a), see Rita, 551 U.S. at 350-51, 127 S.Ct. 2456, which lessens the need for extensive discussion of the § 3553(a) factors. The Sentencing Commission never incorporated the § 3553(a) factors into a guideline that applies to the [661] crime of neonaticide; thus Ms. Deegan's guideline sentence cannot embody the § 3553(a) factors. Because the sentencing court could not properly rely on the guidelines, Ms. Deegan's sentence required a full analysis of these statutory sentencing factors.
The majority relies on mine run cases for the proposition that district court judges need not say much about the sentencing factors. See Maj. op. at 629-30 (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (mine run perjury, obstruction of justice, making false statements); United States v. Robinson, 516 F.3d 716 (8th Cir.2008) (mine run conspiracy to commit bribery); United States v. Hernandez, 518 F.3d 613 (8th Cir.2008) (mine run possession of methamphetamine with intent to distribute); United States v. Perkins, 526 F.3d 1107 (8th Cir.2008) (mine run revocation of supervised release); United States v. Henson, 550 F.3d 739 (8th Cir.2008) (mine run felon in possession)). But Ms. Deegan's case is not a mine run case. This court should not sanction this guideline sentence nor the cursory discussion of the § 3553(a) factors.
The majority relies on the district court's presentence order to conclude that a court "could" reasonably view Ms. Deegan's offense as "unusually heinous, cruel, and brutal." Maj. op. at 634. According to the majority, this characterization of Ms. Deegan's actions demonstrates the substantive reasonableness of her sentence. But the district court ultimately rejected the characterization on which the majority relies. The "heinous, cruel, and brutal" language in the district court's presentence order simply recites U.S.S.G. § 5K2.8, on which the district court contemplated, but rejected, a sentencing departure. See Maj. op. at 628-29. Importantly, the presentence order contemplating the departure was issued before the district court or any participants in the sentencing process knew any substantial amount of information about Ms. Deegan's background and about neonaticide. The majority's revival of "heinous, cruel, and brutal" does not reflect the views of the district court, nor those of a leading expert on neonaticide, and I strongly dispute that characterization of Ms. Deegan.
The majority criticizes the dissent for comparing Ms. Deegan's case to that of another North Dakota neonaticide. Maj. op. at 635-36. The majority asserts that almost nothing is known about the other North Dakota neonaticide that was committed by an NDSU student. True, the details underlying her crime are not part of the sentencing record. But a comparison of these women's circumstances from the record, in light of Dr. Resnick's discussion of the § 3553(a) factors as related to neonaticide, strongly indicates that Ms. Deegan is entitled to a lenient sentence, similar to that of the NDSU student. And if the information before the judge and the testimony of Dr. Resnick was insufficient, it should have been a red flag to investigate further to determine whether the circumstances of the NDSU case were comparable to those of Ms. Deegan.
In any event, what we do know about the other North Dakota neonaticide supports overturning Ms. Deegan's harsh sentence. Both women committed neonaticide. Both did so in North Dakota. But Ms. Deegan committed her crime on a reservation and landed in federal court. Dr. Resnick reported that most women receive sentences of not longer than three years' incarceration, see Add. 2, p. 24 (Resnick Report), and the NDSU student received three years' probation. On this record, there is no just reason for the sentencing [662] disparity between these two women. As I previously asked, what respect should be given to federal criminal law which imposed a harsh punishment for Ms. Deegan's crime committed on the reservation, when compared to the lenient sentence upon a woman off the reservation? Might an informed observer say: just another injustice by the United States which Indians must suffer.
The comparison of these two cases relates not to whether a federal court should rely on state sentences, but is an issue of unfairness and injustice to an Indian woman living on a reservation as compared to a woman not living on a reservation. The majority may say different laws apply. The difference here rests not on the law, but on the mistakes and misjudgment by a federal court as shown by the record.
I firmly believe that in these United States, through its courts or otherwise, Ms. Deegan will receive Equal Justice Under the Law.
This case also lifts the curtain on the terrible abuse suffered by Ms. Deegan as a young child and young woman on the Fort Berthold Indian Reservation in North Dakota. Unfortunately, her suffering is not an isolated instance. The pervasive and terrible abuse of women and children occurs on every Indian reservation in this country. I address that matter in the Appendix to this dissenting opinion.
APPENDIX TO DISSENT
LIFTING THE CURTAIN ON ASSAULTS AGAINST WOMEN AND CHILDREN IN INDIAN COUNTRY
In the dissent, I raise the question: where were the government and social agencies during the many instances of physical, verbal, and sexual abuse suffered by Ms. Deegan as a child and young adult, as well as her younger sisters and mother?
This dissent in part has examined the root cause, abuse after abuse after abuse suffered by Ms. Deegan, that underlies the tragic death of the infant victim. Is that abuse isolated to the Fort Berthold Indian Reservation or symptomatic of an existing situation in all of Indian country?
Coincidentally, in examining the background of assault and abuse in this case, a revealing and pertinent article about violence and sexual assault in Indian country appeared in a popular legal publication. The article entitled, Strange Justice in Indian Country, appeared in the National Law Journal of September 28, 2009. It reads in part:
Conditions in this obscure country, as reported by sources ranging from Amnesty International to a U.S. Senate committee, are appalling. One in three women will be raped in her lifetime. Half the reported murders and 72% of child sex crimes are never prosecuted. Ninety percent of sexual assaults on native women are committed by men from the dominant ethnic groups. The nation's highest courts regularly reverse convictions based solely on the defendant's race.
This country is not Sudan, Rwanda or Kosovo during ethnic cleansing. Rather, this is the state of law enforcement today on the 310 Indian reservations that are home to nearly a million Native American citizens of the United States.
"Indian Country"—the federal government's name for the 54 million acres of reservation lands in the United States—is larger than Minnesota or Utah. The layers of social ills on most reservations—alcohol and drug abuse, unemployment, malnutrition and chronic disease—are a well-documented national shame. But the failure of the U.S. government to provide equal legal protection [663] to victims of serious crimes, who happen to be Native American, is just bizarre.
....
The treatment of native peoples is one of the darkest chapters in American history. Although nothing can be done to change that history, extending basic legal protections to residents of Indian country, equal to those enjoyed by their fellow citizens, is a modest goal.
As the dissent notes, the abuse and beatings perpetrated upon Ms. Deegan as a child and young woman by her father, his friends, Mr. Hale, and others, although known by some officials of tribal institutions, were never investigated, prosecuted, nor the subject of correction. Ms. Deegan as an Indian woman does not stand alone as a victim of abuse.
Violence against American Indian women is a pervasive problem. Federal government studies consistently show that American Indian women are more likely to be subject to sexual violence than other women in the United States.[32] In fact, American Indian women are more than two-and-a-half times more likely to be raped or sexually assaulted than other women.[33] More than one out of every three American Indian women will be raped during their lifetime.[34]
American Indian women are not only more likely to be raped and sexually assaulted, but are also more likely to suffer a higher degree of additional physical violence during those assaults. While 30 percent of the general population of United States women report suffering physical injuries in addition to a rape, 50 percent of American Indian women report such injuries.[35] American Indian women are also more likely to be a victim of a rape with a weapon.[36] While 11 percent of all reported rapes involve the use of a weapon, 34 percent of female American Indian rapes involve a weapon.[37]
Notably, survivors of such brutal rapes and assaults suffer physically, emotionally, and spiritually.[38] American Indian women who have been sexually assaulted report higher rates of depression, alcoholism, drug abuse, and suicidal ideation.[39]
In addition to pervasive and damaging sexual violence, American Indians are more likely to be victims of all violent crimes than any other race.[40] In fact, American Indians experience a per capita [664] rate of violence twice that of other United States residents.[41] The same is true for American Indian women, who are over two times more likely to be victims of violence.[42]
American Indian children are often victims of abuse. One American Indian child out of 30 is subject to abuse or neglect.[43] American Indian children are approximately twice as likely to be victims of child abuse than the general population of children.[44]
Sadly, violence and abuse on Indian reservations are likely greater than depicted in these statistics. It is widely-accepted that reports of abuse and violence on Indian reservations are under reported.[45] Although "[v]iolence against women is one of the most pervasive human rights abuses[,][i]t is also one of the most hidden."[46] "Most Indian women do not report such crimes because of the belief that nothing will be done."[47]
Pictures occasionally speak louder than words. The attached illustration[48] depicts a young American Indian girl in native dance regalia and emphasizes to the reader the importance of protecting "the integral parts of [Indian] life."[49] The high risks of violence to which American Indian women and children are exposed to on their reservations requires urgent action by federal agencies, tribal personnel, and other social services, and they should do all in their power to stop this terrible and continuing abuse.
I conclude with this comment. The violence against women and children on Indian reservations is a national scandal. It must be addressed not only as a criminal matter but as a societal concern. If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan. The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.
[665]
[1] The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota.
[2] We disagree with the dissent that the district court's description of the chosen sentence as "reasonable" demonstrates that the court applied an impermissible presumption of reasonableness to the advisory guideline sentence, post, at 650, or that the court misunderstood its duty under § 3553(a) to select a sentence that is "sufficient, but not greater than necessary" to comply with the purposes of § 3553(a)(2). Post, at 653. As in United States v. Vaughn, 519 F.3d 802, 805 (8th Cir. 2008), where the sentencing court said it was to impose a "reasonable sentence," there is no plain error, because the record as a whole shows that the court followed the proper procedure under Gall.
[3] In its Fifteen Year Report, the Commission explained that murder was one of the offenses for which the original Commission, "either on its own initiative or in response to congressional actions, established guideline ranges that were significantly more severe than past practice." See U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47 (2004). The report further observed that for violent crimes, "the Commission was careful to ensure that average sentences . . . at least remained at current levels, and it raised them where the Commission was convinced that they were inadequate." Id. at 68. It explained that "[f]or murder and aggravated assault, the Commission felt that past sentences were inadequate since these crimes generally involved actual, as opposed to threatened, violence." Id. Nothing in these statements is inconsistent with an assumption that the second-degree murder guideline was based on empirical data and national experience, although the data and experience may have led the Commission to conclude that the average sentence should be increased.
[4] Even if two different sentences had been imposed in federal court, moreover, one district judge has no obligation after Booker to follow the decision of another district judge. Cf. post, at 649 & n. 25. District judges now are permitted to apply their own policy views when determining what punishment is sufficient for a particular offense under 18 U.S.C. § 3553(a), Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and there inevitably will be some disparity in the sentencing of similarly-situated offenders. Booker, 543 U.S. at 263, 125 S.Ct. 738 ("We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure.").
[5] As a federal judge, I had never heard of the term "neonaticide" nor encountered a case of neonaticide until this case. From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick. The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.
This judge has read and reviewed several hundred federal sentencing cases. Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered. The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation. The conduct of the district court in this case and the majority's affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant's residence on an Indian reservation in North Dakota. I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination. This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts.
[6] The dissent recognizes that in the usual case where the crime is in the heartland of the guidelines, the claim that the court did not fully consider the § 3553(a) factors will be plain error unless the defendant objects to the sentencing judge's analysis of the § 3553(a) factors. See, e.g., United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008); Alvizo-Trujillo, 521 F.3d at 1018. But here we have a distinctly different situation. This crime did not fit the guideline because it was outside the heartland. The request by defense counsel here was for "a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56. Moreover, the circumstances here squarely come within 18 U.S.C. § 3553(b)(1), which states that "[i]n the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [§ 3553] subsection (a)(2)."
Thus, when Ms. Deegan requested a non-guideline sentence, and the sentencing judge denied the request and imposed a guideline sentence, nothing further needed to be said to preserve the error. The failure to sentence completely outside the guidelines, in light of the record here, should be reviewed as preserved error.
[7] Dr. Resnick, the expert who examined Ms. Deegan, testified that he had reviewed FBI reports, family and medical records, and an interview with Mr. Hale and had not found any major contradictions. In other words, the supporting documents in the case "substantiated Ms. Deegan's version of what had gone on in her life." Sent. Tr. 16.
[8] In today's world we speak of similar conduct as a form of torture-water boarding. The abuse this child suffered is almost beyond imagination.
[9] FBI reports support Ms. Deegan's account of the extensive abuse she suffered. Mr. Hale acknowledged in an interview with the FBI that he had physically, emotionally, and verbally abused Ms. Deegan on a regular basis. Mr. Hale further acknowledged that he was a bad husband, Ms. Deegan was a good woman, and Ms. Deegan had done a good job raising their children without his assistance.
[10] Ms. Deegan's medical records document this injury:
7/29/97: Twenty-four year old patient comes in to evaluate injuries sustained in an altercation with her boyfriend last night. She is 37 weeks pregnant. She wishes to press charges. Her boyfriend was inebriated. Her boyfriend was with another woman. A brutal fight ensued ending up with the patient being thrown out on the gravel with her left leg extended at a considerable angle and this caused a major injury we are now inspecting. The pregnancy seems to be unaffected. Diagnosis: Multiple contusions and abrasions. Hip ligament strain left, moderately severe. (She had her baby two days later.)
Add. 2, p. 16 (Resnick Report).
[11] Greek mythology, as related by Homer in the Odyssey, tells the tale of Scylla and Charybdis and provides an apt metaphor of Ms. Deegan's dire circumstances. The story relates that two sea monsters, Scylla and Charybdis, guarded the Strait of Messina between Sicily and Calabria in Italy and gave sailors inescapable threats-pass close to Scylla and be eaten by the monster, or veer to the other side closer to Charybdis and be sucked in and destroyed by a whirlpool. S.H., Butcher and A. Lang, The Odyssey of Homer 199-200 (MacMillan & Co. 1922) (1879). In today's vernacular, Ms. Deegan's choice was between a "Rock and a Hard Place."
[12] Essentially, Ms. Deegan gave the same characterization of the circumstances to the FBI:
Deegan stated that Shannon Hale was drinking heavily and using large amounts of drugs including methamphetamine. He was frequently gone for days or weeks at a time. Neither Deegan nor Hale were working, and she was having difficulty finding money to feed her children. What little money she did manage to find, Hale would take and use for drugs. Deegan essentially was the sole provider and care giver for herself and her three children. She felt that having another child to care for was more than she could handle. So, she left Baby Doe alone to die because she felt she could not care for another child under the circumstances.
Add. 2, p. 17 (Resnick Report).
[13] See Drescher-Burke, K., Krall, J., and Penick, A., Discarded infants and neonaticide: A review of the literature, Berkeley, CA: National Abandoned Infants Assistance Resource Center, University of California at Berkeley, 4-5 (2004).
[14] Id.
[15] See Janet Ford, Note, Susan Smith and Other Homicidal Mothers—In Search of the Punishment that Fits the Crime, 3 Cardozo Women's L.J. 521, 538 (1996).
[16] See Drescher-Burke, et al., supra note 9, at 5.
[17] See Ford, supra note 11, at 538.
[18] Dissociation is "like an out-of-body experience" wherein the integrative functions of the mind are dissociated from perception and experience. Sent. Tr. 35.
[19] Ms. Deegan left the infant fifty yards from her home.
[20] When questioned as to why she placed the infant so close to her home, Ms. Deegan replied, "I wanted the baby close to me and I did not want to let him go." Add. 2, p. 12 (Resnick Report).
[21] North Dakota enacted a Safe Haven Law in 2001. See N.D.C.C. § 50-25.1-15.
[22] The majority claims, "The [district] court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of `neonaticide' cases, or that Deegan's offense was a typical fact pattern for second-degree murder." Maj. op. at 633. The record does not support such an interpretation. I emphasize again the district court's statement: "We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59 (emphasis added).
[23] Koon was superseded on other grounds by statute. See 18 U.S.C. § 3742(e) (providing for de novo review of departures). See also Rita, 551 U.S. at 361, 127 S.Ct. 2456 (Stevens, J., concurring). But of course, de novo review no longer applies after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
[24] This December 8, 2008, letter is on file in this writer's office. This writer provided copies to the panel.
[25] I briefly mentioned the Tom case in my introduction. In Tom, on appeal after reversal and remand in United States v. Tom, 494 F.3d 1277 (10th Cir.2007), the Tenth Circuit affirmed a variance from the second-degree murder guideline range of 168-210 months to 70 months' imprisonment for a boyfriend who assisted in the killing of his 15-year-old girlfriend's son. 327 Fed.Appx. at 94. This teenager gave birth in the bathroom of her mother's trailer on the Navajo Reservation, pleaded guilty to first-degree murder, and was sentenced to 44 months' probation. 327 Fed.Appx. at 99. It is worthy of special note that this crime was committed on an Indian reservation and the defendants were sentenced in a federal district court.
[26] In describing Rita, the Court in Gall stated, "we held that when a district judge's discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate `in the mine run of cases,' the court of appeals may presume that the sentence is reasonable." 552 U.S. at 40, 128 S.Ct. 586 (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456).
[27] I recognize that § 3553(a) does not "insist" upon a full opinion in every case, Rita, 551 U.S. at 356, 127 S.Ct. 2456, but in a case like this, which presents circumstances far outside the ballpark of normal cases, see Rita, 551 U.S. at 365, 127 S.Ct. 2456 (Stevens, J., concurring), the district court's explanation for imposing a ten-year sentence is insufficient. Here we have unstated "considerations" but almost nothing more.
[28] Furthermore, applying the guidelines in effect at the time of sentencing may be unconstitutional. See Maj. op. at 631-32.
[29] See Carol A. Brook, Racial Disparity Under the Federal Sentencing Guidelines, 35 Litigation, 15, 19 (Fall 2008) (explaining that sentencing policies that contribute to unwarranted disparity affect the efficaciousness of the goals of the criminal justice system).
[30] See also Brook, supra note 29, at 18 ("[T]he gravitational pull of the guidelines remains strong.").
[31] The probation officer said that no factors warranted a departure. Rev. PSR ¶ 63 ("None"); see also supra at 18-19. The prosecutor said "a guideline sentence is the right choice." Sent. Tr. 53; see also supra at 19. The district court said "I'm required to impose those [1998] guidelines ... I am agreeing with the Government's recommendation... and adhering to the guidelines because I believe that they are reasonable." Sent. Tr. 59, 61; see also supra at 19-20. But the guidelines do not apply to neonaticide.
[32] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[33] Id.; see also Amy Radon, Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation, 37 U. Mich. J.L. Reform 1275, 1280-81 (2004) ("[F]or every 1,000 American Indian females, 23.2 were victims of intimate violence. This rate of victimization was nearly double that of African Americans (11.2 for every 1,000), triple that of whites (8.1 per 1,000), and twelve times the victimization rate of Asian Americans (1.9 per 1,000).").
[34] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[35] Id. at 5.
[36] Sarah Deer, Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law, 38 Suffolk U.L.Rev. 455, 457 (2005).
[37] Id.
[38] Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kan. J.L. & Pub. Pol'y 121, 123 (2004).
[39] Id. at 124.
[40] U.S. Dep't of Justice, American Indians and Crime, v (Dec.2004).
[41] Id. at iv.
[42] Id. at v.
[43] U.S. Dep't of Justice, American Indians and Crime, 15 (1999).
[44] Id.
[45] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[46] Id. at 1.
[47] Id. at 2 (quoting Juana Majel, National Congress of American Indians, and Karen Artichoker, Cangleska, Inc.-Sacred Circle). As this report explains, "interviews with survivors, activists and support workers across the USA suggest that available statistics greatly underestimate the severity of the problem. In the Standing Rock Sioux Reservation, for example, many of the women who agreed to be interviewed could not think of any Native women within their community who had not been subjected to sexual violence." Id.
[48] Reproduced with the permission of the State Historical Society of North Dakota and its publication, North Dakota History: Journal of the Northern Plains, Vol. 69, front cover (2002).
[49] Id. at back cover.
7.2.6.7.2.6 State v. Thompson 7.2.6.7.2.6 State v. Thompson
15 Neb. App. 764
STATE OF NEBRASKA, APPELLANT,
v.
RICHARD W. THOMPSON, APPELLEE.
No. A-06-612.
Court of Appeals of Nebraska.
Filed July 17, 2007.
Jon Bruning, Attorney General, Jeffrey J. Lux, Special Assistant Attorney General, and Paul B. Schaub, Cheyenne County Attorney, for appellant.
Clarence E. Mock, of Johnson & Mock, and Donald J.B. Miller, of Matzke, Mattoon & Miller, for appellee.
INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.
SIEVERS, Judge.
INTRODUCTION
Richard W. Thompson pled no contest to two counts of sexual assault of a child, and the district court for Cheyenne County sentenced Thompson to 5 years' intensive supervised probation on each count, to run consecutively. The State of Nebraska appeals the sentences imposed on Thompson as excessively lenient. The first impression issue presented by this case is Thompson's claim that the State, by agreeing to "remain silent" at sentencing, has waived its right to appeal the district court's sentences as excessively lenient. We conclude that the State did not waive its right to appeal, and therefore, we address the merits of the State's contention on appeal that the sentences are excessively lenient.
FACTUAL BACKGROUND
On October 31, 2005, Thompson was charged with count I, sexual assault of a child; count II, sexual assault of a child; and count III, first degree sexual assault. Thompson was arraigned on November 8 and entered a plea of not guilty. Thereafter, a plea agreement was reached. Thompson's counsel put the plea agreement on the record, stating: "Thompson is prepared to enter a no contest plea to counts I and II, in exchange count III is going to be dismissed and at the time of sentencing the county attorney is going to remain silent." The Cheyenne County Attorney affirmed that such was the plea agreement by the simple statement, "That's right." And, upon inquiry by the court as to whether such was "your agreement," Thompson responded affirmatively on the record. Thompson pled no contest to the two counts of sexual assault of a child, a factual basis was provided on the record, and the trial court accepted the plea and scheduled the sentencing hearing. We shall discuss the details of the crimes in our discussion of the sentences in the analysis section of our opinion.
On May 23, 2006, a sentencing hearing was held. When the court asked if there was any evidence or recommendations to present, the State said that there was "no argument from the State." The State noted that this was "part of [the plea] agreement." The district court then sentenced Thompson as stated above, and the State has timely appealed.
ASSIGNMENT OF ERROR
The State contends that the district court abused its discretion by imposing excessively lenient sentences upon Thompson.
STANDARD OF REVIEW
Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.
ANALYSIS
Did State Waive Appellate Sentence Review by Agreeing to Remain Silent at Sentencing?
We begin with Thompson's assertions that the State, by complaining on appeal that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement and that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.
It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." State v. Gonzalez-Faguaga, 266 Neb. at 77, 662 N.W.2d at 588, quoting Santobello v. New York, supra. There is no assertion that the prosecution did not live up to its agreement to "remain silent" at the time of sentencing. The State is given a statutory right to appeal a sentence as excessively lenient pursuant to Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2006). Section 29-2320 provides that the prosecuting attorney in a felony case may appeal the sentence imposed "if such attorney reasonably believes, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient."
Our research has not revealed any Nebraska precedent addressing Thompson's argument that the State, after agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, waives its right to appeal as excessively lenient a sentence which is within the statutory parameters. Thompson and the concurrence cite the following three cases from other jurisdictions to support the claim of waiver: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). We find these cases to be distinguishable, unpersuasive, or both.
In Fruehan, the defendant entered a guilty plea under a plea bargain in which the Commonwealth of Pennsylvania (the Commonwealth) agreed to stand mute with respect to the sentence to be imposed. After the sentence was imposed, the Commonwealth petitioned the trial court to reconsider the sentence, alleging that such sentence was excessively lenient. The Fruehan court noted: "The issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court first observed that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal" and noted that "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id. We note that under the applicable Pennsylvania statute, the [a]llowance of an appeal from the discretionary aspects of sentencing may be granted at the discretion of the [appellate court] where there appears to be a substantial question that an inappropriate sentence has been imposed." Id. at 158, 557 A.2d at 1093. However, in Nebraska, the State's appeal is a matter of right, whereas in Pennsylvania, the appellate court has discretion whether to even consider the appeal.
The Fruehan court further noted: "In determining whether a particular plea agreement has been breached, we look to `what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982). Ultimately, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court specifically noted:
[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).
The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain.... The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.
Com. v. Fruehan, 384 Pa. Super. 156, 160-61, 557 A.2d 1093, 1095 (1989). Thus, in Fruehan, the discretionary appeal that the prosecution sought was "disallowed." Id. at 161, 557 A.2d at 1095. In Fruehan, the Commonwealth was found to have breached the plea agreement by a postsentence request of the sentencing court to increase the sentence. No such breach at the trial court level is involved in the present case, and making such a request of the sentencing court is a fundamentally different matter than the exercise of the State's statutorily granted right to have an appellate court—a different and higher court—review a sentence for an abuse of discretion. As a result, we find Fruehan to be distinguishable.
In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), the defendant pled guilty pursuant to a plea agreement. As part of the agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. It is obvious that in Arriaga, a breach of the plea agreement by the prosecution occurred at the trial level, but as said, no such breach is present here.
The trial court in Arriaga concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence, and the prosecution appealed, alleging that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, finding the rationale set forth in Fruehan to be persuasive, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202. Therefore, the court in Arriaga simply held the prosecution to its agreement—a holding with which we have no disagreement. Because of a materially different procedural background, as well as an obvious breach of the plea agreement in the trial court, Arriaga is not persuasive authority on the issue before us.
In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), the prosecution promised in a plea agreement not to invoke the provisions of its habitual criminal act and to recommend that the sentences on three counts of theft and two counts of burglary run concurrently. The prosecution complied with the agreement, which would have yielded a total sentence of 3 to 10 year's imprisonment on all counts, but the trial court imposed a total sentence of 6 to 20 years' imprisonment on all counts. The defendant moved to modify the sentence in the trial court. At the hearing on such motion, when asked for its view on the motion, the prosecution referred to a Kansas "Reception and Diagnostic Center" report as "not what you would call a good report" and then concluded: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The trial court denied the modification. On appeal, the Kansas Supreme Court stated that "a plea agreement which is silent as to post-sentence hearings is ambiguous." Id. at 68, 765 P.2d at 1119. The Kansas Supreme Court, after finding the plea agreement ambiguous, reasoned that "[w]here a statute is ambiguous, we require that it be strictly construed in favor of the accused." Id. at 69, 765 P.2d at 1120, citing State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987). The court said it found no compelling reason to adopt a different rule in interpreting ambiguous plea agreements. In our view, such conclusion throws aside any number of basic contractual principles that logically are applicable, given that plea agreements are contracts. See State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994) (finding that plea bargain is contract). One such basic principle which the Wills decision would obviously negate is that a court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include. Honda Cars of Bellevue v. American Honda Motor Co., 261 Neb. 923, 628 N.W.2d 661 (2001).
The Kansas court in Wills, supra, concluded that the defendant was entitled to have his motion to modify his sentence reheard by a different trial judge and that at the hearing, the prosecution would be bound by the plea agreement. In summary, not only is Wills procedurally and factually different than the instant case, the court in Wills finds an ambiguity regarding appeal when such was not mentioned. Wills simply holds that the prosecution must live up to its plea agreement— a broad principle which is unassailable but which is not determinative in the present case, given the Kansas court's finding of ambiguity which is not present in the plea agreement before us. Thus, Wills is not persuasive authority in this case.
Given the general principle that courts are not to rewrite contracts to include what the parties did not, we find that what the plea agreement between Thompson and the State did not say is of the greatest import in resolving this issue when we note the general principle that the waiver of the right to appeal must be express and unambiguous. U.S. v. Hendrickson, 22 F.3d 170 (7th Cir. 1994) (rejecting defendant's claim that government's appeal of sentence was breach of plea agreement on grounds of waiver and estoppel, when language of plea agreement did not demonstrate intent by either Hendrickson or government to waive right to appeal sentence imposed by district court). See, also, U.S. v. Wiggins, 905 F.2d 51 (4th Cir. 1990). Furthermore, the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Pepper, 412 F.3d 995, 997 (8th Cir. 2005), decided that the language of the plea agreement in that case was not "a waiver of appellate rights, which typically employs more precise terms like 'waiver' and 'appeal." Accordingly, in the instant case, agreeing to "remain silent at sentencing" does not clearly and unambiguously give up the State's statutory right to seek appellate review.
The simple and straightforward agreement of the prosecutor to remain silent at the time of sentencing does not in any way implicate, explicitly or implicitly, the prosecutor's statutory right to seek appellate review of a sentence that he or she believes is excessively lenient. Obviously, making such a waiver part of a plea agreement is a matter of the addition of an additional sentence or two to the agreement, be it oral or written. But we simply cannot manufacture a waiver of this important appellate right possessed by the State from language as straightforward and unambiguous as this plea agreement. With all due respect to our concurring colleague, we submit that Thompson's approach would create a waiver from thin air when none was expressed or even implied. The effect of such a position is that a prosecutor who agrees only to stand silent or mute at sentencing has somehow blithely agreed to accept whatever sentence the sentencing judge hands down—no matter how inappropriate it might be in a particular case for a particular defendant—even though the sentence is within statutory parameters. In so holding, we bear in mind that Nebraska sentencing statutes provide a broad range of sentencing options in order to tailor sentences to the crime, the criminal, and societal interests.
Perhaps the most logical and clearly reasoned decision supporting our view is found in U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), although it involves a written plea agreement detailing the charges to which James Dean Anderson would plead. In Anderson, the written plea agreement provided that the government would urge the trial court to apply the mandatory sentence of at least 15 years on each of several firearms possession counts under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). The court dealt with two arguments from Anderson as to why the government was foreclosed from its appeal of the sentences imposed by the district court. The second argument advanced by Anderson was that the government had waived its right to appeal by not explicitly referencing that right in the agreement, contending that whereas Anderson insisted on including language in the written agreement reserving his right to appeal the sentences imposed, the government made no such reservation and therefore waived recourse to a higher court. Because Anderson is so pertinent to our reasoning in this case, we quote at considerable length from the opinion of the U.S. Court of Appeals for the First Circuit as follows:
It seems to us that this argument stands logic on its ear. It is black letter law that plea agreements, "though part and parcel of criminal jurisprudence, are subject to contract-law standards in certain respects." [U.S.] v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); see also United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) ("plea agreements are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him"). Consistent with contract-law principles, we look to the language of the document, focusing squarely within its four corners. See Hogan, 862 F.2d at 388. In this case, such scrutiny reveals an utter absence of any language conditioning defendant's plea on the government's waiver of appellate rights. To be sure, Anderson—citing the contract-law canon that any ambiguity will be construed against the drafter—contends that such a condition should be inferred from the absence of language anent the government's right to appeal. But this is a bootstrap argument, conjuring up an ambiguity where none legitimately exists.
On its face, the terms of the [plea agreement] are clear enough: the government promises to drop the "firearms transportation" charge in exchange for defendant's admission of guilt on the two "firearms possession" charges. If defendant had wanted to condition his plea on the conferral of an incremental benefit—the prosecution's agreement to forgo its right to appeal any sentence imposed—he could have insisted that such a term be made part of the [plea agreement]. He did not do so. Under the circumstances, we find no reason to grant him after the fact the benefit of a condition he failed to negotiate before the fact. To read the [plea agreement], ex silentio, to include a waiver by the government of its right of appeal would give defendant more than is reasonably due. See, e.g., United States v. Fentress, 792 F.2d 461, 464 (4th Cir.1986) ("While the government must be held to the promises it made [in a plea agreement], it will not be bound to those it did not make.").
We believe it would open Pandora's jar to adopt so freeform an interpretation of plea bargains as Anderson urges. The Court has cautioned in connection with plea agreements that it is error for an appellate court "to imply as a matter of law a term which the parties themselves did not agree upon." United States v. Benchimol, 471 U.S. 453, 456, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (per curiam). Under traditional contract principles, we should take an opposite tack, treating a plea agreement as a fully integrated contract and enforcing it according to its tenor, unfestooned with covenants the parties did not see fit to mention.
U.S. v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990).
In the present case, the very simple and basic plea agreement, albeit oral but on the record, was not festooned with a waiver of the State's right of appellate review. There is such a substantial and longstanding body of Nebraska jurisprudence according substantial discretion to the sentencing judge that citation of authority is superfluous. But, if that discretion is to be unfettered and "unexaminable" discretion, the State's waiver of its right of appellate review must actually be part of the agreement rather than judicially created from a plea agreement that fails to even mention such a condition. In short, we enforce the agreement that was made rather than expand it by judicial fiat, and we hold that the State did not waive its statutory right to appellate review of the trial court's sentences.
Sentences.
We cannot pretend to be unaware that the sentences imposed, in conjunction with certain comments made by the trial judge at sentencing, created a brief nationwide firestorm of critical publicity. After a complete review of the record, particularly the presentence investigation report (PSI), we find that the sentences were not an abuse of the trial judge's discretion, and we therefore affirm the district court's sentences for the reasons that follow.
When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996). In State v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984), the court held that the same scope of review applies in the lenient sentence context as in the excessive sentence context. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. See State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998). In cases such as this, we do not review the sentence de novo and the standard is not what sentence we would have imposed. See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
The State attacks the sentences on a variety of grounds, although we do not detail nor dissect all arguments advanced in their lengthy brief. The State's principal arguments, summarized, appear to be that (1) the trial judge's comments evidence consideration of an improper factor—Thompson's physical stature, (2) Thompson is a sexual predator who "groomed" his victim, (3) Thompson is at risk to reoffend, (4) Thompson is an abuser of his girlfriend and did not complete the counseling he was to get to avoid prosecution for that offense, and (5) Thompson is unrepentant.
Sentencing Judge's Comments.
After listening to comments from defense counsel at the sentencing hearing, the district judge commented as follows before imposing the probationary sentences:
What you have done is absolutely inexcusable. Absolutely wrong. You will never have any idea of how deeply you have harmed this child. You are an adult. You betrayed the trust and you betrayed it not only at a psychological but a physical level .... You've earned your way to prison. So, I'm sitting here thinking this guy has earned his way to prison but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think of what might happen to you in prison because I don't think you'll do well in prison.... I was relieved to know that the people who evaluated you — you are a sex offender, okay. You did this and you did it to a child. That means that at some level you have a sexual preference to children. That doesn't make you a hunter, the predator that we hear about on [television] all the time. I was very relieved to know that you do not fit in that category of human being because that gives me more leeway to not send you to prison. But you need to understand I am going to try to put together some kind of order that will keep you out of prison. But you need to understand that if you don't follow it right to the "T" I have to put you in prison. If you can't structure your behavior so that you are safe and other people are safe out in the community then I have to structure it with prison.
Neb. Rev. Stat. § 29-2322 (Reissue 1995) states in relevant part:
[T]he appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:
(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed:
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the defendant;
(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and
(4) Any other matters appearing in the record which the appellate court deems pertinent.
Neb. Rev. Stat. § 29-2261(3) (Cum. Supp. 2006) provides that "[t]he presentence investigation and report shall include ... the offender's ... physical and mental condition ...." And, § 29-2322(2) mandates consideration of the "characteristics of the defendant." Therefore, the State's proposition that the trial court improperly considered Thompson's physical stature, or that we cannot, is simply incorrect given this statutory language. Additionally, a sentencing judge has broad discretion as to the source and type of information, including personal observations, which may be used as assistance in determining the kind and extent of the punishment to be imposed. State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
Thompson stands 5 feet 2 inches tall and weighs 125 to 130 pounds. Thompson's size and how that "physical condition" will affect him in a prison setting is a relevant consideration. However, given other matters found in the PSI, which matters we will detail shortly, we have no doubt that Thompson's physical stature, although specifically mentioned, was but a minor point in the trial court's sentencing decision. However, before turning to the PSI, we note that because probation rather than imprisonment was imposed, Neb. Rev. Stat. § 29-2260 (Reissue 1995) is implicated. Section 29-2260 provides in pertinent part:
[T]he court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:
(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;
(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law.
(3) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened serious harm;
(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated commission of the crime;
(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;
(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;
(h) The crime was the result of circumstances unlikely to recur;
(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to probationary treatment; and
(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.
Clearly, our considerations found in § 29-2322, when addressing an excessively lenient sentence appeal, and the trial court's considerations found in § 29-2260, when withholding imprisonment and imposing probation, overlap. That said, we have considered the PSI in light of the considerations in both statutes. We now set forth the most important information found in the comprehensive PSI. But, at the outset, we recognize that parts of the PSI support probationary sentences while other aspects of the PSI suggest that incarceration is appropriate. In other words, this sentencing decision, like many such judicial decisions, is not formulaic, nor is it simply a matter of doctrine. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992).
Thompson was born out of wedlock in Sidney, Nebraska, on July 10, 1955. He never knew his father and had no siblings. His mother never married and died in late 2005 at the age of 80. Thompson described a good and loving relationship with his mother and said that her passing was extremely hard on him. Thompson is a high school graduate, but according to testing, he has less than average intelligence. He has been employed throughout his life since age 17, and his employer at the time of the PSI indicated that if Thompson was not incarcerated, he would retain his employment with them. He was earning approximately $1,100 per month.
Before these convictions, Thompson had two convictions in the 1980's for driving under the influence, but no conviction since 1988 for even so much as a traffic ticket. In April 2005, as a result of a domestic altercation between Thompson and the woman with whom he was living, C.G., he was charged with third degree assault and cruelty toward a child, but he was not prosecuted on the condition that he seek counseling and abide by the counselor's recommendations. The record indicates that during this domestic altercation, Thompson pushed C.G., causing her to fall and sustain a bruise; shook his fist at her; and pushed C.G.'s daughter when she tried to intervene. While the State argues that Thompson's failure to complete this required counseling militates against probation in this case, the record shows that he contacted a counselor and had four sessions with the counselor before the current situation arose in October 2005.
The victim in this case, E.G., was the daughter of C.G., the woman who began dating Thompson and subsequently lived with him upon moving to Sidney with her two children in April 2004. E.G. was 12 years old at the time she, her younger brother, and her mother began living with Thompson. E.G. reported six occasions of sexual contact by Thompson between July 2005 and September of that year, when the living arrangement between Thompson, C.G., and her children ended.
E.G. recounted that Thompson rubbed her vaginal area outside of her clothing on two occasions and that during one such occasion, he attempted to briefly penetrate her digitally, but he stopped when she asked him to stop. There were three occasions recounted by E.G. when Thompson, who was clothed, laid on top of her and rubbed against her genital area through her clothes. E.G. recounted that on two of those occasions, Thompson kissed her breasts. Thompson also kissed E.G. on the mouth a number of times. E.G. did not describe any attempt at penile penetration. E.G. described Thompson as gentle and said that he did not threaten her in any way. She also described these encounters as being very brief in duration and stated that such ended when he voluntarily stopped and left. No ejaculation was reported by E.G. When taken in for questioning by police, Thompson was highly emotional, was crying, and ultimately admitted the core of the allegations to the officer.
E.G. completed a victim impact statement in which she recounted the following:
I don't trust men. I worry about what they want to do to me. I'm afraid to live with mom and her new boyfriend because of what [Thompson] did to me.
... I worry about other kids knowing what [Thompson] did to me. This makes me feel different.
....
... I think [Thompson] should go to prison so he doesn't do it to any other girls.
A licensed mental health professional who saw E.G.—although we cannot discern from the PSI the nature, length, or frequency of any therapy—also completed a victim impact statement form, on which she stated:
[E.G.] does not trust her own judgment. This is directly related to [Thompson's] gradual grooming and seduction of [E.G., who] truly believed [Thompson] cared about her and would not harm her or do anything that was wrong. [E.G.] is also having a multitude of social problems that stem from her feelings of being different now that this has happened. She is still suffering from feelings of shame, embarrassment and guilt that will take a great deal of time to work through. [E.G.] was horrifically used, abused and betrayed by this man and will continue to need extensive therapy to help her recover from this tragic violation. He not only violated her physically but emotionally and spiritually.
This therapist also offered the following opinions to the trial court on the victim impact statement form:
I think that [Thompson] should be sentenced to 10 years in prison. I realize that this is his first offense that he has been arrested for but I have every reason to believe that this is not the first time that he has molested a child.
After listening in great detail to the seduction and molestation of [E.G.,] I have no doubt that [Thompson] has molested other children in the past. If he is not held accountable for this he will continue to molest other girls. But rest assured he will get better at it.
Other than this statement, there is absolutely no evidence to support the conclusion that Thompson has victimized any other child or adult female, and the claim that he purposefully "groomed" E.G. is contradicted by others involved in the presentence evaluation of Thompson.
The psychologist who performed a mental status examination of Thompson which included the "Minnesota Multiphasic Personality Inventory" considered Thompson's results to be valid. The psychologist stated as follows regarding the result of such testing:
Persons with [Thompson's] profile are often seen as rather dependent and often unable or unwilling to meet their own needs but instead looking for others to do so. A history of repressed hostility and anger is common in this profile type. Denial is usually the defense mechanism of choice. A difficulty in treatment of individuals with this profile type is getting them to accept responsibility for their own behavior. The profile indicates that [Thompson] is likely to be suspicious of others, overly sensitive to rejection, impulsive, and lacking in insight. The profile does not indicate that [Thompson] is presently suffering from psychotic disorder or thinking impairment. He is likely to keep to himself and have difficulty establishing and maintaining relationships. This profile does not show a high potential for substance abuse/alcohol addiction.
....
... [Thompson's] tendency is to act without thinking in a rather immature reaction style. He does not appear to meet criteria for pedophilia. The present offense appears to be one more of impulse control and lack of judgment and does not appear to include any violence or "grooming". There are no known previous sexual offenses with adults or children. It is noted that the victim in this case is post pubescent. Testing shows [Thompson] to be rather immature and self-centered, but he does not show indications of psychopathy or psychosis. Sexual offenders with this profile are usually best managed by requiring no unsupervised contact with vulnerable potential victims, requirement of lack of use of drugs and alcohol to prevent further diminishment of judgment, and long term probation/parole oversight to ensure compliance. He can be characterized as an immature/opportunistic offender rather than an aggressive offender. Ongoing counseling services may be of benefit to this individual if he is able to work through his denial.... As noted in the diagnostic impression this patient does not appear to meet criteria for classification as a sexual psychopath, sexual predator, or similar classifications.
As part of the probation officer's investigation, the probation officer administered the "Sexual Adjustment Inventory" (SAI) to Thompson. Pertinent scores and comments from the SAI report are as follows:
SEXUAL ADJUSTMENT SCALE:LOW RISK RANGE RISK PERCENTILE:8
This person's score on the Sexual Adjustment Scale is in the Low Risk (zero to 39th percentile) range. This response pattern indicates a rather normal and generally satisfactory sexual adjustment....
CHILD MOLEST SCALE:PROBLEM RISK RANGE RISK PERCENTILE:73
This offender's response pattern on the Child Molest Scale is in the Problem Risk (70 to 89th percentile) range. Problematic child molest behavioral (pedophilia) indicators are present. Review court-related records carefully for prior sex-related offenses or convictions....
SEXUAL ASSAULT SCALE:MEDIUM RISK RANGE RISK PERCENTILE:69
This person's score on the Sexual Assault (Rape) Scale is in the Medium Risk (40 to 69th percentile) range. Some indicators of sex-related anger, hostility and aggression are evident. However, an established pattern of sexual assaultive behavior is not present....
INCEST SCALE:LOW RISK RANGE RISK PERCENTILE:0
This individual's score on the Incest Scale is in the Low Risk (zero to 39th percentile) range. Low risk scorers reveal few, if any, indicators of incestuous behavior.
EXHIBITIONISM SCALE:LOW RISK RANGE RISK PERCENTILE:0
This person's response pattern on the Exhibitionism Scale is in the Low Risk (zero to 39th percentile) range. Low risk range scorers typically do not expose their sex organs to unsuspecting persons. This is a Low risk exhibitionism profile.
The SAI report also contains scores and comments for an alcohol scale, a drug scale, a violence scale, and an antisocial scale. Thompson's risk percentiles were classified as low in all four of these categories with scores of 6, 0, 8, and 0, respectively. Significantly, the antisocial scale and its accompanying comments provide in part:
ANTISOCIAL SCALE:LOW RISK RANGE RISK PERCENTILE:0
Few, if any, indicators of repeated lying, deceit, or chronic inability to conform to society are present. A moral or ethical blunting is not evident. This person is capable of affection, sympathy and remorse. Low risk usually is not associated with antisocial tendencies. Indeed, low risk is characterized by responsibility, emotional stability and capability of maintaining significant relationships and loyalties.
Within the PSI is Thompson's handwritten statement that contains his admission of wrongdoing and his acknowledgment that he hurt E.G. as well as family and friends. It contains a number of assertions that he will never repeat this mistake. The State argues that his letter is overly focused on his own pain and suffering from these events rather than on that of his victim. There is certainly an element of that in his letter. For example, he stated:
I know that I will never ever do something like this again [be]cause what it has done to me mentally and how bad it has hurt me, and it isn't worth the pain to go through it again because I have suffered in my mind and hurt so much that I know I would not do it again.
However, his letter expresses his remorse and acknowledges that he hurt E.G. For example, he wrote: "And knowing that I have also hurt [E.G.] too because the way she loved me as her dad[d]y ...."
Finally, we quote in part the "Summary/Evaluation" section of the report by the district probation officer:
With regards to the sentence in this case, it does not appear a term of imprisonment at the Nebraska Correctional Complex would be required, rather [Thompson] may benefit from services that could be provided during a term of Intensive Supervised Probation (ISP). In addition to the standard terms of ISP, this officer would ask the Court that specific conditions of probation be included. [Thompson] should be ordered to complete a letter of apology to the victim and her family. Additional conditions would include [Thompson's] being prohibited from becoming involved in a relationship with someone who has young children or with someone who is around and/or caring for young children. A condition of probation that prohibits [Thompson] from purchasing or being in possession of pornographic material would also be recommended.
We now turn to § 29-2260, which provides that the trial court may withhold a sentence of imprisonment unless, having regard for the nature and circumstances of the crime as well as the history, character, and condition of the offender, the court finds that imprisonment is necessary for protection of the public because (1) there is a substantial risk that during the period of probation, the offender will engage in additional criminal conduct; (2) the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or (3) a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law.
The first of the three factors addresses whether there is a substantial risk that during the period of probation the offender will engage in additional criminal conduct. In this regard, the only assertion that Thompson will reoffend is that made by E.G.'s counselor, but she has had no contact with Thompson and her information comes solely from the victim. In contrast, the psychologist who evaluated Thompson found no evidence of violence or grooming and found no known previous sexual offenses with either adults or children. The psychologist concluded that Thompson is not a pedophile, but, rather, that Thompson's offenses in this case stem from poor judgment and a lack of impulse control. The psychologist unequivocally stated that Thompson does not meet the criteria for classification "as a sexual psychopath, sexual predator, or similar classifications." Additionally, Thompson's score on the SAI indicates "a rather normal and generally satisfactory sexual adjustment." While the SAI indicates some risk for child molestation, Thompson's SAI shows that he is at low risk for incest, exhibitionism, alcohol problems, drug problems, and violence and that he does not show any antisocial tendencies. The SAI also found that Thompson is capable of affection, sympathy, remorse, responsibility, and emotional stability.
The second factor under § 29-2260 is that the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility. The PSI reveals and the probation officer specifically recommends that intensive supervised probation, not incarceration, is appropriate in this case. There is no showing in the PSI that the assistance Thompson needs is most effectively provided at a correctional facility.
The third factor addresses whether a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law. Of the statutory considerations to withhold imprisonment, this is obviously the most subjective. Clearly, the victim and her counselor seek imprisonment, and we assume that they would hold the view that anything less than imprisonment depreciates the seriousness of Thompson's crimes and promotes disrespect for the law. However, the statute requires consideration of the history, character, and condition of the offender, which, when summarized, reveals a person of low to average intelligence who has been a law-abiding citizen, other than two youthful driving while intoxicated convictions and the current conviction, and a person who has remained employed and has had meaningful relationships with his mother, extended family, friends, and his employer. In short, while Thompson's molestation of E.G. has clearly been hurtful and harmful to her, he is not a person who has led an irresponsible life; nor does the PSI suggest that at his core, he is an inherently bad, evil, or dangerous person. He did, however, commit horrific acts violating a young girl's trust and affection for him.
While there is a temptation on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes of this sort, it is the function of the sentencing judge, in the first instance, to evaluate the crime and the offender. Our appellate review for an abuse of discretion also includes consideration of the crime and the offender. It has long been recognized that a sentence should fit the offender and not merely the crime. See Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). As stated by the Nebraska Supreme Court in State v. Harrison, 255 Neb. 990, 1005, 588 N.W.2d 556, 565 (1999):
Indeed, this court has repeatedly recognized the importance of probation to our system of criminal justice, stating that " "[a] sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary."...'" State v. Javins, 199 Neb. 38, 40-41, 255 N.W.2d 872, 874 (1977), quoting State v. Shonkwiler, 187 Neb. 747, 194 N.W.2d 172 (1972). Thus, "justice" may certainly be served by a sentence of probation. Whether justice is so served is a matter that is, in the first instance, properly left to the trial court.
Section 29-2260(3) contains considerations which shall be accorded weight in favor of withholding a sentence of imprisonment, including, inter alia, whether the crime neither caused nor threatened serious harm, whether the offender acted under strong provocation, whether substantial grounds were present tending to excuse or justify the crime, and whether the victim induced or facilitated the commission of the crime. The record does not support a conclusion that any of these factors are present, which conclusion would militate in favor of withholding imprisonment, and thus, the probationary sentences are not justified by these factors. But the inquiry does not end here.
With respect to our obligation upon review of a sentence claimed to be excessively lenient, we are to have regard for the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from the defendant, and to reflect the seriousness of the offense and provide just punishment as well as to provide the defendant with needed correctional treatment in the most effective manner. See § 29-2322. We have already discussed these factors at various points in our analysis, except we have not examined in any detail the sentences imposed, beyond simply stating that they are two 5-year terms of intensive supervised probation, to run consecutively. It is important to detail some of the requirements of Thompson's probationary sentences so that the reader knows that it is not simply a "get out of jail free card."
Under the terms of Thompson's probation, he must be employed or attend school and he must avoid contact with persons having criminal records. He cannot leave Cheyenne County without the permission of his probation officer. He must abstain from the use and possession of alcohol and submit, upon request of his probation officer, to a chemical test of his blood, breath, or urine. He cannot associate with anyone who possesses firearms. He must serve up to 180 days of electronic monitoring. He is subject to a curfew set by his probation officer. He cannot frequent premises specializing in the sale or consumption of alcohol. He shall enroll in and successfully complete counseling for sexual behavior, as directed by his probation officer. He shall write an apology to his victim. He shall never be unsupervised when a person under the age of 18 is present. He cannot have a dating relationship with anyone who has children under the age of 18 or who cares for children under such age, nor can he live with anyone under the age of 18. He shall not possess any pornography and shall have no computer access in his home. Finally, Thompson is to serve 30 days in the Cheyenne County jail, which was to begin January 1, 2007, and serve another 30 days beginning on January 1 of each year that he is on probation, although such imprisonment may be waived by his probation officer. If Thompson violates the terms of his probation—which is not only supervised, but strict and demanding—he is subject to the filing of a motion to revoke his probation and be sentenced anew. Thompson has agreed to each and every one of these conditions of his probation.
CONCLUSION
The PSI that was in the hands of the district judge before imposition of these sentences contains abundant and logical justification for ordering probation—the terms of which are strict and demanding—rather than incarceration. After our review of the crimes, the sentences, and the information in the PSI, we have no hesitancy in saying that the sentences are not an abuse of discretion and, therefore, are not excessively lenient.
We have taken great care for a specific reason to detail information in the PSI, which information has not been, and would not otherwise be, available to the public and media. Our reason for doing so is to illustrate that if the sentencing judge went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI which clearly justified the probationary sentences she imposed. Such failure caused the trial judge's brief mention of Thompson's small physical stature to become the focus of attention, when in reality it was but a minor point. Of far greater consequence is the fact that the examination by a clinical psychologist and the results of the SAI all strongly indicate that Thompson is neither a pedophile nor a sexual predator, but, rather, that his crimes stemmed from poor judgment and a lack of impulse control. Of equal importance is the fact that the probation officer recommended the sentences imposed by the trial judge. By saying this, we by no means minimize the seriousness of the crimes or the pain and damage which Thompsonon has inflicted upon his victim. Nonetheless, the PSI reveals that he is unlikely to reoffend—and the terms of his probationary program are strictly structured to ensure that this does not happen—and he was told in no uncertain terms that he would be treated harshly if he fails probation.
Because the trial judge did not abuse her discretion in sentencing Thompson, we affirm.
AFFIRMED.
Appellant.
INBODY, Chief Judge, concurring.
I respectfully concur with the result reached by the majority; however, I write separately because I reach this result for different reasons than those of the majority.
The State alleges that the sentences imposed upon Thompson by the district court were excessively lenient. In support of this allegation, the State contends that the district court abused its discretion when it considered impermissible, irrelevant, and inappropriate factors iimposing its sentences, such factors as Thompson's physical size and "his ability to 'cope' with other inmates in prison." Brief for appellant at 20. Conversely, Thompson asserts that the State, by complaining that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement, and asserts that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.
It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). The benefits to be derived from plea bargaining, however, presuppose fairness in securing agreement between an accused and a prosecutor. Id. Thus, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id.
A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations. The resolution of each case depends upon the essence of the particular agreement and the government's conduct relating to its obligations in that case. State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).
My research has not revealed any Nebraska cases directly on point with the issue of whether the State waives its right to appeal a discretionary sentence as excessively lenient when it agrees to stand silent at the defendant's sentencing hearing as part of a plea bargain. In support of Thompson's proposition that the State waived its right to appeal his sentences as excessively lenient, he cites three cases from other jurisdictions: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). Out of these three cases, I believe that Fruehan presents the factual situation most similar to that seen in the instant case.
In Fruehan, the court indicated that "[t]he issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court, noting that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal," provided that, similar to our case, "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id.
The court noted that "a plea agreement by the Commonwealth to make no sentencing recommendation does not preclude it from correcting misinformation presented to the court by the defendant" and that it does not "prevent the Commonwealth from resisting a post-sentencing request by a defendant to reduce the sentence imposed by the court." Id. at 159, 557 A.2d at 1094. However, the court further noted that "[i]n determining whether a particular plea agreement has been breached, we look to 'what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982).
In the end, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court further provided:
[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).
The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain. The trial court, understandably, declined to consider the Commonwealth's petition. If this Court were to allow the Commonwealth's appeal and thereafter conclude that the defendant-appellee should be resentenced, we, too, would thereby condone the Commonwealth's breach of its plea agreement and aid in depriving appellee of the benefits of his agreement. In that event, the Commonwealth would have been allowed to say, in effect, that only a sentence of imprisonment was satisfactory. We decline to permit this. The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.
Com. v. Fruehan, 384 Pa. Super. 156, at 160-61, 557 A.2d 1093, 1095 (1989).
In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), as part of a plea agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. The trial court concluded that due to the plea agreement, the prosecution could take no position regarding the defendant's sentencing request. The trial court concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence.
On appeal, the prosecution alleged that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, citing Fruehan, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202.
In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), as part of a plea agreement, the prosecution promised, in part, to recommend that the sentences imposed upon the defendant run concurrently. The trial court chose not to follow the prosecution's recommendation and imposed consecutive sentences upon the defendant. The defendant then filed a motion to modify the sentence imposed, and at the hearing on such motion, the prosecution noted: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The defendant's motion to modify was denied. The defendant then sought to withdraw his guilty plea, contending that the prosecution had violated the defendant's due process rights by failing to comply with the terms of the plea agreement. The motion was overruled.
The Wills court framed the issue as this: "Ms the [prosecution] bound by the plea agreement at the hearing on [the] defendant's motion to modify the sentence?" Id. The court noted that "[t]he issue of whether the prosecution may deviate from the terms of the plea agreement during post-sentence proceedings" was an issue of first impression in Kansas. Id. at 66, 765 P.2d at 1117. In its consideration of the issue, the court stated: "[I]t is reasonable to expect continuing prosecutorial adherence to the [plea] agreement: a prosecutor's commitment to a specified sentence recommendation would be of little value if the government's tongue is to be freed at a later, related proceeding." Wills, 244 Kan. at 68, 765 P.2d at 1119.
Ultimately, the Wills court concluded that "the [prosecution's] promise to make favorable sentence recommendations binds the [prosecution] at the subsequent hearing on the defendant's motion to modify sentence, absent language in the plea agreement limiting the [prosecution's] promise to the original sentencing hearing." Id. at 69-70, 765 P.2d at 1120. The court found that absent language in the plea agreement to the contrary, "the defendant would reasonably expect the [prosecution] to be bound by its promise at all hearings which affect the determination of his sentence." Id. at 69, 765 P.2d at 1119-20.
In the instant case, the State suggests that a trial court abuses its discretion by imposing a sentence based on impermissible considerations or mistaken rationale. See State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998). This certainly is true. However, in an effort to buttress its argument regarding Thompson's sentences, the State also suggests that the sentences were illegal. The State points out language from People v Arriaga, 199 Mich. App. 166, 169, 501 N.W.2d 200, 201 (1993), in which the court noted that the prosecution was "entitled to appeal from an unlawful sentence." However, the sentences imposed in the instant case were not unlawful or illegal. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. U. S. v. Greatwalker, 285 F.3d 727 (8th Cir. 2002); State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).
The majority finds that Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); Arriaga, supra; and State v. Wills,244 Kan. 62, 765 P.2d 1114 (1988), are all distinguishable from this case. However, in my opinion, U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), cited by the majority as "the most logical and clearly reasoned decision supporting our view," is also factually distinguishable from our case. The First Circuit Court of Appeals found that the sentence imposed in Anderson was in violation of the law. The sentences in the instant case were within the statutory limits for the crimes committed by Thompson, and they were neither unlawful nor illegal. Rather, the issue is whether the sentences were an abuse of the trial court's discretion, and in my opinion, we need not reach the issue of whether or not the district court abused its discretion when sentencing Thompson.
After reviewing each of the aforementioned cases, it appears to me that in the plea agreement in the instant case, the State agreed to submit to the trial court's discretion by agreeing to stand silent regarding Thompson's sentences. The situation is not unlike that seen in Fruehan, where the court noted that the Commonwealth "agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement." 384 Pa. Super. at 161, 557 A.2d at 1095. As previously mentioned, there are factual distinctions between our case and Fruehan. However, in my opinion, with regard to the actual questions presented in these cases, these are distinctions with no real differences. Despite the factual distinctions, I find the reasoning employed by the Fruehan court to be persuasive. To permit the State in the instant case to appeal Thompson's sentences as excessively lenient and to allege that the trial court abused its discretion, after the State submitted to the court's discretion, would be to permit the State to deprive Thompson of the benefit of his bargain and would defeat his reasonable expectations of the plea agreement.
Therefore, I would find that the State should not be allowed to complain about the discretionary aspects of sentences imposed when it bargained away the right to take a position on the sentences in the first place, and I would hold that the State has waived its right to appeal the discretionary aspects of Thompson's sentences. Since Thompson's sentences were neither illegal nor unlawful, I would affirm the judgment of the district court on these grounds, rather than on those expressed by the majority.
7.2.6.7.3 Case Study 7.2.6.7.3 Case Study
7.2.6.7.3.1. Cyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution (Case Study Part I)
7.2.6.7.3.2. Cyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution (Case Study Part II)
7.2.6.7.3.3. Cyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution (Case Study Part III)
7.2.6.8 VIII. Group Criminality 7.2.6.8 VIII. Group Criminality
7.2.6.8.1 VII.A. Accomplice Liability 7.2.6.8.1 VII.A. Accomplice Liability
Most of the cases we have studied have involved only one criminal, and we have considered the culpability only of the principal actor committing the crime. In reality, however, many crimes implicate multiple people. Complicity is not actually a crime; rather, it is a theory of liability whereby a person can be criminally liable as an accomplice. In aiding a person who commits a crime, an accomplice becomes personally liable for the other person’s crime. Accomplice liability holds a person, as a result of his own actions, responsible for someone else’s actions. Increasing a person’s liability beyond the scope of his direct actions, however, risks overextending liability. Courts and legislatures often account for this by adjusting the mens rea requirement upward. How far should liability extend? To specifically intended results, to foreseeable results, or to all results that may occur? As you read these cases, note not only when courts attach accomplice liability, but also how far that liability extends.
7.2.6.8.1.1 State v. Maxey 7.2.6.8.1.1 State v. Maxey
STATE of Tennessee, Appellee,
v.
Donna MAXEY, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
Gary Howell, Columbia, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Cecil H. Ross, Asst. Atty. Gen., Criminal Justice Div., Nashville, Mike Bottoms, Dist. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., Columbia, for appellee.
OPINION
SUMMERS, Judge.
The Circuit Court at Maury County entered a jury verdict finding Donna Maxey[1] guilty of the crime of the rape of a child pursuant to T.C.A. § 39-11-402 (1991) and T.C.A. § 39-13-522 (Supp. 1994). The court imposed a sentence of fifteen years. Pursuant to T.R.A.P. 3(b) Maxey has appealed and presents the following issues:
(1) Is the evidence sufficient to support the jury's verdict?(2) Were the trial court's jury instructions erroneous?(3) Did the court err in refusing to find Maxey an especially mitigated offender?
For the reasons stated herein, we reverse the jury verdict and dismiss the charge against Maxey.
In a separate case, Todd Hampton pled guilty to simple rape of the victim in this appeal, a twelve year old female. The state indicted Maxey, the victim's former aunt, charging her with rape of a child, contending that she was responsible for Hampton's crime. The jury convicted Maxey and she has appealed, arguing that the evidence is [757] insufficient to support a finding that she intended that Hampton rape the victim.
The facts basic to this appeal are undisputed. On the evening of the offense, the victim's mother reluctantly gave the victim permission to spend the night with Maxey at Maxey's stepfather's house. Maxey and the victim went to Maxey's stepfather's house for approximately twenty minutes and then went to Maxey's sister's trailer. Todd Hampton, twenty years old, and Dale Adcock, Maxey's nephew, were at the trailer. Maxey brought a half gallon of whiskey into the trailer and Hampton, Adcock, Maxey, and the victim began drinking. After two or three drinks, the victim became drunk and got sick. Maxey and apparently Hampton and Adcock drove the victim around the block in an attempt to sober her up by exposing her to fresh air. In a further attempt to sober up the victim, they placed her in a cold shower. After borrowing some clothes from Hampton, the victim went into the back bedroom of the trailer and went to sleep. Maxey and Adcock apparently continued drinking in the living room. The victim testified that when she woke up, Hampton was having sexual intercourse with her. The victim further testified that she told Hampton to get off of her and he did. Hampton testified that he went to the bedroom first, that the victim followed him into the bedroom; and they had consensual sexual relations. Hampton entered into a plea agreement with the state wherein he pled guilty to simple rape and testified at the trial of Maxey.
T.C.A. § 39-11-402 reads in pertinent part:
A person is criminally responsible for an offense committed by another if:(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.
On appeal, Maxey contends that there is insufficient evidence to support the jury's verdict that she "intended" that Hampton rape the victim. T.C.A. § 39-11-402(2) requires proof of intent to promote or assist the commission of the offense. Subsection (3) requires intent to benefit in the proceeds or results of the offense or intent to promote or assist the commission of the offense. T.C.A. § 39-11-302(a) (1991) states that a person acts intentionally with respect to the nature of conduct or to a result of conduct when it is a person's conscious objective or desire to engage in the conduct or cause the result. The Sentencing Commission Comments to this definition explain that "[i]ntentional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur." The plain terms of T.C.A. § 39-11-402(2), (3) indicate that proof of negligence or recklessness does not suffice to make a person criminally liable. The intent required by these subsections is demanding. It is necessary that the defendant "in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree." Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976). The defendant must "knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime." State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Our review of the record reveals the following evidence on the intent issue. Maxey provided the victim with alcohol and placed her in the situation where she [758] was raped. Maxey attempted on two occasions to sober up the victim. When the victim told Hampton that she was sixteen, Maxey indicated to the contrary to Hampton by smiling and shaking her head negatively. Maxey told Hampton that the victim liked him. After the victim went to the bedroom, Maxey asked Adcock to go into the back bedroom and check on the victim. Adcock testified that he returned and told Maxey that the victim and Hampton were having sex. There is no evidence that Maxey took any action at this time. This being the extent of the evidence, we conclude that it is insufficient to establish that Maxey intended that Hampton rape the victim.
The state concedes that no Tennessee court has ever held that a person who merely exposes another to an unreasonable risk of criminal attack by a third party has intended that attack. The state further concedes that a review of the record indicates that there was virtually no evidence having any tendency to show that Maxey knew that Hampton intended to rape the victim and that there was no evidence that could support a reasonable jury verdict in finding beyond a reasonable doubt that she intended such a result. Accordingly, we reverse the jury verdict and dismiss the charge against Maxey.
In light of our resolution of the first issue on appeal, it is unnecessary that we address the remaining two issues. We feel compelled, however, to comment on a portion of the trial court's jury instructions which is as follows:
As heretofore stated, the defendant is charged in the indictment with the offense of rape of a child. Any person who commits the offense of a rape of a child is guilty of a felony. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements. (1) that Larry Todd Hampton had unlawful sexual penetration of the alleged victim or the alleged victim had unlawful sexual penetration of Larry Todd Hampton, and (2) that the alleged victim was less than thirteen years of age, and (3) that the defendant acted intentionally, knowingly, or recklessly.
On appeal, Maxey argues that the use of the word "recklessly" in the third portion of the instructions impermissibly misled the jury as to the mens rea necessary for conviction under T.C.A. § 39-11-402 authorizing criminal liability for the conduct of another. We agree. As we discussed supra, this statute requires a mens rea of intent. Evidence of a mens rea of recklessness is insufficient to support a conviction under this statute. A preferable instruction in these circumstances would have provided as follows: (3) that the defendant acted with the necessary intent to be criminally responsible for the offense committed by another.
Reversed and dismissed. Costs assessed to the state.
WADE and WELLES, JJ., concur.
[1] The defendant's name in the indictment appears as Maxie. Everywhere else in the record, it appears as Maxey.
7.2.6.8.1.2 State v. Gonzalez 7.2.6.8.1.2 State v. Gonzalez
STATE of Connecticut
v.
Jason GONZALEZ.
Appellate Court of Connecticut.
[342] Glenn W. Falk, special public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Richard Colangelo, senior assistant state's attorney, for the appellee (state).
DiPENTIMA, C.J., and ALVORD and WEST, Js.
DiPENTIMA, C.J.
The defendant, Jason Gonzalez, appeals from the judgment of conviction,[1] rendered after a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8[2] and 53a-55a.[3] On appeal, the defendant claims that the evidence at trial was insufficient to support [343] the jury's verdict.[4] Specifically, the defendant argues that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal.[5] We reverse in part the judgment of the trial court.
Only two witnesses who were at the scene testified at trial. First, Kenny Jackson testified that on the evening of December 25, 2007, he was celebrating Christmas with friends in a third floor apartment located in Building 13 of the Roodner Court housing complex in Norwalk. Jackson and his friends were drinking alcohol, and at approximately 9 or 10 p.m., he went down to the first floor of the building to purchase marijuana and crack cocaine. When Jackson arrived downstairs, he encountered Donald Wilson, the defendant and some women. Jackson testified that he asked the men, "[w]ho's straight?" meaning that he was looking to purchase drugs. Wilson told Jackson that he had drugs to sell. Wilson and Jackson went upstairs to the second floor of the building to conduct the transaction.
On the second floor, the victim was also celebrating Christmas with his family in his mother's apartment. After learning about the drug transaction going on in the hallway, the victim came out of the apartment into the hallway. Jackson testified that the victim then gave Jackson and Wilson a look signifying his disapproval of the transaction. Jackson and Wilson returned downstairs to the first floor. The victim followed them downstairs and gave them another disapproving look. Jackson told Wilson that they should wait until the victim left before conducting the transaction.
Jackson then testified that the victim then began walking toward the front door of the building, followed by Jackson and Wilson. The defendant was in the hallway near the front of the building. As the victim walked out of the building, the defendant said "Merry Christmas." When the victim did not respond, the defendant called him an "asshole." The victim reentered the building and asked the defendant what he had said to him. In an attempt to calm the situation, Jackson told the victim, "[the defendant] didn't say anything to you." The defendant then pulled out a gun and said, "Yeah, I didn't say anything. I didn't say anything to you." The victim grabbed the gun, and he and the defendant began to struggle for control of the weapon. Jackson fled the scene.
The second witness was Frederick Paulk, the victim's brother (Paulk), who testified that he heard gunshots a couple minutes after the victim left the second floor apartment. Paulk exited the apartment and looked over the balcony, where he observed the victim and the defendant struggling. Paulk saw a woman holding the defendant around the waist and telling him to stop. Then, Paulk observed Wilson pointing a gun at the victim. Paulk told Wilson to stop, saying, "[d]on't do it." The defendant and the victim broke loose from each other and the victim fell against a wall. Paulk saw Wilson shoot the victim and then back out of the building, using the defendant as a shield. Paulk did not observe anyone other than Wilson with a [344] gun. Finally, Gerard Petillo, a forensic science examiner, testified that he was unable to determine whether the bullets recovered from the victim's body and from the crime scene were fired from the same firearm. He also testified, however, that one Glock semiautomatic firearm fired the shell casings that were recovered from the scene.
The defendant was arrested and, following a jury trial, he was convicted of manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a-8 and 53a-55a. The court sentenced the defendant for his conviction of criminal possession of a firearm to five years to serve, two years of which was the mandatory minimum. The court sentenced the defendant for his conviction of carrying a pistol without a permit to five years to serve, one year of which was the mandatory minimum. The sentences for the conviction of criminal possession of a firearm and carrying a pistol without a permit were to run consecutively with each other, but concurrently with the manslaughter conviction. The court sentenced the defendant for the manslaughter conviction to a term of forty years to serve, five years of which was the mandatory minimum. Finally, the court imposed a sentence enhancement of five years for the commission of an A, B or C felony with a firearm in violation of General Statutes § 53-202k, which was to run consecutively to the previously imposed sentences. Thus, the court imposed a total effective sentence of forty-five years to serve, ten years of which was the mandatory minimum. This appeal followed.
The defendant claims that the evidence at trial was insufficient to support the jury's verdict of guilty of manslaughter in the first degree with a firearm as an accessory. We agree.
"We begin by setting forth the appropriate standard of review. Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....
"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....
"[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [345] upon the evidence.... However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted.) State v. Billie, 123 Conn.App. 690, 695-96, 2 A.3d 1034 (2010).
In order to prove that a defendant is guilty of manslaughter in the first degree with a firearm as an accessory under §§ 53a-8 and 53a-55a, "the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried, or threatened to use a firearm." (Emphasis added.) State v. Gonzalez, 300 Conn. 490, 496, 15 A.3d 1049 (2011). "To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.... Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." (Citation omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn.App. 511, 517, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).
"Since under our law both principals and accessories are treated as principals... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand....
"To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime.... Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it." (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn.App. 474, 484, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).
Here, there was insufficient evidence to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson, the principal, in committing manslaughter in the first degree with a firearm. The state argues that the defendant was properly convicted upon sufficient evidence, both direct and circumstantial, and from the "intricate chain of eminently reasonable and logical inferences flowing from the evidence." We [346] disagree. The record is devoid of any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson in the commission of the crime of manslaughter. Moreover, there were no facts before the jury from which it reasonably could have inferred that the defendant engaged in such conduct. The testimony adduced at trial indicated that the defendant pointed a gun at the victim, and the two then began struggling for the weapon. The record contains no evidence, however, as to how the gun came into Wilson's possession, nor any evidence of any conduct by the defendant which reasonably could be interpreted as assisting Wilson.
The state argues that Wilson and the defendant were associated in the drug trade, that the victim was interfering with a drug transaction and that the defendant aided Wilson in shooting the victim by "providing the weapon and introducing it into the situation." First, the only circumstantial evidence suggesting that the defendant was associated in the drug trade with Wilson was that they were together when Wilson told Jackson that he would sell him drugs and that the defendant possessed a gun and pointed it at the victim. The state cites cases reciting the well established correlation between drug dealing and firearms. See, e.g., State v. Cooper, 227 Conn. 417, 426 n. 5, 630 A.2d 1043 (1993). We note, however, that this court has stated that in Cooper and cases like it, guns, or testimony about the presence of guns, were properly admitted into evidence because the evidence was "relevant and material for reasons other than a well established correlation between drug dealing and firearms." (Emphasis added; internal quotation marks omitted.) State v. Mozell, 36 Conn.App. 672, 676, 652 A.2d 1060 (1995); see id., at 677-78, 652 A.2d 1060 (court improperly admitted gun into evidence in absence of any evidence tying gun to alleged conspiracy, but admission was harmless).
Moreover, the defendant's presence near Wilson at the time Jackson inquired about purchasing drugs is insufficient to establish his involvement in the transaction. See, e.g., State v. Fair, 118 Conn.App. 357, 362, 983 A.2d 63 (2009) (defendant's mere presence not enough to support inference of dominion or control for conviction of illegal possession of narcotics, but where other pieces of evidence tie defendant to dominion and control, finder of fact may consider presence and draw inferences from that presence and other circumstances linking defendant to crime); State v. Madison, 116 Conn.App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929, 980 A.2d 916 (2009) (presence in high crime area alone insufficient to establish reasonable and articulable suspicion for purposes of fourth amendment); State v. Rodriguez, 11 Conn.App. 140, 149, 525 A.2d 1384 (1987) (mere fact, without more, that person is associating with or in presence of others who are suspected of criminal activity does not establish probable cause to arrest or search that person).
Although the defendant brandished a gun at the victim, the evidence suggests that this event occurred independently of the drug transaction. There was no evidence that the defendant participated at all in the drug transaction. Jackson testified that the defendant said "Merry Christmas" and the victim did not respond, which angered the defendant, prompting him to call the victim an "asshole." This exchange, in turn, led to the altercation between the defendant and the victim. The evidence suggests that the defendant and Wilson were associated with each other on the night of the shooting, but there is no evidence inviting a reasonable inference that this association was related to the drug trade. State v. Green, 261 Conn. 653, 672-73, [347] 804 A.2d 810 (2002) (evidence insufficient to convict defendant of conspiracy to commit murder where only evidence that could support inference of conspiracy was that defendant and confederates were friends, defendant may have had dispute with victim and defendant and confederates simultaneously shot at victim). Thus, in the absence of any evidence tying the defendant to the drug transaction, we cannot conclude that the evidence was sufficient for the jury to infer that the defendant was associated in the drug trade with Wilson.
Second, the evidence does not support a reasonable inference that the defendant aided Wilson merely by introducing the weapon into the situation. Although the state cites State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000), in support of this argument, that case is inapposite. In Turner, our Supreme Court concluded that there was sufficient evidence to establish that the defendant had the requisite intent to kill the victim, as required for a conviction of murder as an accessory. Id., at 747, 751 A.2d 372. Our Supreme Court stated that the jury reasonably could have found that the defendant aided the principal because on the night of the shooting, the defendant began "dancing around'" on the street corner opposite from the victim. Id., at 749, 751 A.2d 372. Our Supreme Court then stated that the jury reasonably could have concluded that the defendant's unusual behavior was "meant to distract the victim and bystanders while [the principal] approached from behind to shoot the victim." Id. In the present case, the defendant did not provide any assistance to the principal. Although the defendant pointed a gun at the victim and then struggled for control of the weapon, this conduct alone does not support a reasonable inference that he, by so acting, intentionally aided the principal in killing the victim.
In addition, our Supreme Court in Turner stated that the jury reasonably could have inferred that the defendant gave the principal the weapon used in the shooting. A witness testified in Turner that the shooter used a weapon of the same type that had been in the defendant's possession a week before the shooting. Id., at 749-50, 751 A.2d 372. Here, the gun that the defendant pointed at the victim was the same gun that Wilson used to shoot the victim. There is no evidence, however, that would support a reasonable inference that the defendant gave the weapon to Wilson. Unlike in Turner, where the defendant gave the principal the weapon in advance of the crime, in this case the most the evidence suggests is that Wilson acquired the weapon in the midst of the struggle between the victim and the defendant. See State v. Green, supra, 261 Conn. at 671-73, 804 A.2d 810; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987) (evidence insufficient to sustain conviction of felony murder where no witness claimed to have seen defendant commit any crime, no knife was recovered from defendant and no proceeds of underlying robbery were discovered on defendant); compare State v. Foster, 202 Conn. 520, 536, 522 A.2d 277 (1987) (evidence sufficient to convict defendant of criminally negligent homicide as accessory where defendant intentionally aided principal by giving him knife); State v. Harris, 49 Conn.App. 121, 131-32, 714 A.2d 12 (1998) (evidence sufficient to sustain conviction of manslaughter as accessory where defendant was gang leader, defendant gave weapon to gang member and directed him to shoot victim). Thus, we conclude that there was insufficient evidence that the defendant intentionally aided Wilson in shooting the victim.
We recognize that "it does not diminish the probative force of the evidence [348] that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Na'im B., 288 Conn. 290, 296, 952 A.2d 755 (2008). "The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Emphasis added; internal quotation marks omitted.) State v. Coleman, 304 Conn. 161, 169, 37 A.3d 713 (2012). Applying this rule, we conclude that the jury could not have inferred reasonably and logically that there was sufficient evidence to convict the defendant of manslaughter in the first degree with a firearm as an accessory.[6]
The judgment is reversed with respect to the defendant's conviction of manslaughter in the first degree with a firearm as an accessory and with respect to the sentence enhancement pursuant to § 53-202k, and the case is remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
[1] The defendant also was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The defendant does not challenge his conviction of these counts on appeal.
[2] General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."
[3] General Statutes § 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm...."
General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person...."
[4] The defendant also claims that prosecutorial impropriety in closing argument deprived him of a fair trial. Because we conclude that the evidence was insufficient to support the jury's verdict, we do not address this claim.
[5] The defendant also argues that there was insufficient evidence that he intended to cause serious physical injury to the victim. Because we conclude that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal, we do not address this claim.
[6] We note that because we must reverse the defendant's conviction of manslaughter, we must also vacate the sentence enhancement which the court imposed pursuant to § 53-202k, because the defendant's conviction of criminal possession of a firearm in violation of § 53a-217, a class D felony, and carrying a pistol without a permit in violation of § 29-35(a), do not constitute A, B or C felonies as required by § 53-202k.
7.2.6.8.1.3 People v. Luparello 7.2.6.8.1.3 People v. Luparello
THE PEOPLE, Plaintiff and Respondent,
v.
THOMAS GAETANO PHILLIP LUPARELLO et al., Defendants and Appellants.
Court of Appeals of California, Fourth District, Division One.
[417] COUNSEL
Thomas Gaetano Phillip Luparello, in pro. per., Michael Ian Garey, Ann Shaw and Scott R. Jakust, under appointments by the Court of Appeal, for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Keith I. Motley, M. Howard Wayne and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
[418] OPINION
KREMER, P.J.
Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (Pen. Code,[1] §§ 182, subd. 1, 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor's conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants' contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello's wife, Terri left her job in May 1980. Terri then met and shortly thereafter married Ed Gadzinski.
Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello's house. Luparello then had three other roommates: Brad Wilson, Ben Wilson and Ron Jennings.
On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello's house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello's child.
Luparello called home on May 9 and a roommate told him Terri had left. Luparello returned immediately and began an intensive search for Terri. He [419] contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed's workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello's patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello's roommate, and the four drove to Orduna's house. On the way, Luparello and Salmon discussed the cost for Orduna's and Salmon's services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.
Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as "Spooky" gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to "thump" the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and "Spooky" left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.
On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.
Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. 1, [420] 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.
After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.
LUPARELLO'S APPEAL
I
PROSECUTORIAL MISCONDUCT
(1a) A prosecutor is not merely an advocate for the People. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ..." (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal. Rptr. 594, 487 P.2d 1234].) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal. Rptr. 855, 659 P.2d 1144].) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal. Rptr. 632, 523 P.2d 672].) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance "in isolation might not be considered `grossly improper', [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction." We begin by reviewing each allegation and then determining their cumulative effect, if any.
A. Improper References to Street Gang Membership
In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the "F-Troop" gang, an ethnic [421] street gang based in Orange County. (2) Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.
Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor's attempt to inform the jury regarding Orduna's prior assistance in Luparello's dispute with some neighbors. The first of these occurred during Brad Wilson's direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued: "... What was the substance of the conversation?
"A. That at a previous time — I'm unsure when —
"[Luparello's Counsel]: Same objection.
"The Court: The objection is sustained as to the defendant Orduna. [¶] You may proceed.
"Q.... What was the substance of the conversation, where Dr. Luparello was indicating to you what Dr. Luparello's previous relationship with Mr. Orduna was?
"A. He said that early in the year he had trouble with his neighbors across the street and that he had — I don't know what to say, the exact words — used them or got their help in settling the dispute.
"Q. Referring to Mr. Orduna?
"A. Yes.
"[Luparello's Counsel]: Object. Move to strike. Irrelevant. And the previous grounds. [¶] It also appears to be speculation as to, as to who's involved and what it is.
"The Court: The testimony will be stricken as to the defendant Orduna. The objection is sustained."
[422] Later, during the testimony of Ben Wilson, the prosecutor elicited similar testimony: "Q. Didn't he say to you, didn't Dr. Luparello say to you that he felt Carlos and Johnny could take care of this problem at this time?
"A. Yes, Sir, he did.
".... .... .... .... .... .... .
"Q.... yes. Didn't Dr. Luparello also tell you they had taken care of other problems and they were sure they could take care of this one, also?
"A. Yes." Luparello immediately objected, asserting this query had violated the trial court's directive regarding evidence of Orduna's past acts. The trial court agreed but determined any wrongdoing could be remedied by permitting the neighbor involved in the alleged dispute to be called as a defense witness. Luparello's counsel agreed this would resolve potential problems and the neighbor was called and testified favorably for Luparello.
We agree with the trial judge and Luparello's trial counsel that any prejudice flowing from the prosecutor's questions was greatly minimized by the neighbor's testimony, which completely eliminated any suggestions of wrongdoing by Orduna in connection with the neighborhood dispute. Reversal on this basis is not required. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
(3) On two other occasions, however, the prosecutor ignored the trial court's earlier admonition and attempted to put before the jury evidence Orduna belonged to a street gang which was routinely involved in violent and threatening activities. In the first instance, the prosecutor questioned Martin's neighbor who witnessed the shooting and asked whether he had been threatened sometime before testifying. The neighbor responded someone had written "FXTX Vida" on his van. In response to Luparello's motion to strike, the prosecutor, out of the presence of the jury, interpreted the graffito as meaning "F Troop, Live or Die." The trial court admitted the evidence, but admonished the jury to consider the evidence only in regard to the witness's credibility. (See People v. Lybrand (1981) 115 Cal. App.3d 1 [171 Cal. Rptr. 157].)
This admission of marginally relevant evidence was later turned on its head when the prosecutor sought to take advantage of its inflammatory effect in his cross-examination of Police Officer Daniel McCoy who had been called as a defense witness for the purpose of testifying regarding statements made by Michael Martin, the victim's brother, shortly after the shooting. Michael Martin was the person who had answered Orduna's knock on May [423] 14 and had called his brother to the door. Michael described the person he saw to Officer McCoy as "Mexican," "five three to five five," "kind of stocky," and wearing a black or dark blue beanie "like the F-Troopers and Delhi guys wear."
Perceiving that an opportunity had been thrust into his hands to get before the jury suggestive and prejudicial information which he had otherwise been prevented from introducing, the prosecutor cross-examined Officer McCoy as follows: "[Prosecutor]: You heard a reference in the tape — it's on page 3 and it's in the middle of the page on page 3 — to F-Troopers. And the question was, `You talking about the beanie, the navy type beanie, the cloth beanie that goes over the head?'
"And then Mike's answer was, `Like the F-Troopers and Delhi guys wear, yeah.'
"Is that right?
"A. Yes, Sir.
"Q. What type of experience have you had with this `F' Troop gang?
"A. I spent five years —
"[Luparello's Counsel]: I have to object to the relevance of saying `this "F" Troop gang.'
"The Court: Sustained.
"[Luparello's Counsel]: I have no objection if the officer corroborates that that's what a lot of them wear. But the way the question was phrased —
"The Court: The objection's been sustained.
"[Prosecutor]: I'll rephrase the question then, Your Honor.
"Q. What experience do you have with `F' Troop, as a Santa Ana police officer?
"A. I was assigned to the street gang detail for five years and during that time conducted many investigations involving `F' Troop.
"Q. What type of gang is `F' Troop?
[424] "A. It's a street gang.
"Q. Where are they located?
"[Luparello's Counsel]: I have to object again. It's not relevant to this case.
"[Prosecutor]: It certainly is, Your Honor.
"The Court: The objection is sustained.
"Q. Well, have you become aware of the type of hats that `F' Troop gang members where [sic]?
"A. Well, their clothing, what they have worn, yes, sir.
"Q. What type of clothing does this `F' Troop gang where [sic]?
"A. I've seen them wearing the beanies.
"Q. What other type of clothing do they wear?
"A. (No response.)
"Q. Like pants, do they wear khaki type pants?
"A. Yes, Sir.
"Q. Have you seen them wearing just plain t-shirts?
"A. Yes, Sir.
"Q. Do they wear any particular type of shoes?
"A. No, not a particular type but a variety.
"Q. Over what period of time have you had occasion to come in contact with `F' Troop gang members in the City of Santa Ana?
"A. Over a five-year period.
"Q. And had you been investigating crimes that have been committed by these gang members?
[425] "A. Yes, Sir.
"Q. And you've been assigned to the crimes against persons detail at the Santa Ana police department; is that right?
"A. Yes, Sir.
"Q. That involves homicides and attacks against people?
"A. Yes, Sir.
"Q. Prior to that you were assigned to a gang detail specifically involving the apprehension of gang type warfare in Santa Ana?
"A. Yes, Sir.
"Q. Was it during this period of time that you became aware of this `F' Troop gang?
"A. Yes, Sir.
"Q. Does the `F' Troop gang —
"[Luparello's Counsel]: I object. I move to strike the entire thing about `F' Troop.
"[Prosecutor]: Your Honor, he brought it out.
"[Luparello's Counsel]: There's absolutely no relevance. The witness merely stated that the type of beanie was consistent with, in his opinion, `F' Troop or the Delhi guys and from that a line of irrelevant questions is being asked. Object. Move to strike what's in so far.
"The Court: Well, the objection to this question, the court will rule on it when counsel finishes the statement. Or the question.
"[Prosecutor]: Fine. Thank you, Your Honor.
"Q.... Does F-X-T-X signify the `F' Troop gang?
"A. Yes, Sir.
"The Court: Then the objection to that question will be sustained. The answer is stricken.
[426] "I take it you still had your objection?
"[Luparello's Counsel]: Yes."
In this manner, the prosecutor used a relatively innocuous description of a type of head gear worn by the man who knocked at Martin's door and began a foray based consistently on leading questions in which he attempted to inform the jury by innuendo not only that F-Troop was a street gang whose members were suspected of committing homicides and other violent attacks on persons, but also that the gang was likely connected to the case in such a way that its members had threatened a material witness.
The People seek to justify the prosecutor's conduct on the theory that defense counsel "opened the door" by introducing Michael Martin's taped statement which included the "F-Troop" reference. The fact that a topic is raised on direct examination and may therefore appropriately be tested on cross-examination, however, does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination. Here, the prosecutor's attempt to cast Orduna as a member of a violent gang was irrelevant for any purpose other than to suggest Orduna's predisposition to commit violent acts, a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). (People v. Perez (1981) 114 Cal. App.3d 470, 477 [170 Cal. Rptr. 619]; see also In re Wing Y. (1977) 67 Cal. App.3d 69, 79 [136 Cal. Rptr. 390].)
While the court's sustaining of defense objections and striking of testimony suggested it did not condone such conduct, the flagrancy of the prosecutor's misconduct makes it highly unlikely that even a conscientious jury could completely ignore what it had heard. (See People v. Taylor (1961) 197 Cal. App.2d 372, 382 [17 Cal. Rptr. 233]; see also People v. Kirkes (1952) 39 Cal.2d 719, 726 [249 P.2d 1].) On the other hand, we must recognize that the prejudicial effect of inadmissible gang membership evidence lies in its tendency to suggest that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal. Rptr. 165, 647 P.2d 569] (plur. opn.); People v. Perez, supra, 114 Cal. App.3d at p. 477.) Here, the evidence surrounding the planning and preparation for the assault on Mark Martin adequately demonstrated Orduna's willingness to use weapons and engage in acts of violence. (See ante, p. 419.) In this context, evidence connecting Orduna to a violent street gang — although hardly desirable from Orduna's or Luparello's point of view — did not have the impact it might otherwise have had. Moreover, while the prosecutor's misconduct firmly implanted in the jurors' minds that F-Troop was a violent gang, the evidence of Orduna's membership in the gang [427] was tangential. In an attempt to minimize the effect of the prosecutor's misconduct, the court was careful to instruct the jurors "... that there [was] no credible evidence in this case that Carlos Orduna was a member of any criminally oriented gang."
California appellate courts have repeatedly recognized that even flagrant misconduct by a prosecutor does not relieve them of their obligation to ascertain whether the misconduct resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 120-121 [32 Cal. Rptr. 4, 383 P.2d 412]; People v. Wirth (1960) 186 Cal. App.2d 68, 78 [8 Cal. Rptr. 823].) Under the circumstances of this case, we do not believe that the gang membership evidence which was improperly placed before the jury makes it reasonably probable that the jury would have reached a different verdict in the absence of the misconduct. (See People v. Munoz (1984) 157 Cal. App.3d 999, 1013 [204 Cal. Rptr. 271].)
B. Bad Faith Inquiry
(4) Ben Wilson testified on direct examination by the prosecutor that Luparello told him he paid $200 for the assistance of Orduna and Johnny Salmon. The prosecutor was apparently aware that informers who had been incarcerated with Salmon stated he told them he was paid $800 up front and was to receive $10,000 for beating Mark Martin and another $15,000 as a bonus for killing him. During a break in Ben Wilson's testimony, the respective counsels discussed in camera the possibility of admitting the informers' statements, and the trial court indicated its preliminary view that such evidence was inadmissible, the final decision to be reached at a later hearing.[2]
Thereafter the prosecutor resumed his questioning of Ben Wilson as follows: "Q. Now, do you recall Dr. Luparello ever telling you that he had paid Johnny Salmon $800 up front?
"A. No, Sir, I do not.
"Q. And that he was to get a total of $10,000 —." Luparello's counsel objected, challenging the leading nature of the question and the prosecutor's good faith in asking it. The court agreed with defense counsel and, after a [428] voir dire examination of Wilson in chambers, prohibited the prosecutor from continuing his line of questioning. The court and defense counsel then agreed to forego any admonition to the jury on the theory it would merely draw attention to the point.
We are troubled by the prosecutor's attempt to use his questioning to get before the jury information he could not legitimately introduce directly through the testimony of the informers. (See People v. Perez (1962) 58 Cal.2d 229 [23 Cal. Rptr. 569, 373 P.2d 617]; People v. Blackington (1985) 167 Cal. App.3d 1216 [213 Cal. Rptr. 800].) We cannot conclude, however, that such conduct requires reversal. The suggestion contained in the prosecutor's question merely disagreed in amount with facts already admitted by Wilson. The jury was properly instructed pursuant to CALJIC No. 1.02 that questions asked by counsel are not evidence and are not to be considered as such. In no sense can it be considered reasonably probable that a different result would have been reached in the absence of the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Misconduct During Closing Argument
(5a) Luparello asserts the prosecutor unacceptably and inflammatorily compared him to Charles Manson and unconstitutionally commented on Luparello's failure to testify. (1b) In reference to the first allegation, we note the prosecutor may broadly argue the facts and law of a case but may not prejudicially misrepresent the character of the accused nor intentionally appeal to the fears and emotions of the jury. (People v. Fosselman, supra, 33 Cal.3d at pp. 580-581; People v. Jones (1970) 7 Cal. App.3d 358, 362-363 [86 Cal. Rptr. 516].) In discussing the instruction on aiding and abetting, the prosecutor stated: "So this is one who aids and abets. One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are committing, but he's also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"If one person sets in motion some people that are out of control and they go in and start killing people —
"An example might be, and we talked about it, is the Charles Manson case type of thing. Charles Manson is a classic example of the aider and abettor. He apparently wasn't present at any of the crime scenes. Yet he set in motion some people that were just out of control. And they killed and maimed at will. Yet Charles Manson was responsible for those particular crimes.
[429] "And he's responsible under theories such as this one here where even though the person didn't intend that a particular crime be committed, that person is liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"So if you send some — I hate to use the word `crazy' because it's got different meanings in the criminal law. But if you send some people that are completely out of control to go do something, and it's reasonable and probable that they will get carried away and execute someone, then you're guilty, just as guilty as they are, of that execution."
Luparello did not properly preserve his challenge to this argument by objection below. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal. Rptr. 1, 609 P.2d 468].) (5b) In any event, the prosecutor's comments were neither erroneous nor prejudicial. His reference to Charles Manson provided a proper, albeit provocative, example of the workings of an aider and abettor theory. The comments neither expressly or impliedly parallel Luparello's character to that of Charles Manson. Mere reference is not an impassioned plea aimed at the jury's fears and anxieties.
(6) Luparello further asserts the prosecutor's following argument violates the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which prohibits comment on the defendant's exercise of his constitutional right not to testify: "Now with respect to Mr. Chatterton [Luparello's counsel], a number of places here Mr. Chatterton has indicated to us that — at one time Mr. Chatterton indicated that Dr. Luparello wouldn't have wanted to tell Brad that, referring to something, I don't know what he's referring to offhand. One time Mr. Chatterton indicated that, either in argument or in the opening statement, that Dr. Luparello lied to the police because of Kelly Schwulst's statement to him.
"Another time Dr. Luparello asked Brad to go to the door at the Martin house because Brad wouldn't be involved in that, in a beating, says [sic]. That's why Dr. Luparello asked Brad to go to the door. Remember that?
"Another time — what do you think Dr. Luparello believed with respect to whether Brad would lie or not?
"All of those questions and statements suffer from the same problem. There is no evidence in this case whatsoever as to what Dr. Luparello was thinking about why Dr. Luparello asked Brad to do this, what Dr. Luparello heard from anyone other than what we heard in the case. What Dr. Luparello thought because Kelly called him. No evidence of that. Any evidence of [430] what was going on in Dr. Luparello's mind with respect to that is just rank speculation.
"We talked about this early on. Everything that is an inference from the facts has to be established by the facts. What are the facts? This is an important issue in this case. Why did Dr. Luparello lie so much to the police? Mr. Chatterton's answer is because of what Kelly Schwulst had told him. Does that wash in your mind?
"One, there is no evidence whatsoever that that was what caused Luparello to lie to the police. That's just speculation by Mr. Chatterton. The only thing that we have in that respect is that Kelly did tell him that. So apply that in your experience."
While it is undisputed "Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence...." (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal. Rptr. 652, 623 P.2d 213]; accord People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) Here, the prosecutor neither comments directly on Luparello's failure to testify nor indirectly encourages the jury to speculate about his silence. He instead properly reviews critical aspects of the defense theory relative to Luparello's mental state and points out the dearth of evidence to support the theory. Luparello's testimony was not necessarily the only material evidence on this point. That he did not testify and did not choose to proffer other relevant evidence does not preclude the prosecutor from illuminating this deficiency. The prosecutor's comments are not Griffin error.
D. Delay of Trial
(7a) On October 6, 1981, all parties stipulated the trial would recess during the trial judge's previously scheduled vacation and would reconvene on November 4, 1981. However, on November 4, the prosecutor could not proceed in the instant case because he had become unexpectedly involved with another murder trial. The prosecutor requested the instant trial be continued until November 23, 1981. After a hearing, the trial court granted the request. Luparello now argues this "delay" denied him a speedy trial and is another ground for misconduct. We find no merit in this contention.
Luparello cites People v. Hannon (1977) 19 Cal.3d 588 [138 Cal. Rptr. 885, 564 P.2d 1203], for the proposition the "constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its [431] officers." (Id. at p. 609.) However, Hannon dealt exclusively with pretrial delay and has no relevance to the instant case. Indeed, even assuming the cited language did apply, Luparello's assertion would still fail. He has not shown, nor does the record reveal, the prosecutor intentionally or negligently delayed the instant proceedings. As was determined at the trial court's hearing on this matter, the delay resulting from the prosecutor's conflicting commitments was unavoidably unforeseeable.
In reviewing Luparello's allegations of misconduct, individually and collectively, while we find error, we find no significant prejudice to him.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
(8) The charge of inadequate assistance at trial is a serious one, and the appellant has the burden of proving his claim. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859].) "[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings. [Citations.]" (People v. Fosselman, supra, 33 Cal.3d at p. 584.) Further, "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses counsel had no rational tactical purpose for his act or omission." (Id. at p. 581.) Luparello grounds his complaint in his counsel's failure to oppose the People's motion to dismiss and his later failure to seek dismissal when his rights to a speedy trial were denied.
(9a) Early in the trial, the trial court was asked to determine the admissibility of a hearsay statement by Luparello. The court initially excluded the statement (although it later reversed its ruling and allowed admission). Believing the case against Luparello was jeopardized by the initial exclusion of the hearsay statement, the People sought to dismiss the information against Luparello. Luparello's counsel challenged this dismissal, and it is this act which Luparello now faults. Initially, we note the record clearly shows Luparello personally endorsed his counsel's action. Moreover, counsel's argument on this motion evidences numerous tactical decisions for his opposition. Counsel was aware jeopardy had not attached and the People would refile against Luparello. A new trial would not present the same obstacles to the admission of the challenged hearsay statement, and the increased investigation time afforded by a dismissal would likely strengthen [432] the People's case which counsel viewed as "weak" at that time. In sum, Luparello can not be heard to complain for a tactical action which he personally endorsed.
Luparello also contends his counsel should have sought dismissal when the trial was not commenced in accord with section 1382, subdivision 2. This section mandates dismissal when trial in a superior court is not commenced within 60 days after the information is filed. In the present case the information was filed on July 24, 1981, and trial was commenced on September 16, 1981. Given the elapsed time between these dates, Luparello's assertion must be seen as a result of a miscalculation. The 60th day of the statutory period was September 21, 1981. On these facts, Luparello's assertion must fail.
(7b) Finally, Luparello faults his counsel for failing to seek dismissal when the trial could not be reconvened on November 4. As discussed above, this delay did not infringe upon Luparello's right to a speedy trial, and there was no evidence of misconduct in the prosecutor's seeking of the continuance. (9b) Most importantly, the record shows Luparello's counsel again chose to proceed for tactical reasons. In discussing the court's ruling on a hearsay statement, Luparello's attorney stated: "I took the tactical position that I wasn't going to make a big stink about it; that the relationship that had been established up to that point in time had me winning on this issue when opposed to Mr. Brown [the prosecutor], and with Mr. Brown's position that he wasn't going to relitigate — and I recognize that was really in reference to going to another court — but it still led me to believe that with Mr. Brown and I in front of this court on that issue, I was going to win that issue.
"So rather than insist that we proceed to trial immediately or that we even oppose the trailing condition, we didn't do that. And I think that had we made a stink this court would have felt compelled to direct the district attorney to have somebody ready to try this case at a sooner time. But we continued to trail this matter until November the 23rd.
"I advised my client, during that period of time, to be patient, though he wanted to get this thing to trial. He doesn't like sitting in jail; that tactically it was better for us to have Bryan Brown on the case rather than to have some new attorney who might be more inventive, who might be willing to raise the argument to relitigate those evidentiary motions instead of Mr. Brown."
In reviewing all of Luparello's allegations, we find he has failed his burden of showing he was ineffectively assisted by counsel.
[433]
III
ADMISSION OF LUPARELLO'S HEARSAY STATEMENT
(10) On the day of the homicide, Luparello telephoned Mrs. Hazel Schwulst, the mother-in-law of Mark Martin's very good friend, and stated: "[I have] some Mexicans that are going to take care of Mark Martin." After an extensive hearing, the trial court reversed an earlier ruling and admitted the hearsay statement. Luparello now argues that ruling was improper under the rule of People v. Aranda, supra, 63 Cal.2d 518.
In Aranda the California Supreme Court held a defendant's extrajudicial statement which implicated a codefendant could not be admitted unless the trial court undertook one of several safeguards. (People v. Aranda, supra, 63 Cal.2d at pp. 529-531.) Here, however, Luparello is the declarant of the statement and in this capacity, the protections of Aranda do not apply. If this problem does arise it is Orduna, the arguably implicated nondeclarant, who is entitled to Aranda protections (and this he so argues). As to Luparello, the statement constitutes a party admission and is excepted from the hearsay bar by Evidence Code section 1220 which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...." Thus, the admission of the hearsay statement against Luparello was proper.
IV
INSTRUCTIONAL ERROR
(11) The prosecution alleged two overt acts to support the conspiracy to commit an assault charge against Luparello. Luparello argues each act, in itself, was sufficient to support the charge, and since the trial court failed to instruct[3] the jury to agree unanimously on one specific act, his conspiracy conviction should now be reversed.
While it is clear a trial court does have a duty to instruct sua sponte on general principles of law relevant to issues raised by the evidence (People [434] v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal. Rptr. 436, 650 P.2d 311]), the duty Luparello seeks to impose does not arise from the present facts. Indeed, case law holds the jury charge here was quite adequate. (People v. Skelton (1980) 109 Cal. App.3d 691, 715-717 [167 Cal. Rptr. 636].)
The court instructed that Luparello's meeting with Orduna and several other unnamed parties on May 13 to solicit their assistance in finding Ed and Terri Gadzinski constituted the first overt act and the second was the shooting of Mark Martin on May 14 (pursuant to the above conspiracy). Luparello argues that by coupling each overt act with other evidence two separate conspiracies are revealed, one occurring on May 13 and the other on May 14. Consequently, further instruction on whether one or two conspiracies were formed was required. He also argues that without greater explication, the instructions run afoul of the rule in People v. Diedrich (1982) 31 Cal.3d 263, 280-281 [182 Cal. Rptr. 354, 643 P.2d 971], which requires the jury to agree unanimously on a single, specific act as the basis for a particular conviction.
Luparello's hypothesis is unfounded. The evidence shows Luparello wanted to find Terri "at any cost," he solicited assistance from Orduna and Salmon, he paid $40 and promised more, he went to Mark Martin's house with Orduna and Salmon who carried deadly weapons, and he failed in his first attempt. Undaunted, Luparello called Hazel Schwulst the next day, again seeking information regarding Terri's whereabouts and stating he had some Mexicans who would take care of Martin. Several hours later Orduna, under pretense, led the victim to his death. The evidence thus shows a continuous conspiratorial effort that was simply thwarted in its first attempt to reach its goal. The evidence does not reveal two distinct conspiracies, as Luparello argues, but a number of distinct acts arising from "one overall agreement" and forming a continuous course of conspiratorial conduct. (See People v. Skelton, supra, 109 Cal. App.3d at p. 718.)
In any event, the special instructions requested by Luparello are not warranted in the present case. In People v. Skelton, supra, 109 Cal. App.3d 691, this court, faced precisely with the issue now raised by Luparello, determined a special instruction requiring jury unanimity on an overt act furthering a conspiracy need not be given when a jury is instructed in the language of CALJIC Nos. 6.10 and 17.50. CALJIC No. 6.10 defines conspiracy and provides: "In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the information...." CALJIC No. 17.50 is a concluding instruction which in part provides: "In order to reach a verdict all 12 jurors must agree to the decision and to any finding you have been instructed to include in your [435] verdict." After reviewing the instructions in Skelton, we concluded: "These most specific instructions [No. 6.10] must be viewed in conjunction with the unqualified requirements that proof be made beyond a reasonable doubt as to each element of an offense and that the verdict be unanimous. There is no inadequacy in the instruction given...." (Id. at p. 717.) Here as in Skelton, CALJIC Nos. 6.10 and 17.50 were given. And again as in Skelton, we find instruction on conspiracy to be proper and complete.[4] Thus, given the proffered instructions here, the trial court had no duty to provide further instruction sua sponte. (See People v. Mota (1981) 115 Cal. App.3d 227, 232-233 [171 Cal. Rptr. 212].)
V
CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
(12a) The trial court charged the jury with several different theories by which Luparello's guilt for first degree murder could be affixed; among these were conspiracy and aiding and abetting. On appeal, Luparello faults the application of the complicity theories in two ways. First, he maintains conspiratorial liability, as charged to the jury, violates the principle of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580].
In Ireland, the Supreme Court held felony-murder instruction was improper "when it is based upon a felony [in that case assault with a deadly weapon] which is an integral part of the homicide...." (Id. at p. 539.) In reaching its result, the high court reasoned: "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law...." (Ibid.)
Luparello concedes a felony-murder instruction was not given in the present case and the precise Ireland holding consequently does not apply. He asserts, however, the conspiracy instruction given here, that is, CALJIC No. 6.11, is the functional equivalent of the felony-murder instruction in Ireland and similarly allows improper "bootstrapping." We disagree.
[436] Luparello specifically points to the language of CALJIC No. 6.11[5] which provides: "Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan...." From this he reasons the jury, so instructed, could have found him guilty of first degree murder without any proof of malice notwithstanding he did not commit the homicide nor intend its commission. This, he concludes, replicates the error in Ireland.
While the Ireland court did fault the second degree murder finding there absent some consideration of malice, it did so because of the illogic of applying the felony-murder rule to those circumstances. The same failing does not apply here. (13) The felony-murder rule's purpose is to deter felons from killing negligently or accidentally. (People v. Satchell (1971) 6 Cal.3d 28, 34 [98 Cal. Rptr. 33, 489 P.2d 1361]; People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130]; People v. Summers (1983) 147 Cal. App.3d 180, 188 [195 Cal. Rptr. 21] (conc. opn. of Wiener, J.).) Theoretically, this end is achieved by holding would-be felons strictly responsible for all killings they commit during the perpetration, or attempted perpetration, of any statutorily enumerated felony. (People v. Washington, supra, 62 Cal.2d at p. 781.) While arguably accepting the rule's purpose, our courts have nevertheless consistently stated felony murder is a "highly artificial concept" which "deserves no extension beyond its required application." (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; accord People v. Dillon (1983) 34 Cal.3d 441, 463 [194 Cal. Rptr. 390, 668 P.2d 697].) The rule is seen as "unnecessary" in almost all cases in which it was applied and, indeed, has been viewed as ending "the relation between criminal liability and moral culpability." (People v. Washington, supra, at p. 783.) Thus, for example, where the underlying felonious conduct is not independent of an assault which results in death, that is, where it merges with the homicide, our courts have consistently ruled the killing was outside the felony-murder rule. (See, e.g., People v. Smith (1984) 35 Cal.3d 798 [201 Cal. Rptr. 311, 678 P.2d 886]; People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847]; People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22].) In [437] California, then, the felony-murder doctrine is judicially disfavored and restrictedly applied.
(12b) In contrast, the policy supporting conspiratorial liability receives neither the disfavor nor restriction which adhere to the felony-murder rule. That a conspirator is criminally liable for acts done in furtherance and as a reasonable consequence of a conspiracy is so well settled and accepted in California jurisprudence, citation to that proposition is burdensome rather than illuminating. An early and oft-cited statement of conspiratorial liability is found in People v. Kauffman (1907) 152 Cal. 331 [92 P. 861]: "`The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. Even if the common design is unlawful, and if one member of the party departs from the original design as agreed upon by all of the members, and does an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the natural or legitimate consequence of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.'" (Id. at p. 334.) (14a) The law, thus stated, implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. As recognized in People v. Welch (1928) 89 Cal. App. 18 [264 P. 324]: "Unquestionably, the purpose of the law in making it an offense to conspire to commit a crime is to reach everyone who in any way participated in forming the evil plan irrespective of who or how many carry out the design, and well may this be a protection to society, for a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law." (Id. at p. 22.) (12c) Thus, coconspirators, bound in criminal combination, are mutually bound to a punishment dictated by their conspiratorial efforts. Viewed in this light, the bridge between punishment and moral culpability, so illusory or, upon scrutiny, evanescent under the felony-murder rule, stands here on much firmer ground. So too, deterrence, while absent when the underlying felony merges under the felony-murder doctrine, is clearly present under [438] the accepted theory of conspiratorial liability. (14b) In combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in "planning poorly," each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy. (15) Moreover, our criminal code recognizes and, indeed, reinforces conspiracy's independent threat by identifying it as a separate and distinct crime which never merges with the resulting substantive offense.[6] (§ 182; People v. Williams (1980) 101 Cal. App.3d 711, 721 [161 Cal. Rptr. 830].) In sum, the logical and legal impediments to criminal liability found in Ireland and its progeny have little or no dissuasive value here in limiting conspiratorial liability for the natural and reasonable consequences of a conspiracy. This being so, we find no obstacle in applying the well-accepted rule of liability to hold Luparello criminally responsible for Martin's murder.[7]
Luparello next attacks the theoretical underpinnings of conspiratorial and aiding-and-abetting liability, and specifically argues the murder here was the unplanned and unintended act of a coconspirator and therefore not chargeable to Luparello under either complicity theory.[8]
(16) Luparello first faults both theories for "imposing" the mens rea of the perpetrator upon him. As Luparello views it, both theories work to presume conclusively the accomplice shares the perpetrator's intent and thereby runs afoul of Sandstrom v. Montana (1979) 442 U.S. 510 [61 [439] L.Ed.2d 39, 99 S.Ct. 2450]. In Sandstrom, the trial court instructed the jury that the law presumed a person intends the ordinary consequences of his voluntary acts. The Supreme Court reasoned the jurors, so instructed, "... could reasonably have concluded that they were directed to find against the defendant on the element of intent. The State was thus not forced to prove `beyond a reasonable doubt ... every fact necessary to constitute the crime ... charged,'...." (Id. at p. 523 [61 L.Ed.2d at pp. 50-51].) The instruction was thus held constitutionally defective and violative of the defendant's due process rights. (Id. at pp. 522-523 [61 L.Ed.2d at p. 50].) Here, however, neither the conspiracy nor the aiding and abetting instructions recite the flawed presumption found in Sandstrom, nor do they present some equivalent of that presumption. Indeed, Luparello errs when he concludes the perpetrator and accomplice must "share" an identical intent to be found criminally responsible for the same crime. Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 349, fn. 51 [hereafter cited as Complicity Doctrine].) This equivalence is found in intentionally encouraging or assisting or influencing the nefarious act. "[B]y intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party. The intention to further the acts of another, which creates liability under criminal law, may be understood as equivalent to manifesting consent to liability under the civil law." (Complicity Doctrine, supra, at pp. 354-355; see generally Robinson, Imputed Criminal Liability (1984) 93 Yale L.J. 609.) Thus, to be a principal to a crime, the conspirator need only intend to agree or conspire and to commit the offense which is the object of the conspiracy (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal. Rptr. 516, 524 P.2d 1300]); while the aider and abettor must intend to commit the offense or to encourage or facilitate its commission (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318]). Liability is extended to reach the actual, rather than the planned or "intended" crime, committed on the policy conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. And it is precisely this policy which Luparello next challenges.
As previously discussed, Luparello maintains neither complicity theory can, in logic, predicate a murder charge against him on the unintended act of a coconspirator and, as applied in this case, are therefore theoretically infirm. Professor Sandford Kadish recently examined this argument in his thoughtful and provocative article, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (Complicity Doctrine, supra, 73 Cal.L.Rev. 323). In Professor Kadish's schema, two distinct doctrines coexist to affix [440] criminal responsibility: causation and complicity. Causation links blame to the actor for those physical events which, once put in motion, relentlessly collide with one another, eventually resulting in demonstrable harm. Complicity doctrine, on the other hand, affixes liability derivatively, charging a secondary party, that is, a coconspirator or an aider and abettor, with the criminal act of the principal whom the secondary party has intentionally and knowingly influenced or assisted. Thus, acts done in furtherance of a conspiracy or assisted or facilitated by an aider and abettor present no obstacles to affixing liability under the respective complicity theories. So understood, complicity doctrine works to attach liability only when the secondary actor has intended his influence or assistance. (Id. at pp. 346-348.) The unintended consequence is beyond the scope of this theory. Nor, as Professor Kadish opines, can causation doctrine reach a principal's unintended acts to attach liability to the accomplice who neither intended nor anticipated the ultimate criminal act. As Professor Kadish explains: "We regard a person's acts as the products of his choice, not as an inevitable, natural result of a chain of events. Therefore, antecedent events do not cause a person to act in the same way that they cause things to happen, and neither do the antecedent acts of others. To treat the acts of others as causing a person's actions (in the physical sense of cause) would be inconsistent with the premise on which we hold a person responsible." (Id. at p. 333.) Thus, the uncaused nature of a principal's volitional act impairs, if not precludes, a causative explanation for accomplice liability for the natural, probable and reasonable, though unintended, consequences of the conspiracy or the aided and abetted crime. (Id. at pp. 398-403.)
While we do not dispute the metaphysics of Professor Kadish's conclusion, we question whether, in a real world sense, the choices of an intentionally influenced conspirator or aided and abetted principal are so wholly volitional the prime mover should escape moral blame and criminal culpability.[9] Indeed, in circumstances like the well-orchestrated, assisted and funded criminal plot undertaken by Luparello, we think not. As one commentator explained: "[T]he concept of agency explains a great deal about why we feel justified in punishing an accomplice as if she were the perpetrator. Perhaps, however, our feelings may be described better in terms of `forfeited personal identity.' Ordinarily a person is held criminally responsible for his [441] own actions. However, when an accomplice chooses to become a part of the criminal activity of another, she says in essence, `your acts are my acts,' and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by `agency' doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual. Thus, moral distinctions between parties are rendered irrelevant. We pretend the accomplice is no more than an incorporeal shadow." (Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111, fn. omitted.) Professor Kadish himself noted: "It is apparent that the grip of the conception that a voluntary human action bars assigning causal responsibility to an earlier actor, pervasive as it is in the law, is loosened by the pull of the policy holding people liable for recklessly providing others with an occasion to do harm...." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 402.) (17a) The California Supreme Court implicitly recognized this "pull of policy" in the recent case of People v. Croy, supra, 41 Cal.3d 1: "The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.... [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury...." (Id. at p. 12, fn. 5, citations omitted, italics added.)
Adopting the reasoning of the Supreme Court, we find the conspiracy and aiding and abetting theories proffered here do not suffer the theoretical infirmities of which Luparello complains. In the circumstances of this case, each provides a sound basis to derive Luparello's criminal responsibility for first degree murder.
Luparello relies upon People v. Garewal (1985) 173 Cal. App.3d 285 [218 Cal. Rptr. 690], and People v. Henderson (1985) 163 Cal. App.3d 1001 [209 [442] Cal. Rptr. 883], to dissuade us from this conclusion. Neither, however, does so. In Garewal, the trial court modified the standard conspiracy instruction, CALJIC No. 6.11, to extend conspirator responsibility to the probable and natural consequence of the conspiracy "`... even though it was not intended as a part of the original plan, or was even actually forbidden as part of the original agreement ....'" (People v. Garewal, supra, at p. 299.) After reviewing both the principles and the criticisms of derivative responsibility in the conspiracy and aiding and abetting contexts, the court determined the modified instruction erroneously and unjustifiably extended conspirator liability. Concluding its updated analysis, the appellate court returned to historical roots: "[W]e conclude the clear thrust of Beeman is to contain the reach of vicarious criminal responsibility of conspirators to the natural and reasonable consequences of the conspiracy." (Id. at p. 302.) Though we have taken a different path, we concur with the conclusion of Division Three of this court. Finally, Henderson does not even reach the question of derivative liability for, under an erroneous aiding and abetting instruction, it could not be determined whether the defendant in that case acted with a specific intent to commit or facilitate the commission of the charged crime.
VI
SUFFICIENCY OF THE EVIDENCE
Luparello contends the evidence is insufficient to support (1) his criminal liability on either conspiracy or aiding and abetting theories and (2) his conviction for first degree murder. In support of his second contention, Luparello argues there is no evidence he premeditated or deliberated the killing of the victim. Luparello's liability, however, is affixed as a principal under both conspiracy and aiding and abetting theories. Luparello concedes Orduna, his coconspirator and aided and abetted colleague, was convicted of first-degree murder for killing while lying in wait (§ 189). Also, as is discussed below, sufficient evidence supports Orduna's conviction for premeditated and deliberate murder. Proof of Luparello's own premeditation and deliberation is therefore unnecessary if the evidence supports his derivative criminal liability for Orduna's acts. We thus review the evidence supporting the conspiracy and aiding and abetting theories.
(18) As previously discussed, a conspirator is criminally liable for the act of a coconspirator which follows as a probable and natural consequence of the common design, even though it was not intended as a part of the original design or common plan. (People v. Kauffman, supra, 152 Cal. at p. 334; People v. Martin (1983) 150 Cal. App.3d 148, 164 [197 Cal. Rptr. 655]; In re Darrell T. (1979) 90 Cal. App.3d 325, 334 [153 Cal. Rptr. 261].) [443] "The question of what constitutes a natural and probable consequence is one of fact for the jury." (People v. Martin, supra, at p. 164.) (19a) Here the object of the conspiracy was to garner information regarding the whereabouts of Terri and Ed Gadzinski by any means necessary, including assault.[10] Luparello specifically targeted Mark Martin for he believed Martin had contacted Ed Gadzinski or, at least, knew where he was residing. He solicited Orduna and Salmon's assistance in extracting information, forcefully if necessary, from Martin and paid them for their efforts. Luparello accompanied them on an abortive trip to confront Martin. He was aware Orduna and Salmon carried deadly weapons with them at that time. Luparello had also told them he wanted the information "at any cost." The following day Luparello told Hazel Schwulst he had some Mexicans who were going to take care of Mark Martin, and he met with Orduna and Salmon several hours before the shooting. He was again aware they were carrying deadly weapons. That a homicide resulted from a planned interrogation undertaken "at any cost" by armed men confronting an unwilling source is unquestionably the natural and probable consequence of that plan. The evidence thus supports Luparello's liability for the conspiratorial acts.
Luparello insists killing the victim was inconsistent with the conspiratorial goal of obtaining information regarding Terri's whereabouts and therefore could not be a natural and probable consequence of the conspiracy. While this reasoning is appealing, Luparello's overall conduct belies the conclusion he reaches. Luparello's effort to gain information was concerted, and the enlisting of Orduna and Salmon to interrogate and "thump" a would-be informer was not the only avenue of inquiry he pursued. Indeed, he contacted the police and relentlessly pursued Ed and Terri's friends and relatives for information. When his efforts went unrewarded and his frustrations mounted, Luparello's threats and intimidations became more pointed. His statement regarding Mexicans who were going to take care of the would-be victim is such an example. In this context, Martin's eventual killing may be seen as yet one more escalation of Luparello's desire to gain information "at any cost." While Martin obviously provided no information here, his death was a warning to those who had not yet assisted Luparello that they should. While, in retrospect, Martin's death may be seen as an unproductive means to learn of Terri's whereabouts, it is not inconsistent with that goal.
In examining the sufficiency of the evidence in the present case, we are guided by the appellate court's resolution of this same issue in People v. King (1938) 30 Cal. App.2d 185 [85 P.2d 928]. There, on strikingly similar [444] facts, the Court of Appeal determined an unplanned murder was the natural and probable consequence of a planned assault. As the court explained: "In the present case there is presented no question of death resulting from the commission of a simple assault.... There is here a death resulting from the use of a deadly weapon which the appellants say they never intended. Such weapon was, however, actually used, and by one who joined with them in the plan to beat up the deceased, which plan they counseled. The question is whether the use of such a deadly weapon upon the [victim] and his resulting death was a natural or probable consequence of the plan or agreement among the actual assailants and the appellants for which the appellants may be held liable, two of them, ... not being present.
"The character of the plan is of great importance. Here, several men set out to beat up another. In the words of [the defendant], he `sent them over to tamp the chief'. Preparations were made for trouble. It was known that he was vigorous and strong. One, at least, prior to setting out on the expedition, equipped himself with a bludgeon. At the scene of the expected trouble others were asked to stand by. Not being able to get at the victim the first day, the majority returned the second day and proceeded to the victim's place of abode aboard ship. They prepared, and were prepared, to meet force with force and to overcome resistance at any cost. The natural and probable consequence of such an undertaking is homicide, and the homicide here committed by one of the conspirators is nothing less than murder. All who combined to commit the unlawful act of violence are equally guilty. The law makes no distinction between them and each is responsible for the act of any other of the party in the prosecution of the original design. All joining in the enterprise are as guilty of murder as the person who actually caused the death. [Citations.]" (Id. at pp. 200-201.)
Luparello relies on People v. Werner (1940) 16 Cal.2d 216 [105 P.2d 927], to argue for a contrary conclusion. His reliance, however, is misplaced. In Werner two of three coconspirators entered a "secret agreement" for the precise purpose of concealing their conduct from the other member of the conspiracy. That member was nonetheless charged with the criminal consequence of the secret agreement. In reversing the uninvolved coconspirator's conviction, the Supreme Court held coconspirator liability would not attach when the act in question was "... the fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design...." (Id. at p. 223.) As the above review of the evidence shows, the killing here was a foreseeable, though as to Luparello a possibly unintended, consequence of the conspiracy. It was not, however, a fresh and independent act of a coconspirator and consequently cannot absolve Luparello from his shared criminal responsibility.
[445] Luparello also challenges the finding of criminal liability under an aiding and abetting theory.[11] Luparello does not deny he aided and abetted Orduna and Salmon, but instead rejects culpability because he had no knowledge the perpetrator(s) intended to kill the victim. This, however, is not the law. (17b) "[T]he aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged...." (People v. Durham (1969) 70 Cal.2d 171, 181 [74 Cal. Rptr. 262, 449 P.2d 198], italics omitted, citing People v. Villa (1957) 156 Cal. App.2d 128, 134 [318 P.2d 828].) (19b) Applying the above recited facts to this theory, we again find factual support for Luparello's criminal liability: he aided and abetted Orduna and Salmon in the planned confrontation of Mark Martin and the consequential assault naturally and reasonably resulted in Martin's death.
Luparello argues People v. Smith (Cal. App.) and People v. Butts (1965) 236 Cal. App.2d 817 [46 Cal. Rptr. 362], parallel the present facts and compel a finding favorable to him. However, the California Supreme Court granted hearing on Smith on January 27, 1983, vacating the opinion and later transferring the cause for further consideration. (People v. Smith (D004490) hg. granted Jan. 27, 1983 (Crim. 22953) cause trans. to Ct.App. Apr. 24, 1986, for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal. Rptr. 79, 672 P.2d 862] and People v. Garcia (1984) 36 Cal.3d 539 [205 Cal. Rptr. 265, 684 P.2d 826].) This case cannot, therefore, provide the analytical parallels Luparello proposes. In Butts, the Court of Appeal found the alleged aider and abettor had no knowledge of the principal's wrongful purpose. Here, the evidence shows Luparello had knowledge of Orduna and Salmon's planned assault of Mark Martin, but does not clearly reveal his knowledge of the eventual murder. However, this knowledge, in contrast to Luparello's contention, is not necessary. As an aider and abettor, Luparello is responsible for the natural and probable consequences of the acts which he intentionally encourages.
In sum, substantial evidence supports the application of conspiracy and aiding and abetting theories. Luparello's first-degree murder conviction, predicated on the principals' conduct, is thus also substantially supported.[12]
[446]
VII
CRUEL OR UNUSUAL PUNISHMENT
(20a) In his reply brief, Luparello argues for the first time his sentence constituted cruel or unusual punishment under article I, section 17, of the California Constitution. Primarily relying on People v. Dillon (1983) 34 Cal.3d 441 [194 Cal. Rptr. 390, 668 P.2d 697], he argues his sentence was disproportionate when considering his individual culpability for the crimes. We disagree.
(21) In In re Lynch (1972) 8 Cal.3d 410 [105 Cal. Rptr. 217, 503 P.2d 921], our Supreme Court explicitly held a statutory punishment may be cruel or unusual, and hence violative of the state constitution, if it is grossly disproportionate to the offense for which it is imposed. (Id. at p. 424.) The United States Supreme Court reaffirmed a proportionality standard under the Federal Constitution in Enmund v. Florida (1982) 458 U.S. 782, 788 [73 L.Ed.2d 1140, 1146, 102 S.Ct. 3368]. After acknowledging the Legislature's function in defining crimes and prescribing punishments, the California Supreme Court in Dillon applied the reasoning of the above-cited cases to determine whether, given the circumstances of that case, a first degree murder punishment was "`... so disproportionate to the crime for which it [was] inflicted that it shock[ed] the conscience and offend[ed] fundamental notions of human dignity.'" (People v. Dillon, supra, 34 Cal.3d at p. 478, quoting In re Lynch, supra, 8 Cal.3d at p. 424.)
In Dillon, the defendant was a 17-year-old high school student who, along with six other schoolmates, planned a "rip-off" of marijuana growing in a mountain field. Several of the boys took guns with them to the field; the defendant carried a .22 caliber semi-automatic rifle. The group proceeded in their venture, and the defendant was stationed near the edge of the field. The defendant heard several shots and, believing his friends were being "blown away," became quite alarmed. Thereafter he was confronted by the victim who was carrying the shotgun. The defendant, according to his testimony, "`didn't know what to do'" and "`just pressed the trigger, I was so scared.... I just kept squeezing it, and shots just went off.'" (People v. Dillon, supra, 34 Cal.3d at p. 483.) The victim died several days later. The jury found the defendant guilty as charged. However, they expressed reservation about the harshness of the felony-murder rule and queried whether they could return a second degree murder verdict even though the killing occurred during the attempted robbery. After explicating the salient aspects in the nature of the offense and the offender vis-a-vis proportionate punishment (id. at p. 479), the Supreme Court found the defendant's life imprisonment sentence unconstitutionally excessive and modified the [447] conviction to second degree murder (id. at p. 489). In reaching its conclusion, the Supreme Court was persuaded by the reluctance of the jury to apply the felony-murder rule to the facts of the case, the defendant's immaturity and inability to foresee the risk of harm he was creating, the absence of any other criminal activity in the defendant's background, and the comparatively "petty chastisements" which were meted out to the other youths who participated in the same offenses. (Id. at pp. 487-488; see People v. Laboa (1984) 158 Cal. App.3d 115, 121 [204 Cal. Rptr. 181].)
(20b) While Luparello finds parallels between his circumstances and those of Dillon, we do not. Luparello was not an impetuous adolescent, but a learned and professional man in his mid-30's. Also, his charge arises as a consequence of a conspiracy he orchestrated, not as an application of the felony-murder rule. At all times, Luparello was the prime mover in the conspiracy. He coordinated meetings, gave directions, targeted the victim and paid for his coconspirators' assistance. Indeed, there is no question Luparello masterminded and encouraged the criminal cabal which ultimately resulted in the victim's death. Further, Luparello fails to identify any instance where the sentencing court did other than carefully and individually consider his sentence. We note the probation report did outline Luparello's otherwise nonviolent background, his exemplary behavior during incarceration and his apparent lack of a prior criminal record. Moreover, Luparello was sentenced after the court had thoroughly considered Orduna's individual culpability and just punishment. In stating: "[I]t is my intention to sentence the defendant in this case to the same [sentence] as I sentenced the defendant Orduna, ...", the sentencing court was implicitly finding Luparello as culpable as Orduna and thereby deserving of the same sentence. Thus, on this record we cannot say Luparello's individual culpability was ignored nor that his sentence constituted cruel or unusual punishment.
Having reviewed Luparello's contentions and finding no prejudicial error, we affirm.
ORDUNA'S APPEAL
VIII
PROSECUTORIAL MISCONDUCT, INSTRUCTIONAL ERROR AND CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
Orduna reasserts Luparello's contentions regarding prosecutor misconduct, instructional error and improperly deriving criminal liability from conspiracy and aiding and abetting theories. We do not restate the arguments [448] here but similarly resolve them adversely to Orduna. Additionally, Orduna cites approximately 10 further instances of alleged misconduct in the pros9ecutor's colloquy. These are, however, bare allegations, stating neither the gravamen nor prejudice arising therefrom. After reviewing each of these allegations, we find no evidence of misconduct and also note Orduna failed to object to over half of these alleged wrongs. (People v. Green, supra, 27 Cal.3d at p. 34.) Further, Orduna argues the prosecutor, in effect, served as an unsworn witness by putting evidence of Orduna's alleged relationship with the F-Troop gang before the jury. In so doing, Orduna contends the prosecutor violated his Sixth Amendment right to confrontation. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal. Rptr. 141, 589 P.2d 396].) Yet, Orduna does not direct us to any particular incident in the record. The other misconduct allegations Orduna invites us to review show the trial court consistently safeguarded Orduna's Sixth Amendment rights by properly sustaining objections and admonishing the jury to limit the use of evidence to the purpose for which it was admitted. In effect, Orduna asks us to speculate about misconduct, and this we cannot do. He has the burden of proving such harm, and on this record has failed to sustain that burden.
IX
DENIAL OF THE MOTION TO SEVER
Orduna contends the trial court improperly denied his motion to sever and outlines five Massie[13] factors, all allegedly present in this case, which highlight the impropriety of the trial court's ruling. (22) These factors include: "(1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter (People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]; see also Bruton v. United States, 391 U.S. 123) [20 L.Ed.2d 476, 88 S.Ct. 1620]; (2) where there may be prejudicial association with codefendants (People v. Chambers, 231 Cal. App.2d 23, 28-29) [41 Cal. Rptr. 551]; (3) where there may be likely confusion from evidence on multiple counts (People v. Chambers, supra, p. 34); (4) where there may be conflicting defenses (Day v. State, 196 Md. 384, 391 [76 A.2d 729]); and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (United States v. Echeles (7th Cir.1965) 352 F.2d 892, 898.)" (People v. Isenor (1971) 17 Cal. App.3d 324, 331 [94 Cal. Rptr. 746].) We review Orduna's argument on each of these factors.
(23) He first argues Luparello's extrajudicial statement, "[I have] some Mexicans that are going to take care of Mark Martin," is within the ambit [449] of People v. Aranda, supra, 63 Cal.2d 518, and Bruton v. United States, supra, 391 U.S. 123, and its subsequent admission necessitated severance. As previously stated, the Supreme Court in Aranda called for severing a joint trial when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant. (People v. Aranda, supra, at pp. 530-531.) Here, Luparello's statement does not expressly implicate Orduna and should therefore not fall under the Aranda directive. Even assuming the implication in Luparello's statement were explicit, the admission of the statement in the joint trial did not violate the principle of Aranda.
Our courts have long recognized extrajudicial statements within the coconspirators' exception to the hearsay rule are not subject to the Aranda-Bruton rules. (People v. Brawley (1969) 1 Cal.3d 277, 286 [82 Cal. Rptr. 161, 461 P.2d 361].) Evidence Code section 1223 outlines this exception and provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; ..." Luparello's statement was clearly made during the conspiracy and furthered the object of the conspiracy, that is, finding Terri and Ed Gadzinski, by attempting, through Hazel Schwulst's restatement of the threat, to badger and intimidate Mark Martin into revealing the Gadzinskis' whereabouts. Given this factual background, the statement was properly admitted.
(24) Orduna, however, argues the plan to locate the Gadzinskis was lawful and therefore cannot be the object of the conspiracy. He further reasons Luparello's statement thus cannot be said to further the conspiracy's objective and cannot properly be admitted under Evidence Code section 1223. Orduna misapprehends the law. Under our Penal Code and specifically section 182, "[a] criminal conspiracy is an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective." (People v. Fujita, supra, 43 Cal. App.3d at p. 471, italics added.) Thus, the search for the Gadzinskis, though arguably lawful, may indeed be a conspiratorial objective and statements, such as Luparello's, made to further it can be excepted from the hearsay rule.
Orduna mistakenly relies on People v. Williams (1979) 97 Cal. App.3d 382 [158 Cal. Rptr. 778], to argue the conspiratorial objective must be the substantive crime the conspirators plan. In Williams, the defendants sought to apply the statute of limitations rule for determining the termination of a conspiracy to demur to an indictment. This rule, stated in People v. Zamora [450] (1976) 18 Cal.3d 538, 554 [134 Cal. Rptr. 784, 557 P.2d 75], holds a conspiracy terminates upon the completion of its primary object and technically that means the substantive offense which the conspirators agree to commit. Here we are faced with an entirely different issue, and this reasoning, while correct, is inapposite. Thus, we find Luparello's statement was properly admitted, and the admission did not necessitate severance.
For the first time on appeal, Orduna argues the joint trial prejudicially associated him with Luparello, resulted in a confusion of issues, and precluded Luparello from giving exonerating testimony. These arguments, however, are based on sheer speculation. Orduna makes no reference to the record or any offer of proof that would support his contentions. Without a factual basis, we find no merit in his arguments.
(25) Orduna also asserts severance was necessary to preclude conflict between his and Luparello's defenses. Orduna grounds this argument on the exclusion of certain statements made by Salmon which allegedly exonerated Orduna and implicated Luparello. However, the record shows these hearsay statements were presented in the testimony of Salmon's onetime cellmate. Without a more substantial conflict, severance of the joint trial was unwarranted.
Having found no substantial basis for severing the trials, we find the trial court's denial of the motion was proper.
X
JURY BIAS AND INSUFFICIENCY OF EVIDENCE
Orduna recasts the prosecutor's alleged misconduct as having somehow denied him of a fair and impartial jury. Having already determined the prosecutor's conduct has caused no harm, we find no greater merit in its reassertion in a different guise. In summarizing his argument on this point, Orduna stated: "Perhaps the argument can be advanced that absent more concrete proof [of] `jury tampering' or showing that definite prejudicial statements were finally made to the jurors who decided the case, the issue of an impartial jury is not important." We concur with this assessment.
Orduna contends the evidence insufficiently supports his convictions for conspiracy and murder. (26) On appeal, the test is whether substantial [451] evidence supports the conclusion of the trier of fact, and not whether the evidence proves the defendant's guilt beyond a reasonable doubt. (People v. Reyes (1974) 12 Cal.3d 486, 497 [116 Cal. Rptr. 217, 526 P.2d 225].) Reversal is not warranted merely because the facts of the case might be reconciled contrary to the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal. Rptr. 417, 475 P.2d 649].) (27) Here, Orduna met several times with Luparello, agreed to find Terri and Ed Gadzinski "at any cost," received money for his assistance, went while armed with a deadly weapon to Mark Martin's home, hid to avoid discovery while waiting to ambush Martin, returned to Martin's home on the day of the shooting, lured Martin within the shooter's range and was seen by Martin's mother fleeing the scene. Though other evidence may support other inferences, the facts outlined above substantially support the judgment.
XI
CRUEL OR UNUSUAL PUNISHMENT
Adopting the reasoning of Luparello's related assertion, Orduna contends his sentence, too, constituted cruel or unusual punishment. We find this contention patently without substance. After the jury determined Orduna should be penalized to life imprisonment without the possibility of parole, the sentencing court intervened to consider thoroughly Orduna's culpability and contributions to the crimes. After making detailed and thoughtful findings,[14] the sentencing court struck the special circumstance finding and sentenced Orduna to imprisonment for a term of 25 years to life. Thus, in contrast to Orduna's contention, the sentencing court did consider the circumstances of his crime and accordingly fashioned a just sentence. We find no cruel or unusual punishment on this record.
[452]
DISPOSITION
Judgments affirmed.
Kintner, J.,[*] concurred.
WIENER, J.
I concur in the majority opinion with the exception of sections V and VI in Luparello's appeal.[1] As to those issues, I concur in the result reached by the majority under the compulsion of People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318] and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5 [221 Cal. Rptr. 592, 710 P.2d 392]. Those cases require a holding that an aider and abettor or coconspirator is liable not only for those crimes committed by a cofelon which he intended or agreed to facilitate but also for any additional crimes which are "reasonably foreseeable."[2] The majority, citing Professor Kadish's recent article,[3] recognize a doctrinal tension in extending accomplice and conspiratorial liability beyond intended acts but conclude, based on Croy, that this principle of extended criminal liability does not suffer from any "theoretical infirmit[y]." (Maj. opn., ante, p. 441.)
The fact that the Supreme Court has announced a principle of law certainly requires that as an intermediate appellate court we follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) This does not mean however, that the announced principle is either logically consistent or theoretically sound. On a prior occasion I expressed my concern with the legal principle at issue. My dissent in People v. Martin (1983) 150 Cal. App.3d 148, 170 [197 Cal. Rptr. 655], written before either Beeman or Croy was decided, failed to attract the attention of a majority of the Supreme Court. I will therefore not repeat [453] my discussion in Martin, which basically stated what I thought the law should be. Instead, I will briefly comment on what I perceive to be the serious incongruities created by the "foreseeable consequence" doctrine.
Professor Kadish argues that the theory underlying accomplice liability does not permit liability to attach to an accomplice or coconspirator for the acts of another unless the accomplice or coconspirator intended such acts. He explains that the "foreseeable consequence" doctrine "would seem to allow holding the accomplice for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions." (73 Cal.L.Rev. at p. 352.)
The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not "lie in wait," Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide? As I explained in my Martin dissent, I find such fortuity of result irrational. So too, apparently, do Professors LaFave and Scott in their treatise on criminal law: "The `natural and probable consequence' rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel." (LaFave & Scott, Handbook on Criminal Law (1972 ed.) p. 516.)
[454] The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which, like California's governing Beeman standard, requires that the accomplice act "with the purpose of promoting or facilitating the commission of the offense, ..." Missing from the Model Penal Code, however, is any reference to the "foreseeable consequence" doctrine. The Comment to the section addresses the issue as follows: "[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. [¶] This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it. ..." (Model Pen. Code & Commentaries, com. 6(b) to § 2.06, pp. 310-311, italics added.) In support of this reasoning the drafters quoted from a conspiracy decision written by Judge Learned Hand: "At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change;...." (United States v. Peoni (2d Cir.1938) 100 F.2d 401, 403.)
In contrast to the majority, which seeks to distinguish the "forseeable consequence" doctrine from the "disfavored" felony-murder rule (see maj. opn., ante, p. 437), I view both as being founded on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law, we need not be terribly concerned that the contemplated crime was far less serious than the crime which actually took place. Consider the following discussion in the Supreme Court's Croy decision: "It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (41 Cal.3d at p. 12, fn. [455] 5, italics added.) Contrast it with the following description of the theoretical basis for the felony-murder rule in LaFave and Scott's treatise: "The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended." (LaFave & Scott, op. cit. supra, at p. 560.)
In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the "foreseeable consequence" doctrine, is inconsistent with the "universal and persistent" notion that criminal punishment must be proportional to the defendant's culpable mental state. (See Morissette v. United States (1952) 342 U.S. 246, 250-251 [96 L.Ed. 288, 293-294, 72 S.Ct. 240].) Justice Mosk's dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal. Rptr. 275, 477 P.2d 131] expressed it well: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination." The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v. Wilbur, 421 U.S. at 697-698 (requirement of proof beyond a reasonable doubt is not `limit[ed] to those facts which, if not proved, would wholly exonerate' the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [61 L.Ed.2d 560, 576-577, 99 S.Ct. 2781].)
By these references I do not mean to suggest that the "foreseeable consequence" doctrine is unconstitutional, although an argument can be made in that regard. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 495-498 [194 Cal. Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C.J.).) Here, however, Luparello has been convicted of first degree murder under circumstances where, in the absence of the "foreseeable consequence" doctrine, he would be guilty at most of involuntary manslaughter. As to the felony-murder rule, the Supreme Court has concluded the rule is a creature of statute, codified by the Legislature in Penal Code section 189 and, as such, must be applied by the courts. (See People v. Dillon, supra, 34 Cal.3d at pp. 450, 472.) No similar impediment appears with respect to the "foreseeable consequence" doctrine. It is purely a creature of judicial interpretation subject [456] to the thoughtful evolution of the common law. As scholars and commentators have consistently concluded, the time for considered reevaluation is long overdue.
The petition of appellant Luparello for review by the Supreme Court was denied February 11, 1987.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The court later ruled admission of the informers' statements would violate the defendants' confrontation clause rights established in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal. Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. (See also People v. Leach (1975) 15 Cal.3d 419 [124 Cal. Rptr. 752, 541 P.2d 296]; People v. Coble (1976) 65 Cal. App.3d 187 [135 Cal. Rptr. 199].)
[3] Luparello argues CALJIC Nos. 4.71.5 and 17.01, if given, would have remedied the alleged error. No. 4.71.5 provides: "And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
CALJIC No. 17.01 similarly provides: "He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
[4] The California Supreme Court in the recent case of People v. Croy (1985) 41 Cal.3d 1 [221 Cal. Rptr. 592, 710 P.2d 392], noted a jury is not required to make a special finding as to which of several alleged acts constituted the specific overt act underlying a conspiracy conviction. (Id. at p. 17.)
[5] As modified in this case, CALJIC No. 6.11 in its entirety provides: "Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy.
"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act; this instruction does not apply to the special circumstance allegation in this case."
[6] "Unlike the case of a fatal blow struck with malice in which the battery is merged in the murder because it is an integral part of the homicide itself, a conspiracy, in most jurisdictions, is a distinct offense quite apart from the contemplated crime. Because of this fact the notion that a conspiracy is merged in the resulting offense is unsound and has been quite generally rejected in this country...." (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 687-688, fns. omitted.)
[7] In this context Luparello also contends the asserted error is exacerbated by misinstruction on implied malice. He specifically contends CALJIC No. 8.11 "did not inform the jury that it must find that the defendant must harbor an actual appreciation of the risk involved — i.e., a risk of death." We find Luparello misreads this instruction. As given here, CALJIC No. 8.11 provides: "Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness." (Italics added.) The level of subjective awareness required for an implied malice finding are adequately explicated by the instructional language we have italicized. (People v. Poddar (1974) 10 Cal.3d 750, 755-756 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Summers, supra, 147 Cal. App.3d at p. 184.)
[8] For the purpose of this discussion, we will treat conspiracy and aiding and abetting as subspecies of the same general theory of complicity. We are mindful not all commentators would agree with such a categorization (see, Note, Development in the Law — Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 998-999), but find this usage acceptable for the limited inquiry on which we embark.
[9] After recognizing causal responsibility has been extended in tort to reach an actor's conduct which is not wholly volitional, Professor Kadish suggested "the problem of the reach of criminal law is hardly different depending on the volitionality of the primary actor's conduct." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 404, fn. omitted.) To this, he footnoted an apt example: "Consider the case of a police guard who negligently leaves his gun in the open ward of a mental hospital. If an incompetent person uses the gun to kill, the criminal law permits the guard to be held for manslaughter on a causation theory. There is no greater peril to ordinary behavior if the guard is also made liable when a competent visitor uses the gun to kill." (Id. at p. 404, fn. 260.)
[10] As we discuss at section IX, post, it is the conspiratorial pursuit of an otherwise lawful object by unlawful means that makes the combination a crime. (People v. Fujita (1974) 43 Cal. App.3d 454, 471 [117 Cal. Rptr. 757].)
[11] The aiding and abetting instruction given in the present case was modified in accordance with People v. Tewksbury (1976) 15 Cal.3d 953 [127 Cal. Rptr. 135, 544 P.2d 1335], to require proof of a shared criminal intent. Luparello does not challenge the adequacy of this instruction as applied in the present case.
[12] Luparello additionally argued since either the conspiracy or aiding and abetting theories were inaccurately applied and the particular theory on which the jury relied could not be determined, he was entitled to a reversal of his murder conviction. (People v. Green, supra, 27 Cal.3d at p. 69.) However, as we have determined, both theories were appropriately applied to the present facts, and hence Luparello's argument must fail.
[13] People v. Massie (1967) 66 Cal.2d 899 [59 Cal. Rptr. 733, 428 P.2d 869].
[14] Some of the factors considered were outlined in the minute order of the sentencing hearing:
"1. The interests of justice would be better served by life with parole in Carlos Orduna's case.
"2. That the public safety would not require a life sentence without parole.
"3. Defendant Orduna played a minor role in the crime.
"4. The Defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
"5. Lack of significant prior criminal conduct.
"6. That Orduna did not know and had no personal intent to kill the victim and was not personally violent in the homicide.
"7. That Orduna expressed remorse about the killing and was afraid to testify against the actual killer.
"8. Defendant's sister's testimony, his remarks to the doctors and his counsel's approach to defending the case brought more evidence to light which may well aid in the prosecution of the other perpetrators."
[*] Assigned by the Chairperson of the Judicial Council.
[1] Although Orduna makes the same arguments as Luparello, his position is largely undercut by the explicit jury finding that he intentionally killed Mark Martin while lying in wait. Thus his liability need not be based on the fact that Martin's death was a reasonably foreseeable consequence of the conspiracy to assault.
[2] Henceforth I refer to this principle as the "foreseeable consequence" doctrine because that is the terminology used in Croy. I am concerned, however, about how a principle which was originally phrased in terms of "probable and natural consequences" (see People v. Kauffman (1907) 152 Cal. 331, 334 [92 P. 861]) was slightly modified to become the "natural and reasonable consequences" (see Beeman, supra, 35 Cal.3d at p. 560) and has now been saddled with a monicker traditionally associated with theories of expanding tort liability. (See, e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal. Rptr. 448, 539 P.2d 36].) If we were to return to strict interpretation of the "natural and probable" standard, I would argue that liability could not be imposed here on Luparello because it in no sense can be said that Mark Martin's death was the "probable" result of a conspiracy to assault him in order to obtain information.
[3] See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323.
7.2.6.8.1.4. U.C.C. §2-202
7.2.6.8.1.5 State v. McVay 7.2.6.8.1.5 State v. McVay
47 R.I. 292
STATE vs. GEORGE W. MCVAY, JOHN A. GRANT, GEORGE J.
KELLEY.
STATE vs. SAME.
STATE vs. SAME.
The Supreme Court of Rhode Island
MARCH 3, 1926.
(1) Criminal Law. Accessory Before Fact. Involuntary Manslaughter.
Indictment charged captain and engineer of vessel with manslaughter, as a result of criminal negligence connected with the operation of the ship's boiler, with the result that an explosion occurred killing a passenger, and charged defendant as an accessory before the fact:
Held, that premeditation is not inconsistent with every charge of manslaughter, and a defendant may be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence.
(2) Indictments. Malice.
Malice in its legal sense, which is the state of mind manifested by intent to commit an unlawful act against another, may exist without actual intention of any mischief if the killing is the actual consequence of careless action.
(3) Criminal Law. Manslaughter. Malice.
Malice in the sense of general criminal intent exists in manslaughter, and the term “maliciously” used in an indictment charging defendant as an accessory before the fact to crime of manslaughter, in having with knowledge of danger procured captain and engineer of vessel to develop steam in a boiler known to be unsafe with the result that it exploded, killing a passenger means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life.
(4) Involuntary Manslaughter.
“Involuntary" as applied to manslaughter, characterizes the result of the act, not the doing of the act, and may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. Hence an indictment for involuntary manslaughter may properly charge certain defendants, while exercising no conscious volition to take life, with negligence of such a character that criminal intention can be presumed and it may also charge a defendant as an accessory before the fact in intentionally directing and counseling the grossly negligent act.
INDICTMENTS charging manslaughter. Certified on question of doubt under Gen. Laws, 1923, cap. 348, sec. 5.
BARROWS, J.
Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the Steamer Mackinac as principals and against Kelley as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled, burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler.
Demurrers, on grounds that the indictments improperly combined a charge of assault and negligence and that there was an improper joining of principal and accessory before the fact, were overruled. Two additional grounds of demurrer set up by defendant Kelley were not decided but were deemed of such doubt and importance that the question raised by them was certified to this court for determination, under General Laws, 1923, Chapter 348, Section 5.
We are not now concerned with the correctness of the lower court’s rulings on the demurrers. Exceptions to those rulings have been taken and the defendants’ rights reserved. Our present question relates solely to Kelley’s grounds of demurrer which were not acted upon. The same question is raised upon each indictment. That question is:
“May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?”
That the indictment charges manslaughter against the captain and engineer as a. result of criminal negligence connected with the operation of the ship’s boiler for present purposes is not disputed. Neither is there dispute as to the meaning of accessory before the fact. He is “one who, being absent at the time the crime is committed, yet procures, counsels or commands another to commit it”. 1 Proc. p. 65. In the first count the negligence charged is the “wanton and willful” creation of any steam in 3, boiler known to be worn, corroded, defective and `unsafe, as a result whereof an explosion occurred killing a passenger; the charge against Kelley as accessory is that “before said felony and manslaughter was committed,” . . . he did at Pawtucket “feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit”. The latter is substantially the language applied to Kelley as accessory in the other three counts. The second count of the indictment charges knowledge of the strength and capacity of the boiler on the part of the principals and negligence in developing more steam than the boiler could safely hold. The third count charges a lack of reasonable care in generating steam in a boiler known to be so worn, etc., as to be unsafe and the fourth count charges that defendants having control of generating steam and knowing the boiler to be defective so disregarded their duty that the explosion followed.
The State, substantially adopting the definition of manslaughter as given in Wharton on Homicide, 3rd ed. p. 5, defines it as “The unlawful killing of another without malice either express or implied”. The State further refers to the charge in the indictment as “involuntary manslaughter, that is, the killing of another without malice and unintentionally in negligently doing an act lawful in itself and in the negligent omission to perform a legal duty”. Because the manslaughter charge is “Without malice and “involuntary” Kelley contends that he can not be indicted legally as an accessory before the fact. The argument is that manslaughter being a Sudden and unpremeditated crime inadvertent and unintentional by its very nature can not be “maliciously” incited before the crime is committed. Such is the view expressed by text-writers, decision or dicta, in 1 Hale, P. C. 437, 615, 616; Hawkins, P. C. Chap. 30, 2, manslaughter; Goff v. Byby, 2 Cro. Eliz. 540 ; Bibith’s Case, 4 Coke Rep. 43 b; Archbold, Crim. Prac. & Proc. 8th ed. Vol. 1, pp. 65, 66; 4 Blackstone commentaries, 36 and 191; State v, Kinchen, 126 La. p. 39 (1910); Adams v. State, 65 Ind. 565; Wharton on Homicide, 59, pp. 75, 76; 13 R. C. L., § 25, p. 726; State V. Kennedy, 95 S. E. (S. C.) 350 (1918); State v. Robinson, 12 Wash. 349 (1895); Bowman v. State, 20 S. W. 558, (Tex.) (1892). In most of these citations a charge of murder was under consideration and the theory was that, after a conviction for manslaughter was had, there could be no accessory before the fact. Some of these authorities state broadly that there can be no accessory before the fact in manslaughter giving the reasons now urged by Kelley.
While everyone must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor Vehicle laws or administration of drugs to procure an abortion. 29 C.J. § 136, p. 1149. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. 29 C.J. § 141, p. 1154. There is no inherent reason Why, prior to the commission of such a crime, one may not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. 1 R.C.L. 24, p. 146. 29 Corpus Juris, 38, p. 1067, says: “At common law there may be accessories before the fact to involuntary manslaughter.” Cases considering the question before us are Queen V. Smith & Taylor, 2 Cox. Cr. Cas. 233 (1847) quaere; Reg. V. Gaylor, 7 Cox Cr. Cas. 253 (1857); Russell on Crimes, 7th Eng. lst Canadian ed. 119, 779, 780; Rex V. Russell, 1 Moody Cr. Cas. 356 ; Mathis V. Slate, 45 Fla. 46, at 69; Commonwealth V. Adams, 127 Mass. 15 (1879); State V. Coleman, 5 Porter, 32 (Ala.) (1837); State V. Hermann, 117 Mo. 629; V. State, 11»Ind. 62 (1858) quaere; Rex V. Brooks, 9 Br. Col. 13; 1 Bishop on Cr. L. 8th ed. Vol. 1, § 678, pp. 412, 413. The latter states:
“Manslaughter does not commonly admit of an accessory before the fact, because when the killing is of previous malice, it is murder. This is the ordinary doctrine yet probably there may be a manslaughter wherein this is not so, as, if one should order a servant to do a thing endangering life yet not so directly as to make a death from the doing murder, it might be manslaughter then, why should not the master be an accessory before the fact in the homicide?”
Decisions in the above cases pro and con are sometimes confusing because of failure to keep clear the difference in popular and legal meaning of the words “malice” and “involuntary”. In a popular sense “malice” means hatred, ill will or hostility to another; in law it means “the state of mind manifested by an intent to commit an unlawful act against another”. Webster’s New Int. Diet. In Commonwealth 9 Met. 93, at 104, SHAW, C. J., defines “malice” as “the willful doing of an injurious act without lawful excuse”. See also Words & Phrases. It may be found in an act shown by the circumstances to wickedly or willfully disregard the rights or safety of others. Commonwealth v. Webster, 5 Cush. 295; People V. Davis, 8 Utah, 412. Malice in its legal sense may exist without actual intention of any mischief if the killing is the actual consequence of careless action. Penn. v. Bell, Pa., Addison 156, s. c.1 Am. Dec. 298 at 301. Hence, reference to manslaughter as being “without malice" needs close scrutiny. The use of the term “without malice” in the State’s definition of manslaughter, supra, is, as often in the text-writer’s, for the purpose of distinguishing manslaughter from murder, State V. Fenik, 45 R. I. 309, at 314, rather than to give an all inclusive definition of manslaughter. Malice in the sense of general criminal intent exists in manslaughter, and Wharton Says the distinction between express and implied malice is unsound. “ There is no case of homicide in which the malice is not implied; none in which it is from the circumstances of the case.” Wharton on Homicide, 84, p. 104; United States v. King, 34 Fed. 302. When, therefore, “maliciously” is used in this indictment as against Kelley, it means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life. Commonwealth v. Adams, 127 Mass. 15; Commonwealth V. Webster, 5 Cush. 295.
“Invo1untary,” in common parlance means not in accordance with the actor’s will or choice. Webster’s New Int. Dict. As applied to charges of manslaughter it may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. “Involuntary” used in connection with manslaughter, characterizes the result of the act, not the doing of the act. It does not mean that volition was not present in the negligent act from which the death resulted. Voluntary manslaughter is often described as per unlawful taking of human life under circumstances falling short of willful or deliberate intent to kill and yet approaching too near thereto to be justifiable homicide. The law does not permit defendant in such a case to say that he did not intend the consequences of his act. See classification of voluntary and involuntary slaughter in 29 C. J. 1047.
By keeping these distinctions in mind, the present indictment for involuntary manslaughter is not self-contradictory when it charges Kelley to be an accessory before the fact. It was possible for him at Pawtucket to intentionally direct and counsel the grossly negligent act which the indictment charges resulted in the crime. Involuntary manslaughter, as set forth in this indictment means that defendants exercised no conscious volition to take life but their negligence was of such a character that criminal intention can be presumed. 29 C. J. 1154. The crime was consummated when the explosion occurred. The volition of the principals was exercised when they chose negligently to create steam which the boiler could not carry. The doing of the act charged or failure t6 perform the duty charged was Voluntary and intentional in the sense that defendants exercised a choice among courses of conduct. It is obvious that Kelley could participate and is charged with participating in procuring defendants to act in a grossly negligent manner prior to the explosion. Legal precedents based upon facts unlike the present ones do not convince us that he could not have been an accessory before the fact.
We have been referred to no case of an accessory before the fact on an indictment charging negligent manslaughter. The absence of such eases may be due to the fact that, by statute, in many jurisdictions accessories before the fact are treated as principals. Our statute relates only to their punishment and not to the nature of the offence. Gen. Laws 1923, Chap. 402, Sec. 2 (6251). The case of United States v. Van Schaick, 134 Fed. 592, treated all defendants as principals, holding the directors of a steamboat company negligent in failing to provide life preservers as a result of which many passengers were drowned. The negligence was held to be a continuing cause actually operating to produce the deaths though the directors personally were not present at the moment of death. The negligence charged against Kelley is not of this type.
We are convinced that in some types of manslaughter there may be an accessory before the fact and from our study of the present indictments we believe they aver such cases. Specific duties are stated to have been laid upon the captain and engineer. Defendant is charged with full knowledge of those duties and of the fact that the boiler was unsafe. He is charged with counseling and procuring the principals at Pawtucket to disregard their duties and negligently create steam. Until the explosion no crime was committed. Defendant was not present when the negligence resulted in a criminal act. The advice at Pawtucket was not continuing negligence on Kelley’s part. The facts set forth in these indictments, if existent, are such that a jury might find that defendant Kelley, with full knowledge of the possible danger to human life, recklessly and willfully advised, counseled and commanded the captain and engineer to take a chance by negligent action or failure to act.
We therefore answer the question certified on each indictment in the affirmative. The papers in each case, with this decision certified thereon, are sent back to the Superior Court for further proceedings.
Charles P. Sisson, Attorney General, Oscar L. Heltzen, Asst. Attorney General, for State.
7.2.6.8.1.6 Wilcox v. Jeffery 7.2.6.8.1.6 Wilcox v. Jeffery
WILCOX v. JEFFERY.
[King's Bench Division (Lord Goddard, C.J., Humphreys and Devlin, JJ.), January 26, 1951.]
Alien - Breach of condition of leave to land - Aiding and abetting- Presence of music critic at concert - Leave to musician subject to condition not to take employment - Performance at concert - Aliens Order, 1920 (S.R. & O., 1920, No. 448), art. 18 (2).
On Dec. 11, 1949, one H., a musician and a citizen of the United States, was granted permission to land in the United Kingdom under art. 1 (4) of the Aliens Order, 1920, on condition that during his stay he would not take any employment, paid or unpaid. The appellant was present at the airport when H. landed and knew what condition had been imposed. That night H. attended a concert in a London theatre, and, on the invitation of the organisers of the concert, he gave a performance on the saxophone with other musicians. The appellant was present in the theatre throughout the concert, having paid for admission thereto, and later he wrote a laudatory commentary on H.’s performance in a magazine of which he was owner and managing editor and also published in the magazine a number of photographs.
HELD: the appellant’s presence at the concert was not accidental, and in the circumstances it was open to the magistrate to that his presence was an encouragement to H. to commit an offence against art. 1 (4) of the Order, and, therefore, under art. 18 (2), to convict him of aiding and abetting.
R. v. Coney (1882) (8 Q.B.D. 534), applied. [As to CRIMINAL RESPONSIBILITY FOR AIDING AND ABETIING OFFENCES, see HALSBURY, Hailsham Edn., Vol. 9, pp. 30-32, paras. 30, 31; and FOR CASES, see DIGEST, Vol. 14, pp. 91-94, Nos. 605-638, and Digest Supp., and 2nd Digest Supp.
AS TO THE CONDITIONAL LANDING OF ALIENS, see HALSBURY, Hailsham Edn., Vol. 1, p. 476, para. 805.]
Case referred to:
(1) R. v. Coney, (1882), 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T. 307; 46 J.P. 404; 15 Digest 645, 6870.
CASE STATED by a metropolitan magistrate.
At a court of summary jurisdiction sitting at Bow Street Magistrate’s Court the appellant, Herbert William Wilcox, owner and managing editor of a monthly magazine entitled "Jazz Illustrated,” was charged with aiding and abetting one Coleman Hawkins, a citizen of the United States, in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land in the United Kingdom, namely, that Hawkins should take no employment paid or unpaid during his stay, contrary to art. 18 (4) of the Order. It was proved or admitted that on Dec. 11, 1949, Hawkins arrived at a London airport and was met by, among others, the appellant. The appellant was present when an immigration officer interviewed two other persons who had previously applied for permission for Hawkins to perform at a concert in London, but had been told by the Ministry of Labor that their application had been refused. At that interview it was stated that Hawkins would attend the concert and would be spotlighted and introduced to the audience, but would not perform. The appellant said he was not connected with the persons responsible for organising the concert and that he had only gone to the airport to report Hawkins’ arrival for his magazine. The immigration gave permission to Hawkins to remain for three days in this country, making it a condition that he should not take any paid or unpaid employment. The appellant was aware that such a condition had been imposed. Later the same day the appellant attended the concert, paying for admission. Hawkins was seated in a box, but after being "spotlighted" he went on the stage and played the saxophone. A description of the performance by Hawkins with several pages of photographs was later published in the appellant’s magazine. The magistrate was of the opinion that the appellant aided and abetted the contravention of the Order by Hawkins and imposed a fine of £25 and £21 costs.
Rountree for the appelant.
J.M.G. Griffith-Jones for the respondent.
LORD GODDARD, C.J.: This is a case stated by the metropolitan magistrate at Bow Street Magistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called "Jazz Illustrated,” was charged on an information that “on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.” Under the Aliens Order, art. 1 (1), it is provided that
". . . an alien coming . . . by sea to a place in the United Kingdom -- a) shall not land in the United Kingdom without the leave of an Immigration officer. . .”
It is provided by art 1 (4) that:
“An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall comply with the conditions so attached or varied . . .”
If the alien fails to comply, he is to be in the same position as if he has landed without permission, i.e.,he commits an offence.
The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He came here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins land and it was refused, but, nevertheless, this professor of the saxophone arrived with four French musicians. When they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them and taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, lo and behold, out comes his magazine with a most, laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he aided and abetted.
Reliance is placed by the prosecution on R. v. Coney (1) which dealt with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones, does not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540):
"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”
There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get "copy" for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage." If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting "copy" for his paper. In those circumstances there was evidence on which the trate could that the appellant aided and abetted, and for these reasons I am of opinion that the appeal fails.
HUMPHREYS, J.: I agree that there was evidence sufficient to justify the finding of the magistrate.
DEVLIN, J.: I agree, and I wish to add only a word on the application of R. v. Coney (1). Counsel for the appellant sought to distinguish that case on the facts inasmuch as in R. v. Coney (1) the performance, which was a prize fight, was illegal from beginning to end, whereas in the case we are considering the bulk of the concert was quite legal, the only part of the performance which was illegal being that which involved Mr. Hawkins. That, however, is not, in my judgment, a distinction which affects the application to this case of the principle in R. v. Coney (1). It may well be that if a spectator goes to a concert he may explain his presence during an illegal item by saying that he hardly felt it necessary to get up and go out and then return when the performance resumed its legality, if I may so call it. It is conceivable that in such circumstances (and I should wish to consider it further if it ever arose) the presence of a person during one item might fall within the accidental or casual class which was envisaged by CAVE, J. Here there was abundant evidence, apart from the mere fact of the appellant's presence, that he was making use of this item in the performance and that his attendance at that item was, therefore, deliberate. In those circumstances I think the principle in R. v. Coney (1) applies, and that the magistrate was justified in drawing the inference which he did draw.
Appeal dismissed with costs.
Solicitors: Elliot & Macvie, (for the appellant); Treasury Solicitor (for the respondent).
7.2.6.8.1.7 State v. Tally 7.2.6.8.1.7 State v. Tally
102 Ala. 25
State ex rel. Attorney General
v.
Tally, Judge, &c.[*]
November Term, 1893.
This was an impeachment proceeding against John B. Tally, Judge of the Ninth Judicial Circuit of Alabama, and was commenced in the Supreme Court by an information filed on the part of the State by William L. Martin, as Attorney-General, founded upon a report of the grand jury of Jackson county. The facts of the case are sufficiently stated in the opinion.
WILLIAM L. MARTIN, Attorney-General, and R. W. WALKER, for the State. All the evidence as to any relations between R. C. Ross and Annie Skelton should be excluded from consideration. The knowledge or information on this subject which the Skeltons had on the day of the killing, they had had for at least a month prior to that time. So long a cooling time having elapsed, evidence of such knowledge was not admissible for the purpose of reducing the grade of the homicide from murder to manslaughter, the only purpose for which such evidence is admissible in any case.—Hooks [28] v. State, 99 Ala. 166; Fields v. State, 52 Ala. 354; Reese v. State, 90 Ala. 627.
A witness should not be permitted to testify as to his uncommunicated intentions.—Lewis v. State, 96 Ala. 6, and cases there cited.
The charge of willful neglect of duty was fully made out. The respondent, with knowledge that Ross had returned to Scottsboro, that the Skeltons were "on the war path" for him, saw thee of the Skeltons on horseback, with guns, early Sunday morning, starting hurriedly out of town, evidently on some war-like mission. With knowledge of their previous threat to kill Ross, even if that threat was conditional, it can not be imagined that any other thought entered respondent's mind when he witnessed the demonstration than that the Skeltons were starting out in pursuit of Ross, intent upon killing him. After stopping and talking to Bob Skelton, respondent, according to his own admission, went into his house, there learned the truth of the matter, and then walked out to his front gate, and was there seen by witnesses for the State standing watching the Skeltons as they rode out of town. Under the circumstances, with the knowledge the respondent then had. The acts of the Skeltons in his presence as clearly amounted to a threat to kill Ross as if respondent had admitted that Bob Skelton, in the interview near respondent's barn, had fully developed their plans and purposes. The acts in respondent's presence "reasonably threatened murder."—Jones v. State, 100 Ala. 88; Martin v. State, 89 Ala. 115; Hayes v. Mitchell, 69 Ala. 452. The defendant then had the authority to order the Skeltons into an undertaking to keep the peace. Code, §4697. Certainly, the highest law officer in the county should be held to some degree of diligence in the performance of so grave a duty.—2 Wharton Crim. Law, (7th Ed.), 2526, 2528.
Anyone coming into a conspiracy at any stage of the proceedings, with knowledge of its existence, is regarded in law as a party to all the acts done by any of the other parties, before or afterwards, in furtherance of the common design. No pre-arrangement is necessary. One, who with knowledge 01' information of the unlawful design of others, is present, actually or constructively, abetting or assisting , or ready to [29] aid, abet or assist, is a guilty participant.—United States v. Sacia, 2 Fed. Rep. 755, 757-58; Tanner v. State, 92 Ala. 1; Martin v. State, 89 Ala. 115; Spies v. People, 122 Ill. 1. The words "aid" and "abet" comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance, should it become necessary.— Raiford v. State, 59 Ala. 106. Where an effort to do a criminal act fails of consummation, simply because of obstructions in the way, not apparent to the person making the effort, which rendered the crime incapable of accomplishment by him, such abortive effort is a criminal attempt, where the law makes a mere attempt to do such act criminal. Mullen v. State, 45 Ala. 43; People v. Moran, 20 Amer. St. Rep. 732.
WILLIAM RICHARDSON, D. D. SHELBY, JOHN A, LUSK, GEORGE C. HUNT and AMOS GOODHUE, for respondent. There is a total absence of any evidence that the respondent at any time was in consultation with the Skeltons or either of them, concerning the killing of Ross. He is shown to have been in consultation with Robert S. Skelton on the evening before the homicide, but this in no way concerning the killing of Robert C. Ross, but was regarding the ascertaining of the whereabouts of a sister, whom the defendant with the Skeltons desired to rescue from a life of shame and disgrace, and save from becoming the subject of a public scandal. It is true, circuit judges are magistrates and conservators of the peace.—Code of Alabama, 1875, Art, VI, Par. 16; 1 Cooley's Blackstone, 350; Code of 1886, § 4680. But there are only certain contingencies under which they are authorized to exercise their power as such, in the manner in which it is charged this defendant neglected to act. 1. When complaint on oath is made to them charging the commission of an offense has been threatened.—Code of Ala., 1886, § 4681, et seq.; 2 Amer. & Eng. Encyc. of Law, 516, § 2; and, 2, when an offense is committed or threatened in the presence of such magistrate, or when he sees such acts as show a reasonable ground for the arrest.—Code of 1886, § 4697; Jones v. State, 100 Ala. 88; Code 1886, § 4265. There is in the evidence in this case, total absence of any threat and any act in the presence or within the knowledge of this respondent, on the part of either of the four named [29] Skeltons, to do Ross any harm whatever. He had no knowledge or suspicion of such a thing except after they had gone beyond any opportunity on the part of anyone in Scottsboro to interpose any obstacle. There is no evidence in the record sustaining the smallest fragment of the first count and its four specifications so far as they relate to this defendant.
The second count in the information, is a charge of murder alleging in the several specifications substantially the same thing, but, under the pleadings and the evidence in this case, depending solely on the proof being made that the respondent entered into a conspiracy with the four Skeltons to murder the said Robert C. Ross. If the respondent was not an accessory before the fact to the killing of Ross, he is not guilty of any crime alleged in the information. He either conspired with the four named Skeltons to murder Ross, or he had nothing to do with his death, and should be acquitted. An accomplice is a person who knowingly, voluntarily and with common intent with the principal unites in the commission of a crime.—Tanner v. State, 92 Ala. 1; Wharton's Crim. Ev., § 440. There can be no pretention that the defendant united in the commission of any offense; he did no act that aided, abetted or encouraged the Skeltons in doing anything they did. The telegram had nothing whatever to do with bringing about the death of Ross. In no way did it aid in the killing. It was not instrumental in causing delay in the delivery of the message of E. H. Ross to the man slain, in no way facilitated the pursuit by the Skeltons. In this case, if there be a previously formed purpose or conspiracy to commit the offense, the acts, declarations and conduct of each conspirator done or expressed in promotion or in relation to the accomplishment of the crime, becomes the act, declaration or conduct of each co-conspirator, and may be given in evidence against him. But to do this, a prima facie case of conspiracy must be shown.—McAnally v. State, 74 Ala. 16. A prima facie case or evidence is that which is received or continues until the contrary is shown.—19 Amer. & Eng. Encyc. of Law, 83; Troy v. Evans, 97 U. S. 3; Kelly v. Jackson, 6 Pet. (U. S.) 622; Wharton's Crim. Ev., § 698, and note 2. The respondent is charged with being an [31] accessory to a crime. It must appear that the crime was in fact committed.—Poston v. State, 12 Tex. App. 408. There is no prima facie case made, there is no conspiracy, and the evidence as to all that the Skeltons did and said should be excluded.—McAnally's Case, supra.
An accessory before the fact, as charged in this information, is one who, being absent at the time the crime is committed, yet procured, counselled or commanded another to commit it.—1 Arner. & Eng. Encyc. of Law, 61,also page 67, and note, Hughes v. State, 75 Ala. 31; Griffith v. State, 90 Ala. 583; 1 Amer. & Eng. Encyc. of Law, 452 and note 3. There is absolutely no evidence in this case that the respondent procured the Skeltons to commit the deed charged, or that he counselled it or commanded it.
The mere passive non-interference does not render one guilty of a crime committed by others.—3 Coke 529, and note; Jackson v. State, 20 Tex. App. 190; Mulvey v. State, 43 Ala. 316. Mere approving a murder committed in one's presence or within one's knowledge does not make him an accessory or an accomplice.—Wharton's Crim. Ev., 440; State v. Cox, 65 Mo. 29; 1 Amer. & Eng. Encyc. of Law, 62, and note 1; Connaughty v. State, 1 Wis. 169; People v. Woodward, 45 Cal. 293; 13 Amer. Rep. 176 and notes; White v. People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. App. 301; Rucker v. State, 7 Tex. App. 549; State v. Hann, 40 N. J. L. 228; Ellizando v. State, 30 S. W. Rep. 560
In order to make one an abettor it must be proven that he was in a situation in which he not only rendered assistance in some manner in the commission of the offense, but it must be proven that he was in this position by agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and for the purpose of rendering him encouragement in the commission of it—Knapp' s Case, 20 Amer. Dec. 504. Or to assist him by the doing of some act whereby the party who is regarded as the principal and is the principal actor in the commission of a crime is encouraged, or it is made easier for him to do the principal act or effect the primary purpose.—1 Amer. & Eng. Encyc. of Law, 453 and note; Wiley v. McRee, 2 Jones (N. C.) 349 Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 568. To hold one liable with [32] others as principal in the commission of an offense, there must be combination of act and intent.—Ronntree v. State, 10 Tex. App. 110. One is not guilty of aiding and abetting merely because present and seeing an offense committed, if he does not interfere. He must do or say something showing his consent and contributing to its execution.—State v. Hayward 10 Amer. Dec. 607, note. There must be some affirmative act or encouragement to make him guilty as an accomplice.—Amer. & Eng. Encyc of Law, 575.
If the telegram of the respondent to Huddleston, not being sent with the consent, knowledge or approval of the Skeltons, and not being addressed or directed to them, and not being delivered to them, nor brought to their knowledge, and being in no way interposed between the deceased and any means of escape which may have offered themselves to him, the telegram in no way contributed to, facilitated or brought about the death of Ross, and, therefore, the defendant is not guilty of any of the specifications in the information.— Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 12; Turner v. State, 97 Ala. 57; Cabbell v. State, 46 Ala. 195. In order to ho1cl the respondent responsible as a participant in the crime, if crime it be, on the part of the Skeltons to have killed Ross, the State must show beyond a reasonable doubt that the act of the defendant in sending the telegram to Huddleston contributed to and facilitated the killing of Ross by said Skeltons. And that the act and conduct of the respondent was anticipated by or expected on the part of the Skeltons by reason of a previously formed arrangement or agreement between them and the respondent, that he would so act, or do other acts of a character calculated to aid and facilitate the killing of Ross.—Hickam's Case, 8 S. W. Rep.252; 6 Criminal Law Magazine and Report, 414.
McCLELLAN, J.—The evidence was taken ore tenus in this case. There were many witnesses. Much difficultyand delay in securing their attendance at Montgomerywere apprehended. To facilitate the hearing ofthe case and to subserve the convenience and necessitiesof the witnesses, the judges of this court, at the requestand in accordance with the agreement of the respondent [33] and the State consented to take the evidence and hear the arguments of counsel in the cause at Huntsville near the scene of the acts and omissions laid against the respondent in the information. And the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in accordance with the agreement referred to, in view of the control which the statute gives respondents m such cases over the manner of taking testimony. But we were not unmindful of section 3, article IV of the constitution, which is in this language: “The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place;" and we wore careful, while sitting at Huntsville as individual members of the court and not as the court itself, to avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received subject to objections noted at the time and is now to be stricken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances the triers of the facts and the judges of the competency of proposed testimony being the same and under a necessity for the most part to know what the offered testimony is before passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party; and we believe facilitated the hearing in this instance.
Briefly stated, the information in this case contains two charges against John B. Tally as Judge of the Ninth Judicial Circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James and Walter Skelton to take the life of R. C, Ross, and having the opportunity to intervene in his official capacity to prevent the execution of that intent he willfully failed and neglected to do so. The second count charges complicity on the part of Tally in the murder of Ross, by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named except John, having married their sister who was a cousin to John. The [34] grievance they had against Ross lay in the fact that the latter had seduced or been criminally intimate with a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally as tending to connect him with the motive which actuated the Skeltons to the killing of Ross; and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the State, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton—had had possession of and read all the implicatory letters from him to her—long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross's misconduct toward her, been moved by the tumult of passion, which the law holds such intelligence sufficient to provoke and engender, to take the actual life of Ross, and had taken his life while under the actual dominion of this overmastering passion before cooling time had elapsed, all this evidence would have been competent as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether as a matter of fact life was taken in a passion so continuing or not, the offense of the Skeltons, and of Tally, if he participated in the homicide, was and could be in nowise and to no extent or degree justified, mitigated or extenuated by the fact of Ross's relations with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case, wholly apart from and exclusive of the relations of Ross and Miss Skelton, may or may not satisfy beyond a reasonable doubt minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without griev [35] ance, real or fancied, against him. All this testimony is, therefore, entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded.—Hooks v. State, 99 Ala. 166; McNeill v. State, 15 So. Rep. 352, infra.
It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated him in the sending of a certain telegrams, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Ross and the respondent on the morning of February 4, 1894, he "went down to the hotel to see if Mr. Ross was there—to see if he had come there; went down to advise with him and to see what the trouble was, and also to deliver the message," must now be stricken out.—Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383, Stewart v. State, 78 Ala. 436, Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib. 428; E. T. V. & G. R. R. Co. v. Davis, Ib. 615; Lewis v. State, 96 Ala. 6.
The conversation between the respondent and Mr. J. E. Brown after and on the day of the homicide was in the nature of privileged communications between attorney and client, for though that relation was never established between these parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded.—Hawes v. State 88 Ala. 37, 68. Without discussing at present other objections to the testimony which may be ruled upon in the course of this opinion, we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information, premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.
Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the [36] following: About January 6, 1894, Ross left his home in Scottsboro surreptitiously under and because of an apprehension that his life was imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. From that time till Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o'clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson and beyond there to Chattanooga, Ross left Scottsboro in a hack for Stevenson, eighteen miles distant, intending to catch a tram there on another road and go on to Chattanooga. With him were his brother-in-law, Bloodwood, a negro man, John Calloway and the driver, one Hammons. All of the party were armed; Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or, rather, unite there, and thirty or forty yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him; and met, shook hands and passed the usual salutations with Ross , who had gotten out on the side next the station, and then turned away and started on toward the station. Just at this juncture a shot was fired at Bloodwood, from behind the depot platform. This was followed by another from the same place, and then by other shots from two guns behind the platform and from a pile of telegraph poles a little way down the road in the direction from which the hack had come. Some one or more of these succeeding shots took effect in Ross's legs, and he fell. Bloodwood was also wounded and ran away. The team ran away with Hammons. Calloway does not appear to have been hit, but in some way he fell with and under Ross. They both arose almost immediately. The negro, Calloway, ran away. Ross managed to get to the side of a small oil house, a [37] short distance beyond where the hack had stopped, and took a position affording some shelter from persons behind the platform and telegraph poles. While standing there with his gun in his hand and looking in the direction of the telegraph poles, a man came to the corner of the house behind him and shot him with a Winchester rifle through the head from back to front. He fell in the throes of death and died, then another man came up from behind the platform and, approaching closely, also shot him through the head with a Winchester rifle.
The man who fired the first and two of three other shots from behind the platform was Robert Skelton. The man who fired the other shots from that position was James Skelton. The man who fired from the telegraph poles was Walter Skelton. John Skelton it was who reached the corner of the oil house behind Ross, shot him in the back of the head and killed him. And it was Robert who came up after he was dead, and again shot him in the head. Some of the Skeltons were seen about the station in Scottsboro when the east bound train passed that morning just at the time Ross started overland to Stevenson. Soon after that they heard of Ross's flight, and, as soon as they could get together, arm and mount themselves, they started in pursuit on horseback. They were fearful that Ross would turn off the Stevenson road and go across the Tennessee river as he had done on the occasion of his previous flight, and hence they were afraid to take any short cuts by resorting to which they could have, as Ross continued in the Stevenson Road, overtaken him much sooner than they did; but in their uncertainty as to his destination they thought it best to follow the tracks of his vehicle. Doing so they came in sight, and within a little distance of the hack as it was crossing a creek a mile from Stevenson. The hack was a close one and its occupants did not see them. A railroad crosses the creek at this point along side of the public road. They could have attacked the Ross party at this point, and Walter Skelton testifies that he then said to his companions: "Let's surround them and demand of him where Annie is," but that they said: "No, that would probably bring on a fight, and some one of us get killed." Instead of this, Robert and James dismounted, left their horses and ran along the railway track to Stevenson where they arrived and took positions behind the platform [38] almost immediately after the Ross party had arrived and stopped. Walter and John Skelton kept in the road behind the hack and fifty or sixty yards distant from it. They too were afoot at this time. Walter stopped at the pile of telegraph poles which he seems to have reached about the time the hack stopped and before anyone alighted from it. John, in same way, got beyond the hack and finally to the oil house without, so far as the evidence discloses, being seen by anybody until just before he shot and killed Ross. After the killing of Ross, Robert Skelton sent a telegram to the respondent at Scottsboro informing him that Ross was dead and that none of the Skeltons were hurt; and they all surrendered themselves to Huddleston, who was mayor of Stevenson, and were taken back to Scottsboro and confined in jail. Subsequently bail was allowed them and was given by Robert and James. John and Walter were unable to give bail, and the former escaped, and is still at large. After this, Walter also gave bail. All these facts are undisputed. The evidence offered in justification or mitigation of the homicide, except the facts and circumstances of Ross's relations with Miss Annie Skelton which we have excluded, is that of Robert Skelton as follows: "About the time that I got to the depot) between the depot and the hotel, Mr. Ross was at the buggy speaking with Bill Tally. I walked up and saw that. In a little while, I don't know how long, Mr. Bloodwood drew his gun up at me. I dodged dawn, and then fired at Bloodwood;" and of Walter Skelton: "I was, I suppose, fifty or sixty yards behind the hack [when it stopped], and I was watching to see who got out. I saw Mr. Ross get out, talking to some one. Then I saw Mr. Bloodwood get out, and in a few minutes I saw him raise his gun across the hack, then take it down and about the same instant I heard a gun pop." The gun which Walter heard “pop" was that of Robert Skelton. Walter and James then joined in and Robert continued the fusilade. That Bloodwood did not shoot there is no reasonable doubt. That Ross or any other of his party fired a shot is not pretended. That Bloodwood snapped his gun in an effort to shoot there is some evidence, enough we will conclude to engender a reasonable doubt as to whether he did or not. But the conclusion that he attempted to shoot at Robert Skelton will not afford any [39] justification or excuse to the Skeltons or the respondent. They were in no danger from Bloodwood' s gun. If they were in danger, a safe avenue of retreat was open to each of them. Had there been danger and had the opportunity of retreat been wanting, they yet could not invoke the doctrine of self-defense, because their danger resulted from their awn wrongful and unlawful aggression. They were there to kill. It was Ross and Bloodwood and not they who were on the defensive. This conclusion can not be escaped even from their own standpoint. They say they pursued Ross to prevent his going to their sister and continuing criminal relations with her. How were they to do this; how could they do it but in the effective way they did do it, by stopping Ross at once and forever in his tracks. That they contemplated this means, conceding their purpose was to prevent the coming together of Ross and Miss Skelton, is beyond all question. It is shown by their conversation at the creek, when they said Ross would fight and some of them would be killed if they approached him with reference to Miss Skelton, and they then desisted only because the place and surroundings were not opportune. It is shown by the disposition they made of themselves around but concealed from Ross at Stevenson and the instantaneous fire they opened an him as soon as they were in their places of ambush, when, had their purposes been less deadly, had any sort of parley with Ross been desired, either for the purpose of diverting him from their sister or of ascertaining from him her, whereabouts, pacific means to that end were at hand in the person of William Tally, who had just spoken to Ross and was then coming directly towards the place of concealment of two of them, one of whom began the onslaught, and in the person of several other men then in and about the depot. Their purpose was to kill; its wickedness was unrelieved by aught of legal justification or excuse. They did kill; and their act was without any justification, mitigation or extenuation which the law knows or courts can allow to be looked to. It was murder.
What connection had the respondent with that murder? Was he, knowing the deadly intent of the Skeltons and their pursuit bent upon its execution, willfully neglectful of his duty as a magistrate in not exercising the power the law had clothed him with to stay their[40] hands? Or did he himself participate in the deed by commanding, directing, counselling or encouraging the Skeltons to its execution, or by aiding and abetting them in its commission? The evidence for the prosecution on these issues will be briefly stated. As has been seen, Judge Tally was the brother-in-law of Robert, James and Walter Skelton, and of Miss Annie Skelton, the wronged girl. It may be supposed, therefore, that he shared with the Skeltons, in some degree at least, the shame and mortification which had come upon them through Ross; and that the grievance against Ross was common to them all. It was shown that he knew all the facts known to the Skeltons and came to his knowledge of them soon after they did. They all lived in the same town with the intimacy usually incident to their relations. James Skelton lived with Judge Tally. On Friday before the Sunday of the homicide, Judge Tally returned to Scottsboro from Ft. Payne, where he had been holding court, by way of Chattanooga, Tennessee, and over the Memphis and Charleston railroad. On the train was Mr. Gregory, a lawyer of Scottsboro, who engaged Judge Tally in conversation. The latter spoke of some interesting murder Cases that he had been trying at Ft. Payne, and in this connection Gregory remarked to him that he thought they would have one or more killings in Scottsboro in a very short time. "The Judge [to quote the witness] asked me why, and I told him that Ross had come back and that the Skelton boys were on the war path, or some such thing, I don't remember just what it was. The Judge said he guessed not, that he supposed Ross would leave, or would not stay there, or something of that kind; and I told him I supposed so." On Saturday afternoon Judge Tally was in consultation with Robert Skelton, the eldest of the brothers, for something like a half hour in the latter's office. It is admitted by Judge Tally that this conversation had relation to Ross and Miss Skelton and the scandal connected with them. Tally staid at home that night. James Skelton also slept there. The next morning Tally's fifteen year old son went to a livery stable and got a horse, the hire of which was charged to, and subsequently paid by, Judge Tally. This horse was gotten for the purpose of being ridden and was ridden by Walter Skelton in pursuit of Ross. One witness testifies [41] that quite early on that Sunday morning before the Skeltons had assembled to go in pursuit of Ross, he saw a man whom he took to be Judge Tally passing a street some distance from Judge Tally's house, going in the direction of John Skelton's, but he was by no means sure that the man he saw was Judge Tally. J. D. Snodgrass, a witness far the State, testified that he saw three of the Skeltons, Robert, John and James, leaving Scottsboro that Sunday morning. When he first saw them, John and James were going along a side street upon which Judge Tally's barn and barn lot were situated. That the two last named had gotten beyond Tally's premises and were about turning out of this street, which ran north and south, into a street running east and west and passed in front of Judge Tally's residence. This residence was the second from the corner at the intersection of these streets. At this time Robert Skelton was on horseback near Tally's barn lot fence talking with Tally. He remained there only a very short time—the witness said probably a minute—after Snodgrass saw them. Tally was either inside his lot or in the street near his lot and on foot. At the end of this short time Robert rode on following John and James, turned east on the other street mentioned and passed by Snodgrass's house, which fronted on that street, going in the direction of Stevenson. He then observed that each of them had a gun. Another witness before this saw Walter Skelton following the Stevenson road on foot. This witness coming on down this street in front of Judge Tally's house, saw Tally standing at his front gate looking in the direction Walter Skelton was proceeding. Tally turned before he reached him and went into the house. Young Tally carried the horse which he had gotten from the livery stable to Walter on the road. Another witness passed down this street after they had all gone towards Stevenson, and he also saw Tally at his gate looking in that direction. Tally again turned and went into his house before this witness reached him. It was also in evidence that James Skelton left Tally's house that morning before breakfast, went down town, armed and mounted himself, came back to Tally's, hitched his horse in front of the house, set his gun against the front gate, went into the dining room to get something to eat before starting, then went out, remounted, and joined [42] Robert and John at the corner where these three were seen by Snodgrass. The flight of Ross and the pursuit of the Skeltons at once became generally known in the town of Scottsboro, and was well nigh the sole topic of conversation that Sunday morning. Everybody knew it. Everybody talked only about it. Everybody was impressed with the probability of a terrible tragedy to be enacted on the road to Stevenson, or at the latter point. The respondent was soon abroad. He went to the depot where the telegraph office was. He remained about there most of that morning. About nine o'clock that morning Dr. Rorex saw him there, and this, in the language of the witness, passed between them: "I said to Judge Tally that I thought we had better send a hack and a physician to their assistance up the Toad [referring to the Ross and Skelton parties then on the road to Stevenson]; that these parties might get hurt and they might need assistance. Judge Tally replied that his folks or friends could take care of themselves. I also said to him that I reckoned we ought to send a telegram to Stevenson and have all of them arrested, to which he made no reply. * * He said that he was waiting to see if anybody sent a telegram—or words to that effect—waiting or watching to see if anybody sent a telegram." And he did wait and watch. He was seen there by Judge Bridges just before the passenger train going west at 10:17 passed. He was there after it passed. E. H. Ross, a kinsman of the Ross who had fled and was being pursued, meeting the telegraph operator, Whitner, at the passenger station walked with him down to the freight depot where the telegraph office was. Judge Tally followed them. They went into the telegraph office and so did he. Ross was sitting at a table writing a message. It was addressed to R. C. Ross, Stevenson, Alabama. Its contents were: "Four men on horse back with guns following. Look out." Ross handed it to the operator to be sent. Tally either saw this message or in some way very accurately divined its contents. He called for paper and immediately wrote a message himself. Judge Bridges was still in the office. At this juncture Tally spoke to him, took him into a corner of the room and, calling him by his given name, said: "What do you reckon that fellow [the [43] operator] would think if I told him I should put him out of that office before he should send that message?" referring to the message quoted above which E. H. Ross had just given the operator. Judge Bridges replied: "Judge, I wouldn't do that. That might cause you very serious trouble, and besides that might cause, the young man to lose his position with the company he is working for." Judge Tally then remarked: ' 'I don't want him to send the message he has, and I am going to send this one." He then showed Judge Bridges a message addressed to William Huddleston at Stevenson, containing these words: "Do not let the party warned get away." This message was signed by Tally. Huddleston was the operator at Stevenson and a friend of Tally. The respondent then handed this telegram to the operator, remarked to him "this message has something to do with that one you just received," said he wanted it sent, and paid for it. He then started toward the door, but turned to the operator and said: "Just add to that message, 'say nothing.’” Tally then left the office. This message was sent just after that of E. H. Ross to R. C. Ross. The original of it was placed on a file in the office at Scottsboro. Two days after a search was made for it and it could not be found, and has never been found. The one man in the world most interested in its destruction, the respondent in this case, in the meantime had had an opportunity to abstract it, he having had access to this file and gone through the messages on it for the purpose, he said then and says now, of finding the address of a person to whom he had sent a message some days before. And on the preliminary examination of the Skeltons before the probate judge of Jackson county for the murder of Ross, Judge Tally was called and examined as a witness for them, and before a copy of this message was produced by the operator, and hence at a time when Judge Tally was not aware that a copy was in existence, this question was put to him: "You didn't send any dispatches that morning to Stevenson?" And his answer was: "Yes, sir. I sent one, but not about this matter. It was to a friend, about another matter, nothing concerning this case." And this friend was Mr. Huddleston. He further testified on that trial that he did not know Ed. Ross, did not see him going to the telegraph office that morning, and did not know whether Ed. Ross was in the telegraph office while he was on that [44] occasion or not. These telegrams of Ed. Ross and Tally were sent about 10:25 A. M. Tally then, his watch to prevent the sending or delivery of a telegram to R. C. Ross being over, went home. Soon after eleven o'clock the message before referred to came from Stevenson to Scottsboro, addressed to Judge Tally, and signed by Robert Skelton. It ran: "Ross dead, none of us hurt." This was taken to Judge Tally's house and there delivered to him, and he thereupon went to see Mr. Brown, and had the conversation which we have excluded.
The foregoing is substantially the case made by the evidence adduced by the State against the respondent, leaving out of view for the moment the evidence touching the effect which his message to Huddleston had upon occurrences at Stevenson.
Next we undertake a summary of the evidence for the defense. Judge Tally himself, and Robert, James and Walter Skelton were among the witnesses examined. The respondent admitted having a conversation on the train with Mr. Gregory, but he did not recall that Gregory said anything about the Skeltons being on the war path. He says he knew of the relations between Ross and Miss Skelton soon after the Skeltons were informed of them, and read the letters from him to her soon after they came to their possession. That he and Robert Skelton, at the time the latter showed him the letters, on January 6, 1894, held consultation as to what was best to be done in the matter. This is his account of what occurred and was said at that time in Robert Skelton's office: "Iasked Bob Skelton if he had such communications as it was reported he had, letters said to have been written by Mr. Ross to Annie. I asked him then if he would let me see the letters. He said he would; and got them and showed them to me, and I read them there in his office. He and his brother David Skelton and myself were the only persons present. During the time I was reading the letters we were speaking about the contents and discussing them, and he told me after I had read the letters—possibly during the time I was reading them—he gave me his ideas as to managing the trouble. He told me about his plans to get Annie home and to let Mr. Ross leave and make the best of it—let it die out and make the best of it. I told him that was decidedly the best thing to do. It [45] was best for him and would possibly save the publication generally of the scandal, and might possibly save my mother’s life. Annie's mother was paralyzed and helpless, and I suggested that exposure might possibly cost her her mother's life. Dave Skelton was sitting by and observing our conversation, and would occasionally have something to say; and he spoke of doing violence—spoke of killing him. I simply turned to him and said: ‘Dave, that won't do. This is the best management.' I desire to say just here that this is the only time that any member of the Skelton family ever said anything in my hearing about killing Ross. Not long after that, he left and I heard no further conversation about any violence." The respondent gives the following account of the conference he had with Robert Skelton on Saturday afternoon preceding the homicide: "I think I was on the street and Bob called me into his office, * * * and we engaged in conversation. I think that the first thing Bob mentioned to me was that he was thinking as to how he should find out where Annie was. He said he had been thinking about trying to get some one to go to Mr. Ross, and induce him or ask him to tell us where Annie was. I suggested to him the propriety of interviewing Mr. Brown about that, and gave him reasons why I suggested Mr. Brown." These reasons as given at the time by the witness he then repeats; and goes on to mention one or two other persons whose availability in getting this information was discussed, and says that after this he left Bob's office having been there he supposes fifteen or twenty minutes. In all this Judge Tally is corroborated by the evidence of Robert Skelton, and, in respect of their determination to do no violence to Ross, but to get the girl home and allow him to leave Scottsboro, he is further corroborated by the declaration proved by Mr. Gregory in substance that no violence would be done to Ross as he would leave Scottsboro. He denies having passed up the street when the witness Miller says he thought he saw him at an early hour Sunday morning, and no importance can be attached to the evidence of that witness, because, in the first place, his glance at the man was casual and hasty and he was himself not at all certain that it was Judge Tally he saw. In the next place even on the theory of the prosecution, there was no reasonable occasion for Judge Tally's being at that [46] place at that time, and, finally, the fact is denied on oath by the respondent. So that testimony may stand out of the case. In respect of the horse which Judge Tally's son procured at the livery stable, which was charged to and paid for by the respondent, and which Walter Skelton rode in pursuit of Ross, the testimony is that Mrs. Tally at the instance of Walter Skelton ordered this horse and sent her son for it, that she was in the habit of doing this, that it was charged to Judge Tally as was the custom, and that he, conceiving himself under a moral a and legal obligation to do so because the horse had been supplied to Mrs. Tally, paid the bill and this in the usual course, after the point now made on those facts had been suggested to him. The respondent admits on the stand that he saw and had a few words with Robert Skelton when the Skeltons were leaving Scottsboro Sunday morning as testified to by Mr. Snodgrass and this is the account of that interview: "When I first got up, I went down stairs and stepped out to the front gate just a minute. The only person I saw was Bob Skelton riding up the street towards the railroad [a street running north and south and not in the direction of Stevenson]. Bob was crossing the street going northwest [the direction in which John Skelton lived]. I walked back through the hall of my house and went down to the garden to the closet, and was there some time, I don't remember how long, some little time however. After I came out of the closet and while I was in the garden I saw Bob and John Skelton riding away going east on the street parallel with the railroad, and which ran back of Judge Tally's residence]. Istaid there and observed them and saw them after they had passed the barn of Mr. Harris on the corner. I saw them coming on the street south passing my barn—along the street that runs in front of my barn. When I saw them going in that direction I walked through my barn lot to the fence and saw them at the corner, [the intersection of this south and north street passing Tally's barn with the east and west street upon which his residence fronts]. About that time Jim Skelton joined them. I didn't notice where he came from. Then I called to Bob Skelton. He turned and rode back from where I saw them at the corner, * * * and I crossed the fence and met him near the corner of my [47] barn lot. He rode up within six or eight or ten feet, and I said to him: 'Bob, where are you going?' He said to me: 'Going up the road.' I asked him again: 'Where are you going?' and he answered: 'Up the road, and I am in a hurry.' He turned and rode off, went back the way he came when I called to him."
Robert Skelton's testimony agrees with Judge Tally's fully as to this interview, only he added that he said further to Tally that he was in a hurry and did not want to talk. And they are both fully corroborated as to the circumstances under which this interview was had, its brevity and how it was brought about, by Mr. Shelley, an wholly disinterested witness, who saw John and Robert Skelton as they rode along the east and west street back of Judge Tally's premises—they passed the witness there—saw them turn south on the street in front of Judge Tally's barn, and proceed along that street beyond the point of the interview between Tally and Robert Skelton, then saw the latter riding back to where Tally was, sit there on his horse while the witness could have counted fifteen or twenty, then turn, rejoin the others and ride out east. And there is nothing in this account of this interview which materially conflicts with that given by J. D. Snodgrass. James Skelton, as has been said, lived at Judge Tally's. He slept there the night before the homicide and went thence, as we have seen, in pursuit of Ross. Judge swears he did not see him that morning except when he joined Robert and John at the corner about the time of the conversation between Robert and himself. It is shown by the evidence of Mr. Proctor, who slept with James the night before, that the latter arose and left the room quite early that morning. It was also shown that he was down town at an early hour. Judge Tally must have arisen after James went down town. The testimony and all the circumstances concur in showing that when James came back to the house, mounted and armed, and went in to get "a piece of meat and bread," as he expressed it, leaving his gun and horse at or near the front gate, Judge Tally was either in his garden back of his house, or more probably in his barn yard, which was back of an adjoining house. From neither of these positions could he see the horse or gun at the front, or James in the house. Judge Tally also testifies that he did not see [48] Walter Skelton at all that morning, or know of his son's going for a horse for him until the Skelton party had left Scottsboro. This is somewhat strange in view of the facts that Walter Skelton came to his house that morning, talked with Mrs. Tally, and induced her to procure a horse for him to ride in pursuit of Ross, and that young Tally was sent from the house to the livery stable for the horse. But it reasonably appears from the evidence that all this happened before Judge Tally got up. It is shown that Mrs. Tally's cook was sick and that she had to be up early to prepare breakfast, and did get up some time before Judge Tally. And the other testimony and the surrounding circumstances concur in showing that all that occurred at Judge Tally's house with reference to this horse occurred in the interval between the times Judge and Mrs. Tally arose.
The respondent further testifies that he did not see his wife after she arose that morning until he returned to the house from the barn lot where he had the interview with Robert Skelton; that he returned thence to his house, saw his wife and she then told him of the flight of Ross, which had been communicated to her by Walter Skelton, and of the pursuit of the Skeltons; and that he did not know and had received no information before this that Ross had gone, and that the Skeltons were pursuing him. At this juncture, it is to be borne in mind, all the Skeltons had left Scottsboro. And this, with proof of the respondent's good character, is the case of the defense so far as the first count of the information is concerned. On the evidence for the State which we here set out, taken in connection with this evidence for the respondent, can it be said that Judge Tally, when he was in the presence of Robert, and in sight of John and James Skelton that morning, knew of their intention to take the life of Ross, and that they were setting out to presently execute that intention as is charged in the several specifications under the first count? We think not. There is no affirmative evidence, such as declarations and the like on their part might have afforded, that they themselves ever entertained the purpose to take life prior to that morning except in the event Ross failed and refused to leave Scottsboro. And they might well have entertained such purpose without Tally's knowl [49] edge of it. It might well have been that, intending to kill Ross, the Skeltons would have concealed their design from Tally on account of his official position and notwithstanding his family relations with them. Again, there is no positive evidence, if they so intended prior to the day of the homicide, that Tally was ever informed or knew of their intention. True it may be said that he knew Ross had to leave there, and failing this the Skeltons would, or intended to, kill him; but only knowing this, the fact that Ross had gone, which fact according to the State's theory he must have known when the Skeltons left Scottsboro, it would have been but natural for him to have concluded, that as the condition upon which Ross was to live had been met, the conditional purpose to take his life was abandoned. True it is also that he had in some degree the same motive to destroy Ross that moved the Skeltons to his destruction in the sense that he, too, by reason of his marital relations, was a victim of the wrong that Ross had wrought upon them all; but this motive might well have impelled the Skeltons to the extreme to which they went in purpose and deed, while he was restrained by that respect for which his profession engenders, and by the environment of his high judicial position, from yielding in intent or action to the deadly impulse the wrong was conducive to. There is, we repeat, no affirmative evidence that Judge Tally knew, until after the Skeltons had gone, that they intended to take the life of Ross. There were circumstances proved which unexplained might have justified—indeed would have justified—the inference that he did. But explanations have been made which are either affirmatively satisfactory, or cast such reasonable doubt on the conclusions to which without the explanations the circumstances would have led us, that we do not feel justified in accepting the conclusions. For instance, the hiring of the horse which Walter rode: As presented by the State in all its baldness that fact was most incriminating. But when taken in connection with the facts that the horse was to serve an occasion which was born of the flight of Ross while Tally slept, and was subserved by the procurement of the horse before he arose, that it was charged to him because ordered by his wife and paid for by him, after the circumstances [50] of the hiring and use of the animal had been used in the public mind to connect him with the tragedy, because by the course of previous dealing between him and the livery-man in respect of orders by his wife he was under both a moral and a legal obligation to pay, its probative farce against him is utterly destroyed. The presence that morning at his house of Walter Skelton is a circumstance of suspicion and would be of incrimination, but for the fact, which is shown by other evidence than Tally's, and against which nothing has been offered affording a contrary inference even that Walter had come and gone before Tally got out of bed in an upstairs room. Again, the naked fact that James came there after Tally had arisen, armed and mounted has of course a natural tendency to show that Tally knew the purpose of such unwonted and warlike preparations on that day when to ride about the country with guns is such an unusual thing. But according to the testimony, not only of Tally and Robert Skelton, but also ofMr. Shelley, a witness for the defense, and of Mr. Snodgrass, a witness for the State, the respondent was at that time in his barn lot, or next it in the side street, from which point he could see neither Walter Skelton in the house nor his gun standing against the front gate, nor his horse hitched in the street in front at the house and gate. The presence of Tally with Robert Skelton in the street near the farmer's barn as the Skeltons were starting on their chase of Ross, standing alone and unqualified, might prove much against him. But the evidence of himself and Robert Skelton, taken with that of Mr. Shelley, a disinterested witness, satisfies us that that meeting was momentary and wholly casual. Skelton had passed Tally and was proceeding on his journey when Tally hailed him and had him came back. Clearly he had not come that way to see Tally. It is not pretended that they had met before on that morning, or had any communication after Ross's fight. Tally’s being there is reasonably accounted for without connecting his presence in any way with this Ross matter. Skelton's passing there was reasonable without any reference to Tally; it was his route to his destination. They were together about long enough for the words they give to have passed between them. They [51] were not together long enough, we should say, for such conversation as would naturally have passed had they been discussing the flight and pursuitofRoss, what the Skeltons intended todo, what Tally should do meantime at Scottsboro, and the like. The State's witness, Mr. Snodgrass, saw them there, and his evidence does not materially conflict with that of Shelley as tothe length of time they were together. We have already stated the conversation they had as testified toby Tally and Skelton. Though they are tothe last degree interested witnesses, there is nothing before us which would justify our reaching the conclusion with the necessary conviction ofmind that, aught was said other than the words they have deposed to. Moreover, it does not appear, but the contrary does appear upon all the evidence we have, much of which is not tainted by interest, that Tally had any information of Ross's flight when he was talking with Robert Skelton. It is clearly shown that James Skelton did not know it, indeed it had not transpired, when he left the house. It came first to the knowledge of Walter, and it may well be supposed that he and James and all ofthem made their preparations with all possible expedition, losing no time tohunt up and inform Tally. Walter and James were at Tally's house after they knew of it, but there is no evidence that Tally saw either of them. Tally's own and Walter's evidence that they did not see each other and proof of circumstances demonstrate that he did not see James until he was riding away. It is said that Tally must be held to have known the intention of the Skeltons to pursue and kill Ross from seeing Robert and John mounted and armed. How could he know this, how are we tobe justified in holding that he knew this when it is clearly shown that he did not know Ross had gone at all? And had he known that, how could he justify a conclusion that they were going to pursue and slay him as he left Scottsboro, when, according toall the evidence we have as to Tally's knowledge oftheir intentions, they all wanted him to leaveScottsboro and intended he should goin peace. Again, shall the inference of a murderous intent an Tally's part, or of his knowledge of such intent on the part of the Skeltons, be drawn from the mere fact that he was seen on two occasions talking with his brother-in-law in the latter's [52] office for half an hour? Obviously not. Shall the fact that one of these occasions was the day before the killing of Ross lead us to say that Tally knew the Skeltons intended to kill? Of course not. And even less, if possible, would such conclusions be justified when we consider that the only evidence of what passed in these conversations was to the effect, whatever else it may have imported, that Ross should not be killed if he did what he was manifestly trying to do when he was killed; leave Scottsboro.
Some other minor circumstances, really of no probative force—such as that Tally was seen at his front gate that morning, once before and once after the Skeltons had gone, that he saw Robert Skelton riding north on a street some distance from him , which fact he brought out himself, and the like—were put in evidence. These we will not stop to discuss. Nor do we deem it necessary to discuss in this connection—with reference to Tally's knowledge of the Skeltons' intent when he had the brief interview with Robert that morning—Judge Tally's conduct after the Skeltons had gone. That conduct is referable to the knowledge he then had, which had been first imparted to him by his wife, and which soon became the common knowledge of the town, that the Skeltons had gone in pursuit of Ross to kill him; and in our opinion what he did and said after that time will not serve to establish the scienter laid under the first count of the information. We conclude this part of the case by saying that we do not find that Judge Tally had any knowledge of the intention of the Skeltons to kill Ross before or at the time of their departure in pursuit of him, that, therefore, neither of the three specifications under the first count is proved, and we find him not guilty of the charge of willful neglect of official duty presented by that count.
The second count of the information charges that "John B. Tally, Judge of the Ninth Judicial Circuit of the State of Alabama, unmindful of the duties of his said office, was, before the filing of said report of said grand jury, and while in such office, guilty of an offense involving moral turpitude, to-wit, the offense of murder.” There are three specifications under this charge. The averments, among others, of the first specification, following averments of Ross's flight, the Skelton's pursuit and the killing of Ross by them at Stevenson with [53] malice, &c., are, "that said Tally was informed of the intention and purpose of the said Skeltons to unlawfully take the life of the said Ross, and said Tally held communications with said Skeltons touching their said purpose, and said Tally knew of the pursuit of said Ross by the said Skeltons as aforesaid, and had such knowledge at the time said Skeltons were making ready to set out in pursuit of said Ross, and at the time they did set out in such pursuit.” As we have already indicated we are not convinced of the truth of these averments, and as the other matters laid in this specification may be considered as well under the second and third specifications, we will direct our attention solely to them. The second specification charges that the Skeltons "unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun," and "that the said John B. Tally, before the said felony and murder was committed, in manner and form aforesaid, on the day aforesaid and in the county and State aforesaid, did aid or abet the said" Skeltons, naming them, "in the commission of the said felony and murder." And the third specification charges "that on Sunday, the 4th day of February, 1894, in the county of Jackson, State of Alabama, the said John B. Tally unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun." These charges of aiding or abetting murder and of murder direct, which amount to the same thing under our statute,(Code, § 3704), are, upon considerations, to which we have already adverted, to be sustained, if at all, by evidence of the respondent's connection with the homicide after the Skeltons had left Scottsboro in pursuit of Ross, since we do not find any incriminating connection up to that point of time. Being without conviction that Tally knew of the Skeltons' intention to take Ross's life until after they had departed on their errand of death, and there being no evidence or pretense that between this time and the homicide any communication passed between them and Tally, we reach and declare the conclusion that the respondent did not command direct counsel, instigate 01" encourage the Skeltons to take the life of Ross, and that in whatever and all that was done by them and him, respectively, there was no understanding, preconcert or conspiracy between them and him.
This narrows the issues to three inquiries—two of [54] fact, and one of law: First—a question of fact—Did JudgeTally on Sunday, February 4, 1894, knowing the intention of the Skeltons to take the life of Ross, and after they had gone in pursuit of him, do any act intended to further their design and aid them in the taking of his life? If he did, then, second—a question of law—Is it essential to his guilt that his act should have contributed to the effectuation of their design—to the death of Ross? And if so, third—another inquiry of fact—Did his act contribute to the death of Ross?
There can be no reasonable doubt that Judge Tally knew soon after the Skeltons had departed that they had gone in pursuit of Ross, and that they intended to take his life. Within a few minutes he was informed by his wife that Ross had fled and that the four Skeltons were pursuing him. He had seen three of them mounted and heavily armed. He knew the fourth, even keener on the trail than these, had gone on before. He knew their grievance. The fact that they intended to wreak vengeance in the way they did upon overtaking Ross, was known to all men in Scottsboro, as soon as the flight and pursuit became known. It was in the minds and on the tongues of everybody there. Nothing else was thought or talked of. When Dr. Rorex, voicing the universal apprehension, suggested to him that aid be sent up the road to the dead and wounded, Judge Tally, taking in the full force of the implication that there would be a fight to the death with the Skeltons as assailants, and not dissenting therefrom at all, said with the ken of prophesy, as a reason why he would not be a party to the execution of this humane suggestion, that his folks—the Skeltons—would take care of themselves. How well they took care of themselves—with what exceeding care they conserved their own safety—is shown by the event and the manner in which it was produced. To the other suggestion of Dr. Rorex, resulting from the universal knowledge that unless something was done an awful tragedy would be enacted, that "we telegraph to Stevenson and have them all arrested," and thus prevent the catastrophe, if perchance Ross should reach that point alive, Judge Tally made no direct response; but in the same connection he said:"I am waiting and watching here to see if anybody sends a telegram." What he meant by this is most clearly demonstrated by his subse [55] quent shadowing and following up Ed. Ross, and his conversation with Judge Bridges about putting the operator out of the office before he should send Ed. Ross’s message of warning to his kinsman, Robert C. Ross. This was the situation: Ross was in what he supposed to be secret flight from the Skeltons. He was unaware that his early departure had been seen by one of them. He did not know they were all in full pursuit to take his life. Under these circumstances, the pursuers had every advantage of the pursued. They could come upon him unawares. Being on horse back while he was in a vehicle, coming up to him they could well get beyond and waylay him. This they actually did. Having this tremendous advantage, accentuated by the fact that they were in no danger from Ross even if he saw them unless he was forced to defend himself—that his effort and intent were to get away and not to kill—Judge Tally might well feel satisfied with the posture of affairs, he might well feel assured that his folks would take care of themselves, as they did. All he wanted was that this situation, which portended the death of Ross and the safety of his folks, should not be changed. He would not agree that it should be changed so as to save Ross's life even though at the same time the safety of the Skeltons should be assured, as would have been the result had the authorities at Stevenson been fully advised at the time Dr. Rorex suggested the sending of a telegram there to arrest all parties. He was waiting and watching there to see that the situation was not changed by advice to Ross which would or might enable him to escape death at the hands of his folks. He waited long and watched faithfully, and his patience and vigil were rewarded. He saw Ed. Ross going toward the telegraph office. He at once concluded Ross was going there to warn his kinsman and give him a chance for his life. He followed. His purpose was to stop the message, not to let the warning even start on its journey. This he proposed to do by overawing the operator, a mere youth, or by brute force. Judge Bridges dissuaded him from this course, but he adopted another to destroy this one precarious chance of life which was being held out to Robert C. Ross. It would not do, Bridges advised him, to stop the warning by threatening or overpowering the opera [56] tor. The young man was a new comer and a stranger there, and a resort to moral suasion with him was therefore unpromising and hazardous. Not so with the operator at the other end of the line. He was Judge Tally’s friend of long standing. He, through whose hands Ed. Ross's message of warning was intended to pass, could be approached. And to him Tally addressed himself. Saying to Judge Bridges that he, the Scottsboro operator had a message which he, Tally, did not want sent, and which, under Judge Bridges' advice, Tally had concluded not to stop by threat or force; he adopted another means of stopping it short of the person to whom it was addressed. He telegraphed his friend, the operator at Stevenson, not to let Ross get away. His language was at first written: "Do not let party warned get away." This he handed to the operator to be sent to Stevenson, saying: "This message has something to do with the one you have," referring to Ed. Ross's message. What then passed through his mind we are left to conjecture; but upon further thought he added to the message these words: "Say nothing." What was the full import of this completed message, looking at its terms and the circumstances under which it was sent? One thing is most clear, from all the circumstances and upon the words themselves and in the light of those circumstances. The message beyond all question would never have been sent but for the sending of Ed. Ross's message. It was manifestly and confessedly the offspring of a purpose to thwart the efforts of Ed. Ross to warn his kinsman of the true situation. One element of this situation, which gave Judge Tally great satisfaction with it, was Robert Ross's utter ignorance of the danger he was in. He scouted all suggestions to interfere at all so long as this element of gravest peril to Ross and of assured safety to the Skeltons existed. It was to the end that this element of peril to the one and safety to the other party should not be eliminated that, he had waited and watched all morning to see if anybody attempted to eliminate it by advising the hunted of the oncoming, in deadly purpose, of the hunters, and to prevent by threats or force or in any other possible way the sending of a telegram to advise Ross of this important factor in the posture of affairs with which he had to deal, on the hazard of his life. At the last moment the idea [57] of resorting to threats and force was abandoned as unwise. There was no other way to stop the telegram in the Scottsboro office. It was therefore to go, and the only other way to prevent its reaching Ross was to have it stopped at the Stevenson office. Tally, being dissuaded from the former course, adopted the latter. His purpose was the same throughout, but there was a change in the means he had contemplated for its effectuation.
Whitner, the newcomer and stranger, could not be prevented or dissuaded from putting the message on the wire, but Huddleston, the lifelong friend, who was to take it off the wire, and whose duty it was to deliver it to Ross, might be commanded or persuaded to omit its delivery when he had taken it from the wire to "say nothing." And in that event Ross would remain in ignorance of his danger, the situation, which gave Judge Tally so much satisfaction as that he felt assured his folks could take care of themselves , and which he would not consent to interfere with as suggested by Rorex in a way to conserve the safety of both the Ross and Skelton parties, would remain unchanged, and Ross would go to his death, as he did, without a single chance to raise his hand in defense of his life. The telegram to Ross was: "Four men on horseback with guns following. Look out." Tally's telegram to Huddleston was: "Do not let party warned get away. Say nothing." "Get away" from what or from whom? From whom indeed and in all common sense but from the four men on horseback following with guns to take his life. They alone were in pursuit. They only were following the party warned. From them alone was Ross fleeing. From them only, by what he supposed to be secret flight across the country rather than attempt to board a train guarded by them against him, was he trying to get away. The law had no claim upon him; he had committed no offense of which it took cognizance, and no charge of crime had ever been made against him. Nobody on earth except the four men, the Skeltons, sought to prevent his getting away; and from these Judge Tally, seeing that a chance of escape was about to be afforded him, called upon his friend, Huddleston, to interpose, to destroy that chance and to prevent his getting away. Having formulated his command or request to Huddleston to prevent his getting away and [58] handed it to Whitner for transmission to Huddleston, the thought must have passed through his mind: “How is my command or request to be complied with; how is Huddleston to prevent Ross's getting away." He knew there was no ground to arrest Ross. He knew that Huddleston, although mayor of Stevenson, was utterly without authority or right to stay him for one moment of time. How then was he to proceed? One obvious means to this end presented itself to the respondent's comprehension as he pondered how the thing he wanted to be done could be accomplished. That was that Ross should not be advised of the contents of the dispatch of warning. This would maintain the status quo with which Judge Tally had evinced such complaisance and satisfaction, in which his “folks could take care of themselves," and out of which must result the death of Ross. And to suggest this effective means to his friend he makes Whitner, who then has the original message in his possession add to it the words: “Say nothing." Say nothing about what? Clearly about the subject matter of the two dispatches, nothing about the pursuit of the four men on horseback with guns, nothing about the warning to Ross. Say nothing so that the situation may remain unchanged. Say nothing so that Ross shall continue to be, as he is now, without the chance or hope of escape. In other words and in short, the substance and effect of what Tally said to Huddleston, taking the two dispatches and all the circumstances into the account, was simply this, no more or less: “Ross has fled in the direction of Stevenson. The four Skeltons are following him on horseback with guns to take his life. Ross does not know of the pursuit. An effort is being made to get the word to Ross through you that he is thus pursued 0in order that he may get away from them. If you do not deliver this word to him he cannot escape them. Do not deliver that message, say nothing about it, and thereby prevent his getting away from them." A most careful analysis of the voluminous testimony in this case convinces us beyond a reasonable doubt that this was what Tally intended to convey to Huddleston, and that his message means this and only this to all reasonable comprehension. Other meanings were suggested at the hearing in argument, and in testimony as to uncommuni [59] cated intention which has been excluded, but the suggestions are either entirely unreasonable in themselves or do not at all comport with the attendant circumstances. For instance, it is said that the language of Tally's telegram shows he contemplated that the message to Ross would be delivered. He said: "Do not let the party warned get away," implying, it is argued, that the party referred to had been or would be warned by the delivery of Ed. Ross's message. This view is entirely too literal and technical. The form of expression employed was incident to the brevity usual in telegraphic communication, and was manifestly intended merely as an identification of the version who was not to be allowed to get away. Tally did not care to put the name of this person in this message. He knew a message of warning had been sent to Ross. Ross was the man he did not want to escape; and he referred to him as the party warned in the sense that he was the party to whom the other message had been started. He meant and his message meant that Huddleston should not let the party warned, or intended to be warned, the party referred to in and by Ed. Ross's message, get away, and not that Huddleston was to look after party who had actually received the message of warning. Moreover, he spoke over the wires to Huddleston at the same time Ed. Ross's message was sent, and before there was any possible chance for the warning to have been given to R. C. Ross. He knew this. And it was at that juncture, when nobody had been warned in fact, that he referred to Ross as the party warned, when he could not have been the party warned in other sense than as being the party intended to be warned, and for whom a message of warning had been transmitted from Scottsboro to Stevenson but not delivered to Ross. And it would seem that he especially intended his command or request should be laid upon Huddleston just at this point, for he was careful to tell Whitner, the operator at Scottsboro, that his message was about the same matter as that of Ed. Ross—the warning of R. C. Ross—thus impressing upon him the propriety not to say necessity, of both being sent at the same time. They both were sent and received at the same time, i.e. in immediate succession; and Tally called upon his friend, Huddleston, not to let the person referred to in the other get away, and, as we have seen, [60] indicated to him that the way to prevent his escape was to "say nothing” about the other, and indeed either message. Again, it is suggested that Tally intended by his message to have Huddleston, who was mayor of Stevenson, arrest Ross. There are many elements of improbability, to say the least, about this. In the first place, the word "arrest" is a most common one and in most universal use. We cannot conceive of any man, and especially not of a lawyer and a judge, employing any other word—and especially when a resort is had to telegraphic communications—to express the idea which this suggestion imputes to Tally—a lawyer and a Judge. Then, as we have already seen, there were no grounds for Ross's arrest. Not only did Tally know this, but Huddleston also. The cause of Ross's flight and the Skeltons' pursuit was well known it seems, both in Scottsboro and Stevenson, and to even the most unlearned comprehension the circumstances involve Ross in no liability to arrest. It is said that Tally wanted Ross arrested because he feared that after getting the warning he would lie in wait and kill the Skeltons as they came into Stevenson. This idea is most farfetched in view of Ross's attitude throughout of being purely on the defensive, and not standing even upon that, but flying from the Skeltons, his whole purpose being to escape from them, and not to kill them. The message itself utterly excludes the possibility of any such interpretation and the existence of any such fear 01' intention in the mind of Judge Tally. The fear deposed to is, that Ross would entrench himself at Stevenson and kill the Skeltons as they came. The apprehension clearly evinced by the message was that if he got the warning he would get away, and not that he would tarry and fight. If he got away the Skeltons were in no danger. But Huddleston was besought not to prevent his waiting for and killing the Skeltons, nor to do anything in that line at all, but to prevent his getting away from the Skeltons as everybody knew he was endeavoring to do. Again, it surpasses understanding how Huddleston was to arrest Ross if he obeyed the final injunction of Judge Tally to "say nothing." And that the idea of having Ross arrested was not in Tally's mind further appears from the fact that he would not agree to that being done when it was suggested by Dr. Rorex earlier in the day. Specifically in [61] respect of the words "say nothing" in Tally's message, explanatory suggestions were made by him on the stand. As a reason for them he first said he hoped by their use to keep the scandal secret. As there was nothing in either of the despatches referring to the scandal, the force of this reasoning is not readily felt. But more than this, everybody in Scotsboro and Stevenson knew already a great deal more about the scandal than could possibly have gotten to them through Huddleston saying all he could about those dispatches. Everybody knew it, and Tally must have been fully aware of this general knowledge. Seeming to appreciate the impotency of this suggestion, which however was at first advanced with every appearance of being intended to cover and account for the whole matter, Judge Tally offered another. It was that he meant by using the words" say nothing" to keep Huddleston from disclosing his connection with the message. Why he should have laid such an injunction upon his friend Huddleston, and not upon Judge Bridges to whom he showed the message without these words, nor upon an entire stranger, young Whitner, at Scottsboro, is much more than we can understand. It also surpasses comprehension that he could have expected Huddleston to arrest Ross without saying to him or anybody else a word about the telegram on or because of which the arrest was made. There is nothing in all this. That Tally's message will bear the construction we have put on it and no other, we have no doubt at all, on the considerations we have advanced; and our view of its meaning and intent is strengthened by the respondent's self-consciousness of its bad purpose and intent which is shown by the facts, which the evidence leaves us no room to doubt, that he surreptitiously abstracted the original message from the files in the telegraph office, and swore on the preliminary examination of the Skeltons that he sent a telegram to Stevenson that morning "but not about this matter. It was to a friend about another matter; nothing concerning this case;"and his further testimony on that trial going to show that he did not know Ed. Ross, did not follow him to the telegraph office, and did not know whether he was in the office while he, Tally, was there or not.
We therefore, find and hold that John B. Tally, with full knowledge that the Skeltons were in pursuit of Ross [62] with the intent to take his life, committed acts, namely, kept watch at Scottsboro to prevent warning of danger being sent to Ross, and, with like purpose, sent the message to Huddleston, which were calculated to aid, and were committed by him with the intent to aid, the said Skeltons to take the life of Ross under circumstances which rendered them guilty of murder.
And we are next to consider and determine the second inquiry stated above, namely: Whether it is essential to the guilt of Judge Tally as charged in the second count of the information that the said acts, thus adapted, intended and committed by him; should in fact have aided the said Skeltons to take the life of the said Ross, should have in fact contributed to his death at their hands.
As the life of Ross was not taken by the hands of Tally, the criminal consequences of the homicide could only have been visited upon him at the common law, if at all, as a principal in the second degree or as an accessory before the fact; he could not have been charged, as he is in this information, directly with the crime of murder as a principal in the first degree. Our statute has abolished the common law distinctions between accessories before the fact and principals, and between principals in the first and second degrees in cases of felony, and provided that" all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."—Code, § 3704. And though the respondent here is proceeded against by virtue of this statute as a principal in the first degree, the evidence, it being confessed that he did not personally, or in such other way as to make him a principal in the first degree at common law, take the life of Ross, must present him in the light either of an accessory before the fact or as a principal in the second degree, as those distinctions obtained before the enactment of the statute to which we have adverted, or he cannot be convicted. We have already stated our conclusion—and the considerations which led us to it—that Judge Tally did not command, direct, incite, counsel , or encourage the Skeltons to the [63] murder of Ross. We have failed to find, and have so stated, that he knew of their felonious purpose before their departure from Scottsboro in pursuit of Ross. Up to that time there was no instigation or incitement by him to the commission of the crime by them, and after that he did not see or communicate with any of them until after the death of Ross, and hence pending the pursuit he could not have encouraged or instigated them to kill Ross. Judge Tally was, therefore, not, on the view we take of the evidence, an accessory before the fact to the killing of Ross. To be guilty of murder, therefore, not being a common law principal and not being an accessory before the fact-to be concerned in the commission of the offense within the meaning of our statute—he must be found to have aided or abetted the Skeltons in the commission of the offense in such sort as to constitute him at common law a principal in the second degree. A principal in this degree is one who is present at the commission of a felony by the hand of the principal in the first degree, and who being thus present aids or abets, or aids and abets the latter therein. The presence which this definition requires need not be actual, physical juxtaposition in respect of the personal perpetrator of the crime. It is enough, so far as presence is concerned, for the principal in the second degree to be in a position to aid the commission of the crime by others. It is enough if he stands guard while the act is being perpetrated by others, to prevent interference with them or to warn them of the approach of danger; and it is immaterial how distant from the scene of the crime his vigil is maintained provided it gives some promise of protection to those engaged in its active commission. At whatever distance he may be, he is present in legal contemplation if he is at the time performing any act in furtherance of the crime, 01' is in a position to give information to the principal which would be helpful to the end in view, or to prevent others from doing any act, by way of warning the intended victim or otherwise, which would be but an obstacle in the way of the consummation of the crime, or render its accomplishment more difficult. This is well illustrated by the case of State of Nevada v. Hamilton and Laurie, 13 Nev. 386, in which a plan was arranged between Laurie and others to rob the treasure of Wells, Fargo & Co., on the road between [64] Eureka and some point in Nye county. Laurie was to ascertain when the treasure left Eureka, and signal his confederates by building a fire on the top of a mountain in Eureka county, which could be seen by them in Nye county, thirty or forty miles distant. This signal was given by him, and his confederates, advised by it, met the stage, attacked and attempted to rob it, and in the attempt killed one of the guards. Laurie was indicted with the rest for murder, and put on his trial in Nye county, and made the point that inasmuch as a statute of Nevada required that an accessory before or after the fact should be tried in the county where his offense was committed, he could not be held under the pending indictment or tried in the county of Nye, where the robbery was attempted, and the murder committed. But the Supreme Court of that State held that, if he was an accessory before the fact, he was also in legal contemplation present and aiding and abetting at the fact, and was, therefore, a principal in the second degree, and indictable, triable and punishable in N ye county as principal in the first degree, under a statute like section 3704 of our Code. He was constructively present, though thirty or forty miles away, and he was guilty as a principal in the second degree in that from and across this distance he aided and abetted his confederates by the beacon lights which he set upon a hill. It was as if he had been endowed with a voice to compass the intervening space and to advise his accomplices of the approach of the treasure, or as if his words had been transmitted over a telephone or a telegraph line to the ears of his distant confederates. This treasure stage was proceeding on its way without notice to those in charge of it of the impending onslaught upon it. If it had been apprehended by Laurie and his confederates that the people of Eureka—those interested in the treasure, and in the lives of the guards who went with it—would, after its departure, become aware of the situation and dispatch a courier to overtake the stage and warn its occupants, and Laurie had remained there to give warning by signal lights or telegram of the departure of this courier so that he might be intercepted and his message stopped and the stage set upon unawares, and all this had been done, it cannot for a moment be doubted that on these facts also Laurie would have been present at the scene [65] of the attempted robbery in legal sense, and been guilty thereof as a principal in the second degree, though he was all the while much further away in point of physical fact than the distance between Scottsboro and Stevenson. And this upon the principle, as stated by the Nevada court, that "Were several persons confederate together for the purpose of committing a crime which is to be accomplished in pursuance of a common plan, all who do any act which contributes to the accomplishment of their design are principals, whether actually present at its commission or not. They are deemed to be constructively present, though in fact they may be absent."—1 Bish. Cr. Law, § 650; 1 Chitty Cr. Law, p. 256; 1 Whar. Cr. Law, §§ 206 et seq.; Roscoe's Cr. Evidence, pp. 178-9; Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 583.
So far, therefore, as presence goes Judge Tally, on guard at Scottsboro to prevent warnings being sent to Ross or intercepting or attempting to intercept messages of warning which had started on their flight, was in legal contemplation present at Stevenson, the scene of the homicide, standing over Huddleston to stay him in the performance of his duty of delivering warnings to Ross. He was constructively there, and hence, for all practical legal purposes, actually there. Being thus present, did he aid or abet the killing of Ross? What is meant by these terms, and what has one to do to bring himself within them? It is said in Raiford's Case, supra, that "the words aid and abet are pretty much the synonyms of each other;" and this has doubtless come to be true in the law though originally a different meaning attached to each. The legal definition of “aid” is not different from its meaning in common parlance. It means to assist, to supplement the efforts of another. Rap. & L. Law Dict., p. 43. "Abet" is a French word compounded of the two words a and beter, to bait or excite an animal; and Rapalje and Lawrence thus define it: "To abet is to incite or encourage a person to commit crime; an abettor is a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal in the offense.”— Rap. & L. Law Dict., p. 4. By the amalgamation of the two words in meaning—by making synonyms of them—it may be said that to abet has come to mean to aid by [66] presence, actual or constructive, and incitement, and that to aid means not only actual assistance, the supplementing of another's efforts, but also presence for the purposes of such actual assistance as the circumstances may demand or admit of, and the incitement and encouragement which the fact of such presence for such purposes naturally imports and implies. So we have this definition of the two terms by the late Chief Justice Stone: "The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts, or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.”— Raiford v. State, 59 Ala. 106. This definition was sufficient for the case then in hand, and it is in the form not infrequently found in the books. But it is incomplete. Mere presence for the purpose of rendering aid obviously is not aid in the substantive sense of assistance by an act supplementary to the act of the principal. Nor is it aid in the original sense of abetting, nor abetting in any sense, unless presence with the purpose of giving aid, if necessary, was preconcerted or in accordance with the general plan conceived by the principal and the person charged as an aider or abettor, or, at the very least, unless the principal knew of the presence, with intent to aid, of such person. For manifestly in such case, there being no actual, substantive assistance and no encouragement by words, the only aid possible would be the incitement and encouragement of the fact that another was present for the purpose of assistance, and with the intent to assist if necessary. And in the nature of things, the fact of presence and purpose to aid could not incite or encourage or embolden the principal unless he knew of the existence of that fact. That kind of aid operates solely upon the mentality of the actual perpetrator; when rendered at all it is by way of assurance to his mind in the undertaking he is upon, and it nerves him to the deed and helps him execute [67] it through a consciousness—a purely mental condition that another is standing by in a position to help him if help becomes necessary; who will come to his aid if aid is needed. And that there could be this consciousness without any knowledge of the fact of such other's presence and purpose can not be conceived. That one may be encouraged or incited to an act by a consideration of which he is wholly oblivious and which has never addressed itself to his mind, is far beyond the limit of finite comprehension. The definition we have quoted is, as an abstract proposition, clearly at fault. As applied in the concrete to cases of confederacy as it is, we undertake to say, whenever it is stated in this form, it is free from objection. But in the absence of confederacy, or at least of knowledge on the part of the actual perpetrator of a crime, one can not be a principal in the second degree who is present intending to aid and does not aid by word or deed. The definition must go further. It should appear by it that to be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or atleast to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able to readily to comp, to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law, he was aiding and abetting." (The italization is ours.)—1 Whart. Cr. Law, § 210, And the same idea is thus expressed by Mr. Stephens in his summary of Criminal Law: "The aiding and abetting must involve some participation; mere presence without participation, will not suffice if no act whatever is done in concert, and no confidence intentionally imported by such presence to the perpetrators.” See Connaughty v. State, 1 Wis. 143, 144. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act.”—1 Bish. Cr. Law, 648. And Mr. Wharton further says: "Something [68] must be shown inthe conduct of the bystander, which indicates [to the perpetrator, manifestly] a design to encourage, incite, or, in some manner afford aid or consent to the particular act; though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement. * * * The confederacy must be real; * * * mere consent to a crime when no aid is given, and no encouragement rendered does not amount to participation."—l Whart. Cr. Law, §§ 211 a, 211 c, 211 d. And to like effect are the following authorities: The People v. Woodward, 45 Cal. 293 ; White v. The People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. A pp. 301; True v. Commonwealth, 14 So. W. Rep. 684; 1 Am. & Eng. Encyc. of Law, p. 62; Whart. Cr. Ev., 440. Our own cases fully support these views. Thus in Wicks v. State, 44 Ala. 398, with reference to section 3704 of the Code it is said: "The testimony must show an actual participation
In the commission of the offense, else the party charged can not be convicted under this statute." And in Cabbell v. State, 46 Ala. 195, a mob had overpowered an officer and taken his prisoner into a house, where they were assaulting him with intent to murder. The defendant, coming upon the scene at this juncture, and being informed that the mob was trying to kill the prisoner on account of the offense for which he had been arrested, said: "That is right, kill him ; God damn him. The question was whether on this evidence the defendant was an aider and abettor in the assault made by the mob; and upon this the court said: "It is not pretended that the defendant committed the assault—it was the act of the mob; nor was it seriously contended that he was in fact a member of that unlawful assembly. Consequently the words uttered by him can not be held to have encouraged or aided the persons by whom the assault was committed, unless addressed to or at least heard by them or some of them.” Here Cabbell had the guilty intent; he wanted the prisoner killed; and he did an act calculated to contribute to the execution of that intent; he uttered words of encouragement and incitement. But he was adjudged to be not guilty, because what he did, though with criminal [69] intent and calculated to accomplish or aid in the accomplishment of a criminal result, did not in point of fact contribute to that result. And this proposition is directly supported by Raiford v. State, supra, when the elliptical definition of aid and abet is rounded out, as we have shown it must be, and also in a general way by Frank v. State, 27 Ala. 37; Tidwell v. State, 70 Ala. 33; Jordan v. State, 79 Ala. 9, 13, and Griffith v. State, 90 Ala. 583.
We are therefore clear to the conclusion that before Judge Tally can be found guilty of aiding and abetting the Skeltons to kill Ross , it must appear that his vigil at Scottsboro to prevent Ross from being warned of his danger was by preconcert with them, or at least known to them, whereby they would naturally be incited, encouraged and emboldened—"given confidence"—to the deed, or that he aided them to kill Ross, contributed to Ross's death in point of physical fact by means of the telegram he sent to Huddleston.
The assistance given, however, need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely tenders it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had he who furnishes such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. As where one counsels murder he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counsel, and as where one being: present by concert to aid if necessary is guilty as a principal in the second degree, though had he been absent murder would have been committed, so where he who facilitates murder, even by so much as destroying a single chance of life the assailed might otherwise have had, he thereby supplements the efforts of the perpetrator, and he is guilty as principal in the second degree at common law, and is principal in the first degree under our statute, notwithstanding it may [70] be found that in all human probability the chance would not have been availed of, and death would have resulted anyway.
We have already said enough to indicate the grounds of the conclusion which we now announce, that Tally's standing guard at the telegraph office in Scottsboro to prevent Ross's being warned of the pursuit of the Skeltons was not by preconcert with them, and was not known to them. It is even clear, and more certain that they knew neither of the occasion nor the fact of the sending of the message by him to Huddleston. And hence they were not and could not have been aided in the execution of their purpose to kill by the keeping of this vigil, or by the mere fact of the forwarding of the message to Stevenson, since these facts in and of themselves could not have given them any actual, substantial help as distinguished from incitement and encouragement, and they could not have aided them by way of incitement and encouragement, because they were ignorant of them. And so we are come to a consideration of the effect, if any, produced upon the situation at Stevenson by the message of Judge Tally to Huddleston. Its effect upon the situation could only have been through Huddleston, and upon his action in respect of the delivery to Ross of the message of warning sent by Ed. Ross. This latter message reached Huddleston for Ross, we suppose, about five minutes—certainly not more than ten minutes—before Ross arrived at Stevenson. Immediately upon the heels of it, substantially at the same time, Tally's message to Huddleston was received by the latter. Ed. Ross's message imported extreme urgency in its delivery, and Tally's to Huddleston, though by no means so intended, emphasized the necessity and importance, from the standpoint of duty, for the earliest possible delivery of Ed. Ross's message to Robert C. Ross; and it was the manifest duty of Huddleston to deliver it at the earliest practicable moment of time.—Law of Telegraphy, Scott &; Jernigan, § 188. Huddleston appears to have appreciated the urgency of the case, and at first to have intended doing his duty. Upon receiving the two messages, he went at once without waiting to copy them to the Stevenson Hotel, which is located very near the telegraph office, in quest of Ross, upon the idea that he might have already arrived. We are to presume a purpose to do what duty [71] enjoins until the contrary appears; and we, therefore, should assume that Huddleston intended to deliver the message to Ross, or to inform him of its contents had he been in the hotel. Not finding him there J for he had not yet reached Stevenson, Huddleston returned to the door of the depot up stairs in which was the telegraph office. By this time the command which Judge Tally had laid upon him had overmastered his sense of duty and diverted him from his purpose to deliver Ed. Ross's message to Robert. Standing there at the door he saw a hack approaching from the direction of Scottsboro. He said then that he supposed Ross was in that hack. Wedo not think it was incumbent upon him, inasmuch as the hack was being driven directly to the depot, to go down the road to meet it, though the situation was then more urgent than was indicated by the telegrams in that the Skeltons were at that time skulking on the flanks of and immediately behind the hack; but there is no evidence that Huddleston knew this. But we do not doubt that it was Huddleston's duty to go out to the road along which the hack was being driven, at a point opposite his own position at the depot, and near to it, and there and then have delivered the message or made known its contents to Ross. The only explanation he offers for not then delivering the message or making known its contents to Ross was—not that he could not have done it, that was entirely practicable—but that he had not taken a copy of it; a consideration which did not prevent his going to the hotel for the purpose of delivery before he saw Ross approaching, and which, had his original purpose continued, we cannot believe would have swerved him from his plain duty at this juncture. Presuming that he would have done this because it was his duty to do it—a duty which he at first appreciated—and finding as a fact that he did not do it, the reason for his default is found in the injunction laid upon him by Judge Tally. He did not warn Ross because he did not want Ross to get away, and this because Judge Tally had asked him not to let Ross get away. So that as he stood there at the door he mapped out a course of action. He would not deliver the message immediately, if at all, but he would send off for the town marshal, and in the meantime he would call William Tally from over the way and confer with him as to what should be done; Ross to be [72] the while wholly unadvised of the contents of the message from his kinsman, and wholly ignorant of the pursuit of the Skeltons. So he sends a man in search of the marshal whose whereabouts, and of consequence the time necessary to find and bring whom to the station, were unknown; beckons to William Tally to come to him, then turns and goes up stairs into the telegraph office. He says he went up there to copy Ross's message for delivery to him. If this be true, this was only another factor, so we have seen, in the delay that Judge Tally's message had determined him upon, for while at first he was anxious to deliver the message or its contents uncopied to Ross, when he thought Ross might be at the hotel, and went there to find him for that purpose, when Ross was actually in sight of him and rapidly approaching him, he deemed it most important to copy the message before advising Ross. It was also into this up stairs office that he invited William Tally, and we cannot escape the conclusion that his purpose in going there before delivering the message was to have a consultation with William Tally as to what should be (lone before advising Ross, and also to give the marshal time to arrive, so that, should they conclude to adopt that course, they could have Ross arrested. And it cannot, we think, be doubted that he then had no purpose whatever of apprising Ross of the contents of the message, if ever, until he had had this conference with the brother of the man who had asked him not to deliver it at all. That this delay was to conserve such ulterior purpose as might be born of this conference, was wholly unwarranted and was caused by the telegram of Judge Tally to Huddleston, we believe beyond a reasonable doubt.
It remains to be determined whether the unwarranted delay in the delivery of the message to Ross, or in advising him of its contents, thus caused by Judge Tally with intent thereby to aid the Skeltons to kill Ross, did in fact aid them or contribute to the death of Ross by making it easier than it would otherwise have been for the Skeltons to kill him, by depriving him of some advantage he would have had had he been advised of its contents when his carriage stopped or immediately upon his alighting from it, or by leaving him without some chance of life which would have been his had Huddleston done his duty.
[73] The telegram, we have said, should have been delivered, or its contents made known, to Ross at the time the hack came opposite where Huddleston was and stopped. Huddleston and William Tally were equidistant from this point when the former called to the latter, at which time also Huddleston had seen the hack approaching this point. Tally, going to Huddleston, reached this middle point between them, unhastened as Huddleston should have been by the urgency of the message just as the carriage got there and stopped. It is, therefore clear that had Huddleston, instead of calling Tally and going into the depot, himself have gone out to the road along which the carriage was approaching, and which was not more than one hundred feet from him, he would have gotten there certainly by the time it stopped, and have acquainted Ross with the contents of the message, with the fact that four men were pursuing him with guns to take his life, before Ross alighted from the hack.
Being thus advised, and not knowing of the immediate proximity of the Skeltons, it may be that Ross would have alighted as he did, exposed himself to the Skeltons' fire as he did and been killed as he was. But on the other hand, the Skeltons were at that time dismounted, and two of them at least, a long way from their horses, and none of them were in his front up the road, and he had a chance of escape by continued flight in the vehicle. Again, he might then and there have put himself under the protection of Huddleston as an officer of the law and had the bystanders, those in the immediate neighborhood of whom there were several, summoned to help protect him. This might have saved his life; it was a chance that he had. But, if it be conceded that, as he would not have known of the proximity of the Skeltons from mere knowledge that they were in pursuit, he would have alighted precisely as and when he did, yet when the first shot was fired Ross would have known that the man who fired it was one of the Skeltons, and that three others of them were present in ambush armed with guns to take his life. Knowing this, the hopelessness of standing his ground and attempting to defend himself from his enemies, overpowering in number and secure in their hiding places, while he stood in the open street, would have been at once manifest to him; and in [74] stead of standing there as he did, knowing only as he did that some one man, whom he did not know had fired a gun, and peering and craning his neck to see whence the shot came and who fired it, he could and doubtless would have sought safety by flight in the opposite direction, in which was the Union Hotel scarce an hundred feet away. And in view of the fact that he was hit only once by the numerous shots that were fired at him while he stood there in the open, and that not in a vital or disabling part, it is very probable that had he attempted that mode of escape, as soon as the first shot was fired, he would have reached the hotel in perfect safety. Certain it is that making that effort he would have gone away from the lurking places of his enemies, and he would not, as he did in his ignorance of the true situation, have placed himself where John Skelton at close quarters could and did shoot him to death from behind his back. But whether he would or would not have reached a place of refuge, we need not inquire or find. The knowledge that he would have had, if the telegram of Ed, Ross had been delivered to him when it could and should have been delivered, of the pursuit of the Skeltons, together with the knowledge which would have been imparted to him by the report of the first gun in connection with the contents of the message, would instantly have advised him of the extent of his danger—a danger which he could not combat, which was deadly in character and from which, as he would naturally have been at once impressed, the only hope of escape lay in immediate flight. That was a chance for his life that this knowledge would have given him. That was a chance of which the withholding of this know ledge deprived him. Tally’s telegram to Huddleston deprived him of that knowledge. Tally through Huddleston deprived him of that chance. Again, after having been shot m the legs and partially disabled by one of the many shots fired at him by Robert, James, and Walter Skelton, as he stood fully exposed to their broadside, he in his then crippled condition made an effort to find protection behind the oil house, the nearest building to him. Only these three men had fired up to that time. He knew of the presence of these three only. The house sheltered him from two of these men and partially also from the third. He got there and stood facing in the [75] direction these three were. And he called aloud for protection from them meantime keeping a lookout for them and intending no doubt to protect himself from them if he could. He knew of the presence of these three only. Nobody had seen John Skelton. He did not know that John Skelton was there. Had he gotten Ed. Ross's telegram this he would have known, that there were four of them, that only three had shot at him that the other was somewhere hidden in the immediate vicinity. And while seeking to escape from or guard himself from the other three, while he was by the side of the oil house, he would also have sought to guard himself against the fourth. He was off his guard as as to this fourth man, John Skelton, because he was ignorant of his presence. This ignorance was directly due to Tally's active interference. Tally's aid to the Skeltons by way of preventing Ross being warned enabled John Skelton to come upon Ross from his rear and shoot him down. Ross went to his death, guarding himself against the other three and calling for protection from them without even knowing that the man who killed him was nearer to him than Scottsboro. Can it be doubted that Ross's utter ignorance of John Skelton's presence, with the others at Stevenson, made it easier for John Skelton to take his life? Can it be doubted that his ignorance of the presence of all four Skeltons, when the first gun was fired by Robert Skelton at Bloodwood, when had he known it, he could have fled in the appreciable time between the time of the firing of this first and the other shots—the next one being fired by the same man—made it easier for them to take his life? Can it be doubted in any case that murder by lying in wait is facilitated by the unconsciousness of the victim? Or in any case, that the chances of the intended victim would be improved and his death rendered more difficult of accomplishment, if the first unfruitful shot apprises him of the number and identity of his assailants and the full scope and measure of their motive and purposes? We cannot believe otherwise. It is inconceivable to us, after the maturest consideration reflection and discussion, but that Ross's predicament was rendered infinitely more desperate, his escape more difficult and his death of much more easy and certain accomplishment by the withholding from him of the mes [76] sage of Ed. Ross. This withholding was the work of Judge Tally. An intent to aid the Skeltons to take the life of Ross actuated him to it. The intent was effectuated, they thereby were enabled to take him unawares, and to send him to his death without, we doubt not, his ever actually knowing who sought his life, or being able to raise a hand in defense, or to take an advised, step in retreat. And we are impelled to find that John B. Tally aided and abetted the murder of Robert C. Ross, as alleged in the second specification of the second count of the information; and to adjudge that he is guilty as charged in that specification, and guilty of murder as charged in said second count. And judgment deposing him from office will be entered on the records of this court.
No consideration or conclusion of fact in this opinion must be allowed to exert any influence upon the trials of the Skeltons and Judge Tally on the indictments for murder now pending against them.
HEAD, J., dissenting.—I am of opinion the respondent should be acquitted of both charges. I do not believe, beyond a reasonable doubt, that respondent intended, in sending the telegram to Huddleston, to aid or abet in the murder of Ross. I do not believe, beyond a reasonable doubt, that the telegram of warning would have been delivered to Ross by Huddleston, before the shooting began, if the telegram of the respondent had not been sent.
BRICKELL, C. J., not sitting.
[*] The opinion in this case was rendered August 9, 1894; but by reason of the importance of the case, it is reported in this volume, without regard to date of judgment.
7.2.6.8.2 VII.B. Conspiracy 7.2.6.8.2 VII.B. Conspiracy
Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal: at common law, only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law, an act in furtherance is needed to seal the conspiracy. Often, proving conspiracy is much easier than proving a completed or attempted crime, and so conspiracy has become a favorite tool of prosecutors to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime. As you read these cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends. What is the mens rea for the crime of conspiracy itself? What mens rea is necessary for the subsequent crimes committed in furtherance of the conspiracy? How do the various formulations of conspiracy liability interact with the justifications of punishment—retribution, deterrence, incapacitation, and rehabilitation?
7.2.6.8.2.1. UCC 2-302
7.2.6.8.2.2 People v. Lauria 7.2.6.8.2.2 People v. Lauria
THE PEOPLE, Plaintiff and Appellant,
v.
LOUIS LAURIA et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Two.
[473] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Plaintiff and Appellant.
[474] Jay Plotkin, under appointment by the Court of Appeal, Patrick Coleman, Apple & Dobrin and Irving D. Apple for Defendants and Respondents.
FLEMING, J.
In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.
On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and "about as safe as you can get." It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.
On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said "his business was taking messages."
On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.
On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come [475] to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't "arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them." In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.
Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.
[1] To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?
The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two [476] cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.
In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.
In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a `stake in the venture' which, even if it may not be essential, is not irrelevant to the question of conspiracy." (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)
While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. [2] Both the element of knowledge of the illegal use of the [477] goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
[3] Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.
[4] The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal. Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. [5] But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.
In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of [478] his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.
In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.
[6] 1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £ 3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.
In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.
[7] 2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal. App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.
In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Fraine, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to apprentices [479] so that it was impossible for him to have been ignorant of the real intent of the transaction.
In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.
Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.
However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.
[8] 3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found [480] significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.
No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.
Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.
Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [(C.C.A. 6) [3 All Eng. 200, 123 J.P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. [9] It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to [481] pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.
Logically, the same reasoning could be extended to crimes of every description. [10] Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, § 38; 18 U.S.C. § 2382.) [11] In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) [12] But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen's arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: "Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; [482] misprision of treason is punishable with imprisonment for life.... No offence is committed in failing to disclose a misdemeanour....
"`To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion.'" (Criminal Law, Glanville Williams (2d ed.) p. 423.)
[13] With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all cases of felony knowledge of criminal use alone may justify an inference of the supplier's intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.
[14] From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.
[15] When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from [483] which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.
In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.
The order is affirmed.
Herndon, J., concurred.
Roth, P.J., concurred in the judgment.
7.2.6.8.2.3 Pinkerton v. United States 7.2.6.8.2.3 Pinkerton v. United States
PINKERTON ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
[641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.
W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.
A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.
In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.
Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,[2] has little vitality in this country.[3] It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:
"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."
And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.
Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.[4]
[645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.
There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.[6]
[646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.
We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.
A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the [648] scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE RUTLEDGE, dissenting in part.
The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.
Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.
There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.
[649] I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;[1] (2) aiding, abetting or counseling another to commit them;[2] and (3) conspiracy to commit them.[3] Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.
The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.
These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.
The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.
I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.[4] It should be [651] followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.
The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.
Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.
In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.
But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.
It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.
For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.
What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.[5]
[654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.
MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.
[1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."
The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.
[2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina, 257 N.Y. 84, 89-90, 177 N.E. 317.
[3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.
[4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
But we do not find that practice reflected in this present case.
[5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.
[6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.
[1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.
[2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.
[3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.
[4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.
[5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.
7.2.6.8.2.4 Short v. State 7.2.6.8.2.4 Short v. State
SHORT
v.
The STATE.
Court of Appeals of Georgia.
[197] Marcus C. Chamblee, Atlanta, for appellant.
David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, for appellee.
RUFFIN, Chief Judge.
A Douglas County jury found Keith Short guilty of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. In 15 enumerations of error, Short challenges the sufficiency of the evidence, the admission of certain evidence, and the trial court's rulings with respect to various jury charges. We affirm.
1. "`On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the [defendant] no longer enjoys a presumption of innocence.'"[1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.[2]
Viewed in this manner, the evidence shows that the victim was in the parking lot of her boyfriend's Douglasville apartment complex around midnight on June 2, 1995. The two planned to drive to Florida that night, and she began moving her luggage from her car to his truck. At that point, two men came around the front of the truck and another approached the victim from behind, placing a gun in her back. The gunman told her to empty her pockets, while the other two searched her car. The glinman then obtained the victim's car keys, gave them to the other men, pushed her into the back seat of her car, and got in with her. The other two men jumped in the front seat, and one drove the car from the apartment complex.
The gunman ordered the victim to place her head between her legs, so she did not see which way the car traveled as it left the complex. At some point during the drive, the gunman began fondling the victim's breasts. He then unzipped his pants and ordered her to perform fellatio. Still held at gunpoint, the victim complied. When the front-seat passenger saw what the gunman was doing, "he started laughing and turned back around."
The gunman next told the victim to pull down her pants, and she did so. He pulled her onto his lap and touched her vagina with his penis. According to the victim, he tried to "enter into [her]," but "could not get all the way in," so he shoved her "on all fours" and "tried to enter [her] from behind." When the victim attempted to escape through the passenger door, the gunman grabbed her and threatened to kill her.
The front-seat passenger stated that "they needed to do something with [the victim]," and the three men exited the car to talk. The gunman then forced the victim into the trunk, and the car began moving. The victim managed to pop the trunk open, jumped out while the car was still moving, ran to a [198] house, and called the police. Although Fulton County officers responded to the home, which apparently was located in Fulton County, the Douglas County Sheriff's Department ultimately investigated the crimes.
Police discovered that, after the incident, a call was placed from the victim's car phone to an apartment complex near Six Flags. The apartment manager reported that she had seen the victim's car the day after the attack, and authorities surrounded the complex. Several officers observed the car driving in the area and approached it in a store parking lot. Keith Short jumped from the front passenger seat and ran. Officers quickly apprehended him and also arrested Short's brother, Robert, who was driving the victim's car.[3] After further investigation, the police identified William Cunningham as the third individual involved in the attack.
Following his arrest, Short gave a statement to police. He admitted that he, his brother, and Cunningham approached the victim in the Douglasville apartment complex. Short and Robert entered her car, while Cunningham held her outside the car at gunpoint. Cunningham and the victim then got into the car, and Robert drove from the complex. Short further stated that, at one point, he looked in the back seat and saw Cunningham "messing" with the victim, who was naked. According to Short, he told Cunningham "don't do that."
(a) With respect to his rape and aggravated sodomy convictions, Short claims that the State presented insufficient evidence that the crimes occurred in Douglas County. He asserts that the victim did not know where the car was located when these sexual offenses occurred. And although her ordeal began in Douglas County, it ended in Fulton County.
"Venue, like all elements of the State's case, must be proven beyond a reasonable doubt."[4] Criminal actions generally must be tried in the county where the crime was committed.[5] But when a crime is committed in transit or in more than one county, Georgia law provides special methods for establishing venue. For example, a crime committed on or immediately adjacent to a boundary line between two counties is considered committed in either county.[6] Moreover, "in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed."[7] And under OCGA § 17-2-2(e):
[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.
The evidence shows that the sexual offenses occurred in a moving vehicle that traveled at some point from Douglas County to Fulton County. As Short notes on appeal, Robert told police that, when the car was in Fulton County, he turned around, saw that the victim was naked, and heard Short ask "what are you doing?" Robert further stated that they were "in Atlanta" when he saw Cunningham "behind" the naked victim. Robert also asserted, however, that he did not see Cunningham touch the victim sexually and that the touchings could have occurred earlier. Short told police that the car remained in Douglas County for only "two seconds" after they left the apartment complex. But he stated that he did not "know [his] way around" the area. A sergeant with the Douglas County Sheriff's Department testified that it would be "[i]mpossible" to reach the county line that quickly.
[199] Given the evidence presented, the jury was authorized to conclude beyond a reasonable doubt that the sexual assaults might have been committed either in Douglas County or Fulton County, rendering venue proper in Douglas County.[8] Furthermore, under OCGA § 17-2-2(e), "venue for a crime involving a vehicle may lie in any county through which the vehicle traveled."[9] Relying on this provision, the jury could have determined that venue for the sexual offenses, which occurred in a moving car traveling through Douglas County and Fulton County, lay in Douglas County.[10]
Short argues on appeal that, because the State relied on "exceptions" to the general venue rule, it failed to prove that the crimes occurred in Douglas County, as alleged in the indictment. We disagree. Subsections (b), (e), and (h) of OCGA § 17-2-2 offer methods of establishing venue when the actual location of the crime cannot be determined with certainty.[11] If the State proves venue in a particular county under those subsections, the crime is considered to have been committed in that county, even if it was committed elsewhere.[12] And pursuant to the subsections, the State submitted evidence authorizing the jury to find that the sexual offenses occurred in Douglas County.
Citing Moss v. State,[13] Short also contends that his convictions must be reversed because the indictment failed to state that venue would be proven through OCGA § 17-2-2(b), (e), or (h). Under Moss, the State cannot rely on an exception to the criminal statute of limitation—and thus avoid the bar created by the limitation period — unless it alleges such reliance in the indictment and proves that the exception applies.[14] The Moss decision, however, has no application here, as this case does not involve an exception to the statute of limitation. Moreover, the State did not try to avoid the venue requirement. It used statutorily authorized methods for proving venue in Douglas County. Short has pointed to no authority requiring the State to allege this reliance in the indictment, and we see no reason to impose such requirement.[15]
(b) Short also argues that the State did not prove that he participated in the rape and aggravated sodomy, which were committed by Cunningham. He concedes that the evidence, construed favorably to the verdict, demonstrates that he took part in a conspiracy to rob the victim at gunpoint, kidnap her, and hijack her vehicle. He contends, however, that the sexual offenses were not committed in furtherance of the conspiracy and that he did not intentionally aid in their commission.
Under Georgia law, "[a]ll of the participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the conspiracy, and which may be said to be a probable consequence of the conspiracy, even though the particular act may not actually have been a part of the plan."[16] As noted above, the evidence demonstrated that Short participated in a conspiracy to rob the victim, then kidnap her at gunpoint, place her in the back seat of the car, and drive around Atlanta. Cunningham attempted to rape the victim and ordered her to perform sodomy during the drive. And [200] the evidence — construed favorably to the verdict — shows that Short, who was the front seat passenger, did nothing to stop the assault, instead laughing when he saw Cunningham's conduct.
Although Short now argues that, as a matter of law, the attempted rape and sodomy were neither a part nor a foreseeable consequence of the original plan, we disagree. In our view, a jury could reasonably conclude that sexual assault was a probable consequence of the conspiracy to kidnap the female victim at gunpoint and drive around with her in a vehicle. That Short raised no objection to Cunningham's actions and continued to take part in the kidnapping conspiracy after the sexual assault occurred supports such conclusion.[17] Accordingly, the evidence sufficiently linked Short to the sexual offenses.[18]
(c) Finally, Short argues that his rape conviction must be reversed because the State presented no evidence of penetration. "`Although penetration is an essential element of the crime of rape, it may be slight.'"[19] The victim testified that Cunningham "could not get [his penis] all the way in," was unable to "penetrate [her] entirely," and "did not fully penetrate [her] inside."[20] On cross-examination, the victim also testified that, to the extent defense counsel concluded from her interview with police that no penetration occurred, counsel "misunderstood" her answers. Given this testimony, the jury could conclude that at least some penetration occurred, authorizing the rape conviction.[21]
2. Short argues that the trial court erred in admitting his statement to police because it was not freely and voluntarily given. The evidence shows that Short was 16 years old at the time of the offenses. In determining whether a juvenile's custodial statement is free and voluntary, the trial court applies a "totality of the circumstances" test and considers the following factors:
the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement.[22]
Before admitting Short's statement, the trial court held a Jackson-Denno hearing. Sergeant Jerry Wynn of the Douglas County Sheriff's Department testified, among other things, that he read Short his Miranda rights when Short was arrested, and Short signed a Miranda waiver form before his interview with police the next day. Wynn also informed Short that he had the right to have a parent present during the interview, and Short responded that his mother "wouldn't come" because she was unhappy with his behavior. Wynn nonetheless called Short's mother, who declined to come to the police station, saying that she was "through with [Short]." Short's mother hung up the telephone after telling Short that she was [201] ashamed of him and did not want to see him again. Short then elected to proceed with the interview without his mother present.
Wynn further testified that Short had completed tenth grade at the time of the interview and communicated like an average 16 year old. He did not appear to be mentally deficient, suffering from any disability, or unable to understand the words Wynn used. Wynn explained the charges to Short, but stated that he was not sure whether Short would be charged with the sexual offenses. Short never asked for a lawyer or stated that he did not want to talk to police. According to Wynn, he did not force, threaten, or coerce Short into giving a statement.
Following Wynn's testimony, the trial court found that Short had been advised of his Miranda rights twice, was not lacking in "mental faculties," understood the potential charges that might be brought against him, and knew that he had a right to have his mother present during the interview, but elected to proceed without her. The trial court concluded that, given the totality of the circumstances, Short's statement was free and voluntary.
"On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of [Short's] statement."[23] The trial court applied the appropriate test, and the evidence supported its factual findings. We thus find no error in the admission of the statement.[24]
3. The trial court admitted into evidence a post-arrest statement given by Robert, who was tried with Short. After the jury heard the statement, Short asked the trial court to instruct the jury that the statement should only be considered against Robert. The trial judge declined to give a limiting instruction in the middle of trial, but included such instruction in the general jury charge.
Pursuant to Bruton v. United States[25] and its progeny, "[a] co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant."[26] Citing this principle, Short claims that the trial court should have given a contemporaneous charge regarding use of Robert's statement. Before trial, however, Short explicitly waived any Bruton arguments that he might have had. Thus, Short waived any claim that Bruton and the Confrontation Clause required a contemporaneous instruction.
Absent a Bruton claim, OCGA § 24-3-52 arguably governs the admissibility of the statement. Under that provision, "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself."[27] It "is designed to protect a defendant from the hearsay confession of a co-conspirator who does not testify at trial."[28] At base, therefore, the provision relates to hearsay admissibility.[29] And we know of no requirement that a trial court give a contemporaneous limiting instruction regarding use of hearsay. Accordingly, this claim of error presents no basis for reversal.[30]
4. In three enumerations of error, Short alleges that the trial court improperly charged the jury on the venue principles in OCGA § 17-2-2(b), (e), and (h) because the [202] indictment did not inform him that the State planned to use these subsections. In Division 1(a), however, we rejected Short's claim that the State cannot rely on these subsections unless it references them in the indictment. It follows that these enumerations of error lack merit.
5. The trial court charged the jury that, "[a]lthough slight evidence of venue may be sufficient where the fact of venue is not contested, . . . it is a jurisdictional fact and must be proved beyond a reasonable doubt." In Jones v. State,[31] which was decided five years after the trial in this case, our Supreme Court held that the "slight evidence" exception to the venue requirement has no application "once a plea of not guilty is entered and a defendant is put on trial." Short thus argues that the trial court erroneously included the "slight evidence" language in its charge.
Even if error occurred, however, we find no basis for reversal. It is clear that Short contested venue with respect to the offenses — such as the sexual assaults — that occurred after the car exited the Douglasville apartment complex. His trial counsel questioned the investigating officer about venue, and Short asserted in his statement to police, which the jury heard, that the vehicle left Douglas County moments after the kidnapping. By its own terms, therefore, the "slight evidence" language did not apply to those crimes. Moreover, Short admitted to police that the initial attack, including the kidnapping, hijacking, and armed robbery, occurred at the Douglas County apartment complex. Under these circumstances, it is highly improbable that any alleged error contributed to the verdict, rendering it harmless.[32]
6. Short argues that the trial court erred in refusing to charge the jury that "the elements of proof that one is a party to a crime, or an accomplice, require proof of common criminal intent." We disagree. The trial court fully charged the jury on the definitions of party to a crime and conspiracy. It further instructed that the State must prove beyond a reasonable doubt that "the defendant knowingly and intentionally participated in or helped in the commission of the crime or was a conspirator in [the crime]." And it charged that intent is an essential element of the crime and must be proven beyond a reasonable doubt. Because the charge taken as a whole was adequate, the trial court did not err in refusing to give the requested charge.[33]
7. Short contends that the trial court should have instructed jurors that they "will determine both the law and the facts." We have previously found, however, that a trial court does not err in refusing to include this language in its jury charge.[34]
8. Short also enumerates as error the trial court's refusal to instruct the jury on theft by taking as a lesser included offense of armed robbery. With respect to armed robbery, the indictment charged that Short, Robert, and Cunningham took jewelry from the victim's immediate presence using a gun. The jewelry at issue was in a makeup bag and purse located inside the victim's car.
According to Short, he was entitled to a theft by taking charge because the jury could have determined that the jewelry was not taken from the victim's immediate presence. But "[i]mmediate presence does not mean `within arm's length' or `facing."[35] And the evidence shows that Short and Robert searched the victim's car for valuables while she was being held outside the vehicle [203] at gunpoint. The victim was then placed in the car and continually held at gunpoint until forcibly placed in the trunk, from which she later escaped. Under these circumstances, we find no evidence that the robbery occurred outside the victim's immediate presence.[36]
"Where the State's evidence clearly warrants a jury instruction on armed robbery and there is no evidence of the lesser offense of theft by taking, it is not error to refuse to charge the jury as to theft by taking."[37] Accordingly, the trial court properly refused to give the requested charge.[38]
9. In three enumerations of error, Short claims that the trial court erred in instructing the jury on crimes not charged in the indictment. The indictment alleged that Short committed kidnapping with bodily injury by "abduct[ing]" the victim, armed robbery by taking jewelry from the "immediate presence" of the victim, and aggravated sodomy by forcing the victim "to perform a sexual act involving the sex organ of the accused and the mouth of [the victim]." According to Short, however, the trial court instructed the jury on other ways to commit these crimes. Specifically, it charged that a person commits kidnapping "when he abducts or steals away any person," armed robbery when he takes property "from the person or the immediate presence of another by use of an offensive weapon," and aggravated sodomy "when he performs or submits to a sexual act involving the sex organs of one person and the mouth or anus of another."[39]
"Absent a remedial instruction, reversible error occurs if the jury charge recites the statutory definition of a crime (which informs the jury the crime may be committed in various manners) when the indictment alleges that the crime occurred in a specific way."[40] This is so because, without a curative instruction, a fatal variance may result between the proof at trial and the indictment.[41] Any such defect, however, is cured where, as here, the trial court provides the indictment to the jury and instructs that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged.[42] Thus, these claims of error provide no basis for reversal.[43]
10. During its deliberations, the jury asked the trial court to redefine conspiracy and parties to a crime. The trial court recharged the jury on these concepts, using terminology that differed in some respects from the original charge. Short then asked the trial court to reread the following language from the original charge: "each [conspirator] is responsible for the acts of others only insofar as the same are naturally or necessarily done to further the conspiracy." The trial judge refused, asserting that the recharge adequately covered the principle. Short enumerates this refusal as error.
Although the trial court did not use the language requested by Short, the recharge informed jurors that a conspiracy extends to "collateral acts instant to and growing out of the original purpose [of the conspiracy]." According to the recharge, separate independent acts that are "in no way a part of what the original conspirators agreed to do or any [204] consequence thereof, [are] not a part of the conspiracy." The trial court further stated that "if one participant goes and does something that is expedient to whatever the criminal design is, then that can be [the] responsibility of all."
The trial court's language substantially covered the principle included in Short's requested recharge. Furthermore, the requested recharge was part of the original charge to the jury. Under these circumstances, we find no error.[44]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
[1] Gearin v. State, 255 Ga.App. 329, 330, 565 S.E.2d 540 (2002).
[2] See Pruitt v. State, 279 Ga. 140, 141(1), 611 S.E.2d 47 (2005); Gearin, supra.
[3] The police also arrested Donnie Smith, another passenger in the car, but concluded that he did not participate in the attack.
[4] Tompkins v. State, 278 Ga. 857, 858(1), 607 S.E.2d 891 (2005).
[5] OCGA § 17-2-2(a).
[6] OCGA § 17-2-2(b).
[7] OCGA § 17-2-2(h).
[8] See id.; Hendrix v. State, 242 Ga.App. 678, 679-680(1), 530 S.E.2d 804 (2000); Dillard v. State, 223 Ga.App. 405, 406(2), 477 S.E.2d 674 (1996).
[9] Waldrip v. State, 267 Ga. 739, 749(13), 482 S.E.2d 299 (1997).
[10] See id.; Gearin, supra at 334(3), 565 S.E.2d 540.
[11] See Pruitt, supra at 143(4), 611 S.E.2d 47.
[12] See Gearin, supra.
[13] 220 Ga.App. 150, 469 S.E.2d 325 (1996).
[14] See id.
[15] See Trumpler v. State, 261 Ga.App. 499, 501(3), 583 S.E.2d 184 (2003) (rejecting claim that indictment was insufficient because it alleged that defendant directly committed crime, while State proceeded against him on theory of party to the crime; a party to the crime may be charged with committing the crime, and "[a]lthough the State was required to prove that [the defendant] was a party to the crime[ ] . . . , it was not required to allege [this theory] in the indictment").
[16] Huffman v. State, 257 Ga. 390, 391(2), 359 S.E.2d 910 (1987).
[17] See id. at 392, 359 S.E.2d 910 (fact that defendant consummated drug transaction after discovering that co-conspirator had murdered individual involved in the transaction supported conclusion that "the victim's murder was a probable and foreseeable consequence of the underlying conspiracy to traffic in illegal drugs").
[18] See id. at 392(3), 359 S.E.2d 910 (jury authorized to find that attempted armed robbery, aggravated assault, and attempted kidnapping were probable consequences of drug trafficking conspiracy); Shehee v. State, 167 Ga.App. 542, 543(1), 307 S.E.2d 54 (1983) (armed robbery committed before kidnapping "was naturally or necessarily done pursuant to or in furtherance of the conspiracy to kidnap [the victim]" at gunpoint).
[19] Manning v. State, 259 Ga.App. 794, 797(2), 578 S.E.2d 494 (2003).
[20] (Emphases supplied.)
[21] See id.; Jackson v. State, 157 Ga.App. 604(1), 278 S.E.2d 5 (1981); see also Raymond v. State, 232 Ga.App. 228, 228-229(1), 501 S.E.2d 568 (1998).
[22] (Punctuation omitted.) Brown v. State, 253 Ga.App. 1, 2(1), 557 S.E.2d 464 (2001). See also Henry v. State, 264 Ga. 861, 862(2), 452 S.E.2d 505 (1995).
[23] Henry, supra at 862(2), 452 S.E.2d 505
[24] See McKoon v. State, 266 Ga. 149, 151(2), 465 S.E.2d 272 (1996) ("The absence of a parent is just one of nine factors that this Court considers."); Henry, supra at 862-863, 452 S.E.2d 505; Brown, 253 Ga.App. at 3(1)(d), 557 S.E.2d 464 (2001).
[25] 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
[26] Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998).
[27] OCGA § 24-3-52.
[28] Brown v. State, 266 Ga. 633, 635(2), 469 S.E.2d 186 (1996).
[29] See id.
[30] To the extent OCGA § 24-3-52 also embodies the Confrontation Clause principles discussed in Bruton, Short waived any reliance on those principles prior to trial.
[31] 272 Ga. 900, 900-901, 537 S.E.2d 80 (2000).
[32] See Davis v. State, 279 Ga. 11, 12-13(2), 608 S.E.2d 628 (2005); Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).
[33] See Christopher v. State, 269 Ga. 382, 383(3), 497 S.E.2d 803 (1998) (" `It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given.'").
[34] See Cornwell v. State, 246 Ga.App. 686, 687-688(1), 541 S.E.2d 101 (2000); Drummond v. State, 173 Ga.App. 337, 338(3), 326 S.E.2d 787 (1985) (physical precedent only).
[35] Parker v. State, 244 Ga.App. 419, 425(11), 535 S.E.2d 795 (2000).
[36] See Morgan v. State, 195 Ga.App. 732, 734(1), 394 S.E.2d 639 (1990) ("[T]he concept of immediate presence is broadly construed if the object taken was under the victim's control or responsibility and the victim is not too distant."); Waters v. State, 161 Ga.App. 555, 556, 289 S.E.2d 21 (1982) ("[E]vidence that the victim, while lying in [a] gully, was close enough to the car to hear her assailants talking was sufficient proof that the goods were taken from her presence.").
[37] Parker, supra.
[38] See id. at 425-426, 535 S.E.2d 795.
[39] (Emphasis supplied.)
[40] Green v. State, 240 Ga.App. 377, 379(4), 523 S.E.2d 581 (1999).
[41] See id.
[42] See id. at 379-380, 523 S.E.2d 581; see also Lumpkin v. State, 249 Ga. 834, 836-837(2), 295 S.E.2d 86 (1982) (although trial court instructed jury on several methods of committing theft by receiving stolen property, any prejudice was cured by remedial charge that limited jury's consideration to the specific method alleged in the indictment).
[43] See Green, supra.
[44] See Smith v. State, 243 Ga.App. 331, 333-334(4), 533 S.E.2d 431 (2000); Bryant v. State, 155 Ga.App. 652, 654(3), 271 S.E.2d 904 (1980).
7.2.6.8.2.5 Krulewitch v. United States 7.2.6.8.2.5 Krulewitch v. United States
KRULEWITCH
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Jacob W. Friedman argued the cause and filed a brief for petitioner.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General [441] Perlman, Assistant Attorney General Campbell, John R. Benney, Robert S. Erdahl and Joseph M. Howard.
MR. JUSTICE BLACK delivered the opinion of the Court.
A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.
"She asked me, she says, `You didn't talk yet?' And I says, `No.' And she says, `Well, don't,' she says, `until we get you a lawyer.' And then she says, `Be very careful what you say.' And I can't put it in exact words. But she said, `It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it.'"
[442] The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made — the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.[1]
It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible [443] on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15 F.2d 740, 743.
Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.
We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been [444] scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief.[2] But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.
It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless [445] under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.
Reversed.
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."[1] The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in [446] addition thereto,[2] suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.
The modern crime of conspiracy is so vague that it almost defies definition.[3] Despite certain elementary and [447] essential elements,[4] it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.[5] It is always "predominantly [448] mental in composition" because it consists primarily of a meeting of minds and an intent.[6]
The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.[7]
But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a [449] lone wrongdoer.[8] It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade (see 145 F.2d 76 for details) and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.
Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.[9] The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.[10]
[450] Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.[11]
Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."[12] In fact, we are advised that "The modern crime of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the court of Star Chamber."[13] The doctrine does not commend itself to jurists of civil-law countries,[14] despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates.[15]
[451] A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.
Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.[16] This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction.[17] The National Labor Relations Act found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert.[18] But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.
The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind [452] only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, "To require a greater showing would cripple the Act," United States v. Griffith, 334 U.S. 100, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. "It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . ." United States v. Masonite Corp., 316 U.S. 265, 275. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.
Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.
An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.[19] The Government may, and often [453] does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497.
When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.
The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where [454] the Government institutes mass trials.[20] Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices." Caminetti v. United States, 242 U.S. 470, 495.
A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.[21]
Against this inadequately sketched background, I think the decision of this case in the court below introduced [455] an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the co-conspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows:
". . . We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continues, at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673. . . . While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it."
I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy [456] by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.
It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.
Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.
I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the [457] United States and that every federal prosecution must be sustained by statutory authority.[22] No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress.[23] And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.
There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.
Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice [458] can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.
MR. JUSTICE BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.
In speaking of harmless errors that may result from the admission of evidence, this Court has said:
"Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269[*] to questions of the admission of cumulative evidence." Kotteakos v. United States, 328 U.S. 750, 763.
[459] Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is —
"what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .
.....
"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." Id. at pp. 764-765.
The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.
[1] The Florida grand jury failed to indict and the cases there were closed without prosecution in February, 1942. The New York indictments were not returned until January, 1943.
[2] Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677; People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918; Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145; State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756; Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347; Watson v. State, 166 Miss. 194, 213, 146 So. 122, 127; Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222; State v. Strait, 279 S.W. 109 (Mo.).
[1] The phrase is Judge Cardozo's — The Nature of the Judicial Process, p. 51.
[2] The Conference of Senior Circuit Judges, presided over by Chief Justice Taft, in 1925 reported:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.
[3] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624: "In the long category of crimes there is none, not excepting criminal attempt, more difficult to confine within the boundaries of definitive statement than conspiracy."
An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."
[4] Justice Holmes supplied an oversimplified working definition in United States v. Kissel, 218 U.S. 601, 608: "A conspiracy is a partnership in criminal purposes." This was recently restated "A conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 644. The latter is inaccurate, since concert in criminal purposes, rather than concert in crime, establishes the conspiracy.
Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.
[5] See, for example:
8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.
[6] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624, 632.
[7] See Senturia, Conspiracy, Political, IV Encyc. Soc. Sci. 238 (1931).
On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.
[8] 8 Holdsworth, History of English Law, 383. Miller, Criminal Law, p. 110.
[9] 18 U.S.C.A. § 371. Until recently, the punishment for such a felony could have been far in excess of that provided for the substantive offense. However, the Act of June 25, 1948, c. 645, 62 Stat. 683, 701, provides that in such a case the punishment for the conspiracy shall not exceed the maximum provided for such misdemeanor.
[10] This is the federal law applicable to antitrust prosecutions. For the history of this conception and its perversion, particularly in labor cases, see Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393. On the abuse of conspiracy see O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, and Note, The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 Harv. L. Rev. 276.
[11] This statement, of course, leaves out of account the subject of attempts with which conspiracy is said to be allied. 8 Holdsworth, History of English Law, 382.
[12] Id., 382.
[13] Id., 379.
[14] "It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it. It is a fortunate circumstance that it is not encrusted so deep in our jurisprudence by past decisions of our courts that we are unable to slough it off altogether. It is a doctrine which has proved itself the evil genius of our law wherever it has touched it." Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 427.
[15] Counsel representing the United States, the United Kingdom, the French Republic, and the Soviet Union, and German defendants, indulged in some comparisons of the relevant laws of several nations before the International Military Tribunal at Niirnberg in connection with organizations there accused as criminal. 8 Trial of Major War Criminals (GPO 1947), pp. 353, et seq.; 2 Nazi Conspiracy and Aggression (GPO 1946), p. 1; Jackson, The Nurnberg Case, p. 95.
[16] The Assassination of President Lincoln and the Trial of the Conspirators, New York, 1865. See, however, Ex parte Milligan, 4 Wall. 2.
[17] See Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 403.
[18] International Union, U.A.W.A. v. Wisconsin Employment Relations Board, ante, p. 245.
[19] Hyde v. United States, 225 U.S. 347. Mr. Justice Holmes, on behalf of himself and Justices Hughes, Lurton and Lamar, wrote a vigorous protest which did not hesitate to brand the doctrine as oppressive and as "one of the wrongs that our forefathers meant to prevent." 225 U.S. 347, 387.
[20] An example is afforded by Allen v. United States, 4 F.2d 688. At the height of the prohibition frenzy, seventy-five defendants were tried on charges of conspiracy. A newspaper reporter testified to going to a drinking place where he talked with a woman, behind the bar, whose name he could not give. There was not the slightest identification of her nor showing that she knew or was known by any defendant. But it was held that being back of the bar showed her to be a co-conspirator and, hence, her statements were admissible against all. He was allowed to relate incriminating statements made by her.
[21] For courtroom technique employed in the trial of conspiracy cases by both prosecution and defense, see O'Dougherty, Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn L. Rev. 263. His survey, which accords with our observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.
[22] United States v. Hudson, 7 Cranch 32; United States v. Worrall, 2 Dall. 384; United States v. Coolidge, 1 Wheat. 415; United States v. Eaton, 144 U.S. 677, 687; United States v. Bathgate, 246 U.S. 220, 225. See, however, Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73.
[23] Cf. Tot v. United States, 319 U.S. 463.
[*] Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided:
"SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.
Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:
"RULE 52. HARMLESS ERROR AND PLAIN ERROR.
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."
7.2.6.8.2.6 Gebardi v. United States 7.2.6.8.2.6 Gebardi v. United States
GEBARDI ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
[113] Mr. William F. Waugh for petitioners.
[115] MR. JUSTICE STONE delivered the opinion of the Court.
This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825; 18 U.S.C., § 397 et seq.). Petitioners, a man and a woman, not then husband and [116] wife, were indicted in the District Court for Northern Illinois, for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that in each instance the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants, and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F. (2d) 617, on the authority of United States v. Holte, 236 U.S. 140.
The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the Court said (p. 144):
"As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like [117] this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged."
The Court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the Court put (p. 145):
"Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim."
In the present case we must apply the law to the evidence; the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.
First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.
[118] Section 2 of the Mann Act[1] (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose . .." Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.
The Act does not punish the woman for transporting herself; it contemplates two persons — one to transport and [119] the woman or girl to be transported. For the woman to fall within the ban of the statute she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,[2] any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 Fed. 28; cf. United States v. Farrar, 281 U.S. 624, 634. The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation. So it was intimated in United States v. Holte, supra, and this conclusion is not disputed by the Government here, which contends only that the conspiracy charge will lie though the woman could not commit the substantive offense.
Second. We come thus to the main question in the case, whether, admitting that the woman, by consenting, has [120] not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C, § 88), punishes a conspiracy by two or more persons "to commit any offense against the United States." The offense which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened § 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.[3]
As was said in the Holte case (p. 144), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone.[4] Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.[5] [121] For it is the collective planning of criminal conduct at which the statute aims. The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal, Clune v. United States, 159 U.S. 590, 595. And one may plan that others shall do what he cannot do himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87.
But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged.
Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently [122] with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, Shannon and Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390; cf. State v. Law, 189 Iowa 910; 179 N.W. 145; see State ex rel. Durner v. Huegin, 110 Wis. 189, 243; 85 N.W. 1046, or under the federal statute.[6] See United States v. Katz, 271 U.S. 354, 355; Norris v. United States, 34 F. (2d) 839, 841, reversed on other grounds, 281 U.S. 619; United States v. Dietrich, 126 Fed. 664, 667. But criminal transportation under the Mann Act may be effected without the woman's consent, as in cases of intimidation or force (with which we are not now concerned). We assume therefore, for present purposes, as was suggested in the Holte case, supra, 145, that the decisions last mentioned do not in all strictness apply.[7] We do not rest [123] our decision upon the theory of those cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 Fed. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.
It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, compare In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. Compare Queen v. Tyrrell, [1894] 1 Q.B. 710. The principle, determinative of this case, is the same.
On the evidence before us the woman petitioner has not violated the Mann Act and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be
Reversed.
MR. JUSTICE CARDOZO concurs in the result.
[1] "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."
[2] Sec. 3 of the Act (18 U.S.C., § 399), directed toward the persuasion, inducement, enticement or coercion of the prohibited transportation, also includes specifically those who "aid or assist" in the inducement or the transportation. Yet it is obvious that those words were not intended to reach the woman who, by yielding to persuasion, assists in her own transportation.
[3] Sec. 30, Act of March 2, 1867 (14 Stat. 471, 484) "except for an omitted not relevant provision, . . . has continued from that time to this, in almost precisely its present form." See United States v. Gradwell, 243 U.S. 476, 481.
[4] The requirement of the statute that the object of the conspiracy be an offense against the United States, necessarily statutory, United States v. Hudson, 7 Cranch 32, avoids the question much litigated at common law (see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed. 1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the Criminality of combining to do an act which any one may lawfully do alone.
[5] So it has been held repeatedly that one not a bankrupt may be held guilty under § 37 of conspiring that a bankrupt shall conceal property from his trustee (Bankruptcy Act § 29[b], 11 U.S.C., § 52). Tapack v. United States, 220 Fed. 445, certiorari denied 238 U.S. 627; Jollit v. United States, 285 Fed. 209, certiorari denied 261 U.S. 624; Israel v. United States, 3 F. (2d) 743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U.S. 582. And see United States v. Rabinowich, 238 U.S. 78, 86, 87. These cases proceed upon the theory (see United States v. Rabinowich, supra, 86) that only a bankrupt may commit the substantive offense though we do not intimate that others might not be held as principals under Criminal Code, § 332 (18 U.S.C., § 550). Cf. Barron v. United States, 5 F. (2d) 799.
In like manner Chadwick v. United States, 141 Fed. 225, sustained the conviction of one not an officer of a national bank for conspiring with an officer to commit a crime which only he could commit. And see United States v. Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.
[6] The rule was applied in United States v. N.Y.C. & H.R.R. Co., 146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following cases it was recognized and held inapplicable for the reason that the substantive crime could be committed by a single individual. Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisansky v. United States, 31 F. (2d) 846, certiorari denied 279 U.S. 873. The conspiracy was also deemed criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O'Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q.B.D. 420.
[7] It should be noted that there are many cases not constituting "a serious and substantially continued group scheme for cooperative law breaking" which may well fall within the recommendation of the 1925 conference of senior circuit judges that the conspiracy indictment be adopted "only after a careful conclusion that the public interest so requires." Att'y Gen. Rep. 1925, pp. 5, 6.
7.2.7 I. Introduction 7.2.7 I. Introduction
During orientation we read the case, Durham v. State. This case serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment. This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it? It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for? Our study of criminal law will begin by examining basic elements of just punishment: (1) legality, the requirement that criminal punishment have a legal foundation; (2) actus reus, the actual proscribed conduct that constitutes the crime; and (3) mens rea, the state of mind necessary for a given action to be criminal. Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.
7.2.7.1 Durham v. State 7.2.7.1 Durham v. State
199 Ind. 567
DURHAM
v.
STATE OF INDIANA
No. 25,179.
Filed December 23, 1927.
From Kosciusko Circuit Court; Lemuel W. Royse,
James A. Durham was convicted of assault and battery, and he appeals. Reversed.
J. Edward Headley, for appellant.
Arthur L. Gilliom, Attorney-General, for the State.
MARTIN, J.—Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.
The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of [570] $700 was returned, judgment was rendered on the verdict.
Alleged errors, assigned as reasons in support of appellant’s motion for a new trial, which was overruled, include the giving of three instructions on the court’s own motion and in refusing to give a number of instructions requested by appellant.
The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up; that appellant ran up to him, put his hand up him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion pushed the boat out in the water with oars or paddles. That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened “a few times.” That appellant said, "Lay down that oar," “Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, the ap [571] pellant then "snapped the gun at me, but it didn't go off” and that Long finally jerked the chain away from him and escaped.
The appellant testified that when Long stepped out on shore, he stepped from behind some bushes, approaches and said, “You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, “Hand me the boat oar and I will brain the son of a bitch.” That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, “If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you.” That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the ice cold water. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he [572] was exhausted and had to let loose of the chain and let them go.
Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was harmed by this instruction. He was actually found guilty of the degree of offense which the court erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. §2419 Burns 1926; Cranorv. State (1872), 39 Ind. 64. The failure of the court, in instruction eight, to state this element of the offense was particularly prejudicial to this appellant’s rights because the nature of his duties as a peace officer (§4755 Burns 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.
Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend[573] himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, 2 R. C. L. 474, and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy (1918), 201 Ala. 605, 79 So. 37. The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but on the contrary, were acts expressly required of him by law.
Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.
Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: “the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." §2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." §2159 Burns 1926.
In Plummer v. State (1893), 135 Ind. 308, 34 N. E. 968, the court said:
“The law does not allow a peace officer to use more force than is necessary to effect an [574] arrest. . . . And if he do use such unnecessary force, he . . . may be lawfully resisted. . . . If the officer is resisted before he has used needless force and violence, he may then press forward and overcomeresistance, even to the taking of the life of the personarrested, if absolutely necessary."
The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L. 473; 2 Brill, Cyc Criminal Law §§692, 713; Laning, Arrest and Prosecution p. 508; Clark and Marshall, Law of Crimes (2d. ed.) §271; Notes in 3 A. L. R. 1170-1177 and in 42 A. L. R. 1200-1207.
The general rules deduced therefrom may be stated to be:
(A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except
(B) that he may not merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant;[1] thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting.[2]
[575] That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified.[3]Smith v. State (1894), 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Fugate v. Commonwealth (1920), 187 Ky. 564, 219 S. W. 1069; Smith v. Commonwealth (1917), 176 Ky. 466; State v. Dunning (1919), 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166 and note; State v. Dierberger (1888), 96 [576] Mo. 666, 675, 10 S. W. 168, 9 Am. St. 380; Krueger v. State (1920), 171 Wis. 566, 177 N. W. 917.
To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.[4]
"To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" 1 Bishop, Crim. Proc. (2d ed.) §16.
In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws (§§ 4743, 4755 Burns 1926) and to prevent a prisoner from escaping from custody (§2608 Burns 1926) as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. This is illustrated by the following quotations from the record of the cross-examinations of the appellant:“Q: You knew at that time, [577] Mr. Durham, you would have been in perfect safety if you had let loose of the chain? A. They (the state) didn't employ me to let loose of the chain. Q. You held on to that chain notwithstanding the fact that you thought you would be brained, for the purpose of effecting that arrest, didn't you? A. I held on to the chain to arrest those fellows and keep them there until my partner returned. Q. Didn’t you know you would have been in perfect safety without chance of a scratch if you let loose of that chain? The court overruled appellant's objection to this question. A. No I didn't. He might have hit me before I got back out of the water. Q. He wasn't pursuing you at any time, was he? A. He was striking at me. Q. You knew if you let loose of that chain or boat that Long and he (Hammond) would get away from you didn't you? A. Yes Sir.” It also appears from the record that the prosecuting attorney refused to prosecute Long for his violation of the law and promised him that he would not be prosecuted if he would testify for the state in this case.
Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest.
Instruction twelve was also bad for two additional reasons. (1) It failed to instruct on the question of [578] what constitutes an arrest. It was material in this case for the jury to know what constituted an arrest and the statutory definition of arrest and the authority and requirements in respect thereof should have been embodied in the instructions. The court also refused to give an instruction tendered by appellant defining arrest. (2) It required that appellant should have been more specific in informing Long that he was an "officer," and should have stated that he was a "deputy game warden and was making the arrest deputy game warden." The evidence was sufficient to submit the question of a valid arrest to the jury without a special requirement being made by the court in respect to the particular classification of appellant as an officer.
The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.
[1] The law considers it better and more in consonance with modern ideas regarding the sanctity of human life to allow one to escape who is guilty only of a misdemeanor, and whose offense will subject him only to a small fine or short imprisonment, rather than to sacrifice his life. Reneau v. State (1879), 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626; United States v. Clark (1887), 31 Fed. 710; Thomas v. Kinkhead (1892), 55 Ark. 502, 18 S. W. 854, 29 Am: St. 68, 15 L. R. A. 558; Head v. Martin (1887), 85 Ky. 480, 3 S. W. 622; Skidmore v. State (1877) 2 Texas Court of Appeals 20.
[2] The most common examples of this class of cases are those where officers shoot at misdemeanants, their mounts, or their automobile tires and wound or kill the misdemeanants.
"To permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse and take the offender.” Head v. Martin, supra.
See the following: Note 67 L. R. A. 300; Wiley v. State (1918), 19 Ariz. 346, 170 P. 869, L. R. A. 1918D 878 and note: Brown v. Weaver(1898), 76 Miss. 7, 42 L. R. A. 428; Commonwealth v. Loughhead (1907), 218 Pa. 429, 120 Am. St. 896; Sossamon v. Cruse (1908), 133 N. C. 470; State v. Coleman (1905), 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381.
[3] Most of the texts divide the cases involving shooting or killing of those arrested for misdemeanors by officers where resistance is met, into two classes: (a) Those holding that, if a misdemeanant resists arrest, the officer may use such force as is necessary to effect it, even to severely injuring or killing the offender; and (b) those holding that the officer is never justified in taking or endangering life except in seIf-defense. 5 C. J. 426, Arrest §62 n. 95, 97 and 98; 2 R. C. L. 473, Arrest §30 n. 8, 4 and 7; 2 Brill, Cyc Cr. Law n.73-77, §713 n. 33; Clark and Marshall, Law of Crimes (2d. ed §271; Note 3 A. L. R. 1175; Note 42 A. L. R. 1203. But, as has already been noted, the protection which an officer is entitled to receive in making an arrest is a different thing from self-defense, for it is his duty to push forward and make the arrest and to secure and retain custody of the prisoner, and Mikell in Clark, Cr. Froc. (2d ed.) §17. note 50 points out that: "though in theory the distinction between killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is the same. . . . All cases agree that the officer need not abandon the effort to complete the arrest because of. . . . resistance. . . . and that it is his duty to continue this effort. . . . It will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing."
See, also, the following cases in support of the text above: Donehy & Prather v. Commonwealth (1916), 170 Ky. 474; Commonwealth v. Marcum (1909), 135 Ky.1, 122 S. W. 215, 24 L. R. A. (N.S.) 1194; Thomas v. Kinkead, supra; State v. Coleman (1905), 186 Mo. 151, 69 L. R. A. 381; Loveless v. Hardy, supra; Commonwealth v. Greer (1898), 20 Pa. Co. 535; State v. Garrett (1863), 60 N. C. 144, 84 Am: Dec. 359; Lynn v. People (1897), 170 Ill. 527, 48 N. E. 964; U. S. Bank & Trust Co. v. Switchmens Union (1917), 256 Pa. St. 228, 100 Atl. 808, L. R. A. 1917E 311.
[4] An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and is entitled to the peculiar protection of the law. Without submission tohis authority there is no security and anarchy reigns supreme.He must, of necessity, be the aggressor, and the law affords him special protection.In his capacity as an individual he may take advantage of the 'first law of nature,' and defend himself againstassault; as an officer he has an affirmative to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted toobstruct the wheels of justice." State v. Smith (1905), 127 Iowa534, 103 N. W. 944, 109 Am. St. 402, 70 L. R. A. 246, 4 Ann. Cas. 758.This language was used in a case where the officer arrested a misdemeanant and killed one who sought to rescue the prisoner and whoseact in so doing was by statute made a felony, but the reasoning quotedis none the less applicable here. A note concerning the right of an officer to kill a misdemeanant in order to effectuate an arrest accompanies the report of this case in 4 Ann. Cas. at page 760.
7.2.7.2 Tennessee v. Garner Memphis Police Department v. Garner 7.2.7.2 Tennessee v. Garner Memphis Police Department v. Garner
Tennessee v. Garner
v.
Cleamtee GARNER, etc., et al. MEMPHIS POLICE DEPARTMENT, et al., Petitioners, v. Cleamtee GARNER, etc., et al.
A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.
Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.
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(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.
(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.
(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect—young, slight, and unarmed—posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.
710 F.2d 240 (CA6 1983), affirmed and remanded.
Henry L. Klein, Memphis, Tenn., for petitioners in No. 83-1070.
W.J. Michael Cody, Memphis, Tenn., for appellant in No. 83-1035.
Page 3
Steven L. Winter, New York City, for Cleamtee Garner, et al.
Justice WHITE delivered the opinion of the Court.
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
At about 10:45 p.m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and
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about 5'5" or 5'7" tall.2 While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4
In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann.
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§ 40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id., at 57.
Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10.
The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the District Court's decision. The District Court was
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directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d, at 54-55.
The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39.
The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment,6 and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes—"the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id., at 246. Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." Ibid.7
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The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U.S. 1098, 104 S.Ct. 1589, 80 L.Ed.2d 122 (1984).
Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of
Page 8
the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983); see Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 2593, n. 12, 69 L.Ed.2d 340 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968).
Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In each of these cases, the question was whether
Page 9
the totality of the circumstances justified a particular sort of search or seizure.
The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly
Page 10
force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14.
Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police de-
Page 11
partments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where
Page 12
feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown:
"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony." 2 M. Hale, Historia Placitorum Coronae 85 (1736).
See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).
Page 13
The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33, 63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.
It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or
Page 14
fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected." American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).
Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12
There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety
Page 15
of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13
One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E., at 376; State v. Smith, 127 Iowa, at 535, 103 N.W., at 945. See generally Annot., 83 A.L.R.3d 238 (1978).
In short, though the common-law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.
In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to pre-
Page 16
vailing rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S., at 421-422, 96 S.Ct., at 826-827. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code's
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provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20
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It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.
This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where "the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury." Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a
Page 19
felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.
Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici noted that "[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies." Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.
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Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S., at 20, 27, 88 S.Ct., at 1879, 1883. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.
The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.
In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d, at 246.
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We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'non-dangerous.' " App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.
The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property" rather than a "violent" crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297, and nn. 22-23, 103 S.Ct. 3001, 3012-3013, and nn. 22-23, 77 L.Ed.2d 637 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House-
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hold Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).
We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants—the Police Department and the city of Memphis—hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice O'CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.
The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to
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apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.
The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights
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on inside the house. Officer Hymon testified that when he saw the broken window he realized "that something was wrong inside," id., at 656, but that he could not determine whether anyone—either a burglar or a member of the household—was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.
Appellee-respondent, the deceased's father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819
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(1938). The District Court held that the Tennessee statute is constitutional and that Hymon's actions as authorized by that statute did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).
The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.
For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal-
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ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional—as opposed to purely judicial—limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411, 416-421, 96 S.Ct. 820, 824-827, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 2573, 2582, 77 L.Ed.2d 22 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment).
The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277, 315-316, 103 S.Ct. 3001, 3023, 77 L.Ed.2d 637 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home,
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three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or 'nonviolent.' " Solem v. Helm, supra, at 316, 103 S.Ct., at 3023 (BURGER, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).
Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the
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Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).
The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.
Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The
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majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14, 100 S.Ct. 1371, 1395, n. 14, 63 L.Ed.2d 639 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.
A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The
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police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.
Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U.S. 137, 144-145, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use
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of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.
Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the
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shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.
The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S., at 619, 100 S.Ct., at 1396 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.
The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, 100 S.Ct., at 1387, a long-standing police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary sus-
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pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.
1. The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id., at 209.
2. In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.
3. When asked at trial why he fired, Hymon stated:
"Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him." App. 52.
He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id., at 53-54.
4. Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id., at 34. The owner testified that his valuables were untouched but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id.., at 34-35.
5. Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).
6. "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amdt. 4.
7. The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d, at 247. The relevant portion of the Model Penal Code provides:
"The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed." American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).
The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d, at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), that the city was not immune.
8. The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n. 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.
In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend "perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed." In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.
9. We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this "reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense." Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, ¶ 31-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).
This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon subject, under the common-law rule, to apprehension by deadly force—solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp.17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.
10. See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed. 1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.
11. The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed. 1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id., at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: "The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ." 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed. 1982); 2 Pollock & Maitland 511.
12. White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); id., at 755, 104 S.Ct., at 2100 (BLACKMUN, J., concurring). See Model Penal Code Comment, at 57.
13. It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether in past centuries the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.
14. Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D. Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. § 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).
15. In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 116 Cal.Rptr. 233, 237-242, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).
16. These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W.R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935).
17. Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).
18. Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, ¶ 7-5 (1984); Iowa Code § 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. § 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, § 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. § 609.066 (1984); N.H.Rev.Stat.Ann. § 627:5(II) (Supp.1983); N.J.Stat.Ann. § 2C-3-7 (West 1982); N.Y.Penal Law § 35.30 (McKinney Supp. 1984-1985); N.C.Gen.Stat. § 15A-401 (1983); N.D.Cent.Code § 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. § 508 (1982); Tex.Penal Code Ann. § 9.51(c) (1974); Utah Code Ann. § 76-2-404 (1978).
19. See La.Rev.Stat.Ann. § 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, § 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).
20. These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).
21. In adopting its current statute in 1979, for example, Alabama expressly chose the common-law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-68 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739 52 L.Ed.2d 219 (1977). Idaho, whose current statute codifies the common-law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.
22. In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).
23. The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post, at 26-27. These figures mean only that if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.
The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.
7.2.7.3. FRCP 11
7.2.7.4. Paola Gaeta, “Are Victims of Serious Violations of International Humanitarian Law Entitled to Compensation?,” in International Humanitarian Law and International Human Rights Law, ed. Ben-Neftali (New York: Oxford University Press, 2011), pp. 305–327
7.2.7.5. Missouri v. Wilson: Grand Jury Testimony of Darren Wilson (Pp 197-239)
7.2.8 Criminal Law Spring 2016 7.2.8 Criminal Law Spring 2016
Criminal Law Spring 2016
7.2.8.1 I. Introduction 7.2.8.1 I. Introduction
During orientation we read the case, Durham v. State. This case serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment. This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it? It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for? Our study of criminal law will begin by examining basic elements of just punishment: (1) legality, the requirement that criminal punishment have a legal foundation; (2) actus reus, the actual proscribed conduct that constitutes the crime; and (3) mens rea, the state of mind necessary for a given action to be criminal. Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.
7.2.8.1.1 Durham v. State 7.2.8.1.1 Durham v. State
199 Ind. 567
DURHAM
v.
STATE OF INDIANA
No. 25,179.
Filed December 23, 1927.
From Kosciusko Circuit Court; Lemuel W. Royse,
James A. Durham was convicted of assault and battery, and he appeals. Reversed.
J. Edward Headley, for appellant.
Arthur L. Gilliom, Attorney-General, for the State.
MARTIN, J.—Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.
The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of [570] $700 was returned, judgment was rendered on the verdict.
Alleged errors, assigned as reasons in support of appellant’s motion for a new trial, which was overruled, include the giving of three instructions on the court’s own motion and in refusing to give a number of instructions requested by appellant.
The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up; that appellant ran up to him, put his hand up him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion pushed the boat out in the water with oars or paddles. That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened “a few times.” That appellant said, "Lay down that oar," “Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, the ap [571] pellant then "snapped the gun at me, but it didn't go off” and that Long finally jerked the chain away from him and escaped.
The appellant testified that when Long stepped out on shore, he stepped from behind some bushes, approaches and said, “You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, “Hand me the boat oar and I will brain the son of a bitch.” That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, “If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you.” That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the ice cold water. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he [572] was exhausted and had to let loose of the chain and let them go.
Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was harmed by this instruction. He was actually found guilty of the degree of offense which the court erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. §2419 Burns 1926; Cranorv. State (1872), 39 Ind. 64. The failure of the court, in instruction eight, to state this element of the offense was particularly prejudicial to this appellant’s rights because the nature of his duties as a peace officer (§4755 Burns 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.
Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend[573] himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, 2 R. C. L. 474, and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy (1918), 201 Ala. 605, 79 So. 37. The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but on the contrary, were acts expressly required of him by law.
Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.
Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: “the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." §2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." §2159 Burns 1926.
In Plummer v. State (1893), 135 Ind. 308, 34 N. E. 968, the court said:
“The law does not allow a peace officer to use more force than is necessary to effect an [574] arrest. . . . And if he do use such unnecessary force, he . . . may be lawfully resisted. . . . If the officer is resisted before he has used needless force and violence, he may then press forward and overcomeresistance, even to the taking of the life of the personarrested, if absolutely necessary."
The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L. 473; 2 Brill, Cyc Criminal Law §§692, 713; Laning, Arrest and Prosecution p. 508; Clark and Marshall, Law of Crimes (2d. ed.) §271; Notes in 3 A. L. R. 1170-1177 and in 42 A. L. R. 1200-1207.
The general rules deduced therefrom may be stated to be:
(A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except
(B) that he may not merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant;[1] thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting.[2]
[575] That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified.[3]Smith v. State (1894), 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Fugate v. Commonwealth (1920), 187 Ky. 564, 219 S. W. 1069; Smith v. Commonwealth (1917), 176 Ky. 466; State v. Dunning (1919), 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166 and note; State v. Dierberger (1888), 96 [576] Mo. 666, 675, 10 S. W. 168, 9 Am. St. 380; Krueger v. State (1920), 171 Wis. 566, 177 N. W. 917.
To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.[4]
"To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" 1 Bishop, Crim. Proc. (2d ed.) §16.
In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws (§§ 4743, 4755 Burns 1926) and to prevent a prisoner from escaping from custody (§2608 Burns 1926) as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. This is illustrated by the following quotations from the record of the cross-examinations of the appellant:“Q: You knew at that time, [577] Mr. Durham, you would have been in perfect safety if you had let loose of the chain? A. They (the state) didn't employ me to let loose of the chain. Q. You held on to that chain notwithstanding the fact that you thought you would be brained, for the purpose of effecting that arrest, didn't you? A. I held on to the chain to arrest those fellows and keep them there until my partner returned. Q. Didn’t you know you would have been in perfect safety without chance of a scratch if you let loose of that chain? The court overruled appellant's objection to this question. A. No I didn't. He might have hit me before I got back out of the water. Q. He wasn't pursuing you at any time, was he? A. He was striking at me. Q. You knew if you let loose of that chain or boat that Long and he (Hammond) would get away from you didn't you? A. Yes Sir.” It also appears from the record that the prosecuting attorney refused to prosecute Long for his violation of the law and promised him that he would not be prosecuted if he would testify for the state in this case.
Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest.
Instruction twelve was also bad for two additional reasons. (1) It failed to instruct on the question of [578] what constitutes an arrest. It was material in this case for the jury to know what constituted an arrest and the statutory definition of arrest and the authority and requirements in respect thereof should have been embodied in the instructions. The court also refused to give an instruction tendered by appellant defining arrest. (2) It required that appellant should have been more specific in informing Long that he was an "officer," and should have stated that he was a "deputy game warden and was making the arrest deputy game warden." The evidence was sufficient to submit the question of a valid arrest to the jury without a special requirement being made by the court in respect to the particular classification of appellant as an officer.
The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.
[1] The law considers it better and more in consonance with modern ideas regarding the sanctity of human life to allow one to escape who is guilty only of a misdemeanor, and whose offense will subject him only to a small fine or short imprisonment, rather than to sacrifice his life. Reneau v. State (1879), 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626; United States v. Clark (1887), 31 Fed. 710; Thomas v. Kinkhead (1892), 55 Ark. 502, 18 S. W. 854, 29 Am: St. 68, 15 L. R. A. 558; Head v. Martin (1887), 85 Ky. 480, 3 S. W. 622; Skidmore v. State (1877) 2 Texas Court of Appeals 20.
[2] The most common examples of this class of cases are those where officers shoot at misdemeanants, their mounts, or their automobile tires and wound or kill the misdemeanants.
"To permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse and take the offender.” Head v. Martin, supra.
See the following: Note 67 L. R. A. 300; Wiley v. State (1918), 19 Ariz. 346, 170 P. 869, L. R. A. 1918D 878 and note: Brown v. Weaver(1898), 76 Miss. 7, 42 L. R. A. 428; Commonwealth v. Loughhead (1907), 218 Pa. 429, 120 Am. St. 896; Sossamon v. Cruse (1908), 133 N. C. 470; State v. Coleman (1905), 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381.
[3] Most of the texts divide the cases involving shooting or killing of those arrested for misdemeanors by officers where resistance is met, into two classes: (a) Those holding that, if a misdemeanant resists arrest, the officer may use such force as is necessary to effect it, even to severely injuring or killing the offender; and (b) those holding that the officer is never justified in taking or endangering life except in seIf-defense. 5 C. J. 426, Arrest §62 n. 95, 97 and 98; 2 R. C. L. 473, Arrest §30 n. 8, 4 and 7; 2 Brill, Cyc Cr. Law n.73-77, §713 n. 33; Clark and Marshall, Law of Crimes (2d. ed §271; Note 3 A. L. R. 1175; Note 42 A. L. R. 1203. But, as has already been noted, the protection which an officer is entitled to receive in making an arrest is a different thing from self-defense, for it is his duty to push forward and make the arrest and to secure and retain custody of the prisoner, and Mikell in Clark, Cr. Froc. (2d ed.) §17. note 50 points out that: "though in theory the distinction between killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is the same. . . . All cases agree that the officer need not abandon the effort to complete the arrest because of. . . . resistance. . . . and that it is his duty to continue this effort. . . . It will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing."
See, also, the following cases in support of the text above: Donehy & Prather v. Commonwealth (1916), 170 Ky. 474; Commonwealth v. Marcum (1909), 135 Ky.1, 122 S. W. 215, 24 L. R. A. (N.S.) 1194; Thomas v. Kinkead, supra; State v. Coleman (1905), 186 Mo. 151, 69 L. R. A. 381; Loveless v. Hardy, supra; Commonwealth v. Greer (1898), 20 Pa. Co. 535; State v. Garrett (1863), 60 N. C. 144, 84 Am: Dec. 359; Lynn v. People (1897), 170 Ill. 527, 48 N. E. 964; U. S. Bank & Trust Co. v. Switchmens Union (1917), 256 Pa. St. 228, 100 Atl. 808, L. R. A. 1917E 311.
[4] An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and is entitled to the peculiar protection of the law. Without submission tohis authority there is no security and anarchy reigns supreme.He must, of necessity, be the aggressor, and the law affords him special protection.In his capacity as an individual he may take advantage of the 'first law of nature,' and defend himself againstassault; as an officer he has an affirmative to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted toobstruct the wheels of justice." State v. Smith (1905), 127 Iowa534, 103 N. W. 944, 109 Am. St. 402, 70 L. R. A. 246, 4 Ann. Cas. 758.This language was used in a case where the officer arrested a misdemeanant and killed one who sought to rescue the prisoner and whoseact in so doing was by statute made a felony, but the reasoning quotedis none the less applicable here. A note concerning the right of an officer to kill a misdemeanant in order to effectuate an arrest accompanies the report of this case in 4 Ann. Cas. at page 760.
7.2.8.1.2 Tennessee v. Garner Memphis Police Department v. Garner 7.2.8.1.2 Tennessee v. Garner Memphis Police Department v. Garner
Tennessee v. Garner
v.
Cleamtee GARNER, etc., et al. MEMPHIS POLICE DEPARTMENT, et al., Petitioners, v. Cleamtee GARNER, etc., et al.
A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.
Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 7-22.
Page 2
(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 7-12.
(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common-law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common-law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common-law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 12-20.
(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect—young, slight, and unarmed—posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 20-22.
710 F.2d 240 (CA6 1983), affirmed and remanded.
Henry L. Klein, Memphis, Tenn., for petitioners in No. 83-1070.
W.J. Michael Cody, Memphis, Tenn., for appellant in No. 83-1035.
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Steven L. Winter, New York City, for Cleamtee Garner, et al.
Justice WHITE delivered the opinion of the Court.
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
At about 10:45 p.m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and
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about 5'5" or 5'7" tall.2 While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4
In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Tenn.Code Ann.
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§ 40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id., at 57.
Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10.
The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which had come down after the District Court's decision. The District Court was
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directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d, at 54-55.
The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39.
The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment,6 and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes—"the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id., at 246. Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." Ibid.7
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The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U.S. 1098, 104 S.Ct. 1589, 80 L.Ed.2d 122 (1984).
Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of
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the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983); see Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers, 452 U.S. 692, 700, n. 12, 101 S.Ct. 2587, 2593, n. 12, 69 L.Ed.2d 340 (1981). See also Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1734-1735, 18 L.Ed.2d 930 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U.S. 891, 895, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Terry v. Ohio, 392 U.S. 1, 28-29, 88 S.Ct. 1868, 1883-1884, 20 L.Ed.2d 889 (1968).
Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In each of these cases, the question was whether
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the totality of the circumstances justified a particular sort of search or seizure.
The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly
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force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14.
Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police de-
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partments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.
It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where
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feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown:
"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony." 2 M. Hale, Historia Placitorum Coronae 85 (1736).
See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).
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The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be "reasonable." It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33, 63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.
It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or
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fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected." American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).
Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times "the gulf between the felonies and the minor offences was broad and deep," 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a "felon" is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12
There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety
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of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13
One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E., at 376; State v. Smith, 127 Iowa, at 535, 103 N.W., at 945. See generally Annot., 83 A.L.R.3d 238 (1978).
In short, though the common-law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.
In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to pre-
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vailing rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S., at 421-422, 96 S.Ct., at 826-827. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code's
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provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20
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It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.
This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where "the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury." Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a
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felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.
Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici noted that "[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies." Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.
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Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S., at 20, 27, 88 S.Ct., at 1879, 1883. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.
The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.
In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d, at 246.
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We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'non-dangerous.' " App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.
The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property" rather than a "violent" crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U.S. 277, 296-297, and nn. 22-23, 103 S.Ct. 3001, 3012-3013, and nn. 22-23, 77 L.Ed.2d 637 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House-
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hold Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).
We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants—the Police Department and the city of Memphis—hinges on Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice O'CONNOR, with whom THE CHIEF JUSTICE and Justice REHNQUIST join, dissenting.
The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to
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apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.
The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights
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on inside the house. Officer Hymon testified that when he saw the broken window he realized "that something was wrong inside," id., at 656, but that he could not determine whether anyone—either a burglar or a member of the household—was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.
Appellee-respondent, the deceased's father, filed a 42 U.S.C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. § 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819
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(1938). The District Court held that the Tennessee statute is constitutional and that Hymon's actions as authorized by that statute did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).
The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.
For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal-
Page 26
ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional—as opposed to purely judicial—limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U.S. 411, 416-421, 96 S.Ct. 820, 824-827, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). Cf. United States v. Villamonte-Marquez, 462 U.S. 579, 585, 103 S.Ct. 2573, 2582, 77 L.Ed.2d 22 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment).
The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others." Solem v. Helm, 463 U.S. 277, 315-316, 103 S.Ct. 3001, 3023, 77 L.Ed.2d 637 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice statistics, "[t]hree-fifths of all rapes in the home,
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three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority's confident assertion that "burglaries only rarely involve physical violence." Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or 'nonviolent.' " Solem v. Helm, supra, at 316, 103 S.Ct., at 3023 (BURGER, C.J., dissenting). See also Restatement of Torts § 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).
Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the
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Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).
The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U.S. 447, 464, 104 S.Ct. 3154, 3164, 82 L.Ed.2d 340 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.
Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The
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majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority's failure to acknowledge the distinctive manner in which the suspect's interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer's use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U.S. 573, 617, n. 14, 100 S.Ct. 1371, 1395, n. 14, 63 L.Ed.2d 639 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.
A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The
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police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.
Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U.S. 137, 144-145, 99 S.Ct. 2689, 2694-2695, 61 L.Ed.2d 433 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use
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of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 538-539, 99 S.Ct. 1861, 1873-1874, 60 L.Ed.2d 447 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.
Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only if the suspect "threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm." Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).
Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with § 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the
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shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.
The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S., at 619, 100 S.Ct., at 1396 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.
The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, 100 S.Ct., at 1387, a long-standing police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary sus-
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pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.
1. The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id., at 209.
2. In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.
3. When asked at trial why he fired, Hymon stated:
"Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him." App. 52.
He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id., at 53-54.
4. Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id., at 34. The owner testified that his valuables were untouched but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id.., at 34-35.
5. Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).
6. "The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S. Const., Amdt. 4.
7. The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d, at 247. The relevant portion of the Model Penal Code provides:
"The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer; or is assisting a person whom he believes to be authorized to act as a peace officer, and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed." American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).
The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d, at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), that the city was not immune.
8. The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n. 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.
In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend "perpetrators who, in the course of their crime threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed." In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.
9. We note that the usual manner of deterring illegal conduct through punishment—has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this "reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense." Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, ¶ 31-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).
This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon subject, under the common-law rule, to apprehension by deadly force—solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp.17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.
10. See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed. 1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.
11. The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed. 1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id., at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write: "The idea of felony is indeed so generally connected with that of capital punishment, that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ." 4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed. 1982); 2 Pollock & Maitland 511.
12. White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); id., at 755, 104 S.Ct., at 2100 (BLACKMUN, J., concurring). See Model Penal Code Comment, at 57.
13. It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether in past centuries the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.
14. Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D. Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. § 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).
15. In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 116 Cal.Rptr. 233, 237-242, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).
16. These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berry v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W.R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935).
17. Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).
18. Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, ¶ 7-5 (1984); Iowa Code § 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. § 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, § 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. § 609.066 (1984); N.H.Rev.Stat.Ann. § 627:5(II) (Supp.1983); N.J.Stat.Ann. § 2C-3-7 (West 1982); N.Y.Penal Law § 35.30 (McKinney Supp. 1984-1985); N.C.Gen.Stat. § 15A-401 (1983); N.D.Cent.Code § 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. § 508 (1982); Tex.Penal Code Ann. § 9.51(c) (1974); Utah Code Ann. § 76-2-404 (1978).
19. See La.Rev.Stat.Ann. § 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, § 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).
20. These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to . . . anyone. . . ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).
21. In adopting its current statute in 1979, for example, Alabama expressly chose the common-law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-68 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739 52 L.Ed.2d 219 (1977). Idaho, whose current statute codifies the common-law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.
22. In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).
23. The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post, at 26-27. These figures mean only that if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.
The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.
7.2.8.1.3. Missouri v. Wilson: Grand Jury Testimony of Darren Wilson (Pp 197-239)
7.2.8.1.4. Robert M. Cover — "Violence and the Word" (pp. 1601, 1607-09, 1613-15, 1618-19, 1626-29)
7.2.8.1.5. Michelle Alexander - The New Jim Crow (pp. 182-85)
7.2.8.2 II. Elements & Basics 7.2.8.2 II. Elements & Basics
7.2.8.2.1 II.A. Legality 7.2.8.2.1 II.A. Legality
It seems commonsensical that for criminal punishment to be just and legal, the activity punished must have been made illegal. However, legality is a more complex subject than it seems, as the cases below illustrate. Legislatures and courts struggle to define and interpret criminal law, and the roles and relationships between these institutions in determining what is criminal have evolved over time. Consider the strengths and weaknesses, advantages and disadvantages of courts and of legislatures in defining particular crimes — a topic you have undoubtedly encountered throughout your 1L year. Additionally, giving people notice of criminal proscription underpins the idea of legality. Consider the issue of notice. Given the limited knowledge that most people have of the law, can they be said to have actual notice of what conduct is criminal? And should this matter? As you will see, courts sometimes invalidate convictions due to lack of notice, such as when a statute is unconstitutionally vague. Given that most people don’t read criminal statutes, why do courts go to such lengths to uphold the principle of notice?
7.2.8.2.1.1 Commonwealth v. Mochan 7.2.8.2.1.1 Commonwealth v. Mochan
Commonwealth
v.
Mochan, Appellant.
Superior Court of Pennsylvania.
[455] Before RHODES, P.J., HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.
Edward A. Schultz, with him H. Turner Frost and Seif, Schultz & Frost, for appellant.
Albert A. Fiok, Assistant District Attorney, with him James F. Malone, Jr., District Attorney, for appellee.
OPINION BY HIRT, J., January 14, 1955:
One indictment (Bill 230), before us in the present appeals, charged that the defendant on May 4, 1953 "devising, contriving and intending the morals and [456] manners of the good citizens of this Commonwealth then and there being, to debauch and corrupt, and further devising and intending to harass, embarrass and villify divers citizens of this Commonwealth, and particularly one Louise Zivkovich and the members of the family of her the said Louise Zivkovich . . . unlawfully, wickedly and maliciously did then and there on the said days and dates aforesaid, make numerous telephone calls to the dwelling house of the said Louise Zivkovich at all times of the day and night, in which said telephone calls and conversations resulting therefrom the said Michael Mochan did wickedly and maliciously refer to the said Louise Zivkovich as a lewd, immoral and lascivious woman of an indecent and lewd character, and other scurrilous approbrious, filthy, disgusting and indecent language and talk and did then and there use in said telephone calls and conversations resulting therefrom, not only with the said Louise Zivkovich as aforesaid but with other members of the family of the said Louise Zivkovich then and there residing and then and there answering said telephone calls aforesaid intending as aforesaid to blacken the character and reputation of the said Louise Zivkovich and to infer that the said Louise Zivkovich was a woman of ill repute and ill fame, and intending as aforesaid to harass, embarrass and villify the said Louise Zivkovich and other members of her household as aforesaid, to the great damage, injury and oppression of the said Louise Zivkovich and other good citizens of this Commonwealth to the evil example of all other in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania." A second indictment (Bill 231), in the same language, charged a like offense committed by defendant on another date. Defendant was tried before a judge without a jury and was convicted on both charges and was [457] sentenced. He has appealed from the refusal by the court en banc of his motions in arrest of judgment, on the ground advanced by him that the conduct charged in the indictments, concededly not a criminal offense in this State by any statute, does not constitute a misdemeanor at common law. In a number of States and especially in the common law State of Pennsylvania the common law of England, as to crimes, is in force except in so far as it has been abrogated by statute. 11 Am. Jur., Common Law, § 4; 22 C.J.S., Criminal Law, § 19. The indictments in these cases by their language, clearly purported to charge a common law crime not included in our Penal Code or elsewhere in our statutory law.
It is established by the testimony that the defendant over a period of more than one month early in 1953, on numerous occasions and on the specific dates laid in the indictments, telephoned one Louise Zivkovich, a stranger to him and a married woman of the highest character and repute. He called as often as three times each week and at any hour of the day or night. His language on these calls was obscene, lewd and filthy. He not only suggested intercourse with her but talked of sodomy as well, in the loathsome language of that criminal act, on a number of occasions. The calls were coming in from a four-party line. Through cooperation with the telephone company, the defendant was finally located and was arrested by the police at the telephone after the completion of his last call. After his arrest bearing upon the question of his identification as the one who made the calls, Mrs. Zivkovich recognized his voice, in a telephone conversation with him which was set up by the police.
It is of little importance that there is no precedent in our reports which decides the precise question here involved. The test is not whether precedents can be [458] found in the books but whether the alleged crimes could have been prosecuted and the offenders punished under the common law. Commonwealth v. McHale, 97 Pa. 397, 408. In Commonwealth v. Miller, 94 Pa. Superior Ct. 499, 507, the controlling principles are thus stated: "The common law is sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality, or obstruct, or pervert public justice, or the administration of government: 16 Corpus Juris, Sec. 23, page 65, citing Republica v. Teischer, 1 Dallas 335; Com. v. Sharpless, 2 S. & R. 91, and Barker v. Com., 19 Pa. 412." Cf. Com. of Penna. v. DeGrange, 97 Pa. Superior Ct. 181, in which it is said: "`Whatever openly outrages decency and is injurious to public morals is a misdemeanor at common law': Russell on Crimes and Misdemeanors, 8th Ed., Vol. 1, p. 10; 4 Blackstone's Commentaries 65, note." Any act is indictable at common law which from its nature scandalously affects the morals or health of the community. 1 Wharton Criminal Law, 12 Ed., § 23. Thus in Barker et al. v. Commonwealth, 19 Pa. 412, a common law conviction based upon open obscenity was affirmed. Cf. Sadler, Criminal & Penal Proc., § 281. And in Commonwealth v. Glenny, 54 D. & C. 633, in a well considered opinion it was held that an indictment charging that the defendant took indecent liberties tending to debauch the morals of a male victim adequately set forth a common law offense. And as early as Updegraph v. Commonwealth, 11 S. & R. 393, it was held that Christianity is a part of the common law and maliciously to vilify the Christian religion is an indictable offense.
[459] To endeavor merely to persuade a married woman to commit adultery is not indictable. Smith v. Commonwealth, 54 Pa. 209. The present defendant's criminal intent was evidenced by a number of overt acts beyond the mere oral solicitation of adultery. The vile and disgusting suggestions of sodomy alone and the otherwise persistent lewd, immoral and filthy language used by the defendant, take these cases out of the principle of the Smith case. Moreover potentially at least, defendant's acts injuriously affected public morality. The operator or any one on defendant's four-party telephone line could have listened in on the conversations, and at least two other persons in Mrs. Zivkovich's household heard some of defendant's immoral and obscene language over the telephone.
The name "Immoral Practices and Conduct" was ascribed to the offense and was endorsed on the indictments by the District Attorney. Whether the endorsement appropriately or adequately names the offense is unimportant (Com. of Penna. v. DeGrange, supra, p. 185); the factual charges in the body of the indictments identify the offense as a common law misdemeanor and the testimony established the guilt of the defendant.
Judgments and sentences affirmed.
DISSENTING OPINION BY WOODSIDE, J.:
Not unmindful of the reprehensible conduct of the appellant, I nevertheless cannot agree with the majority that what he did was a crime punishable under the laws of this Commonwealth.
The majority is declaring something to be a crime which was never before known to be a crime in this Commonwealth. They have done this by the application [460] of such general principles as "it is a crime to do anything which injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer;" and "whatever openly outrages decency and is injurious to public morals is a misdemeanor."
Not only have they declared it to be a crime to do an act "injuriously affecting public morality," but they have declared it to be a crime to do any act which has a "potentially" injurious effect on public morality.
Under the division of powers in our constitution it is for the legislature to determine what "injures or tends to injure the public."
One of the most important functions of a legislature is to determine what acts "require the state to interfere and punish the wrongdoer." There is no reason for the legislature to enact any criminal laws if the courts delegate to themselves the power to apply such general principles as are here applied to whatever conduct may seem to the courts to be injurious to the public.
There is no doubt that the common law is a part of the law of this Commonwealth, and we punish many acts under the common law. But after nearly two hundred years of constitutional government in which the legislature and not the courts have been charged by the people with the responsibility of deciding which acts do and which do not injure the public to the extent which requires punishment, it seems to me we are making an unwarranted invasion of the legislative field when we arrogate that responsibility to ourselves by declaring now, for the first time, that certain acts are a crime.
When the legislature invades either the judicial or the executive fields, or the executive invades either the judicial or legislative fields, the courts stand ready to [461] stop them. But in matters of this type there is nothing to prevent our invasion of the legislative field except our own self restraint. There are many examples of how carefully the courts, with admirable self restraint, have fenced themselves in so they would not romp through the fields of the other branches of government. This case is not such an example.
Until the legislature says that what the defendant did is a crime, I think the courts should not declare it to be such.
I would therefore reverse the lower court and discharge the appellant.
GUNTHER, J. joins in this dissent.
7.2.8.2.1.2 McBoyle v. United States 7.2.8.2.1.2 McBoyle v. United States
McBOYLE
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.
Mr. Harry F. Brown for petitioner.
Mr. Claude R. Branch, Special Assistant to the Attorney General, with whom Solicitor General Thacher, Assistant Attorney General Dodds and Messrs. Harry S. Ridgely and W. Marvin Smith were on the brief, for the United States.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was convicted of transporting from Ottawa, Illinois, to Guymon, Oklahoma, an airplane that he knew to have been stolen, and was sentenced to serve three years' imprisonment and to pay a fine of $2,000. The judgment was affirmed by the Circuit Court of Appeals for the Tenth Circuit. 43 F. (2d) 273. A writ of certiorari was granted by this Court on the question whether the National Motor Vehicle Theft Act applies to aircraft. [26] Act of October 29, 1919, c. 89, 41 Stat. 324; U.S. Code, Title 18, § 408. That Act provides: "Sec. 2. That when used in this Act: (a) The term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails; . . . Sec. 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."
Section 2 defines the motor vehicles of which the transportation in interstate commerce is punished in § 3. The question is the meaning of the word 'vehicle' in the phrase "any other self-propelled vehicle not designed for running on rails." No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air, and sometimes legislation extends the use in that direction, e.g., land and air, water being separately provided for, in the Tariff Act, September 22, 1922, c. 356, § 401 (b), 42 Stat. 858, 948. But in everyday speech 'vehicle' calls up the picture of a thing moving on land. Thus in Rev. Stats. § 4, intended, the Government suggests, rather to enlarge than to restrict the definition, vehicle includes every contrivance capable of being used "as a means of transportation on land." And this is repeated, expressly excluding aircraft, in the Tariff Act, June 17, 1930, c. 997, § 401 (b); 46 Stat. 590, 708. So here, the phrase under discussion calls up the popular picture. For after including automobile truck, automobile wagon and motor cycle, the words "any other self-propelled vehicle not designed for running on rails" still indicate that a vehicle in the popular sense, that is a vehicle running on land, is the theme. It is a vehicle that runs, not something, not commonly called a vehicle, that flies. Airplanes were well known in 1919, when this statute was passed; but it is admitted that they were not mentioned in the reports or in the debates in Congress. [27] It is impossible to read words that so carefully enumerate the different forms of motor vehicles and have no reference of any kind to aircraft, as including airplanes under a term that usage more and more precisely confines to a different class. The counsel for the petitioner have shown that the phraseology of the statute as to motor vehicles follows that of earlier statutes of Connecticut, Delaware, Ohio, Michigan and Missouri, not to mention the late Regulations of Traffic for the District of Columbia, Title 6, c. 9, § 242, none of which can be supposed to leave the earth.
Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear. When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft, simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it, very likely broader words would have been used. United States v. Thind, 261 U.S. 204, 209.
Judgment reversed.
7.2.8.2.1.3 Chicago v. Morales 7.2.8.2.1.3 Chicago v. Morales
CITY OF CHICAGO
v.
MORALES et al.
United States Supreme Court.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS
[42] [43] [44] Stevens, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which Souter and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined, post, p. 64. Kennedy, J., post, p. 69, and Breyer, J., post, p. 70, filed opinions concurring in part and concurring in the judgment. Scalia, J., filed a dissenting opinion, post, p. 73. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined, post, p. 98.
Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.
Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.[*]
[45] Justice Stevens announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice Souter and Justice Ginsburg join.
In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang [46] members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
I
Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.[1]
The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, "`the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members "`establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas; and . . . [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present . . . .' " Ibid. It further found that "`loitering in public places by [47] criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that "`[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city "`has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid.
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a "`public place' " is a "`criminal street gang membe[r].' " Second, the persons must be "`loitering,' " which the ordinance defines as "`remain[ing] in any one place with no apparent purpose.' " Third, the officer must then order "`all' " of the persons to disperse and remove themselves "`from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid.[2]
[48] Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.[3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers,[4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a—67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated [49] areas." Id., at 68a—69a. The city, however, does not release the locations of these "designated areas" to the public.[5]
II
During the three years of its enforcement,[6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.[7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.[8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct [50] is prohibited, and it encourages arbitrary and capricious enforcement by police."[9]
The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case,[10] consolidated and affirmed other pending appeals in accordance with Youkhana,[11] and reversed the convictions of respondents Gutierrez, Morales, and others.[12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.[13]
The Illinois Supreme Court affirmed. It held "that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid.
In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated [51] to cause harm.[14] "Moreover, the definition of `loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity."[15]
We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.
III
The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods."[16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt [52] that a law that directly prohibited such intimidating conduct would be constitutional,[17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague.
We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.[18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).
While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct [53] protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).
On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment.[19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).[20] [54] Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage" Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).[21]
[55] There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that "simply regulates business behavior and contains a scienter requirement." See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.[22]
[56] Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.
IV
"It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits . . . ." Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—"to remain in any one place with no apparent purpose"—does not. It is difficult to imagine how [57] any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?[23]
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of "loitering," but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law's failure to distinguish between innocent conduct and conduct threatening harm.[24] Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.[25] However, state [58] courts have uniformly invalidated laws that do not join the term "loitering" with a second specific element of the crime.[26]
The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. "[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do."[27] We find this response unpersuasive for at least two reasons.
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. "No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.[28] If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 [59] (1965).[29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.[30]
Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer "shall order all such persons to disperse and remove themselves from the area." App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of "neighborhood" and "locality." Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that "[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles." Id., at 395.
Lack of clarity in the description of the loiterer's duty to obey a dispersal order might not render the ordinance unconstitutionally [60] vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to "set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance is therefore vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971).
V
The broad sweep of the ordinance also violates "`the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may— indeed, she "shall"—order them to disperse.
Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it "necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we discussed in the context of fair notice, [61] see supra, at 56-60, the principal source of the vast discretion conferred on the police in this case is the definition of loitering as "to remain in any one place with no apparent purpose."
As the Illinois Supreme Court interprets that definition, it "provides absolute discretion to police officers to decide what activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State's highest court.[31] "The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455 (1905).
Nevertheless, the city disputes the Illinois Supreme Court's interpretation, arguing that the text of the ordinance limits the officer's discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.
Even putting to one side our duty to defer to a state court's construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons [62] to disperse under the ordinance.[32] Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The "no apparent purpose" standard for making that decision is inherently subjective because its application depends on whether some purpose is "apparent" to the officer on the scene.
Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.
It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,[33] or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.[34] It applies to everyone in the city [63] who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member.
Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council's findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.
Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the "vast amount of discretion" granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city [64] safely assume that they would not be ordered to disperse no matter how innocent and harmless their loitering might be.
VI
In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police "to meet constitutional standards for definiteness and clarity."[35] 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. "We are mindful that the preservation of liberty depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.
Accordingly, the judgment of the Supreme Court of Illinois is
Affirmed.
Justice O'Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment.
I agree with the Court that Chicago's Gang Congregation Ordinance, Chicago Municipal Code § 8-4—015 (1992) (gang loitering ordinance or ordinance) is unconstitutionally vague. A penal law is void for vagueness if it fails to "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" or fails to [65] establish guidelines to prevent "arbitrary and discriminatory enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 (1983). Of these, "the more important aspect of the vagueness doctrine `is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. 566, 574-575 (1974)). I share Justice Thomas' concern about the consequences of gang violence, and I agree that some degree of police discretion is necessary to allow the police "to perform their peace keeping responsibilities satisfactorily." Post, at 109 (dissenting opinion). A criminal law, however, must not permit policemen, prosecutors, and juries to conduct "`a standardless sweep . . . to pursue their personal predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen, supra, at 575).
The ordinance at issue provides:
"Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." App. to Pet. for Cert. 61a.
To "[l]oiter," in turn, is defined in the ordinance as "to remain in any one place with no apparent purpose." Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court's construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).
As it has been construed by the Illinois court, Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement [66] officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"—even if it is simply to stand—the ordinance permits police officers to choose which purposes are permissible. Under this construction the police do not have to decide that an individual is "threaten[ing] the public peace" to issue a dispersal order. See post, at 107 (Thomas, J., dissenting). Any police officer in Chicago is free, under the Illinois Supreme Court's construction of the ordinance, to order at his whim any person standing in a public place with a suspected gang member to disperse. Further, as construed by the Illinois court, the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or "other location open to the public, whether publicly or privately owned." Chicago Municipal Code § 8-4—015(c)(5) (1992).
To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place "with no apparent purpose," and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they "reasonably believ[e]" that a group of loiterers includes a gang member fails to cure the ordinance's vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.
This vagueness consideration alone provides a sufficient ground for affirming the Illinois court's decision, and I agree [67] with Part V of the Court's opinion, which discusses this consideration. See ante, at 62 ("[T]hat the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue"); ibid. ("It is true .. . that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members"). Accordingly, there is no need to consider the other issues briefed by the parties and addressed by the plurality. I express no opinion about them.
It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today's holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a "harmful purpose," see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that "directly prohibit[s]" the "`presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,' " that "`intimidates residents.' " Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that "enables police officers to fulfill . . . their traditional functions," including "preserving the public peace." See post, at 106 (Thomas, J., dissenting). Specifically, [68] Chicago's general disorderly conduct provision allows the police to arrest those who knowingly "provoke, make or aid in making a breach of peace." See Chicago Municipal Code § 8-4—010 (1992).
In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition would be consistent with the Chicago City Council's findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a—61a. As noted above, so would limitations that restricted the ordinance's criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.
The Illinois Supreme Court did not choose to give a limiting construction to Chicago's ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that "`[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it' " (citations and internal quotation marks omitted)); New York [69] v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is "dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us"). Accordingly, I join Parts I, II, and V of the Court's opinion and concur in the judgment.
Justice Kennedy, concurring in part and concurring in the judgment.
I join Parts I, II, and V of the Court's opinion and concur in the judgment.
I also share many of the concerns Justice Stevens expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.
We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; [70] nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose.
Justice Breyer, concurring in part and concurring in the judgment.
The ordinance before us creates more than a "minor limitation upon the free state of nature." Post, at 74 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any "location open to the public, whether publicly or privately owned," Chicago Municipal Code § 8-4—015(c)(5) (1992), i. e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place "with no apparent purpose." § 8-4—015(c)(1).
The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and Justice O'Connor, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words "no apparent purpose" as meaning "no apparent purpose except for . . . ." And it is in the ordinance's delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a "minor," "limitation upon the free state of nature."
[71] Nor does it violate "our rules governing facial challenges," post, at 74 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance's terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) ("If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it").
Justice Scalia's examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law's constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.
[72] One to whose conduct a statute clearly applies may not successfully challenge it for vagueness"). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide "sufficient minimal standards to guide law enforcement officers." See ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment).
I concede that this case is unlike those First Amendment "overbreadth" cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer's exercise of unchecked discretion, is more clearly their own.
This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from "conduct[ing] themselves in a manner annoying to persons passing by." The Court explained:
"It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city's constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed." Id., at 614 (citation omitted).
[73] The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably "annoying" or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 67-68 (O'Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.
Justice Scalia, dissenting.
The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the "freedom" of all citizens, but was not unconstitutional.
Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the "freedom" of all citizens, but was not unconstitutional.
Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated [74] in public places to deal in drugs, and to terrorize the neighborhoods by demonstrating control over their "turf." Many residents of the inner city felt that they were prisoners in their own homes. Once again, Chicagoans decided that to eliminate the problem it was worth restricting some of the freedom that they once enjoyed. The means they took was similar to the second, and more mild, example given above rather than the first: Loitering was not made unlawful, but when a group of people occupied a public place without an apparent purpose and in the company of a known gang member, police officers were authorized to order them to disperse, and the failure to obey such an order was made unlawful. See Chicago Municipal Code § 8-4—015 (1992). The minor limitation upon the free state of nature that this prophylactic arrangement imposed upon all Chicagoans seemed to them (and it seems to me) a small price to pay for liberation of their streets.
The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.
I
Respondents' consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
[75] That limitation was fully grasped by Tocqueville, in his famous chapter on the power of the judiciary in American society:
"The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.
. . . . .
"Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule . . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can [76] be accomplished only by the reiterated attacks of judicial functionaries." Democracy in America 73, 75-76 (R. Heffner ed. 1956).
As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):
"We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding."
And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):
"The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. . . . This Court, as is the case with all federal courts, `has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of [77] constitutional law broader than is required by the precise facts to which it is to be applied.' . . .Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. . . . The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined."
It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even non advisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?
I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-forbroke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he establish [78] that the statute was unconstitutional in all its applications. (I say that is an eminently reasonable requirement, not only because we should not be holding a statute void in all its applications unless it is unconstitutional in all its applications, but also because unless it is unconstitutional in all its applications we do not even know, without conducting an as-applied analysis, whether it is void with regard to the very litigant before us—whose case, after all, was the occasion for undertaking this inquiry in the first place.[1])
As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):
"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-
[79] stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an `overbreadth' doctrine outside the limited context of the First Amendment." (Emphasis added.)[2]
This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by Stevens, J.) (statute not implicating First Amendment rights is invalid on its face if "it is unconstitutional in every conceivable application"); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by Stevens, J.) (facial challenge asserts that a challenged statute or regulation is invalid "in every circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan, [80] 500 U. S. 173, 183 (1991); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); Webster v. Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) (O'Connor, J., concurring in part and concurring in judgment); New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).[3] Unsurprisingly, given the clarity of our general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial challenges.[4]
[81] I am aware, of course, that in some recent facial-challenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the "unconstitutional in every conceivable application" rule, when the statutes at issue concerned hot-button social issues on which "informed opinion" was zealously united. See Romer v. Evans, 517 U. S. 620, 643 (1996) (Scalia, J., dissenting) (homosexual rights); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) (abortion rights). But the present case does not even lend itself to such a "political correctness" exception—which, though illogical, is at least predictable. It is not à la mode to favor gang members and associated loiterers over the beleaguered law-abiding residents of the inner city.
When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law's application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents' facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:[5] Tony, a member of the Jets criminal street gang, is standing [82] alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago; the group is flashing gang signs and displaying their distinctive tattoos to passersby. Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement—not entirely coherent, but evidently intended to be rude—"Gee, Officer Krupke, krup you." A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the Justices in the majority do, but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it,I find it hard to believe that the Jets would not have known they had it coming. That should settle the matter of respondents' facial challenge to the ordinance's vagueness.
Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using [83] the sidewalks. The arresting officer issued a dispersal order, issued another dispersal order later when the group did not move, and finally arrested the group when they were found loitering in the same place still later. Finally, respondent Gregorio Gutierrez—who had previously admitted to the arresting officer his membership in the Latin Kings gang—was observed loitering with two other men. The officer issued a dispersal order, drove around the block, and arrested the men after finding them in the same place upon his return. See Brief for Petitioner 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even on the majority's assumption that to avoid vagueness it must be clear to the object of the dispersal order ex ante that his conduct is covered by the ordinance, it seems most improbable that any of these as-applied challenges would be sustained. Much less is it possible to say that the ordinance is invalid in all its applications.
II
The plurality's explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: "[This] is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights . . . . When vagueness permeates the text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) [H11501] (infringement of constitutionally protected right) [H11501] (vagueness) [H11505] (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.
But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes [84] it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental Freedom to Loiter, which it contrasts with such lesser, constitutionally un protected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business behavior and contains a scienter requirement. . . . It is a criminal law that contains no mens rea requirement . . . and infringes on constitutionally protected rights." Ante, at 55 (internal quotation marks omitted). (Poor Alexander Hamilton, who has seen his "commercial republic" devolve, in the eyes of the plurality, at least, into an "indolent republic," see The Federalist No. 6, p. 56; No. 11, pp. 84-91 (C. Rossiter ed. 1961).)
Of course every activity, even scratching one's head, can be called a "constitutional right" if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.
The plurality tosses around the term "constitutional right" in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. Justice Thomas recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the "right" result. Its opinion blithely proclaims: "Neither this history nor the scholarly [85] compendia in Justice Thomas' dissent, [ibid.,] persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause." Ante, at 54, n. 20. The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of socalled "substantive due process") is in my view judicial usurpation. But we have, recently at least, sought to limit the damage by tethering the courts' "right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702, 720-721 (1997), we explained our "established method" of substantive due process analysis: carefully and narrowly describing the asserted right, and then examining whether that right is manifested in "[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. Gerald D., 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. 494, 502-503 (1977). The plurality opinion not only ignores this necessary limitation, but it leaps far beyond any substantive-due-process atrocity we have ever committed, by actually placing the burden of proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a constitutional right, contenting itself with a (transparently inadequate) explanation of why the historical record of laws banning loitering does not positively contradict that proposition,[6] and the (transparently erroneous) assertion that the city of Chicago appears to have conceded the [86] point.[7] It is enough for the Members of the plurality that "history . . . [fails to] persuad[e] us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause," ante, at 54, n. 20 (emphasis added); they apparently think it quite unnecessary for anything to persuade them that it is.[8]
It would be unfair, however, to criticize the plurality's failed attempt to establish that loitering is a constitutionally [87] protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad "vagueness invalidates" rule to a liberty interest. As far as appears from Justice O'Connor's and Justice Breyer's opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of "gang members") unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to "move on"—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: "No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to uphold an "as-applied" challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true "liberty" interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders" is void in all its applications demands more than a safe and orderly society can reasonably deliver.
Justice Kennedy apparently recognizes this, since he acknowledges that "some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given," including, for example, an order "tell[ing] a pedestrian not to enter a building" when the reason is "to avoid impeding a rescue team." Ante, at 69 (opinion concurring in part and concurring in judgment). [88] But his only explanation of why the present interference with the "right to loiter" does not fall within that permitted scope of action is as follows: "The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance." Ibid. I have not the slightest idea what this means. But I do understand that the follow-up explanatory sentence, showing how this principle invalidates the present ordinance, applies equally to the rescue-team example that Justice Kennedy thinks is constitutional—as is demonstrated by substituting for references to the facts of the present case (shown in italics) references to his rescue-team hypothetical (shown in brackets): "A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order [order not to enter a building] based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating [what is going on in the building]; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a rescue team]." Ante, at 69-70.
III
I turn next to that element of the plurality's facialchallenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O'Connor, J., concurring in part and concurring in judgment); ante, at 69-70 (Kennedy, J., concurring in part and concurring in judgment); ante, at 72-73 (Breyer, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The [89] only part of the ordinance that refers to loitering is the portion that addresses, not the punishable conduct of the defendant, but what the police officer must observe before he can issue an order to disperse; and what he must observe is carefully defined in terms of what the defendant appears to be doing, not in terms of what the defendant is actually doing. The ordinance does not require that the defendant have been loitering (i. e., have been remaining in one place with no purpose), but rather that the police officer have observed him remaining in one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for a friend, for example, or waiting to hold up a bank) can be ordered to move on (assuming the other conditions of the ordinance are met), so long as his remaining has no apparent purpose. It is likely, to be sure, that the ordinance will come down most heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but that activity is not a condition for issuance of the dispersal order.
The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to "promptly obey" an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.
IV
Finally, I address the last of the three factors in the plurality's facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz overbreadth [90] standard applied in Kolender v. Lawson, 461 U. S. 352, 358, n. 8 (1983), which allows facial challenges if a law reaches "a substantial amount of constitutionally protected conduct," respondents' claim fails because the ordinance would not be vague in most or even a substantial number of applications. A law is unconstitutionally vague if its lack of definitive standards either (1) fails to apprise persons of ordinary intelligence of the prohibited conduct, or (2) encourages arbitrary and discriminatory enforcement. See, e. g., Grayned v. City of Rockford, 408 U. S. 104, 108 (1972).
The plurality relies primarily upon the first of these aspects. Since, it reasons, "the loitering is the conduct that the ordinance is designed to prohibit," and "an officer may issue an order only after prohibited conduct has already occurred," ante, at 58, 59, the order to disperse cannot itself serve "to apprise persons of ordinary intelligence of the prohibited conduct." What counts for purposes of vagueness analysis, however, is not what the ordinance is "designed to prohibit," but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality's suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.[9] If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the President, [91] before using the militia or the Armed Forces for law enforcement, to issue a proclamation ordering the insurgents to disperse. See 10 U. S. C. § 334. President Eisenhower's proclamation relating to the obstruction of court-ordered enrollment of black students in public schools at Little Rock, Arkansas, read as follows: "I . . .command all persons engaged in such obstruction of justice to cease and desist therefrom, and to disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil rights march from Selma to Montgomery, Alabama, to "disperse . . . forthwith"). See also Boos v. Barry, 485 U. S. 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a law allowing police officers to order congregations near foreign embassies to disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting vagueness challenge to the dispersal-order prong of a breach-of-the-peace statute and describing that prong as "narrow and specific").
For its determination of unconstitutional vagueness, the Court relies secondarily—and Justice O'Connor's and Justice Breyer's concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O'Connor, J., concurring in part and concurring in judgment); ante, at 72 (Breyer, J., concurring in part and concurring in judgment). In discussing whether Chicago's ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois' statement that the "apparent purpose" standard "provides absolute discretion to police officers to decide what activities constitute loitering," 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State's highest court. Ante, at [92] 61, 63 (majority opinion); ante, at 68 (O'Connor, J., concurring in part and concurring in judgment). The "absolute discretion" statement, however, is nothing more than the Illinois Supreme Court's characterization of what the language achieved—after that court refused (as I do) to read in any limitations that the words do not fairly contain. It is not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound).
The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to "reasonably believ[e]" that one of the group to which the order is issued is a "criminal street gang member." This resembles a probable-cause standard, and the Chicago Police Department's General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.[10] Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer's "experience and knowledge of the alleged offenders" and by "specific, documented and reliable information" such as reliable witness testimony or an individual's admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a—69a, 71a—72a.
Second, the ordinance requires that the group be "remain[ing] in any one place with no apparent purpose." Justice O'Connor's assertion that this applies to "any person standing [93] in a public place," ante, at 66, is a distortion. The ordinance does not apply to "standing," but to "remain[ing]"— a term which in this context obviously means "[to] endure or persist," see American Heritage Dictionary 1525 (1992). There may be some ambiguity at the margin, but "remain[ing] in one place" requires more than a temporary stop, and is clear in most of its applications, including all of those represented by the facts surrounding respondents' arrests described supra, at 82-83.
As for the phrase "with no apparent purpose": Justice O'Connor again distorts this adjectival phrase, by separating it from the word that it modifies. "[A]ny person standing on the street," her concurrence says, "has a general `purpose'—even if it is simply to stand," and thus "the ordinance permits police officers to choose which purposes are permissible. " Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who "remain in any one place with no apparent purpose"—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.[11]
The Court's attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: "The `no apparent purpose' standard for making [the decision to [94] issue an order to disperse] is inherently subjective because its application depends on whether some purpose is `apparent' to the officer on the scene." Ante, at 62. In the Court's view, a person's lack of any purpose in staying in one location is presumably an objective factor, and what the ordinance requires as a condition of an order to disperse— the absence of any apparent purpose—is a subjective factor. This side of the looking glass, just the opposite is true.
Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:
"In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she `shall'—order them to disperse." Ante, at 60.
Quite so. And the fact that this clear instruction to the officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the trade-off is worth it.[12]
[95] Justice Breyer's concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974), while at the same time asserting that a statute which "delegates too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion "wisely," ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes "too much discretion" to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well. Thus, what Justice Breyer gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our case law, including Parker v. Levy, supra.[13]
[96]
V
The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago's city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.
Justice O'Connor's concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that "directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of "a large collection of obviously brazen, insistent, and lawless gang members.") This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence's suggestion that such a law would be helpful by pointing out that the city already "has several laws that serve this purpose." Ante, at 52, n. 17 (plurality opinion) (citing extant laws against "intimidation," "street gang criminal drug conspiracy," and "mob action"). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.
[97] Justice O'Connor's concurrence also proffers another cure: "If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance's vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom the order can be issued: persons remaining in one place with no apparent purpose in the company of a gang member. And if "remain[ing] in one place with no apparent purpose" is so vague as to give the police unbridled discretion in controlling the conduct of nongang members, it surpasses understanding how it ceases to be so vague when applied to gang members alone. Surely gang members cannot be decreed to be outlaws, subject to the merest whim of the police as the rest of us are not.
* * *
The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority's real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As Justice O'Connor's concurrence says with disapprobation, "the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).
But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected, [98] and so long as the proscription has a rational basis, all sorts of perfectly harmless activity by millions of perfectly innocent people can be forbidden—riding a motorcycle without a safety helmet, for example, starting a campfire in a national forest, or selling a safe and effective drug not yet approved by the Food and Drug Administration. All of these acts are entirely innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been abridged. The citizens of Chicago have decided that depriving themselves of the freedom to "hang out" with a gang member is necessary to eliminate pervasive gang crime and intimidation—and that the elimination of the one is worth the deprivation of the other. This Court has no business second-guessing either the degree of necessity or the fairness of the trade.
I dissent from the judgment of the Court.
Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.
The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago's ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. "[A]ny fool would know that a particular category of conduct would be within [its] reach." Kolender v. Lawson, 461 U. S. 352, 370 (1983) (White, J.,dissenting). Nor does it violate the Due Process Clause. The asserted "freedom to loiter for innocent purposes," ante, at 53 (plurality opinion), is in no way "`deeply rooted in this Nation's history and tradition,' " Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (citation omitted). I dissent.
I
The human costs exacted by criminal street gangs are inestimable. In many of our Nation's cities, gangs have "[v]irtually [99] overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents." U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Assistance, Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. See U. S. Dept. of Justice, Attorney General's Report to the President, Coordinated Approach to the Challenge of Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small business owner who is literally crippled because he refuses to pay `protection' money to the neighborhood gang, to the families who are hostages within their homes, living in neighborhoods ruled by predatory drug trafficking gangs, the harmful impact of gang violence . . . is both physically and psychologically debilitating").
The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children's fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.[1] Many [100] of these criminal incidents and homicides result from gang "turf battles," which take place on the public streets and place innocent residents in grave danger. See U. S. Dept. of Justice, Office of Justice Programs, National Institute of Justice, Research in brief, C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec. 1993); U. S. Dept. of Justice, Office of Juvenile Justice and Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth Gang Drug Trafficking and Homicide: Policy and Program Implications (Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent Crimes and Major Offenders Section, FBI, Hearing on S. 54 before the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13 (1997) ("While street gangs may specialize in entrepreneurial activities like drug-dealing, their gang-related lethal violence is more likely to grow out of turf conflicts").
Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D'Ivory Gordon explained that she struggled just to walk to work:
"When I walk out my door, these guys are out there . . . .
. . . . .
"They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me . . . .
". . . I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them." Transcript of Proceedings before the City Council of [101] Chicago, Committee on Police and Fire 66-67 (May 15, 1992) (hereinafter Transcript).
Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: "We used to have a nice neighborhood. We don't have it anymore . . . . I am scared to go out in the daytime. . . . [Y]ou can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler." Id., at 93-95. Another long-time resident testified:
"I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .
. . . . .
"I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it's come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money or anything like that." Id., at 124-125.
Following these hearings, the council found that "criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas." App. to Pet. for Cert. 60a. It further found that the mere presence of gang members "intimidate[s] many law abiding citizens" and "creates a justifiable fear for the safety of persons and property in the area." Ibid. It is the product of this democratic process—the council's attempt to address these social ills—that we are asked to pass judgment upon today.
II
As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police [102] have the duty and the power to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it. The plurality, however, concludes that the city's commonsense effort to combat gang loitering fails constitutional scrutiny for two separate reasons—because it infringes upon gang members' constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter conclusion. I respectfully disagree.
A
We recently reconfirmed that "[o]ur Nation's history, legal traditions, and practices . . . provide the crucial `guide posts for responsible decision-making' . . . that direct and restrain our exposition of the Due Process Clause." Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe "those fundamental rights and liberties which are, objectively, `deeply rooted in this Nation's history and tradition' " offend the Due Process Clause. Glucksberg, supra, at 720-721.
The plurality asserts that "the freedom to loiter for innocent purposes is part of the `liberty' protected by the Due Process Clause of the Fourteenth Amendment." Ante, at 53. Yet it acknowledges—as it must—that "antiloitering ordinances have long existed in this country." Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) ("Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing `undesirable persons' from public before they have the opportunity to engage in criminal activity"). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to "persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause." Ante, at 54, [103] n. 20. Apparently, the plurality believes it sufficient to rest on the proposition that antiloitering laws represent an anachronistic throwback to an earlier, less sophisticated, era. For example, it expresses concern that some antivagrancy laws carried the penalty of slavery. Ibid. But this fact is irrelevant to our analysis of whether there is a constitutional right to loiter for innocent purposes. This case does not involve an antiloitering law carrying the penalty of slavery. The law at issue in this case criminalizes the failure to obey a police officer's order to disperse and imposes modest penalties, such as a fine of up to $500 and a prison sentence of up to six months.
The plurality's sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment's Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.[2] Vagrancy laws [104] were common in the decades preceding the ratification of the Fourteenth Amendment,[3] and remained on the books long after.[4]
[105] Tellingly, the plurality cites only three cases in support of the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one—decided more than 100 years after the ratification of the Fourteenth Amendment— actually addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to support the fundamental right that the plurality asserts.[5] However, the Court in Papachristou did not undertake the now-accepted analysis applied in substantive due process cases—it did not look to tradition to define the rights protected by the Due Process Clause. In any event, a careful reading of the opinion reveals that the Court never said anything about a constitutional right. The Court's holding was that the antiquarian language employed in the vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter—a doubtful proposition—it [106] does not compel the conclusion that the Constitution protects the right to loiter for innocent purposes. The plurality's contrary assertion calls to mind the warning that "[t]he Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. . . . [We] should be extremely reluctant to breathe still further substantive content into the Due Process Clause so as to strike down legislation adopted by a State or city to promote its welfare." Moore, 431 U. S., at 544 (White, J., dissenting). When "the Judiciary does so, it unavoidably pre-empts for itself another part of the governance of the country without express constitutional authority." Ibid.
B
The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality's view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.
1
At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers' failure to obey a police officer's order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs [107] 59 (1845) ("As the principal conservator of the peace in his county, and as the calm but irresistible minister of the law, the duty of the Sheriff is no less important than his authority is great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal law deals with offenses after they have been committed, the police power aims to prevent them. The activity of the police for the prevention of crime is partly such as needs no special legal authority"). Nor is the idea that the police are also peace officers simply a quaint anachronism. In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.[6]
In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:
[108] "It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby there unto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, side- walks, parks and places. " Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).
See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence" (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.[7] Even the ABA Standards for [109] Criminal Justice recognize that "[i]n day-to-day police experience there are innumerable situations in which police are called upon to order people not to block the sidewalk, not to congregate in a given place, and not to `loiter' . . . . The police may suspect the loiterer of considering engaging in some form of undesirable conduct that can be at least temporarily frustrated by ordering him or her to `move on.' " Standard 1-3.4(d), p. 1.88, and comments (2d ed. 1980, Supp. 1986).[8]
In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he "observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place," App. to Pet. for Cert. 61a, Chicago's ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as "probable cause" [110] and "reasonable suspicion," so we must trust them to determine whether a group of loiterers contains individuals (in this case members of criminal street gangs) whom the city has determined threaten the public peace. See Ornelas v. United States, 517 U. S. 690, 695, 700 (1996) ("Articulating precisely what `reasonable suspicion' and `probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. . . . [O]ur cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists" (citations and internal quotation marks omitted)). In sum, the Court's conclusion that the ordinance is impermissibly vague because it "`necessarily entrusts lawmaking to the momentto-moment judgment of the policeman on his beat,' " ante, at 60, cannot be reconciled with common sense, longstanding police practice, or this Court's Fourth Amendment jurisprudence.
The illogic of the Court's position becomes apparent when it opines that the ordinance's dispersal provision "would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'Connor, J., concurring in part and concurring in judgment) (endorsing Court's proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem "with respect to the adequacy of notice to the complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance's prohibition were limited [111] to loitering with "an apparently harmful purpose," the criminality of the conduct would continue to depend on its external appearance, rather than the loiterer's state of mind. See Black's Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to signify the defendant's guilty knowledge"). For this reason, the proposed alternative would neither satisfy the standard suggested in Hoffman Estates nor serve to channel police discretion. Indeed, an ordinance that required officers to ascertain whether a group of loiterers have "an apparently harmful purpose" would require them to exercise more discretion, not less. Furthermore, the ordinance in its current form—requiring the dispersal of groups that contain at least one gang member—actually vests less discretion in the police than would a law requiring that the police disperse groups that contain only gang members. Currently, an officer must reasonably suspect that one individual is a member of a gang. Under the plurality's proposed law, an officer would be required to make such a determination multiple times.
In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) ("A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid").
[112]
2
The plurality's conclusion that the ordinance "fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted," ante, at 60, is similarly untenable. There is nothing "vague" about an order to disperse.[9] While "we can never expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), itis safe to assume that the vast majority of people who are ordered by the police to "disperse and remove themselves from the area" will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.
Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, "in the sense that no standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—"If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, "persons of ordinary intelligence may maintain a common and accepted [113] meaning of the word `loiter.' " 177 Ill. 2d, at 451, 687 N. E. 2d, at 61.
Justice Stevens' contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as "innocent" conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered "innocent." Similarly, when a term has long been used to describe criminal conduct, the need to subject it to the "more stringent vagueness test" suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term "loiter" is no different from terms such as "fraud," "bribery," and "perjury." We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.[10]
The plurality also concludes that the definition of the term loiter—"to remain in any one place with no apparent purpose," [114] see 177 Ill.2d, at 445, 687 N. E. 2d, at 58—fails to provide adequate notice.[11] "It is difficult to imagine," the plurality posits, "how any citizen of the city of Chicago standing in a public place . . .would know if he or she had an `apparent purpose.' " Ante, at 56-57. The plurality underestimates the intellectual capacity of the citizens of Chicago. Persons of ordinary intelligence are perfectly capable of evaluating how outsiders perceive their conduct, and here "[i]t is self-evident that there is a whole range of conduct that anyone with at least a semblance of common sense would know is [loitering] and that would be covered by the statute." See Smith v. Goguen, 415 U. S. 566, 584 (1974) (White, J., concurring in judgment). Members of a group standing on the corner staring blankly into space, for example, are likely well aware that passersby would conclude that they have "no apparent purpose." In any event, because this is a facial challenge, the plurality's ability to hypothesize that some individuals, in some circumstances, may be unable to ascertain how their actions appear to outsiders is irrelevant to our analysis. Here, we are asked to determine whether the ordinance is "vague in all of its applications." Hoffman Estates, supra, at 497. The answer is unquestionably no.
* * *
Today, the Court focuses extensively on the "rights" of gang members and their companions. It can safely do so— the people who will have to live with the consequences of [115] today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living, and remain good citizens. As one resident described: "There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop." Transcript 126. By focusing exclusively on the imagined "rights" of the two percent, the Court today has denied our most vulnerable citizens the very thing that Justice Stevens, ante, at 54, elevates above all else—the "`freedom of movement.' " And that is a shame. I respectfully dissent.
[*] Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.
Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.
[1] The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice Thomas' dissenting opinion. Post, at 100-101.
[2] The ordinance states in pertinent part:
"(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.
"(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.
"(c) As used in this Section:
"(1) `Loiter' means to remain in any one place with no apparent purpose.
"(2) `Criminal street gang' means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
. . . . .
"(5) `Public place' means the public way and any other location open to the public, whether publicly or privately owned.
"(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.
"In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4—120 of this Code." Chicago Municipal Code § 8-4—015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a—63a.
[3] As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations into the ordinance itself." 177 Ill. 2d, at 446, 687 N. E. 2d, at 58-59.
[4] Presumably, these officers would also be able to arrest all nongang members who violate the ordinance.
[5] Tr. of Oral Arg. 22-23.
[6] The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43.
[7] Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998).
The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the "hotly contested debate raging among . . . experts over the causes of the decline in crime in New York City and nationally").
[8] See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379, 384, n. 26 (1995).
[9] Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a.
[10] Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995).
[11] Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 39a.
[12] Chicago v. Morales, Nos. 1-93-4039 et al. (Ill. App., Dec. 29, 1995), App. to Pet. for Cert. 37a.
[13] Chicago v. Youkhana, 277 Ill. App. 3d, at 106, 660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42.
[14] "The ordinance defines `loiter' to mean `to remain in any one place with no apparent purpose.' Chicago Municipal Code § 8-4—015(c)(1) (added June 17, 1992). People with entirely legitimate and lawful purposes will not always be able to make their purposes apparent to an observing police officer. For example, a person waiting to hail a taxi, resting on a corner during a jog, or stepping into a doorway to evade a rain shower has a perfectly legitimate purpose in all these scenarios; however, that purpose will rarely be apparent to an observer." 177 Ill. 2d, at 451— 452, 687 N. E. 2d, at 60-61.
[15] It stated: "Although the proscriptions of the ordinance are vague, the city council's intent in its enactment is clear and unambiguous. The city has declared gang members a public menace and determined that gang members are too adept at avoiding arrest for all the other crimes they commit. Accordingly, the city council crafted an exceptionally broad ordinance which could be used to sweep these intolerable and objectionable gang members from the city streets." Id., at 458, 687 N. E. 2d, at 64.
[16] Brief for Petitioner 14.
[17] In fact the city already has several laws that serve this purpose. See, e. g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992).
[18] Brief for Petitioner 17.
[19] See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice Scalia, post, at 83-86 (dissenting opinion), and Justice Thomas, post, at 102-106 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra.
[20] Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the "`Slavery acts' " provided for a 2-year enslavement period for anyone who "`liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U. S., at 161-162. These laws went virtually unchallenged in this country until attorneys became widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See Recent Developments, Constitutional Attacks on Vagrancy Laws, 20 Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used after the Civil War to keep former slaves in a state of quasi slavery. In 1865, for example, Alabama broadened its vagrancy statute to include "`any runaway, stubborn servant or child' " and "`a laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.' " T. Wilson, Black Codes of the South 76 (1965). The Reconstruction-era vagrancy laws had especially harsh consequences on African-American women and children. L. Kerber, No Constitutional Right to be Ladies: Women and the Obligations of Citizenship 50-69 (1998). Neither this history nor the scholarly compendia in Justice Thomas' dissent, post, at 102-106, persuades us that the right to engage in loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process Clause.
[21] The freewheeling and hypothetical character of Justice Scalia's discussion of liberty is epitomized by his assumption that citizens of Chicago, who were once "free to drive about the city" at whatever speed they wished, were the ones who decided to limit that freedom by adopting a speed limit. Post, at 73. History tells quite a different story.
In 1903, the Illinois Legislature passed "An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois." That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but only 8,000 cars (both private and commercial) registered in the entire United States. See Ward's Automotive Yearbook 230 (1990). Even though the number of cars in the country had increased to 77,400 by 1905, ibid., it seems quite clear that it was pedestrians, rather than drivers, who were primarily responsible for Illinois' decision to impose a speed limit.
[22] The burden of the first portion of Justice Scalia's dissent is virtually a facial challenge to the facial challenge doctrine. See post, at 74-83. He first lauds the "clarity of our general jurisprudence" in the method for assessing facial challenges and then states that the clear import of our cases is that, in order to mount a successful facial challenge, a plaintiff must "establish that no set of circumstances exists under which the Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739, 745 (1987). To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court, including Salerno itself (even though the defendants in that case did not claim that the statute was unconstitutional as applied to them, see id., at 745, n. 3, the Court nevertheless entertained their facial challenge). Since we, like the Illinois Supreme Court, conclude that vagueness permeates the ordinance, a facial challenge is appropriate.
We need not, however, resolve the viability of Salerno `s dictum, because this case comes to us from a state—not a federal—court. When asserting a facial challenge, a party seeks to vindicate not only his own rights, but those of others who may also be adversely impacted by the statute in question. In this sense, the threshold for facial challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not one mandated by Article III of the Constitution. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U. S. 947, 955 (1984). When a state court has reached the merits of a constitutional claim, "invoking prudential limitations on [the respondent's] assertion of jus tertii would serve no functional purpose." City of Revere v. Massachusetts Gen. Hospital, 463 U. S. 239, 243 (1983) (internal quotation marks omitted).
Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). Justice Scalia's assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts "essential principles of federalism." See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).
[23] The Solicitor General, while supporting the city's argument that the ordinance is constitutional, appears to recognize that the ordinance cannot be read literally without invoking intractable vagueness concerns. "[T]he purpose simply to stand on a corner cannot be an `apparent purpose' under the ordinance; if it were, the ordinance would prohibit nothing at all." Brief for United States as Amicus Curiae 12-13.
[24] 177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial courts that invalidated the ordinance gave the following illustration: "Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the `basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 48a—49a.
[25] See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826, 827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381, 394-395, 758 P. 2d 1046, 1052 (1988) (upholding ordinance criminalizing loitering for the purpose of engaging in or soliciting lewd act).
[26] See, e. g., State v. Richard, 108 Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof").
[27] Brief for Petitioner 31.
[28] In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104, 110 (1972). There, we found that the illegality of the underlying conduct was clear. "Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under . . . Kentucky's statute if he fails to obey an order to move on." Ibid.
[29] "Literally read . . . this ordinance says that a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city. The constitutional vice of so broad a provision needs no demonstration." 382 U. S.,at 90.
[30] As we have noted in a similar context: "If petitioners were held guilty of violating the Georgia statute because they disobeyed the officers, this case falls within the rule that a generally worded statute which is construed to punish conduct which cannot constitutionally be punished is unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the constitutionally permissible and constitutionally impermissible applications of the statute." Wright v. Georgia, 373 U. S. 284, 292 (1963).
[31] This critical fact distinguishes this case from Boos v. Barry, 485 U. S. 312, 329-330 (1988). There, we noted that the text of the relevant statute, read literally,may have been void for vagueness both on notice and on discretionary enforcement grounds. We then found, however, that the Court of Appeals had "provided a narrowing construction that alleviates both of these difficulties." Ibid.
[32] It is possible to read the mandatory language of the ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However, not even the city makes this argument, which flies in the face of common sense that all police officers must use some discretion in deciding when and where to enforce city ordinances.
[33] Justice Thomas' dissent overlooks the important distinction between this ordinance and those that authorize the police "to order groups of individuals who threaten the public peace to disperse." See post, at 107.
[34] Not all of the respondents in this case, for example, are gang members. The city admits that it was unable to prove that Morales is a gang member but justifies his arrest and conviction by the fact that Morales admitted "that he knew he was with criminal street gang members." Reply Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents in this case were charged in a document that only accused them of being in the presence of a gang member. Tr. of Oral Arg. 34, 58.
[35] This conclusion makes it unnecessary to reach the question whether the Illinois Supreme Court correctly decided that the ordinance is invalid as a deprivation of substantive due process. For this reason, Justice Thomas, see post, at 102-106, and Justice Scalia, see post, at 85-86, are mistaken when they assert that our decision must be analyzed under the framework for substantive due process set out in Washington v. Glucksberg, 521 U. S. 702 (1997).
[1] In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) ("A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law"); Parker v. Levy, 417 U. S. 733, 756 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness").
The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court "entertained" a facial challenge even though "the defendants . . . did not claim that the statute was unconstitutional as applied to them." Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be valid," 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies ("Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case," id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them.
[2] Salerno, a criminal case, repudiated the Court's statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed "even when [the statute] could conceivably have had some valid application." Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973).
[3] The plurality asserts that the Salerno standard for facial challenge "has never been the decisive factor in any decision of this Court." Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.
The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court's opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the "standing" question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says "all" (in addition to his own rights), the plurality says "many." That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable.
[4] See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth of Mass., 84 F. 3d 18, 20 (CA1 1996); Deshawn E. v. Safir, 156 F. 3d 340, 347 (CA2 1998); Artway v. Attorney Gen. of State of N. J., 81 F. 3d 1235, 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F. 3d 254, 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F. 3d 1096, 1104 (CA5), cert. denied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F. 3d 804, 809 (CA6 1997); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F. 2d 1267, 1283 (CA7 1992), cert.denied, 506 U. S. 1053 (1993);Woodis v. Westark Community College, 160 F. 3d 435, 438-439 (CA8 1998); Roulette v.Seattle, 97 F. 3d 300, 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CA10 1999); Dimmitt v. Clearwater, 985 F. 2d 1565, 1570— 1571 (CA11 1993); Time Warner Entertainment Co. v. FCC, 93 F. 3d 957, 972 (CADC 1996).
[5] With apologies for taking creative license with the work of Messrs. Bernstein, Sondheim, and Laurents. West Side Story, copyright 1959.
[6] The plurality's explanation for ignoring these laws is that many of them carried severe penalties and, during the Reconstruction era, they had "harsh consequences on African-American women and children." Ante, at 54, n. 20. Those severe penalties and those harsh consequences are certainly regrettable, but they in no way lessen (indeed, the harshness of penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental liberty.
[7] Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner's brief which reads: "Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process . . . . We address that doctrine in Part II below." Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term "social gatherings" in this passage with "loitering," his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: "[A]s we explain below, substantive due process does not support the court's novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection." Id., at 39.
[8] The plurality says, ante, at 64, n. 35, that since it decides the case on the basis of procedural due process rather than substantive due process, I am mistaken in analyzing its opinion "under the framework for substantive due process set out in Washington v. Glucksberg. " Ibid. But I am not analyzing it under that framework. I am simply assuming that when the plurality says (as an essential part of its reasoning) that "the right to loiter for innocent purposes is . . . a part of the liberty protected by the Due Process Clause" it does not believe that the same word ("liberty") means one thing for purposes of substantive due process and something else for purposes of procedural due process. There is no authority for that startling proposition. See Board of Regents of State Colleges v. Roth, 408 U. S. 564, 572-575 (1972) (rejecting procedural-due-process claim for lack of "liberty" interest, and citing substantive-due-process cases).
The plurality's opinion seeks to have it both ways, invoking the Fourteenth Amendment's august protection of "liberty" in defining the standard of certainty that it sets, but then, in identifying the conduct protected by that high standard, ignoring our extensive case law defining "liberty," and substituting, instead, all "harmless and innocent" conduct, ante, at 58.
[9] I call it a "suggestion" because the plurality says only that the terms of the dispersal order "compound the inadequacy of the notice," and acknowledges that they "might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear." Ante, at 59, 59-60. This notion that a prescription ("Disperse!") which is itself not unconstitutionally vague can somehow contribute to the unconstitutional vagueness of the entire scheme is full of mystery—suspending, as it does, the metaphysical principle that nothing can confer what it does not possess (nemo dat qui non habet) .
[10] "Administrative interpretation and implementation of a regulation are . .. highly relevant to our [vagueness] analysis, for `[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any limiting construction that a state court or enforcement agency has proffered.' " Ward v.Rock Against Racism, 491 U. S.781, 795-796 (1989) (emphasis added) (quoting Hoffman Estates, 455 U. S., at 494, n. 5). See also id., at 504 (administrative regulations "will often suffice to clarify a standard with an otherwise uncertain scope").
[11] Justice Breyer asserts that "one always has some apparent purpose," so that the policeman must "interpret the words `no apparent purpose' as meaning `no apparent purpose except for . . . .' " Ante, at 70. It is simply not true that "one always has some apparent purpose"—and especially not true that one always has some apparent purpose in remaining at rest, for the simple reason that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's normal state, unless he has a purpose which causes him to move. That is why one frequently reads of a person's "wandering aimlessly" (which is worthy of note) but not of a person's "sitting aimlessly" (which is not remarkable at all). And that is why a synonym for "purpose" is "motive": that which causes one to move.
[12] The Court speculates that a police officer may exercise his discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is inapplicable—viz., where there is an apparent purpose, but it is an unlawful one. See ante, at 62. No one in his right mind would read the phrase "without any apparent purpose" to mean anything other than "without any apparent lawful purpose." The implication that acts referred to approvingly in statutory language are "lawful" acts is routine. The Court asserts that the Illinois Supreme Court has forced it into this interpretive inanity because, since it "has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says . . . ." Ante, at 63. But the Illinois Supreme Court did not mention this particular interpretive issue, which has nothing to do with giving the ordinance a "limiting" interpretation, and everything to do with giving it its ordinary legal meaning.
[13] The opinion that Justice Breyer relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at 72-73, did not say that the ordinance there at issue gave adequate notice but did not provide adequate standards for the police. It invalidated that ordinance on both inadequatenotice and inadequate-enforcement-standard grounds, because First Amendment rights were implicated. It is common ground, however, that the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72 (Breyer, J., concurring in part and concurring in judgment).
[1] In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).
[2] See,e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprintedin 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprintedin First Laws of the State of Connecticut 206-210 (J.Cushing comp. 1982));Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J.Cushing comp. 1981));Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).
[3] See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky. Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N. Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII (1857). During the 19th century, this Court acknowledged the States' power to criminalize vagrancy on several occasions. See Mayor of New York v. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283, 425 (1849) (opinion of Wayne, J.); Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).
[4] See generally C. Tiedeman, Limitations of Police Power in the United States 116-117 (1886) ("The vagrant has been very appropriately described as the chrysalis of every species of criminal. A wanderer through the land, without home ties, idle, and without apparent means of support, what but criminality is to be expected from such a person? If vagrancy could be successfully combated . . . the infractions of the law would be reduced to a surprisingly small number; and it is not to be wondered at that an effort is so generally made to suppress vagrancy"). See also R. I. Gen. Stat., ch. 232, § 24 (1872); Ill. Rev. Stat., ch. 38, § 270 (1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch. 269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat., Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, § 1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky. Stat., ch. 132, § 4758 (1894); Ill. Rev. Stat., ch. 38, § 270 (1895); Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599 (1901); N. Y. Crim. Code § 887 (1902); Pa. Stat. §§ 21409, 21410 (1920); Ky. Stat. § 4758-1 (1922); Ala. Code, ch. 244, § 5571 (1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606 (1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code, Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim. Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal. Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953); Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437 (1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat. Ann. § 21-2409 (1964).
[5] The other cases upon which the plurality relies concern the entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270, 274-275 (1900); Kent v. Dulles, 357 U. S. 116 (1958). The plurality claims that dicta in those cases articulating a right of free movement, see Williams, supra, at 274; Kent, supra, at 125, also supports an individual's right to "remain in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business of importing out-of-state labor impeded the freedom of transit, so the precise holding in that case does not support, but undermines, the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the Court held only that Congress had not authorized the Secretary of State to deny certain passports. Furthermore, the plurality's approach distorts the principle articulated in those cases, stretching it to a level of generality that permits the Court to disregard the relevant historical evidence that should guide the analysis. Michael H. v. Gerald D., 491 U. S. 110, 127, n. 6 (1989) (plurality opinion).
[6] See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp. 1997) ("The Department of Arkansas State Police shall be conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989) ("All police appointed under this section shall see that the peace and good order of the State . . . be duly kept"); Ill. Comp. Stat., ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities shall be conservators of the peace"); La. Rev. Stat. Ann. § 40:1379 (West 1992) ("Police employees . . .shall . . . keep the peace and good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the police department shall be conservators of the peace, and shall be active and vigilant in the preservation of good order within the city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers are, by virtue of their appointment, constables and conservators of the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve the peace, to enforce the law and to prevent and detect crime"); 351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department . . . shall preserve the public peace, prevent and detect crime, police the streets and highways and enforce traffic statutes, ordinances and regulations relating thereto"); Tex. Code Crim. Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction"); Vt. Stat. Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary, unlawful disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police force . . . is responsible for the prevention and detection of crime, the apprehension of criminals, the safeguard of life and property, the preservation of peace and the enforcement of state and local laws, regulations, and ordinances").
[7] For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order: Ala. Code § 13A-11-6 (1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West 1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit. 11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann., Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho Code § 18-6410 (1997); Ill. Comp. Stat., ch. 720, § 5/251(e) (1998); Ky. Rev. Stat. Ann. §§ 525.060, 525.160 (Baldwin 1990); Me. Rev. Stat. Ann., Tit. 17A, § 502 (1983); Mass. Gen. Laws, ch. 269, § 2 (1992); Mich. Comp. Laws § 750.523 (1991); Minn. Stat. § 609.715 (1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. § 574.060 (1994); Mont. Code Ann. § 45-8-102 (1997); Nev. Rev. Stat. § 203.020 (1995); N. H. Rev. Stat. Ann. §§ 644:1, 644:2(II)(e) (1996); N. J. Stat. Ann. § 2C:33-1(b) (West 1995); N. Y. Penal Law § 240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999); N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. § 2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore. Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502 (1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. § 16-7-10(a) (1985); S. D. Codified Laws § 22-10-11 (1998); Tenn. Code Ann. § 39-17-305(2) (1997); Tex. Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104 (1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. § 18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev. Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. § 947.06(3) (1994).
[8] See also Ind. Code § 36-8-3-10(a) (1993) ("The police department shall, within the city: (1) preserve peace; (2) prevent offenses; (3) detect and arrest criminals; (4) suppress riots, mobs, and insurrections; (5) disperse unlawful and dangerous assemblages and assemblages that obstruct the free passage of public streets, sidewalks, parks, and places . . ."); Okla. Stat., Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff . . . to keep and preserve the peace of their respective counties, and to quiet and suppress all affrays, riots and unlawful assemblies and insurrections . . .").
[9] The plurality suggests, ante, at 59, that dispersal orders are, by their nature, vague. The plurality purports to distinguish its sweeping condemnation of dispersal orders from Colten v.Kentucky, 407 U. S. 104 (1972), but I see no principled ground for doing so. The logical implication of the plurality's assertion is that the police can never issue dispersal orders. For example, in the plurality's view, itis apparently unconstitutional for a police officer to ask a group of gawkers to move along in order to secure a crime scene.
[10] For example, a 1764 Georgia law declared that "all able bodied persons . . . who shall be found loitering . . . , all other idle vagrants, or disorderly persons wandering abroad without betaking themselves to some lawful employment or honest labor, shall be deemed and adjudged vagabonds," and required the apprehension of "any such vagabond . . . found within any county in this State, wandering, strolling, loitering about" (reprinted in First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing comp. 1981)). See also, e. g., Digest of Laws of Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following described persons shall be liable to the penalties imposed by law upon vagrants . . . . All persons who shall . . . be found loitering"); Ky. Rev. Stat., ch. CIV, § 1, p. 69 (1852) ("If any able bodied person be found loitering or rambling about, . . . he shall be taken and adjudged to be a vagrant, and guilty of a high misdemeanor").
[11] The Court asserts that we cannot second-guess the Illinois Supreme Court's conclusion that the definition "`provides absolute discretion to police officers to decide what activities constitute loitering,' "ante, at 61 (quoting 177 Ill.2d, at 457, 687 N. E. 2d, at 63). While we are bound by a state court's construction of a statute, the Illinois court "did not, strictly speaking, construe the [ordinance] in the sense of defining the meaning of a particular statutory word or phase. Rather, it merely characterized [its] `practical effect' . . . .This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476, 484 (1993).
7.2.8.2.1.4 Valenti v. Hartford City 7.2.8.2.1.4 Valenti v. Hartford City
BRIAN VALENTI, on his own behalf
and on behalf of a class of those similarly situated, Plaintiff,
v.
HARTFORD CITY, INDIANA, Defendant.
CAUSE NO: 1:15-CV-63-TLS
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION
December 1, 2016
OPINION AND ORDER
The Plaintiff, Brian Valenti, on behalf of himself and others similarly situated, has sued the City of Hartford City, Indiana. (See Class Action Compl. for Injunctive and Declaratory Relief and Individual Compl. for Damages, ECF No. 1.) The Plaintiff asserts that Hartford City Ordinance 2008-01, titled "Regulation of Sex Offenders," as amended by Ordinance 2015-10 (Amended Ordinance 2008-01 or the Ordinance), is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment, and violates the Indiana Constitution's prohibition against ex post facto punishment. For the due process challenge, the Court has certified a class pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2). (See Order, ECF No. 43.) The class includes all persons who currently, or will in the future, live in, work in, or visit Hartford City, Indiana, and who are, or will be, sex offenders as defined in Amended Ordinance 2008-01. The relief sought for the class is injunctive and declaratory.[1] The Plaintiff also seeks damages on his own behalf. The Plaintiff has moved for Partial Summary Judgment [ECF No. 34] as to liability. The Defendant responded by filing a Cross-Motion for Summary Judgment [ECF No. 37]. For the reasons stated herein, the Court grants in part and denies in part the Plaintiff's Motion for Partial Summary Judgment [ECF No. 34], and grants in part and denies in part the Defendant's Cross-Motion for Summary Judgment [ECF No. 37].
A. Sex Offender Ordinance
Ordinance 2008-1, Regulation of Sex Offenders, went into effect in Hartford City on February 4, 2008. It applies to any "Sex Offender," defined in the Ordinance as "an individual who has been convicted of or placed on deferred adjudication for a sexual offense involving a person under eighteen (18) years of age for which the individual is required to register as a sex offender under Indiana law IC-35-42-4 and IC-11-8-8." Hartford City, Ind., Ordinance 2008-1, 8.50.2 (2008). A Sex Offender violates the Ordinance if he or she knowingly enters a "Child Safety Zone." Id. 8.50.3.B. Child Safety Zones include:
public parks, private and public schools, public library, amusement arcades, video arcades, indoor and outdoor amusement centers, amusement parks, public or commercial and semi-private swimming pools, child care facility, child care institution, public or private athletic complexes, crisis center or shelter, skate park or rink, public or private youth center, movie theatre, bowling alley, scouting facilities, and Office of Protective Services.
Id. 8.50.2. It is also an offense under the Ordinance for a Sex Offender to "knowingly loiter on a public way within 300 feet of a Child Safety Zone." Id. 8.50.3.C. A "public way" is "any place to which the public or a substantial group of the public has access and includes, but [is] not limited to, streets, shopping centers, parking lots, transportation centers, restaurants, shops and similar areas that are open to the use of the public." Id. 8.50.2.
When the Ordinance was first enacted in February 2008, the term "loiter" was defined as "standing, sitting idly, whether or not the person is in a vehicle or remaining in or around an area." Id. After the Plaintiff initiated this litigation, Hartford City amended Ordinance 2008-01 to replace that definition of "loiter" with the following:
Loiter: means remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
Id. 8.50.2, as amended by Hartford City, Ind., Ordinance 2015-10 (2015).
The penalty for violating the Ordinance is a fine of up to $200 for each offense. Id. 8.50.6.
B. The Plaintiff
The Plaintiff moved to Hartford City in 2014 with his wife and minor child. In 1993, the Plaintiff was convicted in California of a sex offense involving a child under the age of 14, and is therefore required to register as a sex offender under Indiana law. Shortly after he moved to Hartford City, a member of the police department informed the Plaintiff about the Ordinance.
The Plaintiff alleges that the Ordinance has caused him to significantly curtail his activities in Hartford City, including going to the library with his child, entering his child's school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that when he lived in California, he would frequently go to his child's school to work with staff there because his child has learning disabilities, but that he is now unable to do so and his child has suffered because of this. Referring to the original definition, the Plaintiff asserts that he does not know what loiter means, nor does he know all the locations where it would be impermissible for him to loiter. He alleges that the restriction is burdensome, as he cannot wait in the parking lot of places where his child may go bowling or participate in or attend sporting events. In fact, the Plaintiff received a citation from the Hartford Police Department when he was a passenger in his brother's car, which was parked at his brother's house across the street from a school. He was waiting to be taken to pick up his own child from another school.
The Plaintiff asserts that the revised definition of loiter remains unclear and causes him uncertainty. He questions whether driving by a park three or four times in the course of running errands would be considered "circulating around a place." He also complains that the definition does not depend on what he is doing, but on how others might perceive it.
Summary judgment is warranted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court should only deny a motion for summary judgment when the nonmoving party presents admissible evidence that creates a genuine issue of material fact. Luster v. Ill. Dep't of Corrs., 652 F.3d 726, 731 (7th Cir. 2011) (first citing United States v. 5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir. 2010); then citing Swearnigen-El v. Cook Cnty. Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir. 2010)).
A. Ex Post Facto Punishment
The Plaintiff alleges that the Ordinance, as applied to him, violates the Indiana Constitution's prohibition against ex post facto punishment. He requests that the Court find that the Defendant is liable on this issue, and conduct a trial to determine his damages. The Defendant disagrees that the Ordinance retroactively punishes the Plaintiff, and requests summary judgment in its favor.
The Indiana Constitution provides that "[n]o ex post facto law . . . shall ever be passed." Ind. Const. art. I, 24. "The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties." Wallace v. State, 905 N.E.2d 371, 377 (Ind. 2009) (citing Armstrong v. State, 848 N.E.2d 1088, 1093 (Ind. 2006)).
In Wallace, the Indiana Supreme Court confronted an ex post facto challenge to the Indiana Sex Offender Registration Act (SORA), as brought by a defendant who had been charged and convicted with a sex offense and had served his sentence prior to the enactment of the statute. 905 N.E.2d at 373. In determining that the Act, as applied to the defendant, violated Indiana's ex post facto clause, the court adopted the "intents-effect" test, as articulated by the United States Supreme Court in Smith v. Doe, 538 U.S. 84 (2003) (upholding the constitutionality of Alaska's Sex Offender Registration Act). Wallace, 905 N.E.2d at 378; see also Tyson v. State, 51 N.E.3d 88, 93 (Ind. 2016) (noting the Indiana Supreme Court's adoption of "the Supreme Court's intent-effects test as the proper vehicle for analyzing whether [sex offender registration] statute[s] impose[] a punishmentwhich cannot be done retroactively pursuant to our Ex Post Facto Clauseor whether the statute[s ] [were] merely part of a non-punitive, regulatory scheme"). Under the intents-effects test, "a court first determines whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, then that ends the inquiry, because punishment results." Id. at 378 (citing Smith, 538 U.S. at 92). "If, however, the court concludes that the legislature intended a non-punitive regulatory scheme, then the court must further examine whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what had been intended as a civil regulatory scheme into a criminal penalty." Id. at 378 (citing Smith, 538 U.S. at 92).
Here, there is no dispute that the Defendant committed his criminal offense well before the Ordinance was enacted. Additionally, the parties do not dispute that the Ordinance was intended to advance a non-punitive purpose: public safety. The sole issue, then, is whether the Ordinance, as applied to the Defendant, is so punitive in effect that it has been transformed into a criminal penalty despite its regulatory intent.
1. Effects Test
As instructed by the Indiana Supreme Court in Wallace, when determining the "effects" of a regulatory scheme, the Court must weigh seven-factors:
"[1] Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishmentretribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned."
Id. at 379 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)) (footnotes omitted). No one factor is determinative. Id.
Notably, following the Wallace decision, the Indiana Court of Appeals decided Dowdell v. City of Jeffersonville, a case involving an ex post facto challenge to a city ordinance that prohibited convicted sex offenders from entering public parks. 907 N.E.2d 559, 562 (Ind. Ct. App. 2009). After weighing the seven factors, the court concluded that the ordinance, as applied to Dowdell, violated Indiana's ex post facto clause because "it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when [Dowdell's] crime was committed." Id. at 571.
The Defendant attempts to undercut the significance of Dowdell by pointing to Doe v. Town of Plainfield, 893 N.E.2d 1124 (Ind. Ct. App. 2008), a pre-Wallace decision in which the court of appeals found that a statute prohibiting sex offenders from entering public parks does not violate Indiana's ex-post facto clause. Although Town of Plainfield was decided prior to Wallace, the Defendant argues that the reasoning of Town of Plainfield remains applicable because the Indiana Supreme Court denied transfer on August 20, 2009, see Doe v. Town of Plainfield, 919 N.E.2d 549 (Ind. 2009), even though Wallace had already been decided. But as correctly noted by the Plaintiff, Rule 58(b) of the Indiana Rules of Appellate Procedure provides that "[t]he denial of a Petition to transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court." Accordingly, this Court does not consider the denial of transfer as indicating agreement with the Town of Plainfield decision and, when applying the seven-factors, places limited significance on Town of Plainfield. See Dowdell, 907 N.E.2d at 569 (noting that Town of Plainfield was decided "without the benefit of Wallace").
On the same day it issued Wallace, the Indiana Supreme Court issued Jensen v. State, 905 N.E.2d 384 (Ind. 2009), which also involved an ex post facto challenge to SORA. Unlike Wallace, who had served his sentence prior to the enactment of SORA, Jensen committed his offense after the legislature enacted SORA. Therefore, he challenged an expansion to SORA that required him to register as a sex offender for life, as opposed to the previously-enacted registration period of ten years. Id. at 389-90. The court concluded that SORA, as applied to Jensen, does not violate Indiana's ex post facto clause. Id. at 394. First, the court noted that the 2006 amendments had changed the duration of the registration requirements that already applied to Jensen upon his conviction, but had changed nothing else with regard to Jensen's actual disclosure requirements. 905 N.E.2d at 394. Second, Jensen, unlike Wallace, would be able to petition the court after ten years for reconsideration of his status as a sexually violent predator. Id.
The Defendant attempts to distinguish Wallace and Dowdell by characterizing the Plaintiff as a Jensen sex offender, as opposed to a Wallace sex offender. The Defendant contends that the Plaintiff is like Jensen because he was already required to register as a sex offender when the Ordinance was passed. While that may be true, he was not prohibited from entering Hartford City Child Safety Zones or loitering near those areas by virtue of that registration. Those restrictions first came about in 2008 when the Ordinance was passed. Were this case about extending the duration of existing registration requirements, the Court might grant the Defendant's point. However, in the context of this case and the Plaintiff's ex post facto claim, Jensen is not an applicable case.
The Court now turns to the seven-factor effects test to determine whether the Ordinance violates the Indiana Constitution's prohibition on ex post facto punishment.
a. Affirmative Disability or Restraint
In Dowdell, the Indiana Court of Appeals found that a city ordinance, which imposed a lifetime prohibition on convicted sex offenders from entering the city's public parks "is unquestionably a restraint." 907 N.E.2d at 566. As the court observed:
[m]uch of a community's social life occurs in public parksyouth and adult sporting events, picnics, community celebrations and events, to name but a fewand an ordinance that fully and forever prohibits one from taking part in such activitiesor from taking a walk in the parkis a real and significant restraint.
As for Dowdell specifically, he has a minor son who plays Little League games in Jeffersonville's parks, and in the past, Dowdell has been a Little League coach. Dowdell would like to attend his son's games. He would also like to enter the City's parks without his son to engage in various activities such as adult baseball, adult basketball, fishing, golf, watching fireworks over the Ohio River, and taking walks with his significant other. The Ordinance constitutes a significant restraint because it prohibits Dowdell from engaging in these social and familial activities.
Id.
Unlike the ordinance in Dowdell (or even the ordinance in Plainfield) the Ordinance here contains restrictions that extend beyond the Plaintiff's access to public parks. It also prohibits entry into, or loitering within 300 feet of, numerous additional venues: schools; public libraries; amusement arcades, centers, or parks; video arcades; non private swimming pools; child care facilities and institutions; public or private athletic complexes; crisis centers or shelters; skate parks or rinks; youth centers; movie theaters; bowling alleys; scouting facilities; and the Office of Protective Services. A Child Safety Zone Map [ECF No. 34-1] specific to Hartford City highlights as restricted areas several schools, parks, daycare facilities, a library, the Girl Scout House, baseball fields, the 4-H fairgrounds, a bowling alley, and the Department of Child Services.
The Plaintiff has presented evidence that the Ordinance forced him to refrain from going to the library with his child, entering his child's school, going to Hartford City parks, bowling with his family, attending church where there are separate youth services, joining the YMCA, having his child participate in YMCA activities, and voting at his designated polling place. The Plaintiff maintains that he is no longer able to go to his daughter's school to work with its staff, which is detrimental because she has learning disabilities. The Plaintiff was cited under the Ordinance for waiting as a passenger in his brother's car when it was parked at his brother's house, because it is located across the street from a Hartford City school.[2]
Considered as a whole, the Ordinance imposes substantial affirmative restraints on the Plaintiff that he did not have fair warning of when he committed his offense in 1988, or was convicted in 1993. This factor weighs in favor of treating the effects of the Ordinance as punitive when applied to the Plaintiff.
b. Historically Regarded as Punishment
In Wallace, the court found that the burdens imposed by SORA's registration requirements were comparable to the conditions of parole/probation, and therefore, the second factor "favors treating the effects of [SORA] as punitive when applied in this case." 905 N.E.2d at 380-81. Applying this reasoning, the Dowdell court reached the same conclusion:
The Wallace court went on to hold that if a statute's provisions are comparable to conditions of supervised probation or parole, then that fact, standing alone, suffices to support a conclusion that the effects of the statute are punitive. A prohibition on entering certain types of places is a very common condition of probation or parole. See, e.g., Fitzgerald v. State, 805 N.E.2d 857, 867-68 (Ind. Ct. App. 2004) (observing that "[c]onditions of probation which reduce the potential for access to potential victims are reasonable"). We can only conclude, therefore, that the Ordinance's ban on entering City parks . . . is akin to a condition of probation.
907 N.E.2d at 569; cf. Smith, 538 U.S. at 101 (concluding that Alaska's reporting requirements did not resemble parole or probation because, unlike parolees, "offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision").
Given the similarities between Hartford City Ordinance's restrictions and the type of scrutiny and restrictions that attach during supervised release or probation, this factor also weighs in favor of finding that the practical effects of the Ordinance are punitive.
c. Scienter Requirement
"If a sanction is not linked to a showing of mens rea, it is less likely to be intended as a punishment." Wallace, 905 N.E.2d at 381. In Wallace, the court concluded that the scienter requirement was met because almost all of the underlying sex crimes triggering SORA's obligations required a finding of scienter. Id.; see also Gonzalez v. State, 980 N.E.2d 312, 318 (Ind. 2013) (noting that the vast majority of offenses to which a registration statute applied required a showing of means rea). Here, the Ordinance defines "sex offender" as a person convicted of a sexual offense involving a person under eighteen years of age for which the person is required to "register as a sexual offender under Indiana Law IC 35-42-4 and IC-11-8-8." Ordinance 2008-1, 8.50.2. The Plaintiff meets the definition of Sex Offender and is subject to the Ordinance's restrictions because he was required to register as a sex or violent offender in another jurisdiction. See Ind. Code 11-8-8-5(b)(l ) (defining a "sex or violent offender" as "a person who is required to register as a sex or violent offender in any jurisdiction"). It has not been established, in the record before this Court, whether or not the Defendant's offense had a mens rea requirement. The Court is only aware that, because the Plaintiff was required to register in California, he was also required to register when he moved to Indiana. Accordingly, the Court assigns no weight to this factor.
d. Promotion of Traditional Aims of Punishment/Retribution and Deterrence
With respect to this factor, the Wallace court concluded that the registration and registry requirements were designed to have deterrent effects and that they promote community condemnation of offenders which includes the traditional aims of punishment. 905 N.E.2d at 382. "[I]t strains credulity to suppose that the Act's deterrent effect is not substantial, or that the Act does not promote 'community condemnation of the offender,' . . . both of which are included in the traditional aims of punishment." Id. (internal citation omitted). Likewise, in Dowdell, the court held that "[w]e can only conclude that the primary purposes of the Ordinance are deterrence and protection of the community by sequestration of the offender." 907 N.E.2d at 570.
The Sixth Circuit recently addressed this factor in connection with Michigan's Sex Offender Registration Act (SORA), which implements school zone restrictions. It wrote:
SORA advances all the traditional aims of punishment: incapacitation, retribution, and specific and general deterrence. Its very goal is incapacitation insofar as it seeks to keep sex offenders away from opportunities to reoffend. It is retributive in that it looks back at the offense (and nothing else) in imposing its restrictions, and it marks registrants as ones who cannot be fully admitted into the community. . . . Finally, its professed purpose is to deter recidivism . . . and it doubtless serves the purpose of general deterrence.
Does #1-5 v. Snyder, F.3d, Nos. 15-1536, 15-2346, 15-2486, 2016 WL 4473231, at *5 (Aug. 25, 2016). However, because many of these goals could also be described as civil and regulatory, the court gave this factor little weight. Id.
Here, the Ordinance states that its purpose is to "promote, protect and improve the health, safety and welfare of the citizens of Hartford City by creating areas around locations where children regularly congregate in concentrated numbers." Hartford City, Ind. 2008-1, 8.50.2. This purpose, as the Plaintiff admits, is intended to serve legitimate, regulatory purposes. The Plaintiff argues that it is, however, excessive in relation to its legitimate purpose, and that the excessiveness factor is the one many courts afford the greatest weight. See Wallace, 905 N.E.2d at 383 ("A number of courts give greatest weight to this factor.") (collecting cases); see also Flanders v. State, 955 N.E.2d 732, 751 (Ind. Ct. App. 2011) (according "special weight" to the seventh factor of whether a sanction appears excessive in relation to the alternative purpose assigned to it).
Finding that the Ordinance has valid regulatory purposes, the Court will assign this factor little weight. Whether the Ordinance is excessive in light of its intended purpose is discussed below.
e. Behavior is Already a Crime
When a "statute applies only to behavior that is already, and exclusively, criminal," it "supports a conclusion that its effects are punitive." Wallace, 905 N.E.2d at 382 (noting that a criminal conviction and "not merely the fact of the conduct and potential for recidivism" triggered the Act's obligations). Here, too, this factor weighs in favor of finding that the Ordinance has punitive impact on the Plaintiff.
f. Excessive in Relation to the Alternative Purpose Assigned
This factor requires the Court to consider "whether the [Ordinance] appears excessive in relation to the alternative purpose assigned." Wallace, 905 N.E.2d at 383 (quoting Mendoza-Martinez, 372 U.S. at 169). In Wallace, the court concluded that Indiana's sex offender registry and registration law was excessive given that it "makes information on all sex offenders available to the general public without restriction and without regard to whether the individual poses any particular future risk." Id. at 384. In Dowdell, the court concluded that the park ban was excessive given that Dowdell had been convicted in 1996 and his duty to register had expired before the enactment of the ordinance. 907 N.E.2d at 570. Although the ordinance in Dowdell contained a procedure potentially allowing an exemption, the court concluded that this procedure was "extremely narrow at best and illusory at worst," and therefore did "not ameliorate the excessiveness of the [o]rdinance." Id. at 571.
The Plaintiff's qualifying conviction is from 1993. The Ordinance invokes Indiana's registration statute, Ind. Code 11-8-8-5, which requires offenders who are under a registration obligation in another state to register when they move to Indiana. See Ind. Code 11-8-8-5(b)(1) (Supp. 2012) (defining a "sex or violent offender" as "a person who is required to register as a sex or violent offender in any jurisdiction"); Id. 11-8-8-19(f) ("A person who is required to register as a sex or violent offender in any jurisdiction shall register for the period required by the other jurisdiction or the period described in this section, whichever is longer.").An offender may petition to be relieved of the registration requirements based on a claim that the application of the law constitutes ex post facto punishment. Ind. Code 11-8-8-22. This relief, however, is not available to persons like the Plaintiff who committed their offenses prior to moving to Indiana and were under obligation to be registered in another state. See Tyson v. State, 51 N.E.3d 88, 96 (Ind. 2016); State v. Zerbe, 50 N.E.3d 368, 369-70 (Ind. 2016).
Thus, the Ordinance does not provide any means by which the Plaintiff can petition for an exemption to no longer be considered a Sex Offender. This is critical to the Court's inquiry. See Wallace, 905 N.E.2d at 384 (finding it "significant for this excessiveness inquiry that the Act provides no mechanism by which a registered sex offender can petition the court for relief from the obligation of continued registration and disclosure . . . even on the clearest proof of rehabilitation"); see also Gonzalez v. State, 980 N.E.2d 312, 320 (Ind. 2013). In Gonzalez, the court determined that, because the alternative purpose of the registration statute was to protect the public from repeat sexual crime offenders, ["t]he degree to which a prior offender has been rehabilitated and does not present a risk to the public is thus integral to our evaluation of whether an extension of the ten-year registration requirement is reasonable in relation to such public protection." 980 N.E.2d at 320 ("The availability of meaningful review of an offender's future dangerousness is therefore germane to the determination of whether a statute's effects are excessive.").
The Ordinance does not provide any particularized risk assessment, which increases the prospect that it exceeds its non-punitive purposes. See State v. Pollard, 908 N.E.2d 1145, 1153 (Ind. 2009) (finding that a residency restriction statute was excessive in relation to protecting children from sex offenders where it did "not consider the seriousness of the crime, the relationship between the victim and the offender, or an initial determination of the risk of re-offending"); cf. Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1017 (8th Cir. 2006) (noting that "particularized risk assessment of sex offenders . . . increases the likelihood that the residency restriction is not excessive in relation to the rational purpose of minimizing the risk of sex crimes against minors").
Moreover, because the Plaintiff is designated as a Sex Offender under the Ordinance, he is restricted from all areas designated as Child Safety Zones without regard to particularized risk. There is no mechanism for him to apply for an exception to any of the Ordinance's blanket restrictions in Child Safety Zones based on his particular circumstances. For example, the Plaintiff cannot petition for permission to enter his daughter's school to meet with her teachers, even under conditions that no reasonable person would think create a threat to children or to public safety. As applied to the Plaintiff, this is excessive in relation to the stated purpose.
2. Balancing the Factors
Having weighed the punitive and non-punitive nature of the seven factors as they apply to the Plaintiff and his circumstances, the Court finds that the effects of the Ordinance "are so punitive in nature as to constitute a criminal penalty." Gonzalez, 980 N.E.2d at 317 (citing Wallace, 905 N.E.2d at 378). The Ordinance imposes substantial affirmative restraints that are historically considered punishment and triggered by a past criminal conviction, and does so in a manner that is excessive in relation to the Ordinance's stated purpose. It violates the Indiana Constitution's prohibition on ex post facto laws because it imposes burdens that have the effect of inflicting greater punishment on the Plaintiff than what could have been imposed in 1988 when he committed the crime. The Plaintiff is entitled to a judgment that applying the Ordinance to him violates Indiana's ex post facto laws.
B. Vagueness
"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required." F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012) (first citing Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law"); then citing Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) ("Living under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids." (internal quotation marks and citation omitted))). This principle "addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)); Kolender v. Lawson, 461 U.S. 352, 357-358 (1983). Statutes carrying criminal penalties or implicating the exercise of constitutional rights are subject to a "more stringent" vagueness standard than are civil or economic regulations. Vill. of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).
In City of Chicago v. Morales, the Supreme Court confronted a vagueness challenge to an ordinance that prohibited "criminal street gang" members from "loitering" with one another or with other persons in any public place. 527 U.S. 45, 45-46 (1999). As explained by the Morales Court, a violation of the ordinance required four predicates:
First, the police officer must reasonably believe that at least one of the two or more persons present in a "public place" is a "criminal street gang membe[r]." Second, the persons must be "loitering," which the ordinance defines as "remain[ing] in any one place with no apparent purpose." Third, the officer must then order "all" of the persons to disperse and remove themselves "from the area." Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance.
Id. at 47 (internal quotation marks and citation omitted).
In a 6-3 ruling, the Court rendered the ordinance unconstitutional, finding that it failed to establish minimal guidelines for law enforcement, particularly as to whether a person is loitering "with no apparent purpose." 527 U.S. at 60-64. The majority specifically found that the definition of "loitering" confers "vast discretion" on the police, is "inherently subjective because its application depends on whether some purpose is 'apparent' to the officer on the scene," and "extends its scope to encompass harmless conduct." Id. at 61, 63.
A plurality of the Courtconsisting of Justices Stevens, Souter and Ginsburgalso found that the ordinance failed to provide adequate notice of prohibited conduct. Id. at 56-60. According to the plurality, "[i]t is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an 'apparent purpose'" Id. at 57, 60 (noting that the ordinance fails "to distinguish between innocent conduct and conduct threatening harm" and, in fact, reaches a "substantial amount of innocent conduct"). To illustrate this point, the Court cited a hypothetical offered by one of the trial courts that invalidated the ordinance:
Suppose a group of gang members were playing basketball in the park, while waiting for a drug delivery. Their apparent purpose is that they are in the park to play ball. The actual purpose is that they are waiting for drugs. Under this definition of loitering, a group of people innocently sitting in a park discussing their futures would be arrested, while the 'basketball players' awaiting a drug delivery would be left alone.
Id. at 57 n.24 (citing Chi. v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cnty., Sept. 29, 1993), App. to Pet. for Cert. 48a-49a). The plurality went on to observe that "state courts have uniformly invalidated laws that do not join the term 'loitering' with a second specific element of the crime." Id. at 58 (citing State v. Richard, 836 P.2d 622, 623 n.2 (Nev. 1992) (striking down a statute that made it unlawful "for any person to loiter or prowl upon the property of another without lawful business with the owner or occupant thereof")).[3]
In separate opinions concurring in part and concurring in the judgment, Justices O'Connor and Breyer emphasized the ordinance's lack of guidance for law enforcement:
As it has been construed by the Illinois [Supreme Court], Chicago's gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers. In particular, it fails to provide police with any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on the street has a general "purpose"even if it is simply to standthe ordinance permits police officers to choose which purposes are permissible.
In my view, the gang loitering ordinance could have been construed more narrowly. The term "loiter" might possibly be construed in a more limited fashion to mean "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities." Such a definition . . . would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court.
Id. at 65-66, 68 (O'Connor, J., concurring); see also id. at 71 (Breyer, J., concurring) ("The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case.").
1. The Pre-Amended Ordinance
The Court must determine whether the Pre-Amended Ordinancewhich prohibits sex offenders from loitering within 300 feet of a Child Safety Zone, and defines the term "loiter" as "standing, sitting idly, whether or not the person is in a vehicle or remaining in or around an area"is unconstitutionally vague.[4]
The Defendant argues that, unlike the ordinance struck down in Morales, the Pre-Amended Ordinance contained express limitations on its application; namely, it only prevented loitering within 300 feet of a "Child Safety Zone" and only applied to "sex offenders." According to the Defendant, such limitations "enable[] ordinary people to understand what conduct is prohibited" and prevent "arbitrary or discriminatory enforcement." (Def.'s Mem. 6, ECF No. 38.) The Defendant asserts that the Ordinance provided "[r]easonable certainty of the nature and cause of the offense." (Def.'s Reply 2, ECF No. 40.)
In support of the distinction, the Defendant cites to Grayned, where the Court considered the constitutionality of a disorderly conduct ordinance that prevented picketing or demonstrating on a public way within 150 feet of a school during certain hours. 408 U.S. at 107. The Court found that, while the question was close, the antinoise ordinance was not impermissibly vague because it was "clear what the ordinance as a whole prohibits," which was "deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities." Id. at 109, 110-11. The Court acknowledged that "the prohibited quantum of disturbance [was] not specified in the ordinance," but held that it was "apparent from the statute's announced purpose that the measure is whether normal school activity has been or is about to be disrupted." Id. at 112. The Court noted that enforcement would not be dependent on completely subjective standards because there had to be a "demonstrated interference with school activities." Id. at 114.
The Court thinks that Grayned, and the ordinance at issue in that case, are distinguishable from Hartford City's Pre-Amendment Ordinance. The ordinance in Grayned prohibited only actual or imminent interference with normal school activity, and, as such, was not a broad invitation to discriminatory enforcement. Here, a sex offender violates the Ordinance if he is "standing, sitting idly, whether or not [he] is in a vehicle" or is "remaining in or around an area" that is within a certain distance of a Child Safety Zone. Ordinance 2008-1, 8.50.2. There is no indication of how long a person must be standing or sitting, or remaining in an area, before he is in violation of the Ordinance. This subjective standard is not tied to any other objective criteria by which enforcement would be required to rely upon before finding a violation. The prohibited conduct is not easily measured against normal activities in the community, and does not sufficiently define the line between prohibited and permissible conduct. For example, the YMCA in Hartford City, which is a Child Safety Zone, is within 300 feet of a grocery store and a restaurant. Normal community activity would include sitting at a table in the restaurant, or even sitting in a car waiting for a take-out order. Both restaurants and parking lots are included in the definition of a "public way" where loitering (sitting idly) is prohibited. Whether sitting in the restaurant is a violation of the Ordinance depends on how a police officer would subjectively choose to characterize the purpose. As the Plaintiff notes, even the Defendant's representative, the Chief of Police for Hartford City, testified that the former definition of loiter was dependent for its meaning on the discretion of the police officers charged with enforcing Hartford City's laws. (Mealey Dep. 22-23, ECF No. 34-1.)
In defense of the Pre-Amendment definition of loiter, the Defendant cites to cases from other circuits where criminal defendants made unsuccessful challenges to restrictions on sex offenders' movement, including where they could "loiter." See United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 2012) (holding that it was not plain error to impose anti-loitering provision as condition of supervised release for defendant convicted of knowingly coercing and enticing a minor to engage in sexual activity); United States v. Oliphant, 456 F. App'x 456, 458-59 (5th Cir. 2012) (upholding against vagueness challenge condition stating that defendant "shall not have access to or loiter near school grounds, parks, arcades, playgrounds, amusement parks or other places where children by [sic] frequently congregate"); United States v. Burroughs, 613 F.3d 233, 246 & n. 3 (D.C. Cir. 2010) (upholding against vagueness challenge condition barring defendant from "loiter[ing] in any place where children congregate"). These criminal cases are not instructive; they do not involve any analysis of the term loitering.
It is true that the proscription's application to a discrete group of people, and to limited areas of Hartford City, made the Pre-Amendment Ordinance less problematic than the anti-loitering ordinance in Morales. However, the constraints about what that group of people could do in those areas is still too vague to satisfy due process. The Pre-Amended Ordinance "entrust[ed] lawmaking 'to the moment-to-moment judgment of the policeman on his beat.'" Smith v. Goguen, 415 U.S. 566, 575 (1974) (quoting Gregory v. City of Chi, 394 U.S. 111, 120 (1969) (Black, J., concurring)). Because the Pre-Amended Ordinance encouraged arbitrary enforcement by failing to describe with sufficient particularity what activity violated the Ordinance, the Court grants summary judgment to the Plaintiff on his claim that the Pre-Amended Ordinance was unconstitutionally vague on its face.
2. The Amended Ordinance
The Amended Ordinance replaced the original definition of "loiter" (i.e., "standing, sitting idly, whether or not the person is in a vehicle or remaining in or around an area") with the following:
Loiter: means remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
Ordinance 2008-01, 8.50.2, as amended by Ordinance 2015-10.
The amended definition is nearly identical to language upheld in State v. Showens, 845 N.W.2d 436 (Iowa 2014), a case involving an anti-loitering statute that subjected sex offenders to certain "exclusion zones."[5] In upholding the statute, the Iowa Supreme Court construed Morales as indicating that "a definition of loitering would be constitutional if it was limited to hanging out that had an apparently improper purpose." Id. at 444 (citing Morales, 527 U.S. at 62; id. at 87 (O'Connor, J., concurring)).
To avoid the constitutional problems noted in Morales, the Iowa statute needs to be interpreted as limited to loitering with some apparently improper purpose, as opposed to generalized loitering or loitering with no apparent purpose. Generally speaking, the words of the statute already take us there. Thus, staying in one place is criminally prohibited only if a reasonable person would believe the purpose or effect of the behavior is (a) "to become familiar with a location where a potential victim may be found," (b) "to satisfy an unlawful sexual desire," or (c) "to locate, lure, or harass a potential victim."
Id. at 445 (citation omitted). The court concluded, without discussion, that alternatives (b) and (c) (i.e., "to satisfy an unlawful sexual desire" or "to locate, lure, or harass a potential victim") are improper purposes that avoid vagueness issues; and also concluded, with extended discussion, that alternative (a) (i.e., "to become familiar with a location where a potential victim may be found") is also an improper purpose.
To support its ruling, the Showens court cited State v. Stark, 802 N.W.2d 165 (S.D. 2011), another case involving an anti-loitering statute that prohibited convicted sex offenders from loitering in a "community safe zone."[6] Finding that the statute provided adequate notice of prohibited conduct, the South Dakota Supreme Court attempted to distinguish Morales as follows:
First, [the statute] only applies to persons required to register as sex offenders in South Dakota, a meticulously defined class of individuals. Compare Morales, 527 U.S. at 62-63. Second, by defining the term "community safety zone," [the statute] describes the precise area to which [the statute] applies. The statute does not use amorphous terms like "neighborhood" or "locality," which are "elastic and dependent upon the circumstances." See Connally v. Gen. Constr. Co., 269 U.S. 385, 395 (1926) (finding that vagueness in a criminal statute was exacerbated by use of the terms "neighborhood" and "locality"). Finally, and perhaps most importantly, [the statute] distinguishes between innocent and harmful conduct. By requiring that the loitering be "for the primary purpose of observing or contacting minors," the South Dakota Legislature limited the statute's application to loitering that has an "apparently harmful purpose or effect." Compare Morales, 527 U.S. at 62.
Id. at 171 (parallel citations omitted).
The Plaintiff urges the Court to reject the reasoning of Showens and Stark because neither of the statutes upheld in those cases sufficiently distinguished between innocent conduct and conduct threatening harm. As the Plaintiff points out, in Doe v. Snyder, a federal district court implicitly rejected both Showens and Stark by striking down an ordinance that prohibited sex offenders from loitering within 1,000 feet of school property. There, "loiter" was defined as "remain[ing] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors." 101 F. Supp. 3d 672, 685 (E.D. Mich. 2015). Relying on the reasoning of the plurality in Morales, the district court stated the following:
[J]ust as it would be difficult to determine if a Chicagoan were standing in a place with no apparent purpose, in many circumstances, it would be difficultperhaps not as difficult, but difficult nonethelessto determine if a[n individual] were standing in an exclusionary zone "apparently" for the specific, primary purpose of observing or contacting minors. Conduct such as a registrant starting a conversation with a minor, videotaping a minor, or standing on a playground by himself watching minors, would likely fall within the definition of "loitering" with little room for a registrant to argue ambiguity. However, it remains ambiguous whether a registrant may attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present. The Morales plurality explained that "the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law [because] '[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.'" 527 U.S. at 57 (quoting Lanzetta v. New Jersey, 306 U.S. 451 (1939)). [The statute's] present definition of "loiter" is sufficiently vague as to prevent ordinary people using common sense from being able to determine whether Plaintiffs are, in fact, prohibited from engaging in the conduct from which Plaintiffs have refrained.
Id. at 686.[7]
The Court cannot see how the ambiguities cited by the litigants and the court in Doe v. Snyder, 101 F. Supp. 3d at 686, such as whether a registrant could attend a school movie night where he intends only to watch the screen, or a parent-teacher conference where students may be present, would exist in this case. The Ordinance makes it an offense "for a Sex Offender to knowingly enter a Child Safety Zone." Thus, there is no ambiguity regarding whether entry into a school is allowed, no matter the purpose. It is not. The only ambiguities that could exist, then, are those pertaining to public ways within 300 feet of a Child Safety Zone.
With respect to those areas, the Ordinance prevents identified Sex Offenders from remaining in a place or circulating around it, but only under circumstances that would warrant "a reasonable person" to believe that the "primary purpose or effect" of remaining in the place or circulating around it was "to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim." The Plaintiff is concerned that innocent conduct, such as sitting on a bench reading a newspaper, could be construed as loitering if a police officer discerns an improper motive. He claims the law cannot withstand constitutional scrutiny because it would penalize behavior that others may think is a precursor to criminal or prohibited behavior, even though the person has not actually engaged in or attempted such behavior. Thus, he argues, the Amended Ordinance does not tie loitering to an overt act or mens rea.
As an initial matter, the Court notes that due process does not require that the loitering also constitute a separate crime before it can be regulated, only that it involve an "apparently harmful purpose or effect." Morales, 527 U.S. at 62-63. The Amended Ordinance attempts to meet this standard. The purpose of the Amended Ordinance is to promote and protect the "health, safety and welfare of children." Ordinance 2008-1, 8.50.1. To accomplish this, the Amended Ordinance extends beyond generalized loitering. It requires that the circumstances connected with staying in or circulating around a place suggest to a reasonable person that the sexual offender has knowingly selected that location based primarily on its access to children and the fulfillment of desires or taking of action that would be harmful to children. Thus, it contains a specific intent requirement related to a harmful purpose or effect.
However, the Court finds that it remains ambiguous what kind of circumstances would suggest to a reasonable person that the reason a person is loitering is to accomplish one of these prohibited purposes. The Court is particularly concerned with the language pertaining to "satisfy[ing] an unlawful sexual desire," as a determination of whether a person has such an intent requires an assessment of his thoughts. The Ordinance does not provide minimum guidelines to govern law enforcement's determination of what kind of circumstances would suggest that a person's purpose is to satisfy an unlawful sexual desire. That the Ordinance does not sufficiently distinguished between innocent conduct and conduct threatening harm is highlighted by the parties's arguments related to the Plaintiff's example of sitting on a bench reading a newspaper. The Defendant submits that the Plaintiff is misreading the Amended Ordinance, and that passively sitting on the park bench is not punishable because the Ordinance requires that the "primary purpose or effect of the behavior is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure or harass a potential victim." (Def.'s Reply in Supp. of Cross-Mot. for Summ. J. 4, ECF No. 40.) Thus, the Defendant argues, the person's behavior must actually threaten harm. Therefore, a police officer could not sanction him for having an improper motive because "there is no act or conduct that is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure or harass a potential victim." (Id.)
However, actions, such as sitting on a park bench, cannot be viewed in a fact barren vacuum. In presenting the scenario, the Plaintiff offered no other facts or circumstances. However, neither did the Defendant when it claimed that it could not be considered a violation of the Ordinance. Whether the act of sitting on the bench is prohibited by the Amended Ordinance is dependent on those other facts. The Defendant claims that those other facts must include the behavior that the person is engaging in, beyond merely remaining in a Child Safety Zone. The Court's reading of the Ordinance, however, reveals that "the behavior" at issue is the behavior of "remaining in a place or circulating around a place." As currently drafted, the Ordinance's definition of loiter is understood as follows, with the implied language contained in brackets:
Loiter: means remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the primary purpose or effect of the behavior [of remaining in a place of circulating around a place] is to enable a sex offender to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
There is, then, no requirement on those enforcing the Ordinance to point to additional conduct or behavior. They need only point to the circumstances of the loitering, which could be entirely apart from anything the Sex Offender is doing while he remains in a place.
For example, in the scenario where a person is sitting on a bench reading a paper, the apparent purpose might be to enjoy the outdoors and catch up on daily news. However, if it is a time of day when children are congregating, unsupervised, and readily visible, would those circumstances be sufficient to suggest another primary purposeeven if the person sitting on the bench does nothing different? Does the analysis change if the person has no obvious legitimate reason for choosing that bench over one in another, less kid-populated, area? Even if the person sitting on the bench altered his conduct in some way, police would still be required to guess as to his thoughts. A particular smile or look might be thought to suggest "satisfaction" of an unlawful sexual desire. Perhaps crossing his legs would suffice. Certainly, taking additional steps to engage children would put the circumstances over the line into prohibited conduct. The problem is that there is much ambiguity between allowable and prohibited conduct, and no way to prevent those charged with enforcing the Ordinance from engaging in arbitrary and discriminatory enforcement.
The Court is aware that absolute precision is not the standard. See Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971) (explaining that an ordinance was vague, "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all"); Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (stating that the due process clause does not demand "perfect clarity and precise guidance"); see also United States v. Niemoeller, 2:09-CR-1, 2003 WL 1563863, at *4 (S.D. Ind. Jan. 24, 2003) (The statute "may not provide absolute certainty in every case in which a person seeks to experiment in reaching the outermost boundaries of lawful conduct, but that is not the standard for due process. On its face, the statute gives fair notice to persons of average intelligence of the conduct proscribed."). The Court thinks the portion of the Ordinance referring to unlawful sexual desires is vague in the sense that it specifies no standard of conduct.
Additionally, while attempting to "lure or harass" a child would require some action beyond simply remaining in a place, one of the other harmful purposes that is identified in the Ordinance would not require any such action. The Court finds that whether a person who is remaining within 300 feet of a Child Safety Zone is attempting to "locate" a "potential victim" would invite police officers to guess at the person's intent, potentially without the benefit of any action other than sitting in proximity to children. The Ordinance thus fails to provide adequate guidance and authorizes arbitrary and discriminatory enforcement.
Finally, the Plaintiff challenges the definition's use of the term "circulating around a place." He argues that it has no obvious meaning. As with remaining in a place, circulating around it will only be prohibited if the circumstances would suggest to a reasonable person that the primary purpose is to target children as described in the Ordinance. Thus, to the extent itremains unclear what circumstances would reasonably suggest these prohibited reasons for remaining in a place, it remains unclear for circulating around a place.
C. Injunctive Relief
In his Motion for Partial Summary Judgment, the Plaintiff requests that the Court "[p]ermanently enjoin Ordinance 2008-01." (Mot. 2, ECF No. 34.) The specifics of that request are not clear. If the Plaintiff is asking that the Defendant be enjoined from enforcing the Ordinance against him because it would be an ex post facto punishment, the Court agrees. If the Plaintiff is asking that the Ordinance be permanently enjoined as to all individuals or all class members, the Court does not find a basis for that request. It is only the inclusion of the loitering prohibition that creates a due process violation. The remainder of the Ordinance has not been challenged, and remains intact and enforceable. Thus, to the extent the Plaintiff seeks to permanently enjoin all enforcement of the Ordinance against the class members, that request is denied.
For the reasons stated above, the Court GRANTS IN PART AND DENIES IN PART the Plaintiff's Motion for Partial Summary Judgment [ECF No. 34], and DENIES the Defendant's Cross-Motion for Summary Judgment [ECF No. 37]. Because Hartford City Ordinance 2008-01 violates Indiana Constitution Art. 1, 24, as applied to the Plaintiff, the Defendant is enjoined from enforcing it against the Plaintiff. The Pre-Amendment Ordinance definition of loiter violated due process. By separate order, the Court will set a telephone status conference to set a trial to determine the Plaintiff's individual damages. The amended definition of loiter also violates the Fourteenth Amendment, and the Defendant is enjoined from imposing fines for any violation of the loitering prohibition contained in Ordinance 2008-1.
The Court will enter a final judgment outlining the appropriate relief after resolution of the entire case.
SO ORDERED on December 1, 2016.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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Footnotes:
[1] Although the Plaintiff originally requested certification of a sub-class for persons who committed their qualifying sex offense prior to February 4, 2008 (the effective date of the Ordinance), this request has been withdrawn.
[2] The Plaintiff was cited under the original definition of loitering.
[3] Somewhat controversially, the plurality also noted that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment":
We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164 (1972). Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is "a part of our heritage," Kent v. Dulles, 357 U.S. 116, 126 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).
Id. at 53 (parallel citations omitted). But see Doe v. City of Lafayette, Ind., 377 F.3d 757, 772-73 (7th Cir. 2004) (noting that it is "quite improbable that Justice Stevens, undertook a fundamental rights analysis," and therefore, the plurality opinion "cannot be read as the Supreme Court's mandating that a right to loiter in all places deemed 'public' is a fundamental liberty interest.").
[4] Although the Amended Ordinance mooted the Plaintiff's claim for injunctive relief (as raised on his own behalf and on behalf of the class), the Plaintiff is seeking damages under both versions of the Ordinance.
[5] In Showens,"loitering" was defined as:
remaining in a place or circulating around a place under circumstances that would warrant a reasonable person to believe that the purpose or effect of the behavior is to enable a sex offender to become familiar with a location where a potential victim may be found, or to satisfy an unlawful sexual desire, or to locate, lure, or harass a potential victim.
854 N.W.2d at 440.
[6] In Stark, "loitering" was defined as "'remain[ing] for a period of time and under circumstances that a reasonable person would determine is for the primary purpose of observing or contacting minors.'" 802 N.W.2d at 168.
[7] With regard to an ex post facto challenge, however, the district court concluded that the law's lifetime registration requirement was not unconstitutional. Id. at 705. On appeal, the Sixth Circuit reversed the district court's ex post facto ruling, concluding that the Michigan Sex Offender Registration Act is unconstitutionally retroactive in violation of the Constitution's prohibition on ex post facto punishment. Snyder, F.3d , 2016 WL 4473231, at *7. Given this holding, the court found it unnecessary to rule on the other issues presented, including the vagueness issue, even though they were "far from frivolous and involve[d] matters of great public importance." Id. (declining to address the plaintiff's other challenges because the contested provisions would not apply to the plaintiffs "and anything we would say on those other matters would be dicta").
Here, despite its ex post facto determination, the Court must still decide the due process claim because the matter is certified as a class that includes persons who will visit, live, or work in Hartford City in the future and would be subject to the Ordinance. This class definition includes persons who committed their qualifying sex offense after 2008.
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7.2.8.2.1.5. Kelling and Wilson - "Broken Windows: The Police and Neighborhood Safety"
7.2.8.2.1.6 Lawrence v. Texas 7.2.8.2.1.6 Lawrence v. Texas
We have just read a few cases that illustrate the concept of legality in terms of the legal institutions that define crimes, the importance of notice, and the dangers of vagueness. Legality, however, goes beyond these somewhat procedural issues to implicate questions of substance: what conduct can a just society legally punish in the first place? Our next case, Lawrence v. Texas, grapples with this question.
LAWRENCE et al.
v.
TEXAS
Supreme Court of United States.
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT
[559] [560] [561] KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 579. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 586. THOMAS, J., filed a dissenting opinion, post, p. 605.
Paul M. Smith argued the cause for petitioners. With him on the briefs were William M. Hohengarten, Daniel Mach, Mitchell Katine, Ruth E. Harlow, Patricia M. Logue, and Susan L. Sommer.
Charles A. Rosenthal, Jr., argued the cause for respondent. With him on the brief were William J. Delmore III and Scott A. Durfee.[*]
[562] JUSTICE KENNEDY delivered the opinion of the Court.
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions.
I
The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace.
The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows:
"(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or"(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1).
The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a.
The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U. S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper.
[564] We granted certiorari, 537 U. S. 1044 (2002), to consider three questions:
1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of the laws.2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.3. Whether Bowers v. Hardwick, supra, should be overruled? See Pet. for Cert. i.
The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual.
II
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965).
In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and [565] placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.
After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U. S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:
"It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id., at 453.
The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U. S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person.
[566] In Carey v. Population Services Int'l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.
The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U. S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id., at 214 (opinion of Stevens, J.,joined by Brennan and Marshall, JJ.).
The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so [567] for a very long time." Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions [568] in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.
At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.
Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals.
To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character.
The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18.
It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, [571] 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.
It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).
Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U. S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, Hardwick and Historiography, 1999 U. Ill. L. Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis, 523 U. S. 833, 857 (1998) (Kennedy, J., concurring).
This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16.
In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U. S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197-198, n. 2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct").
The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1.
Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.
In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943.
Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
"These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right.
The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id., at 634.
As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude [575] the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.
Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.
The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U. S. 84 (2003); Connecticut Dept. of Public Safety v. Doe, 538 U. S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann. §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S. C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example.
The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Powell v. State, 270 Ga. 327, 510 S. E. 2d 18, 24 (1998); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992).
To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 (Eur. Ct. H. R., Sept. 25, 2001); Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.
The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U. S. 808, 828 (1991) ("Stare decisis is not an inexorable command; rather, it `is a principle of policy and not a mechanical formula of adherence to the latest decision' " (quoting Helvering v. Hallock, 309 U. S. 106, 119 (1940))). In Casey we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U. S., at 855-856; see also id., at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding.
The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions:
"Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional [578] attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U. S., at 216 (footnotes and citations omitted).
JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here.
Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.
The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.
The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE O'CONNOR, concurring in the judgment.
The Court today overrules Bowers v. Hardwick, 478 U. S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause.
The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 439 (1985); see also Plyler v. Doe, 457 U. S. 202, 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra, at 440; see also Department of Agriculture v. Moreno, 413 U. S. 528, 534 (1973); Romer v. Evans, 517 U. S. 620, 632-633 (1996); Nordlinger v. Hahn, 505 U. S. 1, 11-12 (1992).
Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.
We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "`discriminate against hippies.'" 413 U. S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535-538. In Eisenstadt v. Baird, 405 U. S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"—specifically, homosexuals. 517 U. S., at 632.
[581] The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06.
The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct—and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. It appears that petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e. g., Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251(a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e. g., Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S. C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante, at 575-576.
And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992).
Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers, we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U. S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id., at 188, n. 2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished.
This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e. g., Department of Agriculture v. Moreno, 413 U. S., at 534; Romer v. Evans, 517 U. S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
[583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id., at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id., at 634.
Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575.
Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "homosexual" [584] "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U. S., at 633. The same is true here. The Equal Protection Clause "`neither knows nor tolerates classes among citizens.'" Id., at 623 (quoting Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (Harlan, J., dissenting)).
A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe, 457 U. S., at 239 (Powell, J., concurring).
Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U. S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson:
"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).
That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case— other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.
A law branding one class of persons as criminal based solely on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional.
[586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting.
"Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier.
Most of the rest of today's opinion has no relevance to its actual holding—that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante, at 578 (overruling Bowers to the extent it sustained Georgia's antisodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante, at 565, and "fundamental decisions," ibid., nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U. S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"—which it undoubtedly is—and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 564.
I
I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. [587] I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish—or indeed, even bother to mention— the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
"Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U. S., at 866-867.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as "intensely divisive" as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 576-577. Gone, too, is any "enquiry" (of the sort conducted in Casey) into whether the decision sought to be overruled has "proven `unworkable,'" Casey, supra, at 855.
Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "ero[ded]" by subsequent decisions, ante, at 576; (2) it has been subject to "substantial and continuing" criticism, ibid.; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante, at 577. The problem is that Roe itself—which today's majority surely has no disposition to overrule—satisfies these conditions to at least the same degree as Bowers.
[588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra, "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 571. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 574 ("`At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law.
I do not quarrel with the Court's claim that Romer v. Evans, 517 U. S. 620 (1996), "eroded" the "foundations" of Bowers' rational-basis holding. See Romer, supra, at 640-643 (Scalia, J., dissenting). But Roe and Casey have been equally "eroded" by Washington v. Glucksberg, 521 U. S. 702, 721 (1997), which held that only fundamental rights which are "`deeply rooted in this Nation's history and tradition' " qualify for anything other than rational-basis scrutiny under the doctrine of "substantive due process." Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition.
(2) Bowers, the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante, at 576. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution —A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)).[1] Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 ("Roe was a prime example of twisted judging"); Posner, supra, at 337 ("[The Court's] opinion in Roe... fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]").
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding...." Ante, at 577. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e. g., Williams v. Pryor, 240 F. 3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel, 148 F. 3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard, 124 F. 3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U. S. 560, 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 572 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U. S., at 196.[2]
[591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of, and restrictions upon, abortion were determined legislatively State by State. Casey, however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U. S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey's extraordinary deference to precedent for the result-oriented expedient that it is.
II
Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante, at 567 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante, at 574 ("`These matters . . . are central to the liberty protected by the Fourteenth Amendment' "); ante, at 578 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided:
"No state shall . . . deprive any person of life, liberty, or property, without due process of law." Amdt. 14 (emphasis added).
[593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection—that is, rights which are "`deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) ("[W]e have insisted not merely that the interest denominated as a `liberty' be `fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)).[3] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.
[594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U. S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id., at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not "`deeply rooted in this Nation's history and tradition,'" id., at 192.
The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "`deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers' holding to the contrary, see id., at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante, at 578.
I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"—even though, as I have said, the Court does not have the boldness to reverse that conclusion.
III
The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante, at 566. The Court points to Griswold v. Connecticut, 381 U. S. 479, 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U. S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well-known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold —a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right.
Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U. S., at 155. The Roe Court, however, made no attempt to establish that this right was "`deeply rooted in this Nation's history and tradition' "; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that antiabortion laws were undesirable. See id., at 153. We have since rejected Roe's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U. S., at 876 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id., at 951-953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)—and thus, by logical implication, Roe's holding that the right to abort an unborn child is a "fundamental right." See 505 U. S., at 843-912 ( joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest").
After discussing the history of antisodomy laws, ante, at 568-571, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante, [596] at 568. This observation in no way casts into doubt the "definitive [historical] conclusio[n]," ibid., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general—regardless of whether it was performed by same-sex or opposite-sex couples:
"It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is `deeply rooted in this Nation's history and tradition' or `implicit in the concept of ordered liberty' is, at best, facetious." 478 U. S., at 192-194 (citations and footnotes omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante, at 568. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.
[597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante, at 569. The key qualifier here is "acting in private"—since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequen[t]," ibid.). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable.
Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex." Ante, at 571-572 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "`consensual sexual relations conducted in private,'" ante, at 572, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159.
In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante, at 576, but rather rejected the claimed right to sodomy on the ground that such a right was not "`deeply rooted in this Nation's history and tradition,'" 478 U. S., at 193-194 (emphasis added). Bowers' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id., at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court... should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida, 537 U. S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).
[599]
IV
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence—indeed, with the jurisprudence of any society we know—that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra, at 196—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante, at 578 (emphasis added). The Court embraces instead Justice Stevens' declaration in his Bowers dissent, that "`the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,'" ante, at 577. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
V
Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save Justice O'Connor, ante, at 579 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers —society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U. S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner—for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.
JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.
"While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. [601] It is instead directed toward gay persons as a class." Ante, at 583.
Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante, at 580. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U. S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 448-450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528, 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group," ante, at 580, are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. JUSTICE O'CONNOR seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante, at 585. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad).
* * *
Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U. S. C. § 654(b)(1) (mandating discharge from the Armed Forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale, 530 U. S. 640 (2000).
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts—or, for that matter, display any moral disapprobation of them—than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante, at 579; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts—and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion—after having laid waste the foundations of our rational-basis jurisprudence —the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante, at 578. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante, at 574 (emphasis added). Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante, at 578; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante, at 567; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent.
JUSTICE THOMAS, dissenting.
I join JUSTICE SCALIA'S dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut, 381 U. S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a Member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases `agreeably to the Constitution and laws of the United States.'" Id., at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid., or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante, at 562.
[*] Briefs of amici curiae urging reversal were filed for the Alliance of Baptists et al. by Robert A. Long, Jr., and Thomas L. Cubbage III; for the American Psychological Association et al. by David W. Ogden, Paul R. Q. Wolfson, Richard G. Taranto, Nathalie F. P. Gilfoyle, and Carolyn I. Polowy; for the American Public Health Association et al. by Jeffrey S. Trachtman and Norman C. Simon; for the Cato Institute by Robert A. Levy; for Constitutional Law Professors by Pamela S. Karlan and William B. Rubenstein; for the Human Rights Campaign et al. by Walter Dellinger, Pamela Harris, and Jonathan D. Hacker; for the Log Cabin Republicans et al. by C. Martin Meekins; for the NOW Legal Defense and Education Fund by David C. Codell, Laura W. Brill, and Wendy R. Weiser; for Professors of History by Roy T. Englert, Jr., Alan Untereiner, and Sherri Lynn Wolson; for the Republican Unity Coalition et al. by Erik S. Jaffe; and for Mary Robinson et al. by Harold Hongju Koh and Joseph F. Tringali.
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, and George M. Weaver, and by the Attorneys General for their respective States as follows: Henry D. McMaster of South Carolina and Mark L. Shurtleff of Utah; for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Joel H. Thornton, and Walter M. Weber; for the American Family Association, Inc., et al. by Stephen M. Crampton, Brian Fahling, and Michael J. DePrimo; for the Center for Arizona Policy et al. by Len L. Munsil; for the Center for Law and Justice International by Thomas Patrick Monaghan and John P. Tuskey; for the Center for Marriage Law by Vincent P. McCarthy and Lynn D. Wardle; for the Center for the Original Intent of the Constitution by Michael P. Farris and Jordan W. Lorence; for Concerned Women for America by Janet M. LaRue; for the Family Research Council, Inc., by Robert P. George; for First Principles, Inc., by Ronald D. Ray; for Liberty Counsel by Mathew D. Staver and Rena M. Lindevaldsen; for the Pro Family Law Center et al. by Richard D. Ackerman and Gary G. Kreep; for Public Advocate of the United States et al. by Herbert W. Titus and William J. Olson; for the Texas Eagle Forum et al. by Teresa Stanton Collett; for Texas Legislator Warren Chisum et al. by Kelly Shackelford and Scott Roberts; for the Texas Physicians Resource Council et al. by Glen Lavy; and for United Families International by Paul Benjamin Linton.
Briefs of amici curiae were filed for the American Bar Association by Alfred P. Carlton, Jr., Ruth N. Borenstein, and Beth S. Brinkmann; for the American Civil Liberties Union et al. by Laurence H. Tribe, James D. Esseks, Steven R. Shapiro, and Matthew A. Coles; for the Institute for Justice by William H. Mellor, Clint Bolick, Dana Berliner, and Randy E. Barnett; and for the National Lesbian and Gay Law Association et al. by Chai R. Feldblum, J. Paul Oetken, and Scott Ruskay-Kidd.
[1] This last-cited critic of Bowers actually writes: "[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343.
[2] While the Court does not overrule Bowers' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U. S. C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter, 308 F. 3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F. 3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton, 21 F. 3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States, 944 F. 2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler, 910 F. 2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright, 904 F. 2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg, 895 F. 2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F. 2d 563, 570-571 (CA9 1988) (relying on Bowers' holding that homosexual activity is not a fundamental right in rejecting—on the basis of the rational-basis standard—an equalprotection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances).
[3] The Court is quite right that "`[h]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,'" ante, at 572. An asserted "fundamental liberty interest" must not only be "`deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702, 721 (1997), but it must also be "`implicit in the concept of ordered liberty,'" so that "`neither liberty nor justice would exist if [it] were sacrificed,'" ibid.Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.
7.2.8.2.2 II.B. Actus Reus 7.2.8.2.2 II.B. Actus Reus
Actus reus, or the act requirement, is the first part of culpability in criminal law. (You will meet the second part, mens rea, in the next section.) In short, almost every crime must have an act, but defining that act can be tricky. Sometimes something that seems like an act isn’t an act; other times, something that does not seem like an act is one. These cases introduce you to the act requirement. Notice distinctions between voluntary and involuntary acts, and between conduct and the results of conduct. Consider why the court reaches the decision it does in each case, and what its decision says about its concept of blameworthiness.
7.2.8.2.2.1 Martin v. State 7.2.8.2.2.1 Martin v. State
MARTIN
v.
STATE.
Appeal from Circuit Court, Houston County; D. C. Halstead.
Cephus Martin was convicted of public drunkenness, and he appeals.
Reversed and rendered on rehearing.
W. Perry Calhoun, of Dothan, for appellant.
The original arrest being unlawful and without a warrant, the subsequent happenings by appellant should not be used against him to make out a Case of public drunkenness. If appellant’s acts were the result of compulsion and duress, this is a good defense. Browning v. State, ante, p. 137, 13 So.2d 54; Gassenheìmer v. State, 52 Ala. 313.
Wm. N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst. Atty. Gen., for the State.
It is no defense to the perpetration of a crime that facilities for its commission were purposely placed in the way. Nelson v. City Of Roanoke, Z4 Ala.App. 277, 135 So. 312. Compulsion which will excuse crime must be Present, imminent and impending and of Such nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. Such compulsion must have arisen without the fault or negligence of the person asserting it as a defense. 22 Criminal Law, page 99, 44; 16 CJ. 91; Moore v. State, 23 Ala. App. 432, 127 So. 796; Thomas v. State, 134 Ala. 126, 33 So.« 130; Browning v. State, ante, p. 137, 13 So.2d 54. Burden of proving defense of duress is upon accused. 22 C.]. S., Criminal Law, page 888, 575.
SIMPSON, Judge.
Appellant was convicted of being drunk on a public highway, and appeals. Officers of the law arrested him at his home and took him onto the highway, where he allegedly committed the proscribed acts, viz., manifested a drunken condition by using loud and profane language.
The pertinent provisions of our statute are: “Any person who, while intoxicated or drunk, appears in any public place where one or more persons are present, * * * and manifests a drunken condition by boisterous or indecent conduct, or loud and profane discourse, shall, on conviction, be fined”, etc. Code 1940, Title 14, Section 120.
Under the plain terms of this statute, a voluntary appearance is presupposed. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer. Thomas v. State, 33 Ga. 134, 125 S.E. 778; Reddick v. State, 35 Ga. 256, 132 S.E. 645; Gunn v. State, 37 Ga. 333, 140 S.E. 524; 28 C.]. S., Drunkards, 14, p. 560.
Conviction of appellant was contrary to this announced principle and, in our view, erroneous. It appears that no legal conviction can be sustained under the evidence, so, consonant with the prevai1ing rule, the judgment of the trial court is reversed and one here rendered discharging appellant. Code 1940, Title 7, Section 260; Robison v. State, 30 Ala.App. 12, 200 So. 626; Atkins v. State, 27 Ala.App. 212, 169 So. 330.
Of consequence, our original opinion of affordance was likewise laid in error. It is therefore withdrawn.
Reversed and rendered.
7.2.8.2.2.2 People v. Decina 7.2.8.2.2.2 People v. Decina
The People of the State of New York, Appellant-Respondent,
v.
Emil Decina, Respondent-Appellant.
Court of Appeals of the State of New York.
John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for appellant-respondent.
Charles J. McDonough for respondent-appellant.
CONWAY, Ch. J., DYE and BURKE, JJ., concur with FROESSEL, J., DESMOND J., concurs in part and dissents in part in an opinion in which FULD and VAN VOORHIS, JJ., concur.
FROESSEL, J.
At about 3:30 P.M. on March 14, 1955, a bright, sunny day, defendant was driving, alone in his car, in a northerly direction on Delaware Avenue in the city of Buffalo. The portion of Delaware Avenue here involved is 60 feet wide. At a point south of an overhead viaduct of the Erie Railroad, defendant's car swerved to the left, across the center line in the street, so that it was completely in the south lane, traveling 35 to 40 miles per hour.
It then veered sharply to the right, crossing Delaware Avenue and mounting the easterly curb at a point beneath the viaduct and continued thereafter at a speed estimated to have been about 50 or 60 miles per hour or more. During this latter swerve, a pedestrian testified that he saw defendant's hand above his head; another witness said he saw defendant's left arm bent over the wheel, and his right hand extended towards the right door.
A group of six schoolgirls were walking north on the easterly sidewalk of Delaware Avenue, two in front and four slightly in the rear, when defendant's car struck them from behind. One of the girls escaped injury by jumping against the wall of the viaduct. The bodies of the children struck were propelled northward onto the street and the lawn in front of a coal company, located to the north of the Erie viaduct on Delaware Avenue. Three of the children, 6 to 12 years old, were found dead on arrival by the medical examiner, and a fourth child, 7 years old, died in a hospital two days later as a result of injuries sustained in the accident.
After striking the children, defendant's car continued on the easterly sidewalk, and then swerved back onto Delaware Avenue once more. It continued in a northerly direction, passing under a second viaduct before it again veered to the right and remounted the easterly curb, striking and breaking a metal lamppost. With its horn blowing steadily — apparently because defendant was "stooped over" the steering wheel — the car proceeded on the sidewalk until it finally crashed through a 7¼-inch brick wall of a grocery store, injuring at least one customer and causing considerable property damage.
[136] When the car came to a halt in the store, with its horn still blowing, several fires had been ignited. Defendant was stooped over in the car and was "bobbing a little". To one witness he appeared dazed, to another unconscious, lying back with his hands off the wheel. Various people present shouted to defendant to turn off the ignition of his car, and "within a matter of seconds the horn stopped blowing and the car did shut off".
Defendant was pulled out of the car by a number of bystanders and laid down on the sidewalk. To a policeman who came on the scene shortly he appeared "injured, dazed"; another witness said that "he looked as though he was knocked out, and his arm seemed to be bleeding". An injured customer in the store, after receiving first aid, pressed defendant for an explanation of the accident and he told her: "I blacked out from the bridge".
When the police arrived, defendant attempted to rise, staggered and appeared dazed and unsteady. When informed that he was under arrest, and would have to accompany the police to the station house, he resisted and, when he tried to get away, was handcuffed. The foregoing evidence was adduced by the People, and is virtually undisputed — defendant did not take the stand nor did he produce any witnesses.
From the police station defendant was taken to the E. J. Meyer Memorial Hospital, a county institution, arriving at 5:30 P.M. The two policemen who brought defendant to the hospital instructed a police guard stationed there to guard defendant, and to allow no one to enter his room. A pink slip was brought to the hospital along with defendant, which read: "Buffalo Police Department, Inter-Departmental Correspondence. To Superintendent of Meyer Memorial Hospital, from Raymond J. Smith, Captain, Precinct 17. Subject, Re: One Emil A. Decina, 87 Sidney, CD-553284, date 3-14-55. Sir: We are forwarding one Emil A. Decina, age 33, of 87 Sidney Street, to your hospital for examination on the recommendation of District Attorney John Dwyer and Commissioner Joseph A. De Cillis. Mr. Decina was involved in a fatal accident at 2635 Delaware Avenue at 3:40 P.M. this date. There were three fatalities, and possibly four. A charge will be placed against Mr. Decina after the investigation has been completed."
On the evening of that day, after an interne had visited and treated defendant and given orders for therapy, Dr. Wechter, a [137] resident physician in the hospital and a member of its staff, came to his room. The guard remained, according to his own testimony, in the doorway of the room — according to Dr. Wechter, outside, 6 or 7 feet away. He observed both Dr. Wechter and defendant "on the bed", and he stated that he heard the entire conversation between them, although he did not testify as to its content.
Before Dr. Wechter saw defendant, shortly after the latter's admission on the floor, he had read the hospital admission record, and had either seen or had communicated to him the contents of the "pink slip". While he talked with defendant, another physician came in and left. After giving some additional brief testimony, but before he was permitted to relate a conversation he had with defendant which was contained in the hospital notes, defense counsel was permitted with some restriction to cross-examine the doctor. In the course of that cross-examination, the doctor testified as follows:
That he saw defendant in his professional capacity as a doctor but that he did not see him for purposes of treatment. However, it was shown that at a former trial at which the jury had disagreed, he stated that the information he obtained was pursuant to his duties as a physician; that the purpose of his examination was to diagnose defendant's condition; that he questioned the defendant for the purpose of treatment, among other things; that in the hospital they treat any patient that comes in.
He further testified at this trial that ordinarily the resident on the floor is in charge of the floor, and defendant was treated by more than one doctor; that he took the medical history. At the previous trial, when he was asked whether he represented the police and the district attorney, he replied: "I don't know. I just seen him as a patient coming into the hospital". He now stated that he saw defendant as part of his routine duties at the hospital; that he would say that defendant "was a patient"; that he was not retained as an expert by the district attorney or the Police Department, and was paid nothing to examine defendant; that his examination was solely in the course of his duties as a resident physician on the staff of the hospital, and that, whether or not he had a slip from the police, so long as that man was on his floor as a patient, he would have examined him.
He also stated he never told defendant that he had any pink [138] slip, or that he was examining him for the district attorney or the Police Department, or that defendant was under no duty to talk, or that anything he said might be used against him at a later trial. He further testified that he was a doctor at the hospital at which defendant was a patient; that he personally wrote items in the hospital record, after his conversations with defendant; that he saw defendant three times; that he was asked by the district attorney to submit a voucher for consideration by the comptroller's office, but that was not done until after the first trial. He also stated at this trial that the discharge summary was made out by him, and that of the four sheets of progress notes, at least the first two sheets were in his handwriting.
The direct examination was then continued, the doctor being permitted to state the conversation with defendant over objection and exception. He asked defendant how he felt and what had happened. Defendant, who still felt a little dizzy or blurry, said that as he was driving he noticed a jerking of his right hand, which warned him that he might develop a convulsion, and that as he tried to steer the car over to the curb he felt himself becoming unconscious, and he thought he had a convulsion. He was aware that children were in front of his car, but did not know whether he had struck them.
Defendant then proceeded to relate to Dr. Wechter his past medical history, namely, that at the age of 7 he was struck by an auto and suffered a marked loss of hearing. In 1946 he was treated in this same hospital for an illness during which he had some convulsions. Several burr holes were made in his skull and a brain abscess was drained. Following this operation defendant had no convulsions from 1946 through 1950. In 1950 he had four convulsions, caused by scar tissue on the brain. From 1950 to 1954 he experienced about 10 or 20 seizures a year, in which his right hand would jump although he remained fully conscious. In 1954, he had 4 or 5 generalized seizures with loss of consciousness, the last being in September, 1954, a few months before the accident. Thereafter he had more hospitalization, a spinal tap, consultation with a neurologist, and took medication daily to help prevent seizures.
On the basis of this medical history, Dr. Wechter made a diagnosis of Jacksonian epilepsy, and was of the opinion that defendant had a seizure at the time of the accident. Other members of the hospital staff performed blood tests and took [139] an electroencephalogram during defendant's three-day stay there. The testimony of Dr. Wechter is the only testimony before the trial court showing that defendant had epilepsy, suffered an attack at the time of the accident, and had knowledge of his susceptibility to such attacks.
Defendant was indicted and charged with violating section 1053-a of the Penal Law. Following his conviction, after a demurrer to the indictment was overruled, the Appellate Division, while holding that the demurrer was properly overruled, reversed on the law, the facts having been "examined" and found "sufficient". It granted a new trial upon the ground that the "transactions between the defendant and Dr. Wechter were between physician and patient for the purpose of treatment and that treatment was accomplished", and that evidence thereof should not have been admitted. From its determination both parties have appealed.
We turn first to the subject of defendant's cross appeal, namely, that his demurrer should have been sustained, since the indictment here does not charge a crime. The indictment states essentially that defendant, knowing "that he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness for a considerable period of time", was culpably negligent "in that he consciously undertook to and did operate his Buick sedan on a public highway" (emphasis supplied) and "while so doing" suffered such an attack which caused said automobile "to travel at a fast and reckless rate of speed, jumping the curb and driving over the sidewalk" causing the death of 4 persons. In our opinion, this clearly states a violation of section 1053-a of the Penal Law. The statute does not require that a defendant must deliberately intend to kill a human being, for that would be murder. Nor does the statute require that he knowingly and consciously follow the precise path that leads to death and destruction. It is sufficient, we have said, when his conduct manifests a "disregard of the consequences which may ensue from the act, and indifference to the rights of others. No clearer definition, applicable to the hundreds of varying circumstances that may arise, can be given. Under a given state of facts, whether negligence is culpable is a question of judgment." (People v. Angelo, 246 N.Y. 451, 457.)
Assuming the truth of the indictment, as we must on a demurrer, this defendant knew he was subject to epileptic [140] attacks and seizures that might strike at any time. He also knew that a moving motor vehicle uncontrolled on a public highway is a highly dangerous instrumentality capable of unrestrained destruction. With this knowledge, and without anyone accompanying him, he deliberately took a chance by making a conscious choice of a course of action, in disregard of the consequences which he knew might follow from his conscious act, and which in this case did ensue. How can we say as a matter of law that this did not amount to culpable negligence within the meaning of section 1053-a?
To hold otherwise would be to say that a man may freely indulge himself in liquor in the same hope that it will not affect his driving, and if it later develops that ensuing intoxication causes dangerous and reckless driving resulting in death, his unconsciousness or involuntariness at that time would relieve him from prosecution under the statute. His awareness of a condition which he knows may produce such consequences as here, and his disregard of the consequences, renders him liable for culpable negligence, as the courts below have properly held (People v. Eckert, 2 N Y 2d 126, decided herewith; People v. Kreis, 302 N.Y. 894; Matter of Enos v. Macduff, 282 App. Div. 116; State v. Gooze, 14 N. J. Super. 277). To have a sudden sleeping spell, an unexpected heart or other disabling attack, without any prior knowledge or warning thereof, is an altogether different situation (see Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N.Y. 639), and there is simply no basis for comparing such cases with the flagrant disregard manifested here.
It is suggested in the dissenting opinion that a new approach to licensing would prevent such disastrous consequences upon our public highways. But would it — and how and when? The mere possession of a driver's license is no defense to a prosecution under section 1053-a; nor does it assure continued ability to drive during the period of the license. It may be noted in passing, and not without some significance, that defendant strenuously and successfully objected to the district attorney's offer of his applications for such license in evidence, upon the ground that whether or not he was licensed has nothing to do with the case. Under the view taken by the dissenters, this defendant would be immune from prosecution under this statute even if he were unlicensed. Section 1053-a places a personal [141] responsibility on each driver of a vehicle — whether licensed or not — and not upon a licensing agency.
Accordingly, the Appellate Division properly sustained the lower court's order overruling the demurrer, as well as its denial of the motion in arrest of judgment on the same ground.
The appeal by the People (hereinafter called appellant) challenges the determination of the Appellate Division that the testimony of Dr. Wechter was improperly admitted in contravention of section 352 of the Civil Practice Act, which states that a physician "shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity".
Two questions are raised by this appeal. The first is whether a physician-patient relationship existed between Dr. Wechter and defendant, and, if so, whether the communications made by defendant to him were necessary for the doctor to act in his professional capacity. The second is whether the presence of the police guard in the doorway of the room destroys any privilege arising under section 352 and permits the doctor to testify. It is not contested that defendant, as the party asserting the privilege, bears the burden of showing its application in the present case (Bloodgood v. Lynch, 293 N.Y. 308, 314; People v. Austin, 199 N.Y. 446, 452; People v. Koerner, 154 N.Y. 355, 366; People v. Schuyler, 106 N.Y. 298, 304). He claims to have sustained the burden on the basis of appellant's own evidence previously outlined.
Appellant contends that no professional relationship arose because the doctor was sent by the district attorney to examine, not treat, the defendant, and in fact he did not treat him. The cases upon which appellant relies are readily distinguishable from the one now before us. In People v. Schuyler (supra), for example, a jail physician was allowed to testify, over an objection based on the predecessor statute to section 352 of the Civil Practice Act, to his observations of the prisoner's mental condition. There was no evidence that the prisoner was ill, or that he was attended by, treated, or required any treatment by said jail physician while in custody.
The criterion to be applied in determining whether or not a professional relationship exists was stated in People v. Austin (199 N.Y. 446, supra). The testimony of a physician describing [142] an examination of defendant in jail relating to his sanity was found admissible because there were no circumstances from which it might be inferred that the defendant "was led to accept him [the examining doctor] as a physician and consequently to disclose to him information that perhaps would not otherwise have been given" (p. 452). This rule the court derived from People v. Stout (3 Parker Cr. Rep. 670, 676).
In People v. Koerner (154 N.Y. 355, 365-366, supra), as in People v. Furlong (187 N.Y. 198, 208-209), testimony of physicians was admitted, but in each case the defendant was explicitly informed that the physician was not acting in his capacity as a doctor or that information obtained might be used against him in subsequent legal proceedings (see, also, People v. Leyra, 302 N.Y. 353, 363, which had an altogether different fact pattern, however).
People v. Sliney (137 N.Y. 570, 580) and People v. Hoch (150 N.Y. 291, 302-303) are consistent with the rule of the Austin and Stout cases (supra). They are additional instances where the testimony of physicians who held examinations in jails was admitted, since no evidence was adduced from which it might be found that the defendants could reasonably have regarded the physician as acting in a professional capacity towards them.
Appellant further contends that there can be no finding of physician-patient relation in this case because there is no evidence that Dr. Wechter actually treated defendant. The cases relied on by appellant are inapposite. They properly hold that where a physician does treat a person, regardless of whether it is at his request, or with his consent, the relation arises, but they do not hold the converse (Meyer v. Knights of Pythias, 178 N.Y. 63, affd. 198 U. S. 508; People v. Murphy, 101 N.Y. 126). In determining whether or not information necessary for treatment is privileged, the question as to whether or not actual treatment is undertaken is not decisive (Grattan v. Metropolitan Life Ins. Co., 24 Hun 43, 46).
In any event, although Dr. Wechter testified that he personally did not treat defendant, he admitted that other doctors and internes in the hospital did "treat" him for Jacksonian epilepsy. He himself made that diagnosis. To say that in a hospital, where there is division of duties among the staff, the relation of physician and patient does not arise with regard to those members of the staff who do not actually treat the patient [143] is unsound. It would place upon section 352 strictures that are opposed to our oft-expressed view that the statute is to be liberally construed (Buffalo Loan, Trust & Safe Deposit Co. v. Knights Templar & Masonic Mut. Aid Assn., 126 N.Y. 450, 455; Matter of City Council of City of N. Y. v. Goldwater, 284 N.Y. 296, 300; Edington v. Mutual Life Ins. Co., 67 N.Y. 185, 194).
It is apparent that the information here given by the defendant was necessary for his treatment. Those cases allowing disclosure by physicians of information related to them by their patients deal with such nonprofessional matters as details of an accident entirely unrelated to treatment (Griffiths v. Metropolitan St. Ry. Co., 171 N.Y. 106; Green v. Metropolitan St. Ry. Co., 171 N.Y. 201; Gray v. City of New York, 137 App. Div. 316, 321; Travis v. Haan, 119 App. Div. 138; Benjamin v. Village of Tupper Lake, 110 App. Div. 426; De Jong v. Erie R. R. Co., 43 App. Div. 427), or facts such as a layman might observe (Klein v. Prudential Ins. Co., 221 N.Y. 449; Sparer v. Travelers Ins. Co., 185 App. Div. 861). Evidence of a prior medical history of a disease for which defendant was treated cannot be said to be information unnecessary for treatment. The communication is therefore within the conditions set forth in section 352.
The second question will now be dealt with. The problem here is what effect, if any, the presence of the police guard, pursuant to the orders of the district attorney, in or about the doorway of the hospital room, where he could overhear the conversation between Dr. Wechter and defendant, has upon the privilege under section 352. That section does not in so many words require that a communication be confidential or confidentially given in order to be privileged. So we turn to the cases. In Matter of Coddington (307 N.Y. 181, 187-191) (then) CONWAY, J., pointed out that Judge EARL attempted, in Edington v. Ætna Life Ins. Co. (77 N.Y. 564) to confine the statute to information of a confidential nature, but the court did not agree with him on that point. As a result of the cases that followed — Grattan v. Metropolitan Life Ins. Co. (80 N.Y. 281) and Renihan v. Dennin (103 N.Y. 573) — in the latter of which Judge EARL suggested legislation, section 836 of the Code of Civil Procedure (now Civ. Prac. Act, § 354) was amended to allow physicians in effect to testify as to nonconfidential communications of deceased patients where the privilege has been waived by persons [144] authorized by the section to do so. The language of those cases was exceedingly broad, and it was pointed out that, under the literal phraseology of code section 834, the physician was absolutely prohibited from testifying so long as the conditions of the statute were met.
Faced with the problem of the effect on the privilege of the presence of third persons, our Appellate Divisions turned to these decisions and found them authority for holding the testimony of the physicians privileged. In Denaro v. Prudential Ins. Co. (154 App. Div. 840, 843 [2d dept.]), a patient was examined by a doctor "in the presence of [his] * * * father or others near", and it was held that the physician could not testify; the persons present may testify, but the physician is bound by the rule. Hobbs v. Hullman (183 App. Div. 743 [3d dept.]) decided that where a conversation was had between a physician and a patient in the presence of a nurse, who was neither a professional nor a registered nurse, the doctor's testimony was inadmissible. A third case, Sparer v. Travelers Ins. Co. (185 App. Div. 861, 864 [1st dept.], supra), reached the same conclusion; it did not allow the testimony of a physician as to the details of an operation he performed to be received in evidence, although a medical student was present during its performance. And now the fourth department in the case at bar has impliedly held likewise in the case of a police guard. The present case falls clearly within the scope of these decisions. If anything, it presents an even stronger situation, for the guard's presence was ordered by command of the public authorities.
An opposite result is not indicated by those cases dealing with the effect of the presence of a third person upon the attorney-client privilege under section 353 of the Civil Practice Act (Baumann v. Steingester, 213 N.Y. 328; People v. Buchanan, 145 N.Y. 1, 26). The Denaro case (154 App. Div. 840, supra) expressly held that the situations were not analogous. It may be noted that the applicable statutes are not identical. Under section 353, relating to attorneys, the privilege extends only to "a communication, made by his client to him". Under section 352 relating to physicians, however, the privilege extends to "any information which he acquired in attending a patient"; since such information may be acquired from third persons — and third persons who have some definite relationship to the [145] patient are often present — the situation is not analogous to an attorney-client relationship.
Whether or not this distinction accounts for the fact that in attorney-client cases it has generally been held that the presence of a third person destroys the privilege, the cases suggest that even here there are exceptions (Baumann v. Steingester, supra, p. 332; People v. Buchanan, supra, p. 26). So if the communication was intended to be confidential, the fact that it may have been overheard by a third person does not necessarily destroy the privilege (see People v. Cooper, 307 N.Y. 253, 259, n. 3; Erlich v. Erlich, 278 App. Div. 244, 245; Richardson on Evidence [8th ed.], § 438).
The true test appears to be whether in the light of all the surrounding circumstances, and particularly the occasion for the presence of the third person, the communication was intended to be confidential and complied with the other provisions of the statute. Applying this test, we hold that under section 352, and the cases construing it, the communication by defendant to Dr. Wechter was privileged, and admission of it by the trial court was error, as correctly stated by the Appellate Division.
Defendant raises the subsidiary question that the hospital record was improperly received in evidence before the Grand Jury, and the indictment should, therefore, be dismissed. A word may be said about that. He made no motion for inspection of the minutes of the Grand Jury. We do not know what evidence was adduced there, for the Grand Jury minutes are not a part of this record. Even if we assume that the hospital record was improperly before the Grand Jury, we have no way of knowing what other evidence may have been adduced and formed a sufficient basis for the indictment. There is a presumption that an indictment is based on legally sufficient evidence (see People v. Eckert, supra; People v. Sweeney, 213 N.Y. 37, 44; People v. Sexton, 187 N.Y. 495, 512; People v. Glen, 173 N.Y. 395, 403). We cannot here rule on the legal sufficiency of evidence before the Grand Jury without knowing what that evidence is. Defendant should have taken appropriate steps below and made a record so as to be in a position properly to raise the question on appeal.
Accordingly, the order of the Appellate Division should be affirmed.
[146] DESMOND, J. (concurring in part and dissenting in part).
I agree that the judgment of conviction cannot stand but I think the indictment should be dismissed because it alleges no crime. Defendant's demurrer should have been sustained.
The indictment charges that defendant knowing that "he was subject to epileptic attacks or other disorder rendering him likely to lose consciousness" suffered "an attack and loss of consciousness which caused the said automobile operated by the said defendant to travel at a fast and reckless rate of speed" and to jump a curb and run onto the sidewalk "thereby striking and causing the death" of 4 children. Horrible as this occurrence was and whatever necessity it may show for new licensing and driving laws, nevertheless this indictment charges no crime known to the New York statutes. Our duty is to dismiss it.
Section 1053-a of the Penal Law describes the crime of "criminal negligence in the operation of a vehicle resulting in death". Declared to be guilty of that crime is "A person who operates or drives any vehicle of any kind in a reckless or culpably negligent manner, whereby a human being is killed". The essentials of the crime are, therefore, first, vehicle operation in a culpably negligent manner, and, second, the resulting death of a person. This indictment asserts that defendant violated section 1053-a, but it then proceeds in the language quoted in the next-above paragraph of this opinion to describe the way in which defendant is supposed to have offended against that statute. That descriptive matter (an inseparable and controlling ingredient of the indictment, Code Crim. Pro., §§ 275, 276; People v. Dumar, 106 N.Y. 502) shows that defendant did not violate section 1053-a. No operation of an automobile in a reckless manner is charged against defendant. The excessive speed of the car and its jumping the curb were "caused", says the indictment itself, by defendant's prior "attack and loss of consciousness". Therefore, what defendant is accused of is not reckless or culpably negligent driving, which necessarily connotes and involves consciousness and volition. The fatal assault by this car was after and because of defendant's failure of consciousness. To say that one drove a car in a reckless manner in that his unconscious condition caused the car to travel recklessly is to make two mutually contradictory assertions. One cannot be "reckless" while unconscious. One cannot while unconscious [147] "operate" a car in a culpably negligent manner or in any other "manner". The statute makes criminal a particular kind of knowing, voluntary, immediate operation. It does not touch at all the involuntary presence of an unconscious person at the wheel of an uncontrolled vehicle. To negative the possibility of applying section 1053-a to these alleged facts we do not even have to resort to the rule that all criminal statutes are closely and strictly construed in favor of the citizen and that no act or omission is criminal unless specifically and in terms so labeled by a clearly worded statute (People v. Benc, 288 N.Y. 318, 323, and cases cited).
Tested by its history section 1053-a has the same meaning: penalization of conscious operation of a vehicle in a culpably negligent manner. It is significant that until this case (and the Eckert case, 2 N Y 2d 126, handed down herewith) no attempt was ever made to penalize, either under section 1053-a or as manslaughter, the wrong done by one whose foreseeable blackout while driving had consequences fatal to another person.
The purpose of and occasion for the enactment of section 1053-a is well known (see Governor's Bill Jacket on L. 1936, ch. 733). It was passed to give a new label to, and to fix a lesser punishment for, the culpably negligent automobile driving which had formerly been prosecuted under section 1052 of the Penal Law defining manslaughter in the second degree. It had been found difficult to get manslaughter convictions against death-dealing motorists. But neither of the two statutes has ever been thought until now to make it a crime to drive a car when one is subject to attacks or seizures such as are incident to certain forms and levels of epilepsy and other diseases and conditions.
Now let us test by its consequences this new construction of section 1053-a. Numerous are the diseases and other conditions of a human being which make it possible or even likely that the afflicted person will lose control of his automobile. Epilepsy, coronary involvements, circulatory diseases, nephritis, uremic poisoning, diabetes, Meniere's syndrome, a tendency to fits of sneezing, locking of the knee, muscular contractions — any of these common conditions may cause loss of control of a vehicle for a period long enough to cause a fatal accident. An automobile traveling at only 30 miles an hour goes 44 feet in a second. Just what is the court holding here? No less than [148] this: that a driver whose brief blackout lets his car run amuck and kill another has killed that other by reckless driving. But any such "recklessness" consists necessarily not of the erratic behavior of the automobile while its driver is unconscious, but of his driving at all when he knew he was subject to such attacks. Thus, it must be that such a blackout-prone driver is guilty of reckless driving (Vehicle and Traffic Law, § 58) whenever and as soon as he steps into the driver's seat of a vehicle. Every time he drives, accident or no accident, he is subject to criminal prosecution for reckless driving or to revocation of his operator's license (Vehicle and Traffic Law, § 71, subd. 3). And how many of this State's 5,000,000 licensed operators are subject to such penalties for merely driving the cars they are licensed to drive? No one knows how many citizens or how many or what kind of physical conditions will be gathered in under this practically limitless coverage of section 1053-a of the Penal Law and section 58 and subdivision 3 of section 71 of the Vehicle and Traffic Law. It is no answer that prosecutors and juries will be reasonable or compassionate. A criminal statute whose reach is so unpredictable violates constitutional rights, as we shall now show.
When section 1053-a was new it was assailed as unconstitutional on the ground that the language "operates or drives any vehicle of any kind in a reckless or culpably negligent manner" was too indefinite since a driver could only guess as to what acts or omissions were meant. Constitutionality was upheld in People v. Gardner (255 App. Div. 683). The then Justice LEWIS, later of this court, wrote in People v. Gardner that the statutory language was sufficiently explicit since "reckless driving" and "culpable negligence" had been judicially defined in manslaughter cases as meaning the operation of an automobile in such a way as to show a disregard of the consequences (see People v. Angelo, 246 N.Y. 451). The manner in which a car is driven may be investigated by a jury, grand or trial, to see whether the manner was such as to show a reckless disregard of consequences. But giving section 1053-a the new meaning assigned to it permits punishment of one who did not drive in any forbidden manner but should not have driven at all, according to the present theory. No motorist suffering from any serious malady or infirmity can with [149] impunity drive any automobile at any time or place, since no one can know what physical conditions make it "reckless" or "culpably negligent" to drive an automobile. Such a construction of a criminal statute offends against due process and against justice and fairness. The courts are bound to reject such conclusions when, as here, it is clearly possible to ascribe a different but reasonable meaning (People v. Ryan, 274 N.Y. 149, 152; Matter of Schwarz v. General Aniline & Film Corp., 305 N.Y. 395, 406, and cases cited).
A whole new approach may be necessary to the problem of issuing or refusing drivers' licenses to epileptics and persons similarly afflicted (see Barrow and Fabing on Epilepsy and the Law, ch. IV; Restricted Drivers' Licenses to Controlled Epileptics, and see 2 U.C.L.A. L. Rev., p. 500 et seq.). But the absence of adequate licensing controls cannot in law or in justice be supplied by criminal prosecutions of drivers who have violated neither the language nor the intendment of any criminal law.
Entirely without pertinence here is any consideration of driving while intoxicated or while sleepy, since those are conditions presently known to the driver, not mere future possibilities or probabilities.
The demurrer should be sustained and the indictment dismissed.
Order affirmed.
7.2.8.2.2.3 People v. Newton 7.2.8.2.2.3 People v. Newton
THE PEOPLE, Plaintiff and Respondent,
v.
HUEY P. NEWTON, Defendant and Appellant.
Court of Appeals of California, First District, Division Four.
[365] COUNSEL
Garry, Dreyfus, McTernan & Brotsky, Charles R. Garry, Benjamin Dreyfus and Fay Stender for Defendant and Appellant.
[366] Thomas C. Lynch, Attorney General, Albert W. Harris, Jr., Assistant Attorney General, Robert R. Granucci and Clifford K. Thompson, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RATTIGAN, J.
Huey P. Newton appeals from a judgment convicting him of voluntary manslaughter.
Count One of an indictment issued by the Alameda County Grand Jury in November 1967, charged defendant with the murder (Pen. Code, § 187) of John Frey; count Two, with assault with a deadly weapon upon the person of Herbert Heanes, knowing or having reasonable cause to know Heanes to be a peace officer engaged in the performance of his duties (Pen. Code, § 245b); count Three, with the kidnaping of Dell Ross. (Pen. Code, § 207.) The indictment also alleged that defendant had previously (in 1964) been convicted of assault with a deadly weapon, a felony. He pleaded not guilty to all three counts and denied the prior.
After the People rested during the lengthy jury trial which followed in 1968, and pursuant to Penal Code section 1118.1, the trial court granted defendant's motion for acquittal on count Three (the Ross kidnaping). Similar motions, addressed to the other counts, were denied. The jury acquitted him of the Heanes assault charged in count Two, but found him guilty of the voluntary manslaughter of Frey under count One. The jury also found the charge of the prior felony conviction to be true. Defendant's motions for new trial and for probation were denied, and he was sentenced to state prison for the term prescribed by law. This appeal followed.
At relevant times, John Frey and Herbert Heanes were officers of the Oakland Police Department. The criminal charges against defendant arose from a street altercation in which Frey was fatally wounded by gunfire, and Heanes and defendant were shot, on October 28, 1967. Through the testimony of Oakland police radio dispatcher Clarence Lord, and a tape recording of the radio transmissions mentioned therein, the People showed that the following events first occurred on the date in question:
Lord was on radio duty in the Oakland Police Administration Building. Officer Frey was also on duty, and alone in a police car, patrolling an assigned beat in Oakland. At about 4:51 a.m., he radioed Lord and requested a check on an automobile which was moving in his vicinity and which bore license number AZM 489. Less than a minute later, Lord told [367] Frey that "we have got some PIN information coming out on that."[1] Frey replied, "Check. It's a known Black Panther vehicle.... I am going to stop it at Seventh and Willow [Streets]. You might send a unit by." ("Check," in this context, meant that Frey had received Lord's message.) Officer Heanes, who was listening to this conversation in his police car on another beat, called in that he was "enroute" to Seventh and Willow Streets. This transmission terminated at about 4:52 a.m.
A few minutes later Frey asked Lord by radio, "you got any information on this guy yet?" Explaining this call, Lord testified that "when I gave him [Frey] the information there was PIN information he made the car stop on the strength of that, on the strength of the PIN information. He [now] wants to know what information I have that told him to stop the vehicle." Lord gave Frey the name "LaVerne Williams" and asked him "if there were a LaVerne Williams in the vehicle." Frey replied in the affirmative. Lord told him there were a "couple" of warrants issued to LaVerne Williams, for parking violations, on the identified vehicle.
Lord testified that under such circumstances "[w]e check and see if the warrants are still outstanding, first of all, and if they are, and then they [the officers outside] can ascertain if they have that person stopped on the street, then they take action concerning the warrant." Pursuing this procedure in the radio conversation, he gave Frey an address for "LaVerne Williams" and said "Let me know if this is the same address or not." Frey asked Lord, "What's his description?" Lord replied "... I don't have the description. Do you have a birth date on him there? We're checking him out right now downstairs."
After another brief interval, and just before 5 a.m., this further exchange occurred by radio: "FREY: 1A, it's the same address. He has on his registration 1114-12th Street? RADIO [Lord]: Check. What's his birth date? FREY: He gave me some phony. I guess he caught on. RADIO: Okay, check. It's not necessary, anyway. We're checking him out downstairs there. We'll have the information back in a few minutes. FREY: Check. Thanks." The next relevant radio call, received at 5:03 a.m., was a "940B" ("an officer needs assistance immediately") from Officer Heanes at Seventh and Willow Streets.
Officer Heanes testified for the People as follows: He arrived at Seventh and Willow Streets "three to four minutes" after responding by radio to Officer Frey's "cover call." Officer Frey's police car was parked at the south curb of Seventh Street, east of Willow Street and facing east. A [368] beige Volkswagen was parked directly in front of it, also facing east. Heanes parked his car behind Frey's, alighted and walked to the right rear of the Volkswagen. At this time, two men were seated in the Volkswagen, both in the front seat; Officer Frey was standing near the driver's door of the vehicle, writing a citation. (Heanes made an in-court identification of defendant as the man seated in the driver's seat of the Volkswagen.)
After a minute or so, Heanes followed Frey to the latter's vehicle, where he heard Frey talk to the police radio dispatcher about an address and a birth date. When Frey finished the radio call, he and Heanes had a conversation in which Frey indicated that defendant, when asked for identification, had produced the Volkswagen registration and given his name as "LaVerne Williams." While Frey remained in his car, Heanes walked forward to the Volkswagen, addressed defendant as "Mr. Williams," and asked if he had any further identification. Defendant, still seated in the vehicle, said "I am Huey Newton." Frey then approached the Volkswagen and conversed with Heanes, who asked defendant to get out of the car. Defendant asked "if there was any particular reason why he should." Heanes asked him "if there was any reason why he didn't want to." Frey then informed defendant that he was under arrest and ordered him out of the car.
Defendant got out of the Volkswagen and walked, "rather briskly" and in a westerly direction, to the rear of the police cars. Frey followed, three or four feet behind defendant and slightly to his (defendant's) right. Heanes followed them, but stopped at the front end of Frey's police car (the second car in line). Defendant walked to the "rear part" of Heanes's car (third in line), Frey still behind him, and turned around. He assumed a stance with his feet apart, knees flexed, both "arms down" at hip level in front of his body.
Heanes heard a gunshot and saw Officer Frey move toward defendant. As he (Heanes) drew and raised his own gun in his right hand, a bullet struck his right forearm. He grabbed his arm "momentarily" and noticed, from the corner of his eye, a man standing on the curb between the Volkswagen and Officer Frey's police car. Heanes turned and aimed his gun at the man (whom he apparently identified at the time as defendant's passenger, although he had not seen the passenger get out of the Volkswagen). The man "raised his hands and stated to me he wasn't armed, and he had no intentions of harming me." To the best of Heanes' knowledge, the man's hands were empty.
Heanes returned his attention to Officer Frey and defendant, who were "on the trunk lid of my car [the third car in line] tussling." The two were in "actual physical contact" and "seemed to be wrestling all over the trunk [369] area of my car." He next remembered being on his knees at the front door of Frey's (the second) car, approximately "30, 35 feet" from the other two men. Defendant was then facing him; Officer Frey was "facing from the side" of defendant, toward the curb, and appeared to be "hanging onto" him. Holding his gun in his left hand, Heanes aimed at defendant and fired "at his midsection." Defendant did not fall; Heanes saw no one fall at any time. He (Heanes) then heard "other gunshots ... from the area of where Officer Frey and ... [defendant] ... were tussling on the rear part of my car."[2] Heanes did not see a gun in defendant's hand at any time. He next remembered "laying" in Officer Frey's police car, and calling an "emergency 940B" on its radio. After that, and through the vehicle's rear window, he saw two men running in a westerly direction toward Seventh and Willow Streets.
Henry Grier, a bus driver employed by AC Transit, gave this testimony for the People: Driving his empty bus westbound on Seventh Street at about 4:58 a.m. on October 28, 1967, he saw the three vehicles parked at the south curb, "about bumper to bumper," west of Willow Street. "Red lights" were flashing on the police cars. He also saw two uniformed police officers and two "civilians" standing together in the street, to his left and next to the Volkswagen. He continued west on Seventh Street to a turnaround point two blocks west of Willow Street, turned without stopping, returned on Seventh Street in an eastbound direction, and stopped to pick up two bus passengers at Willow Street.
Continuing east on Seventh Street, Grier again came upon the three parked vehicles. This was four to five minutes after he passed them while headed west. He saw the same flashing lights on the police cars, and three men in the street. Two of them, a police officer and a "civilian," were walking toward the bus. When Grier first saw them, they were 20-25 feet distant from him and a point between the Volkswagen and the first police car parked behind it. The officer was walking a "pace" behind the civilian, and was apparently holding him "sort of tugged under the arm." The third man in the street was another police officer, who was walking in the same direction about "ten paces" behind the first officer and the civilian. [370] (Grier did not then, or again, see the other "civilan" he had noticed when driving west on Seventh Street.)
As the first pair drew closer to the bus, which was still "rolling," the civilian pulled a gun from inside his shirt and "spun around." The first police officer "grabbed him by the arm." The two struggled, and "the gun went off." The officer walking behind them "was hit and he fell"; after he was hit, he drew his gun and fired. Grier stopped the bus immediately and called "central dispatch" on its radio. At this point, the first officer and the civilian were struggling near the front door of the bus and within a few feet of Grier. He saw the civilian, standing "sort of in a crouched position," fire several shots into the first officer as the latter was falling forward.[3] These shots were fired from, or within, a distance of "four or five feet" from the midsection of the officer's body; the last one was fired "in the direction of his back" as he lay, face down, on the ground. While these shots were being fired, Grier was saying on the bus radio, "Get help, a police officer is being shot. Shots are flying everywhere; get help. Help, quick." After firing the last shot at the fallen officer, the civilian "went diagonally across Seventh [Street]." At the trial, Grier positively identified defendant as the "civilian" mentioned in his account of the shootings.
Gilbert DeHoyos and Thomas Fitzmaurice, both Oakland police officers, testified for the People as follows: Shortly after 5 a.m. on October 28, 1967, both responded to Officer Heanes' "940B" call for assistance. Officer DeHoyos arrived at Seventh and Willow Streets less than a minute later; Officer Fitzmaurice arrived just behind him. They found Officer Frey lying on the street near the rear of Heanes' police car, still alive, and Heanes in the front seat of Frey's car. They saw no other persons nearby. Officer Heanes told Fitzmaurice that "his leg hurt and his arm and that Huey Newton had done it ... he told me he had fired [at defendant] and I think he hit him ... he [Heanes] thought he hit him."
Defendant arrived at the emergency desk of Kaiser Hospital at 5:50 a.m. on the same morning. He asked to see a doctor, stating "I have been shot in the stomach." A nurse called the police. Officer Robert Fredericks arrived and placed defendant under arrest. He (defendant) had a bullet wound in his abdomen. The bullet had entered in the front and exited through the back of his body.
Officers Frey and Heanes were taken to Merritt Hospital, where Frey was dead on arrival. He had been shot five times, at approximately the same time but in an unknown order. One bullet entered in the front, and [371] exited through the back, of his left shoulder; another passed through his left thigh, also from front to back. A third (the only one recovered from Frey's body) entered the midback and lodged near the left hip. A fourth creased the left elbow. Another bullet entered the back, traversed the lungs, and exited through the right shoulder in front: this wound caused Officer Frey's death within 10 minutes. Officer Heanes had three bullet wounds: one in his right arm, one in the left knee, one in the chest.
Three slugs were recovered: one from Officer Frey's hip, one from Heanes' left knee, and a third which had been lodged in the right front door of the Volkswagen. In addition, two 9-mm. Luger shell casings were found at the scene. One was in the street between the two police cars, the other near the left front bumper of Heanes' car and approximately where Frey was lying. The 9-mm. bullets had been fired from an automatic (Officers Frey and Heanes carried .38-caliber Smith & Wesson revolvers). A live 9-mm. Luger cartridge was found on the floor of the Volkswagen, between the two front seats. Only Officer Heanes' gun was found; he was holding it when the other officers arrived at the scene. Two rounds had been expended from the gun. Neither a Luger nor Officer Frey's revolver was found.
Oakland Police Department Officer John Davis testified for the People as follows: Two types of gunpowder, ball and flake, were involved in the shootings. Officer Frey's gunbelt contained high velocity cartridges with ball powder. Officer Heanes' gun used flake powder cartridges; the 9-mm. cartridges also contained flake powder. The three slugs recovered from Officer Frey's body, Heanes' knee and the Volkswagen door were .38-caliber specials fired with ball powder, similar to the cartridges in Officer Frey's gunbelt. The slugs found in both officers' bodies were fired from the same .38-caliber Smith & Wesson revolver, the type of weapon normally carried by Officer Frey; neither had been fired from Heanes' gun, which was of the same type.
Davis testified that a gunshot fired into a body from close range (up to "five, six feet," and with variations) will leave powder deposits at the point of impact; a gun firing a high velocity, ball powder bullet would have to be fired from a distance of more than six feet to leave no such deposits. Among several bullet-entry holes in Officer Frey's clothing, three (one in the left thigh and two in the back) were surrounded by ball powder deposits. Davis estimated that these shots were fired at the victim from distances of 12-24 inches, 12 inches and 6-12 inches. The other two entry holes in Frey's clothing (in the shoulder and elbow area) showed no powder deposits, and none appeared at the bullet-entry holes in the clothing worn by Officer Heanes and defendant.
[372]
Defense Evidence
Tommy Miller gave this testimony for the defense: He boarded an eastbound bus at Seventh and Willow Streets at about 5 a.m. on October 28, 1967. As the bus moved away from the stop, and the driver was making change for him and another passenger, he saw "red lights and police cars" on Seventh Street, and police officers and another man in the street; one of the officers "had him [the man] up against the car." The witness could identify no faces; it was "too dark," and the persons in the street were facing away from him. Hearing "a lot of gunfire," he laid down in the rear of the bus. When the shooting stopped, he got up and saw, from the back of the bus (which had stopped), a police officer lying on the ground.
Gene McKinney, who was also called by the defense, testified that he was defendant's passenger in the Volkswagen at Seventh and Willow Streets. He thereafter pleaded self-incrimination as to any and all subsequent questions, was held in contempt by the trial court, and gave no further testimony.
Defendant, testifying in his own behalf, denied killing Officer Frey, shooting Officer Heanes, or carrying a gun on the morning of the shootings. His account of the episode was as follows: He was driving with Gene McKinney on Willow Street, and had just turned into Seventh Street when he noticed a red light through the rear window of the Volkswagen. He pulled over to the curb and stopped. Officer Frey approached the Volkswagen and said "Well, well, well, what do we have? The great, great Huey P. Newton." Frey asked for defendant's driver's license and inquired as to the ownership of the Volkswagen. Defendant handed him his (defendant's) license, and the vehicle registration, and said that the car belonged to LaVerne Williams. Officer Frey returned the license and walked back to his patrol car with the registration.
A few minutes later Officer Heanes arrived, conversed with Frey, then walked up to the Volkswagen and asked, "Mr. Williams, do you have any further identification?" Defendant said, "What do you mean, Mr. Williams? My name is Huey P. Newton ..." Heanes replied, "Yes, I know who you are." Officer Frey then ordered defendant out of the car. He got out, taking with him a criminal law book in his right hand. He asked if he was under arrest; Officer Frey said no, but ordered defendant to lean against the car. Frey then searched him, placing his hands inside defendant's trousers and touching his genitals. (Officer Heanes had testified that defendant was not searched at any time.) McKinney, who had also alighted from the Volkswagen, was then standing with Officer Heanes on the street side of the Volkswagen.
[373] Seizing defendant's left arm with his right hand, Officer Frey told him to go back to his patrol car. Defendant walked, with the officer "kind of pushing" him, past the first police car to the back door of the second one. Defendant opened his book[4] and said, "You have no reasonable cause to arrest me." The officer said, "You can take that book and stick it up your ass, Nigger." He then struck defendant in the face, dazing him. Defendant stumbled backwards and fell to one knee. Officer Frey drew a revolver. Defendant felt a "sensation like ... boiling hot soup had been spilled on my stomach," and heard an "explosion," then a "volley of shots." He remembered "crawling ... a moving sensation," but nothing else until he found himself at the entrance of Kaiser Hospital with no knowledge of how he arrived there. He expressly testified that he was "unconscious or semiconscious" during this interval, that he was "still only semiconscious" at the hospital entrance, and that — after recalling some events at Kaiser Hospital — he later "regained consciousness" at another hospital.
The defense called Bernard Diamond, M.D., who testified that defendant's recollections were "compatible" with the gunshot wound he had received; and that "[a] gunshot wound which penetrates in a body cavity, the abdominal cavity or the thoracic cavity is very likely to produce a profound reflex shock reaction, that is quite different than a gunshot wound which penetrates only skin and muscle and it is not at all uncommon for a person shot in the abdomen to lose consciousness and go into this reflex shock condition for short periods of time up to half an hour or so."
The Instructions Upon Unconsciousness
Defendant asserts prejudicial error in the trial court's failure to instruct the jury on the subject of unconsciousness as a defense to a charge of criminal homicide. As the record shows — and the Attorney General emphasizes — that defendant's original request for instructions on this subject was "withdrawn," we first recount the sequence in which this occurred. During the trial, defense counsel submitted to the court a formal list requesting — by number only — specified CALJIC instructions pertaining, among other things, to self-defense (322 and 322-A), unconsciousness (71-C and 71-D), diminished capacity and manslaughter.[5] At the suggestion of all counsel, the court announced that "... [A]rgument and discussion concerning [374] the proposed instruction will be had in chambers and when we get through ... we will come out and place on the record the rulings of the Court ... [on the instructions proposed by both sides] ..." The conference in chambers, which followed, was not reported (although it apparently lasted for several hours). At the opening of the next trial day, this exchange occurred between the court and defense counsel:
"THE COURT: Gentlemen, in connection with the instructions, in discussion in chambers the attorneys for the defendant have withdrawn their request for Instruction No. 322, 322A, of CALJIC, being instructions in self-defense. Is that correct, Mr. Garry?
"MR. GARRY [defense counsel]: That is correct.
"THE COURT: Mr. Newton, you understand that? Meet with your approval?
"THE DEFENDANT: Yes, it does.
"THE COURT: Now, the attorneys for the defendant have requested that the Court give either 71C and 71D, or give 73B of CALJIC. Now, is that correct?
"MR. GARRY: That is correct.
"THE COURT: Very well. The Court will give 73B, and at the request of the defendant will not give 71C and 71D. Does that meet with your approval, Mr. Garry?
"MR. GARRY: Yes, Your Honor.
"THE COURT: Mr. Newton, that has been explained to you and it meets with your approval?
"THE DEFENDANT: Yes." (Italics added.)
The trial court then enumerated, with some intermittent discussion, the CALJIC and other instructions which be given. This exchange followed:
"MR. GARRY: Let the record show that the instructions that have been requested by the defendant that are not being given, of course, will be stated as an objection on our part.
"THE COURT: Well, with the exception, of course, of those which have — 322 and 322A — which you have withdrawn, 71C and 71D which, in effect, you have withdrawn, because we are giving 73B —
"MR. GARRY: Yes, Your Honor.
"THE COURT: Those are the only ones. All the other instructions, yes, [375] I have gone through all of them and they are either not given or else they are covered by other instructions given, and I will make a note, of course, on each instruction ... and file that. You know now what instructions the Court plans to give...."[6]
Thereafter the trial court fully and correctly instructed the jury on murder in the first degree (including the requisite elements of willfulness, deliberation, premeditation and malice aforethought) and in the second (including the element of malice aforethought). At defendant's request, the court also gave instructions on voluntary manslaughter[7] and diminished capacity.[8] Pursuant to the judge's intentions as announced in the dialog quoted above, the instructions originally requested by defendant on self-defense (CALJIC 322 and 322-A) and unconsciousness (71-C and 71-D) were not given; the jury was instructed on neither subject.
Although the evidence of the fatal affray is both conflicting and confused as to who shot whom and when, some of it supported the inference that defendant had been shot in the abdomen before he fired any shots himself.[9] [376] Given this sequence, defendant's testimony of his sensations when shot — supplemented to a degree, as it was, by Dr. Diamond's opinion based upon the nature of the abdominal wound — supported the further inference that defendant was in a state of unconsciousness when Officer Frey was shot.
(1) Where not self-induced, as by voluntary intoxication or the equivalent (of which there is no evidence here, as we pointed out in fn. 8, ante), unconsciousness is a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. Five; People v. Graham (1969) 71 Cal.2d 303, 316-317 [78 Cal. Rptr. 217, 455 P.2d 153]; People v. Wilson (1967) 66 Cal.2d 749, 760-762 [59 Cal. Rptr. 156, 427 P.2d 820].) "Unconsciousness," as the term is used in the rule just cited, need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist — and the above-stated rule can apply — where the subject physically acts in fact but is not, at the time, conscious of acting.[10] The statute underlying the rule makes this clear,[11] as does one of the unconsciousness instructions originally requested by defendant.[12] (See also People v. Roerman (1961) 189 Cal. App.2d 150, 160-163 [10 Cal. Rptr. 870] and cases cited.) Thus, the rule has been invoked in many cases where the actor fired multiple gunshots while inferably in a state of such "unconsciousness" (e.g., People v. Coogler (1969) 71 Cal.2d 153, 157-159, 161-166, 169 [77 Cal. Rptr. 790, 454 P.2d 686]; People v. Wilson, supra, at pp. 752-753, 755-756, 761-763; People v. Bridgehouse (1956) 47 Cal.2d 406, 409-411, 414 [303 P.2d 1018]; People v. Moore (1970) 5 Cal. App.3d 486, 488-490, 492 [85 Cal. Rptr. 194]; People v. Edgmon (1968) 267 Cal. App.2d 759, 762-763, 764 [fn. 5], [73 Cal. Rptr. 634]; People v. Cox (1944) 67 Cal. App.2d 166, 169-173 [153 P.2d 362]), including some in which the only evidence of "unconsciousness" was the actor's own testimony that he did not recall the shooting. [377] (E.g., People v. Wilson, supra, at pp. 755-756, 762; People v. Bridgehouse, supra, at pp. 409-411.)
(2) Where evidence of involuntary unconsciousness has been produced in a homicide prosecution, the refusal of a requested instruction on the subject, and its effect as a complete defense if found to have existed, is prejudicial error. (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Bridgehouse, supra, 47 Cal.2d 406 at p. 414. See People v. Mosher (1969) 1 Cal.3d 379, 391 [82 Cal. Rptr. 379, 461 P.2d 659]; People v. Coogler, supra, 71 Cal.2d 153 at p. 169.) The fact, if it appears, that such evidence does not inspire belief does not authorize the failure to instruct: "However incredible the testimony of a defendant may be he is entitled to an instruction based upon the hypothesis that it is entirely true." (People v. Modesto (1963) 59 Cal.2d 722, 729 [31 Cal. Rptr. 225, 382 P.2d 33] [quoting People v. Carmen (1951) 36 Cal.2d 768, 772-773 (228 P.2d 281)].) (3a) It follows that the evidence of defendant's unconsciousness in the present case was "deserving of consideration" upon a material issue. (People v. Castillo (1969) 70 Cal.2d 264, 270 [74 Cal. Rptr. 385, 449 P.2d 449]; People v. Modesto, supra; People v. Carmen, supra.)
Defendant did not request instructions upon unconsciousness; as we have seen, his original request therefor was "withdrawn." (4) But a trial court is under a duty to instruct upon diminished capacity, in the absence of a request and upon its own motion, where the evidence so indicates. (People v. Henderson (1963) 60 Cal.2d 482, 490-491 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Stines (1969) 2 Cal. App.3d 970, 977 [82 Cal. Rptr. 850].) (5) The difference between the two states — of diminished capacity and unconsciousness — is one of degree only: where the former provides a "partial defense" by negating a specific mental state essential to a particular crime, the latter is a "complete defense" because it negates capacity to commit any crime at all. (See People v. Gorshen (1959) 51 Cal.2d 716 at p. 727 [336 P.2d 492]; People v. Conley (1966) 64 Cal.2d 310, 319 [49 Cal. Rptr. 815, 411 P.2d 911].) (6) Moreover, evidence of both states is not antithetical; jury instructions on the effect of both will be required where the evidence supports a finding of either. (See People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson (1965) 63 Cal.2d 351, 355-356 [46 Cal. Rptr. 863, 406 P.2d 43].) (3b) We hold, therefore, that the trial court should have given appropriate unconsciousness instructions upon its own motion in the present case, and that its omission to do so was prejudicial error. (See People v. Mosher, [378] supra; People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.)
The error was prejudicial per se because the omission operated to deprive defendant of his "constitutional right to have the jury determine every material issue presented by the evidence." (People v. Mosher, supra, 1 Cal.3d 379 at p. 391; (People v. Modesto, supra, 59 Cal.2d 722 at pp. 730-731.) Actual prejudice, moreover, is perceptible in the present case. The voluntary manslaughter verdict indicates the jury's decision that defendant shot Officer Frey, but that the jurors found (1) provocation by the officer or (2) dimished capacity on defendant's part, or both. As defendant alone testified to both events, it appears that the jury believed him as to either or both. But, if they fully believed his testimony with respect to his asserted unconsciousness, they had been given no basis upon which to acquit him if they found it to be true. (See People v. Coogler, supra, 71 Cal.2d 153 at p. 169; People v. Moore, supra, 5 Cal. App.3d 486 at p. 492.) Defense counsel, in fact, argued to the jury defendant's, and Dr. Diamond's testimony on this subject. Absent instructions upon the legal effect of unconsciousness as a complete defense, the argument was necessarily limited and essentially ineffective. It further appears that the jury gave some thought at least, to acquitting defendant upon a finding of justifiable homicide.[13] Under these circumstances, it is "reasonably probable" that a result more favorable to him — i.e., a verdict acquitting him of the homicide, based upon unconsciousness as a complete defense — would have been reached if the omitted instruction had been given. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
The Question of Invited Error
As defendant's point on the omission of unconsciousness instructions is thus valid on its merits, the question is whether he is precluded from asserting [379] it on appeal because his original request for such instructions was "withdrawn." He contends in effect that he withdrew his request for CALJIC 71-C and 71-D only because the trial court forced him to choose between them and a Wells-Gorshen instruction on dimished capacity. (People v. Wells (1949) 33 Cal.2d 330 [202 P.2d 53]; People v. Gorshen, supra, 51 Cal.2d 716.) The trial court denied this claim when defense counsel asserted it on motion for new trial, nevertheless, the judge's remarks at trial suggest that he (the judge) thought the jury should be given instructions on diminished capacity or unconsciousness, but not upon both.[14]
If the trial court entertained this view at the time of its remarks, it was in error: the defenses of diminished capacity and unconsciousness were "entirely separate," and neither incompatible nor mutually exclusive, under the evidence. (See People v. Baker, supra, 42 Cal.2d 550 at p. 575 [268 P.2d 705]; People v. Mosher, supra, 1 Cal.3d 379 at p. 391; People v. Anderson, supra, 63 Cal.2d 351 at p. 356.) In any event, while the deficient record[15] does not clearly substantiate counsel's claim that the trial court forced him to a choice, it does not wholly refute him, either; and it tends to explain the court's failure to instruct upon both defenses, upon its own motion, whether counsel correctly understood the situation or not.
A similar situation occurred, and was considered on appeal in light of the "invited error" concept, in People v. Graham, supra, 71 Cal.2d 303. In Graham, defense counsel had openly consented to the trial court's omission of a proper instruction and giving an erroneous one. (Id., pp. 317-318.) The Supreme Court first posed the question in terms of "whether the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel" (id., pp. 317-318 (italics added)). and cited People v. Phillips (1966) 64 Cal.2d 574, 580-581 [fn. 4], [51 Cal. Rptr. 225, 414 P.2d 353] to the effect that such "waiver" foreclosed [380] complaint on appeal only where "the record indicated a `deliberate' or `expressed' tactical decision by counsel to forego a particular instruction which the court is otherwise obliged to render to the jury." (People v. Graham, supra, at p. 318 (italics in the original).)
The Graham court went on to hold that "invited error" will not originate, so as to foreclose complaint on appeal, by reason of counsel's neglect or mistake: "[O]nly if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause." (People v. Graham, supra, 71 Cal.2d 303 at p. 319 (italics added).) This rule applies with equal effect in the present case, where defense counsel's asserted "waiver" consisted of failing to press for instructions upon unconsciousness, and the Graham court said as much: "This formulation correctly resolves the competing considerations of the underlying policies relevant to the problem. On the one hand, the attorney should exercise control over his case and bear responsibility for tactical decisions reached in the course of his representation. On the other hand, the Legislature has indicated that instructions which affect the substantial rights of a defendant should be subject to review, even though his counsel, through neglect or mistake, has failed to object to them. Indeed, this court has held that a trial judge must on his own motion fully and correctly instruct the jury on general principles of law, regardless of the failure of defense counsel to offer such instructions or to object to their omission." (Id., at pp. 319-320 [italics added].)
The self-defense instructions originally requested by defendant (CALJIC 322 and 322-A) were wholly inconsistent with his testimony that he he did not kill Officer Frey or shoot Officer Heanes. Accordingly, we can discern a "deliberate tactical purpose" in his counsel's withdrawing the request for them. Defendant's denial of the shootings, however, went no further than his own conscious recollections as recited in his testimony; the denial was not inconsistent with the hypothesis that he fired a gun while — and not before — he was in a state of "unconsciousness" as such state has previously been defined herein. Against the substantial evidence that it was he who shot Officer Frey, the instructions he requested on diminished capacity afforded him partial defenses at best. As only instructions upon unconsciousness offered a complete defense (People v. Wilson, supra, 66 Cal.2d 749 at p. 764; People v. Mosher, supra, 1 Cal.3d 379 at p. 391), his counsel's "withdrawal" of them, or the failure to press for them, is irreconcilable with "deliberate [381] tactical purpose" on counsel's part. (Cf. People v. Phillips, supra, 64 Cal.2d 574 at pp. 580-581 [fn. 4 and cases cited].)
(7) The "withdrawal" of the critical instructions — to the extent that the event appears[16] — can perhaps be ascribed to "neglect or mistake" (People v. Graham, supra, 71 Cal.2d 303 at p. 319), or "ignorance or inadvertence" (id., at p. 320) on the part of defense counsel. Whatever the reason for it, though, no "deliberate tactical purpose" appears and we can conceive of none. Under these circumstances, the "invited error" doctrine does not foreclose defendant from asserting his point on the appeal. (Id., at p. 319.) Since we have sustained the point on its merits, the judgment must be reversed.
We also sustain certain other claims of trial error advanced by defendant on the appeal. As the error in the instructions alone requires reversal, we need assess none of the other errors in terms of prejudicial effect. Some of them warrant discussion although they will not recur; others require it because of the prospect of a retrial. They relate to (1) an extrajudicial statement given to the police by the witness Henry Grier, (2) the grand jury testimony of Dell Ross concerning the kidnaping charged in count Three of the indictment, and (3) defendant's prior felony conviction.
Grier's Extrajudicial Statement
Henry Grier's eyewitness account of the shooting affray (summarized supra) was the only direct trial evidence that defendant was the person who fatally shot Officer Frey; Grier's in-court identification of defendant was positive in this respect. He had given a tape-recorded statement to the Oakland police, on the morning of the shootings and less than two hours afterward. As recited in the written transcript of the October 28 statement, his narrative version of the shooting episode did not materially vary from that given in his trial testimony. In the statement as transcribed, however, he described Officer Frey's assailant as "very short ... sort of pee-wee type fellow ... no more [than] five feet" in height, weighing "125 pounds" and wearing a dark shirt and light jacket. Grier testified at the trial that Frey's assailant was of "medium height and build" (consistent with the physical measurements of defendant, who is 5 feet 10 inches tall and weighs 165 pounds) and wore a light shirt and dark jacket. Emphasizing [382] these discrepancies in cross-examining Grier, defense counsel made extensive use of the October 28 transcript to impeach the witness' in-court identification of defendant. Counsel also read the full transcript to the jury. The copy used for these purposes, as made available to the defense by the prosecution at the time of trial, showed the following question put to Grier by the police on the morning of the shootings, and his answer thereto:
"Q" [By the interrogating police officer] About how old was [Officer Frey's assailant]?
"A. I couldn't say because I only had my lights on, I couldn't — I did get a clear picture, clear view of his face but — because he had his head kind of down facing the headlights of the coach [Grier's AC Transit bus] and I couldn't get a good look — " (Italics added.)
Arguing to the jury, defense counsel cited the passage of the transcript wherein Grier had said he "couldn't get a good look," but omitted any reference to his statement that he "did get a clear picture, clear view" of the assailant's face. Responding in his closing argument, the prosecutor repeatedly reminded the jury of the latter statement. During its deliberations, the jury asked to see a copy of the transcript. Defense counsel, having mutilated his copy during his jury argument, requested another copy from the prosecution. According to the new copy he received, Grier had said, in the above-quoted context of the October 28 statement, that "I didn't get a clear picture, clear view of his face ..." (Italics added.)
The defense immediately moved to reopen the case so that the jury could be apprised of newly discovered evidence. The court denied the motion. Having then obtained the original October 28 police recording of Grier's statement, the defense again moved to reopen. This time, after hearing a playback of the recording, the court found that Grier had indeed said "didn't" in the context quoted above. The judge again refused to reopen, but stated that some action should be taken to provide the jury with a corrected version of the Grier statement. The court thereupon ordered that a "correction" be made in the written transcript, and that a corrected copy of the document be "sent to the Jury just in an ordinary manner without any comment or instructions." The transcript was sent to the jury with the word "did" corrected to read "didn't," but without explanation or notice of the change.
(8) Defendant contends that the trial court abused its discretion in refusing to reopen the case. The Attorney General's only argument is to the effect that defendant cannot now complain because his attorney approved the procedure followed by the trial court in sending the corrected transcript to the jury. Defense counsel did indicate his approval of the procedure [383] when the trial court proposed it, but this was after defendant's first motion to reopen had been denied and the court had indicated its intention to deny the second. At that point, counsel had the choice of approving the procedure or having no correction sent to the jury at all. Under the circumstances, he cannot be said to have waived the right to challenge the court's denial of his motions to reopen.
(9) The trial court clearly had discretion to order the case reopened (Pen. Code §§ 1093, 1094; People v. Berryman (1936) 6 Cal.2d 331, 338-339 [57 P.2d 136]; People v. Richardson (1961) 192 Cal. App.2d 166, 169 [13 Cal. Rptr. 321]), even after the jury deliberations had begun (People v. Christensen (1890) 85 Cal. 568, 570 [24 P. 888]. See Stoumen v. Munro (1963) 219 Cal. App.2d 302, 319 [33 Cal. Rptr. 305]; Annot., 87 ALR2d 849, 851 et seq.) (10) Factors to be considered in reviewing the exercise of such discretion include the stage the proceedings had reached when the motion was made (see People v. Carter (1957) 48 Cal.2d 737, 757 [312 P.2d 665]), the diligence shown by the moving party in discovering the new evidence (Fernandez v. United States (9th Cir.1964) 329 F.2d 899, 903), the prospect that the jury would accord it undue emphasis (Eason v. United States (9th Cir.1960) 281 F.2d 818, 821-822, and the significance of the evidence. (People v. Carter, supra, at p. 755.)
Reopening — and its conceivably attendant consequences in terms of further proof, argument and instructions — would have been inconvenient because of the stage of the proceedings at which defendant moved, but it was neither impossible nor unreasonable. (See People v. Carter, supra, 48 Cal.2d 737 at p. 757; Witkin, Cal. Criminal Procedure (1963) § 434, pp. 435-436 and cases cited.) Reopening was not precluded by any lack of diligence on the part of the defense,[17] and the trial court could have minimized the possibility that the jury would overemphasize the newly discovered evidence.
Whether the new evidence — i.e., the single word change required and made in the transcript of Grier's pretrial statement — was vital and material is arguable either way. Still, Grier was the only witness who positively identified defendant as Officer Frey's assailant. (11) Whether he "did" or "didn't" see the assailant's face was material, especially in light of the [384] discrepancies in his separate descriptions of the person he claimed to have seen shooting Officer Frey. The prosecution had vigorously emphasized the word "did" in defending the credibility of Grier's in-court indentification of defendant. The latter was entitled to have the jury consider the possibility, however remote, that someone other than he (e.g., Gene McKinney, whose role in the shooting episode is obscure, under the evidence, to the point of mystery) had engaged in the fatal scuffle with the officer. The jury had indicated its interest in these matters by requesting a copy of the transcript of Grier's pretrial statement. Under all the circumstances, we conclude that the trial court abused its discretion in denying defendant's motions to reopen the case.
The Dell Ross Grand Jury Testimony
Before the grand jury which produced the indictment charging defendant, in count Three, with kidnaping Dell Ross on October 28, 1967, Ross testified in pertinent part as follows: Sitting in his parked automobile near Seventh and Willow Streets on that date, he heard several gunshots. Two men (one of them defendant, whom Ross identified to the grand jury from a photograph) entered his car. Defendant ordered him, at gunpoint, to drive the pair to a specified street corner in Oakland. Ross complied. While in his car, both men made several statements, quoted by Ross to the grand jury, which implicated defendant in the shooting episode and were highly damaging to his defense in the present prosecution.
When called by the People as a trial witness, and upon the advice of counsel (who appeared with him) Ross pleaded self-incrimination and refused to answer any questions concerning the morning of October 28, 1967. At the request of the prosecution and pursuant to Penal Code section 1324, the trial court granted him immunity and ordered him to testify. Although Ross continued to refuse upon the ground of self-incrimination, he soon indicated that he did not remember what happened on October 28 or testifying to the grand jury. Upon this basis, the prosecutor showed him a copy of the transcript of his grand jury testimony and asked whether it refreshed his memory. When Ross said that he could not read, and over defense objections, the prosecutor then read all his grand jury testimony to the trial jury.
The trial court instructed the jury that the grand jury testimony, and the defense tape recording, were admitted for impeachment only and not for the truth of the matters asserted in either. Several trial days later, upon motion by the defense, the trial court ordered stricken from the record "the entire testimony of ... [Dell Ross] ..., and all questions asked of and answers given by said witness, including papers and recordings [385] and all statements heretofore made by any counsel, or by the Court, in connection with said witness"; instructed the jury to disregard such evidence; and entered a verdict of acquittal on the kidnaping charge for the stated reason that "the evidence now before the Court is insufficient to sustain a conviction of such offense."
In light of several considerations (the trial court's order striking the Ross testimony to the grand jury, its admonition to the trial jury to disregard it, its order acquitting defendant of the Ross kidnaping, and the degree of the jury's verdict on the homicide charge), it is questionable whether the reading of the grand jury testimony was prejudicial error. It was, however, error which should not recur if defendant is retried.[18] (12) Because of Ross's inability or refusal to recall his testimony to the grand jury, the defense had no opportunity to cross-examine him concerning that testimony. The reading thereof to the trial jury, consequently, operated to violate defendant's Sixth Amendment right of confrontation. (U.S. Const., 6th Amend.; Douglas v. Alabama (1964) 380 U.S. 415, 419-420 [13 L.Ed.2d 934, 937-938, 85 S.Ct. 1074]; see California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930].) (13) Nor can the action be justified as impeachment. A party's right to impeach his own witness (Evid. Code, §§ 785, 780 [subd. (h)], 769, 770) is not available where, as here, the witness has not testified against the impeaching party at all: "there is nothing to counteract," and the prior statement emerges as substantive evidence of the facts asserted in it. (People v. Newson (1951) 37 Cal.2d 34, 41 [230 P.2d 618].)
[386]
The Prior Felony Conviction
As charged in the indictment and found by the jury, defendant was convicted of a felony (assault with a deadly weapon) in 1964. He represented himself at the 1964 trial. The conviction was affirmed by this court in an unpublished decision filed in 1965 (People v. Newton (1965) 1 Crim. 4908 [certified for nonpublication]); the Supreme Court denied defendant's petition for hearing. During jury voir dire in the present prosecution, defendant moved to strike the prior conviction from the indictment, and for a protective order forbidding its "mention" at the murder trial, upon the Sixth Amendment ground that his waiver of counsel in the 1964 proceedings had been ineffective. The trial court read into the record the full appellate court decision in which the prior conviction was affirmed in 1965; stated that the appellate court had therein considered all of defendant's current contentions; and denied his motion without an evidentiary hearing.
(14) Where a prior conviction is constitutionally invalid because the accused was deprived of his Sixth Amendment right to counsel or did not effectively waive it, utilization of the conviction in a subsequent prosecution to support his guilt, enhance his punishment, or impeach his testimonial credibility, is constitutional error. (Burgett v. Texas (1967) 389 U.S. 109, 114-116 [19 L.Ed.2d 319, 324-326, 88 S.Ct. 258]; People v. Coffey (1967) 67 Cal.2d 204, 218-219 [60 Cal. Rptr. 457, 430 P.2d 15].) When he raises the issue in the subsequent prosecution by moving to strike the prior or by denying it (upon constitutional grounds in either instance), the trial court must hold a hearing outside the presence of the jury and make a relevant finding based upon evidence there presented. (People v. Coffey, supra, at pp. 217-218.) The required hearing must be conducted even if the issue arises during the trial, so long as the objection is asserted before the case is submitted to the jury. (People v. Curtis (1969) 70 Cal.2d 347, 359-361 [74 Cal. Rptr. 713, 450 P.2d 33].)
The People contend that defendant's motion to strike was invalid on procedural and formal grounds. We need not here set forth the details of the motion as challenged by the Attorney General in this regard; they are intricate, and are unlikely to recur if defendant again mounts a constitutional attack upon the 1964 conviction. It suffices to say that we reject the Attorney General's procedural and formal objections to the motion, and that, fairly read with the declaration by counsel which was filed in support thereof, the motion unmistakably advanced the claim that the 1964 trial court had permitted defendant to represent himself at the assault trial without inquiring into his ability to do so. (15) Recent decisions establish [387] that such inquiry is required before a waiver of counsel can be accepted by a trial court. (E.g., People v. Carter (1967) 66 Cal.2d 666, 672 [58 Cal. Rptr. 614, 427 P.2d 214]; People v. Armstrong (1969) 274 Cal. App.2d 297, 303 [79 Cal. Rptr. 223].) While defendant's motion and its supporting declaration were drafted inartfully and in obvious haste, they presented a reasonably "clear allegation" by defendant "to the effect that, in the proceedings leading to the prior conviction under attack, he neither was represented by counsel nor waived the right to be so represented." (Original italics.) (People v. Coffey, supra, 67 Cal.2d 204 at p. 215 [quoting People v. Merriam (1967) 66 Cal.2d 390, 397 (58 Cal. Rptr. 1, 426 P.2d 161)].)
The People also argue that defendant's Sixth Amendment point, as addressed to the 1964 conviction, was resolved against him on the 1965 appeal. We disagree: the 1965 decision noted that he had waived counsel by insisting upon representing himself at the assault trial, but the point now advanced — that his waiver of counsel was ineffective for lack of an appropriate inquiry by the trial court in 1964 — was neither raised nor resolved on the former appeal. (16) As the right to assistance of counsel at the former trial "applies retrospectively without regard to time" (People v. Coffey, supra, 67 Cal.2d 204 at p. 214) for purposes of the present case, the trial court erred in failing to conduct an evidentiary hearing upon defendant's motion to strike. (Id., at pp. 214-218.)
(17) In the motion, defendant also attacked the prior conviction upon the Fifth Amendment ground that the 1964 trial court permitted him to testify (he being unrepresented by counsel) without advising him of his right not to do so. (See People v. Wells (1968) 261 Cal. App.2d 468, 481 [68 Cal. Rptr. 400]; People v. Glaser (1965) 238 Cal. App.2d 819, 828-829 [48 Cal. Rptr. 427].) Because of the inadequacy of defendant's showing, on the motion, that he was unaware of his right not to testify at the 1964 trial (see People v. Glaser, supra, at pp. 832-833), we perceive no error in the trial court's denial of his motion with respect to his Fifth Amendment point. (We do not hold as the law of the case that he is precluded from asserting the point again. The problem may not present itself; a ruling by the trial court on his Sixth Amendment point may render it moot.)
Defendant has made certain other contentions which warrant discussion because of the prospect that his prosecution will continue. First among these are his arguments challenging the validity of his indictment by the grand jury and the manner in which the trial jury was selected. (He raised both questions with pretrial motions, which the trial court denied.)
[388]
The Validity of Defendant's Indictment
(18) Contrary to defendant's first several contentions relative to his indictment by the grand jury, we hold as follows: (1) The laws of this state which permit a prosecutor to proceed against an accused by way of either information or grand jury indictment, at the prosecutor's option (Cal. Const., art. I, § 8; Pen. Code, §§ 682, 737), are constitutional. (People v. Flores (1969) 276 Cal. App.2d 61, 65-66 [81 Cal. Rptr. 197].) (19) (2) Defendant was not, by reason of the grand jury proceedings which produced his indictment, unconstitutionally denied the procedural rights which would have been available to him at a preliminary examination. (People v. Flores, supra.) (20) (3) The California statutes controlling the selection of grand jurors (Pen. Code, § 894 et seq.) are constitutional. (Turner v. Fouche (1970) 396 U.S. 346, 353-355 [24 L.Ed.2d 567, 575-576, 90 S.Ct. 532]; Carter v. Jury Commission (1970) 396 U.S. 320, 329-337 [24 L.Ed.2d 549, 557-561, 90 S.Ct. 518]; Smith v. Texas (1940) 311 U.S. 128, 130-131 [85 L.Ed. 84, 86-87, 61 S.Ct. 164].)
Grand Jury Selection
Defendant next contends that the above-cited grand jury selection statutes, as applied in Alameda County, resulted in unconstitutional discrimination against young persons, low income groups and black persons.[19] According to the evidence produced upon his pretrial motion in this regard, the membership of the grand jury which indicted him was drawn from among persons who had been nominated to the grand jury by each of the county's 20 superior court judges. (Pen. Code, § 903.4.) The presiding judge of the superior court (for 1967) testified that he had selected his three nominees from among his personal acquaintances. There was no evidence of the selection practices followed by other judges in connection with the 1967, or any other, grand jury.
(21) The constitutional standards controlling the selection of grand jurors are the same as for petit jurors. (Pierre v. Lousiana (1939) 306 U.S. 354, 362 [83 L.Ed. 757, 762, 59 S.Ct. 536].) (22) They must be selected in a manner which does not systematically exclude, or substantially underrepresent, the members of any identifiable group in the community. (Whitus v. Georgia (1967) 385 U.S. 545, 548-552 [17 L.Ed.2d 599, 602-605, 87 S.Ct. 643] Hernandez v. Texas (1954) 347 U.S. 475, 476-478 [389] [98 L.Ed. 866, 869-870, 74 S.Ct. 667]; People v. White (1954) 43 Cal.2d 740, 749-753 [278 P.2d 9]). (23) Such "purposeful discrimination," however, "may not be assumed or merely asserted"; it must be proved (Swain v. Alabama (1965) 380 U.S. 202, 205 [13 L.Ed.2d 759, 764, 85 S.Ct. 824]), and defendant bore the burden of making a prima facie case that it existed here. (Whitus v. Georgia, supra, at p. 550 [17 L.Ed.2d at pp. 603-604].) He presented to the trial court little or no evidence concerning the racial composition of any Alameda County grand jury or grand jury panel. He showed a breakdown of certain grand jurors according to their occupations, but this does not demonstrate "purposeful discrimination" against poor people or anyone else. (See Fay v. New York (1947) 332 U.S. 261, 273-277 [91 L.Ed. 2043, 2052-2054, 67 S.Ct. 1613].) There was some evidence to the effect that all or most of the members of the 1967 grand jury (which indicted him) were middle-aged persons; again, however, systematic exclusion of the young is not shown. Defendant having failed to make a prima facie case that the 1967 grand jury was constitutionally infirm in any respect pertaining to its selection, he cannot challenge the validity of the indictment upon the ground asserted.
Petit Jury Selection
Defendant contends that the trial jury panel, and the jury itself, were unconstitutionally selected. While we need not consider his arguments relating to administrative excuses from jury service, challenges for cause, and peremptory challenges, we discuss those points which will be relevant in the event of retrial. The first is addressed to the fact that the names of the prospective trial jurors were drawn from the latest Alameda County voter registration lists, at random but from no other source.
On defendant's pretrial motion attacking the venire, his witnesses testified that the selection of jurors exclusively from voter lists results in underrepresentation of poor persons and black persons on juries, because such people are less likely to be registered voters. According to defendant's statistics, the voter registration rate in the predominantly black-populated areas of West Oakland, South Oakland and South Berkeley (all of which are in Alameda County) is 64.7 percent, whereas the countywide rate is 82 percent. One of his witnesses testified that black persons constitute about 7.5 percent of jury panels when voter registration lists are the sole source of prospective jurors' names. Black persons constitute 12.4 percent of Alameda County's population.
(24) As registration to vote is not a condition of eligibility for jury service in this state (see Code Civ. Proc., §§ 198, 199), the county's discretion to use voter registration lists as the source of jurors is subject to the constitutional requirement that juries must reasonably reflect a cross-section [390] of the community. (Smith v. Texas, supra, 311 U.S. 128 at p. 130 [85 L.Ed. 84 at p. 86]; People v. White, supra, 43 Cal.2d 740 at p. 749.) (25) While each jury roll or venire need not be a perfect mirror of the community (Swain v. Alabama, supra, 380 U.S. 202 at p. 208 [13 L.Ed.2d 759 at p. 766]; People v. White, supra), any substantial disparity, over a period of time, between a group's percentage thereon and its percentage in the eligible population is prima facie evidence of discrimination, regardless of the source of jurors, and shifts the burden to the prosecution to justify the discrepancy. (Turner v. Fouche, supra, 396 U.S. 346 at p. 360 [24 L.Ed.2d 567 at p. 579]; Whitus v. Georgia, supra, 385 U.S. 545 at pp. 550-552 [17 L.Ed.2d 599 at pp. 603-605].) The disparity claimed in the present case, however (7.5 percent versus 12.4 percent) is not so substantial as to produce this result. (Swain v. Alabama, supra, at pp. 205, 209 [13 L.Ed.2d at pp. 764, 766] (10-15 percent vs. 26 percent). Compare Turner v. Fouche, supra (37 percent vs. 60 percent); Sims v. Georgia (1967) 389 U.S. 404, 407 [19 L.Ed.2d 634, 637, 88 S.Ct. 523] (4.7-9.8 percent vs. 24.4 percent); Whitus v. Georgia, supra, 385 U.S. 545, 550-552 [17 L.Ed.2d 599, 603-605] (7.8-9.1 percent vs. 27.1 percent). See Kuhn, Jury Discrimination (1968) 41 So.Cal.L.Rev. 235, 251-257 and data cited passim.)
The record does not sustain defendant's contention that black persons were underrepresented on the trial jury panel; of the 160 prospective jurors examined, about 13 percent were black persons.[20] He presented no evidence of the economic status of any of the panel members to support his charge that poor persons were excluded from, or substantially underrepresented on, the panel. On the showing made, we cannot conclude that unconstitutional discrimination, on racial or economic grounds, occurred in the selection of prospective jurors.
(26) We also reject defendant's argument that, because of the nature of the case (involving a fatal altercation between a black defendant and white police officers), he was entitled to have at least one resident of West Oakland (described as a "black ghetto") serve on his trial jury.[21] (27) "Of course, these premises misconceive the scope of the right to an impartially selected jury assured by the Fourteenth Amendment. That right does not entitle one accused of crime to a jury tailored to the circumstances [391] of the particular case, whether relating to the sex or other condition of the defendant, or to the nature of the charges to be tried. It requires only that the jury be indiscriminately drawn from among those eligible in the community for jury service, untrammelled by any arbitrary and systematic exclusions. (Citation.)" Hoyt v. Florida (1961) 368 U.S. 57, 59 [7 L.Ed.2d 118, 120-121, 82 S.Ct. 159].)
Certain claims of trial error should also be mentioned. (28, 29) Contrary to defendant's contention as to each point, we hold as follows: (1) The trial court did not err in instructing the jury on flight and motive. The evidence supported the instructions given, and defendant's proposed modifications of the standard instructions on these subjects were properly refused because they emphasized specific evidence. (People v. Hughes (1951) 107 Cal. App.2d 487, 494 [237 P.2d 64]; Witkin, Cal. Criminal Procedure, op. cit., supra, § 477, pp. 484-485.) (2) Defendant's requested instruction on unlawful detention was also properly refused. (30) Unlawful detention by a police officer does not justify unlawful resistance thereto. (Pen. Code, § 834a; People v. Curtis (1969) 70 Cal.2d 347, 352 [74 Cal. Rptr. 713, 450 P.2d 33].)
(3) The trial court did not err in excluding the proffered testimony of defense witnesses Burton, Quinones, Daniels, Harris and Brown. (31) Burton's testimony, offered to prove past mistreatment of black persons by Officer Frey (a subject upon which the trial court gave the defense considerable latitude), was not probative on that subject and was cumulative to the testimony of other defense witnesses. (32) Quinones' testimony would have been to the effect that police officers harassed defendant at the hospital after the shootings; that of the other three, that the prosecution had offered to pay for information concerning this case. Neither subject was relevant.
(33) (4) The trial court did not unduly restrict the voir dire of prospective jurors concerning their racial attitudes. The record shows that the defense was given full latitude in asking questions pertaining to possible racial bias and their knowledge and viewpoints on such matters as the "Black Panther Party," fair housing, "black power" and various political and other organizations.
Other points raised on the appeal need not be discussed.
The judgment of conviction is reversed.
Devine, P.J., and Christian, J., concurred.
On June 26, 1970, the opinion was modified to read as printed above. Respondent's petition for a hearing by the Supreme Court was denied July 29, 1970. McComb, J., was of the opinion that the petition should be granted.
[1] "PIN" means "Police Information Network," a computerized system which stores and reports information concerning outstanding warrants associated with identified motor vehicles.
[2] Although Officer Heanes' testimony was clear to the effect that he heard the first shot, and was struck in the arm, before anything else happened, it was ambiguous as to the sequence in which the subsequent shots were fired. His first account, on direct examination, indicated that he fired at defendant's "midsection," and from a kneeling position, before he heard the "other gunshots" mentioned. His later testimony to the same events, under cross-examination and upon redirect, suggested that he heard the "other gunshots" before he fell to his knees and fired at defendant. As will appear, he fired another shot, and was himself shot again twice, during the episode described. He did not remember these events. and testified that he "blacked out," and had a "lapse of memory," after he was shot in the arm.
[3] Grier expressly testified to the sequence of shots stated here: i.e., that "the gun went off" the first time; the second officer "was hit and he fell," and fired his own gun; and the civilian thereafter fired "several shots" at the first officer.
[4] A criminal lawbook, with defendant's name inscribed inside, was found in a pool of blood near Officer Frey.
[5] On diminished capacity, defendant requested CALJIC 73-B (Revised) and 305.1 (New); on manslaughter, CALJIC 305-AA (New), 308 (Revised), 308-A (Revised), 310 (Revised), 311 and 311-B. This cause was tried before the publication (in 1970) of the current (third) edition of CALJIC; the work cited at the trial was the revised (1966) edition of CALJIC (California Jury Instructions — Criminal) as supplemented through its 1967 cumulative pocket part.
[6] Defendant's formal list requested 31 CALJIC instructions, referring to each by its number only. According to the trial court's "note" later written by the entries requesting CALJIC 322 and 322-A (on self-defense), and 71-C and 71-D (on unconsciousness), each of these requests was shown to have been "Withdrawn."
[7] CALJIC 308-A (Rev.) ("Voluntary manslaughter is the intentional and unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion without deliberation or premeditation"), 311 (concerning "provocation" and "heat of passion"), 305-AA (New) and 311-B.
[8] The court gave the two CALJIC instructions requested by defendant on this subject: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged" (CALJIC 73-B [Rev.]); and
"If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree." (CALJIC 305.1 [New].)
(We mention in passing that there was no evidence that defendant was mentally ill or intoxicated at the time of the shootings.)
[9] Defendant's testimony suggested that Officer Frey wounded him with the first shot fired. However, the absence of powder deposits on his (defendant's) clothing would indicate that Officer Heanes, not Frey, shot him. Grier's testimony was explicit as to this sequence: i.e., that Heanes. struck by the first bullet fired, shot at defendant before the latter commenced firing at Frey. (See text at fn. 3, ante.) Heanes' account, while less precise on this subject (see text at fn. 2, ante) also supports the inference that he shot defendant (in the "midsection") before Officer Frey was shot by anyone.
[10] As was true of Officer Heanes, according to his testimony (see fn. 2, ante), during part of the shooting episode in the present case.
[11] Penal Code section 26 provides in pertinent part that "All persons are capable of committing crimes except those belonging to the following classes: ... Five-Persons who committed the act charged without being conscious thereof." (Italics added.)
[12] CALJIC 71-C, which read in pertinent part as follows: "Where a person commits an act without being conscious thereof, such act is not criminal even though, if committed by a person who was conscious, it would be a crime...." (Italics added.)
[13] The jurors deliberated for four full days, during which they were twice reinstructed, by request, on murder in both degrees, voluntary manslaughter, provocation, heat of passion, diminished capacity, and assault. On one of these occasions, they apparently asked for instructions on "justifiable homicide," which had not been given in the first instance (and were not given when requested). The actual request — which was apparently in writing — does not appear of record, but the trial judge recalled it at a post-judgment hearing conducted for the purpose of correcting the reporter's transcript. The prosecutor declined to stipulate that the request was made, but stipulated that the judge's recollection thereof "may be put in the record." Since the event recalled stands uncontroverted, the jury's interest in "justifiable homicide" is thus a matter of record.
It also bears mentioning that, during their lengthy deliberations, the jurors asked to see, and were shown, the bullet wounds in defendant's body.
[14] We refer to the court's statements, quoted supra, that defense counsel had requested "either" CALJIC 71-C and 71-D (on unconsciousness) "or" 73-B (on diminished capacity); that the court would "give 73B and at the request of the defendant will not give 71C and 71D"; and that defense counsel's objections to omitted instructions did not reach "71C and 71D which, in effect, you have withdrawn, because we are giving 73-B ..."
[15] The record is deficient, of course, because the conference in chambers was unreported. This was not by stipulation of the parties, so far as appears, and it should not have occurred in this particular — and highly important — instance. (See Code Civ. Proc., § 269.)
[16] Because the conference in chambers went unreported (see fn. 15, ante), the record sheds no real light on this subject; the only relevant events of record are defense counsel's affirmative — and laconic — answers to the trial court's inquiries during the successive dialogs quoted, supra, from the trial proceedings. We accord no significance to defendant's similar responses.
[17] The Attorney General disputes the fact stated here, but he does so within the broader context of defendant's contention, on the appeal, that the prosecution's conduct in connection with Grier and his pretrial statement amounted to suppression of evidence. Defendant's contention involves the progression and effect of several pretrial motions and orders dealing with defense discovery; it was presented to the trial court, which rejected it; and, having examined it on the appeal, we conclude that no error appears in this regard. In all events, the footnoted statement stands.
[18] We have in mind the fact that, while the grand jury testimony of Ross no longer bears upon the kidnaping charge of which defendant was acquitted, it remains relevant to the homicide charge upon which he will presumably be retried.
[19] Defendant is a black person.
[20] Defendant points out that the number of prospective jurors examined does not produce a definitive percentage as stated here, because there were others on the panel; consequently, he argues. the actual percentage of black persons on the full panel cannot be determined. The percentage stated here, however, is the only figure supported by the record he was obligated to make.
[21] One black man, not a resident of West Oakland, served on the jury.
7.2.8.2.2.4 II.B.i Acts v. Omissions 7.2.8.2.2.4 II.B.i Acts v. Omissions
When is not acting an act? One of the most fraught distinctions in criminal law has been the act/omission distinction. For most people, punishing inaction in certain situations seems to flow naturally out of the sense of blameworthiness that underpins much of criminal law. However, defining the criminal act when it is not an act raises problems. As a general rule, there is no criminal liability for omissions. The following cases and readings consider the exceptions to this rule, whether they arise from statutorily created duties, special moral relationships, contractual relationships, or the voluntary assumption of responsibilities. As you will see, in some cases, criminalizing omissions likely tracks your moral intuitions. In others, you may feel more conflicted. Consider why different scenarios imply different levels of blameworthiness, but also what goals or behaviors society may seek to promote by assigning affirmative duties to act.
7.2.8.2.2.4.1 Pope v. State 7.2.8.2.2.4.1 Pope v. State
JOYCE LILLIAN POPE
v.
STATE OF MARYLAND
Court of Appeals of Maryland.
[311] The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.
George E. Burns, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.
Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
ORTH, J., delivered the opinion of the Court. ELDRIDGE, J., filed an opinion concurring in part and dissenting in part at page 354 infra.
Joyce Lillian Pope was found guilty by the court in the Circuit Court for Montgomery County under the 3rd and 5th [312] counts of a nine count indictment, no. 18666. The 3rd count charged child abuse, presenting that "on or about April 11, 1976,... while having the temporary care, custody and responsibility for the supervision of Demiko Lee Norris, a minor child under the age of eighteen years [she] did unlawfully and feloniously cause abuse of said minor child in violation of Article 27, Section 35A of the Annotated Code of Maryland...." The 5th count charged misprision of felony under the common law, alleging that on the same date she "did unlawfully and wilfully conceal and fail to disclose a felony to wit: the murder of Demiko Lee Norris committed by Melissa Vera Norris on April 11, 1976, having actual knowledge of the commission of the felony and the identity of the felon, with the intent to obstruct and hinder the due course of justice and to cause the felon to escape unpunished...."[1]
On direct appeal the Court of Special Appeals reversed the judgment entered on the child abuse conviction and affirmed the judgment entered on the misprision of felony conviction.[2] Pope v. State, 38 Md. App. 520, 382 A.2d 880 (1978). We granted Pope's petition and the State's cross-petition for a writ of certiorari. We affirm the judgment of the Court of Special Appeals with respect to the 3rd count, child abuse. We reverse the judgment of the Court of Special Appeals with [313] respect to the 5th count, misprision of felony. We remand to that court with direction to remand to the Circuit Court for Montgomery County for the entry of a judgment of acquittal on the third count and dismissal of the fifth count.
ISSUES FOR DECISION
I. The sufficiency of the evidence to sustain the conviction of Pope of the crime of child abuse as (1) a principal in the first degree, or (2) a principal in the second degree.
II. The status in Maryland of the crime of misprision of felony.
THE EVIDENCE
The evidence adduced at the trial[3] established that Demiko Lee Norris, three months old, died as a result of physical injuries inflicted by his mother, Melissa Vera Norris.[4] The abuse by the mother occurred over a period of several hours on a Sunday morning at Pope's home and in Pope's presence. Pope's involvement in the events leading to the child's abuse and death began on the preceding Friday evening when she and Melissa, with the child, were driven home by Pope's sister, Angela Lancaster, from a service held at the Christian Tabernacle Church. When they arrived at Melissa's grandparents' home, where Melissa was living, Melissa refused to enter the house, claiming that it was on fire, although in fact it was not. During the evening, Melissa had sporadically indicated mental distress. "She would at times seem caught up in a religious frenzy with a wild look about [314] her, trying to preach and declaring that she was God. She would as quickly resume her normal self without ever seeming to notice her personality transitions." Pope, 38 Md. App. at 531. Pope agreed to take Melissa and the child into her home for the night because she did not want to put them "out on the street," and Angela would not let them stay in her home. Melissa had no money and Pope and Angela bought food and diapers for the baby. That evening Pope cleaned and dried the baby and inquired of Melissa about a bad rash he had. Melissa slept in Pope's bedroom. Pope kept the baby with her in the living room, telling Melissa: "[Y]ou can go to sleep ... I'll be up, I'll just stay up, I'll watch the baby...." She explained in her testimony: "And I don't know why it was just, just a funny feeling that I had, you know, and ever since the baby was there I just kept it close to me for some reason." Pope fed the baby and fixed a bed for it in a dresser drawer. She stayed with the baby to care for him during the night because he was spitting up. She could not sleep while Melissa was there.
The next morning, awakened by the crying of the child, Pope fed him. Throughout the day Melissa "changed back and forth." When Melissa was "herself" she took care of her child. When Melissa thought she was God, Pope undertook the maternal duties. Pope watched the child "like it was my own," because "I felt maybe [Melissa] could [hurt the child] when she confessed she was God.... I felt close to the baby, maybe because, you know, I felt I haven't had a baby for so long, you know, I enjoyed taking care of the baby and watching it." At a baby shower Saturday evening at the home of Pope's mother, Melissa again reverted to being God, looking wild, speaking loudly, preaching and giving orders. Melissa and the baby returned to Pope's home. Melissa put the child in bed with her, but Pope thought it better that the child not remain there. She was afraid Melissa would roll over and "smother it to death." She told Melissa: "I'll just take the baby in [the living room] ... I'll watch it, I'll get up and feed it... I don't mind." The next morning, Sunday, at about 4:30 o'clock, Pope prepared the baby's bottle and fed him. When Melissa got up, Pope suggested that she go back to bed. Melissa behaved [315] normally for awhile. Then her "episodes of `changing to God' became more pronounced. She stomped and gestured as she strode back and forth, putting crosses on doors and demanding the departure of the evil which she claimed to see. She kicked and banged at the door of [Pope's] son, and fearful that by breaking in Melissa would frighten him, [Pope] unfastened the door to permit entry. Loudly exhorting Satan to leave the premises, Melissa `anointed' [Pope's] son with oil, placing some of the oil in the child's mouth. She subsequently repeated the process with [Pope's] daughter. When dressed, [Pope's] children left the house expeditiously, lingering only long enough to embrace their mother." Pope, 38 Md. App. at 531.
During a lucid period, Melissa prepared to go to church. She got a tub of water to bathe the baby. What next occurred is graphically described in the opinion of the Court of Special Appeals:
"Then, from her suddenly changed voice and appearance, [Pope] knew Melissa had changed again to `God.' Calling out that Satan had hidden in the body of her son, Melissa began to verbally exorcise that spirit and physically abuse the child by punching and poking him repeatedly about the stomach, chest and privates. After she undressed the child, that which ensued was hardly describable. In her religious frenzy of apparent exorcism, Melissa poked the child's vitals and beat the child about the head. She reached her fingers down its throat, wiping mucus and blood on diapers at hand, and even lifted the child by inserting her hands in its mouth, and shook him like a rag." Id.
Continuing to talk and stomp, Melissa began to squeeze the baby. Then, holding the child by the neck with one hand, she took him into the bathroom, acting like she did not know that Pope was present. When she first started this abuse, Melissa, in her "God voice," called Pope and asked her: "Didn't I give you eyes to see?" Pope noticed that Melissa's finger nails were "real long," and she said to Melissa: "[H]ow do you [316] handle a baby with such long nails," but Pope did nothing. She admitted that she knew at some point that Melissa was hurting the baby and was "fearful, amazed and shocked at the `unbelievable' and `horrible' thing that was happening."
Melissa's frenzy diminished. Angela came to the house to take them to church. Pope did not tell Angela what happened — "I could not get it out." Angela asked her what was wrong, and Pope said: "[I]t's Melissa, the baby...." She locked the door at Angela's direction so Angela's children would stay in the yard with Pope's children. Angela wrapped the child in a towel, raised him over her head and prayed.
Pope, Melissa and Angela left with the child to go to church. At Melissa's request they stopped by her grandfather's house, arriving about 2:00 p.m. Pope told him the child was dead, but he did not believe her because all three were acting so strangely. He refused to take or look at the baby. The three women with the child went to Bel Pre Health Center, picked up another member of the Christian Tabernacle congregation, telling her that "God has a job for you to do," and proceeded to the church. En route, they passed several hospitals, police stations and rescue squads. At the church, the child was given to, or taken by the Reverend Leon Hart, who handed him to Mother Dorothy King for her prayers. She discovered that the baby's body was cool and sent for ambulance assistance. Police and rescue personnel arrived and determined that the child was dead. There was expert medical testimony that the child had died sometime during the period of fifteen minutes to several hours after it was injured. The medical expert expressed no opinion as to whether the child could have been successfully treated if the injury had been reported sooner.
The police questioned Melissa in Pope's presence. Pope did not contradict Melissa's denial of abusing the child. In fact, Pope, in response to inquiry by the police, said that the baby did not fall, and told them that she had not seen Melissa strike the baby. She explained this untruth in subsequent statements to the police: "[I]t was her body in the flesh, but it wasn't her, because it was something else."
Pope, Melissa and Angela attended the evening service at the church. Melissa reverted to God during the service and [317] Reverend Hart restrained her and attempted to convince her that she was not Jesus Christ. Melissa refused to go to her grandfather's home and returned home with Pope. The next morning Pope was again interviewed at the police station and wrote a full explanation of what had happened. She later made an oral statement which was recorded.
I
THE CRIME OF CHILD ABUSE
The Statute
The General Assembly first evidenced its concern with the mistreatment of children fifteen years ago when it added § 11A to Art. 27 of the Maryland Code,[5] later codified as § 35A of that article,[6] declaring an assault on a child to be a felony. The statute in its entirety provided:
"Any parent, adoptive parent or other person who has the permanent or temporary care or custody of a minor child under the age of fourteen years who maliciously beats, strikes, or otherwise mistreats such minor child to such degree as to require medical treatment for such child shall be guilty of a felony, and upon conviction shall be sentenced to not more than fifteen years in the Penitentiary."
The Legislature's increasing interest in child abuse is reflected in the amendment from time to time of the seminal statute.[7] The result is a comprehensive scheme to fulfill the legislative intent and purpose, expressed in 1973,[8] as "the protection of children who have been the subject of abuse by mandating the reporting of suspected abuse, by extending immunity to those who report in good faith, by requiring prompt investigations of such reports and by causing [318] immediate, cooperative efforts by the responsible agencies on behalf of such children." Md. Code (1957, 1976 Repl. Vol.) Art. 27, § 35A. All of these were, of course, imposed over the felonious crime of child abuse. See subsections (a) through (j).
The Nature of Child Abuse
As we have seen, when the crime was first created by the General Assembly it comprised the malicious beating, striking or otherwise mistreating a child to such degree as to require medical treatment. We pointed out in State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976), that by the terms of the enactment it did not reach acts "not constituting, in one form or another, an assault on a child." Id. at 423. Acts 1973, ch. 835 repealed the "maliciously beats, strikes or otherwise mistreats" test of child abuse and substituted in its place a new and different measure of the offense. The 1973 amendment added a definition subsection to § 35A. Subsection (b) 7 provided that whenever "abuse" was used in § 35A, it shall mean "any physical injury or injuries sustained by a child as a result of cruel or inhumane treatment or as a result of malicious act or acts...." Acts 1974, ch. 554 designated this meaning as item (A) of ¶ 7 and expanded the definition of child abuse by adding item (B) so as to include in the offense "any sexual abuse of a child, whether physical injuries are sustained or not." The amendment also added ¶ 8 defining "sexual abuse" to mean "any act or acts involving sexual molestation or exploitation, including but not limited to incest, rape, carnal knowledge, sodomy or unnatural or perverted sexual practices on a child...." Acts 1977, ch. 290, substituted "or sexual offense in any degree" for "carnal knowledge" in ¶ 8.[9]
We considered the scope of item A, subsection (b)7 in Fabritz. Applying the rules of statutory construction, 276 Md. [319] at 421-423, we thought "it evident that the Legislature plainly intended to broaden the area of proscribed conduct punishable in child abuse cases." Id. at 423-424. We said:
"Its use in the amended version of § 35A of the comprehensive phraseology `who causes abuse to' a minor child, coupled with its broad two-pronged definition of the term `abuse,' supports the view that the Legislature, by repealing the narrow measure of criminality in child abuse cases then provided in § 35A, and redefining the offense, undertook to effect a significant change of substance in the scope of the statute's prohibitions. In making it an offense for a person having custody of a minor child to `cause' the child to suffer a `physical injury,' the Legislature did not require that the injury result from a physical assault upon the child or from any physical force initially applied by the accused individual; it provided instead, in a more encompassing manner, that the offense was committed if physical injury to the child resulted either from a course of conduct constituting `cruel or inhumane treatment' or by `malicious act or acts.'" Id. at 424.
We found that the failure of the mother to seek or obtain any medical assistance for her child, although the need therefor was obviously compelling and urgent, caused the child to sustain bodily injury additional to and beyond that inflicted upon the child by reason of the original assault by another. The act of omission by the mother "constituted a cause of the further progression and worsening of the injuries which led to [the child's] death; and that in these circumstances [the mother's] treatment of [the child] was `cruel or inhumane' within the meaning of the statute and as those terms are commonly understood." Id. at 425-426. We therefore vacated the judgment of the Court of Special Appeals, which in Fabritz v. State, 24 Md. App. 708, 332 A.2d 324 (1975), had [320] reversed the judgment of the trial court entered upon the conviction of the mother of child abuse.[10]
Responsibility for Abuse of a Child
In Fabritz we went no farther than to determine that the Legislature intended that the "cause" of an injury may include an act of omission so as to constitute cruel or inhumane treatment, in that case the failure of the mother to seek or obtain medical assistance for her child who had been abused by another. Fabritz did not go to the class of persons to whom the statutory proscription applies, as the accused there was a "parent," the victim's mother, expressly designated in the statute.
[321] We have seen that the statute as originally enacted concerned "[a]ny parent, adoptive parent or other person, who has the permanent or temporary care or custody of a minor child...." Acts 1963, ch. 743. This has been once amended to bring within the ambit of the statute any person who has "responsibility for the supervision of a minor child." Acts 1966, ch. 221. Thus, since 1 June 1966,
"[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child under the age of eighteen years[[11]] who causes abuse to such minor child shall be guilty of a felony...." § 35A(a).
Persons subject to the statute are designated in those terms also in subsection (b) 7 (A) defining abuse and in subsection (b)8 defining sexual abuse.
In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we discussed the class of persons to whom § 35A applies, in rejecting the contention that the statute was vague and therefore constitutionally defective for the reason that it failed to define adequately that class. Bowers urged that the statute was too indefinite to inform a person who is not a parent or adoptive parent of a child whether he comes within the ambit of the statute. He argued that no one in such position is capable of ascertaining whether the statute is aimed only at persons who have been awarded custody by judicial decree or includes also those who may simply be caring for a child in place of the parent. We were of the view that the General Assembly intended that the statute apply to persons who stand in loco parentis to a child. We said: "Had the Legislature wished to narrow application of the child abuse law to those who had been awarded custody or control by court order, it could readily have done so in explicit language to that end." Id. at 130. We observed that Bowers' "own testimony amply established that he had assumed `the care or [322] custody or responsibility for the supervision' of his step-daughter, and thus stood in loco parentis with respect to her." Id.
Bowers' challenge centered on the "temporary care or custody" provision of the statute. It does not follow from our holding that "permanent or temporary care or custody" is synonymous with "responsibility for the supervision of." Such was clearly not the legislative intent, because, as we have seen, the latter provision was added by amendment three years after the former had been written into the law. There would have been no need to do so had the Legislature deemed the two provisions to have the same meaning.
The child abuse statute speaks in terms of a person who "has" responsibility for the supervision of a minor child. It does not prescribe how such responsibility attaches or what "responsibility" and "supervision" encompass. A doubt or ambiguity exists as to the exact reach of the statute's provision with respect to "has responsibility for the supervision of," justifying application of the principle that permits courts in such circumstances to ascertain and give effect to the real intention of the Legislature. See Fabritz at 423; Clerk v. Chesapeake Beach Park, 251 Md. 657, 663-664, 248 A.2d 479 (1968); Domain v. Bosley, 242 Md. 1, 7, 217 A.2d 555 (1966). Bowers equates "permanent or temporary care or custody" with "in loco parentis," but "responsibility for the supervision of" is not bound by certain of the strictures required for one to stand in place of or instead of the parent. A person in loco parentis is "charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary (4th ed. 1951). "A person in loco parentis to a child is one who means to put himself in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child. Or, as defined by Sir Wm. Grant, Master of the Rolls, a person in loco parentis is one, `assuming the parental character and discharging parental duties.' Weatherby v. Dixon, 19 Ves. 412.... There must be some indication, in some form, of an intention to establish it. It is a question of intention." Von der Horst v. Von der Horst, 88 Md. 127, 130-131, 41 A. 124 (1898).
[323] "The term `in loco parentis,' according to its generally accepted common law meaning, refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties. Niewiadomski v. United States, 159 F.2d 683, 686 (6th Cir.), cert. denied, 331 U.S. 850 (1947).
"This relationship involves more than a duty to aid and assist, more than a feeling of kindness, affection or generosity. It arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child." Fuller v. Fuller, 247 A.2d 767 (D.C. 1968), appeal denied, 418 F.2d 1189 (1969).
A person may have the responsibility for the supervision of a minor child in the contemplation of § 35A although not standing in loco parentis to that child. "Responsibility" in its common and generally accepted meaning denotes "accountability," and "supervision" emphasizes broad authority to oversee with the powers of direction and decision. See American Heritage Dictionary of the English Language (1969); Webster's Third New International Dictionary (1968). As in the case of care or custody of a minor child under the child abuse law, a judicial decree is not necessary to obtain responsibility for the supervision of a minor child under that statute. Had the Legislature wished to narrow application of that law to those who had been charged with responsibility for the supervision of a child by court order, it could readily have done so in explicit language to that end. See Bowers, 283 Md. at 130. Absent a court order or award by some appropriate proceeding pursuant to statutory authority, we think it to be self-evident that responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. In other words, a parent may not impose [324] responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. So it is that a baby sitter temporarily has responsibility for the supervision of a child; the parents grant the responsibility for the period they are not at home, and the sitter accepts it. And it is by mutual consent that a school teacher has responsibility for the supervision of children in connection with his academic duties. On the other hand, once responsibility for the supervision of a minor child has been placed in a third person, it may be terminated unilaterally by a parent by resuming responsibility, expressly or by conduct. The consent of the third party in such circumstances is not required; he may not prevent return of responsibility to the parent. But, of course, the third person in whom responsibility has been placed is not free to relinquish that responsibility without the knowledge of the parent. For example, a sitter may not simply walk away in the absence of the parents and leave the children to their own devices.
Under the present state of our law, a person has no legal obligation to care for or look after the welfare of a stranger, adult or child.
"Generally one has no legal duty to aid another person in peril, even when that aid can be rendered without danger or inconvenience to himself.... A moral duty to take affirmative action is not enough to impose a legal duty to do so." W. LaFave & A. Scott, Criminal Law 183 (1972).
See Clark & Marshall, A Treatise on the Law of Crimes § 10.02 (7th ed. 1967). The legal position is that "the need of one and the opportunity of another to be of assistance are not alone sufficient to give rise to a legal duty to take positive action." R. Perkins, Criminal Law 594-595 (2d ed. 1969). Ordinarily, a person may stand by with impunity and watch another being murdered, raped, robbed, assaulted or otherwise unlawfully harmed. "He need not shout a warning to a blind man headed for a precipice or to an absentminded one walking into a gunpowder room with a lighted candle in [325] hand. He need not pull a neighbor's baby out of a pool of water or rescue an unconscious person stretched across the railroad tracks, though the baby is drowning, or the whistle of an approaching train is heard in the distance." LaFave & Scott at 183. The General Assembly has enacted two "Good Samaritan" statutes which afford protection to one who assists another in certain circumstances. Those statutes, however, impose no requirement that assistance be rendered.[12]
In the face of this status of the law we cannot reasonably conclude that the Legislature, in bringing a person responsible for the supervision of a child within the ambit of the child abuse law, intended that such responsibility attach without the consent criteria we have set out. Were it otherwise, the consequences would go far beyond the legislative intent. For example, a person taking a lost child into his home to attempt to find its parents could be said to be responsible for that child's supervision. Or a person who allows his neighbor's children to play in his yard, keeping a watchful eye on their activities to prevent them from falling into harm, could be held responsible for the children's supervision. Or a person performing functions of a maternal nature from concern for the welfare, comfort or health of a child, or protecting it from danger because of a sense of moral obligation, may come within the reach of the act. In none of these situations would there be an intent to grant or assume the responsibility contemplated by the child abuse statute, and it would be incongruous indeed to subject such persons to possible criminal prosecution.
[326]
The Sufficiency of the Evidence
The trial court found Pope guilty of the crime of child abuse as a principal in the first degree, and alternatively, as a principal in the second degree. A principal in the first degree is the one who actually commits a crime, either by his own hand, or by an inanimate agency, or by an innocent human agent. A principal in the second degree is one who is actually or constructively present when a felony is committed, and who aids or abets in its commission. See Camphor v. State, 233 Md. 203, 205, 196 A.2d 75 (1963); Thornton v. State, 232 Md. 542, 544, 194 A.2d 617 (1963); Veney v. State, 225 Md. 237, 238, 170 A.2d 171 (1961); Agresti v. State, 2 Md. App. 278, 280, 234 A.2d 284 (1967); 4 W. Blackstone, Commentaries [*]34; Clark & Marshall, A Treatise on the Law of Crimes §§ 8.01-8.02 (7th ed. 1967); L. Hochheimer, Crimes and Criminal Procedure §§ 31-32 (1st ed. 1897); R. Perkins, Criminal Law 656 and 658 (2d ed. 1969).[13]
In convicting Pope, the trial court was "satisfied beyond a reasonable doubt that under the doctrine of [Fabritz] ..., [she] is a principal [in the first degree] and is guilty of child abuse." It further held, however: "If this interpretation of Fabritz is in error, then [Pope] is guilty as a principal in the second degree." On direct appeal, the Court of Special [327] Appeals applied Maryland Rule 1086 and set aside the judgment. The rule provides that when a criminal case is tried without the intervention of a jury, the Court of Special Appeals shall review both the law and the evidence but "the judgment of the [trial] court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the [trial] court to judge the credibility of the witnesses." The appellate court's function "is merely to decide whether there was sufficient evidence, or proper inferences from the evidence, from which the trier of fact could properly draw the conclusion of the [accused's] guilt, beyond a reasonable doubt." Brooks v. State, 277 Md. 155, 161-162, 353 A.2d 217 (1976), and cases therein cited. The trial court, as the trier of facts, is not only the judge of the witness's credibility, but is also the judge of the weight to be attached to the evidence. Id. The Court of Special Appeals determined that the evidence was not legally sufficient to sustain the conviction of Pope either as a principal in the first degree or a principal in the second degree. The evidence was deficient with regard to her being a principal in the first degree in that it was not sufficient for the trier of fact to find beyond a reasonable doubt that she was within the class of persons subject to the prohibitions of the child abuse statute. Thus, the teaching of Fabritz regarding "causing abuse" was in no event applicable. Pope v. State, 38 Md. App. at 538. It was deficient with regard to her being a principal in the second degree because, despite her presence during the commission of the felony, it was not sufficient for the trier of fact to conclude that she aided and abetted the actual perpetrator. Therefore, the judgment of the trial court on the evidence was clearly erroneous and had to be set aside. Id. at 539-541.
As did the Court of Special Appeals, we find evidentiary insufficiency with respect to the conviction of Pope of child abuse, both as a principal in the first degree and as a principal in the second degree, so that the judgment of the trial court on the evidence was clearly erroneous. We, therefore, affirm the judgment of the Court of Special Appeals. We explain why we find that the evidence was legally insufficient.
[328]
Principal in the First Degree
As we have indicated, a person may be convicted of the felony of child abuse created by § 35A as a principal in the first degree upon evidence legally sufficient to establish that the person
(1) was
(a) the parent of, or
(b) the adoptive parent of, or
(c) in loco parentis to, or
(d) responsible for the supervision of
a minor child under the age of eighteen years, AND
(2) caused, by being in some manner accountable for, by act of commission or omission, abuse to the child in the form of
(a) physical injury or injuries sustained by the child as the result of
i) cruel or inhumane treatment, or
ii) malicious act or acts by such person, or
(b) any act or acts by such person involving sexual molestation or exploitation whether or not physical injuries were sustained.
Under the teaching of Fabritz, Pope's lack of any attempt to prevent the numerous acts of abuse committed by the mother over a relatively protracted period and her failure to seek medical assistance for the child, although the need therefor was obviously compelling and urgent, could constitute a cause for the further progression and worsening of the injuries which led to the child's death. In such circumstances, Pope's omissions constituted in themselves cruel and inhumane treatment within the meaning of the statute. See Fabritz, 276 Md. at 425-426. It follows that Pope would be guilty of child abuse if her status brought her within the class of persons specified by the statute. It being clear [329] that she was neither the child's parent nor adoptive parent, and there being no evidence sufficient to support a finding that she had "the permanent or temporary care or custody" of the child as that status was construed in Bowers v. State, supra, so as to be in loco parentis to the child, the sole question is whether she had "responsibility for the supervision of" the child in the circumstances. If she had such responsibility the evidence was legally sufficient to find her guilty of child abuse as a principal in the first degree.
The State would have us translate compassion and concern, acts of kindness and care, performance of maternal functions, and general help and aid with respect to the child into responsibility for the supervision of the child. The crux of its argument is that although Pope was not under any obligation to assume responsibility for the supervision of the child at the outset, "once she undertook to house, feed, and care for [the mother and child], she did accept the responsibility and came within the coverage of the statute." But the mother was always present.[14] Pope had no right to usurp the role of the mother even to the extent of responsibility for the child's supervision. We are in full accord with the view of the Court of Special Appeals that it could not "in good conscience hold that a person who has taken in a parent and child is given the responsibility for the child's supervision and protection even while the child is in the very arms of its mother." Pope, 38 Md. App. at 538. It would be most incongruous that acts of hospitality and kindness, made out of common decency and prompted by sincere concern for the well-being of a mother and her child, subjected the Good Samaritan to criminal prosecution for abusing the very child he sought to look after. And it would be especially ironic were such criminal prosecution to be predicated upon an obligation to take [330] affirmative action with regard to abuse of the child by its mother, when such obligation arises solely from those acts of hospitality and kindness.
The evidence does not show why Pope did not intervene when the mother abused the child or why she did not, at least, timely seek medical assistance, when it was obvious that the child was seriously injured. Whether her lack of action was from fear or religious fervor or some other reason is not clearly indicated. As the Court of Special Appeals correctly stated "[Pope's] testimony sought to indicate that her passivity was motivated by fear but other evidence belied that inference." Pope, 38 Md. App. at 532. The court observed that when Pope's sister arrived shortly after the acts of abuse and the mother's frenzy had diminished, Pope did not tell her sister what had occurred, although she claimed that she tried to but could not do so. But Pope's conduct, during and after the acts of abuse, must be evaluated with regard for the rule that although she may have had a strong moral obligation to help the child, she was under no legal obligation to do so unless she then had responsibility for the supervision of the child as contemplated by the child abuse statute. She may not be punished as a felon under our system of justice for failing to fulfill a moral obligation, and the short of it is that she was under no legal obligation. In the circumstances, the mother's acquiescence in Pope's conduct was not a grant of responsibility to Pope for the supervision of the child, nor was Pope's conduct an acceptance of such responsibility. "[Pope's] concern for the child [did] not convert to legal responsibility nor parental prerogatives." Pope, 38 Md. App. at 538. We hold that the evidence was not sufficient in law to prove that Pope fell within that class of persons to whom the child abuse statute applies. Thus it is that the judgment of the trial court that she was a principal in the first degree in the commission of the crime of child abuse was clearly erroneous and must be set aside.
The mental or emotional state of the mother, whereby at times she held herself out as God, does not change the result. We see no basis in the statute for an interpretation that a person "has" responsibility for the supervision of a child, if [331] that person believes or may have reason to believe that a parent is not capable of caring for the child. There is no right to make such a subjective judgment in order to divest parents of their rights and obligations with respect to their minor children, and therefore, no obligation to do so.[15]
Principal in the Second Degree
Pope was actually present when the felony was committed, but, we have determined, she was not a perpetrating actor. She would be a principal in the second degree if she aided or abetted in the commission of the crime. The principal in the second degree differs from the principal in the first degree in that he does not do the deed himself or through an innocent agent but in some way participates in the commission of the felony by aiding, commanding, counseling or encouraging the actual perpetrator.[16] R. Perkins, Criminal Law 658-659 (2d ed. 1969); Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Unless he contributed actual aid it is necessary that his approval should be manifested by some word or act in such a way that it operated on the mind of the perpetrator. Even the secret acquiescence or approval of the bystander is not sufficient to taint him with the guilt of the crime. "Counsel, command or encouragement may be in the form of words or gestures. Such a purpose `may be manifested by acts, words, signs, motions, or any conduct [332] which unmistakably evinces a design to encourage, incite, or approve of the crime.' Promises or threats are very effective for this purpose, but much less will meet the legal requirement, as where a bystander merely emboldened the perpetrator to kill the deceased.... One may also encourage a crime by merely standing by for the purpose of giving aid to the perpetrator if necessary, provided the latter is aware of this purpose. Guilt or innocence of the abettor ... is not determined by the quantum of his advice or encouragement. If it is rendered to induce another to commit the crime and actually has this effect, no more is required." Perkins at 659. "To be guilty as a principal in the second degree, a criminal intent is necessary." Clark & Marshall § 8.02. "Aid or encouragement to another who is actually perpetrating a felony will not make the aider or encourager guilty of the crime if it is rendered without mens rea. It is without mens rea if the giver does not know or have reason to know of the criminal intention of the other.... In general it is the abettor's state of mind rather than the state of mind of the perpetrator which determines the abettor's guilt or innocence.... `[I]ntention' includes not only the purpose in mind but also such results as are known to be substantially certain to follow." Perkins at 662-663.
When the evidence here is viewed in the light of these criteria, it is patent that it was not legally sufficient to prove that Pope was a principal in the second degree. She neither actually aided the mother in the acts of abuse nor did she counsel, command or encourage her. The Court of Special Appeals pointed out the facts relied on by the trial court — that the events took place in Pope's home, that Pope responded to the commands of the mother, namely that she looked when told to look and came when called, that she voluntarily opened the door to her son's room so Melissa could reach him, and that she failed to interfere or question the mother's activity, even when the mother appeared rational — were simply not enough to meet the test. Pope, 38 Md. App. at 538-541.
The State concludes the argument in its brief:
"As is obvious from the evidence presented in this [333] case, [Pope] witnessed a terrible event. She stood by while Melissa Norris killed her three-month old son. [Pope's] conduct during the beating ... should be held to be culpable."
The evidence certainly showed that Pope "witnessed a terrible event" and that she "stood by" while the mother killed the child. But the culpability for her conduct during the abuse of the child must be determined strictly within the law or else the basic tenets of our system of justice are prostituted. There is an understandable feeling of outrage at what occurred, intensified by the fact that the mother, who actually beat the child to death, was held to be not responsible for her criminal acts. But it is the law, not indignation, which governs. The law requires that Pope's conviction of the felony of child abuse be set aside as clearly erroneous due to evidentiary insufficiency.
II
THE CRIME OF MISPRISION OF FELONY
As we have indicated, a person may be convicted of a felony upon proof establishing that he committed the offense as a perpetrating actor (principal in the first degree), or that, being actually or constructively present, he did not himself commit the offense but aided and abetted in the commission of it (principal in the second degree). "`If he be present,' said Sir Matthew Hale, `and not aiding or abetting to the felony, he is neither principal nor accessory. If A and B be fighting and C, a man of full age, comes by chance, and is a looker on only, and assists neither, he is not guilty of murder or homicide, as principal in the second degree, but is a misprision, for which he shall be fined, unless he use means to apprehend the felon.'"[17] In the case before us, both the [334] trial court and the Court of Special Appeals believed that the misdemeanor of misprision of felony exists in Maryland today. The Court of Special Appeals expressly held "that misprision of felony was a crime at common law given life in Maryland by Art. 5 of the Declaration of Rights.[18] It rejected the contention that the crime "has become obsolete or abandoned by disuse" as "without merit." Pope, 38 Md. App. at 527.[19]
There is no Maryland legislative enactment which is declarative of the common law crime of misprision of felony or which may be deemed to have created a comparable offense. Therefore, if misprision of felony is a crime in this State, it is only because it was part of the common law of England to which the inhabitants of Maryland were constitutionally entitled and has survived to the present time.
We assume, arguendo, that misprision of felony was a crime under the common law of England, and that it became the law of this State pursuant to Art. 5 of the Declaration of Rights. The question is whether it is to be deemed an indictable offense in Maryland today. In determining the question, we look first to what misprision of felony is. According to Blackstone, the crime at common law consisted merely in the "concealment of a felony which a man knows, but never assented to; for if he assented this makes him either principal or accessory." 4 W. Blackstone, Commentaries [*]121. See Clark & Marshall, A Treatise on the Law of Crimes § 8.14 (7th ed. 1967); R. Perkins, Criminal Law 512 (2d ed. 1969); L. [335] Hochheimer, Crimes and Criminal Procedure § 39 (1st ed. 1897).
"[T]here is reason to believe that misprision of felony as defined by Blackstone is merely one phase of the system of communal responsibility for the apprehension of criminals which received its original impetus from William I, under pressure of the need to protect the invading Normans in hostile country, and which endured up to the Seventeenth Century in England. In order to secure vigilant prosecution of criminal conduct, the vill or hundred in which such conduct occurred was subject to fine, as was the tithing to which the criminal belonged, and every person who knew of the felony and failed to make report thereof was subject to punishment for misprision of felony. Compulsory membership in the tithing group, the obligation to pursue criminals when the hue and cry was raised, broad powers of private arrest, and the periodic visitations of the General Eyre for the purpose of penalizing laxity in regard to crime, are all suggestive of the administrative background against which misprision of felony developed. With the appearance of specialized and paid law enforcement officers, such as constables and justices of the peace in the Seventeenth Century, there was a movement away from strict communal responsibility, and a growing tendency to rely on professional police." 8 U. Chi. L. Rev. 338, 340-341 (1941) (footnotes omitted).
Glazebrook, Misprision of Felony — Shadow or Phantom?, 8 Am. J. of Legal History 189 and 283 (1964) cites eminent authority that in England the offense fell "into desuetude." Id. at 300. According to Glazebrook, there was no "reported decision during the four hundred years since the offence first crept into a book," and no book before J. Chitty, A Practical Treatise on the Criminal Law (2d ed., London 1826) contained "a precedent of an indictment for misprision of felony." Id. In any event, if the crime had died, it was resurrected by the [336] House of Lords in H.L. Sykes v. Director of Public Prosecution, [1961] 3 All E.R. 33. Lord Denning stated that "it is plain that there is and always has been an offence of misprision of felony and that it is not obsolete."[20] Id. at 40. Sykes acknowledged only two necessary elements, knowledge and concealment. "[M]isprision requires nothing active. The failure or refusal to disclose the felony is enough." Id. at 41. This followed the Blackstone definition.
The "revival" in England of the crime of misprision of felony was not generally welcomed. "Resistance to the crime culminated in the Seventh Report of the Criminal Law Revision Committee which recommended the abolition of the crime of misprision by eliminating all distinctions between felonies and misdemeanors. Misprision was replaced in the report by a new crime of withholding information with regard to certain offenses for a consideration other than restitution. [An agreement not to prosecute a felon in consideration of the return or compensation for goods stolen constitutes the common law offense of compounding a felony.] The Criminal Law Act of 1967 [c. 58 §§ 1 and 5] adopted these two recommendations and has been interpreted as eliminating the crime of misprision of felony in England." Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100-1101 (1974). See W. Wade and B. Lilliwhite, Annual Survey of Commonwealth Law 179 (1965); 10 Halsbury's Law of England ¶ 1201 (Supp. 1978).
The American experience paralleled that of England; the common law offense was simply not used. The status of the crime in the United States was summed up in Glazebrook, [337] How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307, n. 51 (1962):
"No court in the United States has been prepared to adopt the English doctrine in its simplicity, and hold that a mere failure to disclose knowledge of a felony is itself an offence: State v. Hann 40 N.J.L. 288 (1878) often cited as a solitary exception (e.g. (1945) 32 Va.L.R. 172) was a decision on a statutory, not the common law offence. In several states an attempt has been made to establish an offence intermediate between a simple concealment and that of the accessory after: e.g., State v. Wilson 80 Vt. 249: 67 Atl. 533 (1907); State v. Biddle 2 Harr (Del.) 401; 124 Atl. 804 (1923);[[21]] Carpenter v. State 62 Ark. 286; 36 S.W. 900 (1896); Commonwealth v. Lopes (Mass.) 61 N.E. (2d) 849 (1945); State v. Graham 100 La. 669 (1938): `... in the modern acceptation of the term, misprision of felony is almost if not exactly the same as that of an accessory after the fact' (p. 680). The utility of such an offence has not, however, been demonstrated: `... perhaps not a single case can be cited in which punishment for such connection with a felony has been inflicted in the U.S.' — 2 McClain Criminal Law, s. 938, cited at (1953) 6 S.Car.L.Q. 91. In Michigan, where the constitution incorporates the common law of crimes, the Supreme Court held that this does not extend to misprision of felony since it is `wholly unsuited to American criminal law and procedure as used in this State'; State v. Lefkovitz 294 Mich. 263, 293 N.W. 642 (1940); cf. U.S. v. Worcester 190 F. Supp. 565-566 (1960). And in interpreting the Federal statute (1 Stat. 113, s. 6) [18 [338] U.S.C. § 4 (1976)] which provides that `whoever having knowledge of the actual commission, of a felony cognizable by a court of the United States conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the U.S. shall be fined not more than $500 or imprisoned not more than three years or both,' it has been held that there must be some affirmative act of concealment, for instance the suppression of evidence, the harbouring of the criminal or the intimidation of witnesses, as well as the failure to disclose, for otherwise `the words conceals and would be effectively excised from the statute.' This interpretation was necessary to rescue the statute from an `intolerable oppressiveness,' for while federal statutes were few when it was enacted in 1790, the great increase in their number would make it unenforceable today if any other were adopted: Bratton v. U.S. 73 F. (2d) 795 [10th cir.] (1934); followed Neal v. U.S. 102 F. (2d) 643 (1939). [See also United States v. Farrer, 38 F.2d 515 (D. Mass.), aff'd, 281 U.S. 624 (1930).] This policy appears to have been successful. In 1956 the Fifth Circuit Court of Appeals noticed that `the annotations indicate no conviction for misprision [under the Federal statute] affirmed': Miller v. U.S., 230 F. (2d) 486. Cf. Bratton v. U.S.: `s. 146 was enacted April 30, 1790 ... and as far as the researches of court and counsel disclose, has been before the courts but twice in the 144 years of its life' (p. 797)."
Perkins in the second edition (1969) of his Criminal Law states that "there seems to be no such offense as misprision of felony in most of the states." At 516. No such offense is included in the Model Penal Code (U.L.A.).[22] Four years ago, Florida followed Michigan's view announced in Lefkovitz, [339] supra, that misprision of felony was wholly unsuited to American criminal law. Holland v. State, 302 So.2d 806 (Fla. App. 1974). Cf. Mangeris v. Gordon, Nev., 580 P.2d 481, 483-484 (1978). Compare State v. Flynn, 100 R.I. 520, 217 A.2d 432 (1966), stating that the common law crime of misprision of felony was an indictable offense under the constitution and laws of Rhode Island.
A few states have enacted legislation creating a crime of misprision of felony substantially similar to the common law offense as defined in Sykes. See N.J.S.A. § 2A:97-2 (N.J. 1969); Ohio Rev. Code § 2921.22 (Spec. Supp. 1973); Wash. Rev. Code § 9.69.100 (1976). Two states had such statutes, see Me. Rev. Stat. title 17, § 902 (1964) and La. Rev.Stat. § 856 (1870), which were later repealed.
Maryland has been in line with the practically universal view of the other states. We find no case prior to the case sub judice in which a conviction of misprision of felony has reached an appellate court of this State and, insofar as can be ascertained from appellate dockets, there is only one other, State v. Shaw, 282 Md. 231, 383 A.2d 1104 (1978), see note 19, supra, in which the crime was charged. It is true, as observed by the trial court in the case at hand, that "[a] dearth of appellate cases is not proof that the crime is not charged at trial level," but in view of the numerous appeals in criminal causes spawned by present day procedures and rights afforded an accused, it is remarkable indeed that, if convictions upon charge of the crime have occurred, the present case was the first in which an appeal was filed. We think that it is a fair inference that the crime has been seldom charged, and, if charged, has resulted in very few, if any convictions. Furthermore, we observe that misprision of felony was not proposed as an offense by Maryland's Commission on Criminal Law.[23]
As it seems that misprision of felony has been virtually unused in Maryland since the Revolution gave birth to the [340] United States, our inquiry turns to the effect of non-use of a common law crime. Early on, in State v. Buchanan, 5 H. & J. 317, (1821), Buchanan, J. for the Court announced that no part of the common law of England to which the inhabitants of Maryland were constitutionally entitled should be excluded merely because it had not been introduced and used in the courts here. Id. at 358. See McGraw v. State, 234 Md. 273, 275-276, 199 A.2d 229, cert. denied, 379 U.S. 862 (1964). Judge Buchanan explained:
"[U]nlike a positive or statute law, the occasion or necessity for which may long since have passed away, if there has been no necessity before, for instituting a prosecution for conspiracy, no argument can be drawn from the non-user for resting on principles which cannot become obsolete, it has always potentially existed, to be applied as occasion should arise. If there had never been in Maryland, since the original settlement of the colony by our ancestors, a prosecution for murder, arson, assault and battery, libel, with many other common law offenses, and consequently no judicial adoption of either of these branches of the common law, could it therefore be contended, that there was now no law in the State for the punishment of such offenses?" 5 H. & J. at 358.
This principle was affirmed by us, implicitly at least, in Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977) when we "recognized for the first time in Maryland the common law tort of intentional infliction of emotional distress, a tort previously unacknowledged or arguably abandoned by non-use." Pope, 38 Md. App. at 527. It does not follow, however, that because a common law crime does not become obsolete from mere non-use that it will always be viable. The opinion of the Court in Buchanan asserted that the provision in Art. 5 of the Declaration of Rights regarding entitlement to the common law of England without any restrictive words being used, had reference "to the common law in mass, as it existed here, either potentially, or practically, and as it prevailed in England at the time, except such portions of it [341] as are inconsistent with the spirit of that instrument, and the nature of our new political institutions." 5 H. & J. at 358 (emphasis added). We have repeated that statement on a number of occasions, Dashiell v. Attorney General, 5 H. & J. 392, 401 (1822); State v. Bank of Maryland, 6 G. & J. 205, 226 (1834); Lickle v. Boone, 187 Md. 579, 582, 51 A.2d 162 (1947); McGraw v. State, supra, 234 Md. at 275-276; Gladden v. State, 273 Md. 383, 389, 330 A.2d 176 (1974). We put it this way in Denison v. Denison, 35 Md. 361, 378 (1872):
"It is true the common law of England has been adopted by the people of this State, but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions."
What this means is that the common law is subject to change. This is clearly apparent from its derivation and its very nature:
"The common law of England is derived from immemorial usage and custom, originating from Acts of Parliament not recorded, or which are lost, or have been destroyed. It is a system of jurisprudence founded on the immutable principles of justice, and denominated by the great luminary of the law of England, the perfection of reason. The evidence of it are treatises of the sages of the law, the judicial records and adjudications of the Courts of justice of England." Buchanan, 5 H. & J. at 365 (opinion of Chase, C.J.).
It may be changed by legislative act as Art. 5 of the Declaration of Rights expressly provides. See State v. Canova, 278 Md. 483, 486, 365 A.2d 988 (1976); Lutz v. State, 167 Md. 12, 15, 172 A. 354 (1934); Harrison v. State, 22 Md. 468, 487-488 (1864); Coomes v. Clements, 4 H. & J. 480, 481. It may also be changed by judicial decision. Chase, C.J., in his opinion in Buchanan, observed: "Whether particular parts of the common law are applicable to our local circumstances and situation, and our general code of laws and jurisprudence, is a question that comes within the province of the courts of [342] justice, and is to be decided by them." 5 H. & J. at 365-366. He gave this rationale:
"The common law, like our acts of assembly, are subject to the control and modification of the Legislature, and may be abrogated or changed as the general assembly may think most conducive to the general welfare; so that no great inconvenience, if any, can result from the power being deposited with the judiciary to decide what the common law is, and its applicability to the circumstances of the state,...." Id. at 366.[24]
We said in Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36 (1950) that "[t]his interpretation has been continuously adopted in this State, and was reaffirmed in the case of Price v. Hitaffer, 164 Md. 505, 510, 165 A. 470 [1933]." We asserted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204, 82 A.2d 106 (1951): "We have frequently held that it is our duty to determine the common law as it exists in this state...."[25] The doctrine of stare decisis does not preclude the exercise of this duty. We declared in White v. King, 244 Md. 348, 354, 223 A.2d 763 (1966): "The doctrine of stare decisis, important as it is, is not to be construed as preventing us from changing a rule of law if we are convinced that the rule has become unsound in the circumstances of modern life." Accord, Hearst Corp. v. St. Dep't of A. & T., 269 Md. 625, 643-644, 308 A.2d 679 (1973).
Parts of the common law have been found by judicial mandate to be inapplicable or obsolete in other states. For example, Flores v. Flores, 84 N.M. 601, 506 P.2d 345, 347 [343] (N.M. App.), cert. denied, 84 N.M. 592, 506 P.2d 336 (1973) found that "liability free intentional injury to one's spouse does not reflect the circumstances in New Mexico." Swartz v. United States Steel, 293 Ala. 493, 304 So.2d 881, 885 (1974) held that the common law rule that a wife has no cause of action for loss of her consortium is inconsistent with the institutions of Alabama. Morganthaler v. First Atlantic National Bank, 80 So.2d 446 (Fla. 1955) rejected the English rule that a legatee may elect to receive cash when a testator directs his executor to purchase an annuity because it "dethrones a principle [that the intent of the testator controls] which is sacred to our way of life and fundamental in our concepts of right and justice." Id. at 452.
In exercising our duty to determine whether a common law crime presently exists in this State, mere non-use is not sufficient, as we have indicated, to conclude that the offense has become obsolete. But non-use, we believe, is not without significance. When an offense has lain virtually dormant for over two hundred years, it is difficult to argue that the preservation of society and the maintenance of law and order demand recognition of it. See Glazebrook, How Long, Then, Is The Arm Of The Law To Be?, 25 Mod. L. Rev. 301, 307-311 (1962). Perkins points out:
"The notion that misprision is needed, to prevent one who knows about another's felony from intentionally misleading investigating officers, is unfounded. If, when being questioned by officers who are investigating a felony, one who knows the facts intentionally misleads the officers by false statements and thereby `covers up' for the felon, he thereby makes himself an accessory to that felony after the fact. If he impedes the investigation by falsely saying he does not know about it, or by refusing to talk, he should be held to be guilty of obstructing justice. There is a wide difference between a mere failure to hunt up an officer and tell about a felony, on the one hand, and a refusal to cooperate with an investigating officer, on the other." R. Perkins, Criminal Law 517 (2d ed. 1969).
[344] Even more relevant, however, to a consideration of whether a common law crime is applicable as compatible with our local circumstances and situation and our general codes of law and jurisprudence is the nature of the crime. The reason for the failure of common law misprision of felony to survive in the United States was well expressed by Chief Justice Marshall over a hundred and fifty years ago in Marbury v. Brooks, 20 U.S. (7 Wheat.) 556, 575-576 (1822) and thereafter noted by many commentators, text book authors and other authorities:
"It may be the duty of a citizen to accuse every offender, and to proclaim every offence which comes to his knowledge; but the law which would punish him in every case for not performing this duty is too harsh for man."
In England, according to Glazebrook in his critical consideration of Sykes v. Director of Public Prosecutions, supra, in 25 Mod. L. Rev. 301, the Criminal Law Commissioners in their Fifth Report in 1840 repeated and elaborated this criticism and observed:
"`The necessity of making such disclosures extends perhaps with greater force to the knowledge of a meditated crime, the perpetration of which may, by means of such disclosure, be prevented, than it does to the knowledge of one already committed.'" Id. at 301, citing, n. 3, "Parl. Pap. (1840) xx, p. 32; quoted, Williams, The Criminal Law: The General Part (2nd ed., London 1961), p. 423."
Glazebrook opined that "[f]or more than a century misprision of felony has been an embarrassment to common lawyers," and feared that the decisions and speeches in the House of Lords in Sykes "afford only increased cause for this embarrassment." Id. at 301. The Court of Special Appeals relied on Sykes in holding that misprision of felony, as Sykes found it existed at common law, was currently an indictable crime in Maryland.[26] Glazebrook ably refuted Sykes, and we borrow extensively from him in the discussion which follows.
[345] Misprision of felony at common law is an impractically wide crime, a long-standing criticism which remains unanswered in Sykes. It has an undesirable and indiscriminating width:
"The real harshness lies in the fact that the duty to disclose arises when a person acquires knowledge of an offence, and this he may do quite involuntarily. A says to B: `Did you know that X stole a book from the library last week?' adding appropriate circumstantial details; or X says to B: `I stole some money yesterday; will you help me to repay it?' B is a friend of X; he wished to know nothing of X's misdeeds; and yet he is to be a criminal if he does not betray him. It is, furthermore, particularly difficult to defend a law which indiscriminately adds to the injuries of the victim of a crime the penalties of the criminal law should he or she wish to forgive and forget." 25 Mod. L. Rev. at 311.
Misprision differs from almost all other common law offenses of omission:
"[T]he duty to act arises not because of the willing assumption of responsibility, the occupation of an office, or the ownership of property, but because of the mere possession of certain knowledge — knowledge possessed accidentally and undesired — knowledge which may indeed have been acquired through some malevolent person." Id.
Glazebrook observes that although "[t]here may be crimes where the protection of the public requires that each offender be brought to justice however reluctant his victims, his friends, or those who have him in their care, may be to do so, ... the line which separates them from all other offences is not the line which separates felonies from misdemeanors." Id. [346] at 312. This is particularly true with respect to Maryland where the distinction between felony and misdemeanor is a hodgepodge, following neither rhyme nor reason.
Under Sykes, no active step need be taken to conceal the felony (it is only thus that it remains quite distinct from the crime of accessory after the fact), and the concealment need bring no benefit to the accused.[27] But three fundamental questions remained: when does the duty to reveal a felony arise; how is that duty discharged; and does a relationship with the felon prevent the duty arising?[28]
It seems that the duty arises when "a man knows" of the commission of a felony. When, then, can a man, be said to know and what is it that he must know? Lord Goddard held that there must be disclosure when the knowledge a man has "is so definite that it ought to be disclosed. A man is neither bound nor would he be wise to disclose rumours or mere gossip, but, if facts are within his knowledge that would materially assist in the detection and arrest of a felon, he must disclose them as it is a duty he owes to the state." Sykes at 46. Lord Goddard left the matter to the jury as a question of fact. Glazebrook suggests that "unless the jury is to be entirely uncontrolled, it has to be told how precise and certain the accused's knowledge must have been before he can be convicted." 25 Mod. L. Rev. at 313. Is the duty to be confined to felonies committed in the presence of the accused, and, if not, is hearsay sufficient? Should the felon's own admission, standing alone, be enough? Knowledge of the commission of a crime is an ingredient of the offenses of accessory after the fact and receiving stolen goods, but, unlike misprision, they require a positive act. It is reasonable, in such circumstance, to require a person who has reason to believe something is [347] wrong to inquire further before embarking on some course of conduct, and to hold that he fails to do so at his peril. "If this rule is applied to misprision, two duties are imposed: a duty to disclose knowledge of a felony, and a duty also to make inquiries to resolve a suspicion concerning the commission of a felony." Id. To paraphrase Glazebrook, must the inhabitants of Maryland become detectives as well as informers?
Sykes fails to provide a working rule for what the accused must know. There was a direct conflict between Lord Denning and Lord Morton into which their brethren did not enter. Discussing knowledge, Lord Denning said:
"The accused man must know that a felony has been committed by someone else. His knowledge must be proved in the way in which the prosecution have been accustomed in other crimes when knowledge is an ingredient, such as receiving, accessory after the fact, compounding a felony, and so forth. That is to say, there must be evidence that a reasonable man in his place, with such facts and information before him as the accused had, would have known that a felony had been committed. From such evidence the jury may infer that the accused man himself had knowledge of it. He need not know the difference between felony and misdemeanour — many a lawyer has to look in the books for the purpose...." Sykes at 41.
Glazebrook comments: "This leaves it largely a matter of chance whether misprision is committed or not." 25 Mod. L. Rev. at 314. That is, on the one hand, it must have been a felony of which the accused knew, but on the other hand, he need not know whether the crime was a felony or a misdemeanor. According to Lord Denning, it would be enough that the accused knew that a serious offense had been committed if it turns out to be a felony — "a lawyer on turning up the books sees it is a felony...."
"This requirement that it must be a serious offence disposes of many of the supposed absurdities, such [348] as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police. It means that misprision comprehends an offence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police." Sykes at 42.
This rationale was based on the view that what distinguishes a felony from a misdemeanor is that a felony is a serious offense, "an offence of an `aggravated complexion'.... Felonies are the serious offences. Misdemeanours are the less serious." Id. This introduced a limitation Lord Morton was not willing to accept. Id. at 46-47. In any event, the limitation added the further uncertainty of a trier of fact's view of the gravity of the crime to be reported. 25 Mod. L. Rev. at 314. And, we observe, the foundation for the limitation is weak indeed when considered in light of the categories of felonies and misdemeanors adopted in this State. Sykes avoids what account is to be taken of excuses offered by an apparent felon. For example, "[i]n cases of larceny, may the citizen be satisfied by any claim of right that is made, or must it be weighed, and where suspicion remains this communicated to the police? ... The [Sykes] recognition of misprision means, therefore, the imposition not of a duty to disclose knowledge of the commission of a felony, but of a duty to disclose suspicions of the commission of a felony...." Id. at 314-315. There are no criteria for determining which suspicions are to give rise to a duty, and so to criminal liability.
When the duty to disclose has arisen, it is not clear how it is discharged. It would be logical that once the authorities are in possession of all the information concerning a felony, a citizen's duty to disclose his own knowledge ceases. So there is an added element of chance — "the chance that the police already know." Id. at 315. Lord Denning saw the duty as requiring a citizen "to disclose to proper authority all material facts known to him relative to the offence. It is not sufficient to tell the police that a felony has been committed. He must [349] tell the name of the man who did it, if he knows it;[[29]] the place, and so forth. All material facts known to him.... If he fails or refuses to perform this duty when there is a reasonable opportunity available to him to do so, then he is guilty of misprision." Sykes at 42. This was not sufficient for Lord Goddard. He thought that "facts ... within his knowledge that would materially assist in the detection and arrest of a felon" must be disclosed as a duty owed to the State. Id. at 46. "Thus if a man disclosed all he knew about the commission of a felony and yet did not disclose the whereabouts of the felon he would be acquitted by Lord Denning and convicted by Lord Goddard." 25 Mod. L. Rev. at 315.
Their lordships agreed that the questions of when the knowledge must be revealed and how much trouble must be taken to reveal it were for the jury. Glazebrook is critical of this as assigning unsuitably vague questions to the trier of fact:
"If a man is to be punished for not doing something, he ought to know precisely what is expected of him. The standard which he fails at his peril to attain ought not to be left to be fixed after the event by the whim of a particular jury. Formulae that pass muster in determining the liability of one who engages in a dangerous course of conduct are not always suited to crimes of pure omission." Id. at 316.
Only Lord Denning considered relationship with the felon with respect to the duty to disclose:
"Non-disclosure may be due to a claim of right made in good faith. For instance, if a lawyer is told by his client that he has committed a felony, it would be no misprision in the lawyer not to report it to the police, for he might in good faith claim that he was under a duty to keep it confidential. Likewise with doctor [350] and patient, and clergyman and parishioner. There are other relationships which may give rise to a claim in good faith that it is in the public interest not to disclose it. For instance, if an employer discovers that his servant has been stealing from the till, he might well be justified in giving him another chance rather than reporting him to the police. Likewise with the master of a college and a student. But close family or personal ties will not suffice where the offence is of so serious a character that it ought to be reported." Sykes at 42.
Glazebrook finds this to be "a singularly unhappy instance of creative judicial activity, for a defence grounded on a `claim of right made in good faith' is in this context inapt, and the choice of relationship perverse." 25 Mod. L.R. at 317. He explains:
"A person advancing a defence of `claim of right' pleads that he mistakenly thought that the law recognised in him a right to act in the way he did. If his defence is accepted, his mistake will be benevolently viewed, and he is excepted from criminal liability. The defence is thus founded on the mistake, on the claim, not the right, and disappears when the mistake is corrected.... In short, if the crime is to be limited, there must be a categorical rule that doctors and the like are under no duty to disclose their patients' felonies." Id.
As to the choice of exempt relationships
"[t]he exclusion in misprision of `close family or personal ties' is utterly callous and certainly futile: how can the relation between doctor and patient, an employer and his servant, be thought more sacred, more deserving of respect and consideration — even by the law — than that between husband and wife, between father and son? By what standard is it unreasonable to expect an employer to report his servant's crimes to the police, and yet proper that a son should betray his father?" Id. at 318.
[351] We observe that common law misprision is not only beset with practical defects but may implicate constitutional privileges. To sustain the Fifth Amendment right against self-incrimination,[30] "it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... might be dangerous because injurious disclosure might result." Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814 (1951). The privilege extends not only to information that would itself support a conviction, but "likewise embraces those which would furnish a link in the chain of evidence to prosecute the claimant...." Id. at 486. See United States v. King, 402 F.2d 694 (9th Cir.1968), reversing conviction of federal misprision on Fifth Amendment grounds. We note also that it has been suggested that the federal misprision statute may involve the right of privacy. In United States v. Worcester, 190 F. Supp. 548, 566 (D. Mass. 1961), Judge Wyzanski, discussing the federal statute, said:
"To suppose that Congress reached every failure to disclose a known federal crime, in this day of myriad federal tax statutes and regulatory laws, would impose a vast and unmeasurable obligation. It would do violence to the unspoken principle of the criminal law that `as far as possible privacy should be respected.' There is `a strong reluctance on the part of judges and legislators to sanction invasion of privacy in the detection of crime.' There is `a general sentiment that the right to privacy is something to be put in balance against the enforcement of the law.' Sir Patrick Devlin, The Enforcement of Morals, p. 19."
See Shannonhouse, Misprision of a Federal Felony: Dangerous Relic or Scourge of Malfeasance, 4 U. Balt. L. Rev. 59 (1974), calling for "excisement from the criminal code" of the federal crime. Compare Goldberg, Misprision of Felony: An Old Concept in New Context, 52 A.B.A.J. 148 [352] (1966), and Comment, Misprision of Felony: A Crime Whose Time Has Come, Again, 28 U. Fla. L. Rev. 199 (1975).
We have proceeded on the assumption that the House of Lords was correct in concluding in Sykes that "there is and always has been an offense of misprision of felony...." Sykes at 40. We are persuaded, finding no sound reason not to be, that their lordships' definition of the offense and the composition of its elements properly reflected the crime as it existed at common law. We are satisfied, considering its origin, the impractical and indiscriminate width of its scope, its other obvious deficiencies, and its long non-use, that it is not now compatible with our local circumstances and situation and our general code of laws and jurisprudence. Maintenance of law and order does not demand its application, and, overall, the welfare of the inhabitants of Maryland and society as enjoyed by us today, would not be served by it. If the Legislature finds it advisable that the people be obligated under peril of criminal penalty to disclose knowledge of criminal acts, it is, of course, free to create an offense to that end, within constitutional limitations, and, hopefully, with adequate safeguards.[31] We believe that the common law offense is not acceptable by today's standards, and we are not free to usurp the power of the General Assembly by attempting to fashion one that would be. We hold that misprision of felony is not a chargeable offense in Maryland.
III
We have reversed Pope's conviction of the felony of child abuse because the evidence was insufficient to sustain the verdict. She may not be tried again for that crime. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141 (1978); Greene v. [353] Massey, 437 U.S. 19, 98 S.Ct. 2151 (1978); Mackall v. State, 283 Md. 100, 387 A.2d 762 (1978).
As we have held that the crime of misprision of felony does not now exist in Maryland, Pope may not, of course, be retried on a charge of that crime.
IV
Pope moved that we strike from the State's brief and appendix a selection from the Year Book of 1484 written in Medieval Latin and references thereto. The State provided no translation and conceded a total lack of knowledge of what it meant. The motion is granted.
Pope had the selection translated at a cost of $150. She further moves this Court to order the Office of the Attorney General to reimburse the Office of the Public Defender for the cost of the translation. Pope undertook to have the selection translated on her own initiative. The motion is denied.
Judgment of the Court of Special Appeals with respect to child abuse, third count of Indictment No. 18666, reversing the judgment of the Circuit Court for Montgomery County, affirmed; judgments of the Court of Special Appeals with respect to misprision of felony, fifth count of Indictment No. 18666, affirming the judgment of the Circuit Court for Montgomery County, reversed; case remanded to Court of Special Appeals with direction to remand to the Circuit Court for Montgomery County for entry of judgment of acquittal on the third count and dismissal of the fifth count; motion of appellant to strike granted; motion of appellant for appropriate relief denied; costs to be paid by Montgomery County.
[354] Eldridge, J., concurring in part and dissenting in part:
I concur in that portion of the Court's opinion relating to the crime of misprision of a felony. I also agree with the majority that Pope was not guilty of child abuse as a principal in the second degree. However, I cannot agree with the majority's restrictive interpretation of the child abuse statute, which interpretation furnishes the basis for the majority's conclusion that Pope was not guilty of child abuse as a principal in the first degree.
The child abuse statute, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 35A (a), reaches "[a]ny parent, adoptive parent or other person who has the permanent or temporary care or custody or responsibility for the supervision of a minor child...." The Court today takes the position that the statutory phrase "has responsibility for the supervision of" is ambiguous, thereby allowing the Court to "give effect to the real intention of the Legislature." The majority then states that, with regard to persons other than parents, legal custodians or individuals "in loco parentis," only those persons who have assumed responsibility for a child with the consent of the parent or guardian are covered by the statute. The majority finds it "self-evident" that "a third person may not assume such responsibility unless the parent grants it."
Thus, we are told by the majority opinion that a "person taking a lost child into his home" while an attempt is made to locate his or her parents is beyond the reach of the child abuse statute. In other words, in the Court's view, such a person may voluntarily assume full responsibility for the care of a small child, for a lengthy period of time while an effort is being made to find the parents, and during that time may batter the child unmercifully, but he would not be guilty of child abuse under Art. 27, § 35A. In my view this is a totally unwarranted narrowing of an important piece of legislation.
In addition to parents, the child abuse statute applies to "[a]ny ... other person who has ... responsibility for the supervision of a minor child...." The language is clear. Everyone who has responsibility is covered, regardless of how he obtained such responsibility.
[355] It is well-established in the law that one may, by his own actions, voluntarily assume a particular responsibility. That the Legislature intended to cover such a person is shown by the language any other person who has responsibility. There is no ambiguity here. Consequently, there is no need to go further in attempting to ascertain the legislative intent. The majority opinion today flatly violates settled principles of statutory construction, recently summarized by Judge Orth for the Court as follows (Wheeler v. State, 281 Md. 593, 596, 380 A.2d 1052, 1054-1055 (1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1650, 56 L.Ed.2d 86 (1978)):
"The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. Balto. Gas & Elect. Co. v. Board, 278 Md. 26, 31, 358 A.2d 241 (1976). A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. Burch v. State, 278 Md. 426, 429, 365 A.2d 577 (1976); Cearfoss v. State, 42 Md. 403, 407 (1875). That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. In Re Appeals Nos. 1022 & 1081, 278 Md. 174, 178, 359 A.2d 556 (1976). Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature. Maryland Auto Ins. Fund v. Stith, 277 Md. 595, 597, 356 A.2d 272 (1976). As we said in Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66, 327 A.2d 483 (1974), `where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.'"
[356] Furthermore, even if there existed some ambiguity in the statute, I am at a loss to know why the majority finds it "self-evident" that only those persons who have been granted responsibility by a parent or guardian should be covered. Nothing in the statutory language indicates such a legislative purpose. I know of no public policy justifying this differentiation between a person who assumes responsibility for a child with parental consent and one who assumes just as complete a responsibility without the parent's consent. If either abuses the child, he should be held accountable under § 35A.
The majority appears to be concerned about the "good samaritans" who watch a lost child, or allow neighbors' children to play in their yards and exercise supervision, or perform "functions of a maternal nature from concern for the welfare, comfort or health of a child." However, such "good samaritans" have nothing to fear from the child abuse statute. But, if one of these same individuals assumes responsibility for the child and batters it, sexually molests it, locks it for a long period of time in a dark closet, etc., that person should be held just as accountable under the child abuse statute as someone else having responsibility for the child.
My concern in this case is not so much with the decision that the evidence was insufficient to convict Pope of child abuse. The evidence may not have been sufficient. Instead, what is troublesome in this case is the damage which the majority has done to the child abuse statute.
[1] The remaining seven counts of the indictment, each concerning offenses committed on or about 11 April 1976 concerning or related to the minor child, alleged murder in the second degree — 1st count; manslaughter — 2nd count; accessory after the fact, murder — 4th count; obstruction of justice — 6th count; conspiracy to obstruct justice — 7th count; assault and battery — 8th count; assault — 9th count. Before trial, the court granted Pope's motion to dismiss the 4th count. At the close of evidence offered by the State, the court granted Pope's motions for judgment of acquittal as to the 6th and 7th counts. At the close of all the evidence, the court reserved ruling on Pope's motions for judgment of acquittal on the remaining counts. It found her "sane" and not guilty on the 1st and 2nd counts, and "sane" and guilty on the 3rd and 5th counts. It held that the 8th and 9th counts merged with the 3rd count.
Pope was also charged in indictment no. 17830 with murder in the first degree. This indictment was nol prossed before trial.
[2] The trial court sentenced Pope to the Department of Corrections for a period of seven years on each of the convictions under the 3rd and 5th counts, the sentences to run concurrently. It suspended all but eighteen months of the sentence and recommended that it be served in the Montgomery County Detention Center. Upon release, Pope was to be placed on supervised probation for two years upon condition that she "seek and take psychiatric or psychological assistance."
[3] The evidence at the trial consisted primarily of two extra-judicial statements given by Pope to the police, one written by her and the other tape recorded, and her testimony at trial, which was essentially repetitious of the statements. Pope's brief contains an agreed statement of facts pursuant to Maryland Rule 828 g. A summary of the evidence is given in the opinion of the Court of Special Appeals. Pope v. State, 38 Md. App. 520, 530-536, 382 A.2d 880 (1978).
[4] The mother, charged and tried separately from Pope, was found to be not responsible for her criminal conduct at the time of the commission of the offense, and, therefore, not guilty by reason of insanity. Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 25(a).
[5] Acts 1963, ch. 743.
[6] Acts 1970, ch. 500.
[7] See Acts 1964, ch. 103; Acts 1966, ch. 221; Acts 1967, ch. 38; Acts 1968, ch. 702; Acts 1970, ch. 500; Acts 1973, ch. 656; Acts 1973, ch. 835; Acts 1974, ch. 372; Acts 1974, ch. 554; Acts 1975, ch. 219; Acts 1977, ch. 290; Acts 1977, ch. 504.
[8] Acts 1973, ch. 835.
[9] In Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978), we rejected the contention that the definition of abuse was so indefinite as not to comport with the established standards of due process. We opined that "the definition of abuse ... represents a most suitable compromise between the constitutionally mandated requirements of specificity and the practical need to devise language flexible enough to combat a social evil of truly inestimable proportions." Id. at 129.
[10] Habeas corpus was refused by the United States District Court for the District of Maryland to the convicted mother. On appeal, the United States Court of Appeals for the Fourth Circuit by a majority of a three judge panel, Haynsworth, C.J. dissenting, vacated the judgment and remanded the case to the District Court to grant the writ. Fabritz v. Superintendent, 583 F.2d 697 (1978). In so doing the court accepted "the statute as valid, as did the Court of Appeals of Maryland and the District Court, and accept[ed], too, their clear exposition of the critical words of the law." 583 F.2d at 700. It held that "[t]he statute simply was unconstitutionally applied." Id. It viewed the conviction void for denial of Fourteenth Amendment due process "because the `conviction [is] based on a record lacking any relevant evidence as to a crucial element of the offense charged,' i.e., that the mother had knowledge of the critical gravity of her daughter's condition when she deferred resort to medical advice for the little girl." 583 F.2d at 698.
We had found it to be manifest from the evidence that the mother knew of the child's severely beaten condition and had failed for some eight hours to seek or obtain any medical assistance although, as the evidence plainly indicated, the need therefor was obviously compelling and urgent. We observed that there was evidence that the mother's failure to seek assistance was based upon her realization that the bruises covering the child's body would become known were the child examined or treated by a physician. State v. Fabritz, 276 Md. 416, 425, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976). Chief Judge Haynsworth was in accord. He did not agree with the majority of the panel that the record was devoid of evidentiary support. He found therein evidence sufficient to support a conclusion that the mother, though generally loving and protective of her daughter, consciously refrained from seeking medical help to protect her lover, the person who beat the child, from possible criminal charges and to support her own ego. "[A] conscious indulgence of such a preference," he thought, "is in violation of Maryland's Child Abuse Law...." 583 F.2d 701 (Haynsworth, C.J. dissenting).
We note that, unlike decisions of the Supreme Court of the United States, decisions of federal circuit courts of appeals construing the federal constitution and acts of the Congress pursuant thereto, are not binding upon us. Declaration of Rights, Md. Const., Art. 2; Gayety Books v. City of Baltimore, 279 Md. 206, 213, 369 A.2d 581 (1977); Wiggins v. State, 275 Md. 689, 698-716, 344 A.2d 80 (1975). We are not persuaded to depart from our view of the evidence by the majority opinion of the federal appellate court.
[11] Under Acts 1963, ch. 743 the statute applied to a child under the age of fourteen years. By Acts 1966, ch. 221 the statute was made applicable to a child under the age of sixteen years, and by Acts 1973, ch. 835 to a child under the age of eighteen years.
[12] Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 12A provides:
"Any person witnessing a violent assault upon the person of another may lawfully aid the person being assaulted by assisting in that person's defense. The force exerted upon the attacker or attackers by the person witnessing the assault may be that degree of force which the assaulted person is allowed to assert in defending himself."
Code (1957, 1971 Repl. Vol., 1978 Cum. Supp.) Art. 43, § 132 grants immunity from liability from civil damages to physicians and certain other persons rendering aid under emergency conditions.
[13] We have observed: "In Maryland, as in many other states, there is little practical difference between a principal in the first and second degree," and we characterized such difference as "a shadowy distinction." Vincent v. State, 220 Md. 232, 239, n. 1, 151 A.2d 898 (1959). Clark & Marshall, A Treatise on the Law of Crimes (7th ed. 1967) elaborated the point:
"The common law recognizes no difference in the punishment, between principals in the first and second degree, but regards them as equally guilty, and subject to the same punishment. In practice the distinction is immaterial and on an indictment charging one as principal in the first degree, he may be convicted on evidence showing that he was present aiding and abetting, and conversely.
"And at common law a principal in the second degree may be indicted and convicted before trial of the principal in the first degree, and even after he has been acquitted, or convicted of an offense of lesser degree, though the commission of the act by the principal in the first degree must be proved in order to convict one as aiding and abetting. Id. at § 8.05, p. 521.
See Hochheimer §§ 37-38, And "unless it is plain, from the nature of an offense made a felony by statute, that the provisions of the statute were intended to affect only the party actually committing the offense, aiders and abettors are punishable." Clark & Marshall at § 8.04, p. 520.
[14] Before the Court of Special Appeals the State explained the mother's continual presence and exercise of supervision from time to time while she was awake as conduct permitted by Pope but manifesting "no indication whatsoever that [Pope] intended to relinquish her responsibility." As the Court of Special Appeals correctly observed: "That puts the cart before the horse. It is the mother whose responsibility was not relinquished or absolved." Pope v. State, 38 Md. App. 520, 537-538, 382 A.2d 880 (1978). Before us, the State has apparently abandoned the notion it suggested before the intermediate court.
[15] This State has enacted a comprehensive scheme, surrounded by safeguards, for determining whether a person is suffering from a mental illness or mental disorder so as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment. Maryland Code (1957, 1972 Repl. Vol., 1978 Cum. Supp.) Art. 59, § 1 et seq. It would be unthinkable to impose such a determination on an ordinary individual at the risk of criminal prosecution. Not even the "reasonable man," so often called upon by the law, has the expertise to make such a judgment.
[16] The principal in the second degree differs from the accessory before the fact only in the requirement of presence. "The principal in the second degree must be present at the perpetration of the felony, either actually or constructively, whereas the accessory before the fact must be absent. In other words, although neither presence nor absence is of itself a determinant of guilt, yet if the mens rea is found to exist, the same aid, command, counsel, or encouragement which will make a principal in the second degree of one who is present (actually or constructively) at the time a felony is committed, will make him an accessory before the fact if he is absent." R. Perkins, Criminal Law 658-659 (2d ed. 1969).
[17] 1 Hale, Pleas of the Crown, 439, as quoted in Clark & Marshall, A Treatise on the Law of Crimes § 8.02 (7th ed. 1967). Clark & Marshall § 8.02, p. 511, n. 15, also quotes 2 Hawkins, Pleas of the Crown, c. 29, § 10 on the matter:
"`Those who, by accident, are barely present when a felony is committed, and are merely passive, and neither in any way encourage it, nor endeavor to hinder it, nor to apprehend the offenders, shall neither be adjudged principles [sic] nor accessories; yet, if they be of full age, they are highly punishable by fine and imprisonment for their negligence, both in not endeavoring to prevent the felony, and in not endeavoring to apprehend the offender.'"
[18] "[T]he inhabitants of Maryland are entitled to the Common Law of England ... according to the course of that Law...." Declaration of Rights, Md. Const. Art. 5.
[19] The Circuit Court for Carroll County reached the opposite view, dismissing a charging document before it on the ground that misprision of felony is not a crime in Maryland. State v. Shaw, 282 Md. 231, 232, 383 A.2d 1104 (1978). The State appealed. On our review upon grant of writ of certiorari prior to decision by the Court of Special Appeals, we disposed of the appeal upon a double jeopardy issue making it unnecessary for us to address the question whether misprision of felony is a crime in this State. Id. at 232, n. 2 and at 237.
[20] There was further recognition of the crime of misprision of felony in Rex v. King [1965] 1 All E.R. 1053 (Crim.App.). It was held that, after being cautioned against self-incrimination, the defendant's silence can not possibly constitute misprision. When an accused is questioned about an offense, he is not bound to answer if his reply would incriminate him regarding that offense or any other offense. On the other hand, if after caution, he chooses to say something which conceals the felony, then this will amount to active concealment, not protected by the right against self-incrimination and may constitute misprision. Id. at 1055. See Comment, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1100 (1974).
[21] State v. Biddle, 32 Del. 401, 124 A. 804 (1923) is a report of a charge to the jury by the Court of General Sessions to the effect that the common law crime of misprision existed in Delaware and that it may consist of wilful failure and neglect either to make an effort to prevent the felony being committed or to prosecute the felon. The official report states that the defendant was acquitted. The West report asserts that she was convicted. We are informed by the Bureau of Archives and Records of Delaware that the docket entries for the case, indictment no. 20, November Term, 1923, show that the defendant was acquitted.
[22] The Model Penal Code (U.L.A.) would make it an offense to volunteer false information to a law enforcement officer, § 242.3 (4) and to aid the consummation of crime, § 242.4.
[23] The Commission was obviously content with the more definitive offenses of "hindering prosecution" and "compounding a crime." See Maryland Commission on Criminal Law, Report and Part I of `Proposed Criminal Code (1972) §§ 205.65-205.70 and § 215.50.
[24] Chief Judge Chase continued: "... and what part has become obsolete from non-user or other cause." State v. Buchanan, 5 H. & J. 317, 366 (1821). The addendum, insofar as it applies to "non-user", does not appear to be in accord with the opinion of the Court rendered by Buchanan, J. as we have indicated.
[25] We noted in Ass'n of Taxi Oprs. v. Yellow Cab Co., 198 Md. 181, 204-205, 82 A.2d 106 (1951) that in determining the common law as it exists in this State, we have not always followed the view taken by the majority of other states, citing Mahnke v. Moore, 197 Md. 61, 77 A.2d 923 (1951) and Damasiewicz v. Gorsuch, 197 Md. 417, 79 A.2d 550 (1951). We believed that we were under no obligation to follow the majority view, unless we thought it better reasoned and sound.
[26] The Court of Special Appeals recognized that it was "not bound by current opinion of the House of Lords," but noted that "its view of what comprised the elements of its common law prior to 1776 is hard to gainsay." Pope v. State, 38 Md. App. 520, 530, 382 A.2d 880 (1978). It continued: "If in the application of that common law, active concealment is found to be more contemporarily compatible to a determination of criminal culpability than is indifference, such policy is for our Legislature or Court of Appeals to say." Id.
[27] The question whether the offense extended to concealing knowledge of an intended felony was left open.
[28] Glazebrook observed that the absence of substantial authority by way of reported cases seriously handicapped their lordships in justifying the law, not only in freeing it from the criticism that it was impossibly wide in scope, but also in determining its ingredients. 25 Mod. L. Rev. 301, 307. "... Lord Denning was driven to the curious position of stating that `the ingredients of the offence can best be seen by comparing it with offences of like degree which have other ingredients.' His lordship might, with equal logic, have postulated crimes of fornication or adultery, and then determined their elements by examining the offences of rape, incest and buggery." Id. at 312.
[29] It is difficult to see how even a reasonable man could know that a felony had been committed if he does not know the felon. "He has to make certain assumptions about the perpetrator's mens rea and this he cannot do if he does not know who he is." 25 Mod. L. Rev. at 315, n. 91.
[30] "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.
[31] The child abuse law requires "[e]very health practitioner, educator, or social worker or law-enforcement officer, who contacts, examines, attends, or treats a child and who believes or has reason to believe that the child has been abused ... to make a report ... notwithstanding any other section of the law relating to privileged communications...." Code (1957, 1976 Repl. Vol.) art. 27, § 35A(c). It further requires any person, other than those specified in § 35A(c), "who has reason to believe a child is abused [to] so report to the local department of social services or to the appropriate law-enforcement agency...." § 35A (e). There is no sanction for failure to comply, but immunity from civil or criminal penalty is provided when there is compliance. § 35A (h).
7.2.8.2.2.4.2 People v. Stephens 7.2.8.2.2.4.2 People v. Stephens
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
DARRYL STEPHENS, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
[58] Robert T. Johnson, District Attorney, Bronx County (Lara R. Binimow and Peter D. Coddington of counsel), for respondent.
Richard L. Herzfeld for appellant.
BUCKLEY, P.J., TOM, SULLIVAN and ROSENBERGER, JJ., concur.
OPINION OF THE COURT
SAXE, J.
This appeal requires us to consider the nature and extent of the duty owed to a child by an unrelated adult when the child resides in the adult's household along with his own children and those of his paramour. In particular, we consider whether the prosecution in this case properly relied upon the application of the "in loco parentis" doctrine to convict defendant of murder based upon a failure to provide medical care to a child who was not his biological child.
This prosecution concerns the death of nine-year-old Sabrina Green, who was, at the time, the charge of her older sister, Yvette Green. Defendant Darryl Stephens and Yvette Green had lived together since 1985; defendant was the father of 8 of Yvette's 10 children. Sabrina came to live in their household in November of 1996. Defendant and Yvette were both convicted of murder in the second degree, under Penal Law § 125.25 (4), for Sabrina's death.
Sabrina Green was born on August 28, 1988 to a crack-addicted mother, with whom she lived until her mother died in 1991. Sabrina was then cared for by a family friend, Sylvia Simmons, until Simmons died in 1996. Sabrina then briefly lived with a relative, Denise Nelson, but Nelson found Sabrina to be too "hyper" and therefore, in November 1996, she went to live in the household of her older sister Yvette. Yvette was awarded legal guardianship of Sabrina.
Sabrina had severe behavior problems. At age five she was diagnosed with attention deficit and hyperactivity disorder; the pediatric neurologist who testified at trial suggested she might also have been suffering from oppositional defiant disorder. While she had been treated with Ritalin for years with some success by the time she came to live with them, Yvette did not, or could not, continue to provide her with the medication.
Soon after she moved in, Sabrina began to regularly exhibit aggressive behavior, including throwing tantrums, hitting her [59] head and arms against furniture when she did not get her way, and getting into fights with the other children in the apartment and at school; she also wet her bed. She had difficulty following household rules, and in this household, a breach of these rules resulted in punishment, imposed either by Yvette or by defendant, such as having to stand in the corner, being grounded in her room, and being whipped with a belt or stick. Sabrina was punished almost daily.
Tyrone Green, Yvette's son, then 19 years old, testified that he had observed Sabrina taking food out of the refrigerator one night, a serious breach of the household rules which he went to report to Yvette and defendant. Yvette was asleep, and defendant responded to Tyrone that he "would take care of it." The next day Tyrone saw a gauze wrapping on Sabrina's hand, and he later saw that it had been burned. Almost every night thereafter, either Yvette or defendant would tie Sabrina's arms and legs to the bed with a jump rope, for the entire night. In addition, Sabrina was required to spend most of her time sitting in the hallway where she could be watched by both Yvette and defendant. The condition of her hand grew worse, and she was no longer allowed to go to school or outside to play. Despite the older children's entreaties that Sabrina be taken to a doctor, neither Yvette nor defendant did so. Yvette told the children that she was afraid to do so because she might be blamed for the injuries and have her children taken away.
Despite the testimony of Yvette's sons Tyrone and Marcus, relating that in September 1997 defendant stated that he could no longer deal with Sabrina and that Yvette was going to have to take over being in charge of her, Tyrone also testified that one morning, perhaps about a week before Sabrina died, Tyrone saw defendant hitting Sabrina with a belt 10 or 12 times.
At the time of Sabrina's death, on November 8, 1997, she was suffering from multiple conditions, including subdural hemorrhage caused by numerous blunt impacts to the head, a third-degree burn to her hand which was left untreated until infection and gangrene set in, and pneumonia. Dr. Ozuah, the physician who examined Sabrina's body at the hospital, observed bruises, some fresh, which were consistent with being hit with a belt, scars that were consistent with her hands being tied with a rope, and bed sores indicating she had been immobilized for many days. There was a severe third-degree burn to her left hand through all layers of skin, which was consistent with being held to a surface such as an iron or stove, and there [60] were fresh injuries on top of the burn. There were injuries to Sabrina's right hand consistent with being slammed repeatedly in a refrigerator door some time in September; the flesh was decaying and gangrenous. Dr. Ozuah also found an old injury to Sabrina's head as well as several that had been inflicted within 24 hours of her death. All the head injuries were serious, requiring a great deal of force, such as from a baseball bat, and could not have been self-inflicted by a nine-year-old banging her head on the floor.
An autopsy report revealed that Sabrina had died as the result of six recent severe blunt impact wounds to the head, as well as pneumonia caused by an infection which spread from her hands to her bloodstream and lungs. There were numerous scars, including scars to her back, thighs and legs consistent with a severe beating with a belt one week before her death.
The medical examiner who testified at trial based upon the autopsy report suggested that the cause of death was septic shock resulting from a bacterial infection in the bloodstream due to the untreated burn. It was the expressed opinion of both the examining physician and the medical examiner that Sabrina had been a victim of child abuse.
DISCUSSION
Sufficiency and Weight of Evidence
The provision of Penal Law § 125.25 under which defendant was charged with murder in the second degree requires that the defendant, under circumstances evincing a depraved indifference to human life, recklessly engaged in conduct which created a grave risk of serious physical injury or death to a person less than 11 years of age. The People's theory regarding defendant's guilt was that acting in concert with Yvette Green, with the requisite mental state, he had engaged in conduct which caused injuries that had resulted in Sabrina's death, and in addition, that he had failed to get her the medical care she needed or take any other steps to protect her, when he knew of her grave injuries.
Defendant's challenge to the sufficiency of the evidence is two-pronged: first, that the evidence failed to show that he was responsible for the injuries that caused Sabrina's death, and second, since he was neither the child's father nor her guardian, he had no legal duty toward Sabrina, and therefore was not legally chargeable with his mere failure to act to ensure she got medical treatment. We do not agree with his contentions.
First, there was sufficient evidence to permit the jury to find that defendant, acting in concert with Yvette, under circumstances [61] evincing a depraved indifference to human life, had recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina, thereby causing her death.
Moreover, the evidence similarly supported the People's alternate theory, which was based upon the application of the doctrine of in loco parentis. We reject defendant's suggestion that he may not be held liable for his failure to ensure that Sabrina received necessary medical attention due to his lack of legal connection to the child.
Defendant correctly points out that since he was neither the child's parent nor her legal guardian, he may only be convicted based upon a failure to take action to protect the child from harm if a legal duty may be imposed upon him under the in loco parentis doctrine:
"Criminal liability cannot be premised on a failure to act . . . unless the party so charged has a legal duty to act (see, People v Spadaccini, 124 AD2d 859, 861). A person who has no familial relationship to a child ordinarily has no legal duty to provide for it, unless it can be shown that he or she has assumed all of the responsibilities incident to parenthood. That a party has taken some part in meeting the child's daily needs is not enough; a `full and complete. . . interest in the well-being and general welfare' of the child is necessary, as is the intent to fully assume a parental role, with the concomitant obligations to support, educate, and care for the child on an ongoing basis (Rutkowski v Wasko, 286 App Div 327, 331)." (People v Myers, 201 AD2d 855, 856 [1994].)
However, the evidence fully supports the application of the doctrine here.
People v Myers presented circumstances in which the in loco parentis doctrine could not support criminal liability. There, the court dismissed the indictment of the defendant for manslaughter (and for endangering the welfare of a child) of a two-month-old child who had died of severe dehydration and malnutrition; although the defendant was the live-in boyfriend of the infant's mother, the evidence merely showed that he contributed to household finances, occasionally purchasing formula for the infant and acting as a babysitter, not that he had "intended to shoulder any responsibility for the child's welfare" (People v Myers, 201 AD2d at 856).
[62] In contrast, the evidence here reflected that Darryl Stephens was far more than a live-in boyfriend who took no part in the raising of the child. Rather, it supported the conclusion that during his long-term live-in relationship with Yvette, he "assumed all of the responsibilities incident to parenthood" (People v Myers, supra at 856). The 11 children living in the household, including Sabrina, were all housed, clothed, fed and supervised jointly by Yvette and defendant. Defendant took the children, including Sabrina, to school, stayed with them when Yvette was out, set down rules for them and punished them for any infractions. The testimony supports a finding that defendant treated Sabrina with the same degree of responsibility as he did the other children, not as a mere babysitter or short-term helper, but as one of the two coequal adults functioning in the role of parent.
The law applicable to the present case is not the same as that applicable to neglect proceedings under the Family Court Act, which defines a "person legally responsible" for a child to include "any other person responsible for the child's care at the relevant time" (see Family Ct Act § 1012 [g]), which provision is "intended to be construed broadly so as to include paramours or other nonparental persons who perform childcare duties which correspond with the traditional parent/child relationships" (see Matter of Nathaniel TT., 265 AD2d 611, 612 [1999], lv denied 94 NY2d 757 [1999]). Nevertheless, it is instructive to consider those cases in which live-in paramours have been held to be "person[s] legally responsible" for a child.
In People v Sheffield (265 AD2d 258 [1999]), the defendant shared his apartment with the 11-year-old child and her mother, he called the child his "stepdaughter" and had sole custody of her on a daily basis. In Matter of Heather U. (220 AD2d 810 [1995]), respondent had been living with the subject child's mother in a family-like setting for approximately three years, had fathered her youngest child, and was a regular member of the subject child's household.
Similarly, in People v Carroll (244 AD2d 104, 107 [1998], affd 93 NY2d 564 [1999]), this Court upheld a prosecution of a nonparent for endangering the welfare of a child under Penal Law § 260.10 (2), which applies to a "parent, guardian or other person legally charged with the care or custody of a child," because the evidence showed that the nonparent has assumed the role of stepparent during the period in question.
Like the statutes defining neglect as committed by nonrelatives (see Family Ct Act § 1012 [g]) and endangerment of a child [63] as committed by nonrelatives (see Penal Law § 260.10 [2]), the in loco parentis doctrine requires consideration of whether the person charged actually undertook the fundamental responsibilities that are normally those of a parent. Its application here was entirely proper.
Defendant argues that, despite his serving in a parental capacity for all the other children living in his home, including the two who were not his natural children, he could relinquish that role for Yvette's young sister and ward by the simple expedient of making an announcement to that effect. However, even assuming that he could have successfully eradicated, through a pronouncement, the responsibility he had previously undertaken, so as to eliminate Sabrina from his sphere of responsibilities, the evidence makes it unnecessary for us to definitively decide that point. Even if defendant made such pronouncement, the testimony that he continued to take part in the ongoing punishments of Sabrina up until just days before her death, and the lack of evidence that he took any other steps to remove all responsibility for her from his life, permit the conclusion that any such pronouncement did not reflect any actual change in his previous parental posture toward her.
The evidence was legally sufficient to prove beyond a reasonable doubt that defendant was responsible for the victim's care at the time of her death, and that, acting in concert with Yvette, under circumstances evincing a depraved indifference to human life, he recklessly engaged in conduct which created a grave risk of serious physical injury or death to Sabrina (see People v Contes, 60 NY2d 620 [1983]). Moreover, the verdict was not against the weight of the evidence (see CPL 470.15 [5]; People v Bleakley, 69 NY2d 490 [1987]).
Jury Charge
Defendant's argument that the court failed to instruct the jury that his obligation to provide medical care had to be proven beyond a reasonable doubt is both unpreserved and without merit. The court delivered both an in loco parentis charge and a reasonable doubt charge, the latter of which emphasized that the evidence must "establish beyond a reasonable doubt each and every essential element of the crimes charged." No objection was raised to the court's instructions regarding defendant's duty to ensure Sabrina received necessary medical care. The charge was not rendered deficient by the fact that the court did not repeat, after describing each element individually, that it had to be established beyond a reasonable doubt.
[64] The court's acting-in-concert charge was proper and consistent with People v Brathwaite (63 NY2d 839 [1984]) and People v Sanchez (98 NY2d 373 [2002]). The court did not say that mere recklessness was all that was required to convict defendant of murder in the second degree based upon his acting in concert with Yvette, but rather that the jury must find that he acted recklessly "under circumstances evincing a depraved indifference to human life" that created "a grave risk of serious physical injury or death to a person less than 11 years old, and thereby cause[d] the death of such person." The court specifically stated that it was essential that the People prove that both defendant and Yvette "acted with the mental culpability required for the commission of the crimes charged."
There was no error in the court's responses to the jury's notes.
Trial Rulings
We find no error in the court's evidentiary rulings. The two medical experts who gave testimony on the issue of battered child syndrome possessed sufficient qualifications to do so (see People v Kinder, 75 AD2d 34 [1980], lv denied 51 NY2d 732 [1980]). The autopsy photographs were necessary to demonstrate the extent of Sabrina's physical deterioration, in light of Tyrone's testimony that she had looked "fine" shortly before her death, and in order to rebut defendant's claims that he had not known of Sabrina's desperate need for help and would have gotten it for her if he had (see People v Sims, 110 AD2d 214, 222 [1985], lv denied 67 NY2d 657 [1986]). The "before" photograph, which was taken just prior to Sabrina's removal by Yvette from the Children's Storefront School, and which depicts her as smiling and healthy, was necessary to demonstrate the drastic change that took place after she came into defendant's care. Defendant's remaining arguments regarding the admission of evidence are without merit.
The prosecutor's summation was proper, and defense counsel's summation was not unfairly restricted.
Sentencing
The court properly denied defendant's requested adjournment of sentencing. The desire to present witnesses and to prepare a written memorandum chronicling defendant's law-abiding life did not justify an adjournment because there was no need to elaborate on that point. Nor did defendant's lack of any prior involvement with the criminal justice system suffice as a mitigating factor given the nature of this case. Under the facts [65] of this case, we do not find the sentence here to be unduly harsh (see People v Delgado, 80 NY2d 780, 783 [1992]).
Accordingly, the judgment of the Supreme Court, Bronx County (Alexander Hunter, J.), rendered January 10, 2000, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 25 years to life, should be affirmed.
Judgment, Supreme Court, Bronx County, rendered January 10, 2000, affirmed.
7.2.8.2.2.4.3 People v. Beardsley 7.2.8.2.2.4.3 People v. Beardsley
206 150 MICHIGAN REPORTS.
PEOPLE v. BEARDSLEY.
Error to Oakland; Smith, J.
Submitted April 18, 1907.
(Docket No. 62.)
Decided December 10, 1907.
Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than five years in the State prison at Jackson. Reversed, and respondent discharged.
Aaron Perry and M. F. Lillis, for appellant.
Frank L. Covert, Prosecuting Attorney, and Charles 8. Matthews, Assistant Prosecuting Attorney, for the people.
MCALVAY, C. J. Respondent was convicted of manslaughter before the circuit court for Oakland county, and was sentenced to the State prison at Jackson for a minimum term of one year and a maximum term not to exceed five years. He was a married man living at Pontiac, and at the time the facts herein narrated occurred, he was working as a bartender and clerk at the Columbia Hotel. He lived with his wife in Pontiac, occupying two rooms on the ground floor of a house. Other rooms were rented to tenants, as was also one living room in the basement. His wife being temporarily absent from the city, respondent arranged with a woman named Blanche Burns, who at the time was working at another hotel, to go to his apartments with him. He had been acquainted with her for some time. They knew each others habits and character. They had drunk liquor together, and had on two occasions been in Detroit and spent the night together in houses of assignation. On the evening of Saturday, March 18, 1905, he met her at the place where she worked, and they went together to his place of residence. They at once began to drink and continued to drink steadily, and remained together, day and night, from that time until the afternoon of the Monday following, except when respondent went to his work on Sunday afternoon. There was liquor at these rooms, and when it was all used they were served with bottles of whiskey and beer by a young man who worked at the Columbia Hotel, and who also attended respondent's fires at the house. He was the only person who saw them in the house during the time they were there together. Respondent gave orders for liquor by telephone. On Monday afternoon, about one o'clock, the young man went to the house to see if anything was wanted. At this time he heard respondent say they must fix up the rooms, and the woman must not be found there by his wife, who was likely to return at any time. During this visit to the house the woman sent the young man to a drug store to purchase, with money she gave him, camphor and morphine tablets. He procured both articles. There were six grains of morphine in quarter-grain tablets. She concealed the morphine from respondent's notice, and was discovered putting something into her mouth by him and the young man as they were returning from the other room after taking a drink of beer. She in fact was taking morphine. Respondent struck the box from her hand. Some of the tablets fell on the floor, and of these, respondent crushed several with his foot. She picked up and swallowed two of them, and the young man put two of them in the spittoon. Altogether it is probable she took from three to four grains of morphine. The young man went away soon after this. Respondent called him by telephone about an hour later, and after he came to the house requested him to take the woman into the room in the basement which was occupied by a Mr. Skoba. She was in a stupor and did not rouse when spoken to. Respondent was too intoxicated to be of any assistance and the young man proceeded to take her downstairs. While doing this Skoba arrived, and together they put her in his room on the bed. Respondent requested Skoba to look after her, and let her out the back way when she waked up. Between nine and ten o'clock in the evening Skoba became alarmed at her condition. He at once called the city marshal and a doctor. An examination by them disclosed that she was dead.
Many errors are assigned by respondent, who asks to have his conviction set aside. The principal assignments of error are based upon the charge of the court, and refusal to give certain requests to charge, and are upon the theory that under the undisputed evidence in the case, as claimed by the people and detailed by the people's witnesses, the respondent should have been acquitted and discharged. In the brief of the prosecutor his position is stated as follows:
"It is the theory of the prosecution that the facts and circumstances attending the death of Blanche Burns in the house of respondent were such as to lay upon him a duty to care for her, and the duty to take steps for her protection, the failure to take which, was sufficient to constitute such an omission as would render him legally responsible for her death. * * * There is no claim on the part of the people that tie respondent * * * was in any way an active agent in bringing about the death of Blanche Burns, but simply that he owed her a duty which he failed to perform, and that in consequence of such failure on his part she came to her death."
Upon this theory a conviction was asked and secured.
The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. 21 Cyc. p. 770 et seq., and cases cited. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. 1 Bishop on Criminal Law (6th Ed.), § 217; 2 Bishop on Criminal Law (6th Ed.), § 695; 21 Am. & Eng. Enc. Law (2d Ed.), p. 99; 21 Cyc. p. 770 et seq.; State v. Noakes, 70 Vt. 247; 2 Wharton on Criminal Law (7th Ed.), § 1011; Clark & Marshall on Crimes (2d Ed.), p. 379 (e), and cases cited.
Although the literature upon the subject is quite meagre and the cases few, nevertheless, the authorities are in harmony as to the relationship which must exist between the parties to create the duty, the omission of which establishes legal responsibility. One authority has briefly and correctly stated the rule, which the prosecution claims should be applied to the case at bar, as follows:
"If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman, etc., knowing such person to be in peril of life, willfully or negligently fails to make such reasonable and proper efforts to rescue him as be might have done with- out jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason of his omis- sion of duty the dependent person dies.
"So one who from domestic relationship, public duty, voluntary choice, or otherwise, has the custody and care of a human being, helpless either from imprisonment, infancy, sickness, age, imbecility, or other incapacity of mind or body, is bound to execute the charge with proper diligence and will be held guilty of manslaughter, if by culpable negligence he lets the helpless creature die." 21 Am. & Eng. Enc. Law (2d Ed.), p. 197, notes and cases cited.
The following brief digest of cases gives the result of our examination of American and English authorities, where the doctrine of criminal liability was involved when death resulted from an omission to perform a claimed duty. We discuss no cases where statutory provisions are involved.
In Territory v. Manton, 8 Mont. 95, a husband was convicted of manslaughter for leaving his intoxicated wife one winter's night lying in the snow, from which exposure she died. The conviction was sustained on the ground that a legal duty rested upon him to care for and protect his wife, and that his neglect to perform that duty, resulting in her death, he was properly convicted.
State v. Smith, 65 Me. 257, is a similar case. A husband neglected to provide clothing and shelter for his insane wife. He left her in a bare room without fire during severe winter weather. Her death resulted. The charge in the indictment is predicated upon a known legal duty of the husband to furnish his wife with suitable protection.
In State v. Behm, 72 Iowa, 533, the conviction of a mother of manslaughter for exposing her infant child without protection, was affirmed upon the same ground. See, also, Gibson v. Commonwealth, 106 Ky. 360.
State v. Noakes, supra, was a prosecution and conviction of a husband and wife for manslaughter. A child of a maid servant was born under their roof. They were charged with neglecting to furnish it with proper care. In addition to announcing the principle in support of which the case is already cited, the court said:
"To create a criminal liability for neglect by nonfeasance, the neglect must also be of a personal, legal duty, the natural and ordinary consequences of neglecting which would be dangerous to life."
In reversing the case for error in the charge—not necessary to here set forth—the court expressly stated that it did not concede that respondents were under a legal duty to care for this child because it was permitted to be born under their roof, and declined to pass upon that question.
In a Federal case tried in California before Mr. Justice Field of the United States Supreme Court, where the master of a vessel was charged with murder in omitting any effort to rescue a sailor who had fallen overboard, the learned Justice in charging the jury said:
"There may be in the omission to do a particular act under some circumstances, as well as in the commission of an act, such a degree of criminality as to render the offender liable to indictment for manslaughter. * * * In the first place the duty omitted must be a plain duty * * * In the second place it must be one which the party is bound to perform by law or contract, and not one the performance of which depends simply upon his humanity, or his sense of justice or propriety." United States v. Knowles, 4 Sawyer (U. S.), 517.
The following English cases are referred to as in accord with the American cases above cited, and are cases where a clear and known legal duty existed: Beg. v. Conde, 10 Cox Crim. Cas. 547; Beg. v. Bugg, 12 Cox Crim. Cas. 16.
The case of Beg. v. Nicholls, 13 Cox Crim. Cas. 75, was a prosecution of a penniless old woman, a grandmother, for neglecting to supply an infant grandchild left in her charge with sufficient food and proper care. The case was tried at assizes in Stafford before Brett, J., who said to the jury:
"If a grown up person chooses to undertake the charge of a human creature, helpless either from infancy, simplicity, lunacy, or other infirmity, be is bound to execute that charge without (at all events) wicked negligence, and if a person who has chosen to take charge of a helpless creature lets it die by wicked negligence, that person is guilty of manslaughter."
The vital question was whether there had been any such negligence in the case designated by the trial judge as wicked negligence. The trial resulted in an acquittal. The charge of this nisi prius judge recognizes the principle that a person may voluntarily assume the care of a helpless human being, and having assumed it, will beheld to be under an implied legal duty to care for and protect such person. The duty assumed being that of care taker and protector to the exclusion of all others.
Another English case decided in the appellate court, Lord Coleridge, C. J., delivering the opinion, is Reg. v. Instan, 17 Cox Crim. Cas. 602. An unmarried woman without means lived with and was maintained by her aged aunt. The aunt suddenly became very sick, and for ten days before her death was unable to attend to herself, to move about, or to do anything to procure assistance. Before her death no one but the prisoner had any knowledge of her condition. The prisoner continued to live in the house at the cost of the deceased and took in the food supplied by the tradespeople. The prisoner did not give food to the deceased, or give or procure any medical or nursing attendance for her; nor did she give notice to any neighbor of her condition or wants, although she had abundant opportunity and occasion to do so. In the opinion, Lord Coleridge, speaking for the court, said:
"It is not correct to say that every moral obligation is a legal duty; but every legal duty is founded upon a moral obligation. In this case, as in most cases, the legal duty can be nothing else than taking upon one's self the performance of the moral obligation. There is no ques- tion whatever that it was this woman's clear duty to impart to the deceased so much of that food, which was taken into the house for both and paid for by the deceased, as was necessary to sustain her life. The deceased could not get it for herself. She could only get it through the prisoner. It was the prisoner's clear duty at common law to supply it to the deceased, and that duty she did not periorm. Nor is there any question that the prisoner's failure to discharge her legal duty, if it did not directly cause, at any rate accelerated, the death of the deceased. There is no case directly on the point; but it would be a slur and a stigma upon our law if there could be any doubt as to the law to be derived from the principle of de- cided cases, if cases were necessary. There was a clear moral obligation, and a legal duty founded upon it; a duty willfully disregarded and the death was at least accelerated, if not caused, by the nonperformance of the legal duty."
The opening sentences of this opinion are so closely connected with the portion material to this discussion that they could not well be omitted. Quotation does not necessarily mean approval. We do not understand from this opinion that the court held that there was a legal duty founded solely upon a moral obligation. The court indicated that the law applied in the case was derived from the principles of decided cases. It was held that the prisoner had omitted to perform that which was a clear duty at the common law. The prisoner had wrongfully appropriated the food of the deceased and withheld it from her. She was the only other person in the house, and had assumed charge of her helpless relative. She was under a clear legal duty to give her the food she withheld, and under an implied legal duty by reason of her assumption of charge and care, within the law as stated in the case of Reg. v. Nicholls, supra. These adjudicated cases and all others examined in this investigation we find are in entire harmony with the proposition first stated in this opinion.
Seeking for a proper determination of the case at bar by the application of the legal principles involved, we must eliminate from the case all consideration of mere moral obligation, and discover whether respondent was under a legal duty towards Blanche Burns at the time of her death, knowing her to be in peril of her life, which required him to make all reasonable and proper effort to
save her; the omission to perform which duty would make him responsible for her death. This is the important and determining question in this case. If we hold that such legal duty rested upon respondent it must arise by implication from the facts and circumstances already recited. The record in this case discloses that the deceased was a woman past 30 years of age. She had been twice married. She was accustomed to visiting saloons and to the use of intoxicants. She previously had made assignations with this man in Detroit at least twice. There is no evidence or claim from this record that any duress, fraud, or deceit had been practiced upon her. On the contrary it appears that she went upon this carouse with respondent voluntarily and so continued to remain with him. Her entire conduct indicates that she had ample experience in such affairs.
It is urged by the prosecutor that the respondent "stood towards this woman for the time being in the place of her natural guardian and protector, and as such owed her a clear legal duty which he completely failed to perform." The cases cited and digested establish that no such legal duty is created based upon a mere moral obligation. The fact that this woman was in his house created no such legal duty as exists in law and is due from a husband towards his wife, as seems to be intimated by the prosecutor's brief. Such an inference would be very repugnant to our moral sense. Respondent had assumed either in fact or by implication no care or control over his companion. Had this been a case where two men under like cir- cumstances had voluntarily gone on a debauch together and one had attempted suicide, no one would claim that this doctrine of legal duty could be invoked to hold the other criminally responsible for omitting to make effort to rescue his companion. How can the fact that in this case one of the parties was a woman, change the principle of law applicable to it? Deriving and applying the law in this case from the principle of decided cases, we do not find that such legal duty as is contended for existed in fact or by implication on the part of respondent towards the deceased, the omission of which involved criminal liability. We find no more apt words to apply to this case than those used by Mr. Justice Field in United States v. Knowles, supra.
"In the absence of such obligations, it is undoubtedly the moral duty of every person to extend to others assistance when in danger; * * * and if such efforts should be omitted by any one when they could be made without imperiling his own life, he would, by his conduct, draw upon himself the just censure and reproach of good men; but this is the only punishment to which he would be subjected by society."
Other questions discussed in the briefs need not be considered. The conviction is set aside, and respondent is ordered discharged.
MONTGOMERY, OSTRANDER, HOOKER, and MOORE, JJ., concurred.
7.2.8.2.2.4.4. Anthony D'Amato, "The ‘Bad Samaritan’ Paradigm," Northwestern University Law Review, Vol. 70, No. 5, 1976.
7.2.8.2.2.4.5 Vermont Duty to Aid the Endangered Act 7.2.8.2.2.4.5 Vermont Duty to Aid the Endangered Act
12 V.S.A. § 519.
Emergency medical care
§ 519. Emergency medical care
A. A person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties owed to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others.
B. A person who provides reasonable assistance in compliance with subsection (a) of this section shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of his practice.
C. A person who willfully violates subsection (a) of this section shall be fined not more than $100.00. (1967, No. 309 (Adj. Sess.), §§ 2-4, eff. March 22, 1968.)
7.2.8.2.3 II.C. Mens Rea 7.2.8.2.3 II.C. Mens Rea
Mens rea—a guilty mind—is the second part of criminal culpability, and undoubtedly one of the most complex subjects we will study in this course. Intricately tied into concepts of blameworthiness, mens rea can determine whether the same conduct and result constitute a blameless accident or a capital offense. The cases and readings in this section represent a range of mens rea categories, from a lack of mens rea to various grades of mens rea: negligence, recklessness, knowledge, and purpose. As you will see here and throughout this course, there are gradations and exceptions even within these categories. The questions these cases raise are fundamental to the study of criminal law. As you read through them, consider why each crime requires the mens rea that is attached to it, whether you think that requirement is fair, and the impact of the mens rea requirement on the enforcement of the law. How would the crime have been adjudicated under different mens rea requirements? Does the requirement track your sense of moral blameworthiness?
7.2.8.2.3.1. Model Penal Code section 2.02
7.2.8.2.3.2 Regina v. Cunningham 7.2.8.2.3.2 Regina v. Cunningham
REGINA v. CUNNINGHAM.
[Reported by G. D. BLACK, Esq., Barrister-at-Law.]
Criminal Law - Mens Rea - "Maliciously" - Causing coal gas to be taken so as to endanger life - Whether “wickedness” equivalent to “malice” in statutory crime - Whether “maliciously” postulates foresight of consequence - Offences against the Person Act, 1861 (24 & 25 Viet. c. 100), s. 23.
The appellant stole a gas meter and its contents from the cellar of a house and in so doing fractured a gas pipe. Coal gas escaped, percolated through the cellar wall to the adjoining house, and entered a bedroom with the result that W., who was asleep, inhaled a considerable quantity of the gas. The appellant was charged on an indictment preferred under the Offences against the Person Act, 1861, s. 23,[1] with unlawfully and maliciously causing to take a noxious thing, namely, coal gas, so as thereby to endanger her life. The judge directed the jury that “maliciously" meant “wickedly”-doing “something which he has no business to do and perfectly well knows it.” On an appeal against conviction:-
Held, allowing the appeal, that the word maliciously” in a statutory crime postulated foresight of consequence, and that an offence to be committed under section 23 it was necessary for the accused person either to intend to do the particular type of harm in fact done or, foreseeing that such harm might be done, for him recklessly to take the risk of it.
Reg. v. Pembliton (1874) L.R. 2 C.C.R. 119 applied.
APPEAL against conviction.
The appellant, Roy Cunningham, was charged at Leeds Assizes on two indictments. To the first indictment, which contained two counts of larceny of a gas meter and its contents contrary to sections 8 and 2 of the Larceny Act, 1916, he pleaded Guilty, and there was no appeal in that respect. The second indictment, framed under section 23 of the Offences against the Person Act, 1861, charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger her life, and to that he pleaded Not Guilty. Oliver J. directed the jury that for the purpose of the section "maliciously" meant wickedly doing "something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.” The appellant was convicted, and appealed on the ground of misdirection of the jury.
The facts are fully set out in the judgment of Byrne J.
S. E. Brodie for the appellant. The prosecution must prove on a charge brought under section 23 of the Offences against the Person Act, 1861, that the accused acted maliciously and unlawfully. Malice imports mens rea. The nature of the mens rea required is that the accused must either intend to do the harm in fact done or he must foresee that the actual harm done might occur as a result of his actions but nevertheless continues recklessly, not caring whether it be done or not. There is no authority decided on the point under section 28, but Reg. v. Pembliton,[2] a case under section 51 of the Malicious Damage Act, 1861, and which concerned damage to property, supports the contention: See per Lord Coleridge C.J. and Blackburn J.[3]Pembliton's case[4] was considered in Reg. v. Latimer,[5] a decision under Section 20 of the Offences against the Person Act, 1861, and that case is authority for the proposition that the definition of “malice " contended for applies equally to offences against the person as it does to offences against property. Oliver J.’s direction to the jury that “malice” meant “wickedness is insufficient. He was also wrong in refusing to withdraw the case from the jury at the end of the prosecution evidence.
J. S. Snowden, for the Crown, was not called upon to argue whether the case should have been withdrawn from the jury. He conceded that it would be to difficult to seek to uphold the direction. [Reference was also made to Reg. v. Faullmer[6] and Reg. v. Martin.[7]
Cur. adv. vult.
May 27. BYRNE J. read the following judgment. The appellant was convicted at Leeds Assizes upon an indictment framed under section 23 of the Offences against the Person Act, 1861, which charged that he unlawfully and maliciously caused to be taken by Sarah Wade a certain noxious thing, namely, coal gas, so as thereby to endanger the life of the said Sarah Wade.
The facts were that the appellant was engaged to be married and his prospective mother-in-law was the tenant of a house, No. 7A, Bakes Street, Bradford, which was unoccupied, but which was to be occupied by the appellant after his marriage. Mrs. Wade and her husband, an elderly couple, lived in the house next door. At one time the two houses had been one, but when the building was converted into two houses a wall had been erected to divide the cellars of the two houses, and that wall was composed of rubble loosely cemented.
On the evening of January 17, 1957, the appellant went the cellar of No. 7A, Bakes Street, wrenched the gas meter from the gas pipes and stole it, together with its contents, and in a second indictment he was charged with the larceny of the gas meter and its contents. To that indictment he pleaded guilty and was sentenced to six months imprisonment. In respect of that matter he does not appeal.
The facts were not really in dispute, and in a statement to a police officer the appellant said: “All right, I will tell you. I was short of money, I had been off work for three days, I got eight shillings from the gas meter. I tore it the wall and threw it away." Although there was a stop tap within two feet of the meter the appellant did not turn off the gas, with the result that a very considerable volume of gas escaped, some of which seeped through the wall of the cellar and partially asphyxiated Mrs. Wade, who was asleep in her bedroom next door, with the result that her life was endangered.
At the close of the case for the prosecution, Mr. Brodie, who appeared for the appellant at the trial and who has appeared for him again in this court submitted that there was no case to go to the jury, but the judge, quite rightly in our opinion, rejected this submission. The appellant did not give evidence.
The act of the appellant was clearly unlawful and therefore the real question for the jury was whether it was also malicious within the meaning of section 23 of the Offences against the Person Act, 1861.
Before this court Mr. Brodie has taken three points, all dependent upon the construction of that section. Section 23 provides:
“Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony . . .”
Mr. Brodie argued, first, that mens rea of some kind is necessary. Secondly, that the nature of the mens rea required is that the appellant must intend to do the particular kind of harm that was done, or, alternatively, that he must foresee that that harm may occur yet nevertheless continue recklessly to do the act. Thirdly, that the judge misdirected the jury as to the meaning of the word "maliciously.” He cited the following cases: Reg. v. Pembliton[1*], Reg. v. Latimer[2*] and Reg v. Faulkner[3*]. In reply, Mr. Snowden, on behalf of the Crown, cited Reg. v. Martin.[4*]
We have considered those cases, and we have also considered, in the light of those cases, the following principle which was propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902 and repeated at p. 186 of the 16th edition edited by Mr. J. W. Cecil Turner and published in 1952:
“In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured."
The same principle is repeated by Mr. Turner in his 10th edition of Russell on Crime at p. 1592.
We think that this is an accurate statement of the law. It derives some support from the judgments of Lord Coleridge C.J. and Blackburn J. in Pembliton’s case.[5*] In our opinion the word maliciously in a statutory crime postulates foresight of consequence.
In his summing-up Oliver J. directed the jury as follows:
“You will observe that there is nothing there about 'with intention that that person should take it.' He has not got to intend that it should be taken; it is sufficient that by his unlawful and malicious act he causes it to be taken. What you have to decide here, then, is whether, when he loosed that frightful cloud of coal gas into the house which he shared with this old lady, he caused her to take it by his unlawful and malicious action. 'Unlawful' does not need any definition. It is something forbidden by law. What about 'malicious'? 'Malicious' for this purpose means wicked -- something which he has no business to do and perfectly well knows it. 'Wicked' is as good a definition as any other which you would get.”
“The facts which face you (and they are uncontradicted and undisputed; the prisoner has not gone into the box to seek to give any particular explanation) are these. Living in the house, which was now two houses but which had once been one and had been rather roughly divided, the prisoner quite deliberately, intending to steal the money that was in the meter . . . broke the gas meter away from the supply pipes and thus released the mains supply of gas at large into that house. When he did that he knew that this old lady and her husband were living next door to him. The gas meter was in a cellar. The wall which divided his cellar from the cellar next door was a kind of honeycomb wall through which gas could very well go, so that when he loosed that cloud of gas into that place he must have known perfectly well that gas would percolate all over the house. If it were part of this offense - which it is not -that he intended to poison the old lady, I should have left it to you to decide, and I should have told you that there was evidence on which you could find that he “intended that, since he did an action which he must have known would result in that. As I have already told you, it is not necessary to prove that he intended to do it; it is quite enough that what he did was done unlawfully and maliciously."
With the utmost respect to the learned judge, we think it is incorrect to say that the word "malicious" in a statutory offence merely means wicked. We think the judge was, in effect, telling the jury that if they were satisfied that the appellant acted wickedly - and he had clearly acted wickedly in stealing the gas meter and its contents - they ought to find that he had acted maliciously in causing the gas to be taken by Mrs. Wade so as thereby to endanger her life.
In our view it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the meaning of the word maliciously in the context of section 23, would without doubt have convicted.
In these circumstances this court has no alternative but to allow the appeal and quash the conviction.
Appeal allowed.
Solicitors: Registrar, Court of Criminal Appeal; Director of Public Prosecutions.
[1] Offences against the Person Act, 1861, s. 23:
"Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony..."
[2] (1874) L.R. 2 C.C.R. 119.
[3] Ibid. 122.
[4] L.R. 2 C.C.R. 119.
[5] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[6] (1877) 13 Cox C.C. 550.
[7] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[1*] (1874) L.R. 2 C.C.R. 119.
[2*] (1886) 17 Q.B.D. 359; 2 T.L.R. 626; 55 L.J.M.C. 135.
[3*] (1877) 13 Cox C.C. 550.
[4*] (1881) 8 Q.B.D. 54; 14 Cox C.C. 633.
[5*] L.R. 2 C.C.R. 119, 122.
7.2.8.2.3.3 United States v. Jewell 7.2.8.2.3.3 United States v. Jewell
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles Demore JEWELL, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[698] Robert W. Ripley, Jr., San Diego, Cal., for defendant-appellant.
William A. Bower, Asst. U. S. Atty., on the brief, James W. Meyers, Asst. U. S. Atty., on the petition for rehearing, Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges.
Certiorari Denied July 21, 1976. See 96 S.Ct. 3173.
OPINION
BROWNING, Circuit Judge:
We took this case in banc to perform a simple but necessary "housekeeping" chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. § 841(a)(1), as a "general intent" crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent "to manufacture, distribute, or dispense." United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.
This does not mean that we disapprove the holding in Davis. On the contrary, we are unanimously of the view that the panel in Davis properly held that "The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing." 501 F.2d at 1346. We restrict Davis to the principle that a defendant who has knowledge that he possesses a controlled substance may have the state of mind necessary for conviction even if he does not know which controlled substance he possesses. Cf. United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975).
In the course of in banc consideration of this case, we have encountered another problem that divides us.
Appellant defines "knowingly" in 21 U.S.C. §§ 841 and 960 to require that positive knowledge that a controlled substance is involved be established as an element of each offense. On the basis of this interpretation, appellant argues that it was reversible error to instruct the jury that the defendant could be convicted upon proof beyond a reasonable doubt that if he did not have positive knowledge that a controlled substance was concealed in the automobile he drove over the border, it was solely and entirely because of the conscious purpose on his part to avoid learning the truth. The majority concludes that this contention is wrong in principle, and has no support in authority or in the language or legislative history of the statute.
It is undisputed that appellant entered the United States driving an automobile in which 110 pounds of marihuana worth $6,250 had been concealed in a secret compartment between the trunk and rear seat. Appellant testified that he did not know the marijuana was present. There was circumstantial evidence from which the jury could infer that appellant had positive knowledge of the presence of the marihuana, and that his contrary testimony was [699] false.[1] On the other hand there was evidence from which the jury could conclude that appellant spoke the truth — that although appellant knew of the presence of the secret compartment and had knowledge of facts indicating that it contained marijuana, he deliberately avoided positive knowledge of the presence of the contraband to avoid responsibility in the event of discovery.[2] If the jury concluded the latter was indeed the situation, and if positive knowledge is required to convict, the jury would have no choice consistent with its oath but to find appellant not guilty even though he deliberately contrived his lack of positive knowledge. Appellant urges this view. The trial court rejected the premise that only positive knowledge would suffice, and properly so.
Appellant tendered an instruction that to return a guilty verdict the jury must find that the defendant knew he was in possession of marihuana. The trial judge rejected the instruction because it suggested that "absolutely, positively, he has to know that it's there." The court said, "I think, in this case, it's not too sound an instruction because we have evidence that if the jury believes it, they'd be justified in finding he actually didn't know what it was — he didn't because he didn't want to find it."
The court instructed the jury that "knowingly" meant voluntarily and intentionally and not by accident or mistake.[3] [700] The court told the jury that the government must prove beyond a reasonable doubt that the defendant "knowingly" brought the marihuana into the United States (count 1: 21 U.S.C. § 952(a)), and that he "knowingly" possessed the marihuana (count 2: 21 U.S.C. § 841(a)(1)). The court continued:
The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.
The legal premise of these instructions is firmly supported by leading commentators here and in England. Professor Rollin M. Perkins writes, "One with a deliberate anti-social purpose in mind . . . may deliberately `shut his eyes' to avoid knowing what would otherwise be obvious to view. In such cases, so far as criminal law is concerned, the person acts at his peril in this regard, and is treated as having `knowledge' of the facts as they are ultimately discovered to be."[4] J. Ll. J. Edwards, writing in 1954, introduced a survey of English cases with the statement, "For well-nigh a hundred years, it has been clear from the authorities that a person who deliberately shuts his eyes to an obvious means of knowledge has sufficient mens rea for an offence based on such words as . . . `knowingly.'"[5] Professor Glanville Williams states, on the basis both English and American authorities, "To the requirement of actual knowledge there is one strictly limited exception. . . . [T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge."[6] Professor Williams concludes, "The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law."[7]
The substantive justification for the rule is that deliberate ignorance and positive knowledge are equally culpable. The textual justification is that in common understanding one "knows" facts of which he is less than absolutely certain. To act "knowingly," therefore, is not necessarily to act only with positive knowledge, but also to act with an awareness of the high probability of the existence of the fact in question. When such awareness is present, "positive" knowledge is not required.
This is the analysis adopted in the Model Penal Code. Section 2.02(7) states: "When knowledge of the existence of a particular fact is an element of an offense, such [701] knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."[8] As the Comment to this provision explains, "Paragraph (7) deals with the situation British commentators have denominated `wilful blindness' or `connivance,' the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist."[9]
The Supreme Court, in Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969), applied the Model Penal Code definition of knowledge in determining the meaning of "knowing" in former 21 U.S.C. § 176a. In Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970), the Court adopted the Model Penal Code definition in defining "knowingly" in 21 U.S.C. § 174.[10] The Turner opinion recognizes that this definition of "knowingly" makes actual knowledge unnecessary: "[T]hose who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be instructed on the tendered defense of no knowledge and told that the defense is not available if the jury finds from all the evidence beyond a reasonable doubt that the defendant had a conscious purpose to avoid learning the source of the heroin." 298 F.2d at 849. The Supreme Court again adopted the Model Penal Code definition of knowledge and approved the language of Griego in Barnes v. United States, 412 U.S. 837, 845 & n.10, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380, 387 (1973).
It is true that neither Leary, Turner, nor Barnes involved a jury instruction. However, United States v. Squires, 440 F.2d 859, 863-64 & n.12 (2d Cir. 1971), and United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973), recognize that the Supreme Court's approval of the Model Penal Code definition of knowledge implies approval of an instruction that the requirement of knowledge is satisfied by proof of a "conscious purpose to avoid learning the truth."[11] The implication seems inevitable, [702] in view of the approval of Griego in Turner and Barnes.
"Deliberate ignorance" instructions have been approved in prosecutions under criminal statutes prohibiting "knowing" conduct by the Courts of Appeals of the Second, Sixth, Seventh, and Tenth Circuits.[12] In many other cases, Courts of Appeals reviewing the sufficiency of evidence have approved the premise that "knowingly" in criminal statutes is not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it.[13] These lines of authority [703] appear unbroken. Neither the dissent nor the briefs of either party has cited a case holding that such an instruction is error or that such evidence is not sufficient to establish "knowledge."[14]
There is no reason to reach a different result under the statute involved in this case. Doing so would put this court in direct conflict with Courts of Appeals in two other circuits that have approved "deliberate ignorance" instructions in prosecutions under 21 U.S.C. § 841(a), or its predecessor, 21 U.S.C. § 174.[15] Nothing is cited from the legislative history of the Drug Control Act indicating that Congress used the term "knowingly" in a sense at odds with prior authority. Rather, Congress is presumed to have known and adopted the "cluster of ideas" attached to such a familiar term of art. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288, 300 (1952). Congress was aware of Leary and Turner,[16] and expressed no dissatisfaction with their definition of the term.
Appellant's narrow interpretation of "knowingly" is inconsistent with the Drug Control Act's general purpose to deal more effectively "with the growing menace of drug abuse in the United States."[17] Holding that this term introduces a requirement of positive knowledge would make deliberate ignorance a defense. It cannot be doubted that those who traffic in drugs would make the most of it. This is evident from the number of appellate decisions reflecting conscious avoidance of positive knowledge of the presence of contraband — in the car driven by the defendant or in which he is a passenger, in the suitcase or package he carries, in the parcel concealed in his clothing. See notes 12, 13, and 15.
It is no answer to say that in such cases the fact finder may infer positive knowledge. It is probable that many who performed the transportation function, essential to the drug traffic, can truthfully testify that they have no positive knowledge of the load they carry. Under appellant's interpretation of the statute, such persons will be convicted only if the fact finder errs in evaluating the credibility of the witness or deliberately disregards the law.
It begs the question to assert that a "deliberate ignorance" instruction permits the jury to convict without finding that the accused possessed the knowledge required by the statute. Such an assertion assumes that the statute requires positive knowledge. But the question is the meaning of the term "knowingly" in the statute. If it means positive knowledge, then, of course, [704] nothing less will do. But if "knowingly" includes a mental state in which the defendant is aware that the fact in question is highly probable but consciously avoids enlightenment, the statute is satisfied by such proof.[18]
It is worth emphasizing that the required state of mind differs from positive knowledge only so far as necessary to encompass a calculated effort to avoid the sanctions of the statute while violating its substance.[19] "A court can properly find wilful blindness only where it can almost be said that the defendant actually knew."[20] In the language of the instruction in this case, the government must prove, "beyond a reasonable doubt, that if the defendant was not actually aware . . . his ignorance in that regard was solely and entirely a result of . . . a conscious purpose to avoid learning the truth."[21]
No legitimate interest of an accused is prejudiced by such a standard, and society's interest in a system of criminal law that is enforceable and that imposes sanctions upon all who are equally culpable requires it.
The conviction is affirmed.
[705] ANTHONY M. KENNEDY, Circuit Judge, with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).
Jewell was convicted and received concurrent sentences on two counts: (1) knowingly or intentionally importing a controlled substance, 21 U.S.C. §§ 952(a), 960(a)(1); (2) knowingly or intentionally possessing, with intent to distribute, a controlled substance, id. § 841(a)(1). We agree with the majority that the jury was not required to find, as to count one, that the defendant knew which controlled substance he possessed. We further agree that the additional state of mind required by count two — intent to distribute the substance — must be specifically proven as an element of a section 841(a)(1) violation.
The sole question raised by appellant is whether the following jury instruction constitutes reversible error:
The Government has the burden of proving beyond a reasonable doubt, as to Count 2:
1. That the defendant knowingly brought the marijuana into the United States and with respect to Count 2 that he knowingly possessed the marijuana as charged.
The Government can complete their burden of proof by proving, beyond a reasonable doubt, that if the defendant was not actually aware that there was marijuana in the vehicle he was driving when he entered the United States his ignorance in that regard was solely and entirely a result of his having made a conscious purpose to disregard the nature of that which was in the vehicle, with a conscious purpose to avoid learning the truth.
At the outset, it is arguable that the "conscious purpose to avoid learning the truth" instruction is inherently inconsistent with the additional mens rea required for count two — intent to distribute. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it.[1] In any event, we would not approve the conscious purpose instruction in this case, because it falls short of the scienter independently required under both counts.[2]
The majority opinion justifies the conscious purpose jury instruction as an application of the wilful blindness doctrine recognized primarily by English authorities. A classic illustration of this doctrine is the connivance of an innkeeper who deliberately arranges not to go into his back room and thus avoids visual confirmation of the gambling he believes is taking place.[3] The doctrine is commonly said to apply in deciding whether one who acquires property under suspicious circumstances should be charged with knowledge that it was stolen.[4]
One problem with the wilful blindness doctrine is its bias towards visual means of acquiring knowledge. We may know facts from direct impressions of the other senses or by deduction from circumstantial evidence, and such knowledge is nonetheless "actual." Moreover, visual sense impressions [706] do not consistently provide complete certainty.[5]
Another problem is that the English authorities seem to consider wilful blindness a state of mind distinct from, but equally culpable as, "actual" knowledge.[6] When a statute specifically requires knowledge as an element of a crime, however, the substitution of some other state of mind cannot be justified even if the court deems that both are equally blameworthy.[7]
Finally, the wilful blindness doctrine is uncertain in scope. There is disagreement as to whether reckless disregard for the existence of a fact constitutes wilful blindness or some lesser degree of culpability.[8] Some cases have held that a statute's scienter requirement is satisfied by the constructive knowledge imputed to one who simply fails to discharge a duty to inform himself.[9] There is also the question of whether to use an "objective" test based on the reasonable man, or to consider the defendant's subjective belief as dispositive.[10]
The approach adopted in section 2.02(7) of the Model Penal Code clarifies, and, in important ways restricts,[11] the English doctrine:
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of [707] its existence, unless he actually believes that it does not exist.
This provision requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. It also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. It is important to note that section 2.02(7) is a definition of knowledge, not a substitute for it; as such, it has been cited with approval by the Supreme Court. Turner v. United States, 396 U.S. 398, 416 & n.29, 90 S.Ct. 642, 652, 24 L.Ed.2d 610, 623 (1970); Leary v. United States, 395 U.S. 6, 46 n.93, 89 S.Ct. 1532, 1553, 23 L.Ed.2d 57, 87 (1969).
In light of the Model Penal Code's definition, the "conscious purpose" jury instruction is defective in three respects. First, it fails to mention the requirement that Jewell have been aware of a high probability that a controlled substance was in the car. It is not culpable to form "a conscious purpose to avoid learning the truth" unless one is aware of facts indicating a high probability of that truth. To illustrate, a child given a gift-wrapped package by his mother while on vacation in Mexico may form a conscious purpose to take it home without learning what is inside; yet his state of mind is totally innocent unless he is aware of a high probability that the package contains a controlled substance. Thus, a conscious purpose instruction is only proper when coupled with a requirement that one be aware of a high probability of the truth.
The second defect in the instruction as given is that it did not alert the jury that Jewell could not be convicted if he "actually believed" there was no controlled substance in the car. The failure to emphasize, as does the Model Penal Code, that subjective belief is the determinative factor, may allow a jury to convict on an objective theory of knowledge — that a reasonable man should have inspected the car and would have discovered what was hidden inside. One recent decision reversed a jury instruction for this very deficiency — failure to balance a conscious purpose instruction with a warning that the defendant could not be convicted if he actually believed to the contrary. United States v. Bright, 517 F.2d 584, 586-89 (2d Cir. 1975).
Third, the jury instruction clearly states that Jewell could have been convicted even if found ignorant or "not actually aware" that the car contained a controlled substance. This is unacceptable because true ignorance, no matter how unreasonable, cannot provide a basis for criminal liability when the statute requires knowledge.[12] A proper jury instruction based on the Model Penal Code would be presented as a way of defining knowledge, and not as an alternative to it.
The majority opinion cites three cases, all in the Second Circuit, which approve conscious purpose instructions in prosecutions under the same statute as Jewell was charged. In two of these cases the jury instruction included one of the elements of the Model Penal Code provision which was omitted in the instant case.[13] Of course, jury instructions should be considered in context and not subjected to unduly technical analysis. Yet we remain convinced that the instructions given in this case were erroneous; they could have permitted the jury to convict Jewell without being certain beyond a reasonable doubt that he possessed the mens rea required for knowing possession or importation under 21 U.S.C. §§ 841(a) & 960(a).
We do not agree with the majority that we can only reverse if the conscious purpose instruction constituted "plain error." Before the instruction was given, the defense [708] counsel objected "strenuously" on the basis that the jury could convict Jewell for failure to make an adequate attempt to check out the car. When the trial judge rejected this argument, the defense counsel further requested that he "add an addendum" to the charge so the jury would understand it properly. The trial court rejected this suggestion as well, and cut off further argument, saying "The record may show your objection."
Although the defense counsel did not fully anticipate our analysis of the conscious purpose instruction, he came close. (1) He gave a reason for his objection — that the instruction would allow conviction without proof of the scienter element. (2) He further suggested adding "an addendum" to warn the jury against misinterpreting the instruction. We believe these objections were sufficient to require reversal on appeal unless the deficiencies in the instruction were harmless error.[14]
We do not question the sufficiency of the evidence in this case to support conviction by a properly-instructed jury.[15] As with all states of mind, knowledge must normally be proven by circumstantial evidence. There is evidence which could support a conclusion that Jewell was aware of a high probability that the car contained a controlled substance and that he had no belief to the contrary. However, we cannot say that the evidence was so overwhelming that the erroneous jury instruction was harmless. Accordingly, we would reverse the judgment on this appeal.
[1] Appellant testified that a week before the incident in question he sold his car for $100 to obtain funds "to have a good time." He then rented a car for about $100, and he and a friend drove the rented car to Mexico. Appellant and his friend were unable to adequately explain their whereabouts during the period of about 11 hours between the time they left Los Angeles and the time they admitted arriving in Mexico.
Their testimony regarding acquisition of the load car follows a pattern common in these cases: they were approached in a Tijuana bar by a stranger who identified himself only by his first name — "Ray." He asked them if they wanted to buy marihuana, and offered to pay them $100 for driving a car north across the border. Appellant accepted the offer and drove the load car back, alone. Appellant's friend drove appellant's rented car back to Los Angeles.
Appellant testified that the stranger instructed him to leave the load car at the address on the car registration slip with the keys in the ashtray. The person living at that address testified that he had sold the car a year earlier and had not seen it since. When the Customs agent asked appellant about the secret compartment in the car, appellant did not deny knowledge of its existence, but stated that it was in the car when he got it.
There were many discrepancies and inconsistencies in the evidence reflecting upon appellant's credibility. Taking the record as a whole, the jury could have concluded that the evidence established an abortive scheme, concocted and carried out by appellant from the beginning, to acquire a load of marihuana in Mexico and return it to Los Angeles for distribution for profit.
[2] Both appellant and his companion testified that the stranger identified as "Ray" offered to sell them marihuana and, when they declined, asked if they wanted to drive a car back to Los Angeles for $100. Appellant's companion "wanted no part of driving the vehicle." He testified, "It didn't sound right to me." Appellant accepted the offer. The Drug Enforcement Administration agent testified that appellant stated "he thought there was probably something wrong and something illegal in the vehicle, but that he checked it over. He looked in the glove box and under the front seat and in the trunk, prior to driving it. He didn't find anything, and, therefore, he assumed that the people at the border wouldn't find anything either" (emphasis added). Appellant was asked at trial whether he had seen the special compartment when he opened the trunk. He responded, "Well, you know, I saw a void there, but I didn't know what it was." He testified that he did not investigate further. The Customs agent testified that when he opened the trunk and saw the partition he asked appellant "when he had that put in." Appellant told the agent "that it was in the car when he got it."
The jury would have been justified in accepting all of the testimony as true and concluding that although appellant was aware of facts making it virtually certain that the secret compartment concealed marihuana, he deliberately refrained from acquiring positive knowledge of the fact.
[3] The court said:
An act is done knowingly if it's done voluntarily and intentionally and not because of mistake or accident or other innocent reason.
The purpose of adding the word "knowingly" was to insure that no one would be convicted for acts done because of an omission or failure to act due to mistake or accident or other innocent reason.
[4] R. Perkins, Criminal Law 776 (2d ed. 1969).
[5] Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 298 (1954). Later in his discussion Mr. Edwards writes, "[N]o real doubt has been cast on the proposition that connivance is as culpable as actual knowledge. We have already seen the diverse fashions in which this state of mind has been defined, ranging from the original expression `wilful shutting of the eyes' and its closest counterpart `wilful blindness,' to the less forceful but equally satisfactory formulae `purposely abstaining from ascertaining' and `wilfully abstaining from knowing.'" Id. at 302.
[6] G. Williams, Criminal Law: The General Part, § 57 at 157 (2d ed. 1961).
[7] Id. at 159. Mr. Williams' concluding paragraph reads in its entirety:
The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
[8] Model Penal Code 27 (Prop. Official Draft 1962).
[9] Model Penal Code 129-30 (Tent. Draft No. 4, 1955). Comment 9 reads in full as follows:
Paragraph (7) deals with the situation British commentators have denominated "wilful blindness" or "connivance," the case of the actor who is aware of the probable existence of a material fact but does not satisfy himself that it does not in fact exist. See Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294 (1954); [G. Williams, Criminal Law: The General Part § 41 (1st ed. 1953)]. Whether such cases should be viewed as instances of acting recklessly or knowingly presents a subtle but important question.
The draft proposes that the case be viewed as one of acting knowingly when what is involved is a matter of existing fact, but not when what is involved is the result of the defendant's conduct, necessarily a matter of the future at the time of acting. The position reflects what we believe to be the normal policy of criminal enactments which rest liability on acting "knowingly," as is so commonly done. The inference of "knowledge" of an existing fact is usually drawn from proof of notice of substantial probability of its existence, unless the defendant establishes an honest, contrary belief. The draft solidifies this usual result and clarifies the terms in which the issue is submitted to the jury.
[10] See also United States v. Freed, 401 U.S. 601, 613 n.5, 91 S.Ct. 1112, 1120, 28 L.Ed.2d 356, 364 (1971) (Brennan, J., concurring).
[11] Jacobs involved convictions under 18 U.S.C. §§ 2314 and 2315 prohibiting dealings in securities "knowing the same to have been stolen." The charge read:
The third element of the offense is that the defendant knew that the Treasury Bills had been stolen. Knowledge is not something that you can see with the eye or touch with the finger. It is seldom possible to prove it by direct evidence. The government relies largely on circumstantial evidence in this case to establish knowledge.
In deciding whether a particular defendant under consideration by you knew the bills were stolen you should consider all the circumstances such as how the defendant handled the transaction, how he conducted himself. Do his actions betray guilty knowledge that he was dealing with stolen securities or are his actions those of a duped, innocent man?
Guilty knowledge cannot be established by demonstrating merely negligence or even foolishness on the part of a defendant. However, it is not necessary that the government prove to a certainty that a defendant knew the bills were stolen. Such knowledge is established if the defendant was aware of a high probability that the bills were stolen, unless the defendant actually believed that the bills were not stolen.
Knowledge that the goods have been stolen may be inferred from circumstances that would convince a man of ordinary intelligence that this is the fact. The element of knowledge may be satisfied by proof that a defendant deliberately closed his eyes to what otherwise would have been obvious to him.
Thus if you find that a defendant acted with reckless disregard of whether the bills were stolen and with a conscious purpose to avoid learning the truth the requirement of knowledge would be satisfied, unless the defendant actually believed they were not stolen.
Furthermore, I instruct you that proof of a sale and purchase at a substantially discounted price permits an inference that the parties to the transaction knew of the illicit character of the items sold.
You should scrutinize the entire conduct of the defendant at or near the time the offenses are alleged to have been committed.
475 F.2d at 287 n.37 (emphasis added).
[12] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975) (21 U.S.C. § 841(a)(1); upheld the following jury instruction: "If you find from all the evidence beyond a reasonable doubt either that the defendant knew that she was helping in a cocaine transaction, or that she had a conscious purpose to avoid finding out the identity of the substance so as to close her eyes to the facts, you could find sufficient evidence to find her guilty beyond a reasonable doubt"); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974) (21 U.S.C. §§ 952(a) & 841(a)(1)); United States v. Joly, 493 F.2d 672 (2d Cir. 1974) (21 U.S.C. §§ 841(a)(1), 952(a), 955, 960(a)(1) & (2); United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973) (18 U.S.C. § 922(a)(6): firearms); United States v. Jacobs, 475 F.2d 270, 287-88 (2d Cir. 1973) (conspiracy to violate 18 U.S.C. §§ 2314 & 2315: stolen securities); United States v. Grizaffi, 471 F.2d 69, 75 (7th Cir. 1972) (18 U.S.C. §§ 371, 1008, 1341; LaBuy Instruction No. 4.05, 33 F.R.D. 553 (1965), approved); United States v. Sarantos, 455 F.2d 877, 880-81 (2d Cir. 1972) (18 U.S.C. §§ 371, 1001, 1546); United States v. Squires, 440 F.2d 859, 864 & n.12 (2d Cir. 1971) (18 U.S.C. § 922(a)(6); Model Penal Code followed — jury instruction rejected because it should have included "deliberate ignorance"); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (conviction under former 21 U.S.C. §§ 173 & 174; instructions properly refused "since they failed to include the element of `a conscious purpose to avoid learning the source of the heroin'"); United States v. Joyce, 499 F.2d 9, 23 (7th Cir. 1974) (18 U.S.C. § 1341; LaBuy Instruction No. 4.05 approved); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (reversal of conviction under former 21 U.S.C. § 174; jury should be given "deliberate ignorance" instruction).
United States v. Bright, 517 F.2d 584, 586-88 (2d Cir. 1975), reversed a conviction because the trial court refused to add to a "deliberate ignorance" instruction the qualification "unless he actually believes it did not exist," found in Model Penal Code § 2.02(7). This question was not raised below, or in this court, perhaps because the evidence to support it was lacking. See note 2 supra. See also United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).
[13] United States v. De Garces, 518 F.2d 1156, 1160 (2d Cir. 1975) (21 U.S.C. §§ 952(a), 960(a)(1)); United States v. Frank, 494 F.2d 145, 152-53 (2d Cir. 1974) (transporting stolen money, 18 U.S.C. §§ 371, 1341-1343, 2314); United States v. Brawer, 482 F.2d 117, 126-27 (2d Cir. 1973) (18 U.S.C. §§ 2, 371 & 2314, transporting stolen securities); United States v. Egenberg, 441 F.2d 441, 444 (2d Cir. 1971) (false statements, 18 U.S.C. § 1001, 26 U.S.C. § 7206(2)); United States v. Abrams, 427 F.2d 86, 91 (2d Cir. 1970) (false statements, 18 U.S.C. §§ 2, 1001); United States v. Sheiner, 410 F.2d 337, 340-41 (2d Cir. 1969) (18 U.S.C. § 331 and others); Verdugo v. United States, 402 F.2d 599, 604 (9th Cir. 1968) (former 21 U.S.C. § 174); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (specific intent in 21 U.S.C. § 841(a)(1)); United States v. Yasser, 114 F.2d 558, 560 (3d Cir. 1940) (predecessor of 18 U.S.C. § 152; dicta); cf. United States v. Cooperative Grain & Supply Co., 476 F.2d 47, 59 (8th Cir. 1973) (dicta that guilty avoidance of knowledge can supplant positive knowledge under 18 U.S.C. § 287); Rachmil v. United States, 43 F.2d 878, 881 (9th Cir. 1930) (per curiam) (dicta regarding predecessor to 18 U.S.C. § 152).
[14] The cases cited in appellant's briefs hold only that knowledge that the substance possessed is a narcotic or controlled substance was an element of the particular offenses involved. None holds that such knowledge cannot be established by proof that the possessor was aware of facts making it highly probable that the substance was a narcotic or controlled substance and lacked positive knowledge only because he consciously avoided it.
[15] United States v. Dozier, 522 F.2d 224, 226 (2d Cir. 1975); United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974); United States v. Joly, 493 F.2d 672 (2d Cir. 1974); United States v. Llanes, 374 F.2d 712, 716 (2d Cir. 1967) (under former 21 U.S.C. §§ 173 & 174, instruction properly refused because it did not include "deliberate ignorance"); Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962) (on remand under former 21 U.S.C. § 174, jury should be instructed on "deliberate ignorance"); see United States v. Moser, 509 F.2d 1089, 1092-93 (7th Cir. 1975) (under 21 U.S.C. § 841(a)(1) sufficiency of evidence of specific intent to possess and distribute LSD).
[16] See, e. g., Drug Abuse Control Amendments — 1970, Hearings before the Subcomm. on Public Health & Welfare of the House Comm. on Interstate & Foreign Commerce, 91st Cong., 2d Sess., at 697, 705-06 (1970); 116 Cong.Rec. 33661 (1970) (col. 2).
[17] See, e. g., H.R.No.91-1444, Sept. 10, 1970, 91st Cong., 2d Sess., 3 U.S.Code Cong. & Admin.News 4566, 4567 (1970).
[18] The argument that a "deliberate ignorance" instruction relieves the jury of finding knowledge was rejected in United States v. Olivares-Vega, 495 F.2d 827, 830 (2d Cir. 1974).
[19] As Judge Feinberg said in United States v. Sarantos, 455 F.2d 877, 881 (2d Cir. 1972), the purpose of the "deliberate ignorance" instruction is "to prevent an individual . . . from circumventing criminal sanctions merely by deliberately closing his eyes to the obvious risk that he is engaging in unlawful conduct."
[20] G. Williams, supra note 6, at 159.
[21] We do not suggest that the instruction given in this case was a model in all respects. The jury should have been instructed more directly (1) that the required knowledge is established if the accused is aware of a high probability of the existence of the fact in question, (2) unless he actually believes it does not exist.
The deficiency in the instruction does not require reversal, however. Appellant did not object to the instruction on this ground either below or in this court. Since both of the elements referred to are implied in the instruction, the deficiency in the instructions is not so substantial as to justify reversal for plain error. See United States v. Dozier, 522 F.2d 224, 228 (2d Cir. 1975) (on petition for rehearing).
Appellant did not argue below or in this court that the instruction did not require an awareness of a high probability that the controlled substance was present. An objection on this ground would have little merit. The instruction given (that "[appellant's] ignorance in that regard was solely and entirely the result of his having made a conscious purpose to disregard the nature of that which was in the vehicle") suggests that the accused must be aware of facts making the presence of the contraband all but certain. Only if the accused were aware of such facts could his ignorance of the presence of the marihuana be "solely and entirely" the result of his conscious purpose to avoid the truth. Under this instruction, neither reckless disregard nor suspicion followed by failure to make full inquiry would be enough.
Nor did appellant suggest in the court below or in this court that the instruction given was deficient because it failed to state specifically (as we think would have been preferable) that appellant could not be convicted if he actually believed there was no controlled substance in the car. The reason appellant does not raise this objection may be, again, that the instruction given includes the limitation by reasonable inference. If appellant were ignorant of the presence of contraband solely and entirely because he "made a conscious purpose to disregard the nature of that which was in the vehicle," as the instruction given requires, it would hardly be a realistic possibility that he might at the same time have entertained a good faith belief that there was no contraband present. Nor did the instruction permit the jury to convict on an "objective" rather than "subjective" theory of the knowledge requirement; that is, on the theory that appellant was chargeable with knowledge because a reasonable man would have inspected the car more thoroughly and discovered the contraband inside. See United States v. Bright, 517 F.2d 584, 587-88 (2d Cir. 1975). The negligence theory was advanced by the government but was rejected by the trial court. The instruction given by the trial court required the jury to find that appellant had a deliberate purpose to avoid the truth. Moreover, the jury was expressly informed that an act was not done "knowingly" within the meaning of the statute if it was done by "mistake or accident or other innocent purpose."
In the circumstances of this case, it was not plain error requiring reversal for the instruction to fail to define knowledge explicitly in terms of an awareness of a high probability of the presence of the contraband and the absence of a belief that the contraband was not present.
[1] "Want of knowledge . . . may disprove the existence of a specific intent. Thus one cannot intend to steal property which he believes to be his own however careless he may have been in coming to that belief." R. Perkins, Criminal Law 778 (2d ed. 1969) (footnote omitted).
[2] The challenged instruction was given for count two only, but it would seem to be applicable as well to the state of mind required for count one. A jury would be easily confused by the apparent difference in standards, at least absent explicit instructions on the point. Therefore we think it would be inappropriate to invoke the concurrent sentence rule to affirm Jewell's conviction on the basis of count one.
[3] See, e. g., Bosley v. Davies, [1875] L.R. 1 Q.B. 84.
[4] See 2 R. Anderson, Wharton's Criminal Law and Procedure § 568 (1957 & Supp.1975). This situation — use of circumstantial evidence to prove a contemporaneous state of mind — should be distinguished from the use of one fact to support the inference of a previous event. See McAbee v. United States, 434 F.2d 361, 362-63 (9th Cir. 1970) (permissive inference that possessor of property recently stolen in another state was the thief and had transported it in interstate commerce).
[5] See United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967).
[6] See G. Williams, Criminal Law: The General Part § 57, at 157 (2d ed. 1961) ("To the requirement of actual knowledge there is one strictly limited exception."); Edwards, The Criminal Degrees of Knowledge, 17 Modern L.Rev. 294, 302 (1954) (wilful blindness is "as culpable as actual knowledge).
The use of the term "actual knowledge" in this manner is misleading in suggesting the possibility of achieving a state of total certainty, and that only such knowledge is "actual." In fact, we commonly act on less than complete information and in this world may never know one-hundred-percent certainty.
`Absolute knowledge can be had of very few things,' said the Massachusetts court, and the philosopher might add `if any.' For most practical purposes `knowledge' `is not confined to what we have personally observed or to what we have evolved by our own cognitive faculties.'
R. Perkins, supra note 1, at 775, quoting Story v. Buffam, 90 Mass. 35, 38 (8 Allen) (1864), and State v. Ransberger, 106 Mo. 135, 140, 17 S.W. 290, 292 (1891).
[7] This case does not present the question of how far Congress could reduce the requirement of a mens rea for possession of drugs. The statutes use the terms "knowingly or intentionally." It is true that a strict interpretation of the scienter requirement may produce fewer convictions in combating "the growing menace of drug abuse." But the Supreme Court has cautioned that "the purpose of every statute would be `obstructed' by requiring a finding of intent, if we assume that it had a purpose to convict without it." Morissette v. United States, 342 U.S. 246, 259, 72 S.Ct. 240, 247, 96 L.Ed. 288, 298 (1952). Here it is clear that Congress intended to require knowledge as an element of these offenses.
The spirit of the doctrine which denies to the federal judiciary power to create crimes forthrightly admonishes that we should not enlarge the reach of enacted crimes by constituting them from anything less than the incriminating components contemplated by the words used in the statute.
Id. at 263, 72 S.Ct. at 249, 96 L.Ed. at 300.
[8] Compare G. Williams, supra note 6, at 158-59, with Edwards, supra note 6, at 303-06. A "reckless disregard" instruction was approved in one case relied upon by the majority. See United States v. Thomas, 484 F.2d 909, 912-13 (6th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1428, 39 L.Ed.2d 480 (1974).
[9] E. g., Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 815, 43 L.Ed. 1150, 1153 (1899). These cases generally involve regulatory statutes, the violation of which is malum prohibitum. Riss & Co. v. United States, 262 F.2d 245, 248-51 (8th Cir. 1958). Yet one case relied upon by the majority regarded Spurr as "comparable" to the former narcotics importation statute. See Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962).
[10] See R. Perkins, supra note 1, at 778 & n.77; R. Anderson, supra note 4, at 281-82 & nn.6-8.
[11] Professor Perkins observes that section 2.02(7) of the Model Penal Code "covers must less than `knowledge' as it has been interpreted as a mens-rea requirement in the common law." With regard to the receipt of stolen property, he criticizes the Code for not imposing liability in "the case of the man who has no belief one way or the other, but has been put on notice that it may be stolen and `shuts his eyes' in order not to find out." R. Perkins, supra note 1, at 799.
[12] See note 7 supra.
[13] See United States v. Olivares-Vega, 495 F.2d 827, 830 nn.10 & 11 (2d Cir.), cert. denied, 419 U.S. 1020, 95 S.Ct. 494, 42 L.Ed.2d 293 (1974) (instruction required acquittal if defendant believed he did not possess controlled substance); United States v. Joly, 493 F.2d 672, 674 (2d Cir. 1974) (conscious purpose to avoid enlightenment when he "had every reason to believe" he possessed a controlled substance). The third case cited by the majority is discussed in note 14 infra.
[14] Thus the instant case is distinguishable from United States v. Dozier, 522 F.2d 224 (2d Cir. 1975). There counsel made no objection to the jury charge, and the Second Circuit held the conscious purpose instruction was not so unbalanced as to constitute plain error. Id. at 228.
[15] Thus we have no disagreement with the sufficiency-of-evidence cases cited in note 13 of the majority opinion. However, they are not in point for the instant appeal.
7.2.8.2.3.4 Elonis v. United States 7.2.8.2.3.4 Elonis v. United States
ANTHONY DOUGLAS ELONIS, PETITIONER,
v.
UNITED STATES.
No. 13-983.
Supreme Court of the United States.
Argued December 1, 2014.
Decided June 1, 2015.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed a dissenting opinion.
CHIEF JUSTICE ROBERTS, delivered the opinion of the Court.
Federal law makes it a crime to transmit in interstate commerce "any communication containing any threat . . . to injure the person of another." 18 U. S. C. §875(c). Petitioner was convicted of violating this provision under instructions that required the jury to find that he communicated what a reasonable person would regard as a threat. The question is whether the statute also requires that the defendant be aware of the threatening nature of the communication, and—if not—whether the First Amendment requires such a showing.
I
A
Anthony Douglas Elonis was an active user of the social networking Web site Facebook. Users of that Web site may post items on their Facebook page that are accessible to other users, including Facebook "friends" who are notified when new content is posted. In May 2010, Elonis's wife of nearly seven years left him, taking with her their two young children. Elonis began "listening to more violent music" and posting self-styled "rap" lyrics inspired by the music. App. 204, 226. Eventually, Elonis changed the user name on his Facebook page from his actual name to a rap-style nom de plume, "Tone Dougie," to distinguish himself from his "on-line persona." Id., at 249, 265. The lyrics Elonis posted as "Tone Dougie" included graphically violent language and imagery. This material was often interspersed with disclaimers that the lyrics were "fictitious," with no intentional "resemblance to real persons." Id., at 331, 329. Elonis posted an explanation to another Facebook user that "I'm doing this for me. My writing is therapeutic." Id., at 329; see also id., at 205 (testifying that it "helps me to deal with the pain").
Elonis's co-workers and friends viewed the posts in a different light. Around Halloween of 2010, Elonis posted a photograph of himself and a co-worker at a "Halloween Haunt" event at the amusement park where they worked. In the photograph, Elonis was holding a toy knife against his co-worker's neck, and in the caption Elonis wrote, "I wish." Id., at 340. Elonis was not Facebook friends with the co-worker and did not "tag" her, a Facebook feature that would have alerted her to the posting. Id., at 175; Brief for Petitioner 6, 9. But the chief of park security was a Facebook "friend" of Elonis, saw the photograph, and fired him. App. 114-116; Brief for Petitioner 9.
In response, Elonis posted a new entry on his Facebook page:
"Moles! Didn't I tell y'all I had several? Y'all sayin' I had access to keys for all the f***in' gates. That I have sinister plans for all my friends and must have taken home a couple. Y'all think it's too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I'm still the main attraction. Whoever thought the Halloween Haunt could be so f***in' scary?" App. 332.
This post became the basis for Count One of Elonis's subsequent indictment, threatening park patrons and employees.
Elonis's posts frequently included crude, degrading, and violent material about his soon-to-be ex-wife. Shortly after he was fired, Elonis posted an adaptation of a satirical sketch that he and his wife had watched together. Id., at 164-165, 207. In the actual sketch, called "It's Illegal to Say . . .," a comedian explains that it is illegal for a person to say he wishes to kill the President, but not illegal to explain that it is illegal for him to say that. When Elonis posted the script of the sketch, however, he substituted his wife for the President. The posting was part of the basis for Count Two of the indictment, threatening his wife:
"Hi, I'm Tone Elonis.
Did you know that it's illegal for me to say I want to kill my wife? . . .
It's one of the only sentences that I'm not allowed to say. . . .
Now it was okay for me to say it right then because I was just telling you that it's illegal for me to say I want to kill my wife. . . .
Um, but what's interesting is that it's very illegal to say I really, really think someone out there should kill my wife. . . .
But not illegal to say with a mortar launcher.
Because that's its own sentence. . . .
I also found out that it's incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you'd have a clear line of sight through the sun room. . . .
Yet even more illegal to show an illustrated diagram. [diagram of the house]. . . ." Id., at 333.
The details about the home were accurate. Id., at 154. At the bottom of the post, Elonis included a link to the video of the original skit, and wrote, "Art is about pushing limits. I'm willing to go to jail for my Constitutional rights. Are you?" Id., at 333.
After viewing some of Elonis's posts, his wife felt "extremely afraid for [her] life." Id., at 156. A state court granted her a three-year protection-from-abuse order against Elonis (essentially, a restraining order). Id., at 148-150. Elonis referred to the order in another post on his "Tone Dougie" page, also included in Count Two of the indictment:
"Fold up your [protection-from-abuse order] and put it in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order that was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence
And prison time'll add zeros to my settlement . . .
And if worse comes to worse
I've got enough explosives to take care of the State Police and the Sheriff's Department." Id., at 334.
At the bottom of this post was a link to the Wikipedia article on "Freedom of speech." Ibid. Elonis's reference to the police was the basis for Count Three of his indictment, threatening law enforcement officers.
That same month, interspersed with posts about a movie Elonis liked and observations on a comedian's social commentary, id., at 356-358, Elonis posted an entry that gave rise to Count Four of his indictment:
"That's it, I've had about enough
I'm checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined And hell hath no fury like a crazy man in a Kindergarten class
The only question is . . . which one?" Id., at 335.
Meanwhile, park security had informed both local police and the Federal Bureau of Investigation about Elonis's posts, and FBI Agent Denise Stevens had created a Facebook account to monitor his online activity. Id., at 49-51, 125. After the post about a school shooting, Agent Stevens and her partner visited Elonis at his house. Id., at 65-66. Following their visit, during which Elonis was polite but uncooperative, Elonis posted another entry on his Facebook page, called "Little Agent Lady," which led to Count Five:
"You know your s***'s ridiculous when you have the FBI knockin' at yo' door
Little Agent lady stood so close
Took all the strength I had not to turn the b**** ghost
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin' from her jugular in the arms of her partner
[laughter]
So the next time you knock, you best be serving a warrant
And bring yo' SWAT and an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb
Why do you think it took me so long to get dressed with no shoes on?
I was jus' waitin' for y'all to handcuff me and pat me down
Touch the detonator in my pocket and we're all goin' [BOOM!]
Are all the pieces comin' together?
S***, I'm just a crazy sociopath that gets off playin' you stupid f***s like a fiddle
And if y'all didn't hear, I'm gonna be famous
Cause I'm just an aspiring rapper who likes the attention
who happens to be under investigation for terrorism cause y'all think I'm ready to turn the Valley into Fallujah
But I ain't gonna tell you which bridge is gonna fall into which river or road
And if you really believe this s***
I'll have some bridge rubble to sell you tomorrow
[BOOM!][BOOM!][BOOM!]" Id., at 336.
B
A grand jury indicted Elonis for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent, all in violation of 18 U. S. C. §875(c). App. 14-17. In the District Court, Elonis moved to dismiss the indictment for failing to allege that he had intended to threaten anyone. The District Court denied the motion, holding that Third Circuit precedent required only that Elonis "intentionally made the communication, not that he intended to make a threat." App. to Pet. for Cert. 51a. At trial, Elonis testified that his posts emulated the rap lyrics of the well-known performer Eminem, some of which involve fantasies about killing his ex-wife. App. 225. In Elonis's view, he had posted "nothing . . . that hasn't been said already." Id., at 205. The Government presented as witnesses Elonis's wife and co-workers, all of whom said they felt afraid and viewed Elonis's posts as serious threats. See, e.g., id., at 153, 158.
Elonis requested a jury instruction that "the government must prove that he intended to communicate a true threat." Id., at 21. See also id., at 267-269, 303. The District Court denied that request. The jury instructions instead informed the jury that
"A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Id., at 301.
The Government's closing argument emphasized that it was irrelevant whether Elonis intended the postings to be threats—"it doesn't matter what he thinks." Id., at 286. A jury convicted Elonis on four of the five counts against him, acquitting only on the charge of threatening park patrons and employees. Id., at 309. Elonis was sentenced to three years, eight months' imprisonment and three years' supervised release.
Elonis renewed his challenge to the jury instructions in the Court of Appeals, contending that the jury should have been required to find that he intended his posts to be threats. The Court of Appeals disagreed, holding that the intent required by Section 875(c) is only the intent to communicate words that the defendant understands, and that a reasonable person would view as a threat. 730 F. 3d 321, 332 (CA3 2013).
We granted certiorari. 573 U. S. ___ (2014).
II
A
An individual who "transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another" is guilty of a felony and faces up to five years' imprisonment. 18 U. S. C. §875(c). This statute requires that a communication be transmitted and that the communication contain a threat. It does not specify that the defendant must have any mental state with respect to these elements. In particular, it does not indicate whether the defendant must intend that his communication contain a threat.
Elonis argues that the word "threat" itself in Section 875(c) imposes such a requirement. According to Elonis, every definition of "threat" or "threaten" conveys the notion of an intent to inflict harm. Brief for Petitioner 23. See United States v. Jeffries, 692 F. 3d 473, 483 (CA6 2012) (Sutton, J., dubitante). E.g., 11 Oxford English Dictionary 353 (1933) ("to declare (usually conditionally) one's intention of inflicting injury upon"); Webster's New International Dictionary 2633 (2d ed. 1954) ("Law, specif., an expression of an intention to inflict loss or harm on another by illegal means"); Black's Law Dictionary 1519 (8th ed. 2004) ("A communicated intent to inflict harm or loss on another").
These definitions, however, speak to what the statement conveys—not to the mental state of the author. For example, an anonymous letter that says "I'm going to kill you" is "an expression of an intention to inflict loss or harm" regardless of the author's intent. A victim who receives that letter in the mail has received a threat, even if the author believes (wrongly) that his message will be taken as a joke.
For its part, the Government argues that Section 875(c) should be read in light of its neighboring provisions, Sections 875(b) and 875(d). Those provisions also prohibit certain types of threats, but expressly include a mental state requirement of an "intent to extort." See 18 U. S. C. §875(b) (proscribing threats to injure or kidnap made "with intent to extort"); §875(d) (proscribing threats to property or reputation made "with intent to extort"). According to the Government, the express "intent to extort" requirements in Sections 875(b) and (d) should preclude courts from implying an unexpressed "intent to threaten" requirement in Section 875(c). See Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.").
The Government takes this expressio unius est exclusio alterius canon too far. The fact that Congress excluded the requirement of an "intent to extort" from Section 875(c) is strong evidence that Congress did not mean to confine Section 875(c) to crimes of extortion. But that does not suggest that Congress, at the same time, also meant to exclude a requirement that a defendant act with a certain mental state in communicating a threat. The most we can conclude from the language of Section 875(c) and its neighboring provisions is that Congress meant to proscribe a broad class of threats in Section 875(c), but did not identify what mental state, if any, a defendant must have to be convicted.
In sum, neither Elonis nor the Government has identified any indication of a particular mental state requirement in the text of Section 875(c).
B
The fact that the statute does not specify any required mental state, however, does not mean that none exists. We have repeatedly held that "mere omission from a criminal enactment of any mention of criminal intent" should not be read "as dispensing with it." Morissette v. United States, 342 U. S. 246, 250 (1952). This rule of construction reflects the basic principle that "wrongdoing must be conscious to be criminal." Id., at 252. As Justice Jackson explained, this principle is "as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." Id., at 250. The "central thought" is that a defendant must be "blameworthy in mind" before he can be found guilty, a concept courts have expressed over time through various terms such as mens rea, scienter, malice aforethought, guilty knowledge, and the like. Id., at 252; 1 W. LaFave, Substantive Criminal Law §5.1, pp. 332-333 (2d ed. 2003). Although there are exceptions, the "general rule" is that a guilty mind is "a necessary element in the indictment and proof of every crime." United States v. Balint, 258 U. S. 250, 251 (1922). We therefore generally "interpret[ ] criminal statutes to include broadly applicable scienter requirements, even where the statute by its terms does not contain them." United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994).
This is not to say that a defendant must know that his conduct is illegal before he may be found guilty. The familiar maxim "ignorance of the law is no excuse" typically holds true. Instead, our cases have explained that a defendant generally must "know the facts that make his conduct fit the definition of the offense," Staples v. United States, 511 U. S. 600, 608, n. 3 (1994), even if he does not know that those facts give rise to a crime.
Morissette, for example, involved an individual who had taken spent shell casings from a Government bombing range, believing them to have been abandoned. During his trial for "knowingly convert[ing]" property of the United States, the judge instructed the jury that the only question was whether the defendant had knowingly taken the property without authorization. 342 U. S., at 248-249. This Court reversed the defendant's conviction, ruling that he had to know not only that he was taking the casings, but also that someone else still had property rights in them. He could not be found liable "if he truly believed [the casings] to be abandoned." Id., at 271; see id., at 276.
By the same token, in Liparota v. United States, we considered a statute making it a crime to knowingly possess or use food stamps in an unauthorized manner. 471 U. S. 419, 420 (1985). The Government's argument, similar to its position in this case, was that a defendant's conviction could be upheld if he knowingly possessed or used the food stamps, and in fact his possession or use was unauthorized. Id., at 423. But this Court rejected that interpretation of the statute, because it would have criminalized "a broad range of apparently innocent conduct" and swept in individuals who had no knowledge of the facts that made their conduct blameworthy. Id., at 426. For example, the statute made it illegal to use food stamps at a store that charged higher prices to food stamp customers. Without a mental state requirement in the statute, an individual who unwittingly paid higher prices would be guilty under the Government's interpretation. Ibid. The Court noted that Congress could have intended to cover such a "broad range of conduct," but declined "to adopt such a sweeping interpretation" in the absence of a clear indication that Congress intended that result. Id., at 427. The Court instead construed the statute to require knowledge of the facts that made the use of the food stamps unauthorized. Id., at 425.
To take another example, in Posters `N' Things, Ltd. v. United States, this Court interpreted a federal statute prohibiting the sale of drug paraphernalia. 511 U. S. 513 (1994). Whether the items in question qualified as drug paraphernalia was an objective question that did not depend on the defendant's state of mind. Id., at 517-522. But, we held, an individual could not be convicted of selling such paraphernalia unless he "knew that the items at issue [were] likely to be used with illegal drugs." Id., at 524. Such a showing was necessary to establish the defendant's culpable state of mind.
And again, in X-Citement Video, we considered a statute criminalizing the distribution of visual depictions of minors engaged in sexually explicit conduct. 513 U. S., at 68. We rejected a reading of the statute which would have required only that a defendant knowingly send the prohibited materials, regardless of whether he knew the age of the performers. Id., at 68-69. We held instead that a defendant must also know that those depicted were minors, because that was "the crucial element separating legal innocence from wrongful conduct." Id., at 73. See also Staples, 511 U. S., at 619 (defendant must know that his weapon had automatic firing capability to be convicted of possession of such a weapon).
When interpreting federal criminal statutes that are silent on the required mental state, we read into the statute "only that mens rea which is necessary to separate wrongful conduct from `otherwise innocent conduct.'" Carter v. United States, 530 U. S. 255, 269 (2000) (quoting X-Citement Video, 513 U. S., at 72). In some cases, a general requirement that a defendant act knowingly is itself an adequate safeguard. For example, in Carter, we considered whether a conviction under 18 U. S. C. §2113(a), for taking "by force and violence" items of value belonging to or in the care of a bank, requires that a defendant have the intent to steal. 530 U. S., at 261. We held that once the Government proves the defendant forcibly took the money, "the concerns underlying the presumption in favor of scienter are fully satisfied, for a forceful taking—even by a defendant who takes under a good-faith claim of right—falls outside the realm of . . . `otherwise innocent'" conduct. Id., at 269-270. In other instances, however, requiring only that the defendant act knowingly "would fail to protect the innocent actor." Id., at 269. A statute similar to Section 2113(a) that did not require a forcible taking or the intent to steal "would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his." Ibid. In such a case, the Court explained, the statute "would need to be read to require . . . that the defendant take the money with `intent to steal or purloin.'" Ibid.
C
Section 875(c), as noted, requires proof that a communication was transmitted and that it contained a threat. The "presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct." X-Citement Video, 513 U. S., at 72 (emphasis added). The parties agree that a defendant under Section 875(c) must know that he is transmitting a communication. But communicating something is not what makes the conduct "wrongful." Here "the crucial element separating legal innocence from wrongful conduct" is the threatening nature of the communication. Id., at 73. The mental state requirement must therefore apply to the fact that the communication contains a threat.
Elonis's conviction, however, was premised solely on how his posts would be understood by a reasonable person. Such a "reasonable person" standard is a familiar feature of civil liability in tort law, but is inconsistent with "the conventional requirement for criminal conduct— awareness of some wrongdoing." Staples, 511 U. S., at 606-607 (quoting United States v. Dotterweich, 320 U. S. 277, 281 (1943); emphasis added). Having liability turn on whether a "reasonable person" regards the communication as a threat—regardless of what the defendant thinks— "reduces culpability on the all-important element of the crime to negligence," Jeffries, 692 F. 3d, at 484 (Sutton, J., dubitante), and we "have long been reluctant to infer that a negligence standard was intended in criminal statutes," Rogers v. United States, 422 U. S. 35, 47 (1975) (Marshall, J., concurring) (citing Morissette, 342 U. S. 246). See 1 C. Torcia, Wharton's Criminal Law §27, pp. 171-172 (15th ed. 1993); Cochran v. United States, 157 U. S. 286, 294 (1895) (defendant could face "liability in a civil action for negligence, but he could only be held criminally for an evil intent actually existing in his mind"). Under these principles, "what [Elonis] thinks" does matter. App. 286.
The Government is at pains to characterize its position as something other than a negligence standard, emphasizing that its approach would require proof that a defendant "comprehended [the] contents and context" of the communication. Brief for United States 29. The Government gives two examples of individuals who, in its view, would lack this necessary mental state—a "foreigner, ignorant of the English language," who would not know the meaning of the words at issue, or an individual mailing a sealed envelope without knowing its contents. Ibid. But the fact that the Government would require a defendant to actually know the words of and circumstances surrounding a communication does not amount to a rejection of negligence. Criminal negligence standards often incorporate "the circumstances known" to a defendant. ALI, Model Penal Code §2.02(2)(d) (1985). See id., Comment 4, at 241; 1 LaFave, Substantive Criminal Law §5.4, at 372-373. Courts then ask, however, whether a reasonable person equipped with that knowledge, not the actual defendant, would have recognized the harmfulness of his conduct. That is precisely the Government's position here: Elonis can be convicted, the Government contends, if he himself knew the contents and context of his posts, and a reasonable person would have recognized that the posts would be read as genuine threats. That is a negligence standard.
In support of its position the Government relies most heavily on Hamling v. United States, 418 U. S. 87 (1974). In that case, the Court rejected the argument that individuals could be convicted of mailing obscene material only if they knew the "legal status of the materials" distributed. Id., at 121. Absolving a defendant of liability because he lacked the knowledge that the materials were legally obscene "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123. It was instead enough for liability that "a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials." Ibid.
This holding does not help the Government. In fact, the Court in Hamling approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a "vital element of scienter" so that "not innocent but calculated purveyance of filth . . . is exorcised." Id., at 122 (quoting Mishkin v. New York, 383 U. S. 502, 510 (1966); internal quotation marks omitted). In this case, "calculated purveyance" of a threat would require that Elonis know the threatening nature of his communication. Put simply, the mental state requirement the Court approved in Hamling turns on whether a defendant knew the character of what was sent, not simply its contents and context.
Contrary to the dissent's suggestion, see post, at 4-5, 9-10 (opinion of THOMAS, J.), nothing in Rosen v. United States, 161 U. S. 29 (1896), undermines this reading. The defendant's contention in Rosen was that his indictment for mailing obscene material was invalid because it did not allege that he was aware of the contents of the mailing. Id., at 31-33. That is not at issue here; there is no dispute that Elonis knew the words he communicated. The defendant also argued that he could not be convicted of mailing obscene material if he did not know that the material "could be properly or justly characterized as obscene." Id., at 41. The Court correctly rejected this "ignorance of the law" defense; no such contention is at issue here. See supra, at 10.
* * *
In light of the foregoing, Elonis's conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis's communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant's mental state. That understanding "took deep and early root in American soil" and Congress left it intact here: Under Section 875(c), "wrongdoing must be conscious to be criminal." Morissette, 342 U. S., at 252.
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Tr. of Oral Arg. 25, 56. In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient. See id., at 8-9. Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it. See Department of Treasury, IRS v. FLRA, 494 U. S. 922, 933 (1990) (this Court is "poorly situated" to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in "only the most cursory fashion at oral argument"). Given our disposition, it is not necessary to consider any First Amendment issues.
Both JUSTICE ALITO and JUSTICE THOMAS complain about our not deciding whether recklessness suffices for liability under Section 875(c). Post, at 1-2 (ALITO, J., concurring in part and dissenting in part); post, at 1-2 (opinion of THOMAS, J.). JUSTICE ALITO contends that each party "argued" this issue, post, at 2, but they did not address it at all until oral argument, and even then only briefly. See Tr. of Oral Arg. at 8, 38-39.
JUSTICE ALITO also suggests that we have not clarified confusion in the lower courts. That is wrong. Our holding makes clear that negligence is not sufficient to support a conviction under Section 875(c), contrary to the view of nine Courts of Appeals. Pet. for Cert. 17. There was and is no circuit conflict over the question JUSTICE ALITO and JUSTICE THOMAS would have us decide—whether recklessness suffices for liability under Section 875(c). No Court of Appeals has even addressed that question. We think that is more than sufficient "justification," post, at 2 (opinion of ALITO, J.), for us to decline to be the first appellate tribunal to do so.
Such prudence is nothing new. See United States v. Bailey, 444 U. S. 394, 407 (1980) (declining to decide whether mental state of recklessness or negligence could suffice for criminal liability under 18 U. S. C. §751, even though a "court may someday confront a case" presenting issue); Ginsberg v. New York, 390 U. S. 629, 644-645 (1968) (rejecting defendant's challenge to obscenity law "makes it unnecessary for us to define further today `what sort of mental element is requisite to a constitutionally permissible prosecution'"); Smith v. California, 361 U. S. 147, 154 (1959) (overturning conviction because lower court did not require any mental element under statute, but noting that "[w]e need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution"); cf. Gulf Oil Co. v. Bernard, 452 U. S. 89, 103-104 (1981) (finding a lower court's order impermissible under the First Amendment but not deciding "what standards are mandated by the First Amendment in this kind of case").
We may be "capable of deciding the recklessness issue," post, at 2 (opinion of ALITO, J.), but following our usual practice of awaiting a decision below and hearing from the parties would help ensure that we decide it correctly.
The judgment of the United States Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE ALITO, concurring in part and dissenting in part.
In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: "It is emphatically the province and duty of the judicial department to say what the law is." Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.
The Court's disposition of this case is certain to cause confusion and serious problems. Attorneys and judges need to know which mental state is required for conviction under 18 U. S. C. §875(c), an important criminal statute. This case squarely presents that issue, but the Court provides only a partial answer. The Court holds that the jury instructions in this case were defective because they required only negligence in conveying a threat. But the Court refuses to explain what type of intent was necessary. Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.
This will have regrettable consequences. While this Court has the luxury of choosing its docket, lower courts and juries are not so fortunate. They must actually decide cases, and this means applying a standard. If purpose or knowledge is needed and a district court instructs the jury that recklessness suffices, a defendant may be wrongly convicted. On the other hand, if recklessness is enough, and the jury is told that conviction requires proof of more, a guilty defendant may go free. We granted review in this case to resolve a disagreement among the Circuits. But the Court has compounded—not clarified—the confusion.
There is no justification for the Court's refusal to provide an answer. The Court says that "[n]either Elonis nor the Government has briefed or argued" the question whether recklessness is sufficient. Ante, at 16. But in fact both parties addressed that issue. Elonis argued that recklessness is not enough, and the Government argued that it more than suffices. If the Court thinks that we cannot decide the recklessness question without additional help from the parties, we can order further briefing and argument. In my view, however, we are capable of deciding the recklessness issue, and we should resolve that question now.
I
Section 875(c) provides in relevant part:
"Whoever transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both."
Thus, conviction under this provision requires proof that: (1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce.
At issue in this case is the mens rea required with respect to the second element—that the thing transmitted was a threat to injure the person of another. This Court has not defined the meaning of the term "threat" in §875(c), but in construing the same term in a related statute, the Court distinguished a "true `threat'" from facetious or hyperbolic remarks. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam). In my view, the term "threat" in §875(c) can fairly be defined as a statement that is reasonably interpreted as "an expression of an intention to inflict evil, injury, or damage on another." Webster's Third New International Dictionary 2382 (1976). Conviction under §875(c) demands proof that the defendant's transmission was in fact a threat, i.e., that it is reasonable to interpret the transmission as an expression of an intent to harm another. In addition, it must be shown that the defendant was at least reckless as to whether the transmission met that requirement.
Why is recklessness enough? My analysis of the mens rea issue follows the same track as the Court's, as far as it goes. I agree with the Court that we should presume that criminal statutes require some sort of mens rea for conviction. See ante, at 9-13. To be sure, this presumption marks a departure from the way in which we generally interpret statutes. We "ordinarily resist reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U. S. 23, 29 (1997). But this step is justified by a well-established pattern in our criminal laws. "For several centuries (at least since 1600) the different common law crimes have been so defined as to require, for guilt, that the defendant's acts or omissions be accompanied by one or more of the various types of fault (intention, knowledge, recklessness or—more rarely— negligence)." 1 W. LaFave, Substantive Criminal Law §5.5, p. 381 (2003). Based on these "background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994).
For a similar reason, I agree with the Court that we should presume that an offense like that created by §875(c) requires more than negligence with respect to a critical element like the one at issue here. See ante, at 13-14. As the Court states, "[w]hen interpreting federal criminal statutes that are silent on the required mental state, we read into the statute `only that mens rea which is necessary to separate wrongful conduct from "otherwise innocent conduct."'" Ante, at 12 (quoting Carter v. United States, 530 U. S. 255, 269 (2000)). Whether negligence is morally culpable is an interesting philosophical question, but the answer is at least sufficiently debatable to justify the presumption that a serious offense against the person that lacks any clear common-law counterpart should be presumed to require more.
Once we have passed negligence, however, no further presumptions are defensible. In the hierarchy of mental states that may be required as a condition for criminal liability, the mens rea just above negligence is recklessness. Negligence requires only that the defendant "should [have] be[en] aware of a substantial and unjustifiable risk," ALI, Model Penal Code §2.02(2)(d), p. 226 (1985), while recklessness exists "when a person disregards a risk of harm of which he is aware," Farmer v. Brennan, 511 U. S. 825, 837 (1994); Model Penal Code §2.02(2)(c). And when Congress does not specify a mens rea in a criminal statute, we have no justification for inferring that anything more than recklessness is needed. It is quite unusual for us to interpret a statute to contain a requirement that is nowhere set out in the text. Once we have reached recklessness, we have gone as far as we can without stepping over the line that separates interpretation from amendment.
There can be no real dispute that recklessness regarding a risk of serious harm is wrongful conduct. In a wide variety of contexts, we have described reckless conduct as morally culpable. See, e.g., Farmer, supra, at 835-836 (deliberate indifference to an inmate's harm); Garrison v. Louisiana, 379 U. S. 64, 75 (1964) (criminal libel); New York Times Co. v. Sullivan, 376 U. S. 254, 279-280 (1964) (civil libel). Indeed, this Court has held that "reckless disregard for human life" may justify the death penalty. Tison v. Arizona, 481 U. S. 137, 157 (1987). Someone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway.
Accordingly, I would hold that a defendant may be convicted under §875(c) if he or she consciously disregards the risk that the communication transmitted will be interpreted as a true threat. Nothing in the Court's noncommittal opinion prevents lower courts from adopting that standard.
II
There remains the question whether interpreting §875(c) to require no more than recklessness with respect to the element at issue here would violate the First Amendment. Elonis contends that it would. I would reject that argument.
It is settled that the Constitution does not protect true threats. See Virginia v. Black, 538 U. S. 343, 359-360 (2003); R. A. V. v. St. Paul, 505 U. S. 377, 388 (1992); Watts, 394 U. S., at 707-708. And there are good reasons for that rule: True threats inflict great harm and have little if any social value. A threat may cause serious emotional stress for the person threatened and those who care about that person, and a threat may lead to a violent confrontation. It is true that a communication containing a threat may include other statements that have value and are entitled to protection. But that does not justify constitutional protection for the threat itself.
Elonis argues that the First Amendment protects a threat if the person making the statement does not actually intend to cause harm. In his view, if a threat is made for a "`therapeutic'" purpose, "to `deal with the pain' . . . of a wrenching event," or for "cathartic" reasons, the threat is protected. Brief for Petitioner 52-53. But whether or not the person making a threat intends to cause harm, the damage is the same. And the fact that making a threat may have a therapeutic or cathartic effect for the speaker is not sufficient to justify constitutional protection. Some people may experience a therapeutic or cathartic benefit only if they know that their words will cause harm or only if they actually plan to carry out the threat, but surely the First Amendment does not protect them.
Elonis also claims his threats were constitutionally protected works of art. Words like his, he contends, are shielded by the First Amendment because they are similar to words uttered by rappers and singers in public performances and recordings. To make this point, his brief includes a lengthy excerpt from the lyrics of a rap song in which a very well-compensated rapper imagines killing his ex-wife and dumping her body in a lake. If this celebrity can utter such words, Elonis pleads, amateurs like him should be able to post similar things on social media. But context matters. "Taken in context," lyrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person. Watts, supra, at 708. Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously. To hold otherwise would grant a license to anyone who is clever enough to dress up a real threat in the guise of rap lyrics, a parody, or something similar.
The facts of this case illustrate the point. Imagine the effect on Elonis's estranged wife when she read this: "`If I only knew then what I know now . . . I would have smothered your ass with a pillow, dumped your body in the back seat, dropped you off in Toad Creek and made it look like a rape and murder.'" 730 F. 3d 321, 324 (CA3 2013). Or this: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Ibid. Or this: "Fold up your [protection from abuse order] and put it in your pocket[.] Is it thick enough to stop a bullet?" Id., at 325.
There was evidence that Elonis made sure his wife saw his posts. And she testified that they made her feel "`extremely afraid'" and "`like [she] was being stalked.'" Ibid. Considering the context, who could blame her? Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace. See Brief for The National Network to End Domestic Violence et al. as Amici Curiae 4-16. A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.
It can be argued that §875(c), if not limited to threats made with the intent to harm, will chill statements that do not qualify as true threats, e.g., statements that may be literally threatening but are plainly not meant to be taken seriously. We have sometimes cautioned that it is necessary to "exten[d] a measure of strategic protection" to otherwise unprotected false statements of fact in order to ensure enough "`breathing space'" for protected speech. Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974) (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)). A similar argument might be made with respect to threats. But we have also held that the law provides adequate breathing space when it requires proof that false statements were made with reckless disregard of their falsity. See New York Times, 376 U. S., at 279-280 (civil liability); Garrison, 379 U. S., at 74-75 (criminal liability). Requiring proof of recklessness is similarly sufficient here.
III
Finally, because the jury instructions in this case did not require proof of recklessness, I would vacate the judgment below and remand for the Court of Appeals to decide in the first instance whether Elonis's conviction could be upheld under a recklessness standard.
We do not lightly overturn criminal convictions, even where it appears that the district court might have erred. To benefit from a favorable ruling on appeal, a defendant must have actually asked for the legal rule the appellate court adopts. Rule 30(d) of the Federal Rules of Criminal Procedure requires a defendant to "inform the court of the specific objection and the grounds for the objection." An objection cannot be vague or open-ended. It must specifically identify the alleged error. And failure to lodge a sufficient objection "precludes appellate review," except for plain error. Rule 30(d); see also 2A C. Wright & P. Henning, Federal Practice and Procedure §484, pp. 433-435 (4th ed. 2009).
At trial, Elonis objected to the District Court's instruction, but he did not argue for recklessness. Instead, he proposed instructions that would have required proof that he acted purposefully or with knowledge that his statements would be received as threats. See App. 19-21. He advanced the same position on appeal and in this Court. See Brief for Petitioner 29 ("Section 875(c) requires proof that the defendant intended the charged statement to be a `threat'" (emphasis in original)); Corrected Brief of Appellant in No. 12-3798 (CA3), p. 14 ("[A] `true threat' has been uttered only if the speaker acted with subjective intent to threaten" (same)). And at oral argument before this Court, he expressly disclaimed any agreement with a recklessness standard—which the Third Circuit remains free to adopt. Tr. of Oral Arg. 8:22-23 ("[W]e would say that recklessness is not justif[ied]"). I would therefore remand for the Third Circuit to determine if Elonis's failure (indeed, refusal) to argue for recklessness prevents reversal of his conviction.
The Third Circuit should also have the opportunity to consider whether the conviction can be upheld on harmlesserror grounds. "We have often applied harmless-error analysis to cases involving improper instructions." Neder v. United States, 527 U. S. 1, 9 (1999); see also, e.g., Pope v. Illinois, 481 U. S. 497, 503-504 (1987) (remanding for harmless-error analysis after holding that jury instruction misstated obscenity standard). And the Third Circuit has previously upheld convictions where erroneous jury instructions proved harmless. See, e.g., United States v. Saybolt, 577 F. 3d 195, 206-207 (2009). It should be given the chance to address that possibility here.
JUSTICE THOMAS, dissenting.
We granted certiorari to resolve a conflict in the lower courts over the appropriate mental state for threat prosecutions under 18 U. S. C. §875(c). Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. Adopting the minority position, Elonis urges us to hold that §875(c) and the First Amendment require proof of an intent to threaten. The Government in turn advocates a general-intent approach.
Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today's decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough. See ante, at 16-17.
This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues' policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were "true threats" unprotected by the First Amendment, I would affirm the judgment below.
I
A
Enacted in 1939, §875(c) provides, "Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." Because §875(c) criminalizes speech, the First Amendment requires that the term "threat" be limited to a narrow class of historically unprotected communications called "true threats." To qualify as a true threat, a communication must be a serious expression of an intention to commit unlawful physical violence, not merely "political hyperbole"; "vehement, caustic, and sometimes unpleasantly sharp attacks"; or "vituperative, abusive, and inexact" statements. Watts v. United States, 394 U. S. 705, 708 (1969) (per curiam) (internal quotation marks omitted). It also cannot be determined solely by the reaction of the recipient, but must instead be "determined by the interpretation of a reasonable recipient familiar with the context of the communication," United States v. Darby, 37 F. 3d 1059, 1066 (CA4 1994) (emphasis added), lest historically protected speech be suppressed at the will of an eggshell observer, cf. Cox v. Louisiana, 379 U. S. 536, 551 (1965) ("[C]onstitutional rights may not be denied simply because of hostility to their assertion or exercise" (internal quotation marks omitted)). There is thus no dispute that, at a minimum, §875(c) requires an objective showing: The communication must be one that "a reasonable observer would construe as a true threat to another." United States v. Jeffries, 692 F. 3d 473, 478 (CA6 2012). And there is no dispute that the posts at issue here meet that objective standard.
The only dispute in this case is about the state of mind necessary to convict Elonis for making those posts. On its face, §875(c) does not demand any particular mental state. As the Court correctly explains, the word "threat" does not itself contain a mens rea requirement. See ante, at 8-9. But because we read criminal statutes "in light of the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded," we require "some indication of congressional intent, express or implied, . . . to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 605-606 (1994) (citation omitted). Absent such indicia, we ordinarily apply the "presumption in favor of scienter" to require only "proof of general intent—that is, that the defendant [must] posses[s] knowledge with respect to the actus reus of the crime." Carter v. United States, 530 U. S. 255, 268 (2000).
Under this "conventional mens rea element," "the defendant [must] know the facts that make his conduct illegal," Staples, supra, at 605, but he need not know that those facts make his conduct illegal. It has long been settled that "the knowledge requisite to knowing violation of a statute is factual knowledge as distinguished from knowledge of the law." Bryan v. United States, 524 U. S. 184, 192 (1998) (internal quotation marks omitted). For instance, in Posters `N' Things, Ltd. v. United States, 511 U. S. 513 (1994), the Court addressed a conviction for selling drug paraphernalia under a statute forbidding anyone to "`make use of the services of the Postal Service or other interstate conveyance as part of a scheme to sell drug paraphernalia,'" id., at 516 (quoting 21 U. S. C. §857(a)(1) (1988 ed.)). In applying the presumption in favor of scienter, the Court concluded that "although the Government must establish that the defendant knew that the items at issue are likely to be used with illegal drugs, it need not prove specific knowledge that the items are `drug paraphernalia' within the meaning of the statute." 511 U. S., at 524.
Our default rule in favor of general intent applies with full force to criminal statutes addressing speech. Well over 100 years ago, this Court considered a conviction under a federal obscenity statute that punished anyone "`who shall knowingly deposit, or cause to be deposited, for mailing or delivery,'" any "`obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character.'" Rosen v. United States, 161 U. S. 29, 30 (1896) (quoting Rev. Stat. §3893). In that case, as here, the defendant argued that, even if "he may have had . . . actual knowledge or notice of [the paper's] contents" when he put it in the mail, he could not "be convicted of the offence . . . unless he knew or believed that such paper could be properly or justly characterized as obscene, lewd, and lascivious." 161 U. S., at 41. The Court rejected that theory, concluding that if the material was actually obscene and "deposited in the mail by one who knew or had notice at the time of its contents, the offence is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails." Ibid. As the Court explained, "Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of [the paper's] contents, assumed the responsibility of putting it in the mails of the United States," because "[e]very one who uses the mails of the United States for carrying papers or publications must take notice of . . . what must be deemed obscene, lewd, and lascivious." Id., at 41-42.
This Court reaffirmed Rosen's holding in Hamling v. United States, 418 U. S. 87 (1974), when it considered a challenge to convictions under the successor federal statute, see id., at 98, n. 8 (citing 18 U. S. C. §1461 (1970 ed.)). Relying on Rosen, the Court rejected the argument that the statute required "proof both of knowledge of the contents of the material and awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). In approving the jury instruction that the defendants'"belief as to the obscenity or non-obscenity of the material is irrelevant," the Court declined to hold "that the prosecution must prove a defendant's knowledge of the legal status of the materials he distributes." Id., at 120-121 (internal quotation marks omitted). To rule otherwise, the Court observed, "would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law." Id., at 123.
Decades before §875(c)'s enactment, courts took the same approach to the first federal threat statute, which prohibited threats against the President. In 1917, Congress enacted a law punishing anyone
"who knowingly and willfully deposits or causes to be deposited for conveyance in the mail . . . any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, or who knowingly and willfully otherwise makes any such threat against the President." Act of Feb. 14, 1917, ch. 64, 39 Stat. 919.
Courts applying this statute shortly after its enactment appeared to require proof of only general intent. In Ragansky v. United States, 253 F. 643 (CA7 1918), for instance, a Court of Appeals held that "[a] threat is knowingly made, if the maker of it comprehends the meaning of the words uttered by him," and "is willfully made, if in addition to comprehending the meaning of his words, the maker voluntarily and intentionally utters them as the declaration of an apparent determination to carry them into execution," id., at 645. The court consequently rejected the defendant's argument that he could not be convicted when his language "[c]oncededly . . . constituted such a threat" but was meant only "as a joke." Id., at 644. Likewise, in United States v. Stobo, 251 F. 689 (Del. 1918), a District Court rejected the defendant's objection that there was no allegation "of any facts . . . indicating any intention. . . on the part of the defendant . . . to menace the President of the United States," id., at 693 (internal quotation marks omitted). As it explained, the defendant "is punishable under the act whether he uses the words lightly or with a set purpose to kill," as "[t]he effect upon the minds of the hearers, who cannot read his inward thoughts, is precisely the same." Ibid. At a minimum, there is no historical practice requiring more than general intent when a statute regulates speech.
B
Applying ordinary rules of statutory construction, I would read §875(c) to require proof of general intent. To "know the facts that make his conduct illegal" under §875(c), see Staples, 511 U. S., at 605, a defendant must know that he transmitted a communication in interstate or foreign commerce that contained a threat. Knowing that the communication contains a "threat"—a serious expression of an intention to engage in unlawful physical violence—does not, however, require knowing that a jury will conclude that the communication contains a threat as a matter of law. Instead, like one who mails an "obscene" publication and is prosecuted under the federal obscenity statute, a defendant prosecuted under §875(c) must know only the words used in that communication, along with their ordinary meaning in context.
General intent divides those who know the facts constituting the actus reus of this crime from those who do not. For example, someone who transmits a threat who does not know English—or who knows English, but perhaps does not know a threatening idiom—lacks the general intent required under §875(c). See Ragansky, supra, at 645 ("[A] foreigner, ignorant of the English language, repeating [threatening] words without knowledge of their meaning, may not knowingly have made a threat"). Likewise, the hapless mailman who delivers a threatening letter, ignorant of its contents, should not fear prosecution. A defendant like Elonis, however, who admits that he "knew that what [he] was saying was violent" but supposedly "just wanted to express [him]self," App. 205, acted with the general intent required under §875(c), even if he did not know that a jury would conclude that his communication constituted a "threat" as a matter of law.
Demanding evidence only of general intent also corresponds to §875(c)'s statutory backdrop. As previously discussed, before the enactment of §875(c), courts had read the Presidential threats statute to require proof only of general intent. Given Congress' presumptive awareness of this application of the Presidential threats statute—not to mention this Court's similar approach in the obscenity context, see Rosen, 161 U. S., at 41-42—it is difficult to conclude that the Congress that enacted §875(c) in 1939 understood it to contain an implicit mental-state requirement apart from general intent. There is certainly no textual evidence to support this conclusion. If anything, the text supports the opposite inference, as §875(c), unlike the Presidential threats statute, contains no reference to knowledge or willfulness. Nothing in the statute suggests that Congress departed from the "conventional mens rea element" of general intent, Staples, supra, at 605; I would not impose a higher mental-state requirement here.
C
The majority refuses to apply these ordinary background principles. Instead, it casts my application of general intent as a negligence standard disfavored in the criminal law. Ante, at 13-16. But that characterization misses the mark. Requiring general intent in this context is not the same as requiring mere negligence. Like the mental-state requirements adopted in many of the cases cited by the Court, general intent under §875(c) prevents a defendant from being convicted on the basis of any fact beyond his awareness. See, e.g., United States v. X-Citement Video, Inc., 513 U. S. 64, 73 (1994) (knowledge of age of persons depicted in explicit materials); Staples, supra, at 614-615 (knowledge of firing capability of weapon); Morissette v. United States, 342 U. S. 246, 270-271 (1952) (knowledge that property belonged to another). In other words, the defendant must know—not merely be reckless or negligent with respect to the fact—that he is committing the acts that constitute the actus reus of the offense.
But general intent requires no mental state (not even a negligent one) concerning the "fact" that certain words meet the legal definition of a threat. That approach is particularly appropriate where, as here, that legal status is determined by a jury's application of the legal standard of a "threat" to the contents of a communication. And convicting a defendant despite his ignorance of the legal— or objective—status of his conduct does not mean that he is being punished for negligent conduct. By way of example, a defendant who is convicted of murder despite claiming that he acted in self-defense has not been penalized under a negligence standard merely because he does not know that the jury will reject his argument that his "belief in the necessity of using force to prevent harm to himself [was] a reasonable one." See 2 W. LaFave, Substantive Criminal Law §10.4(c), p. 147 (2d ed. 2003).
The Court apparently does not believe that our traditional approach to the federal obscenity statute involved a negligence standard. It asserts that Hamling "approved a state court's conclusion that requiring a defendant to know the character of the material incorporated a `vital element of scienter' so that `not innocent but calculated purveyance of filth . . . is exorcised.'" Ante, at 15 (quoting Hamling, 418 U. S., at 122 (in turn quoting Mishkin v. New York, 383 U. S. 502, 510 (1966)). According to the Court, the mental state approved in Hamling thus "turns on whether a defendant knew the character of what was sent, not simply its contents and context." Ante, at 15. It is unclear what the Court means by its distinction between "character" and "contents and context." "Character" cannot mean legal obscenity, as Hamling rejected the argument that a defendant must have "awareness of the obscene character of the material." 418 U. S., at 120 (internal quotation marks omitted). Moreover, this discussion was not part of Hamling's holding, which was primarily a reaffirmation of Rosen. See 418 U. S., at 120-121; see also Posters `N' Things, 511 U. S., at 524-525 (characterizing Hamling as holding that a "statute prohibiting mailing of obscene materials does not require proof that [the] defendant knew the materials at issue met the legal definition of `obscenity'").
The majority's treatment of Rosen is even less persuasive. To shore up its position, it asserts that the critical portion of Rosen rejected an "`ignorance of the law' defense," and claims that "no such contention is at issue here." Ante, at 15. But the thrust of Elonis' challenge is that a §875(c) conviction cannot stand if the defendant's subjective belief of what constitutes a "threat" differs from that of a reasonable jury. That is akin to the argument the defendant made—and lost—in Rosen. That defendant insisted that he could not be convicted for mailing the paper "unless he knew or believed that such paper could be properly or justly characterized as obscene." 161 U. S., at 41. The Court, however, held that the Government did not need to show that the defendant "regard[ed] the paper as one that the statute forbade to be carried in the mails," because the obscene character of the material did not "depend upon the opinion or belief of the person who . . . assumed the responsibility of putting it in the mails." Ibid. The majority's muddying of the waters cannot obscure the fact that today's decision is irreconcilable with Rosen and Hamling.
D
The majority today at least refrains from requiring an intent to threaten for §875(c) convictions, as Elonis asks us to do. Elonis contends that proof of a defendant's intent to put the recipient of a threat in fear is necessary for conviction, but that element cannot be found within the statutory text. "[W]e ordinarily resist reading words or elements into a statute that do not appear on its face," including elements similar to the one Elonis proposes. E.g., Bates v. United States, 522 U. S. 23, 29 (1997) (declining to read an "intent to defraud" element into a criminal statute). As the majority correctly explains, nothing in the text of §875(c) itself requires proof of an intent to threaten. See ante, at 8-9. The absence of such a requirement is significant, as Congress knows how to require a heightened mens rea in the context of threat offenses. See §875(b) (providing for the punishment of "[w]hoever, with intent to extort . . ., transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another"); see also §119 (providing for the punishment of "[w]hoever knowingly makes restricted personal information about [certain officials] . . . publicly available . . . with the intent to threaten").
Elonis nonetheless suggests that an intent-to-threaten element is necessary in order to avoid the risk of punishing innocent conduct. But there is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat. For instance, a high-school student who sends a letter to his principal stating that he will massacre his classmates with a machine gun, even if he intended the letter as a joke, cannot fairly be described as engaging in innocent conduct. But see ante, at 4-5, 16 (concluding that Elonis' conviction under §875(c) for discussing a plan to "`initiate the most heinous school shooting ever imagined'" against "`a Kindergarten class'" cannot stand without proof of some unspecified heightened mental state).
Elonis also insists that we read an intent-to-threaten element into §875(c) in light of the First Amendment. But our practice of construing statutes "to avoid constitutional questions . . . is not a license for the judiciary to rewrite language enacted by the legislature," Salinas v. United States, 522 U. S. 52, 59-60 (1997) (internal quotation marks omitted), and ordinary background principles of criminal law do not support rewriting §875(c) to include an intent-to-threaten requirement. We have not altered our traditional approach to mens rea for other constitutional provisions. See, e.g., Dean v. United States, 556 U. S. 568, 572-574 (2009) (refusing to read an intent-to-dischargethe-firearm element into a mandatory minimum provision concerning the discharge of a firearm during a particular crime). The First Amendment should be treated no differently.
II
In light of my conclusion that Elonis was properly convicted under the requirements of §875(c), I must address his argument that his threatening posts were nevertheless protected by the First Amendment.
A
Elonis does not contend that threats are constitutionally protected speech, nor could he: "From 1791 to the present,. . . our society . . . has permitted restrictions upon the content of speech in a few limited areas," true threats being one of them. R. A. V. v. St. Paul, 505 U. S. 377, 382-383 (1992); see id., at 388. Instead, Elonis claims that only intentional threats fall within this particular historical exception.
If it were clear that intentional threats alone have been punished in our Nation since 1791, I would be inclined to agree. But that is the not the case. Although the Federal Government apparently did not get into the business of regulating threats until 1917, the States have been doing so since the late 18th and early 19th centuries. See, e.g., 1795 N. J. Laws p. 108; Ill. Rev. Code of Laws, Crim. Code §108 (1827) (1827 Ill. Crim. Code); 1832 Fla. Laws pp. 68-69. And that practice continued even after the States amended their constitutions to include speech protections similar to those in the First Amendment. See, e.g., Fla. Const., Art. I, §5 (1838); Ill. Const., Art. VIII, §22 (1818), Mich. Const., Art. I, §7 (1835); N. J. Const., Art. I, §5 (1844); J. Hood, Index of Colonial and State Laws of New Jersey 1203, 1235, 1257, 1265 (1905); 1 Ill. Stat., ch. 30, div. 9, §31 (3d ed. 1873). State practice thus provides at least some evidence of the original meaning of the phrase "freedom of speech" in the First Amendment. See Roth v. United States, 354 U. S. 476, 481-483 (1957) (engaging in a similar inquiry with respect to obscenity).
Shortly after the founding, several States and Territories enacted laws making it a crime to "knowingly send or deliver any letter or writing, with or without a name subscribed thereto, or signed with a fictitious name, . . . threatening to maim, wound, kill or murder any person, or to burn his or her [property], though no money, goods or chattels, or other valuable thing shall be demanded," e.g., 1795 N. J. Laws §57, at 108; see also, e.g., 1816 Ga. Laws p. 178; 1816 Mich. Territory Laws p. 128; 1827 Ill. Crim. Code §108; 1832 Fla. Laws, at 68-69. These laws appear to be the closest early analogue to §875(c), as they penalize transmitting a communication containing a threat without proof of a demand to extort something from the victim. Threat provisions explicitly requiring proof of a specific "intent to extort" appeared alongside these laws, see, e.g., 1795 N. J. Laws §57, at 108, but those provisions are simply the predecessors to §875(b) and §875(d), which likewise expressly contain an intent-to-extort requirement.
The laws without that extortion requirement were copies of a 1754 English threat statute subject to only a general-intent requirement. The statute made it a capital offense to "knowingly send any Letter without any Name subscribed thereto, or signed with a fictitious Name . . . threatening to kill or murder any of his Majesty's Subject or Subjects, or to burn their [property], though no Money or Venison or other valuable Thing shall be demanded." 27 Geo. II, ch. 15, in 7 Eng. Stat. at Large 61 (1754); see also 4 W. Blackstone, Commentaries on the Laws of England 144 (1768) (describing this statute). Early English decisions applying this threat statute indicated that the appropriate mental state was general intent. In King v. Girdwood, 1 Leach 142, 168 Eng. Rep. 173 (K. B. 1776), for example, the trial court instructed the jurors that, "if they were of opinion that" the "terms of the letter conveyed an actual threat to kill or murder," "and that the prisoner knew the contents of it, they ought to find him guilty; but that if they thought he did not know the contents, or that the words might import any thing less than to kill or murder, they ought to acquit," id., at 143, 168 Eng. Rep., at 173. On appeal following conviction, the judges "thought that the case had been properly left to the Jury." Ibid., 168 Eng. Rep., at 174. Other cases likewise appeared to consider only the import of the letter's language, not the intent of its sender. See, e.g., Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831) (concluding that an indictment was sufficient because "th[e] letter very plainly conveys a threat to kill and murder" and "[n]o one who received it could have any doubt as to what the writer meant to threaten"); see also 2 E. East, A Treatise of the Pleas of the Crown 1116 (1806) (discussing Jepson and Springett's Case, in which the judges disagreed over whether "the letter must be understood as . . . importing a threat" and whether that was "a necessary construction").
Unsurprisingly, these early English cases were well known in the legal world of the 19th century United States. For instance, Nathan Dane's A General Abridgement of American Law—"a necessary adjunct to the library of every American lawyer of distinction," 1 C. Warren, History of the Harvard Law School and of Early Legal Conditions in America 414 (1908)—discussed the English threat statute and summarized decisions such as Girdwood. 7 N. Dane, A General Abridgement of American Law 31-32 (1824). And as this Court long ago recognized, "It is doubtless true . . . that where English statutes . . . have been adopted into our own legislation; the known and settled construction of those statutes by courts of law, has been considered as silently incorporated into the acts, or has been received with all the weight of authority." Pennock v. Dialogue, 2 Pet. 1, 18 (1829); see also, e.g., Commonwealth v. Burdick, 2 Pa. 163, 164 (1846) (considering English cases persuasive authority in interpreting similar state statute creating the offense of obtaining property through false pretenses). In short, there is good reason to believe that States bound by their own Constitutions to protect freedom of speech long ago enacted general-intent threat statutes.
Elonis disputes this historical analysis on two grounds, but neither is persuasive. He first points to a treatise stating that the 1754 English statute was "levelled against such whose intention it was, (by writing such letters, either without names or in fictitious names,) to conceal themselves from the knowledge of the party threatened, that they might obtain their object by creating terror in [the victim's] mind." 2 W. Russell & D. Davis, A Treatise on Crimes & Misdemeanors 1845 (1st Am. ed. 1824). But the fact that the ordinary prosecution under this provision involved a defendant who intended to cause fear does not mean that such a mental state was required as a matter of law. After all, §875(c) is frequently deployed against people who wanted to cause their victims fear, but that fact does not answer the legal question presented in this case. See, e.g., United States v. Sutcliffe, 505 F. 3d 944, 952 (CA9 2007); see also Tr. of Oral Arg. 53 (counsel for the Government noting that "I think Congress would well have understood that the majority of these cases probably [involved] people who intended to threaten").
Elonis also cobbles together an assortment of older American authorities to prove his point, but they fail to stand up to close scrutiny. Two of his cases address the offense of breaching the peace, Ware v. Loveridge, 75 Mich. 488, 490-493, 42 N. W. 997, 998 (1889); State v. Benedict, 11 Vt. 236, 239 (1839), which is insufficiently similar to the offense criminalized in §875(c) to be of much use. Another involves a prosecution under a blackmailing statute similar to §875(b) and §875(c) in that it expressly required an "intent to extort." Norris v. State, 95 Ind. 73, 74 (1884). And his treatises do not clearly distinguish between the offense of making threats with the intent to extort and the offense of sending threatening letters without such a requirement in their discussions of threat statutes, making it difficult to draw strong inferences about the latter category. See 2 J. Bishop, Commentaries on the Criminal Law §1201, p. 664, and nn. 5-6 (1877); 2 J. Bishop, Commentaries on the Law of Criminal Procedure §975, p. 546 (1866); 25 The American and English Encyclopædia of Law 1073 (C. Williams ed. 1894).
Two of Elonis' cases appear to discuss an offense of sending a threatening letter without an intent to extort, but even these fail to make his point. One notes in passing that character evidence is admissible "to prove guilty knowledge of the defendant, when that is an essential element of the crime; that is, the quo animo, the intent or design," and offers as an example that in the context of "sending a threatening letter, . . . prior and subsequent letters to the same person are competent in order to show the intent and meaning of the particular letter in question." State v. Graham, 121 N. C. 623, 627, 28 S. E. 409, 409 (1897). But it is unclear from that statement whether that court thought an intent to threaten was required, especially as the case it cited for this proposition—Rex v. Boucher, 4 Car. & P. 562, 563, 172 Eng. Rep. 826, 827 (K. B. 1831)—supports a general-intent approach. The other case Elonis cites involves a statutory provision that had been judicially limited to "`pertain to one or the other acts which are denounced by the statute,'" namely, terroristic activities carried out by the Ku Klux Klan. Commonwealth v. Morton, 140 Ky. 628, 630, 131 S. W. 506, 507 (1910) (quoting Commonwealth v. Patrick, 127 Ky. 473, 478, 105 S. W. 981, 982 (1907)). That case thus provides scant historical support for Elonis' position.
B
Elonis also insists that our precedents require a mental state of intent when it comes to threat prosecutions under §875(c), primarily relying on Watts, 394 U. S. 705, and Virginia v. Black, 538 U. S. 343 (2003). Neither of those decisions, however, addresses whether the First Amendment requires a particular mental state for threat prosecutions.
As Elonis admits, Watts expressly declined to address the mental state required under the First Amendment for a "true threat." See 394 U. S., at 707-708. True, the Court in Watts noted "grave doubts" about Raganksy's construction of "willfully" in the presidential threats statute. 394 U. S., at 707-708. But "grave doubts" do not make a holding, and that stray statement in Watts is entitled to no precedential force. If anything, Watts continued the long tradition of focusing on objective criteria in evaluating the mental requirement. See ibid.
The Court's fractured opinion in Black likewise says little about whether an intent-to-threaten requirement is constitutionally mandated here. Black concerned a Virginia cross-burning law that expressly required "`an intent to intimidate a person or group of persons,'" 538 U. S., at 347 (quoting Va. Code Ann. §18.2-423 (1996)), and the Court thus had no occasion to decide whether such an element was necessary in threat provisions silent on the matter. Moreover, the focus of the Black decision was on the statutory presumption that "any cross burning [w]as prima facie evidence of intent to intimidate." 538 U. S., at 347-348. A majority of the Court concluded that this presumption failed to distinguish unprotected threats from protected speech because it might allow convictions "based solely on the fact of cross burning itself," including cross burnings in a play or at a political rally. Id., at 365-366 (plurality opinion); id., at 386 (Souter, J., concurring in judgment in part and dissenting in part) ("The provision will thus tend to draw nonthreatening ideological expression within the ambit of the prohibition of intimidating expression"). The objective standard for threats under §875(c), however, helps to avoid this problem by "forc[ing] jurors to examine the circumstances in which a statement is made." Jeffries, 692 F. 3d, at 480.
In addition to requiring a departure from our precedents, adopting Elonis' view would make threats one of the most protected categories of unprotected speech, thereby sowing tension throughout our First Amendment doctrine. We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. For instance, the Court has indicated that a legislature may constitutionally prohibit "`fighting words,' those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction," Cohen v. California, 403 U. S. 15, 20 (1971)—without proof of an intent to provoke a violent reaction. Because the definition of "fighting words" turns on how the "ordinary citizen" would react to the language, ibid., this Court has observed that a defendant may be guilty of a breach of the peace if he "makes statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended," and that the punishment of such statements "as a criminal act would raise no question under [the Constitution]," Cantwell v. Connecticut, 310 U. S. 296, 309-310 (1940); see also Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942) (rejecting a First Amendment challenge to a general-intent construction of a state statute punishing "`fighting' words"); State v. Chaplinsky, 91 N. H. 310, 318, 18 A. 2d 754, 758 (1941) ("[T]he only intent required for conviction . . . was an intent to speak the words"). The Court has similarly held that a defendant may be convicted of mailing obscenity under the First Amendment without proof that he knew the materials were legally obscene. Hamling, 418 U. S., at 120-124. And our precedents allow liability in tort for false statements about private persons on matters of private concern even if the speaker acted negligently with respect to the falsity of those statements. See Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767, 770, 773-775 (1986). I see no reason why we should give threats pride of place among unprotected speech.
* * *
There is always a risk that a criminal threat statute may be deployed by the Government to suppress legitimate speech. But the proper response to that risk is to adhere to our traditional rule that only a narrow class of true threats, historically unprotected, may be constitutionally proscribed.
The solution is not to abandon a mental-state requirement compelled by text, history, and precedent. Not only does such a decision warp our traditional approach to mens rea, it results in an arbitrary distinction between threats and other forms of unprotected speech. Had Elonis mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility. Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant. That need not—and should not—be the case.
Nor should it be the case that we cast aside the mentalstate requirement compelled by our precedents yet offer nothing in its place. Our job is to decide questions, not create them. Given the majority's ostensible concern for protecting innocent actors, one would have expected it to announce a clear rule—any clear rule. Its failure to do so reveals the fractured foundation upon which today's decision rests.
I respectfully dissent.
7.2.8.2.3.5 R. v. Prince 7.2.8.2.3.5 R. v. Prince
R. v. PRINCE
[COURT FOR CONSIDERATION OF CROWN CASES RESERVED (Cockburn, C.J., Kelly, C.B., Bramwell, B., Blackburn, Mellor and Lush, JJ., Cleasby, B., Brett, Grove, Denman, Quain and Archibald, JJ., Pollock and Amphlett, BB., Field and Lindley, JJ.), May 29, June 12, 1875]
[Reported L.R. 2 C.C.R. 154; 44 L.J.M.C. 122; 32 L.T. 700; 39 J.P. 676; 24 W.R. 76; 13 Cox, C.C. 138]
Criminal Law - Abduction - Girl under 16 - Defence - Bona fide and reasonable belief that girl over 16.
By s. 55 of the Offences against the Person Act, 1861:
“Whosoever shall unlawfully take ... any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdeameanor . . .”
Held (BRETT, J., dissentiente): it was no defence to a charge under this section that the defendant believed, bona fide and reasonably, that the girl was older than sixteen.
Notes. Section 55 of the Offences against the Person Act, 1861, has been replaced by s. 20 of the Sexual Offences Act, 1956 (36 HALSBURY’S STATUTES (2nd Edn.) 227), the words “without lawful authority” being substituted for “unlawfully” in the earlier Act.
Distinguished: R. v. Moore (1877), 13 Cox, C.C. 544. Considered: R. v. Tolson, [1886-90] All E.R.Rep. 26; Sherras v. de Rutzen, [1895-9] All E.R.Rep. 1167; R. v. Maughan (1934), 24 Cr. App. Rep. 130. Referred to: Cundy v. Le Cocq, [1881-5] All E.R.Rep. 412; Chisholm v. Doulton (1889), 60 L.T. 966; Derbyshire v. Houliston, [1897] 1 Q.B. 772; Burrows v. Rhodes. [1895-9) All E.R.Rep. 117; Hobbs v. Winchester Corpn.., [1910] 2 K.B. 471; R. v. Wheat, R. v. Stoel(s, [1921J All R.R.Rep. 602; R. v. Denyer, [1926] 2 K.B. 258; R. v. St. Margaret's Trust. Ltd., [1958] 2 All E.R. 289.
As to abduction, see 10 HALSBURY'S LAWS (3rd Edn.) 756-759; and for cases relating to girls under 16, see 15 DIGEST (Repl.) 1030-1032.
Cases referred to :
(1) R. v. Robins (1844), 1 Car. & Kir. 456; 15 Digest (Repl.) 1031, 10, 117.
(2) R. v. Olifier (1866), 10 Cox, C.C. 402; 15 Digest (Repl.) 1030, 10, 116.
(3) R. v. Forbes and Webb (1865), 10 Cox, C.C. 362; 15 Digest (Repl.) 854. 8220.
(4) R. v. Sleep (1861), Le. & Ca. 44; 30 L.J.M.C. 170; 4 L.T. 525; 25 J.P. 532; 7 Jur.N.S. 979; 9 W.R. 709; 8 Cox, C.C. 472, C.C.R.; 15 Digest (Repl.) 863, 8295.
(5) R. v. Mycock (1871), 12 Cox, C.C. 28; 15 Digest (Repl.) 1031, 10, 127.
(6) R. v. Booth (1872), 12 Cox. C.C. 231; 15 Digest (Repl.) 1032, 10, 136.
(7) R. v. Greenhill (1836),4 Ad. & R!. 624; 6 Nev. & M.K.B. 244; 111 R.R. 922; 28 Digest (Repl) 621, 1240.
(8) R. v. Howes (1860),3 R. & R. 332; 30 L.J.M.C. 47; 25 J.P. 23; 7 Jur.N.S. 22; 121 E.R. 467; sub nom. Ex parte Bar/ord, 3 L.T. 467; 9 W.R. 99; S Cox, C.C. 405; 15 Digest (Repl.) 1028, 10, 095.
(9) Ratcliff's Case (1592), 3 Co. Rep. 37a; 76 R.R. 713; 28 Digest (Rep!.) 652, 1461.
(10) Lady Fulwood's Case (1638). Cro. Car. 484.
(11) R. v. Marsh (1824),2 B. & C. 717; 4 Dow. & By.K.B. 260; 2 Dow. & By.M.C. 182; 107 E.R. 550; 14 Digest (Bepl.) 37, 73.
(12) Lee v. Simpson (1847),3 C.B. 871; 4 Dow. & L. 666; 16 L.J.C.P. 105; 8 L.T.O.S. 310; 11 Jur.127; 136 R.B. 349; 13 Digest (Repl.) 118, 592.
(13) Morden v. Porter (1860), 7 C.B.N.S. 641; 29 L.J.M.C. 213; 1 L.T. 403; 25 J.P. 263; 8 W.R. 262; 141 R.R. 967; 25 Digest (Repl.) 387,145.
(14) R. v. Hicklin (1868), L.R. 3 Q.B. 360; 37 L.J.M.C. 89; 16 W.R. 801; 11 Cox, C.C. 19; sub nom. Jl. v. Wolverhampton (Recorder), 18 L.T. 395; sub nom. Scott v. Wolverhampton Justices, 32 J.P. 533; 15 Digest (Repl.) 895,8625.
(15) Fowler v. Padget (1798), 7 Term Rep. 509; 101 R.R. 1103; 4 Digest (Repl.) 78, 668.
(16) Hearne v. Garton (1859),2 E. & E. 66; 28 L.J.M.C. 216; 33 L.T.O.S. 256; 23 J.P. 693; 5 JUT.N.S. 648; 7 W.R. 566; 121 E.R. 26; 14 Digest (Repl.) 37, 76.
(17) Taylor v. Newman (1863), 4 B. & S. 89; 2 New Rep. 275; 32 L.J.M.C. 186; S L.T. 424; 27 J.P. 502; 11 W.R. 752; 9 Cox, C.C. 314; 122 E.B. 393; 2 Digest (Repl.) 302, 95.
(18) Buckmaster v. Reynolds (1862), 13 C.B.N.S. 62; 143 E.B. 25; 33 Digest (Repl.) 324, 1474.
(19) R. v. Hibbert (1869), L.R. 1 C.C.R. 184; 38 L.J.M:.C. 61; 19 L.T. 799; 33 J.P. 243; 17 W.R. 384; 11 Cox, C.C. 246, C.C.R.; 15 Digest (Repl.) 1031, 10,131.
(20) R. v. Green. (1862),3 F. & F. 274; 15 Digest (Repl.) 1031, 10, 130.
(21) R. v. Tinkler (1859), 1 F. & F. 513; 15 Digest (Rep!.) 1032, 10, 137.
(22) R. v. Cohen (1858),8 Cox, C.C. 41; 15 Digest (Repl.) 863, 8294.
(23) R. v. Turner and Reader (1830), 1 Mood.C.C. 239; 1 Lew.C.C. 9; sub nom. R. v. Reader, 4 C. & P. 245; 2 Man. & Ry.M.C. 297, C.C.R.; 15 Digest (Repl.) 1207.12.276.
(24) R. v. Ryan and Connor (1837), 2 Mood.C.C. 15.
Also referred to in argument:
R. v. Kipps (1850),4 Cox, C.C. 167; 15 Digest (Repl.) 1030, 10, 112.
R. v. Meadows (1844),1 Car. & Kir. 399; 15 Digest (Repl.) 1030, 10, 111.
R. v. Timmins (1860), Bell, C.C. 276; 30 L.J.M.C. 45; 3 L.T. 337; 25 J.P. 453; 6 Jur.N.S. 1309; 9 W.E. 36; 8 Cox, C.C. 401, C.C.B.; 15 Digest (Repl.) 1031, 10, 125.
A.·G. v. Lookwood (1842), 9 M. & W. 378; 152 E.R. 160; affirmed sub nom. Lockwood v. A.·G., 10 M. & W. 484; 152 E.R.552, Ex. Ch.; 39 Digest 235, 103.
Case Reserved for the opinion of the court by DENMAN, J.
At the assizes for Surrey held at Kingston-on-Thames on Mar. 24, 1875, Henry Prince was tried before DENMAN, J., on the charge of having unlawfully taken one Annie Phillips, an unmarried girl being under the age of sixteen years, out of the possession, and against the will of her father, contrary to s. 55 of the Offences against the Person Act, 1861. He was found guilty, but judgment was respited in order that the opinion of the Court for Crown Cases Reserved might be taken. All the facts necessary prima facie to support a conviction existed and were found by the jury to have existed, but the defendant pleaded in defence that the girl Annie Phillips, though proved by her father to be fourteen years old on April 6, 1875, looked very much older than sixteen, and the jury found upon reasonable evidence that before the defendant took her away she had told him that she was eighteen, that the defendant bona fide believed that statement, and that such belief was reasonable. If the court were of the opinion that under those circumstances a conviction was right, the defendant was to appear for judgment at the next assizes for Surrey; otherwise the conviction was to be quashed: see R. v. Robins (1); R. v. Olifier (2).
No counsel appeared for the prisoner.
Lilley for the prosecution.
Cur. adv. vult.
June 12, 1875. BRAMWELL, B., read the following judgment, to which KELLY, C.B., CLEASBY, B., GROVE, J., POLLOCK, B., and AMPHLETT, B., assented. --
The question in the case depends on the construction of the statute under which the prisoner is indicted. Section 55 of the Offences against the Person Act, 1861, enacts that:
"Whosoever shall unlawfully take ... any unmarried girl being under the age of sixteen years, out of the possession and against the will of her father or mother, or any other person having the lawful care or charge of her, shall be guilty of a misdemeanour . . . "
The word "unlawfully" means "not lawfully," "otherwise than lawfully," "with-out lawful cause" - such as would exist for instance on a taking by a police officer on a charge of felony or a taking by a father of his child from her school. The statute, therefore, may be read thus: "Whosoever shall take etc. without lawful cause." The prisoner had no such cause, and consequently except in so far as it helps the construction of the statute, the word "unlawfully" may, in the present case, be left out, and then the question is: Has the prisoner taken an unmarried girl under the age of sixteen out of the possession of and against the will of her father? In fact he has; but it is said not within the meaning of the statute, and that that must be read as though the word "knowingly" or some equivalent word was in.
The reason given is that as a rule mens rea is necessary to make any act a crime or offence, and that, if the facts necessary to constitute an offence are not known to the alleged offender, there can be no mens rea. I have used the word "knowingly," but it will perhaps be said that here the prisoner not only did not do the act knowingly, but knew, as he would have said, or believed, that the fact was otherwise than such as would have made his act a crime; that here the prisoner did not say to himself: "I do not know how the fact is, whether she is under sixteen or not, and will take the chance," but acted on the reasonable belief that she was over sixteen; and that though, if he had done what he did, knowing or believing neither way, but hazarding it, there would be a mens rea, there is not one when he believes he knows that she is over sixteen. It is impossible to suppose that a person taking a girl out of her father's possession against his will is guilty of no offence within the statute unless he, the taker, knows she is under sixteen - that he would not be guilty if the jury were of opinion he knew neither one way nor the other. Let it be then that the question is whether he is guilty where he knows, as he thinks, that she is over sixteen. This introduces the necessity for reading the statute with some strange words introduced; as thus: "Whosoever shall take any unmarried girl being under the age of sixteen, and not believing her to be over the age of sixteen, out of the possession," etc. Those words arc not there, and the question is whether we are bound to construe the statute as though they were, on account of the rule that mens rea is necessary to make an act a crime.
I am of opinion that we are not, nor as though the word "knowingly" was there, and for the following reasons. The act forbidden is wrong in itself, if without lawful cause. I do not say illegal, but wrong. 1 have not lost sight of this, that D though the statute probably principally aims at seduction for carnal purposes, the taking may be by a female, with a good motive. Nevertheless, though there may be cases which are not immoral in one sense, I say that the act forbidden is wrong. Let us remember what is the case supposed by the statute. It supposes that there is a girl - it does not say a woman, but a girl something between a child and a woman - it supposes she is in the possession of her father or mother, or other person having lawful care and charge of her, and it supposes there is a taking, and that that taking is against the will of the person in whose possession she is. It is, then, a taking of a girl in the possession of someone, against his will. I say that done without lawful cause is wrong, and that the legislature meant it should be at the risk of the taker, whether or not the girl was under sixteen. I do not say that taking a woman of fifty from her brother's or even father's house is wrong. She is at an age when she has a right to choose for herself; she is not a girl, nor of such tender age that she can be said to be in the possession of or under the care or in the charge of anyone. If I am asked where I draw the line, I answer at when the female is no longer a girl in anyone's possession. But what the statute contemplates, and what I say is wrong, is the taking of a female of such tender years that she is properly called a girl, and can be said to be in another's possession, and in that other's care or charge. No argument is necessary to prove this; it is enough to state the case. The legislature has enacted that if anyone does this wrong act he does it at the risk of the girl turning out to be under sixteen. This opinion gives full scope to the doctrine of mens rea. If the taker believed he had the father's consent, though wrongly, he would have no mens rea. So if he did not know she was in anyone's possession, nor in the care or charge of anyone. In those cases he would not know he was doing the act forbidden by the statute, an act which, if he knew she was in the possession and care or charge of anyone, he would know was a crime or not according as she was under sixteen or not. He would know he was doing an act wrong itself, whatever was his intention, if done without lawful cause. In addition to these considerations one may add that the statute does use the word "unlawfully," and does not use the words "knowingly or not believing to the contrary." If the question was whether his act was unlawful there would be no difficulty as it clearly was not lawful.
This view of the section, to my mind, is much strengthened by a reference to other sections of the same statute. Section 50 makes it a felony unlawfully and carnally to know a girl under the age of ten. Section 51 enacts (when she is above ten and under twelve) that unlawfully and carnally to know her is a misdemeanour. Can it be supposed in the former ease, a person indicted might claim to be acquitted on the ground that he had believed the girl was over ten though under twelve, and so that he had only committed a misdemeanour, or that he believed her over twelve, and so had committed no offence at all; or that in a case under s. 51, he could claim to be acquitted, because he believed her over twelve? In both cases the act is intrinsically wrong. For the statute says if "unlawfully" done. The act done with mens rea is unlawfully and carnally knowing the girl, and the man doing that act does it at the risk of the child being under the statutory age. It would be mischievous to hold otherwise. So s. 56 by which whoever shall take away any child under fourteen, with intent to deprive parent or guardian of the possession of the child, or with intent to steal any article upon such child, shall be guilty of felony. Could a prisoner say I did take away the child to steal its clothes, but I believed it to be over fourteen? If not, then neither could he say I did take the child with intent to deprive the parent of its possession, but I believed it over fourteen. Because if words to that effect cannot be introduced into the statute where the intent is to steal the clothes, neither can they where intent is to take the child out of the possession of the parent. If these words cannot be introduced in s. 56, why can they be in s. 55?
The same principle applies in these cases. In R. v. Forbes and Webb (8) a man was held liable for assaulting a police officer in the execution of his duty, though he did not know he was a police officer. Why? because the act was wrong in itself. So also in the case of burglary; could a person charged claim an acquittal on the ground that he believed it was past 6 a.m. when he entered, or in house-breaking that he did not know the place broken into was a house. As to the case of marine stores it was held properly that there was no mens rea where the person charged with the possession of naval stores with the Admiralty mark did not know the stores he had bore the mark: R. v. Sleep (4); because there is nothing prima facie wrong or immoral in having naval stores unless they are so marked. But suppose someone told him there was a mark, and he had said he would chance whether or not it was the Admiralty mark. So in the case of the carrier with game in his possession, unless he knew he had it, there would be nothing done or permitted by him, no intentional act or omission. So of the vitriol senders there was nothing wrong in sending such packages as were sent unless they contained vitriol: Hearne v. Garton (16). Take also the case of libel where the publisher thought the occasion privileged, or that he had a defence under Lord Campbell's Act, but was wrong. He would not be entitled to be acquitted, because there was no mens rea. Why? Because the act of publishing written defamation is wrong where there is no lawful cause. Further, there have been four decisions on this statute in favour of the construction I contend for. I say it is a question of construction of this particular statute no doubt bringing thereto the common law doctrine of mens rea being a necessary ingredient of crime. It seems to me impossible to say that where a person takes a girl out of her father's possession, not knowing whether she is or is not under sixteen, that he is not guilty, and equally impossible when he believes, but ·erroneously, that she is old enough for him to do a wrong act with safety. I think the conviction should be affirmed.
BLACKBURN, J., read the following judgment to which COCKBURN, C.J., MELLOR, QUAIN, LUSH, ARCHIBALD, FIELD and LINDLEY, JJ., assented.-
In this case we must take it as found by the jury that the prisoner took an unmarried girl out of the possession, and against the will of her father, and that the girl was in fact under the age of sixteen, but that the prisoner bona fide, and on reasonable grounds, believed that she was above sixteen, viz., eighteen years old. No question arises as to what constitutes a taking out of the possession of her father, nor as to what circumstances might justify such taking as not being unlawful, nor as to how far an honest though mistaken belief that such circumstances as would justify the taking existed, might form an excuse, for as the Case is reserved we must take it as proved that the prisoner knew that the girl was in the possession of her father and that he took her knowing that he trespassed on the father's rights and had no colour of excuse for so doing.
The question, therefore, is reduced to whether the words in s. 55 of the Offences against the Person Act, 1861, that whosoever shall unlawfully take "any unmarried girl being under the age of sixteen, out of the possession of her father" are to be read as if they were "being under the age of sixteen, and he knowing she was under that age." No such words are contained in the statute, nor is there the word "maliciously," "knowingly," or any other word used that can be said to involve a similar meaning. The argument in favour of the prisoner must, therefore, entirely proceed on the ground that in general a guilty mind is an essential ingredient in a crime, and that where a statute creates a crime the intention of the legislature should be presumed to be to include "knowingly" in the definition of the crime, and the statute should be read as if that word were inserted, unless the contrary intention appears. We need not inquire at present whether the canon of construction goes quite so far as above stated, for we are of opinion that the intention of the legislature sufficiently appears to have been to punish the abductor unless the girl, in fact, was of such an age as to make her consent an excuse irrespective of whether he knew her to be too young to give an effectual consent, and to fix that age at sixteen.
The section in question is one of a series of enactments beginning with s. 50 forming a code for the protection of women and the guardians of young women. These enactments are taken with scarcely any alteration from the repealed statute, the Offences against the Person Act, 1828, which had collected them into a code from a variety of old statutes all repealed by it. Section 50 enacts that:
"Whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years, shall be guilty of felony."
By s. 51:
"Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years, shall be guilty of a misdemeanour."
It seems impossible to suppose that the intention of the legislature in those two sections could have been to make the crime depend upon the knowledge of the prisoner of the girl's actual age. It would produce the monstrous result that a man who had carnal connection with a girl in reality not quite ten years old, but whom he, on reasonable grounds, believed to be a little more than ten, was to escape altogether. He could not, in that view of the statute, be convicted of the felony, for he did not know her to be under ten. He could not be convicted of the misdemeanour because she was, in fact, not above the age of ten. It seems to us that the intention of the legislature was to punish those who had connection with young girls, though with their consent, unless the girl was, in fact, old enough to give a valid consent. The man who has connection with a child relying on her consent does it at his peril if she is below the statutable age.
Section 55, on which the present case arises, uses precisely the same words as those in ss. 50 and 51, and must be construed in the same way, and if we refer to the repealed statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557], from s. 3 of which the words in s. 55 are taken with very little alteration, it strengthens the inference that such was the intention of the legislature. The preamble states as the mischief aimed at, that female children, heiresses, and others having expectations, were, unawares of their friends, brought to contract marriages of disparagement "to the great heaviness of their friends," and then to remedy this enacts by the first section that it shall not be lawful for anyone to take an unmarried girl being under sixteen out of the custody of her father or the person to whom he either, by will or by act in his lifetime, gives the custody, unless it be bona fide done by or for the master or mistress of such child, or the guardian in chivalry or in socage of such child. This recognizes a legal right to the possession of the child depending on the real age of the child, and not on what appears. The object of the legislature, being as it appears by the preamble to protect this legal right to the possession, would be baffled if it was an excuse that the person guilty of the taking thought the child above sixteen. The words "unlawfully take" as used in s. 3 of 4 & 5 Phil. & Mary, e. 8 [Abduction Act, 1557], mean without the authority of the master, or mistress, or guardian mentioned in the immediately preceding section.
There is not much authority on the subject, but it is all in favour of this view. In R. v. Robins (1) ATCHERLY, SERJT., then acting as a judge of assize, so ruled (apparently though the report leaves it a little ambiguous) with the approval of TINDAL, C.J. In R. v. Olifier (2) BRAMWELL, B., so ruled at the Central Criminal Court, apparently arriving at the conclusion independently of R. v. Robins (1). In R. v. Mycock (5) WILLES, J., without R. v. Olifer (2) being brought to his notice, acted on R. v. Robins (1), saying that a person who took a young woman from the custody of her father, must take the consequences if she proved under age. And QUAIN, J., followed this decision in R. v. Booth (6). We think those rulings were right, and consequently that the conviction in the present case should stand.
BRETT, J. - In this case the prisoner was indicted under s. 55 of the Offences against the Person Act, 1861, for that he did unlawfully take an unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father. According to the statement of the Case, we are to assume that it was proved on the trial that he did take an unmarried girl out of the possession and against the will of her father, and that when he did so the girl was under the age of sixteen years. But the jury found that the girl went with the prisoner willingly, that she told the prisoner that she was eighteen years of age, that he believed that she was eighteen years of age, and that he had reasonable grounds for so believing.
The question is whether upon such proof and such findings of the jury, the prisoner ought or ought not, in point of law, to be pronounced guilty of the offence with which he was charged. He, in fact, did each and everything which is enumerated in the statute as constituting the offence to be punished, if what he did was done unlawfully within the meaning of the statute. If what he did was not unlawful within the meaning of the statute, it seems impossible to say that he ought to be convicted. The question, therefore, is whether the findings of the jury, which are in favour of the prisoner, prevent what he is proved to have done from being unlawful within the meaning of the statute. It cannot, as it seems to me, properly be assumed that what he did was unlawful within the meaning of the statute, for that is the very question to be determined. On the one side it is said that the prisoner is proved to have done every particular thing which is enumerated in the Act as constituting the offence to be punished, and that there is no legal justification for what he did, and, therefore, that it must be held, as matter of law, that what he did was unlawful within the meaning or the statute, and that the statute was, therefore, satisfied, and the crime completed. On the other side, it is urged, that if the facts had been as the prisoner believed them to be, and as by the findings of the jury he might reasonably believe them to be, and he was deceived into believing them to be, he would have been guilty of no criminal offence at all, and, therefore, that what he did was not criminally unlawful within the meaning of the criminal statute under which he was indicted.
It has been said that, even if the facts had been as the prisoner believed them to be, he would still have been doing a wrongful act. The first point, therefore, to be considered would seem to be what would have been the legal position of the prisoner, if the facts had been, as he believed them to be, that is to say: What is the legal position of a man who, without force, takes a girl of more than sixteen years of age, but less than twenty-one years of age, out of the possession of her father, and against his will? The statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557J has been said to recognise the legal right of a father to the possession of an unmarried daughter up to the age of sixteen. The statute 12 Car. 2, c. 24 [Tenures Abolition Act, 1660], seems to recognise the right of a father to such possession up to the age of twenty-one. MR. HARGRAVE in notes 12 and 15 to Co. LITT. 88 b, seems to deduce a right in the father to possession up to the age of twenty-one from those two statutes, and that such right is to be called in law a right jure naturae. If the father's right be infringed, he may apply for a habeas corpus. When the child is produced in obedience to such writ, issued upon the application of a father, if the child be under twenty-one, the general rule is that
"if [the child] be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of discretion would only expose him to dangers or seductions, the court must make an order for his being placed in the proper custody . . . and that undoubtedly is the custody of the father": LORD DENMAN, C.J., in R. v. Greenhill (7), 4 Ad. & EI. at p. 640.
But if the child be a female under sixteen, the court will order it to be handed over to the father, in the absence of certain objections to his custody, even though the child object to return to the father. If the child be between sixteen and twenty-one, and refuse to return to the father, the-court, even though the child be a female, gives to the child the election as to the custody in which it will be.
In R. v. Howe (8) COCKBURN, C.J., says (3 E. &E. at pp. 836, 837):
"Now the cases which have been decided on this subject show that, although a father is entitled to the custody of his children till they attain the age of twenty-one, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion, for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The legislature has given us a guide which we may safely follow in pointing out sixteen as the age up to which the father's right to the custody of his female child is to continue, and short of which such a child has no discretion to consent to leaving him."
But if a man takes out of her father's possession without force, and with her consent, a daughter between sixteen and twenty-one, the father would seem to have no legal remedy for such taking. It may be that the father, if present at the taking, might resist such taking by necessary force, so that to an action for assault by the man he might plead a justification. But for a mere taking, without seduction, there is no action which the father could maintain. There never was a writ applicable to such a cause of action. The writ of "ravishment of ward" was only to such as had the right to the marriage of the infant, and was, therefore, only applicable where the infant was an heir to property, whose marriage was, therefore, valuable to the guardian: see Ratcliff's Case (9). No such action now exists, and if it did, it would not be applicable to any female child, at all events, not to any who was heir apparent. Neither can a man who, with her consent, and without force, takes a daughter, who is more than sixteen years old, but less than twenty-one, out of her father's possession or custody, be indicted for such taking. There never has been such an indictment.
The statute 3 Hen. 7, c. 2 [Abduction of Women Act, 1487], was enacted against
"the taking any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, etc., be felony."
It was held in Lady Fulwood's Case (10), that the indictment must further charge that the defendant carried away the woman with intent to marry or defile her. Two things, therefore, were necessary which are not applicable to the point now under discussion, namely, that the taking should be against the will·of the person taken, and that there should be the intent to marry or defile. The statute 4 & 5 Phil. & Mary, c. 8 [Abduction Act, 1557], deals with the taking out of or from the possession, custody, or government of the father, etc., any maid or woman child, unmarried, being under the age of sixteen years. For a mere unlawful taking the punishment is imprisonment for two years; for a taking and marriage five years, and the girl if she be more than twelve years old, and consents to the marriage, forfeits her inheritance. The Offences against the Person Act, 1861, s. 19, is enacted against "the taking of a woman against her will with intent to marry or defile her," etc. The same statute, s. 20, is as to an unmarried girl being under the age of sixteen years. It follows from this review that if the facts had been as the prisoner, according to the finding of the jury believed them to be, he would have done no act which has ever been a criminal offence in England; he would have done no act in respect of which any civil action could have ever been maintained against him; he would have done no act for which, if done in the absence of the father, and done with the continuing consent of the girl, the father could have had any legal remedy.
We have, then, next to consider the terms of the statute, and what is the meaning in it of the word "unlawfully." The usual system of framing criminal Acts has been to specify each and every act intended to be subjected to any punishment (CRIMINAL LAW CONSOLIDATION ACTS, by GREAVES, Introduction, p. xli), and then in some way to declare whether the offence is to be considered as a felony or as a misdemeanour, and then to enact the punishment. It seems obvious that it is the prohibited acts which constitute the offence, and that the phraseology which indicates the class of the offence does not alter or affect the facts, or the necessary proof of those facts, which constitute the offence. There are several usual forms of criminal enactment. "If anyone shall, with such or such an intent, do such and such acts, he shall be guilty of felony, or misdemeanour, as the case may be." Whether the offence is declared to be a felony or a misdemeanour depends upon the view of the legislature as to its heinousness. But the class in which it is placed does not alter the proof requisite to support a charge of being guilty of it. Under such a form of enactment there must 00 proof that the acts were done, and done with the specified intent. Other forms are: "If anyone shall feloniously do such and such acts, he shall be liable to penal servitude," etc., or "if anyone shall unlawfully do such and such acts, he shall be liable to imprisonment," etc. The first of these forms makes the offence a felony by the use of the word "feloniously"; the second makes the offence a misdemeanour by the use of the word "unlawfully." The words are used to declare the class of the offence; but they denote also a part of that which constitutes the offence. They denote that which is equivalent to, though not the same as, the specific intent mentioned in the first form to which allusion has been made. Besides denoting the class of the offence, they denote that something more must be proved than merely that the prisoner did the prohibited acts. They do not necessarily denote that evidence need in the first instance be given of more than that the prisoner did the prohibited acts; but they do denote that the jury must find, as matter of ultimate proof, more than that the prisoner did the prohibited acts.
What is it that the jury must be satisfied is proved beyond merely that the prisoner did the prohibited acts? It is suggested that they must be satisfied that the prisoner did the acts "with a criminal mind"; that there was mens rea. The true meaning of that phrase is to be discussed hereafter. If it be true that this must be proved, the only difference between the second form and the first form of enactment is that in the first the intent is specified, but in the second it is left generally as a criminal state of mind. As between the two second forms the evidence either direct or inferential to prove the criminal state of mind must be the same. The proof of the state of mind is not altered or affected by the class in which the offence is placed.
Another common form of enactment is: "If any person knowingly, willfully, and maliciously do such or such acts, he shall be guilty of felony"; or "If any person knowingly and willfully do such or such acts he shall be guilty of misdemeanour"; or "if any person knowingly, willfully, and feloniously do such or such acts, he shall be liable," etc.; or "if he knowingly and unlawfully do such and such acts, he shall be liable," etc. The same explanation is to be given of all these forms as between each other as before. They are mere differences in form. And though they be all, or though several of them be in one consolidating statute, they are not to be construed by contrast.
"If any question should arise in which any comparison may be instituted between different sections of anyone or several of these Acts, it must be care- fully borne in mind in what manner these Acts were framed. None of them was rewritten; on the contrary, each contains enactments taken from different Acts passed at different times, and with different views, and frequently varying from each other in phraseology, and for the reasons stated in the introduction, these enactments, for the most part, stand in these Acts with little or no variation in their phraseology, and, consequently, their differences in that respect will be found generally to remain in these Acts. It follows, therefore, from hence, that any argument as to a difference in the intention of the legislature which may be drawn from a difference in the terms of one clause from those in another, will be entitled to no weight in the construction of such clauses; for that argument can only apply with force where an Act is framed from beginning to end with one and the same view, and with the intention of making it thoroughly consistent throughout"; GREAVES ON CRIMINAL LAW CONSOLIDATION ACTS, p. 3.
I have said that as between each other the same explanation is to be given of these latter forms of enactments as of the former mentioned in this judgment. But as between these latter and the former forms there is the introduction in the latter of such words as knowingly, willfully, maliciously. Willfully is more generally applied when the prohibited acts are in their natural consequences, not necessarily or very probably, noxious to the public interest, or to individuals, so that an evil mind is not the natural inference or consequence to be drawn from the doing of the acts. The presence of the word requires somewhat more evidence on the part of the prosecution to make out a prima facie case, than evidence that the prisoner did the prohibited acts. So as to the word "maliciously." It is used where the prohibited acts mayor may not be such as in themselves import, prima facie, a malicious mind. In the same way the word "knowingly" is used where the noxious character of the prohibited acts depends upon a knowledge in the prisoner of their noxious effect, other than the mere knowledge that he is doing the acts; the presence of the word calls for more evidence on the part of the prosecution. But the absence of the word does not prevent the prisoner from proving to the satisfaction of the jury, that the mens rea to be prima facie inferred from his doing the prohibited acts, did not in fact exist.
In R. v. Marsh (11) the measure of the effect of the presence in the enactment of the word "knowingly," is explained. The information and conviction were against a carrier for having game in his possession, contrary to the statute 5 Anne, c. 14, which declared
"that any carrier having game in his possession is guilty of an offence, unless it be sent by a qualified person."
The only evidence given was that the defendant was a carrier, and that he had game in his wagon on the road. It was objected that there was no evidence that the defendant knew of the presence of the game, or that the person who sent it was not a qualified person. The judges held that there was sufficient prima facie evidence, and that it was not rebutted by the defendant by sufficient proof on his part of the ignorance suggested on his behalf. The judgments clearly import that if the defendant could have satisfied the jury of his ignorance, it would have been a defence, though the word "knowingly" was not in the statute. In other words, that its presence or absence in the statute, only alters the burden of proof.
BAYLEY, J., said (2 B. & C. at p. 722):
"Then, as to knowledge, the clause itself says nothing about it. If that had been introduced, evidence to establish knowledge must have been given on the part of the prosecution j but under this enactment the party charged must show a degree of ignorance sufficient to excuse him. Here there was prima facie evidence that the game was in his possession as carrier. Then it lay on the defendant to rebut that evidence."
LITTLEDALE, J., said (ibid, at pp. 723, 724):
"The game was found in his wagon employed in the course of his business as a carrier. That raises a presumption prima facie that he knew it, and that is not rebutted by the evidence given on the part of the defendant."
From these considerations of the forms of criminal enactments, it would seem that the ultimate proof necessary to authorise a conviction is not altered by the presence or absence of the word "knowingly," though by its presence or absence the burden of proof is altered and it would seem that there must be proof to satisfy a jury ultimately that there was a criminal mind or mens rea in every offence really charged as a crime. In some enactments, or common law maxims of crime, and, therefore, in the indictments charging the committal of those crimes, the name of the crime imports that a mens rea must be proved, as in murder, burglary, etc. In some the mens rea is contained in the specific enactment as to the intent, which is made a part of the crime. In some the word "feloniously" is used, and in such cases it has never been doubted but that a felonious mind must ultimately be found by the jury. In enactments in a similar form, but in which the prohibited acts are to be classed as a misdemeanour, the word "unlawfully" is used, instead of the word "feloniously." What reason is there why in like manner a criminal mind or mens rea must not ultimately be found by the jury in order to justify a conviction, the distinction always being observed that in some cases the proof of the committal of the acts may prima facie, either by reason of their own nature, or by reason of the form of the statute, import the proof of the mens rea. But even in those cases it is open to the prisoner to rebut the prima facie evidence, so that if in the end the jury are satisfied that there was no criminal mind or mens rea there cannot be a conviction in England for that which is by the law considered to be a crime.
There are enactments which by their form seem to constitute the prohibited acts into crimes, and yet by virtue of which enactments the defendants charged with the committal of the prohibited acts have been convicted in the absence of the knowledge or intention supposed necessary to constitute a mens rea. Such are the cases of trespass in pursuit of game, or of piracy of literary or dramatic works, or of the statutes passed to protect the revenue. But the decisions have been based upon the judicial declaration that the enactments do not constitute the prohibited acts into crime, or offences against the Crown, but only prohibit them for the purpose of protecting the individual interests of individual persons, or of the revenue. Thus in Lee v. Simpson (12), in an action for penalties for the representation of a dramatic piece, it was held that it was not necessary to show that the defendant knowingly invaded the plaintiff's right. But the reason of the decision given by WILDE, C.J. (3 C.B. at p. 883), is:
"The object of the legislature was to protect authors against the piratical invasion of their rights. In the sense of having committed an offence against the Act, of having done a thing that is prohibited, the defendant is an offender. But the plaintiff's rights do not depend upon the innocence or guilt of the defendant."
So the decision in Morden v. Porter (13) seems to be made to turn upon the view that the statute was passed in order to protect the individual property of the landlord in game reserved to him by his lease against that which is made a statutory trespass against him, although his land is in the occupation of his tenant. There are other cases in which the ground of decision is that specific evidence of knowledge or intention need not be given, because the nature of the prohibited acts is such that, if done, they must draw with them the inference that they were done with the criminal mind or intent, which is a part of every crime. Such is the case of the possession and distribution of obscene books. If a man possesses them and distributes them, it is a necessary inference that he must have intended that their first effect must be that which is prohibited by statute, and that he cannot protect himself by showing that his ultimate object or secondary intent was not immoral: R. v. Hicklin. (14). This and similar decisions go rather to show what is mens rea than to show whether there can or cannot be a conviction for crime proper without mens rea.
As to that last question, it has become very necessary to examine the authorities. In BLACKSTONE'S COMMENTARIES, by STEPHEN (2nd Edn.), vol. 4, book vi., OF CRlMES, p. 98, it is said:
"And as a vicious will, without a vicious act, is no civil crime, so, on the other hand, an unwarrantable act without a vicious will, is no crime at all. So that to constitute a crime against human laws there must be - first, a vicious will, and secondly, an unlawful act, consequent upon such vicious will. Now, there are three cases in which the will does not join with the act - first, where there is a defect of understanding, etc.; secondly, where there is understanding and will sufficient residing in the party, but not called forth and exerted at the time of the action done, which is the case of all offenses committed by chance or ignorance. Here the will sits neuter, and neither concurs with the act nor disagrees to it."
And at p. 105:
"Ignorance or mistake is another defect of will, when a man intending to do a lawful act does that which is unlawful. For here the deed and the will, acting separately, there is not that conjunction between them which is necessary to form a criminal act. But this must be an ignorance or mistake in fact, and not an error in point of law. As if a man, intending to kill a thief or house. breaker in his own house, by mistake kills one of his family, this is no crime. nal action; but if a man thinks he has a right to kill a person excommunicated or outlawed, wherever he meets him, and does so, this is willful murder."
In Fowler v. Padget (15), the jury found that they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors; but that delay did actually happen to some creditors. LORD KENYON said (7 Term Rep. at p. 514):
"Bankruptcy is considered as a crime, and the bankrupt in the old laws is called an offender, but it is a principle of natural justice and of our law, that actus non facit reum, nisi mens sit rea. The interest and the act must both concur to constitute the crime."
Again:
"I would adopt any construction of the statute that the words will bear, in order to avoid such monstrous consequences as would manifestly ensue from the construction contended for."
In Hearne v. Garton (16), the respondents were charged upon an information for I having sent oil of vitriol by the Great Western Railway without marking or stating the nature of the goods. By the Great Western Railway Act, 1885 [a private Act], s. 168, every person who shall send, or cause to be sent by railway any oil of vitriol, shall distinctly mark or state the nature of such goods on penalty of being fined or imprisoned. By s. 206, such penalty is recoverable in a summary way before justices, with power to imprison, etc. The respondents had sent oil of vitriol unmarked, but the justices found that there was no guilty knowledge, but, on the contrary, the respondents acted under the full belief that the goods were correctly described, and had previously used all proper diligence to inform themselves of the fact. They refused to convict. It must be observed in that case, as in the present, the respondents did the prohibited acts, and that in that case as in this, it was found as the ultimate proof that they were deceived into the belief of a different and non-criminal state of facts, and had used all proper diligence. The case is stronger perhaps than the present by reason of the word "unlawfully" being absent from that statute. The court upheld the decision of the magistrates, holding that the statute made the doing of the prohibited acts a crime, and, therefore, that there must be a criminal mind, which there was not. LORD CAMPBELL, C.J., said (2 E. & E. at p. 74):
"As to the latter reason, I think the justices were perfectly right: actus non facit reum, nisi mens sit rea. The act with which the respondents were charged is an offence created by statute, for which the person committing it is liable to a penalty or to imprisonment. Not only was there no proof of guilty knowledge on the part of the respondents, but the presumption of a guilty knowledge on their part, if any could be raised, was rebutted by the proof that a fraud had been practised on them. I am inclined to think they were civilly liable..."
ERLE, J., said (ibid. at pp. 75, 76):
"I was inclined to think, at first, that the provision was merely protective, but if it create a criminal offence, which I am not prepared to deny, then the mere sending by the respondents, without a guilty knowledge on their part, would not render them criminally liable although as they took Nicholas's word for the contents of the parcels . . . they would be civilly liable . . . "
In Taylor v. Newman (17) the information was under s. 23 of the Larceny Act, 1861, which provides: "Whosoever shall unlawfully and willfully kill . . . any pigeon," etc. The appellant shot on his farm pigeons belonging to a neighbour. The justices convicted on the ground that the appellant was not justified by law in killing the pigeons, and, therefore, that the killing was unlawful. In other words, they held that the only meaning of "unlawful," in the statute, was without legal justification. The court set aside the conviction, MELLOR, J., saying (4 B. & S. at p. 94):
"I think that [the statute] was not intended to apply to a case in which there was no guilty mind, and where the act was done by person under the honest belief that he was exercising a right."
In Buckmaster v. Reynolds (18), an information was laid for unlawfully, by a certain contrivance, attempting to obstruct or prevent the purposes of an election of a vestry. The evidence was that the defendant did obstruct the election because he forced himself and others into the room before eight o’clock, believing that eight o'clock was past. The question asked was whether an intentional obstruction by actual violence was an offence, etc. This question the court answered in the affirmative, so that there, as here, the defendant had done the prohibited acts.
But ERLE, J., continued:
"I accompany this statement [i.e., the answer to the question] by a statement that upon the facts set forth, I am unable to see that the magistrate has come to a wrong conclusion. A man cannot be said to be guilty of a delict unless, to some extent, his mind goes with the act. Here it seems that the respondent acted on the belief that he had a right to enter the room, and that he had no intention to do a wrongful act."
In R. v. Hibbert (19) the prisoner was indicted under the section now in question. The girl, who lived with her father and mother, left her home in company with another girl to go to a Sunday school. The prisoner. met the two girls, and induced them to go to Manchester. At Manchester he took them to a public house, and there seduced the girl in question, who was under sixteen. The prisoner made no inquiry, and did not know who the girl was or whether she had a father or mother living or not, but he had no reason to, and did not believe, that she was a girl of the town. The jury found the prisoner guilty, and LUSH, J., reserved the case. In the Court for Crown Cases Reserved, BOVILL, C.J., CHANNELL and PIGOTT, BB., BYLES and LUSH, JJ., quashed the conviction. BOVILL, C.J., said (L.R. 1 C.C.R. at p. 185):
"In the present case there is no statement of any finding of fact that the prisoner knew, or had reason to believe, that the girl was under the lawful care or charge of her father or mother, or any other person. In the absence of any finding of fact on this point the conviction cannot be supported."
This case was founded on R. v. Green (20) before MARTIN, B. The girl there was under fourteen, and lived with her father, a fisherman, at Southend. The prisoners saw her in the street by herself, and induced her to go with them; they took her to a lonely house, and there Green had criminal intercourse with her. MARTIN, B., directed an acquittal. He said (3 F. &F. at pp. 274, 275):
"There must be a taking out of the possession of the father. Here the prisoners picked up the girl in the streets, and for anything that appeared they might not have known that the girl had a father. The girl was not taken out of the possession of anyone. The prisoners no doubt had done a very immoral, but the question was whether they had committed an illegal, act. The criminal law ought not to be strained to meet a case which did not come within it. The act of the prisoners was scandalous, but it was not any legal offence."
In each of these cases the girl was surely in the legal possession of her father. The mere fact of her being in the street at the time could not possibly prevent her from being in the possession of her father. Everything, therefore, prohibited was done by the prisoner in fact. But in each case the ignorance of facts was held to prevent the case from being the crime to be punished.
In R. v. Tinkler (21), in a case under this section, COCKBURN, C.J., charged the jury thus (1 F. & F. at p. 514):
"It was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes's custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise, which he alleged he had made to her father, and that he did not suppose that he was breaking the law when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal."
The jury found the prisoner Not Guilty. In R. v. Sleep (4), the prisoner had possession of government stores, some of which were marked with the broad arrow. The jury, in answer to a question whether the prisoner knew that the copper, or any part of it, was marked, answered: "We have not sufficient evidence before us to show that he knew it." The Court for Crown Cases Reserved held that the prisoner could not be convicted. COCKBURN, C.J., said (8 Cox, C.C. at pp. 477, 478):
"Actus non facit reum, nisi mens sit rea, is the foundation of all criminal justice ... The ordinary principle that there must be a guilty mind to constitute a guilty act, applies to this case, and must be imported into this statute, as it was held in R. v. Cohen (22), where the conclusion of the law was stated by HILL, J., with his usual clearness and power. It is true that the statute says nothing about knowledge, but this must be imported into the statute."
POLLOCK, C.B., MARTIN, CROMPTON, and WILLES, JJ., agreed. In R. v. Robins (I), and R. v. Olifier (2), there was hardly such evidence as was given in this case as to the prisoner being deceived as to the age of the girl and having reasonable ground to believe the deception, and there certainly were no findings by the jury equivalent to the findings in this case. In R. v. Forbes and Webb (3), where the charge was one of assaulting a police constable in the execution of his duty, although the policeman in plain clothes, the prisoner certainly had strong ground to suspect, if not to believe, that he was a policeman, for the Case states that persons repeatedly called out to rescue the boy and pitch into the constable.
Upon all the cases I think it is proved that there can be no conviction for crime in England in the absence of a criminal mind or mens rea. Then comes the question: What is the true meaning of the phrase? I do not doubt that it exists where the prisoner knowingly does acts which would constitute a crime if the result were as he anticipated, but in which the result may not improbably end in bringing the offence within a more serious class of crime. As if a man strike with a dangerous weapon with intent to do grievous bodily harm and kills. The result makes the crime murder; the prisoner has run the risk. So, if a prisoner do the prohibited acts without caring to consider what the truth is as to facts, as if a prisoner were to abduct a girl under sixteen without caring to consider whether she was in truth under sixteen, he runs the risk. So, if he without abduction defiles a girl who is in fact under ten years old, with a belief that she is between ten and twelve, if the facts were as he believed he would be committing the lesser crime. Then he runs the risk of his crime resulting in the greater crime. It is clear that ignorance of the law does not excuse. It seems to me to follow that the maxim as to mens rea applies whenever the facts which are present to the prisoner's mind, and which he has reasonable ground to believe, and does believe to be the facts, would, if true, make his acts no criminal offence at all. It may be true to say that the meaning of the word "unlawfully" is without justification or excuse. I, of course, agree that, if there be a legal justification, there can be no crime, but, I come to the conclusion that a mistake of fact on reasonable grounds, to the extent that, if the facts were as believed, the acts of the prisoner would make him guilty of no criminal offence at all, is an excuse, and that such excuse is implied in every criminal charge and every criminal enactment in England. I agree with LORD KENYON that "such is our law," and with COCKBURN, C.J., that "such is the foundation of all criminal justice. "
DENMAN, J.-The defendant was indicted under s. 55 of the Offences against the Person Act, 1861. I cannot hold that the word, "unlawfully" is an immaterial word in an indictment framed upon this section. I think that it must be taken to have a meaning, and an important meaning, and to be capable of being either supported or negatived by evidence upon the trial: see R. v. Turner and Reader (23); R. v. Ryan and Connor (24). In the present case the jury found that the defendant had done everything requisite to bring himself within the section as a misdemeanant, unless the fact that he bona fide and reasonably believed the girl taken by him to be eighteen years old constituted a defence. That is, in other words, unless such bona fide reasonable belief prevented them from saying that the defendant, in what he did, acted unlawfully within the meaning of the section. The question, therefore, is whether upon this finding of the jury the defendant did "unlawfully," etc., the things which they found him to have done. The solution of this question depends upon the meaning of the word "unlawfully" in s. 55. If it means "with a knowledge or belief that every single thing mentioned in the section existed at the moment of the taking," undoubtedly the defendant would be entitled to an acquittal, because he did not believe that a girl under sixteen was being taken by him at all. If it only means without lawful excuse or justification, then a further question arises, viz., whether the defendant had any lawful excuse or justification for doing all the acts mentioned in the section as constituting the offence, by reason merely that he bona fide and reasonably believed the girl to be older than the age limited by the section. Bearing in mind the previous enactments relating to the abduction of girls under sixteen, the Abduction Act, 1557, s. 2, and the general decisions upon those enactments and upon the present statute, looking at the mischief intended to be guarded against, and for the reasons given in the judgments of BRAMWELL, B., and BLACKBURN, J., it appears to me reasonably clear that the word "unlawfully" in the true sense in which it was used, is fully satisfied by holding that it is equivalent to the words "without lawful excuse," using those words as equivalent to without such an excuse as, being proved, would be a complete legal justification for the act, even where all the facts constituting the offence exist. Cases may easily be suggested where such a defence might be made out; as, for instance, if it were proved that the prisoner had the authority of a court of competent jurisdiction, or of some legal warrant, or that he acted to prevent some illegal violence, not justified by the relation of parent and child, or schoolmistress or other custodian, and requiring forcible interference by way of protection.
In the present case the jury find that the defendant believed the girl to be eighteen years of age. Even if she had been of that age she would have been in the lawful care and charge of her father as her guardian by nature: see Co. LITT. 88b, n. 12, 19th Edn., recognised in R. v. Howes (8). Her father had a right to her personal custody up to the age of twenty-one, and to appoint a guardian by deed or will whose right to her personal custody would have extended up to the same age. The belief that she was eighteen would be no justification to the defendant for taking her out of his possession and against his will. By taking her, even with her own consent, he must at least have been guilty of aiding and abetting her in doing an unlawful act - viz., in escaping against the will of her natural guardian from his lawful care and charge. This, in my opinion, leaves him wholly without lawful excuse or justification for the act he did, even though he believed that the girl was eighteen; and, therefore, unable to allege that what he had done was not unlawfully done within the meaning of the section. In other words, having knowingly done a wrongful act, viz., in taking the girl away from the lawful possession of her father against her will and in violation of his rights as guardian by nature, he cannot be heard to say that he thought the girl was of an age beyond that limited by the statute for the offence charged against him. He had wrongfully done the very thing contemplated by the legislature. He had wrongfully and knowingly violated the father's rights against the father's will, and he cannot set up a legal defence by merely proving that he thought he was committing a different kind of wrong from that which in fact he was committing.
Conviction affirmed.
[Reported by JOHN THOMPSON, ESQ., Barrister-at-Law.]
7.2.8.2.3.6 Oliver Wendell Holmes, Jr. - "The Path of the Law" 7.2.8.2.3.6 Oliver Wendell Holmes, Jr. - "The Path of the Law"
"The Path of the Law"
by
Oliver Wendell Holmes, Jr.
10 Harvard Law Review 457 (1897)
When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.
The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer's statement of a case, eliminating as it does all the dramatic elements with which his client's story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.
The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished.
I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained.
The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.
I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider — a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones.
The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains — the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. In both cases the party taking another man's property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. If it matters at all, still speaking from the bad man's point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law.
Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him. In Bromage v. Genning, a prohibition was sought in the Kings' Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclusion.
I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. But I hardly think it advisable to shape general theory from the exception, and I think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms.
I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts — to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox's Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. The man was alive and chanced to hear the sermon, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant's conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant's attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm.
In the law of contract the use of moral phraseology led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual's mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other's assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties' having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another — to sight or to hearing — on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. If it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person.
This is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. Of the first of these I have said enough. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.
So much for the limits of the law. The next thing which I wish to consider is what are the forces which determine its content and its growth. You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose.
The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.
This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer's "Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors."
Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighborhood? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus.
Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum.
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.
So much for the fallacy of logical form. Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. We still are far from the point of view which I desire to see reached. No one has reached it or can reach it as yet. We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. Imitation is a necessity of human nature, as has been illustrated by a remarkable French writer, M. Tard, in an admirable book, Les Lois de l'Imitation. Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. The reason is a good one, because our short life gives us no time for a better, but it is not the best. It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. He is content if he can prove them best for here and now. He may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.
At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. I am thinking of the technical rule as to trespass ab initio, as it is called, which I attempted to explain in a recent Massachusetts case.
Let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and only partially attained in consequence of the fact that the rule owes its form to a gradual historical development, instead of being reshaped as a whole, with conscious articulate reference to the end in view. We think it desirable to prevent one man's property being misappropriated by another, and so we make larceny a crime. The evil is the same whether the misappropriation is made by a man into whose hands the owner has put the property, or by one who wrongfully takes it away. But primitive law in its weakness did not get much beyond an effort to prevent violence, and very naturally made a wrongful taking, a trespass, part of its definition of the crime. In modem times the judges enlarged the definition a little by holding that, if the wrong-doer gets possession by a trick or device, the crime is committed. This really was giving up the requirement of trespass, and it would have been more logical, as well as truer to the present object of the law, to abandon the requirement altogether. That, however, would have seemed too bold, and was left to statute. Statutes were passed making embezzlement a crime. But the force of tradition caused the crime of embezzlement to be regarded as so far distinct from larceny that to this day, in some jurisdictions at least, a slip corner is kept open for thieves to contend, if indicted for larceny, that they should have been indicted for embezzlement, and if indicted for embezzlement, that they should have been indicted for larceny, and to escape on that ground.
Far more fundamental questions still await a better answer than that we do as our fathers have done. What have we better than a blind guess to show that the criminal law in its present form does more good than harm? I do not stop to refer to the effect which it has had in degrading prisoners and in plunging them further into crime, or to the question whether fine and imprisonment do not fall more heavily on a criminal's wife and children than on himself. I have in mind more far-reaching questions. Does punishment deter? Do we deal with criminals on proper principles? A modern school of Continental criminalists plumes itself on the formula, first suggested, it is said, by Gall, that we must consider the criminal rather than the crime. The formula does not carry us very far, but the inquiries which have been started look toward an answer of my questions based on science for the first time. If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite, it is idle to talk of deterring him by the classical method of imprisonment. He must be got rid of; he cannot be improved, or frightened out of his structural reaction. If, on the other hand, crime, like normal human conduct, is mainly a matter of imitation, punishment fairly may be expected to help to keep it out of fashion. The study of criminals has been thought by some well known men of science to sustain the former hypothesis. The statistics of the relative increase of crime in crowded places like large cities, where example has the greatest chance to work, and in less populated parts, where the contagion spreads more slowly, have been used with great force in favor of the latter view. But there is weighty authority for the belief that, however this may be, "not the nature of the crime, but the dangerousness of the criminal, constitutes the only reasonable legal criterion to guide the inevitable social reaction against the criminal."
The impediments to rational generalization, which I illustrated from the law of larceny, are shown in the other branches of the law, as well as in that of crime. Take the law of tort or civil liability for damages apart from contract and the like. Is there any general theory of such liability, or are the cases in which it exists simply to be enumerated, and to be explained each on its special ground, as is easy to believe from the fact that the right of action for certain well known classes of wrongs like trespass or slander has its special history for each class? I think that the law regards the infliction of temporal damage by a responsible person as actionable, if under the circumstances known to him the danger of his act is manifest according to common experience, or according to his own experience if it is more than common, except in cases where upon special grounds of policy the law refuses to protect the plaintiff or grants a privilege to the defendant. I think that commonly malice, intent, and negligence mean only that the danger was manifest to a greater or less degree, under the circumstances known to the actor, although in some cases of privilege malice may mean an actual malevolent motive, and such a motive may take away a permission knowingly to inflict harm, which otherwise would be granted on this or that ground of dominant public good. But when I stated my view to a very eminent English judge the other day, he said, "You are discussing what the law ought to be; as the law is, you must show a right. A man is not liable for negligence unless he is subject to a duty." If our difference was more than a difference in words, or with regard to the proportion between the exceptions and the rule, then, in his opinion, liability for an act cannot be referred to the manifest tendency of the act to cause temporal damage in general as a sufficient explanation, but must be referred to the special nature of the damage, or must be derived from some special circumstances outside of the tendency of the act, for which no generalized explanation exists. I think that such a view is wrong, but it is familiar, and I dare say generally is accepted in England.
Everywhere the basis of principle is tradition, to such an extent that we even are in danger of making the role of history more important than it is. The other day Professor Ames wrote a learned article to show, among other things, that the common law did not recognize the defence of fraud in actions upon specialties, and the moral might seem to be that the personal character of that defence is due to its equitable origin. But if, as I said, all contracts are formal, the difference is not merely historical, but theoretic, between defects of form which prevent a contract from being made, and mistaken motives which manifestly could not be considered in any system that we should call rational except against one who was privy to those motives. It is not confined to specialties, but is of universal application. I ought to add that I do not suppose that Mr. Ames would disagree with what I suggest.
However, if we consider the law of contract, we find it full of history. The distinctions between debt, covenant, and assumpsit are merely historical. The classification of certain obligations to pay money, imposed by the law irrespective of any bargain as quasi contracts, is merely historical. The doctrine of consideration is merely historical. The effect given to a seal is to be explained by history alone. Consideration is a mere form. Is it a useful form? If so, why should it not be required in all contracts? A seal is a mere form, and is vanishing in the scroll and in enactments that a consideration must be given, seal or no seal. Why should any merely historical distinction be allowed to affect the rights and obligations of business men?
Since I wrote this discourse I have come on a very good example of the way in which tradition not only overrides rational policy, but overrides it after first having been misunderstood and having been given a new and broader scope than it had when it had a meaning. It is the settled law of England that a material alteration of a written contract by a party avoids it as against him. The doctrine is contrary to the general tendency of the law. We do not tell a jury that if a man ever has lied in one particular he is to be presumed to lie in all. Even if a man has tried to defraud, it seems no sufficient reason for preventing him from proving the truth. Objections of like nature in general go to the weight, not to the admissibility, of evidence. Moreover, this rule is irrespective of fraud, and is not confined to evidence. It is not merely that you cannot use the writing, but that the contract is at an end. What does this mean? The existence of a written contract depends on the fact that the offerer and offeree have interchanged their written expressions, not on the continued existence of those expressions. But in the case of a bond, the primitive notion was different. The contract was inseparable from the parchment. If a stranger destroyed it, or tore off the seal, or altered it, the obligee could not recover, however free from fault, because the defendant's contract, that is, the actual tangible bond which he had sealed, could not be produced in the form in which it bound him. About a hundred years ago Lord Kenyon undertook to use his reason on the tradition, as he sometimes did to the detriment of the law, and, not understanding it, said he could see no reason why what was true of a bond should not be true of other contracts. His decision happened to be right, as it concerned a promissory note, where again the common law regarded the contract as inseparable from the paper on which it was written, but the reasoning was general, and soon was extended to other written contracts, and various absurd and unreal grounds of policy were invented to account for the enlarged rule.
I trust that no one will understand me to be speaking with disrespect of the law, because I criticise it so freely. I venerate the law, and especially our system of law, as one of the vastest products of the human mind. No one knows better than I do the countless number of great intellects that have spent themselves in making some addition or improvement, the greatest of which is trifling when compared with the mighty whole. It has the final title to respect that it exists, that it is not a Hegelian dream, but a part of the lives of men. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart.
Perhaps I have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. In the teaching of this school and at Cambridge it is in no danger of being undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there have made important contributions which will not be forgotten, and in England the recent history of early English law by Sir Frederick Pollock and Mr. Maitland has lent the subject an almost deceptive charm. We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect.
There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and textbooks. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen's Criminal Law on the subject of possession, and then turning to Pollock and Wright's enlightened book. Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock's recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models.
The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse — the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title De Regulis Juris Antiqui can be read in an hour. I assume that, if it is well to study the Roman Law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must explained. If any one doubts me, let him read Keller's Der Romische Civil Process und die Actionen, a treatise on the praetor's edict, Muirhead's most interesting Historical Introduction to the Private Law of Rome, and, to give him the best chance, Sohn's admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.
We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant's agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant's counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man's mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.
I have been speaking about the study of the law, and I have said next to nothing about what commonly is talked about in that connection — textbooks and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, "For lack of imagination, five dollars." The lack is not confined to valets. The object of ambition, power, generally presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. "The fortune," said Rachel, "is the measure of intelligence." That is a good text to waken people out of a fool's paradise. But, as Hegel says, "It is in the end not the appetite, but the opinion, which has to be satisfied." To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr. Leslie Stephen's History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.
7.2.8.2.3.7 Garnett v. State 7.2.8.2.3.7 Garnett v. State
RAYMOND LENNARD GARNETT
v.
STATE OF MARYLAND.
Court of Appeals of Maryland.
Michael R. Braudes, Asst. Public Defender (Stephen E. Harris, Public Defender) both on brief, Baltimore, for appellant.
Ann N. Bosse, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen.), both on brief, Baltimore, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
MURPHY, Chief Judge.
Maryland's "statutory rape" law prohibiting sexual intercourse with an underage person is codified in Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463, which reads in full:
"Second degree rape.
(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; or
(2) Who is mentally defective, mentally incapacitated, or physically helpless, and the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless; or
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.
(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years."
Subsection (a)(3) represents the current version of a statutory provision dating back to the first comprehensive codification of the criminal law by the Legislature in 1809.[1] Now we consider whether under the present statute, the State must prove that a defendant knew the complaining witness was younger than 14 and, in a related question, whether it was error at trial to exclude evidence that he had been told, and believed, that she was 16 years old.
I
Raymond Lennard Garnett is a young retarded man. At the time of the incident in question he was 20 years old. He has an I.Q. of 52. His guidance counselor from the Montgomery County public school system, Cynthia Parker, described him as a mildly retarded person who read on the third-grade level, did arithmetic on the 5th-grade level, and interacted with others socially at school at the level of someone 11 or 12 years of age. Ms. Parker added that Raymond attended special education classes and for at least one period of time was educated at home when he was afraid to return to school due to his classmates' taunting. Because he could not understand the duties of the jobs given him, he failed to complete vocational assignments; he sometimes lost his way to work. As Raymond was unable to pass any of the State's functional tests required for graduation, he received only a certificate of attendance rather than a high-school diploma.
In November or December 1990, a friend introduced Raymond to Erica Frazier, then aged 13; the two subsequently talked occasionally by telephone. On February 28, 1991, Raymond, apparently wishing to call for a ride home, approached the girl's house at about nine o'clock in the evening. Erica opened her bedroom window, through which Raymond entered; he testified that "she just told me to get a ladder and climb up her window." The two talked, and later engaged in sexual intercourse. Raymond left at about 4:30 a.m. the following morning. On November 19, 1991, Erica gave birth to a baby, of which Raymond is the biological father.
Raymond was tried before the Circuit Court for Montgomery County (Miller, J.) on one count of second degree rape under § 463(a)(3) proscribing sexual intercourse between a person under 14 and another at least four years older than the complainant. At trial, the defense twice proffered evidence to the effect that Erica herself and her friends had previously told Raymond that she was 16 years old, and that he had acted with that belief. The trial court excluded such evidence as immaterial, explaining:
"Under 463, the only two requirements as relate to this case are that there was vaginal intercourse, [and] that ... Ms. Frazier was under 14 years of age and that ... Mr. Garnett was at least four years older than she.
"In the Court's opinion, consent is no defense to this charge. The victim's representation as to her age and the defendant's belief, if it existed, that she was not under age, what amounts to what otherwise might be termed a good faith defense, is in fact no defense to what amount[s] to statutory rape.
"It is in the Court's opinion a strict liability offense."
The court found Raymond guilty. It sentenced him to a term of five years in prison, suspended the sentence and imposed five years of probation, and ordered that he pay restitution to Erica and the Frazier family. Raymond noted an appeal; we granted certiorari prior to intermediate appellate review by the Court of Special Appeals to consider the important issue presented in the case, 329 Md. 601, 620 A.2d 940.
II
In 1975 the Legislative Council of the General Assembly established the Special Committee on Rape and Related Offenses, which proposed a complete revision of Maryland law pertaining to rape and other sex crimes. See generally J. William Pitcher, Rape and Other Sexual Offense Law Reform in Maryland 1976-1977, 7 U.Balt.L.Rev. 151 (1977). Based on the Committee's work, Senate Bill 358 was introduced, amended, and enacted on May 17, 1976, as ch. 573 of the Acts of 1976. In part, it repealed the common law crime of rape, the former statutory prohibition of carnal knowledge of underage girls, and other related crimes and replaced them with the current array of criminal laws delineating two degrees of rape and four degrees of sexual offenses. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-5 and Code, Art. 27, §§ 462-464C; see also Richard P. Gilbert & Charles E. Moylan, Jr., Maryland Criminal Law: Practice and Procedure 65-66, 68-81 (1983).
The new legislation reformulated the former statutory rape law by introducing the element of a four-year age difference between the accused and the underage complainant. Report of the Senate Judicial Proceedings Committee, at 2. As originally enacted by ch. 573 of the Acts of 1976, sexual intercourse with a person under 14 by an actor more than four years older was classified as rape in the first degree, and carried a maximum penalty of life imprisonment. The Legislature, by ch. 292 of the Acts of 1977, reduced the crime to rape in the second degree carrying a maximum sentence of 20 years in prison. These reforms of 1976 and 1977 created the law now embodied in § 463(a)(3).
Section 463(a)(3) does not expressly set forth a requirement that the accused have acted with a criminal state of mind, or mens rea. The State insists that the statute, by design, defines a strict liability offense, and that its essential elements were met in the instant case when Raymond, age 20, engaged in vaginal intercourse with Erica, a girl under 14 and more than 4 years his junior. Raymond replies that the criminal law exists to assess and punish morally culpable behavior. He says such culpability was absent here. He asks us either to engraft onto subsection (a)(3) an implicit mens rea requirement, or to recognize an affirmative defense of reasonable mistake as to the complainant's age. Raymond argues that it is unjust, under the circumstances of this case which led him to think his conduct lawful, to brand him a felon and rapist.
III
Raymond asserts that the events of this case were inconsistent with the criminal sexual exploitation of a minor by an adult. As earlier observed, Raymond entered Erica's bedroom at the girl's invitation; she directed him to use a ladder to reach her window. They engaged voluntarily in sexual intercourse. They remained together in the room for more than seven hours before Raymond departed at dawn. With an I.Q. of 52, Raymond functioned at approximately the same level as the 13-year-old Erica; he was mentally an adolescent in an adult's body. Arguably, had Raymond's chronological age, 20, matched his socio-intellectual age, about 12, he and Erica would have fallen well within the four-year age difference obviating a violation of the statute, and Raymond would not have been charged with any crime at all.
The precise legal issue here rests on Raymond's unsuccessful efforts to introduce into evidence testimony that Erica and her friends had told him she was 16 years old, the age of consent to sexual relations, and that he believed them. Thus the trial court did not permit him to raise a defense of reasonable mistake of Erica's age, by which defense Raymond would have asserted that he acted innocently without a criminal design. At common law, a crime occurred only upon the concurrence of an individual's act and his guilty state of mind. Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041 (1988). In this regard, it is well understood that generally there are two components of every crime, the actus reus or guilty act and the mens rea or the guilty mind or mental state accompanying a forbidden act. The requirement that an accused have acted with a culpable mental state is an axiom of criminal jurisprudence. Writing for the United States Supreme Court, Justice Robert Jackson observed:
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
* * * * * *
"Crime as a compound concept, generally constituted only from a concurrence of an evil-meaning mind with an evil-doing hand, was congenial to an intense individualism and took deep and early root in American soil."
Morissette v. United States, 342 U.S. 246, 250-252, 72 S.Ct. 240, 243-244, 96 L.Ed. 288 (1952).
To be sure, legislative bodies since the mid-19th century have created strict liability criminal offenses requiring no mens rea. Almost all such statutes responded to the demands of public health and welfare arising from the complexities of society after the Industrial Revolution. Typically misdemeanors involving only fines or other light penalties, these strict liability laws regulated food, milk, liquor, medicines and drugs, securities, motor vehicles and traffic, the labeling of goods for sale, and the like. See Dawkins, supra, 313 Md. at 644-645, 547 A.2d 1041; see generally Francis Bowes Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55 (1933); Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 340-373 (1989) (suggesting, however, that strict liability doctrine in the United States in the late 19th century was motivated largely by moralistic fervor, such as found in the prohibitionist movement); Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 242-243 (2d ed. 1986); 1 Wharton's Criminal Law 100-111 (Charles E. Torcia ed., 14th ed. 1978). Statutory rape, carrying the stigma of felony as well as a potential sentence of 20 years in prison, contrasts markedly with the other strict liability regulatory offenses and their light penalties.
Modern scholars generally reject the concept of strict criminal liability. Professors LaFave and Scott summarize the consensus that punishing conduct without reference to the actor's state of mind fails to reach the desired end and is unjust:
"`It is inefficacious because conduct unaccompanied by an awareness of the factors making it criminal does not mark the actor as one who needs to be subjected to punishment in order to deter him or others from behaving similarly in the future, nor does it single him out as a socially dangerous individual who needs to be incapacitated or reformed. It is unjust because the actor is subjected to the stigma of a criminal conviction without being morally blameworthy. Consequently, on either a preventive or retributive theory of criminal punishment, the criminal sanction is inappropriate in the absence of mens rea.'"
LaFave & Scott, supra, at 248, quoting Herbert L. Packer, Mens Rea and the Supreme Court, 1962 Sup.Ct.Rev. 107, 109.
Dean Singer has articulated other weaknesses of strict criminal liability theory: 1) extensive government civil regulations and strict liability in tort achieve the same deterrent effect; 2) the judicial efficiency of dispatching minor offenses without an inquiry into mens rea is attained equally by decriminalizing them, and hearing such cases in a regulatory or administrative forum; 3) the small penalties imposed for most strict liability offenses oblige the public to engage in a pernicious game of distinguishing "real" crime from some lesser form of crime; 4) some strict liability laws may result from careless drafting; and 5) strict liability dilutes the moral force that the criminal law has historically carried. Singer, supra, at 389-397, 403-404. The author concludes that "the predicate for all criminal liability is blameworthiness; it is the social stigma which a finding of guilt carries that distinguishes the criminal [penalty] from all other sanctions. If the predicate is removed, the criminal law is set adrift." Id. at 404-405.
Conscious of the disfavor in which strict criminal liability resides, the Model Penal Code states generally as a minimum requirement of culpability that a person is not guilty of a criminal offense unless he acts purposely, knowingly, recklessly, or negligently, i.e., with some degree of mens rea. Model Penal Code § 2.02 (Official Draft and Revised Comments 1980). The Code allows generally for a defense of ignorance or mistake of fact negating mens rea. Id. at § 2.04. The Model Penal Code generally recognizes strict liability for offenses deemed "violations," defined as wrongs subject only to a fine, forfeiture, or other civil penalty upon conviction, and not giving rise to any legal disability. Id. at §§ 1.04, 2.05.[2]
The commentators similarly disapprove of statutory rape as a strict liability crime. In addition to the arguments discussed above, they observe that statutory rape prosecutions often proceed even when the defendant's judgment as to the age of the complainant is warranted by her appearance, her sexual sophistication, her verbal misrepresentations, and the defendant's careful attempts to ascertain her true age. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 106 (1965). Voluntary intercourse with a sexually mature teen-ager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct with children. Id. at 119-122.[3] See also Richard A. Tonry, Comment, Statutory Rape: A Critique, 26 La.L.Rev. 105 (1965); Michael McGillicuddy, Note, Criminal Law: Mistake of Age as Defense to Statutory Rape, 18 U.Fla.L.Rev. 699 (1966); Dennis L. Pieragostini, Note, Reasonable Mistake as to Age — a Defense to Statutory Rape under the New Penal Code, 2 Conn.L.Rev. 433 (1969) (statute since superseded); Kelly Vance, Note, State v. Elton: The Failure to Recognize a Defense to Statutory Rape, 1983 Utah L.Rev. 437 (case subsequently reversed upon reconsideration); Benjamin L. Reiss, Note, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377 (1992). But see Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex.L.Rev. 387, 401-413 (1984).
Two sub-parts of the rationale underlying strict criminal liability require further analysis at this point. Statutory rape laws are often justified on the "lesser legal wrong" theory or the "moral wrong" theory; by such reasoning, the defendant acting without mens rea nonetheless deserves punishment for having committed a lesser crime, fornication, or for having violated moral teachings that prohibit sex outside of marriage. See LaFave & Scott, supra, at 410-410; Myers, supra, at 127-129. Maryland has no law against fornication. It is not a crime in this state. Moreover, the criminalization of an act, performed without a guilty mind, deemed immoral by some members of the community rests uneasily on subjective and shifting norms. "[D]etermining precisely what the `community ethic' actually is [is] not an easy task in a heterogeneous society in which our public pronouncements about morality often are not synonymous with our private conduct." LaFave & Scott, supra, at 411. The drafters of the Model Penal Code remarked:
"[T]he actor who reasonably believes that his partner is above that age [of consent] lacks culpability with respect to the factor deemed critical to liability. Punishing him anyway simply because his intended conduct would have been immoral under the facts as he supposed them to be postulates a relation between criminality and immorality that is inaccurate on both descriptive and normative grounds. The penal law does not try to enforce all aspects of community morality, and any thoroughgoing attempt to do so would extend the prospect of criminal sanctions far into the sphere of individual liberty and create a regime too demanding for all save the best among us."
Id., Comment to § 213.6, at 415. We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case.
IV
The legislatures of 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage persons. In Kentucky, the accused may prove in exculpation that he did not know the facts or conditions relevant to the complainant's age. Ky. Rev. Stat. Ann. § 510.030 (1992). In Washington, the defendant may assert that he reasonably believed the complainant to be of a certain age based on the alleged victim's own declarations. Wash. Rev. Code Ann. § 9A.44.030 (1988, 1993 Cum.Supp.) In some states, the defense is available in instances where the complainant's age rises above a statutorily prescribed level, but is not available when the complainant falls below the defining age. E.g. Pa. Cons. Stat. Ann. tit. 18, § 3102 (1983) (defining critical age at 14); W. Va.Code Ann. § 61-8B-12 (1992 Repl.Vol.) (defining critical age at 11, defense subject to a recklessness standard); Or. Rev. Stat.Ann. § 163.325 (1990 Repl.Vol.) (defining critical age at 16).[4] In other states, the availability of the defense depends on the severity of the sex offense charged to the accused. E.g. Minn. Stat. Ann. §§ 609.344-609.345 (1987, 1993 Cum.Supp.) (defense available for certain charges under third-degree and fourth-degree criminal sexual conduct).[5]
In addition, the highest appellate courts of four states have determined that statutory rape laws by implication required an element of mens rea as to the complainant's age. In the landmark case of People v. Hernandez, 61 Cal.2d 529, 39 Cal. Rptr. 361, 393 P.2d 673 (1964), the California Supreme Court held that, absent a legislative directive to the contrary, a charge of statutory rape was defensible wherein a criminal intent was lacking; it reversed the trial court's refusal to permit the defendant to present evidence of his good faith, reasonable belief that the complaining witness had reached the age of consent. In so doing, the court first questioned the assumption that age alone confers a sophistication sufficient to create legitimate consent to sexual relations: "the sexually experienced 15-year-old may be far more acutely aware of the implications of sexual intercourse than her sheltered cousin who is beyond the age of consent." Id., 39 Cal. Rptr. at 362, 393 P.2d at 674. The court then rejected the traditional view that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage:
"[I]f [the perpetrator] participates in a mutual act of sexual intercourse, believing his partner to be beyond the age of consent, with reasonable grounds for such belief, where is his criminal intent? In such circumstances he has not consciously taken any risk. Instead he has subjectively eliminated the risk by satisfying himself on reasonable evidence that the crime cannot be committed. If it occurs that he has been mislead, we cannot realistically conclude for such reason alone the intent with which he undertook the act suddenly becomes more heinous.... [T]he courts have uniformly failed to satisfactorily explain the nature of the criminal intent present in the mind of one who in good faith believes he has obtained a lawful consent before engaging in the prohibited act."
Id., 39 Cal. Rptr. at 364, 393 P.2d at 676.
The Supreme Court of Alaska has held that a charge of statutory rape is legally unsupportable unless a defense of reasonable mistake of age is allowed. State v. Guest, 583 P.2d 836, 838-839 (Alaska 1978). The Supreme Court of Utah construed the applicable unlawful sexual intercourse statute to mean that a conviction could not result unless the state proved a criminal state of mind as to each element of the offense, including the victim's age. State v. Elton, 680 P.2d 727, 729 (Utah 1984) (Utah Criminal Code since amended to disallow mistake of age as a defense to unlawful sexual intercourse).[6] The Supreme Court of New Mexico determined that a defendant should have been permitted at trial to present a defense that his partner in consensual sex told him she was 17, not 15, that this had been confirmed to him by others, and that he had acted under that mistaken belief. Perez v. State, 111 N.M. 160, 803 P.2d 249, 250-251 (1990). Two-fifths of the states, therefore, now recognize the defense in cases of statutory sexual offenses.
V
We think it sufficiently clear, however, that Maryland's second degree rape statute defines a strict liability offense that does not require the State to prove mens rea; it makes no allowance for a mistake-of-age defense. The plain language of § 463, viewed in its entirety, and the legislative history of its creation lead to this conclusion.
It is well settled that in interpreting a statute to ascertain and effectuate its goal, our first recourse is to the words of the statute, giving them their ordinary and natural import. Fairbanks v. McCarter, 330 Md. 39, 46, 622 A.2d 121 (1993); NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764 (1988). While penal statutes are to be strictly construed in favor of the defendant, the construction must ultimately depend upon discerning the intention of the Legislature when it drafted and enacted the law in question. State v. Kennedy, 320 Md. 749, 754-755, 580 A.2d 193 (1990); Davis v. State, 319 Md. 56, 60-61, 570 A.2d 855 (1990). To that end, the Court may appropriately look at the larger context, including external manifestations of the legislative purpose, within which statutory language appears. Fairbanks v. McCarter, supra, 330 Md. at 46, 622 A.2d 121; Dickerson v. State, 324 Md. 163, 170-171, 596 A.2d 648 (1991); Morris v. Prince George's County, 319 Md. 597, 603-604, 573 A.2d 1346 (1990).
Section 463(a)(3) prohibiting sexual intercourse with underage persons makes no reference to the actor's knowledge, belief, or other state of mind. As we see it, this silence as to mens rea results from legislative design. First, subsection (a)(3) stands in stark contrast to the provision immediately before it, subsection (a)(2) prohibiting vaginal intercourse with incapacitated or helpless persons. In subsection (a)(2), the Legislature expressly provided as an element of the offense that "the person performing the act knows or should reasonably know the other person is mentally defective, mentally incapacitated, or physically helpless." Code, § 463(a)(2) (emphasis added). In drafting this subsection, the Legislature showed itself perfectly capable of recognizing and allowing for a defense that obviates criminal intent; if the defendant objectively did not understand that the sex partner was impaired, there is no crime. That it chose not to include similar language in subsection (a)(3) indicates that the Legislature aimed to make statutory rape with underage persons a more severe prohibition based on strict criminal liability. See McAlear v. McAlear, 298 Md. 320, 343-344, 469 A.2d 1256 (1984) (a court must read the language of a statute in relation to all of its provisions in determining legislative intent); Pennsylvania Nat'l Mut. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980) (same).
Second, an examination of the drafting history of § 463 during the 1976 revision of Maryland's sexual offense laws reveals that the statute was viewed as one of strict liability from its inception and throughout the amendment process. As originally proposed, Senate Bill 358 defined as a sexual offense in the first degree a sex act committed with a person less than 14 years old by an actor four or more years older. See the 1976 Report of the Senate Judicial Proceedings Committee on S.B. 358, at 1-2. The Senate Judicial Proceedings Committee then offered a series of amendments to the bill. Among them, Amendment # 13 reduced the stipulated age of the victim from less than 14 to 12 or less. 1976 Senate Journal, at 1363. Amendment # 16 then added a provision defining a sexual offense in the second degree as a sex act with another "under 14 years of age, which age the person performing the sexual act knows or should know." 1976 Senate Journal, at 1364. These initial amendments suggest that, at the very earliest stages of the bill's life, the Legislature distinguished between some form of strict criminal liability, applicable to offenses where the victim was age 12 or under, and a lesser offense with a mens rea requirement when the victim was between the ages of 12 and 14.
Senate Bill 358 in its amended form was passed by the Senate on March 11, 1976. 1976 Senate Journal, at 1566. The House of Delegates' Judiciary Committee, however, then proposed changes of its own. It rejected the Senate amendments, and defined an offense of rape, without a mens rea requirement, for sexual acts performed with someone under the age of 14. See 1976 House Journal, at 3686.[7] The Senate concurred in the House amendments and S.B. 358 became law. 1976 House Journal, at 3761; 1976 Senate Journal, at 3429; 1976 Acts of Maryland, at 1536. Thus the Legislature explicitly raised, considered, and then explicitly jettisoned any notion of a mens rea element with respect to the complainant's age in enacting the law that formed the basis of current § 463(a)(3). In the light of such legislative action, we must inevitably conclude that the current law imposes strict liability on its violators.
This interpretation is consistent with the traditional view of statutory rape as a strict liability crime designed to protect young persons from the dangers of sexual exploitation by adults, loss of chastity, physical injury, and, in the case of girls, pregnancy. See Michael M. v. Sonoma County Superior Court, 450 U.S. 464, 470, 101 S.Ct. 1200, 1204-05, 67 L.Ed.2d 437 (1981); Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 760-761 (1980). The majority of states retain statutes which impose strict liability for sexual acts with underage complainants. We observe again, as earlier, that even among those states providing for a mistake-of-age defense in some instances, the defense often is not available where the sex partner is 14 years old or less; the complaining witness in the instant case was only 13. The majority of appellate courts, including the Court of Special Appeals, have held statutory rape to be a strict liability crime. Eggleston v. State, 4 Md. App. 124, 241 A.2d 433 (1968); see the compilation in W.E. Shipley, Annotation, Mistake or Lack of Information as to Victim's Age as Defense to Statutory Rape, 8 A.L.R.3d 1100 (1966, 1992 Supp.).
VI
Maryland's second degree rape statute is by nature a creature of legislation. Any new provision introducing an element of mens rea, or permitting a defense of reasonable mistake of age, with respect to the offense of sexual intercourse with a person less than 14, should properly result from an act of the Legislature itself, rather than judicial fiat. Until then, defendants in extraordinary cases, like Raymond, will rely upon the tempering discretion of the trial court at sentencing.
JUDGMENT AFFIRMED, WITH COSTS.
ELDRIDGE, Judge, dissenting:
Both the majority opinion and Judge Bell's dissenting opinion view the question in this case to be whether, on the one hand, Maryland Code (1957, 1992 Repl.Vol.), Art. 27, § 463(a)(3), is entirely a strict liability statute without any mens rea requirement or, on the other hand, contains the requirement that the defendant knew that the person with whom he or she was having sexual relations was under 14 years of age.
The majority takes the position that the statute defines an entirely strict liability offense and has no mens rea requirement whatsoever. The majority indicates that the defendant's "knowledge, belief, or other state of mind" is wholly immaterial. The majority opinion at one point states: "We acknowledge here that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend imperatives of sexual morality in any case." Nevertheless, according to the majority, it was permissible for the trial judge to have precluded exploration into Raymond's knowledge and comprehension because the offense is entirely one of strict liability.
Judge Bell's dissent, however, argues that, under the due process clauses of the Fourteenth Amendment and the Maryland Declaration of Rights, any "defendant may defend on the basis that he was mistaken as to the age of the prosecutrix."
In my view, the issue concerning a mens rea requirement in § 463(a)(3) is not limited to a choice between one of the extremes set forth in the majority's and Judge Bell's opinions. I agree with the majority that an ordinary defendant's mistake about the age of his or her sexual partner is not a defense to a prosecution under § 463(a)(3). Furthermore I am not persuaded, at least at the present time, that either the federal or state constitutions require that a defendant's honest belief that the other person was above the age of consent be a defense.[1] This does not mean, however, that the statute contains no mens rea requirement at all.
The legislative history of § 463(a)(3), set forth in the majority opinion, demonstrates that the House of Delegates rejected the Senate's proposed requirement that an older person, having sexual relations with another under 14 years of age, know or should know that the other person was under 14. The House of Delegates' version was ultimately adopted. From this, the majority concludes that the enacted version was "without a mens rea requirement." The majority's conclusion does not necessarily follow. Although the General Assembly rejected one specific knowledge requirement, it did not decree that any and all evidence concerning a defendant's knowledge and comprehension was immaterial.
There are pure strict liability offenses where "the purpose of the penalty is to regulate rather than to punish behavior" and where criminal "liability is imposed regardless of the defendant's state of mind," Dawkins v. State, 313 Md. 638, 645, 547 A.2d 1041 (1988). These "offenses commonly involve light fines or penalties," Dawkins, 313 Md. at 644, 547 A.2d at 1044. There are other offenses (also unfortunately often called "strict liability" offenses) where the legislature has dispensed with a knowledge requirement in one respect but has not intended to impose criminal liability regardless of the defendant's state of mind.[2] Such offenses
"do require `fault' ..., in that they `can be interpreted as legislative judgments that persons who intentionally engage in certain activities and occupy some peculiar or distinctive position of control are to be held accountable for the occurrence of certain consequences.'"
W. LaFave & A. Scott, Jr., Substantive Criminal Law, ch. 3, § 3.8(c), at 349 (1986), quoting Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 743 (1960). See also P. Robinson, Criminal Law Defenses, ch. 3, § 108(b), at 535 (1984) ("If reasonable mistake as to the victim's age is disallowed ... [t]here is, . . strict liability with respect to that element") (emphasis added).
Neither the statutory language nor the legislative history of § 463(a)(3), or of the other provisions of the 1976 and 1977 sexual offense statutes, indicate that the General Assembly intended § 463(a)(3) to define a pure strict liability offense where criminal liability is imposed regardless of the defendant's mental state. The penalty provision for a violation of § 463(a)(3), namely making the offense a felony punishable by a maximum of 20 years imprisonment (§ 463(b)), is strong evidence that the General Assembly did not intend to create a pure strict liability offense.
In the typical situation involving an older person's engaging in consensual sexual activities with a teenager below the age of consent, and the scenario which the General Assembly likely contemplated when it enacted §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2), and 464C(a)(3), the defendant knows and intends that he or she is engaging in sexual activity with a young person. In addition, the defendant knows that the activity is regarded as immoral and/or improper by large segments of society. Moreover, the defendant is aware that "consent" by persons who are too young is ineffective. Although in a particular case the defendant may honestly but mistakenly believe, because of representations or appearances, that the other person is above the age of consent, the ordinary defendant in such case is or ought to be aware that there is a risk that the young person is not above the age of consent. As the majority opinion points out, "the traditional view [is] that those who engage in sex with young persons do so at their peril, assuming the risk that their partners are underage...." It seems to me that the above-mentioned knowledge factors, and particularly the mental ability to appreciate that one is taking a risk, constitute the mens rea of the offenses defined by §§ 463(a)(3), 464A(a)(3), 464B(a)(3), 464C(a)(2) and 464C(a)(3). In enacting these provisions, the General Assembly assumed that a defendant is able to appreciate the risk involved by intentionally and knowingly engaging in sexual activities with a young person. There is no indication that the General Assembly intended that criminal liability attach to one who, because of his or her mental impairment, was unable to appreciate that risk.
It is unreasonable to assume that the Legislature intended for one to be convicted under § 463(a)(3), or under any of the other statutes proscribing sexual activity with underage persons, regardless of his or her mental state. Suppose, for example, that Raymond Garnett had not had an I.Q. of 52, but rather, had been more severely mentally retarded as was the young woman involved in Wentzel v. Montgomery Gen. Hosp., 293 Md. 685, 447 A.2d 1244, cert. denied, 459 U.S. 1147, 103 S.Ct. 790, 74 L.Ed.2d 995 (1983). The mentally retarded person in Wentzel had an I.Q. of 25-30, was physiologically capable of bearing a child, but was unable to comprehend the act of sexual intercourse, or even to understand the difference between the sexes. If someone so disabled, having reached Raymond's chronological age, then had "consensual" sexual intercourse with a person younger than fourteen years of age, I do not believe that he or she would have violated Art. 27, § 463(a)(3). Under the view that §§ 463(a)(3), 464A(a)(3), 464B(a)(3), etc., define pure strict liability offenses without any regard for the defendant's mental state, presumably a 20 year old, who passes out because of drinking too many alcoholic beverages, would be guilty of a sexual offense if a 13 year old engages in various sexual activities with the 20 year old while the latter is unconscious. I cannot imagine that the General Assembly intended any such result.
An impaired mental condition may show the absence of mens rea, depending upon the circumstances. See, e.g., Simmons v. State, 313 Md. 33, 39 n. 3, 542 A.2d 1258, 1261 n. 3 (1988); Hoey v. State, 311 Md. 473, 494-495, 536 A.2d 622 (1988). In light of the defendant Garnett's mental retardation, and its effect upon his knowledge and comprehension, he may or may not have had the requisite mens rea. As previously mentioned, the majority opinion itself acknowledges that it is uncertain to what extent Raymond's intellectual and social retardation may have impaired his ability to comprehend standards of sexual morality. The problem in this case is that the trial judge's view of the statute, which the majority adopts, precluded an exploration into the matter.
The majority points out that the trial court would not allow testimony that Erica and her friends had told the defendant that she was 16 years old. The trial court, however, went further. The court would not allow the defendant to testify concerning his knowledge. More importantly, the trial judge took the position that the offense proscribed by § 463(a)(3) is "a strict liability offense" and that the only requirements for conviction were that "the defendant had sexual intercourse with Erica Frazier, that at that time she was 13 years of age, [and] at that time the defendant was more than 4 years older than she. These are the only requirements that the State need prove beyond a reasonable doubt." The trial court's position that the offense lacked any mens rea requirement, and that the defendant's mental state was wholly immaterial, was, in my view, erroneous.
I would reverse and remand for a new trial.
ROBERT M. BELL, Judge, dissenting.
"It may be possible to conceive of legislation ... so flagrantly in conflict with natural right, that the courts may set it aside as unwarranted, though no clause of the constitution can be found prohibiting it. But the cases must be rare indeed; and whenever they do occur the interposition of the judicial veto will rest upon such foundations of necessity that there can be little or no room for hesitation."
Richard G. Singer, The Resurgence of Mens Rea: III — The Rise and Fall of Strict Criminal Liability, 30 B.C.L.Rev. 337, 368 (1989), quoting State v. Clottu, 33 Ind. 409, 410-11 (1870).
I do not dispute that the legislative history of Maryland Code (1957, 1992 Repl.Vol.), Art. 27, section 463 may be read to support the majority's interpretation that subsection (a)(3)[1] was intended to be a strict liability statute. See majority opinion at 585. Nor do I disagree that it is in the public interest to protect the sexually naive child from the adverse physical, emotional, or psychological effects of sexual relations. I do not believe, however, that the General Assembly, in every case, whatever the nature of the crime and no matter how harsh the potential penalty, can subject a defendant to strict criminal liability. To hold, as a matter of law, that section 463(a)(3)[2] does not require the State to prove that a defendant possessed the necessary mental state to commit the crime, i.e. knowingly engaged in sexual relations with a female under 14, or that the defendant may not litigate that issue in defense, "offends a principle of justice so rooted in the traditions of conscience of our people as to be ranked as fundamental" and is, therefore, inconsistent with due process. See United States v. Ransom, 942 F.2d 775, 776-77 (10th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 897, 116 L.Ed.2d 799 (1992), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674, 677 (1934).
In the case sub judice, according to the defendant, he intended to have sex with a 16, not a 13, year old girl. This mistake of fact was prompted, he said, by the prosecutrix herself; she and her friends told him that she was 16 years old. Because he was mistaken as to the prosecutrix's age, he submits, he is certainly less culpable than the person who knows that the minor is 13 years old, but nonetheless engages in sexual relations with her. Notwithstanding, the majority has construed section 463(a)(3) to exclude any proof of knowledge or intent. But for that construction, the proffered defense would be viable. I would hold that the State is not relieved of its burden to prove the defendant's intent or knowledge in a statutory rape case and, therefore, that the defendant may defend on the basis that he was mistaken as to the age of the prosecutrix.[3]
I. Mens Rea Generally
Generally, a culpable mental state, often referred to as mens rea, see Wharton's Criminal Law, § 27, or intent, is, and long has been, an essential element of a criminal offense. Morissette v. United States, 342 U.S. 246, 251-52, 72 S.Ct. 240, 244, 96 L.Ed. 288, 294 (1952); Tate v. State, 236 Md. 312, 203 A.2d 882 (1964); Davis v. State, 204 Md. 44, 102 A.2d 816 (1953); Webb v. State, 201 Md. 158, 93 A.2d 80 (1952); Fenwick v. State, 63 Md. 239, 240-41 (1885). A crime ordinarily consists of prohibited conduct and a culpable mental state; a wrongful act and a wrongful intent must concur to constitute what the law deems a crime, the purpose being to avoid criminal liability for innocent or inadvertent conduct. See Dawkins v. State, 313 Md. 638, 643, 547 A.2d 1041, 1043 (1988); see also Wharton's Criminal Law, § 27, citing United States v. Fox, 95 U.S. 670, 24 L.Ed. 538 (1877). Historically, therefore, unless the actor also harbored an evil, or otherwise culpable, mind, he or she was not guilty of any crime.
The Supreme Court in Morissette, recognized that ordinarily, a defendant cannot be convicted when he or she lacks the mental state which is an element of the offense charged. That concept — crime as a compound concept — gained early acceptance in the English Common law and "took deep and early root in American soil."[4] 342 U.S. at 251-52, 72 S.Ct. at 244, 96 L.Ed. at 294 (footnote omitted). In that case, Mr. Justice Jackson stated the proposition thusly:
The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."
Id. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 294 (footnotes omitted).
In Morissette, (id. at 247-48, 72 S.Ct. at 242, 96 L.Ed. at 292-93), the defendant, a scrap iron collector, went onto a government bombing range, where bomb casings were piled haphazardly. Morissette loaded the casings onto his truck in broad daylight and took them. He was indicted for "unlawfully, wilfully and knowingly steal[ing] and convert[ing]" property of the United States, in violation of 18 U.S.C. § 641, 18 U.S.C.A. § 641. He sought to defend on the basis that he thought the casings were abandoned, unwanted, and of no value to the government. The trial court refused to permit evidence on that point, which was affirmed on appeal. The Supreme Court reversed, holding that where intent is an essential element of the crime charged, its existence is a question of fact for the jury, and "the trial court may not withdraw or prejudge the issue by instruction that the law raises a presumption of intent from an act." Id. at 274, 72 S.Ct. at 255, 96 L.Ed. at 306. It was in this context that the Court discussed the importance of intent. The Court concluded:
The unanimity with which they [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element. However, courts of various jurisdictions, and for the purposes of different offenses, have devised working formulae, if not scientific ones, for the instruction of juries around such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge or "mens rea," to signify an evil purpose or mental culpability.
Id. at 252, 72 S.Ct. at 244, 96 L.Ed. at 294-95.
More recently, in Anderson v. State, 328 Md. 426, 444, 614 A.2d 963, 972 (1992), we held that the trial court improperly convicted the defendant for carrying concealed, pursuant to Article 27, § 36(a), a utility knife without considering the intent with which the utility knife was being carried. Noting that the utility knife could be used both as a tool and as a weapon, id. at 437-39, 614 A.2d at 968-69, we rejected the State's argument that no intent was required. Id. at 444, 614 A.2d at 971. We said instead that, when the object is not a dangerous weapon per se, to convict a defendant of carrying a concealed dangerous weapon requires proof that the defendant intended to use the object as a weapon. Id. at 444, 614 A.2d at 971.
Although it recognized that Congress could dispense with the intent requirement if it did so specifically, the Court made clear that that power was not without limit. Morissette, 342 U.S. at 275, 72 S.Ct. at 256, 96 L.Ed. at 307, citing Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943). Thus, when a legislature wants to eliminate intent as an element of a particular crime, it should expressly so state in the statute. See Larry W. Myers, Reasonable Mistake of Age: A Needed Defense to Statutory Rape, 64 Mich.L.Rev. 105, 118-19 (1965); see also People v. Hernandez, 61 Cal.2d 529, 536, 39 Cal. Rptr. 361, 365, 393 P.2d 673, 677 (1964) ("in the absence of a legislative direction otherwise, a charge of statutory rape is defensible wherein criminal intent is lacking."); Singer, supra, at 397. Legislative imposition of strict criminal liability, however, must be within constitutional limits; it cannot be permitted to violate the Due Process requirement of the Fourteenth Amendment, see Lambert v. California, 355 U.S. 225, 227, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957), or a comparable state constitutional provision. See infra.
II. Strict Liability Crimes
Strict liability crimes are recognized exceptions to the "guilty mind" rule in that they do not require the actor to possess a guilty mind, or the mens rea, to commit a crime. See Morissette, 342 U.S. at 251-52 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8. His or her state of mind being irrelevant, the actor is guilty of the crime at the moment that he or she does the prohibited act.
A.
In the evolution of the statutory criminal law, two classes of strict liability crimes have emerged. Richard A. Tonry, Statutory Rape: A Critique, La.L.Rev. 105 (1965). One of them consists of "public welfare" offenses. See id.; see also Dawkins, 313 Md. 638, 547 A.2d 1041. Typical of this class are statutes involving, for example, the sale of food, drugs, liquor, and traffic offenses, see Tonry, supra, at 106, designed to protect the health, safety, and welfare of the community at large; violation of such statutes "depend on no mental element but consist[s] only of forbidden acts or omissions." Morissette, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. In the case of public welfare offenses, strict liability is justified on several bases, including: (1) only strict liability can deter profit-driven manufacturers from ignoring the well-being of the consuming public; (2) an inquiry into mens rea would exhaust the resources of the courts; (3) imposition of strict liability is not inconsistent with the moral underpinnings of the criminal law because the penalties are small and carry no stigma; and (4) the legislature is constitutionally empowered to create strict liability crimes for public welfare offenses. Singer, supra, at 389.
In Dawkins, 313 Md. at 644-645, 547 A.2d at 1044-45, this Court discussed the development of public welfare offenses and noted their characteristics:
"Public Welfare Offenses" are generally regulatory in nature. The earliest cases involved liquor and adulterated milk.... Later cases expanded the doctrine to apply to violations of traffic regulations and motor vehicle laws, sales or misbranded articles, and sales or purchases in violation of anti-narcotics laws.... These offenses commonly involve light fines or penalties. .. . "[T]he penalty in such cases is so slight that the courts can afford to disregard the individual in protecting the social interest...." Additionally, the purpose of the penalty is to regulate rather than to punish behavior.... While liability is imposed regardless of the defendant's state of mind, the defendant is generally in a position to prevent the violation from occurring....
313 Md. at 645, 547 A.2d at 1044 (citations omitted). The Supreme Court has also commented on such offenses, observing:
These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.
Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296. To like effect,
... public welfare offenses are new crimes, created solely by legislative enactments in the nature of police regulations. Moreover, these offenses are not strictly criminal, even though traditional criminal sanctions are relied upon, since the primary purpose of the legislature is neither punishment nor correction, but rather regulation.
Myers, supra, at 114 (footnote omitted).
Obviously, and the majority concurs, see majority opinion at 579, "statutory rape" is not merely a public welfare offense; it simply does not "fit" the characteristics of such an offense: it is a felony, not a misdemeanor. In striking contrast to "other strict liability regulatory offenses and their light penalties," majority opinion at 579, the potential penalty of 20 years imprisonment is not a light penalty; unlike the "garden variety" strict liability penalty, the penalty under section 463(a)(3), is neither so insignificant that it can be ignored as a criminal sanction, see Singer, supra, at 394, nor so slight that the fate of the defendant can be ignored, see Wayne R. LaFave and Austin W. Scott, Jr., Criminal Law, § 31, at 219 (1972) ("The greater the possible punishment, the more likely some fault is required; and conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault."); and section 463's primary purpose is to penalize the "rapist", not to correct his or her behavior.[5]
B.
The second class of strict liability offenses, having a different justification than public welfare offenses, consists of narcotic,[6] bigamy,[7] adultery, and statutory rape crimes. See Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8; Tonry, supra, at 106. State legislatures have historically used two theories to justify imposing strict liability in this class of offense: "lesser legal wrong" and "moral wrong." See Benjamin L. Reiss, Alaska's Mens Rea Requirements for Statutory Rape, 9 Alaska L.Rev. 377, 381-82 (1992).
The lesser legal wrong theory posits that a defendant who actually intended to do some legal or moral wrong is guilty not only of the crime intended but of a greater crime of which he or she may not have the requisite mental state. LaFave and Scott, supra, § 47, at 360. The elimination of a mens rea element for statutory rape is rationalized by focusing on the defendant's intent to commit a related crime. Reiss, supra, at 381. In other words, if fornication[8], engaging in sexual intercourse out of wedlock, see generally Model Penal Code, § 213.6, Comment at 430-39, is a crime, a defendant intending to engage in sex out of wedlock is made to suffer all of the legal consequences of that act. Statutory rape is such a legal consequence when the other participant is below the age of consent. Reiss, supra, at 382. The theory is premised, in short, upon the proposition that, as to certain crimes, "a `guilty mind' in a very general sense, should suffice for the imposition of penal sanctions even when the defendant did not intentionally or knowingly engage in the acts proscribed in the statute." See LaFave and Scott, supra, § 47, at 361.
The seminal case in this area is Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 110 and Model Penal Code, § 213.6, Comment at 414 n. 6. There, the defendant was charged with unlawfully taking a girl under the age of 16 out of the possession of the father against his will. The defendant claimed that he acted on the reasonable belief that the girl was 18. The court held that it was no defense that he thought he was committing a different kind of wrong from that which he, in fact, was committing, it being wrong to remove a daughter, even one over 16, from her father's household.
The lesser legal wrong theory does not provide a viable rationale for holding a defendant strictly liable for statutory rape where premarital sex is not criminal.[9] Reiss, supra, at 382. See LaFave and Scott, supra, § 47, at 361 ("[W]here fornication is itself not criminal it [statutory rape] should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has intercourse").[10] Fornication is not a crime in Maryland. See Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). Accordingly, in Maryland, there is no underlying offense from which to transfer intent. Moreover,
[a] man who engages in consensual intercourse in the reasonable belief that his partner has reached [the age of consent[11]] evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors. In short, he has demonstrated neither intent nor inclination to violate any of the interests that the law of statutory rape seeks to protect. At most, he has disregarded religious precept or social convention. In terms of mental culpability, his conduct is indistinguishable from that of any other person who engages in fornication. Whether he should be punished at all depends on a judgment about continuing fornication as a criminal offense, but at least he should not be subject to felony sanctions for statutory rape.
Model Penal Code § 213.6, Comment at 415.
C.
In utilizing the moral wrong theory, State legislatures seek to justify strict criminal liability for statutory rape when non-marital sexual intercourse is not a crime on the basis of society's characterization of it as immoral or wrong, i.e., malum in se.[12] Reiss, supra, at 382. The intent to commit such immoral acts supplies the mens rea for the related, but unintended crime; the outrage upon public decency or good morals, not conduct that is wrong only because it is prohibited by legislation, i.e., malum prohibitum, is the predicate.
There are significant problems with the moral wrong theory. First, it is questionable whether morality should be the basis for legislation or interpretation of the law. See Tonry, supra, at 113; see also Singer, supra, at 338 (moral blame should be abolished as a predicate for criminal liability). Immorality is not synonymous with illegality; intent to do an immoral act does not equate to intent to do a criminal act. Inferring criminal intent from immorality, especially when the accused is not even aware that the act is criminal, seems unjustifiable and unfair. See Reiss, supra, at 382. In addition, the values and morals of society are ever evolving. Because sexual intercourse between consenting unmarried adults and minors who have reached the age of consent is not now clearly considered to be immoral, the moral wrong theory does not support strict criminal liability for statutory rape.
Second, classifying an act as immoral, in and of itself, divorced from any consideration of the actor's intention, is contrary to the general consensus of what makes an act moral or immoral. See Tonry, supra, at 113. Ordinarily, an act is either moral or immoral depending on the intention of the actor. Id., citing Holmes, Early Forms of Liability, in The Common Law 7 (Howe ed. 1963), citing Bradley, Ethical Studies, Essay 1 (1876) ("Even a dog distinguishes between being stumbled over and being kicked.").
Third, the assertion that the act alone will suffice for liability without the necessity of proving criminal intent is contrary to the traditional demand of the criminal law that only the act plus criminal intent is sufficient to constitute a crime. See Tonry, supra, at 113. "Moral duties should not be identified with criminal duties," and, thus, when fornication is itself not criminal it should not become criminal merely because the defendant has made a reasonable mistake about the age of the girl with whom he has had intercourse. See Hernandez, 61 Cal.2d at 534, 39 Cal. Rptr. at 364, 393 P.2d at 676; see also Myers, supra.
Therefore, although in the case sub judice, the defendant engaged in sexual relations with a girl 13 years old, a minor below the age of consent, his conduct is not malum in se, see 4 W. Blackstone, Commentaries[*] 210, and, so, strict liability is not justified.
III. Mistake of Fact
Generally, a mistake of fact negates the mental state required to establish a material element of the crime. LaFave and Scott, supra, § 47, at 356. A person who engages in proscribed conduct is relieved of criminal liability if, because of ignorance or mistake of fact, he or she did not entertain the culpable mental state required for the commission of the offense. See Wharton's Criminal Law § 76.[13] Compare Richmond v. State, 330 Md. 223, 241-42, 623 A.2d 630, 638 (1993) (Bell, J., dissenting) (In case of self-defense, defendant who acts in self-defense is completely exonerated upon findings that he or she subjectively believed that his or her actions were necessary and, viewed objectively, that they were, in fact, necessary; in case of imperfect self-defense, defendant who subjectively believes that his or her actions were necessary, but, objectively, they were not, is not completely exonerated, although lesser sentence is appropriate).
Statutory rape is defined as sexual intercourse, by a person four or more years older, with a person under the age of 14. Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 463(a)(3).[14] That statute conclusively presumes that a person under that age is incapable of legally consenting to sexual intercourse.[15] Rau v. State, 133 Md. 613, 105 A. 867 (1919) (consent is not an element of assault with intent to have carnal knowledge of a female child under 14 years);[16] Ollis v. State, 44 Ga. App. 793, 163 S.E. 309 (1932); Golden v. Commonwealth, 289 Ky. 379, 158 S.W.2d 967 (1942). That the female is incapable of consenting means that any act of intercourse in which she engages, even with her consent, is conclusively presumed to have been against her will. See Tonry, supra, at 106. Consequently, a person engaging in intercourse with a female, whom he knows to be under 14 may not set up her consent as a defense. This does not mean, however, that one who does not know that the female is under 14 should not be able to set up his mistake of fact as a defense. This is because the closer a minor is to the age of consent, the more the appearance and behavior of that minor can be expected to be consistent with persons who have attained the age of consent. Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990) (strict liability inappropriate where victim in 13-16 age range); Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Indeed, one may plausibly mistake a minor 13 years old as being of the statutory age of consent.
A girl 13 years old may appear to be, and, in fact, may represent herself as being, over 16. If she should appear to be the age represented, a defendant may suppose reasonably that he received a valid consent from his partner, whom he mistakenly believes to be of legal age, only to find that her consent is legally invalid. In this situation, the majority holds, his reasonable belief as to the girl's age and consequent lack of criminal intent are no defense; the act alone suffices to establish guilt. But it is when the minor plausibly may represent that she has attained the age of consent that need for a defendant to be able to present a defense based on his or her belief that the minor was of the age to consent is the greatest.
The California Supreme Court in Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law 184-85 (1951), has recognized mistake of age as a defense to statutory rape. There, the defendant was convicted of statutory rape pursuant to a California law setting a consent age limit of 18 years of age. The prosecutrix was 17 years and 9 months old. The court held that an offer of proof of defendant's reasonable belief that the prosecutrix had reached the age of consent was a defense to statutory rape. 61 Cal.2d at 536, 39 Cal. Rptr. at 365, 393 P.2d at 677. The court reasoned that the imposition of criminal sanctions required conduct accompanied by a specific mental state, i.e., "the joint operation of act and intent." 61 Cal.2d at 532, 39 Cal. Rptr. at 363, 393 P.2d at 675. It opined (id. 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3, quoting Plascowe, Sex and the Law at 184 and 185 (1951)):
"When the law declares that sexual intercourse with a girl under the age of ten years is rape, it is not illogical to refuse to give any credence to the defense, `I thought she was older, and I therefore did not believe that I was committing a crime when I had sexual intercourse with her.' * * * But when age limits are raised to sixteen, eighteen, and twenty-one, when the young girl becomes a young woman, when adolescent boys as well as young men are attracted to her, the sexual act begins to lose its quality of abnormality and physical danger to the victim. Bona fide mistakes in the age of girls can be made by men and boys who are no more dangerous than others of their social, economic and educational level. * * * Even if the girl looks to be much older than the age of consent fixed by the statute, even if she lies to the man concerning her age, if she is a day below the statutory age sexual intercourse with her is rape. The man or boy who has intercourse with such girl still acts at his peril. The statute is interpreted as if it were protecting children under the age of ten."
Moreover, Myers, supra, at 121, concurs that reasonable mistake of age, should be a defense to statutory rape where there is no threat of force. He explains his position thusly:
[T]here are many girls between the ages of twelve and fifteen who are so obviously immature in physique, dress, and deportment that they would be approached only by a person psychologically disturbed or coming from a subculture where the acceptable age-range is lower than the usual level in the United States. However, there are even more girls from twelve to fifteen whose appearance and behavior place them within, or on the vague border of, the average male's category of desirable females. By the middle teens, most girls are sufficiently developed physically and are sufficiently aware of social attitudes for a man to have to use considerable force or some definite threat if the girl objects to sexual contact. (Footnote omitted).
Thus, it has been observed that, "[b]y the middle teens most girls have reached a point of maturity which realistically enables them to give meaningful, although not legal, consent." Id. at 122. It is for this reason that "[i]ntercourse with a girl who is in her middle to late teens lacks the qualities of abnormality and physical danger that are present when she is still a child.... It is clear that the element of `victimization' decreases as the girl grows older and more sophisticated."[17] Id. at 121-22. See e.g. State v. Guest, 583 P.2d 836 (Alaska 1978); State v. Elton, 680 P.2d 727 (Utah 1984); Powe v. State, 389 N.W.2d 215 (Minn.App. 1986); Perez v. State, 111 N.M. 160, 803 P.2d 249 (1990).
The Model Penal Code, long an adversary of strict liability crimes, proposes two categories of statutory rape. The first, would impose strict liability on one who has sexual relations with a child under 10. See generally Model Penal Code and Commentaries, § 213.6, Comment at 415-16.[18] See also Del. tit. 11, § 772(a); Ohio § 2907.02(A)(3); Pa. tit. 18, § 3102; W. Va. § 61-8B-13(b). The second category would encompass minors under the critical statutory age of consent, but over 10 years old. Model Penal Code, § 213.6, Comment at 415-16. Having sexual relations with a child falling in this category would still be a crime, but a defendant could escape punishment if he or she proved that he or she was mistaken as to the child's age. Both categories are consistent with the prevailing contemporary view, and with the common law, that a child under 10 years old is too young to understand the nature and quality of his or her act, Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Commentaries § 212, and that a child over 10 years of age ordinarily is aware of social attitudes and the nature of sexual contact. See Myers, supra, at 121; see also Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. Thus, the Code would allow the defendant to defend a charge of rape involving a minor falling in the second category on the basis that he or she reasonably believed the child to be above the critical age. See Model Penal Code § 213.6, Comment at 416.[19]
In the case sub judice, the defendant does not dispute that he had sexual relations with the 13 year old prosecutrix. He seeks only to be able to defend himself against being labeled a rapist. He may only do so, however, if he is allowed to present evidence that he acted under a mistake of fact as to the prosecutrix's age, that he believed, and reasonably so, that she was above the age of consent. The proof he proposed to present to prove his defense was that the victim and her friends told him that the victim was 16 years old. He should have been allowed to show that he lacked the "guilty mind" to have sex with a 13 year old.
IV. Constitutional Limitations on Strict Criminal Liability
A State Legislature does have the power to define the elements of the criminal offenses recognized within its jurisdiction. Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 2087, 85 L.Ed.2d 434, 439 (1985); Smith v. California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205, 209 (1959); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228, 231 (1957); McCallum v. State, 81 Md. App. 403, 413, 567 A.2d 967, 971 (1990), aff'd, 321 Md. 451, 583 A.2d 250 (1991). Cf. Singer, supra, at 389. In fact, the Supreme Court has said: "There is wide latitude in lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition." Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231. Accordingly, a State legislature may constitutionally prescribe strict liability for public welfare offenses, discussed supra, committed within its boundaries. But "far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement." United States v. United Gypsum Company, 438 U.S. 422, 438, 98 S.Ct. 2864, 2874, 57 L.Ed.2d 854, 870 (1978) (citations omitted). See Morissette, 342 U.S. at 263, 72 S.Ct. at 250, 96 L.Ed. at 300 (mere omission of any mention of intent will not be construed as eliminating element from crime announced); McCallum, 321 Md. at 456, 583 A.2d at 252. Indeed, criminal offenses requiring no mens rea have a "generally disfavored status." McCallum, 321 Md. at 457, 583 A.2d at 252-253.
To recognize that a State legislature may, in defining criminal offenses, exclude mens rea, is not to suggest that it may do so with absolute impunity, without any limitation whatsoever. The validity of such a statute necessarily will depend on whether it violates any provision of the federal, see Smith, 361 U.S. at 152-53, 80 S.Ct. at 218, 4 L.Ed.2d at 211, or applicable state, see Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946) (holding that Article 20, Maryland Declaration of Rights, guaranteeing a defendant a trial of facts as "one of the greatest securities of the lives, liberties and estate of the people," voids a rule which substitutes an irrebuttable presumption for facts), constitution. It is ordinarily the due process clause, either of the federal constitution, or the corresponding provision of the appropriate state constitution, which will determine its validity.[20] See McMillan v. Pennsylvania, 477 U.S. 79, 83, 85-86, 106 S.Ct. 2411, 2414-16, 91 L.Ed.2d 67, 74-76 (1986); Liparota, 471 U.S. at 424 n. 6, 105 S.Ct. at 2087 n. 6, 85 L.Ed.2d at 439 n. 6; Patterson v. New York, 432 U.S. 197, 202, 97 S.Ct. 2319, 2323, 53 L.Ed.2d 281, 287 (1977); Smith, 361 U.S. at 149, 80 S.Ct. at 217, 4 L.Ed.2d at 209; Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519, 1524 (1943); Chaplinski v. New Hampshire, 315 U.S. 568, 570-71, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031, 1034-35 (1942); Manley v. Georgia, 279 U.S. 1, 6, 49 S.Ct. 215, 217, 73 L.Ed. 575, 578 (1929); McFarland v. American Sugar Refining Company, 241 U.S. 79, 85-86, 36 S.Ct. 498, 501, 60 L.Ed. 899, 904 (1916); Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855) (Due Process clause restricts legislative power arbitrarily to declare what is "due process of law"). Mahoney, 187 Md. at 87, 48 A.2d at 603; Johns v. State, 55 Md. 350, 363 (1881); McLain, Maryland Practice, "Irrebuttable Presumptions and Constitutional Limitations In Criminal Cases," § 303.1. See generally L. Tribe, American Constitutional Law, Ch. 10 (2nd 1988).
Due process, whether pursuant to that clause of the Fourteenth Amendment[21] or the corresponding clause in a state constitution, protects an accused from being convicted of a crime except upon proof beyond a reasonable doubt of every element necessary to constitute the crime with which the accused is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970); Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 1883, 44 L.Ed.2d 508, 512 (1975). It thus implicates the basic characteristics, if not the fundamental underpinnings, of the accusatorial system. In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072-73, 25 L.Ed.2d at 375. See Gilbert & Moylan, supra, § 45.0, 589-590.
Under our system of justice, a person charged with a crime is presumed innocent until he or she is found guilty beyond a reasonable doubt. That means that he or she may not be found guilty until the State has produced evidence sufficient to convince the trier of fact, to the required extent, of that person's guilt. Moreover, although not required to do so, the defendant may present a defense, in which event the evidence the defendant produces must be assessed along with that of the State in determining whether the State has met its burden. The State's burden is not reduced or changed in any way simply because the defendant elects not to interpose a defense. In those cases, the defendant may still seek to convince the trier of fact that the State has not met its burden of proof by arguing that the inferences to be drawn from the evidence the State has produced simply is not sufficient to support guilt.
Irrebuttable presumptions are rules of substantive law. McLain, §§ 301.1, 303.1; Gilbert & Moylan, supra, § 45.12. See also 9 J. Wigmore, Evidence, § 2492 at 307-08, "Conclusive Presumptions" (Chadbourne Rev. 1981), in which it is explained:
Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that where the first fact is shown to exist, the second fact's existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence.
Thus, irrebuttable presumptions help to define the issues pertinent to a particular kind of case, McLain § 303.1 at 241, and, in that sense, because the substantive law determines the issues to be proved, govern the admission of evidence, thus establishing the perimeters of relevance and materiality. Id., § 301.1 at 183. They may be statutory, McLain, § 303.1 at 182 n. 2, or have their origin in the common law. See In re Davis, 17 Md. App. 98, 100 n. 1, 104, 299 A.2d 856, 858 n. 1, 860 (1973); Miller v. Graff, 196 Md. 609, 620, 78 A.2d 220, 224 (1951). Accordingly, at common law, children under the age of 7 were, and still are, irrebuttably presumed to be incapable of forming criminal intent, Davis, and children under 4 years of age, were, and are, irrebuttably presumed to have been incapable of contributory negligence. As a matter of substantive law, therefore, children of those ages could not then, and may not now, be prosecuted under the criminal law, be sued for negligence, or held to be contributorially negligent. Similarly, section 463(a)(3) reflects the irrebuttable presumption that a child under 14 years of age is incapable of consenting to sexual intercourse. See Rau, 133 Md. at 613-616, 105 A. at 867.
When the Legislature enacts a strict liability crime, i.e., promulgates a statute which excludes as an element, the defendant's mental state, it essentially creates an irrebuttable presumption that the defendant's mental state, i.e., knowledge or intent, is irrelevant. See McLain, § 301.1 at 183. That is the case with regard to statutory rape. Notwithstanding that it chooses to accomplish that result by defining the crime, rather than by means of an express presumption, which relieves the State of its burden of proof, the fact remains that the result is exactly the same: anyone who has sexual relations with a female under the age of 14 is treated as if he knew that she was under 14 and so intended to have such relations with a 14 year old female. It thus relieves the State of any duty to produce relevant evidence to prove the defendant's mental state, that he knew the prosecutrix's age, and prevents the defendant from proving the contrary. Because the irrebuttably presumed fact does not follow inextricably from the fact of sexual relations with a 14 year old, its use to relieve the State of its burden of proof to prove the defendant's intent in that regard runs afoul of the due process clause of the Fourteenth Amendment.
Irrebuttable, mandatory, presumptions have long been disfavored and held to be violative of due process. Vlandis v. Kline, 412 U.S. 441, 446, 453, 93 S.Ct. 2230, 2233, 2237, 37 L.Ed.2d 63, 68, 73 (1973), and cases therein cited. One of the bases for the disfavor is that they may conflict with the overriding presumption of innocence which the law accords to the accused and invade the fact finding process, which, in a criminal case, is the exclusive province of the jury. See Carella v. California, 491 U.S. 263, 268, 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218, 223 (1989) (Scalia, J. concurring) (jury instructions relieving the prosecution of its burden of proof violate a defendant's due process rights; whether he or she is believed ordinarily is a question of fact for the jury to decide, not one of law for the Legislature). The more usual reason for disfavoring irrebuttable presumptions, however, is that the fact conclusively presumed "is not necessarily or universally true in fact," Vlandis, 412 U.S. at 452, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, and, so, excusing the proponent of that fact from having to establish it renders the statute "arbitrary, illegal, capricious and hence unconstitutional." Mahoney, 187 Md. at 87, 48 A.2d at 603.[22] This is especially so when the presumed fact bears little or no relation to the statute's expressed objective. Vlandis, 412 U.S. at 448-49, 93 S.Ct. at 2234-35, 37 L.Ed.2d at 69-70. Nor, "where there are other reasonable and practicable means of establishing the pertinent facts on which the State's objective is premised," id. at 451, 93 S.Ct. at 2236, 37 L.Ed.2d at 71, may a conclusive presumption, not otherwise appropriate, be rendered acceptable or, because it is a matter of "administrative ease and certainty," id., the State's burden reduced.
The statute invalidated in Vlandis conclusively presumed that the applicant's residence when he applied for admission to a Connecticut University remained his residence throughout his college years. At issue in Mahoney was Rule 146 of the Maryland Racing Commission, the pertinent portion of which provided:
"(d) If the Commission finds from analysis of the saliva or urine, or blood taken from a horse on the day of a race in which the horse ran, or from other competent evidence, that any drug had been administered to the horse within forty-eight (48) hours before the race, the trainer shall be subject to the penalties prescribed in subsection (e) hereof, whether or not he administered the drug, or knowingly or carelessly permitted it to be administered. The fact that the analysis shows the presence of a drug shall be conclusive evidence either that there was knowledge of the fact on the part of the trainer or that he was guilty of carelessness in permitting it to be administered."
187 Md. at 83-84, 48 A.2d at 602. See also United States v. Wulff, 758 F.2d 1121, 1122 (6th Cir.1985) (interpreting the Migratory Bird Treaty Act, a strict liability statute); Guest, 583 P.2d at 838-39 (holding Alaska's statutory rape statute unconstitutional as a violation of due process).
Smith, Tot, and Lambert are also apposite. The ordinance at issue in Smith made it unlawful "for any person to have in his possession any obscene or indecent writing, [or] ... books [i]n any place of business where ... books ... are sold or kept for sale." 361 U.S. at 148, 80 S.Ct. at 216, 4 L.Ed.2d at 208. It did not require proof of any mental element on the part of the defendant. Id. at 149, 80 S.Ct. at 216, 4 L.Ed.2d at 208. Noting, but rejecting, the State's attempt to "analogize this strict liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example," the Court observed (id. at 152-153, 80 S.Ct. at 218, 4 L.Ed.2d at 211 (citation omitted)):
The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors — in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used.... His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller.
In Lambert, a Los Angeles ordinance required convicted felons who remained in the city for more than five days to register with the police. It did not contain any "knowledge" or mens rea requirement. The Supreme Court held:
actual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand.... Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process. Were it otherwise, the evil would be as great as it is when the law is written in print too fine or in a language foreign to the community.
355 U.S. at 229-30, 78 S.Ct. at 243-44, 2 L.Ed.2d at 232.
Similarly, in Tot, holding that section 2(f) of the Federal Firearms Act violated the Due Process Clauses of the Fifth and Fourteenth Amendment, 319 U.S. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524, the Court overturned the defendant's conviction. It held that Congress had no power to create the presumptions contained in that section to wit: that, from the defendant's prior conviction of a crime of violence and his present possession of a firearm, it is conclusively presumed that the firearm was received in interstate or foreign commerce, after the effective date of the statute. Id. at 467, 63 S.Ct. at 1245, 87 L.Ed. at 1524. Rejecting the Government's argument that it was entitled to the presumption because the defendant had the better means of information, the Court said (id. at 469, 63 S.Ct. at 1246, 87 L.Ed. at 1525):
But the argument proves too much. If it were sound, the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt. This is not permissible. (footnote omitted).
In the case sub judice, by consciously and intentionally excluding from section 463(a)(3) any requirement that the defendant's knowledge of the victim's age be proven, the Legislature has relieved the State of that obligation; without that legislation, of course, the State's burden would have included proving, at the very least, that the defendant knew the prosecutrix's age. On the issue of the defendant's intent, section 463(a)(3) only requires proof of the victim's age and its differential with that of the defendant. As such, once those facts have been proven, it is conclusively established that the defendant's intent was to have sexual relations with a girl of the proscribed age.[23] As we have seen, not requiring proof of the defendant's intent has been accomplished by so defining the crime, not by means of an express presumption. Again, that is of no real consequence, however. By defining the crime, the Legislature prescribes what must be proven. In other words, by that process, it has determined what the rule of substantive law will be — by defining the crime so as to exclude proof of knowledge or intent, the Legislature naturally precludes the admission of any evidence bearing on the element, the proof of which it has excused. In so doing, it has made that element — intent or knowledge of the victim's age — irrelevant to the definition of the crime and, hence, irrebuttable. Wigmore, § 2492 at 307-08. It follows, therefore, that, once the other elements are proven, the defendant's knowledge or intent is necessarily established as well. It does not necessarily follow, however, that simply because the victim is 13 years old, the defendant had knowledge of her age or intended to have sexual relations with a 13 year old girl. He may have had knowledge or intent, to be sure, but, by the same token, he may not have. The defendant should have been permitted to present evidence on the issue.
In her treatise, Professor McLain, echoing the authorities, offered an example of the Legislature redefining a crime to exclude an element, without relying on an irrebuttable presumption. She referred to Maryland Code (1957, 1992 Repl. Vol.) Art. 27, § 286A[24] which punishes a defendant for possession of certain large amounts of drugs, without regard to intent. That is not comparable to the case sub judice. While, under the statute, it is true that the possession of the proscribed drugs is a crime without proof of the intent with which they are possessed, the State is not relieved of its responsibility of proving both that they were brought into Maryland and that the possession was a knowing possession. Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). In the case of statutory rape all aspects of the defendant's knowledge, save proof of the intercourse itself, has been rendered, by definition, irrelevant and, so, off limits for the trial. That is, I repeat, by no means comparable.
The critical issue in a statutory rape case is "the age of the rape victim." That is true because the victim's age serves two related, but distinct purposes: (1) it establishes the victim's capacity to consent and (2) it represents notice to a defendant of proscribed conduct. The Maryland statute seeks irrebuttably to presume not only that the victim could not consent by virtue of age, but also that, when a defendant engages in sexual relations with a minor under the age of 14, he has notice of that fact. Assuming that, based on the victim's age, the Legislature could legitimately exclude consent as an element of the crime,[25] it absolutely should not be able to excuse the State from its obligation to prove the defendant's knowledge of the victim's age or prevent the defendant from producing evidence on that issue. No matter how forcefully it may be argued that there is a rational relationship between the capacity to consent and the age the Legislature selected, given the tremendous difference between individuals, both in appearance and in mental capacity, there can be no such rational relationship between the proof of the victim's age and the defendant's knowledge of that fact.[26] See Tot, 319 U.S. at 469, 63 S.Ct. at 1245-46, 87 L.Ed. at 1525. Mahoney, 187 Md. at 87, 48 A.2d at 603.
The notice element of the crime of statutory rape is different from the consent element, in any event. A defendant who has knowledge that a victim has consented, in fact, to sexual relations, whether the consent is effective or not, is not thereby placed on notice as to the victim's age. Knowledge of consent simply does not equate with knowledge of age, just as intent to engage in sexual relations does not reveal, without more, with whom. Moreover, it is not a crime to engage in sexual relations with a minor who is at least 16 years old; it may be morally wrong, in the minds of most Americans, but it is not a crime. It is only a crime if the defendant engages in such relations with a minor under a specified age, i.e., 14, as in section 463(a)(3), or 14 or 15, as in section 464C. But even when the act engaged in is necessarily a crime, e.g. possession of contraband, knowledge of the illegality — that the contraband is knowingly possessed — is still required. See Dawkins v. State, 313 Md. 638, 547 A.2d 1041 (1988). Consequently, where the activity would be legal or, at least, not illegal, but for the ages of the participants, at the very least, the defendant's knowledge of the victim's age must be proven. Otherwise, a defendant who does not know he is acting illegally could be convicted.
Moreover, there is precedent that a felony statute which prescribes substantial penalties and conviction of which will subject the defendant to significant social stigma, violates due process unless it requires the State to prove intent or knowledge, Wulff, 758 F.2d at 1125; Holdridge v. United States, 282 F.2d 302 (8th Cir.1960); United States v. Heller, 579 F.2d 990 (6th Cir.1978); Guest, 583 P.2d 836 (Ala. 1978).[27]
In Wulff, the defendant was charged with violation of the felony provisions of the Migratory Bird Treaty Act, 16 U.S. § 707(b). On motion by the defendant, the trial court dismissed the charges, holding that the provisions under which he was charged violated due process, no proof of intent being required. On appeal by the Government, the Court of Appeals affirmed. 758 F.2d at 1122. That court perceived the issue to be "whether the absence of a requirement that the government prove some degree of scienter violates the defendant's right to due process." In resolving that issue, it observed, relying on Holdridge, supra, that "a felony conviction under the act does not require proof of scienter; the crime is not one known to the common law, and ... the felony penalty provision is severe and would result in irreparable damage to one's reputation." Id. The court then held:
We are of the opinion that in order for one to be convicted of a felony under the MBTA, a crime unknown to common law which carries a substantial penalty, Congress must require the prosecution to prove the defendant acted with some degree of scienter. Otherwise, a person acting with a completely innocent state of mind could be subjected to a severe penalty and grave damage to his reputation. This, in our opinion, the Constitution does not allow.
Id. at 1125. See Holdridge, 282 F.2d at 310, in which it is said:
[W]here a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause.
A similar result was reached by the Supreme Court of Alaska in Guest, involving a charge of statutory rape. Significantly, having held that, under its precedents, a reasonable mistake of age defense was permitted, the court submitted:
[W]here a particular statute is not a public welfare type of offense, either a requirement of criminal intent must be read into the statute or it must be found unconstitutional.... Since statutes should be construed where possible to avoid unconstitutionality, it is necessary here to infer a requirement of criminal intent.
Id. at 839 (citations and footnote omitted).
Similarly, the prosecution of statutory rape in Maryland necessarily brings into conflict the State's interests in protecting minors and defendants' due process rights because section 463(a)(3) operates "`to exclude elements of knowledge and diligence from its definition,'" Ransom, 942 F.2d at 776, quoting Lambert, 355 U.S. at 228, 78 S.Ct. at 242, 2 L.Ed.2d at 231, and, thus, removes reasonable ignorance of the girl's age and consequent lack of criminal intent as a defense. The failure of section 463(a)(3) to require proof of a culpable mental state conflicts both with the substantive due process ideal requiring that defendants possess some level of fault for a criminal conviction of statutory rape and the procedural due process ideal requiring that the prosecution overcome the presumption of innocence by proof of the defendant's guilt beyond a reasonable doubt. Notwithstanding the maxim that criminal statutes dispensing with the intent requirement and criminal offenses requiring no mens rea have a "generally disfavored status," the rationale of parts V and VI of the majority opinion is that the legislature has absolute authority to create strict liability crimes. For the reasons reviewed, I do not agree. On the contrary, I believe that due process both under the Fourteenth Amendment and under the Declaration of Rights, precludes strict criminal liability for statutory rape. Interpreting section 463(a)(3) as the majority does has the effect of largely relieving the State of its burden of proof and burden of persuasion. By making the defendant's intent, and, hence, blameworthiness, irrelevant, the Legislature has made inevitable, the petitioner's conviction. Moreover, upon conviction of the felony offense of statutory rape under section 463(a)(3), in addition to a substantial penalty of up to 20 years imprisonment, a defendant's reputation will be gravely besmirched. Where there is no issue as to sexual contact, which is more likely than not to be the case in statutory rape prosecutions, proof of the prosecutrix's age is not only proof of the defendant's guilt, it is absolutely dispositive of it and, at the same time, it is fatal to the only defense the defendant would otherwise have. So interpreted, section 463(a)(3) not only destroys absolutely the concept of fault, but it renders meaningless, in the statutory rape context, the presumption of innocence and the right to due process.
I respectfully dissent.
[1] "If any person shall carnally know and abuse any woman-child under the age of ten years, every such carnal knowledge shall be deemed felony, and the offender, being convicted thereof, shall, at the discretion of the court, suffer death by hanging ... or undergo a confinement in the penitentiary for a period not less than one year nor more than twenty-one years." Ch. 138, Sec. 4, 7th. (1809) compiled in 1 Dorsey's General Public Statutory Law and Public Local Law of the State of Maryland 575 (1840). The minimum age of the child was raised from 10 years to 14 years in Chapter 410 of the Acts of 1890.
[2] With respect to the law of statutory rape, the Model Penal Code strikes a compromise with its general policy against strict liability crimes. The Code prohibits the defense of ignorance or a reasonable mistake of age when the victim is below the age of ten, but allows it when the critical age stipulated in the offense is higher than ten. Model Penal Code, supra, at §§ 213.1, 213.6(1). The drafters of the Code implicitly concede that sexual conduct with a child of such extreme youth would, at the very least, spring from a criminally negligent state of mind. The available defense of reasonable mistake of age for complainants older than ten requires that the defendant not have acted out of criminal negligence. See the Comment to § 213.6, at 415-416.
[3] Myers notes, too, that European law upholds mistake of age as a defense to statutory rape. Id. at 106, and n. 12.
[4] See also Ariz. Rev. Stat. Ann. § 13-1407(B) (1989, 1992 Cum.Supp.) (age 14); Ark. Code Ann. § 5-14-102 (1987) (age 14); Col.Rev.Stat. § 18-3-406 (1973, 1986 Repl.Vol.) (age 15); Ind. Code Ann. § 35-42-4-3 (1985 Repl.Vol.) (age 12); Mo. Ann. Stat. § 566.020 (1979) (age 14); Mont. Code Ann. § 45-5-511(1) (1991) (age 14); N.D. Cent. Code § 12.1-20-01.1 (1991 Supp.) (age 15); Wyo. Stat.Ann. § 6-2-308 (1988) (age 12).
[5] See also Ill.Comp.Stat. ch. 720, § 5/12-17(b) (1993) (defense available for offenses defined as criminal sexual abuse); Me. Rev. Stat. Ann. tit. 17-A, § 254.2 (1983, 1992 Cum.Supp.) (available for charge of sexual abuse of minors); Ohio Rev.Code Ann. § 2907.04 (1953, 1993 Repl. Vol.) (available for charge of corruption of minors).
[6] Both the California Penal Code and the Utah Criminal Code included provisions requiring a concurrence of act and intent to constitute a crime. The Utah Criminal Code further contained a provision authorizing convictions for strict liability offenses clearly defined as such. See Hernandez, supra, 39 Cal. Rptr. at 363, 393 P.2d at 675; Elton, supra, 680 P.2d at 728-729.
[7] The House version read in pertinent part: "A person is guilty of rape in the first degree if the person engages in vaginal intercourse: ... (2) with another person who is under 14 years of age and the person performing the act is at least four or more years older than the victim." As discussed earlier, the offense was reduced to second degree rape in 1977.
[1] In this connection, it should be noted that the defendant-appellant, in his opening brief in this Court, made no constitutional argument either directly or by invoking the principle of statutory construction that a statute should be construed so as to avoid a serious constitutional problem. Consequently, the State had no opportunity to brief the constitutional issue discussed in Judge Bell's dissent.
[2] As pointed out by one commentator, "it can be argued that if strict liability statutes are to be characterized as `strict' because of their failure to permit inquiry as to the defendant's state of mind, this description is too broad. More appropriately, each criminal statute must be examined to determine in what respects it is `strict.'" Wasserstrom, Strict Criminal Liability, 12 Stan.L.Rev. 731, 742 (1960).
[1] Maryland Code Ann., Art 27, § 463 provides, in pertinent part:
(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
* * * * * *
(3) Who is under 14 years of age and the person performing the act is at least four years older than the victim.
(b) Penalty. — Any person violating the provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 20 years.
[2] There are other provisions of the Maryland sexual offenses statutes similar in purpose and effect to section 463(a)(3). Md.Code (1957, 1992 Repl.Vol.) §§ 464A, 464B, and 464C also do not specify a mental state and, therefore, would also be, under the majority's rationale, strict liability crimes. Sections 464A and 464B define statutory second degree sexual act and statutory third degree sexual offense. Although neither involves intercourse, both are felonies with maximum penalties of 20 and 10 years respectively. Section 464C proscribes the same conduct as section 463(a)(2); however, it applies to minors 14 or 15 years old and it punishes that conduct much less severely. see n. 15 infra.
[3] The analysis I would employ is that developed for use in self defense cases, perfect and imperfect. Before the State's burden affirmatively to prove the defendant's mental state kicks in, the defendant must have generated the issue by producing "some evidence" supporting his or her claim of mistake of fact. State v. Martin, 329 Md. 351, 358-59, 619 A.2d 992, 995-96 (1993). If the defendant generates the issue, the State must prove beyond a reasonable doubt that the act was committed without any mistake of fact — that the defendant acted intentionally and knowingly. See id.; see also State v. Evans, 278 Md. 197, 208, 362 A.2d 629, 635 (1976); Dykes v. State, 319 Md. 206, 216-17, 571 A.2d 1251, 1257 (1990).
[4] The Court stated that exceptions were developed in the course of the common law for "sex offenses, such as rape, in which the victim's actual age was determinative despite the defendant's reasonable belief that the girl had reached age of consent." Morissette, 342 U.S. at 251 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8, It, however, did not discuss whether the exceptions could withstand constitutional scrutiny, stating only that the exceptions were not relevant to the case before the Court. See id.; 342 U.S. at 250-51 n. 8, 72 S.Ct. at 244 n. 8, 96 L.Ed. at 294 n. 8.
[5] In State v. McCallum, 321 Md. 451, 455-56, 583 A.2d 250, 252-53 (1991), we characterized the crime of driving with a suspended license as both punitive and regulatory and concluded that a mental state was required. The argument that § 463(a)(3), which is purely punitive, must require proof of a mental state is stronger.
[6] Maryland does not treat narcotic offenses as strict liability crimes. See Dawkins, 313 Md. 638, 547 A.2d 1041 (1988) (knowledge is an element of possession of a controlled dangerous substance).
[7] The Maryland bigamy statute, proscribing the entering into of a marriage ceremony while lawfully married to another, excludes from its coverage individual whose "lawful spouse has been absent from the individual for a continuous period of seven years and who, at the time of the subsequent marriage ceremony, does not know whether or not the spouse is living." Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 18(b). See Braun v. State, 230 Md. 82, 85-90, 185 A.2d 905, 906-07 (1962). The Legislature thus has now recognized the unfairness of convicting a person for remarrying if that person has a reasonable belief that his or her former spouse is dead.
[8] American penal statutes against fornication are generally unenforced, which may be reflective of the view that such a use of the penal law is improper. See Model Penal Code, § 213, Comment at 434.
[9] Sexual intercourse out of wedlock is still a crime in several American Jurisdictions. See Model Penal Code, § 213.6, Comment at 430. The prohibition derives from Biblical sources and long fell within the exclusive jurisdiction of the ecclesiastical authorities. Id. In England, secular punishment began under Cromwell's theocracy and was abandoned after the Restoration. Id. The Puritans of New England reinstituted punishment for sexual misbehavior. Id. At one time or another, most American states extended their penal laws to reach such misconduct, but the trend in this century has been toward decriminalization or reduction of penalties. See e.g. Baker v. Lease, 236 Md. 246, 248, 203 A.2d 700, 701 (1964). See generally Model Penal Code § 213.6, Comment at 430 (footnote omitted).
[10] A conviction plausibly could have been supported under the lesser legal wrong theory had the defendant been married when he had sex with the prosecutrix. Adultery remains a crime in Maryland. See Md.Code (1957, 1992 Repl.Vol.) Art. 27, § 4. The defendant's intent to commit adultery, the lesser legal wrong, would suffice as the requisite mental state for the greater crime of statutory rape.
[11] In contrast, one who engages in sexual relations with a child who clearly does not appear to be of the age of consent, for example, a minor 7 years of age, evidences a propensity to corrupt minors. Because that person necessarily is aware that the minor is not of the age to consent, almost all authorities believe that he or she is properly held accountable on a strict liability basis. See e.g. Model Penal Code, § 213.6, Comment at 415-16.
[12] An offense malum in se is properly defined as one which is naturally evil as adjudged by the sense of a civilized community. Acts mala in se have, as a general rule, become criminal offenses by the course and development of common law. Black's Law Dictionary 281 (1984). In comparison, an act malum prohibitum is wrong only because made so by statute. Id. Malum in se crimes usually include all felonies, injuries to property, adultery, bigamy, indecent acts committed upon underage children, and conduct contributing to the delinquency of a minor. See Myers, supra, at 115; see also Rollin M. Perkins and Ronald N. Boyce, Criminal Law, 109 (3rd ed. 1982).
[13] The mistaken belief must tend to negate the mens rea necessary to the commission of the crime. For example, belief that the victim was 13 1/2 years of age, instead of 13, will be of no avail since section 463(a)(3)'s age limit is 14.
[14] It is noteworthy that the early English statutes providing for strict criminal liability for statutory rape did not deny the defense of mistake of fact. Under very early English common law, it was no crime to have consensual relations with a female, regardless of her age. Myers, supra, at 109, citing 4 W. Blackstone Commentaries [*]210 and 2 Coke, Institutes [*]180. It was not until the latter part of the thirteenth century that legislation was enacted in England making it unlawful to ravish "damsels" under the age of 12 years, with or without their consent, considered an action of trespass, with a penalty of two years and a fine in such sum as the sovereign directs. Gilbert & Moylan, Criminal Law, § 5.0., citing 4 W. Blackstone, Commentaries [*]212. Toward the close of the 16th century, the age of consent was reduced to 10 years old, the purpose of the statute being to declare that a girl under the prescribed age was presumed incapable of consent because she was too young to understand the nature and quality of her act. Myers, supra, at 109-10; Charles E. Torcia, Wharton's Criminal Law, § 291; 1 Blackstone Comm. [*]212. The offense was also increased to a felony. See Gilbert & Moylan, Criminal Law, § 5.0., citing 13 Edward I, Statute of Westminster 2, c.34 and Statute 18 Elizabeth I, c. 7. English courts, in contrast to American courts, which never have allowed it, however, never denied the existence of the reasonable mistake of fact defense. Myers, supra, at 111. American Courts erroneously interpreted Regina v. Prince, L.R. 2 Cr.Cas.Res. 154 (1875), cited in Myers, supra, at 111, and applied its rationale to statutory rape.
[15] Two policy considerations have historically been advanced to justify strict criminal liability for statutory rape: (1) it is desirable to provide the fullest protection to the innocent and naive female child incapable of understanding the nature of sexual intercourse; and (2) the act is immoral in itself, malum in se, discussed supra, and, so, it is appropriate to hold that the offender acts at his peril. See Tonry, supra, at 111.
Establishing an age, below which females are considered sexually immature and above which, they are considered sexually mature, does not assure that the first policy consideration will be achieved. See Tonry, supra, at 111. Age alone is not sufficient, considering that, in this country, the age of consent for statutory rape purposes ranges from 7 to 21 years. Id.
The inadequacy of age as a demarcation line actually points up the flaws in the strict criminal liability analysis. First, it would seem reasonable to allow the accused to introduce evidence of the minor's maturity, sophistication, and past sexual experience, since maturity, not age, is the chief concern, age being but a factor. Second, the age standard (unless it is low enough) with its universal application draws an arbitrary line, resulting in the imposition of disproportionate penalties. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977); see also Tonry, supra, at 112. Thus, for example, pursuant to section 463(a)(3) sexual intercourse with a person under 14 years of age, if the actor is at least four years older than the victim, is a second degree rape offense punishable by a possible twenty years imprisonment. Under section 464C, defining a fourth degree sexual offense, the same conduct if committed with a child 14 or 15 is punishable by a possible 1 year sentence. Thus, the law creates a potential disparity of up to 19 years for a difference of as little as one day in the victim's age. See J. William Pitcher, Legislation, 7 Balt.L.Rev. 150, 165 (1977). Third, placing the age standard too high may result in the anomaly of a female being legally able to consent to marriage, but unable to consent to intercourse. Tonry, supra, at 112, citing Ploscowe, Sex and the Law 184 (1951).
[16] While consent was not an element of assault with intent to have carnal knowledge of a female child under 14 years, by definition, the intent to have such knowledge of a 14 year old child was. Consequently, focusing on intent, the result in that case was not inconsistent with the common law.
[17] Recognizing that the statutory rape law stemmed from traditional notions underlying the presumption of incapacity to consent, presuming that the male was responsible for the occurrence and the female was "too innocent and naive to understand the implications and nature of her act", in Hernandez, 61 Cal.2d at 531 n. 1, 39 Cal. Rptr. at 362 n. 1, 393 P.2d at 674 n. 1, the California Supreme Court quoted the following passage from State v. Snow, 252 S.W. 629, 632 (Mo. 1923) to illustrate the potentially unfair consequences of employing these presumptions of female victimization:
"We have in this case a condition and not a theory. This wretched girl was young in years but old in sin and shame. A number of callow youths, of otherwise blameless lives ... fell under her seductive influence. They flocked about her, ... like moths about the flame of a lighted candle and probably with the same result. The girl was a common prostitute. .. .
The boys were immature and doubtless more sinned against than sinning. They did not defile the girl. She was a mere `cistern for foul toads to knot and gender in.' Why should the boys, misled by her, be sacrificed? What sound public policy can be subserved by branding them as felons? Might it not be wise to ingraft an exception in the statute?"
Today, the increasing sexual awareness and promiscuity currently evident at lower ages enhances the probability that sexual experimentation will be indulged in, and many times solicited, by the supposed victim. See Myers, supra, at 122. Indeed, in this case there is every reason to question whether the victim was the petitioner, rather than the minor female. The petitioner has an IQ of 52. The prosecutrix and her friends told the petitioner that she was 16 and the record does not suggest that she did not appear to be that age. The petitioner entered the prosecutrix's room at her invitation and remained with her for almost seven hours.
[18] Although it is not necessary in this case to reach the issue, I am not nearly so troubled by the retention of strict liability in cases involving very young children, i.e. under the age of 10, while requiring the State to prove mens rea in cases involving minors above the age of 10.
[19] The offer of proof of the defendant's alleged mistake of fact does not alone establish that fact. Unless the jury, or trier of fact, accepts the proof, the defense must fail. Whether a defendant actually entertained the belief that the minor was 16 and, if so, its reasonableness, must depend upon the minor's appearance and the evidence, including the testimony of the defendant and other witnesses, concerning her behavior. Rather than place the burden of proof on the State, as I would do, under the Code, the burden is on the defendant not only to generate the issue, but to prove it by a preponderance of the evidence. See Model Penal Code, § 213.6, Comment at 416.
[20] Article 20 of the Maryland Declaration of Rights, which has been held to be in pari materia with the Fourteenth Amendment's Due Process Clause, see Sanner v. Trustees of Sheppard & Enoch Pratt Hosp., 278 F. Supp. 138 (D.Md.), aff'd, 398 F.2d 226 (4th Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968), rehearing denied, 393 U.S. 1112, 89 S.Ct. 853, 21 L.Ed.2d 813 (1969) (citations omitted); Home Utilities Co., Inc. v. Revere Copper and Brass, Inc., 209 Md. 610, 122 A.2d 109 (1955); Goldsmith v. Mead Johnson & Co., 176 Md. 682, 7 A.2d 176 (1939), provides:
That the trial of facts, where they arise, is one of the greatest securities of the lives, liberties and estate of the people.
See also Article 24 of the Maryland Declaration of Rights, which provides:
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.
The phrase "Law of the land" has been held to be equivalent to "due process" of the law, as used in the 14th Amendment to the United States Constitution. In re Easton, 214 Md. 176, 187-89, 133 A.2d 441, 447-48 (1957). In that regard, therefore, Supreme Court cases on that subject are practically direct authority for the meaning of the Maryland provision. Northampton Corp. v. Wash. Sub. San. Comm'n, 278 Md. 677, 686, 366 A.2d 377, 383 (1976). The essential elements of due process as it relates to a judicial proceeding are notice and opportunity to defend. Accrocco v. Splawn, 264 Md. 527, 534, 287 A.2d 275, 278-80 (1972).
[21] The due process clause of the Fourteenth Amendment of the United States Constitution guarantees that no State shall "deprive any person of life, liberty or property without due process of law." This clause has been interpreted as "a restraint on the legislative as well as on the executive and judicial powers of the government and [it] cannot be ... construed as to leave Congress free to make any process `due process' of law by its mere will." Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276, 15 L.Ed. 372 (1855). L. Tribe, American Constitutional Law § 10-7, at 664 (2nd ed. 1988).
[22] In Johns v. State, 55 Md. 350, 359-63 (1881), cited by this Court in Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600, 603 (1946), a statute requiring the certificate of the Comptroller to be received as prima facie evidence of the defendant's defalcation was upheld. In doing so, however, the Court was persuaded by the fact that the evidence was only prima facie:
So far as this case is concerned, it may readily be conceded, that a statute that should make evidence conclusive, which was not so of its own nature and inherent force, and by that means preclude the party from the truth, would be simply void. But the evidence furnished by the certificate only being prima facie in its effect, the traverser was left at full liberty to repel and overcome that prima facie effect, by evidence that ought to have been within his own control.
Id. at 362-63.
[23] To be sure, the statute is based on another irrebuttable presumption: that the victim is incapable of consenting. My argument is not directed at that presumption, albeit it is, in my opinion, logically, also fair game for constitutional challenge. See n. 26: see Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3. It is certainly not universally true, or even almost always true, that a minor 13 years of age is incapable of giving meaningful consent. See note 25 infra.
[24] § 286A. Bringing into State in excess of certain amounts.
(a) A person who brings into this State any of the following controlled dangerous substances which it is unlawful for that person to possess, in the amounts indicated, upon conviction, is subject to the penalty provided in subsection (b) of this section:
(1) 100 pounds or greater of marijuana;
(2) 28 grams or greater of cocaine or any mixture containing 28 grams or greater of cocaine;
(3) 4 grams or more of morphine or opium or any derivative, salt, isomer, or salt of an isomer of morphine or opium;
(4) 1,000 dosage units of lysergic acid diethylamide or any mixture containing the equivalent of 1,000 dosage units of lysergic acid diethylamide;
(5) 28 grams or more of phencyclidine in liquid or powder form or 112 grams or more of any mixture containing phencyclidine;
(6) 1,000 dosage units or more of methaqualone; or
(7) 28 grams or more of methamphetamines or any mixture containing 28 grams or more of methamphetamine.
(b) A person convicted of violating subsection (a) of this section is guilty of a felony and may be fined not more than $50,000 or imprisoned for not more than 25 years, or both fined and imprisoned in the discretion of the court.
[25] It is at least arguable that incapacity to consent based on an irrebuttable presumption cannot withstand constitutional scrutiny. For statutory rape to comport with due process, a close correlation between the age of consent specified in the statute and the purpose of the statute — to render minors incapable of consenting to sexual intercourse — is required. It is not necessarily true that a statutory age of consent is a reliable indicator of the capacity of any member of the protected class to understand the nature and consequences of sexual intercourse. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Myers, supra, at 121. Given the variety of cultural factors that can influence a child's acquisition of sexual awareness, it is unlikely that any arbitrary age could do so. Rita Eidson, Note, The Constitutionality of Statutory Rape Laws, 27 UCLA L.Rev. 757, 808 (1980). While it is reasonable to presume that very young children are naive and incapable of understanding the nature of sexual contact, and, thus, of consenting, an older adolescent's incapacity to consent on this basis seems unreasonable in light of pervasive contemporary sexual mores. See Hernandez, 61 Cal.2d at 534 n. 3, 39 Cal. Rptr. at 364 n. 3, 393 P.2d at 676 n. 3; see also Note, supra, at 808-809.
[26] Indeed, it would appear that the irrebuttable presumption of notice is dependent on another irrebuttable presumption, that a person of a certain age cannot consent.
[27] As discussed supra, there are several critical distinctions between imposing strict criminal liability for public welfare offenses and felonies. First, there is no specific constitutional provision against imposing strict criminal liability for public welfare offenses. See Smith, 361 U.S. at 152, 80 S.Ct. at 218, 4 L.Ed.2d at 211; Singer, supra at 389. Second, such statutes which are designed to protect the health, safety, and welfare of the community at large, carry penalties that are not great and involve little or no stigma. See Tonry, supra, at 106.
On the other hand, there are constitutional limits on a legislature's power to define the elements of more serious criminal offenses like felonies. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75; Wulff, 758 F.2d at 1125; Singer, supra, at 397. Second, the greater social stigma attached to imposing criminal liability in serious felony cases requires an element of blameworthiness or culpability. See Singer, supra, at 404-405. Third, the severe penalties in serious felony cases merit a culpability requirement. See Holdridge, 282 F.2d 302.
7.2.8.2.3.8 B. v. Dir. Public Prosecutions 7.2.8.2.3.8 B. v. Dir. Public Prosecutions
B. v. Director of Public Prosections
House of Lords.
1 All E.R. 833.
February 23, 2000.
LORD IRVINE OF LAIRG L.C.
My Lords,
For the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead, in his speech, which I have had the advantage of reading in draft, this appeal should be allowed.
LORD MACKAY OF CLASHFERN
My Lords,
I have had the advantage of reading in draft the speeches prepared by noble and learned friends Lord Nicholls of Birkenhead, Lord Steyn and Lord Hutton.
In the light of the authorities to which they refer I consider that a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was aged 14 years or over, unless Parliament expressly or by necessary implication provided to the contrary. Clearly this has not been done expressly. For the reasons given by my noble and learned friends I consider that there is no sufficiently detailed legislative policy manifested by the Sexual Offences Act 1956 to which the Act of 1960 is an appendix to provide a basis for the necessary implication in respect of what was in 1960 a new offence. Accordingly this appeal should be allowed.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
An indecent assault on a woman is a criminal offence. So is an indecent assault on a man. Neither a boy nor a girl under the age of sixteen can, in law, give any consent which would prevent an act being an assault. These offences have existed for many years. Currently they are to be found in sections 14 and 15 of the Sexual Offences Act 1956. They have their origins in sections 52 and 62 of the Offences against the Person Act 1861.
In the early 1950s a lacuna in this legislation became apparent. A man was charged with indecent assault on a girl aged nine. At the man's invitation the girl had committed an indecent act on the man. The Court of Criminal Appeal held that an invitation to another person to touch the invitor could not amount to an assault on the invitee. As the man had done nothing to the girl which, if done against her will, would have amounted to an assault on her, the man's conduct did not constitute an indecent assault on the girl. That was the case of Fairclough v. Whipp [1951] 2 A.E.R. 834. Two years later the same point arose and was similarly decided regarding a girl aged eleven: see Director of Public Prosecutions v. Rogers [1953] 1 W.L.R. 1017. Following a report of the Criminal Law Revision Committee in August 1959 (First Report: Indecency with Children (Cmnd. 835)), Parliament enacted the Indecency with Children Act 1960. Section 1(1) of this Act makes it a criminal offence to commit an act of gross indecency with or towards a child under the age of fourteen, or to incite a child under that age to such an act. The question raised by the appeal concerns the mental element in this offence so far as the age ingredient is concerned.
The answer to this question depends upon the proper interpretation of the section. There are, broadly, three possibilities. The first possible answer is that it matters not whether the accused honestly believed that the person with whom he was dealing was over fourteen. So far as the age element is concerned, the offence created by section 1 of the Indecency with Children Act 1960 is one of strict liability. The second possible answer is that a necessary element of this offence is the absence of a belief, held honestly and on reasonable grounds by the accused, that the person with whom he was dealing was over fourteen. The third possibility is that the existence or not of reasonable grounds for an honest belief is irrelevant. The necessary mental element is simply the absence of an honest belief by the accused that the other person was over fourteen.
The common law presumption
As habitually happens with statutory offences, when enacting this offence Parliament defined the prohibited conduct solely in terms of the proscribed physical acts. Section 1(1) says nothing about the mental element. In particular, the section says nothing about what shall be the position if the person who commits or incites the act of gross indecency honestly but mistakenly believed that the child was fourteen or over.
In these circumstances the starting point for a court is the established common law presumption that a mental element, traditionally labelled mens rea, is an essential ingredient unless Parliament has indicated a contrary intention either expressly or by necessary implication. The common law presumes that, unless Parliament indicated otherwise, the appropriate mental element is an unexpressed ingredient of every statutory offence. On this I need do no more than refer to Lord Reid's magisterial statement in the leading case of Sweet v. Parsley [1970] A.C. 132, 148-149:
'. . . there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea. . . . it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary.'
Reasonable belief or honest belief
The existence of the presumption is beyond dispute, but in one respect the traditional formulation of the presumption calls for re-examination. This respect concerns the position of a defendant who acted under a mistaken view of the facts. In this regard, the presumption is expressed traditionally to the effect that an honest mistake by a defendant does not avail him unless the mistake was made on reasonable grounds. Thus, in The Queen v. Tolson (1889) 23 Q.B.D. 168, 181, Cave J. observed:
'At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which a prisoner is indicted an innocent act has always been held to be a good defence. This doctrine is embodied in the somewhat uncouth maxim 'actus non facit reum, nisi mens sit rea'. Honest and reasonable mistake stands on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty, as in lunacy. . . . So far as I am aware it has never been suggested that these exceptions do not equally apply in the case of statutory offences unless they are excluded expressly or by necessary implication.'
The other judges in that case expressed themselves to a similar effect. In Bank of New South Wales v. Piper [1897] A.C. 383, 389-390, the Privy Council likewise espoused the 'reasonable belief' approach:
'. . . the absence of mens rea really consists in an honest and reasonable belief entertained by the accused of facts which, if true, would make the act charged against him innocent.'
In Sweet v. Parsley [1970] A.C. 132, 163, Lord Diplock referred to a general principle of construction of statutes creating criminal offences, in similar terms:
'. . . a general principle of construction of any enactment, which creates a criminal offence, [is] that, even where the words used to describe the prohibited conduct would not in any other context connote the necessity for any particular mental element, they are nevertheless to be read as subject to the implication that a necessary element in the offence is the absence of a belief, held honestly and upon reasonable grounds, in the existence of facts which, if true, would make the act innocent.'
The 'reasonable belief' school of thought held unchallenged sway for many years. But over the last quarter of a century there have been several important cases where a defence of honest but mistaken belief was raised. In deciding these cases the courts have placed new, or renewed, emphasis on the subjective nature of the mental element in criminal offences. The courts have rejected the reasonable belief approach and preferred the honest belief approach. When mens rea is ousted by a mistaken belief, it is as well ousted by an unreasonable belief as by a reasonable belief. In the pithy phrase of Lawton L.J. in Regina v. Kimber [1983] 1 W.L.R. 1118, 1122, it is the defendant's belief, not the grounds on which it is based, which goes to negative the intent. This approach is well encapsulated in a passage in the judgment of Lord Lane C.J. in Regina v. Williams (Gladstone) (1983) 78 Cr.App. R. 276, 281:
'The reasonableness or unreasonableness of the defendant's belief is material to question of whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant. Were it otherwise, the defendant would be convicted because he was negligent in failing to recognise that the victim was not consenting . . . and so on.'
Considered as a matter of principle, the honest belief approach must be preferable. By definition the mental element in a crime is concerned with a subjective state of mind, such as intent or belief. To the extent that an overriding objective limit ('on reasonable grounds') is introduced, the subjective element is displaced. To that extent a person who lacks the necessary intent or belief may nevertheless commit the offence. When that occurs the defendant's 'fault' lies exclusively in falling short of an objective standard. His crime lies in his negligence. A statute may so provide expressly or by necessary implication. But this can have no place in a common law principle, of general application, which is concerned with the need for a mental element as an essential ingredient of a criminal offence.
The traditional formulation of the common law presumption, exemplified in Lord Diplock's famous exposition in Sweet v. Parsley, cited above, is out of step with this recent line of authority, in so far as it envisages that a mistaken belief must be based on reasonable grounds. This seems to be a relic from the days before a defendant in a criminal case could give evidence in his own defence. It is not surprising that in those times juries judged a defendant's state of mind by the conduct to be expected of a reasonable person.
I turn to the recent authorities. The decision which heralded this development in criminal law was the decision of your Lordships' House in Director of Public Prosecutions v. Morgan [1976] A.C. 182. This was a case of rape. By a bare majority the House held that where a defendant had sexual intercourse with a woman without her consent but believing she did consent, he was not guilty of rape even though he had no reasonable grounds for his belief. The intent to commit rape involves an intention to have intercourse without the woman's consent or with a reckless indifference to whether she consents or not. It would be inconsistent with this definition if an honest belief that she did consent led to an acquittal only when it was based on reasonable grounds. One of the minority, Lord Edmund-Davies, would have taken a different view had he felt free to do so. In Regina v. Kimber [1983] 1 W.L.R. 1118, a case of indecent assault, the Court of Appeal applied the approach of the majority in Morgan's case. The guilty state of mind was the intent to use personal violence to a woman without her consent. If the defendant did not so intend, he was entitled to be found not guilty. If he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge, irrespective of the grounds for the defendant's belief. The court disapproved of the suggestion made in the earlier case of Regina v. Phekoo [1981] 1 W.L.R. 1117, 1127, that this House intended to confine the views expressed in Morgan's case to cases of rape.
This reasoning was taken a step further in Reg. v. Williams (Gladstone) (1983) 78 Cr. App. R. 276. There the Court of Appeal, presided over by Lord Lane C.J., adopted the same approach in a case of assault occasioning actual bodily harm. The context was a defence that the defendant believed that the person whom he assaulted was unlawfully assaulting a third party. In Beckford v. The Queen [1988] A.C. 130 a similar issue came before the Privy Council on an appeal from Jamaica in a case involving a defence of self-defence to a charge of murder. The Privy Council applied the decisions in Morgan's case and Williams' case. Lord Griffiths said, at page 144:
'If then a genuine belief, albeit without reasonable grounds, is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which if true would justify self-defence be a defence to a crime of personal violence because the belief negatives the intent to act unlawfully.'
Lord Griffiths also observed, at a practical level, that where there are no reasonable grounds to hold a belief it will surely only be in exceptional circumstances that a jury will conclude that such a belief was or might have been held. Finally in this summary, in Blackburn v. Bowering [1994] 1 W.L.R. 1324, the Court of Appeal, presided over by Sir Thomas Bingham M.R., applied the same approach to the exercise by the court of its contempt jurisdiction in respect of an alleged assault on officers of the court while in the execution of their duty.
The Crown advanced no suggestion to your Lordships that any of these recent cases was wrongly decided. This is not surprising, because the reasoning in these cases is compelling. Thus, the traditional formulation of the common law presumption must now be modified appropriately. Otherwise the formulation would not be an accurate reflection of the current state of the criminal law regarding mistakes of fact. Lord Diplock's dictum in Sweet v. Parsley [1970] A.C. 132, 163, must in future be read as though the reference to reasonable grounds were omitted.
I add one further general observation. In principle, an age-related ingredient of a statutory offence stands on no different footing from any other ingredient. If a man genuinely believes that the girl with whom he is committing a grossly indecent act is over fourteen, he is not intending to commit such an act with a girl under fourteen. Whether such an intention is an essential ingredient of the offence depends upon a proper construction of section 1 of the 1960 Act. I turn next to that question.
The construction of section 1 of the Indecency with Children Act 1960
In section 1(1) of the Indecency with Children Act 1960 Parliament has not expressly negatived the need for a mental element in respect of the age element of the offence. The question, therefore, is whether, although not expressly negatived, the need for a mental element is negatived by necessary implication. 'Necessary implication' connotes an implication which is compellingly clear. Such an implication may be found in the language used, the nature of the offence, the mischief sought to be prevented and any other circumstances which may assist in determining what intention is properly to be attributed to Parliament when creating the offence.
I venture to think that, leaving aside the statutory context of section 1, there is no great difficulty in this case. The section created an entirely new criminal offence, in simple unadorned language. The offence so created is a serious offence. The more serious the offence, the greater is the weight to be attached to the presumption, because the more severe is the punishment and the graver the stigma which accompany a conviction. Under section 1 conviction originally attracted a punishment of up to two years' imprisonment. This has since been increased to a maximum of ten years' imprisonment. The notification requirements under Part I of the Sex Offenders Act 1997 now apply, no matter what the age of the offender: see Schedule 1, paragraph 1(1)(b). Further, in addition to being a serious offence, the offence is drawn broadly ('an act of gross indecency'). It can embrace conduct ranging from predatory approaches by a much older paedophile to consensual sexual experimentation between precocious teenagers of whom the offender may be the younger of the two. The conduct may be depraved by any acceptable standard, or it may be relatively innocuous behaviour in private between two young people. These factors reinforce, rather than negative, the application of the presumption in this case.
The purpose of the section is, of course, to protect children. An age ingredient was therefore an essential ingredient of the offence. This factor in itself does not assist greatly. Without more, this does not lead to the conclusion that liability was intended to be strict so far as the age element is concerned, so that the offence is committed irrespective of the alleged offender's belief about the age of the 'victim' and irrespective of how the offender came to hold this belief.
Nor can I attach much weight to a fear that it may be difficult sometimes for the prosecution to prove that the defendant knew the child was under fourteen or was recklessly indifferent about the child's age. A well known passage from a judgment of that great jurist, Sir Owen Dixon, in Thomas v. The King (1937) 59 C.L.R. 279, 309, bears repetition:
'The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.'
Similarly, it is far from clear that strict liability regarding the age ingredient of the offence would further the purpose of section 1 more effectively than would be the case if a mental element were read into this ingredient. There is no general agreement that strict liability is necessary to the enforcement of the law protecting children in sexual matters. For instance, the draft criminal code bill prepared by the Law Commission in 1989 proposed a compromise solution. Clauses 114 and 115 of the bill provided for committing or inciting acts of gross indecency with children aged under thirteen or under sixteen. Belief that the child is over sixteen would be a defence in each case: see the Law Commission, Criminal Law, A Criminal Code for England and Wales, vol 1, Report and draft Criminal Code Bill, p. 81 (Law Com. No. 177).
Is there here a compellingly clear implication that Parliament should be taken to have intended that the ordinary common law requirement of a mental element should be excluded in respect of the age ingredient of this new offence? Thus far, having regard especially to the breadth of the offence and the gravity of the stigma and penal consequences which a conviction brings, I see no sufficient ground for so concluding.
Indeed, the Crown's argument before your Lordships did not place much reliance on any of the matters just mentioned. The thrust of the Crown's argument lay in a different direction: the statutory context. This is understandable, because the statutory background is undoubtedly the Crown's strongest point. The Crown submitted that the law in this field has been regarded as settled for well over one hundred years, ever since the decision in Reg v. Prince (1875) L.R. 2 C.C.R. 154. That well known case concerned the unlawful abduction of a girl under the age of sixteen. The defendant honestly believed she was over sixteen, and he had reasonable grounds for believing this. No fewer than fifteen judges held that this provided no defence. Subsequently, in R. v. Maughan (1934) 24 Cr.App.R. 130 the Court of Criminal Appeal (Lord Hewart C.J., Avory and Roche JJ.) held that a reasonable and honest belief that a girl was over sixteen could never be a defence to a charge of indecent assault. The court held that this point had been decided in Rex v. Forde (1923) 17 Cr.App.R. 99. The court also observed that in any event the answer was to be found in Prince's case. Building on this foundation Mr. Scrivener Q.C. submitted that the Sexual Offences Act 1956 was not intended to change this established law, and that section 1 of the Indecency with Children Act 1960 was to be read with the 1956 Act. The preamble to the 1960 Act stated that its purpose was to make 'further' provision for the punishment of indecent conduct towards young people. In this field, where Parliament intended belief as to age to be a defence, this was stated expressly: see, for instance, the 'young man's defence' in section 6(3) of the 1956 Act.
This is a formidable argument, but I cannot accept it. I leave on one side Mr. O'Connor Q.C.'s sustained criticisms of the reasoning in Prince's case and Maughan's case. Where the Crown's argument breaks down is that the motley collection of offences, of diverse origins, gathered into the Sexual Offences Act 1956 displays no satisfactorily clear or coherent pattern. If the interpretation of section 1 of the Act of 1960 is to be gleaned from the contents of another statute, that other statute must give compelling guidance. The Act of 1956 as a whole falls short of this standard. So do the two sections, sections 14 and 15, which were the genesis of section 1 of the Act of 1960.
Accordingly, I cannot find, either in the statutory context or otherwise, any indication of sufficient cogency to displace the application of the common law presumption. In my view the necessary mental element regarding the age ingredient in section 1 of the Act of 1960 is the absence of a genuine belief by the accused that the victim was fourteen years of age or above. The burden of proof of this rests upon the prosecution in the usual way. If Parliament considers that the position should be otherwise regarding this serious social problem, Parliament must itself confront the difficulties and express its will in clear terms. I would allow this appeal.
I add a final observation. As just mentioned, in reaching my conclusion I have left on one side the criticisms made of Prince's case and Maughan's case. Those cases concerned different offences and different statutory provisions. The correctness of the decisions in those cases does not call for decision on the present appeal. But, without expressing a view on the correctness of the actual decisions in those cases, I must observe that some of the reasoning in Prince's case is at variance with the common law presumption regarding mens rea as discussed above. To that extent, the reasoning must be regarded as unsound. For instance, Bramwell B. (at p. 174) seems to have regarded the common law presumption as ousted because the act forbidden was 'wrong in itself'. Denman J. (at p. 178) appears to have considered it was 'reasonably clear' that the Act of 1861 was an Act of strict liability so far as the age element was concerned. On its face this is a lesser standard than necessary implication. And in the majority judgment, Blackburn J. reached his conclusion by inference from the intention Parliament must have had when enacting two other, ineptly drawn, sections of the Act. But clumsy parliamentary drafting is an insecure basis for finding a necessary implication elsewhere, even in the same statute. Prince's case, and later decisions based on it, must now be read in the light of this decision of your Lordships' House on the nature and weight of the common law presumption.
LORD STEYN
My Lords,
The first certified question is whether a defendant is entitled to be acquitted of the offence of inciting a child under 14 to commit an act of gross indecency, contrary to section 1(1) of the Indecency with Children Act 1960, if he holds or may hold an honest belief that the child was 14 years or over. In other words, the question of statutory interpretation before the House is whether mens rea is an ingredient of the offence or whether the subsection creates an offence of strict liability.
The charge and proceedings below
On 19 August 1997 a girl aged 13 years was a passenger on a bus in Harrow. The appellant, who was aged 15 years, sat next to her. The appellant asked the girl several times to perform oral sex with him. She repeatedly refused. The appellant was charged with inciting a girl under 14 to commit an act of gross indecency contrary to section 1(1) of the Indecency with Children Act 1960. In January 1998 the appellant stood trial at the Harrow Youth Court. Initially, the appellant pleaded not guilty. The primary facts, as well as the fact that the appellant honestly believed that the girl was over 14 years, were admitted. The defence argued that on the admitted facts the appellant was entitled to be acquitted. The prosecution submitted that the offence was one of strict liability. The justices were asked to rule whether the appellant's state of mind could constitute a defence to the charge. They ruled that it could not. As a result of this ruling the appellant changed his plea to guilty. In law his plea of guilty constituted a conviction. The justices imposed a supervision order on the appellant for 18 months.
The justices were asked to state a case, and they did so. The case stated set out the primary facts. The admitted facts did not cover the question whether the appellant had reasonable grounds for his belief. And there was no finding on this point. The case stated raised the question of law of the correct interpretation of section 1(1) of the Act of 1960. The appellant appealed by way of case stated to the Divisional Court. In three separate judgments the Divisional Court (Brooke L.J., Tucker and Rougier J.J.) affirmed the ruling of the justices and dismissed the appeal; R. v. B (A Minor) v. Director of Public Prosecutions [1999] 3 W.L.R. 116.
The genesis of section 1(1) of the Act of 1960
Before the enactment of the Act of 1960 there was already in existence a relatively comprehensive statute, the Sexual Offences Act 1956, which served to protect young children against sexual exploitation. In particular the Act of 1956 contained provisions making it an offence to commit an indecent assault on a man or a woman: sections 14 and 15. The statute provided that girls and boys under 16 cannot in law give consent which would prevent the act being an assault. These provisions were effective so far as they went but decided cases revealed a gap in the protective net of the Act of 1956: Fairclough v. Whipp [1951] 2 All E.R. 834 and Director of Public Prosecutions v. Rogers [1953] 1 W.L.R. 1017. The statute made no provision for cases where an adult invited a child to touch or handle him indecently: in such cases there was sometimes no ingredient of assault which could trigger the indecent assault provisions of the Act of 1956, namely sections 14 and 15. In 1959 the Home Secretary invited the Criminal Law Revision Committee to consider the point and to make recommendations for an amendment of the law. The Committee produced a clear and succinct report dated 18 June 1959: Cmnd 835. The Committee cautioned itself against recommending too broad a provision: instead it concentrated on the gap in the Act of 1956. It considered the appropriate age limit. The Committee recommended the creation of an entirely new offence in respect of acts of gross indecency towards children under the age of 14. The Committee annexed a Draft Bill to its Report. Clause 1(1) of the Bill was in due course enacted as section 1(1) of the Act of 1960. There is no discussion in the Report of the question whether the proposed new offence would be one of strict liability or not.
Section 1(1)
The long title of the Act of 1960 describes it as an Act "to make further provision for the punishment of indecent conduct towards young children." Section 1(1) provides as follows:
"Any person who commits an act of gross indecency with or towards a child under the age of fourteen, or who incites a child under that age to such an act with him or another, shall be liable on conviction on indictment to imprisonment for a term not exceeding two years, or on summary conviction to imprisonment for a term not exceeding six months, to a fine not exceeding the prescribed sum, or to both."
Section 1(1) creates an age-based offence. It is of the essence of the offence that the child is under the age of 14 years. The offence is an exception to the general law which does not make it an offence to commit or to incite another to commit an act of indecency or gross indecency. The only criminalisation of acts of gross indecency in the Act of 1956 is to be found in section 13 which makes acts of indecency between men an offence. This is, however, not an age-based offence. It is common ground that this link between the two Acts is neutral and throws no light on the problem before the House.
The Act of 1956
In the Divisional Court Rougier J. described the Act of 1960 as an appendix to the Act of 1956 and I would adopt this description. At the hearing of the appeal to the House counsel for the appellant demonstrated how the Act of 1956 consists of a collection of disparate offences deriving from diverse earlier enactments. Leaving to one side procedural provisions in the Act of 1956 regarding the powers and procedure for dealing with offences and powers of arrest and search, and concentrating on the substantive provisions, the immediate precursors of the present day offences is to be found in legislation dating from 1861, 1885, 1889, 1912, 1913, 1922, 1929 and 1933. And the precursors of some of the sexual offences in the Act of 1861 go back to medieval times. The Crown accepts that it would be wrong to describe the Act of 1956 as the product of a legislative initiative designed to devise a more rational system. It would be more accurate to describe it as the bringing together in one statute of a range of offences pragmatically created at different times in response, no doubt, to the perceived demands of public interest at the time. But, as counsel for the Crown pointed out, there is nevertheless a strong theme running through the various provisions of the Act of 1956, namely the protection of young children from sexual depredations.
For present purposes it is unnecessary to review all the detailed substantive provisions of the Act of 1956. But three matters need to be mentioned. First, sections 5 and 6 create a "pair" of offences, namely offences of having sexual intercourse with girls under 13 (section 5) and with girls under 16 (section 6). Under section 6(3) there is a so called "young man's defence." That is a defence available to men under the age of 24, who have not previously been charged with a like offence, who act in the belief that the girl is of the age of 16 or over and has reasonable cause for such a view. This defence is not available upon a charge under section 5 which plainly creates an offence of strict liability. Secondly, in the Statement of Facts and Issues and in oral argument counsel described sections 14 and 15 of the Act of 1956 as for present purposes the most relevant comparators in the Act of 1956. They provide as follows:
'14. (1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.'
7.2.8.2.3.9 US v. Valle 7.2.8.2.3.9 US v. Valle
UNITED STATES OF AMERICA, Appellant/Appellee,
v.
GILBERTO VALLE, Defendant-Appellee/Defendant-Appellant.
Nos. 14-2710-cr, 14-4396-cr.
United States Court of Appeals, Second Circuit.
Argued: May 12, 2015.
Decided: December 3, 2015.
JUSTIN ANDERSON AND RANDALL W. JACKSON (Hadassa Waxman and Brooke Cucinella, of counsel), Assistant United States Attorneys for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellant/Appellee.
EDWARD S. ZAS (Robert M. Baum and Julia L. Gatto, of counsel), Federal Defenders of New York, Inc., New York, New York, for Defendant-Appellee/Defendant-Appellant Gilberto Valle.
Eugene Volokh (Hanni Fakhoury and Jamie Williams, Electronic Frontier Foundation, San Francisco, California, on the brief), Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment, and Law Professors.
Stephen L. Braga, Appellate Litigation Clinic, University of Virginia School of Law, Charlottesville, Virginia, for Amici Curiae Frederick S. Berlin, M.D., Ph.D., and Chris Kraft, Ph.D.
Hanni Fakhoury and Jamie Williams (Richard D. Willstatter, National Association of Criminal Defense Lawyers, White Plains, New York, and Harley Geiger, Center for Democracy & Technology, Washington, D.C., on the brief), Electronic Frontier Foundation, San Francisco, California, for Amici Curiae Electronic Frontier Foundation, Center for Democracy & Technology, National Association of Criminal Defense Lawyers, and Scholars.
Before: STRAUB, PARKER, and CARNEY, Circuit Judges.
BARRINGTON D. PARKER, Circuit Judge.
This is a case about the line between fantasy and criminal intent. Although it is increasingly challenging to identify that line in the Internet age, it still exists and it must be rationally discernible in order to ensure that "a person's inclinations and fantasies are his own and beyond the reach of the government." Jacobson v. United States, 503 U.S. 540, 551-52 (1992). We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual's expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime.
This does not mean that fantasies are harmless. To the contrary, fantasies of violence against women are both a symptom of and a contributor to a culture of exploitation, a massive social harm that demeans women. Yet we must not forget that in a free and functioning society, not every harm is meant to be addressed with the federal criminal law. Because "[t]he link between fantasy and intent is too tenuous for fantasy [alone] to be probative," United States v. Curtin, 489 F.3d 935, 961 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring), and because the remaining evidence is insufficient to prove the existence of an illegal agreement or Valle's specific intent to kidnap anyone, we affirm the district court's judgment of acquittal on the single count of conspiracy to kidnap.
In an issue of first impression that has sharply divided our sister circuits, we must also decide the meaning of "exceeds authorized access" in section 1030(a) of the Computer Fraud and Abuse Act ("CFAA"), which imposes both criminal and civil liability. 18 U.S.C. § 1030. Specifically, we must determine whether an individual "exceeds authorized access" to a computer when, with an improper purpose, he accesses a computer to obtain or alter information that he is otherwise authorized to access, or if he "exceeds authorized access" only when he obtains or alters information that he does not have authorization to access for any purpose which is located on a computer that he is otherwise authorized to access. Because we conclude that the text, statutory history, and purpose of the CFAA permit both interpretations, we are required to apply the rule of lenity and adopt the latter construction. We therefore reverse the judgment of conviction as to the CFAA count.
BACKGROUND
Gilberto Valle is a native of Forest Hills, Queens. At the time of the events giving rise to his prosecution, he was an officer in the New York City Police Department living with his wife, Kathleen Mangan, and their infant daughter in Forest Hills. Valle has no prior criminal record and there is no evidence that he ever acted violently or threateningly towards anyone.
Valle was, however, an active member of an Internet sex fetish community called Dark Fetish Network ("DFN"). He connected with individuals around the world whom he knew only by screen names such as "Moody Blues" or "Aly Kahn," or by email addresses. Valle communicated with these individuals by email or web chat, usually in the late evening and early morning hours after his work shift. Many of his Internet communications involved the transmission of photographs of women he knew — including his wife, her colleagues from work, and some of his friends and acquaintances — to other DFN users with whom he discussed committing horrific acts of sexual violence. These "chats" consisted of gruesome and graphic descriptions of kidnapping, torturing, cooking, raping, murdering, and cannibalizing various women.
Valle's online fantasy life was, to say the least, extremely active during this period. However, there is no evidence that he ever learned the real identities of the individuals with whom he chatted, nor is there any evidence that he ever made concrete plans to meet in person or speak by telephone or web camera with any of them.
In September 2012, Mangan became concerned about Valle's late-night Internet activities after she found several disturbing images of dead women on a laptop that the couple shared. She installed spyware on the computer, which recorded each website entered by the computer's users and captured screen shots every five minutes. With the use of the spyware, Mangan found more disturbing pictures and records of websites that Valle visited. These included detailed emails and chats where Valle discussed butchering her and raping and torturing other women whom they knew. After confronting Valle about his computer use and moving out of the home with their daughter, Mangan contacted federal authorities.
Valle was subsequently arrested and charged with a single conspiracy to kidnap several of the women who were the subject of his chats. Although he had chatted with numerous individuals he met on DFN, the Government identified three alleged co-conspirators: Michael VanHise, a man from New Jersey who was known to Valle as "mikevanhise81@aol.com" and "michael19902135@yahoo.com"; an unidentified individual apparently located in Pakistan who used the screen name "Aly Khan"; and Dale Bolinger, a man in England who was known to Valle only by his screen name, "Moody Blues." And although Valle had discussed up to one hundred different women in his chats, the indictment alleged five targets of the kidnapping conspiracy: Kathleen Mangan, his wife; Alisa Friscia, Mangan's former co-worker; Andria Noble; Kristen Ponticelli; and Kimberly Sauer, a former college classmate of Valle's who was living in the Baltimore area.
Valle was also charged with improperly accessing a government computer and obtaining information, in violation of section 1030(a)(2)(B) of the CFAA. As an NYPD officer, Valle had access to the Omnixx Force Mobile ("OFM"), a computer program that allows officers to search various restricted databases, including the federal National Crime Information Center database, which contain sensitive information about individuals such as home addresses and dates of birth. It is undisputed that the NYPD's policy, known to Valle, was that these databases could only be accessed in the course of an officer's official duties and that accessing them for personal use violated Department rules. In May 2012, he accessed the OFM and searched for Maureen Hartigan, a woman he had known since high school and had discussed kidnapping with Aly Khan. This access with no law enforcement purpose is the basis for the CFAA charge.
The Government's evidence at trial included the chats and emails between Valle and his alleged co-conspirators; testimony from several of the alleged targets of the kidnapping conspiracy, including his wife; other evidence seized from Valle's computer, including videos and images he downloaded; his search term and browser history; and excerpts from a post-arrest statement. Following a 13-day trial, the jury returned a verdict of guilty on both counts. Valle subsequently moved for a judgment of acquittal pursuant to Rule 29 or, in the alternative, for a new trial pursuant to Rule 33 on both counts.
In a thorough and thoughtful 118-page opinion, the district court (Gardephe, J.) granted Valle's Rule 29 motion with respect to the conspiracy charge. 301 F.R.D. 53 (S.D.N.Y. 2014). While remaining "mindful of the jury's critical role in our legal system," Judge Gardephe acknowledged his responsibility to ensure that the government satisfies its burden of establishing proof beyond a reasonable doubt. Id. at 80. Emphasizing "the unique circumstances of this extraordinary case," he concluded that, notwithstanding the jury's verdict to the contrary, the prosecutors had failed to prove beyond a reasonable doubt that Valle and his alleged co-conspirators had entered into a conspiracy to kidnap or that Valle had formed the requisite specific intent to kidnap. Id. at 62, 89.
In reaching this conclusion, Judge Gardephe cited extensively to the testimony of FBI Special Agent Corey Walsh, the lead agent assigned to review and analyze Valle's emails and chats whose testimony had formed (in the court's view) the "centerpiece" of the Government's case and the "foundation" of its argument that Valle had acted with criminal intent. Id. at 83-84. Agent Walsh testified that he, along with prosecutors and other case agents, reviewed all of the emails and chats found on Valle's computer and concluded that Valle's conversations with 21 of the 24 individuals whom he "met" on DFN were "fantasy." SA 8, 128. At the same time, the prosecution team concluded that Valle's conversations with the three alleged co-conspirators contained what they termed "elements of real crime" because they "described dates, names, and activities that you would use to conduct a real crime." 301 F.R.D. at 65. There was no evidence that Agent Walsh or any of the other members of the prosecution team had any specialized training or experience that would render them particularly competent to distinguish between "real" and "fantasy" chats. Indeed, Agent Walsh conceded that the "fantasy role-play" chats and emails shared many of the same features as the "real" chats and emails that purportedly reflected criminal intent, including dates for planned kidnappings, conjured acts of sexual violence, prior surveillance that Valle fantasized about having conducted, and fantastical elements such as human-sized ovens and rotisseries for cooking victims. Id. at 65-66.
After an exhaustive review of the chats and emails introduced at trial, Judge Gardephe concluded that there was no discernible difference between the "real" and "fantasy" chats:
Both sets of chats involve discussions about Facebook photographs of women Valle knows; dates for planned kidnappings; prices Valle will charge for kidnapping these women; surveillance Valle has allegedly conducted of these women; the use of chloroform to incapacitate victims; acts of sexual violence that will be perpetrated on these women; and fantastical elements such as human-size ovens and rotisseries, and the construction of soundproofed basements and pulley apparatuses that will be used for purposes of torture.
Id. at 60. Accordingly, he concluded that no reasonable juror could have found beyond a reasonable doubt that the allegedly "real" chats evinced criminal intent any more than did the acknowledged "fantasy" chats. Id. at 84.
The district court further concluded that the Government's remaining evidence, including Valle's Internet search history and "real life" encounters with several of the alleged targets, was insufficient to establish either a genuine agreement to kidnap or Valle's specific intent to kidnap in light of the fantastical nature of the chats and the weakness of the remaining evidence. Id. at 90. Judge Gardephe stressed, among other things, that there was no evidence that any of the alleged conspirators ever exchanged contact information or sought to learn each other's true identities, and that the communications were episodic, with months often passing in between. Id. at 60. When dates for planned kidnappings came and went, Valle and his alleged co-conspirators would "simply begin discussing another woman as a potential target, in the same manner that a consumer of pornography might turn to a different image, photograph, or movie." Id. at 89. They also had agreed to the impossible — kidnapping three different women in three different places spanning thousands of miles on the same day — and Valle had "provided his alleged co-conspirators with a veritable avalanche of false, fictitious, and fantastical information concerning himself and the steps he had allegedly taken to facilitate a kidnapping." Id. at 61, 90. These facts, Judge Gardephe reasoned, were "entirely inconsistent with the notion that Valle was engaged in a genuine kidnapping conspiracy" and, on the other hand, "entirely consistent with Valle's defense that he was engaged in fantasy role-play" and that the intent of the conversations was simply "mutual fantasizing." Id. at 60, 90. Accordingly, Judge Gardephe concluded that the Government's proof had not established Valle's guilt beyond a reasonable doubt and granted Valle's motion for a judgment of acquittal.
For many of the same reasons, Judge Gardephe conditionally granted Valle's motion for a new trial on the ground that the jury's verdict was contrary to the weight of the evidence. Id. at 104. Although the basis for his ruling was limited to the weight of the evidence, Judge Gardephe also expressed serious concern about the prosecution's trial tactics and the effect they may have had on the jury. Specifically, he questioned the propriety of the prosecution's repeated references to Valle's status as a police officer, such as arguments that "it is not ok" for someone in that position to engage in such fantasies. "Once the lies and the fantastical elements [of the chats] are stripped away," Judge Gardephe concluded, "what is left are deeply disturbing misogynistic chats and emails written by an individual obsessed with imagining women he knows suffering horrific sex-related pain, terror, and degradation." Id. at 61. "[I]n what was an extraordinary case involving highly inflammatory and emotional subjects," the prosecution's questionable conduct had "raise[d] concerns" that the jury's verdict was the product of "disgust and revulsion" rather than reason and that Valle had been "held to a higher standard because of his status as a police officer." Id. at 105-07, 109.
Finally, the district court denied Valle's motion for a judgment of acquittal as to the CFAA count. While acknowledging the existence of a "vigorous judicial debate" over the meaning of "exceeds authorized access," the court nonetheless concluded that Valle's conduct fell "squarely within the plain language" of the statute because Valle had not been authorized "to input a query regarding Hartigan's name" without a law enforcement reason for doing so. Id. at 111, 113.
Valle was sentenced to 12 months in custody (which was principally a sentence of time served because he had already spent 20 months in pretrial detention), one year of supervised release, and a $25 special assessment. The Government has appealed the judgment of acquittal on the conspiracy count and Valle has appealed his conviction on the CFAA count.
STANDARD OF REVIEW
When reviewing a judgment of acquittal under Rule 29, we view the evidence in the light most favorable to the Government with all reasonable inferences resolved in the Government's favor. United States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014). The ultimate question is not whether we believe the evidence adduced at trial established the defendant's guilt beyond a reasonable doubt, but whether any rational trier could reasonably reach that conclusion. United States v. Payton, 159 F.3d 49, 56 (2d Cir. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, a jury's verdict must be upheld if any rational trier of fact could have found the essential elements of the crime had been proved beyond a reasonable doubt. United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012).
Applying this standard does not, however, mean that a reviewing court must affirm all jury verdicts. If "we are to be faithful to the constitutional requirement that no person may be convicted unless the Government has proven guilt beyond a reasonable doubt, we must take seriously our obligation to assess the record to determine . . . whether a jury could reasonably find guilt beyond a reasonable doubt." United States v. Clark, 740 F.3d 808, 811 (2d Cir. 2014). This standard does not mean that if there is any evidence that arguably could support a verdict, we must affirm. In any criminal trial there is always some evidence of guilt, otherwise there could not have been a prosecution.
While we defer to a jury's assessments with respect to credibility, conflicting testimony, and the jury's choice of the competing inferences that can be drawn from the evidence, specious inferences are not indulged, because it would not satisfy the Constitution to have a jury determine that the defendant is probably guilty. If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.
United States v. Lorenzo, 534 F.3d 153, 159 (2d Cir. 2008). We review the district court's Rule 29 decision de novo. United States v. Reyes, 302 F.3d 48, 52-53 (2d Cir. 2002).
DISCUSSION
I
To sustain a conspiracy conviction, the prosecution must prove beyond a reasonable doubt that the person charged with conspiracy knew of its existence and knowingly joined and participated in it. United States v. Rodriguez, 392 F.3d 539, 545 (2d Cir. 2004). The Government must also prove, beyond a reasonable doubt, that the defendant possessed the specific intent to commit the offense that was the object of the conspiracy — here, kidnapping. United States v. Torres, 604 F.3d 58, 65 (2d Cir. 2010). This requirement is contextual: the prosecution's proof must be considered in relation to the rest of the evidence presented at trial, rather than in isolation. Anderson, 747 F.3d at 59.
At trial, the prosecution built its case around Valle's chats and emails with his alleged co-conspirators. On appeal, it argues that these communications, "taken at face value, were fully sufficient to establish his intent to join a kidnapping conspiracy." Gov't Opening Br. 32. We disagree.
As previously explained, Valle's chats and emails with the three alleged co-conspirators were part of a much larger set of chats and emails with 24 individuals on DFN. According to the prosecution, the former were unique because they evinced "real" criminal intent while the rest did not. After reviewing the chats and emails introduced at trial, the district court concluded that the "real" and "fantasy" chats were indistinguishable. 301 F.R.D. at 86.
Our review of the record yields the same conclusion. In both groups of chats, Valle transmits Facebook images of women and offers to kidnap and sell them on a "cash upon delivery" basis, and in both groups he expresses a desire to kidnap, rape, torture, and eat women whom he knows. In both groups Valle also claims to conduct surveillance of potential victims and discusses his intentions to kidnap them using chloroform and ropes. And in both groups he describes the various devices he "owns" that will assist in the process. Many of the "fantasy" chats also do not explicitly state that the participants are engaged in fantasy and are as graphic and detailed as the "real" chats. For example, the "real" chats and the "fantasy" chats both include haggling over the kidnapping fees that Valle "wanted to charge," although the prosecution argues that this haggling is unique to the "real" conspiracy with VanHise. See id. at 84. The "real" chats thus contain the same core elements as the chats the Government concedes are "fantasy."[1]
Moreover, the "real" chats take place in the same time period as the admittedly "fantasy" chats. On the evening of July 12, 2012, for instance, Valle discusses kidnapping Andria Noble with Aly Khan in a "real" chat and, an hour later, discusses kidnapping Noble with someone else in a chat that was "fantasy." The prosecution thus proposed that Valle simultaneously agreed to kidnap Noble while also engaging in role-play about the same woman. This temporal proximity casts further doubt upon any rational distinction between the chats.
Even when "taken at face value," the "real" chats contain numerous other indicia of fantasy. For example, the prosecution alleged that Valle formed a genuine agreement with the specific intent to kidnap three different women in three different locations on the same day. First, Valle agreed with Aly Khan to lure Mangan to either India or Pakistan on February 20, 2012 and to slaughter her there. Second, he agreed with VanHise to kidnap Alisa Friscia in Manhattan on February 20, 2012 and deliver her to an unknown location in exchange for $4,000 in cash. Finally, Valle agreed with Aly Khan to kidnap Andria Noble on February 20, 2012 from her home in Columbus, Ohio. On appeal, the prosecution posits that the jury could have reasonably concluded that Valle seriously planned to kidnap Mangan, Friscia, and Noble on the same day and failed to go through with the kidnappings only because "an obstacle arose," or because he had a "fear of getting caught." Gov't Opening Br. 54. We believe that no rational juror could reach this conclusion for the reason noted by Judge Gardephe: "The notion that Valle had resolved to lure Mangan to India or Pakistan [to slaughter with Aly Khan,] while at the same time kidnapping Andria Noble in Columbus, Ohio, and kidnapping Alisa Friscia from the Upper East Side of Manhattan, is simply outlandish." 301 F.R.D. at 90.
In addition to plots that would put the same person in different places at the same time, the "real" chats are replete with references to fantastical elements such as a human-sized oven, a spit, and a remote cabin in the woods, none of which Valle owned or made any effort to acquire. The fantastical nature of the "real" chats is bolstered by the entirely virtual nature of the alleged conspirators' relationships. Valle had no pre-existing relationship with those with whom he chatted, and he formed no real life relationship with any of them. He did not know their real names and, indeed, could not be sure of their genders, ages, or locations. Neither he nor his alleged co-conspirators made any effort to communicate by telephone, text message, or web camera, much less meet in person. And weeks or months could go by between Valle's chats with any particular individual. While anonymity is not uncommon in Internet communications, the fantastical elements of the chats combined with the impersonal nature of the interactions provides pervasive and unmistakable indicia of deep fantasy.[2]
Consequently, we need look no further than the prosecution's own work product to find reasonable doubt. The prosecution divided the exchanges into two groups and undertook to convince the jury to convict Valle on the theory that one group was fantasy and the other proved criminal intent. This exercise failed because the distinction the prosecution urged does not exist in this case. There is simply no material difference between the two groups of chats. We do not believe that the prosecution satisfies the proof beyond a reasonable doubt standard by relying upon a distinction that is untethered to reason or common sense.
Perhaps realizing that there is no actual distinction to be drawn between the "real" and "fantasy" chats, the prosecution now contends that it "did not take a position one way or the other as to whether [Valle's online communications with people other than the named co-conspirators] constituted genuine planning, puffery, preparatory conversations, role-playing, or something else entirely." Gov't Opening Br. 39. The record, however, belies this assertion.
As noted, Agent Walsh was a key witness in the prosecution's case. He was the lead investigative agent and a majority of the chats and emails introduced were admitted into evidence through his testimony. He unequivocally testified, often in response to the Government's own questions, that the Government considered Valle's chats with 21 other individuals to be "fantasy" and Valle's chats with the three alleged co-conspirators to be "real." The following exchanges between Agent Walsh and AUSA Hadassa Waxman on direct examination are illustrative:
WAXMAN: When you were reviewing those emails between [Valle] and the two dozen individuals, did you separate them into groups?
WALSH: I did.
WAXMAN: What were those groups?
WALSH: Ones that I believe that were real and ones that I believe were fantasy.
WAXMAN: Why did you make that separation?
WALSH: In the ones that I believe were fantasy, the individuals said they were fantasy. In the ones that I thought were real, people were sharing . . . real details of women, names, what appeared to be photographs of the women, details of past crimes and they also said that they were for real.
WAXMAN: What caused you to make that separation between the emails you found that had realistic characteristics and those that were fantasy?
WALSH: Only my interest in obtaining information about that real criminal activity.
SA 8-9.
WAXMAN: Agent Walsh, approximately how many of Officer Valle's emails and electronic chats did you review in connection with your investigation?
WALSH: Thousands.
WAXMAN: We just reviewed over yesterday and today about 40, is that right?
WALSH: That's correct, ma'am.
WAXMAN: Why did you focus on these 40 particular communications?
WALSH: We believed that these chats and e-mails contained elements of real crimes.
WAXMAN: And why did you come to that conclusion?
WALSH: They described dates, names, and activities that you would use to conduct a real crime.
WAXMAN: And did you cast aside a certain number of emails as well?
WALSH: Yes, ma'am.
WAXMAN: Why did you choose not to focus on those emails?
WALSH: Quite frankly, ma'am, they didn't seem realistic.
WAXMAN: Why not?
WALSH: They were clearly role-play. They used the word "fantasy" in the actual chats or emails.
SA 125-26. On cross-examination, Agent Walsh admitted that the grouping decision was made by numerous agents and prosecutors.
BAUM: Now, when you made that decision that 21 out of 24 participants with Mr. Valle were engaged in fantasy role-play, were you the only one who made that decision?
WALSH: No, sir.
BAUM: How many agents were involved in that decision?
WALSH: Approximately eight to 10, sir.
. . .
BAUM: And how many people from the U.S. Attorney's Office were involved in that decision?
WALSH: About two, sir.
BAUM: So eight to 10 law enforcement officers and at least two lawyers from the U.S. Attorney's Office decided that out of 24 people that Mr. Valle chatted or emailed with[,] 21 were fantasy role-plays, is that correct?
WALSH: Approximately. Yes, sir.
SA 129-30. The prosecution now urges that the distinction between "real" chats and "fantasy" role play was Valle's defense and that the district court applied the wrong standard by forcing the prosecution to disprove the defense theory of the case. As the exchanges above demonstrate, the distinction was introduced and relied on by the Government's case agent. In any event, intent is an essential element of the crime that the Government charged. The issue, therefore, is not whether the prosecution disproved the defense's theory, but whether the prosecution proved its theory that Valle's "real" chats represented a departure from his otherwise entirely imaginary world.
Alternatively, the Government argues that even if it introduced the distinction, it did not rely on or concede the truth of the distinction because it "did not even introduce any of the `fantasy' conversations at trial so that [a] comparison could be made" with the "real" chats. Gov't Opening Br. 41. A sampling of the "fantasy" chats was introduced by the defense in its cross-examination of Agent Walsh. But regardless of how the exhibits were introduced, the Government's own investigation concluded that forty chats permitted the inference of conspiratorial intent, as compared to myriad other chats that did not. The Government claims that it does not have to prove a distinction between these two sets of chats because the jury could have rationally found that "defendants charged with attempting or conspiring to engage in criminal, deviant activity often contemporaneously engage in `fantasy' behavior . . . about activity . . . that is similar to the charged conduct." Id. at 43.
This contention proves too little. Once the Government constructs its case around the theory that a certain group of chats permits the inference of conspiratorial intent while another group of essentially similar chats is consistent with non-criminal behavior, some adequate explanation must be forthcoming. Where, as here, none is, the non-criminal chats are a powerful indicator that a reasonable juror must necessarily entertain reasonable doubt about the prosecution's case.
Unable to materially distinguish the "real" chats from the "fantasy" chats, the Government relies on evidence of "real world" steps that Valle took in order to "prepare" for the kidnappings. See, e.g., Gov't Opening Br. 56-58, 60-68. For example, the prosecution introduced evidence that Valle performed Internet searches for how to kidnap people, how to make chloroform, and how to restrain and cannibalize people. The prosecution also introduced evidence that Valle researched prior kidnappings, which it argues permitted the jury to infer that Valle was interested in how those kidnappers were caught so that he could learn from their experiences and avoid apprehension. Id. at 63.
To be sure, Internet searches can provide some relevant proof of intent. However, an Internet search, in and of itself, is not criminal. Here, the searches on which the Government relies occurred in a context of deep fantasy. As with his chats and emails, Valle's Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent. "No doubt some people commit sex crimes because they want to turn their fantasies into reality, but most people with criminal fantasies probably refrain from acting on them, because they know it would be wrong, or because they do not want to risk the penalties." Curtin, 489 F.3d at 962 (Kleinfeld, J., concurring).
The Government also relies on at least two occasions when Valle engaged in acts of "surveillance" of his intended victims. First, the Government notes that Valle admitted in a post-arrest statement that he was on Friscia's block on March 1, 2012, two days after he allegedly agreed to kidnap her with VanHise. Gov't Opening Br. 56-58. Valle told a government agent that he was on the block to drop off Mangan to have lunch with Friscia, but both Mangan and Friscia testified that they had not met for lunch that day. Valle indicated to the agent that he was on the block only very briefly, and there is no evidence to the contrary. There is also no evidence that he observed Friscia or her apartment building while he was on her block. Valle's false exculpatory explanation for being on the block is "insufficient proof on which to convict where other evidence of guilt is weak." United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975). As the district court found, no rational juror could conclude from this evidence alone that Valle was engaged in "surveillance."
Second, the prosecution and our dissenting colleague contend that the jury could convict Valle of a conspiracy to kidnap based on his communications with Moody Blues about Kimberly Sauer. See Gov't Opening Br. 35-36. This evidence is insufficient to show that Valle agreed or had the specific intent to kidnap Sauer and, in any event, it does not establish Moody Blues's intent.
Sauer is a former college classmate of Valle's who lives in Maryland. According to Sauer, she communicated with Valle by text message approximately ten to fifteen times a year. Mangan testified that she and Valle made three or four trips to Maryland during the course of their relationship (from 2009 through September 2012) and that each time she and Valle made an effort to see Sauer when in the area.
In January 2012, Valle asked Sauer for her address so that he could send her a Patrolmen's Benevolent Association card. The earliest chat between Valle and Moody Blues introduced at trial takes place seven months later, on July 9, 2012. During this conversation, Valle described several girls that he was "working on grabbing . . . for thanksgiving," and told Moody Blues that "Kimberly [is] by far the easiest" to kidnap because he could "just show up at her home unannounced." JA 80-82. After Valle suggested that "maybe you can make it here and help me with her, since you have experience," Moody Blues responded that he lives in England but it is "easy to get to the Big apple." JA 81.
Valle also told Moody Blues that he was "single," had a "big gas oven," and that "no one is around [him] for about ¾ of a mile." JA 84. The two then discussed how they would truss up Sauer and cook her on an outdoor spit at Valle's mountain house. During this same chat, approximately one hour after Valle wrote that he wanted to kidnap someone for Thanksgiving, Valle told Moody Blues that he was "thinking of a Labor Day cookout . . . with Kimberly as the main course." JA 86. Valle noted that she had "been one of my favorite victims to fantasize about for almost 10 years now." JA 86. Again during the same chat in early July, Valle sent Moody Blues a link to a video of Sauer on vacation and volunteered to make chloroform and buy rope. Moody Blues replied that "Labour day is the 3rd [of] September, not a lot of time to sort out plane tickets etc. Will see what cheap deals I can get." JA 90.
One day later, on July 10, Valle sent Moody Blues "a word document, a blueprint of everything we will need to carry this out." JA 100. The document, entitled "Abducting and Cooking Kimberly: A Blueprint," has a "target date" of September 2, 2012 for the abduction. It includes a photograph of Sauer, and accurately describes her age and marital status and that she is not a drug user, does not have tattoos, and drinks only occasionally. All of the other information in this document is false, including her last name, date of birth, birthplace, and educational history. The entire "plan" for abduction set out in the "Blueprint" is as follows: "I will arrive at some point Sunday night at her home to kidnap her. She lives in a quiet suburban neighborhood (Pictures of her house to be added)." The document also lists some materials that are needed, including a car, chloroform, rope, gag, tarp/plastic bags, gloves, and cheap sneakers. JA 267-68. After receiving the "Blueprint," Moody Blues asked "[m]ay I have her address? For Googling using the Map app?" JA 101. Valle lied that he was "not sure" of her exact address. Id. There is no evidence in the record that Valle ever obtained any of the materials listed in the "Blueprint," or that the document was ever updated with pictures of Sauer's house or any additional information.
At some point prior to July 12, Valle called Sauer to tell her that he would be traveling to Maryland with his wife and daughter for a weekend. They made plans to meet for lunch on July 22. On July 17, Valle informed Moody Blues that he would be having lunch with Sauer. Later in this chat, Moody Blues asked Valle if he had a recipe for chloroform. Valle sent him a link. On July 19, Moody Blues again asked for Sauer's address, and Valle replied that he did not know it by heart. Valle never provided Moody Blues with Sauer's address.
On July 20, Valle conducted a number of Internet searches relating to kidnapping, including "how to kidnap someone," "how to chloroform a girl," and "kidnapped girl." On July 21, Valle traveled to Maryland with his wife and daughter. They visited several college friends, and had the scheduled lunch with Sauer on July 22. On July 21, Valle texted Sauer "[w]e drove by your pink building today," and she responded "Haha yay!" JA 237. At trial, Sauer testified that she understood Valle to refer to her office building, which has pink-tinted windows, but that Valle had never visited her at work and she had never sent him photographs of the building. She described the lunch as "fine" and "pleasant."
On the evening of July 22, after Valle returned home, he emailed Moody Blues that Sauer "looked absolutely mouthwatering." JA 117. Valle and Moody Blues said nothing more about the plot to kidnap Sauer and did not talk again for another month. On August 21, Valle and Moody Blues began to discuss Kristen Ponticelli, a recent graduate of Valle's high school whom he did not know. JA 264. There is no evidence in the record that Valle and Moody Blues ever discussed Sauer or Ponticelli again after August 21.
As Judge Gardephe observed, the chats pertaining to Sauer are not materially different from the other fantasy chats. All of the elements of this alleged plot are equally fantastical, including the presence of the nonexistent mountain house, the human-sized oven, and the "Blueprint." The "plan" to kidnap Sauer in the "Blueprint" is no more detailed than is the "plan" in Valle's Internet chats with Moody Blues, nor does the list of materials required differ from the types of materials Valle discusses in his chats. And critically, Valle makes concerted efforts to conceal from Moody Blues any identifying information about Sauer that could be used in furtherance of a kidnapping such as her last name, date of birth, and the name of her alma mater. Although the prosecution speculates that Valle did not share accurate information about Sauer because he did not want Moody Blues to undertake the kidnapping without him, there is no evidence in the record to support such an inference.
Thus, the only meaningful difference between this alleged conspiracy and the "fantasy" chats is the occurrence of Valle's lunch with Sauer in Maryland during approximately the same time period as he discussed kidnapping her with Moody Blues. Although the Government characterizes Valle's communications with Sauer as "out of the blue," the record shows that they communicated by text message in the year prior to the alleged kidnapping plot on a regular basis and that they made an effort to see each other when Valle was in town. Valle did not have lunch with Sauer alone, but rather came with Mangan and their infant daughter. Moreover, the chats between Moody Blues and Valle leading up to and following the lunch make it impossible to conclude, without speculation, that the lunch was "surveillance" in furtherance of a genuine conspiracy. Moody Blues makes only a single reference to purchasing plane tickets in the July 9 chat, but that suggestion is never brought up again. Except for the e-mail recapping the lunch on July 22 and the August 24 conversation in which their focus moves to Ponticelli after a brief mention of Sauer, Moody Blues and Valle never again discuss Sauer or any plot to kidnap her. In fact, Moody Blues and Valle do not speak at all for the month after July 22, and the "target date" of September 2 passes with no discussion. And Valle never takes any step of any sort in furtherance of an alleged kidnapping.
We are in accord with the prosecution and our dissenting colleague that a jury might be able to distill some incriminating evidence from all of this. But "some" evidence is not the test. Because Valle's relationship with Moody Blues is essentially indistinguishable from his relationship with all of the others with whom he chatted, we agree with Judge Gardephe that a rational jury could not conclude that this evidence was sufficient to meet the "beyond any reasonable doubt" requirement. As our case law instructs:
[I]t is not enough that the inferences in the government's favor are permissible. A court must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that [each element of the offense] is established beyond a reasonable doubt. If the evidence viewed in the light most favorable to the prosecution gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence, then a reasonable jury must necessarily entertain a reasonable doubt.
United States v. Triumph Capital Grp., Inc., 544 F.3d 149, 159 (2d Cir. 2008).
Finally, on the basis of this evidence, it is impossible to determine beyond a reasonable doubt whether Moody Blues — or for that matter any of Valle's other alleged co-conspirators — ever had the specific intent to commit a kidnapping. We have taken a bilateral approach to the crime of conspiracy: at least two people must agree. "When one of two persons merely pretends to agree, the other party, whatever he may believe, is in fact not conspiring with anyone." See United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999). The only evidence the Government offers to demonstrate Moody Blues's intent is the words he used in the chats. Gov't Reply Br. 21-22. As we have explained, these chats of "real" criminal intent are rife with indicia of fantasy and contain the same substantive elements as the chats the Government concedes are "fantasy." The conclusion that the chats do not support a finding of Valle's conspiratorial intent applies with equal force to Moody Blues.
On this record, no reasonable juror could conclude beyond a reasonable doubt that Valle possessed the specific intent to kidnap anyone or that he and his alleged co-conspirators ever formed an agreement to actually carry out any of the purported kidnappings. The mere indulgence of fantasy, even of the repugnant and unsettling kind here, is not, without more, criminal. We therefore affirm the district court's judgment of acquittal as to the conspiracy count.
II
We now turn to Valle's appeal of the judgment of conviction on the CFAA count. We reverse because section 1030(a)(2)(B) is ambiguous and where, as here, the Government and the defense both posit plausible interpretations of a criminal statute, the rule of lenity requires us to adopt the defendant's construction. As Justice Scalia has emphasized, "[w]hen interpreting a criminal statute, we do not play the part of a mindreader." United States v. Santos, 553 U.S. 507, 515 (2008). When "a reasonable doubt persists about a statute's intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute," Moskal v. United States, 498 U.S. 103, 108 (1990), we resolve doubts in favor of the defendant rather than "imputing to Congress an undeclared will" to criminalize conduct, Santos, 553 U.S. at 515 (quoting Bell v. United States, 349 U.S. 81, 83 (1955)). The rule of lenity ensures that criminal statutes will provide fair warning of what constitutes criminal conduct, minimizes the risk of selective or arbitrary enforcement, and strikes the appropriate balance between the legislature and the court in defining criminal liability. See Yates v. United States, 135 S. Ct. 1074, 1088 (2015); United States v. Simpson, 319 F.3d 81, 86 (2d Cir. 2002).
The CFAA imposes criminal and civil liability on one who, among other things, "intentionally accesses a computer without authorization or exceeds authorized access and thereby obtains information . . . from any department or agency of the United States." 18 U.S.C. § 1030(a)(2)(B). "Without authorization" is not defined. However, "`exceeds authorized access' means to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter." Id. § 1030(e)(6).
The dispositive question is whether Valle "exceeded authorized access" when he used his access to OFM to conduct a search for Maureen Hartigan with no law enforcement purpose. Valle concedes that he violated the terms of his employment by putting his authorized computer access to personal use, but claims that he did not violate the statute because he never "used his access to obtain any information he was not entitled to obtain." Valle's Opening Br. 8. In other words, Valle argues that he did not "exceed authorized access" because he was otherwise authorized to obtain the database information about Hartigan; his non-law enforcement purpose in running the search is irrelevant. See id. at 9. The Government contends that Valle "exceeded authorized access" because his authorization to access OFM was limited to law enforcement purposes and he conducted a search for Hartigan with no such purpose.
The critical term — "authorization" — is not defined in the statute, but we have previously recognized in construing the CFAA that "authorization" is a word "of common usage, without any technical or ambiguous meaning." United States v. Morris, 928 F.2d 504, 511 (2D cIR. 1991). tHE DICTIONARY DEFINES "AUTHORIZATION" AS "permission or power granted by authority." Random House Unabridged Dictionary 139 (2001).[3] Thus, common usage of "authorization" suggests that one "accesses a computer without authorization" if he accesses a computer without permission to do so at all. See, e.g., LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1133 (9th Cir. 2009).
Common usage of "authorization" is less helpful in determining when one "exceeds authorized access" because it can support both Valle's and the Government's interpretation. While "authorization" could refer, as the Government contends, to the purposes for which one is authorized to access a computer, it could alternatively refer to the particular files or databases in the computer to which one's authorization extends. Indeed, by its plain terms the statute is directed to improper "access." The contested language is not "exceeds authorization," however such authorization may be defined, but the seemingly more limited "exceeds authorized access." 18 U.S.C. § 1030(a)(2) (emphasis added). Moreover, because "without authorization" most naturally refers to a scenario where a user lacks permission to access the computer at all, one sensible reading of the statute is that "exceeds authorized access" is complementary, referring to a scenario where a user has permission to access the computer but proceeds to "exceed" the parameters of authorized access by entering an area of the computer to which his authorization does not extend. As Judge Kozinski recognized in United States v. Nosal, "it is possible to read both prohibitions as applying to hackers: `Without authorization' would apply to outside hackers (individuals who have no authorized access to the computer at all) and `exceeds authorized access' would apply to inside hackers (individuals whose initial access to a computer is authorized but who access unauthorized information or files)." 676 F.3d 854, 858 (9th Cir. 2012) (en banc).
Over the past fourteen years, six other circuits have wrestled with the question before us. Most recently, the Ninth Circuit sitting en banc in Nosal and the Fourth Circuit in WEC Carolina Energy Solutions LLC v. Miller, 687 F.3d 199 (4th Cir. 2012), adopted Valle's construction. Before that, the First, Fifth, Seventh, and Eleventh Circuits adopted the prosecution's interpretation. See United States v. John, 597 F.3d 263 (5th Cir. 2010); United States v. Rodriguez, 628 F.3d 1258 (11th Cir. 2010); Int'l Airport Ctrs., L.L.C. v. Citrin, 440 F.3d 418 (7th Cir. 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577 (1st Cir. 2001). If this sharp division means anything, it is that the statute is readily susceptible to different interpretations.[4] We therefore turn to the legislative history and motivating policies for further guidance.
Congress enacted the CFAA in 1984 to address "computer crime," which was then principally understood as "hacking" or trespassing into computer systems or data. See H.R. Rep. No. 98-894, at 3691-92, 3695-97 (1984); S. Rep. No. 99-432, at 2480 (1986). The House Committee Report to the original bill detailed the existence of "`hackers' who have been able to access (trespass into) both private and public computer systems" as a result of the "corresponding proliferation of computer networking which began during the 1970's." H.R. Rep. No. 98-894, at 3695; see also id. at 3696 (noting the "recent flurry of electronic trespassing incidents"). The report described one instance of "computer crime" in which an individual "stole confidential software by tapping into the computer system of a previous employer from [the] defendant's remote terminal." Id. at 3691-92.
The Senate Committee Report to the 1986 amendments specifically described "exceeds authorized access" in terms of trespassing into computer systems or files. In heightening the mens rea requirement for section 1030(a)(2), the Committee explained that it did not want to hold liable those "who inadvertently `stumble into' someone else's computer file or computer data," which was "particularly true in those cases where an individual is authorized to sign onto and use a particular computer, but subsequently exceeds his authorized access by mistakenly entering another computer or data file that happens to be accessible from the same terminal." S. Rep. No. 99-432, at 2483. Congress was also careful to note that "section 1030 deals with an `unauthorized access' concept of computer fraud rather than the mere use of a computer. Thus, the conduct prohibited is analogous to that of `breaking and entering.'" H.R. Rep. No. 98-894, at 3706. Consequently, the legislative history consistently characterizes the evil to be remedied — computer crime — as "trespass" into computer systems or data, and correspondingly describes "authorization" in terms of the portion of the computer's data to which one's access rights extend.
The Government relies upon the predecessor language to "exceeds authorized access." As originally enacted, section 1030(a) made it a crime to "knowingly access[] a computer without authorization, or having accessed a computer with authorization, use[] the opportunity such access provides for purposes to which such authorization does not extend." Counterfeit Access Device and Computer Fraud and Abuse Act of 1984, Pub. L. No. 98-473, § 2102(a), 98 Stat. 1837, 2190 (codified as amended at 18 U.S.C. § 1030) (emphasis added). In 1986, Congress deleted the italicized language and replaced it with "exceeds authorized access." S. Rep. No. 99-432, at 2486.
The Government argues that no substantive change was intended because the substitution was made "to simplify the language." Id. Valle cites another provision of the Senate Committee Report, relating to subsection (a)(3), which states that Congress had "eliminate[d] coverage for authorized access that aims at `purposes to which such authorization does not extend,'" and thereby "remove[d] from the sweep of the statute one of the murkier grounds of liability under which a[n] . . . employee's access to computerized data might be legitimate in some circumstances, but criminal in other (not clearly distinguishable) circumstances." Id. at 2494 (emphasis added). He argues that Congress therefore intended to abrogate any purpose-based inquiry by substituting the new "exceeds authorized access" language. While a number of courts have found this argument persuasive, see, e.g., Nosal, 676 F.3d at 858 n.5, we have misgivings. It seems more likely that the Committee was merely explaining its removal of "exceeds authorized access" as a basis for liability under subsection (a)(3), rather than the substitution of "exceeds authorized access" in other provisions of the statute, including subsection (a)(2).
Nevertheless, we do not think that the appearance of the word "purposes" in the legislative history renders the statute clear for the simple reason that even when Congress referenced the user's "purposes," it spoke in terms of the particular computer files or data to which the user's access rights extended. The Committee's extensive discussion of subsection (a)(3) is instructive. As initially enacted, that provision made it a crime to knowingly access a government computer without authorization or exceed the scope of one's authorization and thereby use or disclose information. S. Rep. No. 99-432, at 2494. Subsection (a)(3) therefore "swe[pt] in all computerized government information, including documents that must, under the Freedom of Information Act [("FOIA")], be disclosed to any member of the public upon proper request," while "gloss[ing] over the reality that the existence or exact scope of a government employee's authority to access a particular computerized data base is not always free from doubt." Concerned that government employees would "resolve doubts against disclosure" when responding to FOIA requests, the Committee revised subsection (a)(3) in three ways, including by removing the "purposes" language. Id.
Each of these revisions was directed toward the same problem: an employee with authorization to access certain databases entering other databases to which his authorization did not extend. And, in explaining the revisions, the Committee understood authorization in spatial terms, namely, an employee going beyond the parameters of his access rights. See e.g., id. at 2495 (declining to apply subsection (a)(3) "to access by a Federal employee of computers of that employee's own agency," and explaining that the revised rule "would provide prosecutors a clear, workable rule, regardless of the intricacies of a particular agency's computer access policies: absent a fraudulent motive, an employee could not be prosecuted for simple `trespass' into one of his agency's own computers") (emphasis added). This understanding of authorization is, as we have previously explained, consistent with Congress's discussion of the concept elsewhere. It is likewise consistent with the statute's principal purpose of addressing the problem of hacking, i.e., trespass into computer systems or data.
At the end of the day, we find support in the legislative history for both Valle's and the Government's construction of the statute. But because our review involves a criminal statute, some support is not enough. Where, as here, ordinary tools of legislative construction fail to establish that the Government's position is unambiguously correct, we are required by the rule of lenity to adopt the interpretation that favors the defendant. Santos, 553 U.S. at 514; United States v. Granderson, 511 U.S. 39, 54 (1994). We do not think it too much to ask that Congress define criminal conduct with precision and clarity. As Chief Justice Marshall explained:
The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded . . . on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.
United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). We decline to adopt the prosecution's construction, which would criminalize the conduct of millions of ordinary computer users and place us in the position of a legislature.
The role that the rule of lenity plays where doubt remains as to the reach of a criminal statute was discussed in Nosal, where the Ninth Circuit sitting en banc focused sharply on the same compelling concerns that Valle and amici raise on this appeal:
[T]he government's proposed interpretation of the CFAA allows private parties to manipulate their computer-use and personnel policies so as to turn these relationships into ones policed by the criminal law. Significant notice problems arise if we allow criminal liability to turn on the vagaries of private policies that are lengthy, opaque, subject to change and seldom read. Consider the typical corporate policy that computers can be used only for business purposes. What exactly is a `nonbusiness purpose'? If you use the computer to check the weather report for a business trip? For the company softball game? For your vacation to Hawaii? And if minor personal uses are tolerated, how can an employee be on notice of what constitutes a violation sufficient to trigger criminal liability?
676 F.3d at 860. The Fourth Circuit, in Miller, agreed with the Ninth Circuit and echoed the same concerns:
The deficiency of a rule that revokes authorization when an employee uses his access for a purpose contrary to the employer's interests is apparent: Such a rule would mean that any employee who checked the latest Facebook posting or sporting event scores in contravention of his employer's use policy would be subject to the instantaneous cessation of his agency and, as a result, would be left without any authorization to access his employer's computer systems. . . . [W]e do not think Congress intended . . . the imposition of criminal penalties for such a frolic.
687 F.3d at 206.
We agree with the Ninth and Fourth Circuits that courts that have adopted the broader construction "looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute's unitary definition of `exceeds authorized access.'" Nosal, 676 F.3d at 863; see also Miller, 687 F.3d at 206 ("[W]e believe that th[is] theory has far-reaching effects unintended by Congress."). This is the very concern at the heart of the rule of lenity.
For example, in United States v. Kozminski, 487 U.S. 931 (1988), the Supreme Court refused to adopt the Government's broad interpretation of a statute criminalizing involuntary servitude. The Government argued that the statute should criminalize "compulsion [to work] through psychological coercion as well as almost any other type of speech or conduct intentionally employed to persuade a reluctant person to work." Id. at 949. The Supreme Court rejected this interpretation because it would "criminalize a broad range of day-to-day activity," such as "a parent who coerced an adult son or daughter into working in the family business by threatening withdrawal of affection." Id. The Court warned that the broader statutory interpretation would "delegate to prosecutors and juries the inherently legislative task of determining what type of . . . activities are so morally reprehensible that they should be punished as crimes" and would "subject individuals to the risk of arbitrary or discriminatory prosecution and conviction." Id.
The Government does not reply substantively to Valle's concerns about the rule of lenity or about the risk of criminalizing ordinary behavior inherent in its broad construction. It merely states that "those concerns must be raised in the first instance by individuals actually affected by the provision at issue," and that "[t]hose cases will present fact-specific questions not relevant here, including whether the applicable authorization was clearly defined and whether the abuse of computer access was intentional." Gov't Opp'n Br. 15. We disagree. The Government asks that we affirm Valle's conviction, which requires us to accept its construction of the statute. But our construction of the statute impacts many more people than Valle. It will not only affect those who improperly access information from a government computer — a result some readers might find palatable — but also those who improperly access "any protected computer" and thereby obtain information. 18 U.S.C. § 1030(a)(2)(C). As the Ninth Circuit aptly put it in Nosal, "[b]ecause `protected computer' is defined as a computer affected by or involved in interstate commerce — effectively all computers with Internet access — the government's interpretation of `exceeds authorized access' makes every violation of a private computer use policy a federal crime." 676 F.3d at 859 (citing 18 U.S.C. § 1030(e)(2)(B)).
Whatever the apparent merits of imposing criminal liability may seem to be in this case, we must construe the statute knowing that our interpretation of "exceeds authorized access" will govern many other situations. See 18 U.S.C. § 1030(e)(6). It is precisely for this reason that the rule of lenity requires that Congress, not the courts or the prosecutors, must decide whether conduct is criminal. We, on the other hand, are obligated to "construe criminal statutes narrowly so that Congress will not unintentionally turn ordinary citizens into criminals." Nosal, 676 F.3d at 863. While the Government might promise that it would not prosecute an individual for checking Facebook at work, we are not at liberty to take prosecutors at their word in such matters. A court should not uphold a highly problematic interpretation of a statute merely because the Government promises to use it responsibly. See United States v. Stevens, 559 U.S. 460, 480 (2010).
CONCLUSION
For these reasons, we AFFIRM the judgment of acquittal as to the count of conspiracy to kidnap, and REVERSE the judgment of conviction as to the count of improperly accessing a computer in violation of the CFAA.
STRAUB, Circuit Judge, dissenting:
This case is important. It is important to the role we have traditionally allotted to juries in our criminal justice system. It is important to the rule which requires judges to apply the laws written by the people's Congress, particularly to police conduct which utilizes official databases to access information about citizens where such is not part of official action. Because the majority opinion seeks to enshrine all the conduct in this case in an academic protective halo, I find it necessary to offer the realistic context of this controversy.
This is not a case about governmental intrusion on one's personal inclinations and fantasies nor is it a case about governmental punishment of one's thoughts. It is, instead, a jury's determination of guilt for a conspiracy based on definitive conduct. This is not a case of confused, accidental, or otherwise inappropriate use of a law enforcement database. It is, instead, a police officer's use of the official database to obtain, outside the boundaries of his official duties, data about a woman whom he knew.
Having so noted the context of this appeal, I now proceed to presentation of the facts and applicable law.
Defendant-Appellant/Defendant-Appellee Gilberto Valle was convicted by a jury of conspiracy to kidnap (Count I) and of improperly accessing a computer in violation of the Computer Fraud and Abuse Act ("CFAA") (Count II). Valle moved for a judgment of acquittal on both counts. As to Count I, the District Court (Paul G. Gardephe, Judge) granted Valle's motion, finding that the evidence at trial was insufficient to support the jury's verdict, and entered a judgment of acquittal. As to Count II, the District Court denied Valle's motion, rejecting Valle's argument that the CFAA did not proscribe his conduct, and entered a judgment of conviction.
The majority affirms the judgment of acquittal in respect of Count I and reverses the judgment of conviction in respect of Count II. I would instead vacate the District Court's judgment of acquittal in respect of Count I, affirm the District Court's judgment of conviction in respect of Count II, and remand for further proceedings. Therefore, I respectfully dissent.
I. Conspiracy to Kidnap (Count I)
The Sixth Amendment right to trial by jury is a "fundamental reservation of power in our constitutional structure," Blakely v. Washington, 542 U.S. 296, 306 (2004), and reflects our "deep commitment . . . to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement," Duncan v. Louisiana, 391 U.S. 145, 156 (1968). "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary." Blakely, 542 U.S. at 306; see also United States v. Bailey, 444 U.S. 394, 435 (1980) (Blackmun, J., dissenting) ("The jury is the conscience of society and its role in a criminal prosecution is particularly important."). In this "strict division of authority between judge and jury," Blakely, 542 U.S. at 313, it is the sole responsibility of the jury to weigh evidence and reach the ultimate conclusion of guilt or innocence, see United States v. Gaudin, 515 U.S. 506, 514 (1995); Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To preserve the jury's broad fact-finding discretion, a court can enter a judgment of acquittal only if the evidence of guilt is "nonexistent or so meager that no reasonable jury could find guilt beyond a reasonable doubt." United States v. Espaillet, 380 F.3d 713, 718 (2d Cir. 2004) (internal quotation marks omitted). In making this determination, a court must defer to the jury's resolution of evidentiary conflicts. Jackson, 443 U.S. at 319; see also United States v. Hamilton, 334 F.3d 170, 179 (2d Cir.) ("[W]e must defer to the jury's resolution of the weight of the evidence and the credibility of the witnesses, and to the jury's choice of the competing inferences that can be drawn from the evidence." (internal quotation marks, citations, and brackets omitted)), cert. denied, 540 U.S. 985 (2003). We therefore view the evidence in the light most favorable to the government and draw all reasonable inferences in its favor. Jackson, 443 U.S. at 319; see also United States v. Kozeny, 667 F.3d 122, 139 (2d Cir. 2011) (noting the "heavy burden" that a defendant faces when seeking to overturn a jury's verdict), cert. denied, 133 S. Ct. 1794 (2013).
The majority blatantly disregards these constraints on a court's review of a jury's verdict and accords to itself the power to "identify" and "discern[]" "[t]he line between fantasy and criminal intent." Maj. Op. at 4. Rather, it was, and remains, for the jury to determine the factual question of whether Valle had criminal intent. The jury considered and rejected Valle's defense that he was simply pretending to commit a crime. It instead found, beyond a reasonable doubt, that Valle actually and genuinely conspired to kidnap someone. The majority's eloquent prose on the importance of protecting thoughts from criminal punishment, see id. at 4-5 — perhaps better suited for an opinion editorial than a judicial opinion — is thus irrelevant, because the jury did not convict Valle for fantasizing. We are left to determine only whether the evidence, viewed in the light most favorable to the government, was sufficient for the jury to reach its verdict.
In reaching its conclusion, the majority pays lip service to the standard we apply in evaluating the sufficiency of the evidence, but then usurps the jury's role by weighing competing inferences and explanations of the evidence rather than viewing it in the government's favor. Such an undertaking is plainly inappropriate in this context.
Perhaps most tellingly, the majority imprudently structures its analysis to support its predetermined outcome by viewing the evidence "in its parts," rather than considering "the government's case in its totality," United States v. Hawkins, 547 F.3d 66, 70 (2d Cir. 2008) (internal quotation marks and brackets omitted): it first concludes that Valle's online communications — viewed in isolation — are "indistinguishable" from the purported "fantasy" communications, see Maj. Op. at 14, and then proceeds to reject the remaining evidence (of Valle's overt acts in furtherance of the conspiracy) as insufficient on its own to support the conviction, see id. at 25-27. When considered properly with the deference that we must apply, however, the jury's guilty verdict on the count of conspiracy to kidnap was sufficiently supported by the evidence presented at trial.
A. The Evidence Supporting the Jury's Verdict, Viewed in the Light Most Favorable to the Government
To decide that Valle was guilty of conspiracy to kidnap, all that the jury had to find was sufficient evidence in respect of one alleged coconspirator and one intended victim. See Kozeny, 667 F.3d at 131-32; United States v. Thomas, 54 F.3d 73, 81 (2d Cir. 1995). The evidence at trial provided a sufficient basis for the jury to conclude that Valle made an agreement with Dale Bollinger, a man he met on darkfetishnet.com, to kidnap and murder Kimberly Sauer, one of Valle's friends from college.
During the earliest communication in evidence between Valle and Bollinger, Valle sought Bollinger's assistance kidnapping and cannibalizing women, noting Bollinger's claimed experience, and shared pictures with Bollinger of potential victims. Bollinger accepted Valle's offer, stating that, although he lived in England, it would be easy for him to travel to Valle and help him.
The two focused on Kimberly Sauer as their preferred target. Valle told Bollinger that she would be "the easiest" to abduct. App'x at 81. He explained that, because he knew her personally, he could "just show up at her home unannounced" without "alert[ing] her" in order to "knock her out . . . and kidnap her." Id. at 82. Valle suggested a "Labor Day cookout," with Sauer "as the main course." Id. at 86. Bollinger replied that he was "looking forward to it," id., and would search for affordable plane tickets.
In multiple conversations over the course of a few weeks, Valle and Bollinger continued discussing the details of abducting and murdering Sauer. They considered logistical and practical concerns. They planned to use chloroform to incapacitate her, which Valle offered to make himself. They discussed stalking Sauer "in the evening," id. at 82, noting that she lived alone, in a small house, far from family that might notice her absence. Valle offered to "do a dry run," in which he would "show up randomly one day just being in the neighborhood." Id. at 93. They also decided to cover the trunk of Valle's car in plastic bags and use "gloves and a new pair of really cheap, common trainers" that should be destroyed after the abduction, "probably by burning." Id. at 95. They agreed that when buying materials they should use cash.
They also developed their plans to cook and eat Sauer. Valle and Bollinger debated the merits of roasting Sauer alive in an oven or over a rotisserie. They further discussed how she should be gagged and butchered. Valle promised to get a "brand new set of knives," and Bollinger advised that they would need a "cleaver, not a saw." Id. at 88.
As they plotted Sauer's abduction, Bollinger and Valle expressed excitement about their plan. Valle shared his happiness that Bollinger was "on board" and said that he loved imagining Sauer "asleep right now not having the slightest clue of what we have planned." Id. at 90. When Bollinger replied that he was "looking forward to it so much," Valle said that he could not wait to "see the look on her face when she wakes up naked and tied up." Id. at 96. Valle noted that it was good that they were "brainstorm[ing]," because "everything[ ] needs to be perfect." Id. at 93. They would "talk in great detail" about "every step," suggested Valle, "beginning with the rag in her face." Id.
Bollinger and Valle confirmed to each other their genuine intention to follow through on their plan. At one point, Bollinger asked Valle, "You WILL go through with this? I've been let down before. That's why i [sic] tend to work alone." Id. at 91. Valle immediately replied "yes," adding that Sauer would "never see it coming" and that he was anxious to kidnap and eat her. Id. Valle later stated that "kidnapping" Sauer and "getting away with it" was an "absolute truth." Id. at 93.
Valle took what could be viewed reasonably as concrete steps to further his plan with Bollinger. He sent Bollinger a "blueprint" of their plot, id. at 100, entitled "Abducting and Cooking Kimberly," id. at 267, which was consistent with what Valle and Bollinger had discussed up to that point. Valle searched the internet for Sauer's name, "how to kidnap someone," id. at 383, "how to abduct a girl," id. at 384, "[g]ood methods to kidnap someone," id., "how to knock someone unconscious," id. at 385, "how to chloroform a girl," id., "how to tie someone up," id. at 396, "most secure bondage," id., and "how to hogtie a girl," id. at 388. And Valle planned a trip, with his wife and young child, to Maryland, where Sauer lived. Valle contacted Sauer before the trip, and they planned a lunch while he and his family were in Maryland.
Before leaving for Maryland, Valle had further discussions with Bollinger. Valle explained that his lunch with Sauer would stimulate ideas for how to cook her, remarking that when he saw her, his mouth would "be watering." Id. at 110. The two also discussed the lunch as a way to confirm their choice of Sauer as their preferred target. When Valle had a moment of indecision about whether to target different women instead of Sauer, Bollinger advised that they "[k]eep the others as spares" and "see how" the lunch with Sauer goes. Id. at 111. Bollinger further wished Valle "good luck," id. at 116, cautioned him to act normally during the lunch — because he would be a "suspect" when Sauer "goes missing," id. at 102 — and asked him to report what he learned.
On the trip to Maryland, Valle text-messaged Sauer that he had driven past her place of work. Sauer found the text message strange and doubted that her other friends knew where she worked. Shortly after having lunch with Sauer, Valle wrote to Bollinger that Sauer "looked absolutely mouthwatering." Id. at 117.
B. The Crime of Conspiracy
"To be complete, a conspiracy simply requires (i) an agreement about the object of the conspiracy, (ii) specific intent to achieve that object, and (iii) an overt act in furtherance of the agreement." United States v. Wallace, 85 F.3d 1063, 1068 (2d Cir. 1996). A defendant is guilty of conspiracy so long as he "agreed on the essential nature of the plan," which need not accompany a fully-formed plot to constitute an illegal conspiracy. United States v. Eppolito, 543 F.3d 25, 47 (2d Cir. 2008) (internal quotation marks omitted); see also United States v. Rosa, 17 F.3d 1531, 1543-44 (2d Cir.), cert. denied, 513 U.S. 879 (1994).
The evidence at trial, viewed in the light most favorable to the government, supported the jury's conclusion that Valle and another agreed to commit a kidnapping, intended at the time to do so, and performed at least one overt act in furtherance of their agreement, such as Valle's creation of the "blueprint" or meeting Sauer in Maryland. The jury could reach the conclusion that a conspiracy was formed even though, as it happened, Valle and Bollinger ultimately made no attempt to kidnap Sauer on Labor Day. A conspiratorial agreement is a distinct crime that is punishable regardless of whether the plan is later abandoned. See United States v. Jimenez Recio, 537 U.S. 270, 275 (2003) (explaining that a conspiracy "poses a threat to the public over and above the threat of the commission of the relevant substantive crime" (internal quotation marks omitted)).
C. The Jury's Reasonable Inferences
In spite of Valle and Bollinger's express agreement in their written communications to kidnap Sauer, the majority concludes that the jury acted irrationally when it found Valle guilty of conspiracy to kidnap. The majority reasons that, because Valle fantasized about cannibalism with others over the internet, it was irrational to believe that Valle and Bollinger meant what they said to each other. See Maj. Op. at 25. In my view, however, the majority fails to respect the reasonable inferences that the jury could have made in determining that Valle's plot with Bollinger — unlike his other online communications — was real.
In stark contrast to any of Valle's other online communications, Valle took actions in the real world that the jury could conclude were done to effectuate his plot with Bollinger. Valle visited Sauer in Maryland, drove past her workplace, and had lunch with her — a lunch that he and Bollinger discussed as a way to further their plans.[5] But this was hardly, as the majority suggests, the "only meaningful difference," id., between the plot concerning Sauer and the so-called "fantasy chats." Only in Valle's conversation with Bollinger, for example, did the jury have evidence of a "blueprint" that Valle made of the plot.
The jury could also have found that the nature of Valle's conversations with Bollinger were distinct in tenor and tone. The detail of Valle's plans with Bollinger was unparalleled in his communications with others. And though Valle made allusions to being serious in certain of the supposed "fantasy chats," at no point did he state so unequivocally, as he did to Bollinger, that it was an "absolute truth" that he and Bollinger would kidnap Sauer. App'x at 93.
Other evidence further supported the jury's conclusion that Valle's plot with Bollinger was more than mere fantasy. Valle's internet searches between the date of his first conversation with Bollinger and his lunch with Sauer were particularly relevant to his plan with Bollinger. The majority concedes that Valle's internet searches could have provided "relevant proof of intent," but nevertheless dismisses them because, in its view, Valle's searches "occurred in a context of deep fantasy." Maj. Op. at 21. This flawed analysis commits the fallacy of petitio principii (circular reasoning) because "what is to be proved is implicitly presumed as true in the premise." Black's Law Dictionary 1329 (10th ed. 2014); see also Adams v. Gould, Inc., 687 F.2d 27, 30 (3d Cir. 1982) (explaining that "the fallacy of petitio principii" occurs when one "assum[es] the conclusion"), cert. denied, 460 U.S. 1085 (1983); Nico v. Comm'r of Internal Revenue, 565 F.2d 1234, 1238 (2d Cir. 1977) ("this court by all means eschews petitio principii"). The majority concludes that Valle was engaged in fantasy based on its reading of his written communications and then finds his internet searches consistent with this preordained conclusion. The jury, however, may have considered Valle's internet searches in deciding that very issue — whether Valle was engaged only in fantasy.
The jury could have also considered Valle's post-arrest statement to a government agent that Bollinger was "more serious" about their discussions than other individuals with whom Valle communicated. Trial Tr. at 1031.
The majority opinion takes pains to conjure innocent explanations for this evidence. Perhaps Valle's lunch with Sauer was just a normal social interaction. See Maj. Op. at 24-26. Maybe Valle withheld from Bollinger Sauer's address because he did not intend to actually harm her. See id. at 24-25. Possibly Valle conducted internet searches on how to kidnap someone simply because he had a general interest in crime rather than criminal intent.[6]See id. at 21. These are perspectives on the evidence that the jury conceivably could have found persuasive but did not. It was the jury's sole prerogative to decide how to interpret the evidence presented, and the majority's notions of how the evidence should instead have been interpreted are incompatible with our obligation to respect the jury's fact-finding role by viewing the evidence in the light most favorable to the government and drawing all reasonable inferences in its favor. See United States v. Aguiar, 737 F.3d 251, 265 (2d Cir. 2013) ("We agree that much of the evidence could be read to have an innocent meaning, but when the evidence raises two permissible inferences then we must resolve such conflicts in favor of the prosecution."), cert. denied, 135 S. Ct. 400 (2014); United States v. Friedman, 998 F.2d 53, 56 (2d Cir. 1993) (explaining that "[i]t is not for [the court] to weigh . . . competing inferences and explanations" to ascertain "which explanation [of defendant's conduct] is more likely"); see also, e.g., United States v. Pavulak, 700 F.3d 651, 670 (3d Cir. 2012) (rejecting defendant's contention that his requests to see a child naked were "facetious `banter'" and "fantasies," because it was not for the court "to weigh the evidence"), cert. denied, 133 S. Ct. 2047 (2013); United States v. Dwinells, 508 F.3d 63, 74 (1st Cir. 2007) (acknowledging that defendant's response to charges of attempted enticement of a minor — "that he was merely role-playing and thought that the communications were mutually entertained fantasies" — was "plausible" and "buttressed by [his] persistent dodging of suggestions that he and his correspondents meet," but concluding that "the government's theory of the case . . . also was plausible," and that "[w]hen the record is fairly susceptible to two competing scenarios, the choice between those scenarios ordinarily is for the jury"), cert. denied, 554 U.S. 922 (2008).
For each assessment of the evidence made by the majority in contravention of the jury's finding of guilt, there is a contrary light through which the evidence can be viewed — in fact, must be viewed — that supports the jury's conclusion.
The majority notes, for instance, that in his conversations with Bollinger, Valle lied about certain seemingly important facts (such as where he lived, whether he knew Sauer's address, and whether he owned a secluded mountain house). See Maj. Op. at 23-25. The majority similarly points out that Valle's "blueprint" of Sauer's abduction listed inaccurately much of Sauer's identifying information. See id. at 23. But Valle's misstatements hardly demonstrate a lack of intent. For instance, the jury could have rationally inferred from the evidence that, while the plan was still developing, Valle misled Bollinger because he did not fully trust him. Valle's "blueprint" obscures information about Sauer that could be used to find her easily, such as her last name, but other information in the document is, by contrast, accurate (e.g., Sauer's picture, marital status, lack of tattoos). Bollinger, in fact, expressly assumed that mistrust was Valle's reason for not sharing certain information; when Valle claimed not to know Sauer's address, Bollinger remarked, "not like I'll get there a day early!" App'x at 101. And Valle's lies about what he possessed to facilitate the crime — such as a secluded mountain house — were in response to Bollinger's concerns about the plan's effectiveness; the jury could have reasoned that Valle fibbed to ensure Bollinger's interest. Valle would not be the first defendant to mislead a coconspirator, and his misstatements do not negate the jury's verdict. E.g., United States v. Gersh, 328 F.2d 460, 462 (2d Cir.) (stating that there was "no less a meeting of the minds" because coconspirators decided to deceive each other), cert. denied, 377 U.S. 992 (1964); cf. United States v. Farley, 607 F.3d 1294, 1335 (11th Cir.) (rejecting defendant's assertion that his lack of intent was demonstrated by lies to his coconspirator about details in their plot to sexually abuse a minor), cert. denied, 562 U.S. 945 (2010).
The majority discounts Valle's internet searches as demonstrating merely an "interest" in criminal activity. See Maj. Op. at 21. But the jury could certainly reasonably deduce that Valle's inquiries into how to incapacitate, bind, and kidnap women — all conducted contemporaneously with his conversations with Bollinger about abducting Sauer — provided a strong indication of criminal intent.
The majority likewise supposes that the improbability of Valle and Bollinger's plot suggests that it was no more than fantasy. Valle and Bollinger met on a sexual fetish website, knew almost nothing about each other, barely discussed the logistics of Bollinger traveling thousands of miles to assist Valle, developed a "blueprint" that was "no more detailed than . . . Valle's Internet chats," id. at 25, and let their target date for Sauer's abduction pass without comment. Yet Valle and Bollinger explicitly stated that their plans were incomplete and needed more work. When Valle sent Bollinger the "blueprint," in fact, he acknowledged that "obviously a lot has to be added" because they were "in the beginning stages." App'x at 100. And throughout their discussions of Sauer, Valle and Bollinger contemplated additional or alternative targets. The evidence supports the inference that Valle and Bollinger agreed on a basic framework and set an aspirational date but then focused on other targets or plans that they later found more appealing.
The majority also suggests that the jury lacked evidence of Bollinger's criminal intent. See Maj. Op. at 27. To the contrary, the only evidence at trial as to Bollinger was his written conversations with Valle, in which he unequivocally established intent by expressly agreeing to help Valle kidnap Sauer. The majority's analysis as to why the jury should have disbelieved Valle's intent is irrelevant to the question of Bollinger's intent. Whereas the majority points to Valle's other online conversations to contend that his statements to Bollinger were feigned, no such evidence existed as to Bollinger.
D. The Jury's Verdict Was Sufficiently Supported by the Evidence
As judges reviewing the sufficiency of the evidence in a criminal trial, given the grave importance of the event, it can be tempting to view the evidence in the light most convincing to us, to discount plausible factual inferences that we find unpersuasive, and to conclude that if we do not believe that the evidence proved guilt beyond a reasonable doubt, then no rational juror could have so found. That, however, is simply not the standard to which we are bound, see Jackson, 443 U.S. at 318-19; United States v. Josephberg, 562 F.3d 478, 488 (2d Cir.) ("The weight of the evidence is a matter for argument to the jury, not a ground for reversal on appeal." (internal quotation marks omitted)), cert. denied, 558 U.S. 965 (2009), and we must be diligent not to overreach into the jury's domain, cf. United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting) ("[T]he only check upon our own exercise of power is our own sense of self-restraint."). Our "deference to the jury's findings is especially important" in a conspiracy case, "because a conspiracy by its very nature is a secretive operation, and it is a rare case where all aspects of a conspiracy can be laid bare in court with the precision of a surgeon's scalpel." United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008) (internal quotation marks omitted), cert. denied, 555 U.S. 1122 (2009).
Here, I fear the majority treads beyond the strict limitations of our review by improperly weighing competing inferences and explanations of the evidence — as if deciding a motion for a new trial instead of reviewing a judgment of acquittal — rather than viewing it, as we must, "in its totality," Hawkins, 547 F.3d at 70 (internal quotation marks), and in the government's favor, see Tibbs v. Florida, 457 U.S. 31, 45 (1982) (recognizing "lower limit on an appellate court's definition of evidentiary sufficiency" compared to evidentiary weight); see also, e.g., United States v. Autuori, 212 F.3d 105, 120 (2d Cir. 2000) (affirming grant of motion for new trial while reversing judgment of acquittal).
All that was required to find Valle guilty of conspiracy was proof of one agreement with one coconspirator to kidnap one target, as well as one overt act. See Wallace, 85 F.3d at 1068. Even if the government's evidence was insufficient in respect of each of the other four alleged kidnapping conspiracies, see Maj. Op. at 6-7, Valle's conversations with Bollinger about kidnapping and cannibalizing Sauer, together with Valle's overt acts, such as his trip to Maryland, were enough for the jury to rationally find that Valle committed the crime of conspiracy to kidnap, see United States v. Berger, 224 F.3d 107, 113 (2d Cir. 2000) ("[T]he government need[] only [] prove agreement on one of the objectives charged in the indictment in order to establish that a conspiracy existed.").
Of course, a jury can never determine with complete certainty what a criminal defendant was thinking at a particular moment. But here the jury had sufficient evidence to conclude, beyond a reasonable doubt, that Valle and Bollinger meant exactly what they said to each other. See United States v. Rowe, 56 F.2d 747, 749 (2d Cir.) (L. Hand, J.) ("A jury alone could say whether in such a setting the hearer ought to have understood that the utterances were not to be taken at their face. . . ."), cert. denied, 286 U.S. 554 (1932). Valle and Bollinger targeted Sauer because she would be easy to kidnap, spent hours plotting her abduction, and repeatedly stated that they were serious — and excited — about their plan. Their words were corroborated by Valle's trip to Maryland, contemporaneous internet searches, blueprint for abducting and cooking Sauer, and post-arrest assertion that Bollinger was "more serious" than others with whom Valle communicated.[7] The jury could reasonably deduce that the tenor of Valle's conversations with Bollinger, together with his real-world actions, proved beyond a reasonable doubt that the plot to kidnap Sauer was no fantasy. We cannot second-guess the jury's rational conclusion. See Jackson, 443 U.S. at 319; United States v. Allied Stevedoring Corp., 241 F.2d 925, 930 (2d Cir.) (L. Hand, J.) ("What weight the jury should give to [the] evidence was for them, and them alone, provided that it satisfied their minds beyond any fair doubt."), cert. denied, 353 U.S. 984 (1957).
I would thus vacate the District Court's judgment of acquittal in respect of Count I and remand for the District Court to consider Valle's alternative arguments for acquittal, which were raised below but did not form the basis for the District Court's decision.
II. Computer Fraud and Abuse Act (Count II)
Valle was convicted of conducting a computer search that exceeded his authorized access to a federal law enforcement database, in violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Because I agree with the District Court that Valle's conduct is proscribed by the plain language of the CFAA, I would affirm his conviction.
The CFAA imposes criminal penalties on anyone who "intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any department or agency of the United States." 18 U.S.C. § 1030(a)(2)(B). The phrase "exceeds authorized access" is defined as "access[ing] a computer with authorization" to obtain "information in the computer that the accesser is not entitled so to obtain." Id. § 1030(e)(6). The CFAA therefore protects information belonging to the United States both from those who lack any authorization to access the computer system and from those, like Valle, who did not comply with restrictions on their authorized access.
The evidence at trial established that, by entering the name "Maureen Hartigan" into a federal law enforcement database, Valle obtained information that he was "not entitled so to obtain." See United States v. Valle, 301 F.R.D. 53, 109-10 (S.D.N.Y. 2014). Valle was instructed repeatedly that he had permission to use his credentials to access the federal National Crime Information Center ("NCIC") database only when "required to do so in the course of [his] official duties and responsibilities" as a police officer, and that there were "no exceptions to this policy." App'x at 61-62. Valle was warned that accessing law enforcement databases for non-official purposes was improper and that the penalties for so doing included termination and prosecution. And Valle concedes that he had no legitimate law enforcement purpose when he queried the database for the name "Maureen Hartigan." See Valle, 301 F.R.D. at 110 ("It is undisputed that Valle had no law enforcement purpose for querying Hartigan's name. . . .").
The majority nonetheless holds that, because Valle possessed the technical credentials to access the NCIC database and query Hartigan's name, he did not exceed his authorized access by so doing. See Maj. Op. at 29, 37-38. In reaching this result, the majority discovers ambiguity in the statutory language where there is none. Under the plain language of the statute, Valle exceeded his authorized access to a federal database in violation of the CFAA.
Statutory construction must "begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 305 (2d Cir. 2007) (en banc) (internal quotation marks omitted), cert. denied, 553 U.S. 1053 (2008). "Congress says in a statute what it means and means in a statute what it says there." Id.
As the majority concedes, a preponderance of our sister circuits interpreting the term "exceeds authorized access" have concluded that the statute unambiguously encompasses conduct of the type engaged in by Valle. See Maj. Op. at 31; see also United States v. Rodriguez, 628 F.3d 1258, 1263 (11th Cir. 2010), cert. denied, 131 S. Ct. 2166 (2011); United States v. John, 597 F.3d 263, 270-73 (5th Cir. 2010); Int'l Airport Ctrs., LLC v. Citrin, 440 F.3d 418, 420-21 (7th Cir. 2006); EF Cultural Travel BV v. Explorica, Inc., 274 F.3d 577, 581-84 (1st Cir. 2001). The Eleventh Circuit, in United States v. Rodriguez, affirmed the conviction of a Social Security Administration employee who obtained personal information about former girlfriends and other women from federal databases that he was authorized to use only for business reasons. 628 F.3d at 1260-63. Rodriguez argued that he did not violate Section 1030(a)(2)(B) because he accessed databases that he was authorized to use as a Social Security Administration employee. See id. at 1263. The Eleventh Circuit rejected his argument, explaining that Rodriguez clearly "exceed[ed] his authorized access" because "his access of the victims' personal information was not in furtherance of his duties" as an employee. Id.
Similarly, in United States v. John, the Fifth Circuit found that a bank employee exceeded her authorized access when, in order to facilitate fraud, she accessed confidential customer information in contravention of her employer's restrictions on computer use. 597 F.3d at 270-73. There, as here, the defendant was aware that her employer's "official policy," which was reiterated in training programs she attended, "prohibited misuse of the company's internal computer systems and confidential . . . information." Id. at 272.
The majority concludes that these courts "looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute's unitary definition of `exceeds authorized access.'" Maj. Op. at 36 (internal quotation marks omitted). It notes concerns, articulated by two of our sister circuits, about the potentially expansive scope of the CFAA.[8]See id. at 31, 35-36, 38 (discussing United States v. Nosal, 676 F.3d 854, 859-63 (9th Cir. 2012) (en banc) (observing that a broad construction of the CFAA "would make criminals of large groups of people who have little reason to suspect they are committing a federal crime" (internal quotation marks omitted)), and WEC Carolina Energy Sols. LLC v. Miller, 687 F.3d 199, 206 (4th Cir. 2012), cert. dismissed, 133 S. Ct. 831 (2013)).
The majority opinion, apparently without irony, concludes that giving effect to the plain language of the statute would somehow "place us in the position of [the] legislature." Maj. Op. at 35. But where, as here, the statute's language is plain and unambiguous, the "sole function of the courts is to enforce it according to its terms." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989); accord United States v. DiCristina, 726 F.3d 92, 96 (2d Cir. 2013), cert. denied, 134 S. Ct. 1281 (2014). It may well be that the CFAA sweeps broadly. But such is a matter for policy debate, see United States v. Rodgers, 466 U.S. 475, 483 (1984) ("Resolution of the pros and cons of whether a statute should sweep broadly or narrowly is for Congress."), and the Congress is free to amend the statute if it chooses, see Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 576 (1982) ("The remedy for any dissatisfaction with the results in particular cases lies with Congress and not with this Court. Congress may amend the statute; we may not.").[9] "Any other conclusion, while purporting to be an exercise in judicial restraint, would trench upon the legislative powers vested in Congress by Art. I, § 1, of the Constitution." Dep't of Housing & Urban Dev. v. Rucker, 535 U.S. 125, 134-35 (2002) (internal quotation marks omitted); cf. Dennis v. United States, 341 U.S. 494, 526 (1951) (Frankfurter, J., concurring) ("[W]e must scrupulously observe the narrow limits of judicial authority even though self-restraint is alone set over us. Above all we must remember that this Court's power of judicial review is not an exercise of the powers of a super-Legislature.").
The majority invokes the rule of lenity in support of its view. See Maj. Op. at 35-38. The doctrine is a "rule of last resort." Oppedisano v. Holder, 769 F.3d 147, 153 (2d Cir. 2014) (internal quotation marks omitted), cert. denied, 136 S. Ct. 211 (2015); see also Reno v. Koray, 515 U.S. 50, 65 (1995) ("The rule of lenity applies only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended." (internal citations and quotation marks omitted)). It "serves to aid the court in interpreting a criminal statute only if there is an ambiguity," and it cannot be "used to narrow a statute that has an unambiguously broad thrust." United States v. Litchfield, 986 F.2d 21, 22 (2d Cir. 1993) (per curiam); see also Abramski v. United States, 134 S. Ct. 2259, 2272 n.10 (2014) ("The dissent would apply the rule of lenity here because the statute's text, taken alone, permits a narrower construction, but we have repeatedly emphasized that is not the appropriate test.").
The majority concludes that the "sharp division" among our sister circuits means that whether the statute proscribes Valle's conduct cannot be resolved simply by looking at the text of the statute, requiring us to "turn to the legislative history and motivating policies for further guidance." Maj. Op. at 31. To the contrary, however, the Supreme Court has explained that "[a] statute is not ambiguous for purposes of lenity merely because there is a division of judicial authority over its proper construction." Reno, 515 U.S. at 64-65 (internal quotation marks omitted); see also DiCristina, 726 F.3d at 104 ("A statute is not `"ambiguous" for purposes of lenity merely because it [i]s possible to articulate a construction more narrow than that urged by the Government.'" (quoting Moskal v. United States, 498 U.S. 103, 108 (1990))).
Therefore, "[w]here statutory . . . provisions unambiguously cover the defendant's conduct," as Section 1030(a)(2)(B) clearly proscribes Valle's conduct here, the rule of lenity "does not come into play." Litchfield, 986 F.2d at 22; see, e.g., DePierre v. United States, 131 S. Ct. 2225, 2237 (2011) (explaining that the rule of lenity was inapplicable "[b]ecause the statutory text allows us to make far more than a guess as to what Congress intended" (internal quotation marks omitted)); Rodgers, 466 U.S. at 484 (concluding that criminal statute was "not sufficiently ambiguous . . . to permit the rule [of lenity] to be controlling"); see also Yates v. United States, 135 S. Ct. 1074, 1098-99 (2015) (Kagan, J., dissenting) ("Lenity offers no proper refuge from [a] straightforward (even though capacious) construction."). For the same reason, I also have no occasion to refer to the statute's legislative history. See United States v. Woods, 134 S. Ct. 557, 567 n.5 (2013) (Scalia, J.) ("Whether or not legislative history is ever relevant, it need not be consulted when, as here, the statutory text is unambiguous."); Puello v. Bureau of Citizenship & Immigration Servs., 511 F.3d 324, 331 (2d Cir. 2007) (Katzmann, J.) ("Because we believe the language in the statute is unambiguous, we need not examine legislative history to divine the statute's meaning.").
I emphasize that I take no position on the applicability of Section 1030(a)(2)(B) in other circumstances or the scope or validity of other provisions of the CFAA, which are not at issue here.[10] Because I find that Section 1030(a)(2)(B) of the CFAA clearly proscribes Valle's conduct, I would affirm.
CONCLUSION
I would vacate the District Court's judgment of acquittal in respect of Count I, affirm the District Court's judgment of conviction in respect of Count II, and remand for further proceedings. Therefore, I respectfully dissent.
[1] In a "fantasy" chat with "Tim Chase," for example, Valle and Chase agree to kidnap a woman on January 27, 2012. Valle supplies real pictures of the woman, they agree upon a price of $4,000 for Valle's services, and Valle states that the woman goes to the gym nightly and that he has kept a log of when she leaves and returns home. The two also agree upon a location "a hundred miles east of Erie" as the place of delivery. As Judge Gardephe found, there are no material differences between these chats with Chase, the fantasist, and Valle's chats with VanHise, the alleged co-conspirator. 301 F.R.D. at 86-87.
[2] As Judge Richard Posner observed in another case involving an individual engaged in sexually graphic online communications with strangers, the defendant "may have thought (this is common in Internet relationships) that they were both enacting a fantasy." United States v. Gladish, 536 F.3d 646, 650 (7th Cir. 2008). Indeed, in Gladish the Seventh Circuit reversed a conviction for attempt to induce a minor to engage in sexual activity because "[the defendant's] talk and his sending her a video of himself masturbating (the basis of his unchallenged conviction for violating 18 U.S.C. § 1470) [we]re equally consistent with his having intended to obtain sexual satisfaction vicariously." Id.
[3] See also Black's Law Dictionary 159 (10th ed. 2014) (defining "authorization" as "[o]fficial permission to do something"); Webster's Third International Dictionary 146 (2002) (defining "authorization" as "the state of being authorized," and "authorize" as "to endorse, empower, justify, permit by or as if by some recognized or proper authority").
[4] The dissent claims that we "discover[] ambiguity in the statutory language where there is none" and summarily concludes that "exceeds authorized access" obviously encompasses a scenario where a user "did not comply with restrictions on [his] authorized access." Dissenting Op. at 25-26. This conclusion is, with respect, not reasonable in light of these cases.
[5] As noted earlier, Valle and Bollinger discussed the lunch over the course of multiple conversations and expressly referred to it as a way to confirm their choice of Sauer and inspire ideas for cannibalizing her. See supra at 10-11. In light of these discussions, it is not clear how the majority can contend that Valle and Bollinger's communications "leading up to and following the lunch" make it "impossible to conclude" that the lunch was in furtherance of their plot. Maj. Op. at 26.
[6] Unlike the majority, the jury did not determine that Valle was merely "interested in committing acts of sexualized violence against women," Maj. Op. at 21; it concluded — beyond a reasonable doubt — that Valle actually conspired to commit a kidnapping.
[7] This evidence, viewed in the light most favorable to the government and "in its totality," United States v. Florez, 447 F.3d 145, 154 (2d Cir.), cert. denied, 549 U.S. 1040 (2006), is not merely "some incriminating evidence," Maj. Op. at 26, whatever that may mean.
[8] These concerns address Section 1030(a)(2)(C) of the CFAA, which prohibits exceeding authorized access to a computer to obtain "information from any protected computer." 18 U.S.C. § 1030(a)(2)(C). The CFAA defines "protected computer" as, among other things, a computer "which is used in or affecting interstate or foreign commerce or communication," id. § 1030(e)(2)(B), a definition that has been interpreted to encompass any computer with an internet connection, see United States v. Yücel, 97 F. Supp. 3d 413, 418-19 (S.D.N.Y. 2015) (collecting cases and noting "widespread agreement in the case law" that "protected computer" includes any internet-connected computer). Valle was not charged under Section 1030(a)(2)(C).
[9] See also Principal Deputy Assistant Attorney General David Bitkower Delivers Keynote Address at George Washington Law Review Symposium entitled "Hacking into the Computer Fraud and Abuse Act," U.S. Dep't of Justice (Nov. 6, 2015), http://www.justice.gov/opa/speech/principal-deputy-assistant-attorney-general-david-bitkower-delivers-keynote-address (describing proposed amendment to CFAA to clarify definition of "exceeds authorized access"); Cyber Crime: Modernizing our Legal Framework for the Information Age: Hearing Before the Subcommittee on Crime and Terrorism of the Senate Committee on the Judiciary, 114th Cong. (2015) (statement of David M. Bitkower, Deputy Assistant Attorney General, Department of Justice), available at http://www.judiciary.senate.gov/imo/media/doc/07-08-15%20Bitkower%20Testimony.pdf (describing proposed amendments to limit breadth of CFAA).
[10] The majority apparently rules not on the issue presented on this appeal — whether Valle's conduct is proscribed by the CFAA — but on the application of this statute to other circumstances not implicated here. See Maj. Op. at 38 (explaining that, "[w]hatever the apparent merits of imposing criminal liability may seem to be in this case," the majority is "constru[ing] the statute" for the purposes of "many other situations"). Because the majority's ruling might "impact[] many more people than Valle," it rejects the government's reasonable proposal that we let concerns about "the risk of criminalizing ordinary behavior" be addressed in due course when raised "by individuals actually affected by the provision at issue." Id. at 37 (internal quotation marks omitted). In my view, the majority's approach is unwise and improper. See Costello v. INS, 311 F.2d 343, 348 (2d Cir. 1962) ("[W]e think the exercise of a proper judicial restraint makes it undesirable for us to reach out and now decide more than the circumstances of this case require us to decide."), rev'd on other grounds, 376 U.S. 120 (1964).
7.2.8.2.3.10 II.C.i Strict Liability 7.2.8.2.3.10 II.C.i Strict Liability
As we already discovered in the last section in Garnett v. State, some crimes do not require any mens rea. Such “strict liability” crimes can result in punishment for an act alone. While mens rea is typically a crucial part of defining blameworthiness in criminal law, strict liability crimes are often more concerned with regulating behavior than punishing the most blameworthy offenders. The following cases explore this idea. As you read them, consider why a lawmaker might choose to create a strict liability crime, and why a court might allow one. Are certain kinds of crime particularly apt to be strict liability offenses? What effect does removing the mens rea requirement have, and what expectations does it impose upon people?
7.2.8.2.3.10.1 United States v. Balint 7.2.8.2.3.10.1 United States v. Balint
UNITED STATES
v.
BALINT ET AL.
Supreme Court of United States.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.
[251] Mr. William C. Herron, with whom Mr. Solicitor General Beck was on the brief, for the United States.
No appearance for defendants in error.
MR. CHIEF JUSTICE TAFT delivered the opinion of the court.
This is a writ of error to the District Court under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246. Defendants in error were indicted for a violation of the Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785. The indictment charged them with unlawfully selling to another a certain amount of a derivative of opium and a certain amount of a derivative of coca leaves, not in pursuance of any written order on a form issued in blank for that purpose by the Commissioner of Internal Revenue, contrary to the provisions of § 2 of the act. The defendants demurrer to the indictment on the ground that it failed to charge that they had sold the inhibited drugs knowing them to be such. The statute does not make such knowledge an element of the offense. The District Court sustained the demurrer and quashed the indictment. The correctness of this ruling is the question before us.
While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did [252] not in terms include it (Reg. v. Sleep, 8 Cox C.C. 472), there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide "that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance." Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. Commonwealth v. Mixer, 207 Mass. 141; Commonwealth v. Smith, 166 Mass. 370; Commonwealth v. Hallett, 103 Mass. 452; People v. Kibler, 106 N.Y. 321; State v. Kinkead, 57 Conn. 173; McCutcheon v. People, 69 Ill. 601; State v. Thompson, 74 Ia. 119; United States v. Leathers, 6 Sawy. 17; United States v. Thomson, 12 Fed. 245; United States v. Mayfield, 177 Fed. 765; United States v. 36 Bottles of Gin, 210 Fed. 271; Feeley v. United States, 236 Fed. 903; Voves v. United States, 249 Fed. 191. So, too, in the collection of taxes, the importance to the public of their collection leads the legislature to impose on the taxpayer the burden of finding out the facts upon which his liability to pay depends and meeting it at the peril of punishment. Regina v. Woodrow, 15 M. & W. 404; Bruhn v. Rex, [1909] A.C. 317. Again where one deals with others and his mere negligence may be dangerous to them, as in selling diseased food or poison, the [253] policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells. Hobbs v. Winchester Corporation, [1910] 2 K.B. 471, 483.
The question before us, therefore, is one of the construction of the statute and of inference of the intent of Congress. The Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. United States v. Doremus, 249 U.S. 86, 94; United States v. Jin Fuey Moy, 241 U.S. 394, 402.
Section 2 of the Narcotic Act, 38 Stat. 786, we give in part in the margin.[1] It is very evident from a reading of [254] it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. Congress weighed the possible injustice of subjecting an innocent seller to a penalty against the evil of exposing innocent purchasers to danger from the drug, and concluded that the latter was the result preferably to be avoided. Doubtless considerations as to the opportunity of the seller to find out the fact and the difficulty of proof of knowledge contributed to this conclusion. We think the demurrer to the indictment should have been overruled.
Judgment reversed.
MR. JUSTICE CLARKE took no part in this decision.
[1] Part of § 2 of an act entitled An Act To provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes, approved December 17, 1914, 38 Stat. 785, 786:
Sec. 2. That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned.
7.2.8.2.3.10.2 United States v. Dotterweich 7.2.8.2.3.10.2 United States v. Dotterweich
UNITED STATES
v.
DOTTERWEICH.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.
Solicitor General Fahy, with whom Assistant Attorneys General Wendell Berge and Tom C. Clark, and Messrs. Oscar A. Provost, Edward G. Jennings, and Valentine Brookes were on the brief, for the United States.
[278] Mr. Samuel M. Fleischman, with whom Mr. Robert J. Whissel was on the brief, for respondent.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
This was a prosecution begun by two informations, consolidated for trial, charging Buffalo Pharmacal Company, Inc., and Dotterweich, its president and general manager, with violations of the Act of Congress of June 25, 1938, c. 675, 52 Stat. 1040, 21 U.S.C. §§ 301-392, known as the Federal Food, Drug, and Cosmetic Act. The Company, a jobber in drugs, purchased them from their manufacturers and shipped them, repacked under its own label, in interstate commerce. (No question is raised in this case regarding the implications that may properly arise when, although the manufacturer gives the jobber a guaranty, the latter through his own label makes representations.) The informations were based on § 301 of that Act (21 U.S.C. § 331), paragraph (a) of which prohibits "The introduction or delivery for introduction into interstate commerce of any . . . drug . . . that is adulterated or misbranded." "Any person" violating this provision is, by paragraph (a) of § 303 (21 U.S.C. § 333), made "guilty of a misdemeanor." Three counts went to the jury — two, for shipping misbranded drugs in interstate commerce, and a third, for so shipping an adulterated drug. The jury disagreed as to the corporation and found Dotterweich guilty on all three counts. We start with the finding of the Circuit Court of Appeals that the evidence was adequate to support the verdict of adulteration and misbranding. 131 F.2d 500, 502.
Two other questions which the Circuit Court of Appeals decided against Dotterweich call only for summary disposition to clear the path for the main question before us. He invoked § 305 of the Act requiring the Administrator, before reporting a violation for prosecution by a [279] United States attorney, to give the suspect an "opportunity to present his views." We agree with the Circuit Court of Appeals that the giving of such an opportunity, which was not accorded to Dotterweich, is not a prerequisite to prosecution. This Court so held in United States v. Morgan, 222 U.S. 274, in construing the Food and Drugs Act of 1906, 34 Stat. 768, and the legislative history to which the court below called attention abundantly proves that Congress, in the changed phraseology of 1938, did not intend to introduce a change of substance. 83 Cong. Rec. 7792-94. Equally baseless is the claim of Dotterweich that, having failed to find the corporation guilty, the jury could not find him guilty. Whether the jury's verdict was the result of carelessness or compromise or a belief that the responsible individual should suffer the penalty instead of merely increasing, as it were, the cost of running the business of the corporation, is immaterial. Juries may indulge in precisely such motives or vagaries. Dunn v. United States, 284 U.S. 390.
And so we are brought to our real problem. The Circuit Court of Appeals, one judge dissenting, reversed the conviction on the ground that only the corporation was the "person" subject to prosecution unless, perchance, Buffalo Pharmacal was a counterfeit corporation serving as a screen for Dotterweich. On that issue, after rehearing, it remanded the cause for a new trial. We then brought the case here, on the Government's petition for certiorari, 318 U.S. 753, because this construction raised questions of importance in the enforcement of the Federal Food, Drug, and Cosmetic Act.
The court below drew its conclusion not from the provisions defining the offenses on which this prosecution was based (§§ 301 (a) and 303 (a)), but from the terms of § 303 (c). That section affords immunity from prosecution if certain conditions are satisfied. The condition relevant to this case is a guaranty from the seller of the innocence of [280] his product. So far as here relevant, the provision for an immunizing guaranty is as follows:
"No person shall be subject to the penalties of subsection (a) of this section . . . (2) for having violated section 301 (a) or (d), if he establishes a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect, in case of an alleged violation of section 301 (a), that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act . . ."
The Circuit Court of Appeals found it "difficult to believe that Congress expected anyone except the principal to get such a guaranty, or to make the guilt of an agent depend upon whether his employer had gotten one." 131 F.2d 500, 503. And so it cut down the scope of the penalizing provisions of the Act to the restrictive view, as a matter of language and policy, it took of the relieving effect of a guaranty.
The guaranty clause cannot be read in isolation. The Food and Drugs Act of 1906 was an exertion by Congress of its power to keep impure and adulterated food and drugs out of the channels of commerce. By the Act of 1938, Congress extended the range of its control over illicit and noxious articles and stiffened the penalties for disobedience. The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. See Hipolite Egg Co. v. United States, 220 U.S. 45, 57, and McDermott v. Wisconsin, 228 U.S. 115, 128. The prosecution to which Dotterweich was subjected is based on a now familiar type of legislation whereby penalties serve as effective means [281] of regulation. Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger. United States v. Balint, 258 U.S. 250. And so it is clear that shipments like those now in issue are "punished by the statute if the article is misbranded [or adulterated], and that the article may be misbranded [or adulterated] without any conscious fraud at all. It was natural enough to throw this risk on shippers with regard to the identity of their wares . . ." United States v. Johnson, 221 U.S. 488, 497-98.
The statute makes "any person" who violates § 301 (a) guilty of a "misdemeanor." It specifically defines "person" to include "corporation." § 201 (e). But the only way in which a corporation can act is through the individuals who act on its behalf. New York Central & H.R.R. Co. v. United States, 212 U.S. 481. And the historic conception of a "misdemeanor" makes all those responsible for it equally guilty, United States v. Mills, 7 Pet. 138, 141, a doctrine given general application in § 332 of the Penal Code (18 U.S.C. § 550). If, then, Dotterweich is not subject to the Act, it must be solely on the ground that individuals are immune when the "person" who violates § 301 (a) is a corporation, although from the point of view of action the individuals are the corporation. As a matter of legal development, it has taken time to establish criminal liability also for a corporation and not merely for its agents. See New York Central & H.R.R. Co. v. United States, supra. The history of federal food and drug legislation is a good illustration of the elaborate phrasing that was in earlier days deemed necessary to fasten criminal liability on corporations. Section 12 of the Food and Drugs Act of 1906 provided that, "the act, omission, or failure of any officer, agent, or other person [282] acting for or employed by any corporation, company, society, or association, within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation, company, society, or association as well as that of the person." By 1938, legal understanding and practice had rendered such statement of the obvious superfluous. Deletion of words — in the interest of brevity and good draftsmanship[1] — superfluous for holding a corporation criminally liable can hardly be found ground for relieving from such liability the individual agents of the corporation. To hold that the Act of 1938 freed all individuals, except when proprietors, from the culpability under which the earlier legislation had placed them is to defeat the very object of the new Act. Nothing is clearer than that the later legislation was designed to enlarge and stiffen the penal net and not to narrow and loosen it. This purpose was unequivocally avowed by the two committees which reported the bills to the Congress. The House Committee reported that the Act "seeks to set up effective provisions against abuses of consumer welfare growing out of inadequacies in the Food and Drugs Act of June 30, 1906." (H. Rep. No. 2139, 75th Cong., 3d Sess., p. 1.) And the Senate Committee explicitly pointed out that the new legislation "must not weaken the existing laws," but on the contrary "it must strengthen and extend that law's protection of the consumer." (S. Rep. No. 152, 75th Cong., 1st Sess., p. 1.) If the 1938 Act were construed as it was below, the penalties of the law could be imposed only in the rare case where the corporation is merely an individual's alter ego. Corporations carrying on an illicit trade would be subject only to what the House Committee described as a "license fee [283] for the conduct of an illegitimate business."[2] A corporate officer, who even with "intent to defraud or mislead" (§ 303b), introduced adulterated or misbranded drugs into interstate commerce could not be held culpable for conduct which was indubitably outlawed by the 1906 Act. See, e.g., United States v. Mayfield, 177 F. 765. This argument proves too much. It is not credible that Congress should by implication have exonerated what is probably a preponderant number of persons involved in acts of disobedience — for the number of non-corporate proprietors is relatively small. Congress, of course, could reverse the process and hold only the corporation and allow its agents to escape. In very exceptional circumstances it may have required this result. See Sherman v. United States, 282 U.S. 25. But the history of the present Act, its purposes, its terms, and extended practical construction lead away from such a result once "we free our minds from the notion that criminal statutes must be construed by some artificial and conventional rule." United States v. Union Supply Co., 215 U.S. 50, 55.
The Act is concerned not with the proprietory relation to a misbranded or an adulterated drug but with its distribution. In the case of a corporation such distribution must be accomplished, and may be furthered, by persons standing in various relations to the incorporeal proprietor. If a guaranty immunizes shipments of course it immunizes all involved in the shipment. But simply because if there had been a guaranty it would have been received by the proprietor, whether corporate or individual, as a safeguard for the enterprise, the want of a guaranty [284] does not cut down the scope of responsibility of all who are concerned with transactions forbidden by § 301. To be sure, that casts the risk that there is no guaranty upon all who according to settled doctrines of criminal law are responsible for the commission of a misdemeanor. To read the guaranty section, as did the court below, so as to restrict liability for penalties to the only person who normally would receive a guaranty — the proprietor — disregards the admonition that "the meaning of a sentence is to be felt rather than to be proved." United States v. Johnson, 221 U.S. 488, 496. It also reads an exception to an important provision safeguarding the public welfare with a liberality which more appropriately belongs to enforcement of the central purpose of the Act.
The Circuit Court of Appeals was evidently tempted to make such a devitalizing use of the guaranty provision through fear that an enforcement of § 301 (a) as written might operate too harshly by sweeping within its condemnation any person however remotely entangled in the proscribed shipment. But that is not the way to read legislation. Literalism and evisceration are equally to be avoided. To speak with technical accuracy, under § 301 a corporation may commit an offense and all persons who aid and abet its commission are equally guilty. Whether an accused shares responsibility in the business process resulting in unlawful distribution depends on the evidence produced at the trial and its submission — assuming the evidence warrants it — to the jury under appropriate guidance. The offense is committed, unless the enterprise which they are serving enjoys the immunity of a guaranty, by all who do have such a responsible share in the furtherance of the transaction which the statute outlaws, namely, to put into the stream of interstate commerce adulterated or misbranded drugs. Hardship there doubtless may be under a statute which thus penalizes the transaction though consciousness of wrongdoing be totally wanting. [285] Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing in illicit commerce, rather than to throw the hazard on the innocent public who are wholly helpless.
It would be too treacherous to define or even to indicate by way of illustration the class of employees which stands in such a responsible relation. To attempt a formula embracing the variety of conduct whereby persons may responsibly contribute in furthering a transaction forbidden by an Act of Congress, to wit, to send illicit goods across state lines, would be mischievous futility. In such matters the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries must be trusted. Our system of criminal justice necessarily depends on "conscience and circumspection in prosecuting officers," Nash v. United States, 229 U.S. 373, 378, even when the consequences are far more drastic than they are under the provision of law before us. See United States v. Balint, supra (involving a maximum sentence of five years). For present purpose it suffices to say that in what the defense characterized as "a very fair charge" the District Court properly left the question of the responsibility of Dotterweich for the shipment to the jury, and there was sufficient evidence to support its verdict.
Reversed.
MR. JUSTICE MURPHY, dissenting:
Our prime concern in this case is whether the criminal sanctions of the Federal Food, Drug, and Cosmetic Act of 1938 plainly and unmistakably apply to the respondent in his capacity as a corporate officer. He is charged with violating § 301 (a) of the Act, which prohibits the introduction or delivery for introduction into interstate commerce of any adulterated or misbranded drug. There is [286] no evidence in this case of any personal guilt on the part of the respondent. There is no proof or claim that he ever knew of the introduction into commerce of the adulterated drugs in question, much less that he actively participated in their introduction. Guilt is imputed to the respondent solely on the basis of his authority and responsibility as president and general manager of the corporation.
It is a fundamental principle of Anglo-Saxon jurisprudence that guilt is personal and that it ought not lightly to be imputed to a citizen who, like the respondent, has no evil intention or consciousness of wrongdoing. It may be proper to charge him with responsibility to the corporation and the stockholders for negligence and mismanagement. But in the absence of clear statutory authorization it is inconsistent with established canons of criminal law to rest liability on an act in which the accused did not participate and of which he had no personal knowledge. Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called "the tenderness of the law for the rights of individuals"[1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability. Congress cannot be deemed to have intended to punish anyone who is not "plainly and unmistakably" within the confines of the statute. United States v. Lacher, 134 U.S. 624, 628; United States v. Gradwell, 243 U.S. 476, 485.
Moreover, the fact that individual liability of corporate officers may be consistent with the policy and purpose of a public health and welfare measure does not authorize this Court to impose such liability where Congress has not [287] clearly intended or actually done so. Congress alone has the power to define a crime and to specify the offenders. United States v. Wiltberger, 5 Wheat. 76, 95. It is not our function to supply any deficiencies in these respects, no matter how grave the consequences. Statutory policy and purpose are not constitutional substitutes for the requirement that the legislature specify with reasonable certainty those individuals it desires to place under the interdict of the Act. United States v. Harris, 177 U.S. 305; Sarlls v. United States, 152 U.S. 570.
Looking at the language actually used in this statute, we find a complete absence of any reference to corporate officers. There is merely a provision in § 303 (a) to the effect that "any person" inadvertently violating § 301 (a) shall be guilty of a misdemeanor. Section 201 (e) further defines "person" as including an "individual, partnership, corporation, and association."[2] The fact that a corporate officer is both a "person" and an "individual" is not indicative of an intent to place vicarious liability on the officer. Such words must be read in light of their statutory environment.[3] Only if Congress has otherwise specified an [288] intent to place corporate officers within the ambit of the Act can they be said to be embraced within the meaning of the words "person" or "individual" as here used.
Nor does the clear imposition of liability on corporations reveal the necessary intent to place criminal sanctions on their officers. A corporation is not the necessary and inevitable equivalent of its officers for all purposes.[4] In many respects it is desirable to distinguish the latter from the corporate entity and to impose liability only on the corporation. In this respect it is significant that this Court has never held the imposition of liability on a corporation sufficient, without more, to extend liability to its officers who have no consciousness of wrongdoing.[5] Indeed, in a closely analogous situation, we have held that the vicarious personal liability of receivers in actual charge and control of a corporation could not be predicated on the statutory liability of a "company," even when the policy and purpose of the enactment were consistent with personal liability. United States v. Harris, supra.[6] It follows [289] that express statutory provisions are necessary to satisfy the requirement that officers as individuals be given clear and unmistakable warning as to their vicarious personal liability. This Act gives no such warning.
This fatal hiatus in the Act is further emphasized by the ability of Congress, demonstrated on many occasions, to apply statutes in no uncertain terms to corporate officers as distinct from corporations.[7] The failure to mention officers specifically is thus some indication of a desire to exempt them from liability. In fact the history [290] of federal food and drug legislation is itself illustrative of this capacity for specification and lends strong support to the conclusion that Congress did not intend to impose liability on corporate officers in this particular Act.
Section 2 of the Federal Food and Drugs Act of 1906, as introduced and passed in the Senate, contained a provision to the effect that any violation of the Act by a corporation should be deemed to be the act of the officer responsible therefor and that such officer might be punished as though it were his personal act.[8] This clear imposition of criminal responsibility on corporate officers, however, was not carried over into the statute as finally enacted. In its place appeared merely the provision that "when construing and enforcing the provisions of this Act, the act, omission, or failure of any officer, agent, or other person acting for or employed by any corporation . . . within the scope of his employment or office, shall in every case be also deemed to be the act, omission, or failure of such corporation . . . as well as that of the person."[9] This provision had the effect only of making corporations [291] responsible for the illegal acts of their officers and proved unnecessary in view of the clarity of the law to that effect. New York Central & H.R.R. Co. v. United States, 212 U.S. 481.
The framers of the 1938 Act were aware that the 1906 Act was deficient in that it failed "to place responsibility properly upon corporate officers."[10] In order "to provide the additional scope necessary to prevent the use of the corporate form as a shield to individual wrongdoers,"[11] these framers inserted a clear provision that "whenever a corporation or association violates any of the provisions of this Act, such violation shall also be deemed to be a violation of the individual directors, officers, or agents of such corporation or association who authorized, ordered, or did any of the acts constituting, in whole or in part, such violation."[12] This paragraph, however, was deleted from the final version of the Act.
[292] We cannot presume that this omission was inadvertent on the part of Congress. United States v. Harris, supra at 309. Even if it were, courts have no power to remedy so serious a defect, no matter how probable it otherwise may appear that Congress intended to include officers; "probability is not a guide which a court, in construing a penal statute, can safely take." United States v. Wiltberger, supra at 105. But the framers of the 1938 Act had an intelligent comprehension of the inadequacies of the 1906 Act and of the unsettled state of the law. They recognized the necessity of inserting clear and unmistakable language in order to impose liability on corporate officers. It is thus unreasonable to assume that the omission of such language was due to a belief that the Act as it now stands was sufficient to impose liability on corporate officers. Such deliberate deletion is consistent only with an intent to allow such officers to remain free from criminal liability. Thus to apply the sanctions of this Act to the respondent would be contrary to the intent of Congress as expressed in the statutory language and in the legislative history.
The dangers inherent in any attempt to create liability without express Congressional intention or authorization are illustrated by this case. Without any legislative guides, we are confronted with the problem of determining precisely which officers, employees and agents of a corporation are to be subject to this Act by our fiat. To erect standards of responsibility is a difficult legislative task and the opinion of this Court admits that it is "too treacherous" and a "mischievous futility" for us to engage in such pursuits. But the only alternative is a blind resort to "the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries." Yet that situation is precisely what our constitutional system sought to avoid. Reliance on the legislature to define crimes and criminals distinguishes our form of jurisprudence [293] from certain less desirable ones. The legislative power to restrain the liberty and to imperil the good reputation of citizens must not rest upon the variable attitudes and opinions of those charged with the duties of interpreting and enforcing the mandates of the law. I therefore cannot approve the decision of the Court in this case.
MR. JUSTICE ROBERTS, MR. JUSTICE REED and MR. JUSTICE RUTLEDGE join in this dissent.
[1] "The bill has been made shorter and less verbose than previous bills. That has been done without deleting any effective provisions." S. Rep. No. 152, 75th Cong., 1st Sess., p. 2.
[2] In describing the penalty provisions of § 303, the House Committee reported that the Bill "increases substantially the criminal penalties . . . which some manufacturers have regarded as substantially a license fee for the conduct of an illegitimate business." H. Rep. No. 2139, 75th Cong., 3d Sess., p. 4.
[1] United States v. Wiltberger, 5 Wheat. 76, 95.
[2] The normal and necessary meaning of such a definition of "person" is to distinguish between individual enterprises and those enterprises that are incorporated or operated as a partnership or association, in order to subject them all to the Act. This phrase cannot be considered as an attempt to distinguish between individual officers of a corporation and the corporate entity. Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181, 190.
[3] Compare United States v. Cooper Corp., 312 U.S. 600, 606, and Davis v. Pringle, 268 U.S. 315, 318, holding that the context and legislative history of the particular statutes there involved indicated that the words "any person" did not include the United States. But in Georgia v. Evans, 316 U.S. 159, and Ohio v. Helvering, 292 U.S. 360, these considerations led to the conclusion that "any person" did include a state. See also 40 Stat. 1143, which specifically includes officers within the meaning of "any person" as used in the Revenue Act of 1918.
[4] In Park Bank v. Remsen, 158 U.S. 337, 344, this Court said, "It is the corporation which is given the powers and privileges and made subject to the liabilities. Does this carry with it an imposition of liability upon the trustee or other officer of the corporation? The officer is not the corporation; his liability is personal, and not that of the corporation, nor can it be counted among the powers and privileges of the corporation."
[5] For an analysis of the confusion on this matter in the state and lower federal courts, see Lee, "Corporate Criminal Liability," 28 Col. L. Rev. 1, 181.
[6] In that case we had before us Rev. Stat. §§ 4386-4389, which penalized "any company, owner or custodian of such animals" who failed to comply with the statutory requirements as to livestock transportation. A railroad company violated the statute and the government sought to impose liability on the receivers who were in actual charge of the company. It was argued that the word "company" embraced the natural persons acting on behalf of the company and that to hold such officers and receivers liable was within the policy and purpose of so humane a statute. We rejected this contention in language peculiarly appropriate to this case (177 U.S. at 309):
"It must be admitted that, in order to hold the receivers, they must be regarded as included in the word `company.' Only by a strained and artificial construction, based chiefly upon a consideration of the mischief which the legislature sought to remedy, can receivers be brought within the terms of the law. But can such a kind of construction be resorted to in enforcing a penal statute? Giving all proper force to the contention of the counsel of the Government, that there has been some relaxation on the part of the courts in applying the rule of strict construction to such statutes, it still remains that the intention of a penal statute must be found in the language actually used, interpreted according to its fair and obvious meaning. It is not permitted to courts, in this class of cases, to attribute inadvertence or oversight to the legislature when enumerating the classes of persons who are subjected to a penal enactment, nor to depart from the settled meaning of words or phrases in order to bring persons not named or distinctly described within the supposed purpose of the statute."
[7] "Whenever a corporation shall violate any of the penal provisions of the antitrust laws, such violation shall be deemed to be also that of the individual directors, officers, or agents of such corporation who shall have authorized, ordered, or done any of the acts constituting in whole or in part such violation." 15 U.S.C. § 24.
"The courts of bankruptcy . . . are hereby invested . . . with such jurisdiction at law and in equity as will enable them to . .. (4) arraign, try, and punish bankrupts, officers, and other persons, and the agents, officers, members of the board of directors or trustees, or other similar controlling bodies, of corporations for violations of this Act." 30 Stat. 545.
"Any such common carrier, or any officer or agent thereof, requiring or permitting any employee to go, be, or remain on duty in violation of the next preceding section of this chapter shall be liable to a penalty . . ." 45 U.S.C. § 63.
"A mortgagor who, with intent to defraud, violates any provision of subsection F, section 924, and if the mortgagor is a corporation or association, the president or other principal executive officer of the corporation or association, shall upon conviction thereof be held guilty of a misdemeanor . . ." 46 U.S.C. § 941 (b).
[8] S. 88, 59th Cong., 1st Sess. Senator Heyburn, one of the sponsors of S. 88, stated that this was "a new feature in bills of this kind. It was intended to obviate the possibility of escape by the officers of a corporation under a plea, which has been more than once made, that they did not know that this was being done on the credit of or on the responsibility of the corporation." 40 Cong. Rec. 894.
[9] 34 Stat. 772, 21 U.S.C. § 4.
[10] Senate Report No. 493, 73d Cong., 2d Sess., p. 21.
[11] Ibid., p. 22. This report also stated that "it is not, however, the purpose of this paragraph to subject to liability those directors, officers, and employees, who merely authorize their subordinates to perform lawful duties and such subordinates, on their own initiative, perform those duties in a manner which violates the provisions of the law. However, if a director or officer personally orders his subordinate to do an act in violation of the law, there is no reason why he should be shielded from personal responsibility merely because the act was done by another and on behalf of a corporation."
[12] This provision appears in several of the early versions of the Act introduced in Congress. S. 1944, 73d Cong., 1st Sess., § 18 (b); S. 2000, 73d Cong., 2d Sess., § 18 (b); S. 2800, 73d Cong., 2d Sess., § 18 (b); S. 5, 74th Cong., 1st Sess., § 709 (b); S. 5, 74th Cong., 2d Sess., § 707 (b), as reported to the House, which substituted the word "personally" for the word "authorized" in the last clause of the paragraph quoted above. A variation of this provision appeared in S. 5, 75th Cong., 1st Sess., § 2 (f), and made a marked distinction between the use of the word "person" and the words "director, officer, employee, or agent acting for or employed by any person." All of these bills also contained the present definition of "person" as including "individual, partnership, corporation, and association."
7.2.8.2.3.10.3 State v. Phillips 7.2.8.2.3.10.3 State v. Phillips
W.A. PHILLIPS
v.
STATE.
Court of Criminal Appeals of Alabama.
[1062] David C. Johnson, Birmingham, for appellant.
Bill Pryor, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
LONG, Presiding Judge.
The appellant, W.A. Phillips, was convicted of hunting over a "baited field," a violation of § 9-11-244, Ala.Code 1975. He was fined $375 and his hunting privileges were revoked for one year.
The state's evidence tended to show the following. On March 30, 1995, Willie Morris, an officer with the Alabama Department of Conservation and Natural Resources, received a telephone call from Don Taylor. Taylor told Morris that he had found wheat in a turkey he had killed at a hunting club located adjacent to Phillips's property. The following day, Officer Morris, accompanied by Taylor, entered a wooded area of Phillips's property, where Officer Morris found a large amount of wheat scattered on the ground. Sprouted wheat, as well as seed wheat, was present, and there were numerous turkey scratchings on the ground. Officer Morris returned to the same part of Phillips's property the next day and found Phillips and Guy Moore hunting turkeys in the area where he had found the wheat the day before. Phillips and Moore were charged with hunting over a baited field.
At trial, Phillips denied placing the wheat on his property or knowing that there was wheat there. He claimed that Taylor had actually placed the wheat on his property in order to "set him up."
Phillips's defense notwithstanding, the trial court held that hunting over a baited field is a "strict liability" offense, and, consequently, in its oral charge to the jury, the trial court gave the following charge, which the state had requested: "I charge you that there need be no showing that the defendant actually baited the field, or that he even knew it was baited." (C. 15.) The trial court refused several jury charges requested by Phillips, including the following: "In order to find Archie Phillips guilty as charged, the state must prove beyond a reasonable doubt that he had knowledge that the land had been baited." (C. 17.)
On appeal, Phillips contends that the trial court erred by treating hunting over a baited field as a strict liability offense and in refusing his requested jury instructions concerning the culpable mental state required for a violation of the statute. He maintains that the state should have been required to show that he knew that the land he was hunting on had been baited, and that it was error for the trial court to refuse to so charge the jury.
Section 9-11-244, Ala.Code 1975, provides:
"No person at any time shall take, catch, kill or attempt to take, catch or kill any bird or animal protected by law or regulation of the state of Alabama by means, aid or use, directly or indirectly, of any bait such as shelled, shucked or unshucked corn or of wheat or other grain, salt or any other feed whatsoever that has been so deposited, placed, distributed or scattered as to constitute for such birds or animals a lure, attraction or enticement to, on or over the area [1063] where such hunter or hunters are attempting to kill or take them; provided, that such birds or animals may be taken under properly shocked corn and standing crops of corn, wheat or other grain or feed and grains scattered solely as a result of normal agricultural harvesting and provided further, migratory birds may be hunted under the most recent provisions established by the U.S. Fish and Wildlife Service or regulations promulgated by the Commissioner of the Department of Conservation and Natural Resources within the limits of the federal regulations."
Although Phillips concedes that § 9-11-244 does not expressly designate a culpable mental state for the offense of hunting over a baited field, he argues that the legislature intended for the offense to require "mental culpability." He points to § 13A-2-4(b), Ala.Code 1975, which states:
"Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability."
While § 13A-2-4(b) states a policy of reluctance to impose strict liability in the absence of clear legislative intent, "[i]t is undisputed that the State may enact laws for the public health and safety imposing strict liabilities without any element of scienter." Walker v. State, 356 So.2d 672, 673 (Ala.1977). Although traditionally mental culpability or some degree of blameworthiness has been considered essential to a finding of criminal liability, this view has been modified to recognize that lawmakers may enact provisions in which a person who does a prohibited act does so at his peril and is liable without regard to mental culpability. Commentary to § 13A-2-3, Ala.Code 1975; see United States v. Balint, 258 U.S. 250, 251, 42 S.Ct. 301, 302, 66 L.Ed. 604 (1922).
"Such offenses [in which no proof of mental culpability is required] are characterized as `mala prohibita offenses,' `public welfare offenses,' `absolute liability offenses,' or, as used here, `strict liability' offenses.
"There are various theories for sustaining `strict liability' crimes. Aside from public necessity based on police powers, a number of these offenses are justified on the ground that it would be difficult or impossible of proof and conviction if the prosecution had to adduce an element of `intentional,' `knowingly' and the like. Sometimes the ends accomplished, the evil or harm sought to be regulated or prohibited, are deemed to justify the means.
"As long as the kind and degree of punishment is not disproportionate to the activity or object regulated, strict liability serves a useful, if not necessary, sanction, but such statutory offenses should not be extended to impose harsh criminal sanctions and stigma for nominal crimes which any innocent man might commit."
Commentary to § 13A-2-3 (citations omitted).
The United States Supreme Court has recognized that a different standard applies to offenses that do not originate in the common law (which historically required mens rea), that are essentially regulatory, and that are designed to protect the public welfare. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952).
"[Public welfare offenses] do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, [1064] but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving."
Morissette, 342 U.S. at 255-56, 72 S.Ct. at 246, 96 L.Ed. at 296-97.
In Walker, supra, 356 So.2d 672, the Alabama Supreme Court noted:
"It has become common to impose strict criminal liability in connection with a variety of regulatory statutes for violation of what are commonly called `public welfare offenses.' Perkins, Criminal Law, 2d Ed., Ch. 7, Strict Liability (1969); Hall, General Principles of Criminal Law, 2d Ed., Ch. 10, Strict Liability (1960). The regulatory statutes encompass such fields as:
"`... (1) illegal sales of liquor; (2) sales of impure food or drugs; (3) sales of misbranded articles; (4) criminal nuisance; (5) traffic regulations; (6) motor vehicle laws; and (7) violations of general regulations, passed for the safety, health or well-being of the community.' Perkins, supra, at 802.
"Although it may be difficult to ascertain common features in the public welfare offenses, one author has made the following generalizations:
"`... First, many of the enactments apply not to the general public but only to certain traders, particularly to suppliers of food or drugs and vendors of alcoholic beverages. Others, having more general application as to potential offenders, are restricted to very few activities—the operation of automobiles, safety of highways, hunting, fishing, and various health measures. Next, many of these regulations and the conditions of conforming to them presuppose a continuous activity, such as carrying on a business.... Third, the public welfare enactments are relatively new. They represent relatively recent adaptations to an intricate economy, including an impersonal market.... [F]ourth, the modern regulations are not strongly supported by the mores. Their occurrence does not arouse the resentment directed as the perpetrators of traditional crimes.... The above common attributes of large segments of the minor offenses which are subjected to strict liability indicate that this law was constructed to meet new, important social problems....' Hall, General Principles of Criminal Law, 2d Ed., supra, at 330-331."
356 So.2d at 673. This court has stated:
"`Generally speaking, when an act is prohibited and made punishable by statute only, the statute is to be construed [1065] in the light of the common law and the existence of a criminal intent is to be regarded as essential, even when in terms not required. The Legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent or knowledge of the doer, and, if such legislative intention appears, the courts must give it effect, although the intent of the doer may have been innocent. This rule has been generally, though not quite universally, applied to the enforcement of statutes passed in aid of the police power of the state where the word "knowingly" or other apt words are not employed to indicate that knowledge is an essential element of the crime charged. The doing of the inhibited act constitutes the crime, and the moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt.' Smith v. State, 223 Ala. 346, 347, 136 So. 270 (1931).
"Generally see, Walker v. State, 356 So.2d 672 (Ala.1977); LaFave and Scott, Handbook on Criminal Law, Section 31 (1972); Perkins, Criminal Law 812-815 (2nd ed.1969); Sayre, Public Welfare Offenses, 33 Colum.L.Rev. 55, 84-88 (1933).
"`A statute may simply provide that whoever does (or omits to do) so-and-so, or whoever brings about such-and-such a result, is guilty of a crime, setting forth the punishment.... Often this statutory crime has been created in order to help the prosecution cope with a situation wherein intention, knowledge, recklessness or negligence is hard to prove, making convictions difficult to obtain unless the fault element is omitted.' Lafave at 218."
State v. Spurlock, 393 So.2d 1052, 1057-58 (Ala.Cr.App.1981).
We find that the offense defined in § 9-11-244 meets the requirements for a public welfare, or strict liability, offense. The statute does not designate a culpable mental state for the offense of hunting over a baited field. The clear intent of the statute is to prohibit the taking, catching, or killing of protected birds or animals that are lured to an area by bait, and violating the statute requires no proof of a connection of the offender with the bait. The offense does not have its origins in the common law; it is essentially regulatory; and it is restricted to a particular activity —hunting. The punishment provided for violating the statute is not severe, see § 9-11-246, Ala.Code 1975. If it were not a strict liability offense, the statute would be difficult to enforce.
We note that the language of § 9-11-244 is similar to that of the Migratory Bird Treaty Act, 16 U.S.C. §§ 703 et seq., the federal anti-baiting statute, which prohibits the hunting of migratory birds on or over any baited area.' See 50 C.F.R. §§ 20.21 et seq. The majority of federal circuit and district courts called upon to interpret the federal statute have held that hunting over a baited field is a strict liability offense. See, e.g., United States v. FMC Corporation, 572 F.2d 902 (2d Cir. 1978); United States v. Engler, 806 F.2d 425 (3d Cir.1986), cert. denied, 481 U.S. 1019, 107 S.Ct. 1900, 95 L.Ed.2d 506 (1987); United States v. Chandler, 753 F.2d 360 (4th Cir.1985); United States v. Catlett, 747 F.2d 1102 (6th Cir.1984), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985); United States v. Van Fossan, 899 F.2d 636 (7th Cir.1990); United States v. Manning, 787 F.2d 431 (8th Cir.1986); and United States v. Wood, 437 F.2d 91 (9th Cir.1971). But see United States v. Sylvester, 848 F.2d 520 (5th Cir. 1988); and United States v. Delahoussaye, 573 F.2d 910 (5th Cir.1978).
Phillips cites this court's opinion in Rogers v. State, 491 So.2d 987 (Ala.Cr.App. 1985), as authority for the proposition that hunting over a baited field is not a strict [1066] liability offense. He notes that the statute under consideration in Rogers, § 9-11-235, Ala.Code 1975, prohibits night hunting and is similar in language to § 9-11-244. He maintains that some intent apparently is required to violate the night-hunting statute because this court refers in Rogers to evidence indicative of the defendant's guilty intent. However, this court specifically sets out in Rogers the elements of the offense of night hunting, and knowledge or intent is not included. The statements in Rogers noted by Phillips are dicta and do not establish that a violation of the night-hunting statute requires mental culpability.
Because we conclude that the legislature in enacting § 9-11-244 intended that hunting over a baited field be a strict liability offense, we hold that the trial court did not err in treating the offense accordingly and that the trial court properly refused Phillips's requested jury charges concerning the culpable mental state for the offense. Although we recognize that the statute may place certain subjectively "innocent" hunters in a precarious position, for this court to supply an element of mental culpability to the offense, where there is a clear legislative intent that none be required, would be to engage in judicial legislating. We acknowledge that the statute may effect a harsh result; however, it is for the legislature to establish and change the policy here. The trial court's judgment is affirmed.
AFFIRMED.
McMILLAN, COBB, and BROWN, JJ., concur.
BASCHAB, J. concurs specially with opinion.
BASCHAB, Judge, concurring specially.
Although I agree with the majority opinion, I feel compelled to concur specially to address my concerns about the "hunting-over-a-baited-field" statute. As the majority notes, certain "innocent" hunters may be placed in a precarious position by the statute. Therefore, I encourage the legislature to re-examine the statute carefully and to decide whether it truly intended for hunting over a baited field to be a strict liability offense. If it did not, the legislature should rewrite the statute to include specific language designating the culpable mental state required for the offense.
7.2.8.2.3.10.4 Staples v. United States 7.2.8.2.3.10.4 Staples v. United States
STAPLES
v.
UNITED STATES
United States Supreme Court.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
[602] Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Souter, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment, in which O'Connor, J., joined, post, p. 620. Stevens, J., filed a dissenting opinion, in which Blackmun, J., joined, post, p. 624.
Jennifer L. De Angelis argued the cause for petitioner. With her on the brief was Clark O. Brewster.
[602] James A. Feldman argued the cause for the United States. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Keeney, Deputy Solicitor General Bryson, and John F. De Pue.
Justice Thomas, delivered the opinion of the Court.
The National Firearms Act makes it unlawful for any person to possess a machinegun that is not properly registered with the Federal Government. Petitioner contends that, to convict him under the Act, the Government should have been required to prove beyond a reasonable doubt that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machinegun. We agree and accordingly reverse the judgment of the Court of Appeals.
I
The National Firearms Act (Act), 26 U. S. C. §§ 5801-5872, imposes strict registration requirements on statutorily defined "firearms." The Act includes within the term "firearm" a machinegun, § 5845(a)(6), and further defines a machinegun as "any weapon which shoots, . . . or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger," § 5845(b). Thus, any fully automatic weapon is a "firearm" within the meaning of the Act.[1] Under the Act, all firearms must be registered in the National Firearms Registration and Transfer Record maintained by the Secretary of the Treasury. § 5841. Section 5861(d) makes it a crime, punishable [603] by up to 10 years in prison, see § 5871, for any person to possess a firearm that is not properly registered.
Upon executing a search warrant at petitioner's home, local police and agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) recovered, among other things, an AR-15 rifle. The AR-15 is the civilian version of the military's M-16 rifle, and is, unless modified, a semiautomatic weapon. The M-16, in contrast, is a selective fire rifle that allows the operator, by rotating a selector switch, to choose semiautomatic or automatic fire. Many M-16 parts are interchangeable with those in the AR-15 and can be used to convert the AR-15 into an automatic weapon. No doubt to inhibit such conversions, the AR-15 is manufactured with a metal stop on its receiver that will prevent an M-16 selector switch, if installed, from rotating to the fully automatic position. The metal stop on petitioner's rifle, however, had been filed away, and the rifle had been assembled with an M-16 selector switch and several other M-16 internal parts, including a hammer, disconnector, and trigger. Suspecting that the AR-15 had been modified to be capable of fully automatic fire, BATF agents seized the weapon. Petitioner subsequently was indicted for unlawful possession of an unregistered machinegun in violation of § 5861(d).
At trial, BATF agents testified that when the AR-15 was tested, it fired more than one shot with a single pull of the trigger. It was undisputed that the weapon was not registered as required by § 5861(d). Petitioner testified that the rifle had never fired automatically when it was in his possession. He insisted that the AR-15 had operated only semiautomatically, and even then imperfectly, often requiring manual ejection of the spent casing and chambering of the next round. According to petitioner, his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for his failure to register the weapon. He requested the District Court to instruct the jury that, to establish a violation of § 5861(d), the Government must prove [604] beyond a reasonable doubt that the defendant "knew that the gun would fire fully automatically." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 42.
The District Court rejected petitioner's proposed instruction and instead charged the jury as follows:
"The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it][2] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation." Tr. 465.
Petitioner was convicted and sentenced to five years' probation and a $5,000 fine.
The Court of Appeals affirmed. Relying on its decision in United States v. Mittleider, 835 F. 2d 769 (CA10 1987), cert. denied, 485 U. S. 980 (1988), the court concluded that the Government need not prove a defendant's knowledge of a weapon's physical properties to obtain a conviction under § 5861(d). 971 F. 2d 608, 612-613 (CA10 1992). We granted certiorari, 508 U. S. 939 (1993), to resolve a conflict in the Courts of Appeals concerning the mens rea required under § 5861(d).
II
A
Whether or not § 5861(d) requires proof that a defendant knew of the characteristics of his weapon that made it a "firearm" under the Act is a question of statutory construction. As we observed in Liparota v. United States, 471 U. S. 419 (1985), "[t]he definition of the elements of a criminal offense is entrusted to the legislature, particularly in the case of federal crimes, which are solely creatures of statute." Id. , at 424 (citing United States v. Hudson, 7 Cranch 32 [605] (1812)). Thus, we have long recognized that determining the mental state required for commission of a federal crime requires "construction of the statute and . . . inference of the intent of Congress." United States v. Balint, 258 U. S. 250, 253 (1922). See also Liparota, supra, at 423.
The language of the statute, the starting place in our inquiry, see Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253-254 (1992), provides little explicit guidance in this case. Section 5861(d) is silent concerning the mens rea required for a violation. It states simply that "[i]t shall be unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Nevertheless, silence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See Balint, supra, at 251 (stating that traditionally, "scienter " was a necessary element in every crime). See also n. 3, infra. On the contrary, we must construe the statute in light of the background rules of the common law, see United States v. United States Gypsum Co., 438 U. S. 422, 436-437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, "[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence." Id., at 436 (internal quotation marks omitted). See also Morissette v. United States, 342 U. S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil").
There can be no doubt that this established concept has influenced our interpretation of criminal statutes. Indeed, we have noted that the common-law rule requiring mens rea [606] has been "followed in regard to statutory crimes even where the statutory definition did not in terms include it." Balint, supra, at 251-252. Relying on the strength of the traditional rule, we have stated that offenses that require no mens rea generally are disfavored, Liparota, supra, at 426, and have suggested that some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime. Cf. United States Gypsum, supra, at 438; Morissette, supra, at 263.
According to the Government, however, the nature and purpose of the Act suggest that the presumption favoring mens rea does not apply to this case. The Government argues that Congress intended the Act to regulate and restrict the circulation of dangerous weapons. Consequently, in the Government's view, this case fits in a line of precedent concerning what we have termed "public welfare" or "regulatory" offenses, in which we have understood Congress to impose a form of strict criminal liability through statutes that do not require the defendant to know the facts that make his conduct illegal. In construing such statutes, we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.
For example, in Balint, we concluded that the Narcotic Act of 1914, which was intended in part to minimize the spread of addictive drugs by criminalizing undocumented sales of certain narcotics, required proof only that the defendant knew that he was selling drugs, not that he knew the specific items he had sold were "narcotics" within the ambit of the statute. See Balint, supra, at 254. Cf. United States v. Dotterweich, 320 U. S. 277, 281 (1943) (stating in dicta that a statute criminalizing the shipment of adulterated or misbranded drugs did not require knowledge that the items were misbranded or adulterated). As we explained in Dotterweich, Balint dealt with "a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional [607] requirement for criminal conduct—awareness of some wrongdoing." 320 U. S., at 280-281. See also Morissette, supra, at 252-256.
Such public welfare offenses have been created by Congress, and recognized by this Court, in "limited circumstances." United States Gypsum, supra, at 437. Typically, our cases recognizing such offenses involve statutes that regulate potentially harmful or injurious items. Cf. United States v. International Minerals & Chemical Corp., 402 U. S. 558, 564-565 (1971) (characterizing Balint and similar cases as involving statutes regulating "dangerous or deleterious devices or products or obnoxious waste materials"). In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him "in responsible relation to a public danger," Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to "ascertain at his peril whether [his conduct] comes within the inhibition of the statute." Balint, supra, at 254. Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements. See generally Morissette, supra, at 252-260.[3] [608]
B
The Government argues that § 5861(d) defines precisely the sort of regulatory offense described in Balint . In this view, all guns, whether or not they are statutory "firearms," are dangerous devices that put gun owners on notice that they must determine at their hazard whether their weapons come within the scope of the Act. On this understanding, the District Court's instruction in this case was correct, because a conviction can rest simply on proof that a defendant knew he possessed a "firearm" in the ordinary sense of the term.
The Government seeks support for its position from our decision in United States v. Freed, 401 U. S. 601 (1971), which involved a prosecution for possession of unregistered grenades under § 5861(d).[4] The defendant knew that the items in his possession were grenades, and we concluded that § 5861(d) did not require the Government to prove the defendant also knew that the grenades were unregistered. Id., at 609. To be sure, in deciding that mens rea was not required with respect to that element of the offense, we suggested [609] that the Act "is a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Ibid. Grenades, we explained, "are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint. " Ibid. But that reasoning provides little support for dispensing with mens rea in this case.
As the Government concedes, Freed did not address the issue presented here. In Freed, we decided only that § 5861(d) does not require proof of knowledge that a firearm is unregistered. The question presented by a defendant who possesses a weapon that is a "firearm" for purposes of the Act, but who knows only that he has a "firearm" in the general sense of the term, was not raised or considered. And our determination that a defendant need not know that his weapon is unregistered suggests no conclusion concerning whether § 5861(d) requires the defendant to know of the features that make his weapon a statutory "firearm"; different elements of the same offense can require different mental states. See Liparota, 471 U. S., at 423, n. 5; United States v. Bailey, 444 U. S. 394, 405-406 (1980). See also W. LaFave & A. Scott, Handbook on Criminal Law 194-195 (1972). Moreover, our analysis in Freed likening the Act to the public welfare statute in Balint rested entirely on the assumption that the defendant knew that he was dealing with hand grenades—that is, that he knew he possessed a particularly dangerous type of weapon (one within the statutory definition of a "firearm"), possession of which was not entirely "innocent" in and of itself. 401 U. S., at 609. The predicate for that analysis is eliminated when, as in this case, the very question to be decided is whether the defendant must know of the particular characteristics that make his weapon a statutory firearm.
Notwithstanding these distinctions, the Government urges that Freed `s logic applies because guns, no less than grenades, [610] are highly dangerous devices that should alert their owners to the probability of regulation. But the gap between Freed and this case is too wide to bridge. In glossing over the distinction between grenades and guns, the Government ignores the particular care we have taken to avoid construing a statute to dispense with mens rea where doing so would "criminalize a broad range of apparently innocent conduct." Liparota, 471 U. S., at 426. In Liparota, we considered a statute that made unlawful the unauthorized acquisition or possession of food stamps. We determined that the statute required proof that the defendant knew his possession of food stamps was unauthorized, largely because dispensing with such a mens rea requirement would have resulted in reading the statute to outlaw a number of apparently innocent acts. Ibid. Our conclusion that the statute should not be treated as defining a public welfare offense rested on the commonsense distinction that a "food stamp can hardly be compared to a hand grenade." Id., at 433.
Neither, in our view, can all guns be compared to hand grenades. Although the contrast is certainly not as stark as that presented in Liparota, the fact remains that there is a long tradition of widespread lawful gun ownership by private individuals in this country. Such a tradition did not apply to the possession of hand grenades in Freed or to the selling of dangerous drugs that we considered in Balint. See also International Minerals, 402 U. S., at 563-565; Balint, 258 U. S., at 254. In fact, in Freed we construed § 5861(d) under the assumption that "one would hardly be surprised to learn that possession of hand grenades is not an innocent act." Freed, supra, at 609. Here, the Government essentially suggests that we should interpret the section under the altogether different assumption that "one would hardly be surprised to learn that owning a gun is not an innocent act." That proposition is simply not supported by common experience. Guns in general are not "deleterious devices or products or obnoxious waste materials," International Minerals, [611] supra, at 565, that put their owners on notice that they stand "in responsible relation to a public danger," Dotterweich, 320 U. S., at 281.
The Government protests that guns, unlike food stamps, but like grenades and narcotics, are potentially harmful devices.[5] Under this view, it seems that Liparota `s concern for criminalizing ostensibly innocuous conduct is inapplicable whenever an item is sufficiently dangerous—that is, dangerousness alone should alert an individual to probable regulation and justify treating a statute that regulates the dangerous device as dispensing with mens rea. But that an item is "dangerous," in some general sense, does not necessarily suggest, as the Government seems to assume, that it is not also entirely innocent. Even dangerous items can, in some cases, be so commonplace and generally available that we would not consider them to alert individuals to the likelihood of strict regulation. As suggested above, despite their potential for harm, guns generally can be owned in perfect innocence. Of course, we might surely classify certain categories of guns—no doubt including the machineguns, sawed-off shotguns, and artillery pieces that Congress has subjected to [612] regulation—as items the ownership of which would have the same quasi-suspect character we attributed to owning hand grenades in Freed. But precisely because guns falling outside those categories traditionally have been widely accepted as lawful possessions, their destructive potential, while perhaps even greater than that of some items we would classify along with narcotics and hand grenades, cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon's characteristics.[6]
[613] On a slightly different tack, the Government suggests that guns are subject to an array of regulations at the federal, state, and local levels that put gun owners on notice that they must determine the characteristics of their weapons and comply with all legal requirements.[7] But regulation in itself is not sufficient to place gun ownership in the category of the sale of narcotics in Balint. The food stamps at issue in Liparota were subject to comprehensive regulations, yet we did not understand the statute there to dispense with a mens rea requirement. Moreover, despite the overlay of legal restrictions on gun ownership, we question whether regulations on guns are sufficiently intrusive that they impinge upon the common experience that owning a gun is usually licit and blameless conduct. Roughly 50 percent of [614] American homes contain at least one firearm of some sort,[8] and in the vast majority of States, buying a shotgun or rifle is a simple transaction that would not alert a person to regulation any more than would buying a car.[9]
If we were to accept as a general rule the Government's suggestion that dangerous and regulated items place their owners under an obligation to inquire at their peril into compliance with regulations, we would undoubtedly reach some untoward results. Automobiles, for example, might also be termed "dangerous" devices and are highly regulated at both the state and federal levels. Congress might see fit to criminalize the violation of certain regulations concerning automobiles, and thus might make it a crime to operate a vehicle without a properly functioning emission control system. But we probably would hesitate to conclude on the basis of silence that Congress intended a prison term to apply to a car owner whose vehicle's emissions levels, wholly unbeknownst to him, began to exceed legal limits between regular inspection dates.
Here, there can be little doubt that, as in Liparota, the Government's construction of the statute potentially would impose criminal sanctions on a class of persons whose mental state—ignorance of the characteristics of weapons in their [615] possession—makes their actions entirely innocent.[10] The Government does not dispute the contention that virtually any semiautomatic weapon may be converted, either by internal modification or, in some cases, simply by wear and tear, into a machinegun within the meaning of the Act. Cf. United States v. Anderson, 885 F. 2d 1248, 1251, 1253— 1254 (CA5 1989) (en banc). Such a gun may give no externally visible indication that it is fully automatic. See United States v. Herbert, 698 F. 2d 981, 986 (CA9), cert. denied, 464 U. S. 821 (1983). But in the Government's view, any person who has purchased what he believes to be a semiautomatic rifle or handgun, or who simply has inherited a gun from a relative and left it untouched in an attic or basement, can be subject to imprisonment, despite absolute ignorance of the gun's firing capabilities, if the gun turns out to be an automatic.
We concur in the Fifth Circuit's conclusion on this point: "It is unthinkable to us that Congress intended to subject such law-abiding, well-intentioned citizens to a possible tenyear term of imprisonment if . . . what they genuinely and reasonably believed was a conventional semi-automatic [weapon] turns out to have worn down into or been secretly modified to be a fully automatic weapon." Anderson, supra, at 1254. As we noted in Morissette, the "purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecution's path to conviction." 342 U. S., at 263.[11] We are reluctant to impute that purpose to [616] Congress where, as here, it would mean easing the path to convicting persons whose conduct would not even alert them to the probability of strict regulation in the form of a statute such as § 5861(d).
C
The potentially harsh penalty attached to violation of § 5861(d)—up to 10 years' imprisonment—confirms our reading of the Act. Historically, the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea. Certainly, the cases that first defined the concept of the public welfare offense almost uniformly involved statutes that provided for only light penalties such as fines or short jail sentences, not imprisonment in the state penitentiary. See, e. g., Commonwealth v. Raymond, 97 Mass. 567 (1867) (fine of up to $200 or six months in jail, or both); Commonwealth v. Farren, 91 Mass. 489 (1864) (fine); People v. Snowburger, 113 Mich. 86, 71 N. W. 497 (1897) (fine of up to $500 or incarceration in county jail).[12]
As commentators have pointed out, the small penalties attached to such offenses logically complemented the absence of a mens rea requirement: In a system that generally requires [617] a "vicious will" to establish a crime, 4 W. Blackstone, Commentaries *21, imposing severe punishments for offenses that require no mens rea would seem incongruous. See Sayre, Public Welfare Offenses, 33 Colum. L. Rev. 55, 70 (1933). Indeed, some courts justified the absence of mens rea in part on the basis that the offenses did not bear the same punishments as "infamous crimes," Tenement House Dept. v. McDevitt, 215 N. Y. 160, 168, 109 N. E. 88, 90 (1915) (Cardozo, J.), and questioned whether imprisonment was compatible with the reduced culpability required for such regulatory offenses. See, e. g., People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N. Y. 25, 32-33, 121 N. E. 474, 477 (1918) (Cardozo, J.); id., at 35, 121 N. E., at 478 (Crane, J., concurring) (arguing that imprisonment for a crime that requires no mens rea would stretch the law regarding acts mala prohibita beyond its limitations).[13] Similarly, commentators collecting the early cases have argued that offenses punishable by imprisonment cannot be understood to be public welfare offenses, but must require mens rea . See R. Perkins, Criminal Law 793-798 (2d ed. 1969) (suggesting that the penalty should be the starting point in determining whether a statute describes a public welfare offense); Sayre, supra, at 72 ("Crimes punishable with prison sentences . . . ordinarily require proof of a guilty intent").[14]
In rehearsing the characteristics of the public welfare offense, we, too, have included in our consideration the punishments imposed and have noted that "penalties commonly are relatively small, and conviction does no grave damage to an [618] offender's reputation." Morissette, 342 U. S., at 256.[15] We have even recognized that it was "[u]nder such considerations" that courts have construed statutes to dispense with mens rea. Ibid.
Our characterization of the public welfare offense in Morissette hardly seems apt, however, for a crime that is a felony, as is violation of § 5861(d).[16] After all, "felony" is, as we noted in distinguishing certain common-law crimes from public welfare offenses, "`as bad a word as you can give to man or thing.' " Id., at 260 (quoting 2 F. Pollock & F. Maitland, History of English Law 465 (2d ed. 1899)). Close adherence to the early cases described above might suggest that punishing a violation as a felony is simply incompatible with the theory of the public welfare offense. In this view, absent a clear statement from Congress that mens rea is not required, we should not apply the public welfare offense rationale to interpret any statute defining a felony offense as dispensing with mens rea. But see United States v. Balint, 258 U. S. 250 (1922).
We need not adopt such a definitive rule of construction to decide this case, however. Instead, we note only that where, as here, dispensing with mens rea would require the defendant to have knowledge only of traditionally lawful conduct, a severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement. [619] In such a case, the usual presumption that a defendant must know the facts that make his conduct illegal should apply.
III
In short, we conclude that the background rule of the common law favoring mens rea should govern interpretation of § 5861(d) in this case. Silence does not suggest that Congress dispensed with mens rea for the element of § 5861(d) at issue here. Thus, to obtain a conviction, the Government should have been required to prove that petitioner knew of the features of his AR-15 that brought it within the scope of the Act.[17]
We emphasize that our holding is a narrow one. As in our prior cases, our reasoning depends upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items. In addition, we think that the penalty attached to § 5861(d) suggests that Congress did not intend to eliminate a mens rea requirement for violation of the section. As we noted in Morissette: "Neither this Court nor, [620] so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not." 342 U. S., at 260. We attempt no definition here, either. We note only that our holding depends critically on our view that if Congress had intended to make outlaws of gun owners who were wholly ignorant of the offending characteristics of their weapons, and to subject them to lengthy prison terms, it would have spoken more clearly to that effect. Cf. United States v. Harris, 959 F. 2d 246, 261 (CADC), cert. denied, 506 U. S. 932 (1992).
For the foregoing reasons, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered. Justice Ginsburg, with whom Justice O'Connor joins, concurring in the judgment.
The statute petitioner Harold E. Staples is charged with violating, 26 U. S. C. § 5861(d), makes it a crime for any person to "receive or possess a firearm which is not registered to him." Although the word "knowingly" does not appear in the statute's text, courts generally assume that Congress, absent a contrary indication, means to retain a mens rea requirement. Ante, at 606; see Liparota v. United States, 471 U. S. 419, 426 (1985); United States v. United States Gypsum Co., 438 U. S. 422, 437-438 (1978).[1] Thus, our holding in United States v. Freed, 401 U. S. 601 (1971), that § 5861(d) does not require proof of knowledge that the firearm is unregistered, rested on the premise that the defendant indeed [621] knew the items he possessed were hand grenades. Id. , at 607; id. , at 612 (Brennan, J., concurring in judgment) ("The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades.").
Conviction under § 5861(d), the Government accordingly concedes, requires proof that Staples "knowingly" possessed the machinegun. Brief for United States 23. The question before us is not whether knowledge of possession is required, but what level of knowledge suffices: (1) knowledge simply of possession of the object; (2) knowledge, in addition, that the object is a dangerous weapon; (3) knowledge, beyond dangerousness, of the characteristics that render the object subject to regulation, for example, awareness that the weapon is a machinegun.[2]
Recognizing that the first reading effectively dispenses with mens rea, the Government adopts the second, contending that it avoids criminalizing "apparently innocent conduct," Liparota, supra, at 426, because under the second reading, "a defendant who possessed what he thought was a toy or a violin case, but which in fact was a machinegun, could not be convicted." Brief for United States 23. The Government, however, does not take adequate account of the "widespread lawful gun ownership" Congress and the States have allowed to persist in this country. See United States v. Harris, 959 F. 2d 246, 261 (CADC) (per curiam), cert. denied, 506 U. S. 932 (1992). Given the notable lack of comprehensive regulation, "mere unregistered possession of certain types of [regulated weapons]—often [difficult to distinguish] [622] from other, [nonregulated] types," has been held inadequate to establish the requisite knowledge. See 959 F. 2d, at 261.
The Nation's legislators chose to place under a registration requirement only a very limited class of firearms, those they considered especially dangerous. The generally "dangerous" character of all guns, the Court therefore observes, ante, at 611-612, did not suffice to give individuals in Staples' situation cause to inquire about the need for registration. Cf. United States v. Balint, 258 U. S. 250 (1922) (requiring reporting of sale of strictly regulated narcotics, opium and cocaine). Only the third reading, then, suits the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity.[3]
The indictment in Staples' case charges that he "knowingly received and possessed firearms." 1 App. to Brief for Appellant in No. 91-5033 (CA10), p. 1.[4] "Firearms" has a [623] circumscribed statutory definition. See 26 U. S. C. § 5845(a). The "firear[m]" the Government contends Staples possessed in violation of § 5861(d) is a machinegun. See § 5845(a)(6). The indictment thus effectively charged that Staples knowingly possessed a machinegun. "Knowingly possessed" logically means "possessed and knew that he possessed." The Government can reconcile the jury instruction[5] with the indictment only on the implausible assumption that the term "firear[m]" has two different meanings when used once in the same charge—simply "gun" when referring to what petitioner knew, and "machinegun" when referring to what he possessed. See Cunningham, Levi, Green, & Kaplan, Plain Meaning and Hard Cases, 103 Yale L. J. 1561, 1576-1577 (1994); cf. Ratzlaf v. United States, 510 U. S. 135, 143 (1994) (construing statutory term to bear same meaning "each time it is called into play").
For these reasons, I conclude that conviction under § 5861(d) requires proof that the defendant knew he possessed not simply a gun, but a machinegun. The indictment in this case, but not the jury instruction, properly described this knowledge requirement. I therefore concur in the Court's judgment.
[624] Justice Stevens, with whom Justice Blackmun joins, dissenting.
To avoid a slight possibility of injustice to unsophisticated owners of machineguns and sawed-off shotguns, the Court has substituted its views of sound policy for the judgment Congress made when it enacted the National Firearms Act (or Act). Because the Court's addition to the text of 26 U. S. C. § 5861(d) is foreclosed by both the statute and our precedent, I respectfully dissent.
The Court is preoccupied with guns that "generally can be owned in perfect innocence." Ante, at 611. This case, however, involves a semiautomatic weapon that was readily convertible into a machinegun—a weapon that the jury found to be "`a dangerous device of a type as would alert one to the likelihood of regulation.' " Ante, at 604. These are not guns "of some sort" that can be found in almost "50 percent of American homes." Ante, at 613-614.[1] They are particularly dangerous—indeed, a substantial percentage of the unregistered machineguns now in circulation are converted semiautomatic weapons.[2]
The question presented is whether the National Firearms Act imposed on the Government the burden of proving beyond a reasonable doubt not only that the defendant knew he possessed a dangerous device sufficient to alert him to [625] regulation, but also that he knew it had all the characteristics of a "firearm" as defined in the statute. Three unambiguous guide posts direct us to the correct answer to that question: the text and structure of the Act, our cases construing both this Act and similar regulatory legislation, and the Act's history and interpretation.
I
Contrary to the assertion by the Court, the text of the statute does provide "explicit guidance in this case." Cf. ante, at 605. The relevant section of the Act makes it "unlawful for any person . . . to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record." 26 U. S. C. § 5861(d). Significantly, the section contains no knowledge requirement, nor does it describe a common-law crime.
The common law generally did not condemn acts as criminal unless the actor had "an evil purpose or mental culpability," Morissette v. United States, 342 U. S. 246, 252 (1952), and was aware of all the facts that made the conduct unlawful, United States v. Balint, 258 U. S. 250, 251-252 (1922). In interpreting statutes that codified traditional common-law offenses, courts usually followed this rule, even when the text of the statute contained no such requirement. Ibid. Because the offense involved in this case is entirely a creature of statute, however, "the background rules of the common law," cf. ante, at 605, do not require a particular construction, and critically different rules of construction apply. See Morissette v. United States, 342 U. S., at 252-260.
In Morissette, Justice Jackson outlined one such interpretive rule:
"Congressional silence as to mental elements in an Act merely adopting into federal statutory law a concept of crime already . . . well defined in common law and statutory interpretation by the states may warrant quite contrary inferences than the same silence in creating an offense [626] new to general law, for whose definition the courts have no guidance except the Act." Id., at 262. Although the lack of an express knowledge requirement in § 5861(d) is not dispositive, see United States v. United States Gypsum Co., 438 U. S. 422, 438 (1978), its absence suggests that Congress did not intend to require proof that the defendant knew all of the facts that made his conduct illegal.[3]
The provision's place in the overall statutory scheme, see Crandon v. United States, 494 U. S. 152, 158 (1990), confirms this intention. In 1934, when Congress originally enacted the statute, it limited the coverage of the 1934 Act to a relatively narrow category of weapons such as submachine-guns and sawed-off shotguns—weapons characteristically used only by professional gangsters like Al Capone, Pretty Boy Floyd, and their henchmen.[4] At the time, the Act would have had little application to guns used by hunters or guns kept at home as protection against unwelcome intruders.[5] [627] Congress therefore could reasonably presume that a person found in possession of an unregistered machinegun or sawed-off shotgun intended to use it for criminal purposes. The statute as a whole, and particularly the decision to criminalize mere possession, reflected a legislative judgment that the likelihood of innocent possession of such an unregistered weapon was remote, and far less significant than the interest in depriving gangsters of their use.
In addition, at the time of enactment, this Court had already construed comparable provisions of the Harrison Anti-Narcotic Act not to require proof of knowledge of all the facts that constitute the proscribed offense. United States v. Balint, 258 U. S. 250 (1922).[6] Indeed, Attorney General Cummings expressly advised Congress that the text of the gun control legislation deliberately followed the language of the Anti-Narcotic Act to reap the benefit of cases construing it.[7] Given the reasoning of Balint, we properly may infer that Congress did not intend the Court to read a stricter knowledge requirement into the gun control legislation than we read into the Anti-Narcotic Act. Cannon v. University of Chicago, 441 U. S. 677, 698-699 (1979).
Like the 1934 Act, the current National Firearms Act is primarily a regulatory measure. The statute establishes [628] taxation, registration, reporting, and record keeping requirements for businesses and transactions involving statutorily defined firearms, and requires that each firearm be identified by a serial number. 26 U. S. C. §§ 5801-5802, 5811-5812, 5821-5822, 5842-5843. The Secretary of the Treasury must maintain a central registry that includes the names and addresses of persons in possession of all firearms not controlled by the Government. § 5841. Congress also prohibited certain acts and omissions, including the possession of an unregistered firearm.[8] § 5861.
As the Court acknowledges, ante, at 607, to interpret statutory offenses such as § 5861(d), we look to "the nature of the statute and the particular character of the items regulated" to determine the level of knowledge required for conviction. An examination of § 5861(d) in light of our precedent dictates that the crime of possession of an unregistered machinegun is in a category of offenses described as "public welfare" crimes.[9] Our decisions interpreting such offenses clearly require affirmance of petitioner's conviction.
II
"Public welfare" offenses share certain characteristics: (1) they regulate "dangerous or deleterious devices or products [629] or obnoxious waste materials," see United States v. International Minerals & Chemical Corp., 402 U. S. 558, 565 (1971); (2) they "heighten the duties of those in control of particular industries, trades, properties or activities that affect public health, safety or welfare," Morissette, 342 U. S., at 254; and (3) they "depend on no mental element but consist only of forbidden acts or omissions," id., at 252-253. Examples of such offenses include Congress' exertion of its power to keep dangerous narcotics,[10] hazardous substances,[11] and impure and adulterated foods and drugs[12] out of the channels of commerce.[13]
Public welfare statutes render criminal "a type of conduct that a reasonable person should know is subject to stringent public regulation and may seriously threaten the community's health or safety." Liparota v. United States, 471 U. S. 419, 433 (1985). Thus, under such statutes, "a defendant can be convicted even though he was unaware of the circumstances of his conduct that made it illegal." Id., at 443, n. 7 (White, J., dissenting). Referring to the strict criminal sanctions for unintended violations of the food and drug laws, Justice Frankfurter wrote:
"The purposes of this legislation thus touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. Regard for these purposes should infuse [630] construction of the legislation if it is to be treated as a working instrument of government and not merely as a collection of English words. The prosecution . . . is based on a now familiar type of legislation whereby penalties serve as effective means of regulation. Such legislation dispenses with the conventional requirement for criminal conduct—awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger." United States v. Dotterweich, 320 U. S. 277, 280-281 (1943) (citing United States v. Balint, 258 U. S. 250 (1922); other citations omitted).
The National Firearms Act unquestionably is a public welfare statute. United States v. Freed, 401 U. S. 601, 609 (1971) (holding that this statute "is a regulatory measure in the interest of the public safety"). Congress fashioned a legislative scheme to regulate the commerce and possession of certain types of dangerous devices, including specific kinds of weapons, to protect the health and welfare of the citizenry. To enforce this scheme, Congress created criminal penalties for certain acts and omissions. The text of some of these offenses—including the one at issue here— contains no knowledge requirement.
The Court recognizes:
"[W]e have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him `in responsible relation to a public danger,' Dotterweich, supra, at 281, he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to `ascertain at his peril whether [his conduct] comes within the inhibition of the statute.' Balint, 258 U. S., at 254." Ante, at 607. [631] We thus have read a knowledge requirement into public welfare crimes, but not a requirement that the defendant know all the facts that make his conduct illegal. Although the Court acknowledges this standard, it nevertheless concludes that a gun is not the type of dangerous device that would alert one to the possibility of regulation.
Both the Court and Justice Ginsburg erroneously rely upon the "tradition[al]" innocence of gun ownership to find that Congress must have intended the Government to prove knowledge of all the characteristics that make a weapon a statutory "firear[m]." Ante, at 610-612; ante, at 621-622 (Ginsburg, J., concurring in judgment). We held in Freed, however, that a § 5861(d) offense may be committed by one with no awareness of either wrongdoing or of all the facts that constitute the offense.[14] 401 U. S., at 607-610. Nevertheless, the Court, asserting that the Government "gloss[es] over the distinction between grenades and guns," determines that "the gap between Freed and this case is too wide to bridge." Ante, at 610. As such, the Court instead reaches the rather surprising conclusion that guns are more analogous to food stamps than to hand grenades.[15] Even if [632] one accepts that dubious proposition, the Court founds it upon a faulty premise: its mischaracterization of the Government's submission as one contending that "all guns . . . are dangerous devices that put gun owners on notice . . . ." Ante, at 608 (emphasis added).[16] Accurately identified, the Government's position presents the question whether guns such as the one possessed by petitioner "`are highly dangerous offensive weapons, no less dangerous than the narcotics' " in Balint or the hand grenades in Freed, see ante, at 609 (quoting Freed, 401 U. S., at 609).[17]
[633] Thus, even assuming that the Court is correct that the mere possession of an ordinary rifle or pistol does not entail sufficient danger to alert one to the possibility of regulation, that conclusion does not resolve this case. Petitioner knowingly possessed a semiautomatic weapon that was readily convertible into a machinegun. The "`character and nature' " of such a weapon is sufficiently hazardous to place the possessor on notice of the possibility of regulation. See Posters `N' Things, Ltd. v. United States, ante, at 525 (citation omitted).[18] No significant difference exists between [634] imposing upon the possessor a duty to determine whether such a weapon is registered, Freed, 401 U. S., at 607-610, and imposing a duty to determine whether that weapon has been converted into a machinegun.
Cases arise, of course, in which a defendant would not know that a device was dangerous unless he knew that it was a "firearm" as defined in the Act. Freed was such a case; unless the defendant knew that the device in question was a hand grenade, he would not necessarily have known that it was dangerous. But given the text and nature of the statute, it would be utterly implausible to suggest that Congress intended the owner of a sawed-off shotgun to be criminally liable if he knew its barrel was 17.5 inches long but not if he mistakenly believed the same gun had an 18inch barrel. Yet the Court's holding today assumes that Congress intended that bizarre result.
The enforcement of public welfare offenses always entails some possibility of injustice. Congress nevertheless has repeatedly decided that an overriding public interest in health or safety may outweigh that risk when a person is dealing with products that are sufficiently dangerous or deleterious to make it reasonable to presume that he either knows, or should know, whether those products conform to special regulatory requirements. The dangerous character of the product is reasonably presumed to provide sufficient notice of the probability of regulation to justify strict enforcement against those who are merely guilty of negligent, rather than willful, misconduct.
The National Firearms Act is within the category of public welfare statutes enacted by Congress to regulate highly dangerous items. The Government submits that a conviction under such a statute may be supported by proof that the [635] defendant "knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9.[19] It is undisputed that the evidence in this case met that standard. Nevertheless, neither Justice Thomas for the Court nor Justice Ginsburg has explained why such a knowledge requirement is unfaithful to our cases or to the text of the Act.[20] Instead, following the approach of their decision in United States v. Harris, 959 F. 2d 246, 260-261 (CADC) (per curiam), cert. denied sub nom. Smith v. United States, 506 U. S. 932 (1992), they have simply explained why, in their judgment, it would be unfair to punish the possessor of this machinegun.
III
The history and interpretation of the National Firearms Act supports the conclusion that Congress did not intend to [636] require knowledge of all the facts that constitute the offense of possession of an unregistered weapon. During the first 30 years of enforcement of the 1934 Act, consistent with the absence of a knowledge requirement and with the reasoning in Balint, courts uniformly construed it not to require knowledge of all the characteristics of the weapon that brought it within the statute. In a case decided in 1963, then-Judge Blackmun reviewed the earlier cases and concluded that the defendant's knowledge that he possessed a gun was "all the scienter which the statute requires." Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963).
Congress subsequently amended the statute twice, once in 1968 and again in 1986. Both amendments added knowledge requirements to other portions of the Act,[21] but neither the text nor the history of either amendment discloses an intent to add any other knowledge requirement to the possession of an unregistered firearm offense. Given that, with only one partial exception,[22] every federal tribunal to address the question had concluded that proof of knowledge of all the facts constituting a violation was not required for a conviction [637] under § 5861(d),[23] we may infer that Congress intended that interpretation to survive. See Lorillard v. Pons, 434 U. S. 575, 580 (1978).
In short, petitioner's knowledge that he possessed an item that was sufficiently dangerous to alert him to the likelihood of regulation would have supported a conviction during the first half century of enforcement of this statute. Unless application of that standard to a particular case violates the Due Process Clause,[24] it is the responsibility of Congress, not this Court, to amend the statute if Congress deems it unfair or unduly strict.
IV
On the premise that the purpose of the mens rea requirement is to avoid punishing people "for apparently innocent activity," Justice Ginsburg concludes that proof of knowledge that a weapon is "`a dangerous device of a type as would alert one to the likelihood of regulation' " is not an adequate mens rea requirement, but that proof of knowledge that the weapon possesses "`every last characteristic' " that subjects it to regulation is. Ante, at 622-623, and n. 5 (Ginsburg, J., concurring in judgment) (quoting the trial court's jury instruction).
[638] Assuming that "innocent activity" describes conduct without any consciousness of wrongdoing, the risk of punishing such activity can be avoided only by reading into the statute the common-law concept of mens rea: "an evil purpose or mental culpability." Morissette, 342 U. S., at 252.[25] But even petitioner does not contend that the Government must prove guilty intent or intentional wrongdoing. Instead, the "mens rea " issue in this case is simply what knowledge requirement, if any, Congress implicitly included in this offense. There are at least five such possible knowledge requirements, four of which entail the risk that a completely innocent mistake will subject a defendant to punishment.
First, a defendant may know that he possesses a weapon with all of the characteristics that make it a "firearm" within the meaning of the statute and also know that it has never been registered, but be ignorant of the federal registration requirement. In such a case, we presume knowledge of the law even if we know the defendant is "innocent" in the sense that Justice Ginsburg uses the word. Second, a defendant may know that he possesses a weapon with all of the characteristics of a statutory firearm and also know that the law requires that it be registered, but mistakenly believe that it is in fact registered. Freed squarely holds that this defendant's "innocence" is not a defense. Third, a defendant [639] may know only that he possesses a weapon with all of the characteristics of a statutory firearm. Neither ignorance of the registration requirement nor ignorance of the fact that the weapon is unregistered protects this "innocent" defendant. Fourth, a defendant may know that he possesses a weapon that is sufficiently dangerous to likely be regulated, but not know that it has all the characteristics of a statutory firearm. Petitioner asserts that he is an example of this "innocent" defendant. Fifth, a defendant may know that he possesses an ordinary gun and, being aware of the widespread lawful gun ownership in the country, reasonably assume that there is no need "to inquire about the need for registration." Ante, at 622 (Ginsburg, J., concurring in judgment). That, of course, is not this case. See supra, at 624, and n. 1.[26]
Justice Ginsburg treats the first, second, and third alternatives differently from the fourth and fifth. Her acceptance of knowledge of the characteristics of a statutory "firearm" as a sufficient predicate for criminal liability—despite ignorance of either the duty to register or the fact of nonregistration, or both—must rest on the premise that such knowledge would alert the owner to the likelihood of regulation, thereby depriving the conduct of its "apparen[t] innocen[ce]." Yet in the fourth alternative, a jury determines just such knowledge: that the characteristics of the weapon known to the defendant would alert the owner to the likelihood of regulation.
In short, Justice Ginsburg's reliance on "the purpose of the mens rea requirement—to shield people against punishment for apparently innocent activity," ante, at 622, neither explains why ignorance of certain facts is a defense although [640] ignorance of others is not, nor justifies her disagreement with the jury's finding that this defendant knew facts that should have caused him to inquire about the need for registration.[27]
V
This case presents no dispute about the dangerous character of machineguns and sawed-off shotguns. Anyone in possession of such a weapon is "standing in responsible relation to a public danger." See Dotterweich, 320 U. S., at 281 (citation omitted). In the National Firearms Act, Congress determined that the serious threat to health and safety posed by the private ownership of such firearms warranted the imposition of a duty on the owners of dangerous weapons to determine whether their possession is lawful. Semiautomatic weapons that are readily convertible into machineguns are sufficiently dangerous to alert persons who knowingly possess them to the probability of stringent public regulation. The jury's finding that petitioner knowingly possessed "a dangerous device of a type as would alert one to the likelihood of regulation" adequately supports the conviction.
Accordingly, I would affirm the judgment of the Court of Appeals.
[1] As used here, the terms "automatic" and "fully automatic" refer to a weapon that fires repeatedly with a single pull of the trigger. That is, once its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted. Such weapons are "machineguns" within the meaning of the Act. We use the term "semiautomatic" to designate a weapon that fires only one shot with each pull of the trigger, and which requires no manual manipulation by the operator to place another round in the chamber after each round is fired.
[2] In what the parties regard as a mistranscription, the transcript contains the word "suggested" instead of "which subjects it."
[3] By interpreting such public welfare offenses to require at least that the defendant know that he is dealing with some dangerous or deleterious substance, we have avoided construing criminal statutes to impose a rigorous form of strict liability. See, e. g., United States v. International Minerals & Chemical Corp., 402 U. S. 558, 563-564 (1971) (suggesting that if a person shipping acid mistakenly thought that he was shipping distilled water, he would not violate a statute criminalizing undocumented shipping of acids). True strict liability might suggest that the defendant need not know even that he was dealing with a dangerous item. Nevertheless, we have referred to public welfare offenses as "dispensing with" or "eliminating" a mens rea requirement or "mental element," see, e. g., Morissette, 342 U. S., at 250, 263; United States v. Dotterweich, 320 U. S. 277, 281 (1943), and have described them as strict liability crimes, United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). While use of the term "strict liability" is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea; that is, the requirement of a "guilty mind" with respect to an element of a crime. Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense. Generally speaking, such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat. See generally J. Hawley & M. McGregor, Criminal Law 26-30 (1899); R. Perkins, Criminal Law 785-786 (2d ed. 1969); G. Williams, Criminal Law: The General Part 113— 174 (1953). Cf. Queen v. Tolson, 23 Q. B. 168, 187 (1889) (Stephen, J.) ("[I]t may, I think, be maintained that in every case knowledge of fact [when not appearing in the statute] is to some extent an element of criminality as much as competent age and sanity").
[4] A grenade is a "firearm" under the Act. 26 U. S. C. §§ 5845(a)(8), 5845(f)(1)(B).
[5] The dissent's assertions to the contrary notwithstanding, the Government's position, "[a]ccurately identified," post, at 632, is precisely that "guns in general" are dangerous items. The Government, like the dissent, cites Sipes v. United States, 321 F. 2d 174, 179 (CA8), cert. denied, 375 U. S. 913 (1963), for the proposition that a defendant's knowledge that the item he possessed "was a gun" is sufficient for a conviction under § 5861(d). Brief for United States 21. Indeed, the Government argues that "guns" should be placed in the same category as the misbranded drugs in Dotterweich and the narcotics in Balint because "`one would hardly be surprised to learn' (Freed, 401 U. S. at 609) that there are laws that affect one's rights of gun ownership." Brief for United States 22. The dissent relies upon the Government's repeated contention that the statute requires knowledge that "the item at issue was highly dangerous and of a type likely to be subject to regulation." Id. , at 9. But that assertion merely patterns the general language we have used to describe the mens rea requirement in public welfare offenses and amounts to no more than an assertion that the statute should be treated as defining a public welfare offense.
[6] The dissent asserts that the question is not whether all guns are deleterious devices, but whether a gun "such as the one possessed by petitioner," post, at 632 (which the dissent characterizes as a "semiautomatic weapon that [is] readily convertible into a machinegun," post, at 624, 633, 640), is such a device. If the dissent intends to suggest that the category of readily convertible semiautomatics provides the benchmark for defining the knowledge requirement for § 5861(d), it is difficult to see how it derives that class of weapons as a standard. As explained above, see n. 5, supra, the Government's argument has nothing to do with this ad hoc category of weapons. And the statute certainly does not suggest that any significance should attach to readily convertible semiautomatics, for that class bears no relation to the definitions in the Act. Indeed, in the absence of any definition, it is not at all clear what the contours of this category would be. The parties assume that virtually all semiautomatics may be converted into automatics, and limiting the class to those "readily" convertible provides no real guidance concerning the required mens rea. In short, every owner of a semiautomatic rifle or handgun would potentially meet such a mens rea test.
But the dissent apparently does not conceive of the mens rea requirement in terms of specific categories of weapons at all, and rather views it as a more fluid concept that does not require delineation of any concrete elements of knowledge that will apply consistently from case to case. The dissent sees no need to define a class of items the knowing possession of which satisfies the mens rea element of the offense, for in the dissent's view the exact content of the knowledge requirement can be left to the jury in each case. As long as the jury concludes that the item in a given case is "sufficiently dangerous to alert [the defendant] to the likelihood of regulation," post, at 637, the knowledge requirement is satisfied. See also post, at 624, 639, 640. But the mens rea requirement under a criminal statute is a question of law, to be determined by the court. Our decisions suggesting that public welfare offenses require that the defendant know that he stands in "responsible relation to a public danger," Dotterweich, 320 U. S., at 281, in no way suggest that what constitutes a public danger is a jury question. It is for courts, through interpretation of the statute, to define the mens rea required for a conviction. That task cannot be reduced to setting a general "standard," post, at 637, that leaves it to the jury to determine, based presumably on the jurors' personal opinions, whether the items involved in a particular prosecution are sufficiently dangerous to place a person on notice of regulation.
Moreover, as our discussion above should make clear, to determine as a threshold matter whether a particular statute defines a public welfare offense, a court must have in view some category of dangerous and deleterious devices that will be assumed to alert an individual that he stands in "responsible relation to a public danger." Dotterweich, supra, at 281. The truncated mens rea requirement we have described applies precisely because the court has determined that the statute regulates in a field where knowing possession of some general class of items should alert individuals to probable regulation. Under the dissent's approach, however, it seems that every regulatory statute potentially could be treated as a public welfare offense as long as the jury—not the court—ultimately determines that the specific items involved in a prosecution were sufficiently dangerous.
[7] See, e. g., 18 U. S. C. §§ 921-928 (1988 ed. and Supp. IV) (requiring licensing of manufacturers, importers, and dealers of guns and regulating the sale, possession, and interstate transportation of certain guns).
[8] See U. S. Dept. of Justice, Bureau of Justice Statistics, Source book of Criminal Justice Statistics 209 (1992) (Table 2.58).
[9] For example, as of 1990, 39 States allowed adult residents, who are not felons or mentally infirm, to purchase a rifle or shotgun simply with proof of identification (and in some cases a simultaneous application for a permit). See U. S. Dept. of Justice, Bureau of Justice Statistics, Identifying Persons, Other Than Felons, Ineligible to Purchase Firearms 114, Exh. B.4 (1990); U. S. Congress, Office of Technology Assessment, Automated Record Checks of Firearm Purchasers 27 (July 1991). See also M. Cooper, Reassessing the Nation's Gun Laws, Editorial Research Reports 158, 160 (Jan.—Mar. 1991) (table) (suggesting the total is 41 States); Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, State Laws and Published Ordinances—Firearms (19th ed. 1989).
[10] We, of course, express no view concerning the inferences a jury may have drawn regarding petitioner's knowledge from the evidence in this case.
[11] The Government contends that Congress intended precisely such an aid to obtaining convictions, because requiring proof of knowledge would place too heavy a burden on the Government and obstruct the proper functioning of § 5861(d). Cf. United States v. Balint, 258 U. S. 250, 254 (1922) (difficulty of proving knowledge suggests Congress did not intend to require mens rea ). But knowledge can be inferred from circumstantial evidence, including any external indications signaling the nature of the weapon. And firing a fully automatic weapon would make the regulated characteristics of the weapon immediately apparent to its owner. In short, we are confident that when the defendant knows of the characteristics of his weapon that bring it within the scope of the Act, the Government will not face great difficulty in proving that knowledge. Of course, if Congress thinks it necessary to reduce the Government's burden at trial to ensure proper enforcement of the Act, it remains free to amend § 5861(d) by explicitly eliminating a mens rea requirement.
[12] Leading English cases developing a parallel theory of regulatory offenses similarly involved violations punishable only by fine or short-term incarceration. See, e. g., Queen v. Woodrow, 15 M. & W. 404, 153 Eng. Rep. 907 (Ex. 1846) (fine of £200 for adulterated tobacco); Hobbs v. Winchester Corp., [1910] 2 K. B. 471 (maximum penalty of three months' imprisonment for sale of unwholesome meat).
[13] Cf. Queen v. Tolson, 23 Q. B., at 177 (Wills, J.) (In determining whether a criminal statute dispenses with mens rea, "the nature and extent of the penalty attached to the offence may reasonably be considered. There is nothing that need shock any mind in the payment of a small pecuniary penalty by a person who has unwittingly done something detrimental to the public interest").
[14] But see, e. g., State v. Lindberg, 125 Wash. 51, 215 P. 41 (1923) (applying the public welfare offense rationale to a felony).
[15] See also United States Gypsum, 438 U. S., at 442, n. 18 (noting that an individual violation of the Sherman Antitrust Act is a felony punishable by three years in prison or a fine not exceeding $100,000 and stating that "[t]he severity of these sanctions provides further support for our conclusion that the [Act] should not be construed as creating strict-liability crimes"). Cf. Holdridge v. United States, 282 F. 2d 302, 310 (CA8 1960) (Blackmun, J.) ("[W]here a federal criminal statute omits mention of intent and . . . where the penalty is relatively small, where conviction does not gravely besmirch, [and] where the statutory crime is not one taken over from the common law, . . . the statute can be construed as one not requiring criminal intent").
[16] Title 18 U. S. C. § 3559 makes any crime punishable by more than one year in prison a felony.
[17] In reaching our conclusion, we find it unnecessary to rely on the rule of lenity, under which an ambiguous criminal statute is to be construed in favor of the accused. That maxim of construction "is reserved for cases where, `[a]fter "seiz[ing] every thing from which aid can be derived,"` the Court is `left with an ambiguous statute.' " Smith v. United States, 508 U. S. 223, 239 (1993) (quoting United States v. Bass, 404 U. S. 336, 347 (1971), in turn quoting United States v. Fisher, 2 Cranch 358, 386 (1805)). See also United States v. R. L. C., 503 U. S. 291, 311 (1992) (Thomas, J., concurring in part and concurring in judgment); Chapman v. United States, 500 U. S. 453, 463 (1991) (rule of lenity inapplicable unless there is a "`grievous ambiguity or uncertainty' " in the statute). Here, the background rule of the common law favoring mens rea and the substantial body of precedent we have developed construing statutes that do not specify a mental element provide considerable interpretive tools from which we can "seize aid," and they do not leave us with the ultimate impression that § 5861(d) is "grievous[ly]" ambiguous. Certainly, we have not concluded in the past that statutes silent with respect to mens rea are ambiguous. See, e. g., United States v. Balint, 258 U. S. 250 (1922).
[1] Contrary to the dissent's suggestion, we have not confined the presumption of mens rea to statutes codifying traditional common-law offenses, but have also applied the presumption to offenses that are "entirely a creature of statute," post, at 625, such as those at issue in Liparota, Gypsum, and, most recently,Posters `N' Things, Ltd. v. United States, ante, at 522-523.
[2] Some Courts of Appeals have adopted a variant of the third reading, holding that the Government must show that the defendant knew the gun was a machinegun, but allowing inference of the requisite knowledge where a visual inspection of the gun would reveal that it has been converted into an automatic weapon. See United States v. O'Mara, 963 F. 2d 1288, 1291 (CA9 1992); United States v. Anderson, 885 F. 2d 1248, 1251 (CA5 1989) (en banc).
[3] The mens rea presumption requires knowledge only of the facts that make the defendant's conduct illegal, lest it conflict with the related presumption, "deeply rooted in the American legal system," that, ordinarily, "ignorance of the law or a mistake of law is no defense to criminal prosecution." Cheek v. United States, 498 U. S. 192, 199 (1991). Cf. United States v. Freed, 401 U. S. 601, 612 (1971) (Brennan, J., concurring in judgment) ("If the ancient maxim that `ignorance of the law is no excuse' has any residual validity, it indicates that the ordinary intent requirement— mens rea —of the criminal law does not require knowledge that an act is illegal, wrong, or blameworthy."). The maxim explains why some "innocent" actors—for example, a defendant who knows he possesses a weapon with all of the characteristics that subject it to registration, but was unaware of the registration requirement, or thought the gun was registered—may be convicted under § 5861(d), see post, at 638. Knowledge of whether the gun was registered is so closely related to knowledge of the registration requirement that requiring the Government to prove the former would in effect require it to prove knowledge of the law. Cf. Freed, supra, at 612-614 (Brennan, J., concurring in judgment).
[4] The indictment charged Staples with possession of two unregistered machineguns, but the jury found him guilty of knowingly possessing only one of them. Tr. 477.
[5] The trial court instructed the jury:
"[A] person is knowingly in possession of a thing if his possession occurred voluntarily and intentionally and not because of mistake or accident or other innocent reason. The purpose of adding the word `knowingly' is to insure that no one can be convicted of possession of a firearm he did not intend to possess. The Government need not prove the defendant knows he's dealing with a weapon possessing every last characteristic [which subjects it] to the regulation. It would be enough to prove he knows that he is dealing with a dangerous device of a type as would alert one to the likelihood of regulation. If he has such knowledge and if the particular item is, in fact, regulated, then that person acts at his peril. Mere possession of an unregistered firearm is a violation of the law of the United States, and it is not necessary for the Government to prove that the defendant knew that the weapon in his possession was a firearm within the meaning of the statute, only that he knowingly possessed the firearm." Id., at 465.
[1] Indeed, only about 15 percent of all the guns in the United States are semiautomatic. See National Rifle Association, Fact Sheet, SemiAutomatic Firearms 1 (Feb. 1, 1994). Although it is not known how many of those weapons are readily convertible into machineguns, it is obviously a lesser share of the total.
[2] See U. S. Dept. of Justice, Attorney General's Task Force on Violent Crime: Final Report 29, 32 (Aug. 17, 1981) (stating that over an 18-month period over 20 percent of the machineguns seized or purchased by the Bureau of Alcohol, Tobacco and Firearms had been converted from semiautomatic weapons by "simple tool work or the addition of readily available parts") (citing U. S. Dept. of Treasury, Bureau of Alcohol, Tobacco and Firearms, Firearms Case Summary (Washington: U. S. Govt. Printing Office 1981)).
[3] The Seventh Circuit's comment in a similar case is equally apt here: "The crime is possessing an unregistered firearm—not `knowingly' possessing an unregistered firearm, or possessing a weapon knowing it to be a firearm, or possessing a firearm knowing it to be unregistered. . . . [Petitioner's] proposal is not that we interpret a knowledge or intent requirement in § 5861(d); it is that we invent one." United States v. Ross, 917 F. 2d 997, 1000 (1990) (per curiam) (emphasis in original), cert. denied, 498 U. S. 1122 (1991).
[4] "The late 1920s and early 1930s brought . . . a growing perception of crime both as a major problem and as a national one. . . . [C]riminal gangs found the submachinegun (a fully automatic, shoulder-fired weapon utilizing automatic pistol cartridges) and sawed-off shotgun deadly for close-range fighting." Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 590 (1987).
[5] The Senate Report on the bill explained: "The gangster as a law violator must be deprived of his most dangerous weapon, the machinegun. Your committee is of the opinion that limiting the bill to the taxing of sawed-off guns and machineguns is sufficient at this time. It is not thought necessary to go so far as to include pistols and revolvers and sporting arms. But while there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction, there is no reason why anyone except a law officer should have a machinegun or sawed-off-shotgun." S. Rep.No. 1444,73d Cong., 2d Sess.,1-2 (1934).
[6] In the Balint case, after acknowledging the general common-law rule that made knowledge of the facts an element of every crime, we held that as to statutory crimes the question is one of legislative intent,and that the Anti-Narcotic Act should be construed to authorize "punishment of a person for an act in violation of law[,][even] when ignorant of the facts making it so."Balint, 258 U. S., at 251-252.The "policy of the law may, in order to stimulate proper care, require the punishment of the negligent person though he be ignorant of the noxious character of what he sells." Id., at 253.
[7] See National Firearms Act: Hearings on H. R. 9066 before the House Committee on Ways and Means, 73d Cong., 2d Sess., 6 (1934).
[8] "Omission of a mental element is the norm for statutes designed to deal with inaction. Not registering your gun, not cleaning up your warehouse, United States v. Park, 421 U. S. 658 . . . (1975), and like `acts' are done without thinking. Often the omission occurs because of lack of attention. . . . Yet Congress may have sound reasons for requiring people to investigate and act, objectives that cannot be achieved if the courts add mental elements to the statutes." Ross, 917 F. 2d, at 1000.
[9] These statutes are sometimes referred to as "strict liability" offenses. As the Court notes, because the defendant must know that he is engaged in the type of dangerous conduct that is likely to be regulated, the use of the term "strict liability" to describe these offenses is inaccurate. Ante, at 607-608, n. 3. I therefore use the term "public welfare offense" to describe this type of statute.
[10] See United States v. Balint, 258 U. S. 250 (1922).
[11] See United States v. International Minerals & Chemical Corp., 402 U. S. 558 (1971).
[12] See United States v. Dotterweich, 320 U. S. 277 (1943).
[13] The Court in Morissette v. United States, 342 U. S. 246 (1952), expressing approval of our public welfare offense cases, stated:
"Neither this Court nor, so far as we are aware, any other has undertaken to delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not. We attempt no closed definition, for the law on the subject is neither settled nor static." Id., at 260 (footnotes omitted).
[14] Freed, 401 U. S., at 607 (holding that a violation of § 5861(d) may be established without proof that the defendant was aware of the fact that the firearm he possessed was unregistered). Our holding in Freed is thus squarely at odds with the Court's conclusion that the "defendant must know the facts that make his conduct illegal," ante, at 619.
[15] The Court's and Justice Ginsburg's reliance upon Liparota v. United States, 471 U. S. 419 (1985), is misplaced. Ante, at 610-612; ante, at 621-622. Although the Court is usually concerned with fine nuances of statutory text, its discussion of Liparota simply ignores the fact that the food stamp fraud provision, unlike § 5861(d), contained the word "knowingly." The Members of the Court in Liparota disagreed on the proper interpretation. The dissenters accepted the Government's view that the term merely required proof that the defendant had knowledge of the facts that constituted the crime. See Liparota, 471 U. S., at 442-443 (White, J., dissenting) ("I would read § 2024(b)(1) . . . to require awareness of only the relevant aspects of one's conduct rendering it illegal, not the fact of illegality"). The majority, however, concluded that "knowingly" also connoted knowledge of illegality. Id., at 424-425. Because neither "knowingly" nor any comparable term appears in § 5861(d), the statute before us today requires even less proof of knowledge than the dissenters would have demanded in Liparota.
[16] Justice Gins burg similarly assumes that the character of "all guns " cannot be said to place upon defendants an obligation "to inquire about the need for registration." Ante, at 622 (emphasis added).
[17] The Government does note that some Courts of Appeals have required proof of knowledge only that "the weapon was `a firearm, within the general meaning of that term,' " Brief for United States 24-25 (citing cases). Contrary to the assertion by the Court, ante, at 632, n. 5, however, the Government does not advance this test as the appropriate knowledge requirement, but instead supports the one used by other Courts of Appeals. Compare the Court's description of the Government's position, ibid., with the following statements in the Government's brief: "A defendant may be convicted of such offenses so long as the government proves that he knew the item at issue was highly dangerous and of a type likely to be subject to regulation." Brief for United States 9. "[T]he court of appeals correctly required the government to prove only that petitioner knew that he possessed a dangerous weapon likely to be subject to regulation." Id., at 13. "B. The intent requirement applicable to Section 5861(d) is knowledge that one is dealing with a dangerous item of a type likely to be subject to regulation." Id., at 16.
"But where a criminal statute involves regulation of a highly hazardous substance—and especially where it penalizes a failure to act or to comply with a registration scheme—the defendant's knowledge that he was dealing with such a substance and that it was likely to be subject to regulation provides sufficient intent to support a conviction." Id., at 17-18. "Rather, absent contrary congressional direction, knowledge of the highly dangerous nature of the articles involved and the likelihood that they are subject to regulation takes the place of the more rigorous knowledge requirement applicable where apparently innocent and harmless devices are subject to regulation." Id., at 20. "But the instruction did not require the government to prove that petitioner knew his weapon `possess[ed] every last characteristic [which subjects it] to regulation'; he need only have `know[n] that he [was] dealing with a dangerous device of a type as would alert one to the likelihood of regulation.' Tr. 465.
"That instruction accurately describes the mental state necessary for a violation of Section 5861(d)." Id., at 23. "[P]roof that a defendant was on fair notice that the item he possessed was highly dangerous and likely to be regulated is sufficient to support a conviction." Id., at 24.
[18] The Court and Justice Ginsburg apparently assume that the outer limits of any such notice can be no broader than the category of dangerous objects that Congress delineated as "firearms." Ante, at 611-612; ante, at 621-622. Our holding in Posters `N' Things, illustrates the error in that assumption. A retailer who may not know whether certain merchandise is actually drug paraphernalia, as that term is defined in the relevant federal statute, may nevertheless violate the law if "aware that customers in general are likely to use the merchandise with drugs." Ante, at 524. The owner of a semiautomatic weapon that is readily convertible into a machinegun can certainly be aware of its dangerous nature and the consequent probability of regulation even if he does not know whether the weapon is actually a machinegun. If ignorance of the precise characteristics that render an item forbidden should be a defense, items that are likely to be "drug paraphernalia" are no more obviously dangerous, and thus regulated, than items that are likely to be "firearms."
[19] As a matter of law, this is the level of knowledge required by the statute. Therefore, contrary to the Court's suggestion, ante, at 612, n. 6, I have not left the determination of the "exact content of the knowledge requirement" to the jury. I only leave to the jury its usual function: the application of this legal standard to the facts. In performing this function, juries are frequently required to determine if a law has been violated by application of just such a "general `standard.' " See, e. g., Posters `N' Things, ante, at 523-525; Miller v. California, 413 U. S. 15, 24 (1973).
[20] The Court also supports its conclusion on the basis of the purported disparity between the penalty provided by this statute and those of other regulatory offenses. Although a modest penalty may indicate that a crime is a public welfare offense, such a penalty is not a requisite characteristic of public welfare offenses. For example, the crime involved in Balint involved punishment of up to five years' imprisonment. See Dotterweich, 320 U. S., at 285; see also Morissette, 342 U. S., at 251, n. 8 (noting that rape of one too young to consent is an offense "in which the victim's actual age was determinative despite defendant's reasonable belief that the girl had reached age of consent"). Moreover, congressional authorization of a range of penalties in some cases—petitioner, for instance, is on probation—demonstrates a recognition that relatively innocent conduct should be punished less severely.
[21] Significantly, in 1968, Congress included a knowledge requirement in § 5861(l ). 26 U. S. C. § 5861(l ) (making it unlawful "to make, or cause the making of, a false entry on any application, return, or record required by this chapter, knowing such entry to be false") (emphasis added). "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Rodriguez v. United States, 480 U. S. 522, 525 (1987) (internal quotation marks and citations omitted); see also Lawrence County v. Lead-Deadwood School Dist. No. 40-1, 469 U. S. 256, 267-268 (1985).
[22] United States v. Herbert, 698 F. 2d 981, 986-987 (CA9), cert. denied, 464 U. S. 821 (1983) (requiring the Government to prove knowledge of all the characteristics of a weapon only when no external signs indicated that the weapon was a "firearm"). Not until 1989 did a Court of Appeals adopt the view of the majority today. See United States v. Williams, 872 F. 2d 773 (CA6).
[23] See, e. g., United States v. Gonzalez, 719 F. 2d 1516, 1522 (CA11 1983), cert. denied, 465 U. S. 1037 (1984); Morgan v. United States, 564 F. 2d 803, 805-806 (CA8 1977); United States v. Cowper, 503 F. 2d 130, 132-133 (CA6 1974), cert. denied, 420 U. S. 930 (1975); United States v. DeBartolo, 482 F. 2d 312, 316 (CA1 1973); United States v. Vasquez, 476 F. 2d 730, 732 (CA5), cert. denied, 414 U. S. 836 (1973), overruled by United States v. Anderson, 885 F. 2d 1248 (CA5 1989) (en banc).
And, as I have already noted, United States v. Freed, 401 U. S. 601 (1971), was consistent with the Government's position here. Although the Government accepted the burden of proving that Freed knew that the item he possessed was a hand grenade, the possessor of an unfamiliar object such as a hand grenade would not know that it was "a dangerous item of a type likely to be subject to regulation," Brief for United States 16; see also id., at 20, 23, 24, unless he knew what it was.
[24] Petitioner makes no such claim in this Court.
[25] Our use of the term mens rea has not been consistent. In Morissette, we used the term as if it always connoted a form of wrongful intent. In other cases, we employ it simply to mean whatever level of knowledge is required for any particular crime. See, e. g., United States v. Bailey, 444 U. S. 394, 403 (1980). In this sense, every crime except a true strictliability offense contains a mens rea requirement. For instance, the Court defined mens rea in Liparota v. United States, 471 U. S., at 426, as "knowledge of illegality." In dissent, however, Justice White equated the term with knowledge of the facts that make the conduct illegal. Id., at 442-443. Today, the Court assigns the term the latter definition, ante, at 605, but in fact requires proof of knowledge of only some of the facts that constitute the violation, ante, at 609 (not requiring proof of knowledge of the fact that the gun is unregistered).
[26] Although I disagree with the assumption that "widespread lawful gun ownership" provides a sufficient reason for believing that there is no need to register guns (there is also widespread lawful automobile ownership), acceptance of that assumption neither justifies the majority's holding nor contradicts my conclusion on the facts of this case.
[27] In addition, contrary to Justice Ginsburg's assumption, if one reads the term "firearm" from the quoted section of the indictment to mean "gun," the indictment still charges an offense under § 5861(d) and does not differ from the critical jury instruction. See ante, at 622-623. Even if Justice Ginsburg is correct that there is a technical variance, petitioner makes no claim that any such variance prejudiced him. The wording of the indictment, of course, sheds no light on the proper interpretation of the underlying statutory text. Although the repeated use of a term in a statute may shed light on the statute's construction, see Ratzlaf v. United States, 510 U. S. 135, 143 (1994), such use in an indictment is irrelevant to that question.
7.2.8.2.3.10.5 State v. Pomianek 7.2.8.2.3.10.5 State v. Pomianek
110 A.3d 841 (2015)
221 N.J. 66
STATE of New Jersey, Plaintiff-Appellant and Cross-Respondent,
v.
David T. POMIANEK, Jr., Defendant-Respondent and Cross-Appellant.
(A-32/33-13) (072293).
Supreme Court of New Jersey.
Argued October 20, 2014.
Decided March 17, 2015.
[842] Ronald Susswein, Assistant Attorney General, argued the cause for appellant and cross-respondent (John J. Hoffman, Acting Attorney General of New Jersey, attorney).
F. Michael Daily, Jr., argued the cause for respondent and cross-appellant.
Frank L. Corrado, Wildwood, argued the cause for amicus curiae American Civil Liberties Union of New Jersey (Barry, Corrado & Grassi and Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, attorneys; Mr. Corrado, Rubin M. Sinins, Newark, Annabelle M. Steinhacker, and Edward L. Barocas, on the brief).
Lawrence S. Lustberg argued the cause for amicus curiae The Association of Criminal Defense Lawyers of New Jersey (Gibbons, attorneys; Mr. Lustberg and Amanda B. Protess, Newark, on the brief).
Taryn L. Weiss argued the cause for amicus curiae The Rutherford Institute (Seth Grossman & Robert Loefflad, attorneys; Mr. Grossman, on the brief).
Justice ALBIN delivered the opinion of the Court.
At issue in this appeal is the constitutionality of N.J.S.A. 2C:16-1(a)(3), a bias-crime statute that allows a jury to convict [843] a defendant even when bias did not motivate the commission of the offense. Under the statute, a defendant may be convicted of bias intimidation if the victim "reasonably believed" that the defendant committed the offense on account of the victim's race. Unlike any other bias-crime statute in the country, N.J.S.A. 2C:16-1(a)(3) focuses on the victim's, not the defendant's, state of mind. The defendant's fate depends not on whether bias was the purpose for the commission of the crime but on whether the victim "reasonably believed" that was the purpose. Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim's individual experiences and distinctive cultural, historical, and familial heritage — all of which may be unknown or unknowable to the defendant.
Although a jury found defendant David Pomianek, Jr., guilty of the disorderly persons' offense of harassment, it found him not guilty of purposely or knowingly harassing the victim because of the victim's race or color. The jury, however, convicted defendant of bias harassment on the ground that the victim either "reasonably believed that the harassment was committed with a purpose to intimidate him" or that "he was selected to be the target [of harassment] because of his race [or] color." Based on the bias-intimidation verdict, defendant was also convicted of official misconduct.
The Appellate Division reversed the bias-harassment conviction. It concluded that a conviction "based on the victim's perception" and not on the "defendant's biased intent" would violate the First Amendment of the United States Constitution. State v. Pomianek, 429 N.J.Super. 339, 343, 358-59, 58 A.3d 1205 (App.Div. 2013). To save N.J.S.A. 2C:16-1(a)(3), the Appellate Division rewrote the statute to impose a state-of-mind requirement and remanded for a new trial on both bias harassment and official misconduct. Id. at 343-44, 58 A.3d 1205.
We hold that N.J.S.A. 2C:16-1(a)(3), due to its vagueness, violates the Due Process Clause of the Fourteenth Amendment. In focusing on the victim's perception and not the defendant's intent, the statute does not give a defendant sufficient guidance or notice on how to conform to the law. That is so because a defendant may be convicted of a bias crime even though a jury may conclude that the defendant had no intent to commit such a crime. We are therefore constrained to reverse defendant's bias-intimidation convictions as well as his official-misconduct conviction, which was predicated on the bias-crime finding. Last, we disagree with the Appellate Division that we can rewrite N.J.S.A. 2C:16-1(a)(3) to impose the same state-of-mind requirements found in N.J.S.A. 2C:16-1(a)(1). That level of judicial tinkering with legislation exceeds the bounds of our authority. In light of our resolution of this issue, we find no need to address the First Amendment issues on which the Appellate Division premised its holding.
Accordingly, we affirm in part and reverse in part the judgment of the Appellate Division.
I.
A.
Defendant David Pomianek, Jr., and co-defendant Michael Dorazo, Jr., were charged in a sixteen-count indictment with two counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a); twelve counts of fourth-degree bias intimidation, N.J.S.A. 2C:16-1(a)(1), (a)(2), (a)(3)(a), and (a)(3)(b); and two counts of third-degree hindering apprehension or prosecution, [844] N.J.S.A. 2C:29-3(b)(3).[1] The court denied defendant's pretrial motion to dismiss the bias-intimidation counts based on a constitutional challenge to the bias-intimidation statute. Defendant and Dorazo were granted separate trials.
Defendant was tried before a jury from November 30 to December 9, 2010. The following record was developed at trial.[2]
The events relevant to this appeal occurred on April 4, 2007, in an old garage used for storage by the Gloucester Township Department of Public Works. A number of Public Works employees were assigned to the building that day, including defendant, Dorazo, and Steven Brodie, Jr. The three men worked in the Parks and Recreations Division. Defendant and Dorazo, who are Caucasian, worked as truck drivers. Brodie, who is African-American, worked as a laborer. The hierarchy in the Parks Division is supervisor, truck driver, and laborer.
Brodie testified that a number of the employees were horsing around in the building — throwing footballs and acting "out of control." In the building was a sixteen-foot long and eight-foot wide steel storage cage on a landing, thirteen steps above ground level. The cage was enclosed by a heavy chain-link fence on three sides and a cinder block wall on the fourth side and was secured by a sliding chain-link door with a padlock. According to Brodie, defendant was wrestling with a coworker in the storage cage. The coworker attempted to close the cage door on defendant, but defendant managed to slip through it.
Shortly afterwards, in a ruse, Dorazo approached Brodie and told him that their supervisor needed an item from the cage. Brodie dutifully walked up the steps into the cage and asked Dorazo, "Where is it?" Then, Dorazo shut the cage door, locking Brodie inside.
A number of Public Works Department employees began laughing, but Brodie found no humor in his predicament. At the time, defendant was sitting on a lawnmower on the ground level of the garage. Brodie recalled defendant saying, "Oh, you see, you throw a banana in the cage and he goes right in," which triggered more laughter among the men, including defendant and Dorazo. Brodie considered the remark to be "racial" in nature. To Brodie, this was not a harmless caper; instead, he "was locked in a cage like an animal." From his perspective, the line about "throwing the banana in there" was like "being called a monkey in a cage." Brodie admitted, however, that he never heard defendant call him a monkey.
Brodie remained in the cage for three to five minutes until an employee unlocked the sliding door. Brodie felt humiliated and embarrassed. After his release, Brodie walked into the new Public Works building, followed by Dorazo, who said, "You all right, buddy? We were just joking around." Brodie replied, "Yeah, yeah, I'm fine."
Two Parks Division employees generally corroborated Brodie's account. One testified that defendant said, "You can throw a banana in a cage and lock a monkey in there," and the other remembered defendant calling out, "He looks like a monkey in a cage, let's throw him some bananas." The two witnesses maintained that defendant's voice could be heard from a distance [845] but, as noted, Brodie did not hear the reference to "monkey."
Brodie also testified to another incident involving defendant and Dorazo that he believed had racial overtones. Several months earlier, an African-American laborer, Rashaan McDaniel, was vacuuming leaves on the street with a hose attached to a truck that Dorazo was driving. Brodie observed Dorazo give two bungee cords to defendant, who from behind began lightly "tapping" McDaniel on the shoulders with the cords. Brodie did not consider defendant's hijinks a joking matter. In Brodie's view, defendant was making a statement about "slavery because [there was] a black man working and he's getting whipped as he's working." No criminal charges arose from that incident.
B.
At the conclusion of the trial, the jury acquitted defendant of all counts alleging that he falsely imprisoned or harassed Brodie either with the purpose to intimidate him or knowing that his conduct would cause Brodie to be intimidated because of his race, color, national origin, or ethnicity, N.J.S.A. 2C:16-1(a)(1), (a)(2). In addition, defendant was acquitted of the lesser-included offense of false imprisonment, N.J.S.A. 2C:13-3.
Defendant, however, was found guilty of two fourth-degree bias-intimidation crimes, one for harassment by alarming conduct and the other for harassment by communication. N.J.S.A. 2C:16-1(a)(3). The jury reached its verdict based on two discrete findings: (1) the offenses were committed "under circumstances that caused Steven Brodie to be intimidated" and (2) considering the manner in which those offenses were committed, Brodie "reasonably believed" either that the offenses were "committed with a purpose to intimidate him" or that "he was selected to be the target because of his race, color, national origin, or ethnicity." N.J.S.A. 2C:16-1(a)(3). The jury also convicted defendant of official misconduct, N.J.S.A. 2C:30-2(a), based in part on the finding that he committed the crime of bias intimidation. The jury was charged that it could not find defendant guilty of misconduct in office unless it first determined that he had committed a crime. The bias-intimidation convictions, therefore, were a necessary predicate to the misconduct-in-office verdict.[3] Last, the jury convicted defendant of the petty disorderly persons' offenses of harassment by alarming conduct and harassment by communication, N.J.S.A. 2C:33-4(a), (c).
C.
The trial court sentenced defendant on the charge of second-degree official misconduct to a four-year probationary term, conditioned on defendant serving 270 days on weekends in the county jail.[4] The court imposed the identical sentence on each of the bias-intimidation counts and imposed a thirty-day term on the harassment count. All of the sentences were made to run concurrent to one another. In addition, [846] the court imposed statutorily required fines and penalties.
Defendant appealed.
II.
A.
The Appellate Division reversed defendant's bias-intimidation convictions under N.J.S.A. 2C:16-1(a)(3) because the trial court read N.J.S.A. 2C:16-1(a)(3) as it was written and did not "charge the jury that the State was required to prove defendant's bias-motivated purpose in committing the crime." Pomianek, supra, 429 N.J.Super. at 361, 58 A.3d 1205. Because the predicate for the conviction of misconduct in office was the bias crime, the panel also reversed the misconduct conviction. Ibid.
The panel ultimately determined "that N.J.S.A. 2C:16-1a(3) would be unconstitutional if [the statute] permitted a defendant to be convicted of a bias offense based on the victim's perception of the defendant's conduct, without requiring the State to prove defendant's biased intent in committing the underlying crime." Id. at 343, 58 A.3d 1205. The panel reached that conclusion because the statute, if construed otherwise, would "run afoul of the First Amendment principles espoused in [Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), and State v. Vawter, 136 N.J. 56, 642 A.2d 349, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994)]." Id. at 358-59, 58 A.3d 1205. It therefore construed the statute in a way that conformed to the Constitution.[5]Id. at 343, 358-59, 58 A.3d 1205.
The panel "reject[ed] the State's argument that N.J.S.A. 2C:16-1(a)(3) imposes criminal liability based solely on the victim's perception of the underlying crime, regardless of the defendant's intent." Id. at 358, 58 A.3d 1205. Instead, the panel reasoned that, from the entirety of N.J.S.A. 2C:16-1's legislative history, if not from the specific wording of N.J.S.A. 2C:16-1(a)(3), it could infer that N.J.S.A. 2C:16-1(a)(3) "requires proof of intent with respect to each element of the offense[]." Ibid. Accordingly, the panel mandated that a conviction under N.J.S.A. 2C:16-1(a)(3) must include findings that the defendant (1) "intend[ed] to commit the predicate offense," (2) "intend[ed] to intimidate the victim because of his or her membership in a protected class," and (3) "intend[ed] to cause the victim to perceive the underlying offense as being bias-motivated." Ibid.
The Appellate Division affirmed defendant's convictions of harassment by communication, N.J.S.A. 2C:33-4(a), and harassment by alarming conduct, N.J.S.A. 2C:33-4(c), and remanded for retrial on the charges of bias intimidation and official misconduct. Id. at 365, 58 A.3d 1205.
B.
We granted the State's petition for certification, State v. Pomianek, 216 N.J. 363, 80 A.3d 745 (2013), challenging the reversal of the bias-intimidation and misconduct-in-office convictions. We also granted defendant's cross-petition for certification, limited to four issues:
(1) whether N.J.S.A. 2C:16-1(a)(3) chills expression and/or violates due process;
[847] (2) whether the Appellate Division impermissibly applied the canon of constitutional avoidance to save N.J.S.A. 2C:16-1(a)(3) from invalidation;
(3) assuming the Appellate Division was correct in interpreting N.J.S.A. 2C:16-1(a)(3) to require a showing of intent on the part of the actor, whether defendant is entitled as a matter of law to a dismissal of the bias charges on account of double jeopardy; and
(4) whether a laugh can constitute a "benefit" within the meaning of N.J.S.A. 2C:[3]0-2(a).[6]
[Id. at 359, 80 A.3d 745.]
We also granted the motions of the Rutherford Institute, the American Civil Liberties Union of New Jersey (ACLU), and the Association of Criminal Defense Lawyers of New Jersey (ACDL) to participate as amici curiae.
III.
A.
The State argues that N.J.S.A. 2C:16-1(a)(3) (subsection (a)(3)) does not run afoul of the First Amendment because it does not criminalize protected speech or expressive conduct per se, but only applies to "words that are expressed in the course of committing some other substantive crime — one that is message-content neutral." Simply stated, the State posits that, under the First Amendment, "a purpose to cause bias intimidation is not required where the defendant's speech is communicated in the course of committing a predicate crime," and to the extent that mens rea is a constitutional prerequisite, defendant's "purpose to harass" satisfied that requirement. Although the State acknowledges that the Courts in Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993), and State v. Mortimer, 135 N.J. 517, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994), did not have "occasion to address the constitutionality of a bias intimidation statute that does not require proof of the defendant's specific intent to intimidate," the State reasons that those cases "should not be read to foreclose a bias intimidation penalty-enhancement/target selection statute that employs a different culpable mental state." In the State's view, a purposeful state of mind is not required because subsection (a)(3) merely enhances the penalty for an underlying crime that is content-neutral and does not criminalize speech.
The State rejects the notion that subsection (a)(3) is unconstitutionally vague "because it upgrades the predicate crime based on the victim's perception of the defendant's conduct." The State insists that the victim's objectively reasonable perception of the defendant's intent to intimidate on the basis of bias satisfies the mens rea requirement and gives fair notice for due process purposes. According to the State, the First and Fourteenth Amendments do not protect a defendant from his "subjective ignorance or indifference as a defense to bias intimidation."
Moreover, to the extent that subsection (a)(3) can be characterized as a "strict liability" statute, the State submits that it is no different than other statutes that criminalize activity based on attendant circumstances without regard to the defendant's mental state. One such strict-liability statute, according to the State, is N.J.S.A. 2C:35-7(a), which penalizes drug distribution within 1000 feet of a school zone, even when the defendant is unaware of his location.
[848] Last, the State claims that the Appellate Division erred in rewriting the statute to engraft a purposeful mens rea requirement onto subsection (a)(3) that is identical to the one found in N.J.S.A. 2C:16-1(a)(1) (subsection (a)(1)). Because defendant was acquitted of a subsection (a)(1) violation, the State concedes that defendant could not be retried on a newly framed statute that is the mirror image of subsection (a)(1).
B.
Defendant urges that we affirm the Appellate Division's conclusion that N.J.S.A. 2C:16-1(a)(3), as written, violates free-speech principles by chilling expression on disfavored topics. Alternatively, defendant argues that N.J.S.A. 2C:16-1(a)(3), by focusing on what a "reasonable" victim believes is the defendant's motivation rather than on what the defendant actually intends, fails to give a person of reasonable intelligence fair notice of the conduct that is forbidden. Defendant maintains that the statute offends the Due Process Clause of the Fourteenth Amendment on vagueness grounds because "[a] defendant should not be obliged to guess whether his conduct is criminal," quoting State v. Lee, 96 N.J. 156, 165-66, 475 A.2d 31 (1984). Defendant also contends that unlike such strict-liability statutes as the one enhancing criminal penalties for drug distribution within 1000 feet of a school-zone, where the boundary of a school zone is an objective fact, N.J.S.A. 2C:35-7(a), subsection (a)(3) criminalizes a defendant's conduct based on the victim's perception.
Defendant submits that the Appellate Division erred by invoking the canon of constitutional avoidance to rewrite the statute. The canon instructs courts to avoid construing a statute in a way that would lead to its invalidation. That canon does not apply, according to defendant, because N.J.S.A. 2C:16-1(a)(3) is not reasonably susceptible to alternate interpretations. Defendant also posits that prosecuting him under the reconstructed statute, which mirrors N.J.S.A. 2C:16-1(a)(3), would violate double jeopardy principles because he was acquitted of a subsection (a)(1) offense.
Additionally, defendant submits that under the newly constructed provision, a conviction under subsection (a)(3) cannot be obtained without proof of all of the elements for a conviction under subsection (a)(1). Thus, based on defendant's acquittal of the charge under subsection (a)(1), defendant cannot be retried for a violation of subsection (a)(3).
C.
Amici, the Rutherford Institute, ACLU, and ACDL, collectively and individually advance arguments similar to those made by defendant. Amici contend that N.J.S.A. 2C:16-1(a)(3) cannot be reconciled with bedrock principles undergirding the First Amendment because defendant's conviction was based on statements that were deemed offensive and insensitive by the victim — and perhaps by the jury — and not based on defendant's subjective motivations. In amici's view, the jury rested its verdict on the victim's perception of defendant's "politically incorrect" remarks, given that "the jury rejected the charge that [defendant] was actually motivated by improper bias."
Amici echo defendant's due process argument that N.J.S.A. 2C:16-1(a)(3) does not give fair notice of where the line is drawn for conduct that is proscribed because the victim's "belief will depend wholly upon the thoughts, memories or experiences of which [the defendant] almost certainly cannot know." Amici note that one of the purposes of the traditional scienter requirement is to give clear notice [849] of acts that are criminal in nature. That notice is absent when criminality depends on whether the victim reasonably believes he was targeted on the basis of bias rather than on the defendant's subjective intent. Amici emphasize that a defendant "cannot control and may not even be aware of" the victim's beliefs and that "there is a real risk that bias will be reasonably perceived by a victim even where it does not exist."
IV.
The primary issue before us is one of constitutional interpretation — whether subsection (a)(3) of the bias-intimidation statute, N.J.S.A. 2C:16-1, violates the free speech guarantee of the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Because the issue is purely legal in nature, we owe no deference to either the trial court's or Appellate Division's conclusions of law. State v. Vargas, 213 N.J. 301, 327, 63 A.3d 175 (2013); see also Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378, 658 A.2d 1230 (1995) (noting that "interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference"). Our review therefore is de novo. Balsamides v. Protameen Chems., 160 N.J. 352, 372, 734 A.2d 721 (1999).
We begin with a discussion of the text and history of the bias-intimidation statute, N.J.S.A. 2C:16-1, and then examine whether subsection (a)(3) of N.J.S.A. 2C:16-1 satisfies the due process demands of the Fourteenth Amendment. We must answer whether the line separating lawful from criminal conduct in subsection (a)(3) is so vague that a reasonable person would not have fair notice when that line is crossed. The answer raises interrelated First Amendment concerns. Nevertheless, only if subsection (a)(3) can survive due process scrutiny is it necessary to engage in a First Amendment analysis.
We now turn to the text of the bias-intimidation statute.
V.
A.
N.J.S.A. 2C:16-1 provides:
a. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S. 2C:33-4; N.J.S. 2C:39-3; N.J.S. 2C:39-4 or N.J.S. 2C:39-5,
(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to [850] be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
Generally, bias intimidation is punishable by a sentence one degree higher than the underlying crime that forms the basis for the bias-intimidation charge. N.J.S.A. 2C:16-1(c). In this case, the underlying charges were the petty disorderly persons' offenses of harassment by communication and alarming conduct. N.J.S.A. 2C:33-4(a), (c). Harassment is punishable by a sentence not to exceed thirty days' imprisonment. N.J.S.A. 2C:43-8. However, when the victim of the harassment is subjected to bias intimidation, a fourth-degree crime has been committed, N.J.S.A. 2C:16-1(c), and the crime is punishable by a sentence not to exceed eighteen months' imprisonment, N.J.S.A. 2C:43-6(a)(4).
Under subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1, a defendant commits bias intimidation when he acts "with a purpose to intimidate" or with "knowledge" that his conduct will intimidate a person based on an immutable characteristic, such as a person's race or color. Those state-of-mind requirements are the traditional means of determining criminal liability. United States v. Bailey, 444 U.S. 394, 402-04, 100 S.Ct. 624, 630-31, 62 L.Ed.2d 575, 586-87 (1980). Unlike subsections (a)(1) and (a)(2), subsection (a)(3) focuses not on the state of mind of the accused, but rather on the victim's perception of the accused's motivation for committing the offense. Thus, if the victim reasonably believed that the defendant committed the offense of harassment with the purpose to intimidate or target him based on his race or color, the defendant is guilty of bias intimidation. N.J.S.A. 2C:16-1(a)(3). Under subsection (a)(3), a defendant may be found guilty of bias intimidation even if he had no purpose to intimidate or knowledge that his conduct would intimidate a person because of his race or color. In other words, an innocent state of mind is not a defense to a subsection (a)(3) prosecution; the defendant is culpable for his words or conduct that led to the victim's reasonable perception even if that perception is mistaken.
B.
Subsection (a)(3) was not part of New Jersey's original "hate crime" law. The original version provided for an extended term of imprisonment if, at sentencing, the trial judge found by a preponderance of evidence that "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." L. 1995, c. 211, § 3 (emphasis added) (codified as amended at N.J.S.A. 2C:44-3(e), invalidated by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). The United States Supreme Court struck down that statute because it allowed the trial court to impose a sentence greater than the one authorized by the jury verdict in contravention of the Sixth Amendment right to trial by jury. Apprendi, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. Apprendi made clear that bias motivation in the sentence-enhancement provision, N.J.S.A. 2C:44-3(e), was an element of the offense, disguised as a sentencing factor. Apprendi, supra, 530 U.S. at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at 455. Notably, N.J.S.A. 2C:44-3(e) hinged a sentence enhancement on a defendant's intent to intimidate, not on the victim's perception of defendant's motivation.
In response to Apprendi, the Legislature enacted N.J.S.A. 2C:16-1, the current bias-intimidation statute. L. 2001, c. 443, [851] § 1. The original bill sponsored in the Senate corrected the constitutional defect in N.J.S.A. 2C:44-3(e) and provided that the purpose to intimidate on the basis of bias would be treated as an element of the offense and tried to the jury. S. 1897, 209th Leg. (2000). Later, a substitute bill was introduced that included the present version of section (a)(3), which unlike sections (a)(1) and (a)(2), contains no scienter requirement. S. Comm. Substitute for S. 1897, 209th Leg. (2000). The legislative history gives no insight into the Legislature's reason for including subsection (a)(3). The Senate Judiciary Committee and Assembly Judiciary Committee Statements to the substitute bill (Senate Bill No. 1897), enacted into law as N.J.S.A. 2C:16-1, explained that a "person would be guilty of bias intimidation if the person commits any crime listed in the bill with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, handicap, sexual orientation or ethnicity." Assemb. Judiciary Comm. Statement to S. No. 1897, 209th Leg. (May 7, 2001) (emphasis added); S. Judiciary Comm. Statement to S. No. 1897, 209th Leg. (Dec. 14, 2000) (emphasis added). In those Statements, no mention is made of the provision that allows for a bias-crime conviction based on a victim's reasonable belief that a defendant possessed a purpose to commit bias intimidation, even if the defendant had no such purpose.
Subsection (a)(3) of N.J.S.A. 2C:16-1 is unique among bias-crime statutes in this nation. It is the only statute that authorizes a bias-crime conviction based on the victim's perception that the defendant committed the offense with the purpose to intimidate, regardless of whether the defendant actually had the purpose to intimidate. See Alison M. Smith & Cassandra L. Foley, Cong. Research Serv., State Statutes Governing Hate Crimes (2010). For a defendant to be found guilty of bias intimidation in other jurisdictions, a finding of the defendant's bias-motivated state of mind, such as malice and specific intent, is required. See, e.g., Colo.Rev.Stat. § 18-9-121(2) (2014) ("A person commits a bias-motivated crime if, with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, national origin, physical or mental disability, or sexual orientation.. . ."); Idaho Code Ann. § 18-7902 (2014) ("It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person's race, color, religion, ancestry, or national origin. . . ."); Okla. Stat. tit. 21, § 850 (2013) ("No person shall maliciously and with the specific intent to intimidate or harass another person because of that person's race, color, religion, ancestry, national origin or disability.. . ."). Those out-of-state statutes are comparable to subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1.
With this backdrop, we next address whether subsection (a)(3) of N.J.S.A. 2C:16-1 passes muster under the Due Process Clause of the Fourteenth Amendment.
VI.
A.
The Due Process Clause of the Fourteenth Amendment of the United States Constitution guarantees that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." U.S. Const. amend. XIV, § 1. A fundamental element of due process is that a law "must give fair notice of conduct that is forbidden or required." FCC v. Fox Television Stations, Inc., ___ U.S. ___, ___, 132 S.Ct. 2307, 2317, 183 L.Ed.2d 234, 245 (2012). "A conviction fails to comport [852] with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited. . . ." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650, 669 (2008). A person should be on notice that he is engaged in wrongdoing before he "is brought to the bar of justice for condemnation in a criminal case." Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228, 231 (1957).
A statute that criminalizes conduct "in terms so vague that [persons] of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law." Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888, 890 (1939) (internal quotation marks omitted). The inherent vice in vague laws is that they do not draw clear lines separating criminal from lawful conduct. See Lee, supra, 96 N.J. at 165, 475 A.2d 31 (noting that "vagueness test demands that a law be sufficiently clear and precise so that people are given notice and adequate warning of the law's reach") (internal quotation marks omitted). A penal statute should not be "a trap" for the unwary. Id. at 166, 475 A.2d 31.
In Mortimer, supra, we ultimately rejected a due process vagueness challenge to the entirety of N.J.S.A. 2C:33-4(d) (repealed by L. 2001, c. 443, § 3), which classified as a fourth-degree crime harassment that is motivated by bias.[7] 135 N.J. at 535, 641 A.2d 257. N.J.S.A. 2C:33-4(d) criminalized the defendant's conduct if the defendant "acted, at least in part, with ill will, hatred or bias toward, and with a purpose to intimidate, an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity." We struck from the statute the language — "at least in part with ill will, hatred or bias toward" — on vagueness grounds because those words failed to give sufficient notice of "what that part of the statute proscribe[d]." Mortimer, supra, 135 N.J. at 533, 641 A.2d 257. The reconstructed statute read as follows: "A person commits a crime of the fourth degree if in committing an offense under this section, he acted . . . with a purpose to intimidate an individual or group of individuals because of race, color, religion, sexual orientation or ethnicity." Id. at 534, 641 A.2d 257. The reconstructed statute survived due process scrutiny because the statute's mens rea — "with purpose to intimidate" — penalizes a defendant who "selects a victim because of the victim's group identification or inherent characteristics." Id. at 534-35, 641 A.2d 257 (emphasis added). Although we upheld "subsection d, thereby permitting an inquiry into a person's motive to commit one of the predicate offenses, we caution[ed] that our decision [was] not an invitation to inquire into an actor's beliefs, expressions, and associations generally." Id. at 538, 641 A.2d 257 (emphasis added).
The United States Supreme Court in Mitchell, supra, likewise rejected a constitutional challenge to a statute that provided for a penalty enhancement when the defendant "intentionally" committed certain crimes because of an immutable characteristic, such as race, religion, or color. 508 U.S. at 480, 490, 113 S.Ct. at 2197, 2202, 124 L.Ed.2d at 442, 448. The statute passed muster under the First and Fourteenth Amendments because a defendant is not punished because of his "bigoted beliefs" but because of his "discriminatory motive." Id. at 485, 113 S.Ct. at 2199, 124 L.Ed.2d at 445. The Court recognized that "bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and [853] incite community unrest." Id. at 488, 113 S.Ct. at 2201, 124 L.Ed.2d at 447.
What distinguishes the statutes upheld in Mortimer and Mitchell from subsection (a)(3) of N.J.S.A. 2C:16-1 is that in those statutes the defendant is penalized for intentionally targeting the victim based on an immutable characteristic, such as race or color, whereas subsection (a)(3) penalizes the defendant even if he has no motive to discriminate, so long as the victim reasonably believed he acted with a discriminatory motive.
While the State is correct that our upholding of the constitutionality of the bias-harassment statute in Mortimer does not ineluctably lead to the conclusion that subsection (a)(3) is unconstitutional, the reasoning in Mortimer lends no support to the State's argument. Indeed, the concern we expressed in Mortimer, supra, 135 N.J. at 538, 641 A.2d 257 — the need to avoid "inquiry into an actor's beliefs, expressions, and associations generally" — may be realized when the focus is on the victim's reasonable perceptions as opposed to the defendant's actual motivation. A bigot who harasses a neighbor for no reason other than that the neighbor is playing music too loudly in the evening may be convicted of bias intimidation under subsection (a)(3) if the neighbor reasonably believes, under the circumstances, that the bigot acted based on his racial, religious, or nativist sentiments. That is because subsection (a)(3) does not require that a defendant have a bias motive to be convicted of bias intimidation. Significantly, we found that the statute in Mortimer was "rationally related to [a] legitimate State interest" because criminalizing "bias-motivated harassment" advanced the goal of deterrence. Id. at 537, 641 A.2d 257. The goal of deterrence surely is diminished when a person has no motive to commit a bias crime and is unaware that his conduct or speech has crossed over into the realm of criminal misconduct.
The State compares subsection (a)(3) of N.J.S.A. 2C:16-1 to other strict-liability statutes, but statutes without scienter requirements have due process limitations. A strict-liability statute will violate due process if it "offend[s] fundamental notions of justice." State v. Maldonado, 137 N.J. 536, 555, 645 A.2d 1165 (1994). The due process bar to a strict-liability statute applies "when the underlying conduct is so passive, so unworthy of blame, that the persons violating the proscription would have no notice that they were breaking the law." Ibid. As with vague statutes, notice is a key component to a due process review of strict-liability statutes. Strict-liability statutes that have withstood constitutional scrutiny typically involve an element of an offense that involves an ascertainable fact of which a defendant can make himself aware to avoid criminal liability.
For example, N.J.S.A. 2C:35-7(a), a statute criminalizing the distribution of drugs within 1000 feet of a school, is constitutional without requiring proof that the defendant knew that he was within the prohibited zone. United States v. Holland, 810 F.2d 1215, 1224 (D.C.Cir.1987). Significantly, a defendant has the ability to determine his location in relationship to a school. In State v. Fearick, 69 N.J. 32, 38, 350 A.2d 227 (1976), we rejected the constitutional challenge to a statute that imposed a mandatory jail sentence on a defendant who was involved in an accident while driving with a suspended license. The statute did not accord defendant a defense based on his lack of fault in causing the accident. Id. at 35-36, 350 A.2d 227. Notably, a defendant is on statutory notice that if he drives while suspended, the happenstance of an accident, even if not his fault, would subject him to a harsh [854] penalty. In Maldonado, supra, 137 N.J. at 554-55, 645 A.2d 1165, we upheld the constitutionality of a statute that imposed strict liability on a drug distributor whose drugs proximately caused death. The defendant was on notice of the inherent dangers of drugs and their potential to cause death.[8]Id. at 556, 645 A.2d 1165.
Unlike the defendants in those cases involving strict-liability statutes, defendant here could not readily inform himself of a fact and, armed with that knowledge, take measures to avoid criminal liability. Defendant was guilty of a crime under N.J.S.A. 2C:16-1(a)(3) even if he had no intent to commit bias intimidation, so long as the victim reasonably believed that defendant targeted him on account of his race or color. Of course, a victim's reasonable belief about whether he has been subjected to bias may well depend on the victim's personal experiences, cultural or religious upbringing and heritage, and reaction to language that is a flashpoint to persons of his race, religion, or nationality. A tone-deaf defendant may intend no bias in the use of crude or insensitive language, and yet a victim may reasonably perceive animus. The defendant may be wholly unaware of the victim's perspective, due to a lack of understanding of the emotional triggers to which a reasonable person of that race, religion, or nationality would react. Nothing in the history of the bias-intimidation statute suggests that the Legislature intended to criminalize conduct through the imposition of an amorphous code of civility or criminalize speech that was not intended to intimidate on the basis of bias. It bears repeating that no other bias-intimidation statute in the nation imposes criminal liability based on the victim's reasonable perceptions.
Last, the State's characterization of N.J.S.A. 2C:16-1(a)(3) as a penalty-enhancement/target-selection statute does not change the constitutional analysis. The pre-Apprendi hate-crime law was described as a "sentence enhancer," yet that categorization did not alter the fact that the sentencing court, not a jury, was determining an element of the offense in violation of the defendant's Sixth Amendment right to a jury trial. Apprendi, supra, 530 U.S. at 490, 495, 120 S.Ct. at 2362-63, 2365, 147 L.Ed.2d at 455, 458. How we label the statute is not as important as how the statute operates and whether it offends the Constitution.
N.J.S.A. 2C:16-1(a)(3) fails to set a standard that places a reasonably intelligent person on notice when he is crossing a proscribed line. That is so because guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him.
B.
Indeed, the facts of this case illustrate how subsection (a)(3) exceeds its constitutional bounds. After Dorazo lured Brodie [855] into the storage cage in the Public Works garage and locked the cage door, defendant remarked — according to Brodie — "Oh, you see, you throw a banana in the cage and he goes right in." Although the jury concluded that defendant acted with the purpose to harass Brodie, it rejected the State's theory that defendant acted with the purpose to intimidate or target Brodie on account of his race or color. However, because Brodie, an African-American victim, reasonably believed under the circumstances that defendant's words were racially motivated — even though the jury concluded they were not — defendant was convicted of bias intimidation.
Subsection (a)(3) required defendant to predict that the reasonable African-American would consider defendant's words as constituting the motive for a crime, even though he had no such motive. Persons who belong to specific ethnic, religious, or racial groups that have been historically exposed to bigotry will be particularly sensitive to language that is deemed offensive, based on their communal and individual experiences. But defendant did not possess the communal and individual experiences of the reasonable victim in this case. Subsection (a)(3) criminalizes defendant's failure to apprehend the reaction that his words would have on another. Here, subsection (a)(3) penalizes, as a bias crime, coarse and insensitive language that may have been uttered as part of a terrible prank.
VII.
A.
We disagree with the Appellate Division's approach, which reads into subsection (a)(3) a mens rea element that is absent from the statute. The Legislature pointedly decided not to include such an element in subsection (a)(3), which is evident by the presence of mens rea elements in subsections (a)(1) and (a)(2). We must read the statute as it is written. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). The doctrine of constitutional avoidance comes into play when a statute is susceptible to two reasonable interpretations, one constitutional and one not. State v. Johnson, 166 N.J. 523, 534, 766 A.2d 1126 (2001). We then assume that the Legislature would want us to construe the statute in a way that conforms to the Constitution. Id. at 540-41, 766 A.2d 1126. Here, there is no doubt about the meaning of subsection (a)(3), however we parse the statutory language.
Although the parties strongly disagree on whether subsection (a)(3) is constitutional, they concur that the Appellate Division erred by rewriting the statute to impose a mens rea element almost identical to the one in subsection (a)(1). The Appellate Division, moreover, has performed not minor judicial surgery to save a statutory provision, but a judicial transplant. The Appellate Division has reconfigured subsection (a)(3) to read as a mirror image of subsection (a)(1). Rewriting the statute in that manner is not merely beyond our authority but is redundant and therefore serves no purpose. Moreover, a remand for a new trial on the basis of the newly constructed statute raises serious double jeopardy concerns because defendant was acquitted of the subsection (a)(1) charge. We have no option but to strike the constitutionally defective subsection (a)(3) of N.J.S.A. 2C:16-1.
B.
In summary, we conclude that because N.J.S.A. 2C:16-1(a)(3) fails to give adequate notice of conduct that it proscribes, the statute is unconstitutionally vague and violates notions of due process protected [856] by the Fourteenth Amendment. Defendant was convicted not based on what he was thinking but rather on his failure to appreciate what the victim was thinking. In light of our disposition, we need not address whether N.J.S.A. 2C:16-1(a)(3) is also violative of the First Amendment.
It bears emphasizing that the twin pillars of the bias-intimidation statute — subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16-1 — still stand. A defendant is prohibited from acting with the purpose to commit bias intimidation or with knowledge that his conduct constitutes bias intimidation. With the striking of subsection (a)(3), New Jersey's bias-intimidation law now conforms to its original form, the statute's explanatory statement contained in the legislative history, the laws of the rest of the nation, and the United States Constitution.
VIII.
For the reasons expressed, we reverse the judgment of the Appellate Division, which reconfigured N.J.S.A. 2C:16-1(a)(3) to impose a mens rea requirement. We hold that N.J.S.A. 2C:16-1(a)(3) is sufficiently vague that a person of reasonable intelligence cannot discern the dividing line between criminal and lawful behavior. A line that moves based on the victim's perceptions, however reasonable and perhaps mistaken, does not give adequate notice of what is prohibited and therefore violates the Due Process Clause of the Fourteenth Amendment. To rewrite the statute, as did the Appellate Division, exceeds the scope of our judicial authority. We therefore are constrained to dismiss the subsection (a)(3) bias-intimidation convictions. We also dismiss the misconduct-in-office conviction, which was premised on a finding of bias intimidation under N.J.S.A. 2C:16-1(a)(3).
We remand to the trial court for entry of judgment consistent with this opinion.
For reversal and remandment — Chief Justice RABNER and Justices LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON — 6
Not Participating — Judge CUFF (temporarily assigned).
Opposed — None.
[1] The trial court dismissed the hindering-apprehension counts with the consent of the State.
[2] For a more detailed discussion of the facts, see State v. Pomianek, 429 N.J.Super. 339, 58 A.3d 1205 (App.Div.2013).
[3] At trial, the State and defendant agreed that a finding of guilt of official misconduct required a finding that defendant had committed a predicate crime. As reflected on the jury verdict sheet, the jury found defendant guilty of official misconduct based on its determination that defendant committed the crimes of bias intimidation.
[4] The presumptive period of incarceration for a second-degree crime is between five and ten years. N.J.S.A. 2C:43-6(a)(2). The trial court exercised its discretion to impose a sentence one degree lower pursuant to N.J.S.A. 2C:44-1(f)(2).
[5] The Appellate Division did not address defendant's argument that N.J.S.A. 2C:16-1(a)(3) violates due process on vagueness grounds. Defendant maintained that tying a defendant's guilt to "the subjective feelings of the alleged victim" does not "`give fair notice of conduct that is forbidden,'" State v. Allen, 334 N.J.Super. 133, 137, 756 A.2d 1087 (Law Div.2000) (quoting State v. Lee, 96 N.J. 156, 165, 475 A.2d 31 (1984)).
[6] In light of our disposition of the first three issues, we need not address this fourth issue.
[7] N.J.S.A. 2C:33-4(d) was repealed and replaced by N.J.S.A. 2C:16-1.
[8] The State compares N.J.S.A. 2C:16-1(a)(3) to the stalking statute, N.J.S.A. 2C:12-10, which we addressed in State v. Gandhi, 201 N.J. 161, 989 A.2d 256 (2010). Unlike N.J.S.A. 2C:16-1(a)(3), the stalking statute has a mens rea component. The stalking statute provides that a defendant is guilty of a crime "if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress."
N.J.S.A. 2C:12-10(b) (emphasis added). In Gandhi, supra, we determined only that the Legislature did not intend by the statute's wording to impose a requirement on the prosecution to prove that the defendant purposefully or knowingly "cause[d] a reasonable victim to fear bodily injury or death." 201 N.J. at 187, 989 A.2d 256. Our task in Gandhi was statutory interpretation and not constitutional adjudication. Id. at 187-88, 989 A.2d 256.
7.2.8.3 III. Homicide 7.2.8.3 III. Homicide
7.2.8.3.1 III.A. Statutes 7.2.8.3.1 III.A. Statutes
7.2.8.3.1.1 CA Penal Code secs. 187 to 199 (2011) 7.2.8.3.1.1 CA Penal Code secs. 187 to 199 (2011)
CA Penal Code § 187
(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.
CA Penal Code § 188
Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.
CA Penal Code § 189
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
As used in this section, "destructive device" means any destructive device as defined in Section 16460, and explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.
As used in this section, "weapon of mass destruction" means any item defined in Section 11417.
To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
CA Penal Code § 189.5
(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.
(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.
CA Penal Code § 190
(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:
(1) The defendant specifically intended to kill the peace officer.
(2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.
(3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.
(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.
(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.
(e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.
CA Penal Code § 190.03
(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.
(b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.
(c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.
(d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.
CA Penal Code § 190.05
(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.
(b) A prior prison term for murder for purposes of this section includes either of the following:
(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.
(2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.
(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.
(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.
(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).
(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.
If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.
(g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.
(h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.
However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.
Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.
In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
(1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.
(2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
(3) The presence or absence of any prior felony conviction.
(4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.
(7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.
(8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.
(9) The age of the defendant at the time of the crime.
(10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.
(11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.
(i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
CA Penal Code § 190.1
A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:
(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.
(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.
(c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.
CA Penal Code § 190.2
(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.
(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.
(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.
(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.
(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.
(15) The defendant intentionally killed the victim by means of lying in wait.
(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.
(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:
(A) Robbery in violation of Section 211 or 212.5.
(B) Kidnapping in violation of Section 207, 209, or 209.5.
(C) Rape in violation of Section 261.
(D) Sodomy in violation of Section 286.
(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.
(F) Oral copulation in violation of Section 288a.
(G) Burglary in the first or second degree in violation of Section 460.
(H) Arson in violation of subdivision (b) of Section 451.
(I) Train wrecking in violation of Section 219.
(J) Mayhem in violation of Section 203.
(K) Rape by instrument in violation of Section 289.
(L) Carjacking, as defined in Section 215.
(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.
(18) The murder was intentional and involved the infliction of torture.
(19) The defendant intentionally killed the victim by the administration of poison.
(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.
(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.
(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.
(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.
(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.
(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.
The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.
CA Penal Code § 190.25
(a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.
(b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.
(c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.
CA Penal Code § 190.3
If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.
However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.
Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.
The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.
In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:
(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.
(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.
(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.
(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.
CA Penal Code § 190.4
(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.
In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.
If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.
If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.
In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.
(b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.
If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.
(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.
(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.
(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.
The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).
CA Penal Code § 190.41
Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.
CA Penal Code § 190.5
(a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.
(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.
(c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.
CA Penal Code § 190.6
(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.
(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.
(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.
(d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.
CA Penal Code § 190.7
(a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:
(1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.
(2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.
(b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.
CA Penal Code § 190.8
(a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.
(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.
(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.
Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.
(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.
(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.
(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.
(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.
(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.
(i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.
(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.
(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.
CA Penal Code § 190.9
(a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).
(2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.
(b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.
(2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.
(c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.
CA Penal Code § 191
The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.
CA Penal Code §191.5
(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.
(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.
(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.
(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.
CA Penal Code § 192
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary--upon a sudden quarrel or heat of passion.
(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(c) Vehicular--
(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.
This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
"Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
CA Penal Code § 192.5
Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:
(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.
CA Penal Code § 193
(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.
(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(c) Vehicular manslaughter is punishable as follows:
(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.
(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.
(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.
CA Penal Code § 193.5
Manslaughter committed during the operation of a vessel is punishable as follows:
(a) A violation of subdivision (a) of Section 192.5 is punishable by imprisonment in the state prison for 4, 6, or 10 years.
(b) A violation of subdivision (b) of Section 192.5 is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.
(c) A violation of subdivision (c) of Section 192.5 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.
(d) A violation of subdivision (d) of Section 192.5 is punishable by imprisonment in the county jail for not more than one year.
Penal Code § 193.7
A person convicted of a violation of subdivision (b) of Section 191.5 that occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code, or any combination thereof, that resulted in convictions, shall be designated as an habitual traffic offender subject to paragraph (3) of subdivision (e) of Section 14601.3 of the Vehicle Code, for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350 of the Vehicle Code.
Penal Code § 193.8
(a) An adult, who is the registered owner of a motor vehicle or in possession of a motor vehicle, shall not relinquish possession of the vehicle to a minor for the purpose of driving if the following conditions exist:
(1) The adult owner or person in possession of the vehicle knew or reasonably should have known that the minor was intoxicated at the time possession was relinquished.
(2) A petition was sustained or the minor was convicted of a violation of Section 23103 as specified in Section 23103.5, 23140, 23152, or 23153 of the Vehicle Code or a violation of Section 191.5 or subdivision (a) of Section 192.5.
(3) The minor does not otherwise have a lawful right to possession of the vehicle.
(b) The offense described in subdivision (a) shall not apply to commercial bailments, motor vehicle leases, or parking arrangements, whether or not for compensation, provided by hotels, motels, or food facilities for customers, guests, or other invitees thereof. For purposes of this subdivision, hotel and motel shall have the same meaning as in subdivision (b) of Section 25503.16 of the Business and Professions Code and food facility shall have the same meaning as in Section 113785 of the Health and Safety Code.
(c) If an adult is convicted of the offense described in subdivision (a), that person shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment. An adult convicted of the offense described in subdivision (a) shall not be subject to driver's license suspension or revocation or attendance at a licensed alcohol or drug education and counseling program for persons who drive under the influence.
CA Penal Code § 194
To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.
CA Penal Code § 195
Homicide is excusable in the following cases:
1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.
2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.
CA Penal Code § 196
Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--
1. In obedience to any judgment of a competent Court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.
CA Penal Code § 197
Homicide is also justifiable when committed by any person in any of the following cases:
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,
3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,
4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.
CA Penal Code § 198
A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.
CA Penal Code § 198.5
Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant or substantial physical injury.
CA Penal Code § 199
The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.
7.2.8.3.1.2 PA Consol. Statutes, Title 18 Chapter 25 7.2.8.3.1.2 PA Consol. Statutes, Title 18 Chapter 25
Enactment. Chapter 25 was added December 6, 1972, P.L.1482, No.334, effective in six months.
Cross References. Chapter 25 is referred to in sections 911, 2602 of this title; section 5432 of Title 20 (Decedents, Estates and Fiduciaries); sections 2511, 5329, 6344 of Title 23 (Domestic Relations); sections 5985.1, 6302 of Title 42 (Judiciary and Judicial Procedure).
§ 2501. Criminal homicide.
(a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.
(b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.
Cross References. Section 2501 is referred to in section 5708 of this title; section 4503 of Title 42 (Judiciary and Judicial Procedure).
§ 2502. Murder.
(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
(d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Fireman." Includes any employee or member of a municipal fire department or volunteer fire company.
"Hijacking." Any unlawful or unauthorized seizure or exercise of control, by force or violence or threat of force or violence.
"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.
"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
"Principal." A person who is the actor or perpetrator of the crime.
(Mar. 26, 1974, P.L.213, No.46, eff. imd.; Apr. 28, 1978, P.L.84, No.39, eff. 60 days)
Cross References. Section 2502 is referred to in sections 2507, 2602, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); section 5329 of Title 23 (Domestic Relations); sections 1515, 5551, 9711.1, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 6124, 7122 of Title 61 (Prisons and Parole).
§ 2503. Voluntary manslaughter.
(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed; or
(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.
(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.
(c) Grading.--Voluntary manslaughter is a felony of the first degree.
(Nov. 17, 1995, 1st Sp.Sess., P.L.1144, No.36, eff. 60 days)
1995 Amendment. Act 36, 1st Sp.Sess., amended subsec. (c).
Cross References. Section 2503 is referred to in sections 5708, 6105 of this title; sections 1515, 9711, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 7122 of Title 61 (Prisons and Parole).
§ 2504. Involuntary manslaughter.
(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.
(b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.
(July 6, 1995, P.L.251, No.31, eff. 60 days)
Cross References. Section 2504 is referred to in sections 2711, 6105 of this title; section 1611 of Title 75 (Vehicles).
§ 2505. Causing or aiding suicide.
(a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.
(b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.
§ 2506. Drug delivery resulting in death.
(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.
(b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.
(c) Proof of sentencing.--(Deleted by amendment).
(d) Authority of court in sentencing.--(Deleted by amendment).
(e) Appeal by Commonwealth.--(Deleted by amendment).
(f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.
(Dec. 22, 1989, P.L.773, No.109, eff. imd.; Feb. 18, 1998, P.L.102, No.19, eff. 60 days; July 7, 2011, P.L.220, No.40, eff. 60 days)
Cross References. Section 2506 is referred to in section 3308 of this title; section 9714 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103 of Title 61 (Prisons and Parole).
§ 2507. Criminal homicide of law enforcement officer.
(a) Murder of a law enforcement officer of the first degree.--A person commits murder of a law enforcement officer of the first degree who intentionally kills a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer.
(b) Murder of a law enforcement officer of the second degree.--A person commits murder of a law enforcement officer of the second degree who engages as a principal or an accomplice in the perpetration of a felony during which a law enforcement officer is killed while in the performance of duty.
(c) Manslaughter of a law enforcement officer in the first degree.--A person commits a felony in the first degree who does any of the following:
(1) Without lawful justification kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing:
(i) the person is acting under a sudden and intense passion resulting from serious provocation by the victim killed; or
(ii) the person is acting under a sudden and intense passion resulting from serious provocation by another individual whom the actor endeavors to kill, but the person negligently or accidentally causes the death of the victim.
(2) Intentionally or knowingly kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing the person believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 (relating to general principles of justification), but his belief is unreasonable.
(d) Manslaughter of a law enforcement officer in the second degree.--A person commits a felony of the second degree who, as a direct result of the doing of an unlawful or lawful act in a reckless or grossly negligent manner, causes the death of a law enforcement officer while in the performance of duty and the person knew or should have known the victim was a law enforcement officer.
(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
"Law enforcement officer." This term shall have the same meaning as the term "peace officer" is given under section 501 (relating to definitions).
"Perpetration of a felony." As defined under section 2502(d) (relating to murder).
(Oct. 17, 2008, P.L.1628, No.131, eff. 60 days)
2008 Amendment. Act 131 added section 2507.
Cross References. Section 2507 is referred to in section 9714 of Title 42 (Judiciary and Judicial Procedure).
7.2.8.3.1.3 NY Penal Law Article 125 7.2.8.3.1.3 NY Penal Law Article 125
§ 125.00 Homicide defined.
Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.
§ 125.05 Homicide, abortion and related offenses; definitions of terms.
The following definitions are applicable to this article:
1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.
2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.
3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.
§ 125.10 Criminally negligent homicide.
A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.
Criminally negligent homicide is a class E felony.
§ 125.11 Aggravated criminally negligent homicide.
A person is guilty of aggravated criminally negligent homicide when, with criminal negligence, he or she causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.
Aggravated criminally negligent homicide is a class C felony.
§ 125.12 Vehicular manslaughter in the second degree.
A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:
(1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or
(2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes the death of such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section.
Vehicular manslaughter in the second degree is a class D felony.
§ 125.13 Vehicular manslaughter in the first degree.
A person is guilty of vehicular manslaughter in the first degree when he or she commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:
(1) commits such crime while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crime while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in the state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;
(4) causes the death of more than one other person;
(5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or
(6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child. If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.
Vehicular manslaughter in the first degree is a class C felony.
§ 125.14 Aggravated vehicular homicide.
A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:
(1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;
(2) commits such crimes while knowing or having reason to know that:
(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;
(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;
(4) causes the death of more than one other person;
(5) causes the death of one person and the serious physical injury of At least one other person;
(6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or
(7) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.
If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.
Aggravated vehicular homicide is a class B felony.
§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.
§ 125.20 Manslaughter in the first degree.
A person is guilty of manslaughter in the first degree when:
1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or
2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or
3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.
Manslaughter in the first degree is a class B felony.
§ 125.21 Aggravated manslaughter in the second degree.
A person is guilty of aggravated manslaughter in the second degree when he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.
Aggravated manslaughter in the second degree is a class C felony.
§ 125.22 Aggravated manslaughter in the first degree.
A person is guilty of aggravated manslaughter in the first degree when:
1. with intent to cause serious physical injury to a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or a peace officer, he or she causes the death of such officer or another police officer or peace officer; or
2. with intent to cause the death of a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer, he or she causes the death of such officer or another police officer or peace officer under circumstances which do not constitute murder because he or she acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to aggravated manslaughter in the first degree or manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.
Aggravated manslaughter in the first degree is a class B felony.
§ 125.25 Murder in the second degree.
A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or
2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or
3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or
4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or
5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.
Murder in the second degree is a class A-I felony.
§ 125.26 Aggravated murder.
A person is guilty of aggravated murder when:
1. With intent to cause the death of another person, he or she causes the death of such person, or of a third person who was a person described in subparagraph (i), (ii) or (iii) of paragraph (a) of this subdivision engaged at the time of the killing in the course of performing his or her official duties; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or
(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; and (b) The defendant was more than eighteen years old at the time of the commission of the crime; or
2. (a) With intent to cause the death of a person less than fourteen years old, he or she causes the death of such person, and the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subdivision, "torture" means the intentional and depraved infliction of extreme physical pain that is separate and apart from the pain which otherwise would have been associated with such cause of death; and
(b) The defendant was more than eighteen years old at the time of the commission of the crime.
3. In any prosecution under subdivision one or two of this section, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the first degree, manslaughter in the first degree or any other crime except murder in the second degree; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the second degree, manslaughter in the second degree or any other crime except murder in the second degree.
Aggravated murder is a class A-I felony.
§ 125.27 Murder in the first degree.
A person is guilty of murder in the first degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person; and
(a) Either:
(i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or
(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or
(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or
(iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or
(v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph "immediate family member" means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or
(vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or
(vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or
(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or
(ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or
(x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or
(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or
(xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or
(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and
(b) The defendant was more than eighteen years old at the time of the commission of the crime.
2. In any prosecution under subdivision one, it is an affirmative defense that:
(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or
(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.
Murder in the first degree is a class A-I felony.
§ 125.40 Abortion in the second degree.
A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.
Abortion in the second degree is a class E felony.
§ 125.55 Self-abortion in the first degree.
A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.
Self-abortion in the first degree is a class A misdemeanor.
§ 125.60 Issuing abortional articles.
A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.
Issuing abortional articles is a class B misdemeanor.
7.2.8.3.1.4. Model Penal Code Article 210
7.2.8.3.2 III.B. Intentional Homicide 7.2.8.3.2 III.B. Intentional Homicide
7.2.8.3.2.1 III.B.i. First v. Second Degree Murder 7.2.8.3.2.1 III.B.i. First v. Second Degree Murder
There are many ways to murder someone. Over time, Anglo-American criminal systems have come to distinguish between degrees of murder. With such a weighty crime and potentially serious punishments, the instinct to subdivide the offense according to degrees of blameworthiness seems like a reasonable way to accommodate the “proportionality principle”—the idea that crimes of different levels of blameworthiness should be treated differently. The best-known distinction between types of murder is between first- and second-degree murder. The line between first- and second-degree murder is supposedly clear: premeditation. As the cases in this section suggest, however, defining premeditation can be difficult, and courts have taken different approaches. As you read these cases, consider also how the distinction between first- and second-degree murder serves the goals of criminal punishment. Which is more blameworthy, and thus more deserving of punishment as a matter of retribution? Who is more dangerous, and should be incapacitated longer, or permanently? Who can be deterred—and who can’t?
7.2.8.3.2.1.1 Commonwealth v. Carroll 7.2.8.3.2.1.1 Commonwealth v. Carroll
v.
Donald D. CARROLL, Jr., Appellant.
[412 Pa. 527] [194 A.2d 913] M. Barney Cohen, Harold Gondelman, Pittsburgh, for appellant.
Edward C. Boyle, Dist. Atty., George Ross, William Claney Smith, Asst. Dist. Attys., Pittsburgh, for appellee.
[412 Pa. 526] Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
[412 Pa. 527] BELL, Chief Justice.
The defendant, Carroll, pleaded guilty generally to an indictment charging him with the murder of his wife, and was tried by a Judge without a jury in the Court of Oyer and Terminer of Allegheny County. That Court found him guilty of first degree murder and sentenced him to life imprisonment. Following argument and denial of motions in arrest of judgment and for a new trial, defendant took this appeal. The only questions involved are thus stated by the appellant:
(1) 'Does not the evidence sustain a conviction no higher than murder in the second degree?
(2) 'Does not the evidence of defendant's good character, together with the testimony of medical experts, including the psychiatrist for the Behavior Clinic of Allegheny County, that the homicide was not premeditated or intentional, require[1] the Court below [412 Pa. 528] to fix the degree of guilt of defendant no higher than murder in the second degree?'
The defendant married the deceased in 1955, when he was serving in the Army in California. Subsequently he was stationed in Alabama, and later in Greenland. During the latter tour of duty, defendant's wife and two children lived with his parents in New Jersey. Because this arrangement proved incompatible, defendant returned to the United States on emergency leave in order to move his family to their own quarters. On his wife's insistence, defendant was forced first to secure a 'compassionate transfer' back to the States, and subsequently to resign from the Army in July of 1960, by which time he had attained the rank of Chief Warrant Officer. Defendant was a hard worker, earned a substantial salary and bore a very good reputation among his neighbors.
In 1958, decedent-wife suffered a fractured skull while attempting to leave defendant's car in the course of an argument. Allegedly this contributed to her mental disorder which was later diagnosed as a schizoid personality type. In 1959 she underwent psychiatric treatment at the Mental Hygiene Clinic in Aberdeen, Maryland. She complained of nervousness and told the examining doctor 'I feel like hurting my children.' This sentiment sometimes took the form of sadistic 'discipline' toward their very young children. Nevertheless, upon her discharge from the Clinic, the doctors considered her much improved. With this background we come to the immediate events of the crime.
In January, 1962, defendant was selected to attend an electronics school in Winston-Salem, North Carolina, for nine days. His wife greeted this news with violent argument. Immediately prior to his departure for Winston-Salem, at the suggestion and request of his wife, he put a loaded .22 calibre pistol on the [412 Pa. 529] window sill at the head of their common bed, so that she would feel safe. On the evening of January 16, 1962, defendant returned home and told his wife that he had been temporarily assigned to teach at a school in Chambersburg, which would necessitate his absence from home four nights out of seven for a ten [194 A.2d 914] week period. A violent and protracted argument ensued at the dinner table and continued until four o'clock in the morning.
Defendant's own statement after his arrest details the final moments before the crime: 'We went into the bedroom a little before 3 o'clock on Wednesday morning where we continued to argue in short bursts. Generally she laid with her back to me facing the wall in bed and would just talk over her shoulder to me. I became angry and more angry especially what she was saying about my kids and myself, and sometime between 3 and 4 o'clock in the morning I remembered the gun on the window sill over my head. I think she had dozed off. I reached up and grabbed the pistol and brought it down and shot her twice in the back of the head.'[2]
Defendant's testimony at the trial elaborated this theme. He started to think about the children, 'seeing my older son's feet what happened to them. I could see the bruises on him and Michael's chin was split open, four stitches. I didn't know what to do. I wanted to help my boys. Sometime in there she said something in there, she called me some kind of name. I kept thinking of this. During this time I either thought or felt--I thought of the gun, just thought of the gun. I am not sure whether I felt my hand move toward the gun--I saw my hand move, the next thing--the only thing I can recollect after that is right after [412 Pa. 530] the shots or right during the shots I saw the gun in my hand just pointed at my wife's head. She was still lying on her back--I mean her side. I could smell the gunpowder and I could hear something--it sounded like running water. I didn't know what it was at first, didn't realize what I'd done at first. Then I smelled it. I smelled blood before. * * *'
'Q. At the time you shot her, Donald, were you fully aware and intend to do what you did?
'A. I don't know positively. All I remember hearing was two shots and feeling myself go cold all of a sudden.'
Shortly thereafter defendant wrapped his wife's body in a blanket, spread and sheets, tied them on with a piece of plastic clothesline and took her down to the cellar. He tried to clean up as well as he could. That night he took his wife's body, wrapped in a blanket with a rug over it to a desolate place near a trash dump. He then took the children to his parents' home in Magnolia, New Jersey. He was arrested the next Monday in Chambersburg where he had gone to his teaching assignment.
Although defendant's brief is voluminous, the narrow and only questions which he raises on this appeal are as hereinbefore quoted. Both are embodied in his contention that the crime amounted only to second degree murder and that his conviction should therefore be reduced to second degree or that a new trial should be granted.
The applicable principles of law are well settled, but because they are so frequently misunderstood or misapplied or overlooked, we deem it wise to restate them. Many of them are set forth and reaffirmed in Commonwealth v. Gooslin, 410 Pa. 285, pages 286, 288, 289, 189 A.2d 157, 158, where the Court said:
'* * * 'Murder in Pennsylvania was first authoritatively defined in the famous case of Commonwealth v. Drum, 58 Pa. 9, 15. 'Murder', * * * 'is defined as an [412 Pa. 531] unlawful killing of another with malice aforethought, express or implied.' The legislature divided murder into two classifications, murder in the first degree and murder in the second degree; and provided that (1) all murder perpetrated by poison or lying in wait; or by any other kind of wilful, deliberate [and] premeditated killing, or any murder which shall be [194 A.2d 915] committed in the perpetration of or attempt to perpetrate certain specified felonies [arson, rape, robbery, burglary, or kidnapping],[3] is murder in the first degree and (2) every other kind of murder is murder in the second degree: Act of 1939, June 24, supra.[4]
"Malice express or implied is [the hallmark] the criterion and absolutely essential ingredient of murder. Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Legal malice may be inferred and found from the attending circumstances. [Malice is present if the defendant had an intent to do the deceased serious bodily harm: Commonwealth v. Drum, supra; Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125]. * * *
"'The test of the sufficiency of the evidence--irrespective of whether it is direct or circumstantial--is whether accepting as true all the evidence upon which, if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime charged, * * *. [citing numerous authorities].
"'* * * 'It has become customary for a defendant in his argument before an Appellate Court to base his claims and contentions upon his own testimony or that [412 Pa. 532] of his witnesses even after a jury has found him guilty. This, of course, is basic error. After a plea or verdict of guilty, 'we accept as true all of the Commonwealth's evidence upon which, if believed, the jury could have properly based its verdict. [citing numerous authorities].''"'
'In Commonwealth v. Kravitz, 400 Pa. 198, page 208, 161 A.2d 861, page 865, the Court said: "'* * * Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. '* * * It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt. [citing numerous authorities].'""
In Commonwealth v. Tyrrell, 405 Pa. 210, pages 212-213, 174 A.2d 852, 853, the Court said: 'The essential difference in a non-felony murder-killing between murder in the first degree and murder in the second degree is that murder in the first degree requires a specific intent to take the life of another human being. Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Dorazio, 365 Pa. [291, 74 A.2d 125] supra; Commonwealth v. Malone, 354 Pa. [180, 47 A.2d 445] supra; Commonwealth v. Chapman, 359 Pa. 164, 58 A.2d 433; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317; Commonwealth v. Iacobino, 319 Pa. 65, 178 A. 823.'
The specific intent to kill which is necessary to constitute in a nonfelony murder, murder in the first degree, may be found from a defendant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom, and may be inferred from the intentional use of a deadly weapon on a vital part of the body of another human being: Commonwealth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth [412 Pa. 533] v. Moore, 398 Pa. 198, 157 A.2d 65; Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287; Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317.
[194 A.2d 916] It is well settled that a jury or a trial Court can believe all or a part of or none of a defendant's statements, confessions or testimony, or the testimony of any witness: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728; Commonwalth v. Tyrrell, 405 Pa. 210, 174 A.2d 852, supra; Commonwealth v. Ballem, 386 Pa. 20, 123 A.2d 728 supra; Commonwealth v. Donough, 377 Pa. 46, 50, 103 A.2d 694; Commonwealth v. Homeyer, 373 Pa. 150, 153, 94 A.2d 743; Commonwealth v. Phillips, 372 Pa. 223, 93 A.2d 455; Commonwealth v. Shults, 221 Pa. 466, 70 A. 823.
It we consider only the evidence which is favorable to the Commonwealth, it is without the slightest doubt sufficient in law to prove first degree. However, even if we believe all of defendant's statements and testimony, there is no doubt that this killing constituted murder in the first degree. Defendant first urges that there was insufficient time for premeditation in the light of his good reputation. This is based on an isolated and oft repeated statement in Commonwealth v. Drum, 58 Pa. 9, 16, that "no time is too short for a wicked man to frame in his mind the scheme of murder." Defendant argues that, conversely, a long time is necessary to find premeditation in a 'good man.' We find no merit in defendant's analogy or contention. As Chief Justice MAXEY appropriately and correctly said in Commonwealth v. Earnest, 342 Pa. 544, pages 549-550, 21 A.2d 38, page 40: 'Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, wilful, deliberate and premeditated. * * * As Justice Agnew said in Com. v. Drum: 'The law fixes upon [412 Pa. 534] no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.''
Defendant further contends that the time and place of the crime, the enormous difficulty of removing and concealing the body, and the obvious lack of an escape plan, militate against and make a finding of premeditation legally impossible. This is a 'jury argument'; it is clear as crystal that such circumstances do not negate premeditation. This contention of defendant is likewise clearly devoid of merit.
Defendant's most earnestly pressed contention is that the psychiatrist's opinion of what defendant's state of mind must have been and was at the time of the crime, clearly establishes not only the lack but also the legal impossibility of premeditation. Dr. Davis, a psychiatrist of the Allegheny County Behavior Clinic, testified that defendant was 'for a number of years * * * passively going along with a situation which he * * * [was] not controlling and he * * * [was] not making any decisions, and finally a decision * * * [was] forced on him * * *. He had left the military to take this assignment, and he was averaging about nine thousand a year; he had a good job. He knew that if he didn't accept this teaching assignment in all probability he would be dismissed from the Government service, and at his age and his special training he didn't know whether he would be able to find employment. More critical to that was the fact that at this point, as we understand it, his wife issued an ultimatum that if he went and gave this training course she would leave him * * *. He was so dependent upon her he didn't want her to leave. He couldn't make up his mind what to do. He was trapped * * *.'
The doctor then gave his opinion that 'rage', 'desperation', and 'panic' produced 'an impulsive automatic [412 Pa. 535] reflex type of homicide, * * * as opposed to an intentional premeditated type of homicide. * * * Our feeling was that if this gun had fallen to the floor he wouldn't have been able to pick it up and consummate that homicide. And I think if he had to load the [194 A.2d 917] gun he wouldn't have done it. This is a matter of opinion, but this is our opinion about it.'
There are three answers to this contention. First, as we have hereinbefore stated, neither a Judge nor a jury has to believe all or any part of the testimony of the defendant or of any witness. Secondly, the opinion of the psychiatrists was based to a large extent upon statements made to them by the defendant, which need not be believed and which are in some instances opposed by the facts themselves. Thirdly, a psychiatrist's opinion of a defendant's impulse or lack of intent or state of mind is, in this class of case, entitled to very little weight, and this is especially so when defendant's own actions, or his testimony or confession, or the facts themselves, belie the opinion.
The rule regarding the weight of expert testimony in this class of case is well settled. '* * * '[E]xpert testimony is entitled to little weight as against positive facts. Expert medical opinions are especially entitled to little or no weight when based upon insufficient or (partly) erroneous facts or a feigned state of mind or an inaccurate past history, or upon unreasonable deductions, * * *.' [Commonwealth v. Gossard, 385 Pa. 312, 123 A.2d 258; Commonwealth v. Patskin, 375 Pa. 368, 375, 100 A.2d 472]' Commonwealth v. Jordan, 407 Pa. 575, 583, 181 A.2d 310, 314.
In Commonwealth v. Woodhouse, 401 Pa. 242, 164 A.2d 98, we held that the jury was free to disregard expert psychiatric testimony that defendant was insane at the time of commission of the killing,--which would have acquitted the defendant under the M'Naghten Rule--in the face of testimony by lay witnesses [412 Pa. 536] who actually observed him and considered him to be sane at times when he was allegedly insane. Mr. Justice EAGEN, speaking for the Court, said (pages 259-260 of 401 Pa., page 107 of 164 A.2d): '* * * '* * * It must be kept in mind that an opinion is only an opinion. It creates no fact. Because of this, opinion evidence is considered of a low grade and not entitled to much weight against positive testimony of actual facts such as statements by the defendant and observations of his actions.'' See to the same effect: Commonwealth v. Melton, 406 Pa. 343, 178 A.2d 728, supra; Commonwealth v. Heller, 369 Pa. 457, 87 A.2d 287, supra.
Defendant's own statement after his arrest, upon which his counsel so strongly relies, as well as his testimony at his trial, clearly convict him of first degree murder and justify the finding and sentence of the Court below. Defendant himself described his actions at the time he killed his wife. From his own statements and from his own testimony, it is clear that, terribly provoked by his allegedly nagging, belligerent and sadistic wife,[5] defendant remembered the gun, deliberately took it down, and deliberately fired two shots into the head of his sleeping wife. There is no doubt that this was a wilful, deliberate and premeditated murder.
While defendant makes no contention that he was insane at the commission of the murder or at any time, what this Court said in Commonwealth v. Tyrrell, supra, 405 Pa. 210, pages 220-221, 174 A.2d 852, pages 856-857[6] is equally appropriate here:
'Defendant's psychiatrist did not testify that the defendant was insane. What he did say was that because defendant's wife frequently picked on him and just before the killing insulted or goaded him, defendant [412 Pa. 537] had an emotional impulse to kill her which he could not resist.
'* * * society would be almost completely unprotected from criminals if the [194 A.2d 918] law permitted a blind or irresistible impulse or inability to control one's self, to excuse or justify a murder or to reduce it from first degree to second degree. In the times in which we are living, nearly every normal adult human being has moments or hours or days or longer periods when he or she is depressed and disturbed with resultant emotional upset feelings and so-called blind impulses; and the young especially have many uncontrolled emotions every day which are euphemistically called irresistible impulses. The Courts of Justice should not abdicate their function and duty of determining criminal responsibility to the psychiatrist. In such event, the test will differ not only with each psychiatrist but also with the prevailing psychiatric winds of the moment. "* * * Only a short time ago that concept [of irresistible impulse] was emphatically presented as an example of the 'uniform' opinion of psychiatrists on criminal responsibility; and yet today, 'irresistible impulse' is rejected by most psychiatrists as unsound * * *' [Professor] Hall, 'Psychiatry and Criminal Responsibility,' 65 Yale L.J. 761, 762 (1956).' State of New Jersey v. Lucas, 30 N.J. 37, 152 A.2d 50, 68.'
Just as the Courts cannot abdicate to the psychiatrists the task of determining criminal responsibility in law, so also they cannot remit to psychiatrists the right to determine the intent or the state of mind of an accused at the time of the commission of a homicide.
Since this is a case of murder, we have carefully reviewed the record.[7] It is crystal clear, from the record, [412 Pa. 538] that defendant was justifiably convicted of murder in the first degree.
Judgment and sentence affirmed.
JONES and COHEN, JJ., concur in the result.
---------------
[1] Italics throughout, ours.
[2] When pressed on cross-examination defendant approximated that five minutes elapsed between his wife's last remark and the shooting.
[3] Also where death results from the malicious wrecking of a train. Act of June 24, 1939, P.L. 872, § 919, 18 P.S. § 4919.
[4] P.L. 872, as amended, § 701, 18 P.S. § 4701.
[5] While this picture of his wife is different from that depicted by her neighbors, if defendant's version is true, the remedy lies in a commutation by the Board of Pardons and not by a disregard of the law by the Courts.
[6] In the body of the Opinion and in the footnote.
[7] As required by the Act of February 15, 1870, P.L. 15, 19 P.S. § 1187.
7.2.8.3.2.1.2 State. v. Guthrie 7.2.8.3.2.1.2 State. v. Guthrie
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Dale Edward GUTHRIE, Defendant Below, Appellant.
Supreme Court of Appeals of West Virginia.
[171] Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.
Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. [164] [165] [166] [167] [168] [169]
[170] CLECKLEY, Justice:
The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.
I. FACTS AND PROCEDURAL BACKGROUND
It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.
The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.[1] The police officers [172] described him as calm and willing to cooperate.
It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.
The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.
In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.
A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.
It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.
II. DISCUSSION
In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below. [173]
A. Sufficiency of the Evidence
First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.
We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:
"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."
A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),[2] articulated, at least linguistically, a different standard of review under the United States Constitution.[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).
After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.[5] This standard is a strict one; a [174] defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.
Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:
"[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."
State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).
However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:
"The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....
"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).
The circumstantial evidence rule of Holland was reaffirmed in Jackson:
"Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).
Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 [175] N.E.2d 492, 502 (1991),[6] relying on the language in Holland, the Ohio court stated:
"Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."
These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.[8]
In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, [176] regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.
We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.
There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.[11]
The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.
After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations [177] in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.
B. Jury Instructions
The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."
The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.
1. Standard of Review
The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):
"The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion."
Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken [178] as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.
2. Adequacy of Jury Instructions as to the Elements of First Degree Murder
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.[17]
The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"[18] In its effort to define these terms, the trial court gave three instructions.[19] State's Instruction No. 8, commonly referred to as the Clifford instruction, stated:
"The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."
See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:
[179] "The Court instructs the jury that in order to constitute a `premeditated' murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).
The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.
At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an `arbitrary symbol' used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute.[21]
The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).
In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:
"`The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.'" (Emphasis added to last sentence).
In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to [180] the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:
"The terms `deliberate' and `premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law§ 73, at 563 (1972 ed.):"`To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.' (Footnotes omitted)
"But, as LaFave & Scott also point out: `The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.
Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:
"Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.
This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.
The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:
"Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of `premeditated' as used in the statute was essentially `knowing' and `intentional.' Since then, courts have consistently recognized that the mental process necessary to constitute `willful, deliberate and premeditated' murder can be accomplished very quickly or even in the proverbial `twinkling of an eye.' ... The achievement of a, mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language `willful, deliberate and premeditated' in W.Va. Code, 61-2-1 [1923] is that the killing be intentional" 172 W.Va. at 6, 302 S.E.2d at 75. (Emphasis added).
The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.
While many jurisdictions do not favor the distinction between first and second degree murder,[22] given the doctrine of separation of [181] powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law—a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.
Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder`s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:
"To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."
Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what [182] is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]
We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:
"Remaining true to an `intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation `special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).
Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.
Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:
"A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions§ 41.03, at 214, is:"`The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he [183] intended, is sufficient to support a conviction for first degree murder.'"
Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.
As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.
C. Misconduct of the Prosecuting Attorney
We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.[25]See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).
1. Disclosing the Possible Penalties
During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.
The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.
Both parties to this appeal seem to acknowledge that our cases are not entirely [184] consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:
"[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."
The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.[26]See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).
The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).[27]
[185] Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.[28]
We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:
"In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct.The same cannot be said with reference to the court's treatment of the Prosecutor's remark:"`When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.'"
159 W.Va. at 362, 222 S.E.2d at 306.
The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.
Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."
It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.
2. Questions Relating to the Defendant's Prejudices
During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with [186] the women on the jury and the one African-American juror.
The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.[31] Nevertheless, a curative instruction was not requested by either party and none was given.
Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility [187] of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.
Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:
"Although Mr. Perrill referred to Dr. Arrieta as `the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. `To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."
The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.[32]
Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.
The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.[34] This issue is in this case only because [188] the prosecution chose not to object to the inadmissible evidence.[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.
The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:
"In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."[36] (Footnote omitted).
We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.
The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.
Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance [189] in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:
"We have defined undue prejudice as `"a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.'"...
"... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).
The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).[37]
Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.
Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.
To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. [190] Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S., 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors—race, religion, gender, political ideology—when prohibited by our laws shall not play any role in our system of criminal justice.
3. Harmless Error Standard
Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.
The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.
In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an [191] improper statement that the defendant was guilty and urged the jury to "do its job").
Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.
In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.
However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.[42] The defendant [192] argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:
"`When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."
See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:
"`Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."
III. CONCLUSION
In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.[45]
Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.
Reversed and remanded.
[193] BROTHERTON and RECHT, JJ., did not participate.
MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.
WORKMAN, J., concurs and reserves the right to file a concurring opinion.
WORKMAN, Justice, concurring:
I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.
I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection[2] and contemplation.[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).
For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:
"`"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."`"
169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."
Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, [194] lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).
[1] The confession, which was read to the jury, stated, in part:
"I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's `Boy' and during the evening he referred to me as `Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said `that I had an "attitude problem."` It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."
[2] Rehearing denied by 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).
[3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins, ___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).
While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
[4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).
[5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.
[6] Rehearing denied by 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991).
[7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).
[8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So.2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); People v. Johnson, 146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).
[9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.
[10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
[11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.
[12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).
[13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."
[14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:
"`When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."
[15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and `there is no presumption that they are familiar with the law.'" State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).
[16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.
[17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.
[18] As to the other offenses, the jury instruction stated:
"[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."
[19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."
[20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).
[21] W.Va.Code, 61-2-1, states, in part:
"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."
[22] The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.
[23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."
[24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activity—facts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.
[25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
[26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).
[27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995).
[28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.
[29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.
[30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:
"Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?
"A. No.
"Q. You never heard him say that, never heard him comment on that?
"A. No.
"Q. Did you ever hear him comment that whites are better than blacks?
"MR. CLINE: Objection, Your Honor. Move to approach the bench.
"A. No, he did not.
"THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.
* * * * * *
"(Conference at the bench)
"MR. BROWN: This is the psychological report.
"THE COURT: Is this Smith's report?
"MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and—
"THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.
* * * * * *
"MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.
"THE COURT: I'll let you get it in through Smith.
* * * * * *
"... You can ask him if he ever talked about blacks, talked about—Knock it off there.
* * * * * *
"... Yes, you can bring back Smith and Gibson.
"MR. CLINE: Note our objection and exception for the record.
"MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's—
* * * * * *
"(In open court)
"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?
"A. Not discussions, no.
"Q. Did you ever hear him express views on the Klu [sic] Klux Klan?
"A. From the news that he has heard on TV.
"Q. Did you ever hear him express any opinion about Hitler?
"A. No."
[31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).
[32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).
[33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.
[34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."
[35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."
[36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.
[37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).
[38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985).
[39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
[40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-67 (1946):
"If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."
[41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.
"It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).
[42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:
"MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, `Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.
"THE COURT: I think he said, `Isn't that too bad. Do you think it will snow', or something like that.
* * * * * *
"MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.
"MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much—
"THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."
Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.
[43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.
[44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).
[45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as `the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).
[1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.
[2] The word "reflect" is defined by Webster's as "to think quietly and calmly."
[3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention."
7.2.8.3.2.1.3 State v. Brown 7.2.8.3.2.1.3 State v. Brown
STATE of Tennessee, Appellee,
v.
Mack Edward BROWN, Appellant.
Supreme Court of Tennessee, at Knoxville.
[533] Randall E. Reagan, Leslie A. Nassios, Knoxville, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, James W. Milam, Asst. Atty. Gen., Nashville, for appellee.
OPINION
DAUGHTREY, Justice.
This capital case arose from the death of four-year-old Eddie Eugene Brown and the subsequent conviction of his father for first-degree murder, as well as for child neglect.[1] After careful review, we have reached the conclusion that the evidence introduced at trial is not sufficient to support a conviction for first-degree murder. We therefore hold that the defendant's conviction must be reduced to second-degree murder.
1. Factual Background
The victim in this case, Eddie Eugene Brown, was born in early February 1982, the son of defendant Mack Edward Brown and his co-defendant, Evajean Bell Brown, who were not living together at the time of Eddie's birth and were later divorced. Evajean was not able to nurse Eddie immediately after his birth because she was hospitalized with hypotoxemia.
According to his pediatrician, this hospitalization and inability to nurse may have contributed to Eddie's being, as the doctor described him, a "failure to thrive baby." When the physician first saw Eddie on March 17, 1982, at a little more than five weeks old, the infant was in good health but smaller than the median for his age. Mack and Evajean were still separated at that time, and relations between them eventually worsened to the point that Evajean asked the pediatrician to change Eddie's name on his records to Justin Michael Brown. Because Eddie had not begun to talk by age two-and-a-half, he was referred to the University of Tennessee Speech and Hearing Clinic. The clinic's report indicates that by age three years and four months, he was not yet toilet-trained and could speak single words, but not whole sentences. Evajean brought Eddie to see his pediatrician on November 5, 1984, because, as the doctor testified, she said he had fallen down fifteen carpeted stairs the night before. Although the physician found no injuries consistent with such a fall, he did note that Eddie's penis was red, swollen, and tender to the touch. His medical records do not give a reason for this condition. Eddie's last visit to his pediatrician's office was on October 16, 1985, [534] with his mother and father, who by that time had reconciled.
According to a Department of Human Services social worker who had investigated the Brown home, Eddie was a hyperactive child with a severe speech problem. She reported that he also had severe emotional and behavioral problems. As an example of his behavior, she reported that during her visit, he ran down the hall directly into a wall.
Defendant Mack Brown's relationship with Evajean Brown appears to have been influenced by his dependent personality, a condition confirmed by the diagnoses of the staff of the Middle Tennessee Mental Health Institute and the Helen Ross McNabb Center. In describing Mack and Evajean's relationship, Mack's mother stated that he appeared to do everything Evajean wanted him to do and that he seemed to be afraid of her. A witness who visited them when Eddie was taken to the hospital on April 10, 1986, indicated that they sat close to one another holding hands and that whenever Evajean got up, he followed her. Mack's mother testified that they remarried in the summer of 1985.
Mack had been living with his wife and his son for less than a year when Eddie died. The Brown's next-door neighbor testified that, at around 3:40 a.m. on April 10, 1986, she heard yelling and screaming in their apartment. She distinctly heard a man's voice say, "Shut up. Get your ass over here. Sit down. Shut up. I know what I'm doing." She also heard a woman's voice say, "Stop, don't do that. Leave me alone. Stop don't do that." She testified that the fight went on for 30 minutes and that she heard a sound which she described as a "thump, like something heavy hit the wall." The only other evidence introduced concerning the events of that morning was the tape of Evajean's call for an ambulance. At 8:59 a.m. she telephoned for help for her son, stating that he "fell down some steps and he's not breathing."
The paramedics who answered the call tried to revive Eddie but were unsuccessful. His heartbeat was reestablished at the hospital, but as it turned out, he was already clinically brain-dead. One of the treating nurses later testified that at that point, Eddie was being kept alive only for purposes of potential organ donation.
Various examinations indicated that the child had suffered two, and possibly three, skull fractures. The CT scan revealed a hairline fracture in the front right temporal portion of his skull, as well as a blood clot and swelling in that area of the head. The scan also revealed the possibility of a second fracture in the middle of the frontal bone.[2] Finally, blood coming from Eddie's ear indicated that he had a fracture at the base of his skull which had caused an injury to the middle ear. Although no basiliar skull fracture appeared on the X-rays or CT scan of Eddie's skull, expert testimony established that such fractures generally are not revealed in these ways.
The CT scan showed a cerebral edema, or swelling of the brain, which was more pronounced on the right side of the brain than the left, and which had shifted the midline of Eddie's brain toward the left. The pathologist who performed the autopsy noted the presence of vomit in Eddie's lungs and explained that swelling in the brain can cause vomiting. He theorized that repeated blows to Eddie's head caused cerebral hemorrhages and swelling. According to the expert, this pressure in the skull resulted in Eddie's aspiration of his own vomit and his ultimate death. He testified further that the swelling process could have taken as long as four or five hours to a day, or as little as 15 minutes.[3]
A neurological surgeon testified that Eddie's brain injuries were, at least in part, [535] consistent with contrecoup[4] injuries, which occur when the head is violently shaken back and forth. The surgeon explained that there is a limited amount of fluid between the brain and the skull. That fluid generally serves as a shock absorber, but when the skull and brain are moving at a sufficient velocity and the skull suddenly stops, the fluid is not an adequate buffer between the delicate brain tissue and the hard skull surface. As he described this phenomenon at trial, "when the skull stops the brain slaps up against it," resulting in severe bruising and swelling of the brain.
In addition to his cranial and cerebral injuries, Eddie had several internal injuries. When Eddie's internal organs were removed for donation, the county medical examiner observed hemorrhaging in the duodenum section of his intestine. He testified that such localized hemorrhaging was consistent with a blow by a fist to the upper portion of the abdomen. Additionally, blood was found in the child's stool and urine, and his liver enzymes were elevated. There was testimony to the effect that these conditions may have resulted from cardiac arrest, but that they are also consistent with blows to the abdomen, liver, and kidneys.
Finally, Eddie had bruises of varying ages on his face, scalp, ears, neck, chest, hips, legs, arms, buttocks, and scrotum. He had a large abrasion on his shoulder, scratches on his neck and face, and a round, partially healed wound on his big toe which, according to one of his treating nurses, was consistent with a cigarette burn.[5] He had lacerations on both his ears at the scalp. He had linear bruises consistent with being struck with a straight object. The autopsy revealed an old lesion at the base of his brain which was evidence of a head injury at least two weeks before his death. X-rays revealed a broken arm which had not been treated and which had occurred three to five weeks before his death. The injury to his arm was confirmed by a witness who had noticed his arm hanging limply and then later noticed it in a homemade sling.
The defendant's statement to the police verified the fact that Eddie's broken arm was never properly treated, but Mack Brown also told them that he had tried to help Eddie by making a splint for his arm himself. He explained that he did not take Eddie for medical treatment because he was terrified that no one would believe that he and his wife had not inflicted this injury on the child. He could not explain the old bruises on Eddie's body. He stated that although sometimes they disciplined Eddie by spanking him, they did attempt to discipline him in, as he described it, "alternative ways" such as sending him to his room to let him know that they were upset and wanted him to mind.
Brown's statement indicates that around two or three o'clock on the morning of April 10, 1986, he and his wife both spanked Eddie because Eddie had urinated and defecated on the floor. The defendant admitted to another spanking, after he had sent Eddie to bed, and after he and his wife had a fight over money. As the defendant described it, it was during this spanking that his "mood began to kind of snap and let go." He said that he remembered going to Eddie's bedroom and remembered ordering Evajean out of the room. Although he denied remembering anything other than spanking Eddie's bottom with the open part of his hand, he stated that he was afraid he had beaten Eddie during the time that everything "went blank." The only thing he clearly recalled before that point was Eddie "staring at [him] mean" and saying, "I hate you! I hate you!" He stated that his next memory was of going downstairs and hearing Eddie behind him, falling onto the landing and into the door.
When the police questioned the defendant, his right hand was badly swollen. He explained that several days prior to [536] April 10, he had injured his hand while working on his car and had sought medical treatment at Fort Sanders Hospital. They put a splint on his hand and gave him pain medication. He denied having struck Eddie with his right hand, stating that "[i]t hurts so bad there ain't no way." The hospital's records indicate that on April 3, the defendant's hand was x-rayed and splinted. The records do not indicate that there was any break in the skin on the hand.
With the consent of the defendant, the police searched the apartment and recovered numerous items stained with blood consistent with Eddie's blood type, including an adult pajama top, a brown paper bag from the living room floor, and several towels and wash cloths. Police also found a bandage under the kitchen sink which was stained with blood consistent with Eddie's blood type. The blood on this bandage material was on the outside near the adhesive tape, not on the inner surface, which would have been next to the skin of the person wearing the bandage. The pants the defendant was wearing at the time of his arrest also had blood stains on them that were consistent with Eddie's blood type. A number of other items collected from the apartment tested positive for human blood, but the type of blood could not be determined because there was too little blood or they had been washed. These items included the couch cover, a pillow case and sheets taken from Eddie's bed, paint chips from the wall in Eddie's room, a child's undershirt and socks, and a three-by-five inch section of the living room rug.
The defendant's low level of intellectual functioning has been evident in nearly every phase of his life. His mother's testimony indicated that, as a baby, he was slow in learning to walk, a condition she blamed on head injuries he might have sustained when he was delivered using forceps. At age 12, he was considered by school officials to be educably mentally retarded. His school records for 1964 indicate an IQ of 55, using a Lorge-Thorndike test. In 1966, while 14 years old and still in the third grade, he was tested again. His verbal score was 56 and his non-verbal score was 75, for a total score of 62. In 1968, his verbal score was 53 and his non-verbal score was 76, for a total score of 60. After his arrest, he was evaluated at Middle Tennessee Mental Health Institute and scored 75 on the Wexler Adult Intelligence Test. Because there was some evidence that the defendant might be malingering, the clinical psychologist who performed the test at MTMHI testified that he felt that the test results did not reflect the defendant's true abilities and suggested that a rough estimate of his capabilities might be five to ten points higher.[6]
The defendant also has a documented history of mental and emotional problems. On a neighbor's recommendation, he sought help through the Helen Ross McNabb Center between the time of his divorce and his remarriage. The staff there diagnosed him as having recurrent major depression and a dependent personality, a condition characterized by inadequacy in decision-making and a tendency to allow another person to accept the major responsibilities for his life. At that time, he showed symptoms such as crying, appetite loss, sleep problems and numbness, tingling and headaches, among other things. He had made suicidal gestures but never a serious attempt on his own life.
After his arrest he was placed at the Middle Tennessee Mental Health Institute for observation from June 10 through July 29, 1986. While there he was diagnosed as having a dysthymic disorder, that is, a depressive neurosis, and a dependent personality. Experts at MTMHI concluded that he was not psychotic and that although he did have a significant personality disorder and was probably borderline mentally retarded, the degree of his retardation was not sufficient to establish an insanity defense. This diagnosis was confirmed during the defendant's second visit to MTMHI from April 4 through May 6, 1988, for a competency evaluation. The staff reiterated that the defendant's handicapping [537] feature is his low intellect. These findings were also confirmed by the staff of the Helen Ross McNabb Center, which provided follow-up care to the defendant after his release from MTMHI.
2. Sufficiency of the Evidence
We are asked first to decide whether the evidence was sufficient to support the verdict of first-degree murder. The defendant argues principally that premeditation was not shown. He also contends that adequate weight was not given to the fact that another adult (Eddie's mother) was in the home and that Eddie had sustained injuries in the past while she had sole custody of him. Further, the defendant questions whether the state carried its burden of proving his sanity.
Our consideration of the sufficiency of the evidence is governed by the "well-settled rule that all conflicts in testimony, upon a conviction in the trial court, are resolved in favor of the State, and that upon appeal the State is entitled to the strongest legitimate view of the trial evidence and all reasonable or legitimate inferences which may be drawn therefrom." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nevertheless, the record must demonstrate that the state carried its burden at trial of establishing that the homicide in question was, indeed, first-degree murder. In this case, we conclude, the prosecution failed to discharge its burden.
Addressing the least complex of the defendant's allegations first, we note that the question of relative criminal responsibility for the victim's death, as between Mack Brown and Evajean Brown, was essentially one of credibility for the jury's determination. We find no basis to disturb the jury's determination in this regard.
We also conclude that the state carried its burden on the issue of the defendant's sanity. The defense expert who reviewed the defendant's history and attempted to interview him concluded that the defendant met the criteria for the insanity defense in Tennessee because he was suffering from depression with psychotic features. Although the state's psychological experts conceded that the defendant was chronically depressive and might be mentally retarded, they concluded unequivocally that his condition did not rise to the level of insanity, under the standards of Graham v. State, 547 S.W.2d 531, 543 (Tenn. 1977). This conflict in testimony must be resolved in favor of the state's theory, based on the jury's verdict of guilt as approved by the trial judge. See State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).
But even though the defendant failed to establish insanity as an absolute defense to homicide in this case, his mental state was nevertheless relevant to the charge of first-degree murder, to the extent that it related to the necessary elements of that offense. The statute in effect at the time of the homicide in this case defined first-degree murder as follows:
Every murder perpetrated by means of poison, lying in wait, or by other kind of willful, deliberate, malicious, and premeditated killing, or committed in the perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing or discharging of a destructive device or bomb, is murder in the first degree.
T.C.A. § 39-2-202(a) (1982). Based upon our review of the record, we conclude that the evidence in this case is insufficient to establish deliberation and premeditation. Hence, the defendant's conviction for first-degree murder cannot stand. However, we do find the evidence sufficient to sustain a conviction of second-degree murder.
At common law, there were no degrees of murder, but the tendency to establish a subdivision by statute took root relatively early in the development of American law. The pattern was set by a 1794 Pennsylvania statute that identified the more heinous kinds of murder as murder in the first degree, with all other murders deemed to be murder in the second degree. Some states have subdivided the offense into three or even four degrees of murder, but [538] since the enactment of the first such statute in 1829, Tennessee has maintained the distinction at two.[7] It is one which this Court has found to be "not only founded in mercy and humanity, but ... well fortified by reason."[8]Poole v. State, 61 Tenn. 289, 290 (1872).
From the beginning, the statutory definition of first-degree murder required the state to prove that "the killing [was] done willfully, that is, of purpose, with intent that the act by which the life of a party is taken should have that effect; deliberately, that is, with cool purpose; maliciously, that is, with malice aforethought; and with premeditation, that is, a design must be formed to kill, before the act, by which the death is produced, is performed." Dale v. State, 18 Tenn. (10 Yer.) 551, 552 (1837) (emphasis added). Because conviction of second-degree murder also requires proof of intent and malice, the two distinctive elements of first-degree murder are deliberation and premeditation.
Even as early as 1872, however, prosecutors and judges had apparently fallen into the error of commingling these two elements by using the terms interchangeably. In Poole v. State, supra, for example, Justice Turney expounded upon the statutory distinction between deliberation and premeditation and the need to maintain them as separate elements of the first-degree murder:
It is the defining words of the statute that make the offenses [of first- and second-degree murder] and distinctions between them, definitions and distinctions in the control of the Legislature — control it has exercised, and the Courts are bound by it.
It is too late, after the words of the Act have been so long, uniformly and plainly construed, to attempt to make any two of its words have the same meaning — a meaning of equally forcible import — so as to excuse or do away with the employment of one in an indictment for murder in the first degree... .
[As we noted in Dale v. State] `... proof must be adduced to satisfy the mind that the death of the party slain was the ultimate result which the conquering will, deliberation and premeditation of the party accused sought,' making a marked distinction and independence between the terms `deliberation' and `premeditation' and excluding the idea of the substitution of the one for the other, or of the tautology in their use.
Id. 61 Tenn. at 290-92 (emphasis added).
In Poole, the issue was whether the indictment, which was drawn in the language of common-law murder, was sufficient to charge statutory first-degree murder, given the fact that it included "no word or sentence charging a cool purpose, [deliberation being] an indispensable ingredient in murder in the first degree." Id. at 293. As Justice Turney noted, "[w]illfulness, malice and premeditation may exist without that cool purpose contemplated by the statute as construed," id., and if so, the result is second-degree murder, not first.
Intent to kill had long been the hallmark of common-law murder, and in distinguishing manslaughter from murder on the basis of intent, the courts recognized, in the words of an early Tennessee Supreme Court decision, that
[t]he law knows of no specific time within which an intent to kill must be formed so as to make it murder [rather than manslaughter]. If the will accompanies the act, a moment antecedent to the act itself which causes death, it seems to be as completely sufficient to make the offence murder, as if it were a day or any other time.
[539] Anderson v. State, 2 Tenn. (2 Overt.) 6, 9 (1804). Of course, the Anderson opinion predates the statutory subdivision of murder into first and second degrees. But the temporal concept initially associated in that case with intent, i.e., that no definite period of time is required for the formation of intent, was eventually carried over and applied to the analysis of premeditation. Hence, by the time the opinion in Lewis v. State was announced in 1859, the Court had begun the process of commingling the concepts of intent, premeditation, and deliberation, as the following excerpt demonstrates:
The distinctive characteristic of murder in the first degree, is premeditation. This element is superadded, by the statute, to the common law definition of murder. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, may be conceived, and deliberately formed, in an instant. It is not necessary that it should have been conceived, or have pre-existed in the mind, any definite period of time anterior to its execution. It is sufficient that it preceded the assault, however short the interval. The length of time is not of the essence of this constituent of the offense. The purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment preceding the act by which the death is produced, than if it had been formed an hour before.
40 Tenn. (3 Head) 127, 147-48 (1859) (emphasis added).
It is this language ("premeditation may be formed in an instant") for which Lewis is frequently cited. See, e.g., Turner v. State, 119 Tenn. 663, 108 S.W. 1139, 1142 (1908). What is often overlooked is the following language, also taken from Lewis:
The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous, and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object to be accomplished — the end determined upon.
Lewis, 40 Tenn. at 148 (emphasis added).
Hence, perhaps the two most oft-repeated propositions with regard to the law of first-degree murder, that the essential ingredient of first-degree murder is premeditation and that premeditation may be formed in an instant, are only partially accurate, because they are rarely quoted in context. In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness and reflection. As noted in Rader v. State, 73 Tenn. 610, 619-20 (1880):
When the murder is not committed in the perpetration of, or attempt to perpetrate any of the felonies named in the [statute], then, in order to constitute murder in the first degree, it must be perpetrated by poison or lying in wait, or some other kind of willful, deliberate, malicious, and premeditated killing; that is to say, the deliberation and premeditation must be akin to the deliberation and premeditation manifested where the murder is by poison or lying in wait — the cool purpose must be formed and the deliberate intention conceived in the mind, in the absence of passion, to take the life of the person slain. Murder by poison or lying in wait, are given as instances of this sort of deliberate and premeditated killing, and in such cases no other evidence of the deliberation and premeditation is required; but where the murder is by other means, proof of deliberation and premeditation is required. It is true it has been held several times that the purpose need not be deliberated upon any particular length of time — it is enough if it precede the act, but in all such cases the purpose must be coolly formed, and not in passion, or, if formed in passion, it must be executed after the passion has had time to subside... . [I]f the purpose to kill is formed in passion ..., and executed [540] without time for the passion to cool, it is not murder in the first degree, but murder in the second degree.
(Emphasis added.)
The obvious point to be drawn from this discussion is that even if intent (or "purpose to kill") and premeditation ("design") may be formed in an instant, deliberation requires some period of reflection, during which the mind is "free from the influence of excitement, or passion." Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).
Despite admonitions in the opinions of the Tennessee Supreme Court during the nineteenth century and early part of the twentieth century regarding the necessity of maintaining a clear line of demarcation between first- and second-degree murder,[9] that line has been substantially blurred in later cases. The culprit appears to be the shortcutting of analysis, commonly along three or four different tracks.
One of those has been the same error decried by Justice Turney in 1872, i.e., the use of the terms "premeditation" and "deliberation" interchangeably, or sometimes collectively, to refer to the same concept. Thus, in Sikes v. State, 524 S.W.2d 483, 485 (Tenn. 1975), the Court said: "Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution." While this statement focuses on premeditation, nowhere in the brief discussion that follows is there any reference to the coolness of purpose or reflection that is required under the older cases to establish deliberation as a separate and distinct element of first-degree murder. But if deliberation was given little attention in Sikes, it was not even discussed in State v. Martin, 702 S.W.2d 560 (Tenn. 1985), perhaps because the litigants failed to raise the issue. In Martin, the Court confined its first-degree murder analysis to the elements of premeditation, willfulness, and malice, even though the theory of defense suggests that lack of proof of deliberation was equally relevant to the discussion. Id. at 562-63.
Another weakness in our more recent opinions is the tendency to overemphasize the speed with which premeditation may be formed. The cases convert the proposition that no specific amount of time between the formation of the design to kill and its execution is required to prove first-degree murder, into one that requires virtually no time lapse at all, overlooking the fact that while intent (and perhaps even premeditation) may indeed arise instantaneously, the very nature of deliberation requires time to reflect, a lack of impulse, and, as the older cases had held at least since 1837, a "cool purpose." Dale v. State, supra, 18 Tenn. at 552.
This trend toward a confusion of premeditation and deliberation has not been unique to Tennessee. It was for a time reflected by the commentators. In Clarke v. State, supra, 402 S.W.2d at 868, the Court quoted from the 1957 edition of Wharton's Criminal Law and Procedure as follows:
"Deliberation and premeditation involve a prior intention or design to do the act in question. It is not necessary, however, that this intention should have been conceived at any particular period of time, and it is sufficient that only a moment elapsed between the plan and its execution... ."
A more recent version of Wharton's Criminal Law, however, returns the discussion of premeditation and deliberation to its roots:
Although an intent to kill, without more, may support a prosecution for common law murder, such a murder ordinarily constitutes murder in the first degree only if the intent to kill is accompanied by premeditation and deliberation. `Premeditation' [541] is the process simply of thinking about a proposed killing before engaging in the homicidal conduct; and `deliberation' is the process of carefully weighing such matters as the wisdom of going ahead with the proposed killing, the manner in which the killing will be accomplished, and the consequences which may be visited upon the killer if and when apprehended. `Deliberation' is present if the thinking, i.e., the `premeditation,' is being done in such a cool mental state, under such circumstances, and for such a period of time as to permit a `careful weighing' of the proposed decision.
C. Torcia, Wharton's Criminal Law § 140 (14th ed. 1979) (emphasis added).
To the same effect is this analysis of the distinction between first- and second-degree murder found in 2 W. LaFave and A. Scott, Substantive Criminal Law § 7.7 (1986):
Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first-degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first-degree murder.
(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first-degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words `premeditate' and `deliberate' as they are used in connection with first-degree murder. Perhaps the best that can be said of `deliberation' is that it requires a cool mind that is capable of reflection, and of `premeditation' that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.
It is often said that premeditation and deliberation require only a `brief moment of thought' or a `matter of seconds,' and convictions for first-degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to `speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, ... destroys the statutory distinction between first and second-degree murder,' and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for `further thought, and a turning over in the mind.' (Footnotes omitted; emphasis added.)
One further development in Tennessee law has tended to blur the distinction between the essential elements of first- and second-degree murder, and that is the matter of evidence of "repeated blows" being used as circumstantial evidence of premeditation. Obviously, there may be legitimate first-degree murder cases in which there is no direct evidence of the perpetrator's state of mind. Since that state of mind is crucial to the establishment of the elements of the offense, the cases have long recognized that the necessary elements of first-degree murder may be shown by circumstantial evidence. Relevant circumstances recognized by other courts around the country have included the fact "that a deadly weapon was used upon an unarmed victim; that the homicidal act was part of a conspiracy to kill persons of a particular class; that the killing was particularly cruel; that weapons with which to commit the homicide were procured; that the defendant made declarations of his intent to kill the victim; or that preparations were made [542] before the homicide for concealment of the crime, as by the digging of a grave." Wharton's Criminal Law, supra, at § 140. This list, although obviously not intended to be exclusive, is notable for the omission of "repeated blows" as circumstantial evidence of premeditation or deliberation.
In Tennessee, the use of repeated blows to establish the premeditation necessary to first-degree murder apparently traces to Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). There the Court, after noting that "[b]oth premeditation and deliberation may be inferred from the circumstances of a homicide," id., 231 S.W.2d at 711, went on to list a series of facts from which the Court concluded that the victim's death constituted first-degree murder. The first (but not the only) such circumstance mentioned was that "the deceased was not only struck and killed by a blow from an iron poker but apparently from the number and nature of his wounds, was beaten to death by a whole series of blows." Id. While the Bass court did not interpret the fact of repeated blows to be sufficient, in and of itself, to constitute premeditation and deliberation, subsequent cases have done so. In Houston v. State, for example, the only circumstance relied upon by the majority to establish premeditation and deliberation was the fact that the victim had sustained "repeated shots or blows." 593 S.W.2d 267, 273 (Tenn. 1980).
The culmination of this development is probably best represented by the analysis in State v. Martin, supra, 702 S.W.2d at 563, where the Court said:
Repeated blows or shots may support an inference of premeditation. See Houston v. State, 593 S.W.2d 267, 273 (Tenn. 1980). It is also possible that the jury could have found that during the struggle [with the victim] appellant decided to kill the victim, only a moment of time being required between the plan to kill and its execution. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863, 868 (1966).
Logically, of course, the fact that repeated blows (or shots) were inflicted on the victim is not sufficient, by itself, to establish first-degree murder. Repeated blows can be delivered in the heat of passion, with no design or reflection. Only if such blows are inflicted as the result of premeditation and deliberation can they be said to prove first-degree murder.
In bringing three of the previously discussed threads together — recognition of "repeated blows" as sufficient evidence of premeditation, invocation of the rule that "premeditation can be formed in an instant," and omission of any discussion of deliberation as a necessary element of murder in the first degree — the Martin decision represents a substantial departure from the traditional law of homicide. It also undercuts older Tennessee cases such as Rader v. State, supra, 73 Tenn. at 620, which emphasized that intent to kill, if formed during a deadly struggle, would support only a conviction for second-degree murder, unless the state could show that premeditation and deliberation had preceded the struggle.
Since the opinion in Martin, the Tennessee General Assembly has rewritten the state's homicide statute. In addition to certain felony-murder provisions, T.C.A. § 39-13-202(a)(1) defines first-degree murder as "[a]n intentional, premeditated and deliberate killing of another." The mens rea elements of deliberation and premeditation have been further emphasized by the inclusion of definitional sections in T.C.A. § 39-13-201(b), as follows:
(1) "Deliberate act" means one performed with a cool purpose; and
(2) "Premeditated act" means one done after the exercise of reflection and judgment. Premeditation may include instances of homicide committed by poison or by lying in wait.
Without commenting on the validity of the result we reached in Martin v. State, we can only conclude that the legislature's enactment of the provisions set out above should have the effect of steering the courts back onto the right track in their analysis of the law of homicide. And although the 1989 legislation predates the offense in this case, we believe it is worth emphasis here, because it clearly represents [543] the legislature's intent that the courts of Tennessee should adhere to long-established rules of law and that we should abandon the modern tendency to muddle the line between first- and second-degree murder. Certainly, more than the mere fact of "repeated blows" must be shown to establish first-degree murder, and to the extent that the opinions in Houston and Martin can be read to hold otherwise, they are expressly overruled.
Moreover, even though the Sentencing Commission Comments to T.C.A. § 39-13-201 indicate that the definition in subsection (b)(2) "permits that `premeditation may be formed in an instant,'" citing Taylor v. State, 506 S.W.2d 175 (Tenn. Crim. App. 1973), we think it is time to recognize, as Justice Brock argued in Everett v. State, that "[m]ore than a split-second intention to kill is required to constitute premeditation," which "by its very nature is not instantaneous, but requires some time interval." 528 S.W.2d 25, 28-29 (Tenn. 1975) (Brock, J., dissenting; emphasis in original).
It is consistent with the murder statute and with case law in Tennessee to instruct the jury in a first-degree murder case that no specific period of time need elapse between the defendant's formulation of the design to kill and the execution of that plan, but we conclude that it is prudent to abandon an instruction that tells the jury that "premeditation may be formed in an instant." Such an instruction can only result in confusion, given the fact that the jury must also be charged on the law of deliberation. If it was not clear from the opinions emanating from this Court within the last half-century, it is now abundantly clear that the deliberation necessary to establish first-degree murder cannot be formed in an instant. It requires proof, as the Sentencing Commission Comment to § 39-13-201(b) further provides, that the homicide was "committed with `a cool purpose' and without passion or provocation," which would reduce the offense either to second-degree murder or to manslaughter, respectively.
This discussion leads us inevitably to the conclusion that Mack Brown's conviction for first-degree murder in this case cannot be sustained. The law in Tennessee has long recognized that once the homicide has been established, it is presumed to be murder in the second degree. Witt v. State, 46 Tenn. (6 Cold.) 5, 8 (1868). The state bears the burden of proof on the issue of premeditation and deliberation sufficient to elevate the offense to first-degree murder. Bailey v. State, 479 S.W.2d 829, 833 (Tenn. Crim. App. 1972).
Here, there simply is no evidence in the record that in causing his son's death, Mack Brown acted with the premeditation and deliberation required to establish first-degree murder. There is proof, circumstantial in nature, that the defendant acted maliciously toward the child, in the heat of passion or anger,[10] and without adequate provocation — all of which would make him guilty of second-degree murder. The only possible legal basis upon which the state might argue that a first-degree conviction can be upheld in this case is the proof in the record that the victim had sustained "repeated blows." It was on this basis, and virtually no other, that we upheld a similar first-degree murder conviction for the death of a victim of prolonged child abuse in State v. LaChance, 524 S.W.2d 933 (Tenn. 1975). In view of our foregoing discussion concerning the shortcomings of such an analysis, we find it necessary to depart from much of the rationale underlying that decision.
In abandoning LaChance, we are following the lead of a sister state. In Midgett v. State, 729 S.W.2d 410 (Ark. 1987), the Arkansas Supreme Court was asked to affirm the first-degree murder conviction of a father who had killed his eight-year-old son by repeated blows of his fist. As was the case here, there was a shocking history of [544] physical abuse to the child, established both by eyewitness testimony and by proof of old bruises and healed fractures.
The Arkansas court faced a precedent much like LaChance in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). There the court had described the injuries sustained by the child victim and held, without more, that the "required mental state for first-degree murder can be inferred from the evidence of abuse, which is substantial." Id., 697 S.W.2d at 98. In confessing error in Burnett, the Midgett court noted:
The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son's death, he could have accomplished it in a previous beating... .
The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.
Midgett, 729 S.W.2d at 413-14.
The Arkansas court, in strengthening the requirements for proof of premeditation and deliberation in a first-degree murder case involving a victim of child abuse, found it necessary to overrule prior case law to the extent that it was inconsistent with the opinion in Midgett. We do the same here. Like the Midgett court, we do not condone the homicide in this case, or the sustained abuse of the defenseless victim, Eddie Brown. We simply hold that in order to sustain the defendant's conviction, the proof must conform to the statute. Because the state has failed to establish sufficient evidence of first-degree murder, we reduce the defendant's conviction to second-degree murder and remand the case for resentencing.
3. Motion to Suppress
The defendant filed a pretrial motion to suppress, in which he claimed that his initial statement to police was taken in violation of his Miranda rights and should therefore be held inadmissible. He also contended that because his subsequent statements to police (one given at his home and another at police headquarters) and his consent to search his apartment flowed from that initial statement, they must be considered the "fruit of the poisonous tree" and should likewise be suppressed.
At the suppression hearing, the proof showed that the defendant's first statement was obtained as a result of questioning by Officer Henry Wood at the East Tennessee Children's Hospital. Officer Wood arrived at the hospital at about 3:00 p.m. on April 10, 1986, the day of Eddie's admission to the hospital. He initially met Pam Self, a Department of Human Services social worker, who told him that the parents had brought the child in and that the doctors believed that the case involved child abuse. She described Eddie's injuries to him and told Wood that the doctors did not consider his injuries to be consistent with falling down a flight of stairs. Officer Wood then saw the child and was informed that he was brain-dead. He spoke first with Evajean Brown and then with Mack Brown. At approximately 3:30 p.m., Mack Brown gave a statement after being advised as follows:
I want you to understand your rights. You have the right to remain silent; anything you say can be used against you in a court of law. You have the right for an attorney to be present. You can stop answering questions at any time.
Brown was not informed that he had the right to have counsel appointed if he could not afford to hire counsel himself. The warnings given were, therefore, not technically in conformity with the requirements of the Miranda rule.
Officer Wood testified that he had no grounds upon which to arrest Mack Brown until Brown admitted that he had hit his son during this first interview. The arrest [545] warrant indicates that Wood placed Brown under arrest at 4:00 p.m.
Subsequent to the interview at the hospital, Officer Wood transported the defendant to his apartment and obtained his consent to conduct a search. During the course of the search, the defendant responded to questions by the police, who recorded his statements on the same tape as his initial statement obtained at the hospital. Items seized during this search included a wire coat hanger, a phone receiver, a man's slacks, shirt, and tennis shoes, wash cloths, and pills later identified as the non-narcotic drug Motrin. The search took an hour and a half, after which the defendant was transported to the Sheriff's Department at about 6:00 p.m.
At about 6:30 p.m., the defendant was fully advised of his rights in accordance with Miranda and signed a waiver of his rights. In response to police questioning, the defendant gave a statement that concluded at 7:15 p.m. The only further police contact with the defendant that evening occurred when the police talked to him in order to complete arrest forms at approximately 9:00 p.m.
At 9:30 p.m., Officer Woods spoke with Evajean Brown again at her request. Evajean recanted her prior statement that Eddie had sustained his injuries from a fall down stairs and placed the blame for Eddie's injuries on Mack Brown. Officer Wood's affidavit in support of his request for a search warrant indicates that Evajean Brown told him she witnessed several episodes during which Mack Brown beat and kicked Eddie Brown during the evening of April 9 and the early morning of April 10. She told Officer Wood that these beatings took place both upstairs and downstairs in their apartment.
Based on Officer Wood's affidavit, a search warrant was issued on April 16 for the Browns' apartment. This affidavit contains information obtained from all stages of Officer Wood's investigation, including the statements of the social worker and of the Browns at the hospital, Officer Wood's earlier observations in the Browns' apartment, the statement given by the defendant at the Sheriff's office at 6:30 on April 10, and the statements made by Evajean Brown later that evening. During the course of the search conducted pursuant to this search warrant, the police seized some 31 items with varying degrees of relevance to the issues in dispute at trial.
The trial court suppressed the statements obtained from the defendant at the hospital and in his apartment, but held that the defendant's consent to the search of his apartment was voluntarily given and refused to suppress the evidence seized during that search. The court also held that the statement given at 6:30 p.m. on April 10 was admissible because it was voluntarily given after a proper administration of Miranda warnings and a waiver of rights. Further, the trial judge held the search warrant to be proper and suppressed only a few items, the seizure of which he held to have exceeded the scope of the warrant.
The defendant now argues that because the initial statement obtained at the hospital was taken without full Miranda warnings, all subsequent evidence was obtained as a result of this initial statement and should have been excluded under a "fruit of the poisonous tree" theory. The defendant cites Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), United States v. Smith, 730 F.2d 1052, 1056 (6th Cir.1984), and State v. Carpenter, 773 S.W.2d 1 (Tenn. Crim. App. 1989), as authority for this proposition.
The state argues in response that the failure by police to give the defendant adequate Miranda warnings prior to questioning him at the hospital may render the resulting statement inadmissible, but that the error by police has no effect on the validity of the defendant's subsequent consent to search or on the admissibility of his later statements to police. In this regard, the state relies on the United States Supreme Court's opinion in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), for the proposition that an error made by police officers in administering Miranda warnings does not require the suppression of a subsequent statement, if the record establishes that the statement is [546] "knowingly and voluntarily made." Id. 470 U.S. at 309, 105 S.Ct. at 1293.
We have reviewed the record of the suppression hearing carefully, and we conclude that the rule in Elstad is inapplicable to the facts in this case because there was no violation of Miranda with regard to the defendant's initial statement at the hospital.
The prosecution conceded from the outset that the warnings given to Mack Brown at the hospital were technically deficient. The assistant district attorney argued, however, that at the time he gave the statement, the defendant was not "in custody," as that term is used in Miranda, and that the warnings were therefore unnecessary. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.")
The proof shows that when Officer Wood first questioned the defendant and his wife, he knew that hospital personnel suspected child abuse, and he knew that the victim was considered brain-dead as a result. Although the circumstances pointed to the Browns as the perpetrators of the abuse, Officer Wood testified that Mack Brown was not in custody at the time of the interview, and that there was not a sufficient basis upon which to detain or arrest him until he admitted hitting the child. Asked what he would have done if the defendant had not implicated himself in the initial interview, Officer Wood replied that he would have had to continue the investigation. Without the benefit of medical reports, other corroborating evidence of abuse, or an incriminating statement by one or both of the Browns, there simply was not sufficient evidence upon which to determine whether Mack Brown was a suspect, a witness, or neither. Once Brown did implicate himself, Officer Wood made a warrantless arrest. From that point forward, the defendant was clearly not free to leave; but prior to his 4:00 p.m. arrest, there is no objective evidence that he was "in custody."
Despite the prosecutor's argument that Brown was not subjected to custodial interrogation at the hospital and that the failure to give proper Miranda warnings was therefore immaterial, the trial judge ultimately ruled that the statement given at the hospital was not admissible. At the conclusion of the suppression hearing, the trial judge noted that "the defendant was, in effect, taken into custody some time around 4 o'clock," which was after the initial statement was made. After taking the motion to suppress under advisement, however, the trial judge ruled two days later that the statement was inadmissible because the investigation was "focused on the defendant" at the time it was made. In response to the prosecutor's attempt to point out that "focus is not the law in this state,"[11] the trial judge replied, "Well, I won't allow that first statement anyway." No other reason for suppression was offered.
In view of the trial judge's earlier finding that the defendant was not actually "in custody" until 4:00 p.m., after the statement at the hospital was given, we conclude that the court's ruling on the admissibility of that statement was erroneous. To the extent that the defendant made incriminating statements at his apartment a short time later, while he was in custody but had not yet had the benefit of proper Miranda warnings, those statements were properly suppressed by the trial judge. However, we cannot find from the record before us that there was any relationship between statements made by the defendant during the initial search of the apartment and the formal statement that he gave at police headquarters after executing a written waiver of his Miranda rights.
In State v. Smith, 834 S.W.2d 915 (Tenn. 1992), we held that "after illegally [547] obtaining an incriminating statement from a defendant, [the state] must establish that [any] subsequent confession was given freely and voluntarily and that the constitutional right to be free from self-incrimination was not waived due solely to the psychological pressures resulting from giving the previous statement." Id. at 921. In this case, the state carried its burden as to the voluntariness of the last of Mack's three incriminating statements. We therefore conclude that his 6:30 p.m. statement was fully admissible.
Nor do we find any error in regard to the validity of the search of the Browns' apartment that was conducted by police on the afternoon of April 10. That search was based on consent obtained from the defendant.
In order to pass constitutional muster, consent to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or coercion. Liming v. State, 220 Tenn. 371, 417 S.W.2d 769 (1967). In this case, the police obtained the defendant's verbal permission to search his home, and Brown signed a consent form that explicitly makes reference to his right to refuse to consent to a search. Without some further evidence relevant to the questions of voluntariness, we find no basis upon which to invalidate the resulting search or to suppress the evidence that was seized by police at that time.
Finally, we agree with the trial court that the ensuing search warrant was properly issued. Sufficient evidence was presented from which the magistrate could determine that there was probable cause for believing that the items listed were actually located in the Browns' apartment. See Hampton v. State, 148 Tenn. 155, 252 S.W. 1007 (1923). The affidavit of Officer Wood, on which the magistrate determined that probable cause for the search existed, made reference to Officer Wood's personal observations of the victim's bleeding injuries and the blood oozing from his ear; his earlier observations of bed linens in the victim's room stained with what appears to be blood, as well as a sponge mop and dishpan of water in the living room; his conversation with Mack Brown at 6:30 p.m. on April 10, in which the defendant admitted striking the victim and attempting to clean up blood; and his conversation with Evajean Brown, in which she stated that her husband beat Eddie both upstairs and downstairs on the night he died. The search warrant authorized a search for "blood stains and a mop, dishpan and water containing human blood ... located at Apartment 62, Cedar Springs Apartments." There were ample grounds, pursuant to T.C.A. §§ 40-6-101 et seq., for the issuance of a search warrant to recover these items.
4. Discovery Dispute
The defendant challenges the trial court's order that counsel for Mack Brown and counsel for Evajean Brown could not share the information obtained from the state by the discovery motion filed by counsel for Evajean Brown pursuant to Rule 16 of Tennessee Rules of Criminal Procedure. Further, the defendant asserts that the trial court erred in prohibiting counsel for Mack Brown from viewing the information in the possession of counsel for Evajean Brown after all proceedings concerning her were complete.
Mack and Evajean Brown were jointly indicted but were represented by separate counsel. Counsel for Evajean Brown requested discovery from the state pursuant to Rule 16(a)(1)(C) and (D) of the Tennessee Rules of Criminal Procedure. This request triggered the state's right to reciprocal discovery. Id. However, counsel for Mack Brown did not request discovery under this rule. On April 14, 1987, the trial court entered a blanket order prohibiting counsel for Evajean Brown and counsel for Mack Brown from transferring any items between themselves that had been received from the state pursuant to the single Rule 16 discovery request filed on Evajean Brown's behalf. Counsel for Mack Brown filed his objection to the order on April 20, 1987.
Mack Brown's motion to sever, which was filed on April 30, 1987, was granted by order filed May 5, 1987. Evajean Brown's trial, which began on September 14, 1987, [548] ended in a mistrial. The Court of Criminal Appeals later held that Evajean Brown could not be retried because of double jeopardy principles. State of Tennessee v. Evajean Brown, (Tenn. Crim. App. Knoxville, Dec. 20, 1988), 1988 WL 136600, perm. app. denied, May 8, 1989.
After these events, counsel for Mack Brown moved the trial court to rescind the order of April 14, 1987, but the trial court refused to allow counsel for Mack Brown to receive any information from Evajean Brown's counsel that had originated with the state, unless Mack Brown consented to reciprocal discovery by the state. Counsel for Mack Brown did not request that the information in question be reviewed by the trial court or submitted under seal for appellate review.
The state insists that the defendant improperly attempted to gain the benefit of Evajean Brown's full discovery motion while denying the state the reciprocal discovery to which it would have been entitled had he filed for Rule 16 discovery himself. We conclude that the prosecution has overstated the case to some extent. Trial courts, to be sure, have the discretion to enter orders necessary to insure compliance with Rule 16. Cf. State v. Bell, 690 S.W.2d 879 (Tenn. Crim. App. 1985); State v. Vilvarajah, 735 S.W.2d 837 (Tenn. Crim. App. 1987). However, to do so, reciprocal discovery must have already been triggered. Id. In this case, because the disclosure of items in the possession of counsel for Evajean Brown would not necessarily have triggered reciprocal discovery as to Mack Brown, the trial court's order should have been more selective with regard to disclosure.
Reciprocal discovery would only have been triggered if, by the disclosure of the items held by counsel for Evajean Brown, Mack Brown had gained access to information he could have gotten by filing his own request for full Rule 16 discovery. But, Evajean Brown's request would only result in discovery by her of items which were material to the preparation of her own defense, intended for use by the state in its case in chief against her, or obtained from or belonging to her. T.R.Crim.P. Rule 16(a)(1)(C). Hence, items subject to full Rule 16 discovery by Mack Brown would not necessarily have been subject to discovery by Evajean Brown. Obviously, disclosure of Evajean Brown's holdings would not have equated with full Rule 16 discovery by Mack Brown.
The importance of unrestricted discovery in preparation for trial is obvious. Indeed, a prosecutor's failure to comply with discovery can contribute to a finding of reversible error. State v. Benson, 645 S.W.2d 423 (Tenn. Crim. App. 1983). However, the burden rests on the defense to show the degree to which the impediments to discovery hindered trial preparation and defense at trial. Because of the failure of defense counsel to include the materials they sought from counsel for Evajean Brown in the record, we have no way of determining whether access to these materials would have had an impact on the outcome of the trial. Without this determination, we cannot find reversible error.
5. Motion for a Morgan Hearing
The defendant insists that the trial court erred in denying the defendant's motion for a hearing pursuant to State v. Morgan, 541 S.W.2d 385 (Tenn. 1976). At the time of trial in this case, the decision to hold such a hearing rested solely in the discretion of the trial court. State v. Martin, 642 S.W.2d 720 (Tenn. 1982). In view of the fact that there was no indication that the defendant would testify or that he might have prior convictions that could be used to impeach his testimony, we find no abuse of discretion in the trial court's decision not to hold a Morgan hearing.
6. Amendment of the Indictment
The defendant next argues that his right to a fair trial was violated when the trial judge granted the state's motion to remove the word "intentionally" from the first-degree murder count returned against him. In view of the fact that we have reversed the defendant's conviction on this count, we hold that the question has been rendered moot.
[549]
7. Jury Selection
The defendant questions the excusal for cause or the failure to allow such an excusal for cause of several prospective jurors. These arguments are based on two points: the jurors' exposure to publicity about the case and the jurors' statements when questioned about their ability to follow the law as it relates to the imposition of the death penalty. Because the validity of the death penalty is no longer at issue in this case, the latter point is moot.
Moreover, we have reviewed the record of the selection of this jury and find no error with regard to the first point. Jurors need not be totally ignorant of the facts of the case on which they sit, and may sit on a case even if they have formed an opinion on the merits of the case, if they are able to set aside that opinion and render a verdict based on the evidence presented in court. State v. Sammons, 656 S.W.2d 862, 869 (Tenn. Crim. App. 1982). This determination of impartiality is a matter for the discretion of the trial judge. Id.
8. Opinion Testimony
The defendant asserts that the trial court erred in allowing certain witnesses to testify outside the scope of their knowledge or expertise. Essentially, the defendant argues that witnesses not properly qualified as experts were allowed to testify as to their opinions in violation of the long-standing principles set forth in Cumberland Telegraph & Telephone Co. v. Dooley, 110 Tenn. 104, 72 S.W. 457 (1903), and formalized in Rule 701 of the Tennessee Rules of Evidence. Further, the defendant argues that otherwise properly qualified expert witnesses were improperly allowed to testify outside the area of expertise in which they had been qualified to testify. See State v. Wright, 756 S.W.2d 669 (Tenn. 1988).
The defendant takes issue specifically with the testimony of Leon Miller (the paramedic who attempted to resuscitate Eddie) about the cause of bruises around Eddie's eyes and the length of time it would take for these bruises to develop. Miller identified Exhibit #2 as being a photograph of the child whom he attempted to revive. He then voluntarily stated that the photograph did not show the child's "coon eyes" as distinctly as they appeared when he treated him. He managed to testify that bruising around the eyes is indicative of skull trauma before defense counsel objected to his testimony. The trial court overruled this objection, as well as defense counsel's later objection to Miller's testimony that he understood that such bruising could take two to seven hours to develop.
Miller testified that on April 10, 1986, he was a paramedic with an ambulance company. To become a paramedic, he recounted, he initially worked as an emergency medical technician doing basic life support such as cardiopulmonary resuscitation and mouth-to-mouth resuscitation. As a paramedic he was qualified, after approximately two years further training, to do more advanced types of life support. No motion was made to have Miller qualified as an expert in any field, and no cross-examination in voir dire of his expert qualifications was conducted.
The defendant also takes issue with the testimony of Mary Ann Purvis (a nurse involved in Eddie's care at the hospital) about an injury on Eddie's left big toe. Purvis testified that in her opinion the injury was caused by a cigarette burn. After defense counsel objected, the state elicited testimony that her opinion was based on her prior experiences working in an emergency room for six years, where, she said, she had seen cigarette burns of this nature on occasions "too numerous to count." As with Miller, there was no voir dire conducted to establish Purvis's expert qualifications, and no motion was made to have her qualified as an expert in any field.
The distinction between an expert and a non-expert witness is that a non-expert witness's testimony results from a process of reasoning familiar in everyday life and an expert's testimony results from a process of reasoning which can be mastered only by specialists in the field. Phillips v. Tidwell, 26 Tenn. App. 543, 174 S.W.2d 472, 477 (1943). The determination of whether a [550] witness is qualified to give expert testimony lies in the sound discretion of the trial court. See Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323, 328 (Tenn. App. 1980).
In this case we are constrained to view both Miller and Purvis as non-expert lay witnesses, if for no reason other than the fact that the record is devoid of a judicial determination of their areas of expertise, or even a motion for such a determination. On such an underdeveloped record, we cannot hold that Miller and Purvis were qualified to give testimony that arguably required special expertise.
Generally, non-expert witnesses must confine their testimony to a narration of the facts based on first-hand knowledge and avoid stating mere personal opinions or their conclusions or opinions regarding the facts about which they have testified. Blackburn v. Murphy, 737 S.W.2d 529, 531 (Tenn. 1987). This rule preserves the province of the jury as the fact-finding body designated to draw such conclusions as the facts warrant. Id. An exception to this general rule exists where testimony in an opinion form describes the witness's observations in the only way in which they can be clearly described, id. at 532, such as testimony that a footprint in snow looked like someone had slipped, National Life & Accident v. Follett, 168 Tenn. 647, 80 S.W.2d 92 (1935), or that a substance appeared to be blood. State v. Mabon, 648 S.W.2d 271, 274 (Tenn. Crim. App. 1982). We conclude that the nurse's testimony that the injury on the victim's foot looked like a cigarette burn arguably falls into this exception. It follows that witness Purvis's testimony was properly admitted.
On the other hand, the non-expert testimony presented by the paramedic, Miller, was technically inadmissible. His opinion as to the source of Eddie's bruised face does not fall within the exception for opinion testimony used to describe observations such as those in Follett or Mabon. His conclusory opinion was not the type of opinion testimony that lay witnesses should be allowed to give, but rather called for specialized skill or expertise. Because Miller was not qualified to give expert opinion testimony, his testimony should not have been permitted. We cannot, however, hold this to be reversible error. There was ample evidence of skull trauma without Miller's reference to "coon eyes."
With respect to those witnesses who were properly qualified as experts but who the defendant alleges were allowed to testify outside their field of expertise, we have reviewed the record and find no error.
9. Admissibility of Extrajudicial Statements
The defendant asserts that the trial court erred in allowing the testimony of witnesses who said that the Browns had told them Eddie sustained his injuries in a fall downstairs. Both of the witnesses who testified to this effect spoke with Evajean and Mack Brown at the same time and could not remember which one of them said that Eddie fell down the stairs. The defendant contends that this testimony was inadmissible because the witnesses could not say with certainty that Mack Brown made the statement in question.
The defendant erroneously relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in contending that this evidence should have been excluded. The defendant asserts that the use of these statements at trial was akin to the use, at trial, of a co-defendant's confession containing statements tending to incriminate the non-confessing defendant. The theory for the exclusion of such confessions under Bruton is that the confrontation clause of the United States Constitution is violated when such a confession of a co-defendant (who denies the confession or does not testify) is admitted into evidence, because the inculpated non-confessing defendant is denied the opportunity to cross-examine the maker of the inculpating statements.
This case is distinguishable from the problem addressed in Bruton. Although indicted together, the Browns were tried separately. The statements are not in the nature of a confession, and they do not [551] facially indicate that at the time they were made Evajean Brown blamed Mack Brown for Eddie's death. At most, they indicate that Mack and Evajean Brown acted together to try to conceal the true source of Eddie's injuries. Mack Brown's rights under the confrontation clause were not violated, because he had the opportunity to cross-examine the witnesses on the crucial issue of whether these statements were made and, if so, whether he was himself present and aware of the effort to explain Eddie's injuries.
These statements were certainly relevant, not because of their specific content, but because their very existence indicates that an attempt was made to explain away the source of Eddie's injuries. Moreover, there is no hearsay problem. A statement introduced to prove only that it was made, regardless of the truth or falsity of the statement, does not violate the rule against hearsay. Cannon v. Chadwell, 25 Tenn. App. 42, 150 S.W.2d 710, 712 (1941).
10. Admissibility of Photographs
The defendant contends that the trial court erred in admitting various photographs of the victim's body and in allowing these photographs to be presented repeatedly to the jury. Although the defendant concedes that the photographs may be relevant and material to establish the elements of the offense, State v. Harbison, 704 S.W.2d 314, 317-318 (Tenn. 1986), he argues that in this case the prejudicial effect of the photographs substantially outweighs their probative value, under the standards of State v. Banks, 564 S.W.2d 947 (Tenn. 1978).
Nine close-up color photographs of Eddie's body were introduced and presented to the jury. Exhibit #2 shows Eddie's face and the front of his right ear. Exhibit # 4 shows the right side of Eddie's head with a hand folding the top of his right ear over to expose the lacerations behind and above his right ear. Exhibit # 5 is a photograph of Eddie's body from the bottom of his rib cage to just above his knees, showing bruises on his body and his genitals. Exhibit # 6 shows the bruises on Eddie's lower back and buttocks. Exhibit # 12 shows Eddie's left foot and left leg from just below the knee. This photograph depicts the injury on Eddie's left big toe. Exhibit # 13 shows the left side of Eddie's face, his left ear and the top of his chest. Exhibit # 14 shows the back of Eddie's head and neck as his body is lying on its right side. This photograph shows the injuries to his neck, his left shoulder blade, the back of his left ear and the back of his right shoulder. Exhibit # 15 shows Eddie's body from the waist down to just above the right knee. In this photograph, Eddie is wearing a diaper and his right leg is bent at the hip to show the side and back of his leg. Exhibit # 15 shows Eddie's neck, chest, and left arm to just below his elbow.
Each of these photographs is clearly relevant and admissible as evidence of the brutality of the attack and the extent of the force used against the victim, from which the jury could infer malice, either express or implied. State v. Banks, supra, 564 S.W.2d at 950. Each is a unique representation of a different portion of the victim's body. No two photographs depict the same injuries. Although oral testimony was also presented, graphically describing the injuries independent of these photographs, we cannot say that there was a clear showing of abuse of discretion in the admission of these photographs. Id. at 949.
The defendant also argues that, even if the photographs were relevant and admissible, their repeated presentation to the jury during the testimony of different witnesses resulted in prejudice that outweighed the probative value of their repeated use. In State v. Banks, supra, 564 S.W.2d at 951, we adopted Rule 403 of the Federal Rules of Evidence, which provides that even relevant evidence should be excluded if its prejudicial effect substantially outweighs its probative value. Rule 403 further provides that probative value may be outweighed by the needless presentation of cumulative evidence. Thus, the cumulative effect of the repeated presentation of the same photographs could constitute prejudice outweighing their probative value, [552] even if an isolated photograph was otherwise admissible.
This determination rests in the sound discretion of the trial judge, however, as does the determination to admit or limit any cumulative evidence. See Shields v. State, 197 Tenn. 83, 270 S.W.2d 367 (1954); State v. Reynolds, 666 S.W.2d 476 (Tenn. Crim. App. 1984). In this case, the record does not indicate an abuse of discretion in the admission of the photographs in question.
11. Admissibility of Other Exhibits
The defendant complains about the admission of certain items of physical evidence, on the grounds that the state did not establish the relevance of this evidence and that the trial judge should have excluded it based on its prejudicial impact on the jury. We have reviewed this evidence and find no error in its admission. The paper bag containing vomit was relevant in light of testimony that the autopsy of Eddie's lungs revealed that he had aspirated vomit. Likewise the other items complained of — the mop, dishpan, and water, and the items of clothing — were relevant given the defendant's statement that he had attempted to clean up after Eddie had urinated, defecated, and bled on the floor.
12. Limitations on Expert Testimony
The defendant alleges that the trial judge abused his discretion by restricting the testimony of defense witness Dr. Eric Engum. Engum, a clinical psychologist, testified during the guilt phase of the trial in support of the defendant's insanity theory and therefore touched on the defendant's mental retardation. During the state's cross-examination, the trial court admonished Engum on three occasions to respond to the questions without volunteering additional testimony. When the defense objected to the second admonition, requesting that Engum be allowed to explain his responses to the prosecutor's questions, the trial judge responded:
He can explain if he needs to explain, but I don't want all of this in the record. This jury doesn't need to hear this. Proceed.
In making yet another admonition, the trial judge said, "Doctor, this is the third time. I've warned you. I will not warn you one more time without some action."
The trial court must be given reasonable latitude in controlling the course of the trial. Cordell v. Ward School Bus Mfg. Inc., 597 S.W.2d 323 (Tenn. App. 1980). Having reviewed the entire record of this case, we cannot say that the trial judge abused his discretion in the manner in which he directed the course of Engum's testimony. If the trial judge did not consistently maintain a tone of patient impartiality toward a particular witness, as the defense maintains, that fact would be regrettable, of course. But it might not be subject to adequate review on appeal, simply because of the limitations of a written record. In any event, we cannot say, as the defense would have us conclude, that the trial court's demeanor in this case adversely affected the credibility of the witness. Dr. Engum's credibility was more likely affected by his total lack of prior experience as a courtroom witness than by the trial court's comments on his testimony.
13. Comments During Closing Argument
The defendant argues that the trial court erred in the wide latitude given to the state during closing argument. Having reviewed the entire record in this case, including the arguments of the prosecutor and defense counsel, we can find no abuse of discretion in the manner in which the trial judge controlled closing argument. See State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978) (standard of review is abuse of discretion). The prosecutor is warranted in making an argument to the jury when that argument is supported by evidence introduced at trial. State v. Beasley, 536 S.W.2d 328, 330 (Tenn. 1976). Further, the prosecutor may state an ultimate conclusion which would necessarily follow if the testimony of the prosecution witnesses were believed by the jury. Id. In this case, the prosecutor's argument was well-grounded [553] in the evidence presented at trial, recounting that evidence and the permissible inferences that could legitimately be drawn from it.
14. Jury Instructions
The defendant challenges the jury instructions given in the guilt phase of the trial in several respects. First, he asserts that the trial court erred in giving the following charge:
The failure of the defendant to remember the details of the alleged crime or to remember any of the facts leading up to and surrounding the commission of the alleged crime is in itself no defense to this charge.
The state requested that an instruction on amnesia be given, in light of the defendant's statement that he remembered spanking the child only with the open part of his hand. With reference to the events of April 10, 1986, he stated, "I don't have comprehension of fully remembering what, of what might have took or did take place... ." He described the period of time during which Eddie was apparently beaten as "a blank" in his mind and stated that he did not fully come back to his senses until after he arrived at the hospital.
The state initially requested an instruction that "amnesia alone" is not a defense to a criminal charge. The defense complained to the trial court that the use of the words "amnesia alone" would constitute a comment on the evidence by the court, as it would unduly characterize the evidence presented on the defendant's mental condition. On appeal, the defendant complains that the instruction as given was misleading and prejudicial because, in the context of the defense's insanity theory, an instruction relating to amnesia was irrelevant to the issues at trial.
The trial judge has a duty to give a complete charge of the law applicable to the facts of the case. State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986). Although the defendant has a right to have every issue of fact raised by the evidence and material to his defense submitted to the jury upon proper instructions by the judge, State v. Thompson, 519 S.W.2d 789, 792 (Tenn. 1975), the trial judge may also be required to charge the jury on matters not disputed by the defense. See Taylor v. State, 582 S.W.2d 98, 100 (Tenn. Crim. App. 1979).
The statement made by the defendant that was presented to the jury raised questions about his memory of the events surrounding his son's death. There was no error in giving an instruction necessitated by this evidence.
The defendant also alleges that the trial court erred in refusing to give a jury instruction on the lesser included offense of voluntary manslaughter. The trial court instructed the jury on the elements of first-degree murder and the lesser included offenses of second-degree murder and involuntary manslaughter.
At the time of trial, manslaughter was defined by statute as "the unlawful killing of another without malice, either express or implied, which may be voluntary upon a sudden heat, or involuntary, but in the commission of some unlawful act." T.C.A. § 39-2-221. Before a defendant can be found guilty of voluntary manslaughter, there must be evidence that he acted in a state of passion sufficient to obscure his reason and that the passion was produced by reasonable and adequate provocation. Freddo v. State, 127 Tenn 376, 155 S.W. 170 (1912); State v. Morgan, 541 S.W.2d 385 (Tenn. 1976); Howard v. State, 506 S.W.2d 951 (Tenn. Crim. App. 1973).
The defendant insists that a charge of voluntary manslaughter was appropriate here, citing by analogy Capps v. State, 478 S.W.2d 905 (Tenn. Crim. App. 1972). In Capps, the defendant became "ungeared, so to speak, with the birth of [her] child." Id. at 906. Although her husband sought medical help for the mother and placed the baby with both sets of grandparents, the child's life came to a tragic end when her mother killed her after she had been grabbing at her legs and dress and running through the house. Id. The mother was charged with second-degree murder and [554] convicted of voluntary manslaughter. Although the Court of Criminal Appeals noted that the mother was in an excited, generally distraught emotional state, brought about at least in part by the child's behavior, id. at 907, the court did not address whether the child's actions constituted the "reasonable and adequate provocation" element of voluntary manslaughter. Rather, the court based its holding on the distinction between voluntary and involuntary manslaughter. Because the homicide was a killing with intent to inflict the injury that produced death, as evidenced by the severity of the child's injuries, the court affirmed the jury's verdict of voluntary manslaughter. Id. Thus the defendant's reliance on Capps in this case is not well placed, because in Capps the rationale of the Court of Criminal Appeals did not rest on provocation.
Moreover, we believe that it is a virtual legal impossibility for a small child to commit an act that would amount to provocation sufficient to make his subsequent death voluntary manslaughter rather than murder. Because the evidence presented at Mack Brown's trial failed to satisfy the elements of voluntary manslaughter, the trial court did not err in refusing to instruct on this lesser included offense. State v. Mellons, 557 S.W.2d 497 (Tenn. 1977); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949). To the extent that this holding conflicts with the language or the result in Capps v. State, supra, that opinion is expressly overruled.
Conclusion
For the reasons set out above, we reverse the defendant's first-degree murder conviction, modify the judgment of the trial court to reflect his conviction of murder in the second degree, and remand the case to the trial court for resentencing.
REID, C.J., and DROWOTA, O'BRIEN and ANDERSON, JJ., concur.
[1] Eddie's mother was charged as well, but her trial ended in a mistrial and because of double jeopardy considerations, she cannot be retried. See section 4, infra.
[2] There is some question as to whether this was actually a fracture or simple growth plates in the skull which had failed to join, making the normal suture resemble a fracture.
[3] The significance of this testimony is that the child could have sustained these injuries at 4 a.m. (when a neighbor heard the fight between his parents) and not have begun the process of vomiting and dying until just before the ambulance was called at 9 a.m.
[4] The neurological surgeon testified that "contrecoup" is French for "back and forth."
[5] There was testimony that Mack Brown smoked cigarettes but Evajean Brown did not. The nurse who characterized this wound as a cigarette burn did not make a notation to this effect in Eddie's chart. For further discussion on this point, see section 8, infra.
[6] For further discussion of the defendant's IQ scores, see section 15, infra.
[7] Acts 1829, Ch. 23, § 3 provides in pertinent part: "All murder which shall be perpetrated by means of poison, lying in wait or by any other kind of willful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of or attempt to perpetrate any arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree."
[8] At common law and in Tennessee prior to 1829, the only penalty provided for murder was death; the creation of second-degree murder introduced the possibility of a life sentence upon conviction.
[9] See, e.g., Winton v. State, 151 Tenn. 177, 268 S.W. 633, 638 (1924), in which the Court noted: "The distinction between the two degrees of murder is well defined by our statutes, and the decisions of this court. If those charged with the enforcement of the criminal laws would not insist upon convictions for first-degree murder when the facts do not justify it, the result would be more affirmances in this court, and the trouble and expense of new trials would, in many instances, be avoided."
[10] "Passion" has been defined as "[a]ny of the emotions of the mind [reflecting] anger, rage, sudden resentment, or terror, rendering the mind incapable of cool reflection." Winton v. State, 151 Tenn. 177, 268 S.W. 633, 637 (1925), repeated in State v. Bullington, 532 S.W.2d 556, 560 (Tenn. 1976).
[11] "Focus" was explicitly repudiated as a basis for determining whether a suspect is "in custody" for purposes of Miranda in Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976).
7.2.8.3.2.2 III.B.ii Murder v. Voluntary Manslaughter 7.2.8.3.2.2 III.B.ii Murder v. Voluntary Manslaughter
Distinctions within the group of crimes known as “homicide” depend on more than the different mens rea levels associated with a killing. Knowing that a person killed someone (act) with purpose or knowledge (mens rea) does not necessarily mean that the person committed “murder.” Criminal law sometimes takes additional circumstances into account when assigning blame. In the case of knowingly or purposefully killing someone, provocation or extreme emotional disturbance might mitigate the crime of murder down to voluntary manslaughter. As the cases below demonstrate, different courts have taken different approaches in defining whether and what circumstances might lessen the seriousness of an intentional killing. As you read these cases, consider the challenges that courts face when they downgrade a crime committed with the same basic act, result, and mens rea. Where and how do courts draw lines between which circumstances mitigate murder, and which circumstances don’t? In determining the effect of provocation or emotional distress, should courts look at a criminal’s individual nature, or hold him/her to an objective standard?
7.2.8.3.2.2.1 Maher v. People 7.2.8.3.2.2.1 Maher v. People
10 Mich. 212
William Maher
v.
The People.
Supreme Court of Michigan.
May 21, 1862.
In a prosecution for an assault with intent to murder, the actual infant to kill must be found, and that under circumstances which would make the killing murder.
Malice aforethought is as essential an ingredient of the offense of murder as the act of filling, and the presumption of Innocence applies equally to both ingredients of the offense. Hence the burden of proof, as to each, rests upon the prosecution.
If a homicide be committed under the influence of passion, or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offense is manslaughter only, and not murder.
To reduce the offense to this grade, the reason must, at the time of the act, he disturbed or obscured by passion to an extent which might render an ordinary man, of fair average disposition, liable to act rashly, or without due deliberation or reflection, and from passion rather than judgment
The question as to what is an adequate or reasonable provocation, is one of fact for the jury.
So also is the question whether a reasonable time had elapsed for the passions to cool, and reason to resume its control.
Indictment for assault with intent to murder one H. The prisoner offered evidence tending to show the commission of adultery by H. with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going into the woods together under circumstances calculated strongly to impress upon MB mind the belief of an adulterous purpose; that he followed after them to the woods; that they were seen not long after coming from the woods, and that the prisoner followed on in hot pursuit, and was informed on the way that they had committed adultery on the day before; that he followed H. into a saloon, in # state of excitement, and there committed the assault. Held, that the evidence was proper, as from it it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which would have given to the homicide, had death ensued, the character of manslaughter only. Held further, that these facto, and all the circumstances which led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was the real nature of the act, and the state of mind and intention with which it was done.
The statement of the prisoner in a criminal case is for the consideration of the jury, who may give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.
Heard April 19th. Decided May 21st.
Error to Houghton District Court. The case is sufficiently stated in the opinion of CHRISTIANCY J.
Buel & Trowbridge, for plaintiff in error :
1. Malice aforethought is the grand criterion which distinguishes murder from all other killings.
The quo anima, or state of mind under which the offense is committed, is always a legitimate subject of inquiry: — Bish. Or. Z. § 227; 2 Ibid. § 616; Pond v. People, 8 Mich. 150; 3 Inst. 103; Burr. Cir. Ev. 282 and n.
Accordingly the appearance of an actual necessity for taking life in self-defense, though it in fact do not exist, may justify the act; insanity may excuse it, and sudden transport of passion may mitigate it to a lesser offense. Yet each of these circumstances is a state of the mind.
The definition itself of murder requires, that it be committed by a person of sound mind and memory, and with malice aforethought: — 3 Coke's Inst. 47; 4 Bl. Com. 195. Each of these ingredients is a fact; each puts in issue the state of the mind, and each must be passed upon by the jury.
In a case of murder it is always a proper subject of inquiry, whether the accused acted from deliberation and intelligence; whether he had command of his passions and acted from a mind undisturbed; or whether reason had lost in part its sway:— 2 Bish. Or. L. §§630, 631 and n; 1 East P. C. 222; Whart. Cr. L. §§ 983, 984; Burr. Cir. Ev. 284 and n.
It is a true test of manslaughter that the homicide be committed in a sudden transport of passion arising upon a reasonable provocation, and without malice. The law requires only a reasonable provocation. The authorities use the terms adequate, sufficient and reasonable, when applied to the provocation, as equivalent: — 1 East P. G. 232. Whart. Cr. L. § 987; 2 Bish. Cr. I. §630 and n; 11 Humph. 200. A reasonable provocation, is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.
By sufficient cooling time, is meant a reasonable time; therefore, each case depends on its own circumstances:— Whart. Cr. L. § 990; 2 Bish. Cr. L. § 641; 1 Speers, 384. A reasonable cooling time, is that for which a good reason can be given, and in which the sudden transport of passion might naturally and rationally, according to the laws of the human mind, pass away.
2. Acting on information: " When it becomes a subject of inquiry whether a person acted bona fide, prudently or wisely, the information and circumstances on the faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecution :"— Whart. Cr. X,. § 603; 1 Greenl. Ev. §101, and n. Such evidence bears directly upon the question of malice, and state of the prisoner's mind. In the following cases of alleged murder, the parties acted under provocation arising on information which was admitted in evidence: — Gases of Jarboe, of Mercer, and of Norman, cited in Sickles' case; Boyley's case, 2 Gro. 296; Mc Whirl's case, 3 Gratt. 594.
So evidence is often admitted of information communicated to the prisoner, of prior threats against him by the assailing party. See Pond's case, 8 Mich. 153.
3. As to the taking in the act; the law does not require that the husband stand by and actually see the adulterous act.
Adultery can always be proved by facts and circumstances. Those offered in this case transpired under the eyes of the accused; they tended to establish a taking in the act, within the meaning of the law. Would a blind man be without protection when his remaining senses leave no room for doubt?
A mistake may exist; still "the guilt of the accused must depend upon the circumstances as they appear to him." One may act in self-defense upon reasonable grounds for believing that the danger is actual and imminent, though he be mistaken:—Pond's case, 8 Mich. 150.
So too, an insane delusion or belief may exist, as to unreal facts, which will justify or excuse a homicide committed under its influence, if, being real, they would have that effect: — 1 JBish. Cr. L. § 235.
4. As to the res gestae: most of the matters offered and excluded immediately preceded the assault, tended to illustrate it, were directly connected with it as its cause, and with it constituted one continuing occurrence. They were, therefore, clearly admissible in evidence as belonging to the res gestae: — Potter's case, 5 Mich. 5; 1 Greenl. Ev. § 108 and n.
They belong to the class of concomitant circumstances, 'which include those immediately following and preceding the criminal act, as well as those strictly contemporaneous with it : — Burr. Cir. Ev. 368.
G. Upson, Attorney General, for the People :
If a husband find his wife in the act of adultery, and, provoked by the wrong, instantly takes the life of the adulterer, the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act. In all cases the party must see the act done, and if, after merely hearing of, or suspecting such an outrage, the wronged individual immediately takes vengeance on the other, by pursuing and killing him, his offense is murder : — Foster, 296; T. JRaym. 212; 1 Vent. 158; 1 East P. G. 234; 8 C. & P. 182; 2 C. & K. 814; 3 Graft. 594; 8 Ired. Law, 330; 1 Buss, on Or. 525 and 581; 2 Bish. Cr. Z. §638 and notes 2, 3 and 4; -Whar. Cr. L. § 984 and n. a, Uh ed.
The books which speak of the slaying of the adulterer by the husband as only manslaughter under certain circumstances, all instance the case where he finds the adulterer in the act of adulterous intercourse with his wife, and immediately kills him; but none of the cases speak of thus justifying the killing of a person by the husband, on account of information or suspicion of acts of adultery committed with his wife. Most of them expressly say that in all such circumstances the killing would be murder. See particularly on this point the language of the Court in 8 Car. & P. 182, and 2 C. & K. 814, above quoted.
CHRISTIANCY, J.
The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of his sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way t o the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner's wife had had sexual intercourse the day before in the woods- This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing—had death ensued—from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder ? If the homicide—in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.
Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facit reum nisi mens sit rea." People v Pond, 8 Mich. 150.
To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime c m not exist; and, as every man is presumed innocent of the offense with which h e is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense—to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, re«is equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice aforethought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, a^ presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole evidence it did not exist. I do not here speak of those cases in which the death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.
But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool End reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.
To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. " W e must therefore endeavor to discover the principle upon which the question is to be determined. It "will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition: State v. Hill, 1 Dev. & Sat. 491; Haile v. State, 1 Swan, 2 4 8; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent t o utter insanity, and, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to which the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree within which ordinary men have the power, and are therefore morally as well as legally bound, to restrain their passions. It is only on the idea of a violation of this clear duty, that the act can be held criminal. There are many cases t o be found in the books in which this consideration, plain as it would seem t o be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was between murder and excusable homicide.
The principle involved in the question, and which, I think, clearly deducible from the majority of well considered cases, would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment. To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them—not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.
In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard—unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition. It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.
The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, lie may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular ca«e. ' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1800, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts which shall be hold to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.
The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must be held to have subsided and reason to have resumed its control, without setting at defiance the laws of man's nature, and ignoring the very principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense. The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. I n such case, where the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for the jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Hex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th e<£, § 990 and cases cited. I am aware there are many cases in which it has been held a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case should be very clear. And in cases of applications, for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.
It remains only to apply these principles to the present case. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner's wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner's wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they had committed adultery the day before in the woods. I can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and "great perspiration" exhibited on entering the saloon, the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the j u r y to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.
But there is still a further reason why the evidence should have been admitted. N o other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the j u r y were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may be to establish guilt or innocence; but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness to the prisoner, be laid before the jury by the prosecution. They naturally constitute the prosecutor's case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by analogy, Holders case, 8 O. & P. 606; Stoner's case, 1 C & K. 650; Chapmarts case, 8 C. & P. 559; Orchard's case, Ibid, note; Roscoe Cr. Ev.). 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. I n the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. §29. But however this may be, it was clearly competent for the defendant to 6how the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected. After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner's counsel requested the Court to charge, that the prisoner's statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner's counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner's -wife; but that where there were facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner's statement in considering the evidence, and give it such weight as they thought proper.
The only substantial error of the Court in relation to this " statement," is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner's wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. " Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.
The judgment should be reversed, and a new trial granted.
MARTIN C. J. and CAMPBELL J. concurred.
J.: MANNING
I differ from my brethren in this case. I think the evidence was properly excluded. To make that manslaughter which would otherwise be murder, the provocation—I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. PAKK J. in Regina v. Fisher, 8 C. & JP. 182, in speaking of the cause of provocation says, " I n all cases the party must see the act done." Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fislier, 8 G. cb P. 182; Regina v. Kelly, 2 C. d> K. 814; and State v. John, 8 Ired. 330.
I think the judgment should be affirmed.
Judgment reversed, and new trial ordered.
7.2.8.3.2.2.2 Girouard v. State 7.2.8.3.2.2.2 Girouard v. State
321 Md. 532
583 A.2d 718
Steven Saunders Girouard
v.
State of Maryland.
No. 65, Sept. Term, 1989.
Court of Appeals of Maryland.
Jan. 8, 1991.
Defendant was convicted before the Circuit Court for Montgomery County, James S. McAuliffe, J., of second [533] degree murder, and he appealed. The Court of Special Appeals affirmed, and defendant petitioned for certiorari. The Court of Appeals, Cole, J., held that: (1) words alone are not adequate provocation to mitigate murder to manslaughter, and (2) taunting words of wife in course of domestic argument were not provocation adequate to reduce second degree murder charge to voluntary manslaughter, as provocation was not enough to cause reasonable man to stab wife 19 times.
Affirmed.
[534] Nancy S. Forster, Asst. Public Defender and George E. Burns, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, J. Theodore Wiesman, Dist. Public Defender, all on brief), Baltimore, for petitioner.
Valerie J. Smith, Asst. Atty. Gen. (J. Joseph Curran Jr., Atty. Gen., both on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., ELDRIDGE and RODOWSKY, JJ., and COLE,[**] ADKINS,[*] BLACKWELL[*] and MARVIN H. SMITH (retired), Court of Appeals Judges, Specially Assigned.
COLE, Judge.
In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.
The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.
[535] On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom.
Joyce followed him into the bedroom, stepped up onto the bed and onto Steven's back, pulled his hair and said, "What are you going to do, hit me?" She continued to taunt him by saying, "I never did want to marry you and you are a fuck and you remind me of my dad."[1] The barrage of insults continued with her telling Steven that she wanted a divorce, that the marriage had been a mistake and that she had never wanted to marry him. She also told him she had seen his commanding officer and filed charges against him for abuse. She then asked Steven, "What are you to do?” Receiving no response, she continued her attack. She added that she had filed charges against him in the Judge Advocate General's Office (JAG) and that he would probably be court martialed.[2]
When she was through, Steven asked her if she had really done all those things, and she responded in the affirmative. He left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking. She said she [536] had learned a lot from the marriage and that it had been a mistake. She also told him she would remain in their apartment after he moved out. When he questioned how she would afford it, she told him she would claim her brain-damaged sister as a dependent and have the sister move in. Joyce reiterated that the marriage was a mistake, that she did not love him and that the divorce would be better for her.
After pausing for a moment, Joyce asked what Steven was going to do. What he did was lunge at her with the kitchen knife he had hidden behind the pillow and stab her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.
When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene.
At trial, defense witness, psychologist, Dr. William Stejskal, testified that Steven was out of touch with his own capacity to experience anger or express hostility. He stated that the events of October 28, 1987, were entirely consistent with Steven's personality, that Steven had “basically reach[ed] the limit of his ability to swallow his anger, to rationalize his wife's behavior, to tolerate, or actually to remain in a passive mode with that. He essentially went over the limit of his ability to bottle up those emotions. What ensued was a very extreme explosion of rage that was intermingled with a great deal of panic.” Another defense witness, psychiatrist, Thomas Goldman, [537] testified that Joyce had a “compulsive need to provoke jealousy so that she's always asking for love and at the same time destroying and undermining any chance that she really might have to establish any kind of mature love with anybody.”
Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended. Upon his release, Petitioner is to be on probation for five years, two years supervised and three years unsupervised. The Court of Special Appeals affirmed the judgment of the circuit court in an unreported opinion. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.
Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant’s or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. Steven argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.
The State counters by stating that although there is no list of legally adequate provocations, the common law developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation.
According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argu [538] ment ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven’s second degree murder charge to voluntary manslaughter.
Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. State v. Faulkner, 301 Md. 482, 485, 483 A.2d 759 (1984); State v.Ward, 284 Md. 189, 195, 396 A.2d 1041 (1978); Davis v. State, 39 Md. 355 (1874). Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (Emphasis in original). Cox v. State, 311 Md. 326, 331, 534 A.2d 1333 (1988). See also, State v. Faulkner, supra; State v. Ward, supra; Whitehead v. State, 9 Md.App. 7, 262 A.2d 316 (1970).
There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. See State v. Faulkner, 301 Md. at 486, 483 A.2d 759. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. See, e.g., 40 C.J.S. Homicide § 50 at 915-16 (1944). Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. State v. Faulkner, 302 Md. at 486, 483 A.2d 759.
In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay [539] the template of the so-called “Rule of Provocation.” The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:
1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion—that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been causal connection between the provocation, the passion, and the fatal act.
Sims v. State, 319 Md. 540, 551, 573 A.2d 1317 (1990); Glenn v. State, 68 Md.App. 379, 406, 511 A.2d 1110, cert. denied, 307 Md. 599, 516 A.2d 569 (1986); Carter v. State, 66 Md.App. 567, 571, 505 A.2d 545 (1986); Tripp v. State, 36 Md.App. 459, 466,374 A.2d 384 (1977); Whitehead v. State, Md.App. at 11, 262 A.2d 316.
We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be “’calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.’” Carter v. State, 66 Md.App. at 572, 505 A.2d 545 quoting R. Perkins, Perkins on Criminal Law at p. 56 (2d ed. 1969). The issue we must resolve, then, is whether the taunting words by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.
[540] Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are adequate provocation. Most recently, in Sims v. State, 319 Md. 540, 573 A.2d 1317, we held that "[i]nsulting words or gestures, no matter how opprobrious, do not amount to an affray and standing alone, do not constitute adequate provocation.” Id. at 552, 573 A.2d 1317. That case involved the flinging of racial slurs and derogatory comments by the victim at the defendant. That conduct did not constitute adequate provocation.
In Lang v. State, 6 Md.App. 128, 250 A.2d 276, cert. denied, 396 U.S. 971, 90 S.Ct. 457, 24 L.Ed.2d 438 (1969), the Court of Special Appeals stated that it is “generally held that mere words, threats, menaces or gestures, however offensive and insulting, do not constitute adequate provocation." Id. at 132, 250 A.2d 276. Before the shooting, the victim had called the appellant "a chump" and “a chicken," dared the appellant to fight, shouted obscenities at him and shook his fist at him. Id. The provocation, again, was not enough to mitigate murder.
The court in Lang did note, however, that words can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. Id. Clearly, no such conduct was exhibited by Joyce in this case. While Joyce did step on Steven's back and pull his hair, he could not reasonably have feared bodily harm at her hands. This, to us, is certain based on Steven's testimony at trial that Joyce was about 5'1" tall and weighed 115 pounds, while he 6’2” tall, weighing over 200 pounds. Joyce simply did not have the size or strength to cause Steven to fear for his bodily safety. Thus, since there was no ability on the part of Joyce to cause Steven harm, the words she hurled at him could not, under the analysis in Lang, constitute legally sufficient provocation.
Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation. See, e.g., State v. Doss, 116 Ariz. 156, 568 P.2d 1054 (1977); [541] West v. United States, 499 A.2d 860 (D.C.App.1985); Nicholson v. United States, 368 A.2d 561 (D.C.App.1977); Hill v. State, 236 Ga. 703, 224 S.E.2d 907 (1976); Cox v. State, 512 N.E.2d 1099 (Ind. 1987); State v. Guebara, 236 Kan. 791, 696 P.2d 381 (1985); State v. Hilliker, 327 A.2d 860 (Me. 1974); Commonwealth v. Bermudez, 370 Mass.438, 348 N.E.2d 802 (1976); Gates v. State, 484 So.2d 1002 (Miss.1986); State v. Milosovich, 42 Nev. 263, 175 P. 139 (1918); State v. Mauricio, 117 N.J. 402, 568 A.2d 879 (1990); State v. Castro, 92 N.M. 585, 592 P.2d 185 (1979); State v. Best, 79 N.C.App.734, 340 S.E.2d 524 (1986); State v. Butler, 277 S.C. 452, 290 S.E.2d 1 (1982). One jurisdiction that does allow provocation brought about by prolonged stress, anger and hostility caused by marital problems to provide grounds for a verdict of voluntary manslaughter rather than murder is Pennsylvania. See Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 733-84 (1987). The Pennsylvania court left the determination of the weight and credibility of the testimony regarding the marital stress and arguments to the trier of fact.
We are unpersuaded by that one case awash in a sea of opposite holdings, especially since a Maryland case counters Nelson by stating that "the long-smoldering grudge . . . may be psychologically just as compelling a force as the sudden impulse but it, unlike the impulse, is a telltale characteristic of premeditation." Tripp v. State, 36 Md. App. at 471-72, 374 A.2d 384. Aside from the cases, recognized legal authority in the form of treatises supports our holding. Perkins on Criminal Law, at p. 62, states that it is "with remarkable uniformity that even words generally regarded as 'fighting words' in the community have no recognition as adequate provocation in the eyes of the law." It is noted that
mere words or gestures, however offensive, insulting, or abusive they may be, are not, according to the great weight of authority, adequate to reduce a homicide, although committed in a passion provoked by them, from murder to manslaughter, especially when the homicide [542] was intentionally committed with a deadly weapon[.](Footnotes omitted)
40 C.J.S. Homicide §47, at 909 (1944). See also 40 Am. Jur.2d Homicide § 64, at 357 (1968).
Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. Although a psychologist testified to Steven's mental problems and his need for acceptance and love, we agree with the Court of Special Appeals speaking through Judge Moylan that "there must be not simply provocation in psychological fact, but one of certain fairly well-defined classes of provocation recognized as being adequate as a matter of law." Tripp v.State, 36 Md.App. at 473, 374 A.2d 384. The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the spouse.
We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.
JUDGMENT AFFIRMED WITH COSTS.
Judge ELDRIDGE concurs in the result only.
[**] Cole, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.
[*] Adkins, J., and Blackwell, J., now retired, participated in the hearing and conference of this case while active members of this Court but did not participate in the decision and adoption of this opinion.
[1] There was some testimony presented at trial to the effect that Joyce had never gotten along with her father, at least in part because he had impregnated her when she was fourteen, the result of which was an abortion. Joyce's aunt, however, denied that Joyce's father was the of Joyce's child.
[2] Joyce lied about filing the charges against her husband.
7.2.8.3.2.2.3 People v. Casassa 7.2.8.3.2.2.3 People v. Casassa
v.
Victor CASASSA, Appellant.
[404 N.E.2d 770] Anne C. Feigus and Ronald P. Fischetti, New York City, for appellant.
Denis Dillon, Dist. Atty. (Judith Rubinstein Sternberg and William C. Donnino, Mineola, of counsel), for respondent.
OPINION OF THE COURT
JASEN, Judge.
The significant issue on this appeal is whether the defendant, in a murder prosecution, established the affirmative defense of "extreme emotional disturbance" which would have reduced the crime to manslaughter in the first degree.
On February 28, 1977, Victoria Lo Consolo was brutally murdered. Defendant Victor Casassa and Miss Lo Consolo had been acquainted for some time prior to the latter's tragic death. They met in August, 1976 as a result of their residence in the [404 N.E.2d 771] same apartment complex. Shortly thereafter, defendant asked Miss Lo Consolo to accompany him to a social function and she agreed. The two apparently dated casually on other occasions until November, 1976 when Miss Lo Consolo informed defendant that she was not "falling in love" with him. Defendant claims that Miss Lo Consolo's candid statement of her feelings "devastated him."
Miss Lo Consolo's rejection of defendant's advances also precipitated a bizarre series of actions on the part of defendant which, he asserts, demonstrate the existence of extreme emotional disturbance upon which he predicates his affirmative defense. Defendant, aware that Miss Lo Consolo maintained social relationships with others, broke into the apartment below Miss Lo Consolo's on several occasions to eavesdrop. These eavesdropping sessions allegedly caused him to be under great emotional stress. Thereafter, on one occasion, he broke into Miss Lo Consolo's apartment while she was out. Defendant took nothing, but, instead, observed the apartment, disrobed and lay for a time in Miss Lo Consolo's bed. During this break-in, defendant was armed with a knife which, he later told police, he carried "because he knew that he was either going to hurt Victoria or Victoria was going to cause him to commit suicide."
Defendant's final visit to his victim's apartment occurred on February 28, 1977. Defendant brought several bottles of wine and liquor with him to offer as a gift. Upon Miss Lo Consolo's rejection of this offering, defendant produced a steak knife which he had brought with him, stabbed Miss Lo Consolo several times in the throat, dragged her body to the bathroom and submerged it in a bathtub full of water to "make sure she was dead."
The following day the police investigation of Miss Lo Consolo' death began. On the evening of March 1, 1977, Nassau County Police detectives came to the apartment building in which the crime had occurred. They were in the process of questioning several of the residents of the building when defendant presented himself to the police and volunteered that he had been in the victim's apartment on the night of the murder. While denying any involvement in the murder of Miss Lo Consolo, he professed a willingness to co-operate in the investigation.
The police accepted his offer of co-operation and requested that he accompany them to the Nassau County police headquarters in Mineola to discuss the matter further. On the way to Mineola, defendant was informed of his constitutional rights. He indicated that he understood his rights and that he nonetheless wished to co-operate. Defendant was interrogated by police for some nine and one-half hours thereafter and at 5:00 a. m. on the morning of March 2, 1977, he fully confessed to the murder of Victoria Lo Consolo, giving the police several oral and written statements detailing his involvement in the crime.
During the course of defendant's interrogation, his mother, worried because her son had not appeared at a planned social gathering, telephoned the Hempstead police to report her son as a missing person. She made several calls to the Hempstead Police Department and at least one to the Nassau County Police Department's seventh precinct in Manhasset between the hours of 11:00 p. m. on March 1, 1977 and 3:00 a. m. on March 2, 1977, and was informed by the officers at these stations that her son's whereabouts were unknown. She then telephoned the apartment of Victoria Lo Consolo. The officer on duty there told her of the murder and gave her no further information, but said that the police would return her call. At 4:00 a. m., having received no further information, she called the apartment again. This time another officer gave her a telephone number to call to seek further information about her son. A call to this number at 5:00 a. m. was also unavailing. However, a subsequent call to the Hempstead police yielded yet another number at the Nassau County Police Department. [404 N.E.2d 772] When Mrs. Casassa called this number, she was accurately informed that her son was held for questioning as a suspect in the Lo Consolo homicide. Thereafter, she came to the station and arranged to have counsel provided for her son.
On March 8, 1977, defendant was indicted and charged with murder in the second degree. Defendant made several pretrial motions seeking to suppress his statements to police and several pieces of real evidence which had been given to police during questioning. After a hearing, the motions were denied.
Defendant waived a jury and proceeded to trial before the County Court. The minutes of the suppression hearing were incorporated into the trial transcript and defendant's confessions were received into evidence. The defendant did not contest the underlying facts of the crime. Instead, the sole issue presented to the trial court was whether the defendant, at the time of the killing, had acted under the influence of "extreme emotional disturbance". (Penal Law, § 125.25, subd. 1, par. (a).) The defense presented only one witness, a psychiatrist, who testified, in essence, that the defendant had become obsessed with Miss Lo Consolo and that the course which their relationship had taken, combined with several personality attributes peculiar to defendant, caused him to be under the influence of extreme emotional disturbance at the time of the killing.
In rebuttal, the People produced several witnesses. Among these witnesses was a psychiatrist who testified that although the defendant was emotionally disturbed, he was not under the influence of "extreme emotional disturbance" within the meaning of section 125.25 (subd. 1, par. (a)) of the Penal Law because his disturbed state was not the product of external factors but rather was "a stress he created from within himself, dealing mostly with a fantasy, a refusal to accept the reality of the situation."
The trial court in resolving this issue noted that the affirmative defense of extreme emotional disturbance may be based upon a series of events, rather than a single precipitating cause. In order to be entitled to the defense, the court held, a defendant must show that his reaction to such events was reasonable. In determining whether defendant's emotional reaction was reasonable, the court considered the appropriate test to be whether in the totality of the circumstances the finder of fact could understand how a person might have his reason overcome. Concluding that the test was not to be applied solely from the viewpoint of defendant, the court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Accordingly, the trial court found defendant guilty of the crime of murder in the second degree. The Appellate Division affirmed, without opinion.
On this appeal defendant contends that the trial court erred in failing to afford him the benefit of the affirmative defense of "extreme emotional disturbance". It is argued that the defendant established that he suffered from a mental infirmity not arising to the level of insanity which disoriented his reason to the extent that his emotional reaction, from his own subjective point of view, was supported by a reasonable explanation or excuse. Defendant asserts that by refusing to apply a wholly subjective standard the trial court misconstrued section 125.25 (subd. 1, par. (a)) of the Penal Law. We cannot agree.
Section 125.25 (subd. 1, par. (a)) of the Penal Law provides that it is an affirmative defense to the crime of murder in the second degree where "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse." This defense allows a defendant charged with the commission of acts which would otherwise constitute [404 N.E.2d 773] murder to demonstrate the existence of mitigating factors which indicate that, although he is not free from responsibility for his crime, he ought to be punished less severely by reducing the crime upon conviction to manslaughter in the first degree. (Penal Law, § 125.25, subd. 1, par. (a); People v. Patterson, 39 N.Y.2d 288, 302, 383 N.Y.S.2d 573, 347 N.E.2d 898, affd. sub nom. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; see, also, Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)
In enacting section 125.25 (subd. 1, par. (a)) of the Penal Law, the Legislature adopted the language of the manslaughter provisions of the Model Penal Code (see § 201.3, subd. (1), par. (b) (Tent Draft No. 9)). The only substantial distinction between the New York statute and the Model Penal Code is the designation by the Legislature of "extreme emotional disturbance" as an "affirmative defense", thus placing the burden of proof on this issue upon defendant. (Penal Law, § 25.00, subd. 2; People v. Patterson, 39 N.Y.2d 288, 301, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra.) The Model Penal Code formulation, however, as enacted by the Legislature, represented a significant departure from the prior law of this State.
The "extreme emotional disturbance" defense is an outgrowth of the "heat of passion" doctrine which had for some time been recognized by New York as a distinguishing factor between the crimes of manslaughter and murder. (See 1829 Rev.Stat. of New York, Part IV, ch. I, tit. II, §§ 10, 12, 18; L.1881, ch. 676, § 189, subd. 2; § 193, subd. 2; Penal Law of 1909, § 1052, subd. 2.) However, the new formulation is significantly broader in scope than the "heat of passion" doctrine which it replaced. (People v. Patterson, 39 N.Y.2d 288, 302-303, 383 N.Y.S.2d 573, 347 N.E.2d 898, supra; People v. Shelton, 88 Misc.2d 136, 141-142, 385 N.Y.S.2d 708; Notes of the Staff of the State Commission on Revision of the Penal Law and Criminal Code, 1967 Gilbert, Criminal Law and Practice of New York, pp. 1C-61-62; Model Penal Code, § 201.3, Comment, pp. 46-47 (Tent Draft No. 9).)
For example, the "heat of passion" doctrine required that a defendant's action be undertaken as a response to some provocation which prevented him from reflecting upon his actions. (See, e. g., People v. Ferraro, 161 N.Y. 365, 375, 55 N.E. 931.) Moreover, such reaction had to be immediate. The existence of a "cooling off" period completely negated any mitigating effect which the provocation might otherwise have had. (See, e. g., People v. Fiorentino, 197 N.Y. 560, 563, 91 N.E. 195.) In Patterson, however, this court recognized that "(a)n action influenced by an extreme emotional disturbance is not one that is necessarily so spontaneously undertaken. Rather, it may be that a significant mental trauma has affected a defendant's mind for a substantial period of time, simmering in the unknowing subconscious and then inexplicably coming to the fore." (39 N.Y.2d, at p. 303, 383 N.Y.S.2d at p. 582, 347 N.E.2d, at p. 908.) This distinction between the past and present law of mitigation, enunciated in Patterson, was expressly adopted by the trial court and properly applied in this case.
The thrust of defendant's claim, however, concerns a question arising out of another perceived distinction between "heat of passion" and "extreme emotional disturbance" which was not directly addressed in Patterson, to wit: whether, assuming that the defense is applicable to a broader range of circumstances, the standard by which the reasonableness of defendant's emotional reaction is to be tested must be an entirely subjective one. Defendant relies principally upon our decision in Patterson and upon the language of the statute to support his claim that the reasonableness of his "explanation or excuse" should be determined solely with reference to his own subjective viewpoint. Such reliance is misplaced.
In Patterson, this court was concerned with the question of whether the defendant [404 N.E.2d 774] could properly be charged with the burden of proving the affirmative defense of "extreme emotional disturbance". In deciding that the defendant could constitutionally be required to carry such a burden, we noted that "(t) he purpose of the extreme emotional disturbance defense is to permit the defendant to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them." (39 N.Y.2d, at p. 302, 383 N.Y.S.2d, at p. 582, 347 N.E.2d, at p. 907.) We also noted that "(t)he differences between the present New York statute and its predecessor * * * can be explained by the tremendous advances made in psychology since 1881 and a willingness on the part of the courts, legislators, and the public to reduce the level of responsibility imposed on those whose capacity has been diminished by mental trauma." (Id., at p. 303, 383 N.Y.S.2d, at p. 908, 347 N.E.2d, at p. 582.) These comments, however, were relevant to our decision only insofar as they demonstrated that the affirmative defense of "extreme emotional disturbance" is a mitigating factor which the defendant must prove as opposed to a substantive element of the crime of murder which the People must prove.
Defendant, however, would read Patterson as holding that all mental infirmity, short of insanity, must constitute "extreme emotional disturbance" if such infirmity causes the defendant to become emotionally disturbed and the defendant subjectively believed his disturbance had a reasonable explanation or excuse. While it is true that the court in Patterson recognized that "extreme emotional disturbance" as contemplated by the statute is a lesser form of mental infirmity than insanity, [1] the court did not hold that all mental infirmities not arising to the level of insanity constitute "extreme emotional disturbance" within the meaning of the statute. This question was not presented to us in Patterson and we did not decide it. Defendant's attempt to further extend our holding in Patterson to support the proposition that the reasonableness of the explanation or excuse for defendant's emotional disturbance must be tested from the subjective viewpoint of defendant is completely unavailing, for that case had nothing whatever to do with this issue.
Having determined that our decision in Patterson does not require that reasonableness be tested with a completely subjective standard, we must now determine whether the language of the statute or the legislative history of the statute indicates that such a standard is required.
Section 125.25 (subd. 1, par. (a)) of the Penal Law states it is an affirmative defense to the crime of murder that "(t)he defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be." Whether the language of this statute requires a completely subjective evaluation of reasonableness is a question that has never been decided by this court, although it has been raised in our lower courts with diverse results. (Compare People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra, with People v. Lyttle, 95 Misc.2d 879, 884, 408 N.Y.S.2d 578.) Moreover, although several States have enacted identical or substantially [404 N.E.2d 775] similar statutes (see Conn.Gen.Stat.Ann., § 53a-54, subd. (a), par. (1); Del.Code Ann., tit. 11, § 641; Hawaii Penal Code, § 707-702, subd. (2); Ky.Rev.Stat., § 507.020, subd. (1), par. (a); Rev.Codes of Mont., § 94-5-103; N.D. Century Code, § 12.1-16-02; Ore.Rev.Stat., § 163.115; Utah Code Ann., § 76-5-205), only one decision of the highest court of any of our sister States which has addressed this question has been called to our attention (State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979)) and that court expressly followed Justice Bentley Kassal's well-reasoned opinion in People v. Shelton, 88 Misc.2d 136, 385 N.Y.S.2d 708, supra.
Consideration of the Comments to the Model Penal Code, from which the New York statute was drawn, are instructive. (Model Penal Code, § 201.3, Comment (Tent Draft No. 9 (1959)).) The defense of "extreme emotional disturbance" has two principal components (1) the particular defendant must have "acted under the influence of extreme emotional disturbance", and (2) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, "the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be". The first requirement is wholly subjective i. e., it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or sham.
The second component is more difficult to describe i. e., whether there was a reasonable explanation or excuse for the emotional disturbance. It was designed to sweep away "the rigid rules that have developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be enough" (id., at pp. 46-47), and "avoids a merely arbitrary limitation on the nature of the antecedent circumstances that may justify a mitigation" (id.). "The ultimate test, however, is objective; there must be 'reasonable' explanation or excuse for the actor's disturbance" (id., at p. 41). In light of these comments and the necessity of articulating the defense in terms comprehensible to jurors, we conclude that the determination whether there was reasonable explanation or excuse for a particular emotional disturbance should be made by viewing the subjective, internal situation in which the defendant found himself and the external circumstances as he perceived them at the time, however inaccurate that perception may have been, and assessing from that standpoint whether the explanation or excuse for his emotional disturbance was reasonable, so as to entitle him to a reduction of the crime charged from murder in the second degree to manslaughter in the first degree. [2] We recognize that even such a description of the defense provides no precise guidelines and necessarily leaves room for the exercise of judgmental evaluation by the jury. This, however, appears to have been the intent of the draftsmen. "The purpose was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions, with the jury asked to show whatever empathy it can." (Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Col.L.Rev. 1425, 1446.)
By suggesting a standard of evaluation which contains both subjective and objective elements, we believe that the drafters of the code adequately achieved their dual goals of broadening the "heat of passion" doctrine to apply to a wider range of circumstances while retaining some element of objectivity in the process. The result of their draftsmanship is a statute which offers the defendant a fair opportunity to [404 N.E.2d 776] seek mitigation without requiring that the trier of fact find mitigation in each case where an emotional disturbance is shown or as the drafters put it, to offer "room for argument as to the reasonableness of the explanations or excuses offered."
We note also that this interpretation comports with what has long been recognized as the underlying purpose of any mitigation statute. In the words of Mr. Justice Cardozo, referring to an earlier statute: "What we have is merely a privilege offered to the jury to find the lesser degree when the suddenness of the intent, the vehemence of the passion, seems to call irresistibly for the exercise of mercy. I have no objection to giving them this dispensing power, but it should be given to them directly and not in a mystifying cloud of words." (Cardozo, Law and Literature, pp. 100-101.) In the end, we believe that what the Legislature intended in enacting the statute was to allow the finder of fact the discretionary power to mitigate the penalty when presented with a situation which, under the circumstances, appears to them to have caused an understandable weakness in one of their fellows. Perhaps the chief virtue of the statute is that it allows such discretion without engaging in a detailed explanation of individual circumstances in which the statute would apply, thus avoiding the "mystifying cloud of words" which Mr. Justice Cardozo abhorred.
We conclude that the trial court, in this case, properly applied the statute. The court apparently accepted, as a factual matter, that defendant killed Miss Lo Consolo while under the influence of "extreme emotional disturbance", a threshold question which must be answered in the affirmative before any test of reasonableness is required. The court, however, also recognized that in exercising its function as trier of fact, it must make a further inquiry into the reasonableness of that disturbance. In this regard, the court considered each of the mitigating factors put forward by defendant, including his claimed mental disability, but found that the excuse offered by defendant was so peculiar to him that it was unworthy of mitigation. The court obviously made a sincere effort to understand defendant's "situation" and "the circumstances as defendant believed them to be", but concluded that the murder in this case was the result of defendant's malevolence rather than an understandable human response deserving of mercy. We cannot say, as a matter of law, that the court erred in so concluding. Indeed, to do so would subvert the purpose of the statute.
In our opinion, this statute would not require that the jury or the court as trier of fact find mitigation on any particular set of facts, but, rather, allows the finder of fact the opportunity to do so, such opportunity being conditional only upon a finding of extreme emotional disturbance in the first instance. In essence, the statute requires mitigation to be afforded an emotionally disturbed defendant only when the trier of fact, after considering a broad range of mitigating circumstances, believes that such leniency is justified. Since the trier of fact found that defendant failed to establish that he was acting "under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse", defendant's conviction of murder in the second degree should not be reduced to the crime of manslaughter in the first degree.
Defendant also urges in support of reversal that the confessions upon which his conviction was predicated were involuntarily given to the police. However, the trial court examined the " 'totality of the circumstances' " of defendant's arrest and subsequent confession (see People v. Anderson, 42 N.Y.2d 35, 38, 396 N.Y.S.2d 625, 364 N.E.2d 1318) and found, as a factual matter, that defendant's oral and written statements were given to the police voluntarily. The Appellate Division affirmed this finding. Having carefully examined the record, we find nothing in the circumstances of this case which would lead us to conclude that [404 N.E.2d 777] defendant's confession was involuntarily obtained as a matter of law.
Finally, defendant contends that his mother's unsuccessful effort to contact him, aggravated in part by an apparently accidental dissemination of misinformation by the police, [3] denied defendant his right to counsel. While it is true that when an attorney attempts to intercede in a criminal defendant's behalf and is prevented from doing so by police misinformation, that defendant's right to counsel is infringed (see, e. g., People v. Garofolo, 46 N.Y.2d 592, 600-601, 415 N.Y.S.2d 810, 389 N.E.2d 123), no such infringement is present where, as here, a family member contacts police to report that her son was a "missing person". Nor is there any evidence in the record to suggest that this is a case such as People v. Bevilacqua, 45 N.Y.2d 508, 410 N.Y.S.2d 549, 382 N.E.2d 1326, where the record supported the inference that the police intentionally deprived the defendant of access to his family in an effort to obtain a confession. It is clear from the record that the defendant, a man of 27 years, consciously chose to confront his interrogators alone. Indeed, it is undisputed that defendant, after being informed of his constitutional rights, did not ever ask to speak with either counsel or any member of his family. Under these circumstances, we cannot say that defendant's right to counsel has been infringed.
We have examined defendant's remaining contentions and find them to be without merit.
Accordingly, the order of the Appellate Division should be affirmed.
COOKE, C. J., and GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER, JJ., concur.
Order affirmed.
---------------
[1] Defendant also notes that the People's expert witness stated that a mental disease not arising to the level of insanity could not be considered to be "extreme emotional disturbance" within the meaning of the statute. Of course, to the extent that the witness' comments can be interpreted as being in conflict with our decision in Patterson, the witness is in error. However, the trial court did not fully adopt this view and, in fact, predicated its decision upon a finding that the emotional disturbance which defendant experienced had no reasonable explanation or excuse. We would note that the trial court could have completely disregarded the witness' testimony and still have denied the defendant the benefit of the defense. (People v. Solari, 43 A.D.2d 610, 612, 349 N.Y.S.2d 31, affd. 35 N.Y.2d 876, 363 N.Y.S.2d 953, 323 N.E.2d 191.)
[2] We emphasize that this test is to be applied to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse.
[3] We are informed that the Nassau County police have instituted a system for monitoring the whereabouts of all people in their custody, which should help to avoid the possibility that such misinformation will be given out in the future.
7.2.8.3.3 III.C. Unintentional Homicide 7.2.8.3.3 III.C. Unintentional Homicide
7.2.8.3.3.1 III.C.i. Involuntary Manslaughter and Similar Offences 7.2.8.3.3.1 III.C.i. Involuntary Manslaughter and Similar Offences
The intentional homicides we just studied required us to differentiate between what were clearly blameworthy acts. Unintentional homicide poses a different problem: how to distinguish between criminal deaths and noncriminal deaths, when the perpetrator did not act with purpose to kill or with knowledge that his conduct would result in killing. When is a death deemed the result of someone’s criminal negligence or recklessness, and when is it a horrible accident that does not result in criminal liability? Some of the cases in this section present unsavory and unsympathetic protagonists; you may be able to empathize with others. Consider what the courts in each case think the defendants did wrong, and what legal tests they use to make those determinations.
7.2.8.3.3.1.1 Commonwealth v. Welansky 7.2.8.3.3.1.1 Commonwealth v. Welansky
316 Mass. 383
COMMONWEALTH
vs.
BARNETT WELANSKY
(and a companion case against the same defendant).
June 5, 1944
Supreme Judicial Court of Massachusetts, Suffolk
Present: FIELD, C.J., LUMMUS, QUA, DOLAN, RONAN, & SPALDING, JJ.
At the trial of an indictment charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a night club, to which he invited the general public, safe for their use, the mere fact, that the defendant had been absent from the premises for twelve days preceding a fire where deaths occurred owing to a failure to furnish proper exits in the event of a fire, did not require a verdict of not guilty where there was evidence that he was solely responsible for the "system" at the club before his absence, that there had been no change in conditions at the club during his absence, and that he "knew . . . the same system . . . [he] had would continue" during his absence.
A count in an indictment which followed the form for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79, properly might be used in a case of involuntary manslaughter.
No error appeared in the denial of motions to quash indictments charging the defendant with manslaughter in wantonly and recklessly failing to fulfil his duty to use reasonable care to keep the premises of a [384] night club, to which he invited the general public, safe for their use, as a result of which deaths occurred on the occasion of a fire, where the indictment, read with specifications by the Commonwealth giving details of such failure, apprised the defendant of the crime charged sufficiently to comply with art. 12 of the Declaration of Rights and fairness to him.
Wanton or reckless conduct as the basis of conviction under an indictment for manslaughter against one in control of premises to which he has invited the public as business visitors may consist of intentional failure to care for their safety in disregard of their right to such care or in disregard of probable harmful consequences to them of such failure.
The use of the word "wilful," prefacing the words "wanton" and "reckless," blurs the concept of wanton or reckless conduct. Per LUMMUS, J.
Discussion by LUMMUS, J., of wanton or reckless conduct.
At common law in this Commonwealth, conduct resulting in death does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wantonor reckless conduct. Per LUMMUS, J.
One, who by his wanton or reckless conduct causes injury to another which results in his death, may be found guilty of manslaughter.
To establish guilt under an indictment charging one in control of a night club with manslaughter of patrons whose lives were lost when a fire occurred on the premises and they were unable to escape because of insufficiency of the exits, the Commonwealth was not required to prove that the defendant caused the fire by wanton or reckless conduct, but only that the deaths resulted from his wanton or reckless disregard of the safety of his patrons in the event of fire from any cause.
No error appeared in ordering a view by the jury trying an indictment for manslaughter resulting from a destructive fire in a night club although over three months had passed since the fire, or in admitting in evidence photographs of the premises taken after the fire, where it appeared that material changes from conditions before the fire could have been shown by evidence.
At the trial of an indictment for manslaughter for deaths occurring through a fire in a night club owned by a corporation, the admission of evidence, offered in chief by the Commonwealth, that the defendant was in complete control of the corporation and the premises, including testimony that he gave orders to the corporation's clerk to make and attest records and returns of imaginary meetings and votes, disclosed no error where the matter of control was a live issue in the case until the defendant admitted complete control while testifying in his own behalf.
One who was in complete control of a corporation might properly be indicted and convicted of manslaughter resulting from wanton or reckless conduct on his part although the corporation also might have been indicted and convicted therefor.
Evidence, at the trial of an indictment for manslaughter against one in control of the construction and maintenance of a night club, that the defendant deliberately failed to instal fire doors called for on plans of [385] the premises approved by the municipal building department was properly admitted, with other evidence showing deliberate failure of the defendant to care for the safety of his patrons by providing proper exits in case of fire, as showing wanton or reckless conduct on his part causing the death of numerous patrons through a fire occurring in the club.
The admission of evidence of defective wiring as part of the evidence introduced in chief by the Commonwealth at the trial of an indictment against one in control of a night club for manslaughter resulting from a fire on the premises, was proper at the time of its admission and disclosed no error although the Commonwealth subsequently failed to introduce any evidence that the defendant knew or had reason to know of such defect or that it had any causal relation to the fire.
The indictments were tried before Hurley, J., on March 16 to April 10, 1943, inclusive. After conviction the defendant appealed, filing one hundred twenty-four assignments of error. Among such assignments were the following:
106. The refusal to give the following instruction requested by the defendant: "The fact that the fire started in the New Cocoanut Grove, Inc. is not evidence that it was started by the defendant, nor is any criminal liability for the fire attached to the defendant solely because he was an officer of the corporation."
108. The refusal to give the following instruction requested by the defendant: "If the death or deaths of the persons named resulted from the fire, and the fire was started by someone other than the defendant and not because of the defendant's acts or failure to act, then he must be found not guilty."
111. The refusal to give the following instruction requested by the defendant: "If the jury finds that the acts or omissions of the defendant, even though wanton and reckless on his part, were not the cause of the fire, and the fire caused the deaths . . . the defendant must be found not guilty."
105. The denial and refusal to grant the motion of the defendant that the court direct the jury to return a verdict of not guilty as to each count submitted to them.
[386] 109. The refusal to give the following instruction requested by the defendant: "If the jury finds that the deceased . . . were unable to make their way to any door or window, or any exit, by reason of being overcome by fire, flame, heat, smoke or gases, it cannot be found that the defect, if any, of egresses was the proximate cause of the deaths."
114. The refusal to give the following instruction requested by the defendant: "Unless you find on all the evidence that any reasonable man would have foreseen or anticipated that the fire in New Cocoanut Grove would be started and act as you find it acted, the defendant cannot be convicted of causing the deaths."
122. An instruction to the jury in the charge that they could consider, and should so do, the state of mind of the defendant, not at the time the calamity occurred, on November 28, 1942, "but for any period of time prior thereto in determining whether or not . . . [his] conduct indicated an utter indifference to the rights of parties as if those rights did not exist."
The cases were argued at the bar in February, 1944, before Field, C.J., Donahue, Lummus, Dolan, & Ronan, JJ., and after the retirement of Donahue & Cox, JJ., were submitted on briefs to Qua & Spalding, JJ.
D. J. Gallagher, (H. F. Callahan, E. M. Dangel, T. N. Creed, & A. C. Webber with him,) for the defendant.
F. T. Doyle, Assistant District Attorney, (J. K. Collins & A. H. Salisbury, Assistant Attorneys General, with him,) for the Commonwealth.
LUMMUS, J.
On November 28, 1942, and for about nine years before that day, a corporation named New Cocoanut Grove, Inc., maintained and operated a "night club" in Boston, having an entrance at 17 Piedmont Street, for the furnishing to the public for compensation of food, drink, and entertainment consisting of orchestra and band music, singing and dancing. It employed about eighty persons. The corporation, its officers and employees, and its business, were completely dominated by the defendant Barnett Welansky, who is called in this opinion simply the defendant, [387] since his codefendants were acquitted by the jury. He owned, and held in his own name or in the names of others, all the capital stock. He leased some of the land on which the corporate business was carried on, and owned the rest, although title was held for him by his sister. He was entitled to, and took, all the profits. Internally, the corporation was operated without regard to corporate forms, as though the business were that of the defendant as an individual. It was not shown that responsibility for the number or condition of safety exits had been delegated by the defendant to any employee or other person.
The defendant was accustomed to spend his evenings at the night club, inspecting the premises and superintending the business. On November 16, 1942, he became suddenly ill, and was carried to a hospital, where he was in bed for three weeks and remained until discharged on December 11, 1942. During his stay at the hospital, although employees visited him there, he did not concern himself with the night club, because, as he testified, he "knew it would be all right" and that "the same system . . . [he] had would continue" during his absence. There is no evidence of any act, omission or condition at the night club on November 28, 1942, (apart from the lighting of a match hereinafter described), that was not within the usual and regular practice during the time before the defendant was taken ill when he was at the night club nearly every evening. While the defendant was at the hospital, his brother James Welansky and an employee named Jacob Goldfine, who were made codefendants, assumed some of the defendant's duties at the night club, but made no change in methods. Under these circumstances the defendant was not entitled to a verdict of not guilty on the ground that any acts or omissions on the evening of November 28, 1942, were the transitory and unauthorized acts or omissions of servants or other persons, for which the defendant could not be held criminally responsible. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478.
The physical arrangement of the night club on November 28, 1942, as well as on November 16, 1942, when the defendant [388] last had personal knowledge of it, was as follows. The total area of the first or street floor was nine thousand seven hundred sixty-three square feet. Entering the night club through a single revolving door at 17 Piedmont Street, one found himself in a foyer or hall having an area of six hundred six square feet. From the foyer, there was access to small rooms used as toilets, to a powder room and a telephone room, to a small room for the checking of clothing, and to another room with a vestibule about five feet by six feet in size adjoining it, both of which were used as an office in the daytime and for the checking of clothing in the evening. In the front corner of the foyer, to the left, beyond the office, was a passageway leading to a stairway about four feet wide, with fifteen risers. That stairway led down to the Melody Lounge in the basement, which was the only room in the basement open to the public. There were to be found a bar, tables and chairs.
The extreme dimensions of the Melody Lounge were about thirty-six feet by fifty-five feet, and its area was one thousand eight hundred ninety-five square feet. It was separated from a narrow corridor leading to the kitchen (which was located under the main dining room) by a wooden partition. In that partition was a wooden door, two feet and two inches wide, which could have been found to be unmarked. Passing from the Melody Lounge through that door, and thus entering the narrow corridor, one could turn to the left and go to a door which swung inward and could be opened only to a width of eighteen inches, at the top of three steps. That door was barred by a wooden bar that had to be lifted off before the door could be opened at all. On opening that door, one could pass into an outdoor alley about three and one half feet wide. That alley led to a yard, from which egress could be had through in-swinging doors into another passageway and thence to Shawmut Street.
If, instead, one passing from the Melody Lounge into the narrow corridor should turn to the right, he might pass, as employees were accustomed to do, through a door two and one half feet wide swinging into the corridor from the kitchen. Once in the kitchen, he could traverse that room with all its [389] equipment to the other end of it near Shawmut Street, and then go upstairs and through swinging doors into a corner of the main dining room.
It is evident that in an emergency escape from the Melody Lounge by either of these courses would be difficult for a patron not thoroughly familiar with parts of the premises not ordinarily open to him.
Returning to the foyer, and standing as though one had just entered it by the revolving door, to the right, in the front of the building on Piedmont Street, was a room called the Caricature Bar, with an area of one thousand three hundred ninety-nine square feet, containing two bars, stools and chairs. Toward Shawmut Street, and separated from the Caricature Bar by a railing, was the main dining room, with an area of three thousand seven hundred sixty-five square feet. The foyer opened into both the Caricature Bar and the main dining room. In the main dining room was a dance floor with an area of six hundred sixty square feet, and behind it, in the direction of Broadway, was a stage with an area of four hundred thirty-six square feet.
From the Caricature Bar and from the main dining room one could pass into a corridor near the stage, about four feet wide, up some steps, and through a passageway about seven feet wide into the new Cocktail Lounge, which was first opened on November 17, 1942, and which had an area of seven hundred eighty-one square feet. There one found a bar, stools, tables and seats, and also a check room and toilets. In the farther corner of the Cocktail Lounge was a door three feet wide, swinging inward, through which one could enter a small vestibule from which he could go through a pair of doors to Broadway at 59 Broadway.
That pair of doors, and the revolving door at 17 Piedmont Street, were the only entrances and exits intended for the ordinary use of patrons. Besides those doors, and the exit through the wooden partition from the Melody Lounge, already described, there were five possible emergency exits from the night club, all on the first or street floor. These will now be listed and described.
(1) A door, opening outward to Piedmont Street, two [390] and one half feet wide, at the head of the stairway leading to and from the basement Melody Lounge. That door apparently was not visible from the greater part of the foyer, for it was in a passageway that ran from one end of the foyer past the office to the stairway. That door was marked "Exit" by an electric sign. It was equipped with a "panic" or "crash" bar, intended to unbolt and open the door upon pressure from within the building. But on the evidence it could have been found that the device just mentioned was regularly made ineffective by having the door locked by a separate lock operated by a key that was kept in a desk in the office. Late in the evening of November 28, 1942, firemen found that door locked and had to force it open with an axe. The jury were entitled to disbelieve the testimony of the defendant that he had instructed the head waiter, who died in the occurrence of that evening, always to keep that door unlocked. It may be observed that if that door should be left so that it could be opened by means of the panic bar, a patron might leave through that door without paying his bill. It does not appear that anyone watched that door to prevent patrons from so doing.
(2) A door two and one third feet wide leading from the foyer, near the revolving door, into the small vestibule adjoining the office, already described. From that vestibule another similar door, swinging inward, gave egress to Piedmont Street, near the revolving door. The door to Piedmont Street could not be opened fully, because of a wall shelf. And that door was commonly barred in the evening, as it was on November 28, 1942, by a removable board with clothing hooks on it, and by clothing, for in the evening the office and vestibule were used for checking clothing.
(3) A door, opening outward, from the middle of the wall of the main dining room to Shawmut Street, and marked "Exit" by an electric sign. The opening was about three and two thirds feet wide. The defendant testified that this was the principal exit provided for emergencies. From the sides of the opening hung double doors, equipped with "panic" bars intended to unbolt and open the doors upon pressure from within. But on the evening of November 28, [391] 1942, one of the two doors did not open upon pressure, and had to be hammered with a table before it would open. Besides, the "panic" doors were hidden from the view of diners by a pair of "Venetian" wooden doors, swinging inward, and fastened by a hook, which had to be opened before one could operate the "panic" doors. In addition, dining tables were regularly placed near the Venetian doors, one of them within two feet, and these had to be moved away in order to get access to the doors. That condition prevailed on the evening of November 28, 1942.
(4) The service door, two and one half feet wide, swinging inward, leading to Shawmut Street at 8 Shawmut Street. This door was near the stage, at the foot of a stairway leading to dressing rooms on the second floor, and was in a part of the premises to which patrons were not admitted and which they could not see. This door was known to employees, but doubtless not to patrons. It was kept locked by direction of the defendant, and the key was kept in a desk in the office.
(5) The door, two and three fourths feet wide, swinging inward, leading from a corridor into which patrons had no occasion to go, to Shawmut Street at 6 Shawmut Street. No patron was likely to know of this door. It was kept locked by direction of the defendant, but he ordered the key placed in the lock at seven every evening.
We now come to the story of the fire. A little after ten o'clock on the evening of Saturday, November 28, 1942, the night club was well filled with a crowd of patrons. It was during the busiest season of the year. An important football game in the afternoon had attracted many visitors to Boston. Witnesses were rightly permitted to testify that the dance floor had from eighty to one hundred persons on it, and that it was "very crowded." Beverley v. Boston Elevated Railway, 194 Mass. 450 , 457. Witnesses were rightly permitted to give theirestimates, derived from their observations, of the number of patrons in various parts of the night club. Upon the evidence it could have been found that at that time there were from two hundred fifty to four hundred persons in the Melody Lounge, from four hundred [392] to five hundred in the main dining room and the Caricature Bar, and two hundred fifty in the Cocktail Lounge. Yet it could have been found that the crowd was no larger than it had been on other Saturday evenings before the defendant was taken ill, and that there had been larger crowds at earlier times. There were about seventy tables in the dining room, each seating from two to eight persons. There was testimony that all but two were taken. Many persons were standing in various rooms. The defendant testified that the reasonable capacity of the night club, exclusive of the new Cocktail Lounge, was six hundred fifty patrons. He never saw the new Cocktail Lounge with the furniture installed, but it was planned to accommodate from one hundred to one hundred twenty-five patrons.
A bartender in the Melody Lounge noticed that an electric light bulb which was in or near the cocoanut husks of an artificial palm tree in the corner had been turned off and that the corner was dark. He directed a sixteen year old bar boy who was waiting on customers at the tables to cause the bulb to be lighted. A soldier sitting with other persons near the light told the bar boy to leave it unlighted. But the bar boy got a stool, lighted a match in order to see the bulb, turned the bulb in its socket, and thus lighted it. The bar boy blew the match out, and started to walk away. Apparently the flame of the match had ignited the palm tree and that had speedily ignited the low cloth ceiling near it, for both flamed up almost instantly. The fire spread with great rapidity across the upper part of the room, causing much heat. The crowd in the Melody Lounge rushed up the stairs, but the fire preceded them. People got on fire while on the stairway. The fire spread with great speed across the foyer and into the Caricature Bar and the main dining room, and thence into the Cocktail Lounge. Soon after the fire started the lights in the night club went out. The smoke had a peculiar odor. The crowd were panic stricken, and rushed and pushed in every direction through the night club, screaming, and overturning tables and chairs in their attempts to escape.
The door at the head of the Melody Lounge stairway [393] was not opened until firemen broke it down from outside with an axe and found it locked by a key lock, so that the panic bar could not operate. Two dead bodies were found close to it, and a pile of bodies about seven feet from it. The door in the vestibule of the office did not become open, and was barred by the clothing rack. The revolving door soon jammed, but was burst out by the pressure of the crowd. The head waiter and another waiter tried to get open the panic doors from the main dining room to Shawmut street, and succeeded after some difficulty. The other two doors to Shawmut Street were locked, and were opened by force from outside by firemen and others. Some patrons escaped through them, but many dead bodies were piled up inside them. A considerable number of patrons escaped through the Broadway door, but many died just inside that door. Some employees, and a great number of patrons, died in the fire. Others were taken out of the building with fatal burns and injuries from smoke, and died within a few days.
I. The pleadings, verdicts, and judgments.
The defendant, his brother James Welansky, and Jacob Goldfine, were indicted for manslaughter in sixteen counts of an indictment numbered 413, each count for causing the death of a person described as "Jane Doe," "John Doe," or the like. The first six counts were quashed, leaving the last ten counts. Later a motion by the Commonwealth was allowed, substituting in each of the last ten counts the real name of a victim. See Commonwealth v. DiStasio, 294 Mass. 273 , 278, 279. Voluntarily the Commonwealth filed specifications as to those counts, by which it specified among other things that the alleged misconduct of the defendant consisted in causing or permitting or failing reasonably to prevent defective wiring, the installation of inflammable decorations, the absence of fire doors, the absence of "proper means of egress properly maintained" and "sufficient proper" exits, and overcrowding. Some other specifications -- such as failure to prevent the unlawful employment of minors -- plainly had little or no relation [394] to any wanton or reckless conduct that might result in manslaughter. The Commonwealth refused to specify as requested by the defendant what statutes, what "provisions of" the common law, or what ordinances, had been violated. The Commonwealth did specify the nature of the mortal injuries suffered by the different victims, all of whom were patrons, and the harmful consequences to which acts or omissions of the defendant exposed the several victims and which could have been foreseen by the defendant. The judge refused to require further specifications.
The defendant moved to quash each count because (1) when read with the specifications it sets out no crime, and (2) when read with the specifications it does not fully, plainly, substantially and formally set out any crime as required by art. 12 of the Declaration of Rights. Each of the counts numbered from 7 to 12 inclusive as amended alleged in substance that the New Cocoanut Grove, Inc., a corporation, did for a period of time prior to and including November 28, 1942, maintain and operate a night club, to which it invited members of the general public; that it was under a legal duty to its invitees to use reasonable care to keep its premises safe for their use; that the three persons indicted were authorized by the corporation to maintain, control, operate, construct, alter, supervise, and manage its premises in its behalf; that said three persons accepted the responsibility for such acts, and were therefore under a duty to its invitees to use such reasonable care; that in reckless disregard of such duty to one (naming the victim) who was lawfully upon said premises pursuant to such invitation to the general public, and of the probable harmful consequences to him of their failure to perform said duty, they and each of them did "wilfully, wantonly and recklessly neglect and fail to fulfil their said legal duty and obligation to the said" victim, by reason whereof he on November 28, 1942, received a mortal injury, as a result of which on that day he died.
Each of the thirteenth and fourteenth counts is in shorter form, and alleges in substance that the three persons indicted and each of them on November 28, 1942, did "maintain, [395] manage, operate and supervise certain premises," describing them, "and solicited and invited the patronage of the public to the said premises"; that at the aforesaid time and place the named victim was lawfully upon the aforesaid premises as a customer on the said invitation, and that the three persons indicted and each of them did "assault and beat" the said victim, and by said assault and beating did kill him "by wilfully, wantonly and recklessly maintaining, managing, operating and supervising the said premises." Each of counts 15 and 16 alleges merely that the defendants assaulted and beat a named victim and by such assaulting and beating did kill the victim.
Another indictment numbered 414 in sixteen counts was returned against the same three persons. The first six counts were quashed, and a verdict of not guilty was directed upon the sixteenth count. That left nine counts, numbered 7 to 15 inclusive. Counts 7 to 14 inclusive were substantially like counts 7 to 14 inclusive in the indictment numbered 413, except for the names of the victims. Count 15 was a short count alleging that the three persons indicted "on the twenty-eighth day of November in the year of our Lord one thousand nine hundred and forty-two, did, all and each of them, assault and beat one Eleanor Chiampa, and by such assault and beating, did kill the said Eleanor Chiampa." That count followed the form of an indictment for "Manslaughter" appended to G. L. (Ter. Ed.) c. 277, Section 79. That form could properly be used even in a case of involuntary manslaughter. Commonwealth v. Arone, 265 Mass. 128 . Upon this indictment the Commonwealth furnished specifications substantially like those furnished upon indictment 413.
The motions to quash certain counts of these indictments were properly denied. The judge was bound to require a bill of particulars only to the extent that without it the indictment would be deficient in that the offence charged would not be "fully, plainly, substantially and formally set out," as required by art. 12 of the Declaration of Rights. G. L. (Ter. Ed.) c. 277, Section 40. Commonwealth v. Snell, 189 Mass. 12 , 18, 19. Commonwealth v. Sinclair, 195 Mass. 100 , [396] 105-108. Commonwealth v. Massad, 242 Mass. 532 . Beyond that the requirement of particulars or specifications was discretionary. Commonwealth v. King, 202 Mass. 379 , 384. Commonwealth v. Bartolini, 299 Mass. 503 , 509. Commonwealth v. Hayes, 311 Mass. 21 . The defendant had the benefit of specifications that were fully as complete and detailed as were necessary for compliance with the Constitution or for fairness to him. Commonwealth v. Wakelin, 230 Mass. 567 , 571. Commonwealth v. Lammi, 310 Mass. 159 . For constitutional purposes "all that is required is that the indictment, read with the bill of particulars, be sufficient fully, plainly, substantially and formally to give the defendant reasonable knowledge of the crime with which he is charged." Commonwealth v. Hayes, 311 Mass. 21 , 25. Commonwealth v. Gedzium, 259 Mass. 453 , 457. Commonwealth v. Albert, 307 Mass. 239 , 243. There is nothing in the motions to quash. There is still less, if that were possible, in the belated attempt to raise the same question of pleading by motion in arrest of judgment. Commonwealth v. McKnight, 283 Mass. 35 , 38, 39.
The defendant was found guilty upon counts 7 to 16 inclusive of indictment 413 and upon counts 7 to 15 inclusive of indictment 414. He was sentenced to imprisonment in the State prison upon each count for a term of not less than twelve years and not more than fifteen years, the first day of said term to be in solitary confinement and the residue at hard labor (G. L. [Ter. Ed.] c. 279, Section 29), the sentences to run concurrently. Upon a motion for a stay in the execution of the sentences, a stay was denied. G. L. (Ter. Ed.) c. 279, Section 4, as amended by St. 1935, c. 50, Section 3. The cases come here under G. L. (Ter. Ed.) c. 278, Sections 33A-33G, upon an appeal, a transcript of the evidence, a summary of the record, and an assignment of one hundred twenty-four alleged errors.
II. The principles governing liability.
The Commonwealth disclaimed any contention that the defendant intentionally killed or injured the persons named in the indictments as victims. It based its case on involuntary [397] manslaughter through wanton or reckless conduct. The judge instructed the jury correctly with respect to the nature of such conduct. [1]
Usually wanton or reckless conduct consists of an affirmative act, like driving an automobile or discharging a firearm, in disregard of probable harmful consequences to another. But where, as in the present case, there is a duty of care for the safety of business visitors invited to premises which the defendant controls, [2] wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences to them or of their right to care. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. Queen v. Senior, [1899] 1 Q. B. 283. State v. Benton, 38 Del. 1. Am. Law Inst. Restatement: Torts, Section 500. 26 Am. Jur. Homicide, Sections 205-208. 29 C. J. 1154, et seq.
To define wanton or reckless conduct so as to distinguish it clearly from negligence and gross negligence is not easy. Banks v. Braman, 188 Mass. 367 , 370. Commonwealth v. Arone, 265 Mass. 128 , 132. Sometimes the word "wilful" is prefaced to the words "wanton" and "reckless" in expressing the concept. That only blurs it. Wilful means intentional. In the phrase "wilful, wanton or reckless conduct," if "wilful" modifies "conduct" it introduces [398] something different from wanton or reckless conduct, even though the legal result is the same. Wilfully causing harm is a wrong, but a different wrong from wantonly or recklessly causing harm. If "wilful" modifies "wanton or reckless conduct" its use is accurate. What must be intended is the conduct, not the resulting harm. Altman v. Aronson, 231 Mass. 588 , 592. Banks v. Braman, 188 Mass. 367 , 369. The words "wanton" and "reckless" are practically synonymous in this connection, although the word "wanton" may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word "reckless." But intentional conduct to which either word applies is followed by the same legal consequences as though both words applied.
The standard of wanton or reckless conduct is at once subjective and objective, as has been recognized ever since Commonwealth v. Pierce, 138 Mass. 165 . Knowing facts that would cause a reasonable man to know the danger is equivalent to knowing the danger. Banks v. Braman, 188 Mass. 367 , 369. Romana v. Boston Elevated Railway, 218 Mass. 76 , 83. Commonwealth v. Peach, 239 Mass. 575 . Nash v. United States, 229 U.S. 373, 377. Arizona Employer's Liability Cases, 250 U.S. 400, 432. Am. Law Inst. Restatement: Torts, Section 500, and also comments c and f. See also Brennan v. Schuster, 288 Mass. 311 . The judge charged the jury correctly when he said, "To constitute wanton or reckless conduct, as distinguished from mere negligence, grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm. If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not. But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct in his dangerous act or omission, if an ordinary normal [399] man under the same circumstances would have realized the gravity of the danger. A man may be reckless within the meaning of the law although he himself thought he was careful."
The essence of wanton or reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Am. Law Inst. Restatement: Torts, Section 500. LeSaint v. Weston, 301 Mass. 136 , 138. Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences to that other (Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271; Freeman v. United Fruit Co. 223 Mass. 300 , 302; Banks v. Braman, 188 Mass. 367 , 369; Yancey v. Boston Elevated Railway, 205 Mass. 162 , 171; Burns's Case, 218 Mass. 8 , 10; Romana v. Boston Elevated Railway, 218 Mass. 76 , 83; Sullivan v. Napolitano, 277 Mass. 341 , 344) or the rights of that other. Warren v. Pazolt, 203 Mass. 328 , 347. Commonwealth v. Horsfall, 213 Mass. 232 , 235. Cohen v. Davies, 305 Mass. 152 , 155, 156. But we are not prepared to give unqualified approval to a further statement found in some of our reported decisions, for example in Query v. Howe, 273 Mass. 92 , 96, that to constitute wanton or reckless conduct, disregard of the rights of another must be as complete or utter as though such rights did not exist. If taken literally, that statement would permit a trifling regard for the rights of another to exonerate a defendant from the criminal consequences of flagrant wrongdoing.
The words "wanton" and "reckless" are thus not merely rhetorical or vituperative expressions used instead of negligent or grossly negligent. They express a difference in the degree of risk and in the voluntary taking of risk so marked, as compared with negligence, as to amount substantially and in the eyes of the law to a difference in kind. Banks v. Braman, 188 Mass. 367 . Cotter, petitioner, 237 Mass. 68 , 72. Adamowicz v. Newburyport Gas & Electric Co. 238 Mass. 244 , 246. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 , 242; S. C. 241 Mass. 100 , 102. McIntyre v. Converse, [400] 238 Mass. 592 , 594. Young v. Worcester, 253 Mass. 481 , 484. Potter v. Gilmore, 282 Mass. 49 , 57. Am. Law Inst. Restatement: Torts, Section 500, comment g. For many years this court has been careful to preserve the distinction between negligence and gross negligence, on the one hand, and wanton or reckless conduct on the other. Prondecka v. Turners Falls Power & Electric Co. 238 Mass. 239 ; S. C. 241 Mass. 100 . Compare Jamison v. Encarnacion, 281 U.S. 635; Alpha Steamship Corp. v. Cain, 281 U.S. 642. In pleadings as well as in statutes the rule is that "negligence and wilful and wanton conduct are so different in kind that words properly descriptive of the one commonly exclude the other." Miller v. United States Fidelity & Guaranty Co. 291 Mass. 445 , 447. Romana v. Boston Elevated Railway, 226 Mass. 532 , 536.
Notwithstanding language used commonly in earlier cases, and occasionally in later ones, [3] it is now clear in this Commonwealth that at common law conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct. There is in Massachusetts at common law no such thing as "criminal negligence." Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. [401] Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .
Wanton or reckless conduct is the legal equivalent of intentional conduct. Aiken v. Holyoke Street Railway, 184 Mass. 269 , 271. Banks v. Braman, 188 Mass. 367 , 369. McIntyre v. Converse, 238 Mass. 592 , 594. Sullivan v. Napolitano, 277 Mass. 341 . Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 387. Baines v. Collins, 310 Mass. 523 , 526. Am. Law Inst. Restatement: Torts, Section 282, comment d. If by wanton or reckless conduct bodily injury is caused to another, the person guilty of such conduct is guilty of assault and battery. Commonwealth v. Hawkins, 157 Mass. 551 . Commonwealth v. Gorman, 288 Mass. 294 , 299. Commonwealth v. McCan, 277 Mass. 199 , 203. State v. Schutte, 87 N. J. L. 15, affirmed 88 N. J. L. 396. Brimhall v. State, 31 Ariz. 522; 53 Am. L. R. 231. Woodward v. State, 164 Miss. 468. Davis v. Commonwealth, 150 Va. 611. And since manslaughter is simply a battery that causes death (Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5; Commonwealth v. Velleco, 272 Mass. 94 , 99), if death results he is guilty of manslaughter. Commonwealth v. Hartwell, 128 Mass. 415 , 417. Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 , 553. Commonwealth v. Parsons, 195 Mass. 560 , 569. Commonwealth v. Peach, 239 Mass. 575 . Commonwealth v. Guillemette, 243 Mass. 346 . Commonwealth v. Arone, 265 Mass. 128 . Commonwealth v. Jones, 288 Mass. 150 , 152. Minasian v. Aetna Life Ins. Co. 295 Mass. 1 , 5. Commonwealth v. Maguire, 313 Mass. 669 .
To convict the defendant of manslaughter, the Commonwealth was not required to prove that he caused the fire by some wanton or reckless conduct. Fire in a place of public resort is an ever present danger. It was enough to prove that death resulted from his wanton or reckless disregard of the safety of patrons in the event of fire from any cause.
III. The alleged errors at the trial.
1. There is nothing in the contention that the judge should not have ordered a view of the burned premises, and [402] should not have admitted photographs taken after the fire. True, the fire changed the appearance of the place, and the defendant suggests that acts of individuals after the fire also made some changes. But the walls, most of the partitions, and even some of the furniture, remained. The view enabled the jury to understand the evidence. The photographs were of value as evidence. Any material changes from conditions before the fire could have been shown by evidence.
2. The Commonwealth had the burden of showing that the alleged wanton or reckless failure to care for the safety of patrons was that of the defendant rather than that of some other officer or employee to whom the duty had been entrusted. Criminal responsibility is generally personal, and personal fault must be shown. Commonwealth v. Stevens, 153 Mass. 421 . Commonwealth v. Anthony, 306 Mass. 470 , 478. Commonwealth v. Beal, 314 Mass. 210 , 222. Braga v. Braga, 314 Mass. 666 , 672. Until the defendant testified at a late stage of the case, he admitted nothing, and excepted to the introduction of almost every piece of evidence tending to show his control of the corporation or of its premises. The Commonwealth was entitled to introduce in detail facts showing such control. One such fact was that he frequently gave orders to the clerk of the corporation to make and attest records and returns of imaginary meetings and votes. The defendant excepted to the admission of each piece of evidence, but did not take the course, which would have made all such evidence immaterial and unnecessary, of admitting complete control, until he did so in his later testimony. He now complains that the jury were given an unfavorable impression of his character and conduct in matters not relevant to any wanton or reckless conduct. But if he has been prejudiced thereby, he should blame his own insistence upon trying the case "closely," as the phrase is, with respect to a point that later he had to admit.
3. There is nothing in the point that because the corporation might have been indicted and convicted, the defendant could not be. The defendant was in full control of the [403] corporation, its officers and employees, its business and its premises. He could not escape criminal responsibility by using a corporate form.
4. The Commonwealth was properly allowed to show that an exit from the Cocktail Lounge to Shawmut Street and fire doors in the Cocktail Lounge and between that and the older part of the premises, called for by the plans that were approved by the building department of the city of Boston under St. 1907, c. 550, Section 12, as amended, had not been provided when the defendant last had knowledge of the premises on November 16, 1942, although he planned to open the Cocktail Lounge the next day; that the mode of construction of the Cocktail Lounge indicated that he did not intend to provide either; and that they had not been provided at the time of the fire. As planned, the fire doors were to be held open by fusible plugs that would melt and allow the doors to close automatically in case of fire. They and the exit might have afforded some protection to persons in the Cocktail Lounge. The violation of such a statute is not negligence per se, but sometimes is evidence of negligence. Richmond v. Warren Institution for Savings, 307 Mass. 483 . Kelly v. Hathaway Bakeries, Inc. 312 Mass. 297 , 299. Greenway Wood Heel Co. Inc. v. John Shea Co. 313 Mass. 177 . Carroll v. Hemenway, 315 Mass. 45 , 46-47. Standing by itself, it would not warrant a finding of wanton or reckless conduct. Silver's Case, 260 Mass. 222 , 224. Commonwealth v. Arone, 265 Mass. 128 , 131. Carroll v. Hemenway, 315 Mass. 45 . People v. Lynn, 385 Ill. 165. Am. Law Inst. Restatement: Torts, Section 500, comment e. But it might be considered with other evidence. There was no error in its admission. Commonwealth v. Hawkins, 157 Mass. 551 , 553, 554. Isaacson v. Boston, Worcester & New York Street Railway, 278 Mass. 378 , 390.
5. The Commonwealth introduced evidence that the electrical system was defective and dangerous. Shortly after the fire started the electric lights went out, leaving the patrons struggling in the dark. What caused the lights to go out, did not appear. There was no evidence that the defendant knew, or had reason to know, of any defect in the [404] electrical system. There was no evidence that faulty wiring caused the fire, or bore any causal relation to the deaths. A verdict of guilty could not lawfully have been based upon any such defect. But when the evidence was introduced the judge could not foresee that knowledge on the part of the defendant and some causal relation would not be shown. He had a right to let the Commonwealth begin by proving defective wiring. If the defendant had a remedy, it was by asking the judge to strike out the evidence when it appeared that no causal relation existed and the defendant was not shown to be responsible for any such defect, or by asking the judge to instruct the jury that a verdict of guilty could not be based upon wanton or reckless conduct with respect to the electrical system. No such request was made.
6. Other assignments of error, relied on by the defendant but not discussed in this opinion, have not been overlooked. We find nothing in them that requires discussion.
Judgments affirmed.
FOOTNOTES
[1] In the only comparable case known in this Commonwealth, the jury were similarly instructed. That was the case of Commonwealth v. Hendrick, & others, tried in the Superior Court in Suffolk County in August, 1925, a case of alleged manslaughter arising out of the collapse of a night club building called the Pickwick Club, which happened on July 4, 1925. A copy of the charge is in the Social Law Library. The case did not come to this court. The following cases involved manslaughter arising out of the collapse of a building. People v. Buddensieck, 103 N. Y. 487. State v. Ireland, 126 N. J. L. 444. The following cases involved manslaughter arising out of a fire. Commonwealth v. Rhoads, 20 Penn. Dist. R. 149. See also Miller v. Strahl, 239 U.S. 426.
[2] Compare the case of an employer who at common law owes no duty to his employees to make his factory safer than it appeared to be when the employment began, because they contractually assumed the risk. Jones v. Granite Mills, 126 Mass. 84 . Keith v. Granite Mills, 126 Mass. 90 . Pauley v. Steam Gauge & Lantern Co. 131 N. Y. 90. Huda v. American Glucose Co. 154 N. Y. 474. In those cases recovery by a servant against his master for injury caused by fire in a factory was denied. See also Wainwright v. Jackson, 291 Mass. 100 ; Little v. Lynn & Marblehead Real Estate Co. 301 Mass. 156 . In Cloutier v. Oakland Park Amusement Co. 129 Maine, 454, the court failed to distinguish between such cases and the case of an invited business visitor.
[3] In early cases what is now known as wanton or reckless conduct was variously described as wilful negligence, wanton negligence, gross negligence, and culpable negligence, as was pointed out in Bjornquist v. Boston & Albany Railroad, 185 Mass. 130 , 134, and Banks v. Braman, 188 Mass. 367 , 370. So in criminal cases what was necessary to make conduct criminal was often so described. The expression "criminal negligence" was often used. But it seems that what we now know as wanton or reckless conduct was in fact required. The terminology, not the law, is what has changed. Commonwealth v. Hartwell, 128 Mass. 415 . Commonwealth v. Pierce, 138 Mass. 165 . Commonwealth v. Hawkins, 157 Mass. 551 . Lanci v. Boston Elevated Railway, 197 Mass. 32 , 35. Romana v. Boston Elevated Railway, 218 Mass. 76 , 84. Commonwealth v. McCan, 277 Mass. 199 , 203. At least one statute purports to impose criminal liability for "gross negligence." G. L. (Ter. Ed.) c. 265, Section 30. Whether that expression really means wanton or reckless conduct has not been decided.
In other jurisdictions a variety of similar expressions has been used in describing conduct that will create criminal liability. But in many of them the substantial equivalent of wanton or reckless conduct is required. People v. Angelo, 246 N. Y. 451. Regina v. Elliott, 16 Cox C. C. 710. People v. Burgard, 377 Ill. 322. People v. Lynn, 385 Ill. 165. State v. Cope, 204 N. C. 28. State v. Studebaker, 334 Mo. 471. State v. Sawyers, 336 Mo. 644. Bell v. Commonwealth, 170 Va. 597. State v. Whatley, 210 Wis. 157; 99 Am. L. R. 749. 29 C. J. 1154, et seq.
7.2.8.3.3.1.2 Noakes v. Commonwealth 7.2.8.3.3.1.2 Noakes v. Commonwealth
ELIZABETH POLLARD NOAKES,
v.
COMMONWEALTH OF VIRGINIA.
Record No. 0295-08-2.
Court of Appeals of Virginia, Richmond.
James T. Maloney (Maloney & David, P.L.C., on brief), for appellant.
Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: Judges Kelsey, Beales and Retired Judge Clements[*].
MEMORANDUM OPINION[**]
JUDGE RANDOLPH A. BEALES.
Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.
I. BACKGROUND
On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable, "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.
Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.
In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.
Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.
Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.
Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.
A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.
Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.
The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."
At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.
II. ANALYSIS
When considering the sufficiency of the evidence on appeal, "a reviewing court does not `ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.
While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:
[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence. Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947).
West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).
Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.
First, although "`the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,'" Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations `"only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ,'" Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.
Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).
"The word `gross' means `aggravated or increased negligence' while the word `culpable' means `deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. `"Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature,[1] showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.' Id. at 611-12, 195 S.E. at 681."
Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).
On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.
We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.
Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound collapsed dog crate on top of his crib.
This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.[2] See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts"); Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").
In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers." Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").
Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction.[3] Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.
In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's inattentiveness in the face of this experimental and dangerous set-up and with Noah's conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah's safety. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.
III. CONCLUSION
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
Clements, J., dissenting.
For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.
"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it." Id. (citing Code § 8.01-680).
Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner "so gross, wanton, and culpable as to show a reckless disregard of human life."
Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "`is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.'" Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when `the offender either knew or should have known the probable results of his acts.'" Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).
In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.
For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."
In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.
Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep,[4] appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.
Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.
Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.
Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.
[*] Judge Clements participated in the hearing and decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).
[**] Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[1] "Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose." Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane." Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.
[2] We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.
[3] She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.
[4] Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.
7.2.8.3.3.1.3 State v. Williams 7.2.8.3.3.1.3 State v. Williams
v.
Walter L. WILLIAMS and Bernice J. Williams, and each of
them, Appellants.
[4 Wn.App. 910] [484 P.2d 1169] Kempton, Savage & Gossard, Anthony Savage, Jr., Seattle, Court-appointed for appellant.
Christopher T. Bayley, King County Pros. Atty., Michael P. Ruark, Deputy Pros. Atty., Seattle, for respondent.
HOROWITZ, Chief Judge.
Defendants, husband and wife, were charged by information filed October 3, 1968, with the crime of manslaughter for negligently failing to supply their 17-month child with necessary medical attention, as a result of which he died on September 12, 1968. Upon entry of findings, conclusions and judgment of guilty, sentences were imposed on April 22, 1969. Defendants appeal.
The defendant husband, Walter Williams, is a 24-year old full-blooded Sheshont Indian with a sixth-grade education. His sole occupation is that of laborer. The defendant wife, Bernice Williams, is a [484 P.2d 1170] 20-year-old part Indian with an 11th grade education. At the time of the marriage, the wife had two children, the younger of whom was a 14-month son. Both parents worked and the children were cared for by the 85-year-old mother of the defendant husband. The defendant husband assumed parental responsibility with the defendant wife to provide clothing, care and medical attention for the child. Both defendants possessed a great deal of love and affection for the defendant wife's young son.
The court expressly found:
That both defendants were aware that William Joseph [4 Wn.App. 911] Tabafunda was ill during the period September 1, 1968 to September 12, 1968. The defendants were ignorant. They did not realize how sick the baby was. They thought that the baby had a toothache and no layman regards a toothache as dangerous to life. They loved the baby and gave it aspirin in hopes of improving its condition. They did not take the baby to a doctor because of fear that the Welfare Department would take the baby away from them. They knew that medical help was available because of previous experience. They had no excuse that the law will recognize for not taking the baby to a doctor.
The defendants Walter L. Williams and Bernice J. Williams were negligent in not seeking medical attention for William Joseph Tabafunda.
That as a proximate result of this negligence, William Joseph Tabafunda died.
Findings 5, 6 and 7. From these and other findings, the court concluded that the defendants were each guilty of the crime of manslaughter as charged.
Defendants take no exception to findings but contend that the findings do not support the conclusions that the defendants are guilty of manslaughter as charged. The contentions raise tow basic issues, (1) the existence of the duty to furnish medical aid charged by the information to be violated [1] and the seriousness of the breach required; and (2) the issue of proximate cause, I.e., whether defendants were put on notice, in time to save the child's life, that medical care was required. Because the nature of the duty and the quality or seriousness of the breach are closely interrelated, our discussion of the first issue involved will embrace both matters.
[4 Wn.App. 912] Parental duty to provide medical care for a dependent minor child was recognized at common law and characterized as a natural duty. In re Hudson, 13 Wash.2d 673, 126 P.2d 765 (1942); White v. McDowell, 74 Wash. 44, 132 P. 734 (1913); See Commonwealth v. Breth, 44 Pa.Co.Ct.R. 56 (1915); Annot., 100 A.L.R.2d 483, §§ 6, 15(a), 15(b) (1965). In Washington, the existence of the duty is commonly assumed and is stated at times without reference to any particular statute. See, e.g., In re Adoption of Lybbert, 75 Wash.2d 671, 453 P.2d 650 (1969); In re Hudson, 13 Wash.2d 673, 693, 126 P.2d 765 (1942); In re Guardianship of Rudonick, 76 Wash.2d 117, 125, 456 P.2d 96 (1969). The existence of the duty also is assumed, but not always defined, in statutes that provide special criminal and civil sanctions for the performance of that duty. These include RCW 26.16.205, 26.20.030, 26.24.090, 26.32.140, 26.37.050 and chapter 26.21. See State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966). Thus, RCW 26.16.205 imposes civil liability on parental property [484 P.2d 1171] for the 'expenses of the family and education of the children.' The quoted language is broad enough to include 'necessaries,' and necessaries include necessary medical expense of dependent minor children which it is the duty of a parent to provide. On the question of the quality or seriousness of breach of the duty, at common law, in the case of involuntary manslaughter, the breach had to amount to more than mere ordinary or simple negligence--gross negligence was essential. See 1 O. Warren, Homicide § 86 at 424 (Permanent ed. 1938); R. Perkins, Criminal Law 60--61 (1957). In Washington, however, RCW 9.48.060 [2] (since amended by Laws of 1970, ch. 49, § 2) and RCW 9.48.150 [3] supersede both voluntary and [4 Wn.App. 913] involuntary manslaughter as those crimes were defined at common law. Under these statutes the crime is deemed committed even though the death of the victim is the proximate result of only simple or ordinary negligence. State v. Brubaker, 62 Wash.2d 964, 385 P.2d 318 (1963); State v. Ramser, 17 Wash.2d 581, 136 P.2d 1013 (1943); State v. Hedges, 8 Wash.2d 652, 113 P.2d 530 (1941).
The concept of simple or ordinary negligence describes a failure to exercise the 'ordinary caution' necessary to make out the defense of excusable homicide. RCW 9.48.150. Ordinary caution is the kind of caution that a man of reasonable prudence would exercise under the same or similar conditions. If, therefore, the conduct of a defendant, regardless of his ignorance, good intentions and good faith, fails to measure up to the conduct required of a man of reasonable prudence, he is guilty of ordinary negligence because of his failure to use 'ordinary caution.' See State v. Hedges, Supra. If such negligence proximately causes the death of the victim, the defendant, as pointed out above, is guilty of statutory manslaughter.
In the instant case, defendants contend that the only duty to provide medical care for the infant child is the statutory duty set forth in RCW 26.20.030; that the court having concluded that the defendants were not guilty of 'willful * * * misconduct,' that no duty to furnish medical care was violated and that, accordingly, defendants are not guilty of the crime of statutory manslaughter charged in the information.
RCW 26.20.030(1)(b) makes it a felony for a person who 'willfully omits, without lawful excuse, to furnish necessary * * * medical attendance for his or her child * * *.' The words 'willfully omits' are, as pointed out in State v. Russell, 73 Wash.2d 903, 907--908, 442 P.2d 988 (1968), used in two senses, namely, (1) 'an act or omission done intentionally * * *' or (2) when used in statutes making nonsupport a crime, 'an absence of lawful excuse or justification on the part of the accused parent.' It was further pointed out that, by reason of RCW 26.20.080, the state [4 Wn.App. 914] meets its burden of proving willfulness and absence of lawful excuse on a prima facie basis when the evidence, directly or circumstantially, reveals a failure on the part of a physically or vocationally able parent to furnish the required medical attendance. Hence, RCW 26.20.030 is presumptively violated either because a defendant intentionally omits to furnish necessary medical care, or omits so to do without lawful excuse.
Defendants' contention misconceives the significance of the words 'willful * * * misconduct' contained in the conclusions because of defendants' failure to recognize that 'willful' is a phrase of double meaning. The presumption of correctness that attends judgments of the trial court is necessarily predicated upon the subordinate presumption of the correctness of findings and conclusions. To give proper[484 P.2d 1172] effect to this presumption requires that findings, whether or not containing a conclusion of law, and conclusions of law be reconciled if reasonably possible. Such a reconciliation is entirely possible in the instant case by a proper interpretation of the phrase 'willful * * * misconduct.' Since the trial court expressly found that the defendants 'had no excuse that the law will recognize for not taking the baby to a doctor,' it is reasonable to conclude that the phrase 'willful * * * misconduct,' contained in the conclusion, merely means intentional misconduct. The conclusion, in light of the findings, means merely that the conduct, although not intentional, was without lawful excuse and therefore willful in the second sense. State v. Russell, 73 Wash.2d 903, 442 P.2d 988 (1968); State v. McCarty, 76 Wash.2d 328, 456 P.2d 350 (1969); State v. Ozanne, 75 Wash.2d 546, 452 P.2d 745 (1969). Even if it is assumed that the information charging the crime of manslaughter relied upon a violation of RCW 26.20.030(1)(b), the conviction must stand since the findings and supporting evidence are sufficient to support the conclusion that, in the second sense of the term, the defendants willfully violated the duty owing their deceased child.
Furthermore, the significance of the words 'willful [4 Wn.App. 915] * * * misconduct' contained in the conclusion is overstated. If it be assumed that RCW 26.20.030(1)(b) can be said to create a duty to furnish medical care otherwise not existing, as distinguished from a mere statement of a condition precedent to the imposition of a criminal sanction, then a duty may be said to exist even if the conditions permitting imposition of the criminal sanction do not. See State v. Parmenter, 74 Wash.2d 343, 444 P.2d 680 (1968). Hence, a conclusion that defendants' conduct was not willful does not mean that the duty has not been violated. It merely means that the special sanction of RCW 26.20.030(1) (b) cannot be invoked.
We need not, however, rest our decision solely on the above mentioned grounds. The information charging statutory manslaughter made no mention of and did not purport to restrict itself to the violation of the duty set forth in RCW 26.20.030(1)(b). The information charged the violation of 'the legal duty of providing necessary * * * medical attention to said * * * minor child * * *' This general language permits reliance upon the existence of the legal duty no matter from what source derived. We have already pointed out that such a parental duty is recognized in the decisions of this state and has been characterized as a natural duty existing independently of statutes. In re Hudson, Supra. RCW 26.20.030(1)(b) is consistent with and therefore does not supersede the common law natural duty of parents to provide medical care for their minor dependent children. Thus, should RCW 26.20.030(1)(b) be repealed, it could not reasonably be claimed that parents were thereby absolved from their natural duty to provide necessary medical care for their minor dependent children. We therefore hold that the violation of the parental duty to furnish medical care to a minor dependent child, the other elements of manslaughter being present, is a sufficient basis on which to rest a conviction of the crime of manslaughter under RCW 9.48.060 and 9.48.150. State v. Parmenter, Supra. See Commonwealth v. [4 Wn.App. 916] Breth, Supra. See also State v. Brubaker, Supra; State v. Ramser, Supra; State v. Hedges, Supra.
In the instant case, however, the defendant husband is not the father of the minor child, nor has he adopted that child. Nevertheless, the evidence shows that he had assumed responsibility with his wife for the care and maintenance of the child, whom he greatly loved. Such assumption of responsibility, characterized in the information as that required of a 'guardian and custodian,' is sufficient to impose upon him the duty to furnish necessary medical care. See State v. Parmenter, Supra; White v. McDowell, Supra. See generally, Annot., 10 A.L.R. 1137, 1143 (1921); 39 Am.Jur. Parent and Child § [484 P.2d 1173] 105 (1942); State v. Noakes, 70 Vt. 247, 40 A. 249 (1897); State v. Sandford, 99 Me. 441, 59 A. 597 (1905). See also RCW 9.01.030.
The remaining issue of proximate cause requires consideration of the question of when the duty to furnish medical care became activated. If the duty to furnish such care was not activated until after it was too late to save the life of the child, failure to furnish medical care could not be said to have proximately caused the child's death. Timeliness in the furnishing of medical care also must be considered in terms of 'ordinary caution.' The law does not mandatorily require that a doctor be called for a child at the first sign of any indisposition or illness. The indisposition or illness may appear to be of a minor or very temporary kind, such as a toothache or cold. If one in the exercise of ordinary caution fails to recognize that his child's symptoms require medical attention, it cannot be said that the failure to obtain such medical attention is a breach of the duty owed. In our opinion, the duty as formulated in People v. Pierson, 176 N.Y. 201, 68 N.E. 243 (1903), although involving a statute similar to RCW 26.20.030(1)(b), properly defines the duty contemplated by our manslaughter statutes RCW 9.48.060 and RCW 9.48.150. The court there said:
We quite agree that the Code does not contemplate the necessity of calling a physician for every trifling complaint with which the child may be afflicted, which in most instances may be overcome by the ordinary household [4 Wn.App. 917] nursing by members of the family; that a reasonable amount of discretion is vested in parents, charged with the duty of maintaining and bringing up infant children; and that the standard is at what time would an ordinarily prudent person, solicitous for the welfare of his child and anxious to promote its recovery, deem it necessary to call in the services of a physician.
People v. Pierson, Supra at 205, 68 N.E. at 244. Accord, Beck v. State, 29 Okl.Cr. 240, 233 P. 495 (1925).
It remains to apply the law discussed to the facts of the instant case.
Defendants have not assigned error to the findings either on the ground that the evidence is insufficient to prove negligence or proximate cause, or that the state has failed to prove the facts found by failing to apply the required standard of proof beyond a reasonable doubt. See People v. Robillard, 55 Cal.2d 88, 10 Cal.Rptr. 167, 358 P.2d 295, 83 A.L.R.2d 1086 (1960), cert. denied, 365 U.S. 886, 81 S.Ct. 1043, 6 L.Ed.2d 199 (1961); United States v. Eichberg, 439 F.2d 620 (D.C.Cir.1971). They contended below and on appeal that they are not guilty of the crime charged. Because of the serious nature of the charge against the parent and step-parent of a well-loved child, and out of our concern for the protection of the constitutional rights of the defendants, we have made an independent examination of the evidence to determine whether it substantially supports the court's express finding on proximate cause and its implied finding that the duty to furnish medical care became activated in time to prevent death of the child. See State v. Moore, 194 Or. 232, 241 P.2d 455 (1952).
Dr. Gale Wilson, the autopsy surgeon and chief pathologist for the King County Coroner, testified that the child died because an abscessed tooth had been allowed to develop into an infection of the mouth and cheeks, eventually becoming gangrenous. This condition, accompanied by the child's inability to eat, brought about malnutrition, lowering the child's resistance and eventually producing pneumonia, causing the death. Dr. Wilson testified that in his opinion [4 Wn.App. 918] the infection had lasted for approximately 2 weeks, and that the odor generally associated with gangrene would have been present for approximately 10 days before death. He also expressed the opinion that had medical care been first obtained in the last week before the baby's [484 P.2d 1174] death, such care would have been obtained too late to have saved the baby's life. Accordingly, the baby's apparent condition between September 1 and September 5, 1968 became the critical period for the purpose of determining whether in the exercise of ordinary caution defendants should have provided medical care for the minor child.
The testimony concerning the child's apparent condition during the critical period is not crystal clear, but is sufficient to warrant the following statement of the matter. The defendant husband testified that he noticed the baby was sick about 2 weeks before the baby died. The defendant wife testified that she noticed the baby was ill about a week and a half or 2 weeks before the baby died. The evidence showed that in the critical period the baby was fussy; that he could not keep his food down; and that a cheek started swelling up. The swelling went up and down, but did not disappear. In that same period, the cheek turned 'a bluish color like.' The defendants, not realizing that the baby was as ill as it was or that the baby was in danger of dying, attempted to provide some relief to the baby by giving the baby aspirin during the critical period and continued to do so until the night before the baby died. The defendants thought the swelling would go down and were waiting for it to do so; and defendant husband testified, that from what he had heard, neither doctors nor dentists pull out a tooth 'when it's all swollen up like that.' There was an additional explanation for not calling a doctor given by each defendant. Defendant husband testified that 'the way the cheek looked, * * * and that stuff on his hair, they would think we were neglecting him and take him away from us and not give him back.' Defendant wife testified that the defendants were 'waiting for the swelling to go down,' and also that they were afraid to [4 Wn.App. 919] take the child to a doctor for fear that the doctor would report them to the welfare department, who, in turn, would take the child away. 'It's just that I was so scared of losing him.' They testified that they had heard that the defendant husband's cousin lost a child that way. The evidence showed that the defendants did not understand the significance or seriousness of the baby's symptoms. However, there is no evidence that the defendants were physically or financially unable to obtain a doctor, or that they did not know an available doctor, or that the symptoms did not continue to be a matter of concern during the critical period. Indeed, the evidence shows that in April 1968 defendant husband had taken the child to a doctor for medical attention.
In our opinion, there is sufficient evidence from which the court could find, as it necessarily did, that applying the standard of ordinary caution, I.e., the caution exercisable by a man of reasonable prudence under the same or similar conditions, defendants were sufficiently put on notice concerning the symptoms of the baby's illness and lack of improvement in the baby's apparent condition in the period from September 1 to September 5, 1968 to have required them to have obtained medical care for the child. The failure so to do in this case is ordinary or simple negligence, and such negligence is sufficient to support a conviction of statutory manslaughter.
The judgment is affirmed.
UTTER and WILLIAMS, JJ., concur.
---------------
[1] The information, in charging the violation of the duty owed, alleged:
(T)hey, the said defendants, then and there being the father, mother, guardian and custodian of one William Joseph Tabafunda, and being then and there under the legal duty of providing necessary food, clothing, care and medical attention to said William Joseph Tabafunds (sic), a minor child under the age of sixteen years, to-wit: of the age of seventeen (17) months, did then and there unlawfully and feloniously fail and neglect, without lawful excuse, to provide said * * * child * * * with necessary food, clothing, care and medical attention * * *
[2] RCW 9.48.060 provided in part:
'In any case other than those specified in RCW 9.48.030, 9.48.040 and 9.48.050, homicide, not being excusable or justifiable, is manslaughter.'
[3] RCW 9.48.150 provides:
'Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, with ordinary caution and without any unlawful intent.'
7.2.8.3.3.1.4 Montgomery v. State 7.2.8.3.3.1.4 Montgomery v. State
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
JERI DAWN MONTGOMERY, Appellant v.
THE STATE OF TEXAS
NO. PD-1169-11
JOHNSON, J., delivered the opinion for a unanimous Court.
Appellant caused a three-car collision, during which a passenger in one of the other vehicles was killed. The grand jury indicted appellant for criminally negligent homicide, alleging that she had made an unsafe lane change and had failed to keep a proper lookout. A petit jury found appellant guilty and also found that appellant’s vehicle was a deadly weapon. The jury assessed punishment of ten years’ confinement in the Texas Department of Criminal Justice, probated for ten years, and a $10,000 fine. On appeal, the Fourteenth Court of Appeals found the evidence insufficient to sustain the conviction and rendered a judgment of acquittal.[1] This Court granted the four grounds raised in the state’s petition for discretionary review.
1. The court of appeals erred in holding that “cell phone usage while operating a vehicle” does not constitute morally blameworthy conduct and does not justify criminal sanctions.
2. The court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act.
3. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was traveling less than 39 miles per hour and was 92 feet past the interstate highway entrance ramp at the time that she attempted to cross in front of other vehicles to enter the freeway.
4. The court of appeals erred in holding that the evidence was insufficient to prove criminally negligent homicide where the appellant was admittedly distracted by talking on a cell phone at the time that she attempted to cross in front of other vehicles to enter the interstate highway ramp, which she had already missed by 92 feet.
After review, we find that the evidence was legally sufficient to sustain appellant’s conviction for criminally negligent homicide, and we reverse the judgment of the court of appeals.
Facts
At approximately 8:30 p.m. on March 24, 2008, appellant was driving her mid-size SUV in the center lane of the three-lane service road adjacent to Interstate Highway 45 (IH-45) and talking on her cell phone. After hanging up the phone, appellant realized that she had missed the entrance ramp to IH- 45, which diverged from the left lane of the service road. Appellant abruptly swerved into the left lane to try to get onto the ramp, even though the beginning of the solid-white-lined area on the pavement between the ramp and the service road, often known as the “safety barrier,” was behind her. There was disagreement at trial between the state’s and appellant’s experts as to how far past the entrance ramp appellant was when she changed lanes, but they agreed that it was after the safety barrier began. The state’s expert testified that it was 92 feet past the entrance to the ramp; appellant’s expert estimated a lesser distance.
As appellant moved abruptly into the left lane, she cut off Cochise Willis, who was driving his three-quarter-ton pickup truck in the left lane of the service road. Willis testified that he was driving at the speed limit–50 miles per hour–and that appellant was driving more slowly than Willis when she moved into the left lane ahead of him. Willis tried to slow down and get into the center lane, but he could not avoid hitting the rear of appellant’s SUV, slightly to the right of its center. At the time of impact, appellant’s vehicle was almost entirely in the left lane, and Willis’s truck was over the dividing line between the left and center lanes. The collision caused appellant’s vehicle to rotate in a counterclockwise direction, crossing over the safety barrier and onto the entrance ramp itself. The front of appellant’s SUV struck the passenger side of Terrell Housley’s pickup truck, which had just been driven onto the entrance ramp. Chance Wilcox was a passenger in the truck. After the collision, Housley’s truck rotated clockwise, causing it to hit the curb that separates the entrance ramp and the safety barrier and flip over, coming to a stop upside down. As Housley’s truck flipped, Wilcox was ejected, and he died at the scene from trauma to his head and neck. At the same time, the collision with Housley’s truck caused appellant’s SUV to flip onto its left side and skid to a stop. Willis never lost control of his truck. He pulled into the emergency lane of the service road and stopped.
The Court of Appeals’s Opinion
The court of appeals found that the evidence was insufficient to establish the requisite mens rea of criminal negligence, noting that
the State presented evidence of appellant’s use of a cell phone while driving, her unsafe lane change, and her failure to maintain a proper lookout. Only one of the three factors was a moving violation under Texas Law: making an unsafe lane change. However, the State placed primary emphasis on a factor that was not even listed in the indictment as proof of appellant’s negligence: cell phone usage. . . . [B]y continuing that emphasis in this appeal, the State encourages this court to legislate through judicial fiat. Except under very limited circumstances not at issue in this case, using a cell phone while driving is not an illegal activity in Texas.[2]
Focusing on the prosecution’s presentation of cell-phone use as a primary factor establishing appellant’s criminally negligent behavior, the court of appeals found that the state introduced no competent evidence that cell-phone use while driving increases the risk of fatal accidents and held that, without evidence that such a risk was generally known and disapproved of in the community, no reasonable fact finder could find that using a cell phone while driving turned a simple moving violation into criminally negligent homicide. Thus, the state had failed to establish that appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from the standard of ordinary care.
The state argues that, had the court of appeals used the correct standard of review and viewed the evidence in the light most favorable to the verdict, the court would have concluded that the evidence was legally sufficient to sustain the conviction. The state contends that the court of appeals relied on two incorrect theories of law: (1) cell-phone use while driving does not constitute morally blameworthy conduct and therefore does not justify criminal sanctions; and (2) the negligent act in a criminally negligent homicide must itself be an illegal act. The state contends that the court of appeals required evidence of an increased risk of fatal crashes from cell-phone use, but such a risk is generally known and disapproved of in the community; the dangers of driving while talking on a cell phone have been well known for years and has even been criminalized in certain situations by the Texas Legislature. And even though appellant violated at least one traffic law when she made an unsafe lane change into the left lane, it is not the law in Texas that the negligent act must be illegal.
Sufficiency of the Evidence
The state’s third and fourth grounds for review challenge the court of appeals’s sufficiency review of the evidence. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[3] The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.[4] The duty of the reviewing court is simply to ensure that the evidence presented supports the jury’s verdict[5] and that the state has presented a legally sufficient case of the offense charged.[6] When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record.[7]
To make a legally sufficient showing of criminally negligent homicide, the state must prove that (1) appellant’s conduct caused the death of an individual; (2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct; and (3) appellant’s failure to perceive the risk constituted a gross deviation from the standard of care an ordinary person wouldhaveexercisedunderlikecircumstances.[8] The circumstances are viewed from the standpoint of the actor at the time that the allegedly negligent act occurred.[9] Criminal negligence does not require proof of appellant’s subjective awareness of the risk of harm, but rather appellant’s awareness of the attendant circumstances leading to such a risk.[10] The key to criminal negligence is not the actor’s being aware of a substantial risk and disregarding it, but rather it is the failure of the actor to perceive the risk at all.[11]
Conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence.[12] The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong.[13] The risk must be “substantial and unjustifiable,” the failure to perceive it must be a “gross deviation” from reasonable care as judged by general societal standards.[14] “With criminal negligence, the defendant ought to have been aware of a substantial and unjustifiable risk that his conduct could result in the type of harm that did occur, and that this risk was of such a nature that the failure to perceive it was a gross deviation from the reasonable standard of care exercised by ordinary people.” Williams v. State, 235 S.W.3d 742, 750-51 (Tex. Crim. App. 2007). The degree of deviation from reasonable care “is measured solely by the degree of negligence, not any element of actual awareness.”[15] In finding a defendant criminally negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment.[16]
After reviewing the record, we conclude that the state has met its burden of proving all of the elements of criminally negligent homicide. Appellant made an abrupt lane change in front of Willis’s truck, causing that truck to strike the rear of appellant’s SUV, and then causing her SUV to strike Housley’s truck, from which Wilcox was ejected and died. The state has thus shown that appellant, by making an unsafe lane change, caused the death of Wilcox.
The state has also proved that appellant ought to have been aware of the substantial and unjustifiable risk created by her conduct. The court of appeals, focusing on her cell-phone use, found that the state had not proved that appellant ought to be aware of the risk present because the state did not present evidence that cell-phone use while driving poses a risk to others. However, the indictment made no mention of use of a cell phone. Rather, the indictment alleged that appellant caused Wilcox’s death by making an unsafe lane change and failing to maintain a proper lookout when she made that lane change. Nor did the jury charge mention appellant’s use of a cell phone. The jury charge read,
Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of March, 2008, in Harris County, Texas, the defendant, Jeri Dawn Montgomery, did then and there unlawfully, cause the death of Chance Wilcox, by criminal negligence, namely, while operating a motor vehicle, making an unsafe lane change and failing to keep a proper lookout, causing the defendant’s vehicle to collide with a motor vehicle occupied by Chance Wilcox, then you will find the defendant guilty of criminally negligent homicide, as charged by the indictment.[17]
Through the testimony of its witnesses and experts, and by cross-examination of appellant’s witnesses and experts, the state presented evidence that: appellant was driving her SUV on the access road of IH-45; the speed limit was 50 miles per hour; appellant was driving more slowly than surrounding traffic; appellant was up to 92 feet past the beginning of the entrance ramp onto IH- 45 when she abruptly changed lanes; appellant did not signal the lane change or look for other vehicles approaching in the left lane; and appellant intended to enter IH-45 via the entrance ramp that she had already passed. The state also presented evidence that, just before the accident, appellant was driving and talking on her cell phone and that appellant admitted using the cell phone had distracted her. As Justice Hudson pointed out in his dissent in the court of appeals, the state had no burden to show that driving while using a cell phone is always risky or dangerous, or that it, of itself, creates a substantial and unjustifiable risk, only that appellant’s use of a cell phone in this case created a substantial and unjustifiable risk because it interfered with her ability to maintain a proper lookout for other vehicles.[18]
Given these circumstances, we find that a jury could have reasonably concluded that appellant ought to have been aware of the substantial and unjustifiable risk created by her actions. Appellant was driving at speeds high enough to be lethal, should a collision occur. It is common knowledge that failing to maintain a proper lookout and making an unsafe lane change without signaling or checking for upcoming traffic poses a great risk to other drivers on that road and that anyone sharing the general community’s sense of right and wrong would be aware of the seriousness of doing so.
Finally, we hold that the jury could have reasonably found that appellant’s failure to appreciate the substantial and unjustifiable risk, given the circumstances known to her at that time, was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances. The state presented evidence that appellant had missed the entrance ramp for the highway because she was distracted by talking on her cell phone. Further evidence indicated that, although appellant knew that she had missed the entrance ramp, she still attempted to move to the left lane, cut across the “safety barrier,” and get onto the entrance ramp. Both the state’s and appellant’s accident reconstruction experts testified that appellant made an unsafe or “aggressive” lane change into the left lane and that Willis could not have avoided hitting appellant’s vehicle. Willis testified that appellant was driving more slowly than surrounding traffic and did not signal or use her brakes before she changed lanes. From the evidence presented, the jury could have found that appellant failed to perceive the substantial and unjustifiable risk created by her conduct.
Appellant argues that her conduct was not a gross deviation from the ordinary standard of care and that she was subjected to criminal liability for a common traffic accident with fatal results. The court of appeals, again focusing on the lack of evidence presented regarding the dangers of talking on a cell phone while driving, found that the use of a cell phone while driving was such common practice that it would be difficult for a rational fact finder to find it to be a gross deviation from the ordinary standard of care.
The court of appeals mistakes what conduct was alleged to constitute the gross deviation in this case. The gross deviation from the ordinary standard of care argued by the state in this case was not appellant’s use of a cell phone, but rather that appellant made an unsafe lane change and failed to maintain a proper lookout, at least partly as a result of the distraction created by her use of the cell phone. The state was not required to present evidence of the dangers of using a cell phone while driving in order to carry its burden of proof, but such a use of a cell phone may be considered as a factor in determining whether a defendant grossly deviated from the ordinary standard of care. The question of whether appellant’s conduct was a “gross deviation” is a question to be answered by the fact finder and here, a rational jury could conclude that it was. We sustain the state’s third and fourth grounds for review.
Cell Phone Use
In its first ground, the state argues that the court of appeals erred in holding that cell-phone use while driving does not constitute morally blameworthy conduct and does not justify criminal sanctions. The morally blameworthiness of cell-phone use while driving, by itself, is not the issue in this case, and we will therefore not address it. It is within the purview of the legislature, not the courts, to determine what does and does not justify criminal sanctions.[19] We dismiss the state’s first ground for review.
Illegality of the Underlying Act
In its second ground, the state contends that the court of appeals erred in presuming that the negligent act in a criminally negligent homicide must itself be an illegal act. We do not read the court of appeals’s opinion to presume that the underlying act must itself be illegal. In footnote 10, the court of appeals listed a number of clearly legal-yet-distracting activities that, under the proper circumstances, may cause negligent driving.[20] By including such a list, the court of appeals clearly did not presume that the negligent act must violate Texas law. Instead, in considering whether a finding of a gross deviation from the standard of care was supported by the record, the court of appeals mistakenly focused on the absence in the record of any fact witnesses or scientific studies showing that cell-phone use while driving increases the risk of fatal accidents. We overrule the state’s second ground for review.
Conclusion
We hold that the evidence was legally sufficient to support the jury’s verdict of guilty of criminally negligent homicide. We vacate the judgment of the court of appeals and remand the cause to the court of appeals so that it may address appellant’s remaining points of error.
Delivered: June 20, 2012 Publish
[1] Montgomery v. State, 346 S.W.3d 747 (Tex. App.—Houston [14th Dist.] June 2, 2011, pet. granted).
[2] Id. at 752-753.
[8] See Tello v. State, 180 S.W.3d 150, 156 (Tex. Crim. App. 2005); see also Graham v. State, 657 S.W.2d 99, 101(Tex. Crim. App. 1983).
[9] Tello, 180 S.W.3d at 150 (Tex. Crim. App. 2005); Graham, 657 S.W.2d at 101.
[10] Tello, at 159 (Cochran, J., concurring).
[11] Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975).
[12] Tello, at 158-159 (Cochran, J., concurring).
[13] Id. at 158.
[19] In 2005, the legislature first enacted a law that governed use of cell phones; that law prohibited persons under the age of 18 years of age from driving while using a cell phone. See Act of June 17, 2005, 79th Leg., R.S., ch. 357, § 5, 2005 Tex. Sess. Law Serv. Ch. 357 (codified at TEX. TRANSP. CODE § 545.425). In 2009, the Legislature amended sections of the Transportation Code to state that, in very limited circumstances, criminal sanctions are appropriate for the use of a cell phone by persons of any age while driving. See TEX. TRANSP. CODE §§ 545.424-425 (2009). These circumstances are not present in this case, and, even if they were, the applicable amendments became effective eighteen months after this incident.
[20] Montgomery, 346 S.W .3d at 753 n.10.
7.2.8.3.3.2 III.C.ii. Unintentional Murder 7.2.8.3.3.2 III.C.ii. Unintentional Murder
Just as certain factors can bump murder down to manslaughter, others can bump it right back up. The cases in this section examine circumstances considered so extreme that, even though they do not show specific intent to kill or knowledge of killing, they are punished as “unintentional murder.” The doctrines that raise these homicides from manslaughter to murder have provocative traditional names: depraved heart; abandoned heart; malignant heart; or, more recently, “extreme indifference to the value of human life.” Consider why we punish these unintentional killings more severely than others, and how we distinguish these kinds of homicides from “normal” recklessness or indifference. Is it simply an instinctual feeling that these crimes are more blameworthy? As you read these cases, consider how the main justifications for criminal punishment—retribution, deterrence, incapacitation, and rehabilitation—justify elevating the level of criminal punishment.
7.2.8.3.3.2.1 Commonwealth v. Malone 7.2.8.3.3.2.1 Commonwealth v. Malone
354 Pa. 180
47 A.2d 445
COMMONWEALTH
v.
MALONE.
Supreme Court of Pennsylvania.
May 27, 1946.
Appeal No. 230, January term, 1945, from judgment of sentence of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, Lancaster County, June term, 1945, No. 1; Wissler, Judge.
James J. Malone was convicted of second-degree murder, and he appeals.
Affirmed, and record remitted. [47 A.2d 446]
Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, and STEARNE, Jj.
W. Hensel Brown, of Lancaster, for appellant.
John L. Hamaker, of Lancaster, for appellee.
MAXEY, Chief Justice.
This is an appeal from the judgment and sentence under a conviction of murder in the second degree. William H. Long, age 13 years, was killed by a shot from a 32-caliber revolver held against his right side by the defendant, then aged 17 years. These youths were on friendly terms at the time of the homicide. The defendant and his mother while his father and brother were in the U. S. Armed Forces, were residing in Lancaster, Pa., with the family of William H. Long, whose son was the victim of the shooting.
On the evening of February 26th, 1945, when the defendant went to a moving picture theater, he carried in the pocket of his raincoat a revolver which he had obtained at the home of his uncle on the preceding day. In the afternoon preceding the shooting, the decedent procured a cartridge from his father's room and he and the defendant placed it in the revolver.
After leaving the theater, the defendant went to a dairy store and there met the decedent. Both youths sat in the rear of the store ten minutes, during which period the defendant took the gun out of his pocket and loaded the chamber to the right of the firing pin and then closed the gun. A few minutes later, both youths sat on stools in front of the lunch counter and ate some food. The defendant suggested to the decedent that they play ‘Russian Poker.’ 1 Long replied; ‘I don't care; go ahead.’ [47 A.2d 447]
The defendant then placed the revolver against the right side of Long and pulled the trigger three times. The third pull resulted in a fatal wound to Long. The latter jumped off the stool and cried: ‘Oh! Oh! Oh!’ and Malone said: ‘Did I hit you, Billy? Gee, Kid, I'm sorry.’ Long died from the wounds two days later.
The defendant testified that the gun chamber he loaded was the first one to the right of the firing chamber and that when he pulled the trigger he did not ‘expect to have the gun go off.’ He declared he had no intention of harming Long, who was his friend and companion. The defendant was indicted for murder, tried and found guilty of murder in the second degree and sentenced to a term in the penitentiary for a period not less than five years and not exceeding ten years. A new trial was refused and after sentence was imposed, an appeal was taken.
Appellant alleges certain errors in the charge of the court and also contends that the facts did not justify a conviction for any form of homicide except involuntary manslaughter. This contention we over-rule. A specific intent to take life is, under our law, an essential ingredient of murder in the first degree. At common law, the ‘grand criterion’ which ‘distinguished murder from other killing’ was malice on the part of the killer and this malice was not necessarily ‘malevolent to the deceased particularly’ but ‘any evil design in general; the dictate of a wicked, depraved and malignant heart’; 4 Blackstone 199. Among the examples that Blackstone cites of murder is ‘coolly discharging a gun among a multitude of people,’ causing the death of someone of the multitude.
In Pennsylvania, the common law crime of murder is divided into two degrees, and murder of the second degree includes every element which enters into first degree murder except the intention to kill: Commonwealth v. Divomte, 262 Pa. 504, 507, 105 A. 821. When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits that ‘wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty’ which proved that there was at that time in him ‘the state or frame of mind termed malice.' 2 This court has declared that if a driver ‘wantonly, recklessly, and in disregard of consequences' hurls ‘his car against another, or into a crowd’ and death results from that act ‘he ought * * * to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun’: Com. v. Mayberry, 290 Pa. 195, 199, 138 A. 686, 688, citing cases from four jurisdictions.
In Com. v. Hillman, 189 Pa. 548, 42 A. 196, 69 Am.St.Rep. 827, the charge of the court below was approved by this court. In that charge appears this statement: ‘Malice in law means a depraved and wicked heart that is reckless and disregards the rights of others. Reckless conduct that results in the death of another is malice. To illustrate that: If a man fires a gun into a crowd and kills another it is murder, because the fact of the reckless shooting of a gun into a crowd is malice in law. That wicked and depraved disposition and that recklessness and disregard of human life is malice.’
In Com. v. Knox, 262 Pa. 428, 105 A. 634, 636, the following instructions by the trial judge in a murder case was held by this court not to be error: ‘When a man uses a gun loaded with powder and shot and aimed at a vital part of the body of another and discharges it, he must be presumed to know that death is likely to follow.’ In Com. v. Arnold, 292 Pa. 210, at page 213, 140 A. 898, at page 899, this court said: ‘Malice will be implied from conduct, recklessness of consequences, or the cruelty of the crime.’
Appellant has assigned for error certain excerpts from the charge of the court. The charge in its entirety affords no grounds for the reversal of the judgment and sentence. Certain excerpts if they stood alone might have misled the [47 A.2d 448] jury to the defendant's prejudice. For example, the trial judge said: ‘All felonious homicide or illegal or unlawful homicide is presumed to be malicious, that is, murder of some degree, until the contrary appears in the evidence.’ The second sentence after this one reads as follows: ‘Accordingly, when a felonious or unlawful homicide is proved, malice is presumed to have existed * * * as a presumption of fact.’ A homicide may be unlawful without being presumably malicious. The homicide known as involuntary manslaughter occurs when death is caused by an unlawful act or by a lawful act done in an unlawful manner. While there do appear statements in some of the reports that ‘all unlawful homicide is presumed to be malicious and, therefore, murder,’ careful trial judges always qualify that statement, as Chief Justice Agnew did in Com. v. Drum, 58 Pa. 9, at page 17, where he said: ‘All murder * * * includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty.’ Trial judges should make it clear to the jury that an unlawful killing in order to constitute murder must result from an intentional, felonious act and not merely from an inadvertent or negligent act. The trial judge in a sentence which intervened between the two sentences above quoted, stated the applicable principle of law correctly as follows: ‘This presumption of malice does not rise, however, until the Commonwealth has made out a prima facie case of felonious homicide.’ This statement was in accord with what Mr. Justice Stern, speaking for this court, said in Com. v. Wucherer, 351 Pa. 305, at page 310, 41 A.2d 574, at page 576, to wit: ‘It is important at the outset to bear in mind that the so-called presumption of malice does not arise until the Commonwealth has made out a prima facie case of felonious homicide.’ Defendant's rights were fully protected by the charge in its totality.
However, the charge was in several respects prejudicial to the Commonwealth. For example, the trial judge said: ‘It is the duty of the Commonwealth to prove that the killing was unlawful and intentional, and if the evidence taken as a whole raises reasonable doubt in the minds of the jury as to whether the killing was accidental or intentional, you must acquit the accused, for the reason that the Commonwealth has failed to sustain its case.’ This instruction was tantamount to saying that the Commonwealth in order to obtain the conviction of the defendant of any crime included in the indictment had to prove him guilty of murder in the first degree, for if the killing was intentional, it would have been murder in the first degree. The alternative presented to the jury by the instructions was limited to an intentional killing or to an accidental killing. The jury found that the killing was neither intentional nor accidental but that it was a malicious killing though without a specific intent in the killer to take life, and that, therefore, it was murder in the second degree.
The trial judge also erred in charging that ‘A person on trial for murder cannot be convicted of any offense if the testimony shows that the death was accidental’. Death may be accidental though it resulted from a malicious act intentionally committed. In such a case the means were not accidental; the result was. 3 In the instant case if the defendant had by some negligent, unintentional act, caused Long to fall off the stool at which he was sitting in the store and if, as a result of that fall, Long had sustained a fatal injury, both the initial act and the death might be correctly characterized as accidental. But when the defendant knowing [47 A.2d 449] that a revolver had at least one loaded cartridge in it, pressed the muzzle of that revolver to the side of Long and pulled the trigger three times, his act cannot be characterized as accidental, even if his statement that he had no intention to kill Long is accepted (as the jury accepted it). The way the trial judge used the word ‘accidental’ throughout the charge must have been confusing to the jury and might easily have misled it into acquitting the accused on the theory that since the death of Long was accidental, ‘the defendant cannot be convicted of any offense’ (as the trial judge said). The latter should have made it clear to the jury that even though Long's death might have been unintended and, therefore, accidental, the evidence showed that the act which caused the victim's death was not accidental. This was the view the jury took of the case despite the court's instructions.
In another portion of the charge, the trial judge said to the jury: ‘If you believe the testimony of the defendant, that the shot was accidental and without intention on his part, and that the shot accidentally and without intention on his part struck the body of William H. Long, from the effects of which he afterwards died, then you should acquit the defendant’. There was not in this record any evidence which would warrant a finding that ‘the shot was accidental’. Later the judge instructed the jury that ‘If the killing was accidental, although done with a deadly weapon, it could not be said to be intentional or wilful; and, if neither intentional nor wilful, the crime of murder is not made out’. What we have already said on this phase of the case sufficiently reveals the error in these instructions. Of such and similar errors, the appellant cannot complain; they were prejudicial only to the Commonwealth.
This court said in Sears v. Birbeck, 321 Pa. 375, 383, 184 A. 6, 10: ‘It is a primary duty of the trial judge-a duty that must never be ignored-in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide.’ When the issues in either a criminal or a civil case are not clarified in the judge's charge, the charge is of very little value in the administration of justice though it may contain no prejudicial error. A charge may be technically correct and yet be to the jury meaningless and useless. Many trial judges employ concrete illustrations 4 to help make clear to the jury what the issues are which the jury is to decide and how to apply legal principles to the facts so as to reach a just verdict.
The killing of William H. Long by this defendant resulted from an act intentionally done by the latter, in reckless and wanton disregard of the consequences which were at least sixty per cent certain from his thrice attempted discharge of a gun known to contain one bullet and aimed at a vital part of Long's body. This killing was, therefore, murder, for malice in the sense of a wicked disposition is evidenced by the intentional doing of an uncalled-for act in callous disregard of its likely harmful effects on others. The fact that there was no motive for this homicide does not exculpate the accused. In a trial for murder proof of motive is always relevant but never necessary.
All the assignments of error are overruled and the judgment is affirmed. The record is remitted to the court below so that the sentence imposed may be carried out.
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Notes:
1It has been explained that ‘Russian Poker’ is a game in which the participants, in turn, place a single cartridge in one of the five chambers of a revolver cylinder, give the latter a quick twirl, place the muzzle of the gun against the temple and pull the trigger, leaving it to chance whether or not death results to the trigger puller.
2These quoted phrases are from the opinion of Chief Justice Agnew in Com. v. Drum, 58 Pa. 9.
3If A maliciously beats B intending to do him enormous bodily harm without killing him and B dies as result of the beating, A can be found guilty of murder in the second degree, though death was ‘accidental’ in the sense that it was not intended by A. The difference between intentional means and ‘accidental’ results is discussed in Arnstein v. Metropolitan L. Ins. Co., 329 Pa. 158, at page 162, 196 A. 491, and in O'Neill et al. v. Metropolitan Life Ins. Co., 345 Pa. 232, at page 237, 26 A.2d 898, at page 901, 142 A.L.R. 735, Footnote 1.
4In the well-known case of Com. v. Harman, 4 Pa. 269, Chief Justice Gibson in charging the jury used an illustration to make clear to the jury why evidence should not be discredited because it was circumstantial, and that even so-called ‘positive’ evidence was to a certain degree inferential in nature, i.e., circumstantial. In the famous case of Com. v. Webster, 5 Cush., Mass., 295, 311, 52 Am.Dec. 711, Chief Justice Shaw of Massachusetts used the following simple illustration to instruct the jury as to the nature and value of circumstantial evidence: ‘When footprints are discovered after a recent snow, it is certain that some animated being has passed over the snow since it fell; and, from the form and number of footprints, it can be determined with equal certainty, whether they are a man, a bird, or a quadruped.’
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7.2.8.3.3.2.2 People v. Wells 7.2.8.3.3.2.2 People v. Wells
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
NEVILLE WELLS, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
[182] Richard M. Greenberg, Office of the Appellate Defender, New York City (Joseph M. Nursey of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York City (Patricia Curran and Alice Wiseman of counsel), for respondent.
FRIEDMAN and WILLIAMS, JJ., concur with TOM, J.P.; McGUIRE, J., concurs in a separate opinion.
OPINION OF THE COURT
TOM, J.P.
This appeal raises the issue of whether a death resulting from defendant's operation of a motor vehicle at a high rate of speed through the streets of lower Manhattan, while severely impaired by alcohol intoxication, supports his conviction of depraved indifference murder (Penal Law § 125.25 [2]). The law in effect at the time defendant was convicted is delineated by People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), and we hold that the evidence is sufficient to sustain the judgment under the Register standard, the verdict is consistent with the weight of the evidence, and the trial court properly declined to entertain the defense of intoxication to negate the culpable mental state of depraved indifference or to accept expert [183] testimony concerning defendant's chronic alcoholism. Were we to analyze this case under the standard of People v Feingold (7 NY3d 288 [2006]), as urged by defendant, we would reach the same result.
On June 14, 2004 at 2:00 A.M., Robert Smith drove from his home in Nassau County to the Fulton Fish Market, where he ran a wholesale seafood business. He was accompanied by his daughter, Judith Gubernikoff, 37 years of age, who had begun working for the family business that month after moving from Chicago to New York with her husband, Dr. George Gubernikoff, and their three young children so that Dr. Gubernikoff could accept a position at a Long Island hospital. Robert Smith testified that it was his custom to take the Williamsburg Bridge into Manhattan and drive south along Allen Street, which is a six-lane, divided roadway with a median separating the northbound and southbound lanes. Smith stated that he customarily traveled at 25 miles an hour to coincide with the timing of the traffic signals; however, he had no recollection of the events of that fatal morning.
At about 2:45 A.M., Adam Falek was in his pickup truck waiting at a red light on Waverly Street. As he made a right turn onto Broadway after the light changed, a blue van traveling south on Broadway came "flying" through the red light and almost hit his vehicle, causing him to swerve to the right to avoid a collision. Falek followed the blue van, pulling up alongside it at the next light, and began to yell at the driver, who paid no attention. Falek observed that the van's driver was rolling his head and looked "disheveled," "incoherent," "out of it," and "totally wasted." Without even looking over, he "just punched the gas and took off," stopping only momentarily after hitting a parked car about two blocks later. Falek continued to follow the van because it was going in his direction. However, he broke off the chase after the van ran through two more red lights: "he was going a high rate of speed and I was afraid, so I said it's not worth it." Falek estimated that, at the point he decided to discontinue the pursuit, his own vehicle was traveling at "[f]ifty, sixty miles an hour," and the distance between the two vehicles was increasing.
At approximately 2:55 A.M., Martin Clemente was in his Dodge Caravan in the westbound lane of Grand Street, facing the intersection with Allen Street, waiting for the light to change. There were still people coming back from the Hispanic Day parade crossing Grand Street directly in front of his vehicle. Looking [184] straight ahead towards the traffic light with an unobstructed view of the intersection, he observed a Saturn proceeding south on Allen Street at about 30 miles an hour into the intersection. Suddenly, a blue minivan "came out of nowhere" from the easterly direction on Grand Street, going "very fast," and without braking or slowing down entered the intersection against a red light. The front end of the van struck the passenger side of the Saturn. The force of the impact caused the minivan to spin around and come to a stop facing west in the intersection. "The Saturn went up in the air," propelled end over end, "doing a three-sixty, hit the floor, did another three-sixty," and landed on the fence of the divider on the northbound side of Allen Street.
After calling 911 to report the accident, Clemente went over to the Saturn. Smith appeared to be in shock, and Judith Gubernikoff was unconscious. Her seat was "crushed together" with the driver's seat, and both seats were tilted backwards, "so she was trying to gasp for air with her head back." From a distance of about 25 feet, Clemente watched defendant get out of the driver's side of the minivan. He appeared "dizzy" and was "walking around in circles."
At the same time, Coss Marte, who was standing in the vicinity with some friends, heard a loud crash and ran to the intersection of Allen and Grand Streets, where he saw the blue van in the middle of the intersection and the Saturn on top of the fence located on the median island. Marte also called 911. As the sound of ambulance sirens became audible, defendant attempted to "run away," "zigzagging" along Grand Street towards Eldridge Street. Marte chased defendant and, a minute or two later, Marte and another man grabbed defendant and brought him back to the accident scene. Marte and the other man had to "grab" defendant's arms because he was attempting to get away. Although defendant was mumbling incomprehensibly, he did not appear to have sustained injury.
Officer Christopher Owen, who responded to the 911 call, testified that defendant appeared disheveled, his clothes were messy, his eyes were bloodshot and a strong odor of alcohol emanated from his person. The officer "had to prop him up with my right hand under his arm to walk him towards the ambulance, and he was stumbling, stumbling as we walked." The officer added, "He appeared very confused, disoriented, seemed like he didn't know what was going on," and was unresponsive to questioning. Apart from "some blood coming from his nose," defendant did not appear to be injured.
[185] Ms. Gubernikoff was brought to Bellevue Hospital's emergency room, where she was treated by Dr. Richard Moreno. A thoracotomy was performed, which revealed that she had sustained a hemopericardium—the accumulation of blood between the heart and the pericardial sac surrounding it. Because the injury prevented her heart from contracting appropriately, the pericardium was opened and the blood drained. At that point, Dr. Moreno observed a hole in the right atrium of the heart, an injury that is consistent with blunt force trauma sustained in a motor vehicle collision. Dr. Moreno testified that the force generated in the thoracic cavity necessary to cause the heart to rupture was "high velocity." While performing surgery to repair the hole, the medical team was unable to maintain blood pressure, and Gubernikoff was pronounced dead on the operating table at 4:50 A.M.
Robert Smith was also taken to Bellevue Hospital. A CAT scan revealed that blood had accumulated in his chest and behind the abdominal organs, near his kidneys. His injuries included a lacerated intercostal artery, and the internal bleeding required surgical intervention, without which he would have bled to death. Smith, who awoke three weeks later, remained in the intensive care unit until June 30, 2004. He was discharged from the hospital on July 9 and treated at a rehabilitation center for another two weeks. He was unable to return to work for approximately six months and experienced memory deficits, difficulty walking and climbing, and reduced stamina for months after the crash.
After the victims were taken to the hospital, an accident investigation team arrived at the accident scene. Detective Patrick Rooney, an expert in the field of collision investigation and reconstruction, observed no pre-crash skid marks, from which he deduced that neither driver had applied the brakes before the vehicles collided. The absence of skid marks prevented him from calculating the speed of the van. In addition, the doors and roof of the Saturn had been cut off to extricate the passengers, precluding calculation of its speed from "crush evidence." However, judging from the damage sustained by both vehicles and their respective weights (2,500 pounds for the Saturn and 4,300 pounds for the Ford Windstar minivan), the distance the Saturn traveled following the collision, its abrupt change of direction from south to southeast upon impact and the fact that it became airborne, Rooney concluded that the van must have been going from 50 to 55 to as much as 60 miles an hour when [186] the vehicles collided. He further testified that both occupants of the Saturn were wearing seat belts, which had been cut to facilitate extrication. From the absence of any imprint on the van's safety harness, meaning that it did not lock on impact, the witness concluded that defendant was not wearing his seat belt at the time of the collision.
Two blood samples were obtained from defendant at about 5:00 A.M. on the morning of the accident. Since he had passed out, the samples were taken with his implied consent by an emergency room doctor. Analysis of the two samples revealed a blood alcohol concentration of .25% and .27%, respectively. It was stipulated that defendant had previously attended an intoxicated driver rehabilitation course.
Defendant presented testimony from Nicholas Bellizzi, a civil engineer and expert in the field of engineering and accident reconstruction. Bellizzi testified that, in the absence of skid marks, there are two methods of accident reconstruction used to determine speed: conservation of kinetic energy and conservation of linear momentum. The first method is based on a calculation of the amount of force required to create the damage caused to the vehicles in a collision. Due to the damage done to the Saturn in removing the passengers, he was unable to use the conservation of kinetic energy method to calculate the van's speed. Using the conservation of linear momentum method, he estimated that the van had been traveling between 36 and 37 miles an hour and the Saturn had been traveling about 13 miles an hour at the time of impact, with a five percent margin of error. Bellizzi made his calculations using the heaviest Saturn model, which weighed 900 pounds more than the Smith vehicle. He worked from police diagrams and photographs without conducting any examination of the vehicles. From offset crash barrier tests performed by the Insurance Institute for Highway Safety, he opined that defendant's van would have sustained more severe damage to the occupant compartment had it been traveling at 55 miles an hour and that defendant, unrestrained by a seat belt, would have been propelled through the windshield. However, he conceded that vehicle damage inflicted by an offset crash would be greater since a smaller area of the vehicle absorbs the impact. The impact during an offset crash test is deliberately confined to the driver's side and not distributed over the full frontal width as in the case of a "frontal barrier impact" (such as the collision herein), where the entire front of the car strikes the barrier. Nor, he conceded, are offset crash [187] tests designed to simulate the collision of vehicles in different weight classes. Bellizzi did not take into account that the Saturn had flipped over because the conservation of linear momentum method does not utilize such data. Finally, he did not estimate how far the Saturn might have traveled had it not come into contact with the median fence, although from the minimal damage to the fence he concluded that it would not have traveled much farther.
The trial court, in a nonjury trial, refused to permit a psychologist to testify that, based on his examination, defendant suffered from chronic alcoholism, rejecting defendant's argument that this condition bore on his capacity to formulate the mens rea necessary for depraved indifference murder. Rather, the court held that voluntary intoxication is not a material consideration with respect to a crime involving reckless behavior.
The court found defendant guilty of murder in the second degree for causing the death of Judith Gubernikoff as a result of his reckless and wanton conduct. The court further found defendant guilty of assault in the first degree for "causing serious physical injury to Mr. Robert Smith that was occasioned by the same recklessness and indifference to human life that resulted in Mrs. Gubernikoff's death." Defendant was also found guilty of all lesser noninclusory concurrent counts in the indictment— vehicular manslaughter in the second degree, vehicular assault in the second degree and assault in the second degree. On July 29, 2005, the court sentenced defendant to a cumulative concurrent term of imprisonment of 17 years to life.
On appeal, defendant contends that the evidence is insufficient to sustain conviction of murder in the second degree and assault in the first degree because it failed to establish that his conduct was so morally deficient and devoid of concern for life as to warrant exposing him to the same criminal liability that the law imposes for intentional conduct (citing People v Payne, 3 NY3d 266, 271 [2004]). Relying on People v Feingold (7 NY3d 288, 296 [2006], supra), he argues that the evidence fails to show, even circumstantially, that he was capable of formulating the mens rea that delineates depraved indifference murder because his extreme intoxication rendered him "incapable of possessing the culpable mental state necessary to prove depraved indifference" (quoting People v Coon, 34 AD3d 869, 870 [2006]). He maintains that the trial court erred in refusing to receive relevant testimony concerning his chronic alcoholism. [188] Finally, defendant asserts that even when examined under the pre-Feingold standard of Register, his conduct falls far short of the extreme recklessness of drivers found similarly culpable, who generally appeared to be well aware of the risks they posed to others (e.g. People v Gomez, 65 NY2d 9 [1985] [driving on sidewalk at high speed]; People v Williams, 184 AD2d 437 [1992], lv denied 80 NY2d 935 [1992] [high-speed chase through construction site]). Defendant's contentions are unavailing.
Depraved indifference murder is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person" (Penal Law § 125.25 [2]). Similarly, assault in the first degree under a depraved indifference theory is committed when, "[u]nder circumstances evincing a depraved indifference to human life," a person "recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person" (Penal Law § 120.10 [3]). A person acts recklessly "when he is aware of and consciously disregards a substantial and unjustifiable risk" (Penal Law § 15.05 [3]). The law in effect at the time of defendant's trial did not evaluate depraved indifference under the subjective mens rea standard announced in Feingold (7 NY3d 288 [2006], supra), but instead referred to an objective standard reflected by the "factual setting in which the risk creating conduct must occur" (see Register, 60 NY2d at 276). Prior to Feingold, our jurisprudence had not progressed to the point where recklessness had been abandoned in favor of the mens rea of depraved indifference to human life, and then only by a closely divided Court of Appeals, whose dissenters saw no reason to overrule Register (see 7 NY3d at 300 [Ciparick, J., dissenting], 301 [Kaye, Ch. J., dissenting], 305 [Graffeo, J., dissenting]).
Defendant never objected that the trial court was required to find that he acted with a mental state beyond recklessness or that depraved indifference referred to anything other than the circumstances under which the risk-creating conduct took place. Indeed, in his motion to dismiss at the conclusion of the People's case after the close of evidence, defendant explicitly cited Register, arguing merely that the People had failed to establish his commission of the crimes charged under circumstances evincing a depraved indifference to human life. This objection did not suffice to apprise the trial court of [189] the contention now advanced by defendant that depraved indifference must be evaluated subjectively from his mental state and not objectively from the surrounding circumstances (see People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 20-21 [1995]; People v Lawrence, 85 NY2d 1002, 1004 [1995]). Furthermore, the Court of Appeals' purpose in effecting this change in the law was "to dispel the confusion between intentional and depraved indifference murder, and thus cut off the continuing improper expansion of depraved indifference murder" (Policano v Herbert, 7 NY3d 588, 603 [2006] [change in the law not retroactively applicable to convictions that have become final upon exhaustion of appellate review]). The People's reliance "on Register's objectively determined degree-of-risk formulation" (id. at 604) in this matter does not implicate such concerns since there is no suggestion that defendant harbored any intent to cause harm. Thus, the court's evaluation of the sufficiency of proof according to the Register standard, which represented the prevailing law at the time defendant was convicted (see People v Woods, 36 AD3d 525, 526 [2007], lv denied 8 NY3d 951 [2007]), went unchallenged, and its failure to apply a mens rea standard, as now urged, is unpreserved for review (see id., citing Gray, 86 NY2d 10 [1995], supra; see also People v Orcutt, 49 AD3d 1082, 1085 [2008]; People v Zephirin, 47 AD3d 649 [2008]), and we decline to reach the issue in the interest of justice.
Under Register, depraved indifference murder requires that a defendant's act be imminently dangerous, present a very high risk of death to others and be committed under circumstances that evince a wanton indifference to human life or a depravity of mind (see Register, 60 NY2d at 274). The requirement of depraved indifference refers neither to the mens rea nor to the actus reus; rather, it refers to "the factual setting in which the risk creating conduct must occur" (id. at 276).
The evidence adduced in this case overwhelmingly supports defendant's conviction of depraved indifference murder and depraved indifference assault. Having chosen to drive while heavily intoxicated, defendant proceeded to drive in an extremely reckless manner, creating a grave risk of death to pedestrians and other drivers in a densely populated area of lower Manhattan.
The People's proof showed that defendant was driving at a speed of between 50 and 60 miles an hour and speeding through red lights before entering the subject intersection against a red [190] traffic signal and plowing into Smith's Saturn. Defendant was operating a motor vehicle while, by his own admission, "barely conscious due to his intoxication,"[*] and analysis showed his blood alcohol level was close to three times the legal limit. Falek observed defendant "flying" through several red lights and hitting a parked car, and Clemente observed defendant's van coming out of nowhere, traveling "very fast" as it entered the intersection. Detective Rooney, based on his training and experience, estimated that the van had been traveling at 50 to 55 miles an hour, and possibly as high as 60 miles an hour, an opinion supported both by the damage to the vehicles and by the testimony of eyewitnesses. The impact between defendant's minivan and Smith's Saturn was sufficiently severe to cause the Saturn to become airborne and flip end over end two times before landing on top of a fence located on the median island. Defendant made no attempt to brake before hitting the Saturn, as indicated by the absence of pre-crash skid marks.
Defendant drove not only at a high rate of speed but dangerously, as evinced by his striking a parked car and nearly striking Falek's pickup truck before colliding with the Saturn. Defendant narrowly avoided striking Falek's vehicle under much the same circumstances under which he struck the Smith vehicle moments later—speeding through a red light toward a vehicle that was passing through the intersection with the right-of-way. Just as defendant made no apparent effort to avoid the collision with Smith's Saturn, he made no effort to avoid Falek, who was forced to swerve to the right to get out of the way. The fact that defendant continued driving in the same manner after almost striking Falek—indeed, reacting to Falek's attempt to get his attention by "punch[ing]" the gas pedal and speeding off again—demonstrated a depraved disregard of the very high risk of death or serious physical injury that his conduct posed to others. Thus, the evidence supports defendant's conviction of depraved indifference murder and assault (see People v Gomez, 65 NY2d 9 [1985], supra [defendant's excessive rate of speed and failure to brake while proceeding along a busy city street and partly onto its sidewalk satisfied depraved indifference element of crime]; People v Hoffman, 283 AD2d 928 [2001], lv denied 96 NY2d 919 [2001] [drinking and driving, excessive rate of speed, disobeying traffic signals, and failing to brake before he broadsided vehicle, killing and injuring the passengers [191] therein, legally sufficient evidence of depraved mind murder]; People v Padula, 197 AD2d 747 [1993], lv denied 82 NY2d 928 [1994] [excessive rate of speed, failure to brake or take other evasive action, and decision to get behind the wheel of vehicle after becoming intoxicated, legally sufficient evidence of depraved mind murder]).
Further, while extremely intoxicated, defendant was not so impaired that he was unaware of what he had done, as indicated by his attempt to flee from the scene of the crash and his struggle with those who thwarted his escape. Moreover, it was conceded that defendant had previously attended a rehabilitative course for intoxicated drivers, which certainly would have alerted him to the grave danger that drinking and driving poses to others.
The verdict comported with the weight of the evidence, and the trial court properly credited the speed estimates proffered by the People's witnesses. The import to be accorded to expert testimony is generally within the province of the trier of fact (see People v Schwartz, 21 AD3d 304, 309 [2005], lv denied 7 NY3d 763 [2006]), which may determine whether to accept or reject it (see People v Drake, 7 NY3d 28, 33 [2006]). The trial court properly assessed the probative value of the witnesses' conflicting testimony (see People v Bleakley, 69 NY2d 490, 495 [1987]) and was warranted in rejecting defendant's expert's calculations and crediting the testimony of the People's eyewitnesses and an experienced police accident investigator that the minivan's speed was from 50 to 55 to as much as 60 miles an hour at the time of impact. When he first spotted defendant's van, Falek described it as "flying" through the red light, and estimated its speed at 50 to 60 miles an hour as it sped away. Falek pursued defendant's van for some distance and was in an excellent position to assess its speed from that of his own vehicle. He testified that, at the time he gave up his pursuit, his own vehicle was traveling at a speed of 50 to 60 miles an hour, and the distance between the two vehicles was increasing. While the van's speed was contested by defendant's expert, Bellizzi, who estimated a modest 36 to 37 miles an hour, he did not personally inspect the vehicles. His calculation utilized an exaggerated weight of the Saturn and employed a mathematical model of "linear momentum" that did not account for the fact that the vehicle had flipped over. The result of Bellizzi's computation was only as good as the variables that went into it. His determination of the critical "point of impact" (from which [192] all the other measurements flowed) was itself flawed in that it relied upon the location of scuff marks, the exact coordinates of which were unavailable.
The argument advanced by defendant that the element of depraved indifference to human life "may be negatived by evidence of intoxication," was explicitly rejected in Register, which holds that depraved indifference "is not an element in the traditional sense but rather a definition of the factual setting in which the risk creating conduct must occur—objective circumstances which are not subject to being negatived by evidence of defendant's intoxication" (60 NY2d at 276). Furthermore, Penal Law § 15.05 (3) expressly precludes evidence of intoxication as a defense to a reckless crime, providing that "[a] person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly." Thus, defendant's intoxication at the time of the collision, no matter how debilitating, is immaterial, as is his history of chronic alcoholism, and the trial court properly declined to consider such evidence.
The act of driving a vehicle while in a highly intoxicated state, at high speed, on city streets, ignoring traffic signals and failing to stop after striking a parked vehicle, demonstrates reckless conduct that created a grave risk of death to others so as to constitute depraved indifference to human life.
Defendant did not preserve his objection to the trial court's evaluation of the evidence under the Register standard, and we decline to review it in the interest of justice. As an alternative holding, we further reject, on the merits, defendant's argument that he was incapable of forming the mens rea required for depraved indifference murder. Even subjecting his conviction to analysis under Feingold, as defendant now urges, we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life. Operation of a vehicle weighing in excess of two tons at a high rate of speed on city streets while highly intoxicated is the very epitome of depraved indifference to human life, culpably equivalent to "shooting into a crowd, placing a time bomb in a public place, or opening the door of the lions' cage in the zoo" (Payne, 3 NY3d at 272 [internal quotation marks omitted]). It demonstrates "an utter disregard for the value of human life—a willingness to act not because one intends harm, but because one simply doesn't care whether grievous harm results or not" (Feingold, 7 NY3d at 296 [internal quotation marks omitted]). People v Coon (34 AD3d 869, 870 [2006]), relied upon by the [193] concurrence, is distinguishable. There, the defendant, in a state of cocaine intoxication delirium, assaulted his sister with a knife. The Third Department held that defendant was too intoxicated to possess the culpable mental state necessary to sustain conviction for a depraved indifference offense.
Here, defendant's mental state at the time of the collision, as attested by numerous witnesses, is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication. The mens rea of depraved indifference in this case is established by circumstantial evidence demonstrating that defendant made a conscious decision to drink and then, after consuming an excessive amount of alcohol to the point of becoming "totally wasted," to drive on city streets at a high rate of speed through red traffic lights, thereby creating a grave risk of death to pedestrians and occupants of other vehicles. The distinction between depraved indifference and intentional conduct does not detract from the wisdom of the observation aptly made by the Court of Appeals in Register:
"In utilitarian terms, the risk of excessive drinking should be added to and not subtracted from the risks created by the conduct of the drunken defendant for there is no social or penological purpose to be served by a rule that permits one who voluntarily drinks to be exonerated from failing to foresee the results of his conduct if he is successful at getting drunk" (60 NY2d at 280-281).
Defendant's depraved indifference is further supported by his comprehension of the dangers of drinking and driving. Having stipulated to attending an intoxicated driver rehabilitation course, there is record support for the conclusion that defendant was well aware of the risk that drunk driving posed to others. Thus, we conclude that the sufficiency and weight of the evidence prove beyond a reasonable doubt, even under Feingold, that defendant engaged in reckless conduct that created a grave risk of death to others and that he disregarded such risk under circumstances evincing a depraved indifference to human life, thereby causing the death of Judith Gubernikoff and serious physical injury to Robert Smith.
Accordingly, the judgment of the Supreme Court, New York County (Richard D. Carruthers, J.), rendered June 29, 2005, convicting defendant, after a nonjury trial, of murder in the [194] second degree, assault in the first degree, vehicular manslaughter in the second degree, assault in the second degree, and vehicular assault in the second degree, and sentencing defendant to concurrent terms of 17 years on the murder conviction, 15 years on the first-degree assault conviction, 7 years on the second-degree assault conviction, 2 1/3 to 7 years on the vehicular manslaughter conviction, and 1 1/3 to 4 years on the second-degree vehicular assault conviction, should be affirmed.
McGUIRE, J. (concurring).
I agree with the majority that defendant's challenge to the sufficiency of the evidence, to the extent it is based on the holding in People v Feingold (7 NY3d 288 [2006]) that depraved indifference to human life is a culpable mental state, is not preserved for review. At defendant's trial, the clear understanding of the court and the parties, consistent with the holding in People v Register (60 NY2d 270 [1983], cert denied 466 US 953 [1984]), was that the only mental state required for the depraved indifference murder and assault counts was recklessness. Defendant made no argument or protest to the contrary. For this reason, defendant is wrong in contending that his current claim that depraved indifference is a culpable mental state is preserved for review merely because the court, in the course of ruling on a different issue that was in dispute, correctly stated the contrary holding in Register (see People v Colon, 46 AD3d 260, 263 [2007] [ruling by trial court on issue of law did not preserve issue for review when court's ruling was not made in response to a protest by a party]). I also agree with the majority that we should not review this unpreserved claim in the interest of justice. To the extent defendant is claiming on this appeal that the evidence was legally insufficient even when evaluated under the Register standard, I agree with the majority that the evidence was legally sufficient.
Although there was no jury to be instructed, the clear understanding of the parties that recklessness was the only mental state required for these crimes renders this case indistinguishable from a jury trial in which the jury is charged, without objection, under an incorrect or subsequently invalidated standard (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Johnson, 43 AD3d 288, 291-292 [2007], revd on other grounds 10 NY3d 875 [2008]). Because for this reason we must weigh the evidence in light of the elements of the depraved indifference crimes as they were defined in Register, I agree with the majority that the verdict convicting defendant of those crimes is not against the weight of the evidence.
[195] After making clear that it is not reviewing in the interest of justice defendant's unpreserved challenge under Feingold, the majority alternatively holds as follows: "Even subjecting [defendant's] conviction to analysis under Feingold, ... we conclude that the evidence nevertheless supports a finding that his conduct evinced a depraved indifference to human life." We need not and should not decide, however, whether the evidence is sufficient under Feingold. By not deciding that issue, we would avoid the need to address and decide the question of law that is at the core of defendant's challenge to the sufficiency of the evidence under Feingold: whether voluntary intoxication remains irrelevant as a defense in a prosecution for depraved indifference murder.
Under the last sentence of Penal Law § 15.05 (3), a person who is unaware solely by reason of voluntary intoxication that his conduct creates a particular risk nonetheless acts recklessly with respect to that risk. In Register, this sentence played a decisive role in the Court's conclusion that the requirement of conduct evincing a depraved indifference to human life "does not create a new and different mens rea ... which can be negatived by evidence of intoxication" (60 NY2d at 279; see also id. at 275-276).
However, because voluntary intoxication does not negate the mens rea of recklessness, it hardly follows that it does not or cannot negate the distinct mens rea of depraved indifference, "an additional requirement of the crime—beyond mere recklessness and risk—which in turn comprises both depravity and indifference" (People v Suarez, 6 NY3d 202, 214 [2005]; see Feingold, 7 NY3d at 294). If voluntary intoxication remains irrelevant under Feingold as a defense to a depraved indifference prosecution, it must be that an individual can be depravedly indifferent to a risk without being aware of it. How that could be is far from obvious. Notably, as defendant stresses, a panel of the Third Department has concluded that voluntary intoxication can negate the mens rea of depraved indifference (People v Coon, 34 AD3d 869, 870 [2006] ["as defendant was too intoxicated to form a specific criminal intent, he also would be incapable of possessing the culpable mental state necessary to prove depraved indifference"]).
As I read the majority's opinion, it does not decide this question sub silentio. After all, although it correctly notes the specific holding of Register on the irrelevance of voluntary intoxication in a prosecution for depraved indifference murder, it does not [196] mention, let alone discuss, the issue of whether that holding remains good law after Feingold. Nor does the majority mention that defendant argues at length that under Feingold the mens rea of depraved indifference can be negated by evidence of intoxication, or state whether it agrees with the conclusion of the Third Department in Coon.[1] Clearly, moreover, the issue is best left for another day.
Relatedly, I would reject as unpreserved defendant's current claim that he was deprived of his constitutional right to present a defense because the trial court improperly precluded the testimony of his expert regarding his chronic alcoholism. At trial, defendant never alerted the trial court to his current claim that the testimony related to a depraved indifference mens rea. Rather, defendant argued that the testimony bore on the mens rea of recklessness and on whether the objective circumstances surrounding his reckless conduct rose to the level of depraved indifference. Having never protested that the testimony related to a depraved indifference mens rea, defendant's claim is not preserved for review (CPL 470.05 [2]; People v Johnson, 43 AD3d at 291-292, revd on other grounds 10 NY3d 875 [2008]), and I would not review it in the interest of justice.
I disagree in part with the majority's statement that "defendant's mental state at the time of the collision ... is not dispositive; rather, culpability is appropriately assessed at the time defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication." A defendant's actions prior to the commission of the actus reus allegedly constituting the crime charged certainly can shed light on his mens rea at the time of the actus reus, but the defendant's guilt turns on what his mens rea was at the time of the actus reus (cf. People v Gallagher, 69 NY2d 525 [1987]). I agree that defendant's mens rea at the exact moment of the collision is not determinative. The focus, however, must be on defendant's mens rea when he engaged in the conduct—which included driving at high speed on city streets through red lights—that caused the [197] victim's death.[2] Thus, "culpability is appropriately assessed" at that time, not at any earlier point in time when, according to the majority, "defendant made the conscious decision to embark on a course of conduct that inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication."
I also disagree that any "conscious decision to drink" defendant made "inevitably resulted in his operation of a motor vehicle while in a state of extreme intoxication" (emphasis added). This unexplained assertion that defendant's operation of a motor vehicle while in a state of extreme intoxication was the inevitable consequence of some earlier decision is unsupported by the evidence and contrary to common experience. Finally, no testimony was elicited at trial about defense counsel's contention in his memorandum of law that the evidence at trial would prove that defendant was "barely conscious due to his intoxication" (emphasis deleted). Accordingly, the majority errs in considering that contention to be evidence (indeed, an admission by defendant) that he was "barely conscious" as a result of his intoxication.
Judgment, Supreme Court, New York County, rendered June 29, 2005, affirmed.
[*] As acknowledged in support of his application to introduce evidence of his chronic alcoholism.
[1] The majority, however, prefaces the two sentences it devotes to the opinion in People v Coon with a confounding sentence. Thus, it writes, "People v Coon ..., relied upon by the concurrence, is distinguishable" (emphasis added). My point of course is that we need not and should not decide whether voluntary intoxication can negate the mens rea of depraved indifference. Accordingly, and just as obviously, I do not "rel[y]" upon People v Coon.
[2] That mens rea need not be identical to or as culpable as the mens rea of a person who decides to drive after drinking to excess. Obviously, not everyone who drives while intoxicated creates the same risk of death to others that defendant's driving created.
7.2.8.3.3.3 III.C.iii. Felony Murder 7.2.8.3.3.3 III.C.iii. Felony Murder
In criminal law, sometimes the result trumps the intention. Perhaps the least intuitive category of homicide that we will study is felony murder. Under the felony murder rule, accidental and unintentional killings that occur during the commission of a felony are sometimes elevated from unintentional homicide to murder. The felony murder rule has been controversial. It has evolved in scope over time, and, as the cases below show, is now often limited to inherently dangerous felonies. By transferring intention and blameworthiness from a separate felony to a homicide, the felony murder rule significantly raises the stakes of any felony that may tangentially and even unforeseeably lead to death. Why might the felony murder doctrine have developed? Consider how courts have limited it over time. What concerns have animated criticisms of the rule? Have the courts’ efforts to limit the rule preserved its usefulness, or is it an unfortunate relic of the past?
7.2.8.3.3.3.1 People v. Stamp 7.2.8.3.3.3.1 People v. Stamp
THE PEOPLE, Plaintiff and Respondent,
v.
JONATHAN EARL STAMP et al., Defendants and Appellants.
Court of Appeals of California, Second District, Division Three.
[207] COUNSEL
Luke McKissack, under appointment by the Court of Appeal, Belli, Ashe, Ellison, Choulos & Lieff and Robert L. Lieff for Defendants and Appellants.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Mark W. Jordan, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
COBEY, Acting P.J.
These are appeals by Jonathan Earl Stamp, Michael John Koory and Billy Dean Lehman, following jury verdicts of guilty of robbery and murder, both in the first degree. Each man was given a life sentence on the murder charge together with the time prescribed by law on the robbery count.
Defendants appeal their conviction of the murder of Carl Honeyman who, suffering from a heart disease, died between 15 and 20 minutes after Koory and Stamp held up his business, the General Amusement Company, on October 26, 1965, at 10:45 a.m. Lehman, the driver of the getaway car, was apprehended a few minutes after the robbery; several weeks later Stamp was arrested in Ohio and Koory in Nebraska.
Broadly stated, the grounds of this appeal are: (1) insufficiency of the evidence on the causation of Honeyman's death; (2) inapplicability of the felony-murder rule to this case; (3) errors in the choice of instructions given and refused; and (4) erroneous admission in evidence of the extrajudicial confessions of Stamp and Koory and the incriminating statement of Lehman.
On this appeal appellants primarily rely upon their position that the felony-murder doctrine should not have been applied in this case due to the unforeseeability of Honeyman's death.
THE FACTS[1]
Defendants Koory and Stamp, armed with a gun and a blackjack, entered the rear of the building housing the offices of General Amusement [208] Company, ordered the employees they found there to go to the front of the premises, where the two secretaries were working. Stamp, the one with the gun, then went into the office of Carl Honeyman, the owner and manager. Thereupon Honeyman, looking very frightened and pale, emerged from the office in a "kind of hurry." He was apparently propelled by Stamp who had hold of him by an elbow.
The robbery victims were required to lie down on the floor while the robbers took the money and fled out the back door. As the robbers, who had been on the premises 10 to 15 minutes, were leaving, they told the victims to remain on the floor for five minutes so that no one would "get hurt."
Honeyman, who had been lying next to the counter, had to use it to steady himself in getting up off the floor. Still pale, he was short of breath, sucking air, and pounding and rubbing his chest. As he walked down the hall, in an unsteady manner, still breathing hard and rubbing his chest, he said he was having trouble "keeping the pounding down inside" and that his heart was "pumping too fast for him." A few minutes later, although still looking very upset, shaking, wiping his forehead and rubbing his chest, he was able to walk in a steady manner into an employee's office. When the police arrived, almost immediately thereafter, he told them he was not feeling very well and that he had a pain in his chest. About two minutes later, which was 15 or 20 minutes after the robbery had occurred, he collapsed on the floor. At 11:25 he was pronounced dead on arrival at the hospital. The coroner's report listed the immediate cause of death as heart attack.
The employees noted that during the hours before the robbery Honeyman had appeared to be in normal health and good spirits. The victim was an obese, 60-year-old man, with a history of heart disease, who was under a great deal of pressure due to the intensely competitive nature of his business. Additionally, he did not take good care of his heart.
Three doctors, including the autopsy surgeon, Honeyman's physician, and a professor of cardiology from U.C.L.A., testified that although Honeyman had an advanced case of atherosclerosis, a progressive and ultimately fatal disease, there must have been some immediate upset to his system which precipitated the attack. It was their conclusion in response to a hypothetical question that but for the robbery there would have been no fatal seizure at that time. The fright induced by the robbery was too much of a shock to Honeyman's system. There was opposing expert testimony to the effect that it could not be said with reasonable medical certainty that fright could ever be fatal.
[209]
SUFFICIENCY OF THE EVIDENCE RE CAUSATION
(1a) Appellants' contention that the evidence was insufficient to prove that the robbery factually caused Honeyman's death is without merit. (2) The test on review is whether there is substantial evidence to uphold the judgment of the trial court, and in so deciding this court must assume in the case of a jury trial the existence of every fact in favor of the verdict which the jury could reasonably have deduced from the evidence. (People v. Redmond, 71 Cal.2d 745, 755 [79 Cal. Rptr. 529, 457 P.2d 321].) (1b) A review of the facts as outlined above shows that there was substantial evidence of the robbery itself, that appellants were the robbers, and that but for the robbery the victim would not have experienced the fright which brought on the fatal heart attack.[2]
APPLICATION OF THE FELONY-MURDER RULE
Appellants' contention that the felony-murder rule is inapplicable to the facts of this case is also without merit. (3) Under the felony-murder rule of section 189 of the Penal Code, a killing committed in either the perpetration of or an attempt to perpetrate robbery is murder of the first degree. This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. (People v. Lookadoo, 66 Cal.2d 307, 314 [57 Cal. Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal. App.2d 324, 328 [52 Cal. Rptr. 329].) (4a) People v. Washington, 62 Cal.2d 777, 783 [44 Cal. Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or [210] his accomplice acting in furtherance of their common design. (See People v. Gilbert, 63 Cal.2d 690, 705 [47 Cal. Rptr. 909, 408 P.2d 365].)
(5) The doctrine presumes malice aforethought on the basis of the commission of a felony inherently dangerous to human life.[3] (See People v. Sears, 62 Cal.2d 737, 745 [44 Cal. Rptr. 330, 401 P.2d 938]; People v. Phillips, 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; People v. Washington, supra, at p. 780.) This rule is a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or the implied malice which is manifested in an intent to kill. (People v. Lilliock, 265 Cal. App.2d 419, 431 [71 Cal. Rptr. 434].) (6) Under this rule no intentional act is necessary other than the attempt to or the actual commission of the robbery itself. When a robber enters a place with a deadly weapon with the intent to commit robbery, malice is shown by the nature of the crime. (People v. Ketchel, 71 Cal.2d 635, 642 [79 Cal. Rptr. 92, 456 P.2d 660]; People v. Coefield, 37 Cal.2d 865, 868 [236 P.2d 570].)
(4b) There is no requirement that the killing occur, "while committing" or "while engaged in" the felony, or that the killing be "a part of" the felony, other than that the few acts be a part of one continuous transaction. (People v. Chavez, 37 Cal.2d 656, 670 [234 P.2d 632].) Thus the homicide need not have been committed "to perpetrate" the felony. There need be no technical inquiry as to whether there has been a completion or abandonment of or desistance from the robbery before the homicide itself was completed. (People v. Chavez, supra, at pp. 669-670.)
(7a) The doctrine is not limited to those deaths which are foreseeable. (See 1 Witkin, Cal. Crimes (1963) §§ 78, 79, pp. 79-80; People v. Chavez, supra, at pp. 669-670.) Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. (People v. Talbot, 64 Cal.2d 691, 704 [51 Cal. Rptr. 417, 414 P.2d 633].) As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery. (8) So long as a victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition, and the robber's ignorance of it, in no way destroys the robber's criminal responsibility for the death. (Cf. People v. [211] Moan, 65 Cal. 532, 536-537 [4 P. 545]; People v. Studer, 59 Cal. App. 547, 552-554 [211 P. 233].) So long as life is shortened as a result of the felonious act, it does not matter that the victim might have died soon anyway. (People v. Phillips, supra, at p. 579.) In this respect, the robber takes his victim as he finds him.
CLAIMED ERRORS IN INSTRUCTIONS
Appellants claim five errors in the jury instructions given and refused. They argue that: (1) the trial court erred in refusing to give their proffered instruction as to proximate cause; (2) the jury should have been instructed on the court's own motion that there must be a finding of specific intent to commit the robbery before the felony-murder rule can be applied; (3) the jury should not have been instructed on the felony-murder rule; (4) the jury should have been instructed on the matter of foreseeability; and (5) the felony-murder rule applies only when the killing was committed in order to perpetrate a felony, and not when the killing occurs merely in the perpetration of a felony. (1c, 4c, 7b) In accordance with our discussion of the felony-murder doctrine, we find the claimed instruction errors numbered (3), (4), and (5) to be without merit.
(9) Appellants contend that the trial court erred in refusing their proffered instruction on proximate cause, reading as follows: "Where the defendant's criminal act is not the proximate cause of the death and the sole proximate cause was the negligent or reckless conduct of the victim, a conviction is unwarranted." They assert that article VI, section 13 of the California Constitution guarantees the right of a defendant to have the jury determine every material issue presented by the evidence.
It can be argued that the refusal of the trial court to give the instruction was justified. The evidence before the jury was not such that the jury could have reasonably assumed that negligent or reckless conduct by Honeyman was-the sole cause of his death. (See People v. Bronson, 263 Cal. App.2d 831, 842-843 [70 Cal. Rptr. 162], hear. den.) But, in any event, the three instructions given on the issue of the proximate causation of Honeyman's death were much more complete and accurate than appellant's quoted instruction.[4] Any error in this respect was harmless.
[212] (10) As to the second objection, since the jury was fully instructed both as to what constitutes robbery and as to what constitutes felony murder,[5] the court was not required to instruct them on its own motion that in order to apply the felony-murder rule, appellants must have had the specific intent to commit the robbery. This is so because the jury could not have found them guilty of murder under the felony-murder doctrine without first having found them guilty of robbery. Moreover, failure to instruct the jury that in order to apply the felony-murder doctrine appellants must have had the specific intent to commit the robbery does not constitute prejudicial error where, as here, the evidence permits of no other interpretation than that appellants had the specific intent to steal. (See People v. Ford, 60 Cal.2d 772, 792-793 [36 Cal. Rptr. 620, 388 P.2d 892].)
CLAIMED ERRONEOUS ADMISSION OF CONFESSIONS AND INCRIMINATING STATEMENT
The getaway car, driven by defendant Lehman, was stopped at 11:08 and Lehman, the only one in it at that time, was advised of his rights to counsel, [213] to remain silent and that anything he might say could be used against him prior to any in-custody interrogation. Several weeks later Koory was apprehended in Omaha, Nebraska, and Stamp in Dayton, Ohio; each confessed to his part in the crime after having been advised of his right to counsel, to remain silent, and that any statement he might make could be used against him.
(11) Appellants contend that the confessions of Koory and Stamp and the incriminating statement of Lehman were erroneously admitted in evidence because there was no affirmative showing that appellants had waived their rights to silence and counsel before giving these statements. It is also claimed that Stamp's confession is inadmissible as being the product of a prior illegally obtained confession. Since appellants failed to object on these grounds at trial, they are not entitled to raise these issues for the first time on appeal. (People v. Ray, 252 Cal. App.2d 932, 958 [61 Cal. Rptr. 1]; People v. Crooks, 250 Cal. App.2d 788, 793 [59 Cal. Rptr. 39].)
(12) On our own motion we have examined the admissibility of these out of court statements under People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]. We find no error because the trial court followed the recommended procedure in Aranda of deleting from each statement received in evidence all direct and indirect identifications of codefendants as well as any material which could be used against codefendants once their identities had been otherwise established. This objective was accomplished by the police officers stating only what the declarant said to each of them regarding the declarant's own part in the robbery. In addition the jury was instructed just prior to the admission of each statement and again at the close of the trial that each statement was received only against the particular declarant and not against any of his codefendants.
The judgment is affirmed.
Schweitzer, J., and Allport, J., concurred.
Appellants' petitions for a hearing by the Supreme Court were denied January 28, 1970.
[1] This part of the opinion includes generally all facts relevant to appellants' contentions, except those relating to their fourth ground of appeal.
[2] Appellants' position that the medical evidence was insufficient to prove the causal link between the robbery and the death because the physicians testifying to the result did so solely in response to a hypothetical question which was erroneous and misleading, and because the doctors answered in terms of "medical probability rather than actual certainty" is not well taken. A conviction on the basis of expert medical testimony, couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt" is valid (People v. Phillips, 64 Cal.2d 574, 579, fn. 2 [51 Cal. Rptr. 225, 414 P.2d 353]) and a hypothetical question need not state all the evidence in a case so long as it does not omit essential facts and issues. This did not occur here. (See McCullough v. Langer, 23 Cal. App.2d 510, 521 [73 P.2d 649], hear. den.) Furthermore, an appellate court will not overrule a trial court on the matter of the sufficiency of the qualifications of expert witnesses in the absence of a manifest abuse of such discretion. (People v. Phillips, 64 Cal.2d 574 at pp. 578-579, fn. 1 [51 Cal. Rptr. 225, 414 P.2d 353].) An examination of the record shows that there was no such abuse by the trial court in permitting the prosecution's expert medical witnesses to testify as to the cause of the heart attack.
[3] In view of the fact that the Legislature has not seen fit to change the language of Penal Code section 189 since the decisions holding that the requisite malice aforethought is to be implied from the commission of those felonies inherently dangerous to human life, it must be presumed that these cases accurately state the law. (People v. Hallner, 43 Cal.2d 715, 720 [277 P.2d 393].)
[4] "If the death of the victim occurred by natural causes and was not a proximate result of the defendants' unlawful activity, you must find the defendants not guilty of murder.
"To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.
"The proximate cause of death is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the death, and without which the result would not have occurred. It is the efficient cause — the one that necessarily sets in operation the factors that accomplish the death." (CALJIC No. 312, modified.)
"If a person unlawfully does an act or unlawfully sets in operation factors which are a proximate cause of another person's death, such conduct of the former constitutes an unlawful homicide even though the unlawful act or the factors set in operation were not the only cause of the death, and although the person killed had been already enfeebled by disease, injury, physical condition or other cause and although it is probable that a person in sound physical condition would not have died as a result of the act or the factors set in operation, and although it is probable that the act or the factors set in operation only hastened the death of the deceased person and that he would have died soon thereafter anyhow from another cause or other causes." (CALJIC No. 313-B, modified.)
[5] "Robbery is the felonious taking of personal property of any value in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (CALJIC No. 210.)
"Robbery which is perpetrated by a person or by two or more persons any one of them being armed with a dangerous or deadly weapon is robbery in the first degree. All other kinds of robbery are of the second degree.
"If you should find the defendant guilty of robbery, it will be your duty to determine the degree thereof as robbery of the first degree and to state that degree in your verdict." (CALJIC No. 210-A.)
"If a human being is killed by any one of several persons jointly engaged at the time of such killing in the perpetration of, or attempt to perpetrate, the crime of robbery, and if the killing is done in furtherance of a common design and agreement to commit such crime or is an ordinary and probable effect of the pursuit of that design and agreement, all such persons so jointly engaged are guilty of murder of the first degree, and this is the law whether such killing be intentional, unintentional, or accidental." (CALJIC No. 317.)
"Murder which is committed in the perpetration or attempt to perpetrate robbery, is murder of the first degree, whether the murder was intentional, unintentional, or accidental." (CALJIC No. 302-F, revised.)
7.2.8.3.3.3.2 People v. Phillips 7.2.8.3.3.3.2 People v. Phillips
THE PEOPLE, Plaintiff and Respondent,
v.
MARVIN PHILLIPS, Defendant and Appellant.
Supreme Court of California. In Bank.
Melvin M. Belli, Samuel S. Brody, Belli, Ashe, Gerry & Leon, Belli, Ashe & Gerry, Brody, Grayson & Green, Daniel J. Jaffe, Lou Ashe, Richard Gerry, Seymour Ellison, Frederick Cone and N. Rommel Bondoc for Defendant and Appellant.
Burton Marks as Amicus Curiae on behalf of Defendant and Appellant.
Stanley Mosk and Thomas C. Lynch, Attorneys General, William E. James, Assistant Attorney General, William L. Zessar, Deputy Attorney General, William B. McKesson and Evelle J. Younger, District Attorneys, and John W. Miner, Deputy District Attorney, for Plaintiff and Respondent.
TOBRINER, J.
Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles [577] County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.
Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.
Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.
Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was "an experimental place," that the doctors there would use Linda as "a human guinea pig" and would relieve the Eppings of their money as well.
The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.
Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant. [578]
Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.
Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to "treat" cancer as such, but only to give "supportive" care to the body as a whole. He variously described his purpose as being "to build up her resistance," "assisting the body to overcome its own deficiencies" and "supporting the body defenses."
As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant's argument that the prosecution failed to establish such causal relationship between defendant's conduct and the death as is requisite to his criminal responsibility.
Legal Cause
We cannot accept defendant's contention that his conduct did not proximately cause Linda's death. Defendant's argument rests upon either of two unsupportable propositions: (1) that the testimony failed as a matter of law to establish a causal relationship between the absence of surgery on July 21st and any shortening of Linda's life; (2) that the conduct of Linda's parents subsequent to defendant's dismissal constituted an "independent intervening force" between the misrepresentation and Linda's death.
[1a] The fact that defendant represented that he could cure Linda without surgery and that such representation caused the Eppings to remove Linda from the hospital finds ample substantiation in the record. The medical evidence likewise supports the jury's conclusion that the cancellation of the operation had the effect of shortening the child's life. [1] [579]
[2] Dr. Straatsma testified with "reasonable medical certainty" [2] that the performance of the operation on July 21st would have extended Linda's life by a minimum of two months. [1b] He also gave his opinion that surgery on that date could have effected a complete cure.
Although defendant maintains that Dr. Straatsma on cross-examination disclaimed his testimony as to the beneficial effect of the operation planned for July 21st, the record does not support that contention. Dr. Straatsma merely acknowledged that he could not say with certainty whether the course of the disease had become irreversible on July 21st. The doctor also testified that he could not state the exact period of time by which surgery on that date would have lengthened Linda's life. Neither aspect of the doctor's cross-examination in any way reduced the force of his earlier testimony that if the girl had received the scheduled operation, her life would have been extended by a substantial period.
The showing that the length of Linda's life had thus been limited sufficed for this aspect of the prosecution's case; no burden rested upon the prosecution to prove that the operation would have cured the disease. [3] Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. (People v. Moan (1884) 65 Cal. 532, 537 [4 P. 545]; People v. Ah Fat (1874) 48 Cal. 61, 64; Perkins, Criminal Law, pp. 27-28.) [1c] The jury could properly have found that defendant's conduct proximately caused Linda's death. [580]
[4] As we have stated, defendant secondly contends that the actions of Linda's parents subsequent to his dismissal operated as an "independent intervening force" to relieve him of criminal responsibility for her death. He urges that no act of his caused the Eppings to abstain from surgery beyond August 13th, the date of his discharge. [3]
In pressing this argument, defendant assumes that if the surgery had been performed after Linda left his care, it would have been as efficacious in arresting or retarding the cancer as surgery performed on July 21st. The record refutes this assumption. The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant's ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant's conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda's life and significantly diminished her chances for a complete recovery.
The Instruction on Second Degree Felony-Murder.
Defendant challenges the propriety of the trial court's instructions to the jury. [5] The court gave the following tripartite instruction on murder in the second degree: [4]
"[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:"
"(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or"
"(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or"
"(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in [581] the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended."
The third part of this instruction rests upon the felony-murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.
We shall point out why we have concluded that (1) defendant's contention that section 1714 of the Health and Safety Code preempts the field of fraudulent representation of a cancer cure and therefore precludes an instruction on felony murder, cannot stand; (2) the felony-murder instruction given here was erroneous in that such a charge can properly be grounded only upon a felony "inherently dangerous to life," and grand theft is not such a crime; (3) the erroneous instruction caused defendant prejudice because it removed from the jury the issue of malice, and (4) the prosecution cannot successfully argue that even though the instruction erroneously permitted the jury to convict without finding malice, no prejudice resulted because the jury necessarily found facts which established malice as a matter of law.
[6] As we have noted, defendant first challenges the felony-murder instruction on the ground that the field of fraudulent misrepresentations as to cures for cancer has been "preempted" by section 1714 of the Health and Safety Code. That section condemns as a misdemeanor "falsely to represent a device, substance or treatment as effective to arrest or cure cancer." Defendant urges that section 1714 precludes a determination that he was guilty of the felony of grand theft pursuant [582] to Penal Code section 484; hence section 1714 necessarily prevents the application of the felony-murder rule.
We cannot accept the proposition that the misdemeanor section forecloses the felony prosecution. A conviction for grand theft requires proof that the victim relied on defendant's representations and that he actually parted with value. (People v. Gibbs (1893) 98 Cal. 661, 663 [33 P. 630]; People v. Alba (1941) 46 Cal.App.2d 859, 867 [117 P.2d 63]; see 1 Witkin, Cal. Crimes, 410, 416.) No such requirements need be met in prosecutions under Health and Safety Code section 1714. Accordingly, we may infer that the Legislature intended the new statute to supplement, not supplant, Penal Code section 484. In the circumstance in which some elements of grand theft are lacking the Legislature thereby provided a means for the prosecution of those who fraudulently assert that they can cure cancer. We consequently reject the hypothesis that the Legislature, by undertaking to facilitate the punishment of those who fraudulently offer cures for cancer, thereby immunized from prosecution under Penal Code section 484 conduct which theretofore would have been punishable under that section.
[7] Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. We have stated in People v. Williams (1965) 63 Cal.2d 452 [47 Cal.Rptr. 7, 406 P.2d 647], that the cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule. (See also People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].)
We have held, however, that only such felonies as are in themselves "inherently dangerous to human life" can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.)
We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. [5] Indeed, the rule itself has [583] been abandoned by the courts of England, where it had its inception. [6] It has been subjected to severe and sweeping criticism. [7] No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony- murder doctrine can be invoked. [8]
Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant's conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant's actual conduct. In the present case the Attorney General would characterize that conduct as "grand theft medical fraud," and this newly created "felony," he urges, clearly involves danger to human life and supports an application of the felony-murder rule.
To fragmentize the "course of conduct" of defendant so that the felony- murder rule applies if any segment of that conduct may be considered dangerous to life would widen the [584] rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.
The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution's present sweeping concept because, once the Legislature's own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.
[8] The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda's death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780; People v. Conley (1966) ante, p. 310 [49 Cal.Rptr. 815, 411 P.2d 911]; People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1] [concurring opinion of Justice Traynor].) [9]
The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. (Pen. Code, 187; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Wells (1949) 33 Cal.2d 330, 346 [202 P.2d 53].) Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. "[D]efendants have a constitutional right to have the jury determine every material issue presented by the evidence. ..." [585] (People v. Gilbert (1965) 63 Cal.2d 690, 704 [47 Cal.Rptr. 909, 408 P.2d 365]; People v. Conley, supra, ante, pp. 310, 319; People v. Modesto, supra, 59 Cal.2d 722, 730 and cases cited.) The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2. (People v. Conley, supra, ante, at pp. 319-320; People v. Gilbert, supra, 63 Cal.2d at p. 704; People v. Williams, supra, 63 Cal.2d 452, 457-460.)
The prosecution does not deny that the giving of a felony-murder instruction engendered the possibility of a conviction of murder in the absence of a finding of malice. It contends, however, that even if the jury acted on the erroneous instruction it must necessarily have found facts which establish, as a matter of law, that defendant acted with conscious disregard for life and hence with malice. The prosecution thus asks us to dissect the jury's verdict, setting the facts of the case against the instructions in an attempt to isolate the facts which the jury necessarily found in reaching its verdict. From these facts it further asks us to infer the existence of others which the jury was never asked to find.
Examination of the record suggests that even this doubtful enterprise would not enable us to overcome the effect of the erroneous instruction. The prosecution urges that the jury could not have convicted defendant under the felony-murder instruction without having found that he made representations to the Eppings which he knew to be false or which he recklessly rendered without information which would justify a reasonable belief in their truth. Such a finding does not, however, establish as a matter of law the existence of an "intent with conscious disregard for life to commit acts likely to kill." (People v. Washington, supra, 62 Cal.2d 777, 780.) In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life. The record contains evidence from which a trier of fact could reasonably have concluded that although defendant made false representations concerning his ability to cure, he nevertheless believed that the treatment which he proposed to give would be as efficacious in relieving pain and prolonging life as the scheduled surgery. [10] [586]
Of course the jury could have concluded from some of the evidence that defendant did not entertain any such belief in the relative efficacy of his proposed treatment. We cannot, however, undertake to resolve this evidentiary conflict without invading the province of the trier of fact. We cannot predicate a finding of conscious disregard of life upon a record that would as conclusively afford a basis for the opposite conclusion.
The Remaining Instructions on Murder in the Second Degree
In the foregoing discussion we have analyzed the third subdivision of the tripartite instruction on murder in the second degree; here we propose to state our position on the first and second subdivisions. As we have previously noted, the court told the jury that the "unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree (1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or (2) If the circumstances proximately causing the killing show an abandoned and malignant heart. ..."
[9] The first subdivision of the instruction embodies the language of decisions interpreting the cryptic statutory requirement of an "abandoned and malignant heart." (People v. Conley, supra, ante, pp. 310, 321; People v. Washington, supra, 62 Cal.2d 777, 780; People v. Thomas, supra, 41 Cal.2d 470, 479-480 [concurring opinion of Justice Traynor].) We believe the instruction entirely proper except for the requirement that the act of the defendant be "unlawful." If that word connotes an absence of legally sufficient justification or excuse, we see no objection to its presence. Indeed the jury should be cautioned that a defendant would not be guilty of second degree murder by reason of committing an act that [587] may be dangerous but nevertheless may be necessary to the preservation of life.
On the other hand, the word "unlawful" may suggest to the jury that the prosecution must prove that in performing the acts upon which the murder prosecution rests defendant was also committing some other, quite independent, crime. Insofar as the instruction bears this latter meaning it states a requirement not found in the decided cases and which in our judgment the prosecution need not prove.
An instruction that may more successfully cover the issue of justification or excuse and at the same time not improperly call for proof of other independent criminal conduct could be phrased in terms of "an intent with conscious disregard for life to commit acts likely to kill." (See People v. Washington, supra, 62 Cal.2d 777, 780.) Such an instruction thus would make possible a conviction of second degree murder upon a finding that "although there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."
With the above modification, the instruction fully and accurately imparts to the jury every element of implied malice as that concept has been developed in this state. Such an instruction renders unnecessary and undesirable an instruction in terms of "abandoned and malignant heart." The instruction phrased in the latter terms adds nothing to the jury's understanding of implied malice; its obscure metaphor invites confusion and unguided speculation. [11]
[10] The charge in the terms of the "abandoned and malignant heart" could lead the jury to equate the malignant heart with an evil disposition or a despicable character; the jury, then, in a close case, may convict because it believes the defendant a "bad man." [12] We should not turn the focus of the jury's task from close analysis of the facts to loose evaluation [588] of defendant's character. The presence of the metaphysical language in the statute does not compel its incorporation in instructions if to do so would create superfluity and possible confusion. In its origin the language did no more than phrase a companion or alternative description of a conscious disregard of life; [13] since the instruction here specifically sets forth the latter, the former merely duplicates it.
The instruction in terms of "abandoned and malignant heart" contains a further vice. It may encourage the jury to apply an objective rather than subjective standard in determining whether the defendant acted with conscious disregard of life, thereby entirely obliterating the line which separates murder from involuntary manslaughter. [14]
Although we do not hold that the inclusion of a reference in an instruction to an "abandoned and malignant heart" constitutes error we think that it is a superfluous charge. The dangers inherent in it and the absence of any compensating advantage impel us to suggest its replacement with the more comprehensive and informative charge in the first of the three subdivisions of the instructions in the form that we have submitted.
The judgment is reversed.
Traynor, C. J., Peters, J., and Peek, J., concurred.
BURKE, J.
I dissent. The majority opinion reverses the judgment of conviction of second degree murder "solely on the ground that the trial court erred in giving a felony-murder [589] instruction." Under section 4 1/2, article VI, of the California Constitution "No judgment shall be set aside ... on the ground of misdirection of the jury ... unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." I submit that here a miscarriage of justice did not result from any error in giving the instruction in view of the overwhelming evidence that defendant, motivated by mercenary greed, acted in conscious disregard for the life of 8-year-old Linda Epping when he induced her parents to cancel the scheduled cancer operation and place her under his care, thereby shortening her life.
The majority eschew the test in article VI, section 4 1/2, of the Constitution by asserting that the instruction "caused defendant prejudice because it removed from the jury the issue of malice" and that "The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2."
Under the instructions given, the jury was told that malice aforethought was a necessary element of murder, and the instructions permitted the jury to find such malice not only on the basis of the felony-murder rule but also if the killing was committed under circumstances that show an abandoned and malignant heart. To be so committed the defendant must have an intent with conscious disregard for life to commit acts likely to kill. (People v. Washington, 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130]; see People v. Thomas, 41 Cal.2d 470, 475 [261 P.2d 1] [concurring opinion].)
There was ample evidence that defendant, a chiropractor, intended to induce Linda's parents to cancel the operation for her fast-growing eye cancer and place her under his care. Motive was shown by evidence that he was then behind in his rent and that he charged Linda's parents $500 in advance for her treatment and made an additional profit exceeding $100 by selling pills for her at a 100 percent mark-up.
That defendant was well aware that canceling the surgery and placing the child under his care would endanger her life is apparent from his own testimony. He testified as follows: Before Linda was removed from the hospital he knew the form of cancer she had, and, having taken several semesters of pathology at school, he recognized that her condition was "very, very dangerous." He recalled having read that "early exenteration of the orbit offers the only hope of survival, and [590] that a slender one." He stated he was aware that Linda's case required medical attention, which he was not going to give her. Upon being told that the doctors at UCLA planned to perform surgery on her, he told her mother to listen to the doctors. Later, when Linda's mother informed him that she had removed Linda from the hospital, he told her she had made "a very, very grave mistake" and should return Linda to the hospital. Thereafter each time Linda was brought to him for treatment he stated that she should have surgery. He graduated from a college of chiropractic in 1958 and testified that he knew he could not cure cancer, and that if he had reason to believe that one of his patients had a malignant tumor he would refer the patient to a surgeon.
In view of the foregoing testimony by defendant any possibility the jury would have concluded, as suggested by the majority, that he believed the treatment he proposed to give would be as efficacious as the scheduled surgery in prolonging her life and thus that he did not act with conscious disregard for her life is so remote as to be virtually nonexistent.
The majority note that defendant testified that he understood that Linda's cancer was incurable, but this is not inconsistent with his testimony indicating his belief that surgery offered the best chance of prolonging her life. Moreover, his testimony relating to whether her form of cancer was curable, when the testimony is taken as a whole, merely indicated that he believed that such cancer was ordinarily incurable but that there was a slight chance of survival if there was early exenteration of the orbit.
The majority opinion is misleading in stating that "defendant testified that he ... understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death." Defendant testified that he had read that "after removal there is wasting and death due to metastasis ...," i.e. a transfer of the disease from one part of the body to another. The quoted matter which defendant said he had read may mean merely that removal does not always prevent death, not that removal might "stimulate" the spread of the disease and thus hasten death.
Defendant was indeed fortunate that he was not tried and convicted of first degree murder for Linda's death. Even if it be assumed that it was error to give the felony-murder instruction, the record shows that it is not reasonably probable that a result more favorable to defendant would have been reached had the instruction not been given. (People v. Watson, 46 Cal.2d 818, 835 [299 P.2d 243].) Since the giving of the [591] instruction did not result in a miscarriage of justice, I would affirm the judgment of conviction under the mandate of section 4 1/2, article VI, of the California Constitution.
McComb, J., and Schauer, J., [*] concurred.
* "Like the multiheaded beast of Greek mythology, the felony murder rule has several 'heads' of its own, each willing to consume one of the accused's defenses by presuming a needed element in the proof of felony murder." Recent Developments, California Rewrites Felony Murder Rule (1966) 18 Stan.L.Rev. 690.
Proof that defendant entertained such a belief would only establish a defense to murder. If the jury found that defendant acted "without due caution and circumspection" in forming and entertaining this belief he would be subject to conviction for involuntary manslaughter. (Pen. Code, 192, subd. 2.)
[1] We find no merit whatsoever in defendant's contention that the prosecution's expert witnesses were not qualified to testify as to their opinions that surgery on the 21st of July would have prolonged Linda's life. A wide discretion, of course, reposes in the trial court to determine the sufficiency of the qualifications of expert witnesses. An appellate court will not disturb its ruling on that matter in the absence of a manifest abuse of such discretion. (People v. Busch (1961) 56 Cal.2d 868, 878 [16 Cal.Rptr. 898, 366 P.2d 314].) The record fully demonstrated the qualifications of the doctors; the court properly permitted the introduction of such expert testimony.
[2] We do not accept defendant's contention that the doctor's testimony failed as a matter of law to sustain the conviction because this testimony was couched in terms of "reasonable medical certainty" rather than of "beyond a reasonable doubt," which expresses the ultimate issue for the determination of the jury. To hold that medical opinion fails as a matter of law to sustain a jury in reaching a conviction "beyond a reasonable doubt," because the testimony rests upon "reasonable medical certainty," would in substance foreclose the realistic use of medical testimony at criminal trials.
[3] One possible answer to this contention lies in the fact that defendant, at the time of his initial conversations with the Eppings, was aware of their belief that once they removed Linda from the hospital, they could not thereafter take her back. The prosecution could persuasively contend that defendant's responsibility for preventing surgery thereby extended beyond the date of his dismissal.
[4] The record suggests that the evidence would have supported a finding of involuntary manslaughter. The jury might, for example, have found that defendant sincerely, though unreasonably, believed that the removal of Linda from the hospital and treatment according to the principles of chiropractic would be in her best interests. Having so found, the jury could have concluded that in causing Linda's removal from the hospital and so endangering her life defendant acted "without due caution and circumspection." (Pen. Code, 192, subd. 2.) Accordingly, the trial court should have given a manslaughter instruction. (People v. Modesto (1963) 59 Cal.2d 722, 729-730 [31 Cal.Rptr. 225, 382 P.2d 33]; People v. Henderson (1963) 60 Cal.2d 482, 489-491 [35 Cal.Rptr. 77, 386 P.2d 677].) The record reveals, however, that defendant's counsel strongly opposed the manslaughter instruction and indicated to the trial court that he considered it "tactically" to defendant's advantage to confront the jury with the limited choice between murder and acquittal. Thus the failure of the trial court to instruct on manslaughter, though erroneous, was invited error; defendant may not properly complain of such error on appeal. (People v. Wright (1914) 167 Cal. 1, 7 [138 P. 349]; People v. Hite (1901) 135 Cal. 76, 79-80 [67 P.2d 57]; People v. Jones (1965) 232 Cal.App.2d 379, 390 [42 Cal.Rptr. 714]; People v. Johnson (1962) 203 Cal.App.2d 624, 629-630 [21 Cal.Rptr. 650].)
[5] As we stated in People v. Washington (1965) 62 Cal.2d 777, 783 [44 Cal.Rptr. 442, 402 P.2d 130], "The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e.g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953); 3 Stephen, History of the Criminal Law of England 57-58, 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) Although it is the law in this state (Pen. Code, 189), it should not be extended beyond any rational function that it is designed to serve ...." (Fn. omitted.)
[6] The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant's commission of another but because it anachronistically resurrects from a bygone age a "barbaric" concept that has been discarded in the place of its origin. Thus Witkin says: "Some writers describe the concept as barbaric and urge its abolition or strict limitation. (See 1957 A.S. 99 [abolished by English Homicide Act of 1957]; 1958 A.S. 125; Clark and Marshall, p. 594; 71 Harv.L.Rev. 1565; 13 Stan.L.Rev. 259; Moreland, pp. 49, 224.)" (1 Witkin, Cal. Crimes (1963) 311, p. 284.)
[7] "The felony-murder rule, composed as it is of several presumptions, is a legal Hydra.*
[8] Respondent's brief points out that this is "the first case of murder by false pretenses to reach an appellate court in the seven hundred years of recorded Anglo-American Law." (P. 27.) For a discussion of this aspect of the instant case, see Recent Decisions (1965) 32 Brooklyn L.Rev. 192, 194-195.
[9] We are aware that the portion of the trial court's charge in which the felony-murder instruction appears is prefaced with the statement: "[T]he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder in the second degree [when] ...." The three numbered sections which follow set forth ways in which malice can be proved, the last being the erroneous felony-murder instruction. We do not believe, and the Attorney General has not urged, that the court intended, or the jury understood, the above quoted general statement to require that the jury make a finding of malice independent of its determination that the requirements of one of the numbered sections had been met.
[10] For example, defendant testified that he believed the girl's cancer to be incurable and understood that surgery might stimulate the spread of the disease to other parts of the body and thus hasten death. To some extent this evidence was contradicted by defendant's further testimony that he repeatedly urged the Epping's to return Linda to the hospital. The jury, however, was not bound to accept all of defendant's testimony, and substantial evidence supported a reasonable conclusion that defendant believed that he was not endangering Linda's life by persuading her parents to put her under his care.
[11] "Hardness of the arteries is an ascertainable concept--but not of the heart; malignant cancer is similarly ascertainable, but not malignant hearts; also abandoned children but not abandoned hearts. As sophisticated as human knowledge has become regarding anatomy of the body, the anatomy of the crime concept--and especially of malice--has remained as mysterious for many courts as it was for cavemen. Why not stop abusing the poor heart?" (Mueller and Wall, Criminal Law, 1964 Annual Survey of American Law, pp. 33, 41.)
[12] (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice (1966) 114 U.Pa.L.Rev. 495, 496.)
[13] "When the common law was embodied in the criminal statutes of the various states, the legislatures which attempted specifically to describe this category of homicide (rather than to accept the common-law description through language such as 'and all other murders. ...') used either the abandoned and malignant heart language or 'an act imminently dangerous to others, and evincing a depraved mind, regardless of human life' or a combination of the two. The latter phrase is the more prevalent and sets forth the standard in clearer language, embodying most of the qualities of Stephen's definition. Because of its common origin with the abandoned and malignant heart formulation, this phrase is a useful reference in attempting to clarify its ambiguity. Both the common law and this statutory description demonstrate that the requested charge must focus on the state of mind and emphasize the knowledge of danger and disregard for life." (Comment, Ambiguous Abandon and Murky Malignancy: Charging the Jury on Implied Malice, supra, 114 U.Pa.L.Rev. 495, 497.)
[14] See Collings, Negligent Murder (1961) 49 Cal.L.Rev. 254, 284, 288-291. We believe the distinction between the two crimes in the present case is particularly important because the jury could have concluded from some of the evidence that defendant genuinely, though unreasonably, believed that he was not endangering the life of the girl by causing her to be taken from the hospital and placed under his care.
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
7.2.8.3.3.3.3 State v. Stewart 7.2.8.3.3.3.3 State v. Stewart
STATE
v.
Tracy STEWART.
Supreme Court of Rhode Island.
[915] Jane McSoley, Assistant Attorney General, Aaron Weisman, Chief Appellate Division, Jeffrey Pine, Attorney General, Providence, for plaintiff.
Paula Rosin, Chief Appellate Attorney, Office of Public Defender, Richard Casparian, Public Defender, Providence, for defendant.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on the appeal of the defendant, Tracy Stewart, from a judgment of conviction entered in the Superior Court on one count of second-degree murder in violation of G.L. 1956 (1981 Reenactment) § 11-23-1.[1] We affirm the judgment of conviction. The facts insofar as pertinent to this appeal are as follows.
On August 31, 1988 twenty-year-old Tracy Stewart (Stewart or defendant) gave birth to a son, Travis Young (Travis). Travis's father was Edward Young, Sr. (Young). Stewart and Young, who had two other children together, were not married at the time of Travis's birth.[2] Travis lived for only fiftytwo days, dying on October 21, 1988, from dehydration.
During the week prior to Travis's death, Stewart, Young, and a friend, Patricia McMasters (McMasters), continually and repeatedly ingested cocaine over a two- to three-consecutive-day period at the apartment shared by Stewart and Young. The baby, Travis, was also present at the apartment while Stewart, Young, and McMasters engaged in this cocaine marathon. Young and McMasters injected cocaine intravenously and also smoked it while Stewart ingested the cocaine only by smoking it. The smoked cocaine was in its strongest or base form, commonly referred to as "crack." When the [916] three exhausted an existing supply of cocaine, they would pool their money and Young and McMasters would go out and buy more with the accumulated funds. The primary source of funds from which the three obtained money for this cocaine spree was Stewart's and McMasters's Aid to Families with Dependent Children (AFDC) checks. Stewart and McMasters had each just received the second of their semimonthly AFDC checks. They both cashed their AFDC checks and gave money to Young, which he then used to purchase more cocaine. After all the AFDC funds had been spent on cocaine and the group had run out of money, McMasters and Young committed a robbery to obtain additional money to purchase more cocaine.
The cocaine binge continued uninterrupted for two to three days. McMasters testified that during this time neither McMasters nor Stewart slept at all. McMasters testified that defendant was never far from her during this entire two- to three-day period except for the occasions when McMasters left the apartment to buy more cocaine. During this entire time, McMasters saw defendant feed Travis only once. Travis was in a walker, and defendant propped a bottle of formula up on the walker, using a blanket, for the baby to feed himself. McMasters testified that she did not see defendant hold the baby to feed him nor did she see defendant change Travis's diaper or clothes during this period.
Ten months after Travis's death defendant was indicted on charges of second-degree murder, wrongfully causing or permitting a child under the age of eighteen to be a habitual sufferer for want of food and proper care (hereinafter sometimes referred to as "wrongfully permitting a child to be a habitual sufferer"), and manslaughter. The second-degree-murder charge was based on a theory of felony murder. The prosecution did not allege that defendant intentionally killed her son but rather that he had been killed during the commission of an inherently dangerous felony, specifically, wrongfully permitting a child to be a habitual sufferer. Moreover, the prosecution did not allege that defendant intentionally withheld food or care from her son. Rather the state alleged that because of defendant's chronic state of cocaine intoxication, she may have realized what her responsibilities were but simply could not remember whether she had fed her son, when in fact she had not.
At defendant's trial both the prosecution and the defense presented expert medical witnesses who testified concerning what they believed to be the cause of Travis's death. The experts for both sides agreed that the cause of death was dehydration, but they strongly disagreed regarding what caused the dehydration. The prosecution expert witnesses believed that the dehydration was caused by insufficient intake of food and water, that is, malnutrition. The defense expert witnesses, conversely, believed that the dehydration was caused by a gastrointestinal virus known as gastroenteritis which manifested itself in an overwhelming expulsion of fluid from the baby's body.
The defendant was found guilty of both second-degree murder and wrongfully permitting a child to be a habitual sufferer. A subsequent motion for new trial was denied. This appeal followed. In support of her appeal defendant raises a number of issues. We shall address them in the order in which they are presented in defendant's brief. Additional facts will be furnished as needed in order to deal with specific issues.
I. THE DENIAL OF THE MOTION TO DISMISS
Prior to trial, defendant moved to dismiss count 1 of the indictment, the second-degree felony-murder charge, on two grounds that are relevant to her appeal. She first claimed that count 1 of the indictment was improperly charged. She claimed that the charge should have been no greater than involuntary manslaughter. The basis of defendant's claim is that the predicate felony underlying the felony-murder charge, wrongfully permitting a child to be a habitual sufferer, is not an inherently dangerous felony as charged in the indictment. The second ground on which defendant sought to have the felony-murder charge dismissed was that the statute under which she was charged, Rhode Island's child-neglect [917] statute, G.L.1956 (1981 Reenactment) § 11-9-5, lacked a mens rea element, and additionally, that count 2 of the indictment, which served as the predicate to the felonymurder charge in count 1, was defective because it did not track the language of the child-neglect statute. The word "wrongfully" appears in § 11-9-5, but the indictment did not include this word to describe the charged conduct. The motion to dismiss was denied on both grounds. The defendant claims that the denial of the motion to dismiss was reversible error. We disagree.
At the pretrial hearing on the motion to dismiss, defendant argued that the law in Rhode Island is moving toward the approach used in California to determine if a felony is inherently dangerous. This approach examines the elements of a felony in the abstract. We shall discuss this approach in more detail in part II A of this opinion. In denying the motion to dismiss, the trial justice stated that "[n]othing * * * in my examination of Rhode Island case law, leads the Court to conclude that the Rhode Island Supreme Court is moving toward the California concept." Rather than determine if the crime of wrongfully permitting a child to be a habitual sufferer was inherently dangerous in the abstract, the trial justice ruled that the state would have the opportunity to prove at trial that the crime was inherently dangerous in the manner that it was committed. The trial justice committed no error in so ruling.
The trial justice held that the mens rea issue could be cured by an appropriate instruction to the jury and denied the motion to dismiss based on this ground as well. She noted that count 2 of the indictment charged defendant with violating § 11-9-5, "and there's no question but that [§] 11-9-5 talks about wrongful actions." The trial justice was correct in holding that the indictment did not have to track the exact words of the statute. See State v. Markarian, 551 A.2d 1178, 1182 (R.I.1988) ("as long as the essential elements of the crimes charged are stated in the indictment or information, a defendant's conviction may be reversed only where the variance is prejudicial to his defense"); State v. McKenna, 512 A.2d 113, 114-15 (R.I. 1986). Aside from omitting the word "wrongfully," count 2 did set forth the essential elements of a violation of § 11-9-5. The defendant was not prejudiced by the omission of the word "wrongfully" from count 2 since the trial justice was correct in asserting that the omission could be cured with an appropriate jury instruction. The trial justice, therefore, committed no error in denying the motion to dismiss on this basis.
II. THE DENIAL OF THE MOTIONS FOR JUDGMENT OF ACQUITTAL
The defendant moved for judgment of acquittal on all three counts at the close of the state's case and again at the close of all the evidence. In regard to the felony-murder charge defendant claimed that the evidence was insufficient to prove (1) that the crime of wrongfully permitting a child to be a habitual sufferer is an inherently dangerous felony and (2) that defendant intentionally committed the crime of wrongfully permitting a child to be a habitual sufferer. The motions for judgment of acquittal were denied on both grounds. The defendant claims that the denial of her motions for judgment of acquittal was reversible error.
A. Whether Wrongfully Permitting a Child to Be a Habitual Sufferer is an Inherently Dangerously Felony
Rhode Island's murder statute, § 11-23-1, enumerates certain crimes that may serve as predicate felonies to a charge of first-degree murder. A felony that is not enumerated in § 11-23-1 can, however, serve as a predicate felony to a charge of second-degree murder. See In re Leon, 122 R.I. 548, 410 A.2d 121 (1980); State v. Miller, 52 R.I. 440, 161 A. 222 (1932). Thus the fact that the crime of wrongfully permitting a child to be a habitual sufferer is not specified in § 11-23-1 as a predicate felony to support a charge of firstdegree murder does not preclude such crime from serving as a predicate to support a charge of second-degree murder.
In Rhode Island second-degree murder has been equated with common-law murder. [918] In re Leon, 122 R.I. at 553, 410 A.2d at 124. At common law, where the rule is unchanged by statute, "[h]omicide is murder if the death results from the perpetration or attempted perpetration of an inherently dangerous felony." Id. (quoting Perkins, Criminal Law 44 (2d ed. 1969)). To serve as a predicate felony to a charge of second-degree murder, a felony that is not specifically enumerated in § 11-23-1 must therefore be an inherently dangerous felony. Id.
The defendant contends that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony and cannot therefore serve as the predicate felony to a charge of second-degree murder. In advancing her argument, defendant urges this court to adopt the approach used by California courts to determine if a felony is inherently dangerous. This approach requires that the court consider the elements of the felony "in the abstract" rather than look at the particular facts of the case under consideration. See, e.g., People v. Patterson, 49 Cal.3d 615, 620-21, 778 P.2d 549, 553, 262 Cal.Rptr. 195, 199 (1989). With such an approach, if a statute can be violated in a manner that does not endanger human life, then the felony is not inherently dangerous to human life. People v. Burroughs, 35 Ca1.3d 824, 830-33, 678 P.2d 894, 898-900, 201 Cal.Rptr. 319, 323-25 (1984); People v. Caffero, 207 Cal.App.3d 678, 683-84, 255 Cal. Rptr. 22, 25 (1989). Moreover, the California Supreme Court has defined an act as "inherently dangerous to human life when there is `a high probability that it will result in death.'" Patterson, 49 Ca1.3d at 627, 262 Cal.Rptr. at 204, 778 P.2d at 558.
In Caffero, supra, a two-and-one-halfweek-old baby died of a massive bacterial infection caused by lack of proper hygiene that was due to parental neglect. The parents were charged with second-degree felony murder and felony-child abuse, with the felony-child-abuse charge serving as the predicate felony to the second-degree-murder charge. Examining California's felony-childabuse statute in the abstract, instead of looking at the particular facts of the case, the court held that because the statute could be violated in ways that did not endanger human life, felony-child abuse was not inherently dangerous to human life. Caffero, 207 Cal.App.3d at 683, 255 Cal.Rptr. at 25. By way of example, the court noted that a fractured limb, which comes within the ambit of the felony-child-abuse statute, is unlikely to endanger the life of an infant, much less of a seventeen-year-old. Id. (the statute applied to all minors below the age of eighteen years, not only to young children. People v. Lee, 234 Cal.App.3d 1214, 1228, 286 Cal.Rptr. 117, 126 (1991)). Because felony-child abuse was not inherently dangerous to human life, it could not properly serve as a predicate felony to a charge of second-degree felony murder. Caffero, 207 Cal.App.3d at 682-83, 255 Cal.Rptr. at 24-25; see also Lee, 234 Cal. App.3d at 1229, 286 Cal.Rptr. at 126.
The defendant urges this court to adopt the method of analysis employed by California courts to determine if a felony is inherently dangerous to life. Aside from California, it appears that Kansas is the only other state which looks at the elements of a felony in the abstract to determine if such felony is inherently dangerous to life. See, e.g., State v. Wesson, 247 Kan. 639, 647, 802 P.2d 574, 581 (1990) (holding that the sale of crack cocaine when viewed in the abstract is not inherently dangerous to human life); State v. Underwood, 228 Kan. 294, 303, 615 P.2d 153, 161 (1980) (holding that the unlawful possession of a firearm by an ex-felon when viewed in the abstract is not inherently dangerous to human life). The case of Ford v. State, 262 Ga. 602, 423 S.E.2d 255 (1992), cited in defendant's brief for the proposition that possession of a firearm by an ex-felon is not an inherently dangerous felony which can support a felony-murder conviction, actually holds that the attendant circumstances of the particular case should be considered in determining whether the underlying felony "create[d] a foreseeable risk of death." In Ford the defendant (Ford) had previously been convicted of the felony of possession of cocaine with intent to distribute. Ford was visiting the home of his girlfriend's mother and had brought with him a semiautomatic pistol. While there he attempted to unload the pistol, but in so doing, he discharged the weapon, sending a bullet both through the floor and through the ceiling of a basement [919] apartment located in the house. The bullet struck and killed the occupant of the basement apartment. There was no evidence that at the time of the shooting the defendant was aware of the existence of the apartment or of the victim's presence in it. Ford was charged with and convicted of felony murder, with the underlying felony being the possession of a firearm by a convicted felon.
The Georgia Supreme Court reversed the conviction for felony murder holding that a status felony, including the possession of a firearm by a previously-convicted felon, is not inherently dangerous. The court explained that there could indeed be circumstances in which such a felony could be considered dangerous (for example when the possession of the firearm was coupled with an aggravated assault or other dangerous felony) but that such circumstances were absent in that case. It held that in that particular case, which did not involve an assault or other criminal conduct, the underlying felony of possession of a firearm by a previously convicted felon was not inherently dangerous and thus could not serve as a predicate to the charge of felony murder. Id. at 603-04, 423 S.E.2d at 256.
We decline defendant's invitation to adopt the California approach in determining whether a felony is inherently dangerous to life and thus capable of serving as a predicate to a charge of second-degree felony murder. We believe that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. We now join a number of states that have adopted this approach. See, e.g., Jenkins v. State, 230 A.2d 262 (De1.1967); State v. Wallace, 333 A.2d 72 (Me.1975); Commonwealth v. Ortiz, 408 Mass. 463, 560 N.E.2d 698 (1990); State v. Harrison, 90 N.M. 439, 564 P.2d 1321 (1977); State v. Nunn, 297 N.W.2d 752 (Minn.1980).
A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life. The crime of escape from a penal facility is an example of such a crime. On its face, the crime of escape is not inherently dangerous to human life. But escape may be committed or attempted to be committed in a manner wherein human life is put in danger. Indeed in State v. Miller, supra, this court upheld the defendant's conviction of seconddegree murder on the basis of the underlying felony of escape when a prison guard was killed by an accomplice of the defendant during an attempted escape from the Rhode Island State prison. By way of contrast, the California Supreme Court has held that the crime of escape, viewed in the abstract, is an offense that is not inherently dangerous to human life and thus cannot support a seconddegree felony-murder conviction. People v. Lopez, 6 Cal.3d 45, 51, 489 P.2d 1372, 1376, 98 Cal.Rptr. 44, 48 (1971) (In Bank).
The amendment of our murder statute to include any unlawful killing "committed during the course of the perpetration, or attempted perpetration, of felony manufacture, sale, delivery, or other distribution of a controlled substance otherwise prohibited by the provisions of chapter 28 of title 21" lends further support for not following California's approach to determining the inherent dangerousness of a felony. G.L.1956 (1981 Reenactment) § 11-23-1, as amended by P.L. 1990, ch. 284, § 4. According to the statute a person who delivers phencyclidine (PCP), a controlled substance under section (e)(5) of schedule II of G.L.1956 (1989 Reenactment) § 21-28-2.08, as amended by P.L.1991, ch. 211, § 1, to another person who then dies either as a result of an overdose or as a result of behavior precipitated by the drug use (such as jumping off a building because of the loss of spacial perception) could be charged with first-degree murder under § 11-23-1. Conversely, the California Court of Appeal has held that when viewed in the abstract, the standard used by California courts to determine whether a felony is inherently dangerous, the furnishing or selling of PCP is not a felony that carries a high probability that death will result. People v. Taylor, 6 Cal.App.4th 1084, 1100, 8 Cal. Rptr.2d 439, 449 (1992). Consequently, the [920] California Court of Appeal held that the felony of furnishing PCP could not serve as a predicate to a charge of second-degree felony murder. Id. at 1101, 8 Cal.Rptr.2d at 450. It is clear that there is a profound ideological difference in the approach of the Rhode Island Legislature from the holdings of the courts of the State of California concerning appropriate criminal charges to be preferred against one who furnishes PCP (and presumably a host of other controlled substances) to another person with death resulting therefrom. The lawmakers of the State of Rhode Island have deemed it appropriate to charge such a person with the most serious felony in our criminal statutes—first-degree murder. It appears that the appellate court of California, however, would hold that the most serious charge against one who furnishes PCP to another person with death resulting therefrom would be involuntary manslaughter. See id.
The Legislature's recent amendment to our murder statute as well as this court's prior jurisprudence concerning second-degree felony murder (In re Leon, supra; State v. Miller, supra) reinforces our belief that we should not adopt the California approach to determine whether a felony is inherently dangerous. The proper procedure for making, such a determination is to present the facts and circumstances of the particular case to the trier of fact and for the trier of fact to determine if a felony is inherently dangerous in the manner and the circumstances in which it was committed. This is exactly what happened in the case at bar. The trial justice instructed the jury that before it could find defendant guilty of seconddegree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life "in its manner of commission." This was a proper charge. By its guilty verdict on the charge of second-degree murder, the jury obviously found that wrongfully permitting a child to be a habitual sufferer for want of food or proper care was indeed a felony inherently dangerous to human life in the circumstances of this particular case.
"When presented with a motion for judgment of acquittal, a trial justice must determine whether the evidence offered by the state is capable of generating proof of guilt beyond a reasonable doubt. * * * To make this determination, a trial justice, and this court on review, must view the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of the witnesses, and must draw therefrom all reasonable inferences consistent with guilt." State v. Caruolo, 524 A.2d 575, 580-81 (R.I.1987).
Applying this standard, we are of the opinion that the evidence offered by the state was sufficient to prove beyond a reasonable doubt each of the elements of second-degree felony murder, including that the crime of wrongfully permitting a child to be a habitual sufferer was an inherently dangerous felony in its manner of commission. The defendant's motions for judgment of acquittal on the felony-murder charge on the ground that wrongfully permitting a child to be a habitual sufferer is not an inherently dangerous felony were properly denied.
B. Whether Defendant Possessed the Necessary Intent to Commit the Crime of Wrongfully Permitting a Child to Be a Habitual Sufferer for Such Felony to Support a Charge of Second-Degree Felony Murder
The theory of felony murder is that a defendant does not have to have intended to kill one who dies during the course of certain statutorily enumerated felonies, or other inherently dangerous felonies, in order to be charged with murder. The intent to commit the underlying felony will be imputed to the homicide, and a defendant may thus be charged with murder on the basis of the intent to commit the underlying felony. See, e.g., State v. Villani, 491 A.2d 976, 980 (R.I. 1985); 2 Wharton's Criminal Law § 147 (14th Torcia ed. 1979).
The defendant claims that the evidence presented at trial failed to establish that she intentionally committed the crime of wrongfully permitting a child to be a habitual [921] sufferer. She claims that absent an intent to commit this felony, it cannot serve as a predicate to support a charge of second-degree felony murder because there would then be no intent to be imputed from the underlying felony to the homicide. We agree with defendant that intent to commit the underlying felony is a necessary element of felony murder. However, we believe the circumstances surrounding the events preceding Travis's death support a finding that defendant did indeed intentionally permit her son to be a habitual sufferer for want of food or proper care.
The defendant's addiction to and compulsion to have cocaine were the overriding factors that controlled virtually every aspect of her life. She referred to the extended periods that she was high on cocaine as "going on a mission." Although she was receiving public assistance and did not have much disposable income, she nevertheless spent a great deal of money on cocaine, including her AFDC money. She shoplifted and traded the stolen merchandise for cocaine. She stole food because she had used the money that she should have been using to purchase food to purchase cocaine. The compulsion to have cocaine at any cost took precedence over every facet of defendant's life including caring for her children.
Although defendant did not testify at trial, she did testify before the grand jury. A redacted tape of her grand jury testimony was admitted into evidence and played for the jury at trial. During the days preceding Travis's death, defendant had been on a twoto three-day cocaine binge, a mission, as she referred to it. Her grand jury testimony indicated that she knew that during such periods she was unable to care for her children properly. The defendant testified that whenever she would go on a mission, her mother, who lived only a few houses away, would take and care for the children. This testimony evinced a knowledge on the part of defendant that she was incapable of properly caring for her children during these periods of extended cocaine intoxication. In addition, defendant was prone to petit mal seizures, which were exacerbated by her cocaine use. During such seizures she would "black out" or "[go] into a coma state." She testified before the grand jury that she was aware that taking cocaine brought on more seizures and that the weekend before Travis died she had in fact blacked out and "went into a coma state."
Despite her grand jury testimony to the contrary, Travis remained with defendant at her apartment during the entire two- to three-day binge. He died two or three days later. The defendant's repeated voluntary and intentional ingestion of crack cocaine while her seven-week-old son was in her care in addition to her testimony that she knew that she was incapable of properly caring for her children during these extended periods of cocaine intoxication, support a finding that she intentionally permitted her son to be a habitual sufferer for want of food and proper care. We make the distinction between a finding that defendant intentionally deprived her son of food and proper care, which even the state does not allege, and a finding that defendant intentionally permitted her son to be a habitual sufferer for want of food or proper care, which we find to be supported by the evidence adduced at trial.
Viewing the evidence in the light most favorable to the state, without weighing the evidence or assessing the credibility of witnesses, and drawing all reasonable inferences consistent with guilt, we are of the opinion that the evidence offered by the state was capable of proving beyond a reasonable doubt that defendant intentionally permitted her seven-week-old-son, Travis, to be a habitual sufferer for want of food and proper care. We also believe that the evidence in support of each of the other elements of the crime of second-degree felony murder was sufficient to justify a finding of proof beyond a reasonable doubt. The motions for judgment of acquittal were properly denied.
III. ADMISSION OF EVIDENCE OF OTHER CRIMES AND BAD ACTS
In her testimony before the grand jury, defendant explained that she was addicted to cocaine prior to becoming pregnant with Travis and that she continued to use cocaine [922] throughout her pregnancy on a daily basis. The defendant testified that during her pregnancy she was high on cocaine approximately nine hours per day and that after Travis was born she would get high approximately seven hours per day. She also testified that when Travis was born, a substantial amount of cocame had been found in his system. The following colloquy took place between the prosecutor and defendant with respect to how defendant obtained money with which to purchase cocaine:
"Prosecutor: Now, Ms. Stewart, aside from using welfare money and other means, aside from using money you received by public assistance, were there other ways that you would get money?"Defendant: Yes. I would borrow money or I would steal from the store, shoplifting, and trade it off, trade it off for the drugs.
"Prosecutor: How about breaking into apartments; did you ever break into apartments?
"Defendant: I broke into an apartment on Sayles Avenue, but what was stolen from that apartment was food."Prosecutor: Isn't it true that you broke into two apartments at that address?
"Defendant: Yes. It was the third floor and the fourth floor.
"Prosecutor: And is it your testimony that no money was taken from either one of those apartments?
"Defendant: Right.
"Prosecutor: And one of the reasons — Is it true that you broke into those apartments and stole food because you were using money, which normally would go to [purchase] food, to buy cocaine?
"Defendant: No, I wouldn't — I would spend the money that should have been used towards the food on cocaine, but when I had broken into the apartment, that was towards the end of the month. I had no more food stamps left. I did have food in my house, but it was nothing like, it was like canned foods like, say, Spaghettios and stuff like that for my children, my older children. Travis had his formula that's up in the cabinet, but when I broke into the other apartment, I had stolen meats out of the freezer so I had meats in the house for the children."
At trial, the state sought to play for the jury a tape recording of defendant's grand jury testimony, including the portion excerpted above. The defendant objected inter alia, to the admission of evidence pertaining to (1) the cocaine found in Travis's system at birth, (2) defendant's cocaine use during her pregnancy, (3) defendant's use of her AFDC money to purchase cocaine, and (4) defendant's shoplifting and breaking into apartments. Each of these objections was overruled, and these portions of defendant's grand jury testimony were played for the jury at trial.[3] The defendant claims that the admission of evidence of other crimes that she had committed which were unrelated to the crime for which she was standing trial was reversible error. We disagree with both defendant's characterization of these other crimes as "unrelated" and with her contention that the admission of evidence of their commission was reversible error.
Generally, evidence that shows or tends to indicate that an accused has committed another crime independent of the crime for which he or she is standing trial is irrelevant and inadmissible. State v. Chartier, 619 A.2d 1119, 1122 (R.I. 1993); State v. Cardoza, 465 A.2d 200, 202 (R.I. 1983); State v. Colvin, 425 A.2d 508, 511 (R.I. 1981). "This rule operates to prevent a jury from finding a defendant guilty based upon unrelated crimes rather than upon evidence [relating] to the charged offense." Cardoza, 465 A.2d at 202. There are, however, several well-established exceptions to this rule. Evidence that a defendant has participated in or committed prior crimes may be admissible if such evidence "tends to establish the defendant's `guilty knowledge, intent, motive, design, plan, scheme, system, or the like' with respect to the offense charged." State v. Gallagher, 654 A.2d 1206, 1210 (R.I. 1995); State v. Lemon, 497 A.2d 713, 720 (R.I. 1985); State v. Colangelo, 55 R.I. 170, 174, 179 A. 147, 149 (1935); see also R.I.R.Evid. 404(b). [923] We have previously stated that in situations in which the prior crimes "are interwoven with the offense for which the defendant is being tried, or directly support a finding of guilty knowledge in the perpetration of that offense," then evidence of the prior crimes is admissible. Cardoza, 465 A.2d at 202 (quoting Colangelo, 55 R.I. at 174, 179 A. at 149). Stated another way, evidence of prior crimes is not admissible to prove the propensity of a defendant to commit such a crime but it is admissible to show a fact or facts which tend to prove that the defendant is, guilty of the crime charged. Lemon, 497 A.2d at 720.
In the instant case, during the period in question, defendant's addiction to and obsession with cocaine were the overriding factors that controlled virtually every aspect of her life. She spent nearly all her money, including the money from her AFDC checks, to buy cocaine. Because she used her money from public assistance to purchase cocaine rather than food, defendant resorted to breaking into apartments to steal food for her children. She shoplifted so that she could trade the stolen merchandise for cocaine. All defendant's criminal activity was inextricably linked to her cocaine addiction and her compulsion to have cocaine at any cost.
The defendant claims, and the state concurs, that defendant did not intentionally deprive Travis of food and care. Rather, both defendant and the state contend that because defendant was so intoxicated from her use of cocaine during the period surrounding Travis's death, she was physically and mentally unable to care for her infant child properly. It was this very addiction and compulsion that resulted in defendant being incapable of providing the necessary care and supervision that ultimately led to Travis's death. Evidence of defendant's shoplifting and breaking into apartments and the relation that this criminal activity bore to her compulsion to obtain cocaine are relevant to the issue of whether defendant possessed the requisite intent to commit the crime of wrongfully permitting her son to be a habitual sufferer. In the circumstances of this case, defendant's shoplifting and breaking into apartments were interwoven with the offense for which she was being tried and evidence of these prior crimes was therefore properly admissible. See Cardoza, supra. The trial justice was correct in allowing evidence of these prior crimes.
IV. THE FAILURE TO GIVE A LIMITING INSTRUCTION
The defendant contends that even if evidence of prior criminal acts was admissible, the trial justice's failure to instruct the jury concerning the limited purpose for which such evidence could be used constituted reversible error. The defendant, citing State v. Jalette, 119 R.I. 614, 625, 382 A.2d 526, 532 (1978), claims that when evidence of other crimes is admissible, the trial justice must specifically instruct the jury concerning the limited purpose for which such evidence was introduced. She further contends that State v. Brown, 626 A.2d 228, 234 n. 2 (R.I.1993), mandates that a trial justice is required to give a limiting instruction even in the absence of counsel's request for such instruction.
The two cases cited by defendant both involved sexual-assault charges and evidence of prior sexual misconduct. The Jalette rule applies only when a defendant is charged with a sexual offense and evidence of prior sexual misconduct is admitted. The Brown case stands for the proposition that when a defendant is charged with a sexual offense, a trial justice should offer a limiting instruction sua sponte when admitting evidence of other sexual acts. Because the case at bar involved neither a sexual-assault charge nor evidence of prior sexual offenses, the trial justice was not required to give a limiting instruction in the absence of a request for such an instruction by defense counsel. See State v. Martinez, 651 A.2d 1189, 1195 (R.I.1994). The trial justice therefore committed no error by failing to give a limiting instruction.
V. THE TESTIMONY CONCERNING EVENTS THAT OCCURRED FOLOWING TRAVIS'S DEATH
Two or three days after the cocaine binge had ended, defendant went to McMasters's [924] apartment and informed her that Travis had died that morning. The defendant was carrying a bag containing cans of baby formula and asked McMasters if she knew where she (defendant) could exchange the unused formula for cocaine. McMasters told defendant that she did not know where the formula could be exchanged for cocaine but suggested that she take it to a local supermarket to get a cash refund. McMasters then accompanied defendant to a supermarket in Pawtucket where they attempted to return the formula for cash. They were unsuccessful in this attempt, however, because they did not have a receipt for the formula and store policy dictated that no cash refunds be given for returns without a receipt for the merchandise. The defendant told the assistant store manager that her baby had just died, and the manager gave defendant $20 out of his own pocket because he felt sorry for her.[4] The defendant used this $20 to purchase cocaine. The defendant and McMasters then went to McMasters's apartment and smoked cocaine. McMasters was permitted to testify to this incident over defense objection that such evidence violated Rule 404(b) of the Rhode Island Rules of Evidence concerning bad character.
The next day, the day after Travis died, defendant went to McMasters's apartment building, apparently angry at McMasters because defendant thought that McMasters owed her money. The defendant began screaming obscenities from the driveway of McMasters's apartment building toward the window of McMasters's apartment. McMasters opened her window and told defendant to quiet down, but defendant proceeded to the porch of McMasters's apartment. The defendant began banging on the door and then smashed the apartment window with the handle of a butcher knife. Defense counsel objected to any testimony concerning presentation of this incident to the jury at trial on grounds that such evidence was irrelevant, prejudicial, and violative of Rule 404(b). The objection was overruled. Thereafter the grand jury tape wherein the prosecutor questioned defendant concerning this incident was played for the jury, and McMasters also testified concerning the episode.
The defendant claims that evidence concerning these two occurrences is completely irrelevant and highly prejudicial and does not fall under any of the exceptions to Rule 404(b) concerning admissibility of evidence of other crimes, wrongs, or acts. The trial justice admitted such evidence, finding it relevant insofar as it related to defendant's intent, knowledge, and identity. She also found that there was no danger of unfair prejudice resulting from the admission of this evidence.
Although we may not agree that there was no danger of prejudice resulting from the admission of evidence relating to the two incidents that occurred following Travis's death, we do not feel that the admission of such evidence was error. As we stated in Lemon, "[A]ll of the evidence that tends to prove that [a] defendant is guilty of a crime might be said to be prejudicial. Said evidence is inadmissible only if it is prejudicial and irrelevant." 497 A.2d at 720.
"[T]he admission or exclusion of evidence on grounds of relevancy is within the discretion of the trial justice." State v. Neri, 593 A.2d 953, 956 (R.I.1991). Absent a showing of abuse of discretion this court will not overturn the trial justice's ruling on the admissibility of evidence. In the instant case, evidence of defendant's attempt to return unused baby formula after the death of her son and of her subsequently spending the $20 given her by the store manager to purchase cocaine tended to show the ruthless determination on the part of defendant to obtain cocaine in any circumstances. This determination was probative of her intent to permit her son to be a habitual sufferer for want of the food and proper care that was essential for his survival. Evidence of the incident outside McMasters's apartment on the day following Travis's death would be of limited relevance, but its admission would not constitute an abuse of discretion. In light of the totality of evidence in the case such [925] admission would not be prejudicial or reversible error. We are of the opinion that the trial justice did not abuse her discretion in admitting evidence of these two incidents.
VI. THE DENIAL OF DEFENDANT'S MOTION FOR MISTRIAL
In response to a question from the prosecutor concerning whether there was a period during which she continued to purchase cocaine with defendant and Young, McMasters responded, "[Y]eah. We bought, we purchased cocaine until all our money ran out of our checks, and then me and Eddie went and robbed somebody for some more money." Defense counsel immediately moved at sidebar for a mistrial on the ground that robbery is a very serious crime and the fact that McMasters and Young had committed a robbery was imparted to the jury was extremely prejudicial to defendant. The motion for mistrial was denied, but the trial justice immediately struck the statement concerning the robbery from the record and instructed the jury to ignore it. In denying the motion for mistrial, the trial justice noted that defendant had not been implicated in the robbery. McMasters testified that only she herself and Eddie (Young) had committed the robbery. The trial justice found that defendant suffered no harm from the statement concerning the robbery. The defendant claims that the trial justice's denial of the motion for mistrial was prejudicial error.
The defendant relies on our recent opinion in State v. Gallagher, to support her claim that she was unfairly and substantially prejudiced by the reference to the robbery committed by McMasters and Young. In that case, we held that testimony that implicated the defendant's friends in a shooting which was unrelated to the charges for which the defendant was standing trial was extremely prejudicial and constituted reversible error. In Gallagher, however, the "credibility of the witnesses was the paramount issue at trial." 654 A.2d at 1211. The testimony at issue in Gallagher implicated a defense witness in a shooting that was unrelated to the charges for which the defendant was standing trial.
In that case the defendant was prejudiced by the admission of the evidence since it seriously impaired the credibility of the defense witness in a case where the credibility of witnesses was the most important issue. Id.
In the case at bar, the principal facts testified to by McMasters are virtually uncontradicted. McMasters's credibility was not a primary issue. Furthermore, McMasters was a prosecution witness, not a defense witness. If the jury had questioned McMasters's credibility, this would have benefited defendant, not prejudiced her. Young did not testify in this case; thus his credibility is not in issue. The defendant's reliance on Gallagher is therefore misplaced.
It is within the sound discretion of the trial justice to grant or to deny a defendant's motion to pass a case (motion for mistrial). State v. Mastrofine, 551 A.2d 1174, 1177 (R.I.1988). The denial of a motion to pass the case is to be accorded great weight and will not be overturned on appeal unless clearly wrong. Id. In the case at bar the statement concerning the robbery did not implicate defendant. The trial justice also admonished the jury to disregard the statement. The trial justice committed no error in denying defendant's motion for mistrial.
VII. THE STATE'S REBUTTAL TESTIMONY
Both the state and defendant presented expert witnesses who testified concerning the cause of Travis's death. In pretrial discovery the state disclosed to the defense the reports and anticipated testimony of four medical experts: Dr. William Quentin Sturner, Dr. Penelope Dennehy, Dr. Donald Singer, and Dr. Joel Adelson. In its case in chief the state called only two of the expert witnesses—Doctors Sturner and Dennehy.
Doctor Sturner, who performed the autopsy on Travis, testified that in his opinion, the cause of Travis's death was malnutrition and dehydration that were due to starvation and neglect. He testified at length concerning his various findings that supported this conclusion and how these same findings did not [926] support a conclusion that the cause of death was a gastrointestinal illness.
The thrust of Dr. Dennehy's testimony was to discredit the defense's theory that Travis had died as a result of viral gastroenteritis. She did testify, however, that in her opinion the cause of death was dehydration due to deficient input.
The defense also presented two expert medical witnesses, Dr. William Durbin and Dr. David Gang. Both defense experts concurred with the prosecution experts that Travis had died as a result of dehydration. Doctors Durbin and Gang, however, believed that the cause of the dehydration was a gastrointestinal virus that manifested itself in an overwhelming expulsion of fluid from the baby's body.
The state presented Doctors Singer and Adelson as rebuttal witnesses. Doctor Singer testified that in preparation for testifying he had reviewed the autopsy report, photographs, Travis's birth and neonatal health records, the reports prepared by the defense's expert witnesses, and tissue slides prepared "from virtually every organ in the body." The prosecutor then asked the doctor if he had an opinion concerning whether Travis had been malnourished. Defense counsel's objection to this question was overruled. After Dr. Singer responded that in his opinion Travis had been malnourished, the prosecutor asked the doctor if he had an opinion concerning the degree of malnutrition. Defense counsel again objected on the ground that such testimony was not proper rebuttal. This objection was overruled, and defense counsel then requested and was granted a continuing objection to that line of testimony.
In addition to stating his opinion concerning the cause of death, Dr. Singer disputed certain of the claims made by the defense's expert witnesses. For example, Dr. Singer disagreed with Dr. Durbin's assertion that Travis had been growing at a consistent rate. He also disagreed with Dr. Durbin's and Dr. Gang's characterization of the fecal material in Travis's diaper and with their contention that microscopic changes in the intestines following death would have made it extremely difficult to detect inflammation. In the course of his testimony, Dr. Singer also expressed opinions on some of the same matters to which Dr. Sturner had testified in the state's direct case and reached similar conclusions to those of Dr. Sturner.
Doctor Adelson was the state's second expert rebuttal witness. He testified that in his opinion the dehydration that caused Travis's death was the result of insufficient intake rather than excessive output. Defense counsel again requested and was granted a continuing objection to this line of testimony on the ground that it was improper rebuttal. Doctor Adelson then explained the reasons why he had concluded that Travis had not suffered a gastrointestinal disorder. Many of these reasons were the same as those testified to by Dr. Dennehy in the state's direct case.
The defendant claims that the testimony of Doctors Singer and Adelson was improper rebuttal because the bulk of the testimony was cumulative. She further contends that some of the testimony pertained to new matters and was therefore improperly presented for the first time in the state's rebuttal case. We shall address the second prong of this argument first.
The defendant points to only two examples of new evidence being presented for the first time on rebuttal. When Dr. Singer was relating why he disagreed with Dr. Durbin's assertion that Travis had grown at a consistent rate, he explained that the growth charts relied upon by Dr. Durbin contained outdated information whereas the growth tables that he used were, to his knowledge, the most accurate and up-to-date tables of the kind. Although Dr. Singer's testimony concerning the accuracy of information contained in the growth charts and tables utilized by the expert witnesses may indeed have been new evidence imparted to the jury for the first time on rebuttal, this information was offered for the sole purpose of explaining how he had come to a conclusion contrary to that of the defense's expert witness. There was no error in the admission of this testimony.
The only other example defendant points to of the presentation of new evidence for the [927] first time on rebuttal is Dr. Adelson's testimony that the degree of Travis's malnutrition may have been mild to moderate. We see no error in the admission of this testimony. The state was not presenting a new theory for the cause of Travis's death. To the contrary, each of the state's four expert witnesses testified that the cause of death was dehydration resulting from insufficient input, that is to say, due to malnutrition.
Returning to the first prong of defendant's argument, she claims that the testimony of Doctors Singer and Adelson was improper rebuttal because it was for the most part cumulative. We note that "the proper function and purpose of rebuttal testimony is to explain, repel, counteract, or disprove the evidence of the adverse party." State v. Donovan, 120 N.H. 603, 607, 419 A.2d 1102, 1105 (1980) (quoting United States v. Chrzanowski, 502 F.2d 573, 576 (3d Cir. 1974)). The decision to permit rebuttal testimony lies in the discretion of the trial justice, whose decision will not be overturned absent an abuse of that discretion. See State v. Simpson, 520 A.2d 1281, 1284 (R.I.1987); State v. Lawrence, 492 A.2d 147, 149 (R.I. 1985); 2 Wharton's Criminal Evidence § 432 (14th Torcia ed. 1986).
Doctor Singer's and Dr. Adelson's testimony was designed to discredit the defense's theory that Travis died as a result of dehydration caused by a gastrointestinal infection. Because of the nature of the medical evidence, it was virtually impossible for the doctors' rebuttal testimony not to repeat certain, or even much, of the testimony that was presented during the state's case in chief. We are of the opinion that the trial justice did not abuse her discretion in admitting this rebuttal testimony.[5]
VIII. THE DENIAL OF DEFENDANT'S REQUEST FOR SURREBUTTAL
Following the state's presentation of Doctors Singer and Adelson as rebuttal witnesses, defense counsel made an equivocal request for surrebuttal. Defense counsel based his request on two grounds. First, counsel argued that it was unfair for the state to present its case last in a manner that defense counsel claimed was improper rebuttal. Second, counsel contended that the state had improperly presented a new theory in its rebuttal case concerning the cause of Travis's death, to which the defense should have the opportunity to respond. In response to the trial justice's inquiry concerning what testimony he wanted to rebut, defense counsel mentioned Dr. Adelson's theory of the cause of death and related matters. He then continued: "There may well be other things, your Honor. I need time to think about it and talk about it with Dr. Gang and Dr. Durbin. I don't really know that after talking with them, we would consider it [to] be worthwhile to put on a surrebuttal case." Prior to ruling on the request, the trial justice stated that she was "unable to see any even mildly significant reason to grant surrebuttal, which is not commonly done, in any event," but planned to hold off on her decision until the following morning. Because of the difficulty of arranging for his expert witnesses to be present the following morning when the likelihood was great that the request for surrebuttal would be denied, defense counsel requested that the trial justice make an immediate ruling. The trial justice obliged and denied the request.
In State v. Byrnes, 433 A.2d 658 (R.I.1981), we quoted with approval the Illinois Appellate Court in Ross v. Danter Associates, Inc., 102 Ill.App.2d 354, 242 N.E.2d 330 (1968), for the standard for permitting surrebuttal testimony:
"The purpose of surrebuttal is to permit the defendant to introduce evidence in refutation or opposition to new matters interjected into the trial by the plaintiff on rebuttal. * * * In other words, fairness requires that the defendant be permitted to oppose new matters presented by plaintiff for the first time which the defendant could not have presented or opposed at the time of presentation of his main case. Contrariwise, the purpose of surrebuttal is [928] not the introduction of evidence merely cumulative to that presented by the defendant in its original presentation. * * * It follows that the defendant has no right to present surrebuttal evidence merely because the plaintiff has presented rebuttal evidence." Byrnes, 433 A.2d at 669-70 (quoting Ross, 102 Ill.App.2d at 367-68, 242 N.E.2d at 336-37).
Even if we agreed with defendant's arguments that the state's rebuttal testimony was improper, which we do not, we would still be constrained to find that the trial justice committed no error in denying the request for surrebuttal. The request for surrebuttal was equivocal, and defense counsel was unable to apprise the trial justice with any degree of certainty regarding what testimony he intended to rebut. More importantly, counsel did not apprise the trial justice concerning the proposed content of the surrebuttal testimony. Without any knowledge regarding the content of the proposed surrebuttal testimony, the trial justice was unable to determine whether it met the standards for the admission of such testimony which are quoted above. We realize that the trial justice did not inquire of counsel concerning the content of the proposed surrebuttal testim6ny, but such an inquiry would have proved futile inasmuch as counsel had not yet conferred with his expert medical witnesses and therefore would have been unable to inform the court concerning the content of any testimony that they might have offered.
Moreover, the denial of the request for surrebuttal was proper because of the equivocal nature of the request. In one breath defense counsel stated that he needed time to think about it and to talk about it with his expert witnesses and in the next breath he asked the trial justice for an immediate ruling on the request. In view of the fact that counsel was not even sure if he intended to put on a surrebuttal case, the trial justice committed no error in denying the request.
IX. THE DENIAL OF DEFENDANT'S PROPOSED JURY INSTRUCTION
Defense counsel submitted the following proposed jury instruction to the trial justice:
"If you find that Travis Young suffered from want of food and proper care as a result of unknowing oversight due to any cause, including the inability of the defendant to remember to feed and care for him, you must find her not guilty on counts one and two."
The trial justice declined to give this proposed instruction. Instead, she instructed " the jury that in order to find defendant guilty of second-degree murder, it must find that five elements were proved beyond a reasonable doubt, specifically that (1) defendant had custody or control of Travis and that Travis was a child under eighteen years of age, (2) Travis was a habitual sufferer for want of food or proper care, (3) defendant wrongfully caused or permitted Travis to be a habitual sufferer, (4) the crime of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care is inherently dangerous to human life, and (5) defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of causing or permitting him to be a habitual sufferer for want of food or proper care. The trial justice explained certain of these elements in further detail, such as the meanings of "habitual," "wrongfully," and "inherently dangerous to human life."
The defendant claims that the trial justice's failure to give the proposed instruction quoted above, or one of similar import, is reversible error. She claims that it was incumbent upon the trial justice to instruct the jury that in order to find her guilty of second-degree murder and of wrongfully permitting a child to be a habitual sufferer, it must find that she intentionally caused or permitted her son to be a habitual sufferer.
Initially we note that the child-neglect statute, § 11-9-5, may be violated by a failure to act on the part of one who has a duty to act, namely, a person who has custody or control of a child under the age of eighteen. Section 11-9-5 reads in pertinent part:
"Cruelty to or neglect of child.—Every person having the custody or control of [929] any child under the age of eighteen (18) years * * * who shall wrongfully cause or permit that child to be an habitual sufferer for want of food * * * [or] proper care * * * shall be guilty of a felony."
Thus the statute may be violated by an omission to act as well as by active conduct. The culpability element contained in the statute is "wrongfully." In her jury charge, the trial justice defined "wrongfully" as something done without legal justification and without legal excuse. We concur with this definition. By imposing criminal liability for wrongful conduct rather than for intentional conduct, our Legislature evinced an intent that the child-neglect statute could be violated even absent a conscious purpose to cause or permit a child to be a habitual sufferer, as long as no legal justification or legal excuse existed for so causing or permitting the child to be a habitual sufferer. Thus § 11-9-5 can be violated by an unintentional omission to act, contrary to the contention of defendant.[6]
Even though one can therefore be guilty of wrongfully permitting a child to be a habitual sufferer upon the basis of an unintentional omission to act, in order for the crime of wrongfully permitting a child to be a habitual sufferer to serve as a predicate felony to a charge of second-degree felony murder, the accused must have had the intent to commit the underlying felony. See State v. Villani, 491 A.2d at 980, 2 Wharton's Criminal Law § 147. Although it is true that the trial justice did not specifically instruct the jury that in order to find defendant guilty of second-degree murder, it must find as one of the elements of the crime that she intentionally caused or permitted her son to be a habitual sufferer for want of food or proper care, we believe that the instructions given were substantially equivalent. The trial justice instructed the jury that it must find that defendant wrongfully, that is, without legal justification or without legal excuse, caused or permitted Travis to be a habitual sufferer. She also instructed that it must find that defendant knew or was aware beforehand that there was a likelihood that Travis's life would be endangered as a result of permitting or causing him to be a habitual sufferer for want of food or proper care. We believe that these two instructions in combination, requiring that the jury find that defendant had no legal justification or no legal excuse for causing her son to be a habitual sufferer and also requiring that the jury find that defendant knew or was aware beforehand that causing or permitting her son to be a habitual sufferer for want of food or proper care was likely to endanger his life, were the functional equivalent to an instruction requiring the jury to find that defendant intentionally caused or permitted her son to be a habitual sufferer. "This failure to distinguish between intent * * * and knowledge is probably of little consequence in many areas of the law, as often there is good reason for imposing liability whether the defendant desired or merely knew of the practical certainty of the results." LaFave and Scott, Substantive Criminal Law, § 3.5(b) at 305 (1986); see also Model Penal Code § 2.02 cmt. 2 at 234 (1985) (the "distinction [between acting purposely and knowingly] is inconsequential for most purposes of liability; acting knowingly is ordinarily sufficient").
The trial justice committed no error in refusing to give the requested instruction.
For the foregoing reasons the defendant's appeal is denied and dismissed, and the judgment of conviction is affirmed. The papers in the case may be remanded to the Superior Court.
BOURCIER, J., did not participate.
[1] Having found Stewart guilty of second-degree murder and wrongfully causing or permitting a child to be a habitual sufferer for want of food and proper care, which were the first two counts of a three-count indictment, the jury did not decide the third count of the indictment — manslaughter. Upon conviction of the underlying count of wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care, that count merged with the felony-murder count. See State v. Baton, 488 A.2d 696, 703-04 (R.I. 1985). Counsel for the state dismissed the second and third counts of the indictment at sentencing pursuant to Rule 48(a) of the Superior Court Rules of Criminal Procedure. Edward Young, Sr., the child's father, was charged with the same offenses in the same indictment. His case has not yet been tried.
[2] Subsequent to her trial, Stewart married Young. Several months later she filed for divorce.
[3] The trial justice did sustain a defense objection to any reference being made to an armed robbery committed by defendant and Young after Travis had died.
[4] This testimony was corroborated by the manager of the supermarket who gave defendant the $20.
[5] We conclude that the two Louisiana cases cited in defendant's brief, State v. Bagwell, 519 So.2d 875 (La.Ct.App.1988), and State v. Dayton, 445 So.2d 76 (La.Ct.App.1984), are inapposite to the facts of this case.
[6] In the case at bar, however, we find that the evidence is sufficient to find that defendant intentionally permitted her son to be a habitual sufferer. See part II B, supra.
7.2.8.3.3.3.4 Hines v. State 7.2.8.3.3.3.4 Hines v. State
HINES
v.
The STATE.
Supreme Court of Georgia.
[871] Larry B. Hill, Lafayette, for appellant.
Herbert E. Franklin, Jr., Dist. Atty., Thurbert E. Baker, Atty. Gen., Jill M. Zubler, Asst. Atty. Gen., for appellee. [869]
[870] FLETCHER, Chief Justice.
While hunting, Robert Lee Hines mistook his friend Steven Wood for a turkey and shot him dead. A jury convicted Hines of felony murder based on the underlying crime of possession of a firearm by a convicted felon, but acquitted him of felony murder based on the underlying felony of misuse of a firearm while hunting. On appeal, Hines contends that the jury's verdict is invalid because the jury cannot acquit him of killing the victim by misusing a firearm, yet convict him of killing the victim by possession of the same firearm, without having made inconsistent factual findings. Because Georgia does not recognize an inconsistent verdict rule and Hines's other enumerations are without merit, we affirm.[1]
Taken in the light most favorable to the jury's verdict of guilty, the evidence at trial showed that, late in the afternoon of April 8, 2001, Hines and some of his friends and relatives went turkey hunting. They split into two groups, with Hines and his friend Randy Stoker hunting together in one area, and the victim, the victim's wife, and Hines's son hunting in a different area, approximately one-fourth mile away. As the sky was growing dark, Hines heard a turkey gobble, "saw it fan out and shot." Hines's shot went through heavy foliage and hit the victim approximately eighty feet away. Immediately thereafter, the victim's wife screamed, "You shot Wood." Hines and his son went for help, but the victim died before help could arrive.
On his return, Hines tried to convince his son and Stoker to take responsibility for the shooting. They both refused. The entire group, however, agreed to say that they did not know who had shot Wood. Hines removed his camouflage clothing and hid his shotgun and hunting gear before the police arrived.
Two days later, Hines admitted he had shot Wood and showed the police where he had hidden his shotgun. Hines's son showed the police where he had hidden Hines's hunting clothing and gear, which included unopened cans of beer. An open beer can and foam insulation wrap that belonged to Hines were found near where Hines had fired the fatal shot.
1. We conclude that the evidence at trial was sufficient for a reasonable trier of fact to have found Hines guilty beyond a [872] reasonable doubt of the crimes for which he was convicted.[2]
2. The jury acquitted Hines of felony murder based on misuse of a firearm while hunting and convicted him of felony murder based on possession of a firearm by a convicted felon. Hines contends that the verdict is void because the jury made inconsistent determinations that he did not cause Wood's death by misusing a firearm, but did cause his death by possessing the same firearm.
Georgia does not recognize an inconsistent verdict rule,[3] which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verdict on a different count. A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury's decision to convict on certain counts and acquit on other counts.[4] Therefore, Hines's enumeration is without merit.
3. Hines contends that a convicted felon's possession of a firearm while turkey hunting cannot be one of the inherently dangerous felonies required to support a conviction for felony murder. "The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony must be inherently dangerous to human life."[5] A felony is "inherently dangerous" when it is "`dangerous per se'" or "`by its circumstances create[s] a foreseeable risk of death.'"[6] Depending on the facts, possession of a firearm by a convicted felon can be an inherently dangerous felony.[7]
In Ford v. State,[8] the defendant was a convicted felon who was unloading a handgun when it accidentally discharged, went through the floor, and killed an occupant of the apartment below. A jury convicted Ford for felony murder based on his felonious possession of a firearm. This Court reversed, finding that, because no evidence showed the defendant knew there was an apartment below him or that the victim was present, his possession of a firearm could not support a conviction for felony murder.[9]
In contrast to Ford, Hines intentionally fired his shotgun intending to hit his target. He had been drinking before he went hunting, and there was evidence that he had been drinking while hunting. He knew that other hunters were in the area and was unaware of their exact location. He also knew that other people visited the area in which he was hunting. He took an unsafe shot at dusk, through heavy foliage, at a target eighty feet away that he had not positively identified as a turkey. Under these circumstances, we conclude that Hines's illegal possession of a firearm created a foreseeable risk of death.[10] Accordingly, Hines's violation of the prohibition against convicted felons possessing firearms was an inherently dangerous felony that could support a felony murder conviction.
4. Hines claims that the trial court improperly allowed a lay witness to offer an expert opinion that went to the ultimate issue before the jury regarding whether Hines misused a firearm while hunting. At trial, [873] the State offered Department of Natural Resources Ranger Greg Hall as an expert on hunter safety and turkey hunting. The trial court refused to recognize Hall as an expert in those areas, but allowed him to testify that he would not teach students in his hunter safety classes that Hines's shot was "permissible or allowable."
Lay witnesses "may state their opinion only when it is based upon their own observations," and their opinions are admissible "only when it is necessary in order for a witness to convey those same observations to the jury."[11] A lay witness may not state his opinion when the facts relied upon by the witness can be "clearly described for the jury, and the jury can rely upon those same facts and reach its own opinion."[12] "Otherwise, by stating an opinion the jury could reach for itself, the lay witness is deemed to have invaded the jury's exclusive province."[13]
Hall's opinion that he would not teach hunter safety students that Hines's shot was "permissible or allowable" was not a proper lay opinion because it was not necessary to convey Hall's observations. Rather, Hall drew a conclusion based on his experience in hunter safety instruction regarding a matter that was not within the ken of the average juror (i.e., that Hines's shot would not be taught as a permissible shot in hunter safety classes). Therefore, Hall's testimony was admissible only as an expert opinion.
However, Hall's experience and credentials were sufficient to qualify him to offer an expert opinion regarding whether Hines's shot was permissible under hunter safety standards. Hall was a certified Georgia law enforcement officer, employed by the Department of Natural Resources in the law enforcement section of its Wildlife Resources Division. He had five years of experience teaching hunter safety courses, and his duties included enforcement of Georgia's hunting laws. The jury heard these qualifications, and Hines had an opportunity to cross-examine Hall regarding his qualifications as well as the substance of his testimony. Additionally, Hall's testimony was probative of whether Hines misused his firearm while hunting, but did not invade the jury's exclusive province to determine whether Hines was guilty of that crime. Accordingly, the trial court did not err in allowing Hall to offer his opinion.[14]
5. Hines asserts that the evidence did not authorize the jury to reject his mistake of fact defense. Under OCGA § 16-3-5, "[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission." Generally, however, "ignorance or mistake of fact constitutes a defense to a criminal charge only if it is not superinduced by the fault or negligence of the party doing the wrongful act."[15] Here, Hines's mistaken belief that Wood was a turkey was due to his own fault in taking an unsafe shot under unsafe conditions at a target that he had not positively identified as legal game. Accordingly, the jury was authorized to reject Hines's mistake of fact defense.
6. Hines's remaining enumerations are also without merit.
(a). The trial court did not commit reversible error in permitting the medical examiner to testify that he had classified Wood's death as a "homicide." The medical examiner testified the classification had nothing to do with the defendant's intent and meant only that "but for the actions of another [874] individual" the decedent would not be dead.[16]
(b). Because the felon in possession of a firearm charge was an underlying felony for one of the felony murder counts, the trial court correctly denied Hines's motion to bifurcate the possession charge from the trial of the other charges.[17]
(c). The trial court did not commit reversible error in leaving in the indictment the references to Hines's habitual violator status and prior conviction for driving under the influence. Hines withdrew the motion to redact his habitual violator status from the indictment, and the reference to the DUI conviction was harmless because Hines referred to his DUI conviction in his statement to the police, which was introduced into evidence without objection.[18]
(d). The trial court was within its discretion in admitting the photographs of the deceased.[19]
(e). Ranger Hall's testimony regarding the hunter safety courses that he teaches did not elevate the standard under OCGA § 16-11-108 (misuse of a firearm while hunting) from a reasonable person standard to a reasonable person who has taken hunter safety courses standard. The trial court's instructions to the jury followed the statutory language, and "absent clear evidence to the contrary," "qualified jurors under oath" are presumed to follow the trial court's instructions.[20]
(f). Hines waived any objection to the trial court's omission of the general charge on the form of the verdict because he did not request the charge, and based on the charges that were given, its omission was not clearly harmful and erroneous as a matter of law.[21]
(g). The trial court did not commit reversible error when it attempted to clarify the jury's continuing confusion regarding the crime of misuse of a firearm while hunting after repeatedly charging the jury correctly on the applicable statute, OCGA § 16-11-108.[22]
(h). The trial court did not err in recharging the jury on only the felony murder/misuse of a firearm counts, when those were the counts on which the jury had questions.[23]
Judgment affirmed.
All the Justices concur, except SEARS, P.J., who dissents.
SEARS, Presiding Justice, dissenting.
Because I conclude that circumstances surrounding Hines's commission of the status felony of possessing a firearm were not inherently dangerous within the meaning of our decision in Ford v. State,[1] I dissent to the majority's affirmance of Hines's conviction of felony murder.
In Ford, this Court held that for a felony to serve as the basis for a felony murder conviction, it had to be inherently dangerous by its very nature or had to be committed under circumstances creating a foreseeable risk of death.[2] We also held that the imputation of malice that justifies the felony murder rule is dependent on the "perpetrator's life-threatening [875] state of mind accompanying [the] commission [of the underlying felony]."[3] In Ford, however, we did not specify how to determine whether a particular felony, either by its nature or as it was committed, was inherently dangerous to human life. Because of the severe punishments that accompany a conviction of murder[4] and because it is illogical to impute malice for purposes of felony murder "`"from the intent to commit a felony not [foreseeably] dangerous to human life,"'"[5] I conclude that for purposes of our felony-murder doctrine, a felony is inherently dangerous per se or as committed if it carries "`a high probability' that [a human] death will result."[6] This standard will ensure that our felony murder rule is not inappropriately expanded by "reducing the seriousness of the act which a defendant must commit in order to be charged with murder."[7]
In the present case, I conclude that the possession of a firearm by Hines was not committed in a fashion that was inherently dangerous and that carried a high probability that death would result. The fact that Hines was hunting, a dangerous sport; the fact that he had been drinking before he went hunting; the fact that he was hunting at dusk; and the fact that he fired a shot when he knew other hunters were in the general area in which he was hunting may establish that Hines was negligent, but do not establish that his acts created a high probability that death to a human being would result, or that he had a "life-threatening state of mind."[8] Moreover, as for the fatal shot, Hines testified that he heard a turkey gobble, that he "saw it fan out," and that he then fired at the object. Even though Hines may not, as stated by the majority, have positively identified his target as a turkey, he had to make a split-second decision regarding his target and concluded, based on hearing a gobble and seeing something "fan out," that the object was a turkey. I cannot conclude that, under these circumstances, the failure of the hunter to identify his target beyond doubt carried a high probability that a human being would be killed or that he acted with a "life-threatening state of mind."[9] The death in this case is clearly a tragic incident, and Hines's conduct before and after the shooting was reprehensible. But the sanction of life in prison for murder should be reserved for cases in which the defendant's moral failings warrant such punishment. Here, the application of the felony murder statute to Hines's actions punishes him more severely than his culpability merits. In this regard, Hines will be serving the same punishment—life in prison—as an arsonist convicted of felony murder who firebombed an apartment that he knew was occupied, causing the death of two young children,[10] and the same punishment as an armed robber convicted of felony murder who entered a store with a firearm and shot and killed a store employee.[11] This result is unwarranted and unnecessary, as Hines could be prosecuted and convicted of an appropriate lesser crime, such as involuntary manslaughter[12] or the misuse of a firearm while hunting.[13]
[876] One final note. Hunting is a time-honored recreational activity encouraged by the State of Georgia and enjoyed by many of our State's citizens. No doubt a number of hunters have probably engaged in negligent hunting practices similar to those in this case. Although I do not condone such careless practices, neither can I agree with subjecting so many hunters to the possibility of spending life in prison when they do not fastidiously follow proper hunting procedures and accidentally shoot a fellow hunter.
For the foregoing reasons, I dissent to the majority opinion.
[1] The crime was committed on April 8, 2001. On August 7, 2001, a grand jury indicted Hines for two counts of felony murder, possession of a firearm by a convicted felon, misuse of a firearm while hunting, possession of a firearm during the commission of a felony, tampering with evidence, and four counts of false statement. The State withdrew three of the false statement counts. On August 31, 2001, the jury acquitted Hines of one count of felony murder and convicted him of all remaining counts. The trial court merged the felon in possession conviction into the felony murder conviction and sentenced Hines to life imprisonment for felony murder followed by five years imprisonment for the possession of a firearm while committing a felony conviction. The court also imposed concurrent sentences on the remaining convictions. Hines moved for a new trial on September 21, 2001, and amended his motion on March 14, 2002. The trial court denied the motion for a new trial on March 26, 2002. Hines filed his notice of appeal on April 23, 2002. The case was docketed in this Court on July 22, 2002, and submitted for decision on September 16, 2002.
[2] See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] Lawrence v. State, 274 Ga. 794, 794, 560 S.E.2d 17 (2002); see also Jackson v. State, 276 Ga. 408, 577 S.E.2d 570 (2003).
[4] Jackson, 276 at 410, n. 3; Dumas v. State, 266 Ga. 797, 799, 471 S.E.2d 508 (1996).
[5] Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).
[6] Id.
[7] See, e.g., Metts v. State, 270 Ga. 481, 482, 511 S.E.2d 508 (1999) (felon in possession of firearm inherently dangerous when defendant pointed loaded, cocked gun at window when he knew person was standing on the other side).
[8] 262 Ga. 602, 423 S.E.2d 255 (1992).
[9] Id. at 602-603, 423 S.E.2d 255.
[10] See also Metts, 270 Ga. at 482, 511 S.E.2d 508; Chapman v. State, 266 Ga. 356, 357-358, 467 S.E.2d 497 (1996) (misuse of firearm while hunting is an inherently dangerous felony that will support felony murder).
[11] Johnson v. Knebel, 267 Ga. 853, 855-856, 485 S.E.2d 451 (1997).
[12] Id. at 857, 485 S.E.2d 451.
[13] Id.
[14] See generally Henry v. State, 265 Ga. 732, 736-737, 462 S.E.2d 737 (1995) (interpreter offered expert opinion although not offered as expert witness); Stewart v. State, 246 Ga. 70, 75, 268 S.E.2d 906 (1980) (court implicitly recognized witness's expert status when it overruled objection to obviously competent witness's expert testimony); Bacon v. State, 225 Ga.App. 326, 327-329, 483 S.E.2d 894 (1997) (same).
[15] Crawford v. State, 267 Ga. 543, 544, 480 S.E.2d 573 (1997) (punctuation omitted).
[16] See Willis v. State, 274 Ga. 699, 701, 558 S.E.2d 393 (2002).
[17] See Haynes v. State, 269 Ga. 181, 183, 496 S.E.2d 721 (1998).
[18] See Cox v. State, 274 Ga. 204, 206, 553 S.E.2d 152 (2001).
[19] See Jenkins v. State, 270 Ga. 607, 609, 512 S.E.2d 269 (1999).
[20] See Smith v. State, 267 Ga. 372, 374, 477 S.E.2d 827 (1996); Dennis v. State, 263 Ga. 257, 258, 430 S.E.2d 742 (1993).
[21] See Camphor v. State, 272 Ga. 408, 413-414, 529 S.E.2d 121 (2000).
[22] See Willingham v. State, 268 Ga. 64, 66, 485 S.E.2d 735 (1997).
[23] See Duffie v. State, 273 Ga. 314, 316, 540 S.E.2d 194 (2001) (when jury requests recharge on particular part of case, court in its discretion may recharge them in full or only upon the point requested).
[1] 262 Ga. 602, 423 S.E.2d 255 (1992).
[2] Id. at 603, 423 S.E.2d 255. Accord Hulme v. State, 273 Ga. 676, 678, 544 S.E.2d 138 (2001).
[3] Ford, 262 Ga. at 603, 423 S.E.2d 255.
[4] See Model Penal Code and Commentaries, Pt. II, § 210.2, p. 36 (Official Draft and Revised Comments 1980).
[5] Ford, 262 Ga. at 603, 423 S.E.2d 255, quoting State v. Goodseal, 553 P.2d 279, 285 (Kan.1976).
[6] People v. Patterson, 49 Cal.3d 615, 262 Cal. Rptr. 195, 778 P.2d 549, 558 (1989). Accord People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1026 (1994).
[7] Patterson, 262 Cal.Rptr. 195, 778 P.2d at 558.
[8] Ford, 262 Ga. at 603, 423 S.E.2d 255.
[9] Id. See also Cable v. Commonwealth, 243 Va. 236, 415 S.E.2d 218 (1992) (under circumstances similar to present case, defendant was convicted of involuntary manslaughter; his conviction was affirmed on appeal, but the dissent, taking the position that no crime had been committed, noted that the Supreme Court of Virginia had only decided one other case (also an involuntary manslaughter case) dealing with hunting accidents).
[10] Wolfe v. State, 273 Ga. 670, 544 S.E.2d 148 (2001).
[11] Taylor v. State, 275 Ga. 461, 569 S.E.2d 520 (2002).
[12] OCGA § 16 5 3.
[13] OCGA § 16 11 108. Hines was in fact convicted of this crime in the present case.
7.2.8.3.3.3.5 People v. Burton 7.2.8.3.3.3.5 People v. Burton
THE PEOPLE, Plaintiff and Respondent,
v.
BOZZIE BRYANT BURTON III, Defendant and Appellant.
Supreme Court of California.
[378] COUNSEL
Patrick J. Sampson, under appointment by the Supreme Court, for Defendant and Appellant.
Evelle J. Younger, Attorney General, William E. James, Assistant Attorney General, and Norman N. Flette, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SULLIVAN, J.
Defendant Bozzie Bryant Burton III, a 16-year-old minor was charged by information with two counts of murder (Pen. Code, § 187) and a third count of assault with intent to commit murder. (Pen. Code, § 217.) After a jury trial he was found guilty as charged on two counts of murder in the first degree and guilty of assault (Pen. Code, § 240), a lesser offense than that charged in the third count, but necessarily included therein. Defendant was sentenced to the term prescribed by law on the two counts of murder and to 180 days in county jail on the count of assault, each sentence to run concurrently. He appeals from the judgment of conviction.
Defendant contends that his confession to the above charges was obtained in violation of the rules announced in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974] and that its admission into evidence over his objection constitutes reversible error. We agree and, therefore, reverse the judgment.
Count Three (Assault on Vicky Price)
On December 13, 1968, at 9:15 p.m., Vicky Price was sitting in her car, which was parked in a parking lot at a shopping center in Compton. Defendant approached her car on the driver's side, put a gun to her head and ordered her to get out of the car. While she was attempting to comply with this order, she heard a voice addressing her from the other side of the car. The next thing she knew defendant's gun had gone off and wounded her. Defendant fled.
Counts One and Two (Murders of Joseph and Isabelle Diosdado)
Six days later on December 19, 1968, about noon, the dead bodies of Joseph and Isabelle Diosdado were discovered lying on the floor of the back [379] room of their feed store in Compton. They had each been shot twice. The cash register was empty and coins were scattered on the floor. The bullet recovered from Vicky Price and the bullets removed from the Diosdados were all fired from the same gun.
On February 14, 1969, at 7 a.m., defendant was arrested and taken to the Compton police station. Upon arrival at the police station, he was placed in a cell near the door, then underwent booking procedures for 30 to 40 minutes, and finally was removed to another cell for questioning. While he was being booked, his father arrived at the police station and asked to see him. The request was refused. The police thereafter advised defendant of his Miranda rights, interrogated him, and obtained a confession.
In fact, defendant made statements on three separate occasions in which he: (1) admitted shooting Vicky Price, but claimed he was strongly under the influence of marijuana; (2) admitted being present at the shooting of the Diosdados, but denied doing the shooting and (3) admitted shooting the Diosdados and explained the circumstances in detail.
When the case was called for trial, defendant moved, pursuant to section 405 of the Evidence Code, to exclude the confession on the ground that it was (1) involuntary and (2) illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436. A hearing was held prior to the selection of the jury. At the conclusion of the hearing the trial judge, without specifically reviewing the evidence, found that the People had met its burden of showing the confession was voluntary, not coerced and not illegally obtained.
Defense counsel pointed out to the court in summation at the end of the hearing that "on several occasions he [defendant] asked to see his parents, and also has heard testimony from a parent, namely the father, that on several occasions he asked to see the minor, and on each occasion each was refused permission one to see the other," but did not specifically urge the defendant's request to see his parents invoked his Fifth Amendment privilege under Miranda v. Arizona, supra, 384 U.S. 436.[1] Since defendant now raises that contention before us, we must first decide whether it was established that defendant did in fact request to see his parents.
[380] Defendant testified: "That morning when I came in [taken to police station for booking] after they had put me in one cell and put me in another cell, and I asked them could I see my parents, and they said, `No'." This testimony was never contradicted. When urged to the court by defense counsel, it elicited no argument from opposing counsel, nor indication of disbelief from the trial court. It was not at all necessary for the trial court to disbelieve this testimony to determine that defendant, who on three separate occasions made a full confession, did so freely and voluntarily after having specifically and intelligently waived his Miranda rights, which a police officer had carefully explained to defendant.
The People urge, however, that the testimony of Officer Armstrong, quoted in the margin,[2] adequately contradicted defendant's testimony, because the officer's testimony indicates he was not with defendant when defendant claimed to make the above statement. Defense counsel indicated to defendant in his questioning with respect to this matter that defendant's request had been directed to Officer Armstrong, that it was the latter who had denied the request and defendant agreed.
We think the above is inadequate to contradict defendant's testimony. At no time did Officer Armstrong or any other officer deny defendant requested to see his parents. We are persuaded, after a close reading of the testimony presented at the section 405 hearing, that whether defendant did or did not request to see his parents was not considered a major issue at that time. It has become so upon appeal. Defendant's testimony that he requested to see his parents was uncontradicted at that time, and stands unchallenged now when viewed upon review except for the quoted testimony of Officer Armstrong, which in itself is inadequate to meet the People's burden of showing that defendant did not say what he testified he did say. Therefore, we are satisfied that the record adequately establishes that defendant requested to see his parents and that this request was denied.
It is unclear from the record whether this request was made during transfer from the booking cell to the interview room or in the interview room itself. However, the request was made just prior to the commencement of interrogation and at a time when defendant's father was at the police station.
[381] Prior to commencing questioning, but subsequent to the denial of defendant's request to see his parents, a police officer carefully explained to defendant his Miranda rights. The record shows that when thus advised of his rights, defendant indicated to the officer that he understood such explanation and that he waived these rights. Thereafter he made a full confession on three separate occasions.
(1) Defendant, although not claiming this confession to have been involuntary, contends that it was unlawfully obtained since his request to see his parents at or near the commencement of interrogation was an invocation of his Fifth Amendment privilege under the rules established in Miranda v. Arizona, supra, 384 U.S. 436, and further elaborated in this state in People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal. Rptr. 817, 441 P.2d 625]; People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580, 40 A.L.R.3d 1323] and People v. Randall (1970) 1 Cal.3d 948 [83 Cal. Rptr. 658, 464 P.2d 114]. We agree.
The United States Supreme Court in Miranda, noting that incommunicado interrogation is at odds with an individual's right not to be compelled to incriminate himself, stated: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." (Miranda v. Arizona, supra, 384 U.S. 436, 458 [16 L.Ed.2d 694, 714].) In Miranda, the Supreme Court set down four warnings which must be given persons in custodial surroundings, and then elaborated on the procedure subsequent to the giving of such warnings, as follows: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Fn. omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (Miranda v. Arizona, supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) In People v. Randall, supra, 1 Cal.3d 948, 954, we observed that "This obligation on the police to entirely terminate custodial interrogation upon invocation of the Fifth Amendment privilege is one of the primary `protective devices' fashioned by Miranda. [Fn. omitted.]"
In cases where the suspect makes no express assertion, the crucial question is what behavior is necessary to constitute an invocation of the Fifth Amendment privilege. We have stated several times that no particular [382] form of words or conduct is necessary to constitute such an invocation. "A suspect may indicate such a wish in many ways." (People v. Ireland, supra, 70 Cal.2d 522, 535.) "To strictly limit the manner in which a suspect may assert the privilege, or to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent." (People v. Randall, supra, 1 Cal.3d 948, 955.)
(2) Any words or conduct which "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time [fn. omitted]" (People v. Randall, supra, 1 Cal.3d 948, 956) must be held to amount to an invocation of the Fifth Amendment privilege. In Fioritto we held that a refusal by a suspect to sign a waiver of his constitutional rights amounted to an invocation of his Fifth Amendment privilege. In Ireland we held that when the suspect stated "Call my parents for my attorney" he thereby asserted the privilege. In Randall we held that a suspect's telephone call to his attorney in and of itself invoked the privilege.
In this case we are called upon to decide whether a minor's request to see his parents "reasonably appears inconsistent with a present willingness on the part of the suspect to discuss his case freely and completely with police at that time." (People v. Randall, supra, 1 Cal.3d 948, 956.) It appears to us most likely and most normal that a minor who wants help on how to conduct himself with the police and wishes to indicate that he does not want to proceed without such help would express such desire by requesting to see his parents. For adults, removed from the protective ambit of parental guidance, the desire for help naturally manifests in a request for an attorney. For minors, it would seem that the desire for help naturally manifests in a request for parents. It would certainly severely restrict the "protective devices" required by Miranda in cases where the suspects are minors if the only call for help which is to be deemed an invocation of the privilege is the call for an attorney. It is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian. It is common knowledge that this is the normal reaction of a youthful suspect who finds himself in trouble with the law.
The People advance two arguments in opposition. First, they contend that defendant's request to see his parents did not clearly give notice to the police that he was asserting his Fifth Amendment privilege, since such request could have been made for many purposes. We rejected the same argument in Randall. There the People argued that a telephone call to an attorney could manifest a desire to get bail, or merely inform him [383] of his arrest just as well as manifesting a desire to remain silent or have the attorney present, and that the equivocal nature of the telephone call made it distinguishable from Ireland where the defendant upon being asked whether he had anything to say, responded "Call my parents for my attorney." We there said: "In any event, we are not disposed to assume as a general matter that a telephone conversation with an attorney such as occurred in the case at hand is not a manifestation of a suspect's intention to assert his privilege.... The People have the burden of demonstrating that a questioned confession meets the constitutional tests of admissibility. [Citations.] When, as appears here, the suspect to the knowledge of the police completes a call to his attorney, the People — if they contend that the fact of such a call should not be considered an invocation of the privilege — must affirmatively demonstrate that the suspect was not thereby indicating a desire to remain silent until he had obtained the full advice of his counsel." (People v. Randall, supra, 1 Cal.3d 948, 957.)
(3) Similarly here we are not disposed to assume as a general matter that a request by a minor at or near the inception of interrogation to see his parents is not an indication of that minor's unwillingness to continue talking with police or of a desire for help in how to conduct himself with police and thus not a manifestation of that minor's intention to assert his privilege. Therefore, the People have the burden of affirmatively demonstrating that such was not the desire on the part of defendant. Here, the People did not meet this burden.
Secondly, the People contend that because defendant's request occurred prior to the interrogation and prior to the giving of the Miranda warning, it was unlikely that the police would understand the request as an invocation of the privilege. The Supreme Court clearly stated in Miranda, as quoted, ante, page 381, that "[i]f the individual indicates ... at any time prior to ... questioning, that he wishes to remain silent, the interrogation must cease." (Fn. omitted; italics added.) (Miranda v. Arizona, supra, 384 U.S. 436, 473-474.) Indeed, this argument really seems to be a further elaboration of the lack of notice argument discussed above, and the short answer is that the People have offered nothing in the way of affirmative proof that defendant did not intend to assert his privilege.
(4) Accordingly we hold that when, as in the instant case, a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence [384] demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege. The police did not so cease in this case, the confession obtained by the subsequent questioning was inadmissible, and, therefore, the admission of such confession was prejudicial per se and compels reversal of the judgment on all counts. (People v. Randall, supra, 1 Cal.3d 948, 958; and cases there cited.) (5) The admission of this confession constitutes reversible error even though it was subsequently preceded by a knowing and intelligent waiver of the privilege, as we held under identical circumstances in Fioritto, Ireland and Randall, because: "After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary." (People v. Randall, supra, 1 Cal.3d 948, 958.)
We now turn to defendant's contention that it was error, in the circumstances of this case, to instruct the jury on first degree felony murder, because the underlying felony was armed robbery. He claims that armed robbery is an offense included in fact within the offense of murder and, therefore, under the rule announced in People v. Ireland, supra, 70 Cal.2d 522, 538-540 as applied in People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22], such offense cannot support a felony-murder instruction.[3]
"Murder," as defined in Penal Code section 187, "is the unlawful killing of a human being ... with malice aforethought." In Ireland, we said: "The felony-murder rule operates (1) to posit the existence of malice aforethought in homicides which are the direct causal result of the perpetration or attempted perpetration of all felonies inherently dangerous to human [385] life, and (2) to posit the existence of malice aforethought and to classify the offense as murder of the first degree in homicides which are the direct causal result of those six felonies specifically enumerated in section 189 of the Penal Code. [Citations.]" (People v. Ireland, supra, 70 Cal.2d 522, 538.)
(6) The net effect of this imputation of malice by means of the felony-murder rule is to eliminate the possibility of finding unlawful killings resulting from the commission of a felony to be manslaughter, rather than murder. (7) Even intentional killings can be mitigated to voluntary manslaughter if the killing occurred with sufficient provocation to arouse the reasonable man to a fit of passion or sudden quarrel or if the defendant did not attain the mental state of malice due to mental illness, mental defect or intoxication. (People v. Stines (1969) 2 Cal. App.3d 970, 976 [82 Cal. Rptr. 850].) (8) Unintentional killings in the appropriate circumstances may well be mitigated to involuntary manslaughter, or even not be subject to criminal penalty.
In Ireland the "defense ... rested its entire case upon a contention that defendant's mental state at the time of his act — as affected by cumulative emotional pressure and the ingestion of alcohol and prescribed medications was not that required for murder." (People v. Ireland, supra, 70 Cal.2d 522, 531.) The defendant in that case shot his wife with a gun. The judge instructed the jury on the felony-murder rule, utilizing assault with a deadly weapon as the supporting felony. The effect of such instruction, as Ireland pointed out (70 Cal.2d at p. 539, fn. 13) was, therefore, to substantially eviscerate the defense of diminished capacity to negative malice, since malice was imputed. The net effect of this imputation would be to hold that all intentional killings accomplished by means of a deadly weapon were murder regardless of the circumstances and could never be mitigated to manslaughter, since all such killings included in fact an assault with a deadly weapon. We held that such effect was impermissible; "This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)
In Wilson the underlying felony which supported the felony-murder instruction was burglary — specifically entry coupled with the intent to commit assault with a deadly weapon. Since in Ireland we had held that assault with a deadly weapon could not support an instruction on second degree felony murder, in Wilson we were faced with the question whether [386] it could support first degree felony murder because coupled with an entry. We concluded there was no meaningful distinction between assaults with deadly weapons indoors and outdoors, saying: "Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault. Furthermore, the burglary statute in this state includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a burglary in which the felonious intent is solely to assault with a deadly weapon." (People v. Wilson, supra, 1 Cal.3d 431, 441.) Thus, even though burglary is one of the felonies specifically enumerated in Penal Code section 189, we excluded burglary from the operation of the felony-murder rule in those cases where the intended felony was assault with a deadly weapon for the reasons stated in Ireland.
Defendant contends that the language and reasoning of Ireland and Wilson compel us to hold that armed robbery is included in fact within murder and, therefore, cannot support a felony-murder instruction.[4] He argues that armed robbery includes as a necessary element assault with a deadly weapon by the following chain of reasoning: robbery "is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear" (Pen. Code, § 211); thus robbery is assault (force or fear directed against a person) coupled with larceny, which when accomplished by means of a deadly weapon necessarily includes in fact assault with a deadly weapon; any charge of murder with respect to a killing arising out of armed robbery then necessarily includes in fact assault with a deadly weapon and cannot support a felony-murder instruction.
The net effect of defendant's argument would be to eliminate the application of the felony-murder rule to all unlawful killings which were committed [387] by means of a deadly weapon, since in each case the homicide would include in fact assault with a deadly weapon, even if the homicide resulted from the commission of one of the six felonies (arson, rape, mayhem, robbery, burglary or lewd and lascivious acts upon the body of a child) enumerated in section 189 of the Penal Code. It is, of course, possible to interpret our language in Ireland[5] and Wilson to mean merely that if the facts proven by the prosecution demonstrate that the felony offense is included in fact within the facts of the homicide and integral thereto, then that felony cannot support a felony-murder instruction. However, we reject this interpretation of that language and its consequent assertion that the felony-murder rule has been abolished in all homicides accomplished by means of a deadly weapon as unwarranted both in logic and in principle.
We conclude that there is a very significant difference between deaths resulting from assaults with a deadly weapon, where the purpose of the conduct was the very assault which resulted in death, and deaths resulting from conduct for an independent felonious purpose, such as robbery or rape, which happened to be accomplished by a deadly weapon and therefore technically includes assault with a deadly weapon. Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct. In both Ireland and Wilson the purpose of the conduct which eventually resulted in a homicide was assault with a deadly weapon, namely the infliction of bodily injury upon the person of another. The desired infliction of bodily injury was in each case[6] not satisfied short of death. Thus, there was a single course of conduct with a single purpose.
However, in the case of armed robbery, as well as the other felonies enumerated in section 189 of the Penal Code, there is an independent felonious purpose, namely in the case of robbery to acquire money or property belonging to another. (9) Once a person has embarked upon a course of conduct for one of the enumerated felonious purposes, he comes directly within a clear legislative warning — if a death results from his commission of that felony it will be first degree murder, regardless of the [388] circumstances. (10) This court has reiterated numerous times that "The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." (People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130].) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof.
Wilson, when properly understood, does not eliminate this rule as urged by defendant, but merely excludes from its effect one small area of conduct, which would be irrationally included, due to the unusual nature of burglary. The key factor as indicated earlier in the enumerated felonies is that they are undertaken for a felonious purpose independent of the homicide. (11) In the normal case, burglary is also undertaken with an independent felonious purpose, namely to acquire the property of another. In such instances the felony-murder rule would apply to burglary as well, even if the burglary were accomplished with a deadly weapon. However, in Wilson the entry was coupled with the intent to commit assault with a deadly weapon, the defendant in that case bursting through the bathroom door intending to do violent injury upon the body of his wife. We were there presented with the exact situation we faced in Ireland, namely a single purpose, a single course of conduct, except that in Wilson the single course of conduct happened to include an entry, and thus technically became burglary all of which brought the incident within the ambit of section 189 of the Penal Code. We merely excluded from the first degree felony-murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon because we found them indistinguishable from those in Ireland. We regard the holding in Wilson as specifically limited to those situations where the entry is coupled with the intent to commit assault with a deadly weapon.
Defendant in this case by embarking upon the venture of armed robbery brought himself within the class of persons who the Legislature has concluded must avoid causing death or bear the consequences of first degree murder. (12) The trial judge quite correctly instructed on felony murder based on homicides directly resulting from the commission of armed robbery.
[389] (13) Defendant next contends that section 405 of the Evidence Code, by making the trial judge's determination of the voluntariness of a confession final, violates his right to trial by jury embodied in article I, section 7 of the state Constitution. He argues that it was error for the trial judge not to instruct the jury to determine for itself the question of the voluntariness of a confession, once the trial judge had made a preliminary determination of voluntariness.
Prior to the enactment of section 405 of the Evidence Code, effective January 1, 1967, the law was as defendant now urges. We held in People v. Gonzales (1944) 24 Cal.2d 870 [151 P.2d 251] that once the trial judge had made an initial determination that the confession was voluntary, the defendant was entitled to present evidence to the jury for its final determination as to voluntariness. In People v. Bevins (1960) 54 Cal.2d 71 [4 Cal. Rptr. 504, 351 P.2d 776], we held that the court had a duty to instruct the jury sua sponte to determine for itself the voluntariness of the confession, and if it found it involuntary, then to disregard the confession altogether.
The Legislature by enacting section 405 of the Evidence Code specifically rejected this rule. In the legislative committee comment to the section, the reason for the change is carefully explained: "The existing law is based on the belief that a jury, in determining the defendant's guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary."
This procedure has received at least the tacit approval of the United States Supreme Court (see Jackson v. Denno (1963) 378 U.S. 368, 378 [12 L.Ed.2d 908, 916, 84 S.Ct. 1774, 1 A.L.R.3d 1205]). The identical procedure is utilized to determine the question whether evidence has been obtained in violation of the law of search and seizure and has been approved by this court. (People v. Gorg (1955) 45 Cal.2d 776, 780-781 [291 P.2d 469].) The Legislature's finding that a defendant will be better protected by thrusting the full responsibility upon the trial judge is entirely [390] reasonable. Moreover, the Legislature has quite reasonably indicated that it is removing from the jury a task that was in all practical terms impossible — in short, nothing of substance has been removed from the province of the jury. Defendant has suggested no reason why the voluntariness of a confession must be determined by a jury while the legality of the seizure of evidence need not be. Neither has defendant cited any authority indicating that a determination of the voluntariness of a confession is an inherent part of the right to a jury trial expressed in article I, section 7 of the state Constitution. We reject defendant's contention that section 405 of the Evidence Code violates article I, section 7 of the state Constitution.
Defendant finally contends that the instruction given with respect to proof of intent (CALJIC No. 73)[7] conflicted with and vitiated the instruction given on diminished capacity (CALJIC No. 305.1 (New) 1967 Pocket Part).[8] The gist of the instruction on intent was to limit lack of sound mind to idiocy, lunacy, or insanity and thus order the jury to find the requisite sound mind supporting the requisite intent unless the defendant was an idiot, a lunatic or insane. Furthermore, this instruction directed the jury to assume defendant was sane. However, the instruction on diminished capacity quite correctly informed the jury that a "substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause" could negate the ability to form specific required mental states. There is certainly a potential conflict in the instruction which could well mislead the jury.
We need not now decide whether such a conflict would be fatal, but for purposes of guidance of the court upon retrial direct the trial court's attention [391] to CALJIC (3d ed.)[9] numbers 3.34, 3.35 and 8.77 where the problem has been perceived and very adequately answered. In the note on use of the instruction on the proof of intent (CALJIC (3d ed.) No. 3.34), the editors suggest that trial judges delete the second paragraph directing the jury to assume defendant is of sound mind if there is evidence of diminished capacity. It is noteworthy that in the revised instruction on intent, sound mind is left undefined and the sentence referring to idiots, lunatics or insane people has been deleted. We are satisfied that this is a correct and fully adequate way to handle the situation.
The judgment is reversed.
Wright, C.J., Peters, J., Tobriner, J., Mosk, J., and Burke, J., concurred.
McCOMB, J.
I dissent. I would affirm the judgment for the reasons expressed [392] by Mr. Justice Allport in the opinion prepared by him for the Court of Appeal, Second Appellate District, Division Three (People v. Burton, 2 Crim. 18352, filed June 17, 1971, certified for nonpublication).
[1] The People do not object that the contention that defendant's request to see his parents invoked his Fifth Amendment privileges has been raised too late. We agree, since one of the stated grounds for objecting to the admission of the confession was that it was illegally obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436, and defendant's testimony with respect to his request to see his parents was highlighted to the court by defense counsel in his summation.
[2] "Except for the time lapse. I was with him from the house to the Police Department, and he was delivered by me and one or two other officers to the booking area. At that time when he was turned over to the jailer. I then left and went to my office and, as I testified before, a time lapse of approximately 30 to 40 minutes — I am not sure. I cannot testify to the exact time — that I was away from him during the booking processing."
[3] The trial judge instructed the jury, in pertinent part, as follows: "Concerning the charges of murder in Counts I and II of the information, there are two sets of principles of law which may apply, depending on your findings of fact. [Par.] The first is called the felony-murder doctrine which I will define for you and which only applies if you find that there was a robbery or attempted robbery committed by the defendant. [Par.] The second set of principles contains all possible doctrines of law that can apply to a murder charge other than the felony-murder doctrine, and I will define these principles for you also. [Par.] Now first, here is the felony-murder doctrine: [Par.] The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the commission or attempt to commit the crime of robbery and where there was in the mind of the perpetrator the specific intent to commit such crime of robbery is murder of the first degree. [Par.] The specific intent to commit robbery and the commission or attempt to commit such crime must be proved beyond a reasonable doubt. [Par.] If you find that the defendant was intoxicated at the time of the alleged offense, you should consider his intoxication in determining whether the defendant had the specific intent to commit robbery." (CALJIC No. 302.F (2d rev.).) (Italics added.)
[4] At oral argument counsel for defendant claimed that People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847] added further support to his position. In Sears a husband, living apart from his wife, unlawfully entered her home armed with an iron bar, attacked her and, in the ensuing fracas, killed his stepdaughter. We held that the felony-murder instruction predicated upon burglary committed by an entry coupled with the intent to commit assault with a deadly weapon was erroneous under the authority of Ireland and Wilson. The distinguishing factor between Wilson and Sears was the fact that the evidence could be construed to show that the husband entered with the intent to commit assault only upon the wife and that therefore the assault upon the stepdaughter was a collateral felony. However, this court concluded that the doctrine of transferred intent applied, so that the entry with intent to commit assault upon the wife was the sole underlying felony. The problem of transferred intent is not raised in the instant case. Sears insofar as pertinent to this case in no way expanded or altered Wilson.
[5] "We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (Fn. omitted.) (People v. Ireland, supra, 70 Cal.2d 522, 539.)
[6] Wilson involved two separate entries, one into the apartment through the front door and one into the bathroom. Each was coupled with the intent to commit assault with a deadly weapon. However, the crucial entry for the purpose of the first degree felony-murder instruction, was the entry into the bathroom by defendant bearing a shotgun for the purpose of inflicting violent injury upon the body of his wife.
[7] CALJIC No. 73 provides: "The intent with which an act is done is manifested by the circumstances attending the act, the manner in which it is done, the means used, and the sound mind and discretion of the person committing the act. All persons are of sound mind who are neither idiots nor lunatics nor affected with insanity.
"For the purposes of the issues now at trial you must presume that the defendant was sane at the time of his alleged conduct which, it is charged, constituted the crime described in the information."
[8] CALJIC No. 305.1 (New) provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, intoxication or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder. Thus, if you find that the defendant's mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, premeditate, deliberate, or form an intent to kill, you cannot convict him of a wilful, deliberate and premeditated murder of the first degree. Also, if you find that his mental capacity was so diminished that he did not, or you have a reasonable doubt whether he did, harbor malice aforethought, as it has been defined for you, you cannot find him guilty of murder of either the first or second degree."
[9] CALJIC No. 3.34 provides: "The intent with which an act is done is shown by the circumstances attending the act, the manner in which it is done, the means used, and the soundness of mind and discretion of the person committing the act.
"[For the purposes of the case on trial, you must assume that the defendant was of sound mind at the time of his alleged conduct which, it is charged, constituted the crime described in the information.]"
CALJIC No. 3.35 provides: "When a defendant is charged with a crime which requires that a certain specific intent or mental state be established in order to constitute the crime or degree of crime, you must take all the evidence into consideration and determine therefrom if, at the time when the crime allegedly was committed, the defendant was suffering from some abnormal mental or physical condition, however caused, which prevented him from forming the specific intent or mental state essential to constitute the crime or degree of crime with which he is charged.
"If from all the evidence you have a reasonable doubt whether defendant was capable of forming such specific intent or mental state, you must give defendant the benefit of that doubt and find that he did not have such specific intent or mental state."
CALJIC No. 8.77 provides: "If you find from the evidence that at the time the alleged crime was committed, the defendant had substantially reduced mental capacity, whether caused by mental illness, mental defect, intoxication, or any other cause, you must consider what effect, if any, this diminished capacity had on the defendant's ability to form any of the specific mental states that are essential elements of murder and voluntary manslaughter.
"Thus, if you find that the defendant's mental capacity was diminished to the extent that you have a reasonable doubt whether he did, maturely and meaningfully, premeditate, deliberate, and reflect upon the gravity of his contemplated act, or form an intent to kill, you cannot find him guilty of a willful, deliberate and premeditated murder of the first degree.
"Also, if you find that his mental capacity was diminished to the extent that you have a reasonable doubt whether he did harbor malice aforethought, you cannot find him guilty of murder of either the first or second degree.
"Furthermore, if you find that his mental capacity was diminished to the extent that he neither harbored malice aforethought nor had an intent to kill at the time the alleged crime was committed, you cannot find him guilty of either murder or voluntary manslaughter."
7.2.8.3.3.3.6 Barnett v. State 7.2.8.3.3.3.6 Barnett v. State
Eric Jose BARNETT, Appellant,
v.
The STATE of Oklahoma, Appellee.
Court of Criminal Appeals of Oklahoma.
[960] James Dennis, Sapulpa, OK, attorney for defendant at trial.
O.R. Barris, III, Asst. District Attorney, Okmulgee, OK, attorney for the State at trial.
Lee Ann Jones Peters, Okla. Indigent Defense System, Norman, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General, Lori S. Carter, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
[961]
OPINION
LEWIS, Vice-Presiding Judge.
¶ 1 Eric Jose Barnett, Appellant, was tried by jury and found guilty of second degree felony murder, in violation of 21 O.S.2001, § 701.8(2), in the District Court of Okmulgee County, Case No. CF-2009-2.[1] The jury sentenced Appellant to twenty-three (23) years imprisonment. The Honorable H. Michael Claver, District Judge, pronounced judgment and sentence accordingly.[2] Mr. Barnett appeals the following propositions of error:
1. The trial court's refusal to instruct the jury on Appellant's theory of defense deprived him of his rights to a fair trial and to the due process of law, in violation of the Sixth and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;
2. The trial court's exclusion of extrinsic evidence concerning Vernon Sutton's violent character deprived the defendant of his right to present a defense, to a fair trial, and to due process guaranteed by the Sixth and Fourteenth Amendments to the Federal Constitution and by Article 2, §§ 7, 19, and 20 of the Oklahoma Constitution;
3. Prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial and due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and in violation of Article 2, §§ 7, 19, 20, and 21 of the Oklahoma Constitution;
4. Mr. Barnett was denied effective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the Federal Constitution and Article 2, §§ 7 and 20 of the Oklahoma Constitution;
5. Appellant's conviction for second degree felony murder must be vacated because the merger doctrine prohibits using the act that caused the decedent's death as a predicate felony in a felony murder prosecution;
6. Under the unique circumstances of this case, imposition of a twenty-three year sentence for a seventeen-year-old offender is excessive and should be modified;
7. The accumulation of errors deprived Appellant of a fair trial and reliable verdict.
FACTS
¶ 2 Appellant lived with his mother and younger sister in Okmulgee, Oklahoma. On the evening of August 21, 2008, he and two friends were standing outside his house when the decedent, Vernon Sutton, and another man pulled up to the house, got out of the car, and walked toward them. Sutton apparently knew one of the men standing with Appellant from prison. Appellant noticed that Sutton had one blue eye. A black man with one blue eye had raped his mother years before and been convicted of the crime. Appellant went inside and told his mother that the man who had raped her was standing in the yard.
¶ 3 Appellant's mother came outside to confront Sutton, who was in fact the convicted rapist who had assaulted her. She asked him if he remembered her. Sutton smiled and said he knew where he was. Appellant's mother angrily demanded that he leave. When he refused, Appellant picked up a length of lumber and went toward Sutton. Sutton prepared to fight, but a passing Okmulgee police officer intervened. When Appellant's mother explained who Sutton was, the officer made him leave the premises. Sutton smirked at Appellant and his mother and told them he would be back, and that he "had something" for them.
[962] ¶ 4 Almost a month later, Appellant received a text from one of his friends, Breylon Griffin, who had been present during the confrontation with Vernon Sutton. Griffin's text told Appellant "dat n*gg*r's ova here" at another house in Okmulgee. Appellant called Griffin and learned that Sutton was visiting with some other men at a house in Okmulgee. Appellant called Jennifer McNac and asked her to give him a ride to that location. She initially refused but then changed her mind. Appellant was already walking toward the location when McNac picked him up.
¶ 5 As they neared the house, Appellant put the hood of his jacket over his head and covered his face with a bandana. When they reached the house where Vernon Sutton and others were standing, Appellant leaned out and fired three or four shots, fatally striking Sutton in the chest and abdomen. Five days after the shooting, Appellant told police in an interview that he was out of town when the shooting happened. At trial, Appellant admitted the shooting, but said he killed Sutton because he was afraid Sutton would come back to harm his family.
ANALYSIS
¶ 6 In Proposition One, Appellant challenges the trial court's refusal to give requested instructions on self-defense and defense of another. We review the trial court's rulings on requested instructions for abuse of discretion. Dill v. State, 2005 OK CR 20, ¶ 11, 122 P.3d 866, 869. An instruction on a theory of defense is required "when evidence has been introduced at trial that is adequate to raise that defense, i.e., to establish a prima facie case" of that defense. Malone v. State, 2007 OK CR 34, ¶ 22, 168 P.3d 185, 196. Appellant's claim must fail. Evidence that Appellant feared Sutton does not raise an issue of self defense or defense of another, where the evidence showed that Appellant had no reasonable belief that he or his family were in imminent danger of being attacked or killed by Sutton at the time Appellant used deadly force. Instruction Nos. 8-2, 8-6, OUJI-CR(2d); Perryman v. State, 1999 OK CR 39, ¶ 9, 990 P.2d 900, 903-04. Proposition One is denied.
¶ 7 In Proposition Two, Appellant argues that the trial court erred in excluding certain evidence offered by the defense tending to prove the violent character of the victim. We review these rulings for abuse of discretion, and find none. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. Proposition Two requires no relief.
¶ 8 Proposition Three claims that prosecutorial misconduct denied Appellant a fair trial. Due to the lack of a timely objection to any of the challenged statements, Appellant has waived all but plain error. Matthews v. State, 2002 OK CR 16, ¶ 38, 45 P.3d 907, 920. This Court will reverse for prosecutorial misconduct where grossly improper and unwarranted argument affects a defendant's rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. The comments challenged on appeal were not improper. Warner v. State, 2006 OK CR 40, ¶ 179, 144 P.3d 838, 888; Hogan v. State, 2006 OK CR 19, ¶ 91, 139 P.3d 907, 936. Proposition Three is denied.
¶ 9 Appellant argues in Proposition Four that he was denied the effective assistance of counsel. Appellant also filed an application for evidentiary hearing on his Sixth Amendment claims pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals, Title 22, Ch. 18 (2011), App. Ineffective counsel claims must overcome a strong initial presumption that counsel rendered reasonable professional assistance, by showing: (1) that trial counsel's performance was deficient; and (2) that he was prejudiced by the deficient performance. If Appellant demonstrates that counsel's representation was objectively unreasonable under prevailing professional norms, he must also show that he suffered prejudice, defined as a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial or sentencing would have been different Hancock, 2007 OK CR 9, ¶¶ 106-107, 155 P.3d 796, 821. To warrant an evidentiary hearing under Rule 3.11(B)(3)(b)(i), Appellant's application and supporting materials must set forth "sufficient information to show this Court by clear and convincing evidence there is a strong possibility trial counsel was [963] ineffective for failing to utilize or identify the complained-of evidence." Reviewing Appellant's application and his arguments, we find no evidentiary hearing is required and no relief is warranted. Proposition Four is without merit.
¶ 10 In Proposition Five, Appellant argues that his conviction for second degree felony murder violates the merger doctrine, or independent crime requirement, recognized by our case law in Quillen v. State, 2007 OK CR 22, 163 P.3d 587, and earlier cases. Although the State charged Appellant in Count 2 with first degree malice aforethought murder, the trial court also instructed the jury on the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm.[3] The jury acquitted Appellant of first degree murder, but convicted him of second degree murder in the commission of the underlying felony.[4] Counsel's failure to object to the second degree felony murder instruction at trial waived all but plain error. Eizember v. State, 2007 OK CR 29, ¶ 110, 164 P.3d 208, 236. We therefore consider whether Appellant's conviction of second degree murder in the commission of this underlying felony is plain error; that is, an error which goes "to the foundation of the case," or which takes from a defendant "a right which was essential to his defense." Simpson v. State, 1994 OK CR 40, ¶ 12, 876 P.2d 690, 695.
¶ 11 Under this Court's merger doctrine, or independent crime requirement, "[i]n order for the taking of human life in the commission of a felony to constitute murder, the precedent felony must constitute an independent crime not included within the resulting homicide." Sullinger v. State, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473. The merger doctrine is a historical feature of our case law, and is not based on any statutory or constitutional text. Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 589.[5] This Court in Quillen recently reaffirmed its adherence to the merger doctrine as it "has been applied in Oklahoma for many years," first being mentioned in Jewell v. Territory, 4 Okla. 53, 43 P. 1075 (Okla.1896), and "a part of Oklahoma's jurisprudence ever since." Quillen, 2007 OK CR 22, ¶ 3, 163 P.3d 587, 589.
¶ 12 In Quillen, the defendant was a drug addict who gave birth at the home of a friend. Believing that her baby was healthy, she took the baby home. The defendant also feared that child welfare officials would take the baby away from her at the hospital because of her cocaine use. Later that evening, the baby looked pale and his breathing seemed shallow. The defendant noticed blood in his diaper when she changed him. She called her grandmother for advice and then tied some string tightly around the baby's umbilical cord stump, and later fell asleep with the baby at her side. In the night, the baby bled to death through the umbilical cord, due to the defendant's failure to seek medical care. Id., 2007 OK CR 22, ¶ 5 n. 3, 163 P.3d at 590 n. 3.
¶ 13 The State charged the defendant with first degree child abuse murder. The trial court also instructed the jury on the lesser included offense of second degree murder, in the commission of the underlying felony of [964] child neglect.[6] The jury convicted the defendant of this lesser offense. Id., 2007 OK CR 22, ¶ 1, 163 P.3d at 589. The appellant in Quillen argued on appeal that this conviction violated the merger doctrine, because her commission of felony child neglect—failing to get medical care for her newborn child—was not a felony independent from the homicidal act. The State argued that the plain language of the second degree murder statute authorized a conviction where the killing of a human being results from the commission of any felony other than the unlawful acts enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶¶ 3-4, 163 P.3d at 589. The State reasoned that this Court's application of the merger doctrine to void a conviction authorized by the plain language of the statute would defeat legislative intent, and urged the Court to abandon the merger doctrine. Id.
¶ 14 This Court in Quillen rejected the State's arguments, finding that the merger doctrine was "not based on statutory language" but derived from policy considerations:
[W]ithout the merger doctrine, any person who commits a felony, other than one enumerated for First Degree Felony Murder, from which a death that is not excusable or justified results, can be prosecuted for Second Degree Felony Murder. Although the State argues that such concerns are no longer viable, we find this argument unpersuasive. We further disagree with the State's argument that the merger doctrine is contra to clear legislative intent. The fact that this Court has recognized the merger doctrine for over one hundred years without legislative intervention lends credibility to the conclusion that this Court's application of the merger doctrine is not at odds with legislative intent.
Id., 2007 OK CR 22, ¶ 4, 163 P.3d at 589-90 (citing Tarter v. State, 1961 OK CR 18, ¶¶ 40-44, 359 P.2d 596, 602). Based on the facts, the Court found that the merger doctrine required reversal of the murder conviction:
[T]he felony charge upon which Appellant's Second Degree Felony Murder conviction is predicated, Child Neglect, was not separate from the act which caused the death. Therefore, we find that the underlying felony merged into the homicide and could not be used to sustain the Second Degree Felony Murder conviction.
Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 590. The Court also held that the appropriate remedy was to modify appellant's conviction to the underlying felony of child neglect. In this regard, the Court reasoned:
In finding the Appellant guilty of Second Degree Felony Murder the jury necessarily found the evidence sufficient to prove the felony of Child Neglect beyond a reasonable doubt. Therefore, we modify Appellant's sentence to this lesser crime and modify the sentence to fifteen years imprisonment.
Id., 2007 OK CR 22, ¶ 5, 163 P.3d at 589-90.
¶ 15 Appellant argues persuasively that the predicate felony of using a vehicle to facilitate the intentional discharge of a firearm is not independent from the homicidal act of shooting Vernon Sutton, and that his conviction therefore violates the merger doctrine set forth in Quillen. This case sharply presents the question of whether the merger doctrine remains an appropriate limitation of the statutory definition of second degree felony murder. After careful consideration, the Court abandons this judicially created limitation on second degree felony murder and overrules Quillen.
¶ 16 Since our decision in Quillen, the Court has continued its deliberations about the nature and purpose of the merger doctrine. Two judges dissented in Quillen. Judge Lumpkin's dissent questioned the need for the Court's modern application of the historic merger doctrine. He noted that at time of Jewell v. Territory in 1896, murder was not separated by degrees in the territorial statute, and felony murder—which carried a sentence of death or life imprisonment—included all felonies, as it had at common law.[7] The merger doctrine as we know [965] it today is found in the territorial supreme court's syllabus in Jewell, appended as a clause following a statement of the statutory felony murder rule:
Homicide is murder, under the third subdivision [of the murder statute], "when perpetrated without any design to effect death, by a person engaged in the commission of any felony"; and this means some felony as defined by statute other than that of the killing itself
Jewell, 4 Okla. 53, 43 P. 1075 (syllabus)(emphasis added). Judge Lumpkin observed in Quillen that the "source of the language added to the statutory felony murder provision, and the language relied upon by this Court for years, is not clearly discernable" from the Jewell opinion, and the additional clause "was nothing more than a judicial attempt to legislate an amendment to a statute passed by the Legislature." Quillen, 2007 OK CR 22, 163 P.3d at 591 (Lumpkin, P.J., concurring in part and dissenting in part). Moreover, though the territorial supreme court in Jewell certainly mentioned the merger doctrine, the facts of that case did not call for its application. Thus, the doctrine's inaugural appearance on our jurisprudential scene was in dicta. Id.
¶ 17 Judge Lumpkin argued that the merger rule set out in Jewell and followed in later cases[8] originally developed in response to the draconian scope of the common law felony murder rule and similar statutes, like the territorial felony murder statute in Jewell. Those crimes were invariably capital, and without a merger doctrine, the commission of any felony that resulted in death, including circumstances that might ordinarily be manslaughter, would be subsumed in the broad statutory definition of murder and carry a possible death sentence. The merger doctrine was a humane, judicially crafted policy designed "to limit the application of firstdegree felony-murder when the Legislature had failed to do so." Quillen, 2007 OK CR 22, ¶¶ 5-6, 163 P.3d at 591-92 (Lumpkin, P.J., concurring in part and dissenting in part).
¶ 18 Evidence for this historical understanding of the merger doctrine abounds. In Tarter v. State, 1961 OK CR 18, ¶¶ 41-44, 359 P.2d 596, 601, the Court's discussion gave some background on the merger doctrine without directly applying it. The defendant in Tarter was convicted of murder. On appeal he argued the trial court should have instructed the jury on the lesser offense of manslaughter. Id., 1961 OK CR 18, ¶¶ 1, 29, 359 P.2d at 600. The State responded that because the defendant killed the victim in the commission of an assault with a deadly weapon, he was at least guilty of felony murder, and no manslaughter instruction was required. Id., 1961 OK CR 18, ¶ 40, 359 P.2d at 601. The Court rejected this suggestion out of hand, citing the syllabus from Jewell, and its statement that the defendant must commit "some felony as defined by statute other than that of the killing itself." Id., 1961 OK CR 18, ¶ 41, 359 P.2d at 601-02.
¶ 19 The Court in Tarter also cited cases from Kansas and New York. In the New York case, People v. Wagner, 245 N.Y. 143, 156 N.E. 644 (1927), the defendant was convicted of felony murder based on the commission of a felonious assault on the victim that resulted in the death. The Court of Appeals of New York found this conviction was in error:
We think it self-evident that the trial judge committed error when he charged that the killing of Peter Basto may have been effected while the defendant was engaged in a felonious assault upon him, and, basing their conclusion thereupon, might determine that the defendant was guilty of murder [966] in the first degree. If this were not error, then every intentional killing, by means of a dangerous weapon, regardless of deliberation and premeditation, would constitute the crime of murder in the first degree, since every such killing must be preceded by the direction of such a weapon against the body of the person killed, which in itself would constitute a felonious assault. The law is clear, however, that the precedent felony must constitute an independent crime not included within the resulting homicide.[9]
Id. at 646 (citing People v. Huter, 184 N.Y. 237, 77 N.E. 6 (1906); People v. Spohr, 206 N.Y. 516, 100 N.E. 444 (1912)) (emphasis added). The Kansas case, State v. Fisher, 120 Kan. 226, 243 P. 291 (1926), also shows how the merger doctrine narrowed the definitional scope of the common law felony murder rule and statutes that followed it:
It is the contention of the state that if murder is committed in the perpetration or the attempt to perpetrate any other felony it is murder in the first degree; hence, that if the boy, John Michael Foley, met his death at the hands of defendant while defendant was committing an assault with a deadly weapon, under such circumstances that it amounted to a felony under any statute pertaining thereto, the offense is murder in the first degree. This contention cannot be sustained. The effect of it would be to make any homicide, not excusable or justified, which, by our statute, is defined to be manslaughter in any of the degrees or murder in the second degree, to constitute murder in the first degree. In other words, there could, under this interpretation of the statute, be no such thing as any lower degree of homicide than murder in the first degree.
Id. at 293; see also, T. Corcoran, Felony Murder in New York, 6 Fordham L.Rev. 43, 48 (1937)(arguing that "[m]urder in the second degree and some cases of manslaughter in the first and second degrees involve felonious assault on the person killed and yet if these assaults were not held to be merged in the homicide they would all be murder in the first degree," and noting that "[i]t is manifest that the doctrine of felony murder is in need of some reformation in New York").
¶ 20 Judge Lumpkin maintained in Quillen that the policy concerns justifying the merger doctrine in older cases like Wagner and Fisher—i.e., that every felonious assault resulting in death could be punished as murder without the necessity of proving malice—are no longer present in Oklahoma law.
First-degree felony murder is now limited to a handful of enumerated felonies. Thus, the English common law policy decisions to escape the onerous penalties imposed on felony convictions are no longer viable. In addition, a plain reading and literal application of § 701.8(2) also will not subsume other forms of homicide. In addition to second-degree felony murder, a homicide is second-degree murder when committed by an act which is imminently dangerous to another person and evincing a depraved mind, but without any premeditated design to affect the death of any individual. Homicide is first-degree manslaughter when a killing is committed: 1) during the commission of a misdemeanor; 2) in the heat of passion; or 3) in an unnecessary attempt to prevent the person killed from committing a crime. Construing the second-degree murder statute together with the first-degree manslaughter statute, it is clear the Legislature intended for any felony, as defined by statute, to serve as the basis for a second-degree felony murder conviction unless the defendant was acting while in the heat of passion or in an unnecessary attempt to resist a crime. Further, second degree manslaughter is committed by a person who acts negligently, but does not commit a felony. Therefore, applying § 701.8 to any felony, not listed in § 701.7(B), does not subsume second-degree manslaughter.
[967] Quillen, 2007 OK CR 22, ¶ 9 n. 4, 163 P.3d at 593 n. 4 (Lumpkin, P.J., concurring in part and dissenting in part)(internal citations omitted).
¶ 21 Judge Lumpkin concluded that the merger doctrine is a legal remnant that now frustrates, rather than advances, the proper enforcement of the statutes on felony murder.
The Oklahoma Legislature has clearly enunciated its intent and set out the criteria for both first and second-degree felony murder ... Section 701.8(2) is recognition by the Legislature that a homicide can occur during the commission of felonies other than those specifically enumerated under the first-degree felony murder statute and under circumstances not warranting a first-degree murder charge Appellant's failure to seek medical attention for her son, which was inherently and potentially dangerous to her son's life in light of the facts and circumstances surrounding both the predicate felony and the homicide, brings this case within the historical definition of second degree felony murder [C]riminal liability for the baby's murder based upon Appellant's willful failure to seek medical attention (commission of the felony of child neglect) is an appropriate application of the second-degree felony murder statute.
Quillen, 2007 OK CR 22, ¶¶ 9-13, 163 P.3d at 593 (Lumpkin, P.J., concurring in part and dissenting in part)(emphasis added).
¶ 22 In my Quillen dissent, I argued that the Legislature "clearly authorized a conviction for second-degree murder in a case like this, where a homicide is `perpetrated by a person engaged in the commission of any felony'" not enumerated in the first degree felony murder statute. Id., 2007 OK CR 22, ¶ 3, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part). In addition to the merger doctrine, the Court had already placed significant limitations on the plain language of the second degree felony murder statute, including the requirements of "a nexus between the underlying felony and the victim's death," and that the underlying felony "must be inherently or potentially dangerous to human life." Id. (quoting Malaske v. State, 2004 OK CR 18, ¶ 5, 89 P.3d 1116, 1118).
¶ 23 Given these limitations, I found the Court's application of the merger doctrine unnecessary, and the unusual remedy of modifying the murder conviction to the underlying felony inconsistent with the merger theory itself:
Despite the narrow purpose to which the merger rule is directed, the Court's decisions in this area now poise it to void a felony murder conviction whenever there is either too much criminal nexus or not enough: too little relationship between the felony and the killing and liability will not attach; too direct a relationship and the lesser and greater offenses "merge" to the same effect. To these judicial complications of a seemingly straightforward legislative policy, today's opinion adds a nonsequitur: the lesser predicate crime first merges with the more serious act of killing and then (astonishingly) re-emerges to serve as the offense of conviction. The criminal homicide into which this lesser crime merged is then set at naught; its prosecution is abated forever. Previous findings of a merger violation resulted in reversal and remand for a new trial on a proper homicide charge. The remedy imposed here is unprecedented.
Quillen, 2007 OK CR 22, ¶ 4, 163 P.3d at 595 (Lewis, J., concurring in part and dissenting in part) (citing Massie, 1976 OK CR 174, 553 P.2d 186; Tucker, 1984 OK CR 36, 675 P.2d 459; and Sullinger, 1984 OK CR 44, 675 P.2d 472) (emphasis added).
¶ 24 Today the Court finds that what began as an early judicial limitation on the harshness of felony murder at common law could readily usurp the modern Legislature's constitutional authority to reasonably define the crime of felony murder.
The truth is that in this jurisdiction, no act is a crime unless made so by statute, and where the crime is defined by statute such definition must be relied on rather than the common law or some other definition of the act so classified as a crime.
Traxler v. State, 96 Okl.Cr. 231, 243, 251 P.2d 815, 829 (1953)(emphasis added). In interpreting [968] and applying the criminal statutes, our purpose is to ascertain the intent of the Legislature, State v. District Court of Oklahoma County, 2007 OK CR 3, ¶ 11, 154 P.3d 84, 86, as evidenced primarily "in the ordinary meaning of the words of the statute construed in view of the connection in which they are used, and of the evil to be remedied." Traxler, 96 Okl.Cr. at 244, 251 P.2d at 829.
¶ 25 The Legislature has defined second degree felony murder as the killing of a human being perpetrated by a person "engaged in the commission of any felony other than" the enumerated felonies in the first degree felony murder statute. 21 O.S.2001, § 701.8(2). The term "any" is defined by Webster's Third New International Dictionary 97(Unabridged ed., 1986) as:
1b: one, no matter what one: EVERY— used as a function word esp. in assertions or denials to indicate one that is selected without restriction or limitation of choice; 2b: ALL—used as a function word to indicate the maximum or whole of a number or quantity.
We therefore interpret the phrase "any felony" in section 7018(2) to mean every felony other than those enumerated in the first degree felony murder statute. See also, State v. Williams, 24 S.W.3d 101, 115 (Mo.App.2000)(construing legislature's use of the phrase "any felony" as "all-comprehensive" in a felony murder statute).
¶ 26 In State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966)(en banc ),[10] the Supreme Court of Washington rejected the common law merger doctrine as a limitation on the statutory definition of second degree felony murder. In Harris, the defendant assaulted the victim, knocking her purse from her hand. When a .22 revolver tumbled from her purse, the defendant picked up the pistol and said, "I will kill all you sons of bitches." He then fired the pistol, fatally wounding the victim. In a non-jury trial, the court found no intent to kill the victim, but convicted the defendant of second degree felony murder, ruling that the defendant killed the victim in the commission of assault with a dangerous weapon. Id. at 663.
¶ 27 The defendant challenged the conviction on appeal, urging the supreme court to "adopt the New York `merger rule,' which is that the precedent felony in a felony murder must constitute a crime not included in and independent of the homicide." Id.; see also Wagner, 156 N.E. at 646 (N.Y.1927), supra. Washington's felony murder statute, like Oklahoma's, distinguished between the crimes of first and second degree felony murder. The statute then in effect provided that the killing of a human being is murder in the second degree when "perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated" in the first degree felony murder statute. Id. (quoting Wash. Rev.Code § 9.48.040(2)).
¶ 28 The supreme court in Harris acknowledged that the harshness of New York's felony murder rule might justify the application of a merger doctrine, but declined to impose the merger limitation on Washington's murder statute. The Court reasoned that the legislative classification of felony murder and other criminal homicides by degrees with distinct factual elements rendered a merger doctrine unnecessary:
Our legislature ... has made its own distinction in the matter of homicides occurring while committing, attempting to commit, or in withdrawing from the scene of certain felonies. If the felony be robbery, rape, burglary, larceny or arson in the first degree, the killing, though without design to effect death, is murder in the first degree. If the felony be other than the ones just named, the killing is murder in the second degree. A homicide not coming within the first and second-degree murder statutes, and being neither excusable nor justifiable, is manslaughter.[11]
[969] The legislature has also specifically designated certain killings as manslaughter, i.e., killing unborn quick child;[12] killing by a vicious animal;[13] killing by overloading passenger vessel; killing by reckless operation of steamboat or engine; killing by intoxicated physician while treating a patient;[14] killing as result of unlawful keeping of explosives.[15] It has also added to our lexicon the crime of negligent homicide by means of a motor vehicle.[16]
In light of the distinctions made in our own statutes, we see no reason why we should adopt the New York `merger rule,' i.e., that the precedent felony, if an assault on the person killed, is merged in the resulting homicide....
In Washington, the felony murder must occur in the commission of, an attempt to commit, or in withdrawing from the scene of a felony, and must not be separate, distinct, and independent from it. Our legislature further avoided the merger problem by specifically designating the felonies which result in a first or seconddegree felony murder charge. Since an assault felony comes within the ambit of second-degree murder, the state must prove intent and premeditation in order to secure a first-degree murder conviction. Thus the rationale behind the New York merger rule is not applicable in Washington.
Id. at 664-65 (internal citations omitted). We find the reasoning of Harris reflective of the situation in Oklahoma, and conclude that the current legislative classification of criminal homicides by their respective degrees, defined by distinct factual elements, obviates the need for the merger doctrine.
¶ 29 The case before us today well illustrates the objectionable effects of the merger doctrine when applied to the facts. Riding from a protected position in a passing vehicle, Appellant repeatedly fired on an unsuspecting group of people standing near the street and killed a man. This fatal attack was neither excusable nor justifiable, and therefore it was a criminal homicide, either murder or manslaughter, under Oklahoma law. 21 O.S.2001, § 692 (homicide is either murder; manslaughter; excusable homicide, or justifiable homicide). The jury at trial clearly rejected the charge of malice aforethought murder. However, when the jury found Appellant guilty of second degree felony murder, it necessarily concluded, beyond a reasonable doubt, that Appellant feloniously used a vehicle to facilitate the intentional discharge of a firearm; that he did so "in conscious disregard for the safety of any other person or persons"; and that he caused the death of a human being as a result.
¶ 30 Application of the merger doctrine in this case, by reversing Appellant's second degree murder conviction and modifying his conviction to the underlying felony, would be a miscarriage of justice. The mens rea associated with this type of drive-by shooting is either the malice aforethought of first degree murder, i.e., "that deliberate intention unlawfully to take away the life of a human being," 21 O.S.Supp.2006, § 701.7(A), which can be "inferred from the fact of killing," and "may be formed instantly" before the fatal act, 21 O.S.2001, §§ 702, 703; or the "depraved mind" emblematic of second degree murder, i.e., perpetrating an imminently dangerous act, "regardless of human life, although without any premeditated design to effect the death of any particular individual." 21 O.S. 2001, § 701.8(1). As a matter of history and policy, it is entirely reasonable for the Legislature to punish the killing of a person during the commission of this type of dangerous [970] felony as murder in the first or second degree.
¶ 31 The felony crimes of assault and battery, child neglect, caretaker abuse and neglect, operation of a motor vehicle while intoxicated, unlawful possession and use of firearms and explosives, using a vehicle to facilitate intentional discharge of a firearm, and a host of other felonies, can have deadly consequences. The Legislature is well within reason to define killings during the commission of these dangerous felonies as murder, even when the felony is not "independent" of the act or acts resulting in death. Indeed, it is when such felonies destroy life that they are most deserving of the infamy and punishment of murder. Continued adherence to the merger doctrine, and the remedy as established in Quillen, would, in many instances, nullify the proper exercise of the Legislature's power to define and punish murder. We will not follow that course.
¶ 32 Appellant killed a human being in the commission of using a vehicle to facilitate intentional discharge of a firearm. He is, at the very least, guilty of second degree murder under the plain language of section 701.8(2) of Title 21. His conviction for that offense is authorized by statute, and no plain error occurred. To the extent that Quillen, and earlier cases recognizing the merger doctrine as a limitation on the statutory definition of second degree felony murder, including Massie, 1976 OK CR 174, ¶ 16, 553 P.2d 186, 191, Tucker, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461, Sullinger, 1984 OK CR 44, ¶ 3, 675 P.2d 472, 473, and State v. McCann, 1995 OK CR 70, ¶ 3, 907 P.2d 239, 240, are inconsistent with our ruling today, those cases are overruled. Proposition Five is denied.
¶ 33 In Proposition Six, Appellant argues that his sentence is excessive. We find that the sentence of twenty-three (23) years imprisonment does not shock the conscience of the Court and requires no relief. Rea v. State, 2001 OK CR 28, ¶ 5, 34 P.3d 148, 149.
¶ 34 Appellant in Proposition Seven argues that reversal or modification is required due to cumulative error. As we find no error, there is no accumulation of error. Proposition Seven is denied. Smith v. State, 2007 OK CR 16, ¶ 81, 157 P.3d 1155, 1179.
DECISION
The Judgment and Sentence of the District Court of Okmulgee County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2011), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
A. JOHNSON, P.J. and C. JOHNSON, J. specially concur.
LUMPKIN, J. and SMITH, J. concur.
A. JOHNSON, Presiding Judge, SPECIALLY CONCURRING.
¶ 1 I agree with the decision to abandon the merger doctrine as a limitation to second degree felony murder. The purpose of the merger limitation—to bring fairness to the potential harshness of the felony murder rule—is a sound one. A fair and consistent application of this particular limitation, however, is difficult. In Quillen v. State, 2007 OK CR 22, 163 P.3d 587, this Court extended the application of the merger doctrine to the non-assaultive crime of felony child neglect in an apparent attempt to achieve a fair and appropriate balance between moral culpability and criminal liability in that case. This broad application of the merger limitation and the difficulty of its application in Quillen lead me to reexamine the continued validity of the merger limitation in this case. There may be future cases that test the wisdom of this decision. Nevertheless, I am confident that this Court's expressed commitment to maintaining the distinction between the different degrees and forms of murder, manslaughter and other homicide crimes will resolve any issues of unfair over-charging and undeserved convictions and sentences.
C. JOHNSON, Judge, SPECIALLY CONCURRING.
¶ 1 It is with some hesitation that I concur in the Court's decision in this case to abandon the merger doctrine. The merger doctrine operates to preserve the different degrees of homicide crimes. I understand the [971] position of the majority regarding the historical context in which the merger doctrine developed, but I do not agree that the problem the merger doctrine seeks to remedy has been eliminated by the legislative classification of differing degrees of homicide. Second Degree Felony Murder allows a person who commits any felony other than one enumerated for First Degree Felony Murder, from which a death results that is not excusable or justified, to be prosecuted for Second Degree Felony Murder. The prosecutors make the determination of which crime to charge and the abandonment of the merger doctrine allows them, under these circumstances, unrestrained discretion to charge the greater offense of Second Degree Felony Murder to the exclusion of lesser degrees of homicide. Thus, in the absence of the merger doctrine, it will be even more important that district courts give instructions on lesser forms of homicide where such instructions are supported by the evidence as is required by Shrum v. State, 1999 OK CR 41, 991 P.2d 1032.
[1] Appellant was originally charged with Count 1, conspiracy to commit murder, and Count 2, murder in the first degree. The jury acquitted Appellant of these charges and found him guilty of the lesser included offense of second degree felony murder in the commission of using a vehicle to facilitate the intentional discharge of a firearm, in violation of 21 O.S.Supp.2007, § 652(B).
[2] Appellant must serve 85% of the sentence, pursuant to 21 O.S.Supp.2007, § 13.1(2).
[3] Title 21, O.S.Supp.2007, section 652(B) defines the elements of this offense:
Every person who uses any vehicle to facilitate the intentional discharge of any kind of firearm, crossbow or other weapon in conscious disregard for the safety of any other person or persons, including an unborn child as defined in Section 1-730 of Title 63 of the Oklahoma Statutes, shall upon conviction be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term not less than two (2) years nor exceeding life.
[4] Homicide is second degree murder "[w]hen perpetrated by a person engaged in the commission of any felony other than the unlawful acts set out in [21 O.S.Supp.2006, § 701.7(B)]," i.e., the first degree felony murder statute. (emphasis added). 21 O.S.2001, § 701.8(2).
[5] Courts "have generally declined to hold that the merger doctrine implicates any principle of constitutional law." State v. Godsey, 60 S.W.3d 759, 774 (Tenn.2001). The merger doctrine we consider today is entirely separate from the principle of merger of offenses under the constitutional prohibition against multiple punishments for the "same offense" under the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Perry v. State, 1993 OK CR 5, ¶ 7, 853 P.2d 198, 200-01 (convictions for both felony murder and underlying felony violate prohibition against double jeopardy).
[6] 21 O.S.Supp.2010, § 843.5(C).
[7] 4 W. Blackstone, Commentaries on the Laws of England 200-01 (1st. ed. 1769)("Also in many cases where no malice is expressed the law will imply it: ... And if one intends to do another felony, and undesignedly kills a man, this is also murder").
[8] The merger doctrine has been directly applied in only a few cases in more than a century. E.g., Massie v. State, 1976 OK CR 174, 553 P.2d 186, and Tucker v. State, 1984 OK CR 36, 675 P.2d 459 (both holding second degree murder convictions for killing in the commission of beating or injuring child violated the merger doctrine, as the felonious acts were not independent of the homicides); and Sullinger, 1984 OK CR 44, 675 P.2d 472 (holding second degree felony murder conviction violated the merger doctrine, where underlying felony of aggravated assault and battery on corrections officer was not independent from the acts causing death).
[9] The Court in Tarter noted that the Oklahoma murder statute in effect at the time (and since Jewell v. Territory) had been copied "almost verbatim" from the New York statute. Both of these statutes at the time defined the killing of a human being during the commission of any felony as an offense of capital (in New York, "first degree") murder. Tarter, 1961 OK CR 18, ¶ 43, 359 P.2d at 602.
[10] The Supreme Court of Washington's opinion in Harris was later abrogated by statutory amendment as recognized by In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981, 983, and that abrogation was later reversed by statutory amendment as recognized by In re Personal Restraint of Alvarez, 127 Wash.App. 1050, 2005 WL 1300720 (Wash.App.2005)(not in P.3d).
[11] Compare 21 O.S.2001, § 711 (defining elements of manslaughter in the first degree).
[12] Compare 21 O.S.2001, § 714 (procuring destruction of unborn quick child as first degree manslaughter).
[13] Compare 21 O.S.2001, § 717 (owner of mischievous animal that kills another is guilty of manslaughter in the second degree).
[14] Compare 21 O.S.2001, § 712 (killing of patient by intoxicated physician is manslaughter in the first degree).
[15] Compare 21 O.S.2001, § 1368 (unlawful possession of explosives a felony); 21 O.S.Supp. 2010, § 1767.1 (use or threatened use of explosives).
[16] Compare 47 O.S.Supp.2005, § 11-903 (negligent homicide involving reckless operation of vehicle).
7.2.8.3.3.3.7 People v. Washington 7.2.8.3.3.3.7 People v. Washington
v.
James Edwards WASHINGTON, Defendant and Appellant.
Rehearing Denied June 23, 1965.
[44 Cal.Rptr. 444] [402 P.2d 132] [62 Cal.2d 779] Erling J. Hovden, Public Defender, Paul G. Breckenridge, Jr., and James L. McCormick, Deputy Public Defenders, for defendant and appellant.
Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., and Gordon Ringer, Deputy Atty. Gen., for plaintiff and respondent.
TRAYNOR, Chief Justice.
Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen.Code, §§ 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen.Code, §§ 187, 189, 190, 190.1.) [1] He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.
Shortly before 10 p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.
The Attorney General, relying on People v. Harrison, 176 [62 Cal.2d 780] Cal.App.2d 330, 1 Cal.Rptr. 414, contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, and People v. Podolski, 332 Mich. 508, 52 N.W. 2d 201, which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.
Defendant would distinguish the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Austin, 370 Mich. 12, 120 N.W.2d 766; see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.) A distinction based on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted [44 Cal.Rptr. 445] [402 P.2d 133] of murder for the killing of any person by another who is resisting the robbery.
'Murder is the unlawful killing of a human being, with malice aforethought.' (Pen.Code, § 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475, 261 P.2d 1 (concurring opinion).) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal. 2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: 'All murder * * * committed in the perpetration or attempt to perpetrate * * * robbery * * * is murder of the first degree.' Thus, even though section 189 [62 Cal.2d 781] speaks only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868, 236 P.2d 570; People v. Boss, 210 Cal. 245, 249, 290 P. 881.)
When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of the killing. Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony. To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.
The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent.Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is not served by punishing them for killings committed by their victims.
It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.' (Holmes, The Common Law, p. 58.)
A defendant need not do the killing himself, however, [62 Cal.2d 782] to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249, 290 P. 881; People v. Kauffman, 152 Cal. 331, 334, 92 P. 861.) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, [44 Cal.Rptr. 446] [402 P.2d 134] 38 So. 182, 2 L.R.A.,N.S., 897; see also Wilson v. State, 188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)
Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill. Under such circumstances, 'the defendant for a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261 P.2d 1, 7 (concurring opinion)), and it is unnecessary to imply malice by invoking the felony-murder doctrine. [2] To invoke the felony-murder doctrine to imply malice in such a case is unnecessary and overlooks the principles of criminal liability that should govern the responsibility of one person for a killing committed by another. (See Hart and Honore , Causation in the Law, pp. 296-299; Hall, Criminal Law, 2d ed., pp. 270-281; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)
To invoke the felony-murder doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony-murder doctrine applied, however, [62 Cal.2d 783] the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, overruled by Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; see People v. Corkery, 134 Cal.App. 294, 25 P.2d 257.)
The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. (See e. g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) § 201.2, comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 34-43, 45 (1949-1953), 3 Stephen, History of the Criminal Law of England 57-58; 74-75 (1883); Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) [3] Although it is the law in this state (Pen.Code, § 189), it should not be extended beyond any rational function that it is designed to serve. Accordingly, for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design. (Commonwealth v. Campbell, 7 Allen 541, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338, 1 L.R.A. 211; Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A., N.S., 719; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; See also People v. Ferlin, 203 Cal. 587, 597, 265 P. 230.) Language in People v. Harrison, 176 Cal.App.2d 330, 1 Cal. [44 Cal.Rptr. 447] [402 P.2d 135] Rptr. 414, inconsistent with this holding, is disapproved.
On his appeal from the robbery conviction, defendant contends that he did not participate in the robbery. He testified that on the evening of the robbery he was with Ball and a man named Johnson. He did not know that they intended to commit robbery. He was 'pretty drunk' at the time and fell asleep in the automobile. When he awoke the automobile was parked near Carpenter's gasoline station, [62 Cal.2d 784] and Ball and Johnson were absent. He left the automobile to look for them. As he approached the station, Johnson ran from the vault. Carpenter shot just as Johnson ducked around a corner and dropped the moneybag. Carpenter's bullet hit defendant who fell wounded near the bag that Johnson had dropped.
Defendant's testimony was corroborated by the testimony of James Johnson, an inmate of the state prison for an unrelated crime at the time of defendant's trial. Johnson testified that he was the man who ran from the vault with the moneybag. Carpenter controverted their testimony, however, by identifying defendant as the man who ran from the vault. The evidence is therefore sufficient to support defendant's conviction of robbery.
Defendant contends, however, that the trial court on its own motion should have instructed the jury to view Carpenter's testimony with caution on the ground that it tended to be self-serving because Carpenter 'was relieved of any criminal or civil responsibility for the shootings by implicating (defendant) and the deceased in an attempted robbery.' All testimony that favors a witness' real or imagined self-interest, however, does not require a cautionary instruction. The testimony of a robbery victim does not come from a 'tainted source' as does the testimony of an accomplice (People v. Robinson, 43 Cal.2d 132, 141, 271 P.2d 865; People v. Wallin, 32 Cal.2d 803, 808, 197 P.2d 734; Code Civ.Proc., § 2061, subd. 4), nor is his testimony like that of a complaining witness in a sex offense, which may be motivated by malice and beyond effective contradiction because it relates to matters that ordinarily take place in secrecy. (People v. Putnam, 20 Cal.2d 885, 891-892, 129 P.2d 367.) In the present case, there was no such danger of perjury, and defendant had a fair opportunity to controvert the witness' testimony. The court properly instructed the jury that they were the exclusive judges of the credibility of the witnesses and informed them that they might consider such matters as the relation of the witnesses to the case and their interest therein. Although the court could have made 'such comment on the evidence and the testimony and credibility of any witness as in its opinion (was) necessary for the proper determination of the case * * *' (Pen.Code, § 1127), it was not required to give a cautionary instruction.
The judgment is affirmed as to defendant's conviction of [62 Cal.2d 785] first degree robbery and reversed as to his conviction of first degree murder.
PETERS, TOBRINER, PEEK and *WHITE, JJ., concur.
BURKE, Justice (dissenting).
I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:
'Henceforth in committing certain cirmes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoot first.'
[44 Cal.Rptr. 448] [402 P.2d 136] Obviously this advance judicial absolution removes one of the most meaningful deterrents to the commission of armed felonies.
In the present case defendant's accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414 (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened fire, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers 'initiated' the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim or someone defending the victim seizes an opportunity to shoot first when confronted by robbers with a deadly weapon (real or simulated), any 'gun battle' is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns, [62 Cal.2d 786] and whether it is an innocent person or an accomplice who dies.
Section 187 of the Penal Code declares that 'Murder is the unlawful [1] killing of a human being, with malice aforethought.' Section 188 states that 'Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away * * * life * * *. It is implied * * * when the circumstances attending the killing show an abandoned and malignant heart.'
Section 189 specifies that 'All murder which is perpetrated by * * * any * * * kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate * * * robbery (or five other named felonies [2]), is murder of the first degree * * *.'
So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now Pen.Code, § 189.)
In People v. Milton (1904) 145 Cal. 169, 171-172, 78 P. 549, 550, the court pointed out that a killing is unlawful which is 'perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime' the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.
This principle has been repeatedly upheld by this court (see People v. Raber (1914) 168 Cal. 316, 318, 143 P. 317; People v. Witt (1915) 170 Cal. 104, 107-108, 148, P. 928; People v. Denman (1918) 179 Cal. 497, 498-499, 177 P. 461; People v. Boss (1930) 210 Cal. 245, 249, 290 P. 881; People v. Valentine (1946) 28 Cal.2d 121, 135, 169 P.2d 1; People v. Coefield (1951) 37 Cal.2d 865, 868, 236 P.2d 570), and is expressly [44 Cal.Rptr. 449] [402 P.2d 137] recognized by the majority in the instant case with the declaration (p. 445) that 'inadvertent or accidental [62 Cal.2d 787] killings are first degree murders when committed by felons in the perpetration of robbery.' (Italics added.) The majority further expressly recognize the rule (p. 445) that 'A defendant need not do the killing himself * * * to be guilty of murder. * * * All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills' in the perpetration of the robbery. (See People v. Boss, supra.)
Despite these declared principles long established and effective in their deterrence of crimes of violence the majority now announce (p. 445) that 'When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen. * * * Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. * * * To include such killings within section 189 would expand the meaning of the words 'murder * * * which is committed in the perpetration * * * (of) robbery * * *' beyond common understanding.' (Italics added.)
But section 189 carries not the least suggestion of a requirement that the killing must take place to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule which they purport to recognize that an accidental and unintentional killing falls within the section? How can it be said that such a killing takes place to perpetrate a robbery?
Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172, 78 P. 549.) This truism was confirmed in People v. Bostic (1914) 197 Cal. 754, 761, 141 P. 380, 383, wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, 'for it must be apparent that without reference to the robbery such a murder would be a 'willful, deliberate, and premeditated killing," and hence, first degree murder; further, said the court, 'The moment (defendant) entered that (train) car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any [62 Cal.2d 788] killing in the perpetration of the robbery, or in the attempt * * * a murder of the first degree. In such cases the law does not measure the delicate scruples of the robber with reference to shooting his victim.' Again in People v. Coefield, supra (1951) 37 Cal.2d 865, 868(2), 236 P.2d 570, 572 the court took note of the rule 'that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime.' This is also the approach of the general felony-murder doctrine, a doctrine which (the majority confirm) ascribes malice aforethought where the killing is in the perpetration of an inherently dangerous felony. As expressed in People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, 907, cited by the majority, 'A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder. (Citations.)' (Italics added.)
A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon [44 Cal.Rptr. 450] [402 P.2d 138] and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintentional. [3] The majority suggest (p. 446), 'it is unnecessary to imply malice by invoking the felony-murder doctrine' where the robber 'initiates' a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (p. 445) that 'When a killing is not committed by a robber * * * but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in * * * robbery.' (Italics added.) Later they state (p. 446) that 'Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill * * * and it is unnecessary to imply malice by invoking the felony-murder doctrine.' (Italics added.)
[62 Cal.2d 789] But malice aforethought is an essential element of murder. (Pen.Code, § 187.) If it is not attributable to the robber when a killing is 'committed by' his victim rather than by himself in a gun battle initiated by the robber, is the essential malice express or is it to be implied under some doctrine other than the felony-murder rule? Do the majority imply the malice of the abandoned and malignant heart (Pen.Code, § 188) only if the robber shoots first, but not if he merely creates the forseeable risk that 'the victim will resist and kill'? And this despite the fact that, as the majority further affirm (p. 445), 'the robbery might therefore be regarded as a proximate cause of the killing'?
Even if, as the majority suggest (p. 445), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a case in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber 'initiated' the criminal plan, he 'initiated' it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he 'initiated' any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been 'committed' by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330, 1 Cal.Rptr. 414), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of 'rational function that it is designed to serve' in the phrasing of the majority (p. 445).
Extreme examples may be imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority (p. 445), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or [44 Cal.Rptr. 451] [402 P.2d 139] others, [62 Cal.2d 790] and the awesome penalties which attach under the felony-murder law.
I agree with the majority (p. 445) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (p. 445), a 'killing was a risk reasonably to be foreseen. * * * In every robbery there is a possibility that the victim will resist and kill.' As declared in People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, 'The statute (Pen.Code, § 189) was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.' Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a 'risk and 'a possibility that the victim will resist and kill,' and which 'might therefore be regarded as a proximate cause of the killing' should nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim's gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.
But, say the majority, 'The robber has little control over such a killing once the robbery is undertaken,' and 'To impose an additional penalty for the killing would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber's conduct happened to induce.' (p. 445) A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it kills does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various 'controls over' a possible killing from his victim's bullet 'once the robbery is undertaken.' The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested which would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, while that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to 'discriminate between robbers * * * solely on the basis of the response by others that the robber's conduct happened to induce'?
[62 Cal.2d 791] The robber's conduct which froms the basis of his criminal responsibility is the undertaking of the armed felony, in which a 'killing was a risk reasonably to be foreseen' including the 'possibility that the victim will resist and kill.' If that risk becomes reality and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree calling for that the knowledge that this awesome, that tthe knowledge that this awesome, sobering, terrifying responsibility of one contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial courts.
I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, 1 Cal.Rptr. 414, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.
McCOMB, J., concurs.
Rehearing denied; McCOMB and BURKE, JJ., dissenting, MOSK, J., not participating.
---------------
[1] Defendant's appeal from the nonappealable order denying a new trial is dismissed. (Pen.Code, § 1237, subd. 2.)
[2] One scholar has commented that 'People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rep. 414 (1959), is probably not, strictly speaking, a felony-murder case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant's act and the victim's death, and approach which is possible quite independent of the felony-murder rule.' (Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)
[3] The felony-murder rule has been abolished in England (English Homicide Act, § 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to a rebuttable presumption of malice by the Model Penal Code. (Model Pen.Code (Tent. Draft No. 9, May 8, 1959) § 201.2.)
[*] Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
[1] I. e., not excusable (§ 195) or justifiable (§§ 196, 197).
[2] I. e., arson, rape, burglary, mayhem, or any act punishable under section 288 (lewd or lascivious acts against children).
[3] It should be noted that the doctrine of prosimate causation has not been confined to civil cases. In People v. Monk (1961) 56 Cal.2d 288, 296, 14 Cal.Rptr. 633, 363 P.2d 865, for example, the defendant made threats of serious bodily harm to a person whom he had kidnaped for purposes of robbery, and the threats caused her to jump from an automobile and receive injuries. This court held that the doctrine of proximate causation was applicable, that the victim had suffered 'bodily harm' within the meaning of Penal Code section 209, and that the penalty of death was proper.
7.2.8.3.4 III.D. The Death Penalty 7.2.8.3.4 III.D. The Death Penalty
Capital punishment has driven the evolution of homicide law in the United States for centuries. Throughout that evolution, questions of fairness and arbitrariness have recurred. Because the death penalty was originally mandatory for murder, states began differentiating between first- and second-degree murder, limiting capital punishment only to the former, more blameworthy crime. As capital punishment gradually became more discretionary, the opposite concern arose: that it would be imposed unevenly and disproportionately to certain defendants, especially minorities. At one point, the Supreme Court suspended the capital punishment system altogether in Furman v. Georgia. Today, many capital punishment systems attempt to straddle the line: allowing discretion, but not unguided discretion. In some jurisdictions the death penalty has been eliminated. In others, it has been cabined to only the most heinous murders. Ironically, the growing sophistication of capital punishment systems that developed as a response to Supreme Court nullification of death penalty laws has led to a resurgence of executions. As you read these cases, consider why the death penalty has driven such changes in our criminal adjudication system, and what concerns courts have raised about the application of capital punishment. Have reforms reinstating the death penalty solved the problems the Supreme Court identified? How do concerns about the death penalty fit into the justifications and problems of criminal punishment more generally?
7.2.8.3.4.1 Gregg v. Georgia 7.2.8.3.4.1 Gregg v. Georgia
GREGG
v.
GEORGIA.
Supreme Court of United States.
CERTIORARI TO THE SUPREME COURT OF GEORGIA.
[157] G. Hughel Harrison, by appointment of the Court, 424 U. S. 941, argued the cause and filed a brief for petitioner.
G. Thomas Davis, Senior Assistant Attorney General of Georgia, argued the cause for respondent. With him on the brief were Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, John B. Ballard, Jr., Assistant Attorney General, and Bryant Huff.
[158] Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief was Deputy Solicitor General Randolph. William E. James, Assistant Attorney General, argued the cause for the State of California as amicus curiae. With him on the brief were Evelle J. Younger, Attorney General, and Jack R. Winkler, Chief Assistant Attorney General.[*]
Judgment of the Court, and opinion of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS, announced by MR. JUSTICE STEWART.
The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.
I
The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 p. m. [159] A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby.
On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons' car, were arrested in Asheville, N. C. In the search incident to the arrest a .25-caliber pistol, later shown to be that used to kill Simmons and Moore, was found in the petitioner's pocket. After receiving the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing Simmons and Moore. He justified the slayings on grounds of self-defense. The next day, while being transferred to Lawrenceville, Ga., the petitioner and Allen were taken to the scene of the shootings. Upon arriving there, Allen recounted the events leading to the slayings. His version of these events was as follows: After Simmons and Moore left the car, the petitioner stated that he intended to rob them. The petitioner then took his pistol in hand and positioned himself on the car to improve his aim. As Simmons and Moore came up an embankment toward the car, the petitioner fired three shots and the two men fell near a ditch. The petitioner, at close range, then fired a shot into the head of each. He robbed them of valuables and drove away with Allen.
A medical examiner testified that Simmons died from a bullet wound in the eye and that Moore died from bullet wounds in the cheek and in the back of the head. He further testified that both men had several bruises [160] and abrasions about the face and head which probably were sustained either from the fall into the ditch or from being dragged or pushed along the embankment. Although Allen did not testify, a police detective recounted the substance of Allen's statements about the slayings and indicated that directly after Allen had made these statements the petitioner had admitted that Allen's account was accurate. The petitioner testified in his own defense. He confirmed that Allen had made the statements described by the detective, but denied their truth or ever having admitted to their accuracy. He indicated that he had shot Simmons and Moore because of fear and in self-defense, testifying they had attacked Allen and him, one wielding a pipe and the other a knife.[1]
The trial judge submitted the murder charges to the jury on both felony-murder and nonfelony-murder theories. He also instructed on the issue of self-defense but declined to instruct on manslaughter. He submitted the robbery case to the jury on both an armed-robbery theory and on the lesser included offense of robbery by intimidation. The jury found the petitioner guilty of two counts of armed robbery and two counts of murder.
At the penalty stage, which took place before the same jury, neither the prosecutor nor the petitioner's lawyer offered any additional evidence. Both counsel, however, made lengthy arguments dealing generally with the propriety of capital punishment under the circumstances and with the weight of the evidence of guilt. The trial judge instructed the jury that it could recommend either a death sentence or a life prison sentence on each count. [161] The judge further charged the jury that in determining what sentence was appropriate the jury was free to consider the facts and circumstances, if any, presented by the parties in mitigation or aggravation.
Finally, the judge instructed the jury that it "would not be authorized to consider [imposing] the penalty of death" unless it first found beyond a reasonable doubt one of these aggravating circumstances:
"One—That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].
"Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
"Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of [the] mind of the defendant." Tr. 476-477.
Finding the first and second of these circumstances, the jury returned verdicts of death on each count.
The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. 233 Ga. 117, 210 S. E. 2d 659 (1974). After reviewing the trial transcript and the record, including the evidence, and comparing the evidence and sentence in similar cases in accordance with the requirements of Georgia law, the court concluded that, considering the nature of the crime and the defendant, the sentences of death had not resulted from prejudice or any other arbitrary factor and were not excessive or disproportionate to the penalty applied in similar cases.[2] The death [162] sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense and that the jury improperly considered the murders as aggravating circumstances for the robberies after having considered the armed robberies as aggravating circumstances for the murders. Id., at 127, 210 S. E. 2d, at 667.
We granted the petitioner's application for a writ of certiorari limited to his challenge to the imposition of the death sentences in this case as "cruel and unusual" punishment in violation of the Eighth and the Fourteenth Amendments. 423 U. S. 1082 (1976).
II
Before considering the issues presented it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty.[3] The Georgia statute, as amended after our decision in Furman v. Georgia, 408 U. S. 238 (1972), retains the death penalty for six categories of crime: murder,[4] kidnaping for ransom or where [163] the victim is harmed, armed robbery,[5] rape, treason, and aircraft hijacking.[6] Ga. Code Ann. §§ 26-1101, 26-1311, 26-1902, 26-2001, 26-2201, 26-3301 (1972). The capital defendant's guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial.
If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. Sims v. State, 203 Ga. 668, 47 S. E. 2d 862 (1948). See Linder v. State, 132 Ga. App. 624, 625, 208 S. E. 2d 630, 631 (1974). After a verdict, finding, or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing:
"[T]he judge [or jury] shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided, however, that [164] only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The judge [or jury] shall also hear argument by the defendant or his counsel and the prosecuting attorney . . . regarding the punishment to be imposed." § 27-2503 (Supp. 1975).
The defendant is accorded substantial latitude as to the types of evidence that he may introduce. See Brown v. State, 235 Ga. 644, 647-650, 220 S. E. 2d 922, 925-926 (1975).[7] Evidence considered during the guilt stage may be considered during the sentencing stage without being resubmitted. Eberheart v. State, 232 Ga. 247, 253, 206 S. E. 2d 12, 17 (1974).[8]
In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of [10] statutory aggravating circumstances which may be supported by the evidence. . . ." § 27-2534.1 (b) (Supp. 1975). The scope of the non-statutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified [165] in the statute.[9] The sentence of death may be imposed only if the jury (or judge) finds one of the statutory aggravating circumstances and then elects to [166] impose that sentence. § 26-3102 (Supp. 1975). If the verdict is death, the jury or judge must specify the aggravating circumstance(s) found. § 27-2534.1 (c) (Supp. 1975). In jury cases, the trial judge is bound by the jury's recommended sentence. §§ 26-3102, 27-2514 (Supp. 1975).
In addition to the conventional appellate process available in all criminal cases, provision is made for special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider "the punishment as well as any errors enumerated by way of appeal," and to determine:
"(1) Whether the sentence of death was imposed [167] under the influence of passion, prejudice, or any other arbitrary factor, and
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27.2534.1 (b), and
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 27-2537 (Supp. 1975).
If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. § 27-2537 (e) (Supp. 1975).[10]
A transcript and complete record of the trial, as well as a separate report by the trial judge, are transmitted to the court for its use in reviewing the sentence. § 27-2537 (a) (Supp. 1975). The report is in the form of a 6 1/2-page questionnaire, designed to elicit information about the defendant, the crime, and the circumstances of the trial. It requires the trial judge to characterize the trial in several ways designed to test for arbitrariness and disproportionality of sentence. Included in the report are responses to detailed questions concerning the quality of the defendant's representation, whether race played a role in the trial, and, whether, in the trial court's judgment, there was any doubt about [168] the defendant's guilt or the appropriateness of the sentence. A copy of the report is served upon defense counsel. Under its special review authority, the court may either affirm the death sentence or remand the case for resentencing. In cases in which the death sentence is affirmed there remains the possibility of executive clemency.[11]
III
We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. In Part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes at issue in this case.
The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment.[12] But until Furman v. Georgia, 408 U. S. 238 (1972), the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and [169] unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four Justices would have held that capital punishment is not unconstitutional per se;[13] two Justices would have reached the opposite conclusion;[14] and three Justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.[15] We now hold that the punishment of death does not invariably violate the Constitution.
A
The history of the prohibition of "cruel and unusual" punishment already has been reviewed at length.[16] The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, "Nor Cruel and Unusual Punishments Inflicted:" The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The [170] American draftsmen, who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing "tortures" and other "barbarous" methods of punishment." Id., at 842.[17]
In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to "torture" and other "barbarous" methods. See Wilkerson v. Utah, 99 U. S. 130, 136 (1879) ("[I]t is safe to affirm that punishments of torture . . . and all others in the same line of unnecessary cruelty, are forbidden by that amendment . . ."); In re Kemmler, 136 U. S. 436, 447 (1890) ("Punishments are cruel when they involve torture or a lingering death . . ."). See also Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947) (second attempt at electrocution found not to violate [171] Eighth Amendment, since failure of initial execution attempt was "an unforeseeable accident" and "[t]here [was] no purpose to inflict unnecessary pain nor any unnecessary pain involved in the proposed execution").
But the Court has not confined the prohibition embodied in the Eighth Amendment to "barbarous" methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that "a principle to be vital must be capable of wider application than the mischief which gave it birth." Weems v. United States, 217 U. S. 349, 373 (1910). Thus the Clause forbidding "cruel and unusual" punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Id., at 378. See also Furman v. Georgia, 408 U. S., at 429-430 (POWELL, J., dissenting); Trop v. Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion).
In Weems the Court addressed the constitutionality of the Philippine punishment of cadena temporal for the crime of falsifying an official document. That punishment included imprisonment for at least 12 years and one day, in chains, at hard and painful labor; the loss of many basic civil rights; and subjection to lifetime surveillance. Although the Court acknowledged the possibility that "the cruelty of pain" may be present in the challenged punishment, 217 U. S., at 366, it did not rely on that factor, for it rejected the proposition that the Eighth Amendment reaches only punishments that are "inhuman and barbarous, torture and the like." Id., at 368. Rather, the Court focused on the lack of proportion between the crime and the offense:
"Such penalties for such offenses amaze those who have formed their conception of the relation of a state to even its offending citizens from the practice [172] of the American commonwealths, and believe that it is a precept of justice that punishment for crime should be graduated and proportioned to offense." Id., at 366-367.[18]
Later, in Trop v. Dulles, supra, the Court reviewed the constitutionality of the punishment of denationalization imposed upon a soldier who escaped from an Army stockade and became a deserter for one day. Although the concept of proportionality was not the basis of the holding, the plurality observed in dicta that "[f]ines, imprisonment and even execution may be imposed depending upon the enormity of the crime." 356 U. S., at 100.
The substantive limits imposed by the Eighth Amendment on what can be made criminal and punished were discussed in Robinson v. California, 370 U. S. 660 (1962). The Court found unconstitutional a state statute that made the status of being addicted to a narcotic drug a criminal offense. It held, in effect, that it is "cruel and unusual" to impose any punishment at all for the mere status of addiction. The cruelty in the abstract of the actual sentence imposed was irrelevant: "Even one day in prison would be a cruel and unusual punishment for the `crime' of having a common cold." Id., at 667. Most recently, in Furman v. Georgia, supra, three Justices in separate concurring opinions found the Eighth Amendment applicable to procedures employed to select convicted defendants for the sentence of death.
It is clear from the foregoing precedents that the [173] Eighth Amendment has not been regarded as a static concept. As Mr. Chief Justice Warren said, in an oftquoted phrase, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, supra, at 101. See also Jackson v. Bishop, 404 F. 2d 571, 579 (CA8 1968). Cf. Robinson v. California, supra, at 666. Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. As we develop below more fully, see infra, at 175-176, this assessment does not call for a subjective judgment. It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction.
But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." Trop v. Dulles, supra, at 100 (plurality opinion). This means, at least, that the punishment not be "excessive." When a form of punishment in the abstract (in this case, whether capital punishment may ever be imposed as a sanction for murder) rather than in the particular (the propriety of death as a penalty to be applied to a specific defendant for a specific crime) is under consideration, the inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. Furman v. Georgia, supra, at 392-393 (BURGER, C. J., dissenting). See Wilkerson v. Utah, 99 U. S., at 136; Weems v. United States, supra, at 381. Second, the punishment must not be grossly out of proportion to the severity of the crime. Trop v. Dulles, supra, at 100 (plurality opinion) (dictum); Weems v. United States, supra, at 367.
[174]
B
Of course, the requirements of the Eighth Amendment must be applied with an awareness of the limited role to be played by the courts. This does not mean that judges have no role to play, for the Eighth Amendment is a restraint upon the exercise of legislative power.
"Judicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the Constitution means or requires. In this respect, Eighth Amendment cases come to us in no different posture. It seems conceded by all that the Amendment imposes some obligations on the judiciary to judge the constitutionality of punishment and that there are punishments that the Amendment would bar whether legislatively approved or not." Furman v. Georgia, 408 U. S., at 313-314 (WHITE, J., concurring).
See also id., at 433 (POWELL, J., dissenting).[19]
But, while we have an obligation to insure that constitutional [175] bounds are not overreached, we may not act as judges as we might as legislators.
"Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures." Dennis v. United States, 341 U. S. 494, 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).[20]
Therefore, in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity. We may not require the legislature to select the least severe penalty possible so long as the penalty selected is not cruelly inhumane or disproportionate to the crime involved. And a heavy burden rests on those who would attack the judgment of the representatives of the people.
This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards. "[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people." [176] Furman v. Georgia, supra, at 383 (BURGER, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, 408 U. S., at 465-470 (REHNQUIST, J., dissenting), is enhanced where the specification of punishments is concerned, for "these are peculiarly questions of legislative policy." Gore v. United States, 357 U. S. 386, 393 (1958). Cf. Robinson v. California, 370 U. S., at 664-665; Trop v. Dulles, 356 U. S., at 103 (plurality opinion); In re Kemmler, 136 U. S., at 447. Caution is necessary lest this Court become, "under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility . . . throughout the country." Powell v. Texas, 392 U. S. 514, 533 (1968) (plurality opinion). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra, at 461-462 (POWELL, J., dissenting).
C
In the discussion to this point we have sought to identify the principles and considerations that guide a court in addressing an Eighth Amendment claim. We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the Constitution. We note first that history and precedent strongly support a negative answer to this question.
The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule [177] imposed a mandatory death sentence on all convicted murderers. McGautha v. California, 402 U. S. 183, 197-198 (1971). And the penalty continued to be used into the 20th century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. Id., at 199-200. See Woodson v. North Carolina, post, at 289-292.
It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. C. 9, 1 Stat. 112 (1790). The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . nor be deprived of life, liberty, or property, without due process of law . . . ."
And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of "life, liberty, or property" without due process of law.
For nearly two centuries, this Court, repeatedly and [178] often expressly, has recognized that capital punishment is not invalid per se. In Wilkerson v. Utah, 99 U. S., at 134-135, where the Court found no constitutional violation in inflicting death by public shooting, it said:
"Cruel and unusual punishments are forbidden by the Constitution, but the authorities referred to are quite sufficient to show that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree is not included in that category, within the meaning of the eighth amendment."
Rejecting the contention that death by electrocution was "cruel and unusual," the Court in In re Kemmler, supra, at 447, reiterated:
"[T]he punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life."
Again, in Louisiana ex rel. Francis v. Resweber, 329 U. S., at 464, the Court remarked: "The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely." And in Trop v. Dulles, 356 U. S., at 99, Mr. Chief Justice Warren, for himself and three other Justices, wrote:
"Whatever the arguments may be against capital punishment, both on moral grounds and in terms of accomplishing the purposes of punishment . . . the death penalty has been employed throughout our history, and, in a day when it is still widely accepted, it cannot be said to violate the constitutional concept of cruelty."
[179] Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. The petitioners in those cases said, in effect, that the evolutionary process had come to an end, and that standards of decency required that the Eighth Amendment be construed finally as prohibiting capital punishment for any crime regardless of its depravity and impact on society. This view was accepted by two Justices.[21] Three other Justices were unwilling to go so far; focusing on the procedures by which convicted defendants were selected for the death penalty rather than on the actual punishment inflicted, they joined in the conclusion that the statutes before the Court were constitutionally invalid.[22]
The petitioners in the capital cases before the Court today renew the "standards of decency" argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the 19th century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction.
The most marked indication of society's endorsement of the death penalty for murder is the legislative response to Furman. The legislatures of at least 35 States[23] have enacted new statutes that provide for the [180] death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death.[24] These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman primarily (i) by specifying the factors to be weighed and the procedures to be followed in deciding when to impose a capital sentence, or (ii) by making the death penalty mandatory for specified crimes. But all of the post-Furman statutes make clear that capital punishment [181] itself has not been rejected by the elected representatives of the people.
In the only statewide referendum occurring since Furman and brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment, in effect negating a prior ruling by the Supreme Court of California in People v. Anderson, 6 Cal. 3d 628, 493 P. 2d 880, cert. denied, 406 U. S. 958 (1972), that the death penalty violated the California Constitution.[25]
The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. See Furman v. Georgia, 408 U. S., at 439-440 (POWELL, J., dissenting). See generally Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1 (1966). The Court has said that "one of the most important functions any jury can perform in making . . . a selection [between life imprisonment and death for a defendant convicted in a capital case] is to maintain a link between contemporary community values and the penal system." Witherspoon v. Illinois, 391 U. S. 510, 519 n. 15 (1968). It may be true that evolving standards have influenced juries in [182] recent decades to be more discriminating in imposing the sentence of death.[26] But the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, the reluctance of juries in many cases to impose the sentence may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. See Furman v. Georgia, supra, at 388 (BURGER, C. J., dissenting). Indeed, the actions of juries in many States since Furman are fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman,[27] and by the end of March 1976, more than 460 persons were subject to death sentences.
As we have seen, however, the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society. The Court also must ask whether it comports with the basic concept of human dignity at the core of the Amendment. Trop v. Dulles, 356 U. S., at 100 (plurality opinion). Although we cannot "invalidate a category of penalties because we deem less severe penalties adequate to serve the ends of [183] penology," Furman v. Georgia, supra, at 451 (POWELL, J., dissenting), the sanction imposed cannot be so totally without penological justification that it results in the gratuitous infliction of suffering. Cf. Wilkerson v. Utah, 99 U. S., at 135-136; In re Kemmler, 136 U. S., at 447.
The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders.[28]
In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct.[29] This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs.
"The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they `deserve,' then there are sown the seeds of anarchy—of selfhelp, vigilante justice, and lynch law." Furman v. Georgia, supra, at 308 (STEWART, J., concurring).
"Retribution is no longer the dominant objective of the criminal law," Williams v. New York, 337 U. S. 241, 248 (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. [184] Furman v. Georgia, 408 U. S., at 394-395 (BURGER, C. J., dissenting); id., at 452-454 (POWELL, J., dissenting); Powell v. Texas, 392 U. S., at 531 535-536 (plurality opinion). Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.[30]
Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate.[31] The results [185] simply have been inconclusive. As one opponent of capital punishment has said:
"[A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this `deterrent' effect may be . . . .
"The inescapable flaw is . . . that social conditions in any state are not constant through time, and that social conditions are not the same in any two states. If an effect were observed (and the observed effects, one way or another, are not large) then one could not at all tell whether any of this effect is attributable to the presence or absence of capital punishment. A `scientific'—that is to say, a soundly based—conclusion is simply impossible, and no methodological path out of this tangle suggests itself." C. Black, Capital Punishment: The Inevitability of Caprice and Mistake 25-26 (1974).
Although some of the studies suggest that the death penalty may not function as a significantly greater deterrent than lesser penalties,[32] there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant [186] deterrent. There are carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act.[33] And there are some categories of murder, such as murder by a life prisoner, where other sanctions may not be adequate.[34]
The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. Furman v. Georgia, supra, at 403-405 (BURGER, C. J., dissenting). Indeed, many of the post-Furman statutes reflect just such a responsible effort to define those crimes and those criminals for which capital punishment is most probably an effective deterrent.
In sum, we cannot say that the judgment of the Georgia Legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature [187] to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe.
Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. Furman v. Georgia, 408 U. S., at 286-291 (BRENNAN, J., concurring); id., at 306 (STEWART. J., concurring). When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. Powell v. Alabama, 287 U. S. 45, 71 (1932); Reid v. Covert, 354 U. S. 1, 77 (1957) (Harlan, J., concurring in result). But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender,[35] we cannot say that the punishment is invariably disproportionate to the crime. It is an extreme sanction, suitable to the most extreme of crimes.
We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it.
IV
We now consider whether Georgia may impose the death penalty on the petitioner in this case.
[188]
A
While Furman did not hold that the infliction of the death penalty per se violates the Constitution's ban on cruel and unusual punishments, it did recognize that the penalty of death is different in kind from any other punishment imposed under our system of criminal justice. Because of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner. MR. JUSTICE WHITE concluded that "the death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not." 408 U. S., at 313 (concurring). Indeed, the death sentences examined by the Court in Furman were "cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [capital crimes], many just as reprehensible as these, the petitioners [in Furman were] among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. . . . [T]he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed." Id., at 309-310 (STEWART, J., concurring).[36]
[189] Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.
It is certainly not a novel proposition that discretion in the area of sentencing be exercised in an informed manner. We have long recognized that "[f]or the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937). See also Williams v. Oklahoma, 358 U. S. 576, 585 (1959); Williams v. New York, 337 U. S., at 247.[37] Otherwise, "the system cannot function in a consistent and a rational manner." American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1 (a), Commentary, p. 201 (App. Draft 1968). See also President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 144 (1967); ALI, Model Penal Code § 7.07, Comment 1, pp. 52-53 (Tent. Draft No. 2, 1954).[38]
[190] The cited studies assumed that the trial judge would be the sentencing authority. If an experienced trial judge, who daily faces the difficult task of imposing sentences, has a vital need for accurate information about a defendant and the crime he committed in order to be able to impose a rational sentence in the typical criminal case, then accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision.
Jury sentencing has been considered desirable in capital cases in order "to maintain a link between contemporary community values and the penal system—a link without which the determination of punishment could hardly reflect `the evolving standards of decency that mark the progress of a maturing society.' "[39] But it creates special problems. Much of the information that is relevant to the sentencing decision may have no relevance to the question of guilt, or may even be extremely prejudicial to a fair determination of that question.[40] This problem, however, is scarcely insurmountable. Those who have studied the question suggest that a bifurcated procedure—one in which the [191] question of sentence is not considered until the determination of guilt has been made—is the best answer. The drafters of the Model Penal Code concluded:
"[If a unitary proceeding is used] the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. Trial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.
". . . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence. This is the analogue of the procedure in the ordinary case when capital punishment is not in issue; the court conducts a separate inquiry before imposing sentence." ALI, Model Penal Code § 201.6, Comment 5, pp. 74-75 (Tent. Draft No. 9, 1959).
See also Spencer v. Texas, 385 U. S. 554, 567-569 (1967); Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶¶ 555, 574; Knowlton, Problems of Jury Discretion in Capital Cases, 101 U. Pa. L. Rev. 1099, 1135-1136 (1953). When a human life is at stake and when the jury must have information prejudicial to the question of guilt but relevant to the question of penalty in order to impose a rational sentence, a bifurcated [192] system is more likely to ensure elimination of the constitutional deficiencies identified in Furman.[41]
But the provision of relevant information under fair procedural rules is not alone sufficient to guarantee that the information will be properly used in the imposition of punishment, especially if sentencing is performed by a jury. Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. See American Bar Association Project on Standards for Criminal Justice, Sentencing Alternatives and Procedures, § 1.1 (b), Commentary, pp. 46-47 (Approved Draft 1968); President's Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society, Task Force Report: The Courts 26 (1967). To the extent that this problem is inherent in jury sentencing, it may not be totally correctible. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision.
The idea that a jury should be given guidance in its [193] decisionmaking is also hardly a novel proposition. Juries are invariably given careful instructions on the law and how to apply it before they are authorized to decide the merits of a lawsuit. It would be virtually unthinkable to follow any other course in a legal system that has traditionally operated by following prior precedents and fixed rules of law.[42] See Gasoline Products Co. v. Champlin Refining Co., 283 U. S. 494, 498 (1931); Fed. Rule Civ. Proc. 51. When erroneous instructions are given, retrial is often required. It is quite simply a hallmark of our legal system that juries be carefully and adequately guided in their deliberations.
While some have suggested that standards to guide a capital jury's sentencing deliberation are impossible to formulate,[43] the fact is that such standards have been developed. When the drafters of the Model Penal Code faced this problem, they concluded "that it is within the realm of possibility to point to the main circumstances of aggravation and of mitigation that should be weighed and weighed against each other when they are presented in a concrete case." ALI, Model Penal Code § 201.6, Comment 3, p. 71 (Tent. Draft No. 9, 1959) (emphasis in original).[44] While such standards are by [194] necessity somewhat general, they do provide guidance to the sentencing authority and thereby reduce the likelihood that it will impose a sentence that fairly can be [195] called capricious or arbitrary.[45] Where the sentencing authority is required to specify the factors it relied upon in reaching its decision, the further safeguard of meaningful appellate review is available to ensure that death sentences are not imposed capriciously or in a freakish manner.
In summary, the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information.
We do not intend to suggest that only the above-described procedures would be permissible under Furman or that any sentencing system constructed along these general lines would inevitably satisfy the concerns of Furman,[46] for each distinct system must be examined on an individual basis. Rather, we have embarked upon this general exposition to make clear that it is possible to construct capital-sentencing systems capable of meeting Furman's constitutional concerns.[47]
[196]
B
We now turn to consideration of the constitutionality of Georgia's capital-sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute, but chose not to narrow the scope of its murder provisions. See Part II, supra. Thus, now as before Furman, in Georgia "[a] person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann., § 26-1101 (a) (1972). All persons convicted of murder "shall be punished by death or by imprisonment for life." § 26-1101 (c) (1972).
Georgia did act, however, to narrow the class of murderers subject to capital punishment by specifying 10 [197] statutory aggravating circumstances, one of which must be found by the jury to exist beyond a reasonable doubt before a death sentence can ever be imposed.[48] In addition, the jury is authorized to consider any other appropriate aggravating or mitigating circumstances. § 27-2534.1 (b) (Supp. 1975). The jury is not required to find any mitigating circumstance in order to make a recommendation of mercy that is binding on the trial court, see § 27-2302 (Supp. 1975), but it must find a statutory aggravating circumstance before recommending a sentence of death.
These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury do as Furman's jury did: reach a finding of the defendant's guilt and then, without guidance or direction, decide whether he should live or die. Instead, the jury's attention is directed to the specific circumstances of the crime: Was it committed in the course of another capital felony? Was it committed for money? Was it committed upon a peace officer or judicial officer? Was it committed in a particularly heinous way or in a manner that endangered the lives of many persons? In addition, the jury's attention is focused on the characteristics of the person who committed the crime: Does he have a record of prior convictions for capital offenses? Are there any special facts about this defendant that mitigate against imposing capital punishment (e. g., his youth, the extent of his cooperation with the police, his emotional state at the time of the crime).[49] As a result, while [198] some jury discretion still exists, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application." Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974).
As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the State's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate compared to those sentences imposed in similar cases. § 27-2537 (c) (Supp. 1975).
In short, Georgia's new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover, to guard further against a situation comparable to that presented in Furman, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman. No longer should there be "no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not." 408 U. S., at 313 (WHITE, J., concurring).
The petitioner contends, however, that the changes in the Georgia sentencing procedures are only cosmetic, that the arbitrariness and capriciousness condemned by Furman continue to exist in Georgia—both in traditional practices that still remain and in the new sentencing procedures adopted in response to Furman.
[199]
1
First, the petitioner focuses on the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law. He notes that the state prosecutor has unfettered authority to select those persons whom he wishes to prosecute for a capital offense and to plea bargain with them. Further, at the trial the jury may choose to convict a defendant of a lesser included offense rather than find him guilty of a crime punishable by death, even if the evidence would support a capital verdict. And finally, a defendant who is convicted and sentenced to die may have his sentence commuted by the Governor of the State and the Georgia Board of Pardons and Paroles.
The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant.[50]
[200]
2
The petitioner further contends that the capital-sentencing procedures adopted by Georgia in response to Furman do not eliminate the dangers of arbitrariness and caprice in jury sentencing that were held in Furman to be violative of the Eighth and Fourteenth Amendments. He claims that the statute is so broad and vague as to leave juries free to act as arbitrarily and capriciously as they wish in deciding whether to impose the death penalty. While there is no claim that the jury in this case relied upon a vague or overbroad provision to establish the existence of a statutory aggravating circumstance, the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today) and argues that it fails to reduce sufficiently the risk of arbitrary infliction of death sentences. Specifically, Gregg urges that the statutory aggravating circumstances are too broad and too vague, that the sentencing procedure allows for arbitrary grants of mercy, and that the scope of the evidence and argument that can be considered at the presentence hearing is too wide.
[201] The petitioner attacks the seventh statutory aggravating circumstance, which authorizes imposition of the death penalty if the murder was "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim," contending that it is so broad that capital punishment could be imposed in any murder case.[51] It is, of course, arguable that any murder involves depravity of mind or an aggravated battery. But this language need not be construed in this way, and there is no reason to assume that the Supreme Court of Georgia will adopt such an open-ended construction.[52] In only one case has it upheld a jury's decision to sentence a defendant to death when the only statutory aggravating circumstance found was that of the seventh, see McCorquodale v. State, 233 Ga. 369, 211 S. E. 2d 577 (1974), and that homicide was a horrifying torture-murder.[53]
[202] The petitioner also argues that two of the statutory aggravating circumstances are vague and therefore susceptible of widely differing interpretations, thus creating a substantial risk that the death penalty will be arbitrarily inflicted by Georgia juries.[54] In light of the decisions of the Supreme Court of Georgia we must disagree. First, the petitioner attacks that part of § 27-2534.1 (b) (1) that authorizes a jury to consider whether a defendant has a "substantial history of serious assaultive criminal convictions." The Supreme Court of Georgia, however, has demonstrated a concern that the new sentencing procedures provide guidance to juries. It held this provision to be impermissibly vague in Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), because it did not provide the jury with "sufficiently `clear and objective standards.' " Second, the petitioner points to § 27-2534.1 (b) (3) which speaks of creating a "great risk of death to more than one person." While such a phrase might be susceptible of an overly broad interpretation, the Supreme Court of Georgia has not so construed it. The only case in which the court upheld a conviction in reliance on this aggravating circumstance involved a man who stood up in a church and fired a gun indiscriminately into the audience. See [203] Chenault v. State, 234 Ga. 216, 215 S. E. 2d 223 (1975). On the other hand, the court expressly reversed a finding of great risk when the victim was simply kidnaped in a parking lot. See Jarrell v. State, 234 Ga. 410, 424, 216 S. E. 2d 258, 269 (1975).[55]
The petitioner next argues that the requirements of Furman are not met here because the jury has the power to decline to impose the death penalty even if it finds that one or more statutory aggravating circumstances are present in the case. This contention misinterprets Furman. See supra, at 198-199. Moreover, it ignores the role of the Supreme Court of Georgia which reviews each death sentence to determine whether it is proportional to other sentences imposed for similar crimes. Since the proportionality requirement on review is intended to prevent caprice in the decision to inflict the penalty, the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.
The petitioner objects, finally, to the wide scope of evidence and argument allowed at presentence hearings. We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. See, e. g., Brown v. State, 235 Ga. 644, 220 S. E. 2d 922 (1975). So long as the [204] evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. See supra, at 189-190.
3
Finally, the Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." § 27-2537 (c) (3) (Supp. 1975).[56] In performing [205] its sentence-review function, the Georgia court has held that "if the death penalty is only rarely imposed for an act or it is substantially out of line with sentences imposed for other acts it will be set aside as excessive." Coley v. State, 231 Ga., at 834, 204 S. E. 2d, at 616. The court on another occasion stated that "we view it to be our duty under the similarity standard to assure that no death sentence is affirmed unless in similar cases throughout the state the death penalty has been imposed generally . . . ." Moore v. State, 233 Ga. 861, 864, 213 S. E. 2d 829, 832 (1975). See also Jarrell v. State, supra, at 425, 216 S. E. 2d, at 270 (standard is whether "juries generally throughout the state have imposed the death penalty"); Smith v. State, 236 Ga. 12, 24, 222 S. E. 2d 308, 318 (1976) (found "a clear pattern" of jury behavior).
It is apparent that the Supreme Court of Georgia has taken its review responsibilities seriously. In Coley, it held that "[t]he prior cases indicate that the past practice among juries faced with similar factual situations and like aggravating circumstances has been to impose only the sentence of life imprisonment for the offense of rape, rather than death." 231 Ga., at 835, 204 S. E. 2d, at 617. It thereupon reduced Coley's sentence from death to life imprisonment. Similarly, although armed robbery is a capital offense under Georgia law, § 26-1902 (1972), the Georgia court concluded that the death sentences imposed in this case for that crime were "unusual in that they are rarely imposed for [armed robbery]. Thus, under the test provided by statute, . . . they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." 233 [206] Ga., at 127, 210 S. E. 2d, at 667. The court therefore vacated Gregg's death sentences for armed robbery and has followed a similar course in every other armed robbery death penalty case to come before it. See Floyd v. State, 233 Ga. 280, 285, 210 S. E. 2d 810, 814 (1974); Jarrell v. State, 234 Ga., at 424-425, 216 S. E. 2d, at 270. See Dorsey v. State, 236 Ga. 591, 225 S. E. 2d 418 (1976).
The provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty. In particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury. If a time comes when juries generally do not impose the death sentence in a certain kind of murder case, the appellate review procedures assure that no defendant convicted under such circumstances will suffer a sentence of death.
V
The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the Court in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant. While the jury is permitted to consider any aggravating or mitigating circumstances, it must find and identify at least one statutory aggravating factor before it may impose a penalty of death. In this way the jury's discretion is channeled. No longer [207] can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines. In addition, the review function of the Supreme Court of Georgia affords additional assurance that the concerns that prompted our decision in Furman are not present to any significant degree in the Georgia procedure applied here.
For the reasons expressed in this opinion, we hold that the statutory system under which Gregg was sentenced to death does not violate the Constitution. Accordingly, the judgment of the Georgia Supreme Court is affirmed.
It is so ordered.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring in the judgment.
In Furman v. Georgia, 408 U. S. 238 (1972), this Court held the death penalty as then administered in Georgia to be unconstitutional. That same year the Georgia Legislature enacted a new statutory scheme under which the death penalty may be imposed for several offenses, including murder. The issue in this case is whether the death penalty imposed for murder on petitioner Gregg under the new Georgia statutory scheme may constitutionally be carried out. I agree that it may.
I
Under the new Georgia statutory scheme a person convicted of murder may receive a sentence either of death or of life imprisonment. Ga. Code Ann. § 26-1101 (1972).[1] Under Georgia Code Ann. § 26-3102 (Supp. [208] 1975), the sentence will be life imprisonment unless the jury at a separate evidentiary proceeding immediately following the verdict finds unanimously and beyond a reasonable doubt at least one statutorily defined "aggravating circumstance."[2] The aggravating circumstances are:
"(1) The offense of murder, rape, armed robbery, [209] or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person [210] who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
[211] "(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 27-2534.1 (b) (Supp. 1975).
Having found an aggravating circumstance, however, the jury is not required to impose the death penalty. Instead, it is merely authorized to impose it after considering evidence of "any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the [enumerated] statutory aggravating circumstances . . . ." § 27-2534.1 (b) (Supp. 1975). Unless the jury unanimously determines that the death penalty should be imposed, the defendant will be sentenced to life imprisonment. In the event that the jury does impose the death penalty, it must designate in writing the aggravating circumstance which it found to exist beyond a reasonable doubt.
An important aspect of the new Georgia legislative scheme, however, is its provision for appellate review. Prompt review by the Georgia Supreme Court is provided for in every case in which the death penalty is imposed. To assist it in deciding whether to sustain the death penalty, the Georgia Supreme Court is supplied, in every case, with a report from the trial judge in the form of a standard questionnaire. § 27-2537 (a) (Supp. 1975). The questionnaire contains, inter alia, six questions designed to disclose whether race played a role in the case and one question asking the trial judge whether the evidence forecloses "all doubt respecting the defendant's [212] guilt." In deciding whether the death penalty is to be sustained in any given case, the court shall determine:
"(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
"(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in section 27-2534.1 (b), and
"(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. . . ."
In order that information regarding "similar cases" may be before the court, the post of Assistant to the Supreme Court was created. The Assistant must "accumulate the records of all capital felony cases in which sentence was imposed after January 1, 1970, or such earlier date as the court may deem appropriate." § 27-2537 (f).[3] The court is required to include in its decision a reference to "those similar cases which it took into consideration." § 27-2537 (e).
II
Petitioner Troy Gregg and a 16-year-old companion, Floyd Allen, were hitchhiking from Florida to Asheville, N. C., on November 21, 1973. They were picked up in an automobile driven by Fred Simmons and Bob Moore, both of whom were drunk. The car broke down and Simmons purchased a new one—a 1960 Pontiac—using [213] part of a large roll of cash which he had with him. After picking up another hitchhiker in Florida and dropping him off in Atlanta, the car proceeded north to Gwinnett County, Ga., where it stopped so that Moore and Simmons could urinate. While they were out of the car Simmons was shot in the eye and Moore was shot in the right cheek and in the back of the head. Both died as a result.
On November 24, 1973, at 3 p. m., on the basis of information supplied by the hitchhiker, petitioner and Allen were arrested in Asheville, N. C. They were then in possession of the car which Simmons had purchased; petitioner was in possession of the gun which had killed Simmons and Moore and $107 which had been taken from them; and in the motel room in which petitioner was staying was a new stereo and a car stereo player.
At about 11 p. m., after the Gwinnett County police had arrived, petitioner made a statement to them admitting that he had killed Moore and Simmons, but asserting that he had killed them in self-defense and in defense of Allen. He also admitted robbing them of $400 and taking their car. A few moments later petitioner was asked why he had shot Moore and Simmons and responded: "By God, I wanted them dead."
At about 1 o'clock the next morning, petitioner and Allen were released to the custody of the Gwinnett County police and were transported in two cars back to Gwinnett County. On the way, at about 5 a. m., the car stopped at the place where Moore and Simmons had been killed. Everyone got out of the car. Allen was asked, in petitioner's presence, how the killing occurred. He said that he had been sitting in the back seat of the 1960 Pontiac and was about half asleep. He woke up when the car stopped. Simmons and Moore got out, and as soon as they did petitioner turned around and told Allen: "Get out, we're going to rob them." Allen said that he [214] got out and walked toward the back of the car, looked around and could see petitioner, with a gun in his hand, leaning up against the car so he could get a good aim. Simmons and Moore had gone down the bank and had relieved themselves and as they were coming up the bank petitioner fired three shots. One of the men fell, the other staggered. Petitioner then circled around the back and approached the two men, both of whom were now lying in the ditch, from behind. He placed the gun to the head of one of them and pulled the trigger. Then he went quickly to the other one and placed the gun to his head and pulled the trigger again. He then took the money, whatever was in their pockets. He told Allen to get in the car and they drove away.
When Allen had finished telling this story, one of the officers asked petitioner if this was the way it had happened. Petitioner hung his head and said that it was. The officer then said: "You mean you shot these men down in cold blooded murder just to rob them," and petitioner said yes. The officer then asked him why and petitioner said he did not know. Petitioner was indicted in two counts for murder and in two counts for robbery.
At trial, petitioner's defense was that he had killed in self-defense. He testified in his own behalf and told a version of the events similar to that which he had originally told to the Gwinnett County police. On cross-examination, he was confronted with a letter to Allen recounting a version of the events similar to that to which he had just testified and instructing Allen to memorize and burn the letter. Petitioner conceded writing the version of the events, but denied writing the portion of the letter which instructed Allen to memorize and burn it. In rebuttal, the State called a handwriting expert who testified that the entire letter was written by the same person.
[215] The jury was instructed on the elements of murder[4] and robbery. The trial judge gave an instruction on self-defense, but refused to submit the lesser included [216] offense of manslaughter to the jury. It returned verdicts of guilty on all counts.
No new evidence was presented at the sentencing proceeding. However, the prosecutor and the attorney for petitioner each made arguments to the jury on the issue of punishment. The prosecutor emphasized the strength of the case against petitioner and the fact that he had murdered in order to eliminate the witnesses to the robbery. The defense attorney emphasized the possibility that a mistake had been made and that petitioner was not guilty. The trial judge instructed the jury on [217] their sentencing function and in so doing submitted to them three statutory aggravating circumstances. He stated:
"Now, as to counts one and three, wherein the defendant is charged with the murders of—has been found guilty of the murders of [Simmons and Moore], the following aggravating circumstances are some that you can consider, as I say, you must find that these existed beyond a reasonable doubt before the death penalty can be imposed.
"One—That the offense of murder was committed while the offender was engaged in the commission of two other capital felonies, to-wit the armed robbery of [Simmons and Moore].
"Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment.
"Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they involved the depravity of mind of the defendant.
"Now, so far as the counts two and four, that is the counts of armed robbery, of which you have found the defendant guilty, then you may find— inquire into these aggravating circumstances.
"That the offense of armed robbery was committed while the offender was engaged in the commission of two capital felonies, to-wit the murders of [Simmons and Moore] or that the offender committed the offense of armed robbery for the purpose of receiving money and the automobile set forth in the indictment, or three, that the offense of armed robbery was outrageously and wantonly vile, horrible and inhuman in that they involved the depravity of the mind of the defendant.
[218] "Now, if you find that there was one or more of these aggravating circumstances existed beyond a reasonable doubt, then and I refer to each individual count, then you would be authorized to consider imposing the sentence of death.
"If you do not find that one of these aggravating circumstances existed beyond a reasonable doubt, in either of these counts, then you would not be authorized to consider the penalty of death. In that event, the sentence as to counts one and three, those are the counts wherein the defendant was found guilty of murder, the sentence could be imprisonment for life." Tr. 476-477.
The jury returned the death penalty on all four counts finding all the aggravating circumstances submitted to it, except that it did not find the crimes to have been "outrageously or wantonly vile," etc.
On appeal the Georgia Supreme Court affirmed the death sentences on the murder counts and vacated the death sentences on the robbery counts. 233 Ga. 117, 210 S. E. 2d 659 (1974). It concluded that the murder sentences were not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supported the finding of a statutory aggravating factor with respect to the murders; and, citing several cases in which the death penalty had been imposed previously for murders of persons who had witnessed a robbery, held:
"After considering both the crimes and the defendant and after comparing the evidence and the sentences in this case with those of previous murder cases, we are also of the opinion that these two sentences of death are not excessive or disproportionate to the penalties imposed in similar cases [219] which are hereto attached."[5] Id., at 127, 210 S. E. 2d, at 667.
However, it held with respect to the robbery sentences:
"Although there is no indication that these two [220] sentences were imposed under the influence of passion, prejudice or any other arbitrary factor, the sentences imposed here are unusual in that they are rarely imposed for this offense. Thus, under the test provided by statute for comparison (Code Ann. § 27-2537 (c), (3)), they must be considered to be excessive or disproportionate to the penalties imposed in similar cases." Ibid.
Accordingly, the sentences on the robbery counts were vacated.
III
The threshold question in this case is whether the death penalty may be carried out for murder under the Georgia legislative scheme consistent with the decision in Furman v. Georgia, supra. In Furman, this Court held that as a result of giving the sentencer unguided discretion to impose or not to impose the death penalty for murder, the penalty was being imposed discriminatorily,[6] [221] wantonly and freakishly,[7] and so infrequently[8] that any given death sentence was cruel and unusual. Petitioner argues that, as in Furman, the jury is still the sentencer; that the statutory criteria to be considered by the jury on the issue of sentence under Georgia's new statutory scheme are vague and do not purport to be all-inclusive; and that, in any event, there are no circumstances under which the jury is required to impose the death penalty.[9] Consequently, the petitioner argues that the death penalty will inexorably be imposed in as discriminatory, standardless, and rare a manner as it was imposed under the scheme declared invalid in Furman.
The argument is considerably overstated. The Georgia Legislature has made an effort to identify those aggravating factors which it considers necessary and relevant to the question whether a defendant convicted of capital murder should be sentenced to death.[10] The [222] jury which imposes sentence is instructed on all statutory aggravating factors which are supported by the evidence, and is told that it may not impose the death penalty unless it unanimously finds at least one of those factors to have been established beyond a reasonable doubt. The Georgia Legislature has plainly made an effort to guide the jury in the exercise of its discretion, while at the same time permitting the jury to dispense mercy on the basis of factors too intangible to write into a statute, and I cannot accept the naked assertion that the effort is bound to fail. As the types of murders for which the death penalty may be imposed become more narrowly defined and are limited to those which are particularly serious or for which the death penalty is peculiarly appropriate as they are in Georgia by reason of the aggravating-circumstance requirement, it becomes reasonable to expect that juries—even given discretion not to impose the death penalty—will impose the death penalty in a substantial portion of the cases so defined. If they do, it can no longer be said that the penalty is being imposed wantonly and freakishly or so infrequently that it loses its usefulness as a sentencing device. There is, therefore, reason to expect that Georgia's current system would escape the infirmities which invalidated its previous system under Furman. However, the Georgia Legislature was not satisfied with a system which might, but also might not, turn out in practice to result in death sentences being imposed with reasonable consistency for certain serious murders. Instead, it gave the Georgia Supreme Court the power and the obligation to perform precisely the task which three Justices of this Court, whose opinions were necessary to the result, performed [223] in Furman: namely, the task of deciding whether in fact the death penalty was being administered for any given class of crime in a discriminatory, standardless, or rare fashion.
In considering any given death sentence on appeal, the Georgia Supreme Court is to determine whether the sentence imposed was consistent with the relevant statutes—i. e., whether there was sufficient evidence to support the finding of an aggravating circumstance. Ga. Code Ann. § 27-2537 (c) (2) (Supp. 1975). However, it must do much more than determine whether the penalty was lawfully imposed. It must go on to decide—after reviewing the penalties imposed in "similar cases"— whether the penalty is "excessive or disproportionate" considering both the crime and the defendant. § 27-2537 (c) (3) (Supp. 1975). The new Assistant to the Supreme Court is to assist the court in collecting the records of "all capital felony cases"[11] in the State of Georgia in which sentence was imposed after January 1, 1970. § 27-2537 (f) (Supp. 1975). The court also has the obligation of determining whether the penalty was "imposed under the influence of passion, prejudice, or any other arbitrary factor." § 27-2537 (c) (1) (Supp. 1975). The Georgia Supreme Court has interpreted the appellate review statute to require it to set aside the death sentence whenever juries across the State impose it only rarely for the type of crime in question; but to require it to affirm death sentences whenever juries across the State generally impose it for the crime in question. [224] Thus, in this case the Georgia Supreme Court concluded that the death penalty was so rarely imposed for the crime of robbery that it set aside the sentences on the robbery counts, and effectively foreclosed that penalty from being imposed for that crime in the future under the legislative scheme now in existence. Similarly, the Georgia Supreme Court has determined that juries impose the death sentence too rarely with respect to certain classes of rape. Compare Coley v. State, 231 Ga. 829, 204 S. E. 2d 612 (1974), with Coker v. State, 234 Ga. 555, 216 S. E. 2d 782 (1975). However, it concluded that juries "generally throughout the state" have imposed the death penalty for those who murder witnesses to armed robberies. Jarrell v. State, 234 Ga. 410, 425, 216 S. E. 2d 258, 270 (1975). Consequently, it affirmed the sentences in this case on the murder counts. If the Georgia Supreme Court is correct with respect to this factual judgment, imposition of the death penalty in this and similar cases is consistent with Furman. Indeed, if the Georgia Supreme Court properly performs the task assigned to it under the Georgia statutes, death sentences imposed for discriminatory reasons or wantonly or freakishly for any given category of crime will be set aside. Petitioner has wholly failed to establish, and has not even attempted to establish, that the Georgia Supreme Court failed properly to perform its task in this case or that it is incapable of performing its task adequately in all cases; and this Court should not assume that it did not do so.
Petitioner also argues that decisions made by the prosecutor —either in negotiating a plea to some lesser offense than capital murder or in simply declining to charge capital murder—are standardless and will inexorably result in the wanton and freakish imposition of the penalty condemned by the judgment in Furman. I address this [225] point separately because the cases in which no capital offense is charged escape the view of the Georgia Supreme Court and are not considered by it in determining whether a particular sentence is excessive or disproportionate.
Petitioner's argument that prosecutors behave in a standardless fashion in deciding which cases to try as capital felonies is unsupported by any facts. Petitioner simply asserts that since prosecutors have the power not to charge capital felonies they will exercise that power in a standardless fashion. This is untenable. Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated in their charging decision by factors other than the strength of their case and the likelihood that a jury would impose the death penalty if it convicts. Unless prosecutors are incompetent in their judgments, the standards by which they decide whether to charge a capital felony will be the same as those by which the jury will decide the questions of guilt and sentence. Thus defendants will escape the death penalty through prosecutorial charging decisions only because the offense is not sufficiently serious; or because the proof is insufficiently strong. This does not cause the system to be standardless any more than the jury's decision to impose life imprisonment on a defendant whose crime is deemed insufficiently serious or its decision to acquit someone who is probably guilty but whose guilt is not established beyond a reasonable doubt. Thus the prosecutor's charging decisions are unlikely to have removed from the sample of cases considered by the Georgia Supreme Court any which are truly "similar." If the cases really were "similar" in relevant respects, it is unlikely that prosecutors would fail to prosecute them as capital cases; and I am unwilling to assume the contrary.
Petitioner's argument that there is an unconstitutional [226] amount of discretion in the system which separates those suspects who receive the death penalty from those who receive life imprisonment, a lesser penalty, or are acquitted or never charged, seems to be in final analysis an indictment of our entire system of justice. Petitioner has argued, in effect, that no matter how effective the death penalty may be as a punishment, government, created and run as it must be by humans, is inevitably incompetent to administer it. This cannot be accepted as a proposition of constitutional law. Imposition of the death penalty is surely an awesome responsibility for any system of justice and those who participate in it. Mistakes will be made and discriminations will occur which will be difficult to explain. However, one of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. I decline to interfere with the manner in which Georgia has chosen to enforce such laws on what is simply an assertion of lack of faith in the ability of the system of justice to operate in a fundamentally fair manner.
IV
For the reasons stated in dissent in Roberts v. Louisiana, post, at 350-356, neither can I agree with the petitioner's other basic argument that the death penalty, however imposed and for whatever crime, is cruel and unusual punishment.
I therefore concur in the judgment of affirmance.
Statement of THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST:
We concur in the judgment and join the opinion of MR. JUSTICE WHITE, agreeing with its analysis that Georgia's system of capital punishment comports with [227] the Court's holding in Furman v. Georgia, 408 U. S. 238 (1972).
MR. JUSTICE BLACKMUN, concurring in the judgment.
I concur in the judgment. See Furman v. Georgia, 408 U. S. 238, 405-414 (1972) (BLACKMUN, J., dissenting), and id., at 375 (BURGER, C. J., dissenting); id., at 414 POWELL, J., dissenting); id., at 465 (REHNQUIST, J., dissenting).
MR. JUSTICE BRENNAN, dissenting.[*]
The Cruel and Unusual Punishments Clause "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[1] The opinions of MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS today hold that "evolving standards of decency" require focus not on the essence of the death penalty itself but primarily upon the procedures employed by the State to single out persons to suffer the penalty of death. Those opinions hold further that, so viewed, the Clause invalidates the mandatory infliction of the death penalty but not its infliction under sentencing procedures that MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE STEVENS conclude adequately safeguard against the risk that the death penalty was imposed in an arbitrary and capricious manner.
In Furman v. Georgia, 408 U. S. 238, 257 (1972) (concurring opinion), I read "evolving standards of decency" as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the procedures [228] under which the determination to inflict the penalty upon a particular person was made. I there said:
"From the beginning of our Nation, the punishment of death has stirred acute public controversy. Although pragmatic arguments for and against the punishment have been frequently advanced, this longstanding and heated controversy cannot be explained solely as the result of differences over the practical wisdom of a particular government policy. At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world, `the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries.' It is this essentially moral conflict that forms the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime." Id., at 296.[2]
That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional [229] system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. Thus, I too say: "For myself, I do not hesitate to assert the proposition that the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts, or, as stated by the Supreme Court . . . the application of `evolving standards of decency' . . . ."[3]
This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, "moral concepts" require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw, and the wheel, is no longer morally tolerable in our civilized society.[4] My opinion in Furman v. Georgia concluded that our civilization and the law had progressed to this point and that therefore the punishment of death, for whatever crime and under all circumstances, is "cruel and unusual" in violation of the Eighth and Fourteenth Amendments of the Constitution. I shall not again canvass the reasons that led to that conclusion. I emphasize only that foremost among the "moral concepts" recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity. A judicial determination [230] whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause. 408 U. S., at 270.
I do not understand that the Court disagrees that "[i]n comparison to all other punishments today . . . the deliberate extinguishment of human life by the State is uniquely degrading to human dignity." Id., at 291. For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death for whatever crime and under all circumstances "is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. . . . An executed person has indeed `lost the right to have rights.' " Id., at 290. Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment. Id., at 279.
The fatal constitutional infirmity in the punishment of death is that it treats "members of the human race as nonhumans, as objects to be toyed with and discarded. [It is] thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity." Id., at 273. As such it is a penalty that "subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause]."[5] I therefore would hold, [231] on that ground alone, that death is today a cruel and unusual punishment prohibited by the Clause. "Justice of this kind is obviously no less shocking than the crime itself, and the new `official' murder, far from offering redress for the offense committed against society, adds instead a second defilement to the first."[6]
I dissent from the judgments in No. 74-6257, Gregg v. Georgia, No. 75-5706, Proffitt v. Florida, and No. 75-5394, Jurek v. Texas, insofar as each upholds the death sentences challenged in those cases. I would set aside the death sentences imposed in those cases as violative of the Eighth and Fourteenth Amendments.
MR. JUSTICE MARSHALL, dissenting.[*]
In Furman v. Georgia, 408 U. S. 238, 314 (1972) (concurring opinion), I set forth at some length my views on the basic issue presented to the Court in these cases. The death penalty, I concluded, is a cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. That continues to be my view.
I have no intention of retracing the "long and tedious journey," id., at 370, that led to my conclusion in Furman. My sole purposes here are to consider the suggestion that my conclusion in Furman has been undercut by developments since then, and briefly to evaluate the basis for my Brethren's holding that the extinction of life is a permissible form of punishment under the Cruel and Unusual Punishments Clause.
In Furman I concluded that the death penalty is constitutionally invalid for two reasons. First, the death penalty is excessive. Id., at 331-332; 342-359. And [232] second, the American people, fully informed as to the purposes of the death penalty and its liabilities, would in my view reject it as morally unacceptable. Id., at 360-369.
Since the decision in Furman, the legislatures of 35 States have enacted new statutes authorizing the imposition of the death sentence for certain crimes, and Congress has enacted a law providing the death penalty for air piracy resulting in death. 49 U. S. C. §§ 1472 (i), (n) (1970 ed., Supp. IV). I would be less than candid if I did not acknowledge that these developments have a significant bearing on a realistic assessment of the moral acceptability of the death penalty to the American people. But if the constitutionality of the death penalty turns, as I have urged, on the opinion of an informed citizenry, then even the enactment of new death statutes cannot be viewed as conclusive. In Furman, I observed that the American people are largely unaware of the information critical to a judgment on the morality of the death penalty, and concluded that if they were better informed they would consider it shocking, unjust, and unacceptable. 408 U. S., at 360-369. A recent study, conducted after the enactment of the post-Furman statutes, has confirmed that the American people know little about the death penalty, and that the opinions of an informed public would differ significantly from those of a public unaware of the consequences and effects of the death penalty.[1]
Even assuming, however, that the post-Furman enactment of statutes authorizing the death penalty renders the prediction of the views of an informed citizenry an [233] uncertain basis for a constitutional decision, the enactment of those statutes has no bearing whatsoever on the conclusion that the death penalty is unconstitutional because it is excessive. An excessive penalty is invalid under the Cruel and Unusual Punishments Clause "even though popular sentiment may favor" it. Id., at 331; ante, at 173, 182-183 (opinion of STEWART, POWELL, and STEVENS, JJ.); Roberts v. Louisiana, post, at 353-354 (WHITE, J., dissenting). The inquiry here, then, is simply whether the death penalty is necessary to accomplish the legitimate legislative purposes in punishment, or whether a less severe penalty—life imprisonment —would do as well. Furman, supra, at 342 (MARSHALL, J., concurring).
The two purposes that sustain the death penalty as nonexcessive in the Court's view are general deterrence and retribution. In Furman, I canvassed the relevant data on the deterrent effect of capital punishment. 408 U. S., at 347-354.[2] The state of knowledge at that point, after literally centuries of debate, was summarized as follows by a United Nations Committee:
"It is generally agreed between the retentionists and abolitionists, whatever their opinions about the validity of comparative studies of deterrence, that the data which now exist show no correlation between the existence of capital punishment and lower rates of capital crime."[3]
The available evidence, I concluded in Furman, was convincing that "capital punishment is not necessary as a deterrent to crime in our society." Id., at 353.
The Solicitor General in his amicus brief in these cases [234] relies heavily on a study by Isaac Ehrlich,[4] reported a year after Furman, to support the contention that the death penalty does deter murder. Since the Ehrlich study was not available at the time of Furman and since it is the first scientific study to suggest that the death penalty may have a deterrent effect, I will briefly consider its import.
The Ehrlich study focused on the relationship in the Nation as a whole between the homicide rate and "execution risk"—the fraction of persons convicted of murder who were actually executed. Comparing the differences in homicide rate and execution risk for the years 1933 to 1969, Ehrlich found that increases in execution risk were associated with increases in the homicide rate.[5] But when he employed the statistical technique of multiple regression analysis to control for the influence of other variables posited to have an impact on the homicide rate,[6] Ehrlich found a negative correlation between changes in the homicide rate and changes in execution risk. His tentative conclusion was that for the period from 1933 to 1967 each additional execution in the United States might have saved eight lives.[7]
The methods and conclusions of the Ehrlich study [235] have been severely criticized on a number of grounds.[8] It has been suggested, for example, that the study is defective because it compares execution and homicide rates on a nationwide, rather than a state-by-state, basis. The aggregation of data from all States—including those that have abolished the death penalty—obscures the relationship between murder and execution rates. Under Ehrlich's methodology, a decrease in the execution risk in one State combined with an increase in the murder rate in another State would, all other things being equal, suggest a deterrent effect that quite obviously would not exist. Indeed, a deterrent effect would be suggested if, once again all other things being equal, one State abolished the death penalty and experienced no change in the murder rate, while another State experienced an increase in the murder rate.[9]
The most compelling criticism of the Ehrlich study is [236] that its conclusions are extremely sensitive to the choice of the time period included in the regression analysis. Analysis of Ehrlich's data reveals that all empirical support for the deterrent effect of capital punishment disappears when the five most recent years are removed from his time series—that is to say, whether a decrease in the execution risk corresponds to an increase or a decrease in the murder rate depends on the ending point of the sample period.[10] This finding has cast severe doubts on the reliability of Ehrlich's tentative conclusions.[11] Indeed, a recent regression study, based on Ehrlich's theoretical model but using cross-section state data for the years 1950 and 1960, found no support for the conclusion that executions act as a deterrent.[12]
The Ehrlich study, in short, is of little, if any, assistance in assessing the deterrent impact of the death penalty. Accord, Commonwealth v. O'Neal, — Mass. —, —, 339 N. E. 2d 676, 684 (1975). The evidence I reviewed in Furman[13] remains convincing, in my view, that "capital punishment is not necessary as a deterrent to crime in our society." 408 U. S., at 353. The justification for the death penalty must be found elsewhere.
The other principal purpose said to be served by the death penalty is retribution.[14] The notion that retribution [237] can serve as a moral justification for the sanction of death finds credence in the opinion of my Brothers STEWART, POWELL, and STEVENS, and that of my Brother WHITE in Roberts v. Louisiana, post, p. 337. See also Furman v. Georgia, 408 U. S., at 394-395 (BURGER, C. J., dissenting). It is this notion that I find to be the most disturbing aspect of today's unfortunate decisions.
The concept of retribution is a multifaceted one, and any discussion of its role in the criminal law must be undertaken with caution. On one level, it can be said that the notion of retribution or reprobation is the basis of our insistence that only those who have broken the law be punished, and in this sense the notion is quite obviously central to a just system of criminal sanctions. But our recognition that retribution plays a crucial role in determining who may be punished by no means requires approval of retribution as a general justification for punishment.[15] It is the question whether retribution can provide a moral justification for punishment—in particular, capital punishment—that we must consider.
My Brothers STEWART, POWELL, and STEVENS offer the following explanation of the retributive justification for capital punishment:
" `The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed [238] by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they `deserve,' then there are sown the seeds of anarchy—of self-help, vigilante justice, and lynch law.' " Ante, at 183, quoting from Furman v. Georgia, supra, at 308 (STEWART, J., concurring).
This statement is wholly inadequate to justify the death penalty. As my Brother BRENNAN stated in Furman, "[t]here is no evidence whatever that utilization of imprisonment rather than death encourages private blood feuds and other disorders." 408 U. S., at 303 (concurring opinion).[16] It simply defies belief to suggest that the death penalty is necessary to prevent the American people from taking the law into their own hands.
In a related vein, it may be suggested that the expression of moral outrage through the imposition of the death penalty serves to reinforce basic moral values— that it marks some crimes as particularly offensive and therefore to be avoided. The argument is akin to a deterrence argument, but differs in that it contemplates the individual's shrinking from antisocial conduct, not because he fears punishment, but because he has been told in the strongest possible way that the conduct is wrong. This contention, like the previous one, provides no support for the death penalty. It is inconceivable that any individual concerned about conforming his conduct to what society says is "right" would fail to realize that murder is "wrong" if the penalty were simply life imprisonment.
The foregoing contentions—that society's expression of moral outrage through the imposition of the death penalty pre-empts the citizenry from taking the law into its [239] own hands and reinforces moral values—are not retributive in the purest sense. They are essentially utilitarian in that they portray the death penalty as valuable because of its beneficial results. These justifications for the death penalty are inadequate because the penalty is, quite clearly I think, not necessary to the accomplishment of those results.
There remains for consideration, however, what might be termed the purely retributive justification for the death penalty—that the death penalty is appropriate, not because of its beneficial effect on society, but because the taking of the murderer's life is itself morally good.[17] Some of the language of the opinion of my Brothers STEWART, POWELL, and STEVENS in No. 74-6257 appears positively to embrace this notion of retribution for its own sake as a justification for capital punishment.[18] They state:
"[T]he decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death." Ante, at 184 (footnote omitted).
[240] They then quote with approval from Lord Justice Denning's remarks before the British Royal Commission on Capital Punishment:
" `The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.' " Ante, at 184 n. 30.
Of course, it may be that these statements are intended as no more than observations as to the popular demands that it is thought must be responded to in order to prevent anarchy. But the implication of the statements appears to me to be quite different—namely, that society's judgment that the murderer "deserves" death must be respected not simply because the preservation of order requires it, but because it is appropriate that society make the judgment and carry it out. It is this latter notion, in particular, that I consider to be fundamentally at odds with the Eighth Amendment. See Furman v. Georgia, 408 U. S., at 343-345 (MARSHALL, J., concurring). The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for as JUSTICES STEWART, POWELL, and STEVENS remind us, "the Eighth Amendment demands more than that a challenged punishment be acceptable to contemporary society." Ante, at 182. To be sustained under the Eighth Amendment, the death penalty must "compor[t] with the basic concept of human dignity at the core of the Amendment," ibid.; the objective in imposing it must be "[consistent] with our respect for the dignity of [other] men." Ante, at 183. See Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion). Under these standards, the taking of life "because the wrongdoer deserves it" surely must [241] fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth.[19]
The death penalty, unnecessary to promote the goal of deterrence or to further any legitimate notion of retribution, is an excessive penalty forbidden by the Eighth and Fourteenth Amendments. I respectfully dissent from the Court's judgment upholding the sentences of death imposed upon the petitioners in these cases.
[*] Jack Greenberg, James M. Nabrit III, Peggy C. Davis, and Anthony G. Amsterdam filed a brief for the N. A. A. C. P. Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Arthur M. Michaelson filed a brief for Amnesty International as amicus curiae.
[1] On cross-examination the State introduced a letter written by the petitioner to Allen entitled, "[a] statement for you," with the instructions that Allen memorize and then burn it. The statement was consistent with the petitioner's testimony at trial.
[2] The court further held, in part, that the trial court did not err in refusing to instruct the jury with respect to voluntary manslaughter since there was no evidence to support that verdict.
[3] Subsequent to the trial in this case limited portions of the Georgia statute were amended. None of these amendments changed significantly the substance of the statutory scheme. All references to the statute in this opinion are to the current version.
[4] Georgia Code Ann. § 26-1101 (1972) provides:
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
[5] Section 26-1902 (1972) provides:
"A person commits armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. The offense robbery by intimidation shall be a lesser included offense in the offense of armed robbery. A person convicted of armed robbery shall be punished by death or imprisonment for life, or by imprisonment for not less than one nor more than 20 years."
[6] These capital felonies currently are defined as they were when Furman was decided. The 1973 amendments to the Georgia statute, however, narrowed the class of crimes potentially punishable by death by eliminating capital perjury. Compare § 26-2401 (Supp. 1975) with § 26-2401 (1972).
[7] It is not clear whether the 1974 amendments to the Georgia statute were intended to broaden the types of evidence admissible at the presentence hearing. Compare § 27-2503 (a) (Supp. 1975) with § 27-2534 (1972) (deletion of limitation "subject to the laws of evidence").
[8] Essentially the same procedures are followed in the case of a guilty plea. The judge considers the factual basis of the plea, as well as evidence in aggravation and mitigation. See Mitchell v. State, 234 Ga. 160, 214 S. E. 2d 900 (1975).
[9] The statute provides in part:
"(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason, in any case.
"(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
"(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions.
"(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony, or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree.
"(3) The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person.
"(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value.
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor or former district attorney or solicitor during or because of the exercise of his official duty.
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.
"(8) The offense of murder was committed against any peace officer, corrections employee or fireman while engaged in the performance of his official duties.
"(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement.
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another.
"(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In non-jury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in section 27-2534.1 (b) is so found, the death penalty shall not be imposed." § 27-2534.1 (Supp. 1975).
The Supreme Court of Georgia, in Arnold v. State, 236 Ga. 534, 540, 224 S. E. 2d 386, 391 (1976), recently held unconstitutional the portion of the first circumstance encompassing persons who have a "substantial history of serious assaultive criminal convictions" because it did not set "sufficiently `clear and objective standards.' "
[10] The statute requires that the Supreme Court of Georgia obtain and preserve the records of all capital felony cases in which the death penalty was imposed after January 1, 1970, or such earlier date that the court considers appropriate. § 27-2537 (f) (Supp. 1975). To aid the court in its disposition of these cases the statute further provides for the appointment of a special assistant and authorizes the employment of additional staff members. §§ 27-2537 (f)-(h) (Supp. 1975).
[11] See Ga. Const., Art. 5, § 1, ¶ 12, Ga. Code Ann. § 2-3011 (1973); Ga. Code Ann. §§ 77-501, 77-511, 77-513 (1973 and Supp. 1975) (Board of Pardons and Paroles is authorized to commute sentence of death except in cases where Governor refuses to suspend that sentence).
[12] Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 464 (1947); In re Kemmler, 136 U. S. 436, 447 (1890); Wilkerson v. Utah, 99 U. S. 130, 134-135 (1879). See also McGautha v. California, 402 U. S. 183 (1971); Witherspoon v. Illinois, 391 U. S. 510 (1968); Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion).
[13] 408 U. S., at 375 (BURGER, C. J., dissenting); id., at 405 (BLACKMUN, J., dissenting); id., at 414 (POWELL, J., dissenting); id., at 465 (REHNQUIST, J., dissenting).
[14] Id., at 257 (BRENNAN, J., concurring); id., at 314 (MARSHALL, J., concurring).
[15] Id., at 240 (Douglas, J., concurring); id., at 306 (STEWART, J., concurring); id., at 310 (WHITE, J., concurring).
Since five Justices wrote separately in support of the judgments in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds— MR. JUSTICE STEWART and MR. JUSTICE WHITE. See n. 36, infra.
[16] 408 U. S., at 316-328 (MARSHALL, J., concurring).
[17] This conclusion derives primarily from statements made during the debates in the various state conventions called to ratify the Federal Constitution. For example, Virginia delegate Patrick Henry objected vehemently to the lack of a provision banning "cruel and unusual punishments":
"What has distinguished our ancestors?—That they would not admit of tortures, or cruel and barbarous punishment. But Congress may introduce the practice of the civil law, in preference to that of the common law. They may introduce the practice of France, Spain, and Germany—of torturing, to extort a confession of the crime." 3 J. Elliot, Debates 447-448 (1863).
A similar objection was made in the Massachusetts convention:
"They are nowhere restrained from inventing the most cruel and unheard-of punishments and annexing them to crimes; and there is no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their discipline." 2 Elliot, supra, at 111.
[18] The Court remarked on the fact that the law under review "has come to us from a government of a different form and genius from ours," but it also noted that the punishments it inflicted "would have those bad attributes even if they were found in a Federal enactment and not taken from an alien source." 217 U. S., at 377.
[19] Although legislative measures adopted by the people's chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of Eighth Amendment standards since that Amendment was intended to safeguard individuals from the abuse of legislative power. See Weems v. United States, 217 U. S. 349, 371-373 (1910); Furman v. Georgia, 408 U. S., at 258-269 (BRENNAN, J., concurring). Robinson v. California, 370 U. S. 660 (1962), illustrates the proposition that penal laws enacted by state legislatures may violate the Eighth Amendment because "in the light of contemporary human knowledge" they "would doubtless be universally thought to be an infliction of cruel and unusual punishment." Id., at 666. At the time of Robinson nine States in addition to California had criminal laws that punished addiction similar to the law declared unconstitutional in Robinson. See Brief for Appellant in Robinson v. California, O. T. 1961, No. 554, p. 15.
[20] See also Furman v. Georgia, supra, at 411 (BLACKMUN, J., dissenting):
"We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action, to guide our judicial decision in cases such as these. The temptations to cross that policy line are very great."
[21] See concurring opinions of MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, 408 U. S., at 257 and 314.
[22] See concurring opinions of Mr. Justice Douglas, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, id., at 240, 306, and 310.
[23] Ala. H. B. 212, §§ 2-4, 6-7 (1975); Ariz. Rev. Stat. Ann. §§ 13-452 to 13-454 (Supp. 1973); Ark. Stat. Ann. § 41-4706 (Supp. 1975); Cal. Penal Code §§ 190.1, 209, 219 (Supp. 1976); Colo. Laws 1974, c. 52, § 4; Conn. Gen. Stat. Rev. §§ 53a-25, 53a-35 (b), 53a-46a, 53a-54b (1975); Del. Code Ann. tit. 11, § 4209 (Supp. 1975); Fla. Stat. Ann. §§ 782.04, 921.141 (Supp. 1975-1976); Ga. Code Ann. §§ 26-3102, 27-2528, 27-2534.1, 27-2537 (Supp. 1975); Idaho Code § 18-4004 (Supp. 1975); Ill. Ann. Stat. c. 38, §§ 9-1, 1005-5-3, 1005-8-1A (Supp. 1976-1977); Ind. Stat. Ann. § 35-13-4-1 (1975); Ky. Rev. Stat. Ann. § 507.020 (1975); La. Rev. Stat. Ann. § 14:30 (Supp. 1976); Md. Ann. Code, art. 27, § 413 (Supp. 1975); Miss. Code Ann. §§ 97-3-19, 97-3-21, 97-25-55, 99-17-20 (Supp. 1975); Mo. Ann. Stat. § 559.009, 559.005 (Supp. 1976); Mont. Rev. Codes Ann. § 94-5-105 (Spec. Crim. Code Supp. 1976); Neb. Rev. Stat. §§ 28-401, 29-2521 to 29-2523 (1975); Nev. Rev. Stat. § 200.030 (1973); N. H. Rev. Stat. Ann. § 630:1 (1974); N. M. Stat. Ann. § 40A-29-2 (Supp. 1975); N. Y. Penal Law § 60.06 (1975); N. C. Gen. Stat. § 14-17 (Supp. 1975); Ohio Rev. Code Ann. §§ 2929.02-2929.04 (1975); Okla. Stat. Ann. tit. 21, § 701.1-701.3 (Supp. 1975-1976); Pa. Laws 1974, Act. No. 46; R. I. Gen. Laws Ann. § 11-23-2 (Supp. 1975); S. C. Code Ann. § 16-52 (Supp. 1975); Tenn. Code Ann. §§ 39-2402, 39-2406 (1975); Tex. Penal Code Ann. § 19.03 (a) (1974); Utah Code Ann. §§ 76-3-206, 76-3-207, 76-5-202 (Supp. 1975); Va. Code Ann. §§ 18.2-10, 18.2-31 (1976); Wash. Rev. Code §§ 9A.32.045, 9A.32.046 (Supp. 1975); Wyo. Stat. Ann. § 6-54 (Supp. 1975).
[24] Antihijacking Act of 1974, 49 U. S. C. §§ 1472 (i), (n) (1970 ed., Supp. IV).
[25] In 1968, the people of Massachusetts were asked "Shall the commonwealth . . . retain the death penalty for crime?" A substantial majority of the ballots cast answered "Yes." Of 2,348,005 ballots cast, 1,159,348 voted "Yes," 730,649 voted "No," and 458,008 were blank. See Commonwealth v. O'Neal, — Mass. —, —, and n. 1. 339 N. E. 2d 676, 708, and n. 1 (1975) (Reardon, J., dissenting). A December 1972 Gallup poll indicated that 57% of the people favored the death penalty, while a June 1973 Harris survey showed support of 59%. Vidmar & Ellsworth, Public Opinion and the Death Penalty, 26 Stan. L. Rev. 1245, 1249 n. 22 (1974). In a December 1970 referendum, the voters of Illinois also rejected the abolition of capital punishment by 1,218,791 votes to 676,302 votes. Report of the Governor's Study Commission on Capital Punishment 43 (Pa. 1973).
[26] The number of prisoners who received death sentences in the years from 1961 to 1972 varied from a high of 140 in 1961 to a low of 75 in 1972, with wide fluctuations in the intervening years: 103 in 1962; 93 in 1963; 106 in 1964; 86 in 1965; 118 in 1966; 85 in 1967; 102 in 1968; 97 in 1969; 127 in 1970; and 104 in 1971. Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1971-1972, p. 20 (Dec. 1974). It has been estimated that before Furman less than 20% of those convicted of murder were sentenced to death in those States that authorized capital punishment. See Woodson v. North Carolina, post, at 295-296, n. 31.
[27] Department of Justice, National Prisoner Statistics Bulletin, Capital Punishment 1974, pp. 1, 26-27 (Nov. 1975).
[28] Another purpose that has been discussed is the incapacitation of dangerous criminals and the consequent prevention of crimes that they may otherwise commit in the future. See People v. Anderson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert. denied, 406 U. S. 958 (1972); Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 685-686.
[29] See H. Packer, Limits of the Criminal Sanction 43-44 (1968).
[30] Lord Justice Denning, Master of the Rolls of the Court of Appeal in England, spoke to this effect before the British Royal Commission on Capital Punishment:
"Punishment is the way in which society expresses its denunciation of wrong doing: and, in order to maintain respect for law, it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive and nothing else. . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." Royal Commission on Capital Punishment, Minutes of Evidence, Dec. 1, 1949, p. 207 (1950).
A contemporary writer has noted more recently that opposition to capital punishment "has much more appeal when the discussion is merely academic than when the community is confronted with a crime, or a series of crimes, so gross, so heinous, so cold-blooded that anything short of death seems an inadequate response." Raspberry, Death Sentence, The Washington Post, Mar. 12, 1976, p. A27, cols. 5-6.
[31] See, e. g., Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976); Baldus & Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L. J. 187 (1975); Ehrlich. The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June 1975); Hook, The Death Sentence, in The Death Penalty in America 146 (H. Bedau ed. 1967); T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
[32] See, e. g., The Death Penalty in America, supra, at 258-332; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932.
[33] Other types of calculated murders, apparently occurring with increasing frequency, include the use of bombs or other means of indiscriminate killings, the extortion murder of hostages or kidnap victims, and the execution-style killing of witnesses to a crime.
[34] We have been shown no statistics breaking down the total number of murders into the categories described above. The overall trend in the number of murders committed in the nation, however, has been upward for some time. In 1964, reported murders totaled an estimated 9,250. During the ensuing decade, the number reported increased 123%, until it totaled approximately 20,600 in 1974. In 1972, the year Furman was announced, the total estimated was 18,520. Despite a fractional decrease in 1975 as compared with 1974, the number of murders increased in the three years immediately following Furman to approximately 20,400, an increase of almost 10%. See FBI, Uniform Crime Reports, for 1964, 1972, 1974, and 1975, Preliminary Annual Release.
[35] We do not address here the question whether the taking of the criminal's life is a proportionate sanction where no victim has been deprived of life—for example, when capital punishment is imposed for rape, kidnaping, or armed robbery that does not result in the death of any human being.
[36] This view was expressed by other Members of the Court who concurred in the judgments. See 408 U. S., at 255-257 (Douglas, J.); id., at 291-295 (BRENNAN, J.). The dissenters viewed this concern as the basis for the Furman decision: "The decisive grievance of the opinions . . . is that the present system of discretionary sentencing in capital cases has failed to produce even-handed justice; . . . that the selection process has followed no rational pattern." Id., at 398-399 (BURGER, C. J., dissenting).
[37] The Federal Rules of Criminal Procedure require as a matter of course that a presentence report containing information about a defendant's background be prepared for use by the sentencing judge. Rule 32 (c). The importance of obtaining accurate sentencing information is underscored by the Rule's direction to the sentencing court to "afford the defendant or his counsel an opportunity to comment [on the report] and, at the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report." Rule 32 (c) (3) (A).
[38] Indeed, we hold elsewhere today that in capital cases it is constitutionally required that the sentencing authority have information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of a death sentence. See Woodson v. North Carolina, post, at 303-305.
[39] Witherspoon v. Illinois, 391 U. S., at 519 n. 15, quoting Trop v. Dulles, 356 U. S., at 101 (plurality opinion). See also Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶ 571.
[40] In other situations this Court has concluded that a jury cannot be expected to consider certain evidence before it on one issue, but not another. See, e. g., Bruton v. United States, 391 U. S. 123 (1968); Jackson v. Denno, 378 U. S. 368 (1964).
[41] In United States v. Jackson, 390 U. S. 570 (1968), the Court considered a statute that provided that if a defendant pleaded guilty, the maximum penalty would be life imprisonment, but if a defendant chose to go to trial, the maximum penalty upon conviction was death. In holding that the statute was constitutionally invalid, the Court noted:
"The inevitable effect of any such provision is, of course, to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. If the provision had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional." Id., at 581.
[42] But see Md. Const., Art. XV, § 5: "In the trial of all criminal cases, the jury shall be the Judges of the Law, as well as of fact . . . ." See also Md. Code Ann., art. 27, § 593 (1971). Maryland judges, however, typically give advisory instructions on the law to the jury. See Md. Rule 756; Wilson v. State, 239 Md. 245, 210 A. 2d 824 (1965).
[43] See McGautha v. California, 402 U. S., at 204-207; Report of the Royal Commission on Capital Punishment, 1949-1953, Cmd. 8932, ¶ 595.
[44] The Model Penal Code proposes the following standards:
"(3) Aggravating Circumstances.
"(a) The murder was committed by a convict under sentence of imprisonment.
"(b) The defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person.
"(c) At the time the murder was committed the defendant also committed another murder.
"(d) The defendant knowingly created a great risk of death to many persons.
"(e) The murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
"(f) The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody.
"(g) The murder was committed for pecuniary gain.
"(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.
"(4) Mitigating Circumstances.
"(a) The defendant has no significant history of prior criminal activity.
"(b) The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance.
"(c) The victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.
"(d) The murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct.
"(e) The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor.
"(f) The defendant acted under duress or under the domination of another person.
"(g) At the time of the murder, the capacity of the defendant to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.
"(h) The youth of the defendant at the time of the crime." ALI Model Penal Code § 210.6 (Proposed Official Draft 1962).
[45] As MR. JUSTICE BRENNAN noted in McGautha v. California, supra, at 285-286 (dissenting opinion):
"[E]ven if a State's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application . . . there is no reason that it should not give some guidance to those called upon to render decision."
[46] A system could have standards so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.
[47] In McGautha v. California, supra, this Court held that the Due Process Clause of the Fourteenth Amendment did not require that a jury be provided with standards to guide its decision whether to recommend a sentence of life imprisonment or death or that the capital-sentencing proceeding be separated from the guilt-determination process. McGautha was not an Eighth Amendment decision, and to the extent it purported to deal with Eighth Amendment concerns, it must be read in light of the opinions in Furman v. Georgia. There the Court ruled that death sentences imposed under statutes that left juries with untrammeled discretion to impose or withhold the death penalty violated the Eighth and Fourteenth Amendments. While Furman did not overrule McGautha, it is clearly in substantial tension with a broad reading of McGautha's holding. In view of Furman, McGautha can be viewed rationally as a precedent only for the proposition that standardless jury sentencing procedures were not employed in the cases there before the Court so as to violate the Due Process Clause. We note that McGautha's assumption that it is not possible to devise standards to guide and regularize jury sentencing in capital cases has been undermined by subsequent experience. In view of that experience and the considerations set forth in the text, we adhere to Furman's determination that where the ultimate punishment of death is at issue a system of standardless jury discretion violates the Eighth and Fourteenth Amendments.
[48] The text of the statute enumerating the various aggravating circumstances is set out at n. 9, supra.
[49] See Moore v. State, 233 Ga. 861, 865, 213 S. E. 2d 829, 832 (1975).
[50] The petitioner's argument is nothing more than a veiled contention that Furman indirectly outlawed capital punishment by placing totally unrealistic conditions on its use. In order to repair the alleged defects pointed to by the petitioner, it would be necessary to require that prosecuting authorities charge a capital offense whenever arguably there had been a capital murder and that they refuse to plea bargain with the defendant. If a jury refused to convict even though the evidence supported the charge, its verdict would have to be reversed and a verdict of guilty entered or a new trial ordered, since the discretionary act of jury nullification would not be permitted. Finally, acts of executive clemency would have to be prohibited. Such a system, of course, would be totally alien to our notions of criminal justice.
Moreover, it would be unconstitutional. Such a system in many respects would have the vices of the mandatory death penalty statutes we hold unconstitutional today in Woodson v. North Carolina, post, p. 280, and Roberts v. Louisiana, post, p. 325. The suggestion that a jury's verdict of acquittal could be overturned and a defendant retried would run afoul of the Sixth Amendment jury-trial guarantee and the Double Jeopardy Clause of the Fifth Amendment. In the federal system it also would be unconstitutional to prohibit a President from deciding, as an act of executive clemency, to reprieve one sentenced to death. U. S. Const., Art. II, § 2.
[51] In light of the limited grant of certiorari, see supra, at 162, we review the "vagueness" and "overbreadth" of the statutory aggravating circumstances only to consider whether their imprecision renders this capital-sentencing system invalid under the Eighth and Fourteenth Amendments because it is incapable of imposing capital punishment other than by arbitrariness or caprice.
[52] In the course of interpreting Florida's new capital-sentencing statute, the Supreme Court of Florida has ruled that the phrase "especially heinous, atrocious or cruel" means a "conscienceless or pitiless crime which is unnecessarily torturous to the victim." State v. Dixon, 283 So. 2d 1, 9 (1973). See Proffitt v. Florida, post, at 255-256.
[53] Two other reported cases indicate that juries have found aggravating circumstances based on § 27-2534.1 (b) (7). In both cases a separate statutory aggravating circumstance was also found, and the Supreme Court of Georgia did not explicitly rely on the finding of the seventh circumstance when it upheld the death sentence. See Jarrell v. State, 234 Ga. 410, 216 S. E. 2d 258 (1975) (State Supreme Court upheld finding that defendant committed two other capital felonies—kidnapping and armed robbery—in the course of the murder, § 27-2534.1 (b) (2); jury also found that the murder was committed for money, § 27-2534.1 (b) (4), and that a great risk of death to bystanders was created, § 27-2534.1 (b) (3)); Floyd v. State, 233 Ga. 280, 210 S. E. 2d 810 (1974) (found to have committed a capital felony—armed robbery—in the course of the murder, § 27-2534.1 (b) (2)).
[54] The petitioner also attacks § 25-2534.1 (b) (7) as vague. As we have noted in answering his overbreadth argument concerning this section, however, the state court has not given a broad reading to the scope of this provision, and there is no reason to think that juries will not be able to understand it. See n. 51, supra; Proffitt v. Florida, post, at 255-256.
[55] The petitioner also objects to the last part of § 27-2534.1 (b) (3) which requires that the great risk be created "by means of a weapon or device which would normally be hazardous to the lives of more than one person." While the state court has not focused on this section, it seems reasonable to assume that if a great risk in fact is created, it will be likely that a weapon or device normally hazardous to more than one person will have created it.
[56] The court is required to specify in its opinion the similar cases which it took into consideration. § 27-2537 (e) (Supp. 1975). Special provision is made for staff to enable the court to compile data relevant to its consideration of the sentence's validity. §§ 27-2537 (f)-(h) (Supp. 1975). See generally supra, at 166-168.
The petitioner claims that this procedure has resulted in an inadequate basis for measuring the proportionality of sentences. First, he notes that nonappealed capital convictions where a life sentence is imposed and cases involving homicides where a capital conviction is not obtained are not included in the group of cases which the Supreme Court of Georgia uses for comparative purposes. The Georgia court has the authority to consider such cases, see Ross v. State, 233 Ga. 361, 365-366, 211 S. E. 2d 356, 359 (1974), and it does consider appealed murder cases where a life sentence has been imposed. We do not think that the petitioner's argument establishes that the Georgia court's review process is ineffective. The petitioner further complains about the Georgia court's current practice of using some pre-Furman cases in its comparative examination. This practice was necessary at the inception of the new procedure in the absence of any post-Furman capital cases available for comparison. It is not unconstitutional.
[1] Section 26-1101 provides as follows:
"Murder.
"(a) A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
"(b) A person also commits the crime of murder when in the commission of a felony he causes the death of another human being, irrespective of malice.
"(c) A person convicted of murder shall be punished by death or by imprisonment for life."
The death penalty may also be imposed for kidnaping, Ga. Code Ann. § 26-1311; armed robbery, § 26-1902; rape, § 26-2001; treason, § 26-2201; and aircraft hijacking, § 26-3301.
[2] Section 26-3102 (Supp. 1975) provides:
"Capital offenses; jury verdict and sentence.
"Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death. Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the defendant to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. The provisions of this section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty."
Georgia Laws, 1973, Act No. 74, p. 162, provides:
"At the conclusion of all felony cases heard by a jury, and after argument of counsel and proper charge from the court, the jury shall retire to consider a verdict of guilty or not guilty without any consideration of punishment. In non-jury felony cases, the judge shall likewise first consider a finding of guilty or not guilty without any consideration of punishment. Where the jury or judge returns a verdict or finding of guilty, the court shall resume the trial and conduct a pre-sentence hearing before the jury or judge at which time the only issue shall be the determination of punishment to be imposed. In such hearing, subject to the laws of evidence, the jury or judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions and pleas; provided, however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. The jury or judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument to the jury or judge. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions and the jury shall retire to determine the punishment to be imposed. In cases in which the death penalty may be imposed by a jury or judge sitting without a jury, the additional procedure provided in Code section 27-2534.1 shall be followed. The jury, or the judge in cases tried by a judge, shall fix a sentence within the limits prescribed by law. The judge shall impose the sentence fixed by the jury or judge, as provided by law. If the jury cannot, within a reasonable time, agree to the punishment, the judge shall impose sentence within the limits of the law; provided, however, that the judge shall in no instance impose the death penalty when, in cases tried by a jury, the jury cannot agree upon the punishment. If the trial court is reversed on appeal because of error only in the pre-sentence hearing, the new trial which may be ordered shall apply only to the issue of punishment."
[3] Section 27-2537 (g) provides:
"The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence. . . ."
[4] The court said:
"And, I charge you that our law provides, in connection with the offense of murder the following. A person commits murder when he unlawfully and with malice aforethought, either express or implied causes the death of another human being.
"Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature which is manifested by external circumstances, capable of proof.
"Malice shall be implied where no considerable provocation appears and where all of the circumstances of the killing show an abandoned and malignant heart.
"Section B of this Code Section, our law provides that a person also commits the crime of murder when in the commission of a felony he causes the death of another human being irrespective of malice.
"Now, then, I charge you that if you find and believe beyond a reasonable doubt that the defendant did commit the homicide in the two counts alleged in this indictment, at the time he was engaged in the commission of some other felony, you would be authorized to find him guilty of murder.
"In this connection, I charge you that in order for a homicide to have been done in the perpetration of a felony, there must be some connection between the felony and the homicide. The homicide must have been done in pursuance of the unlawful act not collateral to it. It is not enough that the homicide occurred soon or presently after the felony was attempted or committed, there must be such a legal relationship between the homicide and the felony that you find that the homicide occurred by reason of and a part of the felony or that it occurred before the felony was at an end, so that the felony had a legal relationship to the homicide and was concurrent with it in part at least, and a part of it in an actual and material sense. A homicide is committed in the perpetration of a felony when it is committed by the accused while he is engaged in the performance of any act required for the full execution of such felony.
"I charge you that if you find and believe beyond a reasonable doubt that the homicide alleged in this indictment was caused by the defendant while he, the said accused was in the commission of a felony as I have just given you in this charge, you would be authorized to convict the defendant of murder.
"And this you would be authorized to do whether the defendant intended to kill the deceased or not. A homicide, although unintended, if committed by the accused at the time he is engaged in the commission of some other felony constitutes murder.
"In order for a killing to have been done in perpetration or attempted perpetration of a felony, or of a particular felony, there must be some connection as I previously charged you between the felony and the homicide.
"Before you would be authorized to find the defendant guilty of the offense of murder, you must find and believe beyond a reasonable doubt, that the defendant did, with malice aforethought either express or implied cause the deaths of [Simmons or Moore] or you must find and believe beyond a reasonable doubt that the defendant, while in the commission of a felony caused the death of these two victims just named.
"I charge you, that if you find and believe that, at any time prior to the date this indictment was returned into this court that the defendant did, in the county of Gwinnett, State of Georgia, with malice aforethought kill and murder the two men just named in the way and manner set forth in the indictment or that the defendant caused the deaths of these two men in the way and manner set forth in the indictment, while he, the said accused was in the commission of a felony, then in either event, you would be authorized to find the defendant guilty of murder."
[5] In a subsequently decided robbery-murder case, the Georgia Supreme Court had the following to say about the same "similar cases" referred to in this case:
"We have compared the evidence and sentence in this case with other similar cases and conclude the sentence of death is not excessive or disproportionate to the penalty imposed in those cases. Those similar cases we considered in reviewing the case are: Lingo v. State, 226 Ga. 496 (175 SE2d 657), Johnson v. State, 226 Ga. 511 (175 SE2d 840), Pass v. State, 227 Ga. 730 (182 SE2d 779), Watson v. State, 229 Ga. 787 (194 SE2d 407), Scott v. State, 230 Ga. 413 (197 SE2d 338), Kramer v. State, 230 Ga. 855 (199 SE2d 805), and Gregg v. State, 233 Ga. 117 (210 SE2d 659).
"In each of the comparison cases cited, the records show that the accused was found guilty of murder of the victim of the robbery or burglary committed in the course of such robbery or burglary. In each of those cases, the jury imposed the sentence of death. In Pass v. State, supra, the murder took place in the victim's home, as occurred in the case under consideration.
"We find that the sentence of death in this case is not excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Code Ann. § 27-2537 (c) (3). Notwithstanding the fact that there have been cases in which robbery victims were murdered and the juries imposed life sentences (see Appendix), the cited cases show that juries faced with similar factual situations have imposed death sentences. Compare Coley v. State, 231 Ga. 829, 835, supra. Thus the sentence here was not `wantonly and freakishly imposed' (see above)." Moore v. State, 233 Ga. 861, 865-866, 213 S. E. 2d 829, 833 (1975).
In another case decided after the instant case the Georgia Supreme Court stated:
"The cases reviewed included all murder cases coming to this court since January 1, 1970. All kidnapping cases were likewise reviewed. The comparison involved a search for similarities in addition to the similarity of offense charged and sentence imposed.
"All of the murder cases selected for comparison involved murders wherein all of the witnesses were killed or an attempt was made to kill all of the witnesses, and kidnapping cases where the victim was killed or seriously injured.
"The cases indicate that, except in some special circumstance such as a juvenile or an accomplice driver of a get-away vehicle, where the murder was committed and trial held at a time when the death penalty statute was effective, juries generally throughout the state have imposed the death penalty. The death penalty has also been imposed when the kidnap victim has been mistreated or seriously injured. In this case the victim was murdered.
"The cold blooded and callous nature of the offenses in this case are the types condemned by death in other cases. This defendant's death sentences for murder and kidnapping are not excessive or disproportionate to the penalty imposed in similar cases. Using the standards prescribed for our review by the statute, we conclude that the sentences of death imposed in this case for murder and kidnapping were not imposed under the influence of passion, prejudice or any other arbitrary factor." Jarrell v. State, 234 Ga. 410, 425-426, 216 S. E. 2d 258, 270 (1975).
[6] See Furman v. Georgia, 408 U. S., at 240 (Douglas, J., concurring).
[7] See id., at 306 (STEWART, J., concurring).
[8] See id., at 310 (WHITE, J., concurring).
[9] Petitioner also argues that the differences between murder—for which the death penalty may be imposed—and manslaughter—for which it may not be imposed—are so difficult to define and the jury's ability to disobey the trial judge's instructions so unfettered that juries will use the guilt-determination phase of a trial arbitrarily to convict some of a capital offense while convicting similarly situated individuals only of noncapital offenses. I believe this argument is enormously overstated. However, since the jury has discretion not to impose the death penalty at the sentencing phase of a case in Georgia, the problem of offense definition and jury nullification loses virtually all its significance in this case.
[10] The factor relevant to this case is that the "murder . . . was committed while the offender was engaged in the commission of another capital felony." The State in its brief refers to this type of murder as "witness-elimination" murder. Apparently the State of Georgia wishes to supply a substantial incentive to those engaged in robbery to leave their guns at home and to persuade their co-conspirators to do the same in the hope that fewer victims of robberies will be killed.
[11] Petitioner states several times without citation that the only cases considered by the Georgia Supreme Court are those in which an appeal was taken either from a sentence of death or life imprisonment. This view finds no support in the language of the relevant statutes. Moore v. State, 233 Ga., at 863-864, 213 S. E. 2d, at 832.
[*] [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]
[1] Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion of Warren, C. J.).
[2] Quoting T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute 15 (1959).
[3] Novak v. Beto, 453 F. 2d 661, 672 (CA5 1971) (Tuttle, J., concurring in part and dissenting in part).
[4] Tao, Beyond Furman v. Georgia: The Need for a Morally Based Decision on Capital Punishment, 51 Notre Dame Law. 722, 736 (1976).
[5] Trop v. Dulles, 356 U. S., at 99 (plurality opinion of Warren, C. J.).
[6] A. Camus, Reflections on the Guillotine 5-6 (Fridtjof-Karla Pub. 1960).
[*] [This opinion applies also to No. 75-5706, Proffitt v. Florida, post, p. 242, and No. 75-5394, Jurek v. Texas, post, p. 262.]
[1] Sarat & Vidmar, Public Opinion, The Death Penalty, and the Eighth Amendment: Testing the Marshall Hypothesis, 1976 Wis. L. Rev. 171.
[2] See e. g., T. Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).
[3] United Nations, Department of Economic and Social Affairs, Capital Punishment, pt. II, ¶ 159, p. 123 (1968).
[4] I. Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death (Working Paper No. 18, National Bureau of Economic Research, Nov. 1973); Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June 1975).
[5] Id., at 409.
[6] The variables other than execution risk included probability of arrest, probability of conviction given arrest, national aggregate measures of the percentage of the population between age 14 and 24, the unemployment rate, the labor force participation rate, and estimated per capita income.
[7] Id., at 398, 414.
[8] See Passell & Taylor, The Deterrent Effect of Capital Punishment: Another View (unpublished Columbia University Discussion Paper 74-7509, Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas, O. T. 1975, No. 75-5844; Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975); Baldus & Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L. J. 187 (1975); Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976). See also Ehrlich, Deterrence: Evidence and Inference, 85 Yale L. J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L. J. 368 (1976). In addition to the items discussed in text, criticism has been directed at the quality of Ehrlich's data, his choice of explanatory variables, his failure to account for the interdependence of those variables, and his assumptions as to the mathematical form of the relationship between the homicide rate and the explanatory variables.
[9] See Baldus & Cole, supra, at 175-177.
[10] Bowers & Pierce, supra, n. 8, at 197-198. See also Passell & Taylor, supra, n. 8, at 2-66—2-68.
[11] See Bowers & Pierce, supra, n. 8, at 197-198; Baldus & Cole, supra, n. 8, at 181, 183-185; Peck, supra, n. 8, at 366-367.
[12] Passell, supra, n. 8.
[13] See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45 Am. J. Orthopsychiatry 669 (1975); W. Bowers, Executions in America 121-163 (1974).
[14] In Furman, I considered several additional purposes arguably served by the death penalty. 408 U. S., at 314, 342, 355-358. The only additional purpose mentioned in the opinions in these cases is specific deterrence—preventing the murderer from committing another crime. Surely life imprisonment and, if necessary, solitary confinement would fully accomplish this purpose. Accord, Commonwealth v. O'Neal, —, Mass. —, —, 339 N. E. 2d 676, 685 (1975); People v. Anderson, 6 Cal. 3d 628, 651, 493 P. 2d 880, 896, cert. denied, 406 U. S. 958 (1972).
[15] See, e. g., H. Hart, Punishment and Responsibility 8-10, 71-83 (1968); H. Packer, Limits of the Criminal Sanction 38-39, 66 (1968).
[16] See Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 687; Bowers, supra, n. 13, at 135; Sellin, supra, n. 2, at 79.
[17] See Hart, supra, n. 15, at 72, 74-75, 234-235; Packer, supra, n. 15, at 37-39.
[18] MR. JUSTICE WHITE'S view of retribution as a justification for the death penalty is not altogether clear. "The widespread reenactment of the death penalty," he states at one point, "answers any claims that life imprisonment is adequate punishment to satisfy the need for reprobation or retribution." Roberts v. Louisiana, post, at 354. (WHITE, J., dissenting). But MR. JUSTICE WHITE later states: "It will not do to denigrate these legislative judgments as some form of vestigial savagery or as purely retributive in motivation; for they are solemn judgments, reasonably based, that imposition of the death penalty will save the lives of innocent persons." Post, at 355.
[19] See Commonwealth v. O'Neal, supra, at —, 339 N. E. 2d, at 687; People v. Anderson, 6 Cal. 3d, at 651, 493 P. 2d, at 896.
7.2.8.3.4.2 McCleskey v. Kemp 7.2.8.3.4.2 McCleskey v. Kemp
McCLESKEY
v.
KEMP, SUPERINTENDENT, GEORGIA DIAGNOSTIC AND CLASSIFICATION CENTER
Supreme Court of United States.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[282] John Charles Boger argued the cause for petitioner. With him on the briefs were Julius L. Chambers, James M. Nabrit III, Vivian Berger, Robert H. Stroup, Timothy K. Ford, and Anthony G. Amsterdam.
Mary Beth Westmoreland, Assistant Attorney General of Georgia, argued the cause for respondent. With her on the brief were Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.[*]
JUSTICE POWELL delivered the opinion of the Court.
This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter [283] into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment.
I
McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.
Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting.
[284] The jury convicted McCleskey of murder.[1] At the penalty hearing,[2] the jury heard arguments as to the appropriate sentence. Under Georgia law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. Ga. Code Ann. § 17-10-30(c) (1982).[3] The jury in this case found two aggravating [285] circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, § 17-10-30(b)(2); and the murder was committed upon a peace officer engaged in the performance of his duties, § 17-10-30(b)(8). In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. § 17-10-2(c). McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury's recommendation and sentenced McCleskey to death.[4]
On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). This Court denied a petition for a writ of certiorari. McCleskey v. Georgia, 449 U. S. 891 (1980). The Superior Court of Fulton County denied McCleskey's extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the [286] Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. McCleskey v. Zant, No. 4909 (Apr. 8, 1981). The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause to appeal the Superior Court's denial of his petition, No. 81-5523, and this Court again denied certiorari. McCleskey v. Zant, 454 U. S. 1093 (1981).
McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of Georgia. His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants.
Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. [287] Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims.
Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.[5]
The District Court held an extensive evidentiary hearing on McCleskey's petition. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (1978), cert. denied, 440 U. S. 976 (1979), it nevertheless considered the Baldus study with care. It concluded [288] that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984). As to McCleskey's Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects.[6] Because of these defects, [289] the court held that the Baldus study "fail[ed] to contribute anything of value" to McCleskey's claim. Id., at 372 (emphasis omitted). Accordingly, the court denied the petition insofar as it was based upon the Baldus study.
The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court's decision on McCleskey's claim. 753 F. 2d 877 (1985). It assumed the validity of the study itself and addressed the merits of McCleskey's Eighth and Fourteenth Amendment claims. That is, the court assumed that the study "showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." Id., at 895. Even assuming the study's validity, the Court of Appeals found the statistics "insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis." Id., at 891. The court noted:
"The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Assuming each result is within the range of discretion, all are correct in the eyes of the law. It would not make sense for the system to require the exercise of discretion in order to be facially constitutional, [290] and at the same time hold a system unconstitutional in application where that discretion achieved different results for what appear to be exact duplicates, absent the state showing the reasons for the difference. . . .
"The Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . . This approach ignores the realities.. . . There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion." Id., at 898-899.
The court concluded:
"Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. . . . The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. Georgia, 408 U. S. 238 (1972)] condemned. In pre-Furman days, there was no rhyme or reason as to who got the death penalty and who did not. But now, in the vast majority of cases, the reasons for a difference are well documented. That they are not so clear in a small percentage of the cases is no reason to declare the entire system unconstitutional." Id., at 899.
The Court of Appeals affirmed the denial by the District Court of McCleskey's petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey's claims based on [291] the Baldus study. We granted certiorari, 478 U. S. 1019 (1986), and now affirm.
II
McCleskey's first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.[7] He argues that race has infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.[8] [292] As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge,[9] that this claim must fail.
A
Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination." Whitus v. Georgia, 385 U. S. 545, 550 (1967).[10] A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. Wayte v. United States, 470 U. S. 598, 608 (1985). Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial [293] considerations played a part in his sentence. Instead, he relies solely on the Baldus study.[11] McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.
The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,[12]Arlington Heights v. [294] Metropolitan Housing Dev. Corp., 429 U. S. 252, 266 (1977), "[b]ecause of the nature of the jury-selection task, . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes." Id., at 266, n. 13.[13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. Bazemore v. Friday, 478 U. S. 385, 400-401 (1986) (opinion of BRENNAN, J., concurring in part).
But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. See Hitchcock v. Dugger, post, at 398-399; Lockett v. Ohio, 438 U. S. 586, 602-605 (1978) (plurality opinion of Burger, C. J.). Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection [295] or Title VII case. In those cases, the statistics relate to fewer entities,[14] and fewer variables are relevant to the challenged decisions.[15]
[296] Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decisionmaker has an opportunity to explain the statistical disparity. See Whitus v. Georgia, 385 U. S., at 552; Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 254 (1981); McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802 (1973). Here, the State has no practical opportunity to rebut the Baldus study. "[C]ontrolling considerations of . . . public policy," McDonald v. Pless, 238 U. S. 264, 267 (1915), dictate that jurors "cannot be called. . . to testify to the motives and influences that led to their verdict." Chicago, B. & Q. R. Co. v. Babcock, 204 U. S. 585, 593 (1907). Similarly, the policy considerations behind a prosecutor's traditionally "wide discretion"[16] suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, "often years after they were made."[17] See Imbler v. Pachtman, 424 U. S. 409, 425-426 (1976).[18] Moreover, absent far stronger proof, it is unnecessary [297] to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.[19]
Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Georgia, 428 U. S. 153, 226 (1976) (WHITE, J., concurring). Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose.
B
McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal [298] Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. But " `[d]iscriminatory purpose'. . . implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of Massachusetts v. Feeney, 442 U. S. 256, 279 (1979) (footnote and citation omitted). See Wayte v. United States, 470 U. S., at 608-609. For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, supra, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose.[20]
Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were [299] legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment, see Gregg v. Georgia, supra, at 183-187 (joint opinion of Stewart, POWELL, and STEVENS, JJ.), we will not infer a discriminatory purpose on the part of the State of Georgia.[21] Accordingly, we reject McCleskey's equal protection claims.
III
McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment.[22] We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment.
A
The Eighth Amendment prohibits infliction of "cruel and unusual punishments." This Court's early Eighth Amendment cases examined only the "particular methods of execution to determine whether they were too cruel to pass constitutional muster." Gregg v. Georgia, supra, at 170. See In re Kemmler, 136 U. S. 436 (1890) (electrocution); [300] Wilkerson v. Utah, 99 U. S. 130 (1879) (public shooting). Subsequently, the Court recognized that the constitutional prohibition against cruel and unusual punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Weems, v. United States, 217 U. S. 349, 378 (1910). In Weems, the Court identified a second principle inherent in the Eighth Amendment, "that punishment for crime should be graduated and proportioned to offense." Id., at 367.
Chief Justice Warren, writing for the plurality in Trop v. Dulles, 356 U. S. 86, 99 (1958), acknowledged the constitutionality of capital punishment. In his view, the "basic concept underlying the Eighth Amendment" in this area is that the penalty must accord with "the dignity of man." Id., at 100. In applying this mandate, we have been guided by his statement that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Id., at 101. Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. Georgia, 428 U. S., at 173. In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain "objective indicia that reflect the public attitude toward a given sanction." Ibid. First among these indicia are the decisions of state legislatures, "because the . . . legislative judgment weighs heavily in ascertaining" contemporary standards, id., at 175. We also have been guided by the sentencing decisions of juries, because they are "a significant and reliable objective index of contemporary values," id., at 181. Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. E. g., Enmund v. Florida, 458 U. S. 782, 789-796 (1982) (felony murder); Coker v. Georgia, 433 U. S. 584, 592-597 (1977) (plurality opinion of WHITE, J.) (rape); Gregg v. Georgia, supra, at 179-182 (murder).
[301]
B
Two principal decisions guide our resolution of McCleskey's Eighth Amendment claim. In Furman v. Georgia, 408 U. S. 238 (1972), the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: "[T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes and . . . there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not." Id., at 313 (WHITE, J., concurring).
In Gregg, the Court specifically addressed the question left open in Furman — whether the punishment of death for murder is "under all circumstances, `cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." 428 U. S., at 168. We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United States and in England." Id., at 176 (joint opinion of Stewart, POWELL, and STEVENS, JJ.). "The most marked indication of society's endorsement of the death penalty for murder [was] the legislative response to Furman." Id., at 179. During the 4-year period between Furman and Gregg, at least 35 States had reenacted the death penalty, and Congress had authorized the penalty for aircraft piracy. 428 U. S., at 179-180.[23] The "actions of juries" were "fully compatible with the legislative judgments." Id., at 182. We noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded:
[302] "Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." Id., at 186-187.
The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the Georgia capital punishment statute. We explained the fundamental principle of Furman, that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." 428 U. S., at 189. Numerous features of the then new Georgia statute met the concerns articulated in Furman.[24] The Georgia system bifurcates guilt and sentencing proceedings so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant's guilt will influence the jury's consideration of that issue. The statute narrows the class of murders subject to the death penalty to cases in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. See 428 U. S., at 163-164. The procedures also require a particularized inquiry into " `the circumstances of the offense together with the character and propensities of the offender.' " Id., at 189 (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937)). Thus, "while some jury discretion still exists, `the [303] discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.' " 428 U. S., at 197-198 (quoting Coley v. State, 231 Ga. 829, 834, 204 S. E. 2d 612, 615 (1974)). Moreover, the Georgia system adds "an important additional safeguard against arbitrariness and caprice" in a provision for automatic appeal of a death sentence to the State Supreme Court. 428 U. S., at 198. The statute requires that court to review each sentence to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to sentences imposed in generally similar murder cases. To aid the court's review, the trial judge answers a questionnaire about the trial, including detailed questions as to "the quality of the defendant's representation [and] whether race played a role in the trial." Id., at 167.
C
In the cases decided after Gregg, the Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. In Woodson v. North Carolina, 428 U. S. 280 (1976), we invalidated a mandatory capital sentencing system, finding that the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304 (plurality opinion of Stewart, POWELL, and STEVENS, JJ.) (citation omitted). Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. Georgia, supra, at 196, by providing "specific and detailed guidance" to the sentencer.[25] [304] Proffitt v. Florida, 428 U. S. 242, 253 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).
In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.[26] "[T]he sentencer . . . [cannot] be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U. S., at 604 (plurality opinion of Burger, C. J.) (emphasis in original; footnote omitted). See Skipper v. South Carolina, 476 U. S. 1 (1986). Any exclusion of the "compassionate or mitigating factors stemming from the diverse frailties of humankind" that are relevant to the sentencer's decision would fail to treat all persons as "uniquely individual human beings." Woodson v. North Carolina, supra, at 304.
Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application [305] of statutes to particular cases. For example, in Godfrey v. Georgia, 446 U. S. 420 (1980), the Court invalidated a Georgia Supreme Court interpretation of the statutory aggravating circumstance that the murder be "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code § 27-2534.1(b)(7) (1978).[27] Although that court had articulated an adequate limiting definition of this phrase, we concluded that its interpretation in Godfrey was so broad that it may have vitiated the role of the aggravating circumstance in guiding the sentencing jury's discretion.
Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. In Coker v. Georgia, 433 U. S. 584 (1977), the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman. In Enmund v. Florida, 458 U. S. 782 (1982), the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently culpable mental state. Most recently, in Ford v. Wainwright, 477 U. S. 399 (1986), we prohibited execution of prisoners who are insane.
D
In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate [306] to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.
IV
A
In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." See Pulley v. Harris, 465 U. S. 37, 43 (1984). He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. Gregg v. Georgia, 428 U. S., at 187. His disproportionality claim "is of a different sort." Pulley v. Harris, supra, at 43. McCleskey argues that the sentences in his case is disproportionate to the sentences in other murder cases.
On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. McCleskey v. State, 245 Ga. 108, 263 S. E. 2d 146 (1980). The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. See Ga. Code Ann. § 17-10-35(e) (1982). Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. Pulley v. Harris, supra, at 50-51.
On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional [307] violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. In Gregg, the Court confronted the argument that "the opportunities for discretionary action that are inherent in the processing of any murder case under Georgia law," 428 U. S., at 199, specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious. We rejected this contention:
"The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." Ibid.[28]
[308] Because McCleskey's sentence was imposed under Georgia sentencing procedures that focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," id., at 206, we lawfully may presume that McCleskey's death sentence was not "wantonly and freakishly" imposed, id., at 207, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment.
B
Although our decision in Gregg as to the facial validity of the Georgia capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim.
To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.[29] Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question [309] "is at what point that risk becomes constitutionally unacceptable," Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system. Batson v. Kentucky, 476 U. S. 79, 85 (1986).[30] Our efforts have been guided by our recognition that "the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice," Ex parte Milligan, 4 Wall. 2, 123 (1866). See Duncan v. [310] Louisiana, 391 U. S. 145, 155 (1968).[31] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." Strauder v. West Virginia, 100 U. S. 303, 309 (1880). Specifically, a capital sentencing jury representative of a criminal defendant's community assures a " `diffused impartiality,' " Taylor v. Louisiana, 419 U. S. 522, 530 (1975) (quoting Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting)), in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death," Witherspoon v. Illinois, 391 U. S. 510, 519 (1968).[32]
[311] Individual jurors bring to their deliberations "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." Peters v. Kiff, 407 U. S. 493, 503 (1972) (opinion of MARSHALL, J.). The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that "buil[d] discretion, equity, and flexibility into a legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966).
McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.[33] Similarly, the capacity of prosecutorial discretion [312] to provide individualized justice is "firmly entrenched in American law." 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984). As we have noted, a prosecutor can decline to charge, offer a plea bargain,[34] or decline to seek a death sentence in any particular case. See n. 28, supra. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 (1973), but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. Georgia, 428 U. S., at 200, n. 50.
C
At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.[35] [313] The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman," Pulley v. Harris, 465 U. S., at 54.[36] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." Singer v. United States, 380 U. S. 24, 35 (1965). See Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.' " Zant v. Stephens, 462 U. S. 862, 884 (1983) (quoting Lockett v. Ohio, 438 U. S., at 605 (plurality opinion of Burger, C. J.)). Despite these imperfections, our consistent rule has been that constitutional guarantees are met when "the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible." Singer v. United States, supra, at 35. Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process.[37]
[314]
V
Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion, [315] throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Solem v. Helm, 463 U. S. 277, 289-290 (1983); see Rummel v. Estelle, 445 U. S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.[38] Moreover, the claim that his sentence [316] rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups,[39] and [317] even to gender.[40] Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys[41] or judges.[42] Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could — at least in theory — be based upon any arbitrary variable, such as the defendant's facial characteristics,[43] or the physical attractiveness of the defendant or the victim,[44] that some statistical [318] study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.[45] [319] The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.
Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility — or indeed even the right — of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Furman v. Georgia, 408 U. S., at 383 (Burger, C. J., dissenting). Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Georgia, supra, at 186. Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, see supra, at 283-285, the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case.
[320A]
VI
Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit.
It is so ordered.
[320B] JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I, dissenting.
I
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, I would vacate the decision below insofar as it left undisturbed the death sentence imposed in this case. Gregg v. Georgia, 428 U. S. 153, 227 (1976) (BRENNAN, J., dissenting). The Court observes that "[t]he Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment," which "ensure a degree of care in the imposition of the death penalty that can be described only as unique." Ante, at 315, n. 37. Notwithstanding these efforts, murder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Petitioner's Exhibit DB 82. Nothing could convey more powerfully the intractable reality of the death penalty: "that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether." Godfrey v. Georgia, 446 U. S. 420, 442 (1980) (MARSHALL, J., concurring in judgment).
Even if I did not hold this position, however, I would reverse the Court of Appeals, for petitioner McCleskey has clearly demonstrated that his death sentence was imposed in violation of the Eighth and Fourteenth Amendments. While I join Parts I through IV-A of JUSTICE BLACKMUN'S dissenting opinion discussing petitioner's Fourteenth Amendment claim, I write separately to emphasize how conclusively [321] McCleskey has also demonstrated precisely the type of risk of irrationality in sentencing that we have consistently condemned in our Eighth Amendment jurisprudence.
II
At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey's past criminal conduct were more important than the fact that his victim was white. Petitioner's Supplemental Exhibits (Supp. Exh.) 50. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. Petitioner's Exhibit DB 82. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey's victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black, Supp. Exh. 51, while, among defendants with aggravating and mitigating factors comparable to McCleskey's, 20 of every 34 would not have been sentenced to die if their victims had been black. Id., at 54. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. Ibid. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.
The Court today holds that Warren McCleskey's sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a [322] large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot "prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case." Ante, at 308 (emphasis in original). Since, according to Professor Baldus, we cannot say "to a moral certainty" that race influenced a decision, ante, at 308, n. 29, we can identify only "a likelihood that a particular factor entered into some decisions," ante, at 308, and "a discrepancy that appears to correlate with race." Ante, at 312. This "likelihood" and "discrepancy," holds the Court, is insufficient to establish a constitutional violation. The Court reaches this conclusion by placing four factors on the scales opposite McCleskey's evidence: the desire to encourage sentencing discretion, the existence of "statutory safeguards" in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court's evaluation of the significance of petitioner's evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force.
III
A
It is important to emphasize at the outset that the Court's observation that McCleskey cannot prove the influence of race on anyparticular sentencing decision is irrelevant in evaluating his Eighth Amendment claim. Since Furman v. Georgia, 408 U. S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty "may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner." Godfrey v. Georgia, supra, at 427. As JUSTICE O'CONNOR observed [323] in Caldwell v. Mississippi, 472 U. S. 320, 343 (1985), a death sentence must be struck down when the circumstances under which it has been imposed "creat[e] an unacceptable risk that `the death penalty [may have been] meted out arbitrarily or capriciously' or through `whim or mistake' " (emphasis added) (quoting California v. Ramos, 463 U. S. 992, 999 (1983)). This emphasis on risk acknowledges the difficulty of divining the jury's motivation in an individual case. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational.[1] As we said in Gregg v. Georgia, 428 U. S., at 200, "the petitioner looks to the sentencing system as a whole (as the Court did in Furman and we do today)": a constitutional violation is established if a plaintiff demonstrates a "pattern of arbitrary and capricious sentencing." Id., at 195, n. 46 (emphasis added) (joint opinion of Stewart, POWELL, and STEVENS, JJ.).
As a result, our inquiry under the Eighth Amendment has not been directed to the validity of the individual sentences before us. In Godfrey, for instance, the Court struck down the petitioner's sentence because the vagueness of the statutory definition of heinous crimes created a risk that prejudice [324] or other impermissible influences might have infected the sentencing decision. In vacating the sentence, we did not ask whether it was likely that Godfrey's own sentence reflected the operation of irrational considerations. Nor did we demand a demonstration that such considerations had actually entered into other sentencing decisions involving heinous crimes. Similarly, in Roberts v. Louisiana, 428 U. S. 325 (1976), and Woodson v. North Carolina, 428 U. S. 280 (1976), we struck down death sentences in part because mandatory imposition of the death penalty created the risk that a jury might rely on arbitrary considerations in deciding which persons should be convicted of capital crimes. Such a risk would arise, we said, because of the likelihood that jurors reluctant to impose capital punishment on a particular defendant would refuse to return a conviction, so that the effect of mandatory sentencing would be to recreate the unbounded sentencing discretion condemned in Furman. Roberts, supra, at 334-335 (plurality opinion); Woodson, supra, at 303 (plurality opinion). We did not ask whether the death sentences in the cases before us could have reflected the jury's rational consideration and rejection of mitigating factors. Nor did we require proof that juries had actually acted irrationally in other cases.
Defendants challenging their death sentences thus never have had to prove that impermissible considerations have actually infected sentencing decisions. We have required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey's claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate.
The Court assumes the statistical validity of the Baldus study, and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia, ante, at 291, n. 7. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. [325] Ante, at 313. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey's sentence is intolerable by any imaginable standard.
B
The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey's life had his victim been black. The study distinguishes between those cases in which (1) the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate;[2] and (2) cases reflecting an "intermediate" level of aggravation, in which the jury has considerable discretion in choosing a sentence.[3] McCleskey's case falls into the intermediate range. In such cases, death is imposed in 34% of white-victim crimes and 14% of black-victim crimes, a difference of 139% in the rate of imposition of the death penalty. Supp. Exh. 54. In other words, just under 59% — almost 6 in 10 — defendants comparable to McCleskey would not have received the death penalty if their victims had been black.[4]
[326] Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing. For the Georgia system as a whole, race accounts for a six percentage point difference in the rate at which capital punishment is imposed. Since death is imposed in 11% of all white-victim cases, the rate in comparably aggravated black-victim cases is 5%. The rate of capital sentencing in a white-victim case is thus 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.[5]
These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than [327] the rate for black-victim cases. Supp. Exh. 47. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. Ibid. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. Id., at 56. Since our decision upholding the Georgia capital sentencing system in Gregg, the State has executed seven persons. All of the seven were convicted of killing whites, and six of the seven executed were black.[6] Such execution figures are especially striking in light of the fact that, during the period encompassed by the Baldus study, only 9.2% of Georgia homicides involved black defendants and white victims, while 60.7% involved black victims.
McCleskey's statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern.[7] While the decisionmaking process of a body such as a jury may be complex, the Baldus study provides a massive compilation of the details that are most relevant to that decision. As we held in the context of Title VII of the Civil Rights Act of 1964 last Term in Bazemore v. Friday, 478 U. S. 385 (1986), a multiple-regression analysis need not include every conceivable variable to establish a party's case, as long as it includes those variables that account for the [328] major factors that are likely to influence decisions. In this case, Professor Baldus in fact conducted additional regression analyses in response to criticisms and suggestions by the District Court, all of which confirmed, and some of which even strengthened, the study's original conclusions.
The statistical evidence in this case thus relentlessly documents the risk that McCleskey's sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that "[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence," Turner v. Murray, 476 U. S. 28, 35 (1986), and that "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion," Gardner v. Florida, 430 U. S. 349, 358 (1977). In determining the guilt of a defendant, a State must prove its case beyond a reasonable doubt. That is, we refuse to convict if the chance of error is simply less likely than not. Surely, we should not be willing to take a person's life if the chance that his death sentence was irrationally imposed is more likely than not. In light of the gravity of the interest at stake, petitioner's statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned.
C
Evaluation of McCleskey's evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia's legacy of a race-conscious criminal justice system, as well as [329] this Court's own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicates that McCleskey's claim is not a fanciful product of mere statistical artifice.
For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. During the colonial period, black slaves who killed whites in Georgia, regardless of whether in self-defense or in defense of another, were automatically executed. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978).[8]
By the time of the Civil War, a dual system of crime and punishment was well established in Georgia. See Ga. Penal Code (1861). The state criminal code contained separate sections for "Slaves and Free Persons of Color," Pt. 4, Tit. 3, Ch. 1, and for all other persons, Pt. 4, Tit. 1, Divs. 1-16. The code provided, for instance, for an automatic death sentence for murder committed by blacks, Pt. 4, Tit. 1, Art. II, § 4704, but declared that anyone else convicted of murder might receive life imprisonment if the conviction were founded solely on circumstantial testimony or simply if the jury so recommended. Pt. 4, Tit. 1, Div. 4, § 4220. The code established that the rape of a free white female by a black "shall be" punishable by death. § 4704. However, rape by anyone else of a free white female was punishable by [330] a prison term not less than 2 nor more than 20 years. The rape of blacks was punishable "by fine and imprisonment, at the discretion of the court." § 4249. A black convicted of assaulting a free white person with intent to murder could be put to death at the discretion of the court, § 4708, but the same offense committed against a black, slave or free, was classified as a "minor" offense whose punishment lay in the discretion of the court, as long as such punishment did not "extend to life, limb, or health." Art. III, §§ 4714, 4718. Assault with intent to murder by a white person was punishable by a prison term of from 2 to 10 years. Div. 4, § 4258. While sufficient provocation could reduce a charge of murder to manslaughter, the code provided that "[o]bedience and submission being the duty of a slave, much greater provocation is necessary to reduce a homicide of a white person by him to voluntary manslaughter, than is prescribed for white persons." Art. II, § 4711.
In more recent times, some 40 years ago, Gunnar Myrdal's epochal study of American race relations produced findings mirroring McCleskey's evidence:
"As long as only Negroes are concerned and no whites are disturbed, great leniency will be shown in most cases . . . . The sentences for even major crimes are ordinarily reduced when the victim is another Negro.
.....
"For offenses which involve any actual or potential danger to whites, however, Negroes are punished more severely than whites.
.....
"On the other hand, it is quite common for a white criminal to be set free if his crime was against a Negro." G. Myrdal, An American Dilemma 551-553 (1944).
This Court has invalidated portions of the Georgia capital sentencing system three times over the past 15 years. The specter of race discrimination was acknowledged by the Court in striking down the Georgia death penalty statute in Furman. [331] Justice Douglas cited studies suggesting imposition of the death penalty in racially discriminatory fashion, and found the standardless statutes before the Court "pregnant with discrimination." 408 U. S., at 257 (concurring opinion). JUSTICE MARSHALL pointed to statistics indicating that "Negroes [have been] executed far more often than whites in proportion to their percentage of the population. Studies indicate that while the higher rate of execution among Negroes is partially due to a higher rate of crime, there is evidence of racial discrimination." Id., at 364 (concurring opinion). Although Justice Stewart declined to conclude that racial discrimination had been plainly proved, he stated that "[m]y concurring Brothers have demonstrated that, if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race." Id., at 310 (concurring opinion). In dissent, Chief Justice Burger acknowledged that statistics "suggest, at least as a historical matter, that Negroes have been sentenced to death with greater frequency than whites in several States, particularly for the crime of interracial rape." Id., at 289, n. 12. Finally, also in dissent, JUSTICE POWELL intimated that an Equal Protection Clause argument would be available for a black "who could demonstrate that members of his race were being singled out for more severe punishment than others charged with the same offense." Id., at 449. He noted that although the Eighth Circuit had rejected a claim of discrimination in Maxwell v. Bishop, 398 F. 2d 138 (1968), vacated and remanded on other grounds, 398 U. S. 262 (1970), the statistical evidence in that case "tend[ed] to show a pronounced disproportion in the number of Negroes receiving death sentences for rape in parts of Arkansas and elsewhere in the South." 408 U. S., at 449. It is clear that the Court regarded the opportunity for the operation of racial prejudice a particularly troublesome aspect of the unbounded discretion afforded by the Georgia sentencing scheme.
[332] Five years later, the Court struck down the imposition of the death penalty in Georgia for the crime of rape. Coker v. Georgia, 433 U. S. 584 (1977). Although the Court did not explicitly mention race, the decision had to have been informed by the specific observations on rape by both the Chief Justice and JUSTICE POWELL in Furman. Furthermore, evidence submitted to the Court indicated that black men who committed rape, particularly of white women, were considerably more likely to be sentenced to death than white rapists. For instance, by 1977 Georgia had executed 62 men for rape since the Federal Government began compiling statistics in 1930. Of these men, 58 were black and 4 were white. See Brief for Petitioner in Coker v. Georgia, O. T. 1976, No. 75-5444, p. 56; see also Wolfgang & Riedel, Rape, Race, and the Death Penalty in Georgia, 45 Am. J. Orthopsychiatry 658 (1975).
Three years later, the Court in Godfrey found one of the State's statutory aggravating factors unconstitutionally vague, since it resulted in "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury . . . ." 446 U. S., at 429. JUSTICE MARSHALL, concurring in the judgment, noted that "[t]he disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences." Id., at 439 (footnote omitted).
This historical review of Georgia criminal law is not intended as a bill of indictment calling the State to account for past transgressions. Citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey's evidence. "[A]mericans share a historical experience that has resulted in individuals within the culture ubiquitously attaching a significance to race that is irrational and often outside their awareness." Lawrence, The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. [333] Rev. 327 (1987). See generally id., at 328-344 (describing the psychological dynamics of unconscious racial motivation). As we said in Rose v. Mitchell, 443 U. S. 545, 558-559 (1979):
"[W]e . . . cannot deny that, 114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole. Perhaps today that discrimination takes a form more subtle than before. But it is not less real or pernicious."
The ongoing influence of history is acknowledged, as the majority observes, by our " `unceasing efforts' to eradicate racial prejudice from our criminal justice system." Ante, at 309 (quoting Batson v. Kentucky, 476 U. S. 79, 85 (1986)). These efforts, however, signify not the elimination of the problem but its persistence. Our cases reflect a realization of the myriad of opportunities for racial considerations to influence criminal proceedings: in the exercise of peremptory challenges, Batson v. Kentucky, supra; in the selection of the grand jury, Vasquez v. Hillery, 474 U. S. 254 (1986); in the selection of the petit jury, Whitus v. Georgia, 385 U. S. 545 (1967); in the exercise of prosecutorial discretion, Wayte v. United States, 470 U. S. 598 (1985); in the conduct of argument, Donnelly v. DeChristoforo, 416 U. S. 637 (1974); and in the conscious or unconscious bias of jurors, Turner v. Murray, 476 U. S. 28 (1986), Ristaino v. Ross, 424 U. S. 589 (1976).
The discretion afforded prosecutors and jurors in the Georgia capital sentencing system creates such opportunities. No guidelines govern prosecutorial decisions to seek the death penalty, and Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another. Once a jury identifies one aggravating factor, it has complete discretion in choosing life or death, and need not articulate its basis for selecting life imprisonment. The Georgia sentencing system therefore [334] provides considerable opportunity for racial considerations, however subtle and unconscious, to influence charging and sentencing decisions.[9]
History and its continuing legacy thus buttress the probative force of McCleskey's statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless, as we acknowledged in Turner, "subtle, less consciously held racial attitudes" continue to be of concern, 476 U. S., at 35, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey's statistical evidence are therefore consistent with the lessons of social experience.
[335] The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result "the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination." California v. Ramos, 463 U. S., at 998-999. For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life.
IV
The Court cites four reasons for shrinking from the implications of McCleskey's evidence: the desirability of discretion for actors in the criminal justice system, the existence of statutory safeguards against abuse of that discretion, the potential consequences for broader challenges to criminal sentencing, and an understanding of the contours of the judicial role. While these concerns underscore the need for sober deliberation, they do not justify rejecting evidence as convincing as McCleskey has presented.
The Court maintains that petitioner's claim "is antithetical to the fundamental role of discretion in our criminal justice [336] system." Ante, at 311. It states that "[w]here the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious." Ante, at 313.
Reliance on race in imposing capital punishment, however, is antithetical to the very rationale for granting sentencing discretion. Discretion is a means, not an end. It is bestowed in order to permit the sentencer to "trea[t] each defendant in a capital case with that degree of respect due the uniqueness of the individual." Lockett v. Ohio, 438 U. S. 586, 605 (1978). The decision to impose the punishment of death must be based on a "particularized consideration of relevant aspects of the character and record of each convicted defendant." Woodson v. North Carolina, 428 U. S., at 303. Failure to conduct such an individualized moral inquiry "treats all persons convicted of a designated offense not as unique individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." Id., at 304.
Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act — for in such a case the very end that discretion is designed to serve is being undermined.
[337] Our desire for individualized moral judgments may lead us to accept some inconsistencies in sentencing outcomes. Since such decisions are not reducible to mathematical formulae, we are willing to assume that a certain degree of variation reflects the fact that no two defendants are completely alike. There is thus a presumption that actors in the criminal justice system exercise their discretion in responsible fashion, and we do not automatically infer that sentencing patterns that do not comport with ideal rationality are suspect.
As we made clear in Batson v. Kentucky, 476 U. S. 79 (1986), however, that presumption is rebuttable. Batson dealt with another arena in which considerable discretion traditionally has been afforded, the exercise of peremptory challenges. Those challenges are normally exercised without any indication whatsoever of the grounds for doing so. The rationale for this deference has been a belief that the unique characteristics of particular prospective jurors may raise concern on the part of the prosecution or defense, despite the fact that counsel may not be able to articulate that concern in a manner sufficient to support exclusion for cause. As with sentencing, therefore, peremptory challenges are justified as an occasion for particularized determinations related to specific individuals, and, as with sentencing, we presume that such challenges normally are not made on the basis of a factor such as race. As we said in Batson, however, such features do not justify imposing a "crippling burden of proof," id., at 92, in order to rebut that presumption. The Court in this case apparently seeks to do just that. On the basis of the need for individualized decisions, it rejects evidence, drawn from the most sophisticated capital sentencing analysis ever performed, that reveals that race more likely than not infects capital sentencing decisions. The Court's position converts a rebuttable presumption into a virtually conclusive one.
[338] The Court also declines to find McCleskey's evidence sufficient in view of "the safeguards designed to minimize racial bias in the [capital sentencing] process." Ante, at 313. Gregg v. Georgia, 428 U. S., at 226, upheld the Georgia capital sentencing statute against a facial challenge which JUSTICE WHITE described in his concurring opinion as based on "simply an assertion of lack of faith" that the system could operate in a fair manner (opinion concurring in judgment). JUSTICE WHITE observed that the claim that prosecutors might act in an arbitrary fashion was "unsupported by any facts," and that prosecutors must be assumed to exercise their charging duties properly "[a]bsent facts to the contrary." Id., at 225. It is clear that Gregg bestowed no permanent approval on the Georgia system. It simply held that the State's statutory safeguards were assumed sufficient to channel discretion without evidence otherwise.
It has now been over 13 years since Georgia adopted the provisions upheld in Gregg. Professor Baldus and his colleagues have compiled data on almost 2,500 homicides committed during the period 1973-1979. They have taken into account the influence of 230 nonracial variables, using a multitude of data from the State itself, and have produced striking evidence that the odds of being sentenced to death are significantly greater than average if a defendant is black or his or her victim is white. The challenge to the Georgia system is not speculative or theoretical; it is empirical. As a result, the Court cannot rely on the statutory safeguards in discounting McCleskey's evidence, for it is the very effectiveness of those safeguards that such evidence calls into question. While we may hope that a model of procedural fairness will curb the influence of race on sentencing, "we cannot simply assume that the model works as intended; we must critique its performance in terms of its results." Hubbard, "Reasonable Levels of Arbitrariness" in Death Sentencing Patterns: A Tragic Perspective on Capital Punishment, 18 U. C. D. L. Rev. 1113, 1162 (1985).
[339] The Court next states that its unwillingness to regard petitioner's evidence as sufficient is based in part on the fear that recognition of McCleskey's claim would open the door to widespread challenges to all aspects of criminal sentencing. Ante, at 314-315. Taken on its face, such a statement seems to suggest a fear of too much justice. Yet surely the majority would acknowledge that if striking evidence indicated that other minority groups, or women, or even persons with blond hair, were disproportionately sentenced to death, such a state of affairs would be repugnant to deeply rooted conceptions of fairness. The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.[10]
In fairness, the Court's fear that McCleskey's claim is an invitation to descend a slippery slope also rests on the realization that any humanly imposed system of penalties will exhibit some imperfection. Yet to reject McCleskey's powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination, considerations which may [340] properly be taken into account in determining whether various punishments are "cruel and unusual." Furthermore, it fails to take account of the unprecedented refinement and strength of the Baldus study.
It hardly needs reiteration that this Court has consistently acknowledged the uniqueness of the punishment of death. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment." Woodson, 428 U. S., at 305. Furthermore, the relative interests of the state and the defendant differ dramatically in the death penalty context. The marginal benefits accruing to the state from obtaining the death penalty rather than life imprisonment are considerably less than the marginal difference to the defendant between death and life in prison. Such a disparity is an additional reason for tolerating scant arbitrariness in capital sentencing. Even those who believe that society can impose the death penalty in a manner sufficiently rational to justify its continuation must acknowledge that the level of rationality that is considered satisfactory must be uniquely high. As a result, the degree of arbitrariness that may be adequate to render the death penalty "cruel and unusual" punishment may not be adequate to invalidate lesser penalties. What these relative degrees of arbitrariness might be in other cases need not concern us here; the point is that the majority's fear of wholesale invalidation of criminal sentences is unfounded.
The Court also maintains that accepting McCleskey's claim would pose a threat to all sentencing because of the prospect that a correlation might be demonstrated between sentencing outcomes and other personal characteristics. Again, such a view is indifferent to the considerations that enter into a determination whether punishment is "cruel and unusual." Race is a consideration whose influence is expressly constitutionally [341] proscribed. We have expressed a moral commitment, as embodied in our fundamental law, that this specific characteristic should not be the basis for allotting burdens and benefits. Three constitutional amendments, and numerous statutes, have been prompted specifically by the desire to address the effects of racism. "Over the years, this Court has consistently repudiated `[d]istinctions between citizens solely because of their ancestry' as being `odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia, 388 U. S. 1, 11 (1967) (quoting Hirabayashi v. United States, 320 U. S. 81, 100 (1943)). Furthermore, we have explicitly acknowledged the illegitimacy of race as a consideration in capital sentencing, Zant v. Stephens, 462 U. S. 862, 885 (1983). That a decision to impose the death penalty could be influenced by race is thus a particularly repugnant prospect, and evidence that race may play even a modest role in levying a death sentence should be enough to characterize that sentence as "cruel and unusual."
Certainly, a factor that we would regard as morally irrelevant, such as hair color, at least theoretically could be associated with sentencing results to such an extent that we would regard as arbitrary a system in which that factor played a significant role. As I have said above, however, supra, at 328-329, the evaluation of evidence suggesting such a correlation must be informed not merely by statistics, but by history and experience. One could hardly contend that this Nation has on the basis of hair color inflicted upon persons deprivation comparable to that imposed on the basis of race. Recognition of this fact would necessarily influence the evaluation of data suggesting the influence of hair color on sentencing, and would require evidence of statistical correlation even more powerful than that presented by the Baldus study.
Furthermore, the Court's fear of the expansive ramifications of a holding for McCleskey in this case is unfounded because it fails to recognize the uniquely sophisticated nature of the Baldus study. McCleskey presents evidence that is [342] far and away the most refined data ever assembled on any system of punishment, data not readily replicated through casual effort. Moreover, that evidence depicts not merely arguable tendencies, but striking correlations, all the more powerful because nonracial explanations have been eliminated. Acceptance of petitioner's evidence would therefore establish a remarkably stringent standard of statistical evidence unlikely to be satisfied with any frequency.
The Court's projection of apocalyptic consequences for criminal sentencing is thus greatly exaggerated. The Court can indulge in such speculation only by ignoring its own jurisprudence demanding the highest scrutiny on issues of death and race. As a result, it fails to do justice to a claim in which both those elements are intertwined — an occasion calling for the most sensitive inquiry a court can conduct. Despite its acceptance of the validity of Warren McCleskey's evidence, the Court is willing to let his death sentence stand because it fears that we cannot successfully define a different standard for lesser punishments. This fear is baseless.
Finally, the Court justifies its rejection of McCleskey's claim by cautioning against usurpation of the legislatures' role in devising and monitoring criminal punishment. The Court is, of course, correct to emphasize the gravity of constitutional intervention and the importance that it be sparingly employed. The fact that "[c]apital punishment is now the law in more than two thirds of our States," ante, at 319, however, does not diminish the fact that capital punishment is the most awesome act that a State can perform. The judiciary's role in this society counts for little if the use of governmental power to extinguish life does not elicit close scrutiny. It is true that society has a legitimate interest in punishment. Yet, as Alexander Bickel wrote:
"It is a premise we deduce not merely from the fact of a written constitution but from the history of the race, and ultimately as a moral judgment of the good society, that government should serve not only what we conceive [343] from time to time to be our immediate material needs but also certain enduring values. This in part is what is meant by government under law." The Least Dangerous Branch 24 (1962).
Our commitment to these values requires fidelity to them even when there is temptation to ignore them. Such temptation is especially apt to arise in criminal matters, for those granted constitutional protection in this context are those whom society finds most menacing and opprobrious. Even less sympathetic are those we consider for the sentence of death, for execution "is a way of saying, `You are not fit for this world, take your chance elsewhere.' " Furman, 408 U. S., at 290 (BRENNAN, J., concurring) (quoting Stephen, Capital Punishments, 69 Fraser's Magazine 753, 763 (1864)).
For these reasons, "[t]he methods we employ in the enforcement of our criminal law have aptly been called the measures by which the quality of our civilization may be judged." Coppedge v. United States, 369 U. S. 438, 449 (1962). Those whom we would banish from society or from the human community itself often speak in too faint a voice to be heard above society's demand for punishment. It is the particular role of courts to hear these voices, for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life. The Court thus fulfills, rather than disrupts, the scheme of separation of powers by closely scrutinizing the imposition of the death penalty, for no decision of a society is more deserving of "sober second thought." Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 25 (1936).
V
At the time our Constitution was framed 200 years ago this year, blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect." Dred Scott v. Sandford, [344] 19 How. 393, 407 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that "[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." Plessy v. Ferguson, 163 U. S. 537, 552 (1896).
In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court's first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey's evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present.
It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. "The destinies of the two races in this country are indissolubly linked together," id., at 560 (Harlan, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living.
The Court's decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey, nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey's evidence [345A] will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today's decision may be rendered, these painful conversations will serve as the most eloquent dissents of all.
[345B] JUSTICE BLACKMUN, with whom JUSTICE MARSHALL and JUSTICE STEVENS join, and with whom JUSTICE BRENNAN joins in all but Part IV-B, dissenting.
The Court today sanctions the execution of a man despite his presentation of evidence that establishes a constitutionally intolerable level of racially based discrimination leading to the imposition of his death sentence. I am disappointed with the Court's action not only because of its denial of constitutional guarantees to petitioner McCleskey individually, but also because of its departure from what seems to me to be well-developed constitutional jurisprudence.
JUSTICE BRENNAN has thoroughly demonstrated, ante, that, if one assumes that the statistical evidence presented by petitioner McCleskey is valid, as we must in light of the Court of Appeals' assumption,[1] there exists in the Georgia capital sentencing scheme a risk of racially based discrimination that is so acute that it violates the Eighth Amendment. His analysis of McCleskey's case in terms of the Eighth Amendment is consistent with this Court's recognition that because capital cases involve the State's imposition of a punishment that is unique both in kind and degree, the decision in such cases must reflect a heightened degree of reliability under the Amendment's prohibition of the infliction of cruel and unusual punishments. See Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion). I therefore join Parts II through V of JUSTICE BRENNAN'S dissenting opinion.
[346] Yet McCleskey's case raises concerns that are central not only to the principles underlying the Eighth Amendment, but also to the principles underlying the Fourteenth Amendment. Analysis of his case in terms of the Fourteenth Amendment is consistent with this Court's recognition that racial discrimination is fundamentally at odds with our constitutional guarantee of equal protection. The protections afforded by the Fourteenth Amendment are not left at the courtroom door. Hill v. Texas, 316 U. S. 400, 406 (1942). Nor is equal protection denied to persons convicted of crimes. Lee v. Washington, 390 U. S. 333 (1968) (per curiam). The Court in the past has found that racial discrimination within the criminal justice system is particularly abhorrent: "Discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell, 443 U. S. 545, 555 (1979). Disparate enforcement of criminal sanctions "destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process." Id., at 555-556. And only last Term JUSTICE POWELL, writing for the Court, noted: "Discrimination within the judicial system is most pernicious because it is `a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.' " Batson v. Kentucky, 476 U. S. 79, 87-88 (1986), quoting Strauder v. West Virginia, 100 U. S. 303, 308 (1880).
Moreover, the legislative history of the Fourteenth Amendment reminds us that discriminatory enforcement of States' criminal laws was a matter of great concern for the drafters. In the introductory remarks to its Report to Congress, the Joint Committee on Reconstruction, which reported out the Joint Resolution proposing the Fourteenth Amendment, specifically noted: "This deep-seated prejudice against color . . . leads to acts of cruelty, oppression, and murder, which the local authorities are at no pains to prevent or punish." H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., p. XVII (1866). Witnesses who testified before [347] the Committee presented accounts of criminal acts of violence against black persons that were not prosecuted despite evidence as to the identity of the perpetrators.[2]
I
A
The Court today seems to give a new meaning to our recognition that death is different. Rather than requiring [348] "a correspondingly greater degree of scrutiny of the capital sentencing determination," California v. Ramos, 463 U. S. 992, 998-999 (1983), the Court relies on the very fact that this is a case involving capital punishment to apply a lesser standard of scrutiny under the Equal Protection Clause. The Court concludes that "legitimate" explanations outweigh McCleskey's claim that his death sentence reflected a constitutionally impermissible risk of racial discrimination. The Court explains that McCleskey's evidence is too weak to require rebuttal "because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty." Ante, at 297. The Court states that it will not infer a discriminatory purpose on the part of the state legislature because "there were legitimate reasons for the Georgia Legislature to adopt and maintain capital punishment." Ante, at 298-299.
The Court's assertion that the fact of McCleskey's conviction undermines his constitutional claim is inconsistent with a long and unbroken line of this Court's case law. The Court on numerous occasions during the past century has recognized that an otherwise legitimate basis for a conviction does not outweigh an equal protection violation. In cases where racial discrimination in the administration of the criminal justice system is established, it has held that setting aside the conviction is the appropriate remedy. See, e. g., Rose v. Mitchell, 443 U. S., at 559; Whitus v. Georgia, 385 U. S. 545, 549-550 (1967); Strauder v. West Virginia, 100 U. S. 303 (1880). The Court recently reaffirmed the propriety of invalidating a conviction in order to vindicate federal constitutional rights. Vasquez v. Hillery, 474 U. S. 254 (1986). Invalidation of a criminal conviction on federal constitutional grounds does not necessarily preclude retrial and resentencing of the defendant by the State. Hill v. Texas, 316 U. S., at 406. The Court has maintained a per se reversal [349] rule rejecting application of harmless-error analysis in cases involving racial discrimination that "strikes at the fundamental values of our judicial system and our society as a whole." Rose v. Mitchell, 443 U. S., at 556. We have noted that a conviction "in no way suggests that the discrimination did not impermissibly infect" earlier phases of the criminal prosecution "and, consequently, the nature or very existence of the proceedings to come." Vasquez v. Hillery, 474 U. S., at 263. Hence, McCleskey's conviction and the imposition of his death sentence by the jury do not suggest that discrimination did not impermissibly infect the earlier steps in the prosecution of his case, such as the prosecutor's decision to seek the death penalty.
The Court's reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is likewise inappropriate. Although that reasoning may be relevant in a case involving a facial challenge to the constitutionality of a statute, it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case. In Batson v. Kentucky, supra, we rejected such reasoning: "The Constitution requires . . . that we look beyond the face of the statute . . . and also consider challenged selection practices to afford `protection against action of the State through its administrative officers in effecting the prohibited discrimination.' " 476 U. S., at 88, quoting Norris v. Alabama, 294 U. S. 587, 589 (1935).
B
In analyzing an equal protection claim, a court must first determine the nature of the claim and the responsibilities of the state actors involved to determine what showing is required for the establishment of a prima facie case. Castaneda v. Partida, 430 U. S. 482, 493-494 (1977). The Court correctly points out: "In its broadest form, McCleskey's claim of discrimination extends to every actor in the Georgia capital sentencing process, from the prosecutor who [350] sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application." Ante, at 292. Having recognized the complexity of McCleskey's claim, however, the Court proceeds to ignore a significant element of that claim. The Court treats the case as if it is limited to challenges to the actions of two specific decisionmaking bodies — the petit jury and the state legislature. Ante, at 294-295, 297-298. This self-imposed restriction enables the Court to distinguish this case from the venire-selection cases and cases under Title VII of the Civil Rights Act of 1964 in which it long has accepted statistical evidence and has provided an easily applicable framework for review. See e. g., Castaneda v. Partida, supra; Bazemore v. Friday, 478 U. S. 385 (1986) (BRENNAN, J., joined by all other Members of the Court, concurring in part). Considering McCleskey's claim in its entirety, however, reveals that the claim fits easily within that same framework. A significant aspect of his claim is that racial factors impermissibly affected numerous steps in the Georgia capital sentencing scheme between his indictment and the jury's vote to sentence him to death. The primary decisionmaker at each of the intervening steps of the process is the prosecutor, the quintessential state actor in a criminal proceeding.[3] The District Court expressly stated [351] that there were "two levels of the system that matter to [McCleskey], the decision to seek the death penalty and the decision to impose the death penalty." 580 F. Supp. 338, 379-380 (ND Ga. 1984). I agree with this statement of McCleskey's case. Hence, my analysis in this dissenting opinion takes into account the role of the prosecutor in the Georgia capital sentencing system. I certainly do not address all the alternative methods of proof in the Baldus study. Nor do I review each step in the process which McCleskey challenges. I concentrate on the decisions within the prosecutor's office through which the State decided to seek the death penalty and, in particular, the point at which the State proceeded to the penalty phase after conviction. This is a step at which the evidence of the effect of the racial factors was especially strong, see Supplemental Exhibits (Supp. Exh.) 56, 57; Transcript of Federal Habeas Corpus Hearing in No. C81-2434A (Tr.) 894-926, but is ignored by the Court.
II
A
A criminal defendant alleging an equal protection violation must prove the existence of purposeful discrimination. Washington v. Davis, 426 U. S. 229, 239-240 (1976); Whitus v. Georgia, 385 U. S., at 550. He may establish a prima facie case[4] of purposeful discrimination "by showing that the [352] totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson v. Kentucky, 476 U. S., at 94.[5] Once the defendant establishes a prima facie case, the burden shifts to the prosecution to rebut that case. "The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties." Ibid. The State must demonstrate that the challenged effect was due to " `permissible racially neutral selection criteria.' " Ibid., quoting Alexander v. Louisiana, 405 U. S. 625, 632 (1972).
Under Batson v. Kentucky and the framework established in Castaneda v. Partida, McCleskey must meet a three-factor standard. First, he must establish that he is a member of a group "that is a recognizable, distinct class, singled out for different treatment." 430 U. S., at 494. Second, he must make a showing of a substantial degree of differential treatment.[6] Third, he must establish that the allegedly [353] discriminatory procedure is susceptible to abuse or is not racially neutral. Ibid.
B
There can be no dispute that McCleskey has made the requisite showing under the first prong of the standard. The Baldus study demonstrates that black persons are a distinct group that are singled out for different treatment in the Georgia capital sentencing system. The Court acknowledges, as it must, that the raw statistics included in the Baldus study and presented by petitioner indicate that it is much less likely that a death sentence will result from a murder of a black person than from a murder of a white person. Ante, at 286. White-victim cases are nearly 11 times more likely to yield a death sentence than are black-victim cases. Supp. Exh. 46. The raw figures also indicate that even within the group of defendants who are convicted of killing white persons and are thereby more likely to receive a death sentence, black defendants are more likely than white defendants to be sentenced to death. Supp. Exh. 47.
With respect to the second prong, McCleskey must prove that there is a substantial likelihood that his death sentence is due to racial factors. See Hunter v. Underwood, 471 U. S. 222, 228 (1985). The Court of Appeals assumed the validity of the Baldus study and found that it "showed that systemic and substantial disparities existed in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." 753 F. 2d 877, 895 (CA11 1985). [354] The question remaining therefore is at what point does that disparity become constitutionally unacceptable. See Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986) (plurality opinion). Recognizing that additional factors can enter into the decisionmaking process that yields a death sentence, the authors of the Baldus study collected data concerning the presence of other relevant factors in homicide cases in Georgia during the time period relevant to McCleskey's case. They then analyzed the data in a manner that would permit them to ascertain the independent effect of the racial factors.[7]
McCleskey demonstrated the degree to which his death sentence was affected by racial factors by introducing multiple-regression [355] analyses that explain how much of the statistical distribution of the cases analyzed is attributable to the racial factors. McCleskey established that because he was charged with killing a white person he was 4.3 times as likely to be sentenced to death as he would have been had he been charged with killing a black person. Petitioner's Exhibit DB 82. McCleskey also demonstrated that it was more likely than not that the fact that the victim he was charged with killing was white determined that he received a sentence of death — 20 out of every 34 defendants in McCleskey's midrange category would not have been sentenced to be executed if their victims had been black. Supp. Exh. 54.[8] The most persuasive evidence of the constitutionally significant effect of racial factors in the Georgia capital sentencing system is McCleskey's proof that the race of the victim is more important in explaining the imposition of a death sentence than is the factor whether the defendant was a prime mover in the homicide. Petitioner's Exhibit DB 82.[9] Similarly, the race-of-victim factor is nearly as crucial as the statutory aggravating circumstance whether the defendant had a prior record of a conviction for a capital crime.[10]Ibid. See Ga. Code Ann. § 17-10-30(b) (1982), ante, at 284-285, n. 3. The Court has noted elsewhere that Georgia could not attach "the `aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant." Zant v. Stephens, 462 U. S. 862, 885 (1983). What we have held to be unconstitutional if included in the [356] language of the statute surely cannot be constitutional because it is a de facto characteristic of the system.
McCleskey produced evidence concerning the role of racial factors at the various steps in the decisionmaking process, focusing on the prosecutor's decision as to which cases merit the death sentence. McCleskey established that the race of the victim is an especially significant factor at the point where the defendant has been convicted of murder and the prosecutor must choose whether to proceed to the penalty phase of the trial and create the possibility that a death sentence may be imposed or to accept the imposition of a sentence of life imprisonment. McCleskey demonstrated this effect at both the statewide level, see Supp. Exh. 56, 57, Tr. 897-910, and in Fulton County where he was tried and sentenced, see Supp. Exh. 59, 60, Tr. 978-981. The statewide statistics indicated that black-defendant/white-victim cases advanced to the penalty trial at nearly five times the rate of the black-defendant/black-victim cases (70% v. 15%), and over three times the rate of white-defendant/ black-victim cases (70% v. 19%). See Supp. Exh. 56. The multiple-regression analysis demonstrated that racial factors had a readily identifiable effect at a statistically significant level. See id., at 57; Tr. 905. The Fulton County statistics were consistent with this evidence although they involved fewer cases. See Supp. Exh. 59, 60.[11]
Individualized evidence relating to the disposition of the Fulton County cases that were most comparable to McCleskey's case was consistent with the evidence of the race-of-victim effect as well. Of the 17 defendants, including [357] McCleskey, who were arrested and charged with homicide of a police officer in Fulton County during the 1973-1979 period, McCleskey, alone, was sentenced to death. The only other defendant whose case even proceeded to the penalty phase received a sentence of life imprisonment. That defendant had been convicted of killing a black police officer. See id., at 61-63; Tr. 1050-1062.
As to the final element of the prima facie case, McCleskey showed that the process by which the State decided to seek a death penalty in his case and to pursue that sentence throughout the prosecution was susceptible to abuse. Petitioner submitted the deposition of Lewis R. Slaton, who, as of the date of the deposition, had been the District Attorney for 18 years in the county in which McCleskey was tried and sentenced. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 5; see McCleskey v. Zant, 580 F. Supp. 338, 377, n. 15 (1984); Tr. 1316. As Mr. Slaton explained, the duties and responsibilities of that office are the prosecution of felony charges within the Atlanta Judicial Circuit that comprises Fulton County. Deposition 7-8. He testified that during his years in the office, there were no guidelines informing the Assistant District Attorneys who handled the cases how they should proceed at any particular stage of the prosecution. There were no guidelines as to when they should seek an indictment for murder as opposed to lesser charges, id., at 10-11; when they should recommend acceptance of a guilty plea to murder, acceptance of a guilty plea to a lesser charge, reduction of charges, or dismissal of charges at the postindictment-preconviction stage, id., at 25-26, 31; or when they should seek the death penalty, id., at 31. Slaton testified that these decisions were left to the discretion of the individual attorneys who then informed Slaton of their decisions as they saw fit. Id., at 13, 24-25, 37-38.
Slaton's deposition proves that, at every stage of a prosecution, the Assistant District Attorney exercised much discretion. The only guidance given was "on-the-job training." [358] Id., at 20. Addressing plea bargaining, for example, Slaton stated that "through the training that the assistant DA's get, I think we pretty much think alike on the cases, on what we suggest." Id., at 25. The sole effort to provide any consistency was Slaton's periodic pulling of files at random to check on the progress of cases. Id., at 28-29. Slaton explained that as far as he knew, he was the only one aware of this checking. Id., at 28. The files contained information only as to the evidence in the case, not any indication as to why an attorney made a particular decision. The attorneys were not required to record why they sought an indictment for murder as opposed to a lesser charge, id., at 19, or why they recommended a certain plea, id., at 29-30.[12] The attorneys were not required to report to Slaton the cases in which they decided not to seek the death penalty, id., at 34-36, 38, or the cases in which they did seek the death penalty, id., at 41.
When questioned directly as to how the office decided whether to seek the death penalty, Slaton listed several factors he thought relevant to that decision, including the strength of the evidence, the atrociousness of the crime, and the likelihood that a jury would impose the death sentence. Id., at 59. He explained that the attorneys did not seek the death penalty in every case in which statutory aggravating factors existed. Id., at 38-39. Slaton testified that his office still operated in the same manner as it did when he took office in 1965, except that it has not sought the death penalty in any rape cases since this Court's decision in Coker v. Georgia, 433 U. S. 584 (1977). Deposition 60.
In addition to this showing that the challenged system was susceptible to abuse, McCleskey presented evidence of the [359] history of prior discrimination in the Georgia system. JUSTICE BRENNAN has reviewed much of this history in detail in his dissenting opinion, ante, at 328-334, including the history of Georgia's racially based dual system of criminal justice. This historical background of the state action challenged "is one evidentiary source" in this equal protection case. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267 (1977); see also Rogers v. Lodge, 458 U. S. 613, 618, 623-625 (1982). Although I would agree that evidence of "official actions taken long ago" could not alone establish that the current system is applied in an unconstitutionally discriminatory manner, I disagree with the Court's statement that such evidence is now irrelevant. Ante, at 298, n. 20.
The above-described evidence, considered in conjunction with the other record evidence outlined by JUSTICE BRENNAN, ante, at 325-328, and discussed in opinions dissenting from the judgment of the Court of Appeals, 753 F. 2d, at 919 (Hatchett, J., dissenting in part and concurring in part); id., at 920-923 (Clark, J., dissenting in part and concurring in part), gives rise to an inference of discriminatory purpose. See Washington v. Davis, 426 U. S., at 239-242. As in the context of the rule of exclusion, see n. 6, supra, McCleskey's showing is of sufficient magnitude that, absent evidence to the contrary, one must conclude that racial factors entered into the decisionmaking process that yielded McCleskey's death sentence. See Castaneda v. Partida, 430 U. S., at 494, n. 13. The burden, therefore, shifts to the State to explain the racial selections. It must demonstrate that legitimate racially neutral criteria and procedures yielded this racially skewed result.
In rebuttal, the State's expert suggested that if the Baldus thesis was correct then the aggravation level in black-victim cases where a life sentence was imposed would be higher than in white-victim cases. See 580 F. Supp., at 373. The expert analyzed aggravating and mitigating circumstances [360] "one by one, demonstrating that in life sentence cases, to the extent that any aggravating circumstance is more prevalent in one group than the other, there are more aggravating features in the group of white-victim cases than in the group of black-victim cases. Conversely, there were more mitigating circumstances in which black-victim cases had a higher proportion of that circumstance than in white-victim cases." Ibid. The District Court found that the State's suggestion was plausible. It concluded, however, that the State did not conclusively disprove McCleskey's case; yet it reasoned that the State's theory "stands to contradict any prima facie case." Ibid. I find that reasoning wrong as a matter of law, and the conclusion clearly erroneous.
The State did not test its hypothesis to determine if white-victim and black-victim cases at the same level of aggravating circumstances were similarly treated. Tr. 1613-1614, 1664. McCleskey's experts, however, performed this test on their data. Id., at 1297, 1729-1732, 1756-1761. They demonstrated that the racial disparities in the system were not the result of the differences in the average aggravation levels between white-victim and black-victim cases. See Supp. Exh. 72; Tr. 1291-1296; Petitioner's Exhibit DB 92. The State's meager and unsophisticated evidence cannot withstand the extensive scrutiny given the Baldus evidence.[13] [361] Here, as in Bazemore v. Friday, the State did not "demonstrate that when th[e] factors were properly organized and accounted for there was no significant disparity" between the death sentences imposed on defendants convicted of killing white victims and those imposed on defendants convicted of killing black victims. 478 U. S., at 403-404, n. 14. In Castaneda, we rejected a similar effort by the State to rely on an unsupported countervailing theory to rebut the evidence. 430 U. S., at 500. In sum, McCleskey has demonstrated a clear pattern of differential treatment according to race that is "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266.
III
The Court's explanations for its failure to apply this well-established equal protection analysis to this case are not persuasive. It first reasons that "each particular decision to impose the death penalty is made by a petit jury" and that the "application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII [362] case." Ante, at 294-295. According to the Court, the statistical evidence is less relevant because, in the two latter situations, there are fewer variables relevant to the decision and the "statistics relate to fewer entities." Ante, at 295.
I disagree with the Court's assertion that there are fewer variables relevant to the decisions of jury commissioners or prosecutors in their selection of jurors, or to the decisions of employers in their selection, promotion, or discharge of employees. Such decisions involve a multitude of factors, some rational, some irrational. Second, I disagree with the comment that the venire-selection and employment decisions are "made by fewer entities." Certainly in the employment context, personnel decisions are often the product of several levels of decisionmaking within the business or government structure. The Court's statement that the decision to impose death is made by the petit jury also disregards the fact that the prosecutor screens the cases throughout the pretrial proceedings and decides to seek the death penalty and to pursue a capital case to the penalty phase where a death sentence can be imposed. McCleskey's claim in this regard lends itself to analysis under the framework we apply in assessing challenges to other prosecutorial actions. See Batson v. Kentucky, 476 U. S. 79 (1986); see also Wayte v. United States, 470 U. S. 598, 608, n. 10 (1985) (applying Castaneda framework in challenge to prosecutor's allegedly selective enforcement of criminal sanction). It is appropriate to judge claims of racially discriminatory prosecutorial selection of cases according to ordinary equal protection standards. 470 U. S., at 608.
The Court's other reason for treating this case differently from venire-selection and employment cases is that in these latter contexts, "the decisionmaker has an opportunity to explain the statistical disparity," but in the instant case the State had no practical opportunity to rebut the Baldus study. Ante, at 296. According to the Court, this is because jurors cannot be called to testify about their verdict and because [363] policy considerations render it improper to require "prosecutors to defend their decisions to seek death penalties, `often years after they were made.' " Ibid., quoting Imbler v. Pachtman, 424 U. S. 409, 425 (1976).
I agree with the Court's observation as to the difficulty of examining the jury's decisionmaking process. There perhaps is an inherent tension between the discretion accorded capital sentencing juries and the guidance for use of that discretion that is constitutionally required. In his dissenting opinion, JUSTICE BRENNAN demonstrates that the Eighth Amendment analysis is well suited to address that aspect of the case. Ante, at 323. The Court's refusal to require that the prosecutor provide an explanation for his actions, however, is completely inconsistent with this Court's longstanding precedents. The Court misreads Imbler v. Pachtman. In that case, the Court held that a prosecutor who acted within the scope of his duties was entitled to absolute immunity in an action under 42 U. S. C. § 1983 for damages. We recognized that immunity from damages actions was necessary to prevent harassing litigation and to avoid the threat of civil litigation undermining the prosecutor's independence of judgment. We clearly specified, however, that the policy considerations that compelled civil immunity did not mean that prosecutors could not be called to answer for their actions. We noted the availability of both criminal sanctions and professional ethical discipline. 424 U. S., at 429. Prosecutors undoubtedly need adequate discretion to allocate the resources of their offices and to fulfill their responsibilities to the public in deciding how best to enforce the law, but this does not place them beyond the constraints imposed on state action under the Fourteenth Amendment. Cf. Ex parte Virginia, 100 U. S. 339 (1880) (upholding validity of conviction of state judge for discriminating on the basis of race in his selection of jurors).
The Court attempts to distinguish the present case from Batson v. Kentucky, in which we recently reaffirmed the fact [364] that prosecutors' actions are not unreviewable. See ante, at 296, n. 17. I agree with the Court's observation that this case is "quite different" from the Batson case. Ibid. The irony is that McCleskey presented proof in this case that would have satisfied the more burdensome standard of Swain v. Alabama, 380 U. S. 202 (1965), a standard that was described in Batson as having placed on defendants a "crippling burden of proof." 476 U. S., at 92. As discussed above, McCleskey presented evidence of numerous decisions impermissibly affected by racial factors over a significant number of cases. The exhaustive evidence presented in this case certainly demands an inquiry into the prosecutor's actions.
The Court's assertion that, because of the necessity of discretion in the criminal justice system, it "would demand exceptionally clear proof," ante, at 297, before inferring abuse of that discretion thus misses the point of the constitutional challenge in this case. Its conclusory statement that "the capacity of prosecutorial discretion to provide individualized justice is `firmly entrenched in American law,' " ante, at 311-312, quoting 2 W. LaFave & J. Israel, Criminal Procedure § 13.2(a), p. 160 (1984), is likewise not helpful. The issue in this case is the extent to which the constitutional guarantee of equal protection limits the discretion in the Georgia capital sentencing system. As the Court concedes, discretionary authority can be discriminatory authority. Ante, at 312. Prosecutorial decisions may not be " `deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' " Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978), quoting Oyler v. Boles, 368 U. S. 448, 456 (1962). Judicial scrutiny is particularly appropriate in McCleskey's case because "[m]ore subtle, less consciously held racial attitudes could also influence" the decisions in the Georgia capital sentencing system. Turner v. Murray, 476 U. S. 28, 35 (1986); see n. 13, supra. The Court's rejection of McCleskey's equal protection claims is [365] a far cry from the "sensitive inquiry" mandated by the Constitution.
IV
A
One of the final concerns discussed by the Court may be the most disturbing aspect of its opinion. Granting relief to McCleskey in this case, it is said, could lead to further constitutional challenges. Ante, at 314-319. That, of course, is no reason to deny McCleskey his rights under the Equal Protection Clause. If a grant of relief to him were to lead to a closer examination of the effects of racial considerations throughout the criminal justice system, the system, and hence society, might benefit. Where no such factors come into play, the integrity of the system is enhanced. Where such considerations are shown to be significant, efforts can be made to eradicate their impermissible influence and to ensure an evenhanded application of criminal sanctions.
B
Like JUSTICE STEVENS, I do not believe acceptance of McCleskey's claim would eliminate capital punishment in Georgia. Post, at 367. JUSTICE STEVENS points out that the evidence presented in this case indicates that in extremely aggravated murders the risk of discriminatory enforcement of the death penalty is minimized. Ibid. I agree that narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race. Moreover, the establishment of guidelines for Assistant District Attorneys as to the appropriate basis for exercising their discretion at the various steps in the prosecution of a case would provide at least a measure of consistency. The Court's emphasis on the procedural safeguards in the system ignores the fact that there are none whatsoever during the crucial process leading up to trial. As JUSTICE WHITE stated for the plurality in Turner v. Murray, I find "the risk that racial prejudice may [366] have infected petitioner's capital sentencing unacceptable in light of the ease with which that risk could have been minimized." 476 U. S., at 36. I dissent.
JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting.
There "is a qualitative difference between death and any other permissible form of punishment," and hence, " `a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.' " Zant v. Stephens, 462 U. S. 862, 884-885 (1983), quoting Woodson v. North Carolina, 428 U. S. 280, 305 (1976) (plurality opinion of Stewart, POWELL, and STEVENS, JJ.). Even when considerations far less repugnant than racial discrimination are involved, we have recognized the "vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion." Gardner v. Florida, 430 U. S. 349, 358 (1977). "[A]lthough not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state-court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error." Zant, supra, at 885.
In this case it is claimed — and the claim is supported by elaborate studies which the Court properly assumes to be valid — that the jury's sentencing process was likely distorted by racial prejudice. The studies demonstrate a strong probability that McCleskey's sentencing jury, which expressed "the community's outrage — its sense that an individual has lost his moral entitlement to live," Spaziano v. Florida, 468 U. S. 447, 469 (1984) (STEVENS, J., dissenting) — was influenced by the fact that McCleskey is black and his victim was white, and that this same outrage would not have been generated if he had killed a member of his own race. This sort of disparity is constitutionally intolerable. It flagrantly violates the Court's prior "insistence that capital punishment be [367] imposed fairly, and with reasonable consistency, or not at all." Eddings v. Oklahoma, 455 U. S. 104, 112 (1982).
The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain. Eddings v. Oklahoma, supra. But the Court's fear is unfounded. One of the lessons of the Baldus study is that there exist certain categories of extremely serious crimes for which prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender. If Georgia were to narrow the class of death-eligible defendants to those categories, the danger of arbitrary and discriminatory imposition of the death penalty would be significantly decreased, if not eradicated. As JUSTICE BRENNAN has demonstrated in his dissenting opinion, such a restructuring of the sentencing scheme is surely not too high a price to pay.
Like JUSTICE BRENNAN, I would therefore reverse the judgment of the Court of Appeals. I believe, however, that further proceedings are necessary in order to determine whether McCleskey's death sentence should be set aside. First, the Court of Appeals must decide whether the Baldus study is valid. I am persuaded that it is, but orderly procedure requires that the Court of Appeals address this issue before we actually decide the question. Second, it is necessary for the District Court to determine whether the particular facts of McCleskey's crime and his background place this case within the range of cases that present an unacceptable risk that race played a decisive role in McCleskey's sentencing.
Accordingly, I respectfully dissent.
[*] Briefs of amici curiae urging reversal were filed for the Congressional Black Caucus et al. by Seth P. Waxman, Harold R. Tyler, Jr., James Robertson, Norman Redlich, William L. Robinson, and Grover Hankins; and for the International Human Rights Law Group by Ralph G. Steinhardt.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Ira Reiner, Harry B. Sondheim, John K. Van de Kamp, Attorney General, Michael C. Wellington, Supervising Deputy Attorney General, and Susan Lee Frierson, Deputy Attorney General; and for the Washington Legal Foundation et al. by Daniel J. Popeo and George C. Smith.
Martin F. Richman filed a brief for Dr. Franklin M. Fisher et al. as amici curiae.
[1] The Georgia Code has been revised and renumbered since McCleskey's trial. The changes do not alter the substance of the sections relevant to this case. For convenience, references in this opinion are to the current sections.
The Georgia Code contains only one degree of murder. A person commits murder "when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being." Ga. Code Ann. § 16-5-1(a) (1984). A person convicted of murder "shall be punished by death or by imprisonment for life." § 16-5-1(d).
[2] Georgia Code Ann. § 17-10-2(c) (1982) provides that when a jury convicts a defendant of murder, "the court shall resume the trial and conduct a presentence hearing before the jury." This subsection suggests that a defendant convicted of murder always is subjected to a penalty hearing at which the jury considers imposing a death sentence. But as a matter of practice, penalty hearings seem to be held only if the prosecutor affirmatively seeks the death penalty. If he does not, the defendant receives a sentence of life imprisonment. See Baldus, Pulaski, & Woodworth, Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & C. 661, 674, n. 56 (1983).
[3] A jury cannot sentence a defendant to death for murder unless it finds that one of the following aggravating circumstances exists beyond a reasonable doubt:
"(1) The offense . . . was committed by a person with a prior record of conviction for a capital felony;
"(2) The offense . . . was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;
"(3) The offender, by his act of murder . . . knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
"(4) The offender committed the offense . . . for himself or another, for the purpose of receiving money or any other thing of monetary value;
"(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor, or former district attorney or solicitor was committed during or because of the exercise of his official duties;
"(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
"(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
"(8) The offense . . . was committed against any peace officer, corrections employee, or fireman while engaged in the performance of his official duties;
"(9) The offense . . . was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or
"(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another." § 17-10-30(b).
[4] Georgia law provides that "[w]here a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death." § 17-10-31.
[5] Baldus' 230-variable model divided cases into eight different ranges, according to the estimated aggravation level of the offense. Baldus argued in his testimony to the District Court that the effects of racial bias were most striking in the midrange cases. "[W]hen the cases become tremendously aggravated so that everybody would agree that if we're going to have a death sentence, these are the cases that should get it, the race effects go away. It's only in the mid-range of cases where the decisionmakers have a real choice as to what to do. If there's room for the exercise of discretion, then the [racial] factors begin to play a role." App. 36. Under this model, Baldus found that 14.4% of the black-victim midrange cases received the death penalty, and 34.4% of the white-victim cases received the death penalty. See Exhibit DB 90, reprinted in Supplemental Exhibits 54. According to Baldus, the facts of McCleskey's case placed it within the midrange. App. 45-46.
[6] Baldus, among other experts, testified at the evidentiary hearing. The District Court "was impressed with the learning of all of the experts." 580 F. Supp., at 353 (emphasis omitted). Nevertheless, the District Court noted that in many respects the data were incomplete. In its view, the questionnaires used to obtain the data failed to capture the full degree of the aggravating or mitigating circumstances. Id., at 356. The court criticized the researcher's decisions regarding unknown variables. Id., at 357-358. The researchers could not discover whether penalty trials were held in many of the cases, thus undercutting the value of the study's statistics as to prosecutorial decisions. Id., at 359. In certain cases, the study lacked information on the race of the victim in cases involving multiple victims, on whether or not the prosecutor offered a plea bargain, and on credibility problems with witnesses. Id., at 360. The court concluded that McCleskey had failed to establish by a preponderance of the evidence that the data were trustworthy. "It is a major premise of a statistical case that the data base numerically mirrors reality. If it does not in substantial degree mirror reality, any inferences empirically arrived at are untrustworthy." Ibid.
The District Court noted other problems with Baldus' methodology. First, the researchers assumed that all of the information available from the questionnaires was available to the juries and prosecutors when the case was tried. The court found this assumption "questionable." Id., at 361. Second, the court noted the instability of the various models. Even with the 230-variable model, consideration of 20 further variables caused a significant drop in the statistical significance of race. In the court's view, this undermined the persuasiveness of the model that showed the greatest racial disparity, the 39-variable model. Id., at 362. Third, the court found that the high correlation between race and many of the nonracial variables diminished the weight to which the study was entitled. Id., at 363-364.
Finally, the District Court noted the inability of any of the models to predict the outcome of actual cases. As the court explained, statisticians use a measure called an "r[2]" to measure what portion of the variance in the dependent variable (death sentencing rate, in this case) is accounted for by the independent variables of the model. A perfectly predictive model would have an r[2] value of 1.0. A model with no predictive power would have an r[2] value of 0. The r[2] value of Baldus' most complex model, the 230-variable model, was between .46 and .48. Thus, as the court explained, "the 230-variable model does not predict the outcome in half of the cases." Id., at 361.
[7] Although the District Court rejected the findings of the Baldus study as flawed, the Court of Appeals assumed that the study is valid and reached the constitutional issues. Accordingly, those issues are before us. As did the Court of Appeals, we assume the study is valid statistically without reviewing the factual findings of the District Court. Our assumption that the Baldus study is statistically valid does not include the assumption that the study shows that racial considerations actually enter into any sentencing decisions in Georgia. Even a sophisticated multiple-regression analysis such as the Baldus study can only demonstrate a risk that the factor of race entered into some capital sentencing decisions and a necessarily lesser risk that race entered into any particular sentencing decision.
[8] Although McCleskey has standing to claim that he suffers discrimination because of his own race, the State argues that he has no standing to contend that he was discriminated against on the basis of his victim's race. While it is true that we are reluctant to recognize "standing to assert the rights of third persons," Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252, 263 (1977), this does not appear to be the nature of McCleskey's claim. He does not seek to assert some right of his victim, or the rights of black murder victims in general. Rather, McCleskey argues that application of the State's statute has created a classification that is "an irrational exercise of governmental power," Brief for Petitioner 41, because it is not "necessary to the accomplishment of some permissible state objective." Loving v. Virginia, 388 U. S. 1, 11 (1967). See McGowan v. Maryland, 366 U. S. 420, 425 (1961) (statutory classification cannot be "wholly irrelevant to the achievement of the State's objective"). It would violate the Equal Protection Clause for a State to base enforcement of its criminal laws on "an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U. S. 448, 456 (1962). See Cleveland Bd. of Ed. v. Lafleur, 414 U. S. 632, 652-653 (1974) (POWELL, J., concurring). Because McCleskey raises such a claim, he has standing.
[9] See, e. g., Shaw v. Martin, 733 F. 2d 304, 311-314 (CA4), cert. denied, 469 U. S. 873 (1984); Adams v. Wainwright, 709 F. 2d 1443 (CA11 1983) (per curiam), cert. denied, 464 U. S. 1063 (1984); Smith v. Balkcom, 660 F. 2d 573, 584-585, modified, 671 F. 2d 858, 859-860 (CA5 Unit B 1981) (per curiam), cert. denied, 459 U. S. 882 (1982); Spinkellink v. Wainwright, 578 F. 2d 582, 612-616 (CA5 1978), cert. denied, 440 U. S. 976 (1979).
[10] See Arlington Heights v. Metropolitan Housing Dev. Corp., supra, at 265; Washington v. Davis, 426 U. S. 229, 240 (1976).
[11] McCleskey's expert testified:
"Models that are developed talk about the effect on the average. They do not depict the experience of a single individual. What they say, for example, [is] that on the average, the race of the victim, if it is white, increases on the average the probability . . . (that) the death sentence would be given.
"Whether in a given case that is the answer, it cannot be determined from statistics." 580 F. Supp., at 372.
[12] Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Yick Wo v. Hopkins, 118 U. S. 356 (1886), are examples of those rare cases in which a statistical pattern of discriminatory impact demonstrated a constitutional violation. In Gomillion, a state legislature violated the Fifteenth Amendment by altering the boundaries of a particular city "from a square to an uncouth twenty-eight-sided figure." 364 U. S., at 340. The alterations excluded 395 of 400 black voters without excluding a single white voter. In Yick Wo, an ordinance prohibited operation of 310 laundries that were housed in wooden buildings, but allowed such laundries to resume operations if the operator secured a permit from the government. When laundry operators applied for permits to resume operation, all but one of the white applicants received permits, but none of the over 200 Chinese applicants were successful. In those cases, the Court found the statistical disparities "to warrant and require," Yick Wo v. Hopkins, supra, at 373, a "conclusion [that was] irresistible, tantamount for all practical purposes to a mathematical demonstration," Gomillion v. Lightfoot, supra, at 341, that the State acted with a discriminatory purpose.
[13] See, e. g., Castaneda v. Partida, 430 U. S. 482, 495 (1977) (2-to-1 disparity between Mexican-Americans in county population and those summoned for grand jury duty); Turner v. Fouche, 396 U. S. 346, 359 (1970) (1.6-to-1 disparity between blacks in county population and those on grand jury lists); Whitus v. Georgia, 385 U. S. 545, 552 (1967) (3-to-1 disparity between eligible blacks in county and blacks on grand jury venire).
[14] In venire-selection cases, the factors that may be considered are limited, usually by state statute. See Castaneda v. Partida, supra, at 485 ("A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be `of sound mind and good moral character,' be literate, have no prior felony conviction, and be under no pending indictment `or other legal accusation for theft or of any felony' "); Turner v. Fouche, supra, at 354 (jury commissioners may exclude any not "upright" and "intelligent" from grand jury service); Whitus v. Georgia, supra, at 548 (same). These considerations are uniform for all potential jurors, and although some factors may be said to be subjective, they are limited and, to a great degree, objectively verifiable. While employment decisions may involve a number of relevant variables, these variables are to a great extent uniform for all employees because they must all have a reasonable relationship to the employee's qualifications to perform the particular job at issue. Identifiable qualifications for a single job provide a common standard by which to assess each employee. In contrast, a capital sentencing jury may consider any factor relevant to the defendant's background, character, and the offense. See Eddings v. Oklahoma, 455 U. S. 104, 112 (1982). There is no common standard by which to evaluate all defendants who have or have not received the death penalty.
[15] We refer here not to the number of entities involved in any particular decision, but to the number of entities whose decisions necessarily are reflected in a statistical display such as the Baldus study. The decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer. Therefore, an unexplained statistical discrepancy can be said to indicate a consistent policy of the decisionmaker. The Baldus study seeks to deduce a state "policy" by studying the combined effects of the decisions of hundreds of juries that are unique in their composition. It is incomparably more difficult to deduce a consistent policy by studying the decisions of these many unique entities. It is also questionable whether any consistent policy can be derived by studying the decisions of prosecutors. The District Attorney is elected by the voters in a particular county. See Ga. Const., Art. 6, § 8, ¶ 1. Since decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations, coordination among district attorney offices across a State would be relatively meaningless. Thus, any inference from statewide statistics to a prosecutorial "policy" is of doubtful relevance. Moreover, the statistics in Fulton County alone represent the disposition of far fewer cases than the statewide statistics. Even assuming the statistical validity of the Baldus study as a whole, the weight to be given the results gleaned from this small sample is limited.
[16] See Wayte v. United States, 470 U. S. 598, 607 (1985); United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982); Bordenkircher v. Hayes, 434 U. S. 357, 365 (1978). See also ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982).
[17] Requiring a prosecutor to rebut a study that analyzes the past conduct of scores of prosecutors is quite different from requiring a prosecutor to rebut a contemporaneous challenge to his own acts. See Batson v. Kentucky, 476 U. S. 79 (1986).
[18] Although Imbler was decided in the context of damages actions under 42 U. S. C. § 1983 brought against prosecutors, the considerations that led the Court to hold that a prosecutor should not be required to explain his decisions apply in this case as well: "[I]f the prosecutor could be made to answer in court each time . . . a person charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." 424 U. S., at 425. Our refusal to require that the prosecutor provide an explanation for his decisions in this case is completely consistent with this Court's longstanding precedents that hold that a prosecutor need not explain his decisions unless the criminal defendant presents a prima facie case of unconstitutional conduct with respect to his case. See, e. g., Batson v. Kentucky, supra; Wayte v. United States, supra.
[19] In his dissent, JUSTICE BLACKMUN misreads this statement. See post, at 348-349. We do not suggest that McCleskey's conviction and sentencing by a jury bears on the prosecutor's motivation. Rather, the fact that the United States Constitution and the laws of Georgia authorized the prosecutor to seek the death penalty under the circumstances of this case is a relevant factor to be weighed in determining whether the Baldus study demonstrates a constitutionally significant risk that this decision was motivated by racial considerations.
[20] McCleskey relies on "historical evidence" to support his claim of purposeful discrimination by the State. This evidence focuses on Georgia laws in force during and just after the Civil War. Of course, the "historical background of the decision is one evidentiary source" for proof of intentional discrimination. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S., at 267. But unless historical evidence is reasonably contemporaneous with the challenged decision, it has little probative value. Cf. Hunter v. Underwood, 471 U. S. 222, 228-233 (1985) (relying on legislative history to demonstrate discriminatory motivation behind state statute). Although the history of racial discrimination in this country is undeniable, we cannot accept official actions taken long ago as evidence of current intent.
[21] JUSTICE BLACKMUN suggests that our "reliance on legitimate interests underlying the Georgia Legislature's enactment of its capital punishment statute is . . . inappropriate [because] it has no relevance in a case dealing with a challenge to the Georgia capital sentencing system as applied in McCleskey's case." Post, at 349 (emphasis in original). As the dissent suggests, this evidence is not particularly probative when assessing the application of Georgia's capital punishment system through the actions of prosecutors and juries, as we did in Part II-A, supra. But that is not the challenge that we are addressing here. As indicated above, the question we are addressing is whether the legislature maintains its capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. McCleskey has introduced no evidence to support this claim. It is entirely appropriate to rely on the legislature's legitimate reasons for enacting and maintaining a capital punishment statute to address a challenge to the legislature's intent.
[22] The Eighth Amendment applies to the States through the Due Process Clause of the Fourteenth Amendment. Robinson v. California, 370 U. S. 660, 667 (1962).
[23] Thirty-seven States now have capital punishment statutes that were enacted since our decision in Furman. Thirty-three of these States have imposed death sentences under the new statutes. NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 1 (Oct. 1, 1986). A federal statute, amended in relevant part in 1974, authorizes the death penalty for aircraft piracy in which a death occurs. 49 U. S. C. App. § 1472(i)(1)(b).
[24] We have noted that the Georgia statute generally follows the standards of the ALI Model Penal Code § 201.6 (Proposed Official Draft No. 13, 1961). Gregg v. Georgia, 428 U. S., at 194, n. 44.
[25] Although the Court has recognized that jury sentencing in a capital case "can perform an important societal function," Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, POWELL, and STEVENS, JJ.) (citing Witherspoon v. Illinois, 391 U. S. 510, 519, n. 15 (1968)), it "has never suggested that jury sentencing [in a capital case] is constitutionally required." 428 U. S., at 252. Under the Florida capital punishment system at issue in Proffitt, the jury's verdict is only advisory. The trial judge determines the final sentence. Unlike in Georgia, a Florida trial judge may impose the death penalty even when the jury recommends otherwise. In Proffitt, we found that the Florida capital sentencing procedures adequately channeled the trial judge's discretion so that the Florida system, like the Georgia system, on its face "satisfie[d] the constitutional deficiencies identified in Furman." Id., at 253.
[26] We have not yet decided whether the Constitution permits a mandatory death penalty in certain narrowly defined circumstances, such as when an inmate serving a life sentence without possibility of parole commits murder. See Shuman v. Wolff, 791 F. 2d 788 (CA9), cert. granted sub nom. Sumner v. Shuman, 479 U. S. 948 (1986).
[27] This section is substantially identical to the current Georgia Code Ann. § 17-10-30(b)(7) (1982), which is reprinted in n. 3, supra.
[28] The Constitution is not offended by inconsistency in results based on the objective circumstances of the crime. Numerous legitimate factors may influence the outcome of a trial and a defendant's ultimate sentence, even though they may be irrelevant to his actual guilt. If sufficient evidence to link a suspect to a crime cannot be found, he will not be charged. The capability of the responsible law enforcement agency can vary widely. Also, the strength of the available evidence remains a variable throughout the criminal justice process and may influence a prosecutor's decision to offer a plea bargain or to go to trial. Witness availability, credibility, and memory also influence the results of prosecutions. Finally, sentencing in state courts is generally discretionary, so a defendant's ultimate sentence necessarily will vary according to the judgment of the sentencing authority. The foregoing factors necessarily exist in varying degrees throughout our criminal justice system.
[29] According to Professor Baldus:
"McCleskey's case falls in [a] grey area where . . . you would find the greatest likelihood that some inappropriate consideration may have come to bear on the decision.
"In an analysis of this type, obviously one cannot say that we can say to a moral certainty what it was that influenced the decision. We can't do that." App. 45-46.
[30] This Court has repeatedly stated that prosecutorial discretion cannot be exercised on the basis of race. Wayte v. United States, 470 U. S., at 608; United States v. Batchelder, 442 U. S. 114 (1979); Oyler v. Boles, 368 U. S. 448 (1962). Nor can a prosecutor exercise peremptory challenges on the basis of race. Batson v. Kentucky, 476 U. S. 79 (1986); Swain v. Alabama, 380 U. S. 202 (1965). More generally, this Court has condemned state efforts to exclude blacks from grand and petit juries. Vasquez v. Hillery, 474 U. S. 254 (1986); Alexander v. Louisiana, 405 U. S. 625, 628-629 (1972); Whitus v. Georgia, 385 U. S., at 549-550; Norris v. Alabama, 294 U. S. 587, 589 (1935); Neal v. Delaware, 103 U. S. 370, 394 (1881); Strauder v. West Virginia, 100 U. S. 303, 308 (1880); Ex parte Virginia, 100 U. S. 339 (1880).
Other protections apply to the trial and jury deliberation process. Widespread bias in the community can made a change of venue constitutionally required. Irvin v. Dowd, 366 U. S. 717 (1961). The Constitution prohibits racially biased prosecutorial arguments. Donnelly v. DeChristoforo, 416 U. S. 637, 643 (1974). If the circumstances of a particular case indicate a significant likelihood that racial bias may influence a jury, the Constitution requires questioning as to such bias. Ristaino v. Ross, 424 U. S. 589, 596 (1976). Finally, in a capital sentencing hearing, a defendant convicted of an interracial murder is entitled to such questioning without regard to the circumstances of the particular case. Turner v. Murray, 476 U. S. 28 (1986).
[31] In advocating the adoption of the Constitution, Alexander Hamilton stated:
"The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them, it consists in this: the former regard it as a valuable safeguard to liberty, the latter represent it as the very palladium of free government." The Federalist No. 83, p. 519 (J. Gideon ed. 1818).
[32] In Witherspoon, JUSTICE BRENNAN joined the opinion of the Court written by Justice Stewart. The Court invalidated a statute that permitted a prosecutor to eliminate prospective jurors by challenging all who expressed qualms about the death penalty. The Court expressly recognized that the purpose of the "broad discretion" given to a sentencing jury is "to decide whether or not death is `the proper penalty' in a given case," noting that "a juror's general views about capital punishment play an inevitable role in any such decision." 391 U. S., at 519 (emphasis omitted). Thus, a sentencing jury must be composed of persons capable of expressing the "conscience of the community on the ultimate question of life or death." Ibid. The Court referred specifically to the plurality opinion of Chief Justice Warren in Trop v. Dulles, 356 U. S. 86 (1958), to the effect that it is the jury that must "maintain a link between contemporary community values and the penal system . . . ." 391 U. S., at 519, n. 15.
JUSTICE BRENNAN's condemnation of the results of the Georgia capital punishment system must be viewed against this background. As to community values and the constitutionality of capital punishment in general, we have previously noted, n. 23, supra, that the elected representatives of the people in 37 States and the Congress have enacted capital punishment statutes, most of which have been enacted or amended to conform generally to the Gregg standards, and that 33 States have imposed death sentences thereunder. In the individual case, a jury sentence reflects the conscience of the community as applied to the circumstances of a particular offender and offense. We reject JUSTICE BRENNAN's contention that this important standard for assessing the constitutionality of a death penalty should be abandoned.
[33] In the guilt phase of a trial, the Double Jeopardy Clause bars reprosecution after an acquittal, even if the acquittal is " `based upon an egregiously erroneous foundation.' " United States v. DiFrancesco, 449 U. S. 117, 129 (1980) (quoting Fong Foo v. United States, 369 U. S. 141, 143 (1962)). See Powell, Jury Trial of Crimes, 23 Wash. & Lee L. Rev. 1, 7-8 (1966) (Despite the apparent injustice of such an acquittal, "[t]he founding fathers, in light of history, decided that the balance here should be struck in favor of the individual").
In the penalty hearing, Georgia law provides that "unless the jury . . . recommends the death sentence in its verdict, the court shall not sentence the defendant to death." Georgia Code Ann. § 17-10-31 (1982). In Bullington v. Missouri, 451 U. S. 430 (1981), this Court held that the Double Jeopardy Clause of the Constitution prohibits a State from asking for a sentence of death at a second trial when the jury at the first trial recommended a lesser sentence.
[34] In this case, for example, McCleskey declined to enter a guilty plea. According to his trial attorney: "[T]he Prosecutor was indicating that we might be able to work out a life sentence if he were willing to enter a plea. But we never reached any concrete stage on that because Mr. McCleskey's attitude was that he didn't want to enter a plea. So it never got any further than just talking about it." Tr. in No. 4909, p. 56 (Jan. 30, 1981).
[35] Congress has acknowledged the existence of such discrepancies in criminal sentences, and in 1984 created the United States Sentencing Commission to develop sentencing guidelines. The objective of the guidelines "is to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct, while maintaining sufficient flexibility to permit individualized sentencing when warranted by mitigating or aggravating factors not taken into account in the guidelines." 52 Fed. Reg. 3920 (1987) (emphasis added). No one contends that all sentencing disparities can be eliminated. The guidelines, like the safeguards in the Gregg-type statute, further an essential need of the Anglo-American criminal justice system — to balance the desirability of a high degree of uniformity against the necessity for the exercise of discretion.
[36] The Baldus study in fact confirms that the Georgia system results in a reasonable level of proportionality among the class of murderers eligible for the death penalty. As Professor Baldus confirmed, the system sorts out cases where the sentence of death is highly likely and highly unlikely, leaving a midrange of cases where the imposition of the death penalty in any particular case is less predictable. App. 35-36. See n. 5, supra.
[37] JUSTICE BRENNAN's eloquent dissent of course reflects his often repeated opposition to the death sentence. His views, that also are shared by JUSTICE MARSHALL, are principled and entitled to respect. Nevertheless, since Gregg was decided in 1976, seven Members of this Court consistently have upheld sentences of death under Gregg-type statutes providing for meticulous review of each sentence in both state and federal courts. The ultimate thrust of JUSTICE BRENNAN's dissent is that Gregg and its progeny should be overruled. He does not, however, expressly call for the overruling of any prior decision. Rather, relying on the Baldus study, JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, questions the very heart of our criminal justice system: the traditional discretion that prosecutors and juries necessarily must have.
We have held that discretion in a capital punishment system is necessary to satisfy the Constitution. Woodson v. North Carolina, 428 U. S. 280 (1976). See supra, at 303-306. Yet, the dissent now claims that the "discretion afforded prosecutors and jurors in the Georgia capital sentencing system" violates the Constitution by creating "opportunities for racial considerations to influence criminal proceedings." Post, at 333. The dissent contends that in Georgia "[n]o guidelines govern prosecutorial decisions. . . and [that] Georgia provides juries with no list of aggravating and mitigating factors, nor any standard for balancing them against one another." Ibid. Prosecutorial decisions necessarily involve both judgmental and factual decisions that vary from case to case. See ABA Standards for Criminal Justice 3-3.8, 3-3.9 (2d ed. 1982). Thus, it is difficult to imagine guidelines that would produce the predictability sought by the dissent without sacrificing the discretion essential to a humane and fair system of criminal justice. Indeed, the dissent suggests no such guidelines for prosecutorial discretion.
The reference to the failure to provide juries with the list of aggravating and mitigating factors is curious. The aggravating circumstances are set forth in detail in the Georgia statute. See n. 3, supra. The jury is not provided with a list of aggravating circumstances because not all of them are relevant to any particular crime. Instead, the prosecutor must choose the relevant circumstances and the State must prove to the jury that at least one exists beyond a reasonable doubt before the jury can even consider imposing the death sentence. It would be improper and often prejudicial to allow jurors to speculate as to aggravating circumstances wholly without support in the evidence.
The dissent's argument that a list of mitigating factors is required is particularly anomalous. We have held that the Constitution requires that juries be allowed to consider "any relevant mitigating factor," even if it is not included in a statutory list. Eddings v. Oklahoma, 455 U. S., at 112. See Lockett v. Ohio, 438 U. S. 586 (1978). The dissent does not attempt to harmonize its criticism with this constitutional principle. The dissent also does not suggest any standard, much less a workable one, for balancing aggravating and mitigating factors. If capital defendants are to be treated as "uniquely individual human beings," Woodson v. North Carolina, supra, at 304, then discretion to evaluate and weigh the circumstances relevant to the particular defendant and the crime he committed is essential.
The dissent repeatedly emphasizes the need for "a uniquely high degree of rationality in imposing the death penalty." Post, at 335. Again, no suggestion is made as to how greater "rationality" could be achieved under any type of statute that authorizes capital punishment. The Gregg-type statute imposes unprecedented safeguards in the special context of capital punishment. These include: (i) a bifurcated sentencing proceeding; (ii) the threshold requirement of one or more aggravating circumstances; and (iii) mandatory State Supreme Court review. All of these are administered pursuant to this Court's decisions interpreting the limits of the Eighth Amendment on the imposition of the death penalty, and all are subject to ultimate review by this Court. These ensure a degree of care in the imposition of the sentence of death that can be described only as unique. Given these safeguards already inherent in the imposition and review of capital sentences, the dissent's call for greater rationality is no less than a claim that a capital punishment system cannot be administered in accord with the Constitution. As we reiterate, infra, the requirement of heightened rationality in the imposition of capital punishment does not "plac[e] totally unrealistic conditions on its use." Gregg v. Georgia, 428 U. S., at 199, n. 50.
[38] Studies already exist that allegedly demonstrate a racial disparity in the length of prison sentences. See, e. g., Spohn, Gruhl, & Welch, The Effect of Race on Sentencing: A Reexamination of an Unsettled Question, 16 Law & Soc. Rev. 71 (1981-1982); Unnever, Frazier, & Henretta, Race Differences in Criminal Sentencing, 21 Sociological Q. 197 (1980).
[39] In Regents of the University of California v. Bakke, 438 U. S. 265, 295 (1978) (opinion of POWELL, J.), we recognized that the national "majority" "is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals." See id., at 292 (citing Strauder v. West Virginia, 100 U. S., at 308 (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U. S. 356 (1886) (Chinese); Traux v. Raich, 239 U. S. 33, 36, 41-42 (1915) (Austrian resident aliens); Korematsu v. United States, 323 U. S. 214, 216 (1944) (Japanese); Hernandez v. Texas, 347 U. S. 475 (1954) (Mexican-Americans)). See also Uniform Guidelines on Employee Selection Procedures (1978), 29 CFR § 1607.4(B) (1986) (employer must keep records as to the "following races and ethnic groups: Blacks, American Indians (including Alaskan Natives), Asians (including Pacific Islanders), Hispanics (including persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish origin or culture regardless of race), and whites (Caucasians) other than Hispanics"); U. S. Bureau of the Census, 1980 Census of the Population, Vol. 1, ch. B (PC80-1-B), reprinted in 1986 Statistical Abstract of the United States 29 (dividing United States population by "race and Spanish origin" into the following groups: White, Black, American Indian, Chinese, Filipino, Japanese, Korean, Vietnamese, Spanish origin, and all other races); U. S. Bureau of the Census, 1980 Census of the Population, Supplementary Report, series PC80-S1-10, reprinted in 1986 Statistical Abstract of the United States 34 (listing 44 ancestry groups and noting that many individuals reported themselves to belong to multiple ancestry groups).
We also have recognized that the ethnic composition of the Nation is ever shifting. Crawford v. Board of Ed. of Los Angeles, 458 U. S. 527 (1982), illustrates demographic facts that we increasingly find in our country, namely, that populations change in composition, and may do so in relatively short timespans. We noted: "In 1968 when the case went to trial, the [Los Angeles] District was 53.6% white, 22.6% black, 20% Hispanic, and 3.8% Asian and other. By October 1980, the demographic composition had altered radically: 23.7% white, 23.3% black, 45.3% Hispanic, and 7.7% Asian and other." Id., at 530, n. 1. Increasingly whites are becoming a minority in many of the larger American cities. There appears to be no reason why a white defendant in such a city could not make a claim similar to McCleskey's if racial disparities in sentencing arguably are shown by a statistical study.
Finally, in our heterogeneous society the lower courts have found the boundaries of race and ethnicity increasingly difficult to determine. See Shaare Tefila Congregation v. Cobb, 785 F. 2d 523 (CA4), cert. granted, 479 U. S. 812 (1986), and Al-Khazraji v. Saint Francis College, 784 F. 2d 505 (CA3), cert. granted, 479 U. S. 812 (1986) (argued Feb. 25, 1987) (presenting the questions whether Jews and Arabs, respectively, are "races" covered by 42 U. S. C. §§ 1981 and 1982).
[40] See Chamblin, The Effect of Sex on the Imposition of the Death Penalty (speech given at a symposium of the American Psychological Association, entitled "Extra-legal Attributes Affecting Death Penalty Sentencing," New York City, Sept., 1979); Steffensmeier, Effects of Judge's and Defendant's Sex on the Sentencing of Offenders, 14 Psychology, Journal of Human Behavior, 3 (Aug. 1977).
[41] See Johnson, Black Innocence and the White Jury, 83 Mich. L. Rev. 1611, 1625-1640, and n. 115 (1985) (citing Cohen & Peterson, Bias in the Courtroom: Race and Sex Effects of Attorneys on Juror Verdicts, 9 Social Behavior & Personality 81 (1981)); Hodgson & Pryor, Sex Discrimination in the Courtroom: Attorney's Gender and Credibility, 55 Psychological Rep. 483 (1984).
[42] See Steffensmeier, supra, at 7.
[43] See Kerr, Bull, MacCoun, & Rathborn, Effects of victim attractiveness, care and disfigurement on the judgements of American and British mock jurors, 24 Brit. J. Social Psych. 47 (1985); Johnson, supra, at 1638, n. 128 (citing Shoemaker, South, & Lowe, Facial Stereotypes of Deviants and Judgments of Guilt or Innocence, 51 Social Forces 427 (1973)).
[44] Some studies indicate that physically attractive defendants receive greater leniency in sentencing than unattractive defendants, and that offenders whose victims are physically attractive receive harsher sentences than defendants with less attractive victims. Smith & Hed, Effects of Offenders' Age and Attractiveness on Sentencing by Mock Juries, 44 Psychological Rep. 691 (1979); Kerr, Beautiful and Blameless: Effects of Victim Attractiveness and Responsibility on Mock Jurors' Verdicts, 4 Personality and Social Psych. Bull. 479 (1978). But see Baumeister & Darley, Reducing the Biasing Effect of Perpetrator Attractiveness in Jury Simulation, 8 Personality and Social Psych. Bull. 286 (1982); Schwibbe & Schwibbe, Judgment and Treatment of People of Varied Attractiveness, 48 Psychological Rep. 11 (1981); Weiten, The Attraction-Leniency Effect in Jury Research: An Examination of External Validity, 10 J. Applied Social Psych. 340 (1980).
[45] JUSTICE STEVENS, who would not overrule Gregg, suggests in his dissent that the infirmities alleged by McCleskey could be remedied by narrowing the class of death-eligible defendants to categories identified by the Baldus study where "prosecutors consistently seek, and juries consistently impose, the death penalty without regard to the race of the victim or the race of the offender." Post, at 367. This proposed solution is unconvincing. First, "consistently" is a relative term, and narrowing the category of death-eligible defendants would simply shift the borderline between those defendants who received the death penalty and those who did not. A borderline area would continue to exist and vary in its boundaries. Moreover, because the discrepancy between borderline cases would be difficult to explain, the system would likely remain open to challenge on the basis that the lack of explanation rendered the sentencing decisions unconstitutionally arbitrary.
Second, even assuming that a category with theoretically consistent results could be identified, it is difficult to imagine how JUSTICE STEVENS' proposal would or could operate on a case-by-case basis. Whenever a victim is white and the defendant is a member of a different race, what steps would a prosecutor be required to take — in addition to weighing the customary prosecutorial considerations — before concluding in the particular case that he lawfully could prosecute? In the absence of a current, Baldus-type study focused particularly on the community in which the crime was committed, where would he find a standard? Would the prosecutor have to review the prior decisions of community prosecutors and determine the types of cases in which juries in his jurisdiction "consistently" had imposed the death penalty when the victim was white and the defendant was of a different race? And must he rely solely on statistics? Even if such a study were feasible, would it be unlawful for the prosecutor, in making his final decision in a particular case, to consider the evidence of guilt and the presence of aggravating and mitigating factors? However conscientiously a prosecutor might attempt to identify death-eligible defendants under the dissent's suggestion, it would be a wholly speculative task at best, likely to result in less rather than more fairness and consistency in the imposition of the death penalty.
[1] Once we can identify a pattern of arbitrary sentencing outcomes, we can say that a defendant runs a risk of being sentenced arbitrarily. It is thus immaterial whether the operation of an impermissible influence such as race is intentional. While the Equal Protection Clause forbids racial discrimination, and intent may be critical in a successful claim under that provision, the Eighth Amendment has its own distinct focus: whether punishment comports with social standards of rationality and decency. It may be, as in this case, that on occasion an influence that makes punishment arbitrary is also proscribed under another constitutional provision. That does not mean, however, that the standard for determining an Eighth Amendment violation is superseded by the standard for determining a violation under this other provision. Thus, the fact that McCleskey presents a viable equal protection claim does not require that he demonstrate intentional racial discrimination to establish his Eighth Amendment claim.
[2] The first two and the last of the study's eight case categories represent those cases in which the jury typically sees little leeway in deciding on a sentence. Cases in the first two categories are those that feature aggravating factors so minimal that juries imposed no death sentences in the 88 cases with these factors during the period of the study. Supp. Exh. 54. Cases in the eighth category feature aggravating factors so extreme that the jury imposed the death penalty in 88% of the 58 cases with these factors in the same period. Ibid.
[3] In the five categories characterized as intermediate, the rate at which the death penalty was imposed ranged from 8% to 41%. The overall rate for the 326 cases in these categories was 20%. Ibid.
[4] The considerable racial disparity in sentencing rates among these cases is consistent with the "liberation hypothesis" of H. Kalven and H. Zeisel in their landmark work, The American Jury (1966). These authors found that, in close cases in which jurors were most often in disagreement, "[t]he closeness of the evidence makes it possible for the jury to respond to sentiment by liberating it from the discipline of the evidence." Id., at 165. While "the jury does not often consciously and explicitly yield to sentiment in the teeth of the law . . . it yields to sentiment in the apparent process of resolving doubts as to evidence. The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." Ibid. Thus, it is those cases in which sentencing evidence seems to dictate neither life imprisonment nor the death penalty that impermissible factors such as race play the most prominent role.
[5] The fact that a victim was white accounts for a nine percentage point difference in the rate at which the death penalty is imposed, which is the same difference attributable to a prior murder conviction or the fact that the defendant was the "prime mover" in planning a murder. Supp. Exh. 50.
[6] NAACP Legal Defense and Educational Fund, Death Row, U. S. A. 4 (Aug. 1, 1986).
[7] See generally Fisher, Multiple Regression in Legal Proceedings, 80 Colum. L. Rev. 701 (1980).
[8] Death could also be inflicted upon a slave who "grievously wound[ed], maim[ed], or bruis[ed] any white person," who was convicted for the third time of striking a white person, or who attempted to run away out of the province. A. Higginbotham, In the Matter of Color: Race in the American Legal Process 256 (1978). On the other hand, a person who willfully murdered a slave was not punished until the second offense, and then was responsible simply for restitution to the slave owner. Furthermore, conviction for willful murder of a slave was subject to the difficult requirement of the oath of two white witnesses. Id., at 253-254, and n. 190.
[9] The Court contends that it is inappropriate to take into account the wide latitude afforded actors in the Georgia capital sentencing system, since "[w]e have held that discretion in a capital punishment system is necessary to satisfy the Constitution," ante, at 314, n. 37, and "no suggestion is made as to how greater `rationality' could be achieved under any type of statute that authorizes capital punishment." Ibid. The first point is true, but of course the Court struck down the death penalty in Furman v. Georgia, 408 U. S. 238 (1972), because the sentencing systems before it provided too much discretion. Since Gregg v. Georgia, 428 U. S. 153 (1976), the Court's death penalty jurisprudence has rested on the premise that it is possible to establish a system of guided discretion that will both permit individualized moral evaluation and prevent impermissible considerations from being taken into account. As JUSTICE BLACKMUN has persuasively demonstrated, post, at 357-358, Georgia provides no systematic guidelines for prosecutors to utilize in determining for which defendants the death penalty should be sought. Furthermore, whether a State has chosen an effective combination of guidance and discretion in its capital sentencing system as a whole cannot be established in the abstract, as the Court insists on doing, but must be determined empirically, as the Baldus study has done.
With respect to the Court's criticism that McCleskey has not shown how Georgia could do a better job, ante, at 315, n. 37, once it is established that the particular system of guided discretion chosen by a State is not achieving its intended purpose, the burden is on the State, not the defendant, to devise a more rational system if it wishes to continue to impose the death penalty.
[10] As Maitland said of the provision of the Magna Carta regulating the discretionary imposition of fines, "[v]ery likely there was no clause in Magna Carta more grateful to the mass of the people." F. Maitland, Pleas of the Crown For the County of Gloucester xxxiv (1884). In our own country, the point is underscored by Patrick Henry's remarks in support of the adoption of a Bill of Rights:
"Congress, from their general powers, may fully go into business of human legislation. They may legislate, in criminal cases, from treason to the lowest offence — petty larceny. They may define crimes and prescribe punishments. In the definition of crimes, I trust they will be directed by what wise representatives ought to be governed by. But when we come to punishments, no latitude ought to be left, nor dependence put on the virtue of representatives." 3 J. Elliot's Debates on the Constitution 447 (1854).
[1] I agree with JUSTICE STEVENS' position that the proper course is to remand this case to the Court of Appeals for determination of the validity of the statistical evidence presented. Post, at 367. Like JUSTICE STEVENS, however, I am persuaded that the Baldus study is valid and would remand merely in the interest of orderly procedure.
[2] See, e. g., H. R. Joint Comm. Rep. No. 30, 39th Cong., 1st Sess., pt. II, p. 25 (1866) (testimony of George Tucker, Virginia attorney) ("They have not any idea of prosecuting white men for offenses against colored people; they do not appreciate the idea"); id., at 209 (testimony of Dexter H. Clapp) ("Of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, . . . I have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons"); id., at 213 (testimony of J. A. Campbell) (although identities of men suspected of killing two blacks known, no arrest or trial had occurred); id., pt. III, p. 141 (testimony of Brev. Maj. Gen. Wager Swayne) ("I have not known, after six months' residence at the capital of the State, a single instance of a white man being convicted and hung or sent to the penitentiary for crime against a negro, while many cases of crime warranting such punishment have been reported to me"); id., pt. IV, p. 75 (testimony of Maj. Gen. George A. Custer) ("[I]t is of weekly, if not of daily, occurrence that freedmen are murdered. . . . [S]ometimes it is not known who the perpetrators are; but when that is known no action is taken against them. I believe a white man has never been hung for murder in Texas, although it is the law").
In Brown v. Board of Education, 347 U. S. 483 (1954), this Court held that, despite the fact that the legislative history of the Fourteenth Amendment indicated that Congress did not view racial discrimination in public education as a specific target, the Amendment nevertheless prohibited such discrimination. The Court today holds that even though the Fourteenth Amendment was aimed specifically at eradicating discrimination in the enforcement of criminal sanctions, allegations of such discrimination supported by substantial evidence are not constitutionally cognizable. But see Batson v. Kentucky, 476 U. S. 79, 85 (1986) (allegations of racially discriminatory exercise of peremptory challenges by prosecutor subject to review under Fourteenth Amendment because "[e]xclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure").
[3] The Court refers to the prosecutor's role in the capital sentencing process without analyzing the import of the statistical evidence concerning the steps of the process at which the prosecutor determines the future of the case. The Court recognizes that the prosecutor determines whether a case even will proceed to the penalty phase. If the prosecutor does not pursue the death penalty, a mandatory sentence of life imprisonment is imposed. See ante, at 284, n. 2. It lists many of the factors that prosecutors take into account in making their decisions, ante, at 307-308, n. 28, and recognizes that in each case the prosecutor can decline to charge, or to offer a plea bargain, or to seek a death sentence, ante, at 312. It also notes that the Baldus study "found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims," ante, at 287.
The Court relies heavily on its assertion that prosecutorial discretion should not be reviewed, ante, at 296-297, 311-312, but elsewhere concedes that such discretion may not be exercised in a racially discriminatory manner, ante, at 309, n. 30. It nowhere explains why this limitation on prosecutorial discretion does not require the same analysis that we apply in other cases involving equal protection challenges to the exercise of prosecutorial discretion. See, e. g., Batson v. Kentucky, 476 U. S. 79 (1986).
[4] The use of the prima facie case method to structure proof in cases charging racial discrimination is appropriate because it "progressively . . . sharpen[s] the inquiry into the elusive factual question of intentional discrimination." Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 255, n. 8 (1981); see McCleskey v. Kemp, 753 F. 2d 877, 912 (CA11 1985) (Johnson, J., dissenting in part and concurring in part) (where the "prosecutor has considerable discretion and the jury has bounded but irreducible discretion," the discretion could easily mask conscious or unconscious racial discrimination and indirect methods of proof are therefore required as outlined in Washington v. Davis, 426 U. S. 229, 241-242 (1976), and Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266, n. 13 (1977)).
[5] The Court recently explained: "In deciding if the defendant has carried his burden of persuasion, a court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.' Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S., at 266. Circumstantial evidence of invidious intent may include proof of disproportionate impact. Washington v. Davis, 426 U. S., at 242. We have observed that under some circumstances proof of discriminatory impact `may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.' Ibid." Batson v. Kentucky, 476 U. S., at 93.
[6] In Castaneda, we explained that in jury-selection cases where the criminal defendant is attempting to prove that there was discriminatory exclusion of potential jurors we apply the "rule of exclusion" method of proof. 430 U. S., at 494. The underlying rationale is that "[i]f a disparity is sufficiently large, then it is unlikely that it is due solely to chance or accident, and, in the absence of evidence to the contrary, one must conclude that racial or other class-related factors entered into the selection process." Id., at 494, n. 13.
[7] Although the Court states that it assumes the validity of the Baldus study for purposes of its analysis, because of its detailed discussion of the District Court's reasons for rejecting its validity I am compelled to record my disagreement with the District Court's reasoning. As a member of the United States Court of Appeals, I was confronted in 1968 with a challenge to the constitutionality of a State's capital sentencing system based on allegations of racial discrimination supported by statistical evidence. Writing for a panel of the court, I rejected that challenge for reasons similar to those espoused by the Court today. Maxwell v. Bishop, 398 F. 2d 138 (CA8), vacated and remanded, sua sponte, on grounds not raised below, 398 U. S. 262 (1970) (per curiam).
The Court of Appeals found the evidence presented by Maxwell incomplete, not directly relevant to his individual claim, and statistically insufficient. McCleskey's evidence, however, is of such a different level of sophistication and detail that it simply cannot be rejected on those grounds. Unlike the evidence presented by Maxwell, which did not contain data from the jurisdiction in which he was tried and sentenced, McCleskey's evidence includes data from the relevant jurisdiction. Whereas the analyses presented by Maxwell did not take into account a significant number of variables and were based on a universe of 55 cases, the analyses presented by McCleskey's evidence take into account more than 400 variables and are based on data concerning all offenders arrested for homicide in Georgia from 1973 through 1978, a total of 2,484 cases. Moreover, the sophistication of McCleskey's evidence permits consideration of the existence of racial discrimination at various decision points in the process, not merely at the jury decision. It is this experience, in part, that convinces me of the significance of the Baldus study.
[8] See Brief for Dr. Franklin M. Fisher et al. as Amici Curiae 19.
[9] A defendant's chances of receiving a death sentence increase by a factor of 4.3 if the victim is white, but only by 2.3 if the defendant was the prime mover behind the homicide.
[10] A prior record of a conviction for murder, armed robbery, rape, or kidnaping with bodily injury increases the chances of a defendant's receiving a death sentence by a factor of 4.9.
[11] The universe of cases from Fulton County analyzed by Baldus included 629 killings, 581 of which yielded murder indictments. Supp. Exh. 59, 60; Tr. 978-981. The evidence indicated that at each step in the process from indictment to sentence, there is a differential treatment in the disposition of white-victim and black-victim cases, with the white-victim cases having a higher likelihood of being retained in the system and risking a death sentence. Supp. Exh. 60; Tr. 978-981.
[12] In his deposition, Russell Parker, the Assistant District Attorney who prosecuted McCleskey's case, contradicted the statement cited by the Court, ante, at 312, n. 34, concerning plea negotiations during McCleskey's trial. Parker testified that he never discussed a plea with McCleskey. Deposition in No. 84-8176 of Russell Parker, Feb. 16, 1981, p. 15.
[13] As a result of McCleskey's discovery efforts, the record also contains relevant testimonial evidence by two state officials. The Fulton County District Attorney testified that he did not recall any instance in which race was a factor in a death penalty case in his office. Deposition in No. 84-8176 of Lewis R. Slaton, Aug. 4, 1983, p. 78. He later recalled one case that was in the office when he first began, in which the office set aside the death penalty because of the possibility that race had been involved. Id., at 79-80. The Assistant District Attorney who prosecuted McCleskey's case testified that race did not influence his decision to seek the death penalty in the present case. Deposition of Russell Parker, Feb. 16, 1981, p. 17.
These general assertions by state officials that they did not discriminate or that they properly performed their official duties, however, cannot meet the State's burden of rebuttal of the prima facie case. See Alexander v. Louisiana, 405 U. S. 625, 631-632 (1972); Whitus v. Georgia, 385 U. S. 545, 551-552 (1967). Moreover, there are many ways in which racial factors can enter indirectly into prosecutorial decisions. For example, the authors of a study similar to that of Baldus explained: "Since death penalty prosecutions require large allocations of scarce prosecutorial resources, prosecutors must choose a small number of cases to receive this expensive treatment. In making these choices they may favor homicides that are visible and disturbing to the majority of the community, and these will tend to be white-victim homicides." Gross & Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27, 106-107 (1984); see generally Johnson, Race and the Decision to Detain a Suspect, 93 Yale L. J. 214 (1983); Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).
7.2.8.3.4.3. Paul Butler - Let's Get Free, Chapter One
7.2.8.4 Oral Argument Interlude 7.2.8.4 Oral Argument Interlude
Here you will find materials for the mock oral argument exercise we will complete on February 23, 2016. We will be looking at Voisine v. United States, which is scheduled for oral argument before the Supreme Court on February 29, 2016. This packet includes:1. The Case: US v. Voisine (page 1)2. Petitioner's Brief (page 10)3. Respondent's Brief (page 65)4. Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States (page 152)
7.2.8.4.1. Petitioner's Brief
7.2.8.4.2. Respondent's Brief
7.2.8.4.3. Reply Brief for Petitioners
7.2.8.4.4. Guide for Counsel in Cases to be Argued Before the Supreme Court of the United States
7.2.8.4.5. US v. Voisine - Supreme Court Opinion
7.2.8.5 IV. Defenses 7.2.8.5 IV. Defenses
7.2.8.5.1 IV.A. Justification 7.2.8.5.1 IV.A. Justification
7.2.8.5.1.1 IV.A.i. Self-Defense 7.2.8.5.1.1 IV.A.i. Self-Defense
In the next few sections, we will explore situations in which the commission of what might otherwise be a crime does not result in punishment. Broadly speaking, the doctrines in this area of criminal law are grouped into “justification” and “excuse.” In this section, we will discuss the first kind of justification: self-defense. Self-defense justifies a crime—more than excusing it, it affirms that what would otherwise be a criminal act is in fact desirable in a given situation. In cases of legal self-defense, our system treats a person who kills or injures as morally right, even when they kill intentionally. Legalizing assault, killing, or other forceful actions inevitably devolves the state’s usual monopoly on the legitimate use of force, to individual persons capable of abusing it. Thus, legal self-defense raises several concerns. Should self-defense be a last resort? Must the defender respond with minimal force, or is any amount of force legitimate? Must the threat be actual, subjective, or objectively reasonable? Different jurisdictions have created different systems. Compare the questions raised by situations such as ongoing abusive domestic relationships or an encounter with a stranger on the subway. As you read the following cases, consider the criminal system’s difficulty in managing individuals’ legal use of force, and notice how the law attempts to channel and contain that Pandora’s box.
7.2.8.5.1.1.1. Model Penal Code section 3.04
7.2.8.5.1.1.2 People v. Goetz 7.2.8.5.1.1.2 People v. Goetz
The People of the State of New York, Appellant,
v.
Bernhard Goetz, Respondent.
Court of Appeals of the State of New York.
Robert M. Morgenthau, District Attorney (Robert M. Pitler, Mark Dwyer and Gregory L. Waples of counsel), for appellant.
Mark M. Baker, Barry Ivan Slotnick and Michael Shapiro for respondent.
Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur.
[99] Chief Judge WACHTLER.
A Grand Jury has indicted defendant on attempted murder, assault, and other charges for having shot and wounded four youths on a New York City subway train after one or two of the youths approached him and asked for $5. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, have dismissed the attempted murder, assault and weapons possession charges. We now reverse and reinstate all counts of the indictment.
I.
The precise circumstances of the incident giving rise to the charges against defendant are disputed, and ultimately it will be for a trial jury to determine what occurred. We feel it necessary, however, to provide some factual background to [100] properly frame the legal issues before us. Accordingly, we have summarized the facts as they appear from the evidence before the Grand Jury. We stress, however, that we do not purport to reach any conclusions or holding as to exactly what transpired or whether defendant is blameworthy. The credibility of witnesses and the reasonableness of defendant's conduct are to be resolved by the trial jury.
On Saturday afternoon, December 22, 1984, Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen boarded an IRT express subway train in The Bronx and headed south toward lower Manhattan. The four youths rode together in the rear portion of the seventh car of the train. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they said were to be used to break into the coin boxes of video machines.
Defendant Bernhard Goetz boarded this subway train at 14th Street in Manhattan and sat down on a bench towards the rear section of the same car occupied by the four youths. Goetz was carrying an unlicensed .38 caliber pistol loaded with five rounds of ammunition in a waistband holster. The train left the 14th Street station and headed towards Chambers Street.
It appears from the evidence before the Grand Jury that Canty approached Goetz, possibly with Allen beside him, and stated "give me five dollars". Neither Canty nor any of the other youths displayed a weapon. Goetz responded by standing up, pulling out his handgun and firing four shots in rapid succession. The first shot hit Canty in the chest; the second struck Allen in the back; the third went through Ramseur's arm and into his left side; the fourth was fired at Cabey, who apparently was then standing in the corner of the car, but missed, deflecting instead off of a wall of the conductor's cab. After Goetz briefly surveyed the scene around him, he fired another shot at Cabey, who then was sitting on the end bench of the car. The bullet entered the rear of Cabey's side and severed his spinal cord.
All but two of the other passengers fled the car when, or immediately after, the shots were fired. The conductor, who had been in the next car, heard the shots and instructed the motorman to radio for emergency assistance. The conductor then went into the car where the shooting occurred and saw Goetz sitting on a bench, the injured youths lying on the floor or slumped against a seat, and two women who had apparently [101] taken cover, also lying on the floor. Goetz told the conductor that the four youths had tried to rob him.
While the conductor was aiding the youths, Goetz headed towards the front of the car. The train had stopped just before the Chambers Street station and Goetz went between two of the cars, jumped onto the tracks and fled. Police and ambulance crews arrived at the scene shortly thereafter. Ramseur and Canty, initially listed in critical condition, have fully recovered. Cabey remains paralyzed, and has suffered some degree of brain damage.
On December 31, 1984, Goetz surrendered to police in Concord, New Hampshire, identifying himself as the gunman being sought for the subway shootings in New York nine days earlier. Later that day, after receiving Miranda warnings, he made two lengthy statements, both of which were tape recorded with his permission. In the statements, which are substantially similar, Goetz admitted that he had been illegally carrying a handgun in New York City for three years. He stated that he had first purchased a gun in 1981 after he had been injured in a mugging. Goetz also revealed that twice between 1981 and 1984 he had successfully warded off assailants simply by displaying the pistol.
According to Goetz's statement, the first contact he had with the four youths came when Canty, sitting or lying on the bench across from him, asked "how are you," to which he replied "fine". Shortly thereafter, Canty, followed by one of the other youths, walked over to the defendant and stood to his left, while the other two youths remained to his right, in the corner of the subway car. Canty then said "give me five dollars". Goetz stated that he knew from the smile on Canty's face that they wanted to "play with me". Although he was certain that none of the youths had a gun, he had a fear, based on prior experiences, of being "maimed".
Goetz then established "a pattern of fire," deciding specifically to fire from left to right. His stated intention at that point was to "murder [the four youths], to hurt them, to make them suffer as much as possible". When Canty again requested money, Goetz stood up, drew his weapon, and began firing, aiming for the center of the body of each of the four. Goetz recalled that the first two he shot "tried to run through the crowd [but] they had nowhere to run". Goetz then turned to his right to "go after the other two". One of these two "tried to run through the wall of the train, but * * * he had [102] nowhere to go". The other youth (Cabey) "tried pretending that he wasn't with [the others]" by standing still, holding on to one of the subway hand straps, and not looking at Goetz. Goetz nonetheless fired his fourth shot at him. He then ran back to the first two youths to make sure they had been "taken care of". Seeing that they had both been shot, he spun back to check on the latter two. Goetz noticed that the youth who had been standing still was now sitting on a bench and seemed unhurt. As Goetz told the police, "I said `[y]ou seem to be all right, here's another'", and he then fired the shot which severed Cabey's spinal cord. Goetz added that "if I was a little more under self-control * * * I would have put the barrel against his forehead and fired." He also admitted that "if I had had more [bullets], I would have shot them again, and again, and again."
II.
After waiving extradition, Goetz was brought back to New York and arraigned on a felony complaint charging him with attempted murder and criminal possession of a weapon. The matter was presented to a Grand Jury in January 1985, with the prosecutor seeking an indictment for attempted murder, assault, reckless endangerment, and criminal possession of a weapon. Neither the defendant nor any of the wounded youths testified before this Grand Jury. On January 25, 1985, the Grand Jury indicted defendant on one count of criminal possession of a weapon in the third degree (Penal Law § 265.02), for possessing the gun used in the subway shootings, and two counts of criminal possession of a weapon in the fourth degree (Penal Law § 265.01), for possessing two other guns in his apartment building. It dismissed, however, the attempted murder and other charges stemming from the shootings themselves.
Several weeks after the Grand Jury's action, the People, asserting that they had newly available evidence, moved for an order authorizing them to resubmit the dismissed charges to a second Grand Jury (see, CPL 190.75 [3]). Supreme Court, Criminal Term, after conducting an in camera inquiry, granted the motion. Presentation of the case to the second Grand Jury began on March 14, 1985. Two of the four youths, Canty and Ramseur, testified. Among the other witnesses were four passengers from the seventh car of the subway who had seen some portions of the incident. Goetz again chose not to [103] testify, though the tapes of his two statements were played for the grand jurors, as had been done with the first Grand Jury.
On March 27, 1985, the second Grand Jury filed a 10-count indictment, containing four charges of attempted murder (Penal Law §§ 110.00, 125.25 [1]), four charges of assault in the first degree (Penal Law § 120.10 [1]), one charge of reckless endangerment in the first degree (Penal Law § 120.25), and one charge of criminal possession of a weapon in the second degree (Penal Law § 265.03 [possession of loaded firearm with intent to use it unlawfully against another]). Goetz was arraigned on this indictment on March 28, 1985, and it was consolidated with the earlier three-count indictment.[1]
On October 14, 1985, Goetz moved to dismiss the charges contained in the second indictment alleging, among other things, that the evidence before the second Grand Jury was not legally sufficient to establish the offenses charged (see, CPL 210.20 [1] [b]), and that the prosecutor's instructions to that Grand Jury on the defense of justification were erroneous and prejudicial to the defendant so as to render its proceedings defective (see, CPL 210.20 [1] [c]; 210.35 [5]).
On November 25, 1985, while the motion to dismiss was pending before Criminal Term, a column appeared in the New York Daily News containing an interview which the columnist had conducted with Darryl Cabey the previous day in Cabey's hospital room. The columnist claimed that Cabey had told him in this interview that the other three youths had all approached Goetz with the intention of robbing him. The day after the column was published, a New York City police officer informed the prosecutor that he had been one of the first police officers to enter the subway car after the shootings, and that Canty had said to him "we were going to rob [Goetz]". The prosecutor immediately disclosed this information to the court and to defense counsel, adding that this was the first time his office had been told of this alleged statement and that none of the police reports filed on the incident contained any such information. Goetz then orally expanded his motion to [104] dismiss, asserting that resubmission of the charges voted by the second Grand Jury was required under People v Pelchat (62 N.Y.2d 97) because it appeared, from this new information, that Ramseur and Canty had committed perjury.
In an order dated January 21, 1986, Criminal Term granted Goetz's motion to the extent that it dismissed all counts of the second indictment, other than the reckless endangerment charge, with leave to resubmit these charges to a third Grand Jury. The court, after inspection of the Grand Jury minutes, first rejected Goetz's contention that there was not legally sufficient evidence to support the charges. It held, however, that the prosecutor, in a supplemental charge elaborating upon the justification defense, had erroneously introduced an objective element into this defense by instructing the grand jurors to consider whether Goetz's conduct was that of a "reasonable man in [Goetz's] situation". The court, citing prior decisions from both the First and Second Departments (see, e.g., People v Santiago, 110 AD2d 569 [1st Dept]; People v Wagman, 99 AD2d 519 [2d Dept]), concluded that the statutory test for whether the use of deadly force is justified to protect a person should be wholly subjective, focusing entirely on the defendant's state of mind when he used such force. It concluded that dismissal was required for this error because the justification issue was at the heart of the case.[2]
Criminal Term also concluded that dismissal and resubmission of the charges were required under People v Pelchat (supra) because the Daily News column and the statement by the police officer to the prosecution strongly indicated that the testimony of Ramseur and Canty was perjured. Because the additional evidence before the second Grand Jury, as contrasted with that before the first Grand Jury, consisted largely of the testimony of these two youths, the court found that the integrity of the second Grand Jury was "severely undermined" by the apparently perjured testimony.
On appeal by the People, a divided Appellate Division [105] affirmed Criminal Term's dismissal of the charges. The plurality opinion by Justice Kassal, concurred in by Justice Carro, agreed with Criminal Term's reasoning on the justification issue, stating that the grand jurors should have been instructed to consider only the defendant's subjective beliefs as to the need to use deadly force. Justice Kupferman concurred in the result reached by the plurality on the ground that the prosecutor's charge did not adequately apprise the grand jurors of the need to consider Goetz's own background and learning. Neither the plurality nor the concurring opinion discussed Criminal Term's reliance on Pelchat as an alternate ground for dismissal.
Justice Asch, in a dissenting opinion in which Justice Wallach concurred, disagreed with both bases for dismissal relied upon by Criminal Term. On the justification question, he opined that the statute requires consideration of both the defendant's subjective beliefs and whether a reasonable person in defendant's situation would have had such beliefs. Accordingly, he found no error in the prosecutor's introduction of an objective element into the justification defense. On the Pelchat issue, Justice Asch noted the extensive differences between the Grand Jury evidence in that case and the case at bar and concluded that the out-of-court statements attributed to Cabey and Canty did not affect the validity of the indictment. In a separate dissenting opinion, Justice Wallach stressed that the plurality's adoption of a purely subjective test effectively eliminated any reasonableness requirement contained in the statute.
Justice Asch granted the People leave to appeal to this court. We agree with the dissenters that neither the prosecutor's charge to the Grand Jury on justification nor the information which came to light while the motion to dismiss was pending required dismissal of any of the charges in the second indictment.
III.
Penal Law article 35 recognizes the defense of justification, which "permits the use of force under certain circumstances" (see, People v McManus, 67 N.Y.2d 541, 545). One such set of circumstances pertains to the use of force in defense of a person, encompassing both self-defense and defense of a third person (Penal Law § 35.15). Penal Law § 35.15 (1) sets forth the general principles governing all such uses of force: "[a] [106] person may * * * use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person" (emphasis added).[3]
Section 35.15 (2) sets forth further limitations on these general principles with respect to the use of "deadly physical force": "A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless (a) He reasonably believes that such other person is using or about to use deadly physical force * * *[4] or (b) He reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible sodomy or robbery" (emphasis added).
Thus, consistent with most justification provisions, Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met (see, Robinson, Criminal Law Defenses § 121 [a], at 2). As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.[5]
Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 N.Y.2d 36, 38). The prosecutor properly instructed the grand jurors to [107] consider whether the use of deadly physical force was justified to prevent either serious physical injury or a robbery, and, in doing so, to separately analyze the defense with respect to each of the charges. He elaborated upon the prerequisites for the use of deadly physical force essentially by reading or paraphrasing the language in Penal Law § 35.15. The defense does not contend that he committed any error in this portion of the charge.
When the prosecutor had completed his charge, one of the grand jurors asked for clarification of the term "reasonably believes". The prosecutor responded by instructing the grand jurors that they were to consider the circumstances of the incident and determine "whether the defendant's conduct was that of a reasonable man in the defendant's situation". It is this response by the prosecutor — and specifically his use of "a reasonable man" — which is the basis for the dismissal of the charges by the lower courts. As expressed repeatedly in the Appellate Division's plurality opinion, because section 35.15 uses the term "he reasonably believes", the appropriate test, according to that court, is whether a defendant's beliefs and reactions were "reasonable to him". Under that reading of the statute, a jury which believed a defendant's testimony that he felt that his own actions were warranted and were reasonable would have to acquit him, regardless of what anyone else in defendant's situation might have concluded. Such an interpretation defies the ordinary meaning and significance of the term "reasonably" in a statute, and misconstrues the clear intent of the Legislature, in enacting section 35.15, to retain an objective element as part of any provision authorizing the use of deadly physical force.
Penal statutes in New York have long codified the right recognized at common law to use deadly physical force, under appropriate circumstances, in self-defense (see, e.g., 1829 Rev Stat of NY, part IV, ch 1, tit II, § 3; 1881 Penal Code § 205; People v McManus, supra, at p 546). These provisions have never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, but they have uniformly required that the belief comport with an objective notion of reasonableness. The 1829 statute, using language which was followed almost in its entirety until the 1965 recodification of the Penal Law, provided that the use of deadly force was justified in self-defense or in the defense of specified third persons "when there shall be a reasonable ground to apprehend [108] a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished".
In Shorter v People (2 N.Y. 193), we emphasized that deadly force could be justified under the statute even if the actor's beliefs as to the intentions of another turned out to be wrong, but noted there had to be a reasonable basis, viewed objectively, for the beliefs. We explicitly rejected the position that the defendant's own belief that the use of deadly force was necessary sufficed to justify such force regardless of the reasonableness of the beliefs (id., at pp 200-201).
In 1881, New York reexamined the many criminal provisions set forth in the revised statutes and enacted, for the first time, a separate Penal Code (see generally, 1937 Report of NY Law Rev Commn, Communication to Legislature Relating to Homicide, at 525, 529 [hereafter cited as Communication Relating to Homicide]). The provision in the 1881 Penal Code for the use of deadly force in self-defense or to defend a third person was virtually a reenactment of the language in the 1829 statutes,[6] and the "reasonable ground" requirement was maintained.
The 1909 Penal Law replaced the 1881 Penal Code. The language of section 205 of the 1881 code pertaining to the use of deadly force in self-defense or in defense of a third person was reenacted, verbatim, as part of section 1055 of the new Penal Law. Several cases from this court interpreting the 1909 provision demonstrate unmistakably that an objective element of reasonableness was a vital part of any claim of self-defense. In People v Lumsden (201 N.Y. 264, 268), we approved a charge to the jury which instructed it to consider whether the circumstances facing defendant were such "as would lead a reasonable man to believe that [an assailant] is about to kill or to do great bodily injury" (see also, People v Ligouri, 284 N.Y. 309, 316, 317). We emphatically rejected the position that any belief by an actor as to the intention of another to cause severe injury was a sufficient basis for his use of deadly force, and stated specifically that a belief based upon "mere fear or fancy or remote hearsay information or a delusion pure and simple" would not satisfy the requirements of the statute (201 NY, at p 269). In People v Tomlins (213 N.Y. 240, 244), [109] we set forth the governing test as being whether "the situation justified the defendant as a reasonable man in believing that he was about to be murderously attacked."
Accordingly, the Law Revision Commission, in a 1937 Report to the Legislature on the Law of Homicide in New York, summarized the self-defense statute as requiring a "reasonable belief in the imminence of danger", and stated that the standard to be followed by a jury in determining whether a belief was reasonable "is that of a man of ordinary courage in the circumstances surrounding the defendant at the time of the killing" (Communication Relating to Homicide, op. cit., at 814). The Report added that New York did not follow the view, adopted in a few States, that "the jury is required to adopt the subjective view and judge from the standpoint of the very defendant concerned" (id., at 814).
In 1961 the Legislature established a Commission to undertake a complete revision of the Penal Law and the Criminal Code. The impetus for the decision to update the Penal Law came in part from the drafting of the Model Penal Code by the American Law Institute, as well as from the fact that the existing law was poorly organized and in many aspects antiquated (see, e.g., Criminal Law Revision Through A Legislative Commission: The New York Experience, 18 Buff L Rev 213; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469). Following the submission by the Commission of several reports and proposals, the Legislature approved the present Penal Law in 1965 (L 1965, ch 1030), and it became effective on September 1, 1967. The drafting of the general provisions of the new Penal Law (see, Penal Law part I), including the article on justification (id., art 35), was particularly influenced by the Model Penal Code (see, Denzer, Drafting a New York Penal Law for New York, 18 Buff L Rev 251, 252; Wechsler, Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum L Rev 1425, 1428). While using the Model Penal Code provisions on justification as general guidelines, however, the drafters of the new Penal Law did not simply adopt them verbatim.
The provisions of the Model Penal Code with respect to the use of deadly force in self-defense reflect the position of its drafters that any culpability which arises from a mistaken belief in the need to use such force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime (see, ALI, Model [110] Penal Code and Commentaries, part I, at 32, 34 [hereafter cited as MPC Commentaries]; Robinson, Criminal Law Defenses, op. cit., at 410). Accordingly, under Model Penal Code § 3.04 (2) (b), a defendant charged with murder (or attempted murder) need only show that he "believe[d] that [the use of deadly force] was necessary to protect himself against death, serious bodily injury, kidnapping or [forcible] sexual intercourse" to prevail on a self-defense claim (emphasis added). If the defendant's belief was wrong, and was recklessly, or negligently formed, however, he may be convicted of the type of homicide charge requiring only a reckless or negligent, as the case may be, criminal intent (see, Model Penal Code § 3.09 [2]; MPC Commentaries, op. cit., part I, at 32, 150).
The drafters of the Model Penal Code recognized that the wholly subjective test set forth in section 3.04 differed from the existing law in most States by its omission of any requirement of reasonableness (see, MPC Commentaries, op. cit., part I, at 35; LaFave & Scott, Criminal Law § 53, at 393-394). The drafters were also keenly aware that requiring that the actor have a "reasonable belief" rather than just a "belief" would alter the wholly subjective test (MPC Commentaries, op. cit., part I, at 35-36). This basic distinction was recognized years earlier by the New York Law Revision Commission and continues to be noted by the commentators (Communication Relating to Homicide, op. cit., at 814; Robinson, Criminal Law Defenses, op. cit.; Note, Justification: The Impact of the Model Penal Code on Statutory Reform, 75 Colum L Rev 914, 918-920).
New York did not follow the Model Penal Code's equation of a mistake as to the need to use deadly force with a mistake negating an element of a crime, choosing instead to use a single statutory section which would provide either a complete defense or no defense at all to a defendant charged with any crime involving the use of deadly force. The drafters of the new Penal Law adopted in large part the structure and content of Model Penal Code § 3.04, but, crucially, inserted the word "reasonably" before "believes".
The plurality below agreed with defendant's argument that the change in the statutory language from "reasonable ground," used prior to 1965, to "he reasonably believes" in Penal Law § 35.15 evinced a legislative intent to conform to the subjective standard contained in Model Penal Code § 3.04. This argument, however, ignores the plain significance of the [111] insertion of "reasonably". Had the drafters of section 35.15 wanted to adopt a subjective standard, they could have simply used the language of section 3.04. "Believes" by itself requires an honest or genuine belief by a defendant as to the need to use deadly force (see, e.g., Robinson, Criminal Law Defenses, op. cit. § 184 (b), at 399-400). Interpreting the statute to require only that the defendant's belief was "reasonable to him," as done by the plurality below, would hardly be different from requiring only a genuine belief; in either case, the defendant's own perceptions could completely exonerate him from any criminal liability.
We cannot lightly impute to the Legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law.
We can only conclude that the Legislature retained a reasonableness requirement to avoid giving a license for such actions. The plurality's interpretation, as the dissenters below recognized, excises the impact of the word "reasonably". This same conclusion was recently reached in Justice Levine's decision for a unanimous Third Department in People v Astle (117 AD2d 382), in which that court declined to follow the First Department's decision in this case (see also, People v Hamel, 96 AD2d 644 [3d Dept]).
The change from "reasonable ground" to "reasonably believes" is better explained by the fact that the drafters of section 35.15 were proposing a single section which, for the first time, would govern both the use of ordinary force and deadly force in self-defense or defense of another. Under the 1909 Penal Law and its predecessors, the use of ordinary force was governed by separate sections which, at least by their literal terms, required that the defendant was in fact responding to an unlawful assault, and not just that he had a reasonable ground for believing that such an assault was occurring (see, 1909 Penal Law §§ 42, 246 [3]; People v Young, 11 N.Y.2d 274; 7 Zett, New York Criminal Practice ¶ 65.3). [112] Following the example of the Model Penal Code, the drafters of section 35.15 eliminated this sharp dichotomy between the use of ordinary force and deadly force in defense of a person. Not surprisingly then, the integrated section reflects the wording of Model Penal Code § 3.04, with the addition of "reasonably" to incorporate the long-standing requirement of "reasonable ground" for the use of deadly force and apply it to the use of ordinary force as well (see, Zett, New York Criminal Practice, § 65.3 [1], [2]; Note, Proposed Penal Law of New York, 64 Colum L Rev 1469, 1500).
The conclusion that section 35.15 retains an objective element to justify the use of deadly force is buttressed by the statements of its drafters. The executive director and counsel to the Commission which revised the Penal Law have stated that the provisions of the statute with respect to the use of deadly physical force largely conformed with the prior law, with the only changes they noted not being relevant here (Denzer & McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, p 63 [1967]). Nowhere in the legislative history is there any indication that "reasonably believes" was designed to change the law on the use of deadly force or establish a subjective standard. To the contrary, the Commission, in the staff comment governing arrests by police officers, specifically equated "[he] reasonably believes" with having a reasonable ground for believing (Penal Law § 35.30; Fourth Interim Report of the Temporary State Commission on Revision of the Penal Law and Criminal Code at 17-18, 1965 NY Legis Doc No. 25).
Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted (see, e.g., People v Cantor, 36 N.Y.2d 106; Donovan v Kaszycki & Sons Contrs., 599 F Supp 860, 871; Klotter, Criminal Law, at 312; Fletcher, The Right and the Reasonable, 98 Harv L Rev 949; 57 Am Jur 2d, Negligence, §§ 67, 68). In People v Cantor (supra), we had before us a provision of the Criminal Procedure Law authorizing a police officer to stop a person "when he reasonably suspects that such person is committing, has committed or is about to commit [a crime]" (CPL 140.50 [1]; emphasis added). We held that this section authorized "stops" only when the police officer had "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man [113] under the circumstances to believe criminal activity is at hand" (People v Cantor, 36 NY2d, at pp 112-113, supra).
In People v Collice (41 N.Y.2d 906), we rejected the position that section 35.15 contains a wholly subjective standard. The defendant in Collice asserted, on appeal, that the trial court had erred in refusing to charge the justification defense. We upheld the trial court's action because we concluded that, even if the defendant had actually believed that he was threatened with the imminent use of deadly physical force, the evidence clearly indicated that "his reactions were not those of a reasonable man acting in self-defense" (id., at p 907). Numerous decisions from other States interpreting "reasonably believes" in justification statutes enacted subsequent to the drafting of the Model Penal Code are consistent with Collice, as they hold that such language refers to what a reasonable person could have believed under the same circumstances (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364, 373-374; Weston v State, 682 P2d 1119, 1121 [Alaska]).
The defense contends that our memorandum in Collice is inconsistent with our prior opinion in People v Miller (39 N.Y.2d 543). In Miller, we held that a defendant charged with homicide could introduce, in support of a claim of self-defense, evidence of prior acts of violence committed by the deceased of which the defendant had knowledge. The defense, as well as the plurality below, place great emphasis on the statement in Miller that "the crucial fact at issue [is] the state of mind of the defendant" (id., at p 551). This language, however, in no way indicates that a wholly subjective test is appropriate. To begin, it is undisputed that section 35.15 does contain a subjective element, namely that the defendant believed that deadly force was necessary to avert the imminent use of deadly force or the commission of certain felonies. Evidence that the defendant knew of prior acts of violence by the deceased could help establish his requisite beliefs. Moreover, such knowledge would also be relevant on the issue of reasonableness, as the jury must consider the circumstances a defendant found himself in, which would include any relevant knowledge of the nature of persons confronting him (see, e.g., People v Taylor, 177 N.Y. 237, 245; Communication Relating to Homicide, op. cit., at 816). Finally, in Miller, we specifically recognized that there had to be "reasonable grounds" for the defendant's belief.
Goetz's reliance on People v Rodawald (177 N.Y. 408) is [114] similarly misplaced. In Rodawald, decided under the 1881 Penal Code, we held that a defendant who claimed that he had acted in self-defense could introduce evidence as to the general reputation of the deceased as a violent person if this reputation was known to the defendant when he acted. We stated, as emphasized by Goetz, that such evidence, "when known to the accused, enables him to judge of the danger and aids the jury in deciding whether he acted in good faith and upon the honest belief that his life was in peril. It shows the state of his mind as to the necessity of defending himself" (177 NY, at p 423). Again, such language is explained by the fact that the threshold question, before the reasonableness issue is addressed, is the subjective beliefs of the defendant. Nowhere in Rodawald did we hold that the only test, as urged by Goetz, is whether the defendant honestly and in good faith believed himself to be in danger. Rather, we recognized that there was also the separate question of whether the accused had "reasonable ground" for his belief, and we upheld the trial court's refusal to charge the jury that the defendant's honest belief was sufficient to establish self-defense (177 NY, at pp 423, 426-427).
Goetz also argues that the introduction of an objective element will preclude a jury from considering factors such as the prior experiences of a given actor and thus, require it to make a determination of "reasonableness" without regard to the actual circumstances of a particular incident. This argument, however, falsely presupposes that an objective standard means that the background and other relevant characteristics of a particular actor must be ignored. To the contrary, we have frequently noted that a determination of reasonableness must be based on the "circumstances" facing a defendant or his "situation" (see, e.g., People v Ligouri, 284 N.Y. 309, 316, supra; People v Lumsden, 201 N.Y. 264, 268, supra). Such terms encompass more than the physical movements of the potential assailant. As just discussed, these terms include any relevant knowledge the defendant had about that person. They also necessarily bring in the physical attributes of all persons involved, including the defendant. Furthermore, the defendant's circumstances encompass any prior experiences he had which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances.
Accordingly, a jury should be instructed to consider this [115] type of evidence in weighing the defendant's actions. The jury must first determine whether the defendant had the requisite beliefs under section 35.15, that is, whether he believed deadly force was necessary to avert the imminent use of deadly force or the commission of one of the felonies enumerated therein. If the People do not prove beyond a reasonable doubt that he did not have such beliefs, then the jury must also consider whether these beliefs were reasonable. The jury would have to determine, in light of all the "circumstances", as explicated above, if a reasonable person could have had these beliefs.
The prosecutor's instruction to the second Grand Jury that it had to determine whether, under the circumstances, Goetz's conduct was that of a reasonable man in his situation was thus essentially an accurate charge. It is true that the prosecutor did not elaborate on the meaning of "circumstances" or "situation" and inform the grand jurors that they could consider, for example, the prior experiences Goetz related in his statement to the police. We have held, however, that a Grand Jury need not be instructed on the law with the same degree of precision as the petit jury (see, People v Valles, 62 N.Y.2d 36, 38; People v Calbud, Inc., 49 N.Y.2d 389, 394; compare, CPL 190.25 [6], with CPL 300.10 [2]). This lesser standard is premised upon the different functions of the Grand Jury and the petit jury: the former determines whether sufficient evidence exists to accuse a person of a crime and thereby subject him to criminal prosecution; the latter ultimately determines the guilt or innocence of the accused, and may convict only where the People have proven his guilt beyond a reasonable doubt (see, People v Calbud, Inc., 49 NY2d, at p 394, supra).
In People v Calbud, Inc. (supra, at pp 394-395), we stated that the prosecutor simply had to "provid[e] the Grand Jury with enough information to enable it intelligently to decide whether a crime has been committed and to determine whether there exists legally sufficient evidence to establish the material elements of the crime". Of course, as noted above, where the evidence suggests that a complete defense such as justification may be present, the prosecutor must charge the grand jurors on that defense, providing enough information to enable them to determine whether the defense, in light of the evidence, should preclude the criminal prosecution. The prosecutor more than adequately fulfilled this obligation here. His instructions were not as complete as the court's charge on justification should be, but they sufficiently apprised the [116] Grand Jury of the existence and requirements of that defense to allow it to intelligently decide that there is sufficient evidence tending to disprove justification and necessitating a trial. The Grand Jury has indicted Goetz. It will now be for the petit jury to decide whether the prosecutor can prove beyond a reasonable doubt that Goetz's reactions were unreasonable and therefore excessive.
IV.
Criminal Term's second ground for dismissal of the charges, premised upon the Daily News column and the police officer's statement to the prosecutor, can be rejected more summarily. The court relied upon People v Pelchat (62 N.Y.2d 97, supra), the facts of which, however, are markedly different from those here. In Pelchat, the defendant was one of 21 persons arrested in a house to which police officers had seen marihuana delivered. The only evidence before the Grand Jury showing that defendant had anything to do with the marihuana was the testimony of a police officer listing defendant as one of 21 persons he had observed transporting the drug. After defendant was indicted, this same police officer told the prosecutor that he had misunderstood his question when testifying before the Grand Jury and that he had not seen defendant engage in any criminal activity. Although the prosecutor knew that there was no other evidence before the Grand Jury to establish the defendant's guilt, he did not disclose the police officer's admission, and instead, accepted a guilty plea from the defendant. We reversed the conviction and dismissed the indictment, holding that the prosecutor should not have allowed the proceedings against defendant to continue when he knew that the only evidence against him before the Grand Jury was false, and thus, knew that there was not legally sufficient evidence to support the indictment.
Here, in contrast, Canty and Ramseur have not recanted any of their Grand Jury testimony or told the prosecutor that they misunderstood any questions. Instead, all that has come to light is hearsay evidence that conflicts with part of Canty's testimony. There is no statute or controlling case law requiring dismissal of an indictment merely because, months later, the prosecutor becomes aware of some information which may lead to the defendant's acquittal. There was no basis for the Criminal Term Justice to speculate as to whether Canty's and Ramseur's testimony was perjurious (see, CPL 190.25 [5]), and [117] his conclusion that the testimony "strongly appeared" to be perjured is particularly inappropriate given the nature of the "evidence" he relied upon to reach such a conclusion and that he was not in the Grand Jury room when the two youths testified.
Moreover, unlike Pelchat, the testimony of Canty and Ramseur was not the only evidence before the Grand Jury establishing that the offenses submitted to that body were committed by Goetz. Goetz's own statements, together with the testimony of the passengers, clearly support the elements of the crimes charged, and provide ample basis for concluding that a trial of this matter is needed to determine whether Goetz could have reasonably believed that he was about to be robbed or seriously injured and whether it was reasonably necessary for him to shoot four youths to avert any such threat.
Accordingly, the order of the Appellate Division should be reversed, and the dismissed counts of the indictment reinstated.
Order reversed, etc.
[1] On May 14, 1985, Goetz commenced an article 78 proceeding in the Appellate Division seeking to prohibit a trial on the charges contained in the second indictment on the ground that the order allowing resubmission of the charges was an abuse of discretion. The Appellate Division dismissed the proceeding on the ground that prohibition did not lie to review the type of error alleged by Goetz (111 AD2d 729, 730), and this court denied a motion for leave to appeal from the Appellate Division order (65 N.Y.2d 609). The propriety of the resubmission order is not before us on this appeal.
[2] The court did not dismiss the reckless endangerment charge because, relying on the Appellate Division decision in People v McManus (108 AD2d 474), it held that justification was not a defense to a crime containing, as an element, "depraved indifference to human life." As our reversal of the Appellate Division in McManus holds, justification is a defense to such a crime (People v McManus, 67 N.Y.2d 541). Accordingly, had the prosecutor's instructions on justification actually rendered the Grand Jury proceedings defective, dismissal of the reckless endangerment count would have been required as well.
[3] Subdivision (1) contains certain exceptions to this general authorization to use force, such as where the actor himself was the initial aggressor.
[4] Section 35.15 (2) (a) further provides, however, that even under these circumstances a person ordinarily must retreat "if he knows that he can with complete safety as to himself and others avoid the necessity of [using deadly physical force] by retreating".
[5] While the portion of section 35.15 (2) (b) pertaining to the use of deadly physical force to avert a felony such as robbery does not contain a separate "retreat" requirement, it is clear from reading subdivisions (1) and (2) of section 35.15 together, as the statute requires, that the general "necessity" requirement in subdivision (1) applies to all uses of force under section 35.15, including the use of deadly physical force under subdivision (2) (b).
[6] The 1881 provision expanded the class of third persons for whose defense an actor could employ deadly force from certain specified persons to any other person in the actor's presence.
7.2.8.5.1.1.3. Calvin Trillin, "The Color of Blood," The New Yorker, March 3, 2008
7.2.8.5.1.1.4 State v. Kelly 7.2.8.5.1.1.4 State v. Kelly
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GLADYS KELLY, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
[186] Sheri Woliver, Assistant Deputy Public Defender, argued the cause for appellant (Joseph H. Rodriguez, Public Defender, attorney).
[187] Hilary L. Brunell, Assistant Prosecutor, argued the cause for respondent (George L. Schneider, Essex County Prosecutor, attorney).
Elizabeth M. Schneider, a member of the New York bar, argued the cause for amici curiae American Civil Liberties Union of New Jersey and New Jersey Coalition for Battered Women (Frank Askin and Stephen M. Latimer, attorneys).
Nadine Taub submitted a brief on behalf of amicus curiae American Psychological Association (Nadine Taub, attorney; Kit Kinports and Bruce J. Ennis, members of the District of Columbia bar, and Donald N. Bersoff, a member of the Maryland bar, of counsel).
The opinion of the Court was delivered by WILENTZ, C.J.
The central issue before us is whether expert testimony about the battered-woman's syndrome is admissible to help establish a claim of self-defense in a homicide case. The question is one of first impression in this state. We hold, based on the limited record before us (the State not having had a full opportunity to prove the contrary), that the battered-woman's syndrome is an appropriate subject for expert testimony; that the experts' conclusions, despite the relative newness of the field, are sufficiently reliable under New Jersey's standards for scientific testimony; and that defendant's expert was sufficiently qualified. Accordingly, we reverse and remand for a new trial. If on retrial after a full examination of these issues the evidence continues to support these conclusions, the expert's testimony on the battered-woman's syndrome shall be admitted as relevant to the honesty and reasonableness of defendant's belief that deadly force was necessary to protect her against death or serious bodily harm.
I.
On May 24, 1980, defendant, Gladys Kelly, stabbed her husband, Ernest, with a pair of scissors. He died shortly thereafter at a nearby hospital. The couple had been married [188] for seven years, during which time Ernest had periodically attacked Gladys. According to Ms. Kelly, he assaulted her that afternoon, and she stabbed him in self-defense, fearing that he would kill her if she did not act.
Ms. Kelly was indicted for murder. At trial, she did not deny stabbing her husband, but asserted that her action was in self-defense. To establish the requisite state of mind for her self-defense claim, Ms. Kelly called Dr. Lois Veronen as an expert witness to testify about the battered-woman's syndrome. After hearing a lengthy voir dire examination of Dr. Veronen, the trial court ruled that expert testimony concerning the syndrome was inadmissible on the self-defense issue under State v. Bess, 53 N.J. 10 (1968). Apparently the court believed that the sole purpose of this testimony was to explain and justify defendant's perception of the danger rather than to show the objective reasonableness of that perception.
Ms. Kelly was convicted of reckless manslaughter. In an unreported decision relying in part on Bess, the Appellate Division affirmed the conviction. We granted certification, 91 N.J. 539 (1983), and now reverse.
Defendant raises six issues on appeal. She claims: (1) that the trial court erred in excluding expert testimony on the battered-woman's syndrome; (2) that the trial court's charge on provocation was erroneous; (3) that the trial court erred in excluding testimony that Mr. Kelly had sexually assaulted one of Ms. Kelly's daughters; (4) that improper prosecutorial conduct caused her to be denied a fair trial; (5) that the trial court erred in admitting testimony about her earlier conspiracy conviction; and (6) that her sentence was excessive.
II.
The Kellys had a stormy marriage. Some of the details of their relationship, especially the stabbing, are disputed. The following is Ms. Kelly's version of what happened — a version that the jury could have accepted and, if they had, a version [189] that would make the proffered expert testimony not only relevant, but critical.
The day after the marriage, Mr. Kelly got drunk and knocked Ms. Kelly down. Although a period of calm followed the initial attack, the next seven years were accompanied by periodic and frequent beatings, sometimes as often as once a week. During the attacks, which generally occurred when Mr. Kelly was drunk, he threatened to kill Ms. Kelly and to cut off parts of her body if she tried to leave him. Mr. Kelly often moved out of the house after an attack, later returning with a promise that he would change his ways. Until the day of the homicide, only one of the attacks had taken place in public.
The day before the stabbing, Gladys and Ernest went shopping. They did not have enough money to buy food for the entire week, so Ernest said he would give his wife more money the next day.
The following morning he left for work. Ms. Kelly next saw her husband late that afternoon at a friend's house. She had gone there with her daughter, Annette, to ask Ernest for money to buy food. He told her to wait until they got home, and shortly thereafter the Kellys left. After walking past several houses, Mr. Kelly, who was drunk, angrily asked "What the hell did you come around here for?" He then grabbed the collar of her dress, and the two fell to the ground. He choked her by pushing his fingers against her throat, punched or hit her face, and bit her leg.
A crowd gathered on the street. Two men from the crowd separated them, just as Gladys felt that she was "passing out" from being choked. Fearing that Annette had been pushed around in the crowd, Gladys then left to look for her. Upon finding Annette, defendant noticed that Annette had defendant's pocketbook. Gladys had dropped it during the fight. Annette had retrieved it and gave her mother the pocketbook.
After finding her daughter, Ms. Kelly then observed Mr. Kelly running toward her with his hands raised. Within seconds [190] he was right next to her. Unsure of whether he had armed himself while she was looking for their daughter, and thinking that he had come back to kill her, she grabbed a pair of scissors from her pocketbook. She tried to scare him away, but instead stabbed him.[1]
III.
The central question in this case is whether the trial court erred in its exclusion of expert testimony on the battered-woman's syndrome. That testimony was intended to explain defendant's state of mind and bolster her claim of self-defense. We shall first examine the nature of the battered-woman's syndrome and then consider the expert testimony proffered in this case and its relevancy.
In the past decade social scientists and the legal community began to examine the forces that generate and perpetuate wife beating and violence in the family.[2] What has been revealed is [191] that the problem affects many more people than had been thought and that the victims of the violence are not only the battered family members (almost always either the wife or the children). There are also many other strangers to the family who feel the devastating impact, often in the form of violence, of the psychological damage suffered by the victims.
Due to the high incidence of unreported abuse (the FBI and other law enforcement experts believe that wife abuse is the most unreported crime in the United States), estimates vary of the number of American women who are beaten regularly by their husband, boyfriend, or the dominant male figure in their lives. One recent estimate puts the number of women beaten yearly at over one million. See California Advisory Comm'n on Family Law, Domestic Violence app. F at 119 (1st report 1978). The state police statistics show more than 18,000 reported cases of domestic violence in New Jersey during the first nine months of 1983, in 83% of which the victim was female. It is clear that the American home, once assumed to be the cornerstone of our society, is often a violent place.[3]
While common law notions that assigned an inferior status to women, and to wives in particular, no longer represent the state [192] of the law as reflected in statutes and cases, many commentators assert that a bias against battered women still exists, institutionalized in the attitudes of law enforcement agencies unwilling to pursue or uninterested in pursuing wife beating cases.[4] See Comment, The Battered Wife's Dilemma: Kill or be Killed, 32 Hastings L.J., 895, 897-911 (1981).
Another problem is the currency enjoyed by stereotypes and myths concerning the characteristics of battered women and their reasons for staying in battering relationships. Some popular misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their beatings, that they purposely provoke their husbands into violent behavior, and, most critically, as we shall soon see, that women who remain in battering relationships are free to leave their abusers at any time. See L. Walker, The Battered Woman at 19-31 (1979).
As these cases so tragically suggest, not only do many women suffer physical abuse at the hands of their mates, but a significant number of women kill (or are killed by) their husbands. In 1978, murders between husband and wife or girlfriend and boyfriend constituted 13% of all murders committed in the United States. Undoubtedly some of these arose from battering incidents. Federal Bureau of Investigation, Crime in the United States 1978 (1978). Men were the victims in 48% of these killings. Id.
As the problem of battered women has begun to receive more attention, sociologists and psychologists have begun to focus on the effects a sustained pattern of physical and psychological [193] abuse can have on a woman. The effects of such abuse are what some scientific observers have termed "the battered-woman's syndrome," a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. Dr. Lenore Walker, a prominent writer on the battered-woman's syndrome, defines the battered woman as one
who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. Battered women include wives or women in any form of intimate relationships with men. Furthermore, in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once. If it occurs a second time, and she remains in the situation, she is defined as a battered woman. [L. Walker, supra, at xv].
According to Dr. Walker, relationships characterized by physical abuse tend to develop battering cycles. Violent behavior directed at the woman occurs in three distinct and repetitive stages that vary both in duration and intensity depending on the individuals involved. L. Walker, supra, at 55-70.
Phase one of the battering cycle is referred to as the "tension-building stage," during which the battering male engages in minor battering incidents and verbal abuse while the woman, beset by fear and tension, attempts to be as placating and passive as possible in order to stave off more serious violence. Id. at 56-59.
Phase two of the battering cycle is the "acute battering incident." At some point during phase one, the tension between the battered woman and the batterer becomes intolerable and more serious violence inevitable. The triggering event that initiates phase two is most often an internal or external event in the life of the battering male, but provocation for more severe violence is sometimes provided by the woman who can no longer tolerate or control her phase-one anger and anxiety. Id. at 59-65.
Phase three of the battering cycle is characterized by extreme contrition and loving behavior on the part of the battering [194] male. During this period the man will often mix his pleas for forgiveness and protestations of devotion with promises to seek professional help, to stop drinking,[5] and to refrain from further violence. For some couples, this period of relative calm may last as long as several months, but in a battering relationship the affection and contrition of the man will eventually fade and phase one of the cycle will start anew. Id. at 65-70.
The cyclical nature of battering behavior helps explain why more women simply do not leave their abusers. The loving behavior demonstrated by the batterer during phase three reinforces whatever hopes these women might have for their mate's reform and keeps them bound to the relationship. R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977).
Some women may even perceive the battering cycle as normal, especially if they grew up in a violent household. Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); D. Martin, Battered Wives, 60 (1981). Or they may simply not wish to acknowledge the reality of their situation. T. Davidson, Conjugal Crime, at 50 (1978) ("The middle-class battered wife's response to her situation tends to be withdrawal, silence and denial ...").
Other women, however, become so demoralized and degraded by the fact that they cannot predict or control the violence that they sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation. There is a tendency in battered women to believe in the omnipotence [195] or strength of their battering husbands and thus to feel that any attempt to resist them is hopeless. L. Walker, supra, at 75.
In addition to these psychological impacts, external social and economic factors often make it difficult for some women to extricate themselves from battering relationships. A woman without independent financial resources who wishes to leave her husband often finds it difficult to do so because of a lack of material and social resources.
Even with the progress of the last decade, women typically make less money and hold less prestigious jobs than men, and are more responsible for child care. Thus, in a violent confrontation where the first reaction might be to flee, women realize soon that there may be no place to go. Moreover, the stigma that attaches to a woman who leaves the family unit without her children undoubtedly acts as a further deterrent to moving out.
In addition, battered women, when they want to leave the relationship, are typically unwilling to reach out and confide in their friends, family, or the police, either out of shame and humiliation, fear of reprisal by their husband, or the feeling they will not be believed.
Dr. Walker and other commentators have identified several common personality traits of the battered woman: low self-esteem, traditional beliefs about the home, the family, and the female sex role, tremendous feelings of guilt that their marriages are failing, and the tendency to accept responsibility for the batterer's actions. L. Walker, supra, at 35-36.
Finally, battered women are often hesitant to leave a battering relationship because, in addition to their hope of reform on the part of their spouse, they harbor a deep concern about the possible response leaving might provoke in their mates. They literally become trapped by their own fear. Case histories are replete with instances in which a battered wife left her husband [196] only to have him pursue her and subject her to an even more brutal attack. D. Martin, supra, at 76-79.
The combination of all these symptoms — resulting from sustained psychological and physical trauma compounded by aggravating social and economic factors — constitutes the battered-woman's syndrome. Only by understanding these unique pressures that force battered women to remain with their mates, despite their long-standing and reasonable fear of severe bodily harm and the isolation that being a battered woman creates, can a battered woman's state of mind be accurately and fairly understood.
The voir dire testimony of Dr. Veronen, sought to be introduced by defendant Gladys Kelly, conformed essentially to this outline of the battered-woman's syndrome. Dr. Vernonen, after establishing her credentials, described in general terms the component parts of the battered-woman's syndrome and its effects on a woman's physical and mental health. The witness then documented, based on her own considerable experience in counseling, treating, and studying battered women, and her familiarity with the work of others in the field, the feelings of anxiety, self-blame, isolation, and, above all, fear that plagues these women and leaves them prey to a psychological paralysis that hinders their ability to break free or seek help.
Dr. Veronen stated that the problems of battered women are aggravated by a lack of understanding among the general public concerning both the prevalence of violence against women and the nature of battering relationships. She cited several myths concerning battered women that enjoy popular acceptance — primarily that such women are masochistic and enjoy the abuse they receive and that they are free to leave their husbands but choose not to.
Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research. These tests and their methodology, including their interpretation, are, according to Dr. Veronen, widely [197] accepted by clinical psychologists. Applying this methodology to defendant (who was subjected to all of the tests, including a five-hour interview), Dr. Veronen concluded that defendant was a battered woman and subject to the battered-woman's syndrome.
In addition, Dr. Veronen was prepared to testify as to how, as a battered woman, Gladys Kelly perceived her situation at the time of the stabbing, and why, in her opinion, defendant did not leave her husband despite the constant beatings she endured.
IV.
Whether expert testimony on the battered-woman's syndrome should be admitted in this case depends on whether it is relevant to defendant's claim of self-defense, and, in any event, on whether the proffer meets the standards for admission of expert testimony in this state. We examine first the law of self-defense and consider whether the expert testimony is relevant.
The present rules governing the use of force in self-defense are set out in the justification section of the Code of Criminal Justice. The use of force against another in self-defense is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). Further limitations exist when deadly force is used in self-defense. The use of such deadly force is not justifiable
unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.... [N.J.S.A. 2C:3-4(b)(2)].
These principles codify decades of prior case law development of the elements of self-defense.[6] We focus here on the critical [198] requirement that the actor reasonably believe deadly force to be necessary to prevent death or serious bodily harm, for the proffer of expert testimony was argued to be relevant on this point.
Self-defense exonerates a person who kills in the reasonable belief that such action was necessary to prevent his or her death or serious injury, even though this belief was later proven mistaken. "Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See State v. Hipplewith, 33 N.J. 300, 316-17 (1960); State v. Mount, 73 N.J.L. 582, 583 (E. & A. 1905); State v. Lionetti, 93 N.J.L. 24 (Sup.Ct. 1919).
While it is not imperative that actual necessity exist, a valid plea of self-defense will not lie absent an actual (that is, honest) belief on the part of the defendant in the necessity of using force. While no case in New Jersey has addressed the point directly, the privilege of self-defense does not exist where the defendant's action is not prompted by a belief in its necessity: "He has no defense when he intentionally kills his enemy in complete ignorance of the fact that his enemy, when killed, was about to launch a deadly attack upon him." W. LaFave & A. Scott, Criminal Law § 53, at 394 (1972).[7] The intent of the [199] drafters of the present Code was that a necessity to act should not give rise to a meritorious plea of self-defense where the defendant was unaware of that necessity. Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary, at 83 (1971) [hereinafter cited as Commission Report]. Ultimately, of course, it is for the jury to determine if the defendant actually did believe in the necessity of acting with deadly force to prevent an imminent, grave attack. See, e.g., State v. Fair, 45 N.J. 77, 93 (1965).
Honesty alone, however, does not suffice. A defendant claiming the privilege of self-defense must also establish that her belief in the necessity to use force was reasonable. See, e.g., State v. Mellillo, 77 N.J.L. 505 (E. & A. 1908); State v. Mark Len, 108 N.J.L. 439, 440 (Sup.Ct. 1932). As originally proposed, the new Code of Criminal Justice would have eliminated the reasonableness requirement, allowing self-defense whenever the defendant honestly believed in the imminent need to act. See Commission Report, supra, Vol. I, at 26-27 (proposed Section 2C:3-4), and Vol. II: Commentary, at 82-83. This proposed change in the law was not accepted by the Legislature. N.J.S.A. 2C:3-4 as finally enacted retains the requirement that the defendant's belief be reasonable.[8]
Thus, even when the defendant's belief in the need to kill in self-defense is conceded to be sincere, if it is found to have been unreasonable under the circumstances, such a belief cannot be held to constitute complete justification for a homicide.[9] As [200] with the determination of the existence of the defendant's belief, the question of the reasonableness of this belief "is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide." State v. Hipplewith, supra, 33 N.J. at 316; see State v. Bess, supra, 53 N.J. at 16; State v. Fair, supra, 45 N.J. at 93; State v. Jayson, 94 N.J.L. 467, 471 (E. & A. 1920). It is perhaps worth emphasizing here that for defendant to prevail, the jury need not find beyond a reasonable doubt that the defendant's belief was honest and reasonable. Rather, if any evidence raising the issue of self-defense is adduced, either in the State's or the defendant's case, then the jury must be instructed that the State is required to prove beyond a reasonable doubt that the self-defense claim does not accord with the facts; acquittal is required if there remains a reasonable doubt whether the defendant acted in self-defense. State v. Abbott, 36 N.J. 63, 72 (1961). See generally State v. Chiarello, 69 N.J. Super. 479 (App.Div. 1961).
With the foregoing standards in mind, we turn to an examination of the relevance of the proffered expert testimony to Gladys Kelly's claim of self-defense.
V.
Gladys Kelly claims that she stabbed her husband in self-defense, believing he was about to kill her. The gist of the State's case was that Gladys Kelly was the aggressor, that she consciously intended to kill her husband, and that she certainly was not acting in self-defense.
The credibility of Gladys Kelly is a critical issue in this case. If the jury does not believe Gladys Kelly's account, it [201] cannot find she acted in self-defense. The expert testimony offered was directly relevant to one of the critical elements of that account, namely, what Gladys Kelly believed at the time of the stabbing, and was thus material to establish the honesty of her stated belief that she was in imminent danger of death.[10]
The State argues that there is no need to bolster defendant's credibility with expert testimony concerning the battering because the State did not attempt to undermine defendant's testimony concerning her prior mistreatment at the hands of her husband. The State's claim is simply untrue. In her summation, the prosecutor suggested that had Ernest Kelly lived, he might have told a different story from the one Gladys told. (In its brief, the State argues that evidence in the case suggests that Gladys Kelly's claims of abuse could have been contradicted by her husband.) This is obviously a direct attempt to undermine defendant's testimony about her prior mistreatment.
Moreover, defendant's credibility was also attacked in other ways. Gladys Kelly's prior conviction for conspiracy to commit robbery was admitted into evidence for the express purpose of impeachment, even though this conviction had occurred nine years before the stabbing. Other questions, about Gladys Kelly's use of alcohol and drugs and about her premarital sexual conduct, were clearly efforts to impeach credibility.
As can be seen from our discussion of the expert testimony, Dr. Veronen would have bolstered Gladys Kelly's credibility. [202] Specifically, by showing that her experience, although concededly difficult to comprehend, was common to that of other women who had been in similarly abusive relationships, Dr. Veronen would have helped the jury understand that Gladys Kelly could have honestly feared that she would suffer serious bodily harm from her husband's attacks, yet still remain with him. This, in turn, would support Ms. Kelly's testimony about her state of mind (that is, that she honestly feared serious bodily harm) at the time of the stabbing.
On the facts in this case, we find that the expert testimony was relevant to Gladys Kelly's state of mind, namely, it was admissible to show she honestly believed she was in imminent danger of death. Ibn-Tamas v. United States, 407 A.2d 626 (D.C. 1979) (on remand, trial court excluded expert testimony on battered-woman's syndrome; the Court of Appeals affirmed the exclusion of the testimony, holding that the trial court was not compelled to admit the evidence; 455 A.2d 893 (D.C. 1983)); Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981); State v. Anaya, 438 A.2d 892 (Me. 1981); State v. Allery, 101 Wash.2d 591, 682 P.2d 312 (Wash.Sup.Ct. 1984); see also People v. Minnis, 118 Ill. App.3d 345, 74 Ill.Dec. 179, 455 N.E.2d 209 (1983) (expert testimony on battered-woman's syndrome admissible to explain reasons why defendant dismembered body of victim/husband where prosecution introduced fact of dismemberment as substantive evidence of guilt). But see State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981).[11] Moreover, we [203] find that because this testimony was central to the defendant's claim of self-defense, its exclusion, if otherwise admissible, cannot be held to be harmless error.[12]
[204] We also find the expert testimony relevant to the reasonableness of defendant's belief that she was in imminent danger of death or serious injury. We do not mean that the expert's testimony could be used to show that it was understandable that a battered woman might believe that her life was in danger when indeed it was not and when a reasonable person would not have so believed, for admission for that purpose would clearly violate the rule set forth in State v. Bess, supra, 53 N.J. 10. Expert testimony in that direction would be relevant solely to the honesty of defendant's belief, not its objective reasonableness. Rather, our conclusion is that the expert's testimony, if accepted by the jury, would have aided it in determining whether, under the circumstances, a reasonable person would have believed there was imminent danger to her life.
At the heart of the claim of self-defense was defendant's story that she had been repeatedly subjected to "beatings" over the course of her marriage. While defendant's testimony was somewhat lacking in detail, a juror could infer from the use of the word "beatings," as well as the detail given concerning some of these events (the choking, the biting, the use of fists), [205] that these physical assaults posed a risk of serious injury or death. When that regular pattern of serious physical abuse is combined with defendant's claim that the decedent sometimes threatened to kill her, defendant's statement that on this occasion she thought she might be killed when she saw Mr. Kelly running toward her could be found to reflect a reasonable fear; that is, it could so be found if the jury believed Gladys Kelly's story of the prior beatings, if it believed her story of the prior threats, and, of course, if it believed her story of the events of that particular day.
The crucial issue of fact on which this expert's testimony would bear is why, given such allegedly severe and constant beatings, combined with threats to kill, defendant had not long ago left decedent. Whether raised by the prosecutor as a factual issue or not, our own common knowledge tells us that most of us, including the ordinary juror, would ask himself or herself just such a question. And our knowledge is bolstered by the experts' knowledge, for the experts point out that one of the common myths, apparently believed by most people, is that battered wives are free to leave. To some, this misconception is followed by the observation that the battered wife is masochistic, proven by her refusal to leave despite the severe beatings; to others, however, the fact that the battered wife stays on unquestionably suggests that the "beatings" could not have been too bad for if they had been, she certainly would have left. The expert could clear up these myths, by explaining that one of the common characteristics of a battered wife is her inability to leave despite such constant beatings; her "learned helplessness"; her lack of anywhere to go; her feeling that if she tried to leave, she would be subjected to even more merciless treatment; her belief in the omnipotence of her battering husband; and sometimes her hope that her husband will change his ways.
Unfortunately, in this case the State reinforced the myths about battered women. On cross-examination, when discussing an occasion when Mr. Kelly temporarily moved out of the [206] house, the State repeatedly asked Ms. Kelly: "You wanted him back, didn't you?" The implication was clear: domestic life could not have been too bad if she wanted him back. In its closing argument, the State trivialized the severity of the beatings, saying:
I'm not going to say they happened or they didn't happen, but life isn't pretty. Life is not a bowl of cherries. We each and every person who takes a breath has problems. Defense counsel says bruised and battered. Is there any one of us who hasn't been battered by life in some manner or means?
Even had the State not taken this approach, however, expert testimony would be essential to rebut the general misconceptions regarding battered women.
The difficulty with the expert's testimony is that it sounds as if an expert is giving knowledge to a jury about something the jury knows as well as anyone else, namely, the reasonableness of a person's fear of imminent serious danger. That is not at all, however, what this testimony is directly aimed at. It is aimed at an area where the purported common knowledge of the jury may be very much mistaken, an area where jurors' logic, drawn from their own experience, may lead to a wholly incorrect conclusion, an area where expert knowledge would enable the jurors to disregard their prior conclusions as being common myths rather than common knowledge. After hearing the expert, instead of saying Gladys Kelly could not have been beaten up so badly for if she had, she certainly would have left, the jury could conclude that her failure to leave was very much part and parcel of her life as a battered wife. The jury could conclude that instead of casting doubt on the accuracy of her testimony about the severity and frequency of prior beatings, her failure to leave actually reinforced her credibility.
Since a retrial is necessary, we think it advisable to indicate the limit of the expert's testimony on this issue of reasonableness. It would not be proper for the expert to express the opinion that defendant's belief on that day was reasonable, not because this is the ultimate issue, but because the area of expert knowledge relates, in this regard, to the reasons for [207] defendant's failure to leave her husband. Either the jury accepts or rejects that explanation and, based on that, credits defendant's stories about the beatings she suffered. No expert is needed, however, once the jury has made up its mind on those issues, to tell the jury the logical conclusion, namely, that a person who has in fact been severely and continuously beaten might very well reasonably fear that the imminent beating she was about to suffer could be either life-threatening or pose a risk of serious injury. What the expert could state was that defendant had the battered-woman's syndrome, and could explain that syndrome in detail, relating its characteristics to defendant, but only to enable the jury better to determine the honesty and reasonableness of defendant's belief. Depending on its content, the expert's testimony might also enable the jury to find that the battered wife, because of the prior beatings, numerous beatings, as often as once a week, for seven years, from the day they were married to the day he died, is particularly able to predict accurately the likely extent of violence in any attack on her. That conclusion could significantly affect the jury's evaluation of the reasonableness of defendant's fear for her life.[13]
[208]
VI.
Having determined that testimony about the battered-woman's syndrome is relevant, we now consider whether Dr. Veronen's testimony satisfies the limitations placed on expert testimony by Evidence Rule 56(2) and by applicable case law. See State v. Cavallo, 88 N.J. 508, 516 (1982). Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this Rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56.[14]
[209] The primary justification for permitting expert testimony is that the average juror is relatively helpless in dealing with a subject that is not a matter of common knowledge. Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961). Thus, the proponent of expert testimony must demonstrate that testimony would "enhance the knowledge and understanding of lay jurors with respect to other testimony of a special nature normally outside of the usual lay sphere." State v. Griffin, 120 N.J. Super. 13, 20 (App.Div. 1972).
As previously discussed, a battering relationship embodies psychological and societal features that are not well understood by lay observers. Indeed, these features are subject to a large group of myths and stereotypes. It is clear that this subject is beyond the ken of the average juror and thus is suitable for explanation through expert testimony.[15]
The second requirement that must be met before expert testimony is permitted is a showing that the proposed expert's testimony would be reliable. The rationale for this requirement is that expert testimony seeks to assist the trier of fact. An expert opinion that is not reliable is of no assistance to anyone.
To meet the requirement that the expert's testimony be sufficiently reliable, defense counsel must show that the testimony satisfies New Jersey's standard of acceptability for scientific [210] evidence. State v. Cavallo, supra, 88 N.J. at 516-17 (citing State v. Hurd, 86 N.J. 525, 536 (1981)). The technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results so as to contribute materially to the ascertainment of the truth. Id. 88 N.J. at 517 (citing State v. Cary, 49 N.J. 343, 352 (1967)); State v. Hurd, supra, 86 N.J. at 536.
In a relatively new field of research, such as that of the battered-woman's syndrome, there are three ways a proponent of scientific evidence can prove its general acceptance and thereby its reliability: (1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis; (2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and (3) by judicial opinions that indicate the expert's premises have gained general acceptance. State v. Cavallo, 88 N.J. at 521. Applying those methods to the case at bar, we note that judicial opinions thus far have been split concerning the scientific acceptability of the syndrome and the methodology used by the researchers in this area.[16] On the other hand, Dr. Veronen, the proffered expert, testified that the battered-woman's syndrome is acknowledged and accepted by practitioners and professors in the fields of psychology and psychiatry. Dr. Veronen also brought to the court's attention the findings of several researchers who have published reports confirming the presence of the battered-woman's syndrome. She further noted that the battered-woman's syndrome has [211] been discussed at several symposia since 1977, sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association.[17] Briefs submitted to this Court indicate that there are at least five books and almost seventy scientific articles and papers about the battered-woman's syndrome.
Thus, the record before us reveals that the battered woman's syndrome has a sufficient scientific basis to produce uniform and reasonably reliable results as required by State v. Cavallo, and Evid.R. 56(2). The numerous books, articles and papers referred to earlier indicate the presence of a growing field of study and research about the battered woman's syndrome and recognition of the syndrome in the scientific field. However, while the record before us could require such a ruling, we refrain from conclusively ruling that Dr. Veronen's proffered testimony about the battered-woman's syndrome would satisfy New Jersey's standard of acceptability for scientific evidence. This is because the State was not given a full opportunity in the trial court to question Dr. Veronen's methodology in studying battered women or her implicit assertion that the battered-woman's syndrome has been accepted by the relevant scientific community.
Finally, before expert testimony may be presented, there must be a showing that the proffered expert witness has sufficient expertise to offer the intended testimony. State v. Cavallo, supra, 88 N.J. at 516. In this case, it appears that Dr. Veronen is qualified to testify as an expert. She has a Ph.D. in clinical psychology, as well as an M.A. from North Texas State. She is a member of four professional associations. As of 1980, when she was offered as a witness at Ms. Kelly's trial, Dr. [212] Veronen had been an assistant professor at the medical school at the University of South Carolina for three years. Twenty percent of her time at the Universty was spent teaching, some of it on topics related to the battered-woman's syndrome, and 80% of her time was spent conducting research, most of it on the psychological reaction of women who are victims of violent assaults. She had spent two years studying the battered-woman's syndrome, with the goal of changing the patterns of fear and anxiety of battered women. Dr. Veronen is a clinical psychologist, licensed to practice in two states, and in that capacity had, by 1980, treated approximately thirty battered women and seen seventy others. Because these thirty women have several important characteristics in common with Ms. Kelly (the thirty women had all been in battering relationships for more than two years, were beaten more than six times, and were within the same age group as Ms. Kelly), Dr. Veronen is familiar with battered women who share Ms. Kelly's background.[18]
We have concluded that the appropriate disposal of this appeal is to reverse and remand for a new trial. On the record before us, although the trial court did not rule on the matter, it appears that Dr. Veronen qualified as an expert, and that the degree of reliability of the conclusions in this field of expertise was sufficient to allow their admission. Alternatively we could retain jurisdiction and remand, solely for the purpose of allowing the prosecutor to continue cross-examination of Dr. [213] Veronen as well as to introduce such contrary testimony as the prosecutor sees fit. The transcript discloses that the prosecutor had concluded her cross-examination on Dr. Veronen's qualifications but had never been given the opportunity fully to cross-examine the expert on the reliability of this developing field of scientific knowledge. The possibility of such further cross-examination was foreclosed by the trial court when it ruled evidence of the syndrome was inadmissible because irrelevant. Furthermore, as noted above, the trial court never actually ruled whether Dr. Veronen qualified as an expert, finding this unnecessary because of his holding that the testimony would not be admissible under State v. Bess, supra, 53 N.J. 10, even if she was an expert.[19]
[214] Our conclusion, reversing and ordering a new trial, is based on the apparent unfairness in this case of the kind of limited remand that we ordered in State v. Sikora, supra, 44 N.J. at 465-66, 474 (Weintraub, C.J., concurring). Here a limited remand would be to the trial court to exercise its discretion, a very broad discretion, on the issue of the expert's qualifications and the reliability of the knowledge proffered. We do not know what conflicting expert testimony the prosecution would offer, but the entire scenario of a limited remand when the defendant has already been convicted and when the court whose discretion will largely determine the outcome of the limited remand has already excluded the evidence, with prosecution experts who might not have been called at the original trial, seems an artificial trial setting, and significantly less favorable to defendant than what might have occurred if the trial court had had the benefit of the views expressed herein at the time. Obviously there is no way to recreate the precise situation of the trial, but all things considered, we think fairness requires a new trial where all of these matters may be reconsidered.
VII.
Apart from her claims concerning the exclusion of the expert testimony, the defendant raises five additional issues on appeal. Although our disposition of this case makes it unnecessary to [215] consider these issues, we dispose of them briefly to assist the trial court in the event they surface again at the new trial.
A.
During trial, defendant sought to introduce testimony from Edith Cannon, defendant's 17-year-old daughter by another marriage, to the effect that shortly before the fatal encounter she had told her mother that Ernest Kelly had been subjecting her to physical and sexual abuse since age 13. The defense asserted that this evidence of Glady Kelly's knowledge of the victim's prior aggressive behavior demonstrated that her fear of the decedent was justifiable and that her subsequent behavior was reasonable. See McCormick on Evidence § 249, at 588-89 (E. Cleary ed., 2d Ed. 1972); VI J. Wigmore Evidence § 1789, at 314 (Chad.Rev.Ed. 1972).
The trial court, however, excluded this evidence in reliance upon Evidence Rule 4,[20] stating:
We will get involved with trials within trials — trying cases of sexual aggression. That daughter was not present at the time of the alleged stabbing by her mother of her stepfather. There has been no evidence indicating that the safety of the daughter was threatened on May 24.
Whether the probative value of a particular piece of evidence is outweighed by its potential prejudice is a decision normally left to the discretion of the trial court; and this "discretion is a broad one." State v. Sands, 76 N.J. 127 (1978); see also Evid.R. 4, Comment 1.
If the only relevance of this testimony was to reinforce the proof that defendant feared the decedent for good reason, its limited added force might very well be outweighed [216] by the obvious prejudice injected into the case in the form of proof that decedent sexually abused his daughter. The testimony, however, has further relevance in that it very strongly supports the conclusion that the Kelly household was the scene of the batterings that would produce the battered-woman's syndrome. As our Legislature noted in its findings included in the Prevention of Domestic Violence Act, "there is a positive correlation between spouse abuse and child abuse...." N.J.S.A. 2C:25-2. Given the critical importance of the proof of the battered-woman's syndrome in this case, we are inclined to believe that, on balance, such testimony should have been admitted. We are aware that in the context of an appellate review, a decision of a trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted. State v. Carter, 91 N.J. 86, 106 (1982); State v. Boratto, 80 N.J. 506 (1979); State v. Rogers, 19 N.J. 218 (1955); Hill v. Newman, 126 N.J. Super. 557 (App.Div. 1973), certif. den., 64 N.J. 508 (1974); Evid.R. 4, Comment 2. Nevertheless, absent any significant new factor bearing on this issue, the trial court on remand should allow the testimony, giving such appropriate instruction to the jury as will minimize the possibility of its prejudicial impact.
B.
Defense counsel also contends that the trial court erred in allowing the State to question defendant about her earlier conviction. Counsel asserts that the trial court "lost sight" of the grounds for admitting defendant's prior record. This claim is without merit.
Ms. Kelly was convicted of conspiracy to commit robbery in 1971, and over defense counsel's objection the trial court ruled that evidence of the earlier conviction was admissible. During cross-examination, the prosecution questioned Ms. Kelly about her earlier conviction:
[217] Q. Mrs. Kelly, have you ever been convicted of a crime?
A. Yes, once.
Q. What were you convicted of?
A. Conspiracy to robbery with some — two other peoples was involved —
Q. You were convicted of conspiracy to commit robbery?
A. Yes.
Q. When was that?
A. Nine years ago, I think.
Q. 1971?
A. Something like that. I was given three years probation....
That was the only time during the two week trial that evidence as to Ms. Kelly's prior conviction was elicited or referred to.
Prior convictions ordinarily may be used to impeach the defendant's credibility. State v. Sands, 76 N.J. 127, 146 (1978); N.J.S.A. 2A:81-12. The trial court, recognizing that, instructed the jury as to the limited purpose for which it could consider Ms. Kelly's conspiracy conviction:
The only reason you heard that testimony was not because if you find that she committed a crime in 1971, therefore she must have committed this crime with which she is charged. The only reason you may use that if you wish to is to affect her believability as a witness. That is the sole and exclusive purpose of hearing that and using that evidence.
There was no error on this point.[21]
C.
We reject defendant's contention that the prosecutor's conduct denied the defendant her right to receive a fair trial. The defense claims that the prosecutor improperly used closing arguments to glorify her function as a prosecutor and make an inflammatory appeal to the jury, and used her opening statement [218] to suggest that Ms. Kelly's indictment was evidence of guilt. These complaints were not raised at trial, and thus need not be dealt with in the same way as those raised by a timely challenge. State v. Macon, 57 N.J. 325, 333 (1971). We note, however, that the trial court properly instructed the jury that the indictment is not proof of guilt, and our review of the closing statement does not reveal plain error. R.2:10-2. The prosecutor neither exalted her role at length, nor disparaged the role of defense counsel. See State v. Thornton, 38 N.J. 380 (1962), cert. denied, 374 U.S. 816, 83 S.Ct. 1710, 10 L.Ed.2d 1039 (1963). Nor did the prosecutor's closing remarks exceed the wide latitude permitted counsel during summation. See State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969).
Defendant also claims that the prosecutor was too aggressive, asked improper questions about Ms. Kelly's personal life in an attempt to cast aspersions on defendant's moral character, and made too many objections, most of which were overruled. While not condoning all aspects of the prosecutor's conduct, we conclude that, in the context of the entire trial, it did not cause defendant to be denied a fair trial. See State v. Tirone, 64 N.J. 222, 229 (1974). There were sufficient facts on which the jury could base its finding of guilt on the reckless manslaughter charge. In light of the entire record, any impropriety that did occur was harmless and incapable of producing an unjust result. See State v. LaPorte, 62 N.J. 312 (1973); R. 2:10-2.
D.
The defendant argues that the charge to the jury regarding provocation as an element of manslaughter was in error because it did not state that reasonable and sufficient provocation may arise from a course of ill treatment. We agree that the instructions on provocation were deficient. It is well settled that when there is evidence of prior physical abuse [219] of defendant by the decedent, the jury must be told that a finding of provocation may be premised on "a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue." State v. Guido, 40 N.J. 191, 211 (1963). The jury must be instructed "to consider not only decedent's conduct and threats that night, but also his prior mistreatment of defendant." State v. Lamb, 71 N.J. 545, 551 (1976). On retrial, this aspect of the trial court's instruction should be changed.[22]
E.
Ms. Kelly also contends that the sentence imposed — five years in state prison — was excessive. She asserts that imprisonment would result in a serious injustice that overrides the need to deter such conduct by others, N.J.S.A. 2C:44-1(d), and that she should instead be granted probation or entry into a release program. She cites several mitigating factors, including her abuse at the hands of Mr. Kelly and her children's need to have their mother at home.
The presumptive sentence for a second degree crime is seven years. N.J.S.A. 2C:44-1(f)(1). In ordering a sentence of five years, the trial court agreed with defendant that there was a preponderance of mitigating factors, allowing it to sentence [220] her to a minimum term for a second degree crime. N.J.S.A. 2C:43-6(a)(2); 2C:44-1(f)(1). See State v. Roth, 95 N.J. 334, 359, 471 A.2d 370 (1984). Although we appreciate the hardship that would result from defendant's incarceration, she is not the truly extraordinary defendant whose imprisonment would represent the "serious injustice" envisioned by the Criminal Code. Roth, supra, 95 N.J. at 358.[23]
HANDLER, J., concurring in part and dissenting in part.
The record in this case persuasively establishes the professional acceptance and scientific reliability of the clinical psychological condition referred to as the "battered women's syndrome." Therefore, I would rule that expert evidence of the battered women's syndrome is both competent and relevant as related to the defense of self-defense. Consequently, no further expert testimony or evidence concerning the admissibility [221] of this doctrine should be required on a retrial of this case. I would also allow into evidence on the retrial the testimony of defendant's expert that defendant was suffering battered women's syndrome when she killed her husband. That testimony was unquestionably relevant to defendant's claim of self-defense. In addition, the evidence in this case indicates that repeated sexual and physical victimization of a woman's children may, in conjunction with her own abused treatment, contribute to the development of battered women's syndrome. I therefore concur in the majority's determination to allow on a retrial evidence of the decedent's sexual assaults upon defendant's daughter as related to the issue of the battered women's syndrome and defendant's defense of self-defense.
The Court in this case takes a major stride in recognizing the scientific authenticity of the battered women's syndrome and its legal and factual significance in the trial of certain criminal cases. My difference with the Court is quite narrow. I believe that defendant Gladys Kelly has demonstrated at her trial by sufficient expert evidence her entitlement to the use of the battered women's syndrome in connection with her defense of self-defense. I would therefore not require this issue — the admissibility of the battered women's syndrome — to be tried again.
I
This Court's opinion presents a cogent and thorough explanation of the perplexing and tragic condition of the battered women's syndrome. This condition refers to a congeries of common traits in women who are subjected to prolonged physical and psychological abuse by their mates. Women suffering battered women's syndrome have low self-esteem, strong feelings of personal guilt over their failing marriages, and self-blame for the violence that their mates inflict upon them. Ante at 195-196, citing L. Walker, The Battered Woman 35-36 (1979) (Walker). Typically, such battered women are dominated [222] by unshakeable fear, which often traps them into remaining with their battering mates. Id., citing D. Martin, Battered Wives 76-79 (1981) (Martin). Victims of battered women's syndrome frequently become so demoralized and degraded that they lapse into a psychological torpor, a state of "learned helplessness." Ante at 194-195, citing Walker, supra, at 75.
The relationships that typify the syndrome usually involve cyclical behavior. One recurrent phase of the cycle includes a period of contrite behavior by the batterer, which reinforces the illusion of these victimized women that their mates will change and reform, further binding them to the relationship. Ante at 193, citing Walker, supra, at 55-70; R. Langley & R. Levy, Wife Beating: The Silent Crisis 112-14 (1977). Many battered women perceive the battering cycle as commonplace, and refuse to acknowledge the abnormality of their plight. Ante at 194, citing T. Davidson, Conjugal Crime (1978); Battered Women, A Psychosociological Study of Domestic Violence 60 (M. Roy ed. 1977); Martin, supra, at 60.
The Court's opinion explains that the abusive pattern that characterizes this syndrome is a phenomenon that puzzles and confuses the untutored lay person. The violence common to the syndrome is the subject of widespread ignorance and misinformation. It has spawned myths as to its causes and distorted stereotypes of its victims. Ante at 192. Some common misconceptions about battered women include the beliefs that they are masochistic and actually enjoy their physical and psychological suffering, that they purposely provoke their mates into violent behavior and, most critically, that women who remain in battering relationships are free to leave their abusers at any time. Id., citing Walker, supra, at 19-31.
This Court's enlightened exposition of the battered women's syndrome, drawn from the record in this case lays a firm foundation for a determination of the admissibility of expert testimony relating to the syndrome in the trial of particular [223] criminal causes under the Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq., and our rules of evidence.
II
Evidence Rule 56(2) provides that an expert may testify "as to matters requiring scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or determine a fact in issue." In effect, this rule imposes three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. See N.J. Rules of Evidence (Anno. 1984), Comment 5 to Evid.R. 56; State v. Cavallo, 88 N.J. 508 (1982); State v. Hurd, 86 N.J. 525 (1981).
The first criterion for the admission of expert testimony under Evidence Rule 56(2) is that the subject matter is fully comprehended primarily by experts, persons who have special training and education in the particular field. Correlatively, the subject matter ordinarily falls beyond the common understanding of persons of average intelligence and education. In this case, it has been firmly established that the battered women's syndrome is a subject that is properly within the special comprehension of experts. Also, as the record abundantly demonstrates, the battered women's syndrome is a subject that is not fully understood by the average person. Consequently, it is an appropriate matter for elucidation through expert testimony. State v. Griffin, 120 N.J. Super. 13, 29 (App. Div. 1972), certif. den. 62 N.J. 73 (1972); Nesta v. Meyer, 100 N.J. Super. 434 (App.Div. 1968), cited in State v. Cavallo, supra, 88 N.J. at 518; Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 85 (App.Div. 1961).
The second requirement of Evidence Rule 56(2) that must be met before expert testimony on a particular subject is permitted [224] is a showing that the proposed testimony would be reliable. State v. Cavallo, supra, 88 N.J. at 516-17 (1982). There must be a sufficient scientific basis for the expert testimony. The asserted scientific body of knowledge must be considered reliable by those who have professional training and responsibility in the field. Romano v. Kimmelman, 96 N.J. 66, 80 (1984); State v. Hurd, supra, 86 N.J. at 536; State v. Cary, 49 N.J. 343, 352 (1967).
There are generally three ways a proponent of expert testimony can prove its reliability in terms of its general acceptance within the professional community. First, such general acceptance can be established by the testimony of knowledgeable experts. Second, authoritative scientific literature can be used to establish professional acceptance. Finally, persuasive judicial decisions that acknowledge such general acceptance of expert testimony can be followed. State v. Cavallo, supra, 88 N.J. at 521.
These criteria for the admissibility of expert testimony relative to the battered women's syndrome have been met in this case. Because the battered women's syndrome is a relatively new field of research, only a few courts have had the opportunity to consider its evidential admissibility. Some courts have already acknowledged the scientific acceptability of the syndrome and the reliability of the methodology used by practitioners and researchers in this field. See, e.g., State v. Allery, 101 Wash.2d 591, 596, 682 P.2d 312, 315 (1984) (en banc) (battered women's syndrome sufficiently accepted in scientific community and sufficiently outside lay competence so as to be appropriate subject of expert testimony in criminal trial); State v. Anaya, 438 A.2d 892 (Me. 1981); Smith v. State, 247 Ga. 612, 277 S.E.2d 678 (1981). Other courts have not yet done so. Compare Hawthorne v. State, 408 So.2d 801 (Fla. Dist. Ct. App. 1982), petition for review denied, 415 So.2d 1361 (Fla. 1982) and Ibn-Tamas v. United States, 407 A.2d 626 (D.C.Ct.App. 1979) (remanding to trial court for further consideration of scientific acceptability) with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981) [225] and State v. Thomas, 66 Ohio St.2d 518, 423 N.E.2d 137 (1981) (holding that subject was not sufficiently established as a matter of scientific expertise). In light of the compelling record that has been established in this case, I am persuaded of the soundness of those decisions that have concluded that the battered women's syndrome constitutes a valid subject of expert testimony. I am satisfied that these decisions are correct and will emerge as the authoritative position on this issue.
The record before us, based on expert testimony, including scientific writings, further reveals that the battered women's syndrome has gained general acceptance as a scientific doctrine within the professional community. Dr. Lois Veronen, a highly qualified expert in the field, testified that the battered woman's syndrome is acknowledged and accepted by practitioners and researchers in the fields of psychology and psychiatry. In addition, Dr. Veronen testified to the existence of numerous authoritative books, articles and papers evidencing the scientifically recognized, expanding field of study and research about the battered woman's syndrome. See Buckelew v. Grossbard, 87 N.J. 512 (1981); Calabrese v. Trenton State College, 82 N.J. 321 (1980). The abundance of this authoritative literature was also made evident on this appeal — over 70 scientific articles and several books have been published on the subject. Dr. Veronen further testified that, since 1977, the battered women's syndrome has been recognized at several symposiums sponsored by such organizations as the Association for the Advancement of Behavior Therapy and the American Sociological Association. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197 (1980) (under appropriate circumstances, speeches, addresses, and other non-written sources may be used to demonstrate the acceptance of a premise by the scientific community).
Public policy considerations complement these traditional modes for determining whether a particular subject matter is reliable and within the purview of expert knowledge. An [226] emerging public policy acknowledges the battered women's syndrome. Psychiatrists, psychologists, and social scientists, as well as the legal and law enforcement community, have begun to come to grips with the forces that generate and perpetuate familial and domestic violence. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); Martin, supra; Walker, supra; R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy, ed. 1977). The New Jersey Legislature has recognized the pervasiveness and gravity of domestic violence, which in so many cases forms the backdrop against which the battered women's syndrome appears. See Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16; Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to -17; New Jersey Supreme Court Task Force on Women in the Courts, Summary Report at 5-6 (Nov. 21, 1983). The Legislature was presumably aware of the burgeoning expert opinion and literature that recognized the battered women's syndrome as both a contributing cause and devastating consequence of domestic and familial violence. This growing awareness extends to the national level as well, as evidenced, for example, by the U.S. Attorney General's formation, in September 1983, of a task force on family violence "to review [the] basic assumptions that underpin the handling of [domestic] violence cases." Statement of Attorney General William French Smith, September 19, 1983.
The final requirement of Evidence Rule 56(2) for the admission of expert testimony is the showing that the proffered expert witness has sufficient expertise to testify. State v. Cavallo, supra, 88 N.J. at 516. In this case, as recognized by the Court, Dr. Veronen was clearly highly qualified to testify as an expert with respect to the psychological condition of battered women's syndrome. Ante at 211. Furthermore, her proffered testimony fully met the standards for the receipt of expert testimony concerning the battered women's syndrome.
[227] In addition to her general knowledge of the battered women's syndrome, Dr. Veronen was familiar with the facts in this case and competent to testify in that regard. Dr. Veronen described the various psychological tests and examinations she had performed in connection with her independent research and the application of this methodology to defendant. Dr. Veronen was prepared to express her professional opinion that Gladys Kelly was an abused woman suffering from battered women's syndrome when she fatally stabbed her husband.
In sum, the record fashioned in this case convincingly demonstrates, through the testimony of an eminently qualified expert witness, that expert testimony concerning the battered women's syndrome is now generally accepted and regarded as reliable within the professional community. Its competence and relevance as evidence in the trial of particular criminal cases has been shown. The battered women's syndrome is sufficiently reliable to authorize its admissibility as a proper subject of expert testimony. In my view, this evidence should have been allowed in the trial of this case.
III
I concur in the majority's determination that the testimony of defendant's seventeen-year-old daughter, Edith Cannon, concerning the decedent's beatings of Gladys and her children, should have been admitted into evidence at the trial. Ante at 215-216. Defendant's daughter was also prepared to testify that she had been sexually abused by decedent since she was 12 years of age and had related this to her mother. However, the trial judge, on the basis of Evidence Rule 4, excluded Edith's testimony that she had told her mother about the decedent's sexual assaults upon her.
The expert evidence fairly shows that such circumstances — the physical and sexual abuse of battered women's children — cannot be separated from all of the factors that contribute to the syndrome. Such child abuse occurs in 75% of the battering [228] relationships that eventuate in homicide, and frequently constitutes a "critical factor in the tension * * * before some lethal incidents." Walker, supra, at 11. Consequently, such evidence of child abuse is relevant in a case in which the battered women's syndrome is a material issue.
To reiterate, expert testimony on the battered women's syndrome and the applicability of this syndrome to the defendant's claim of self-defense should be allowed on the retrial of this case. Evidence of the victim's abuse of the defendant's children, including sexual assaults on her daughter, are part of the dismal composite that constitutes the battered women's syndrome. Such evidence is highly probative of the issue of self-defense in the context of the battered women's syndrome and its evidential worth clearly outweighs its potential for prejudice or confusion.
IV
In sum, I believe the Court acts without sufficient warrant in remanding this case to permit the issue of the general admissibility of expert testimony on the battered women's syndrome to be tried anew. The record reveals that the issue of admissibility was fairly presented at trial. That record has generated an evidential base sufficiently solid to permit, if not mandate, our acceptance of the battered women's syndrome as expert doctrine. While it is arguable that the State did not fully challenge the evidence below, its position on appeal is essentially that the evidence proffered at the trial was not adequate to establish the scientific reliability of the battered women's syndrome. The Court now unanimously rejects that position. I think it pointless and unfair to encourage the State to renew its attacks upon the authenticity of the battered women's syndrome doctrine.
For the reasons expressed, I dissent in part from the Court's decision.
[229] For reversal — Chief Justice WILENTZ, and Justices CLIFFORD, SCHREIBER, POLLOCK, O'HERN and GARIBALDI — 6.
Concurring in part and dissenting in part — Justice HANDLER — 1.
[1] This version of the homicide — with a drunk Mr. Kelly as the aggresor both in pushing Ms. Kelly to the ground and again in rushing at her with his hands in a threatening position after the two had been separated — is sharply disputed by the State. The prosecution presented testimony intended to show that the initial scuffle was started by Gladys; that upon disentanglement, while she was restrained by bystanders, she stated that she intended to kill Ernest; that she then chased after him, and upon catching up with him stabbed him with a pair of scissors taken from her pocketbook.
[2] The works that comprise the basic study of the problem of battered women are all relatively recent. See, e.g., R. Langley & R. Levy, Wife Beating: The Silent Crisis (1979); D. Martin, Battered Wives (1976); L. Walker, The Battered Woman (1979); R. Gelles, The Violent Home: A Study of Physical Aggression between Husbands and Wives (1971); Battered Women: A Psychosociological Study of Domestic Violence (M. Roy ed. 1977).
Similarly, legislative activity in this field is relatively new; for example, New Jersey's Prevention of Domestic Violence Act, L. 1981, c. 426, N.J.S.A. 2C:25-1 to -16 and the Shelters for Victims of Domestic Violence Act, L. 1979, c. 337, N.J.S.A. 30:14-1 to-17.
In enacting the Prevention of Domestic Violence Act, the New Jersey Legislature recognized the pervasiveness and seriousness of domestic violence:
The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all societal and economic backgrounds and ethnic groups; that there is a positive correlation between spouse abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide. [N.J.S.A. 2C:25-2].
[3] In her book, The Battered Woman, Dr. Lenore Walker cites research by sociologists Straus, Gelles, and Steinmetz finding that in 1976 at least one assault between family members occurred in 28% of all American homes. Id. at 70.
[4] In 1976, for example, battered women in California and New York instituted class actions alleging that the police customarily denied women legal protection by refusing to assist battered women or arrest their abusing husbands. The cases were settled by consent judgment. Scott v. Hart, No. C-76-2395 (N.D.Cal., filed Oct. 28, 1976); Bruno v. Codd, 90 Misc.2d 1047, 396 N.Y.S.2d 974 (Sup.Ct. 1977), aff'd, 47 N.Y.2d 582, 393 N.E.2d 976, 419 N.Y.S.2d 901 (1979).
[5] Alcohol is often an important component of violence toward women. Evidence points to a correlation between alcohol and violent acts between family members. In one British study, 44 of 100 cases of wife abuse occurred when the husband was drunk. Gayford, "Wife Battering: A Preliminary Survey of 100 Cases," British Medical Journal 1:194-197 (1975). Gelles, in The Violent Home: A Study of Physical Aggression between Husbands and Wives (1979), found that in 44 families where violence had occurred, drinking accompanied the violence in 21 of the cases. He also posited that alcohol and family violence are more closely related than alcohol and other types of violence.
[6] Prior to the enactment of the Code, former N.J.S.A. 2A:113-6 provided a statutory basis for self-defense claims specifically and justification defenses generally. However, as noted by the New Jersey Criminal Law Revision Commission, the law concerning justification was that found in the cases, since the literal wording of 2A:113-6 was not followed. Final Report of the New Jersey Criminal Law Revision Commission Vol. II: Commentary, at 78-79 (1971).
[7] See also Restatement of Torts 2d § 63 (1965) at 101. Under principles of self-defense as a justification for the torts of assault and battery — which closely parallel criminal self-defense principles — no privilege of self-defense exists for one acting in ignorance of another's intent to inflict harm on him. Cf. Perkins, "Self-Defense Re-examined," 1 U.C.L.A.L.Rev. 133, 134 (1954).
[8] The rejected form of § 2C:3-4 was patterned after § 3.04 of the Model Penal Code. The purpose of the proposed Code and M.P.C. provisions was to prevent one who killed in the honest but mistaken and unreasonable belief in the necessity of the action from being convicted of a crime like murder, which is premised on an act motivated by unlawful purpose. See Model Penal Code § 3.04 commentary at 14-15 (Tent. Draft No. 8 1958); Commission Report, supra, Vol. II: Commentary, at 83-84.
[9] In State v. Powell, 84 N.J. 305 (1980), we explicitly recognized that before enactment of the Code the doctrine of imperfect self-defense could reduce murder to manslaughter when the defendant honestly but unreasonably perceived himself in such danger as to require the use of deadly force. However, we expressed no opinion on whether imperfect self-defense was available under the new Code for the purpose of reducing murder to manslaughter. The resolution of that issue is immaterial to the case at bar.
[10] The factual contentions of the parties eliminated any issue concerning the duty to retreat. If the State's version is accepted, defendant is the aggressor; if defendant's version is accepted, the possibility of retreat is excluded by virtue of the nature of the attack that defendant claims took place. We do not understand that the State claims defendant breached that duty under any version of the facts. If, however, the duty becomes an issue on retrial, the trial court will have to determine the relevancy of the battered-woman's syndrome to that issue. Without passing on that question, it appears to us to be a different question from whether the syndrome is relevant to defendant's failure to leave her husband in the past.
[11] The State may not bar the introduction of expert testimony about the battered-woman's syndrome by stipulating that the defendant's fear of serious bodily harm was honestly held. In State v. Laws, 50 N.J. 159 (1967), we rejected the suggestion that the State should be compelled to stipulate to — and not introduce evidence on — those facts that the defendant did not dispute. We held that subject to the trial court's overriding control of the proceedings, the State "should have the right to make a full showing before the jury whenever it considers such course necessary for the proper presentation of its case." Id. at 184. Similar considerations compel the same result here, should the defendant seek to introduce testimony on a fact — the honesty of defendant's fear of serious bodily harm — that the State does not contest. This holding protects the defendant's due process rights by allowing her to offer testimony to establish a defense. See Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 353, 34 L.Ed.2d 330, 333 (1972) (citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967)). Without the introduction of expert testimony to dispel common misconceptions about battered women, a jury might well question the stipulation of honesty.
[12] The State contends that even if the expert testimony is held admissible, its exclusion should be considered harmless error because of defendant's conviction for reckless manslaughter. The State's position is that under N.J.S.A. 2C:3-9(b) as it existed at the time of Gladys Kelly's conviction, self-defense was not available as a defense for any offense for which recklessness or negligence suffices to establish culpability, including, presumably, offenses where the defendant was reckless or negligent in believing the use of force to be necessary, or in acquiring or failing to acquire any knowledge that is material to the justifiability of the use of force. The argument, therefore, is that the expert testimony could not have saved defendant from the reckless manslaughter verdict.
N.J.S.A. 2C:3-9(b) was never intended to serve the function ascribed to it by the State. In fact, inclusion of the provision in the Code appears to have been an error, which has since been corrected by its repeal. See L. 1981, c. 290. The reasons for the inclusion and repeal of this provision are concisely stated in the legislative history of the repealer:
As originally drafted, justification defenses (i.e. self-defense) under the code were available to a defendant if his belief in the necessity of the use of force was honestly held. In conjunction with this provision, the code also provided in 2C:3-9b that if the defendant was reckless or negligent in forming that belief, he could be convicted of a crime for which recklessness or negligence was the required mental element. As enacted, however, the code requires not only that a defendant's belief be honestly held but also that his belief in the necessity to use force be reasonable. This requirement that a defendant's belief be both honest and reasonable vis a vis a justification defense obviates the necessity for the provision in 2C:3-9b that the reckless or negligent use of force can establish criminal liability. Therefore, the amendment in section 7 would delete this provision. [Senate Judiciary Committee, Statement to Committee Substitute for S. 2537 at 2 (1982)].
In other words, when the original draft of the Code provided that an honest belief in the need for deadly force sufficed to establish self-defense, the Code had to deal with the situation in which that belief, though honest, had been recklessly formed. The subsequently repealed section, N.J.S.A. 2C:3-9(b), performed that function by providing that such an honest belief, recklessly formed, was no justification for offenses when culpability was based on that very same recklessness. The Code as passed, however, defined self-defense as requiring a reasonable belief, thereby rendering section 9(b) unnecessary since, under that definition, self-defense could not be established as a justification for any offense if the actor's belief in the need for force, though honest, was recklessly formed, i.e., was unreasonable. The repealer simply clarified the legislative intent that existed when the Code first became law, which was that self-defense based on a reasonable belief in the need for deadly force would constitute justification — a complete defense — to the charge of reckless manslaughter. If the jury here found defendant's belief was both honest and reasonable, it would be required to acquit her of all charges.
[13] At least two other courts agree that expert testimony about the battered-woman's syndrome is relevant to show the reasonableness as well as the honesty of defendant's fear of serious bodily harm. Ibn-Tamas v. United States, 407 A.2d 626, 634-35 (D.C. 1979) (expert testimony "would have enhanced Mrs. Ibn-Tamas' general credibility in responding to cross-examination designed to show that the testimony about the relationship with her husband was implausible," and also "would have supplied an interpretation of the facts which differed from the ordinary lay perception"); Hawthorne v. State, 408 So.2d 801, 806-07 (Fla. Dist. Ct. App. 1982) (expert testimony would "aid the jury in interpreting the surrounding circumstances as they affected the reasonableness of [defendant's] belief," because "a jury would not understand why [defendant] would remain [with her husband]"); State v. Allery, 101 Wash.2d 591, 682 P.2d 312, 316 (Wash.Sup.Ct. 1984) (court approved use of expert testimony "[t]o effectively present the situation as perceived by the defendant, and the reasonableness of her fear ... to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships"). But see Commonwealth v. Light, 458 Pa. 328, 326 A.2d 288 (1974) (psychiatric testimony held to be of no help in determining whether a fear of serious bodily harm was reasonable).
Defendant's counsel at oral argument made it clear that defendant's basic contention was that her belief in the immediate need to use deadly force was both honest and reasonable; and that the evidence concerning the battered-woman's syndrome was being offered solely on that issue. We therefore are not faced with any claim that a battered woman's honest belief in the need to use deadly force, even if objectively unreasonable, constitutes justification so long as its unreasonableness results from the psychological impact of the beatings. The effect of cases like State v. Sikora, 44 N.J. (1965) (opinion of psychiatrist that acts of defendant, admittedly sane, were predetermined by interaction of events and his abnormal character held inadmissible on issue of premeditation), and State v. Bess, 53 N.J. 10 (1968) (reasonableness of belief in need for deadly force not measured by what would appear "reasonable" to abnormal defendant) is not before us. Nor is there any claim that the battering provocation might have some legal effect beyond the potential reduction of defendant's culpability to manslaughter, or something other than an "immediate" need for deadly force will suffice. See State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983), (battered wife stabs sleeping husband).
[14] Of course, expert testimony that meets these three criteria is still subject to other rules of evidence. For example, the probative value of the testimony must not be substantially outweighed by the risk that its admission would necessitate undue consumption of time or create substantial danger of undue prejudice or of confusing the issues or of misleading the jury. Evid. R. 4. The danger of undue prejudice would be only slightly greater if expert testimony on the battered-woman's syndrome is introduced than without it, however, because the jury, even without it, will certainly hear about the past beatings from lay witnesses.
[15] The following courts agree that the battered-woman's syndrome is beyond the understanding of the average person: Ibn Tamas v. United States, supra, 407 A.2d 626; Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678; Hawthorne v. State, supra, 408 So.2d 801; State v. Anaya, supra, 438 A.2d 892. But see State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137.
[16] Compare State v. Anaya, supra, 438 A.2d 892, and Smith v. State, supra, 247 Ga. 612, 277 S.E.2d 678 (both cases accepting expert testimony without reservation), with Hawthorne v. State, supra, 408 So.2d 801, and Ibn-Tamas v. United States, supra, 407 A.2d 626 (both cases remanding to trial court for further consideration of scientific acceptability), and with Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), and State v. Thomas, supra, 66 Ohio St.2d 518, 423 N.E.2d 137 (both cases holding that subject was not sufficiently established as a matter of scientific expertise).
[17] Under appropriate circumstances, speeches, addresses, and other similar sources may be used to demonstrate the acceptance of a premise by the scientific community. See Giannelli, "The Admissibility of Novel Scientific Evidence: Frye v. United States, a Half-Century Later," 80 Colum.L.Rev. 1197, 1217 (1980).
[18] In addition to her general knowledge of the battered-woman's syndrome, Dr. Veronen is quite familiar with the facts in this case. Dr. Veronen interviewed Ms. Kelly for approximately five hours, during which time the two spoke about Ms. Kelly's background, Ms. Kelly's first meeting with Mr. Kelly, Ms. Kelly's relationship with her children and Mr. Kelly, the history of the physical abuse she suffered, and her stabbing of Mr. Kelly. Dr. Veronen also reviewed several psychological tests that were administered to Ms. Kelly, and from those concluded that Ms. Kelly was a battered woman. In addition, Dr. Veronen reviewed statements of eyewitnesses to the stabbing, police reports, and Ms. Kelly's hospital reports following the stabbing.
[19] It is not contended by anyone that the battered woman's syndrome has been so well established in the scientific community and is so well known by the public as to authorize the Court to take judicial notice of it. Therefore, unlike some expert evidence (radar, for example, State v. Dantonio, 18 N.J. 570 (1955)) where all that is required is to show that the accepted body of scientific knowledge is being correctly applied, here the very existence and reliability of such scientific knowledge has to be established. As a matter of fact, the literature suggests that while there is a growing body of research concerning the syndrome, it is still in a relatively uncertain stage, there remaining some doubt about its validity. It is, therefore, necessary for this Court to be sure that on remand the State has an adequate opportunity to present such proofs as might persuade the trial court that the syndrome has not yet achieved sufficient acceptance in the scientific community to warrant its admissibility. While our dissenting colleague is apparently convinced both from the record and his own research that as a matter of law the syndrome has achieved that level of acceptability to warrant its admission, that procedure, leading to that conclusion, seems to us manifestly unfair to the State. Even if we were inclined to agree with our dissenting colleague on this issue, that would be beside the point, for what is involved here is not the correctness of the conclusion concerning the general acceptability within the scientific community of the battered-woman's syndrome, but the fundamental fairness of the proceedings in the trial court that might lead to such a conclusion. It is absolutely clear that the only proceedings concerning the syndrome before the trial court was the voir dire testimony of Dr. Veronen, that the State was permitted cross-examination only as to her qualifications, and that the court repeatedly assured the assistant prosecutor that "ample time" would be given on all issues concerning the syndrome. Not only was "ample time" not given, but no time was allowed, for the trial court, apparently believing that the proposed use of this testimony had been made clear, decided that the testimony would be inadmissible as a matter of law even if the witness were ruled to be an expert and even if the body of knowledge were ruled to be beyond the ken of jurors and generally accepted within the scientific community. The court's ruling that the expert's testimony was inadmissible was prefaced by the following statement: "I fully appreciate you have not had another opportunity to examine the Witness, Mrs. Cooper," the remark of the court being addressed to the assistant prosecutor. Throughout the transcript there were repeated references by the court and Mrs. Cooper to the fact that her role, up to that point, had been confined to cross-examination only on the witness's qualifications.
[20] Evidence Rule 4 provides:
The judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will either (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice or of confusing the issues or of misleading the jury.
[21] The trial court has discretion to bar the admission of prior convictions if it finds that their probative value is outweighed by their prejudice to the defendant. State v. Sands, supra, 78 N.J. at 146. The burden of proving that the prior convictions should be excluded, however, falls on the defendant. Ibid. We do not find that the trial court abused its discretion in allowing the limited testimony cited earlier, even though the remoteness of Ms. Kelly's earlier conviction would also have supported a ruling that her conspiracy conviction could not be brought out.
[22] We note that given defendant's conviction for reckless manslaughter under N.J.S.A. 2C:11-4(b)(1), these instructions would not constitute harmful error. Both reckless homicide and homicide committed in the heat of passion resulting from a reasonable provocation constitute manslaughter, and both are crimes of the second degree. N.J.S.A. 2C:11-4(b), (c). Defendant's conviction for reckless manslaughter instead of manslaughter by provocation, therefore, did not prejudice her in terms of sentencing. Neither did it produce a compromise verdict of the type referred to in State v. Christener, 71 N.J. 55 (1976) where the concern was with the prejudicial effect of overcharging the jury by giving instructions on first degree murder that were not sufficiently supported by the evidence. This is easily distinguishable from the problem here, which involves only a deficient instruction for an alternate theory of the offense for which the defendant actually was convicted.
[23] We note that under the Code even if it is certain that the actor's life will soon be threatened, the actor may not use deadly defensive force until that threat is imminent. If he or she does, the crime in most cases would presumably be murder or manslaughter (see N.J.S.A. 2C:3-4a & 4b(2); 2C:11-3; 2C:11-4b), the last exposing the actor to a sentence of ten years in prison with a five-year discretionary parole ineligibility term or, if a firearm is used, a three-year mandatory parole ineligibility term. N.J.S.A. 2C:43-6a, b & c. The requirement that the use of deadly force, in order to be justifiable, must be immediately necessary, has as its purpose the preservation of life by preventing the use of deadly force except when its need is beyond debate. The rule's presumed effect on an actor who reasonably fears that her life will soon be endangered by an imminent threat is to cause her to leave the danger zone, especially if, because of the circumstances, she knows she will be defenseless when that threat becomes imminent. The rule, in effect, tends to protect the life of both the potential aggressor and victim. If, however, the actor is unable to remove herself from the zone of danger (a psychological phenomenon common to battered women, according to the literature), the effect of the rule may be to prevent her from exercising the right of self-defense at the only time it would be effective. Instead she is required by the rule to wait until the threat against her life is imminent before she responds, at which time she may be completely defenseless.
There is, of course, some danger that any attempt to mitigate what may be undeserved punishment in these cases (by some further statutory differentiation of criminal responsibility) might weaken the general deterrent effect of our homicide laws. That is a matter the Legislature might wish to examine.
7.2.8.5.1.1.5. Model Penal Code Section 3.09
7.2.8.5.1.1.6 State v. Norman 7.2.8.5.1.1.6 State v. Norman
STATE of North Carolina
v.
Judy Ann Laws NORMAN.
Supreme Court of North Carolina.
[9] Lacy H. Thornburg, Atty. Gen., by Steven F. Bryant, and Jeffrey P. Gray, Asst. Atty. Gen., for appellant State.
Robert W. Wolf, Forest City, and Robert L. Harris, Rutherfordton, for defendant-appellee.
MITCHELL, Justice.
The defendant was tried at the 16 February 1987 Criminal Session of Superior Court for Rutherford County upon a proper indictment charging her with the first degree murder of her husband. The jury found the defendant guilty of voluntary manslaughter. The defendant appealed from the trial court's judgment sentencing her to six years imprisonment.
The Court of Appeals granted a new trial, citing as error the trial court's refusal to submit a possible verdict of acquittal by reason of perfect self-defense. Notwithstanding the uncontroverted evidence that the defendant shot her husband three times in the back of the head as he lay sleeping in his bed, the Court of Appeals held that the defendant's evidence that she exhibited what has come to be called "the battered wife syndrome" entitled her to have the jury consider whether the homicide was an act of perfect self-defense and, thus, not a legal wrong.
We conclude that the evidence introduced in this case would not support a finding that the defendant killed her husband due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning either perfect or imperfect self-defense. Therefore, the trial court properly declined to instruct the jury on the law relating to self-defense. Accordingly, we reverse the Court of Appeals.
At trial, the State presented the testimony of Deputy Sheriff R.H. Epley of the Rutherford County Sheriff's Department, who was called to the Norman residence on the night of 12 June 1985. Inside the home, Epley found the defendant's husband, John Thomas Norman, lying on a bed in a rear bedroom with his face toward the wall and his back toward the middle of the room. He was dead, but blood was still coming from wounds to the back of his head. A later autopsy revealed three gunshot wounds to the head, two of which caused fatal brain injury. The autopsy also revealed a .12 percent blood alcohol level in the victim's body.
Later that night, the defendant related an account of the events leading to the killing, after Epley had advised her of her constitutional rights and she had waived her right to remain silent. The defendant told Epley that her husband had been beating her all day and had made her lie down on the floor while he slept on the bed. After her husband fell asleep, the defendant carried her grandchild to the defendant's mother's house. The defendant took a pistol from her mother's purse and walked the short distance back to her home. She pointed the pistol at the back of her sleeping husband's head, but it jammed the first time she tried to shoot him. She fixed the gun and then shot her husband in the back of the head as he lay sleeping. After one shot, she felt her husband's chest and determined that he was still breathing and making sounds. She then shot him twice more in the back of the head. The defendant told Epley that she killed her husband because "she took all she was going to take from him so she shot him."
The defendant presented evidence tending to show a long history of physical and mental abuse by her husband due to his [10] alcoholism. At the time of the killing, the thirty-nine-year-old defendant and her husband had been married almost twenty-five years and had several children. The defendant testified that her husband had started drinking and abusing her about five years after they were married. His physical abuse of her consisted of frequent assaults that included slapping, punching and kicking her, striking her with various objects, and throwing glasses, beer bottles and other objects at her. The defendant described other specific incidents of abuse, such as her husband putting her cigarettes out on her, throwing hot coffee on her, breaking glass against her face and crushing food on her face. Although the defendant did not present evidence of ever having received medical treatment for any physical injuries inflicted by her husband, she displayed several scars about her face which she attributed to her husband's assaults.
The defendant's evidence also tended to show other indignities inflicted upon her by her husband. Her evidence tended to show that her husband did not work and forced her to make money by prostitution, and that he made humor of that fact to family and friends. He would beat her if she resisted going out to prostitute herself or if he was unsatisfied with the amounts of money she made. He routinely called the defendant "dog," "bitch" and "whore," and on a few occasions made her eat pet food out of the pets' bowls and bark like a dog. He often made her sleep on the floor. At times, he deprived her of food and refused to let her get food for the family. During those years of abuse, the defendant's husband threatened numerous times to kill her and to maim her in various ways.
The defendant said her husband's abuse occurred only when he was intoxicated, but that he would not give up drinking. She said she and her husband "got along very well when he was sober," and that he was "a good guy" when he was not drunk. She had accompanied her husband to the local mental health center for sporadic counseling sessions for his problem, but he continued to drink.
In the early morning hours on the day before his death, the defendant's husband, who was intoxicated, went to a rest area off I-85 near Kings Mountain where the defendant was engaging in prostitution and assaulted her. While driving home, he was stopped by a patrolman and jailed on a charge of driving while impaired. After the defendant's mother got him out of jail at the defendant's request later that morning, he resumed his drinking and abuse of the defendant.
The defendant's evidence also tended to show that her husband seemed angrier than ever after he was released from jail and that his abuse of the defendant was more frequent. That evening, sheriff's deputies were called to the Norman residence, and the defendant complained that her husband had been beating her all day and she could not take it anymore. The defendant was advised to file a complaint, but she said she was afraid her husband would kill her if she had him arrested. The deputies told her they needed a warrant before they could arrest her husband, and they left the scene.
The deputies were called back less than an hour later after the defendant had taken a bottle of pills. The defendant's husband cursed her and called her names as she was attended by paramedics, and he told them to let her die. A sheriff's deputy finally chased him back into his house as the defendant was put into an ambulance. The defendant's stomach was pumped at the local hospital, and she was sent home with her mother.
While in the hospital, the defendant was visited by a therapist with whom she discussed filing charges against her husband and having him committed for treatment. Before the therapist left, the defendant agreed to go to the mental health center the next day to discuss those possibilities. The therapist testified at trial that the defendant seemed depressed in the hospital, and that she expressed considerable anger toward her husband. He testified that the defendant threatened a number of times that night to kill her husband and that she [11] said she should kill him "because of the things he had done to her."
The next day, the day she shot her husband, the defendant went to the mental health center to talk about charges and possible commitment, and she confronted her husband with that possibility. She testified that she told her husband later that day: "J.T., straighten up. Quit drinking. I'm going to have you committed to help you." She said her husband then told her he would "see them coming" and would cut her throat before they got to him.
The defendant also went to the social services office that day to seek welfare benefits, but her husband followed her there, interrupted her interview and made her go home with him. He continued his abuse of her, threatening to kill and to maim her, slapping her, kicking her, and throwing objects at her. At one point, he took her cigarette and put it out on her, causing a small burn on her upper torso. He would not let her eat or bring food into the house for their children.
That evening, the defendant and her husband went into their bedroom to lie down, and he called her a "dog" and made her lie on the floor when he lay down on the bed. Their daughter brought in her baby to leave with the defendant, and the defendant's husband agreed to let her baby-sit. After the defendant's husband fell asleep, the baby started crying and the defendant took it to her mother's house so it would not wake up her husband. She returned shortly with the pistol and killed her husband.
The defendant testified at trial that she was too afraid of her husband to press charges against him or to leave him. She said that she had temporarily left their home on several previous occasions, but he had always found her, brought her home and beaten her. Asked why she killed her husband, the defendant replied: "Because I was scared of him and I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been. I just couldn't take it no more. There ain't no way, even if it means going to prison. It's better than living in that. That's worse hell than anything."
The defendant and other witnesses testified that for years her husband had frequently threatened to kill her and to maim her. When asked if she believed those threats, the defendant replied: "Yes. I believed him; he would, he would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it."
Two expert witnesses in forensic psychology and psychiatry who examined the defendant after the shooting, Dr. William Tyson and Dr. Robert Rollins, testified that the defendant fit the profile of battered wife syndrome. This condition, they testified, is characterized by such abuse and degradation that the battered wife comes to believe she is unable to help herself and cannot expect help from anyone else. She believes that she cannot escape the complete control of her husband and that he is invulnerable to law enforcement and other sources of help.
Dr. Tyson, a psychologist, was asked his opinion as to whether, on 12 June 1985, "it appeared reasonably necessary for Judy Norman to shoot J.T. Norman?" He replied: "I believe that ... Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable...." Dr. Tyson later added: "I think Judy Norman felt that she had no choice, both in the protection of herself and her family, but to engage, exhibit deadly force against Mr. Norman, and that in so doing, she was sacrificing herself, both for herself and for her family."
Dr. Rollins, who was the defendant's attending physician at Dorothea Dix Hospital when she was sent there for evaluation, testified that in his opinion the defendant was a typical abused spouse and that "[s]he saw herself as powerless to deal with the situation, that there was no alternative, no way she could escape it." Dr. Rollins was asked his opinion as to whether "on June 12th, 1985, it appeared reasonably [12] necessary that Judy Norman would take the life of J.T. Norman?" Dr. Rollins replied that in his opinion, "that course of action did appear necessary to Mrs. Norman."
Based on the evidence that the defendant exhibited battered wife syndrome, that she believed she could not escape her husband nor expect help from others, that her husband had threatened her, and that her husband's abuse of her had worsened in the two days preceding his death, the Court of Appeals concluded that a jury reasonably could have found that her killing of her husband was justified as an act of perfect self-defense. The Court of Appeals reasoned that the nature of battered wife syndrome is such that a jury could not be precluded from finding the defendant killed her husband lawfully in perfect self-defense, even though he was asleep when she killed him. We disagree.
The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987). Our law has recognized that self-preservation under such circumstances springs from a primal impulse and is an inherent right of natural law. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
In North Carolina, a defendant is entitled to have the jury consider acquittal by reason of perfect self-defense when the evidence, viewed in the light most favorable to the defendant, tends to show that at the time of the killing it appeared to the defendant and she believed it to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Gappins, 320 N.C. at 71, 357 S.E. 2d at 659. That belief must be reasonable, however, in that the circumstances as they appeared to the defendant would create such a belief in the mind of a person of ordinary firmness. Id. Further, the defendant must not have been the initial aggressor provoking the fatal confrontation. Id. A killing in the proper exercise of the right of perfect self-defense is always completely justified in law and constitutes no legal wrong.
Our law also recognizes an imperfect right of self-defense in certain circumstances, including, for example, when the defendant is the initial aggressor, but without intent to kill or to seriously injure the decedent, and the decedent escalates the confrontation to a point where it reasonably appears to the defendant to be necessary to kill the decedent to save herself from imminent death or great bodily harm. State v. Mize, 316 N.C. 48, 340 S.E.2d 439 (1986); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982). Although the culpability of a defendant who kills in the exercise of imperfect self-defense is reduced, such a defendant is not justified in the killing so as to be entitled to acquittal, but is guilty at least of voluntary manslaughter. State v. Mize, 316 N.C. at 52, 340 S.E.2d at 441.
The defendant in the present case was not entitled to a jury instruction on either perfect or imperfect self-defense. The trial court was not required to instruct on either form of self-defense unless evidence was introduced tending to show that at the time of the killing the defendant reasonably believed herself to be confronted by circumstances which necessitated her killing her husband to save herself from imminent death or great bodily harm. Id. No such evidence was introduced in this case, and it would have been error for the trial court to instruct the jury on either perfect or imperfect self-defense. See State v. Gappins, 320 N.C. 64, 73, 357 S.E.2d 654, 660 (1987); State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986); State v. Spaulding, 298 N.C. 149, 157, 257 S.E.2d 391, 396 (1979); State v. Marshall, 208 N.C. 127, 129, 179 S.E. 427, 428 (1935); State v. Kidd, 60 N.C.App. 140, 142, 298 S.E.2d 406, 408 (1982) disc. rev. denied, 307 N.C. 700, 301 S.E.2d 393 (1983); State v. Dial, 38 N.C. App. 529, 531, 248 S.E.2d 366, 367 (1978); 40 C.J.S. Homicide § 123(b) (1944).
The jury found the defendant guilty only of voluntary manslaughter in the present case. As we have indicated, an instruction on imperfect self-defense would have entitled [13] the defendant to nothing more, since one who kills in the exercise of imperfect self-defense is guilty at least of voluntary manslaughter. Therefore, even if it is assumed arguendo that the defendant was entitled to an instruction on imperfect self-defense—a notion we have specifically rejected—the failure to give such an instruction was harmless in this case. Accordingly, although we recognize that the imminence requirement applies to both types of self-defense for almost identical reasons, we limit our consideration in the remainder of this opinion to the issue of whether the trial court erred in failing to instruct the jury to consider acquittal on the ground that the killing was justified and, thus, lawful as an act of perfect self-defense.
The killing of another human being is the most extreme recourse to our inherent right of self-preservation and can be justified in law only by the utmost real or apparent necessity brought about by the decedent. For that reason, our law of self-defense has required that a defendant claiming that a homicide was justified and, as a result, inherently lawful by reason of perfect self-defense must establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm. Only if defendants are required to show that they killed due to a reasonable belief that death or great bodily harm was imminent can the justification for homicide remain clearly and firmly rooted in necessity. The imminence requirement ensures that deadly force will be used only where it is necessary as a last resort in the exercise of the inherent right of self-preservation. It also ensures that before a homicide is justified and, as a result, not a legal wrong, it will be reliably determined that the defendant reasonably believed that absent the use of deadly force, not only would an unlawful attack have occurred, but also that the attack would have caused death or great bodily harm. The law does not sanction the use of deadly force to repel simple assaults. State v. Watkins, 283 N.C. 504, 196 S.E.2d 750 (1973).
The term "imminent," as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as "immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law." Black's Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase "about to suffer" interchangeably with "imminent" to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
The evidence in this case did not tend to show that the defendant reasonably believed that she was confronted by a threat of imminent death or great bodily harm. The evidence tended to show that no harm was "imminent" or about to happen to the defendant when she shot her husband. The uncontroverted evidence was that her husband had been asleep for some time when she walked to her mother's house, returned with the pistol, fixed the pistol after it jammed and then shot her husband three times in the back of the head. The defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured. Instead, all of the evidence tended to show that the defendant had ample time and opportunity to resort to other means of preventing further abuse by her husband. There was no action underway by the decedent from which the jury could have found that the defendant had reasonable grounds to believe either that a felonious assault was imminent or that it might result in her death or great bodily injury. Additionally, no such action by the decedent had been underway immediately prior to his falling asleep.
Faced with somewhat similar facts, we have previously held that a defendant who believed himself to be threatened by the decedent was not entitled to a jury instruction on either perfect or imperfect self-defense when it was the defendant who went to the decedent and initiated the final, fatal confrontation. State v. Mize, 316 N.C. 48, [14] 340 S.E.2d 439 (1986). In Mize, the decedent Joe McDonald was reported to be looking for the defendant George Mize to get revenge for Mize's alleged rape of McDonald's girl friend, which had exacerbated existing animosity between Mize and McDonald. After hiding from McDonald for most of the day, Mize finally went to McDonald's residence, woke him up and then shot and killed him. Mize claimed that he feared McDonald was going to kill him and that his killing of McDonald was in self-defense. Rejecting Mize's argument that his jury should have been instructed on self-defense, we stated:
Here, although the victim had pursued defendant during the day approximately eight hours before the killing, defendant Mize was in no imminent danger while McDonald was at home asleep. When Mize went to McDonald's trailer with his shotgun, it was a new confrontation. Therefore, even if Mize believed it was necessary to kill McDonald to avoid his own imminent death, that belief was unreasonable.
316 N.C. at 53, 340 S.E.2d at 442 (citations omitted). The same reasoning applies in the present case.
Additionally, the lack of any belief by the defendant—reasonable or otherwise—that she faced a threat of imminent death or great bodily harm from the drunk and sleeping victim in the present case was illustrated by the defendant and her own expert witnesses when testifying about her subjective assessment of her situation at the time of the killing. The psychologist and psychiatrist replied affirmatively when asked their opinions of whether killing her husband "appeared reasonably necessary" to the defendant at the time of the homicide. That testimony spoke of no imminent threat nor of any fear by the defendant of death or great bodily harm, imminent or otherwise. Testimony in the form of a conclusion that a killing "appeared reasonably necessary" to a defendant does not tend to show all that must be shown to establish self-defense. More specifically, for a killing to be in self-defense, the perceived necessity must arise from a reasonable fear of imminent death or great bodily harm.
Dr. Tyson additionally testified that the defendant "believed herself to be doomed... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable." Such evidence of the defendant's speculative beliefs concerning her remote and indefinite future, while indicating she had felt generally threatened, did not tend to show that she killed in the belief—reasonable or otherwise—that her husband presented a threat of imminent death or great bodily harm. Under our law of self-defense, a defendant's subjective belief of what might be "inevitable" at some indefinite point in the future does not equate to what she believes to be "imminent." Dr. Tyson's opinion that the defendant believed it was necessary to kill her husband for "the protection of herself and her family" was similarly indefinite and devoid of time frame and did not tend to show a threat or fear of imminent harm.
The defendant testified that, "I knowed when he woke up, it was going to be the same thing, and I was scared when he took me to the truck stop that night it was going to be worse than he had ever been." She also testified, when asked if she believed her husband's threats: "Yes.... [H]e would kill me if he got a chance. If he thought he wouldn't a had to went to jail, he would a done it." Testimony about such indefinite fears concerning what her sleeping husband might do at some time in the future did not tend to establish a fear— reasonable or otherwise—of imminent death or great bodily harm at the time of the killing.
We are not persuaded by the reasoning of our Court of Appeals in this case that when there is evidence of battered wife syndrome, neither an actual attack nor threat of attack by the husband at the moment the wife uses deadly force is required to justify the wife's killing of him in perfect self-defense. The Court of Appeals concluded that to impose such requirements [15] would ignore the "learned helplessness," meekness and other realities of battered wife syndrome and would effectively preclude such women from exercising their right of self-defense. 89 N.C.App. 384, 392-393, 366 S.E.2d 586, 591-592 (1988). See Mather, The Skeleton in the Closet: The Battered Woman Syndrome, Self-Defense, and Expert Testimony, 39 Mercer L.Rev. 545 (1988); Eber, The Battered Wife's Dilemma: To Kill Or To Be Killed, 32 Hastings L.J. 895 (1981). Other jurisdictions which have addressed this question under similar facts are divided in their views, and we can discern no clear majority position on facts closely similar to those of this case. Compare, e.g., Commonwealth v. Grove, 363 Pa.Super. 328, 526 A.2d 369, appeal denied, 517 Pa. 630, 539 A.2d 810 (1987) (abused wife who killed her sleeping husband not entitled to self-defense instruction as no immediate threat was posed by the decedent), with State v. Gallegos, 104 N.M. 247, 719 P.2d 1268 (1986) (abused wife could claim self-defense where she walked into bedroom with gun and killed husband who was awake but lying on the bed).
The reasoning of our Court of Appeals in this case proposes to change the established law of self-defense by giving the term "imminent" a meaning substantially more indefinite and all-encompassing than its present meaning. This would result in a substantial relaxation of the requirement of real or apparent necessity to justify homicide. Such reasoning proposes justifying the taking of human life not upon the reasonable belief it is necessary to prevent death or great bodily harm—which the imminence requirement ensures—but upon purely subjective speculation that the decedent probably would present a threat to life at a future time and that the defendant would not be able to avoid the predicted threat.
The Court of Appeals suggests that such speculation would have been particularly reliable in the present case because the jury, based on the evidence of the decedent's intensified abuse during the thirty-six hours preceding his death, could have found that the decedent's passive state at the time of his death was "but a momentary hiatus in a continuous reign of terror by the decedent [and] the defendant merely took advantage of her first opportunity to protect herself." 89 N.C.App at 394, 366 S.E.2d at 592. Requiring jury instructions on perfect self-defense in such situations, however, would still tend to make opportune homicide lawful as a result of mere subjective predictions of indefinite future assaults and circumstances. Such predictions of future assaults to justify the defendant's use of deadly force in this case would be entirely speculative, because there was no evidence that her husband had ever inflicted any harm upon her that approached life-threatening injury, even during the "reign of terror." It is far from clear in the defendant's poignant evidence that any abuse by the decedent had ever involved the degree of physical threat required to justify the defendant in using deadly force, even when those threats were imminent. The use of deadly force in self-defense to prevent harm other than death or great bodily harm is excessive as a matter of law. State v. Hunter, 315 N.C. 371, 338 S.E.2d 99 (1986).
As we have stated, stretching the law of self-defense to fit the facts of this case would require changing the "imminent death or great bodily harm" requirement to something substantially more indefinite than previously required and would weaken our assurances that justification for the taking of human life remains firmly rooted in real or apparent necessity. That result in principle could not be limited to a few cases decided on evidence as poignant as this. The relaxed requirements for perfect self-defense proposed by our Court of Appeals would tend to categorically legalize the opportune killing of abusive husbands by their wives solely on the basis of the wives' testimony concerning their subjective speculation as to the probability of future felonious assaults by their husbands. Homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution, to this problem. See generally Rosen, The Excuse of Self-Defense: Correcting A Historical [16] Accident on Behalf of Battered Women Who Kill, 36 Am.U.L.Rev. 11 (1986) (advocating changing the basis of self-defense acquittals to excuse rather than justification, so that excusing battered women's killing of their husbands under circumstances not fitting within the traditional requirements of self-defense would not be seen as justifying and therefore encouraging such self-help killing); Mitchell, Does Wife Abuse Justify Homicide?, 24 Wayne L.Rev. 1705 (1978) (advocating institutional rather than self-help solutions to wife abuse and citing case studies at the trial level where traditional defenses to homicide appeared stretched to accommodate poignant facts, resulting in justifications of some killings which appeared to be motivated by revenge rather than protection from death or great bodily harm). It has even been suggested that the relaxed requirements of self-defense found in what is often called the "battered woman's defense" could be extended in principle to any type of case in which a defendant testified that he or she subjectively believed that killing was necessary and proportionate to any perceived threat. Rosen, The Excuse of Self-Defense: Correcting A Historical Accident on Behalf of Battered Women Who Kill, 36 Am.U.L. Rev. 11, 44 (1986).
In conclusion, we decline to expand our law of self-defense beyond the limits of immediacy and necessity which have heretofore provided an appropriately narrow but firm basis upon which homicide may be justified and, thus, lawful by reason of perfect self-defense or upon which a defendant's culpability may be reduced by reason of imperfect self-defense. As we have shown, the evidence in this case did not entitle the defendant to jury instructions on either perfect or imperfect self-defense.
For the foregoing reasons, we conclude that the defendant's conviction for voluntary manslaughter and the trial court's judgment sentencing her to a six-year term of imprisonment were without error. Therefore, we must reverse the decision of the Court of Appeals which awarded the defendant a new trial.
REVERSED.
MARTIN, Justice, dissenting.
At the outset it is to be noted that the peril of fabricated evidence is not unique to the trials of battered wives who kill. The possibility of invented evidence arises in all cases in which a party is seeking the benefit of self-defense. Moreover, in this case there were a number of witnesses other than defendant who testified as to the actual presence of circumstances supporting a claim of self-defense. This record contains no reasonable basis to attack the credibility of evidence for the defendant.
Likewise, the difficulty of rebutting defendant's evidence because the only other witness to many of the events is deceased is not unique to this type of case. This situation is also commonplace in cases in which self-defense is raised, although, again, in the case sub judice there was more than one surviving witness to such events. In considering the argument that the state is faced with a difficult burden in attempting to rebut evidence of which defendant is the only surviving witness, one must not overlook the law: the burden is always on the state to prove that the killing was intentional beyond a reasonable doubt. "Defendant may always rest ultimately on the weakness of the state's case and the state's failure to carry its burden of proof." State v. Patterson, 297 N.C. 247, 256, 254 S.E.2d 604, 610 (1979).
At the heart of the majority's reasoning is its unsubstantiated concern that to find that the evidence presented by defendant would support an instruction on self-defense would "expand our law of self-defense beyond the limits of immediacy and necessity." Defendant does not seek to expand or relax the requirements of self-defense and thereby "legalize the opportune killing of allegedly abusive husbands by their wives," as the majority overstates. Rather, defendant contends that the evidence as gauged by the existing laws of self-defense is sufficient to require the submission of a self-defense instruction to the [17] jury. The proper issue for this Court is to determine whether the evidence, viewed in the light most favorable to the defendant, was sufficient to require the trial court to instruct on the law of self-defense. I conclude that it was.
In every jury trial, it is the duty of the court to charge the jury on all substantial features of the case arising on the evidence, whether or not such instructions have been requested. See State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974). All defenses presented by the defendant's evidence are substantial features of the case, even if that evidence contains discrepancies or is contradicted by evidence from the state. Id. This rule reflects the principle in our jurisprudence that it is the jury, not the judge, that weighs the evidence.
A defendant is entitled to an instruction on self-defense when there is evidence, viewed in the light most favorable to the defendant, that these four elements existed at the time of the killing:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987). See also State v. McCray, 312 N.C. 519, 324 S.E.2d 606 (1985) (to be entitled to an instruction on self-defense defendant must produce evidence tending to show he was free from fault and it was necessary or reasonably appeared to be necessary to kill in order to protect himself from great bodily harm or death). See generally State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982); State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982); State v. Norris, 303 N.C. 526, 279 S.E.2d 570 (1981); State v. Potter, 295 N.C. 126, 244 S.E.2d 397 (1978) (cases setting out these elements as requisites of proof of self-defense). The first element requires that there be evidence that the defendant believed it was necessary to kill in order to protect herself from serious bodily harm or death; the second requires that the circumstances as defendant perceived them were sufficient to create such a belief in the mind of a person of ordinary firmness. Both elements were supported by evidence at defendant's trial.
Evidence presented by defendant described a twenty-year history of beatings and other dehumanizing and degrading treatment by her husband. In his expert testimony a clinical psychologist concluded that defendant fit "and exceed[ed]" the profile of an abused or battered spouse, analogizing this treatment to the dehumanization process suffered by prisoners of war under the Nazis during the Second World War and the brainwashing techniques of the Korean War. The psychologist described the defendant as a woman incarcerated by abuse, by fear, and by her conviction that her husband was invincible and inescapable:
Mrs. Norman didn't leave because she believed, fully believed that escape was totally impossible. There was no place to go. He, she had left before; he had come and gotten her. She had gone to the Department of Social Services. He had come and gotten her. The law, she believed the law could not protect her; no one could protect her, and I must admit, looking over the records, that there was nothing done that would contradict that belief. She fully believed that he was invulnerable to the law and to all social agencies that were available; that nobody could withstand his power. As a result, there was no such thing as escape.
[18] When asked if he had an opinion whether it appeared reasonably necessary for Judy Norman to shoot her husband, this witness responded:
Yes.... I believe that in examining the facts of this case and examining the psychological data, that Mrs. Norman believed herself to be doomed ... to a life of the worst kind of torture and abuse, degradation that she had experienced over the years in a progressive way; that it would only get worse, and that death was inevitable; death of herself, which was not such, I don't think was such an issue for her, as she had attempted to commit suicide, and in her continuing conviction of J.T. Norman's power over her, and even failed at that form of escape. I believe she also came to the point of beginning to fear for family members and her children, that were she to commit suicide that the abuse and the treatment that was heaped on her would be transferred onto them.
This testimony describes defendant's perception of circumstances in which she was held hostage to her husband's abuse for two decades and which ultimately compelled her to kill him. This testimony alone is evidence amply indicating the first two elements required for entitlement to an instruction on self-defense.
In addition to the testimony of the clinical psychologist, defendant presented the testimony of witnesses who had actually seen defendant's husband abuse her. These witnesses described circumstances that caused not only defendant to believe escape was impossible, but that also convinced them of its impossibility. Defendant's isolation and helplessness were evident in testimony that her family was intimidated by her husband into acquiescing in his torture of her. Witnesses also described defendant's experience with social service agencies and the law, which had contributed to her sense of futility and abandonment through the inefficacy of their protection and the strength of her husband's wrath when they failed. Where torture appears interminable and escape impossible, the belief that only the death of the oppressor can provide relief is reasonable in the mind of a person of ordinary firmness, let alone in the mind of the defendant, who, like a prisoner of war of some years, has been deprived of her humanity and is held hostage by fear.
In State v. Mize, 316 N.C. 48, 53, 340 S.E.2d 439, 442 (1986), this Court noted that if the defendant was in "no imminent danger" at the time of the killing, then his belief that it was necessary to kill the man who had pursued him eight hours before was unreasonable. The second element of self-defense was therefore not satisfied. In the context of the doctrine of self-defense, the definition of "imminent" must be informed by the defendant's perceptions. It is not bounded merely by measurable time, but by all of the facts and circumstances. Its meaning depends upon the assessment of the facts by one of "ordinary firmness" with regard to whether the defendant's perception of impending death or injury was so pressing as to render reasonable her belief that it was necessary to kill.
Evidence presented in the case sub judice revealed no letup of tension or fear, no moment in which the defendant felt released from impending serious harm, even while the decedent slept. This, in fact, is a state of mind common to the battered spouse, and one that dramatically distinguishes Judy Norman's belief in the imminence of serious harm from that asserted by the defendant in Mize. Psychologists have observed and commentators have described a "constant state of fear" brought on by the cyclical nature of battering as well as the battered spouse's perception that her abuser is both "omnipotent and unstoppable." See Comment, The Admissibility of Expert Testimony on the Battered Woman Syndrome in Support of a Claim of Self-Defense, 15 Conn.L.Rev. 121, 131 (1982). Constant fear means a perpetual anticipation of the next blow, a perpetual expectation that the next blow will kill. "[T]he battered wife is constantly in a heightened state of terror because she is certain that one day her husband will kill her during the course of a beating.... Thus from the perspective of the battered wife, the danger is constantly `immediate.' " Eber, The Battered Wife's Dilemma: [19] To Kill or To Be Killed, 32 Hastings L.J. 895, 928-29 (1981). For the battered wife, if there is no escape, if there is no window of relief or momentary sense of safety, then the next attack, which could be the fatal one, is imminent. In the context of the doctrine of self-defense, "imminent" is a term the meaning of which must be grasped from the defendant's point of view. Properly stated, the second prong of the question is not whether the threat was in fact imminent, but whether defendant's belief in the impending nature of the threat, given the circumstances as she saw them, was reasonable in the mind of a person of ordinary firmness.[1]
Defendant's intense fear, based on her belief that her husband intended not only to maim or deface her, as he had in the past, but to kill her, was evident in the testimony of witnesses who recounted events of the last three days of the decedent's life. This testimony could have led a juror to conclude that defendant reasonably perceived a threat to her life as "imminent," even while her husband slept. Over these three days, her husband's anger was exhibited in an unprecedented crescendo of violence. The evidence showed defendant's fear and sense of hopelessness similarly intensifying, leading to an unsuccessful attempt to escape through suicide and culminating in her belief that escape would be possible only through her husband's death.
Defendant testified that on 10 June, two days before her husband's death, he had again forced her to go to a reststop near Kings Mountain to make money by prostitution. Her daughter Phyllis and Phyllis's boyfriend Mark Navarra accompanied her on this occasion because, defendant said, whenever her husband took her there, he would beat her. Phyllis corroborated this account. She testified that her father had arrived some time later and had begun beating her mother, asking how much money she had. Defendant said they all then drove off. Shortly afterwards an officer arrested defendant's husband for driving under the influence. He spent the night in jail and was released the next morning on bond paid by defendant's mother.
Defendant testified that her husband was argumentative and abusive all through the next day, 11 June. Mark Navarra testified that at one point defendant's husband threw a sandwich that defendant had made for him on the floor. She made another; he threw it on the floor, as well, then insisted she prepare one without touching it. Defendant's husband had then taken the third sandwich, which defendant had wrapped in paper towels, and smeared it on her face. Both Navarra and Phyllis testified that they had later watched defendant's husband seize defendant's cigarette and put it out on her neck, the scars from which defendant displayed to the jury.
A police officer testified that he arrived at defendant's home at 8:00 that evening in response to a call reporting a domestic quarrel. Defendant, whose face was bruised, was crying, and she told the officer that her husband had beaten her all day long and that she could not take it any longer. The officer told her that he could do nothing for her unless she took out a warrant on her husband. She responded that if she did, her husband would kill her. The officer left but was soon radioed to return because defendant had taken an overdose of pills. The officer testified that defendant's husband was interfering with ambulance attendants, saying "Let the bitch die." When he refused to respond to the officer's warning that if he continued to hinder the attendants, he would be arrested, the officer was compelled to chase him into the house.
Defendant's mother testified that her son-in-law had reacted to the discovery that her daughter had taken the pills with cursing and obscenities and threats such as, "Now, you're going to pay for taking those pills," and "I'll kill you, your mother and your grandmother." His rage was such that defendant's mother feared he might kill the whole family, and knowing defendant's [20] sister had a gun in her purse, she took the gun and placed it in her own.
Defendant was taken to the hospital, treated, and released at 2:30 a.m. She spent the remainder of the night at her grandmother's house. Defendant testified that the next day, 12 June, she felt dazed all day long. She went in the morning to the county mental health center for guidance on domestic abuse. When she returned home, she tried to talk to her husband, telling him to "straighten up. Quit drinking.... I'm going to have you committed to help you." Her husband responded, "If you do, I'll see them coming and before they get here, I'll cut your throat."
Later, her husband made her drive him and his friend to Spartanburg to pick up the friend's paycheck. On the way, the friend testified, defendant's husband "started slapping on her" when she was following a truck too closely, and he periodically poured his beer into a glass, then reached over and poured it on defendant's head. At one point defendant's husband lay down on the front seat with his head on the arm rest, "like he was going to go to sleep," and kicked defendant, who was still driving, in the side of the head.
Mark Navarra testified that in the year and a half he had lived with the Normans, he had never seen defendant's husband madder than he was on 12 June, opining that it was the DUI arrest two days before that had ignited J.T.'s fury. Phyllis testified that her father had beaten her mother "all day long." She testified that this was the third day defendant's husband had forbidden her to eat any food. Phyllis said defendant's family tried to get her to eat, but defendant, fearing a beating, would not. Although Phyllis's grandmother had sent over a bag of groceries that day, defendant's husband had made defendant put them back in the bag and would not let anyone eat them.
Early in the evening of 12 June, defendant's husband told defendant, "Let's go to bed." Phyllis testified that although there were two beds in the room, her father had forbidden defendant from sleeping on either. Instead, he had made her lie down on the concrete floor between the two beds, saying, "Dogs don't lay in the bed. They lay in the floor." Shortly afterward, defendant testified, Phyllis came in and asked her father if defendant could take care of her baby while she went to the store. He assented and eventually went to sleep. Defendant was still on the floor, the baby on the small bed. The baby started to cry and defendant "snuck up and took him out there to [her] mother's [house]." She asked her mother to watch the baby, then asked if her mother had anything for headache, as her head was "busting." Her mother responded that she had some pain pills in her purse. Defendant went in to get the pills, "and the gun was in there, and I don't know, I just seen the gun, and I took it out, and I went back there and shot him."
From this evidence of the exacerbated nature of the last three days of twenty years of provocation, a juror could conclude that defendant believed that her husband's threats to her life were viable, that serious bodily harm was imminent, and that it was necessary to kill her husband to escape that harm. And from this evidence a juror could find defendant's belief in the necessity to kill her husband not merely reasonable but compelling.
The third element for entitlement to an instruction on self-defense requires that there be evidence that the defendant was not the aggressor in bringing on the affray. If the defendant was the aggressor and killed with murderous intent, that is, the intent to kill or inflict serious bodily harm, then she is not entitled to an instruction on self-defense. State v. Mize, 316 N.C. 48, 340 S.E.2d 439. A hiatus between provocation by the decedent and the killing can mark the initiation of a new confrontation between the defendant and the decedent, such that the defendant's earlier perception of imminent danger no longer appears reasonable and the defendant becomes the aggressor. For example, in Mize, the defendant, who had been told the day before that the decedent was "out to get" him, went to the decedent's trailer with a shotgun, knocked on the front door, and hid under the steps when the decedent opened the door and asked who was there. Defendant then went to the back door, [21] knocked again, and shot the decedent. When the defendant went with his shotgun to the decedent's trailer, this Court said, it was a new confrontation, and if the defendant still believed that it was necessary to kill the decedent to avoid his own imminent death, that belief was unreasonable.
Where the defendant is a battered wife, there is no analogue to the victim-turned-aggressor, who, as in Mize, turns the tables on the decedent in a fresh confrontation. Where the defendant is a battered wife, the affray out of which the killing arises can be a continuing assault. There was evidence before the jury that it had not been defendant but her husband who had initiated "the affray," which the jury could have regarded as lasting twenty years, three days, or any number of hours preceding his death. And there was evidence from which the jury could infer that in defendant's mind the affray reached beyond the moment at which her husband fell asleep. Like the ongoing threats of death or great bodily harm, which she might reasonably have perceived as imminent, her husband continued to be the aggressor and she the victim.
Finally, the fourth element of self-defense poses the question of whether there was any evidence tending to show that the force used by defendant to repel her husband was not excessive, that is, more than reasonably appeared to be necessary under the circumstances. This question is answered in part by abundant testimony describing defendant's immobilization by fear caused by abuse by her husband. Three witnesses, including the decedent's best friend, all recounted incidents in which defendant passively accepted beating, kicks, commands, or humiliating affronts without striking back. From such evidence that she was paralyzed by her husband's presence, a jury could infer that it reasonably appeared to defendant to be necessary to kill her husband in order ultimately to protect herself from the death he had threatened and from severe bodily injury, a foretaste of which she had already experienced.
In State v. Wingler, 184 N.C. 747, 115 S.E. 59 (1922), in which the defendant was found guilty for the murder of his wife, Justice (later Chief Justice) Stacy recognized the pain and oppression under which a woman suffers at the hands of an abusive husband: "The supreme tragedy of life is the immolation of woman. With a heavy hand, nature exacts from her a high tax of blood and tears." Id. at 751, 115 S.E. at 61. By his barbaric conduct over the course of twenty years, J.T. Norman reduced the quality of the defendant's life to such an abysmal state that, given the opportunity to do so, the jury might well have found that she was justified in acting in self-defense for the preservation of her tragic life.
It is to be remembered that defendant does not have the burden of persuasion as to self-defense; the burden remains with the state to prove beyond a reasonable doubt that defendant intentionally killed decedent without excuse or justification. See State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 537 (1988) (the state must satisfy the jury beyond a reasonable doubt that, despite evidence of intoxication, defendant did form a deliberate and premeditated intent to kill). If the evidence in support of self-defense is sufficient to create a reasonable doubt in the mind of a rational juror whether the state has proved an intentional killing without justification or excuse, self-defense must be submitted to the jury. This is such a case.
[1] This interpretation of the meaning of "imminent" is reflected in the Comments to the Model Penal Code: "The actor must believe that his defensive action is immediately necessary and the unlawful force against which he defends must be force that he apprehends will be used on the present occasion, but he need not apprehend that it will be immediately used." Model Penal Code § 3.04 comment (ALI 1985).
7.2.8.5.1.1.7 United States v. Urena 7.2.8.5.1.1.7 United States v. Urena
UNITED STATES of America, Plaintiff-Appellee,
v.
Lenny URENA, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[905] Elizabeth Newman (argued), Federal Public Defender, Los Angeles, CA, for defendant-appellant Lenny Urena.
Harvinder S. Anand (argued), Michael J. Raphael, Assistant U.S. Attorneys, Los Angeles, CA, for plaintiff-appellee United States of America.
Before: MARY M. SCHROEDER and RONALD M. GOULD, Circuit Judges, and MICHAEL PATRICK McCUSKEY, Chief District Judge.[*]
OPINION
GOULD, Circuit Judge:
Lenny Urena appeals his jury conviction for assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) and possession [906] of contraband in prison (a prison knife or "shank") in violation of 18 U.S.C. § 1791(a)(2), (b)(3). First, Urena argues that the district court abused its discretion by refusing to instruct the jury on his theory that he acted in self-defense. Second, Urena claims that the district court violated his Confrontation Clause rights by refusing to allow him to cross-examine the treating physician about the cause of the victim's injuries, and that the district court erred by refusing to let him designate the treating physician as his expert witness on causation during the trial. Finally, Urena further claims that his sentence is substantively unreasonable because his guidelines range sentence included "recency points," which were removed from the guidelines after he was sentenced. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
On the morning of April 11th, 2006, federal prisoner Gary Dennis grabbed fellow inmate Lenny Urena and called him a "bitch." Urena returned the insult and the two separated. Hours later, Urena attacked Dennis by surprise, striking him in the face. Dennis tried to disengage but Urena pursued and struck him repeatedly from behind. Dennis eventually grabbed Urena and wrestled him to the ground. Another inmate, Nekis Atwater, intervened, kicking Dennis in the back of the head and punching him at least fourteen times.
Dennis's injuries were superficial, but he suffered lacerations that required stitches. The shank that caused these injuries was recovered from underneath Urena's shoulder. Eyewitnesses disagree about who had the shank in the fight, Atwater or Urena. Urena confessed that the shank was his and that he had held it during the fight.
At trial, Urena argued that Atwater attacked Dennis with the shank, and that he confessed to possessing it because he did not want to "snitch" on Atwater. He also argued self-defense, claiming he was in danger because Dennis had called him a bitch, which he contends is a serious threat in prison. Alternatively, he argued that Dennis could have had a weapon when Urena attacked him. The district court at first let Urena argue self-defense in his opening statement, but later refused to instruct the jury on self-defense, reasoning that Urena had not established a sufficient factual foundation.
At trial, the Government called Dr. Jaime David—Dennis's treating physician—to testify on the nature and extent of Dennis's injuries. Dr. David's report said that the injury above Dennis's right eye was likely caused by a punch or a fall to the ground, not a knife. The Government moved to preclude Urena from asking Dr. David questions about causation, and the court agreed to do so as long as the Government did not open the door to that line of questioning on direct. The district court explained that "[t]here is a difference between the nature of a wound and causation," and noted that questions about causation were outside the scope of Dr. David's role as a percipient witness. Urena's subsequent attempt during the trial to designate Dr. David as an expert was rejected by the court.
II
Urena argues that the district court erred by refusing to give a self-defense instruction to the jury. We review for abuse of discretion the district court's conclusion that Urena did not establish a factual foundation to support a jury instruction on self-defense. United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995). To be entitled to a self-defense [907] jury instruction, a defendant must make a prima-facie case of self defense by offering evidence to show:
(1) a reasonable belief that the use of force was necessary to defend himself or another against the immediate use of unlawful force and
(2) the use of no more force than was reasonably necessary in the circumstances.
United States v. Biggs, 441 F.3d 1069, 1071 (9th Cir.2006).
Under this rule the privilege of claiming self defense as a justification for an assault is constrained by the need for an immediate threat of unlawful force, and the need for the action to be commensurate with the threat, with no more force used than reasonably necessary to meet it. Urena's primary argument to us is that he "had to attack ... so that no one would think he really was a bitch." Applying this rule, when a person receives harsh words from another, insulting words, demeaning words, or even fighting words, there is no privilege to assault the speaker with deadly force. Stated another way, a person insulted by a personal slur cannot stab the offending speaker in the neck, bash their skull with a baseball bat, send a bullet to their heart, or otherwise deploy deadly force in response to the insult.
Urena's being called a bitch in prison, though it might create risk in that harsh environment did not give Urena warrant to attack Dennis with a prison-made knife. Urena's being called a bitch in prison did not justify a surprise, pre-emptive attack using deadly force; indeed it would not have justified an assault using much less force. See, e.g., United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir.1998) (holding victim's threat to "finish what he started" later that afternoon was not imminent); United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir.1987) (rejecting defendant's self-defense theory when victim was unarmed and in retreat); United States v. Slocum, 486 F.Supp.2d 1104, 1113-14 (C.D.Cal.2007) (rejecting self-defense theory when victims were unarmed and non-threatening at time of attack).
Urena also contends that he presented evidence that could show Dennis was carrying a shank and therefore he was defending himself against an imminent attack. But even if Dennis possessed a knife, the evidence was undisputed that it was Urena who was the attacker, and thus he could not in those circumstances successfully urge a self defense theory. The district court did not abuse its discretion in concluding that Urena's evidence was mere speculation and that a jury could not rationally sustain the defense based on the evidence presented. Wagner, 834 F.2d at 1486.
III
Urena next contends that the district court erred by preventing him from examining Dr. David about the cause of Dennis's injuries and that this violated his Confrontation Clause rights. Federal Rule of Evidence 611(b) states a clear rule: "Cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness." We see no error of law, to the extent we review de novo on a Confrontation Clause claim, United States v. Larson, 495 F.3d 1094, 1101 (9th Cir.2007) (en banc), by the district court's limiting cross examination of Dr. David to the scope of his direct testimony.
We have held: "A limitation on cross-examination does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the [908] witness." United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir.1999) (internal citations and quotations omitted). The Government called Dr. David to testify only as to the nature and extent of Dennis's injuries. Urena's Confrontation Clause rights were not violated, as he was allowed to cross-examine Dr. David on these issues, and on matters of bias and motivation.
Urena alternatively argues that the trial court erred 1) by ruling that testimony about causation of the injuries would be expert testimony and 2) by not allowing Urena to designate Dr. David as an expert. We review evidentiary rulings for abuse of discretion, though we review de novo the district court's interpretation of the Federal Rules of Evidence. United States v. Yida, 498 F.3d 945, 949 (9th Cir.2007). Urena argues that the testimony it wanted to elicit from Dr. David was not expert testimony because a doctor's evaluation of an injury is intertwined with his judgment of what caused the injury. He cites no legal authority for this argument, analogizing to the hearsay exception in Federal Rule of Evidence 803(4), which covers statements describing the cause of the injury "insofar as reasonably pertinent to diagnosis or treatment."
But other courts have held that a physician's assessment of the cause of an injury is expert testimony. See, e.g., United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir.2005) ("Her diagnosis of the injury itself ... would be permissible lay testimony, but her statement about the cause of the injury was, as she admitted, a `hypothesis.' And the ability to answer hypothetical questions is the essential difference between expert and lay witnesses." (internal quotation and alteration omitted)); Wills v. Amerada Hess Corp., 379 F.3d 32, 46 (2d Cir.2004) (holding that, where the cause of an injury would not be obvious to a lay juror, expert testimony is required). We are persuaded, and agree with our sister circuits, that Dr. David's opinion on issues of causation required expert testimony.
Urena's argument that he should have been allowed belatedly to designate Dr. David as an expert to testify on the cause of the injuries also lacks merit. Urena could have designated and called his own medical expert, and did designate an expert on prisons. But instead of designating a medical expert before trial, he tried without success to designate Dr. David as his expert once trial had begun. The district court has ample discretion to prevent a party from designating a new expert witness after the trial has started. The district court held a pretrial conference and both the Government and Urena then were free to designate their planned experts. Urena did not at pretrial conference say that he wanted to call Dr. David as an expert or any other medical expert, and then he did not seek to designate Dr. David as his expert until after the trial was underway. There is no abuse of discretion in the district court excluding the proffer of a new expert not disclosed in pretrial conference or pretrial order. The district court has broad traditional powers to manage its docket and to manage the presentation of evidence through designated witnesses in a trial before it. See, e.g., United States v. Grace, 526 F.3d 499, 516 (9th Cir.2008) (en banc) ("[T]he district court here is well within its authority to manage its docket in enforcing a valid pretrial discovery order."). The district court also has unquestioned discretionary power to exclude evidence that should have been produced in reciprocal discovery. See United States v. Moore, 208 F.3d 577, 578 (7th Cir.2000) ("[C]ourts are entitled to exclude evidence that should have been produced during reciprocal discovery [909] in criminal cases.") (citing Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). It follows from these principles that a district court may normally refuse to permit expert testimony from an expert not previously designated before trial in the pretrial conference. We hold that the district court here did not abuse its discretion in declining to permit Urena to add Dr. David as a defense witness on the causation issue during trial.
IV
Finally, Urena argues that his sentence should be vacated and remanded for re-sentencing because the Sentencing Commission has amended the guidelines to eliminate "recency points" from the sentencing calculation. U.S. Guidelines Manual, Supp. to App. C, Amend. 742 at 354-56 (2010) ("Amend.742"). The guidelines provide that when a change is not designated as retroactive, it is not to have retroactive effect to reduce a prison term. See U.S. Guidelines Manual § 1B1.10(a)(2). The change implemented by Amendment 742 is not designated as retroactive. § 1B1.10(c) (not listing Amend. 742).
Under the guidelines in place when Urena was sentenced, the sentencing range was correctly calculated as 77-96 months. If re-calculated under the revised guidelines, his sentencing range would be 63-77 months. Urena was sentenced to only 60 months. He argues that this sentence is substantively unreasonable in light of the Sentencing Commission's revision.
We review sentencing decisions for abuse of discretion. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir.2009). "Only a procedurally erroneous or substantively unreasonable sentence will be set aside." Id. at 1053 (quoting United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc)). Urena argues that his sentence is substantively unreasonable in light of Amendment 742 because the reason for the amendment was that recency points only minimally predict recidivism. See Amend. 742. But we have recently held that failure to vary from a guidelines range sentence to compensate for the inclusion of recency points after Amendment 742 had been proposed but before it was adopted does not render a sentence substantively unreasonable. United States v. Ruiz-Apolonio, 657 F.3d 907, 917-19 (9th Cir.2011). Urena's sentence, adopted before Amendment 742 was even proposed, is not substantively unreasonable.
The district court is required to apply the guidelines in effect at the time of sentencing. 18 U.S.C. § 3553(a)(4)(A)(ii). Subsequent amendments to the guidelines can only be considered if the amendment is clarifying existing law (a nonsubstantive change) or listed as retroactive under U.S. Guidelines Manual § 1B1.10(c). United States v. Morgan, 376 F.3d 1002, 1010-11 (9th Cir.2004). Amendment 742 is a substantive change because it was not characterized as a clarification and does not address a circuit conflict. Id. It was not listed as a retroactive change, and does not have retroactive effect.
Urena argues in the alternative that we should give the district court a chance to re-evaluate the sentence imposed in light of the amendment. He cites United States v. Godin, where the First Circuit vacated a defendant's sentence and remanded for re-sentencing after a non-retroactive amendment changed the way that past convictions are counted for criminal history purposes. 522 F.3d 133, 136 (1st Cir.2008) (per curiam). Recognizing that this amendment did not alter the guideline range, the First Circuit in Godin reasoned that it nonetheless might alter [910] the district court's ultimate choice of sentence, and left it to the district court's discretion whether the sentence should be changed in light of the amendment. Id.
We decline to adopt the approach taken by Godin. See also United States v. Alexander, 553 F.3d 591, 593 (7th Cir.2009) (criticizing the First Circuit's approach in Godin and declining to follow it). Amendment 742 is not listed as retroactive, and the guidelines themselves make clear that such a substantive change in the guidelines, where not listed as retroactive, does not warrant resentencing. U.S. Guidelines Manual § 1B1.10(a)(2). Here, there was an otherwise reasonable sentence arrived at in a procedurally correct way based on a properly calculated guidelines range.
AFFIRMED.
[*] The Honorable Michael Patrick McCuskey, Chief District Judge for the U.S. District Court for Central Illinois, Urbana, sitting by designation.
7.2.8.5.1.1.8 State v. Abbott 7.2.8.5.1.1.8 State v. Abbott
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANK ABBOTT, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
[66] Mr. Charles Handler argued the cause for defendant-appellant (Mr. Joel F. Handler, on the brief).
Mr. Martin L. Greenberg, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Brendan T. Byrne, Essex County Prosecutor, attorney).
The opinion of the court was delivered by WEINTRAUB, C.J.
Frank Abbott was convicted of atrocious assault and battery. The Appellate Division affirmed, 64 N.J. Super. 191 (1960), and we granted certification, 34 N.J. 176 (1961).
Abbott shared a common driveway with his neighbors, Michael and Mary Scarano. The Scaranos engaged a contractor to pave their portion. Abbott obtained some asphalt from the contractor and made a doorstop to keep his garage door from swinging onto the Scaranos' property. Nicholas Scarano, who was visiting with the Scaranos, his parents, objected to Abbott's innovation. After some words between them a fist fight ensued.
Although Abbott managed to land the first punch, with which he sent Nicholas to the ground, a jury could find Nicholas was the aggressor. At this point Michael Scarano came at Abbott with a hatchet. Michael said the tool had just been returned to him by the contractor, and denied he [67] meant to use it as a weapon. According to Abbott, Mary Scarano followed, armed with a carving knife and large fork. The actors gave varying versions of what happened, but the end result was that all of the Scaranos were hit by the hatchet. Nicholas received severe head injuries. Abbott claimed he too suffered a laceration.
Abbott admitted he finally wrested the hatchet from Michael but denied he wielded it at all. Rather he insisted that the Scaranos were injured during a common struggle for the instrument. A jury could, however, find Abbott intentionally inflicted the blows.
Abbott was separately indicted for atrocious assault and battery upon each of the Scaranos. There was a common trial of these indictments. The jury acquitted Abbott of the charges relating to Michael and Mary, but found him guilty as to Nicholas.
I.
The principal question is whether the trial court properly instructed the jury upon the issue of self-defense. The trial court charged upon the subject of excessive force, as to which Abbott does not complain. It charged also upon the subject of retreat, and it is here that error is alleged. Although the jury could have found Abbott used excessive force, we cannot know whether the jury found for him on that subject and convicted because he had failed to retreat in accordance with the trial court's instruction.
As to retreat, the trial court charged upon two hypotheses. One was that the critical events occurred upon Abbott's property. Upon that basis, the court said Abbott could stand his ground, and, of course, of this Abbott does not complain. The second hypothesis was that the alleged offense occurred upon the common driveway. Presumably on the authority of State v. Pontery, 19 N.J. 457, 475 (1955), the trial court held that since all the principals were equally entitled to be on the driveway, Abbott could not claim immunity [68] from the ordinary retreat rule. Abbott does not question that thesis, but disputes the court's statement of the conditions under which an obligation to retreat would arise.
A.
We have the preliminary question whether defendant must demonstrate "plain error" to question the instruction. As the Appellate Division noted, defendant did not record a protest to the charge as given. But he had requested a charge and did note his objection to the trial court's refusal to grant it. His request was erroneous, but nonetheless it is plain he did not acquiesce in the trial court's version. The important fact is that the trial court was alerted to the basic problem and charged in a manner different from the request made. In such circumstances, especially when the controlling principles are complex or unsettled, it would be unreasonable to deny a review merely because a defendant failed to project a formula which squares with our concept of the true doctrine. We would never deny relief merely because a litigant's position on appeal went beyond the point we found to be correct. We should not demand a greater capacity for prediction during the trial itself. We accordingly reach the meritorious issue.
B.
The subject of retreat usually arises in homicide matters. We will first discuss it in that context, and then consider whether the principles apply to a charge of atrocious assault and battery, and if they do, whether the trial court correctly guided the jury in this difficult area.
We should make it clear that we are discussing the doctrine of retreat and not the subject of the use of excessive force. If the force used was unnecessary in its intensity, the claim of self-defense may fall for that reason. In the discussion which follows we assume a defendant used no more force [69] than he believed necessary to protect himself in the circumstances as they reasonably appeared to him, and consider only whether the claim of self-defense should be denied because he could have avoided the use of that force by retreating.
The question whether one who is neither the aggressor nor a party to a mutual combat must retreat has divided the authorities. Self-defense is measured against necessity. Brown v. State, 62 N.J.L. 666, 708 (E. & A.), affirmed, 175 U.S. 172, 20 S.Ct. 77, 44 L.Ed. 119 (1899); State v. Hipplewith, 33 N.J. 300, 316-318 (1960). From that premise one could readily say there was no necessity to kill in self-defense if the use of deadly force could have been avoided by retreat. The critics of the retreat rule do not quarrel with the theoretical validity of this conclusion, but rather condemn it as unrealistic. The law of course should not denounce conduct as criminal when it accords with the behavior of reasonable men. Upon this level, the advocates of no-retreat say the manly thing is to hold one's ground, and hence society should not demand what smacks of cowardice. Adherents of the retreat rule reply it is better that the assailed shall retreat than that the life of another be needlessly spent. They add that not only do right-thinking men agree, but further a rule so requiring may well induce others to adhere to that worthy standard of behavior. There is much dispute as to which view commands the support of ancient precedents, a question we think it would be profitless to explore.
Other jurisdictions are closely divided upon the retreat doctrine. It is said that the preponderant view rejects it. Perkins, Criminal Law 899 (1957); 1 Warren, Homicide § 157, at pp. 767-68 (perm. ed. 1938); Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958). For additional discussions of the contending views see 1 Wharton, Criminal Law and Procedure § 235 (Anderson 1957); Annotation, 2 L.R.A. (N.S.) 49 (1906); Annotation, 18 A.L.R. 1279 (1922). Our Court of Errors and [70] Appeals deliberately adopted the retreat rule with an awareness of the contending views, State v. Di Maria, 88 N.J.L. 416 (Sup. Ct. 1916), affirmed o.b., 90 N.J.L. 341 (E. & A. 1917), and the doctrine has since been invoked. State v. Centalonza, 18 N.J. Super. 154 (App. Div. 1952); cf. State v. Goldberg, 12 N.J. Super. 293 (App. Div. 1951). The Model Penal Code embraces the retreat rule while acknowledging that on numerical balance a majority of the precedents oppose it. Model Penal Code § 3.04, comment 3, at p. 24 (Tent. Draft No. 8, 1958).
We are not persuaded to depart from the principle of retreat. We think it salutary if reasonably limited. Much of the criticism goes not to its inherent validity but rather to unwarranted applications of the rule. For example, it is correctly observed that one can hardly retreat from a rifle shot at close range. But if the weapon were a knife, a lead of a city block might well be enough. Again, the rule cannot be stated baldly, with indifference to the excitement of the occasion. As Mr. Justice Holmes cryptically put it, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961, 963 (1921). Such considerations, however, do not demand that a man should have the absolute right to stand his ground and kill in any and all situations. Rather they call for a fair and guarded statement of appropriate principles.
In Brown, supra, the United States Supreme Court said (256 U.S., at p. 343, 41 S.Ct., at p. 502, 65 L.Ed., at p. 963):
"* * * Rationally the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."
The comment to § 3.04 of the Model Penal Code (at p. 24) says the passage just quoted "seems to be a median position" and "would apparently remit the issue to the jury, without [71] a legal mandate on the point." We are not sure we correctly understand these observations. We think it clear that Brown accepted the retreat doctrine, but we do not read the opinion of Mr. Justice Holmes to mean that the subject should be submitted without guidance, thus permitting each jury to decide whether the subject of retreat should be considered, and if so, what the ingredients of the doctrine should be. We know of no jurisdiction which leaves to a jury the task of devising the legal principles. Rather we read Brown to hold only that the particular "formula laid down by the [trial] court" was not "adequate to the protection of the defendant's rights" (256 U.S., at pp. 342-343, 41 S.Ct., at p. 502, 65 L.Ed., at pp. 962-63) in the factual pattern which the defendant there asserted.
We believe the following principles are sound:
1. The issue of retreat arises only if the defendant resorted to a deadly force. It is deadly force which is not justifiable when an opportunity to retreat is at hand. Model Penal Code § 3.04(2)(b)(iii). As defined in § 3.12(2) a deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm."
Hence it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense. If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet, as the comment in the Model Penal Code observes (at p. 23), "The logic of this position never has been accepted when moderate force is used in self-defense; here all agree that the actor may stand his ground and estimate necessity upon that basis." Cf. Prosser, Torts § 19, at p. 90 (2d ed. 1955); Restatement, Torts § 63 (1934). Hence, in a case like the present one, the jury should be instructed that Abbott could hold his ground when Nicholas [72] came at him with his fists, and also when Michael and Mary came at him with the several instruments mentioned, and that the question of retreat could arise only if Abbott intended to use a deadly force.
2. What constitutes an opportunity to retreat which will defeat the right of self-defense? As § 3.04(2)(b)(iii) of the Model Penal Code states, deadly force is not justifiable "if the actor knows that he can avoid the necessity of using such force with complete safety by retreating * * *." We emphasize "knows" and "with complete safety." One who is wrongfully attacked need not risk injury by retreating, even though he could escape with something less than serious bodily injury. It would be unreal to require nice calculations as to the amount of hurt, or to ask him to endure any at all. And the issue is not whether in retrospect it can be found the defendant could have retreated unharmed. Rather the question is whether he knew the opportunity was there, and of course in that inquiry the total circumstances including the attendant excitement must be considered. We add that upon a retrial the facts as developed in the light of this principle may be such that Abbott would be entitled to an instruction that if his version of the approach by Michael and Mary is accepted, the issue of retreat must be resolved in Abbott's favor.
3. There has been some uncertainty in the language of our cases upon the burden of proof with respect to self-defense. The decisions are treated in State v. Chiarello, 69 N.J. Super. 479 (1961), where the Appellate Division correctly said that although the burden is upon a defendant to adduce evidence to support the defense, yet if such evidence appears either in the State's case or upon the defendant's case, the issue must be left to the jury with this instruction: that the burden is upon the State to prove beyond a reasonable doubt that the defense is untrue, and hence there must be an acquittal if there is a reasonable doubt as to whether defendant did act in self-defense within the definition of that defense. Accordingly, if the issue of [73] retreat is raised in connection with the defense of self-defense, the jury should be instructed that the burden is also the State's to prove beyond a reasonable doubt that defendant knew he could have retreated with complete safety, and that if a reasonable doubt upon that question should exist, the issue of retreat must be resolved in defendant's favor.
C.
As we have said, the subject of retreat arises most often in homicide cases. It is equally pertinent if the charge is assault with intent to kill (N.J.S. 2A:90-2). State v. Centalonza, supra (18 N.J. Super. 154). Here the charge is atrocious assault and battery (N.J.S. 2A:90-1), a crime which involves vicious or brutal conduct. State v. Riley, 28 N.J. 188, 197-198 (1958), appeal dismissed and cert. denied, 359 U.S. 313, 79 S.Ct. 891, 3 L.Ed.2d 832 (1959). An intent to kill is not an ingredient of that offense, but an intent to do serious bodily harm would seem to be implicit. The doctrine of retreat reflects a policy with respect to the use of deadly force, and the same policy considerations equally obtain if the end result is something less than murder. The Appellate Division held the doctrine applicable to atrocious assault and battery. The comment to Article 3 of the Model Penal Code (at p. 3) expresses the same view, saying, "If the particular force, for example, would be unjustifiable in a prosecution for homicide it should be equally unjustifiable if the victim survives and what is charged is an assault." This seems sound, and hence an instruction upon the subject is appropriate in a trial for atrocious assault and battery, but the instruction should be expressly centered about the use of deadly force.
D.
We turn to the instruction of the trial court. It reads:
"* * * If you find the charges involved or either of them happened on the joint or common driveway and that the defendant [74] had an available opportunity to retreat and you also find that he was or appeared to be threatened by assault and battery with imminent danger of life or serious bodily harm, again there is no duty to retreat. On the other hand, under the latter circumstances, if you find that he did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm, he had a duty to retreat and if he failed to retreat the defense of self-defense would not avail him and would not constitute a defense to these charges or any of these charges if you find that he had a duty to retreat."
It is at once apparent that the charge consists of abstract propositions, unanchored to the factual setting. It will be recalled the encounter had two phases, although one quickly followed the other. The first phase was an unarmed attack by Nicholas which Abbott met in kind; the second involved, as the jury could find, an attack or apparent attack by hatchet in the hands of Michael and by kitchen utensils allegedly wielded by Mary, both aided by Nicholas who had arisen from the initial punch. We have no way of knowing whether the jury understood Abbott was required to retreat when first assailed by Nicholas alone. The jury may well have so gathered since the instruction excluded self-defense "if you find that he [Abbott] did not appear to be threatened by assault and battery with imminent danger of life or great bodily harm," and of course Nicholas's attack with his fists readily fitted within those terms.
The State asks us to assume the jury understood an unarticulated premise, i.e., that the court was referring solely to the hatchet affair. If we could so assume, still under the instruction the obligation to retreat would depend upon the nature of the attack upon Abbott rather than the amount of force Abbott intended to employ. In short, there was no reference to the use of a deadly force by Abbott. And if we should read the charge in still another way, to wit, that the court was merely defining its prior reference to "an available opportunity" to retreat and hence meant that the opportunity was not "available" if retreat would have subjected Abbott to imminent danger to his life or of great bodily harm but was "available" if he could get away with [75] a hurt of lesser character, still the charge would be incorrect. This is so because there is no obligation to retreat unless retreat can be effected "with complete safety," and indeed with knowledge that retreat can be so effected. Further, upon that interpretation, the instruction would be devoid of any statement of the facts prerequisite for consideration of the subject, i.e., an intent by the defendant to use a deadly force.
We have said enough to indicate the insufficiency of the charge. Even upon study and restudy we are not sure we can extract the thesis the trial court held. A jury which listens to a single reading of an instruction cannot be expected to debate its meaning and reach a correct view of it. A charge should be a clear, unambiguous guide related to the evidence in the case. The conviction must be reversed.
II.
The record of Abbott's direct examination reads in part:
"Q. How much do you weigh, Mr. Abbott? A. At the present time?
Q. At the present time. A. Just close to 200 pounds, right now.
Q. Now, on July 15, 1957 [the date of the alleged crime] do you know how much you weighed? About July 15, not necessarily on that day, say within a few pounds either way. A. About 135, 140 pounds, I guess.
Q. Why was your weight so low at that time?
Mr. Loftus: I object on the ground it is irrelevant. I don't see any relevancy to this situation.
The Court: I will sustain the objection."
Defendant complains he was thereby barred from showing serious medical conditions, pertinent to his ability to defend with lesser force or to retreat with safety. The Appellate Division held defendant failed to comply with R.R. 1:5-1(a) in that he did not object to the ruling, and further held there was no manifest wrong or injury.
The cited rule reads in part:
"* * * Error in the admission or rejection of testimony, or in the charge of the court, or in the refusal to charge as requested by [76] the defendant, or in the denial by the court of any matter resting in discretion, or in any other ruling or order made during the course of the trial, shall be cause for reversal if specific objection thereto was made and it appears from the entire record of the proceedings had upon the trial that the defendant thereby suffered manifest wrong or injury." (Emphasis added)
Read literally, this rule would seem to require a specific objection to be stated after an offer of proof has been rejected, and some casual statements might be read to support that theme. State v. Gibson, 15 N.J. 384, 391 (1954); State v. Huff, 14 N.J. 240, 248 (1954); State v. Hogan, 20 N.J. Super. 1, 9 (App. Div. 1952). Thus understood, the rule could be thought to continue the discredited practice of former days under which error could not be asserted on appeal unless at the trial counsel had intoned "exception."
Our rules do not perpetuate mere ritual. Rather the purpose is to require a litigant to make known his position to the end that the trial court may consciously rule upon it. When that has happened, it would be pure ceremony to require some further protest. This view is embodied in R.R. 3:7-8, which reads as follows and in the light of which R.R. 1:5-1(a), quoted above, must be understood:
"Exceptions to rulings or orders of the court or instructions to the jury are not required in order to reserve the questions involved for review on appeal; and for all purposes for which an exception has heretofore been necessary it suffices that the defendant, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and the grounds therefor; but if a party has no opportunity to object to a ruling or order, the absence of an objection shall not thereafter prejudice him."
Actually in the Tentative Draft (1948) of our rules, the provisions of this rule appeared in Rule 1:2-14(a), the forerunner of R.R. 1:5-1(a).
Applied to the admission and exclusion of evidence, these rules have this effect: If a litigant complains of the admission of evidence, he must show he objected to its receipt and stated the reasons for his opposition. If he did, no more is required to preserve his right to appellate [77] review. If the litigant complains of an exclusion of evidence, it is enough that his adversary's objection was upheld unless he refused an opportunity to tell the court why he thought the evidence should be admitted. Here Abbott complains of the exclusion of proof. The State objected to the offer as "irrelevant." If the trial court wished Abbott to explain his thesis, an opportunity to do so should have been given. The trial court did not, but rather, apparently satisfied it fully appreciated what was involved, upheld the State. We see no reason to require Abbott to utter "I object" or to attempt to argue against a ruling already announced. He made known the ruling he wished, i.e., admission of the evidence he offered. He did not decline an opportunity to enlighten the court. We are satisfied the alleged error is presented without recourse to the doctrine of "plain error."
There is a different question with which the one just discussed should not be confused. That question is whether a litigant must spread on the record the essence of what he would have proved but for the adverse ruling. R.R. 4:44-3 provides "the examining attorney may make a specific offer of what he expects to prove by the answer of the witness." The rule in terms applies to civil matters but is merely declaratory of prior good practice and should be observed as well in criminal proceedings. Without such disclosure, an appellate court cannot readily evaluate whether the exclusion, although erroneous, resulted in manifest wrong or injury. State v. Micci, 46 N.J. Super. 454, 458 (App. Div. 1957); see State v. Gambutti, 36 N.J. Super. 219, 233 (App. Div. 1955); New Jersey Highway Authority v. Rudd, 36 N.J. Super. 1, 5 (App. Div. 1955).
Of course the details of the proffered proof ultimately depend upon the integrity of counsel, and that being so, a representation first made on appeal might be argued to be no less meaningful. But the proffer should be made at trial, for at least the reason that the statement may well induce the trial judge to reconsider and perhaps to reverse his ruling.
[78] Our experience indicates widespread failure to place such offers upon the trial record. Indeed, frequently we receive our first glimpse in response to questions at oral argument. In the present case the disclosure first appeared in the brief on appeal, wherein we are told defendant wanted to prove serious injuries and illness from which he was in the process of recovery at the time of the alleged offense. The admissibility of such proof on the issues of excessive force and of retreat is too evident to require discussion. The question disallowed was on its face suggestive of proof of that kind. Since the judgment must be reversed for other reasons already given, we need not speak further of the sufficiency of the record. But we take this opportunity to remind the bar that a failure to spread the offer on the trial record may lead the appellate court to conclude that it cannot find the error was harmful.
III.
Abbott further urges the State could not move the indictment against him because prior thereto it had brought Michael Scarano to trial for assault with intent to kill him, which trial resulted in an acquittal. We think the Appellate Division correctly rejected this contention.
IV.
Since the case must be remanded, we refer to a ruling of which Abbott does not here complain, lest it be repeated at a retrial. During direct examination Abbott was asked, "At any time did you intentionally strike anybody with this ax?" The State objected "on the ground it is leading," and was sustained. Curiously, a question essentially the same had already been asked and answered. After that question was answered, the State objected without specifying any ground. The trial court replied, "I think it is admissible and is answered anyway. I will permit it to stand."
The objection that the question was "leading" was unsound. In a sense every question is "leading." If [79] interrogation did not lead, a trial would get nowhere. Indeed one vice of a question such as, "What is your position in this case?," is that it does not lead enough, and thus would deny the opposing party an opportunity to guard against the rankest kind of improper proof. A question must invite the witness's attention to something. No formula can be stated with confidence that it will embrace all situations. But it may be said that ordinarily a question is not improperly leading unless it suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness. See generally McCormick, Evidence § 6 (1954); 3 Wigmore, Evidence §§ 769-72 (3d ed. 1940). The question whether Abbott intentionally struck any of the Scaranos with the ax was perfectly proper; we do not see how else it could be phrased. Cf. State v. Len, 108 N.J.L. 439, 440 (Sup. Ct. 1932).
Since the objection to the earlier question was not particularized, it is appropriate to add that questions addressed to the mental operations of a defendant are thoroughly proper when such operations are an ingredient of the State's case or of a defense. See State v. Myers, 7 N.J. 465, 483 (1951); State v. Len, supra (108 N.J.L. 439). Relevancy and materiality are obvious. And a defendant's competency to testify thereto is equally plain. Indeed no one knows better than he. Of course, he may not be believed, but his self-interest is not a bar, and has not been since the demise of the common-law rule which denied the stand to a party to a controversy. See 2 Wigmore, Evidence § 579, at p. 701 (3d ed. 1940).
The judgment is reversed and the matter remanded for further proceedings not inconsistent herewith.
For reversal and remandment — Chief Justice WEINTRAUB, and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN — 7.
For affirmance — None.
7.2.8.5.1.1.9 Florida Statute on Justifiable Use of Force 7.2.8.5.1.1.9 Florida Statute on Justifiable Use of Force
7.2.8.5.1.1.10. Sullivan Testimony
7.2.8.5.1.1.11. Jeannie Suk, At Home in the Law, Chapter 3 - Scenes of Self-Defense
7.2.8.5.1.2 IV.A.ii. Necessity 7.2.8.5.1.2 IV.A.ii. Necessity
Necessity may also justify action that would otherwise be criminal. The category is significantly narrower than self-defense, and claims of necessity are rarely successful. Necessity requires imminent and grave harm that results through no fault of the defendant. The defendant must take forceful action only when the benefits clearly outweigh the harms. As you will see, the cases in this section often deal with significantly more extreme fact patterns than the self-defense cases. Why is the necessity justification narrowly construed?
7.2.8.5.1.2.1 Cleveland v. Anchorage 7.2.8.5.1.2.1 Cleveland v. Anchorage
Ann Hisky CLEVELAND, Kristine M. Fardig, Robert L. Head, and Pamela Sigfried, Appellants,
v.
MUNICIPALITY OF ANCHORAGE, Appellee.
Supreme Court of Alaska.
[1075] Wayne Anthony Ross and Donald J. Miller, Miller & Ross, Anchorage, and Patrick Monoghan, Idaho, for appellants.
Elaine Vondrasek, Asst. Municipal Prosecutor, Allen M. Bailey, Municipal Prosecutor, and Theodore D. Berns, Municipal Atty., Anchorage, for appellee.
Before RABINOWITZ, C.J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.[*]
OPINION
RABINOWITZ, Chief Justice.
The facts underlying the four criminal convictions appealed from in this case are not in dispute.
On January 6, 1978, members of various anti-abortion groups staged a nationwide protest. In conjunction with that movement, members of Alaska Right to Life staged a demonstration outside of the building housing the Alaska Hospital and the Alaska Clinic in Anchorage. Having decided that they had "tried everything else" and that it was necessary "to try ... peacefully to stop the taking of human life," appellants Head, Fardig, Sigfried and Cleveland entered the Alaska Clinic to conduct a more emphatic protest than the one in progress outside the building. Head and Siegfried proceeded to attach themselves to the door of the Clinic's operating room with handcuffs and chains, while Cleveland and Fardig handcuffed themselves to the operating table.
Shortly after appellants had established themselves in the Clinic, Mingo, the building security supervisor, asked them to leave and then, in response to their refusal, obtained a set of boltcutters. Mingo first cut the handcuffs connecting Head and Sigfried to the door and escorted them from the building. He then returned and, overcoming relatively minor resistance, freed Fardig and Cleveland. Fardig was escorted outside and Cleveland, who refused to walk, was carried out on a sheet. All four were advised not to return unless they needed medical assistance.
Moments later, appellants re-entered the building and again approached the operating room; Mingo stopped them and again requested them to leave. Fardig, Cleveland and Siegfried then sat down on the floor, while Head removed himself to the building's main entrance and sat down there. At that point, city police were summoned. All four appellants were once again requested to leave the premises, and on refusing to do so, were arrested and then removed by police officers.
Appellants were each charged with violating Anchorage's criminal trespass ordinance[1] [1076] and all were convicted under that ordinance in the district court. The convictions were affirmed on appeal to the superior court, and are now before us on appeal from the superior court's affirmance.
Appellants' primary defense at trial was to have depended on the claim that their actions were necessary to avert imminent peril to human life. They allege error in the district court's refusal to instruct the jury on the defense of necessity. Although the trial court excluded that defense, it did allow appellants to defend on the ground that they acted under an honest and reasonable, but mistaken, belief that the necessity defense would protect them from criminal prosecution for their actions. They allege error on the ground that the instructions given on this latter defense were so "confusing and contradictory" as to require reversal. Appellants also seek reversal on the ground that the criminal complaints relied on by the state were defective and on the ground that the cumulative impact of the alleged errors deprived them of their due process rights under the United States Constitution and the Alaska Constitution.
I. DEFECTS IN THE COMPLAINTS.
Appellants argue that the criminal complaints in this case were defective in two respects. First, Fardig, Cleveland and Sigfried claim that they were arrested in the Alaska Clinic rather than the Alaska Hospital as alleged in each of the complaints. Second, pointing to the literal language of the Anchorage trespass ordinance,[2] appellants contend that they were not in violation of that ordinance because the person who requested them to leave the building was not an "owner or occupant thereof."
Under Alaska Dist.Ct.R.Crim.P. 1(a),[3] a complaint constitutes the accusatory pleading by which an offense is charged in a district court proceeding; it serves the same function as does an indictment or information in the superior court. Under Alaska R.Crim.P. 7(c),[4] a mere formal defect does not render an indictment insufficient unless it is of a magnitude sufficient to prejudice substantial rights of the defendant. Alaska Dist.Ct.R.Crim.P. 1 directs application of the general Criminal Rule provisions to district court proceedings "[w]herever practicable." In the present case, three of the four complaints were [1077] formally defective in that they alleged that the trespasses occurred in the Alaska Hospital rather than in the Alaska Clinic where they actually did occur. Appellant Head admits that he was arrested for trespassing in the Alaska Hospital as alleged. Both facilities, however, were in fact contained within a single building. Since no prejudice to any appellant is claimed, and since we can perceive none that could be claimed, this asserted defect did not warrant dismissal of the subject complaints. See Price v. State, 437 P.2d 330, 332 (Alaska 1968).
Appellants' second attack on the sufficiency of the complaints is that Anchorage Municipal Code 8.30.010(B)(3)[5] requires that a trespasser be requested to depart from the premises by an "owner or occupant" before he can be found to have violated that ordinance. Mingo, the security supervisor for the whole Hospital-Clinic building, was, according to appellants, neither an owner nor an occupant of the building and therefore was not qualified to request them to leave.
Beyond his statements that he was "the building security supervisor" and that he was "employed by the Teamster[s] Union, Local 959," there is nothing in the record to indicate the precise nature of Mingo's employment arrangement with the Hospital or Clinic. Appellants' attack, however, is not based on the extent of Mingo's authority to act on behalf of the Clinic; it depends, rather, on a very literal reading of the trespass statute.[6] Appellants' claim assumes without argument that under the ordinance, an "owner or occupant" can never make the request that trespassers depart by acting through an agent. In the absence of argument or authority to the contrary, we see no reason for suspending the general common law of agency in construing section 8.30.010(B)(3) of the Anchorage Municipal Code. Other courts have reasoned similarly. See Johnson v. State, 277 Ala. 655, 173 So.2d 824, 827-28 (1965); People v. Thompson, 56 Ill. App.3d 557, 14 Ill.Dec. 312, 372 N.E.2d 117, 121-22 (1978). The record indicates that Mingo was a duly authorized agent of an "owner or occupant" of the Clinic acting within the scope of his employment, and his request that appellants leave the premises therefore satisfied the requirements of Anchorage Municipal Code 8.30.010(B)(3). Thus we also reject this facet of appellants' attack on the sufficiency of the complaints.
II. THE DEFENSE OF NECESSITY.
Appellants' primary claim is that in attempting to prevent the performance of abortions at the Alaska Clinic, they acted in the reasonable belief that their actions were necessary to protect human life from imminent peril. In spite of both argument and testimony offered at trial that is in apparent conflict with their present position, appellants now insist that:
It is vital to understand that these appellants, by their actions on January 6, 1978, were not protesting abortion in general, or engaging in symbolic acts which they hoped would lead the public to sympathize with the profile cause. Rather, they were directly intervening to protect the particular human lives threatened with imminent destruction at Alaska Hospital and Clinic in the abortion chambers they entered, on that very day.
In support of their position appellants cite newspaper articles[7] describing two unreported Fairfax County, Virginia, district court cases[8] in which trespassers in an abortion clinic were acquitted on this theory.
[1078] The defense of necessity requires a showing of three essential elements:
1) The act charged must have been done to prevent a significant evil; 2) there must have been no adequate alternative; 3) the harm caused must not have been disproportionate to the harm avoided.[9]
It is available if the accused reasonably believed at the time of acting that the first and second elements were present, even if that belief was mistaken; but the accused's belief will not suffice for the third element. An objective determination must be made as to whether the defendant's value judgment was correct, given the facts as he reasonably perceived them. Nelson v. State, 597 P.2d 977, 979, 980 n. 6 (Alaska 1979).
Relying heavily on State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973), the district court refused to allow the jury to consider the defense of necessity. Appellants argue that their presence "prevented the killing of children which was imminent" because "the potential victims and their mothers could not be brought to the abortion chambers through hallways and doors which the appellants were blocking."
There are several flaws in appellants' argument. First, the emergency which produces the "necessity" behind the charged act must generally be a result of the "physical forces of nature." W. LaFave & A. Scott, Criminal Law § 50, at 381. Generally, when the threatened harm emanates from a human source, an actor who violates the law in response to it can defend only on the grounds of duress, defense of others, or crime prevention. Id.[10] The defense [1079] of duress is clearly inappropriate here since appellants do not claim that their illegal acts were compelled by "the unlawful threats of another." E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Criminology 289, 290 (1974). The other two related defenses — defense of others and crime prevention — require that the harm avoided by the charged act be unlawful. R. Perkins, Criminal Law 1019 (2d ed. 1969).[11] Abortion, or the "killing of unborn children" as appellants characterize it, is not unlawful in this state, as appellants concede.[12] Given these principles, appellants' argument must fail since the alleged harm sought to be avoided did not arise from a natural source and was not unlawful.
Second, we find the reasoning of the Hawaii Supreme Court in State v. Marley, 509 P.2d 1095 (Hawaii 1973), persuasive. In Marley, the defendants were convicted of criminal trespass after entering the offices of Honeywell Corporation in an attempt to stop the "war crimes" being committed by Honeywell. As in the present case, the Marley defendants' behavior was nonviolent but was disruptive of normal business operations. Id. at 1099. Their necessity defense was rejected for three reasons, two of which we find applicable here: first, "[w]here there is a third alternative available to defendants that does not involve violation of the law, defendants are not justified in violating the law. Other forms of non-criminal protest were and are available to defendants to enable them to dramatize, and hence hopefully terminate, conduct which they may view [as] harmful." Marley, 509 P.2d at 1109 (citations omitted). Second, defendants are "unentitled to the defense of `necessity' because their actions were not reasonably designed to actually prevent the threatened greater harm... . Under any possible set of hypotheses, defendants could foresee that their actions would fail to halt" the practices to which they objected. Id.
Appellants seek to distinguish Marley on the ground that the alleged harm in that case — the manufacture of weapons to be used in the Vietnam war — was specially and temporally remote from the site of the trespass whereas the abortions they prevented were scheduled in the very rooms appellants occupied and blocked, within minutes of the time of their entry. However, the lack of "imminence" in Marley was only one of the three grounds relied upon by the court, and the differences between this case and Marley do not render [1080] the other two grounds less applicable. In other respects, the facts of the two cases are closely analogous. In both cases, it was obvious to the trespassers that their actions could not halt the alleged greater harm to which society had given its imprimatur, but rather that, at best, the harm could be only postponed for a brief interval, following which society's normal operations would reassert themselves. This was simply not the kind of emergency situation contemplated by the defense of necessity.
Further, in spite of appellants' protestations to the contrary, their acts, like the acts of the Marley defendants, are much more appropriately characterized as protesting with the intent to "dramatize, and hence hopefully terminate, conduct which they may view [as] harmful," id. at 1109, then, as appellants describe their own behavior, "directly intervening to avert an imminent threat to human life." Appellants' protest was, in fact, part of a nationwide protest that resulted in several similar arrests in other cities. Appellants appear to concede that if their actions are best described as a protest, the necessity defense would be unavailable. We think it manifest that it would be inappropriate to characterize these trespasses as anything other than a protest, and that appellants' argument of necessity must therefore be rejected.
Third, the defense of necessity requires a showing that the harm sought to be avoided was greater than the harm reasonably foreseeable as resulting from a defendant's illegal actions. Nelson v. State, 597 P.2d 977, 980 (Alaska 1979). That is, the harm reasonably foreseeably resulting from a failure to act must be balanced against that foreseeably resulting from the illegal action. We believe that harm to both the Clinic and its patients was reasonably foreseeable to the trespassers. The Clinic's schedule was disrupted and its operating room required resterilization; and it was certainly foreseeable that the patients scheduled to undergo abortions at the time the demonstration occurred would suffer emotional distress as a result of appellants' invasion of their privacy during a particularly sensitive period.
Against this must be weighed the foreseeable results of appellants' failure to intervene — the routine performance of abortions, or, as appellants regard it, the killing of human life. Appellants acknowledge that the Supreme Court of the United States has expressly rejected the identification of fetuses as "persons" in this context. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 728-730, 156-59, 35 L.Ed.2d 147, 179-80, reh. denied, 410 U.S. 959, 93 S.Ct. 1409, 35 L.Ed.2d 694 (1973). Appellants' view is that Roe v. Wade, although foreclosing the possibility of action by state officials to protect fetuses until viability, does not prohibit similar actions by individuals. The question, then, is a familiar one: whether appellants can, by appeal to a "higher law," justify their illegal attack on a form of government-approved behavior. Citing this court to two unreported cases[13] and the Nuremberg Trials,[14] appellants seek a ruling that, as a general principle, abortion is a more significant evil than trespass.
However, even assuming that appellants are correct in arguing that Roe v. Wade does not control as to the weight to be accorded "potential life" in this context,[15] the United States Supreme Court is not the only authority to which we must defer in [1081] this area. The Alaska legislature is better suited to strike the balance than is this court. Indeed, the law of necessity itself requires us to consult the legislature's enactments:
The defense of necessity is available only in situations wherein the legislature has to itself, in its criminal statute, made a determination of values. If it has done so, its decision governs.
LaFave and Scott, supra, § 50 at 382.[16]
Alaska's legislature has, we think, already spoken as to the balancing before us, and concluded that the interests in potential life appellants sought to vindicate are outweighed by the very privacy interests appellants sought to invade.[17] Thus, we cannot agree that any abortions that were delayed by appellants' demonstration can be characterized as sufficiently harmful to outweigh the harm that was the foreseeable result of appellants' behavior.
We hold that the trial court's rejection of appellants' necessity defense was proper.[18] We are in agreement with the District of Columbia Court of Appeals' response to the [1082] necessity defense raised by participants in a similar anti-abortion demonstration:
Unlike medical necessity or other emergency situations, the necessity cited by appellants cannot shield them from criminal liability for their acts.
The rights to free speech, to assembly, and to petition the government for grievances are a cornerstone of the American system. So, too, is the right to be free from criminal interference. These appellants trespassed on the rights of others and did so without excuse.
Gaetano v. United States, 406 A.2d 1291, 1295 (D.C.App. 1979).
III. JURY INSTRUCTIONS.
Appellants assert that the following three instructions were so "confusing and contradictory" as to require reversal:
[NO. 7]
In the crime charged in the complaint, there must exist a union or joint operation of act or conduct and criminal intent. To constitute criminal intent it is not necessary that there should exist an intent to violate the law.
[NO. 8]
In this case, if you find from the evidence that a defendant honestly believed that he or she had a right to remain on the premises occupied by Alaska Hospital and Clinic even after being instructed to leave, and that such belief was based upon reasonable grounds, and that the conduct of each defendant would have been lawful and proper had the facts been such as defendant honestly believed them to be, then you must find such defendant not guilty.
[NO. 9]
To constitute the defense of necessity, the defendants would have had to show that they were attempting to prevent some harm that was within their presence. Since the facts of this case have shown that the defendants were not attempting to prevent harm within their presence, the defense of necessity is not applicable. Therefore, you may not consider the defense of necessity in your deliberations.
On appeal, the superior court agreed that the instructions were inconsistent, but held that the inconsistency did not require reversal. In its written opinion, the superior court stated:
The real problem is that instruction no. 8 states a proposition of law that is inapplicable to these cases. In essence, instruction no. 8 is an instruction on mistake of law as a defense. Mistake of law is not a defense applicable to the municipal trespass ordinance (AO 8.30.010) under which appellants were charged. Consequently, the judge gave an unwarranted instruction. The fact that instructions nos. 7 and 9 were inconsistent with no. 8 simply served to cure the error of giving no. 8. The error was harmless, as it is clear that the jury rejected the erroneous mistake of law instruction, so that `the jury was not substantially swayed or affected by the error.' Adkins v. Lester, 530 P.2d 11, reh. den., 532 P.2d 1027 (Alaska 1974).
Instruction number eight was based upon the trial court's view that, although appellants could not defend on the basis of necessity, they could seek to excuse their conduct [1083] on the ground that they honestly and reasonably believed that that defense justified their presence at the Clinic. Three of the four appellants testified that they were aware of two judicial decisions in which, on facts virtually identical to those in the present case, defendants were acquitted on the ground of necessity.[19] All four testified that they believed they had a legal right to enter the Clinic in an attempt to prevent abortions from being performed. The instruction, then, would have required acquittal had the jury found these beliefs to be both honest and reasonable.
At trial, the state argued that the mistake of law defense, as presented by appellants, is only applicable if the mistaken reliance is upon the statutory, administrative, or case law of either the United States or the state in which the illegal actions were committed. We have found no authority, and appellants cite none, for the proposition that an individual is justified in relying on the case law of other jurisdictions in deciding on a course of conduct.
Since the cases relied upon by appellants were both decided by a trial court in Fairfax County, Virginia, the defense of "reliance of a judicial decision" is inapplicable to the present case. The district court therefore committed error in giving instruction number eight.
We must agree with appellants' claim that the three instructions taken together were confusing. Instruction seven explains, correctly, that the criminal intent necessary to convict does not include intent to violate the law. Instruction eight, however, indicates that if the appellants honestly and reasonably believed their actions did not violate the law, they were not guilty. Instruction nine states the court's correct finding that the necessity defense was not available. Instructions eight and nine, taken together, express the court's erroneous view that an honest and reasonable belief in the availability of that defense could excuse the appellants' violations. Instruction seven, on the other hand, indicates that appellants need not have intended that their conduct be illegal to be convicted even if he thinks his conduct is legal and that he cannot be convicted. The instructions seem to say both that a defendant can be convicted if he reasonably and honestly believes his conduct to be legal.
As the superior court pointed out, instruction eight described a defense that was unavailable to appellants in this case. That instruction could have only operated in appellants' favor, however, and we agree with the superior court's conclusion that "it is clear that the jury rejected the erroneous ... instruction." We also agree with the superior court's further conclusion that "the jury was not substantially swayed or affected by the error"; as such, it did not affect appellants' substantial rights and was therefore harmless under Love v. State, 457 P.2d 622, 631 (Alaska 1969).
Having discerned only the single harmless error discussed above, we perceive no merit in appellants' final claim — that the cumulative effect of the errors alleged to have been committed by the trial court deprived them of the "level of procedural fairness" required by the due process clauses of the United States and Alaska Constitutions. The convictions of appellants are AFFIRMED.
DIMOND, Senior Justice, concurs.
COMPTON, J., not participating.
DIMOND, Senior Justice, concurring.
I agree with the majority that the defendants' convictions must be affirmed. It seems possible to me that under certain circumstances the defense of necessity should justify what would otherwise be illegal conduct engaged in to prevent the performance of an abortion. The defense is clearly inapplicable in this case, however, because as the majority notes the defendants' conduct can only be characterized as a general protest against abortions.
The defense of necessity is designed to justify otherwise illegal conduct taken to [1084] prevent a specific harm from occurring. See, e.g., W. LaFave & A. Scott, Criminal Law § 50 (1972). Public policy prohibits applying the defense of necessity to exonerate a person of liability for his or her legal conduct engaged in as a form of civil disobedience, no matter how laudable the person's goals may be. Thus, the defense of necessity has been ruled unavailable in other prosecutions for trespass at abortion clinics (Gaetano v. United States, 406 A.2d 1291, 1294 (D.C.App. 1979); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn.Mun. 1978)) and in prosecutions for trespass and vandalism protesting the Vietnam War (United States v. Berrigan, 283 F. Supp. 336, 338-40 (D.Md. 1968); State v. Marley, 509 P.2d 1095 (Hawaii 1973)). The court in United States v. Berrigan aptly expressed this rationale:
No civilized nation can endure where a citizen can select what law he would obey because of his moral or religious belief. It matters not how worthy his motives may be. It is axiomatic that chaos would exist if an individual were permitted to impose his beliefs upon others and invoke justification in a court to excuse his transgression of a duly-enacted law.
283 F. Supp. at 339. A person who chooses to disobey a law because he or she believes it is necessary to do so in pursuit of a moral cause must accept responsibility for the illegality of that conduct. This was particularly well stated by Judge Sobeloff in United States v. Moylan, 417 F.2d 1002, 1008 (4th Cir.1969):
From the earliest times when man chose to guide his relations with fellow men by allegiance to the rule of law rather than force, he has been faced with the problem how best to deal with the individual in society who through moral conviction concluded that a law with which he was confronted was unjust and therefore must not be followed. Faced with the stark reality of injustice, men of sensitive conscience and great intellect have sometimes found only one morally justified path, and that path led them inevitably into conflict with established authority and its laws. Among philosophers and religionists throughout the ages there has been an incessant stream of discussion as to when, if at all, civil disobedience, whether by passive refusal to obey a law or by its active breach, is morally justified. However, they have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.
Adherents and practitioners of civil disobedience who have reached this conclusion are too many to list. One need only allude to Socrates, Sir Thomas More, Henry David Thoreau, Ghandi, and Martin Luther King, Jr. whose actions supported this proposition. The Lutheran and Episcopal Churches in America have endorsed civil disobedience, but only if action is non-violent and the actor is willing to accept the consequences of his action.
Id. at 1008 & n. 21 (footnote integrated into text) (footnote omitted).
I empathize with the defendants' sorrow over the loss of human lives caused by abortions. I believe the United States Supreme Court burdened this country with a tragic decision when it held in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that the word "person," as used in the fourteenth amendment, does not include the unborn, id. at 158, 93 S.Ct. at 729, 35 L.Ed.2d at 180, and that states cannot "override the rights of the pregnant woman" by "adopting one theory of life." Id. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. I do not agree with the Court's conclusion that a state's interest in potential life does not become "compelling" until the fetus has [1085] attained viability. It stated its explanation for this conclusion as follows:
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
410 U.S. at 163, 93 S.Ct. 731-32, 35 L.Ed.2d at 183. As Professor Tribe indicates, "One reads the Court's explanation several times before becoming convinced that nothing has inadvertently been omitted." Tribe, Forward to The Supreme Court 1972 Term, 87 Harv.L.Rev. 1, 4 (1973) (footnote omitted). I agree with Professor Tribe when he states, "Clearly, this [analysis] mistakes `a definition for a syllogism,' and offers no reason at all for what the Court has held." Id., quoting Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 924 (1973) (footnotes omitted).
In effect, the Supreme Court held that because there is no consensus as to when human life begins it must act as though it were proven that human life does not begin until birth so as to preserve to women the right to make their own decision whether an abortion takes a human life or not. It would make more sense to me if, in the face of uncertainty, any error made were made in favor of the fetus, which many believe to be human life.
The development of a zygote into a human child is a continual, progressive development. No one suggests that the born child is not a human being. It seems undeniable, however, that human life begins before birth. As Professor Curran states:
[T]he fetus one day before birth and the child one day after birth are not that significantly or qualitatively different in any respect. Even outside the womb the newborn child is not independent but remains greatly dependent on the mother and others. Birth in fact does not really tell much about the individual as such but only where the individual is — either outside the womb or still inside the womb.
C. Curran, Transition and Tradition in Moral Theology 209 (1979). Similarly, viability does not mark the beginning of the truly human being.
[V]iability again indicates more about where the fetus can live than what it is. The fetus immediately before viability is not that qualitatively different from the viable fetus. In addition viability is a very inexact criterion because it is intimately connected with medical and scientific advances. In the future it might very well be possible for the fetus to live in an artificial womb or even with an artificial placenta from a very early stage in fetal development.
Id. (footnote omitted). I join with those persons who believe that truly human life begins sometime between the second and third week after conception.
Biological information heavily influences this judgment, but the ultimate reason rests on the recognition that individuality, which is a most fundamental characteristic of the truly human being, is not achieved before this time, up to which twinning and recombination can occur. Before this time there is no organizer which directs the differentiation of the pluripotential cells, and without this organizer hominization cannot occur. Also this theory contends that the large number (perhaps as many as 50 percent) of fertilized ova which are spontaneously aborted without the mother being aware of having conceived are not truly human beings.
Id. at 212.
I therefore believe that abortions performed after the second or third week of pregnancy cause the taking of a human life, which should be prohibited under most circumstances. Furthermore, I believe that if a majority of people within a state reach the conclusion that a human life entitled to protection exists some time before birth the people should be able, through their legislature, to enact statutes in accordance with [1086] their "theory of life," as the Court phrased it in Roe v. Wade, 410 U.S. at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182. Nonetheless, persons who share these convictions must work through the political process to achieve their goals or accept the consequences imposed by our legal system for attempting to achieve their goals by unlawful action.[1]
[*] Dimond, Senior Justice, sitting by assignment made pursuant to article IV, section 16 of the Constitution of Alaska.
[1] Anchorage Municipal Code 8.30.010 reads, in pertinent part, as follows:
Trespass — Posting of property — Penalty
A. It is unlawful for any person, firm or corporation to commit a trespass upon either public or private property without consent of the owner of the property.
B. Without constituting any limitation upon the provisions of subsection A hereof, any of the following acts by any person, firm or corporation shall be deemed included among those that constitute trespasses in violation of the provisions of subsection A, and appropriate action may be taken hereunder at any time, or from time to time, to prevent or punish any violation or violations of this section.
The aforesaid enumerated acts shall include:... .
2. the pursuit of any course of conduct or action upon the land of another in violation of a notice posted or exhibited at the main entrance to the premises or at any point of approach or entry, or in violation of any notice, warning or protest given orally or in writing by any owner or occupant thereof;
3. a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof; ... .
[2] Appellants rely on Anchorage Municipal Code 8.30.010(B)(3), under which "a failure or refusal to depart from the premises of another, including publicly owned property, upon request to do so orally or in writing by any owner or occupant thereof" constitutes a trespass.
[3] Alaska Dist.Ct.R.Crim.P. 1(a) reads, in part:
"A criminal action is commenced by the filing of a complaint."
[4] Alaska R.Crim.P. 7(c) reads, in part:
No indictment is insufficient, nor can the trial, judgment or other proceedings thereon be affected by reason of a defect or imperfection in matter of form in the indictment, which does not tend to prejudice the substantial rights of the defendant.
[5] See note 2 supra.
[6] Appellants define "occupant" to mean "one having possession" of the premises.
[7] J. Beck, Success in Trespass Gives Right-to-Lifers a Legal Lift, The Washington Star, October 19, 1977, at B1; M. Weil, Va. Abortions Law Held Unconstitutional, The Washington Post, February 11, 1978, at B3.
[8] County of Fairfax v. Gaetano, No. 13974 (Gen.Dist.Ct. of Fairfax County, Va., October 17, 1977); County of Fairfax v. Smith, No. ___ (Gen.Dist.Ct. of Fairfax County, Va., February 11, 1978).
[9] Nelson v. State, 597 P.2d 977, 979 (Alaska 1979). See E. Arnolds & N. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.Law & Criminology 289, 294 (1974); W. LaFave & A. Scott, Criminal Law § 50 at 385-88 (1972). See also AS 11.81.320, directing the courts to apply the common law to the defense of necessity in most situations.
[10] LaFave and Scott note that this requirement may be relaxed in some contexts:
With the defense of necessity, the pressure must come from the physical forces of nature (storms, privations) rather than from other human beings. (When the pressure is from human beings, the defense, if applicable, is called duress rather than necessity).
... .
The typical duress case, however, has involved a situation in which A has ordered B to engage in certain conduct prohibited by the criminal law or else suffer certain consequences. It might well be argued that when an individual acts to avoid a greater harm from a person who has not given such an order — e.g., see People v. Richards, 269 Cal. App.2d 768, 75 Cal. Rptr. 597 (1969), where defendant alleged he escaped from prison to avoid being killed by other inmates — the situation ought to be dealt with as a form of necessity rather than duress. In Richards, the court held the defense of duress was not available because `there was no offer to show that anyone demanded or requested that the defendant escape.'
W. LaFave & A. Scott, Criminal Law § 50 at 381-82 (1972) (footnote integrated into text). Some jurisdictions have agreed. See, e.g., People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (Cal. App. 1974) (under certain circumstances, necessity defense based upon threats of forcible sodomy may be raised in prosecution of prisoner on escape charges). The United States Supreme Court has defined very narrowly the situations in which a necessity defense to an escape charge may be available, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), holding that defendants must produce evidence of a bona fide attempt to surrender or return to custody as soon as the claimed necessity had lost its coercive force. We do not disagree with this expansion of the necessity defense to encompass human threats, but we are in agreement with those commentators who have noted that it should be limited to cases in which the threatened man-made harm is illegal:
The courts which have held the [necessity] defense inapplicable based their decisions primarily on the holding that first trimester abortions are legal. These opinions imply that whenever the harm emanates from a human source, this harm must be unlawful before the necessity defense can be used. This assumption, although not explicit in the cases or statutes, is solidly based in the common law as developed in both older and more recent cases. The early cases did not face the question as they dealt only with harms caused by natural forces, which can never be illegal. When faced with cases involving human-created harms, the courts modified the necessity doctrine and required that the threatened harm be illegal. This requirement continued in the prison escape cases. Although these decisions held necessity to be a proper plea when the threatened harm emanated from a human source, the facts of the cases involved human-created threats of unlawful acts, usually rape, homicide or felonious assault. Recent codifications and judicial opinions discuss the necessity defense in broad terms, neither expressly designating the source of the threatened harm nor its character. They are meant to codify the common law and can fairly be assumed to embody common-law principles. Several states' inclusions of self-defense and defense of another, which both justify otherwise unlawful conduct in the face of another person's unlawful act, support this thesis.
Note, Necessity as a Defense to a Change of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 513 (1979).
[11] Prof. Perkins explains that the "defense of others" doctrine was originally limited to others within the defendant's family or household, or some other group as to whom he had a legal or socially recognized duty of protection. The common-law privilege of using force for crime prevention was not limited in terms of those to whose aid the defendant could come, but was limited to crimes involving felonious attacks. Both have been expanded beyond these original limitations. "The present position, which represents a merging of the privilege of crime prevention with the privilege of defending others, is that one may go to the defense of a stranger if that person is the innocent victim of an unlawful attack." R. Perkins, Criminal Law 1019 (2d ed. 1969).
The new criminal code requires, for both self-defense and defense of others, that the defendant be responding to "what he reasonably believes to be the use of unlawful force." AS 11.81.330(a); 11.81.340.
Thus, even assuming that a fetus should be regarded as an "other" in the context of a "defense of others" claim, the requirement that the threatened harm be illegal precludes such a claim here.
[12] Appellants do argue, however, that abortion is violative of international law. Similar arguments were raised and rejected in Marley. State v. Marley, 509 P.2d 1095, 1109-12 (Hawaii 1973).
[13] See note 8 supra.
[14] United States of America v. Greifelt, 4 Trials of War Criminals Before the Nuernberg Military Tribunal 608 (1949).
[15] However, we are not certain that the distinction is a plausible one. By carving out a necessity defense in abortion protest cases, i.e., judicially sanctioning private attempts to deprive pregnant women of rights the Supreme Court has declared them to have as against the state, this court itself might trigger the "state action" requirement of the Fourteenth Amendment. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). If the legislature cannot delegate a "veto power" to the patient's parent or spouse, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), we think it unlikely that a state court could delegate such a "veto power" to strangers, to be exercised in such an obtrusive manner.
We note that, in Northern Virginia Women's Medical Center v. Balch, 617 F.2d 1045 (4th Cir.1980), the court upheld a district court injunction and contempt order under 42 U.S.C. § 1985 against Mr. Gaetano and other demonstrators who, under the protection of the Fairfax County rulings noted above in n. 8, were systematically blocking access to the abortion clinic without being prosecuted. The complaint charged these demonstrators, with the complicity of the state court judges and prosecutors (who had temporarily suspended prosecutions in such trespass cases), with denying the abortion clinic and its patients the right to perform and obtain abortions in conformity with the Federal Constitution.
[16] The new criminal code contains a similar limitation at AS 11.81.320:
Justification: Necessity. Conduct which would otherwise be an offense is justified by reason of necessity to the extent permitted by common law when
(1) neither this title nor any other statute defining the offense provides exemption or defenses dealing with the justification of necessity in the specific situation involved; and
(2) a legislative intent to exclude the justification of necessity does not otherwise plainly appear.
[17] AS 18.16.010 reads:
Abortions. (a) No abortion may be performed in this state unless (1) the abortion is performed by a physician or surgeon licensed by the State Medical Board under AS 08.64.200; (2) the abortion is performed in a hospital or other facility approved for the purpose by the Department of Health and Welfare or a hospital operated by the federal government or an agency of the federal government; (3) consent has been received from the parent or guardian of an unmarried woman less than 18 years of age; and (4) the woman is domiciled or physically present in the state for 30 days before the abortion. `Abortion' in this section means an operation or procedure to terminate the pregnancy of a nonviable fetus. Nothing in this section requires a hospital or person to participate in an abortion, nor is a hospital or person liable for refusing to participate in an abortion under this section.
(b) A person who knowingly violates a provision of (a) of this section, upon conviction, is punishable by a fine of not more than $1,000, or by imprisonment for not more than five years, or by both.
We express no opinion as to the constitutionality of these provisions. We only cite the statute to note that the legislature has resolved the "choice of evils" questions appellants would have us decide.
[18] A recent law review article cites several policy considerations that lead to the same conclusion:
When a court justifies an illegal act, it creates a new rule of law to govern the same dilemma in the future. In the clinic trespass context, this would mean that all sincere anti-abortion protesters who invaded clinics to prevent abortions would not be subject to criminal liability. There is even authority that clinic personnel or other persons could not use force to stop these justified actions. This could effectively close all abortion clinics so that women would have no means by which to effectuate their decision. This would occur even though clinic action causes no legal harm. There has never been an application of the necessity defense having such profound effects. The prison escape cases do not provide an adequate parallel since courts treat each case as unique, requiring a specific threat to the particular defendant. In the clinic cases a mere showing that abortions were being performed would be enough to acquit the anti-abortion intruder. Necessity was never meant to be applied in such an abusive manner.
The doctrine was developed to deal with unusual circumstances — ones never contemplated by the criminal or civil law. Abortions are not rare occurrences. They are sanctioned by the Constitution and by a substantial portion of society. This is not an area in which the law is silent. When a court applies necessity, its balancing of the harms reflects society's consensus. Necessity is meant to justify action that society would clearly want to exonerate. Trespasses that interfere with constitutional rights do not fall within this purpose.
Allowing necessity to justify these protests permits defendants to choose which laws they will obey based on their own moral code. This would justify acts of civil disobedience. The fact that these protests are the only means available at the moment to stop the abortion does not change the major purpose of the action which protesters and their lawyers admit is to change the law with regard to abortion. This simply cannot be accepted as a proper use of the necessity defense. [footnotes omitted]
Note, Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev. 501, 514-15 (1979).
[19] See note 8 supra.
[1] I would not categorically reject the argument that the defense of necessity may be invoked to justify conduct intended to prevent a particular abortion form being performed, as opposed to conduct intended to protest abortions in general. For example, if a husband were to trespass at a clinic to prevent his wife from obtaining an abortion after the third week of her pregnancy, I believe the harm he would be seeking to prevent would be greater than the harm he would cause. If there were no other adequate means by which he could prevent the abortion, I think the defense of necessity could justify his conduct.
The majority has suggested several reasons why, under even these circumstances, the defense would be unavailable (e.g., the defense is unavailable if the harm being sought to be prevented emanates from lawful human conduct). However, it seems inappropriate to give these issues extensive consideration, inasmuch as it would not affect the outcome of this case. I believe it is preferable to address these issues when and if a case that involves this particular factual situation comes before this court.
7.2.8.5.1.2.2 People v. Unger 7.2.8.5.1.2.2 People v. Unger
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
FRANCIS UNGER, Appellee.
Supreme Court of Illinois.
[334] [335] William J. Scott, Attorney General, of Springfield, and Martin Rudman, State's Attorney, of Joliet (James B. Zagel, Jayne A. Carr, and Steven J. Rosenberg, Assistant Attorneys General, of counsel), for the People.
Robert Agostinelli, Deputy Defender, and G. Joseph Weller, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
Affirmed and remanded.
MR. JUSTICE RYAN delivered the opinion of the court:
Defendant, Francis Unger, was charged with the crime [336] of escape (Ill. Rev. Stat. 1971, ch. 108, par. 121), and was convicted following a jury trial before the circuit court of Will County. Defendant was sentenced to a term of three to nine years to be served consecutively to the remainder of the sentence for which he was imprisoned at the time of the escape. The conviction was reversed upon appeal and the cause was remanded for a new trial over the dissent of one justice. (33 Ill. App.3d 770.) We granted leave to appeal and now affirm the judgment of the appellate court.
At the time of the present offense, the defendant was confined at the Illinois State Penitentiary in Joliet, Illinois. Defendant was serving a one- to three-year term as a consequence of a conviction for auto theft in Ogle County. Defendant began serving this sentence in December of 1971. On February 23, 1972, the defendant was transferred to the prison's minimum security, honor farm. It is undisputed that on March 7, 1972, the defendant walked off the honor farm. Defendant was apprehended two days later in a motel room in St. Charles, Illinois.
At trial, defendant testified that prior to his transfer to the honor farm he had been threatened by a fellow inmate. This inmate allegedly brandished a six-inch knife in an attempt to force defendant to engage in homosexual activities. Defendant was 22 years old and weighed approximately 155 pounds. He testified that he did not report the incident to the proper authorities due to fear of retaliation. Defendant also testified that he is not a particularly good fighter.
Defendant stated that after his transfer to the honor farm he was assaulted and sexually molested by three inmates, and he named the assailants at trial. The attack allegedly occurred on March 2, 1972, and from that date until his escape defendant received additional threats from inmates he did not know. On March 7, 1972, the date of the escape, defendant testified that he received a call on an institution telephone. Defendant testified that the caller, [337] whose voice he did not recognize, threatened him with death because the caller had heard that defendant had reported the assault to prison authorities. Defendant said that he left the honor farm to save his life and that he planned to return once he found someone who could help him. None of these incidents were reported to the prison officials. As mentioned, defendant was apprehended two days later still dressed in his prison clothes.
The State introduced prior statements made by the defendant which cast some doubt on his true reasons for leaving the prison farm. In these statements, defendant indicated that he was motivated by a desire for publicity concerning the sentence on his original conviction, which he deemed to be unfair, as well as fear of physical abuse and death.
Defendant's first trial for escape resulted in a hung jury. The jury in the second trial returned its verdict after a five-hour deliberation. The following instruction (People's Instruction No. 9) was given by the trial court over defendant's objection.
"The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons."
The appellate court majority found that the giving of People's Instruction No. 9 was reversible error. (33 Ill. App.3d 770, 777.) Two instructions which were tendered by defendant but refused by the trial court are also germane to this appeal. Defendant's instructions Nos. 1 and 3 were predicated upon the affirmative defenses of compulsion and necessity. (Ill. Rev. Stat. 1971, ch. 38, pars. 7-11 (compulsion), 7-13 (necessity).) Defendant's instructions Nos. 1 and 3 read as follows:
"It is a defense to the charge made against the Defendant that he left the Honor Farm of the Illinois State Penitentiary by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than [338] the injury which might reasonably result from his own conduct."
"It is a defense to the charge made against the Defendant that he acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged."
The principal issue in the present appeal is whether it was error for the court to instruct the jury that it must disregard the reasons given for defendant's escape and to conversely refuse to instruct the jury on the statutory defenses of compulsion and necessity. In the appellate court the defendant successfully asserted that the giving of People's Instruction No. 9 was tantamount to directing a verdict against the defendant. The State contends that, under the facts and circumstances of this case, the defenses of compulsion and necessity are, as a matter of law, unavailable to defendant.
Both the People and the defendant are entitled to appropriate instructions which present their theories of the case to the jury when and if such theories are supported by the evidence. (City of Chicago v. Mayer (1974), 56 Ill.2d 366, 370; People v. Kalpak (1957), 10 Ill.2d 411, 425; People v. Khamis (1951), 411 Ill. 46, 53.) Section 3-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 3-2) provides that a defendant, to raise the issue of an affirmative defense, must present "some evidence" thereon. Therefore, if the defenses asserted were available to the defendant, he was entitled to an instruction on these theories if "some evidence" was introduced to support them. Conversely, it was error to give People's Instruction No. 9, which required the jury to disregard the reasons for the escape.
Proper resolution of this appeal requires some preliminary remarks concerning the law of compulsion and necessity as applied to prison escape situations. Traditionally, the courts have been reluctant to permit the defenses [339] of compulsion and necessity to be relied upon by escapees. (See 1975 U. Ill. L.F. 271, 274-75 & n. 23, and the cases cited therein.) This reluctance appears to have been primarily grounded upon considerations of public policy. Several recent decisions, however, have recognized the applicability of the compulsion and necessity defenses to prison escapes. In People v. Harmon (1974), 53 Mich. App. 482, 220 N.W.2d 212, the defense of duress was held to apply in a case where the defendant alleged that he escaped in order to avoid repeated homosexual attacks from fellow inmates. In People v. Lovercamp (1974), 43 Cal. App.3d 823, 118 Cal. Rptr. 110, a limited defense of necessity was held to be available to two defendants whose escapes were allegedly motivated by fear of homosexual attacks.
As illustrated by Harmon and Lovercamp, different courts have reached similar results in escape cases involving sexual abuse, though the question was analyzed under different defense theories. A certain degree of confusion has resulted from the recurring practice on the part of the courts to use the terms "compulsion" (duress) and "necessity" interchangeably, though the defenses are theoretically distinct. (Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 115 (1975); Note, Duress — Defense to Escape, 3 Am. J. Crim. L. 331, 332 (1975).) It has been suggested that the major distinction between the two defenses is that the source of the coercive power in cases of compulsion is from human beings, whereas in situations of necessity the pressure on the defendant arises from the forces of nature. (LaFave and Scott, Handbook on Criminal Law 381 (1972).) Also, as noted in the dissenting opinion in the appellate court, the defense of compulsion generally requires an impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually charged. [340] (33 Ill. App.3d 770, 777 (Stengel, J., dissenting); People v. Terry (1975), 30 Ill. App.3d 713; People v. Davis (1974), 16 Ill. App.3d 846.) Additionally, where the defense of compulsion is successfully asserted the coercing party is guilty of the crime. LaFave and Scott, Handbook on Criminal Law 380 (1972).
It is readily discernible that prison escapes induced by fear of homosexual assaults and accompanying physical reprisals do not conveniently fit within the traditional ambits of either the compulsion or the necessity defense. However, it has been suggested that such cases could best be analyzed in terms of necessity. (LaFave and Scott, Handbook on Criminal Law 381-82 n. 2 (1972).) One commentator has stated that the relevant consideration should be whether the defendant chose the lesser of two evils, in which case the defense of necessity would apply, or whether he was unable to exercise a free choice at all, in which event compulsion would be the appropriate defense. Gardner, The Defense of Necessity and the Right to Escape from Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S. Cal. L. Rev. 110, 133 (1975).
In our view, the defense of necessity, as defined by our statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13), is the appropriate defense in the present case. In a very real sense, the defendant here was not deprived of his free will by the threat of imminent physical harm which, according to the Committee Comments, appears to be the intended interpretation of the defense of compulsion as set out in section 7-11 of the Criminal Code. (Ill. Ann. Stat., ch. 38, par. 7-11, Committee Comments, at 423-33 (Smith-Hurd 1972).) Rather, if defendant's testimony is believed, he was forced to choose between two admitted evils by the situation which arose from actual and threatened homosexual assaults and fears of reprisal. Though the defense of compulsion would be applicable in the unlikely event that a prisoner was coerced by the threat of imminent physical harm to perform the specific act of escape, no such [341] situation is involved in the present appeal. We, therefore, turn to a consideration of whether the evidence presented by the defendant justified the giving of an instruction on the defense of necessity.
The defendant's testimony was clearly sufficient to raise the affirmative defense of necessity. That defense is defined by statute (Ill. Rev. Stat. 1971, ch. 38, par. 7-13):
"Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct."
Defendant testified that he was subjected to threats of forced homosexual activity and that, on one occasion, the threatened abuse was carried out. He also testified that he was physically incapable of defending himself and that he feared greater harm would result from a report to the authorities. Defendant further testified that just prior to his escape he was told that he was going to be killed, and that he therefore fled the honor farm in order to save his life. Though the State's evidence cast a doubt upon the defendant's motives for escape and upon the reasonableness of defendant's assertion that such conduct was necessary, the defendant was entitled to have the jury consider the defense on the basis of his testimony. It is clear that defendant introduced some evidence to support the defense of necessity. As previously mentioned, that is sufficient to justify the giving of an appropriate instruction.
The State, however, would have us apply a more stringent test to prison escape situations. The State refers to the Lovercamp decision, where only a limited necessity defense was recognized. In Lovercamp, it was held that the defense of necessity need be submitted to the jury only where five conditions had been met. (43 Cal. App.3d 823, 831, 118 Cal. Rptr. 110, 115.) Those conditions are:
[342] "(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 823, 831-32, 118 Cal. Rptr. 110, 115.
The State correctly points out that the defendant never informed the authorities of his situation and failed to report immediately after securing a position of safety. Therefore, it is contended that, under the authority of Lovercamp, defendant is not entitled to a necessity instruction. We agree with the State and with the court in Lovercamp that the above conditions are relevant factors to be used in assessing claims of necessity. We cannot say, however, that the existence of each condition is, as a matter of law, necessary to establish a meritorious necessity defense.
The preconditions set forth in Lovercamp are, in our view, matters which go to the weight and credibility of the defendant's testimony. The rule is well settled that a court will not weigh the evidence where the question is whether an instruction is justified. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) The absence of one or more of the elements listed in Lovercamp would not necessarily mandate a finding that the defendant could not assert the defense of necessity.
By way of example, in the present case defendant did [343] not report to the authorities immediately after securing his safety. In fact, defendant never voluntarily turned himself in to the proper officials. However, defendant testified that he intended to return to the prison upon obtaining legal advice from an attorney and claimed that he was attempting to get money from friends to pay for such counsel. Regardless of our opinion as to the believability of defendant's tale, this testimony, if accepted by the jury, would have negated any negative inference which would arise from defendant's failure to report to proper authorities after the escape. The absence of one of the Lovercamp preconditions does not alone disprove the claim of necessity and should not, therefore, automatically preclude an instruction on the defense. We therefore reject the contention that the availability of the necessity defense be expressly conditioned upon the elements set forth in Lovercamp.
In conclusion, we hold that under the facts and circumstances of the present case the defendant was entitled to submit his defense of necessity to the jury. It was, therefore, reversible error to give People's Instruction No. 9 to the jury and to refuse to give an appropriate instruction defining the defense of necessity, such as the instruction tendered by the defendant. In light of our disposition of this appeal, we need not consider contentions raised by defendant as to the propriety of his sentence.
Therefore, the judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Will County for further proceedings in accordance with the views expressed herein.
Affirmed and remanded.
MR. JUSTICE UNDERWOOD, dissenting:
My disagreement with my colleagues stems from an uneasy feeling that their unconditional recognition of [344] necessity as a defense to the charge of escape carries with it the seeds of future troubles. Unless narrowly circumscribed, the availability of that defense could encourage potential escapees, disrupt prison discipline, and could even result in injury to prison guards, police or private citizens. (People v. Whipple (1929), 100 Cal. App. 261, 279 P. 1008.) For these reasons courts have been quite reluctant to honor the defenses of duress, necessity or compulsion in prison escapes, and, until recent years, they were uniformly held insufficient to justify escapes. As Mr. Justice Stengel noted in his dissenting opinion in the appellate court: "`Until [People v. Lovercamp, 43 Cal. App.3d 823, 118 Cal. Rptr. 110 (1974)], no reviewing court had ever upheld a defense of necessity in ordinary adverse situations such as threats from fellow inmates.' 1975 U. Ill. L.F. 271, 275." 33 Ill. App.3d 770, 777.
Lovercamp, however, imposed well-defined conditions which must be met before a defendant is entitled to have the defense of necessity submitted to the jury:
"* * * (1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;
(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
(3) There is no time or opportunity to resort to the courts;
(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and
(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110, 115.
I am not totally insensitive to the sometimes brutal and unwholesome problems faced by prison inmates, and [345] the frequency of sexually motivated assaults. Prisoner complaints to unconcerned or understaffed prison administrations may produce little real help to a prisoner or may actually increase the hazard from fellow inmates of whose conduct complaint has been made. Consequently, and until adequate prison personnel and facilities are realities, I agree that a necessity defense should be recognized. The interests of society are better served, however, if the use of that defense in prison-escape cases is confined within well-defined boundaries such as those in Lovercamp. In that form it will be available, but with limitations precluding its wholesale use.
It is undisputed that defendant here did not meet those conditions. He did not complain to the authorities on this occasion even though, following an earlier threat and demand by a fellow inmate that defendant submit to homosexual activity, defendant had requested and been granted a transfer to the minimum security honor farm. Nor did he immediately report to the authorities when he had reached a place of safety. Rather, he stole a truck some nine hours after his escape, drove to Chicago, and later drove to St. Charles, using the telephone to call friends in Canada. This conduct, coupled with his admitted intent to leave in order to gain publicity for what he considered an unfair sentence, severely strain the credibility of his testimony regarding his intention to return to the prison.
Since defendant's conduct does not comply with conditions such as those in Lovercamp which, in my judgment, should be required before a necessity defense may be considered by a jury, I believe the trial court did not err in its instructions.
I would accordingly reverse the appellate court and affirm the judgment of the trial court.
7.2.8.5.1.2.3 The Queen v. Dudley and Stephens 7.2.8.5.1.2.3 The Queen v. Dudley and Stephens
THE QUEEN v. DUDLEY AND STEPHENS
December 9, 1884
A man who, in order to escape death from hunger, kills another for the purpose of eating his flesh, is guilty of murder; although at the time of the act he is in such circumstances that he believes and has reasonable ground for believing that it affords the only chance of preserving his life.
At the trial of an indictment for murder it appeared, upon a special verdict, that the prisoners D. and S., seamen, and the deceased, a boy between seventeen and eighteen, were cast away in a storm on the high seas, and compelled to put into an open boat; that the boat was drifting on the ocean, and was probably more than 1000 miles from land; that on the eighteenth day, when they had been seven days without food and five without water, D. proposed to S. that lots should be cast who should be put to death to save the rest, and that they afterwards thought it would be better to kill the boy that their lives should be saved; that on the twentieth day D., with the assent of S., killed the boy, and both D. and S. fed on his flesh for four days; that at the time of the act there was no sail in sight nor any reasonable prospect of relief; that under these circumstances there appeared to the prisoners every probability that unless they then or very soon fed upon the boy, or one of themselves, they would die of starvation: --
Held, that upon these facts, there was no proof of any such necessity as could justify the prisoners in killing the boy, and that they were guilty of murder.
INDICTMENT for the murder of Richard Parker on the high seas within the jurisdiction of the Admiralty.
At the trial before Huddleston, B., at the Devon and Cornwall Winter Assizes, November 7, 1884, the jury, at the suggestion of the learned judge, found the facts of the case in a special verdict which stated
“that, on July 5,1884, the prisoners, Thomas Dudley and Edward Stephens, with one Brooks, all able-bodied English seamen, and the deceased also an English boy, between seventeen and eighteen years of age, the crew of an English yacht, a registered English vessel, were cast away in a storm on the high seas 1600 miles from the Cape of Good Hope, and were compelled to put into an open boat belonging to the said yacht. That in this boat they had no supply of water and no supply of food, except two 1 lb. tins of turnips, and for three days they had nothing else to subsist upon. That on the fourth day they caught a small turtle, upon which they subsisted for a few days, and this was the only food they had up to the twentieth day when the act now in question was committed. That2 on the twelfth day the remains the turtle were entirely consumed, and for the next eight days they had nothing to eat. That they had no fresh water, except such rain as they from time to time caught in their oilskin capes. That the boat was drifting on the ocean, and was probably more than 1000 miles away from land. That on the eighteenth day, when they had been seven days without food and five without water, the prisoners spoke to Brooks as to what should be done if no succour came, and suggested that some one should be sacrificed to save the rest, but Brooks dissented, and the boy, to whom they were understood to refer, was not consulted. That on the 24 th of July, the day before the act now in question, the prisoner Dudley proposed to Stephens and Brooks that lots should be cast who should be put to death to save the rest, but Brooks refused to consent, and it was not put to the boy, and in point of fact there was no drawing of lots. That on that day the prisoners spoke of their having families, and suggested it would be better to kill the boy that their lives should be saved, and Dudley proposed that if there was no vessel in sight by the morrow morning, the boy should be killed. That next day, the 25th of July, no vessel appearing, Dudley told Brooks that he had better go and have a sleep, and made signs to Stephens and Brooks that the boy had better be killed. The prisoner Stephens agreed to the act, but Brooks dissented from it. That the boy was then lying at the bottom of the boat quite helpless, and extremely weakened by famine and by drinking sea water, and unable to make any resistance, nor did he ever assent to his being killed. The prisoner Dudley offered a prayer asking forgiveness for them all if either of them should be tempted to commit a rash act, and that their souls might be saved. That Dudley, with the assent of Stephens, went to the boy, and telling him that his time was come, put a knife into his throat and killed him then and there; that the three men fed upon the body and blood of the boy for four days; that on the fourth day after the act had been committed the boat was picked up by a passing vessel, and the prisoners were rescued, still alive, but in the lowest state of prostration. That they were carried to the port of Falmouth, and committed for trial at Exeter. That if the men had not fed upon the body of the boy they would probably not have survived to be so picked up and rescued, but would within the four days have died of famine. That the boy, being in a much weaker condition, was likely to have died before them. That at the time of the act in question there was no sail in sight, nor any reasonable prospect of relief. That under these circumstances there appeared to the prisoners every probability that unless they then fed or very soon fed upon the boy or one of themselves they would die of starvation. That there was no appreciable chance of saving life except by killing some one for the others to eat. That assuming any necessity to kill anybody, there was no greater necessity for killing the boy than any of the other three men." But whether upon the whole matter by the jurors found the killing of Richard Parker by Dudley and Stephens be felony and murder the jurors are ignorant, and pray the advice of the Court thereupon, and if upon the whole matter the Court shall be of opinion that the killing of Richard Parker be felony and murder, then the jurors say that Dudley and Stephens were each guilty of felony and murder as alleged in the indictment.”
The learned judge then adjourned the assizes until the 25th of November at the Royal Courts of Justice. On the application of the Crown they were again adjourned to the 4th of December, and the case ordered to be argued before a Court consisting of five judges.
Dec. 4.
Sir H. James, A.G. (A. Charles, Q.C., C. Mathews and Danckwerts, with him), appeared for the Crown. The record having been read, A. Collins, Q.C. (H. Clark, and Pyke, with him), for the prisoners, objected, first, that the statement in the verdict that the yacht was a registered British vessel, and that the boat in which the prisoners were belonged to the yacht, was not part of any finding by the jury; secondly, that the formal conclusion of the verdict, "whether upon the whole matter the prisoners were and are guilty of murder, the jury are ignorant," &c., was also no part of the finding of the jury, as they simply found the facts relating to the death of Parker, and nothing else was referred to them; thirdly, that the record could not be filed, for it had been brought Queen into the court by order only, and not by certiorari. Sir H. James, A.G., for the Crown. As to the first point, the Crown are willing that the statement that the yacht was a registered British vessel, and that the boat belonged to the yacht, should be struck out of the record. With regard to the conclusion of the verdict it is according to the form of special verdicts in the Reports: Rex v Pedley; Rex v. Oneby; Mackally's Case; Hazel's Case. As for the certiorari there was no necessity for it, for the Court of Assize is now part of this Court.
[THE COURT intimated that the points taken on behalf of the prisoners were untenable.]
With regard to the substantial question in the case -- whether the prisoners in killing Parker were guilty of murder -- the law is that where a private person acting upon his own judgment takes the life of a fellow creature, his act can only be justified on the ground of self-defence -- self-defence against the acts of the person whose life is taken. This principle has been extended to include the case of a man killing another to prevent him from committing some great crime upon a third person. But the principle has no application to this case, for the prisoners were not protecting themselves against any act of Parker. If he had had food in his possession and they had taken it from him, they would have been guilty of theft; and if they killed him to obtain this food, they would have been guilty of murder. The case cited by Puffendorf in his Law of Nature and Nations, which was referred to at the trial, has been found, upon examination in the British Museum, in the work of Nicholaus Tulpius, a Dutch writer, and it is clear. that it was not a judicial decision.[1]
[He was stopped.]
A. Collins, Q.C., for the prisoners. The facts found on the special verdict shew that the prisoners were not guilty of murder, at the time when they killed Parker, but killed him under the pressure of necessity. Necessity will excuse an act which would otherwise be a crime. Stephen, Digest of Criminal Law, art. 32, Necessity. The law as to compulsion by necessity is further explained in Stephen's History of the Criminal Law, vol. ii., p. 108, and an opinion is expressed that in the case often put by casuists, of two drowning men on a plank large enough to support one only, and one thrusting the other off, the survivor could not be subjected to legal punishment. In the American case of The United States v. Holmes, the proposition that a passenger on board a vessel may be thrown overboard to save the others is sanctioned. The law as to inevitable necessity is fully considered in Russell on Crimes, Vol. i. p. 847 and there are passages relating to it in Bracton, VOL ii. p., 277; Hale's Pleas of the Crown, p. 54 and c. 40; East's Pleas of the Crown, p. 221, citing Dalton, c. 98, Stephens. "Homicide of Necessity," and several cases, amongst others McGrowther's case; Stratton's Case. Lord Bacon, Bac. Max., Reg. 5, gives the instance of two shipwrecked persons clinging to the same plank and one of them thrusting the other from it, finding that it will not support both, and says that this homicide is excusable through unavoidable necessity and upon the great universal principle of self-preservation, which prompts every man to save his own life in preference to that of another, where one of them must inevitably perish. It is true that Hale's Pleas of the Crown, p. 54, states distinctly that hunger is no excuse for theft, but that is on the ground that there can be no such extreme necessity in this country. In the present case the prisoners were in circumstances where no assistance could be given. The essence of the crime of murder is intention, and here the intention of the prisoners was only to preserve their lives.
Lastly, it is not shewn that there was jurisdiction to try the prisoners in England. They were part of the crew of an English yacht, but for anything that appears on the special verdict the boat may have been a foreign boat, so that they were not within the jurisdiction of the Admiralty: Reg. v. Keyn. The indictment is not upon the Act 17 & 18 Vict. c. 104, for an offence committed by seamen employed or recently employed in a British ship. The special verdict cannot be amended in a capital case by stating the real facts.
Sir H. James, A.G., for the Crown.
[LORD COLERIDGE, C.J. The Court conviction must be affirmed. What course do you invite us to take?]
To pronounce judgment and pass sentence. This was the practice even when, as formerly, the record was removed by certiorari: Rex v. Boyce; Rex v. Athos; Rex v. Cock. THE COURT intimated that judgment would be given on December 9th.
-- -- --
Dec. 9. The judgment of the Court (Lord Coleridge, C.J., Grove and Denman, JJ., Pollock and Huddleston, BB) was delivered by
LORD COLERIDGE, C.J. The two prisoners, Thomas Dudley and Edwin Stephens, were indicted for the murder of Richard Parker on the high seas on the 25th of July in the present year. They were tried before my Brother Huddleston at Exeter on the 6th of November, and, under the direction of my learned Brother, the jury returned a special verdict, the legal effect of which has been argued before us, and on which we are now to pronounce judgment.
The special verdict as, after certain objections by Mr. Collins to which the Attorney General yielded, it is finally settled before us is as follows. [His Lordship read the special verdict as above set out.] From these facts, stated with the cold precision of a special verdict, it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best. Other details yet more harrowing, facts still more loathsome and appalling, were presented to the jury, and are to be found recorded in my learned Brother's notes. But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him, of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy they would probably not have survived," and that “the boy being in a much weaker condition was likely to have died before them." They might possibly have been picked up next day by a passing ship; they might possibly not have been picked up at all; in either case it is obvious that the killing of the boy would have been an unnecessary and profitless act. It is found by the verdict that the boy was incapable of resistance, and, in fact, made none; and it is not even suggested that his death was due to any violence on his part attempted against, or even so much as feared by, those who killed him. Under these circumstances the jury say that they are ignorant whether those who killed him were guilty of murder, and have referred it to this Court to determine what is the legal consequence which follows from the facts which they have found.
Certain objections on points of form were taken by Mr. Collins before he came to argue the main point in the case. First it was contended that the conclusion of the special verdict as entered on the record, to the effect that the jury find their verdict in accordance, either way, with the judgment of the Court, was not put to them by my learned Brother, and that its forming part of the verdict on the record invalidated the whole verdict. But the answer is twofold -- (1) that it is really what the jury meant, and that it is but the clothing in legal phraseology of that which is already contained by necessary implication in their unquestioned finding, and (2) that it is a matter of the purest form, and that it appears from the precedents with which we have been furnished from the Crown Office, that this has been the form of special verdicts in Crown cases for upwards of a century at least.
Next it was objected that the record should have been brought into this Court by certiorari, and that in this case no writ of certiorari had issued. The fact is so; but the objection is groundless. Before the passing of the Judicature Act, 1873 (36 & 37 Vict. c. 66), as the courts of Oyer and Terminer and Gaol delivery were not parts of the Court of Queen's Bench, it was necessary that the Queen's Bench should issue its writ to bring before it a record not of its own, but of another Court. But by the 16th section of the Judicature Act, 1873, the courts of Oyer and Terminer and Gaol delivery are now made part of the High Court, and their jurisdiction is vested in it. An order of the Court has been made to bring the record from one part of the court into this chamber, which is another part of the same court; the record is here in obedience to that order; and we are all of opinion that the objection fails.
It was further objected that, according to the decision of the majority of the judges in the Franconia Case, there was no jurisdiction in the Court at Exeter to try these prisoners. But (1) in that case the prisoner was a German, who had committed the alleged offence as captain, of a German ship; these prisoners were English seamen, the crew of an English yacht, cast a way in a storm on the high seas, and escaping from her in an open boat; (2) the opinion of the minority in the Franconia Case has been since not only enacted but declared by Parliament to have been always the law; and (3) 17 & 18 Vict. c. 104, s. 267, is absolutely fatal to this objection. By that section it is enacted as follows: -- “All offences against property or person committed in or at any place either ashore or afloat, out of her Majesty's dominions by any master seaman or apprentice who at the time when the offence is committed is or within three months previously has been employed in any British ship, shall be deemed to be offences of the same nature respectively, and be inquired of, heard, tried, determined, and adjudged in the same manner and by the same courts and in the same places as if such offences had been committed within the jurisdiction of the Admiralty of England.” We are all therefore of opinion that this objection likewise must be overruled.
There remains to be considered the real question in the case whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us to be at once dangerous, immoral, and opposed to all legal principle and analogy. All, no doubt, that can be said has been urged before us, and we are now to consider and determine what it amounts to. First it is said that it follows from various definitions of murder in books of authority, which definitions imply, if they do not state, the doctrine, that in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at they will not be found to sustain this contention. The earliest in point of date is the passage cited to us from Bracton, who lived in the reign of Henry III. It was at one time the fashion to discredit Bracton, as Mr. Reeve tells us, because he was supposed to mingle too much of the canonist and civilian with the common lawyer. There is now no such feeling, but the passage upon homicide, on which reliance is placed, is a remarkable example of the kind of writing which may explain it. Sin and crime are spoken of as apparently equally illegal, and the crime of murder, it is expressly declared, may be committed “lingua vel facto”; so that a man, like Hero "done to death by slanderous tongues," would, it seems, in the opinion of Bracton, be a person in respect of whom might be grounded a legal indictment for murder. But in the very passage as to necessity, on which reliance has been placed, it is clear that Bracton is speaking of necessity in the ordinary sense -- the repelling by violence, violence justified so far as it was necessary for the object, any illegal violence used towards oneself. If, says Bracton, the necessity be “evitabilis, et evadere posset absque occisione, tune erit reus homicidii” -- words which shew clearly that he is thinking of physical danger from which escape may be possible, and that the "inevitabilis necessitas" of which he speaks as justifying homicide is a necessity of the same nature.
It is, if possible, yet clearer that the doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justified homicide is that only which has always been and is now considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale's Pleas of the Crown, p. 491). Again he says that "the necessity which justifies homicide is of two kinds: (1) the necessity which is of a private nature; (2) the necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard, and this takes in these inquiries: What may be done for the safeguard of a man's own life;" and then follow three other heads not necessary to pursue. Then Lord Hale proceeds: "As touching the first of these -- viz., homicide in defence of, a man's own life, which is usually styled se defendendo." It is not possible to use words more clear to shew that Lord Hale regarded the private necessity which justified, and alone justified, the taking the life of another for the safeguard of one's own to be what is commonly called “self-defence.” (Hale's Pleas of, the Crown, i. 478.)
But if this could be even doubtful upon Lord Hale's words, Lord Hale himself has made it clear. For in the chapter in which he deals with the exemption created by compulsion or necessity he thus expresses himself: “If a man be desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant's fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defence to kill the assailant, for by the violence of the assault, and the offence committed upon him by the assailant himself, the law of nature, and necessity, hath made him his own protector cum debito modera mine inculpatee tutelae." (Hale's Pleas of the Crown, Vol. i. 51.)
But, further still, Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing; "theft is no theft, or at least not punishable as theft, as some even of our own lawyers have asserted the same." "But," says Lord Hale, "I take it that herein England, that rule, at least by the laws of England, is false; and therefore, if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is felony, and a crime by the laws of England punishable with death." (Hale, Pleas of the Crown, i. 54.) If, therefore, Lord Hale is clear -- as he is -- that extreme necessity of hunger does not justify larceny, what would he have said to the doctrine that it justified murder?
It is satisfactory to find that another great authority, second, probably, only to Lord Hale, speaks with the same unhesitating clearness on this matter. Sir Michael Foster, in the 3rd chapter of his Discourse on Homicide, deals with the subject of " homicide founded in necessity"; and the whole chapter implies, and is insensible unless it does imply, that in the view of Sir Michael Foster “necessity and self-defence” (which he defines as "opposing force to force even to the death ") are convertible terms. There is no hint, no trace, of the doctrine now contended for; the whole reasoning of the chapter is entirely inconsistent with it.
In East's Pleas of the Crown (i. 271) the whole chapter on homicide by necessity is taken up with an elaborate discussion of the limits within which necessity in Sir Michael Foster's sense (given above) of self-defence is a justification of or excuse for homicide. There is a short section at the end very generally and very doubtfully expressed, in which the only instance discussed is the well-known one of two shipwrecked men on a plank able to sustain only one of them, and the conclusion is left by Sir Edward East entirely undetermined.
What is true of Sir Edward East is true also of Mr. Serjeant Hawkins. The whole of his chapter on justifiable homicide assumes that the only justifiable homicide of a private nature is the defence against force of a man's person, house, or goods. In the 26th section we find again the case of the two shipwrecked men and the single plank, with the significant expression from a careful writer, “It is said to be justifiable.” So, too, Dalton c. 150, clearly considers necessity and self-defence in Sir Michael Foster's sense of that expression, to be convertible terms, though he prints without comment Lord Bacon's instance of the two men on one plank as a quotation from Lord Bacon, adding nothing whatever to it of his own. And there is a remarkable passage at page 339, in which he says that even in the case of a murderous assault upon a man, yet before he may take the life of the man who assaults him even in self-defence, “cuncta prius tentanda.”
The passage in Staundforde, on which almost the whole of the dicta we have been considering are built, when it comes to be examined, does not warrant the conclusion which has been derived from it. The necessity to justify homicide must be, he says, inevitable, and the example which he gives to illustrate his meaning is the very same which has just been cited from Dalton, shewing that the necessity he was speaking of was a physical necessity, and the self-defence a defence against physical violence. Russell merely repeats the language of the old text-books, and adds no new authority, nor any fresh considerations. Is there, then, any authority for the proposition which has been presented to us? Decided cases there are none. The case of the seven English sailors referred to by the commentator on Grotius and by Puffendorf has been discovered by a gentleman of the Bar, who communicated with my Brother Huddleston, to convey the authority (if it conveys so much) of a single judge of the island of St. Kitts, when that island was possessed partly by France and partly by this country, somewhere about the year 1641. It is mentioned in a medical treatise published at Amsterdam, and is altogether, as authority in an English court, as unsatisfactory as possible. The American case cited by Brother Stephen in his Digest, from Wharton on Homicide, in which it was decided, correctly indeed, that sailors had no right to throw passengers overboard to save themselves, but on the somewhat strange ground that the proper mode of determining who was to be sacrificed was to vote upon the subject by ballot, can hardly, as my Brother Stephen says, be an authority satisfactory to a court in this country. The observations of Lord Mansfield in the case of Rex v. Stratton and Others, striking and excellent as they are, were delivered in a political trial, where the question was whether a political necessity had arisen for deposing a Governor of Madras. But they have little application to the case before us which must be decided on very different considerations.
The one real authority of former time is Lord Bacon, who, in his commentary on the maxim, "necessitas inducit privilegium quoad jura privata," lays down the law as follows:" Necessity carrieth a privilege in itself. Necessity is of three sorts -- necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First of conservation of life ; if a man steal viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank, or on the boat's side to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists. At any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others, the equals and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum. There are many conceivable states of things in which it might possibly be true, but if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day.
There remains the authority of my Brother Stephen, who, both in his Digest and in his History of the Criminal Law, uses language perhaps wide enough to cover this case. The language is somewhat vague in both places, but it does not in either place cover this case of necessity, and we have the best authority for saying that it was not meant to cover it. If it had been necessary, we must with true deference have differed from him, but it is satisfactory know that we have, probably at least, arrived at no conclusion in which if he had been a member of the Court he would have been unable to agree. Neither are we in conflict with any opinion expressed upon the subject by the learned persons who formed the commission for preparing the Criminal Code. They say on this subject:
We are certainly not prepared to suggest that necessity should in every case be a justification. We are equally unprepared to, suggest that necessity should in no case be a defence; we judge it better to leave such questions to be dealt with when, if ever, they arise in practice by applying the principles of law to the circumstances of the particular case.
It would have been satisfactory to us if these eminent persons could have told us whether the received definitions of legal necessity were in their judgment correct and exhaustive, and if not, in what way they should be amended but as it is we have, as they say, "to apply the principles of law to the circumstances of this particular case."
Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called “necessity.” But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same, and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others from which in no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk. It is not correct, therefore, to say that there is any absolute or unqualified necessity to preserve one's life. "Necesse est ut eam, non ut vivam," is a saying of a Roman officer quoted by Lord Bacon himself with high eulogy in the very chapter on necessity to which so much reference has been made. It would be a very easy and cheap display of commonplace learning to quote from Greek and Latin authors, from Horace, from Juvenal, from Cicero, from Euripides, passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or 'what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be "No" –
"So spake the Fiend, and with necessity
The tyrant's plea, excused his devilish deeds."
It is not suggested that in this particular case the deeds were "devilish," but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime. There is no safe path for judges to tread but to ascertain the law to the best of their ability and to declare it according to their judgment; and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it.
It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners' act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guilty of murder.[2]
[The COURT then proceeded to pass sentence of death upon the prisoners.[3]]
Solicitors for the Crown: The Solicitors for the Treasury.
Solicitors for the prisoners: Irvine & Hodges.
NOTES
[1] Huddleston, B., stated that the full facts of the case had been discovered by Sir Sherston Baker, a member of the Bar, and communicated to him as follows:
A Dutch writer, Nicholas Tulpius, the author of a Latin work, Observationum Medicarum, written at Amsterdam in 1641, states that the following facts were given him by eye-witnesses. Seven Englishmen had prepared themselves in the Island of St. Christopher (one of the Caribbean Islands) for a cruise in a boat for a period of one night only, but a storm drove them so far out to sea that they could not get back to port before seventeen days. One of them proposed that they should cast lots to settle on whose body they should assuage their ravenous hunger. Lots were cast, and the lot fell on him who bad proposed it. None wished to perform the office of butcher; and lots again cast to provide one. The body was afterwards eaten. At length the boat was cast on the shore of the Isle of St. Martin, one of the same group, where the six survivors were treated with kindness by the Dutch, and sent home to St. Christopher.
[2] My brother Grove has furnished me with the following suggestion, too late to be embodied in the judgment but well worth preserving: "If the two accused men were justified in killing Parker, then if not rescued in time, two of the three survivors would be justified in killing the third, and of the two who remained the stronger would be justified in killing the weaker, so that three men might be justifiably killed to give the fourth a chance of surviving."-- C.
[3] This sentence was afterwards commuted by the Crown to six months imprisonment.
7.2.8.5.1.2.4 PCAT v. State of Israel 7.2.8.5.1.2.4 PCAT v. State of Israel
HCJ 5100/94
HCJ 4054/95
HCJ 6536/95
HCJ 5188/96
HCJ 7563/97
HCJ 7628/97
HCJ 1043/99
HCJ 5100/94
Public Committee Against Torture in Israel
v.
1. The State of Israel
2. The General Security Service
HCJ 4054/95
The Association for Civil Rights in Israel
v.
1. The Prime Minister of Israel
2. The Minister of Justice
3. The Minister of Police
4. The Minister of the Environment
5. The Head of the General Security Service
HCJ 6536/95
Hat’m Abu Zayda
v.
The General Security Service
HCJ 5188/96
1. Wa’al Al Kaaqua
2. Ibrahim Abd’allah Ganimat
3. Center for the Defense of the Individual
v.
1. The General Security Service
2. The Prison Commander—Jerusalem
HCJ 7563/97
1. Abd Al Rahman Ismail Ganimat
2. Public Committee Against Torture in Israel
v.
1. The Minister of Defense
2. The General Security Service
HCJ 7628/97
1. Fouad Awad Quran
2. Public Committee against Torture in Israel
v.
1. The Minister of Defense
2. The General Security Service
HCJ 1043/99
Issa Ali Batat
v.
The General Security Service
The Supreme Court Sitting as the High Court of Justice
[May 5, 1998, January 13 1999, May 26, 1999]
Before President A. Barak, Deputy President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner
Petition to the Supreme Court sitting as the High Court of Justice.
Facts: In its investigations, the General Security Service makes use of methods that include subjecting suspects to moderate physical pressure. The means are employed under the authority of directives. These directives allow for the use of moderate physical pressure if such pressure is immediately necessary to save human life. Petitioners challenge the legality of these methods.
Held: The Court held that the GSS did not have the authority employ certain methods challenged by the petitioners. The Court also held that the “necessity defense,” found in the Israeli Penal Law, could serve to ex ante allow GSS investigators to employ such interrogation practices. The Court's decision did not negate the possibility that the “necessity defense” would be available post factum to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought were brought against them.
Petition denied.
Counsel for the petitioner in HCJ 5100/94—Avigdor Feldman; Ronit Robinson
Counsel for the petitioner in HCJ 4054/95—Dan Yakir
Counsel for the petitioners in HCJ 6536/95 HCJ 5188/96 and HCJ 1043/99—Andre Rosenthal
Counsel for petitioner Number Three in HCJ 5188/96—Eliyahu Abram
Counsel for petitioners in HCJ 7563/97 and HCJ 7628/97—Leah Tzemel; Allegra Pachko
Counsel for respondents—Shai Nitzan; Yehuda Scheffer
JUDGMENT
President A. Barak
The General Security Service [hereinafter the “GSS”] investigates individuals suspected of committing crimes against Israel’s security. Authorization for these interrogations is granted by directives that regulate interrogation methods. These directives authorize investigators to apply physical means against those undergoing interrogation, including shaking the suspect and placing him in the “Shabach” position. These methods are permitted since they are seen as immediately necessary to save human lives. Are these interrogation practices legal? These are the issues before us.
Background
1. Ever since it was established, the State of Israel has been engaged in an unceasing struggle for its security—indeed, its very existence. Terrorist organizations have set Israel’s annihilation as their goal. Terrorist acts and the general disruption of order are their means of choice. In employing such methods, these groups do not distinguish between civilian and military targets. They carry out terrorist attacks in which scores are murdered in public areas—in areas of public transportation, city squares and centers, theaters and coffee shops. They do not distinguish between men, women and children. They act out of cruelty and without mercy. (For an in depth description of this phenomenon see the Report of the Commission of Inquiry Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities headed by Justice (ret.) M. Landau, 1987 [hereinafter the Report of the Commission of Inquiry]. See1 The Landau Book 269, 276 (1995).
The facts before this Court reveal that 121 people died in terrorist attacks between January 1, 1996 and May 14, 1998. Seven hundred and seven people were injured. A large number of those killed and injured were victims of harrowing suicide bombings in the heart of Israel’s cities. Many attacks—including suicide bombings, attempts to detonate car bombs, kidnappings of citizens and soldiers, attempts to highjack buses, murders, and the placing of explosives—were prevented due to daily measures taken by authorities responsible for fighting terrorist activities. The GSS is the main body responsible for fighting terrorism.
In order to fulfill this function, the GSS also investigates those suspected of hostile terrorist activities. The purpose of these interrogations includes the gathering of information regarding terrorists in order to prevent them from carrying out terrorist attacks. In the context of these interrogations, GSS investigators also make use of physical means.
The Petitions
2. These petitions are concerned with the interrogation methods of the GSS. They outline several of these methods in detail. Two of the petitions are of a public nature. One of these (HCJ 5100/94) is brought by the Public Committee against Torture in Israel. It submits that GSS investigators are not authorized to investigate those suspected of hostile terrorist activities. Moreover, they claim that the GSS is not entitled to employ those methods approved by the Report of the Commission of Inquiry, such as “the application of non-violent psychological pressure” and of “a moderate degree of physical pressure.” The second petition (4054/95) is brought by the Association for Civil Rights in Israel. It argues that the GSS should be ordered to cease shaking suspects during interrogations.
The five remaining petitions involve individual petitioners. They each petitioned the Court to hold that the methods used against them by the GSS are illegal.
3. Petitioners in HCJ 5188/96 (Wa’al Al Kaaqua and Ibrahim Abd’alla Ganimat) were arrested at the beginning of June 1996. They were interrogated by GSS investigators. They appealed to this Court on July 21, 1996 through the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. They petitioned the Court for an order nisiprohibiting the use of physical force against them during their interrogation. The Court granted the order. The two petitioners were released from custody prior to the hearing. As per their request, we have elected to continue hearing their case, in light of the importance of the issues they raise.
4. Petitioner in HCJ 6536/96 (Hat’m Abu Zayda), was arrested on September 21, 1995 and interrogated by GSS investigators. He turned to this Court on October 22, 1995 via the Center for the Defense of the Individual, founded by Dr. Lota Saltzberger. He complained of the interrogation methods allegedly used against him, including sleep deprivation, shaking, beatings, and use of the “Shabach” position. We immediately ordered the petition be heard. The Court was then informed that petitioner’s interrogation had ended. Petitioner was subsequently convicted of activities in the military branch of the Hamas terrorist organization. He was sentenced to 74 months in prison. The court held that petitioner both recruited for Hamas and also helped construct its terrorist infrastructure. The purpose of this infrastructure was to carry out the kidnapping of Israeli soldiers as well as execute other terrorist attacks against Israeli security forces. During oral arguments, it was asserted that the information provided by petitioner during his interrogation led to the thwarting of a plan to carry out serious terrorist attacks, including the kidnapping of soldiers.
5. The petitioner in HCJ 7563/97 (Abd al Rahman Ismail Ganimat) was arrested on November 13, 1997 and interrogated by the GSS. He appealed to this Court on December 24, 1997 via the Public Committee against Torture inIsrael. He claimed to have been tortured by his investigators, through use of the “Shabach” position,” excessively tight handcuffs, and sleep deprivation. His interrogation revealed that he was involved in numerous terrorist activities, which resulted in the deaths of many Israeli citizens. He was instrumental in the kidnapping and murder of Sharon Edry, an IDF soldier. Additionally, he was involved in the bombing of Cafe “Appropo” in Tel Aviv, in which three women were murdered and thirty people were injured. He was charged with all these crimes and convicted at trial. He was sentenced to five consecutive life sentences plus an additional twenty years in prison.
Subsequent to the dismantling and interrogation of the terrorist cell to which petitioner belonged, a powerful explosive device, identical to the one detonated at Cafe “Appropo” in Tel Aviv, was found in Tzurif, petitioner’s village. Uncovering this explosive device thwarted an attack like the one at Cafe “Appropo.” According to GSS investigators, the petitioner possessed additional crucial information which he revealed only as a result of the interrogation. Revealing this information immediately was essential to safeguarding national and regional security and preventing danger to human life.
6. The petitioner in HCJ 7628/97 (Fouad Awad Quran) was arrested on December 10, 1997 and interrogated. He turned to this Court on December 25, 1997 via the Public Committee against Torture in Israel. Petitioners claimed that he was being deprived of sleep and was being seated in the “Shabach” position. The Court issued an order nisi and held oral arguments immediately. During the hearing, the state informed the Court that “at this stage of the interrogation, the GSS is not employing the alleged methods.” For this reason, no interim order was granted.
7. The petitioner in HCJ1043/99 (Issa Ali Batat) was arrested February 2, 1999, and interrogated by GSS investigators. The petition, brought via the Public Committee against Torture in Israel, argues that physical force was used against petitioner during the course of the interrogation. The Court issued an order nisi. During oral arguments, it came to the Court’s attention that the petitioner’s interrogation had ended and that he was being detained pending trial. The indictment alleges his involvement in hostile activities, the purpose of which was to harm the security and public safety of the “area” (Judea, Samaria and the Gaza Strip).
Physical Means
8. The GSS did not describe the physical means employed by GSS investigators. The State Attorney was prepared to present this information in camera. Petitioners opposed this proposal. As such, the information before the Court was provided by the petitioners and was not examined in each individual petition. This having been said, the state did not deny the use of these interrogation methods, and even offered justifications for these methods. This provided the Court with a picture of the interrogation practices of the GSS.
The decision to utilize physical means in a particular instance is based on internal regulations, which requires obtaining permission from the higher ranks of the GSS. The regulations themselves were approved by a special Ministerial Committee on GSS interrogations. Among other guidelines, the committee set forth directives regarding the rank required of an officer who was to authorize such interrogation practices. These directives were not examined by this Court. Different interrogation methods are employed in each situation, depending what is necessary in that situation and the likelihood of obtaining authorization. The GSS does not resort to every interrogation method at its disposal in each case.
Shaking
9. A number of petitioners (HCJ 5100/94; HCJ 4054/95; HCJ 6536/95) claimed that they were subject to shaking. Among the investigation methods outlined in the GSS interrogation regulations, shaking is considered the harshest. The method is defined as the forceful and repeated shaking of the suspect’s upper torso, in a manner which causes the neck and head to swing rapidly. According to an expert opinion submitted in HCJ 5584/95 and HCJ 5100/95, the shaking method is likely to cause serious brain damage, harm the spinal cord, cause the suspect to lose consciousness, vomit and urinate uncontrollably and suffer serious headaches.
The state entered several opposing expert opinions into evidence. It admits the use of this method by the GSS. It contends, however, that shaking does not present an inherent danger to the life of the suspect, that the risk to life as a result of shaking is rare, that there is no evidence that shaking causes fatal damage, and that medical literature has not, to date, reported a case in which a person died as a direct result of having been shaken. In any event, they argue, doctors are present at all interrogation areas, and the possibility of medical injury is always investigated.
All agree that, in one particular case, (HCJ 4054/95) the suspect expired after being shaken. According to the state, that case was a rare exception. Death was caused by an extremely rare complication which resulted in pulmonary edema. In addition, the state argues that the shaking method is only resorted to in very specific cases, and only as a last resort. The directives define the appropriate circumstances for its use, and the rank responsible for authorizing its use. The investigators were instructed that, in every case where they consider the use of shaking, they must examine the severity of the danger that the interrogation is intending to prevent, consider the urgency of uncovering the information presumably possessed by the suspect in question, and seek an alternative means of preventing the danger. Finally, the directives state that, in cases where this method is to be used, the investigator must first provide an evaluation of the suspect’s health and ensure that no harm comes to him. According to the respondent, shaking is indispensable to fighting and winning the war on terrorism. It is not possible to prohibit its use without seriously harming the ability of the GSS to effectively thwart deadly terrorist attacks. Its use in the past has lead to the prevention of murderous attacks.
Waiting in the “Shabach” Position
10. This interrogation method arose in several petitions (HCJ 6536/95, HCJ 5188/96, HCJ 7628/97). As per petitioners’ submission, a suspect investigated under the “Shabach” position has his hands tied behind his back. He is seated on a small and low chair, whose seat is tilted forward, towards the ground. One hand is tied behind the suspect, and placed inside the gap between the chair’s seat and back support. His second hand is tied behind the chair, against its back support. The suspect’s head is covered by a sack that falls down to his shoulders. Loud music is played in the room. According to the briefs submitted, suspects are detained in this position for a long period of time, awaiting interrogation.
Petitioners claim that prolonged sitting in this position causes serious muscle pain in the arms, the neck and headaches. The state did not deny the use of this method. It submits that both crucial security considerations and the safety of the investigators require the tying of the suspect’s hands as he is being interrogated. The head covering is intended to prevent contact with other suspects. Loud music is played for the same reason.
The "Frog Crouch"
11. This interrogation method appeared in one of the petitions (HCJ 5188/96). According to the petition, the suspect was interrogated in a “frog crouch” position. This refers to consecutive, periodical crouches on the tips of one’s toes, each lasting for five minute intervals. The state did not deny the use of this method, and the Court issued an order nisiin the petition. Prior to hearing the petition, however, this interrogation practice ceased.
Excessively Tight Handcuffs
12. In a number of petitions (HCJ 5188/96; HCJ 7563/97), several petitioners complained of excessively tight hand or leg cuffs. They contended that this practice results in serious injuries to the suspect’s hands, arms and feet, due to the length of the interrogations. The petitioners contend that particularly small cuffs were used. The state, for its part, denies the use of unusually small cuffs, arguing that those used were of standard issue and were properly applied. Even so, the state is prepared to admit that prolonged hand or foot cuffing is likely to cause injuries to the suspect’s hands and feet. The state contends, however, that injuries of this nature are inherent to any lengthy interrogation.
Sleep Deprivation
13. In a number of petitions (HCJ 6536/96; HCJ 7563/97; HCJ 7628/97) petitioners complained of being deprived of sleep as a result of being tied in the “Shabach” position, while subject to the playing of loud music, or of being subjected to intense non-stop interrogations without sufficient rest breaks. They claim that the purpose of depriving them of sleep is to cause them to break from exhaustion. While the state agrees that suspects are at times deprived of regular sleep hours, it argues that this does not constitute an interrogation method aimed at causing exhaustion, but rather results from the long amount of time necessary for conducting the interrogation.
Petitioners’ Arguments
14. Before us are a number of petitions. Different petitioners raise different arguments. All the petitions raise two essential arguments. First, they submit that the GSS is never authorized to conduct interrogations. Second, they argue that the physical means employed by GSS investigators not only infringe the human dignity of the suspect undergoing interrogation, but also constitute criminal offences. These methods, argue the petitioners, are in violation of international law as they constitute “torture.” As such, GSS investigators are not authorized to conduct these interrogations. Furthermore, the “necessity defense” is not relevant to the circumstances in question. In any event, the doctrine of "necessity" at most constitutes an exceptional post factum defense, exclusively confined to criminal proceedings against investigators. It cannot, however, provide GSS investigators with the authorization to conduct interrogations. GSS investigators are not authorized to employ any physical means, absent unequivocal authorization from the legislature which conforms to the constitutional requirements of the Basic Law: Human Dignity and Liberty. There is no purpose in engaging in a bureaucratic set up of the regulations and authority, as suggested by the Report of the Commission of Inquiry, since doing so would merely regulate the torture of human beings.
We asked petitioners whether the “ticking bomb” rationale was sufficiently persuasive to justify the use of physical means. This rationale would apply in a situation where a bomb is known to have been placed in a public area and will cause human tragedy if its location is not revealed. This question elicited different responses from the petitioners. There are those convinced that physical means are not to be used under any circumstances; the prohibition on such methods, to their mind, is absolute, whatever the consequences may be. On the other hand, there are others who argue that, even if it is acceptable to employ physical means in the exceptional circumstances of the “ticking bomb,” these methods are used even in absence of “ticking bomb” conditions. The very fact that the use of such means is illegal in most cases warrants banning their use altogether, even if doing so would include those rare cases in which physical coercion may have been justified. Whatever their individual views, all petitioners unanimously highlight the distinction between thepost factum possibility of escaping criminal liability and the advance granting of permission to use physical means for interrogation purposes.
The State’s Arguments
15. According to the state, GSS investigators are authorized to interrogate those suspected of committing crimes against the security of Israel. This authority comes from the government’s general and residual powers, as per article 40 of the Basic Law: the Government. Similarly, the authority to investigate is bestowed upon every individual investigator under article 2(1) of the Criminal Procedure Statute [Testimony]. With respect to the physical means employed by the GSS, the state argues that these methods do not violate international law. Indeed, it is submitted that these methods cannot be described as “torture,” as “cruel and inhuman treatment,” or as “degrading treatment,” which are all strictly prohibited under international law. The state further contends that the practices of the GSS do not cause pain and suffering.
Moreover, the state argues that these means are legal under domestic Israeli law. This is due to the “necessity defense” of article 34(11) of the Penal Law-1977. In the specific cases where the “necessity defense” would apply, GSS investigators are entitled to use “moderate physical pressure” as a last resort in order to prevent real injury to human life and well-being. Such “moderate physical pressure” may include shaking. Resort to such means is legal, and does not constitute a criminal offence. In any case, if a specific method is not deemed to be a criminal offence, there is no reason not to employ it, even for interrogation purposes. According to the state, there is no reason to prohibit a particular act if, in specific circumstances, it does not constitute a crime. This is particularly true with respect to GSS investigators who, according to the state, are responsible for the protection of lives and public safety. In support of their position, the state notes that the use of physical means by GSS investigators is most unusual and is only employed as a last resort in very extreme cases. Moreover, even in such cases, these methods are subject to strict scrutiny and supervision, as per the conditions and restrictions in the Report of the Commission of Inquiry. This having been said, when such exceptional conditions are present, these interrogation methods are fundamental to saving human lives and safeguarding Israel’s security.
The Report of the Commission of Inquiry
16. The authority of the GSS to employ particular interrogation methods was examined by the Commission of Inquiry. The Commission, appointed by the government under the Commission of Inquiry Statute-1968, considered the legal status of the GSS. Following a prolonged deliberation, the Commission concluded that the GSS is authorized to investigate those suspected of hostile terrorist acts, even in absence of an express statute, in light of the powers granted to it by other legislation as well as by the government’s residual powers, outlined in the Basic Law: the Government.See The Basic Law: The Government, § 40. In addition, the power to investigate suspects, granted to investigators by the Minister of Justice, as per article 2(1) of the Statute of Criminal Procedure [Testimony], also endows the GSS with the authority to investigate. Another part of the Report of the Commission of Inquiry deals with “defenses available to the investigator.” With regard to this matter, the Commission concluded that, in cases where the saving of human lives requires obtaining certain information, the investigator is entitled to apply both psychological pressure and “a moderate degree of physical pressure.” As such, an investigator who, in the face of such danger, applies a degree of physical pressure, which does not constitute abuse or torture of the suspect, but is proportionate to the danger to human life can, in the face of criminal liability, avail himself of the “necessity defense.” The Commission was convinced that its conclusions were not in conflict with international law, but were rather consistent with both the rule of law and the need to effectively protect the security of Israel and its citizens.
The commission approved the use of “moderate degree of physical pressure.” Such "moderate physical pressure" could be applied under stringent conditions. Directives to this effect were set out in the second, secret part of the report, and subject to the supervision of bodies both internal and external to the GSS. The commission’s recommendations were approved by the government.
The Petitions
17. A number of petitions dealing with the application of physical force by the GSS for interrogation purposes have made their way to this Court over the years. See, e.g., HCJ 7964/95 Billbissi v. The GSS (unreported decision); HCJ 8049/96 Hamdan v. The GSS (unreported decision); HCJ 3123/94 Atun v. The Head of the GSS (unreported decision); HCJ 3029/95 Arquan v. The GSS (unreported decision); HCJ 5578/95 Hajazi v. The GSS (unreported decision). Immediate oral arguments were ordered in each of these cases. In most of the cases, the state declared that the GSS did not employ physical means. As a result, petitioners requested to withdraw their petitions. The Court accepted these motions and informed petitioners of their right to set forth a complaint if physical means were used against them SeeHCJ 3029/95. In only a minority of complaints did the state did not issue such a notice. In other instances, an interim order was issued. At times, we noted that we "did not receive any information regarding the interrogation methods which the respondent [generally the GSS] seeks to employ and we did not take any position with respect to these methods." See HCJ 8049/96 Hamdan v. The GSS (unreported decision). In HCJ 336/96; HCJ 7954/95 Billbissi v. The GSS (unreported decision), the Court noted that, “[T]he annulment of the interim order does not in any way constitute permission to employ methods that do not conform to the law and binding directives.”
As such, the Court has not decided whether the GSS is permitted to employ physical means for interrogation under the defense of “necessity.” Until now, it was not possible for the Court to hear the sort of arguments that would provide a complete normative picture, in all its complexity. At this time, in contrast, a number of petitions have properly laid out complete arguments. For this we thank them.
Some of the petitions are rather general or theoretical while others are quite specific. Even so, we have decided to deal with all of them, since we seek to clarify the state of the law in this most complicated question. To this end, we shall begin by addressing the first issue—are GSS investigators authorized to conduct interrogations? We shall then proceed to examine whether a general power to investigate could potentially sanction the use of physical means—including mental suffering—the likes of which the GSS employs. Finally, we shall examine circumstances where such methods are immediately necessary to rescue human lives and shall decide whether such circumstances justify granting GSS investigators the authority to employ physical interrogation methods.
The Authority to Interrogate
18. The term “interrogation” takes on various meanings in different contexts. For the purposes of these petitions, we refer to the asking of questions which seek to elicit a truthful answer, subject to the privilege against self-incrimination.See the Criminal Procedure Statute (Testimony), § 2. Generally, the investigation of a suspect is conducted at the suspect’s place of detention. Any interrogation inevitably infringes the suspect’s freedom—including his human dignity and privacy—even if physical means are not used. In a country adhering to the rule of law, therefore, interrogations are not permitted in absence of clear statutory authorization, whether such authorization is through primary or secondary legislation. This essential principle is expressed in the Criminal Procedure Statute (Powers of Enforcement, Detention)-1996, §1(a):
Detentions and arrests shall be conducted only by law or by virtue of express statutory authorization.
Hence, the statute and regulations must adhere to the requirements of the Basic Law: Human Dignity and Liberty. The same principle applies to interrogations. Thus, an administrative body, seeking to interrogate an individual—an interrogation being defined as an exercise seeking to elicit truthful answers, as opposed to the mere asking of questions as in the context of an ordinary conversation—must point to an explicit statutory provision. This is required by the rule of law, both formally and substantively. Moreover, this is required by the principle of administrative legality. “If an authority cannot point to a statute from which it derives its authority to engage in certain acts, that act is ultra vires and illegal.” See I. Zamir, The Administrative Authority (1996) at 50. See also 1 B. Bracha, Administrative Law 25 (1987).
19. Is there a statute that authorizes GSS investigators to carry out interrogations? There is no specific provision that deals with the investigatory authority of GSS agents. “The status of the Service, its function and powers, are not outlined in any statute addressing this matter.” See the Report of the Commission of Inquiry, at 302. This having been said, the GSS constitutes an integral part of the executive branch. The fact that the GSS forms part of the executive branch is not, in itself, sufficient to invest it with the authority to interrogate. It is true that, under the Basic Law: The Government, § 40, the government does possess residual or prerogative powers:
The Government is authorized to perform, in the name of the state, all actions which are not in the jurisdiction of another authority. In performing such actions, the Government is subject to all applicable laws.
We cannot, however, interpret this provision as granting the authority to investigate. As noted, the power to investigate infringes a person’s individual liberty. The residual powers of the government authorize it to act whenever there is an “administrative vacuum.” See HCJ 2918/93 The City of Kiryat Gatt v. The State of Israel. There is no so-called “administrative vacuum” this case, as the field is entirely occupied by the principle of individual freedom. Infringing this principle requires specific directives, as President Shamgar insisted in HCJ 5128/94 Federman v. The Minister of Police:
There are means which do not fall within the scope of government powers. Employing them, absent statutory authorization, runs contrary to our most basic normative understanding. Thus, basic rights forms part of our positive law, whether they have been spelled out in a Basic Law or whether this has yet to be done. Thus, for example, the government is not endowed with the capacity to shut down a newspaper on the basis of an administrative decision, absent explicit statutory authorization, irrespective of whether a Basic Law expressly protects freedom of expression. An act of this sort would undoubtedly run contrary to our basic understanding regarding human liberty and the democratic nature of our regime, which provides that liberty may only be infringed upon by virtue of explicit statutory authorization.... Freedom of expression, a basic right, forms an integral part of our positive law. It binds the executive and does not allow it to stray from the prohibition respecting guaranteed human liberty, absent statutory authorization.
In a similar vein, Professor Zamir has noted:
In areas where the government may act under section 40 of the Basic Law: The Government, its actions must conform to the law. Clearly, this precludes the government from acting contrary to statutes. Moreover, it prevents the government from infringing basic rights. This, of course, is true regarding the rights explicitly protected by the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This is also the case for human rights not specifically enumerated in those Basic Laws. For instance, section 40 cannot authorize the government to limit the freedom of expression…. Section 40 only grants general executive powers that cannot serve to directly infringe human rights, unless there is explicit or implicit statutory authorization for doing so. This same conclusion can also be drawn from the fact that a grant of administrative authority cannot be interpreted as granting the power to infringe human rights, unless such powers are explicitly granted by statute.
See 1. I. Zamir, The Administrative Authority 337 (1996).
The same is true in this case. There are to be no infringements on an individual's liberty against interrogation absent statutory provisions which successfully pass constitutional muster. The government’s general administrative powers do not fulfill these requirements. Indeed, when the legislature sought to endow the GSS with the power to infringe individual liberties, it anchored these powers in specific legislation. Thus, for instance, statutes provide that the head of a security service, under special circumstances, is authorized to allow the secret monitoring of telephone conversations.See the Secret Interception of Communication Statute-1979, § 5; Compare the Protection of Privacy Statute-1981, § 19(3)(4). Is there a special statutory instruction endowing GSS investigators with interrogating powers?
20. A specific statutory provision authorizing GSS investigators to conduct interrogations does not exist. While it is true that directives, some with ministerial approval, were promulgated in the wake of the Report of the Commission of Inquiry, these do not satisfy the requirement that a grant of authority flow directly from statute or from explicit statutory authorization. These directives merely constitute internal regulations. Addressing such directives, in HCJ 2581/91Salhat v. The State of Israel , Justice Levin opined:
Clearly, these directives are not to be understood as being tantamount to a “statute,” as defined in article 8 of the Basic Law: Human Dignity. They are to be struck down if they are found not to conform to it
From where, then, do the GSS investigators derive their interrogation powers? The answer is found in article 2(1) of the Criminal Procedure Statute [Testimony] which provides:
A police officer, of or above the rank of inspector, or any other officer or class of officers generally or specially authorized in writing by the Chief Secretary to the Government, to hold enquiries into the commission of offences, may examine orally any person supposed to be acquainted with the facts and circumstances of any offence in respect whereof such officer or police or other authorized officer as aforesaid is enquiring, and may reduce into writing any statement by a person so examined.
It is by virtue of the above provision that the Minister of Justice authorized GSS investigators to conduct interrogations regarding the commission of hostile terrorist activities. It has been brought to the Court’s attention that, in the authorizing decree, the Minister of Justice took care to list the names of those GSS investigators who were authorized to conduct secret interrogations with respect to crimes committed under the Penal Law-1977, the Prevention of Terrorism Statute-1948, the (Emergency) Defense Regulations-1945, the Prevention of Infiltration Statute (Crimes and Judging)-1954, and crimes which are to be investigated as per the Emergency Defense Regulations (Judea, Samaria and the Gaza Strip-Judging in Crimes and Judicial Assistance-1967). It appears to us—and we have heard no arguments to the contrary—that the question of the authority of the GSS to conduct interrogations can be resolved. By virtue of this authorization, GSS investigators are, in the eyes of the law, like police officers. We shall not now, however, express our opinion as to whether this arrangement, as opposed to the explicit statutory regulation of GSS officers, is an ideal arrangement.
The Means Employed for Interrogation Purposes
21. As we have seen, GSS investigators are endowed with the authority to conduct interrogations. What is the scope of these powers and do they include the use of physical means in the course of the interrogation? Can use be made of the physical means presently employed by GSS investigators—such as shaking, the “Shabach” position, and sleep deprivation—by virtue of the investigating powers given the GSS investigators? Let us note that the state did not argue before us that all the means employed by GSS investigators are permissible by virtue of the “law of interrogation.” Thus, for instance, the state did not make the argument that shaking is permitted simply because it is an “ordinary” method of investigation in Israel. Even so, it was argued that some of the physical means employed by the GSS investigators are permitted by the “law of interrogation” itself. For instance, this is the case with respect to some of the physical means applied in the context of waiting in the “Shabach” position—the placing of the head covering to prevent communication between the suspects, the playing of loud music to prevent the passing of information between suspects, the tying of the suspect’s hands to a chair for the investigators’ protection, and the deprivation of sleep, as necessary from the needs of the interrogation. Does the “law of interrogation” sanction the use of these physical means?
22. An interrogation, by its very nature, places the suspect in a difficult position. “The criminal’s interrogation,” wrote Justice Vitkon over twenty years ago, “is not a negotiation process between two open and honest merchants, conducting their affairs in mutual trust.” Cr. A 216/74 Cohen v The State of Israel, at 352. An interrogation is a “competition of minds,” in which the investigator attempts to penetrate the suspect’s mind and elicit the information that the investigator seeks to obtain. Quite accurately, it was noted that:
Any interrogation, be it the fairest and most reasonable of all, inevitably places the suspect in embarrassing situations, burdens him, penetrates the deepest crevices of his soul, while creating serious emotional pressure.
See Y. Kedmi, On Evidence 25 (1991)
Indeed, the authority to conduct interrogations, like any administrative power, is designed for a specific purpose, and must be exercised in conformity with the basic principles of the democratic regime. In setting out the rules of interrogation, two values clash. On the one hand, lies the desire to uncover the truth, in accord with the public interest in exposing crime and preventing it. On the other hand is the need to protect the dignity and liberty of the individual being interrogated. This having been said, these values are not absolute. A democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth. “The interrogation practices of the police in a given regime,” noted Justice Landau, “are indicative of a regime’s very character” Cr. A. 264/65 Artzi v. The Government’s Legal Advisor. At times, the price of truth is so high that a democratic society is not prepared to pay. SeeA. Barak, On Law, Judging and Truth, 27 Mishpatim 11, 13 (1997). To the same extent, however, a democratic society, desirous of liberty, seeks to fight crime and, to that end, is prepared to accept that an interrogation may infringe the human dignity and liberty of a suspect—provided that it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined in Cr. A. 183/78 Abu Midjim v. The State of Israel, at 546:
On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and that we do all that we can to restrain police investigators from prohibited and criminal means. On the other hand, it is also our duty to fight the growing crime rate which destroys the good in our country, and to prevent the disruption of public peace by violent criminals.
Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a "reasonable interrogation." See Bein, The Police Investigation—Is There Room for Codification of the ‘Laws of the Hunt’, 12 Iyunei Mishpat 129 (1987). These rules are based, on the one hand, on preserving the “human image” of the suspect, see Cr. A. 115/82 Mouadi v. The State of Israel, at 222-24, and on preserving the “purity of arms” used during the interrogation. Cr. A. 183/78, supra. On the other hand, these rules take into consideration the need to fight crime in general, and terrorist attacks in particular. These rules reflect “a degree of reasonableness, straight thinking, and fairness.” See Kedmi, supra, at 25. The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric.
23. It is not necessary for us to engage in an in-depth inquiry into the “law of interrogation” for the purposes of the petitions before us. These laws vary, depending on the context. For instance, the law of interrogation is different in the context of an investigator’s potential criminal liability, and in the context of admitting evidence obtained by questionable means. Here we deal with the “law of interrogation” as a power of an administrative authority. See Beinsupra. The “law of interrogation” by its very nature, is intrinsically linked to the circumstances of each case. This having been said, a number of general principles are nonetheless worth noting.
First, a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment, and free of any degrading conduct whatsoever. There is a prohibition on the use of “brutal or inhuman means” in the course of an investigation. F.H. 3081/91 Kozli v. The State of Israel, at 446. Human dignity also includes the dignity of the suspect being interrogated. Compare HCJ 355/59 Catlan v. Prison Security Services, at 298 and C.A.4463/94 Golan v. Prison Security Services. This conclusion is in accord with international treaties, to which Israel is a signatory, which prohibit the use of torture, “cruel, inhuman treatment” and “degrading treatment.” See M. Evans & R. Morgan, Preventing Torture 61 (1998); N.S. Rodley, The Treatment of Prisoners under International Law 63 (1987). These prohibitions are “absolute.” There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect’s body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can lead to the investigator being held criminally liable. See, e.g., the Penal Law: § 277. Cr. A. 64/86 Ashash v. The State ofIsrael (unreported decision).
Second, a reasonable investigation is likely to cause discomfort. It may result in insufficient sleep. The conditions under which it is conducted risk being unpleasant. Of course, it is possible to conduct an effective investigation without resorting to violence. Within the confines of the law, it is permitted to resort to various sophisticated techniques. Such techniques—accepted in the most progressive of societies—can be effective in achieving their goals. In the end result, the legality of an investigation is deduced from the propriety of its purpose and from its methods. Thus, for instance, sleep deprivation for a prolonged period, or sleep deprivation at night when this is not necessary to the investigation time-wise, may be deemed disproportionate.
From the General to the Particular
24. We shall now turn from the general to the particular. Clearly, shaking is a prohibited investigation method. It harms the suspect’s body. It violates his dignity. It is a violent method which can not form part of a legal investigation. It surpasses that which is necessary. Even the state did not argue that shaking is an “ordinary” investigatory method which every investigator, whether in the GSS or the police, is permitted to employ. The argument before us was that the justification for shaking is found in the “necessity defense.” That argument shall be dealt with below. In any event, there is no doubt that shaking is not to be resorted to in cases outside the bounds of “necessity” or as part of an “ordinary” investigation.
25. It was argued before the Court that one of the employed investigation methods consists of compelling the suspect to crouch on the tips of his toes for periods of five minutes. The state did not deny this practice. This is a prohibited investigation method. It does not serve any purpose inherent to an investigation. It is degrading and infringes an individual’s human dignity.
26. The “Shabach” method is composed of several components: the cuffing of the suspect, seating him on a low chair, covering his head with a sack, and playing loud music in the area. Does the general power to investigate authorize any of the above acts? Our point of departure is that there are actions which are inherent to the investigatory power. Compare C.A. 4463/94, supra. Therefore, we accept that the suspect’s cuffing, for the purpose of preserving the investigators’ safety, is included in the general power to investigate. Compare HCJ 8124/96 Mubarak v. The GSS(unreported decision). Provided the suspect is cuffed for this purpose, it is within the investigator’s authority to cuff him. The state’s position is that the suspects are indeed cuffed with the intention of ensuring the investigators’ safety or to prevent the suspect from fleeing from legal custody. Even petitioners agree that it is permissible to cuff a suspect in such circumstances and that cuffing constitutes an integral part of an interrogation. The cuffing associated with the “Shabach” position, however, is unlike routine cuffing. The suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair’s seat and back support, while the other is tied behind him, against the chair’s back support. This is a distorted and unnatural position. The investigators’ safety does not require it. Similarly, there is no justification for handcuffing the suspect’s hands with especially small handcuffs, if this is in fact the practice. The use of these methods is prohibited. As has been noted, “cuffing that causes pain is prohibited.” Mubarak supra. Moreover, there are other ways of preventing the suspect from fleeing which do not involve causing pain and suffering.
27. The same applies to seating the suspect in question in the “Shabach” position. We accept that seating a man is inherent to the investigation. This is not the case, however, when the chair upon which he is seated is a very low one, tilted forward facing the ground, and when he is seated in this position for long hours. This sort of seating is not authorized by the general power to interrogate. Even if we suppose that the seating of the suspect on a chair lower than that of his investigator can potentially serve a legitimate investigation objective—for instance, to establish the “rules of the game” in the contest of wills between the parties, or to emphasize the investigator’s superiority over the suspect—there is no inherent investigative need to seat the suspect on a chair so low and tilted forward towards the ground, in a manner that causes him real pain and suffering. Clearly, the general power to conduct interrogations does not authorize seating a suspect on a tilted chair, in a manner that applies pressure and causes pain to his back, all the more so when his hands are tied behind the chair, in the manner described. All these methods do not fall within the sphere of a “fair” interrogation. They are not reasonable. They infringe the suspect’s dignity, his bodily integrity and his basic rights in an excessive manner. They are not to be deemed as included within the general power to conduct interrogations.
28. We accept that there are interrogation related concerns regarding preventing contact between the suspect under interrogation and other suspects, and perhaps even between the suspect and the interrogator. These concerns require means to prevent the said contact. The need to prevent contact may, for instance, flow from the need to safeguard the investigators’ security, or the security of the suspects and witnesses. It can also be part of the “mind game” which pits the information possessed by the suspect, against that found in the hands of his investigators. For this purpose, the power to interrogate—in principle and according to the circumstances of each particular case—may include the need to prevent eye contact with a given person or place. In the case at bar, this was the explanation provided by the state for covering the suspect’s head with a sack, while he is seated in the “Shabach” position. From what was stated in the declarations before us, the suspect’s head is covered with a sack throughout his “wait” in the “Shabach” position. It was argued that the head covering causes the suspect to suffocate. The sack is large, reaching the shoulders of the suspect. All these methods are not inherent to an interrogation. They are not necessary to prevent eye contact between the suspect being interrogated and other suspects. Indeed, even if such contact is prevented, what is the purpose of causing the suspect to suffocate? Employing this method is not related to the purpose of preventing the said contact and is consequently forbidden. Moreover, the statements clearly reveal that the suspect’s head remains covered for several hours, throughout his wait. For these purposes, less harmful means must be employed, such as letting the suspect wait in a detention cell. Doing so will eliminate any need to cover the suspect’s eyes. In the alternative, the suspect’s eyes may be covered in a manner that does not cause him physical suffering. For it appears that, at present, the suspect’s head covering—which covers his entire head, rather than eyes alone—for a prolonged period of time, with no essential link to the goal of preventing contact between the suspects under investigation, is not part of a fair interrogation. It harms the suspect and his dignity. It degrades him. It causes him to lose his sense of time and place. It suffocates him. All these things are not included in the general authority to investigate. In the cases before us, the State declared that it will make an effort to find a “ventilated” sack. This is not sufficient. The covering of the head in the circumstances described, as distinguished from the covering of the eyes, is outside the scope of authority and is prohibited.
29. Cutting off the suspect from his surroundings can also include preventing him from listening to what is going on around him. We are prepared to assume that the authority to investigate an individual may include preventing him from hearing other suspects under investigation or voices and sounds that, if heard by the suspect, risk impeding the interrogation’s success. At the same time, however, we must examine whether the means employed to accomplish this fall within the scope of a fair and reasonable interrogation. In the case at bar, the detainee is placed in the “Shabach” position while very loud music is played. Do these methods fall within the scope or the general authority to conduct interrogations? Here too, the answer is in the negative. Being exposed to very loud music for a long period of time causes the suspect suffering. Furthermore, the entire time, the suspect is tied in an uncomfortable position with his head covered. This is prohibited. It does not fall within the scope of the authority to conduct a fair and effective interrogation. In the circumstances of the cases before us, the playing of loud music is a prohibited.
30. To the above, we must add that the "Shabach" position employs all the above methods simultaneously. This combination gives rise to pain and suffering. This is a harmful method, particularly when it is employed for a prolonged period of time. For these reasons, this method is not authorized by the powers of interrogation. It is an unacceptable method. "The duty to safeguard the detainee's dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially his dignity." Cr. A. 7223/95 The State of Israel v. Rotenstein.
A similar—though not identical—combination of interrogation methods were discussed in the case of Ireland v. United Kingdom, 23 Eur. Ct. H.R. (ser. B) at 3 (1976). In that case, the Court examined five interrogation methods used by England to investigate detainees suspected of terrorist activities in Northern Ireland. The methods included protracted standing against a wall on the tip of one's toes, covering of the suspect's head throughout the detention (except during the actual interrogation), exposing the suspect to very loud noise for a prolonged period of time, and deprivation of sleep, food and drink. The Court held that these methods did not constitute "torture." However, since they subjected the suspect to "inhuman and degrading" treatment, they were nonetheless prohibited.
31. The interrogation of a person is likely to be lengthy, due to the suspect's failure to cooperate, the complexity of the information sought, or in light of the need to obtain information urgently and immediately. See, e.g., Mubaraksupra; HCJ 5318/95 Hajazi v. GSS (unreported decision). Indeed, a person undergoing interrogation cannot sleep like one who is not being interrogated. The suspect, subject to the investigators' questions for a prolonged period of time, is at times exhausted. This is often the inevitable result of an interrogation. This is part of the "discomfort" inherent to an interrogation. This being the case, depriving the suspect of sleep is, in our opinion, included in the general authority of the investigator. Compare HCJ 3429/94 Shbana v. GSS (unreported decision). Justice Shamgar noted as such in Cr. A. 485/76 Ben Loulou v. The State of Israel (unreported decision):
The interrogation of crimes and, in particular, murder or other serious crimes, cannot be accomplished within an ordinary work day...The investigation of crime is essentially a game of mental resistance...For this reason, the interrogation is often carried out at frequent intervals. This, as noted, causes the investigation to drag on ...and requires diligent insistence on its momentum and consecutiveness.
The above described situation is different from one in which sleep deprivation shifts from being a "side effect" of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or "breaking" him, it is not part of the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner beyond what is necessary.
32. All these limitations on an interrogation, which flow from the requirement that an interrogation be fair and reasonable, is the law with respect to a regular police interrogation. The power to interrogate granted to the GSS investigator is the same power the law bestows upon the ordinary police investigator. The restrictions upon the police investigations are equally applicable to GSS investigations. There is no statute that grants GSS investigators special interrogating powers that are different or more significant than those granted the police investigator. From this we conclude that a GSS investigator, whose duty it is to conduct the interrogation according to the law, is subject to the same restrictions applicable to police interrogators.
Physical Means and the "Necessity" Defense
33. We have arrived at the conclusion that GSS personnel who have received permission to conduct interrogations, as per the Criminal Procedure Statute [Testimony], are authorized to do so. This authority—like that of the police investigator—does not include most of the physical means of interrogation in the petition before us. Can the authority to employ these methods be anchored in a legal source beyond the authority to conduct an interrogation? This question was answered by the state in the affirmative. As noted, our law does not contain an explicit authorization permitting the GSS to employ physical means. An authorization of this nature can, however, in the state’s opinion, be obtained in specific cases by virtue of the criminal law defense of “necessity,” as provided in section 34(1) of the Penal Law. The statute provides:
A person will not bear criminal liability for committing any act immediately necessary for the purpose of saving the life, liberty, body or property, of either himself or his fellow person, from substantial danger of serious harm, in response to particular circumstances during a specific time, and absent alternative means for avoiding the harm.
The state’s position is that by virtue of this defense against criminal liability, GSS investigators are authorized to apply physical means—such as shaking—in the appropriate circumstances and in the absence of other alternatives, in order to prevent serious harm to human life or limb. The state maintains that an act committed under conditions of “necessity” does not constitute a crime. Instead, the state sees such acts as worth committing in order to prevent serious harm to human life or limb. These are actions that society has an interest in encouraging, which should be seen as proper under the circumstances. In this, society is choosing the lesser evil. Not only is it legitimately permitted to engage in fighting terrorism, it is our moral duty to employ the means necessary for this purpose. This duty is particularly incumbent on the state authorities—and, for our purposes, on the GSS investigators—who carry the burden of safeguarding the public peace. As this is the case, there is no obstacle preventing the investigators’ superiors from instructing and guiding them as to when the conditions of the “necessity” defense are fulfilled. This, the state contends, implies the legality of the use of physical means in GSS interrogations.
In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information? The state answers in the affirmative. The use of physical means should not constitute a criminal offence, and their use should be sanctioned, according to the state, by the “necessity” defense.
34. We are prepared to assume, although this matter is open to debate, that the “necessity defense” is available to all, including an investigator, during an interrogation, acting in the capacity of the state. See A. Dershowitz, Is it Necessary to Apply ‘Physical Pressure’ to Terrorists—And to Lie About It?, 23 Israel L. Rev. 193 (1989); K. Bernsmann, Private Self-Defense and Necessity in German Penal Law and in the Penal Law Proposal— Some Remarks, 30 Israel L. Rev. 171, 208-10 (1998). Likewise, we are prepared to accept—although this matter is equally contentious—that the “necessity defense” can arise in instances of “ticking bombs,” and that the phrase "immediate need" in the statute refers to the imminent nature of the act rather than that of the danger. Hence, the imminence criteria is satisfied even if the bomb is set to explode in a few days, or even in a few weeks, provided the danger is certain to materialize and there is no alternative means of preventing it. See M. Kremnitzer, The Landau Commission Report—Was the Security Service Subordinated to the Law or the Law to the Needs of the Security Service?, 23 Israel L. Rev. 216, 244-47 (1989). In other words, there exists a concrete level of imminent danger of the explosion’s occurrence. See M. Kremnitzer & R. Segev, The Petition of Force in the Course of GSS Interrogations- A Lesser Evil?, 4 Mishpat U’Memshal 667, 707 (1989); See also S.Z. Feller, Not Actual “Necessity” but Possible “Justification”; Not “Moderate Pressure”, but Either “Unlimited” or “None at All”, 23 Israel L. Rev. 201, 207 (1989).
Consequently we are prepared to presume, as was held by the Report of the Commission of Inquiry, that if a GSS investigator—who applied physical interrogation methods for the purpose of saving human life—is criminally indicted, the “necessity defense” is likely to be open to him in the appropriate circumstances. See Cr. A. 532/91 Anonymous v. The State of Israel (unreported decision). A long list of arguments, from the fields of ethics and political science, may be raised in support of and against the use of the “necessity defense.” See Kremnitzer & Segev, supra, at 696; M.S. Moor, Torture and the Balance of Evils, 23 Israel L. Rev. 280 (1989); L. Shelf, The Lesser Evil and the Lesser Good—On the Landau Commission’s Report, Terrorism and Torture, 1 Plilim 185 (1989); W.L. & P.E. Twining, Bentham on Torture, 24 Northern Ireland Legal Quarterly 305 (1973); D. Stetman, The Question of Absolute Morality Regarding the Prohibition on Torture, 4 Mishpat U’ Mimshal 161, 175 (1997); A. Zuckerman, Coersion and the Judicial Ascertainment of Truth, 23 Israel L. Rev. 357 (1989). This matter, however, has already been decided under Israeli law. Israeli penal law recognizes the “necessity defense.”
35. Indeed, we are prepared to accept that, in the appropriate circumstances, GSS investigators may avail themselves of the “necessity defense” if criminally indicted. This, however, is not the issue before this Court. We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect. We are dealing with a different question. The question before us is whether it is possible, ex ante, to establish permanent directives setting out the physical interrogation means that may be used under conditions of “necessity.” Moreover, we must decide whether the “necessity defense” can constitute a basis for the authority of a GSS investigator to investigate, in the performance of his duty. According to the state, it is possible to imply from the “necessity defense”—available post factum to an investigator indicted of a criminal offence—the ex ante legal authorization to allow the investigator to use physical interrogation methods. Is this position correct?
36. In the Court’s opinion, the authority to establish directives respecting the use of physical means during the course of a GSS interrogation cannot be implied from the “necessity defense.” The “necessity defense” does not constitute a source of authority, which would allow GSS investigators to make use physical means during the course of interrogations. The reasoning underlying our position is anchored in the nature of the “necessity defense.” The defense deals with cases involving an individual reacting to a given set of facts. It is an improvised reaction to an unpredictable event. See Feller, supra at 209. Thus, the very nature of the defense does not allow it to serve as the source of authorization. Authorization of administrative authority is based on establishing general, forward looking criteria, as noted by Professor Enker:
Necessity is an after-the-fact judgment based on a narrow set of considerations in which we are concerned with the immediate consequences, not far-reaching and long-range consequences, on the basis of a clearly established order of priorities of both means and ultimate values...The defense of necessity does not define a code of primary normative behavior. Necessity is certainly not a basis for establishing a broad detailed code of behavior such as how one should go about conducting intelligence interrogations in security matters, when one may or may not use force, how much force may be used and the like.
See A. Enker, The Use of Physical Force in Interrogations and the Necessity Defense, in Israel and International Human Rights Law: The Issue of Torture 61, 62 (1995). In a similar vein, Kremnitzer and Segev note:
The basic rationale underlying the necessity defense is the impossibility of establishing accurate rules of behavior in advance, appropriate in concrete emergency situations, whose circumstances are varied and unexpected. From this it follows, that the necessity defense is not well suited for the regulation of a general situation, the circumstances of which are known and may repeat themselves. In such cases, there is no reason for not setting out the rules of behavior in advance, in order that their content be determined in a thought out and well-planned manner, which would allow them to apply in a uniform manner to all.
The “necessity defense” has the effect of allowing one who acts under the circumstances of “necessity” to escape criminal liability. The “necessity defense” does not possess any additional normative value. It can not authorize the use of physical means to allow investigators to execute their duties in circumstances of necessity. The very fact that a particular act does not constitute a criminal act—due to the “necessity defense”—does not in itself authorize the act and the concomitant infringement of human rights. The rule of law, both as a formal and as a substantive principle, requires that an infringement of human rights be prescribed by statute. The lifting of criminal responsibility does not imply authorization to infringe a human right. It shall be noted that the Commission of Inquiry did not conclude that the “necessity defense” is the source of authority for employing physical means by GSS investigators during the course of their interrogations. All that the Commission of Inquiry determined was that, if an investigator finds himself in a situation of “necessity,” forcing him to choose the “lesser evil”—harming the suspect for the purpose of saving human lives—the “necessity defense” shall be available to him. Indeed, the Commission of Inquiry noted that, “the law itself must ensure a proper framework governing the actions of the security service with respect to the interrogation of hostile terrorist activities and the related problems particular to it.” Id. at 328.
37. In other words, general directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability. The principle of “necessity” cannot serve as a basis of authority. See Kremnitzer, supra at 236. If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would not flow from the “necessity defense,” but rather from the “justification” defense. This defense is provided for in section 34(13) of the Penal Law, which states:
A person shall not bear criminal liability for an act committed in one of the following cases:
(1) He was obliged or authorized by law to commit it.
This "justification" defense to criminal liability is rooted in an area outside the criminal law. This “external” law serves as a defense to criminal liability. This defense does not rest upon “necessity,” which is “internal” to the Penal Law itself. Thus, for instance, where the question of when an officer is authorized to apply deadly force in the course of detention arises, the answer is found in the laws of detention, which is external to the Penal Law. If a man is killed as a result of this application of force, the “justification” defense will likely come into play. See Cr. A. 486/88, Ankonina v. The Chief Army Prosecutor. The “necessity” defense cannot constitute the basis for rules regarding an interrogation. It cannot constitute a source of authority on which the individual investigator can rely on for the purpose of applying physical means in an investigation. The power to enact rules and to act according to them requires legislative authorization. In such legislation, the legislature, if it so desires, may express its views on the social, ethical and political problems of authorizing the use of physical means in an interrogation. Naturally, such considerations did not come before the legislature when the “necessity” defense was enacted. See Kremnitzer, supra, at 239-40. The “necessity” defense is not the appropriate place for laying out these considerations. See Enker, supra, at 72.
Granting GSS investigators the authority to apply physical force during the interrogation of suspects suspected of involvement in hostile terrorist activities, thereby harming the suspect's dignity and liberty, raises basic questions of law and society, of ethics and policy, and of the rule of law and security. These questions and the corresponding answers must be determined by the legislative branch. This is required by the principle of the separation of powers and the rule of law, under our understanding of democracy. See HCJ 3267/97 Rubinstein v. Minister of Defense.
38. We conclude, therefore, that, according to the existing state of the law, neither the government nor the heads of the security services have the authority to establish directives regarding the use of physical means during the interrogation of suspects suspected of hostile terrorist activities, beyond the general rules which can be inferred from the very concept of an interrogation itself. Similarly, the individual GSS investigator—like any police officer—does not possess the authority to employ physical means that infringe a suspect’s liberty during the interrogation, unless these means are inherent to the very essence of an interrogation and are both fair and reasonable.
An investigator who employs these methods exceeds his authority. His responsibility shall be fixed according to law. His potential criminal liability shall be examined in the context of the “necessity defense.” Provided the conditions of the defense are met by the circumstances of the case, the investigator may find refuge under its wings. Just as the existence of the “necessity defense” does not bestow authority, the lack of authority does not negate the applicability of the necessity defense or of other defenses from criminal liability. The Attorney-General can establish guidelines regarding circumstances in which investigators shall not stand trial, if they claim to have acted from “necessity.” A statutory provision is necessary to authorize the use of physical means during the course of an interrogation, beyond what is permitted by the ordinary “law of investigation,” and in order to provide the individual GSS investigator with the authority to employ these methods. The “necessity defense” cannot serve as a basis for such authority.
A Final Word
39. This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy—it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.
This having been said, there are those who argue that Israel’s security problems are too numerous, and require the authorization of physical means. Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The debate must occur there. It is there that the required legislation may be passed, provided, of course, that the law “befit[s] the values of the State of Israel, is enacted for a proper purpose, and [infringes the suspect's liberty] to an extent no greater than required." See article 8 of the Basic Law: Human Dignity and Liberty.
40. Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged. Therefore, in deciding the law, we must act according to our purest conscience. We recall the words of Deputy President Landau, in HCJ 390/79 Dawikat v. The State of Israel, at 4:
We possess proper sources upon which to construct our judgments and have no need—and, indeed, are forbidden—to allow our personal views as citizens to influence our decisions. Still, I fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large will not be interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged. But what can we do, for this is our role and our obligation as judges?
The Commission of Inquiry pointed to the “difficult dilemma between the imperative to safeguard the very existence of the State of Israel and the lives of its citizens, and between the need to preserve its character—a country subject to the rule of law and basic moral values.” Report of the Commission, at 326. The commission rejected an approach that would consign our fight against terrorism to the twilight shadows of the law. The commission also rejected the “ways of the hypocrites, who remind us of their adherence to the rule of law, even as they remain willfully blind to reality.” Id. at 327. Instead, the Commission chose to follow “the way of truth and the rule of law.” Id. at 328. In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner open to examination to all of Israeli society.
Consequently, it is decided that the order nisi be made absolute. The GSS does not have the authority to “shake” a man, hold him in the “Shabach” position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a “frog crouch” position
and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the “necessity defense,” found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind. Our decision does not negate the possibility that the “necessity defense” will be available to GSS investigators—either in the choice made by the Attorney-General in deciding whether to prosecute, or according to the discretion of the court if criminal charges are brought.
Deputy President S. Levin
I agree.
Justice T. Or
I agree.
Justice E. Mazza
I agree.
Justice M. Cheshin
I agree.
Justice I. Zamir
I agree.
Justice T. Strasberg-Cohen
I agree.
Justice D. Dorner
I agree.
Justice Y. Kedmi
I accept the conclusion reached by my colleague, the President, that the use of exceptional interrogation methods, according to the directives of the Ministerial Committee, "has not been authorized, and is illegal." I am also of the opinion that the time has come for this issue to be regulated by explicit, clear, and unambiguous legislation.
Even so, it is difficult for me to accept that, due to the absence of explicit legislation, the state should be helpless in those rare emergencies defined as "ticking bombs," and that the state would not be authorized to order the use of exceptional interrogation methods in such circumstances. As far as I am concerned, authority does exist under such circumstances, a result of the basic obligation of the state—like all countries of the world—to defend its existence, its well-being, and to safeguard the lives of its citizens. It is clear that, in those circumstances, the state—as well as its agents—will have the natural right of "self-defense," in the broad meaning of the term, against terrorist organizations that seek to take its life and the lives of its citizens.
Against this background, and in order to prevent a situation where the state stands helpless while the "bomb ticks" before our eyes, I suggest that this judgment be suspended for one year. During that year, the GSS will be allowed to employ exceptional interrogative methods in those rare cases of "ticking bombs," on the condition that explicit authorization is granted by the Attorney-General.
Such a suspension would not limit our present ruling that the use of exceptional interrogation methods—those that rely on directives of the Ministerial Committee—are illegal. The suspension of the judgment would not constitute authorization to continue acting according to those directives, and the authorization of the Attorney-General would not legalize the performance of an illegal action. This suspension would only affect the employment of exceptional interrogation methods under the emergency circumstances of a "ticking bomb."
During such a suspension period, the Knesset would be given an opportunity to consider the issue of exceptional interrogation methods in security investigations, both in general and in times of emergency. The GSS would be given the opportunity to cope with emergency situations until the Knesset considers the issue. Meanwhile, the GSS would also have an opportunity to adapt, after a long period during which the directives of the Ministerial Committee have governed.
I therefore join the judgment of the President, subject to my proposal to suspend the judgment for a period of one year.
Decided according to the opinion of the President.
September 6, 1999
7.2.8.5.1.2.5. Model Penal Code sec. 3.02
7.2.8.5.1.2.6. Bybee Memo
7.2.8.5.1.2.7 New York Times Co. v. U.S. Dept. of Justice 7.2.8.5.1.2.7 New York Times Co. v. U.S. Dept. of Justice
756 F.3d 100
The NEW YORK TIMES COMPANY, Charlie Savage, Scott Shane, American Civil Liberties Union, American Civil Liberties Union Foundation, Plaintiffs–Appellants,
v.
UNITED STATES DEPARTMENT OF JUSTICE, United States Department of Defense, Central Intelligence Agency, Defendants–Appellees.
Docket Nos. 13–422 (L), 13–445(CON).
United States Court of Appeals, Second Circuit.
Submitted: Oct. 1, 2013.Decided: June 23, 2014.
Revised: Aug. 25, 2014.
[102] David E. McCraw, The New York Times Company, New York, NY (Stephen N. Gikow, New York, NY, on the brief), for Plaintiffs–Appellants The New York Times Company, Charlie Savage, and Scott Shane.
Jameel Jaffer, American Civil Liberties Union Foundation, New York, NY (Hina Shamsi, Brett Max Kaufman, American Civil Liberties Union Foundation, New York, NY, Joshua Colangelo–Bryan, Dorsey & Whitney LLP, New York, NY, Eric Ruzicka, Colin Wicker, Dorsey & Whitney LLP, Minneapolis, M.N., on the brief), for Plaintiffs–Appellants American Civil Liberties Union and American Civil Liberties Union Foundation.
Sharon Swingle, U.S. Appellate Staff Atty., Washington, D.C. (Preet Bharara, U.S. Atty., Sarah S. Normand, Asst. U.S. Atty., New York, NY, Stuart F. Delery, Acting Asst. U.S. Atty. General, Washington, D.C., on the brief), for Defendants–Appellees.
(Bruce D. Brown, Mark Caramanica, Aaron Mackey, The Reporters Committee for Freedom of Press, Arlington, V.A., for amicus curiae The Reporters Committee for Freedom of Press, in support of Plaintiffs–Appellants.).
[103] (Marc Rotenberg, Alan Butler, Ginger McCall, David Brody, Julia Horwitz, Electronic Privacy Information Center, Washington, D.C., for amicus curiae Electronic Privacy Information Center, in support of Plaintiffs–Appellants.).
Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal of a judgment dismissing challenges to denials of requests under the Freedom of Information Act ("FOIA") presents important issues arising at the intersection of the public's opportunity to obtain information about their government's activities and the legitimate interests of the Executive Branch in maintaining secrecy about matters of national security. The issues assume added importance because the information sought concerns targeted killings of United States citizens carried out by drone aircraft. Plaintiffs–Appellants The New York Times Company and New York Times reporters Charlie Savage and Scott Shane (sometimes collectively "N.Y. Times"), and the American Civil Liberties Union and the American Civil Liberties Union Foundation (collectively "ACLU") appeal from the January 24, 2013, judgment of the United States District Court for the Southern District of New York (Colleen McMahon, District Judge) dismissing, on motions for summary judgment, their consolidated FOIA suits. See New York Times Co. v. U.S. Dep't of Justice ("Dist. Ct. Op."), 915 F.Supp.2d 508 (S.D.N.Y.2013). The suits were brought against the Defendants–Appellees United States Department of Justice ("DOJ"), the United States Department of Defense ("DOD"), and the Central Intelligence Agency ("CIA") (sometimes collectively the "Government").
We emphasize at the outset that the Plaintiffs' lawsuits do not challenge the lawfulness of drone attacks or targeted killings. Instead, they seek information concerning those attacks, notably, documents prepared by DOJ's Office of Legal Counsel ("OLC") setting forth the Government's reasoning as to the lawfulness of the attacks.
The issues primarily concern the validity of FOIA responses that (a) decline to reveal even the existence of any documents responsive to particular requests (so-called "Glomar responses" (described below)), (b) acknowledge the existence of responsive documents but decline to reveal either the number or description of such documents (so-called "no number, no-list" responses (described below)), (c) assert various FOIA exemptions or privileges claimed to prohibit disclosure of various documents that have been publicly identified, notably the OLC–DOD Memorandum and other OLC legal opinions, and (d) challenge the adequacy of a FOIA search conducted by one office of DOJ.
We conclude that (1) a redacted version of the OLC–DOD Memorandum must be disclosed, (2) a redacted version of the classifiedVaughn index (described below) submitted by OLC must be disclosed, (3) other legal opinions prepared by OLC must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction, (4) the Glomar and "no number, no list" responses are insufficiently justified, (5) DOD and CIA must submit Vaughn indices to the District Court for in camerainspection and determination of appropriate disclosure and appropriate redaction, and (6) the Office of Information Policy ("OIP") search was sufficient. We therefore affirm in part, reverse in part, and remand.
[104] Background
The FOIA requests at issue in this case focus primarily on the drone attacks in Yemen that killed Anwar al-Awlaki[1] and Samir Khan in September 2011 and al-Awlaki's teenage son, Abdulrahman al-Awlaki, in October 2011. All three victims were United States citizens either by birth or naturalization.
Statutory Framework. FOIA provides, with exceptions not relevant to this case, that an "agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ..., shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A) (2013). FOIA contains several exemptions, three of which are asserted in this case.
Exemption 1 exempts records that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1) (2013). Executive Order 13526 allows an agency to withhold information that (1) "pertains to" one of the categories of information specified in the Executive order, including "intelligence activities (including covert action)," "intelligence sources or methods," or "foreign relations or foreign activities of the United States" and (2) if "unauthorized disclosure of the information could reasonably be expected to cause identifiable and describable damage to the national security." Executive Order No. 13526 § 1.1(a)(3)-(4), 1.4(c)-(d), 75 Fed.Reg. 708, 709 (Dec. 29, 2009).
Exemption 3 exempts records that are "specifically exempted from disclosure by [another] statute" if the relevant statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A)(i), (ii) (2013). Two such statutes are potentially relevant here. The Central Intelligence Agency Act of 1949, as amended, provides that the Director of National Intelligence "shall be responsible for protecting intelligence sources or methods," and exempts CIA from "any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency." 50 U.S.C. § 3507 (2013). The National Security Act of 1947, 50 U.S.C. § 3024–1(i)(1) (2013), exempts from disclosure "intelligence sources and methods."
Exemption 5 exempts "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5) (2013). Exemption 5 encompasses traditional common law privileges against disclosure, including the attorney-client and deliberative process privileges. See National Council of La Raza v. Dep't of Justice,411 F.3d 350, 356 (2d Cir.2005).
The N.Y. Times FOIA requests and Government responses. Shane and Savage, New York Times reporters, submitted separate FOIA requests to OLC. Shane's request, submitted in June 2010, sought:
all Office of Legal Counsel opinions or memoranda since 2001 that address the legal status of targeted killings, assassination, or killing of people suspected of [105] ties to Al–Qaeda or other terrorist groups by employees or contractors of the United States government.
Joint Appendix ("JA") 296–97.
Savage's request, submitted in October 2010, sought:
a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.
JA 300–01.
OLC denied Shane's request. With respect to the portion of his request that pertained to DOD, OLC initially submitted a so-called "no number, no list" response[2] instead of submitting the usual Vaughn index,[3] numbering and identifying by title and description documents that are being withheld and specifying the FOIA exemptions asserted. A no number, no list response acknowledges the existence of documents responsive to the request, but neither numbers nor identifies them by title or description. OLC said that the requested documents pertaining to DOD were being withheld pursuant to FOIA exemptions 1, 3, and 5.
As to documents pertaining to agencies other than DOD, OLC submitted a so-called "Glomar response."[4] This type of response neither confirms nor denies the existence of documents responsive to the request. See Wilner v. National Security Agency, 592 F.3d 60, 68 (2d Cir.2009). OLC stated that the Glomar response was given "because the very fact of the existence or nonexistence of such documents is itself classified, protected from disclosure by statute, and privileged" under 5 U.S.C. § 552(b)(1), (3), (5). CIA confirmed that it requested DOJ to submit a Glomar response on its behalf.[5]
OLC also denied Savage's request. Declining to submit either a Vaughn index or even a no number, no list response, OLC submitted aGlomar response, stating that, pursuant to Exemptions 1, 3, and 5, it was neither confirming nor denying the existence of documents described in the request. Unlike its letter denying the Shane request, OLC's response to the Savage request did not identify any responsive documents relating to DOD.
During the course of the litigation, OLC modified its responses to the Shane and Savage requests by identifying the existence of one document pertaining to DOD, what the District Court and the parties have referred to as the OLC–DOD Memorandum, but claimed that this document [106] was exempt from disclosure under Exemption 5. Because the OLC–DOD Memorandum was classified, it was presumably also withheld under Exemption 1. As to all other DOD documents, it is not clear whether OLC was continuing to assert aGlomar response, as it had made to Shane, or a no number, no list response, as it had made to Savage.
The ACLU FOIA requests and Government responses. In October 2011, ACLU submitted FOIA requests to three agencies: DOJ (including two of DOJ's component agencies, OIP and OLC), DOD, and CIA. The requests, quoted in the margin,[6] sought various documents concerning the targeted killings of United States citizens [107] in general and al-Awlaki, his son, and Khan in particular.
Both OLC and CIA initially submitted Glomar responses, refusing to confirm or deny the existence of responsive documents, pursuant to Exemptions 1, 3, and 5.
DOD initially stated that it could not respond to the request within the statutory time period because of the scope and complexity of the request.
During the course of the litigation, the Government agencies modified their original responses in light of statements by senior Executive Branch officials on the legal and policy issues pertaining to United States counterterrorism operations and the potential use of lethal force by the United States Government against senior operational leaders of al-Qaeda who are United States citizens.
OLC provided ACLU with a Vaughn index of sixty unclassified responsive documents, each described as an e-mail chain reflecting internal deliberations concerning the legal basis for the use of lethal force against United States citizens in a foreign country in certain circumstances. OLC withheld these documents pursuant to Exemption 5.
OLC also submitted a no number, no list response as to classified documents, stating that it could not provide the number or description of these documents because that information was protected from disclosure by Exemptions 1 and 3. OLC did describe one of these documents as an "OLC opinion related to DoD operations," Declaration of John E. Bies, Deputy Assistant Attorney General, OLC ¶ 38 ("Bies Decl."), JA 279, which it withheld in its entirety under Exemptions 1 and 3. This is apparently not the OLC–DOD Memorandum, which OLC said was exempt from disclosure under Exemption 5. That this document is not the OLC–DOD Memorandum is confirmed by OLC's assertion that this document "cannot be further identified or described on the public record." Id. The OLC–DOD Memorandum was withheld under Exemptions 1 and 5.
OIP located one responsive document, a set of talking points prepared for the Attorney General and others related to "hypothetical questions about Anwar al-Aulaqi's death," Declaration of Douglas R. Hibbard, Deputy Chief of the Initial Request Staff, OIP ¶ 8, JA 441, which it released to ACLU. OIP also issued a Vaughn index listing four unclassified records withheld under Exemptions 3, 5, and 6.[7]OIP also submitted a no number, no list response to various classified documents withheld under Exemptions 1 and 3.
DOD's revised response disclosed a speech given by Jeh Johnson, then-DOD General Counsel, at Yale Law School on February 22, 2012. DOD also provided ACLU with a Vaughn index listing ten unclassified records, withheld pursuant to Exemption 5. Seven of those documents were e-mail traffic regarding drafts of the speech given by Johnson at Yale Law School and a speech delivered by Attorney General Holder at Northwestern University School of Law. One of the withheld unclassified records was a presentation by Johnson in February 2012, regarding international law principles, to officers who had recently obtained the rank of O7. The remaining two withheld unclassified records were described as "memoranda from the Legal Counsel to the Chairman of the Joint Chiefs of Staff to the White House's National Security Council Legal Advisor addressing the legal basis for conducting [108] military operations against U.S. citizens in general." Declaration of Robert E. Neller, Lt. General, United States Marine Corp, Director of Operations for the Joint Staff at the Pentagon, ¶ 16 ("Neller Decl."). JA 334.
DOD also located responsive classified records. One of these was the previously mentioned OLC–DOD memorandum, which DOD withheld under Exemptions 1 and 5. As to the other classified documents, DOD submitted a no number, no list response.
CIA modified its initial Glomar responses in June 2012 by confirming the existence of "responsive records reflecting a general interest" in two areas described in the ACLU's request: (1) " 'the legal basis ... upon which U.S. citizens can be subjected to targeted killing' " and (2) " 'the process by which U.S. citizens can be subjected to targeted killing.' " Declaration of John Bennett, Director, National Clandestine Service, CIA, ¶ 27 (quoting ACLU request). In these two categories, CIA submitted a no number, no list response, relying on Exemptions 1 and 3, with the exception that CIA acknowledged that it possessed copies of speeches given by the Attorney General at Northwestern University Law School on March 5, 2012, and by the Assistant to the President for Homeland Security and Counterterrorism on April 30, 2012. See id.
The pending lawsuit and District Court opinions. In December 2011, N.Y. Times filed a lawsuit challenging the denials of the Shane and Savage requests. ACLU filed its suit in February 2012. After the suits were consolidated, both Plaintiffs and the Government filed cross-motions for summary judgment. In January 2013, the District Court denied both Plaintiffs' motions for summary judgment and granted the Defendants' motion in both cases, with one exception, which required DOD to submit a more detailed justification as to why the deliberative process exemption (asserted through Exemption 5) applied to two unclassified memos listed in its Vaughn index. See Dist. Ct. Op., 915 F.Supp.2d at 553. Later in January 2013, after receiving a supplemental submission from DOD, the District Court granted the Defendants' motion for summary judgment with respect to the two unclassified DOD memos. See New York Times Co. v. U.S. DOJ("Dist. Ct. Supp. Op."), Nos. 11 Civ. 9336, 12 Civ. 794, 2013 WL 238928 (S.D.N.Y. Jan.22, 2013).
In its principal opinion, which we discuss in more detail in Parts III and IV, below, the Court first ruled that the Government had conducted an adequate search for responsive documents. See Dist. Ct. Op., 915 F.Supp.2d at 532–33. The Court then considered separately each of the Government's claims to an exemption.
As to Exemption 1, concerning properly classified documents, the Court first ruled that there was no evidence that any of the documents withheld pursuant to Exemption 1 had not been properly classified. See id. at 535. The Court specifically considered the Plaintiffs' claim that legal analysis could not be classified and rejected the claim. See id.
Turning to the Plaintiffs' claim of waiver, the Court, citing Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009), first ruled that waiver of Exemption 1 had not occurred with respect to classified documents containing operational details of targeted killing missions. See Dist. Ct. Op., 915 F.Supp.2d at 535–37. The Court then specifically considered whether waiver of Exemption 1 had occurred with respect to the OLC–DOD Memorandum and rejected the claim. See id. at 538.
As to Exemption 3, which protects records exempted from disclosure by statute, [109] the District Court first noted that section 102A(i)(1) of the National Security Act, now codified at 50 U.S.C. § 3024(i)(1) (2013), is an exempting statute within the meaning of Exemption 3, and that this provision protects from disclosure "intelligence sources and methods." Id. at 539. The Court then reckoned with ACLU's contention that placing individuals on kill lists does not fall within the category of intelligence sources and methods. Agreeing with a decision of a district court in the District of Columbia, ACLU v. Dep't of Justice, 808 F.Supp.2d 280, 290–92 (D.D.C.2011) ("Drone Strike Case "), which was later reversed on appeal, see ACLU v. CIA, 710 F.3d 422 (D.C.Cir.2013), the District Court here rejected ACLU's argument. See Dist. Ct. Op., 915 F.Supp.2d at 540. The District Court then specifically focused on the issue whether legal analysis could fall within the category of intelligence sources and methods. Acknowledging that it is "entirely logical and plausible" that intelligence sources and methods could be redacted from legal analysis upon in camera inspection, the Court declined to make such inspection or resolve the issue because it concluded that Exemption 5 "plainly applies" to the legal analysis that is sought here. See id.
The District Court then determined that section 6 of the CIA Act, 50 U.S.C. § 403g, now codified at 50 U.S.C. § 3507 (2013), is an exempting statute within the meaning of Exemption 3 and that section 6 protects from disclosure information concerning the "functions" of CIA. See id. at 541. Again, following the district court decision in the Drone Strike Case, before it was reversed, the District Court here ruled that Exemption 3 permitted CIA, in response to ACLU's request, to refuse to reveal the existence of records concerning drone strikes. See id.
As to Exemption 5, covering "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency," the District Court noted that this exemption applies to documents withheld "under the deliberative process privilege (a.k.a., the executive privilege) and the attorney-client privilege," citing this Court's decision in Tigue v. U.S. Dep't of Justice, 312 F.3d 70, 76 (2d Cir.2002). See Dist. Ct. Op., 915 F.Supp.2d at 541–42. OLC relied on the deliberative process privilege to withhold the classified OLC–DOD Memorandum, which both Plaintiffs sought, and DOD relied on this privilege to withhold the two unclassified documents on its Vaughn index that ACLU requested. These two, numbered 9 and 10, were described as "Memorandum from Legal Counsel to Chairman of the Joint Chiefs of Staff to the National Security Legal Advisor with legal analysis regarding the effect of U.S. citizenship on targeting enemy belligerents." JA 409.
With respect to the OLC–DOD Memorandum, the District Court, accepting N.Y. Times's concession that this document at one time might have been properly withheld under the deliberative process and/or attorney-client privileges, see id. at 544, rejected the Plaintiffs' contentions that these privileges had been lost because of one or more of the following principles: waiver, adoption, or working law, seeid. at 546–50.
As to documents 9 and 10 on DOD's Vaughn index, the Court initially found DOD's justification for invoking Exemption 5 inadequate,see id. at 545, but ruled that a subsequent submission sufficiently supported the application of the deliberative process privilege and hence Exemption 5 to these documents, see Dist. Ct. Supp. Op., 2013 WL 238928, at *1.
[110] Finally, the District Court considered the Glomar and no number, no list responses that were given by DOJ, DOD, and CIA. Apparently accepting the sufficiency of the affidavits submitted by officials of these agencies to justify the responses under Exemptions 1 and 3, the Court turned its attention to the Plaintiffs' claims that these protections had been waived. Again, following the district court opinion in the Drone Strike Case, before it was reversed, the District Court here concluded that none of the public statements of senior officials waived entitlement to submit Glomar or no number, no list responses because "[i]n none of these statements is there a reference to any particular records pertaining to the [targeted killing] program, let alone the number or nature of those records." Dist. Ct. Op., 915 F.Supp.2d at 553 (emphases in original).
Information made public after the District Court opinions.[8] After the District Court entered judgment for the Defendants, one document and several statements of Government officials that the Plaintiffs contend support their claims became publicly available. The document is captioned "DOJ White Paper" and titled "Lawfulness of a Lethal Operation Directed Against a U.S. Citizen Who Is a Senior Operational Leader of Al–Qaida or an Associated Force" ("DOJ White Paper"). As the Government acknowledges, see Br. for Appellees at 25, the 16–page, single-spaced DOJ White Paper was leaked to the press and subsequently officially disclosed by DOJ.[9]The leak occurred on February 4, [111] 2013; the official disclosure occurred four days later.
The statements are those of John O. Brennan, Attorney General Eric Holder, and President Obama. Brennan, testifying before the Senate Select Committee on Intelligence on February 7, 2013, on his nomination to be director of CIA, said, among other things, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Open Hearing on the Nomination of John O. Brennan to be Director of the Central Intelligence Agency Before the S. Select Comm. on Intelligence, 113 Cong. 57 (Feb. 7, 2013) ("Brennan Hearing "), available at http://www.intelligence.senate.gov/130207/transcript. pdf. Holder sent a letter to Senator Patrick J. Leahy, Chairman of the Senate Judiciary Committee on May 22, 2013 ("Holder Letter ").[10] In that letter Holder stated, "The United States ... has specifically targeted and killed one U.S. citizen, Anwar al-Aulaqi," Holder Letter at unnumbered second page, and acknowledged that United States counterterrorism operations had killed Samir Khan and Abdulrahman al-Awlaki, who, he states, were not targeted by the United States, see id. He also stated, "[T]he Administration has demonstrated its commitment to discussing with the Congress and the American people the circumstances in which it could lawfully use lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qaida or its associated forces, and is actively engaged in planning to kill Americans." Id.He also stated, "The decision to target Anwar al-Aulaki was lawful...." Id. at fourth unnumbered page. President Obama delivered an address at the National Defense University on May 23, 2013.[11] In that address, the President listed al-Awlaki's terrorist activities and acknowledged that he had "authorized the strike that took him out."
Discussion
I. FOIA Standards.
FOIA calls for "broad disclosure of Government records." CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985). The disclosure obligation is subject to several exemptions. However, "consistent with the Act's goal of broad disclosure, these exemptions have consistently been given a narrow compass." [112] Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8, 121 S.Ct. 1060, 149 L.Ed.2d 87 (2001) (internal quotation marks omitted). Exemptions 1 (classified documents), 3 (documents protected by statute), and 5 (privileged documents), outlined above, have been invoked in this litigation. "The agency asserting the exemption bears the burden of proof, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure."Wilner, 592 F.3d at 69. To meet its burden of proof, the agency can submit "[a]ffidavits or declarations giving reasonably detailed explanations why any withheld documents fall within an exemption." ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir.2012) (internal quotation marks omitted).
We review de novo a district court's grant of summary judgment in FOIA litigation. See Wilner, 592 F.3d at 69. When an agency claims that a document is exempt from disclosure, we review that determination and justification de novo. See id. When the claimed exemptions involve classified documents in the national security context, the Court must give "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." ACLU, 681 F.3d at 69 (emphasis in original) (internal quotation marks omitted).
II. Appellants' Claims
Narrowing the scope of the Shane request (OLC opinions that address the legal status of targeted killings) and the Savage request (OLC memoranda analyzing the circumstances under which it would be lawful to kill a United States citizen who is deemed to be a terrorist), Appellant N.Y. Times presses on appeal its request to OLC for disclosure of the OLC–DOD memorandum. N.Y. Times also requests a Vaughn index of all withheld documents, instead of the no number, no list and Glomar responses it has received. See Br. for N.Y. Times at 51–52. ACLU seeks disclosure of the OLC–DOD memorandum; what it refers to as "the Unclassified Memos," Br. for ACLU at 50, 61, which are documents nos. 9 and 10 on DOD's Vaughn index, see Dist. Ct. Op., 915 F.Supp.2d at 545; and "certain OLC memoranda that the agencies have not addressed in this litigation but whose existence they have officially acknowledged in public statements," Br. for ACLU at 50. ACLU also requests Vaughn indices and asks that OIP be required "to renew its search for responsive documents." Br. for ACLU at 61.
III. The OLC–DOD Memorandum
The OLC–DOD Memorandum, as described by OLC, is an "OLC opinion pertaining to the Department of Defense marked classified ... [t]hat ... contains confidential legal advice to the Attorney General, for his use in interagency deliberations, regarding a potential military operation in a foreign country." Bies Decl. ¶ 30.
OLC withheld the OLC–DOD Memorandum as protected from disclosure by Exemption 5 "because it is protected by the deliberative process and attorney-client privileges." Id. DOD withheld the document under Exemptions 1 and 5 "because the content of the document contains information about military operations, intelligence sources and methods, foreign government information, foreign relations, and foreign activities." Neller Decl. ¶ 17. General Neller stated that the classified information in the OLC–DOD Memorandum "is not reasonably segregable." Id.
In upholding the application of Exemption 1 to the OLC–DOD Memorandum, the District Court first ruled that the affidavits supplied by senior Government officials [113] demonstrated that classification had been properly made. See Dist. Ct. Op., 915 F.Supp.2d at 535. The Court then ruled that legal analysis may be classified, citing three district court opinions.[12]See id. After pointing out that Exemption 1 applies to documents properly classified pursuant to an Executive Order and that Executive Order No. 13526 "applies to any information that 'pertains to' military plans or intelligence activities (including covert action), sources or methods," id., the Court stated, "I see no reason why legal analysis cannot be classified pursuant to E.O. 13526 if it pertains to matters that are themselves classified," id.
In considering the application of Exemption 5 to the OLC–DOD Memorandum, the District Court noted the Government's claim that both the deliberative process and attorney-client privileges protected the document, and observed that N.Y. Times did not disagree that the document might at one time have been withheld under both privileges. See id. at 544.
After determining that Exemptions 1 and 5 applied to the OLC–DOD Memorandum, the Court considered and rejected the Plaintiffs' claims that the Government had waived application of these exemptions. With respect to waiver of Exemption 1, the Court stated that waiver occurs only where the government has "officially" disclosed the information sought, Dist. Ct. Op., 915 F.Supp.2d at 536 (citingHalpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999)), and that official disclosure of classified information occurs only if the classified information is " 'as specific as the information previously released,' " " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure,' " id. (quoting Wilson, 586 F.3d at 186). The District Court ruled that no official disclosure had been made concerning documents containing operational details of targeted killings, sought by ACLU, see id.,and that none of the public pronouncements cited by the Plaintiffs "reveals the necessary detailed legal analysis that supports the Administration's conclusion that targeted killing, whether of citizens or otherwise, is lawful," id. at 538 (footnote omitted).
With respect to waiver of Exemption 5, the District Court ruled that the deliberative process privilege had not been waived because "there is no evidence that the Government continually relied upon and repeated in public the arguments made specifically in the OLC–DOD Memo," id. at 549 (emphasis in original) (internal quotation marks omitted), and that "it is sheer speculation that this particular OLC memorandum ... contains the legal analysis that justifies the Executive Branch's conclusion that it is legal in certain circumstances to target suspected terrorists, including United States citizens, for killing away from a 'hot' field of battle," id. The Court saw no need to consider the plaintiffs' claim of waiver in the context of the attorney-client privilege because the deliberative process privilege protected the OLC–DOD Memorandum under Exemption 5. See id.
We agree with the District Court's conclusions that the OLCDOD Memorandum was properly classified and that no waiver of any operational details in that document has occurred. With respect to the document's legal analysis, we conclude that waiver of Exemptions 1 and 5 has [114] occurred.[13] "Voluntary disclosures of all or part of a document may waive an otherwise valid FOIA exemption," Dow Jones & Co. v. U.S. Dep't of Justice, 880 F.Supp. 145, 150–51 (S.D.N.Y.1995) (citing Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 700 (9th Cir.1989)), vacated in part on other grounds, 907 F.Supp. 79 (S.D.N.Y.1995), and the attorney-client and deliberative privileges, in the context of Exemption 5, may be lost by disclosure, see Brennan Center for Justice v. U.S. Dep't of Justice,697 F.3d 184, 208 (2d Cir.2012).
(a) Loss of Exemption 5. Exemption 5 " 'properly construed, calls for disclosure of all opinions and interpretations which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be.' " Id. at 196 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)). At the same time, we recognize that "the law extends the privilege to legal advice given by a lawyer to his client [because] statements by the lawyer often reveal—expressly or by necessary implication—assumptions of fact based on statements by the client," George A. Davidson & William H. Voth, Waiver of the Attorney–Client Privilege, 64 Oregon L.Rev. 637, 650 (1986).
In considering waiver of the legal analysis in the OLC–DOD Memorandum, we note initially the numerous statements of senior Government officials discussing the lawfulness of targeted killing of suspected terrorists, which the District Court characterized as "an extensive public relations campaign to convince the public that [the Administration's] conclusions [about the lawfulness of the killing of al-Awlaki] are correct." Dist. Ct. Op., 915 F.Supp.2d at 524. In a March 25, 2010, speech at the annual meeting of the American Society of International Law in Washington, D.C., then-Legal Adviser of the State Department Harold Hongju Koh said, "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." JA 113, 124. In a February 22, 2012, speech at the Yale Law School, Jeh Johnson, then-General Counsel of DOD, "summarize[d] ... some of the basic legal principles that form the basis for the U.S. military's counterterrorism efforts against Al Qaeda and its associated forces," JA 399, and referring explicitly to "targeted killing," said, "In an armed conflict, lethal force against known, individual members of the enemy is a long-standing and long-legal practice," JA 402.
In a March 5, 2012, speech at Northwestern University, Attorney General Holder said, "[I]t is entirely lawful—under both United States law and applicable law of war principles—to target specific senior operational leaders of al Qaeda and associated forces." JA 449. He discussed the relevance of the Due Process Clause, id., and maintained that killing a senior al Qaeda leader would be lawful at least in circumstances where
[f]irst, the U.S. government has determined, after a thorough and careful review, that the individual poses an imminent threat of violent attack against the United States; second, capture is not feasible; and third, the operation would be conducted in a manner consistent with applicable law of war principles.
JA 450. Amplifying this last point, he stated that "use of lethal force by the United States will comply with the four fundamental law of war principles governing [115] the use of force: ... necessity[,] ... distinction [,] ... proportionality[,] ... [and] humanity." Id. As the District Court noted, "The Northwestern Speech [by the Attorney General] discussed the legal considerations that the Executive Branch takes into consideration before targeting a suspected terrorist for killing" and "the speech constitutes a sort of road map of the decision-making process that the Government goes through before deciding to 'terminate' someone 'with extreme prejudice.' " Dist. Ct. Op., 915 F.Supp.2d at 537.
In an April 30, 2012, speech at the Wilson Center in Washington D.C., John O. Brennan, then-Assistant to the President for Homeland Security and Counterterrorism, said, "Yes, in full accordance with the law, and in order to prevent terrorist attacks on the United States and to save American lives, the United States Government conducts drone strikes against specific al-Qaida terrorists, sometimes using remotely piloted aircraft, often referred to publicly as drones." JA 95. On Feb. 7, 2013, Brennan, testifying on his nomination to be director of CIA, said, "The Office of Legal Counsel advice establishes the legal boundaries within which we can operate." Brennan Hearing at 57.
Even if these statements assuring the public of the lawfulness of targeted killings are not themselves sufficiently detailed to establish waiver of the secrecy of the legal analysis in the OLC–DOD Memorandum, they establish the context in which the most revealing document, disclosed after the District Court's decision, should be evaluated. That document is the DOJ White Paper, officially released on Feb. 4, 2013. See note 9, above. Before considering the relevance of the DOJ White Paper to the Government's claim to continued secrecy and privilege of the legal analysis in the OLC–DOD Memorandum, we describe that Memorandum, which we have examined in camera, in some detail.
The OLC–DOD Memorandum is a 41–page classified document, dated July 16, 2010, captioned:
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shykh Anwar al-Aulaki[14]
It was prepared on the letterhead of OLC and signed by David J. Barron, Acting Assistant Attorney General.
The OLC–DOD Memorandum has several parts. After two introductory paragraphs, Part I(A) reports intelligence that OLC has received concerning the relationship between Al–Qaida in the Arabian Peninsula ("AQAP") and al-Qaida, the organization and operation of AQAP, and the role al-Awlaki performs with AQAP. Parts I(B) and I(C) describe the manner in which government agencies would perform the targeted killing of al-Awlaki. Part II(A) considers Title 18 U.S.C. § 1119 (2013), entitled "Foreign murder of United States nationals" and explains why section 1119 does not proscribe killings covered by a traditionally recognized justification. Part II(B) explains why section 1119 incorporates one such justification, the public authority justification. Part III(A) explains why the public authority justification encompasses DOD's role in the contemplated targeted killing, and Part III(B) explains why that justification encompasses another agency's role in the killing. Part IV explains why the contemplated killing would not violate 18 U.S.C. § 956(a) (2013), entitled "Conspiracy to kill, maim, or injure [116] persons or damage property in a foreign country." Part V explains why the contemplated killing would not violate 18 U.S.C. § 2441 (2013), entitled "War crimes." Part VI explains why the contemplated killing would not violate the Fourth or Fifth Amendments of the Constitution.
The 16–page, single-spaced DOJ White Paper virtually parallels the OLC–DOD Memorandum in its analysis of the lawfulness of targeted killings. Like the Memorandum, the DOJ White Paper explains why targeted killings do not violate 18 U.S.C. §§ 1119 or 2441, or the Fourth and Fifth Amendments to the Constitution, and includes an analysis of why section 1119 encompasses the public authority justification. Even though the DOJ White Paper does not discuss 18 U.S.C. § 956(a), which the OLC–DOD Memorandum considers, the substantial overlap in the legal analyses in the two documents fully establishes that the Government may no longer validly claim that the legal analysis in the Memorandum is a secret. After the District Court's decision, Attorney General Holder publicly acknowledged the close relationship between the DOJ White Paper and previous OLC advice on March 6, 2013, when he said at a hearing of the Senate Committee on the Judiciary that the DOJ White Paper's discussion of imminence of threatened action would be "more clear if it is read in conjunction with the underlying OLC advice."[15]Oversight of the U.S. Department of Justice Before the Senate Committee on the Judiciary, 113th Cong. (Mar. 6, 2013).
After senior Government officials have assured the public that targeted killings are "lawful" and that OLC advice "establishes the legal boundaries within which we can operate," and the Government makes public a detailed analysis of nearly all the legal reasoning contained in the OLC–DOD Memorandum, waiver of secrecy and privilege as to the legal analysis in the Memorandum has occurred.
The recent opinion of the District Court for the Northern District of California, First Amendment Coalition v. U.S. Dep't of Justice, No. 4:12–cv–01013–CW, 2014 WL 1411333 (N.D.Cal. April 11, 2014), denying an FOIA request for the OLC–DOD Memorandum, is readily distinguishable because the Court, being under the impression that "there has been no 'official disclosure' of the White Paper," id., 2014 WL 1411333 at 12, did not assess its significance, whereas in our case, the Government has conceded that the White Paper, with its detailed analysis of legal reasoning, has in fact been officially disclosed, see footnote 10, supra.
In resisting disclosure of the OLC–DOD Memorandum, the Government contends that making public the legal reasoning in the document will inhibit agencies throughout the Government from seeking OLC's legal advice. The argument proves too much. If this contention were upheld, waiver of privileges protecting legal advice could never occur. In La Raza, we explained that "[l]ike the deliberative process privilege, the attorney-client privilege may not be invoked to protect a document adopted as, or incorporated by reference into, an agency's policy." 411 F.3d at 360. Here, the Government has done so by publicly asserting that OLC advice "establishes the legal boundaries within which we can operate"; it "cannot invoke that relied-upon authority and then shield it from public view." [117] Brennan Center, 697 F.3d at 207–08. Agencies seeking OLC legal advice are surely sophisticated enough to know that in these circumstances attorney/client and deliberative process privileges can be waived and the advice publicly disclosed. We need not fear that OLC will lack for clients.
The Government also argues that because the OLC–DOD Memorandum refers to earlier OLC documents that remain classified, those assessing the legal reasoning in the OLC–DOD Memorandum might find the reasoning deficient without an opportunity to see the previous documents. However, the reasoning in the OLC–DOD Memorandum is rather elaborate, and readers should have no difficulty assessing the reasoning on its own terms. Moreover, the Government had no similar concern when it released the DOJ White Paper, the reasoning of which cannot be properly assessed, on the Government's argument, without seeing the OLC–DOD Memorandum.Finally, the Government always has the option of disclosing redacted versions of previous OLC advice.
The loss of protection for the legal analysis in the OLC–DOD Memorandum does not mean, however, that the entire document must be disclosed. FOIA provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection." 5 U.S.C. § 552b. The Government's waiver applies only to the portions of the OLC–DOD Memorandum that explain legal reasoning. These are Parts II, III, IV, V, and VI of the document, and only these portions will be disclosed. Even within those portions of the document, there are matters that the Government contends should remain secret for reasons set forth in the Government's classified ex parte submission, which we have reviewed in camera.
One of those reasons concerns [redacted] the Government persuasively argues warrants continued secrecy. [redacted] We will redact all references to that [redacted].[16]
Two arguments concern facts mentioned within the legal reasoning portions of the OLC–DOD Memorandum that no longer merit secrecy. One is the identity of the country in which al-Awlaki was killed. However, numerous statements by senior Government officials identify that country as Yemen. On September 30, 2011, DOD released a transcript reporting then-Secretary of Defense Panetta stating, "[W]e've been working with the Yemenis over a long period of time to be able to target Awlaki, and I want to congratulate them on their efforts, their intelligence assistance, their operational assistance to get the job done." JA 799. On October 25, 2011, President Obama, appearing on a network television program, said, referring to al-Awlaki, "[I]t was important that, working with the [Yemenis,][17]we were able to remove him from the field." Transcript of The Tonight Show with Jay Leno (Oct. 25, 2011). JA 556. On the day al-Awlaki was killed, September 3, 2011, DOD's Armed Forces Press Service reported, "A U.S. airstrike that killed Yemeni-based terrorist Anwar al-Awlaki early this morning is a testament to the close cooperation between the United States and Yemen, Defense Secretary Leon E. Panetta said today." JA 651. The report continued, "Obama and Panetta congratulated the Yemenis on their intelligence and operational [118] assistance in targeting [al-]Awlaki." Id. It is no secret that al-Awlaki was killed in Yemen. However, the OLC–DOD Memorandum contains some references to the Yemeni government that are entitled to secrecy and will be redacted.
The other fact within the legal reasoning portion of the OLC–DOD Memorandum that the Government contends merits secrecy is the identity of the agency, in addition to DOD, that had an operational role in the drone strike that killed al-Awlaki. Both facts were deleted from the April 21 public opinion, but have been restored in this opinion. Apparently not disputing that this fact has been common knowledge for some time, the Government asserts the importance of concealing any official recognition of the agency's identity. The argument comes too late.
A March 18, 2010, Wall Street Journal article quotes Panetta, then CIA Director:
"Anytime we get a high value target that is in the top leadership of al Qaeda, it seriously disrupts their operations," Mr. Panetta said. "It sent two important signals," Mr. Panetta said. "No. 1 that we are not going to hesitate to go after them wherever they try to hide, and No. 2 that we are continuing to target their leadership."
"Drone Kills Suspect in CIA Suicide Bombing," The Wall Street Journal (Mar. 18, 2010). Although the reference to "we" is not unequivocally to CIA and might arguably be taken as a reference to the Government generally, any doubt on this score was eliminated three months later.
In a June 27, 2010, interview with Jake Tapper of ABC News, Panetta said:
[W]e are engaged in the most aggressive operations in the history of the CIA in that part of the world, and the result is that we are disrupting their leadership. We've taken down more than half of their Taliban leadership, of their Al Qaida leadership. We just took down number three in their leadership a few weeks ago.
...
Awlaki is a terrorist and yes, he's a United States citizen, but he is first and foremost a terrorist and we're going to treat him like a terrorist. We don't have an assassination list, but I can tell you this. We have a terrorist list and he's on it.
Tr. of This Week telecast, available at http://abcnews.go.com/ThisWeek/week-transcriptpanetta/story?id=11025299&singlePage=true.
On October 7, 2011, Panetta, then Secretary of Defense, was quoted as saying in a speech to sailors and Marines at the United States Navy's 6th Fleet headquarters in Naples, "Having moved from the CIA to the Pentagon, obviously I have a hell of a lot more weapons available to me in this job than I had at the CIA, although the Predators aren't bad." "U.S.: Defense secretary refers to CIA drone use," Los Angeles Times (Oct. 7, 2011).
On January 29, 2012, the following occurred when Secretary of Defense Panetta was interviewed by Scott Pelley on the CBS television program "60 Minutes":
Asked, "You killed al-Awlaki?" Panetta "nodded affirmatively," as described by the District Court, see Dist. Ct. Op., 915 F.Supp.2d at 530. Then, when asked about identifying for killing a person who has been identified as an enemy combatant, Panetta says, "It's a recommendation we make, it's a recommendation the CIA director makes in my prior role ... the President of the United States has to sign off." Web Extra presentation, available at http:// www.cbsnews.com/video/watch/?id=7396830n, at 0:01, 2:30. CIA's former director has publicly acknowledged CIA's role in the killing of al-Awlaki.
[119] On February 7, 2014, Rep. Mike Rogers, chairman of the House Select Committee on Intelligence, disclosed that his committee has overseen the CIA's targeted-killing strikes since "even before they conducted that first air strike that took Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), http://cbsn.ws/ZgB9R.
On February 11, 2014, the following exchange occurred between Senator Bill Nelson and James R. Clapper, Director of National Intelligence, at a hearing of the Senate Armed Services Committee:
Senator NELSON. It is—you tell me if this is correct—the administration's policy that they are exploring shifting the use of drones, unmanned aerial vehicle strikes, from the CIA to the DOD. Is that an accurate statement?
Mr. CLAPPER. Yes, sir. it is.
Testimony on Current and Future Worldwide Threats to the National Security of the United States, Hearing Before the Senate Armed Services Comm., 113th Cong. 37 (2014), available at http://www.armed-services.senate.gov/imo/media/doc.14-07 - 2-11-14.pdf. It is no secret that CIA has a role in the use of drones.
(b) Loss of Exemption 1. Much of the above discussion concerning loss of Exemption 5 is applicable to loss of Exemption 1. As the District of Columbia Circuit has noted, "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears 'logical' or 'plausible.' " Wolf v. CIA, 473 F.3d 370, 374–75 (D.C.Cir.2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982)). But Gardels made it clear that the justification must be "logical" and "plausible" "in protecting our intelligence sources and methods from foreign discovery." 689 F.2d at 1105.
The District Court noted the Government's contention that " '[i]t is entirely logical and plausible that the legal opinion contains information pertaining to military plans, intelligence activities, sources and methods, and foreign relations.' (Gov't Memo. in Opp'n/Reply 6)." Dist. Ct. Op., 915 F.Supp.2d at 540. But the Court then astutely observed, "[T]hat begs the question. In fact, legal analysis is not an 'intelligence source or method.' " Id.
We recognize that in some circumstances the very fact that legal analysis was given concerning a planned operation would risk disclosure of the likelihood of that operation, but that is not the situation here where drone strikes and targeted killings have been publicly acknowledged at the highest levels of the Government. We also recognize that in some circumstances legal analysis could be so intertwined with facts entitled to protection that disclosure of the analysis would disclose such facts. Aware of that possibility, we have redacted, as explained above, the entire section of the OLC–DOD Memorandum that includes any mention of intelligence gathering activities. The only other facts mentioned in the pure legal analysis portions of the OLC-DOD Memorandum—the identification of the country where the drone strike occurred and CIA's role—have both already been disclosed, also as explained above. With respect to disclosure of CIA's role, we can be confident that neither Senator Dianne Feinstein, Chairman of the Senate Select Committee on Intelligence, nor Representative Mike Rogers, Chairman of the House Select Committee on Intelligence, thought they were revealing a secret when they publicly discussed CIA's role in targeted killings by drone strikes.[18]
[120] The three-part test for "official" disclosure, relevant to Exemption 1, which the District Court took from Wilson, 586 F.3d at 186, has been sufficiently satisfied. The legal analysis in the OLC–DOD Memorandum is " 'as specific as the information previously released' " in the DOJ White Paper, it " 'match[es] the information previously disclosed,' " and was " 'made public through an official and documented disclosure.' " Dist. Ct. Op., 915 F.3d at 536 (quoting Wilson, 586 F.3d at 186). In reaching this conclusion, we do not understand the "matching" aspect of the Wilson test to require absolute identity. Indeed, such a requirement would make little sense. A FOIA requester would have little need for undisclosed information if it had to match precisely information previously disclosed.[19]
With the redactions and public disclosures discussed above, it is no longer either "logical" or "plausible" to maintain that disclosure of the legal analysis in the OLC–DOD Memorandum risks disclosing any aspect of "military plans, intelligence activities, sources and methods, and foreign relations." The release of the DOJ White Paper, discussing why the targeted killing of al-Awlaki would not violate several statutes, makes this clear. The additional discussion of 18 U.S.C. § 956(a) in the OLC–DOD Memorandum adds nothing to the risk. Whatever protection the legal analysis might once have had has been lost [121] by virtue of public statements of public officials at the highest levels and official disclosure of the DOJ White Paper.
IV. Legal Analysis in Other Withheld Documents[20]
In addition to seeking at least the legal analysis in the OLC–DOD Memorandum, ACLU also seeks disclosure of the legal analysis in documents numbered 9 and 10 on DOD's unclassified Vaughn index and in other OLC legal memoranda the existence of which ACLU contends have been officially acknowledged in public statements. See Br. for ACLU at 50. ACLU contends that Senator Feinstein said at the confirmation hearing of Brennan to be CIA director that there are eleven such memoranda, see id. at 50 n. 25, of which four were provided to the Senate Select Committee on Intelligence, see id. at 24 & n. 9.
Documents numbered 9 and 10 are DOD legal memoranda, which were made available to this Court ex parte for in camerainspection. As to these documents, we agree with the District Court that the declaration of Richard C. Gross, Brigadier General, United States Army, JA 863, adequately supports the application of Exemption 5. See Dist. Ct. Supp. Op., 2013 WL 238928, at *1. As General Gross pointed out, these brief documents (two and four pages respectively) are informal and predecisional. One does not even identify the sender or the receiver. They mention legal authorities, but in no way resemble the detailed, polished legal analysis in the disclosed DOJ White Paper. At most, they are "part of a process by which governmental decisions and policies are formulated, [or] the personal opinions of the writer prior to the agency's adoption of a policy." Public Citizen, Inc. v. Office of Management and Budget, 598 F.3d 865, 875 (D.C.Cir.2010) (alteration in original) (internal quotation marks omitted). See also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C.Cir.2006) (protecting as deliberative "the give-and-take of the consultative process") (internal quotation marks omitted). No waiver of Exemption 5 has occurred with respect to these two documents.
The other OLC legal memoranda have not been submitted to this Court for in camera inspection, and we are therefore unable to adjudicate the waiver issue as to these memoranda, nor determine, if waiver has occurred, what portions of these documents must be redacted. It is possible that waiver of any claimed privileges applies to the legal reasoning in these documents for the same reasons applicable to the OLC–DOD Memorandum. On remand, these memoranda must be produced to the District Court for in camera examination and determination of waiver and appropriate redaction, in light of our rulings with respect to disclosure and redaction of the legal reasoning in the OLC–DOD Memorandum.
V. Glomar and No Number, No List Responses
As set forth above, OLC, DOD, and CIA submitted either Glomar or no [122] number, no list responses to the N.Y. Times and ACLU requests, in addition to Vaughn indices. For clarification, we set forth in the margin a chart showing the revised responses of the three agencies.[21] An agency may withhold information on the number of responsive documents and a description of their contents if those facts are protected from disclosure by a FOIA exemption. See Wilner, 592 F.3d at 67–69; Hayden v. National Security Agency,608 F.2d 1381, 1384 (D.C.Cir.1979). However, we agree with the D.C. Circuit that "[s]uch a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit." ACLU, 710 F.3d at 433.
The Government's core argument to justify the Glomar and no number, no list responses, as it was with the effort to withhold the OLC–DOD Memorandum, is that identification of any document that provides legal advice to one or more agencies on the legality of targeted killings "would tend to disclose the identity of the agency or agencies that use targeted lethal force against certain terrorists who are U.S. citizens...." Br. for Appellees at 37. If one of those agencies is CIA, the Government's argument continues, disclosure of any information in a Vaughn index that "would tend to disclose the identity" of that agency must be protected because, the Government claims, "[T]he government has never disclosed (with the exception of the Bin Laden operation) whether the CIA has an operational role in the use of targeted lethal force or is authorized to use such force." Id. at 38.
As was true of waiver of privileges that might originally have protected the legal reasoning in the OLC–DOD Memorandum, the statements of Panetta when he was Director of CIA and later Secretary of Defense, set forth above, have already publicly identified CIA as an agency that had an operational role in targeted drone killings.[22] With CIA identified, the Appellees' main argument for the use ofGlomar and no number, no list responses evaporates. The Vaughn index submitted by OLC in camera must be disclosed, and DOD and CIA must submit classified Vaughn indices to the District Court on remand for in camera inspection and determination of appropriate disclosure and appropriate redaction.
As was also true of the OLC–DOD Memorandum, however, the requirement of disclosing the agencies' Vaughn indices does not necessarily mean that either the number or the listing of all documents on those indices must be disclosed. The Appellees argue persuasively that with respect to documents concerning a contemplated military operation, disclosure of the number of such documents must remain secret because a large number might alert [123] the enemy to the need to increase efforts to defend against attacks or to avoid detection and a small number might encourage a lessening of such efforts. Accordingly, all listings after number 271 on OLC'sVaughn index will remain secret. See Wilner, 592 F.3d at 70 (upholding Glomar response as to identification of documents that would reveal "details of [a] program's operations and scope"). The titles and descriptions of listings 67, 72, 119, 250, 262–65, 271, and all listings after 271; the titles of listings 8, 57–66, 68–71, 73, 76–80, 83, 88–91, 92, 93, 95–100, 102–104, 108, 117, 120, 123–28, 130, and 132; and the descriptions of listing numbers 1–4, 6, 69, 72, 80–82, 87, 92, 103–04, 244–49, and 256 reveal information entitled to be protected. Listing numbers 10–49, 51–56, 84–86, 94, 101, 105–09, 111–12, 114–15, 251, 255, 257–61, and 266–67 describe email chains (or copies of chains). Because the Plaintiffs informed the District Court that they were not seeking these items, see Dist. Ct. Op.,915 F.Supp.2d at 545, these listings need not be disclosed.
No reason appears why the descriptions of the remaining listed documents need to be kept secret. Listing number 5 is the OLC–DOD Memorandum; listing numbers 7 (except for the identity of the sending agency), 9, 50, 250, 262–64, 265 (except for the identity of the sending agency), and 269–71 describe documents and attorney notes concerning legal advice; listing numbers 57–66, 68, 70–71, 73–83, 88–91, 93, 95 (except for the identity of the sending agency), 96–100, 102–04, 110, 113, 116 (except for the identity of the sending agency), 117 (except for the identity of the sending agency), 118, 120–22, and 144–45 are described as including factual information concerning al-Awlaki; listing numbers 123–30 are described as unclassified open source materials; listing numbers 131–43 and 148–237 are described as drafts of the OLC–DOD Memorandum; listing numbers 238–43 are described as drafts of other documents; listing numbers 146–47 are described as drafts of Document 86A, a listing that does not appear on the OLC's Vaughn index; and listing numbers 252–54 and 268 are described as including [redacted][23].
Some, perhaps all, of the information in many of these documents might be protected as classified intelligence information or predecisional. If the Plaintiffs challenge the applicability of a cited exemption, the District Court, after in camera inspection, will be able to determine which of these documents need to be withheld and which portions of these documents need to be redacted as subject to one or more exemptions that have not been waived. At this stage, we decide only that the number, title, and description of all documents listed on OLC's classified Vaughn index must be disclosed, with the exceptions set forth above on page 122–23.
Unlike OLC, DOD and CIA did not provide this Court with classified Vaughn indices, and we are unable to distinguish among listed document numbers, which titles or descriptions merit secrecy. We will therefore direct that, upon remand, DOD and CIA will provide the District Court with classified Vaughn indices listing documents responsive to the Plaintiffs' requests. From these indices, the District Court, with the guidance provided by this opinion, should have little difficulty, after examining whatever further affidavits DOD and CIA care to submit to claim protection of specific listings, to determine which listings on these indices may be disclosed. See ACLU, 710 F.3d at 432 (prescribing a similar procedure after rejecting a Glomar response).
VI. Adequacy of OIP's Search
Finally, ACLU argues that OIP did not make an adequate search because it did not disclose thirty e-mail chains with other DOJ offices that were found during OLC's search for responsive [124] records. See Br. for ACLU at 60. However, as this Court has recognized, a search is not inadequate merely because it does not identify all responsive records. See Grand Central Partnership, Inc. v. Cuomo, 166 F.3d 473, 489 (2d Cir.1999). The adequacy of a search is not measured by its results, but rather by its method. See Weisberg v. U.S. Dep't of Justice, 745 F.2d 1476, 1485 (D.C.Cir.1984). To show that a search is adequate, the agency affidavit "must be relatively detailed and nonconclusory, and submitted in good faith." Grand Central Partnership, 166 F.3d at 489 (internal quotation marks omitted). The affidavit submitted by an OIP official, JA 412–419 ¶¶ 7–34, easily meets these requirements, and the November 3, 2011, cutoff date was reasonable as the date on which the search was commenced. See Edmonds Institute v. U.S. Dep't of Interior,383 F.Supp.2d 105, 110–11 (D.D.C.2005).
Conclusion
For the reasons stated above, we conclude that:
(1) a redacted version of the OLC–DOD Memorandum (attached as Appendix A to this opinion) must be disclosed;
(2) a redacted version of the classified Vaughn index submitted by OLC must be disclosed, including only
(a) the titles and descriptions of listings 5, 7 (except for the identity of the sending agency in the description), 9, 50, 74, 75, 110, 113, 121, 122, 129, 131, 133–243, 269, and 270, and
(b) the descriptions of listings 57, 58–61, 62, 63, 64, 65, 66, 68, 69, 70, 71, 73, 76, 77, 78, 79, 80, 81, 82, 83, 87, 88, 89–91, 92, 93, 95 (except for the identity of the sending agency in the description), 96, 97, 98, 99, 100, 102, 103, 104, 116 (except for the identity of the sending agency in the description), 117 (except for the identity of the sending agency in the description), 118, 120, 123–28, 130, and 132;
(3) other legal memoranda prepared by OLC and at issue here must be submitted to the District Court for in camera inspection and determination of waiver of privileges and appropriate redaction;
(4) the Glomar and "no number, no list" responses are insufficiently justified;
(5) DOD and CIA must submit Vaughn indices to the District Court for in camera inspection and determination of appropriate disclosure and appropriate redaction; and
(6) the OIP search was sufficient.
We therefore affirm in part, reverse in part, and remand.[24]
Appendix A
OLC–DOD Memorandum after appropriate redactions and deletion of classification codes (redactions in the OLC–DOD Memorandum are indicated by white spaces)
U.S. Department of Justice
Office of the General Counsel
Office of the Assistant Attorney General
Washington, D.C. 20530
July 16, 2010
MEMORANDUM FOR THE ATTORNEY GENERAL
Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi
II.
We begin our legal analysis with a consideration of section 1119 of title 18, entitled [125] "Foreign murder of United States nationals." Subsection 1119(b) provides that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." 18 U.S.C. § 1119(b).[6] In light of the nature of the contemplated operations described above, and the fact that their target would be a "national of the United States" who is outside the United States, we must examine whether section 1119(b) would prohibit those operations. We first explain, in this part, the scope of section 1119 and why it must be construed to incorporate the public authority justification, which can render lethal action carried out by a governmental official lawful in some circumstances. We next explain in part III–A why that public authority justification would apply to the contemplated DoD operation. Finally, we explain in part III–I3 why that justification would apply to the contemplated CIA operation. As to each agency, we focus on the particular circumstances in which it would carry out the operation.
A.
Although section 1119(b) refers only to the "punish[ments]" provided under sections 1111, 1112, and 1113, courts have construedsection 1119(b) to incorporate the substantive elements of those cross-referenced provisions of title 18. See, e.g., United States v. Wharton, 320 F.3d 526, 533 (5th Cir.2003); United States v. White, 51 F.Supp.2d 1008, 1013–14 (E.D.Ca.1997). Section 1111 of title 18 sets forth criminal penalties for "murder," and provides that murder is the unlawful killing of a human being with malice aforethought.Id. § 1111(a). Section 1112 similarly provides criminal sanctions for "manslaughter," and states that "[m]anslaughter is the unlawful killing of a human being without malice." Id. § 1112. Section 1113 provides criminal penalties for "attempts to commit murder or manslaughter." Id. § 1113. It is therefore clear that section 1119(b) bars only "unlawful killings."[7]
This limitation on section 1119(b)'s scope is significant, as the legislative history to the underlying offenses that the section incorporates makes clear. The provisions section 1119(b) incorporates derive from sections 273 and 274 of the Act of March 4, 1909, ch. 321, 35 Stat. 1088, 1143. The 1909 Act codified and amended the penal laws of the United States. Section 273 of the enactment defined murder as "the unlawful killing of a human being with malice [126] aforethought," and section 274 defined manslaughter as "the unlawful killing of a human being without malice." 35 Stat. 1143.[8] In 1948, Congress codified the federal murder and manslaughter provisions at sections 1111 and 1112 of title 18 and retained the definitions of murder and manslaughter in nearly identical form, seeAct of June 25, 1948, ch. 645, 62 Stat. 683, 756, including the references to "unlawful killing" that remain in the statutes today—references that track similar formulations in some state murder statutes.[9]
As this legislative history indicates, guidance as to the meaning of what constitutes an "unlawful killing"-in sections 1111 and 1112—and thus for purposes of section 1119(b)—can be found in the historical understandings of murder and manslaughter. That history shows that states have long recognized justifications and excuses to statutes criminalizing "unlawful" killings.[10] [127] One state court, for example, in construing that state's murder statute explained that "the word 'unlawful' is a term of art" that "connotes a homicide with the absence of factors of excuse or justification," People v. Frye, 7 Cal.App.4th 1148, 10 Cal.Rptr.2d 217, 221 (1992). That court further explained that the factors of excuse or justification in question include those that have traditionally been recognized, id. at 221 n. 2. Other authorities support the same conclusion. See, e.g., Mullaney v. Wilbur, 421 U.S. 684, 685, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)(requirement of "unlawful" killing in Maine murder statute meant that killing was "neither justifiable nor excusable"); cf. also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 56 (3d ed. 1982) ("Innocent homicide is of two kinds, (1) justifiable and (2) excusable.").[11]Accordingly, section 1119 does not proscribe killings covered by a justification traditionally recognized, such as under the common law or state and federal murder statutes. See White, 51 F.Supp.2d at 1013 ("Congress did not intend [section 1119] to criminalize justifiable or excusable killings.").
B.
Here, we focus on the potential application of one such recognized justification—the justification of "public authority"—to the contemplated DoD and CIA operations. Before examining whether, on these facts, the public authority justification would apply to those operations, we first explain why section 1119(b) incorporates that particular justification.
The public authority justification, generally understood, is well-accepted, and it is clear it may be available even in cases where the particular criminal statute at issue does not expressly refer to a public authority justification.[12] Prosecutions where such a "public authority" justification is invoked are understandably rare, [128] see American Law Institute, Model Penal Code and Commentaries § 3.03 Comment 1, at 24 (1985); cf. VISA Fraud Investigation, 8 Op. O.L.C. 284, 285 n. 2, 286 (1984), and thus there is little case law in which courts have analyzed the scope of the justification with respect to the conduct of government officials.[13] Nonetheless, discussions in the leading treatises and in the Model Penal Code demonstrate its legitimacy. See 2 Wayne R. LaFave, Substantive Criminal Law § 10.2(b), at 135 (2d ed.2003); Perkins & Boyce, Criminal Law at 1093 ("Deeds which otherwise would be criminal, such as taking or destroying property, taking hold of a person by force and against his will, placing him in confinement, or even taking his life, are not crimes if done with proper public authority."); see also Model Penal Code § 3.03(I)(a), (d), (e), at 22–23 (proposing codification of justification where conduct is "required or authorized by," inter alia, "the law defining the duties or functions of a public officer ..."; "the law governing the armed services or the lawful conduct of war"; or "any other provision of law imposing a public duty"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(1) ("Conduct engaged in by a public servant in the course of his official duties is justified when it is required or authorized by law."). And this Office has invoked analogous rationales in several instances in which it has analyzed whether Congress intended a particular criminal statute to prohibit specific conduct that otherwise falls within a government agency's authorities.[14]
The public authority justification does not excuse all conduct of public officials from all criminal prohibitions. The legislature may design some criminal prohibitions to place bounds on the kinds of governmental conduct that can be authorized by the Executive. Or, the legislature may enact a criminal prohibition in order to delimit the scope of the conduct that the legislature has otherwise authorized the Executive to undertake pursuant to another statute.[15] But the recognition that a [129] federal criminal statute may incorporate the public authority justification reflects the fact that it would not make sense to attribute to Congress the intent with respect to each of its criminal statutes to prohibit all covered activities undertaken by public officials in the legitimate exercise of their otherwise lawful authorities, even if Congress has clearly intended to make those same actions a crime when committed by persons who are not acting pursuant to such public authority. In some instances, therefore, the better view of a criminal prohibition may well be that Congress meant to distinguish those persons who are acting pursuant to public authority, at least in some circumstances, from those who are not, even if the statute by terms does not make that distinction express. Cf, Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (federal criminal statutes should be construed to exclude authorized conduct of public officers where such a reading "would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm").[16]
Here, we consider a federal murder statute, but there is no general bar to applying the public authority justification to such a criminal prohibition. For example, with respect to prohibitions on the unlawful use of deadly force, the Model Penal Code recommended that legislatures should make the public authority (or "public duty") justification available, though only where the use of such force is covered by a more particular justification (such as defense of others or the use of deadly force by law enforcement), where the use of such force "is otherwise expressly authorized by law," or where such force "occurs in the lawful conduct of war." Model Penal Code § 3.03(2)(b), at 22; see also id. Comment 3, at 26. Some states proceeded to adopt the Model Penal Code recommendation.[17] Other states, although not adopting that precise formulation, have enacted specific statutes dealing with the question of when public officials are justified in using-deadly force, which often prescribe that an officer acting in the performance of his official duties must reasonably have believed that such force was "necessary."[18] Other states have more broadly provided that the public authority defense is available where the government officer engages in a "reasonable exercise" of his official functions.[19] There is, however, no federal [130] statute that is analogous, and neither section 1119 nor any of the incorporated title 18 provisions setting forth the substantive elements of the section 1119(b) offense, provide any express guidance as to the existence or scope of this justification.
Against this background, we believe the touchstone for the analysis of whether section 1119 incorporates not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this criminal statute. We conclude that the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. There are no indications that Congress had a contrary intention. Nothing in the text or legislative history of sections 1111–1113 of title 18 suggests that Congress intended to exclude the established public authority justification from those that Congress otherwise must be understood to have imported through the use of the modifier "unlawful" in those statutes (which, as we explain above, establish the substantive scope of section 1119(b)).[20] Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability under that statute of this traditional justification for killings. On the contrary, the relevant legislative materials indicate that in enacting section 1119 Congress was merely closing a gap in a field dealing with entirely different kinds of conduct than that at issue here.
The origin of section 1119 was a bill entitled the "Murder of United States Nationals Act of 1991," which Senator Thurmond introduced during the 102d Congress in response to the murder of an American in South Korea who had been teaching at a private school there.See 137 Cong. Rec. 8675–77 (1991) (statement of Sen, Thurmond), Shortly after the murder, another American teacher at the school accused a former colleague (who was also a U.S. citizen) of having committed the murder, and also confessed to helping the former colleague cover up the crime. The teacher who confessed was convicted in a South Korean court of destroying evidence and aiding the escape of a criminal suspect, but the individual she accused of murder had returned to the United States before the confession. Id. at 8675 The United States did not have an extradition treaty with South Korea that would have facilitated prosecution of the alleged murderer and therefore, under then-existing law, "the Federal Government ho[d] no jurisdiction to prosecute a person residing in the United States who ha[d] murdered an American abroad except in limited circumstances, such as a terrorist murder or the murder of a Federal official." Id.
To close the "loophole under Federal law which permits persons who murder Americans in certain foreign countries to go punished," id,the Thurmond bill would have added a new section to title 18 providing that "[w]hoever kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under[131] sections 1111, 1112, and 1113 of this title." S. 861, 102d Cong. (1991) (incorporated in S. 1241, 102d Cong. §§ 3201–03 (1991)). The proposal also contained a separate provision amending the procedures for extradition "to provide the executive branch with the necessary authority, in the absence of an extradition treaty, to surrender to foreign governments those who commit violent crimes against U.S. nationals." 137 Cong. Rec. 8676 (1991) (statement of Sen. Thurmond) (discussing S. 861, 102d Cong., § 3).[21] The Thurmond proposal was incorporated into an omnibus crime bill that both the House and Senate passed, but that bill did not become law.
In the 103d Congress, a revised version of the Thurmond bill was included as part of the Violent Crime Control and Law Enforcement Act of 1994. H.R. 3355 § 60009, 103d Cong. (1994). The new legislation differed from the previous bill in two key respects. First, it prescribed criminal jurisdiction only where both the perpetrator and the victim were U.S. nationals, whereas the original Thurmond bill would have extended jurisdiction to all instances in which the victim was a U.S. national (based on so-called "passive personality" jurisdiction[22]). Second, the revised legislation did not include the separate provision from the earlier Thurmond legislation that would have amended the procedures for extradition. Congress enacted the revised legislation in 1994 as part of Public Law No. 103–322, and it was codified as section 1119 of title 18. See Pub.L. No. 103–322, § 60009, 108 Stat. 1796, 1972 (1994).
Thus, section 1119 was designed to close a jurisdictional loophole—exposed by a murder that had been committed abroad by a private individual—to ensure the possibility of prosecuting U.S. nationals who murdered other U.S. nationals in certain foreign countries that lacked the ability to lawfully secure the perpetrator's appearance at trial. This loophole had nothing to do with the conduct of an authorized military operation by U.S. armed forces or the sort of CIA counterterrorism operation contemplated here. Indeed, prior to the enactment of section 1119, the only federal statute expressly making it a crime to kill U.S. nationals abroad, at least outside the special and maritime jurisdiction of the United States, reflected what appears to have been a particular concern with protection of Americans from terrorist attacks' See 18 U.S.C. § 2332(a), (d) (criminalizing unlawful killings of U.S. nationals abroad where the Attorney General or his subordinate certifies that the "offense was intended to coerce, intimidate, or retaliate against a government or a civilian population").[23] It therefore would be anomalous [132] to now read section 1119's closing of a limited jurisdictional gap as having been intended to jettison important applications of the established public authority justification, particularly in light of the statute's incorporation of substantive offenses codified in statutory provisions that from all indications were intended to incorporate recognized justifications and excuses.
It is true that here the target of the contemplated operations would be a U.S. citizen. But we do not believe al-Aulaqi's citizenship provides a basis for concluding that section 1119 would fail to incorporate the established public authority justification for a killing in this case. As we have explained, section 1119 incorporates the federal murder and manslaughter statutes, and thus its prohibition extends only to "unlawful" killings, 18 U.S.C. §§ 1111, 1112, a category that was intended to include, from all of the evidence of legislative intent we can find, only those killings that may not be permissible in light of traditional justifications for such action. At the time the predecessor versions of sections 1111 and 1112 were enacted, it was understood that killings undertaken in accord with the public authority justification were not "unlawful" because they were justified. There is no indication that, because section 1119(b) proscribes the unlawful killing abroad of U.S. nationals by U.S. nationals, it silently incorporated all justifications for killings except that public authority justification.
III.
Given that section 1119 incorporates the public authority justification, we must next analyze whether the contemplated Doll and CIA operations would be encompassed by that justification. In particular, we must analyze whether that justification would apply even though the target of the contemplated operations is a United States citizen. We conclude that it would—a conclusion that depends in part on our determination that each operation would accord with any potential constitutional protections of the United States citizen in these circumstances (see infra part VI). In reaching this conclusion, we do not address other cases or circumstances, involving different facts. Instead, we emphasize the sufficiency of the facts that have been represented to us here, without determining whether such facts would be necessary to the conclusion we reach.[24]
A.
We begin with the contemplated DoD operation. We need not attempt here to identify the minimum conditions that might establish a public authority justification for that operation. In light of the combination of circumstances that we understand would be present, and which we describe below, we conclude that the justification would be available because the operation would constitute the "lawful conduct of war"—a well-established variant of the public authority justification.[25]
[133] As one authority has explained by example, "if a soldier intentionally kills an enemy combatant in time of war and within the rules of warfare, he is not guilty of murder," whereas, for example, if that soldier intentionally kills a prisoner of war—a violation of the laws of war—"then he commits murder." 2 LaFave, Substantive Criminal Law § 10.2(c), at 136; see also State v. Gut, 13 Minn. 341, 357 (1868)("That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable; but to kill such an enemy after he laid down his arms, and especially when he is confined in prison, is murder."); Perkins & Boyce, Criminal Law at 1093 ("Even in time of war an alien enemy may not be killed needlessly after he has been disarmed and securely imprisoned").[26] Moreover, without invoking the public authority justification by terms, our Office has relied on the same notion in an opinion addressing the intended scope of a federal criminal statute that concerned the use of possibly lethal force. See United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148, 164 (1994) ("Shoot Down Opinion ") (concluding that the Aircraft Sabotage Act of 1984,18 U.S.C. § 32(b)(2), which prohibits the willful destruction of a civil aircraft and otherwise applies to U.S. government conduct, should not be construed to have "the surprising and almost certainly unintended effect of criminalizing actions by military personnel that are lawful under international law and the laws of armed conflict").
In applying this variant of the public authority justification to the contemplated DoD operation, we note as an initial matter that DoD would undertake the operation pursuant to Executive war pOWers that Congress has expressly authorized. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate." [134] ). By authorizing the use of force against "organizations" that planned, authorized, and committed the September 11th attacks, Congress clearly authorized the President's use of "necessary and appropriate" force against al-Qaida forces, because al-Qaida carried out the September 11th attacks. See Authorization for Use of Military Force ("AUMF"), Pub.L. No. 107–40, 115 Stat. 224, § 2(a) (2001) (providing that the President may "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons,").[27] And, as we have explained, supra at 9, a decision-maker could reasonably conclude that this leader of AQAP forces is part of al-Qaida forces. Alternatively, and as we have further explained, supra at 10 n. 5, the AUMF applies with respect to forces "associated with" al-Qaida that are engaged in hostilities against the U.S. or its coalition partners, and a decision-maker could reasonably conclude that the AQAP forces of which al-Aulaqi is a leader are "associated with" al Qaida forces for purposes of the AUMF. On either view, DoD would carry out its contemplated operation against a leader of an organization that is within the scope of the AUMF, and therefore DoD would in that respect be operating in accord with a grant of statutory authority.
Based upon the facts represented to us, moreover, the target of the contemplated operation has engaged in conduct as part of that organization that brings him within the scope of the AUMF. High-level government officials have concluded, on the basis of al-Aulaqi's activities in Yemen, that al-Aulaqi is a leader of AQAP whose activities in Yemen pose a "continued and imminent threat" of violence to United States persons and interests. Indeed, the facts represented to us indicate that al-Aulaqi has been involved, through his operational and leadership roles within AQAP, in an abortive attack within the United States and continues to plot attacks intended to kill Americans from his base of operations in Yemen. The contemplated DoD operation, therefore, would be carried out against someone who is within the core of individuals against whom Congress has authorized the use of necessary and appropriate force.[28]
[135] Al–Aulaqi is a United States citizen, however, and so we must also consider whether his citizenship precludes the AUMF from serving as the source of lawful authority for the contemplated DoD operation. There is no precedent directly addressing the question in circumstances such as those present here; but the Supreme Court has recognized that, because military detention of enemy forces is "by 'universal agreement and practice,' [an] 'important incident [ ] of war,' " Hamdi v. Rumsfeld, 542 U.S. 507, 518, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30, 63 S.Ct. 2, 87 L.Ed. 3 (1942)), the AUMF authorized the President to detain a member of Taliban forces who was captured abroad in an armed conflict against the United States on a traditional battlefield. See id. at 517–19, 124 S.Ct. 2633 (plurality opinion).[29] In [136] addition, the Court held in Hamdi that this authorization applied even though the Taliban member in question was a U.S. citizen. Id. at 519–24, 124 S.Ct. 2633; see also Quirin,317 U.S. at 37–38, 63 S.Ct. 2 ("[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter [the United States] bent on hostile acts," may be treated as "enemy belligerents" under the law of war). Furthermore, lower federal courts have relied upon Hamdi to conclude that the AUMF authorizes DoD to detain individuals who are part of al-Qaida even if they are apprehended and transferred to U.S. custody while not on a traditional battlefield. See, e.g., Bensayah v. Obama, 610 F.3d 718, 720–21, 724–25, 727 (D.C.Cir. June 28, 2010) (concluding that the Department of Defense could detain an individual turned over to the U.S. in Bosnia if it demonstrates he was part of al-Qaida); Al–Adahi v. Obama, 613 F.3d 1102 (D.C.Cir.2010) (DoD has authority under AUMF to detain individual apprehended by Pakistani authorities in Pakistan and then transferred to U.S.); Anam v. Obama, 696 F.Supp.2d 1 (D.D.C.2010) (same); Razak Ali v. Obama, 2009 WL 4030864 (D.D.C.2009)(same); Sliti v. Bush, 592 F.Supp.2d 46 (D.D.C.2008) (same).
In light of these precedents, we believe the AUMF's authority to use lethal force abroad also may apply in appropriate circumstances to a United States citizen who is part of the forces of an enemy organization within the scope of the force authorization. The use of lethal force against such enemy forces, like military detention, is an " 'important incident of war,' " Hamdi, 542 U.S. at 518, 124 S.Ct. 2633(plurality opinion) (quotation omitted). See, e.g., General Orders No. 100: Instructions for the Government of Armies of the Untied States in the Field 15 (Apr. 24, 1863) (the "Lieber Code") ("[m]ilitary necessity admits of all direct destruction of life or limb of armed enemies"); International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 Aug, 1999 and Relating to the Protection of Victims of Non–International Armed Conflicts (Additional Protocol II ) § 4789 (1987); Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 94 (2004) ( "Conduct of Hostilities ") ("When a person takes up arms or merely dons a uniform as a member of the armed forces, he automatically exposes himself to enemy attack."). And thus, just as the AUMF authorizes the military detention of a U.S. citizen captured abroad who is part of an armed force within the scope of the AUMF, it also authorizes the use of "necessary and appropriate" lethal force against a U.S. citizen who has joined such an armed force. Moreover, as we explain further in Part VI, DoD would conduct the operation in a manner that would not violate any possible constitutional protections that al-Aulaqi enjoys by reason of his citizenship. Accordingly, we do not believe al-Aulaqi's citizenship provides a basis for concluding that he is immune from a use of force abroad that the AUMF otherwise authorizes.
In determining whether the contemplated DoD operation would constitute the "lawful conduct of war," LaFave, Substantive Criminal Law§ 10.2(c), at 136, we next consider whether that operation would comply with the international law rules to which it would be subject—a question that also bears on whether the operation would be authorized by the AUMF. See Response for Petition for Rehearing and Rehearing En Banc, Al Bihani v. Obama, No. 09–5051 at 7 (D.C.Cir. May [137] 13, 2010) (AUMF "should be construed, if possible, as consistent with international law") (citing Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed. 208 (1804) ("an act of Congress ought never to be construed to violate the law of nations, if any other possible construction remains")); see also F. Hoffman–La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164, 124 S.Ct. 2359, 159 L.Ed.2d 226 (2004) (customary international law is "law that (we must assume) Congress ordinarily seeks to follow"). Based on the combination of facts presented to us, we conclude that DoD would carry out-its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict.
In Hamdan v. Rumsfeld, the Supreme Court held that the United States is engaged in a non-international armed conflict with al-Qaida.548 U.S. 557, 628–31, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). In so holding, the Court rejected the argument that non-international armed conflicts are limited to civil wars and other internal conflicts between a state and an internal non-state armed group that are confined to the territory of the state itself; it held instead that a conflict between a transnational non-state actor and a nation, occurring outside that nation's territory, is an armed conflict "not of an international character" (quoting Common Article 3 of the Geneva Conventions) because it is not a "clash between nations." Id. at 630, 126 S.Ct. 2749.
Here, unlike in Hamdan, the contemplated DoD operation would occur in Yemen, a location that is far from the most active theater of combat between the United States and al-Qaida. That does not affect our conclusion, however, that the combination of facts present here would make the DoD operation in Yemen part of the non-international armed conflict with al-Qaida.[30] To be sure, Hamdan did not directly address the geographic scope of the noninternational armed conflict between the United States and al-Qaida that the Court recognized, other than to implicitly hold that it extended to Afghanistan, where Hamdan was apprehended. See 548 U.S. at 566, 126 S.Ct. 2749; see also id at 641–42, 126 S.Ct. 2749 (Kennedy, J., concurring in part) (referring to Common Article 3 as "applicable to our Nation's armed conflict with al Qaeda in Afghanistan"). The Court did, however, specifically reject the argument that non-international armed conflicts are necessarily limited to internal conflicts. The Common Article 3 term "conflict not of an international character," the Court explained, bears its "literal meaning"—namely, that it is a conflict that "does not involve a clash between nations." Id. at 630, 126 S.Ct. 2749 (majority opinion). The Court referenced the statement in the 1949 ICRC Commentary on the Additional Protocols to the Geneva Conventions that a non-international armed conflict " 'is distinct from an international armed conflict because of the legal status of the entities opposing each other,' " id. at 631, 126 S.Ct. 2749 (emphasis added). The Court explained that this interpretation—that the nature of the conflict depends at least in part on the status of the parties, rather than simply on the locations in which they fight—in turn accords with the [138] view expressed in the commentaries to the Geneva Conventions that "the scope of application" of Common Article 3, which establishes basic protections that govern conflicts not of an international character, "must be as wide as possible." Id.[31]
Invoking the principle that for purposes of international law an armed conflict generally exists only when there is "protracted armed violence between governmental authorities and armed groups," Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,Prosecutor v. Tadic, Case No. IT–94–1AR72, ¶ 70 (ICTY App. Chamber Oct. 2, 1995) ("Tadic Jurisdictional Decision "), some commentators have suggested that the conflict between the United States and al-Qaida cannot extend to nations outside Afghanistan in which the level of hostilities is less intense or prolonged than in Afghanistan itself. See, e.g., Mary Ellen O'Connell, Combatants and the Combat Zone, 43 U. Rich. L.Rev. 845, 857–59 (2009); see also Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions ¶ 54, at 18 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) (acknowledging that a non-international armed conflict can be transnational and "often does" exist "across State borders," but explaining that the duration and intensity of attacks in a particular nation is also among the "cumulative factors that must be considered for the objective existence of an armed conflict"). There is little judicial or other authoritative, precedent that speaks directly to the question of the geographic scope of a non-international armed conflict in which one of the parties is a transnational, non-state actor and where the principal theater of operations is not within the territory of the nation that is a party to the conflict. Thus, in considering this issue, we must look to principles and statements from analogous contexts, recognizing that they were articulated without consideration of the particular factual circumstances of the sort of conflict at issue here.
In looking for such guidance, we have not come across any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location can never be part of the original armed conflict—and thus subject to the laws of war governing that conflict—unless and until the hostilities become sufficiently intensive and protracted within that new location. That does not appear to be the rule, or the historical practice, for instance,[139] in a traditional international conflict. See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia. Questions of International Law (address before the Harnrnarskjold Forum of the Association of the Bar of the City of New York, May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28–30 (Richard A. Falk, ed.1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state). Nor do we see any obvious reason why that more categorical, nation-specific rule should govern in analogous circumstances in this sort of non-international armed conflict.[32] Rather, we think the determination of whether a particular operation would be part of an ongoing armed conflict for purposes of international law requires consideration of the particular facts and circumstances present in each case. Such an inquiry may be particularly appropriate in a conflict of the sort here, given that the parties to it include transnational non-state organizations that are dispersed and that thus may have no single site serving as their base of operations.[33]
We also find some support for this view in an argument the United States made to the International Criminal Tribunal for Yugoslavia (ICTY) in 1995. To be sure, the United States was there confronting a question, and a conflict, quite distinct from those we address here. Nonetheless, in that case the United States argued that in determining which body of humanitarian law applies in a particular conflict, "the conflict must be considered as a whole," and that "it is artificial and improper to attempt to divide it into isolated segments, either geographically or chronologically, in an attempt to exclude the application of [the relevant] rules." Submission of the Government of the United States of America Concerning Certain Arguments Made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. Dusan Tadic, Case No. IT–94–1AR72 (ICTY App. Chamber) at 27–28 (July 1995) ("U.S. Tadic Submission"). Likewise, the court in Tadic—although not addressing a conflict that was transnational in the way the U.S. conflict with al-Qaida is—also concluded that although "the definition of 'armed conflict' varies depending on whether the hostilities are international or internal ... the scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities." Tadic Jurisdictional Decision ¶ 67 (emphasis added); see also International Committee of the Red Cross, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 18 (2003) (asserting that in order to assess whether an armed conflict exists it is necessary to determine "whether the totality of the violence taking place between states and transnational networks can be deemed to be armed conflict [140] in the legal sense"). Although the basic approach that the United States proposed in Tadic, and that the ICTY may be understood to have endorsed, was advanced without the current conflict between the U.S. and al-Qaida in view, that approach reflected a concern with ensuring that the laws of war, and the limitations on the use of force they establish, should be given an appropriate application.[34]And that same consideration, reflected in Hamdan itself; see supra at 24, suggests a further reason for skepticism about an approach that would categorically deny that an operation is part of an armed conflict absent a specified level and intensity of hostilities in the particular location where it occurs.
For present purposes, in applying the more context-specific approach to determining whether an operation would take place within the scope of a particular armed conflict, it is sufficient that the facts as they have been represented to us here, in combination, support the judgment that DoD's operation in Yemen would be conducted as part of the non-international armed conflict between the United States and al-Qaida. Specifically, DoD proposes to target a leader of AQAP, an organized enemy force[35] that is either a component of al-Qaida or that is a co-belligerent of that central party to the conflict and engaged in hostilities against the United States as part of the same comprehensive armed conflict, in league with the principal enemy. See supra at 9–10 & n. 5. Moreover, DoD would conduct the operation in Yemen, where, according to-the facts related to us, AQAP has a significant and organized presence, and from which AQAP is conducting terrorist training in an organized manner and has executed and is planning to execute attacks against the United States.Finally, the targeted individual himself, on behalf of that force, is continuously planning attacks from that Yemeni base of operations against the United States, as the conflict with al-Qaida continues. See supra at 7–9. Taken together, these facts support the conclusion that the DoD operation would be part of the non-international armed conflict the Court recognized in Hamdan.[36]
[141] There remains the question whether DoD would conduct its operation in accord with the rules governing targeting in a non-international armed conflict—namely, international humanitarian law, commonly known as the laws of war. See Dinstein, Conduct of Hostilities at 17 (international humanitarian law "takes a middle road, allowing belligerent States much leeway (in keeping with the demands of military necessity) and yet circumscribing their freedom of action (in the name of humanitarianism")).[37] The 1949 Geneva Conventions [142] to which the United States is a party do not themselves directly impose extensive restrictions on the conduct of a non-international armed conflict—with the principal exception of Common Article 3, see Hamdan, 548 U.S. at 630–31, 126 S.Ct. 2749. But the norms specifically described in those treaties "are not exclusive, and the laws and customs of war also impose limitations on the conduct of participants in non-international armed conflict." U.S. Tadic Submission at 33 n. 53; see also, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, Preamble ("Hague Convention (IV)"), 36 Stat. 2277, 2280 (in cases "not included" under the treaty, "the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience").
In particular, the "fundamental rules" and "intransgressible principles of international customary law," Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons IT 79, 1996 I.C.J. 226, 257 ("Nuclear Weapons Advisory Opinion"), which apply to all armed conflicts, include the "four fundamental principles that are inherent to all targeting decisions"—namely, military necessity, humanity (the avoidance of unnecessary suffering), proportionality, and distinction. United States Air Force, Targeting, Air Force Doctrine Document 2–1.9, at 88 (June 8, 2006); see also generally id. at 88–92; Dinstein, Conduct of Hostilities at 16–20, 115–16, 119–23. Such fundamental rules also include those listed in the annex to the Fourth Hague Convention, see Nuclear Weapons Advisory Opinion ¶ 80, at 258, article 23 of which makes it "especially forbidden" to, inter alia, kill or wound treacherously, refuse. surrender, declare a denial of quarter, or cause unnecessary suffering, 36 Stat. at 2301–02.
DoD represents that it would conduct its operation against al-Aulaqi in compliance with these fundamental law-of-war norms. SeeChairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 14.a, at 1 (Apr. 30, 2010) ("It is DOD policy that ... [m]embers of the DOD Components comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."). In particular, the targeted nature of the operation would help to ensure that it would comply with the principle of distinction, and DoD has represented to us that it would make every effort to minimize civilian casualties and that the officer who launches the ordnance would be required to abort a strike if he or she concludes that civilian casualties will be disproportionate or that such a strike will in any other respect violate the laws of war. See DoD May 18 Memorandum for OLC, at 1 ("Any official in the chain of command has the authority and duty to abort" a strike "if he or she concludes that civilian casualties will be disproportionate or that such a strike will otherwise violate the laws of war.").
Moreover, although DoD would specifically target al-Aularli, and would do so without advance warning, such characteristics of the contemplated operation would not violate the laws of war and, in particular, would not cause the operation to violate the prohibitions on treachery and perfidy—which are addressed to conduct involving a breach of confidence by the assailant. See, e.g., Hague Convention IV, Annex, art. 23(b), 36 Stat. at 2301–02 ("[I]t is especially forbidden ... to kill or wound treacherously individuals belonging to the hostile nation or army"); cf. also Protocol Additional to the Geneva [143] Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 37(1) (prohibiting the killing, injuring or capture of an adversary in an international armed conflict by resort to acts "inviting the confidence of [the] adversary ... with intent to betray that confidence," including feigning a desire to negotiate under truce or flag of surrender; feigning incapacitation; and feigning noncombatant status).[38] Those prohibitions do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers, see U.S. Army Field Manual 27—10, 31 (1956) (article 23(b) of the Annex to the Hague Convention IV does not "preclude attacks on individual soldiers or officers of the enemy whether in the zone of hostilities, occupied territory, or else-where"), and we are not aware of any other law-of-war grounds precluding the use of such tactics. See Dinstein, Conduct of Hostilities at 94–95, 199; Abraham D. Sofaer, Terrorism, The Law, and the National Defense, 126 Mil. L.Rev. 89, 120–21 (1989).[39] Relatedly, "there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—as long as they are employed in conformity with applicable laws of war." Koh, The Obama Administration and International Law. DOD also informs us that if al-Aulaqi offers to surrender, DoD would accept such an offer.[40]
In light of all these circumstances, we believe DoD's contemplated operation against al-Aulaqi would comply with international law, including the laws of war applicable to this armed conflict, and would fall within Congress's authorization to use "necessary and appropriate force" against al-Qaida. In consequence, the operation should be understood to constitute the lawful conduct of war and thus to be encompassed by the public authority justification. Accordingly, the contemplated attack, if conducted by DoD in the mariner described, would not result in an "unlawful" killing and thus would not violate section 1119(b).
[144] B.
We next consider whether the CIA's contemplated operation against al-Aulaqi in Yemen would be covered by the public authority justification. We conclude that it would be; and thus that operation, too, would not result in an "unlawful" killing prohibited by section 1119. As with our analysis of the contemplated DoD operation, we rely on the sufficiency of the particular factual circumstances of the CIA operation as they have been represented to us, without determining that the presence of those specific circumstances would be necessary to the conclusion we reach.
We explain in Part VI why the Constitution would impose no bar to the CIA's contemplated operation under these circumstances, based on the facts as they have been represented to us. There thus remains the question whether that operation would violate any statutory restrictions, which in turn requires us to consider whether 18 U.S.C. § 1119 would apply to the contemplated CIA operation.[42] Based on the combination of circumstances that we understand would be present, we conclude that the public authority justification thatsection 1119 incorporates—and that would prevent the contemplated DoD operation from violating section 1119(b)—would also encompass the contemplated CIA operation.[43]
Specifically, we understand that the CIA, like DoD, would carry out the attack against an operational leader of an enemiforce, as Dart of the United States's ongoing non-international armed conflict with al-Qaida.
[redacted] the CIA—would conduct the operation in a manner that accords with the rules of international humanitarian law governing this armed conflict, and in circumstances See supra at 10–11.[44]
[145] Nothing in the text or legislative history of section 1119 indicates that Congress intended to criminalize such an operation. Section 1119 incorporates the traditional public authority justification, and did not impose any special limitation on the scope of that justification. As we have explained, supra at 17–19, the legislative history of that criminal prohibition revealed Congress's intent to close a jurisdictional loophole that would have hindered prosecutions of murders carried out by private persons abroad. It offers no indication that Congress intended to prohibit the targeting of an enemy leader during an armed conflict in a manner that would accord with the laws of war when performed by a duly authorized government agency. Nor does it indicate that Congress, in closing the identified loophole, meant to place a limitation on the CIA that would not apply to DoD.
Thus, we conclude that just as Congress did not intend section 1119 to bar the particular attack that DoD contemplates, neither did it intend to prohibit a virtually identical attack on the same target, in the same authorized conflict and in similar compliance with the laws of war, that the CIA would carry out in accord with [redacted][45]
[146] See also infra at 38–41 (explaining that the CIA operation under the circumstances described to us would comply with constitutional due process and the Fourth Amendment's "reasonableness" test for the use of deadly force).
Accordingly, we conclude that, just as the combination of circumstances present here supports the judgment that the public authority justification would apply to the contemplated operation by the armed forces, the combination of circumstances also supports the judgment that the CIA's operation, too, would be encompassed by that justification. The CIA's contemplated operation, therefore, would not result in an "unlawful" killing under section 1111 and thus would not violate section 1119.
IV.
For similar reasons, we conclude that the contemplated DoD and CIA operations would not violate another federal criminal statute dealing with "murder" abroad, 18 U.S.C. § 956(a). That law makes it a crime to conspire within the jurisdiction of the United States "to commit at any place outside the United States an act that would constitute the offense of murder, kidnapping, or maiming if committed in the special maritime and territorial jurisdiction of the United States" if any conspirator acts within the United States to effect any object of the conspiracy.[redacted][46]
Like section 1119(b), section 956(a) incorporates by reference the understanding of "murder" in section 1111 of title 18. For reasons we explained earlier in this opinion, see supra at 12–14, section 956(a) thus incorporates the traditional public authority justification thatsection 1111 recognizes. As we have further explained both the CIA and DoD operations, on the facts as they have been represented to us, would be covered by that justification. Nor do we believe that Congress's reference in section 956(a) to "the special maritime and territorial jurisdiction of the United States" reflects an intent to transform such a killing into a "murder" in these circumstances—notwithstanding that our analysis of the applicability of the public authority justification is limited for present purposes to operations conducted abroad. A contrary conclusion would require attributing to Congress the surprising intention of criminalizing through section 956(a) an otherwise lawful killing of an enemy leader that another statute specifically prohibiting the murder of U.S. nationals abroad does not prohibit.
The legislative history of section 956(a) further confirms our conclusion that that statute should not be so construed. When [147] the provision was first introduced in the Senate in 1995, its sponsors addressed and rejected the notion that the conspiracy prohibited by that section would apply to "duly authorized" actions undertaken on behalf of the federal government. Senator Biden introduced the provision at the behest of the President, as part of a larger package of anti-terrorism legislation. See 141 Cong. Rec. 4491 (1995) (statement of Sen. Biden). He explained that the provision was designed to "MO a void in the law," because section 956 at the time prohibited only U.S.-based conspiracies to commit certain property crimes abroad, and did not address crimes against persons. Id. at 4506. The amendment was designed to cover an offense "committed by terrorists" and was "intended to ensure that the government is able to punish those persons who use the United States as a base in which to plot such a crime to be carried out outside the jurisdiction of the United States." Id. Notably, the sponsors of the new legislation deliberately declined to place the new offense either within chapter 19 of title 18, which is devoted to "Conspiracy," or within chapter 51, which collects "Homicide" offenses (including those established in sections 1111, 1112, 1113 and 1119). Instead, as Senator Biden explained, "[s]ection 956 is contained in chapter 45 of title 18, United States Code, relating to interference with the foreign relations of the United States," and thus was intended to "cover [ ] those individuals who, without appropriate governmental authorization, engage in prohibited conduct that is harmful to the foreign relations of the United States." Id. at 4507. Because, as Senator Biden explained, the provision was designed, like other provisions of chapter 45, to prevent private interference with U.S. foreign relations, "[i]t is not intended to apply to duly authorized actions undertaken on behalf of the United States Government." Id.; see also 8 Op. O.L.C. 58 (1984) (concluding that section 5 of the Neutrality Act, 18 U.S.C. § 960, which is also in chapter 45 and which forbids the planning of, or participation in, military or naval expeditions to be carried on from the United States against a foreign state with which the United States is at peace, prohibits only persons acting in their private capacity from engaging in such conduct, and does not proscribe activities undertaken by government officials acting within the course and scope of their duties as United States officers). Senator Daschle expressed this same understanding when he introduced the identical provision in a different version of the anti-terrorism legislation a few months later. See 141 Cong. Rec. 11,960 (1995) (statement of Sen. Daschle). Congress enacted the new section 956(a) the following year, as part of the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104–132, tit. VII, § 704(a), 110 Stat. 1214, 1294–95 (1996). As far as we have been able to determine, the legislative history contains nothing to contradict the construction of.section 956(a) described by Senators Biden and Daschle.
Accordingly, we do not believe section 956(a) would prohibit the contemplated operations.
V.
We next consider the potential application of the War Crimes Act, 18 U.S.C. § 2441, which makes it a federal crime for a member of the Armed Forces or a national of the United States to "commit[ ] a war crime." Id. § 2441(a). Subsection 2441(c) defines a "war crime" for purposes of the statute to mean any conduct (i) that is defined as a grave breach in any of the Geneva Conventions (or any Geneva protocol to which the U.S. is a party); (ii) that is prohibited by four specified articles of the [148] Fourth Hague Convention of 1907; (iii) that is a "grave breach" of Common Article 3 of the Geneva Conventions (as defined elsewhere in section 2441) when committed "in the context of and in association with an armed conflict not of an international character"; or (iv) that is a willful killing or infliction of serious injury in violation of the 1996 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby–Traps and Other Devices. Of these, the only subsection potentially applicable here is that dealing with Common Article 3 of the Geneva Conventions.[47]
In defining what conduct constitutes a "grave breach" of Common Article 3 for purposes of the War Crimes Act, subsection 2441(d) includes "murder," described in pertinent part as "[t]he act of a person who intentionally kills, or conspires or attempts to kill ... one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause." 18 U.S.C. § 2441(d)(1)(D). This language derives from Common Article 3(1) itself, which prohibits certain acts (including murder) against "[p]ersons. taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed 'hors de combat' by sickness, wounds, detention, or any other cause." See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 3(1), 6 U.S.T. 3316, 3318–20. Although Common Article 3 is most commonly applied with respect to persons within a belligerent party's control, such as detainees, the language of the article is not so limited—it protects all "[p]ersons taking no active part in the hostilities" in an armed conflict not of an international character.
Whatever might be the outer bounds of this category of covered persons, we do not think it could encompass al-Aulaqi. Common Article 3 does not alter the fundamental law-of-war principle concerning a belligerent party's right in an armed conflict to target individuals who are part of an enemy's armed forces. See supra at 23. The language of Common Article 3 "makes clear that members of such armed forces [of both the state and non-state parties to the conflict] ... are considered as 'taking no active part in the hostilities' only once they have disengaged from their fighting function ('have laid down their arms') or are placed hors de combat; mere suspension of combat is insufficient." International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28 (2009); cf also id. at 34 ("individuals whose continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities are assuming a continuous combat function," in which case they can be deemed to be members of a non-state armed group subject to continuous targeting); accord Gherebi v. Obama, 609 F.Supp.2d 43, 65 (D.D.C.2009) ("the fact that 'members of armed forces who have laid down their arms and those placed hors de combat' are not 'taking [an] active part in the hostilities' necessarily implies that 'members of armed forces' who have not surrendered or been incapacitated are [149] ' taking [an] active part in the hostilities' simply by virtue of their membership in those armed forces"); id. at 67 ("Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to or fro as they please so long as, for example, shots are not fired, bombs are not exploded, and places are not hijacked"). Al-Aulaqi, an active, high-level leader of an enemy force who is continually involved in planning and recruiting for terrorist attacks, can on that basis fairly be said to be taking "an active part in hostilities." Accordingly, targeting him in the circumstances posited to us would not violate Common Article 3 and therefore would not violate the War Crimes Act.
VI.
We conclude with a discussion of potential constitutional limitations on the contemplated operations due to al-Aulaqi's status as a U.S. citizen, elaborating upon the reasoning in our earlier memorandum discussing that issue. Although we have explained above why we believe that neither the DoD or CIA operation would violate sections 1119(b), 956(a) and 2441 of title 18 of the U.S.Code, the fact that al-Aulaqi is a United States citizen could raise distinct questions under the Constitution. As we explained in our earlier memorandum, Barron Memorandum at 5–7, we do not believe that al-Aulaqi's U.S. citizenship imposes constitutional limitations that would preclude the contemplated lethal, action under the facts represented to us by DoD, the CIA and the Intelligence Community.
Because al-Aulaqi is a U.S. citizen, the Fifth Amendment's Due Process Clause, as well as the Fourth Amendment, likely protects him in some respects even while he is abroad. See Reid v. Covert, 354 U.S. 1, 5–6, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion); United States v. Verdugo–Urquidez, 494 U.S 259, 269–70, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); see also In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 157, 170 n. 7 (2d Cir.2008).
In Hamdi, a plurality of the Supreme Court used the Mathews v. Eldridge balancing test to analyze the Fifth Amendment due process rights of a U.S. citizen captured on the battlefield in Afghanistan and detained in the United States who wished to challenge the government's assertion that he was a part of enemy forces, explaining that "the process due in any given instance is determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." 542 U.S. at 529, 124 S.Ct. 2633 (plurality opinion) (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)).
We believe similar reasoning supports the constitutionality of the contemplated operations here. As explained above, on the facts represented to us, a decision-maker could reasonably decide that the threat posed by al-Aulaqi's activities to United States persons is "continued" and "imminent"
In addition to the nature of the threat posed by al-Aulaqi's activities, both agencies here have represented that they intend to capture rather than target al-Aulaqi if feasible; yet we also understand that an operation by either agency to capture al-Aulaqi in Yemen would be infeasible at this time.
Cf., e.g., Public Committee Against Torture in Israel v. Government of Israel, HO 769/02 S 40, 46 LL.M. 375, 394 (Israel Supreme Court sitting as the High Court [150] of Justice, 2006) (although arrest, investigation and trial "might actually be particularly practical under the conditions of belligerent occupation, in which the army controls the area in which the operation takes place," such alternatives "are not means which can always be used," either because they are impossible or because they involve a great risk to the lives of soldiers).
Although in the "circumstances of war," as the Hamdi plurality observed, "the risk of erroneous deprivation of a citizen's liberty in the absence of sufficient process ... is very real," 542 U.S. at 530, 124 S.Ct. 2633, the plurality also recognized that "the realities of combat" render certain uses of force "necessary and appropriate," including against U.S. citizens who have become part of enemy forces—and that "due process analysis need not blink at those realities," id. at 531, 124 S.Ct. 2633. we conclude that at least where, as here, the target's activities pose a "continued and imminent threat of violence or death" to U.S. persons, "the highest officers in the Intelligence Community have reviewed the factual basis" for the lethal operation, and a capture operation would be infeasible—and where the CIA and DoD "continue to monitor whether changed circumstances would permit such an alternative," see also DoD May 18 Memorandum for OLC at 2—the "realities of combat" and the weight of the government's interest in using an authorized means of lethal force against this enemy are such that the Constitution would not require the government to provide further process to the U.S. person before using such force. Cf. Hamdi, 542 U.S. at 535, 124 S.Ct. 2633 (noting that Court "accord[s] the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of war, and ... the scope of that discretion necessarily is wide") (plurality opinion).
Similarly, assuming that the Fourth Amendment provides some protection to a U.S. person abroad who is part of al-Qaida and that the operations at issue here would result in a "seizure" within the meaning of that Amendment,
The Supreme Court has made clear that the constitutionality of a seizure is determined by "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (internal quotation marks omitted); accord Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Even in domestic law enforcement operations, the Court has noted that "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Garner, 471 U.S. at 11, 105 S.Ct. 1694. Thus, "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape and if, where feasible, some warning has been given." Id. at 11–12, 105 S.Ct. 1694.
The Fourth Amendment "reasonableness" test is situation-dependent. Cf. Scott, 550 U.S. at 382, 127 S.Ct. 1769 (Garner "did not establish a magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force' "). What would constitute a reasonable use of lethal force for purposes of domestic law enforcement operations will be very different from what would be [151] reasonable in a situation like such as that at issue here. In the present circumstances, as we understand the facts, the U.S. citizen in question has gone overseas and become part of the forces of an enemy with which the United States is engaged in an armed conflict; that person is engaged in continual planning and direction of attacks upon U.S. persons from one of the enemy's overseas bases of operations; the U.S. government does not know precisely when such attacks will occur; and a capture operation would be infeasible. at least where high-level government officials have determined that a capture operation overseas is infeasible and that the targeted person is part of a dangerous enemy force and is engaged in activities that pose a continued and imminent threat to U.S. persons or interests the use of lethal force would not violate the Fourth Amendment. and thus that the intrusion on any Fourth Amendment interests would be outweighed by "the importance of the governmental interests [that] justify the intrusion," Garner, 471 U.S. at 8, 105 S.Ct. 1694, based on the facts that have been represented to us.
Please let us know if we can be of further assistance.
[1] This spelling, which we adopt (except in quotations), is used by the District Court and in the Government's brief. The briefs of N.Y. Times and ACLU and numerous documents in the record render the name "al-Aulaqi."
[2] The term was apparently coined by CIA, see Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir.2004), and the CIA's use of no number, no list responses to FOIA requests has been considered by district courts in the District of Columbia. SeeNational Security Counselors v. CIA, 898 F.Supp.2d 233, 284–85 (D.D.C.2012); Jarvik v. CIA, 741 F.Supp.2d 106, 123 (D.D.C.2010).
[3] The term derives from Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973).
[4] The term derives from the Hughes Glomar Explorer, a vessel built to recover a sunken Soviet submarine. See Phillippi v. CIA, 546 F.2d 1009, 1010–12 (D.C.Cir.1976). A Glomar response was first used in 1992 in a case challenging a Government agency's refusal to confirm or deny the existence of certain materials requested under FOIA, see Benavides v. DEA, 968 F.2d 1243, 1245 (D.C.Cir.1992).
[5] CIA made one exception to its request that OLC submit a Glomar response. Because CIA's involvement in the operation that resulted in the death of Osama bin Laden had been acknowledged and was not classified, the agency asserted that any OLC documents related to the agency's involvement in that operation would not be covered by a Glomar response, but added that there were no such documents.
[6] 1. All records created after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which U.S. citizens can be subjected to targeted killings, whether using unmanned aerial vehicles ("UAVs" or "drones") or by other means.
2. All records created after September 11, 2001, pertaining to the process by which U.S. citizens can be designated for targeted killings, including who is authorized to make such determinations and what evidence is needed to support them.
3. All memoranda, opinions, drafts, correspondence, and other records produced by the OLC after September 11, 2001, pertaining to the legal basis in domestic, foreign, and international law upon which the targeted killing of Anwar al-Awlaki was authorized and upon which he was killed, including discussions of:
A. The reasons why domestic-law prohibitions on murder, assassination, and excessive use of force did not preclude the targeted killing of al-Awlaki;
B. The protection and requirements imposed by the Fifth Amendment Due Process Clause;
C. The reasons why International-law prohibitions on extrajudicial killing did not preclude the targeted killing of al-Awlaki;
D. The applicability (or non-applicability) of the Treason Clause to the decision whether to target al-Awlaki;
E. The legal basis authorizing the CIA, JSOC, or other U.S. Government entities to carry out the targeted killing of Anwar Al–Awlaki;
F. Any requirement for proving that al-Awlaki posed an imminent risk of harm to others, including an explanation of how to define imminence in this context; and
G. Any requirement that the U.S. Government first attempt to capture Al–Awlaki before killing him.
4. All documents and records pertaining to the factual basis for the targeted killing of Al–Awlaki, including:
A. Facts supporting a belief that al-Awlaki posed an imminent threat to the United States or United States interests;
B. Facts supporting a belief that al-Awlaki could not be captured or brought to justice using nonlethal means;
C. Facts indicating that there was a legal justification for killings persons other than al-Awlaki, including other U.S. citizens, while attempting to kill al-Awlaki himself;
D. Facts supporting the assertion that al-Awlaki was operationally involved in al Qaeda, rather than being involved merely in propaganda activities; and
E. Any other facts relevant to the decision to authorize and execute the targeted killings of al-Awlaki.
5. All documents and records pertaining to the factual basis for the killing of Samir Khan, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his proximity to al-Awlaki at the time the missiles were launched at al-Awlaki's vehicle, whether the United States took measures to avoid Khan's death, and any other facts relevant to the decision to kill Khan or the failure to avoid causing his death.
6. All documents and records pertaining to the factual basis for the killing of Abdulrahman al-Awlaki, including whether he was intentionally targeted, whether U.S. Government personnel were aware of his presence when they launched a missile or missiles at his location, whether he was targeted on the basis of his kinship with Anwar al-Awlaki, whether the United States took measures to avoid his death, and any other factors relevant to the decision to kill him or the failure to avoid causing his death.
JA 252–53.
[7] Exemption 6, which is not in issue in this appeal, applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6) (2013).
[8] As a general rule, a FOIA decision is evaluated as of the time it was made and not at the time of a court's review. See, e.g., Bonner v. U.S. Dep't of State, 928 F.2d 1148, 1152 (D.C.Cir.1991) ("To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing."). On this basis, the Government argues that we cannot consider any official disclosures made after the District Court's opinion.
We disagree. Although we are not required to consider such evidence, the circumstances of this case support taking judicial notice of the statements here. See Fed.R.Evid. 201(b)(2). The Government's post-request disclosures "go[ ] to the heart of the contested issue," Powell v. U.S. Bureau of Prisons, 927 F.2d 1239, 1243 (D.C.Cir.1991) (internal quotation marks omitted), and, as discussed below, are inconsistent with some of its prior claims, including that the Government has never acknowledged CIA's operational involvement. Taking judicial notice of such statements is the same course taken by the Court of Appeals for the D.C. Circuit in its recent ACLU v. C.I.A. decision. 710 F.3d at 431. We conclude that it is the most sensible approach to ongoing disclosures by the Government made in the midst of FOIA litigation.
Moreover, the Government's request for an opportunity to submit new material concerning public disclosures made after the District Court's decision was honored by affording the Government an opportunity, after oral argument, to submit such material ex parte for in camera inspection, which the Government has done.
[9] The DOJ White Paper was leaked to Michael Isikoff, a reporter with NBC News, according to a report available at http://nbcnews.to/U1ZII 3; the text of the leaked document is available via a link at that website. (Hard copies of the documents available at this and all other websites cited in this opinion, as well as copies of videos available at websites cited in this opinion, to the extent they can be copied, have been docketed with the Clerk of Court for public reference.) The official disclosure, acknowledged by the Government, see Br. for Appellees at 25, was made by OIP on Feb. 4, 2013, in response to an FOIA request submitted by Truthout, according to a report available at http://www.truth-out. org/news/item/14585-targeted-killing-white-paperleaked-to-nbc-news-turned-over-totruthout-by-doj-in-response-to-asix-month-old-foia-request-four-dayslater; the text of the officially disclosed document is available via a link at that website and also at https://www.documentcloud. org/documents/602342-draft-white-paper.html. The document disclosed to Truthout is marked "draft"; the document leaked to Isikoff is not marked "draft" and is dated November 8, 2011. The texts of the two documents are identical, except that the document leaked to Isikoff is not dated and not marked "draft."
ACLU contends that DOJ did not release the DOJ White Paper in response to its FOIA request, nor list it on itsVaughn index. See Br. for ACLU at 21 n. 7. The Government responds that ACLU had narrowed its request to exclude "draft legal analyses," Letter from Eric A.O. Ruzicka to Sarah S. Normand (Apr. 3, 2012), and that the DOJ White Paper was part of document number 60 on the Vaughn index submitted by the Office of Legal Counsel as an attachment to a responsive e-mail. See Br. for Appellees at 25 n. 8. The OLC's Vaughn index describes document number 60 as "E-mail circulating draft legal analysis regarding the application of domestic and international law to the use of lethal force in a foreign country against U.S. citizens in certain circumstances, and discussion regarding interagency deliberations concerning the same" and invokes Exemption 5. Apparently, OLC expected ACLU to understand "circulating" to mean "attachment."
The Government offers no explanation as to why the identical text of the DOJ White Paper, not marked "draft," obtained by Isikoff, was not disclosed to ACLU, nor explain the discrepancy between the description of document number 60 and the title of the DOJ White Paper.
[10] The Holder Letter is available at http://www.justice. gov/ag/AGletter-5-22-13.pdf.
[11] The President's address is available via a link at http://wh. gov/hrTq.
[12] New York Times Co. v. U.S. Dep't of Justice, 872 F.Supp.2d 309, 312–13, 317–18 (S.D.N.Y.2012), ACLU v. Office of the Director of National Intelligence, No. 10 Civ. 4419, 2011 WL 5563520, at *8 (S.D.N.Y. Nov. 15, 2011), and Center for International Environmental Law v. Office of the U.S. Trade Representative, 505 F.Supp.2d 150, 154 (D.D.C.2007).
[13] We therefore need not consider the Appellants' claim that the legal analysis in the OLC–DOD Memorandum was not subject to classification.
[14] We have deleted classification codes from the caption and throughout the document.
[15] The statement was made in a response to a question from Senator Mike Lee. A webcast of the hearing is available via a link at http://www. judiciary.senate.gov/hearings/hearing.cfm?id=e0c4315749c10b084028087a4aa80a 73, at 1:51:30.
[16] The redactions made in this paragraph implement section 2(a) of our order of May 28, 2014.
[17] The Tonight Show transcript erroneously rendered this word "enemies," an error the Government acknowledged at oral argument.
[18] Although "the law will not infer official disclosure of information classified by the CIA from ... release of information by another agency, or even by Congress," Wilson, 586 F.3d at 186–87, these members of Congress have made public statements on this matter. Senator Feinstein has praised CIA for conducting drone strikes with less collateral damage than strikes conducted by the military. See "Senator Dianne Feinstein on Drones, Assault Weapons Ban," The Takeaway (Mar. 20, 2013), available at http:www.thetakeaway.org/story/276926-sen-diannefeinstein-drones-assaultweapons-ban/, at 2:00. Representative Rogers told CBS that his committee has overseen CIA's targeted killing strikes "even before they conducted that first strike that took [al-]Awlaki." Transcript, Face the Nation, CBS News (Feb. 10, 2013), available at http://www.cbsnews. com/news/facethe-nation-transcripts-february10-2013-graham-reed-androgers/4/.
[19] Although we conclude that the three-part test of Wilson has been satisfied, and Wilson remains the law of this Circuit, we note that a rigid application of it may not be warranted in view of its questionable provenance. Wilson took the test fromWolf v. CIA, 473 F.3d 370, 378 (D.C.Cir.2007), which took the test from Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990). Fitzgibbon purported to find the test in Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C.Cir.1983). The issue in Afshar was whether several books submitted to CIA for clearance contained official disclosure of details of CIA's relationship with SAVAK, Iran's intelligence service prior to 1979 and the existence of a CIA station in Tehran prior to 1979. Afshar rejected the claim of official disclosure for three reasons: (1) none of the books revealed a continuing relationship between CIA and SAVAK after 1963, the date of the earliest withheld document; (2) the books provided only a general outline of such a relationship; and (3) none of the books was an official and documented disclosure. The second reason was supported by a citation to Lamont v. Dep't of Justice, 475 F.Supp. 761, 772 (S.D.N.Y.1979), with a parenthetical stating that the withheld information must have "already been specifically revealed to the public" (emphasis in Afshar). Lamont did not assert specific revelation as a requirement for disclosure; it observed that the plaintiff had raised a factual issue as to whether the information sought had been specifically revealed. More important, Afshar, the ultimate source of the three-part test, does not mention a requirement that the information sought "match[es] the information previously disclosed."
Wilson also cited Hudson River Sloop Clearwater, Inc. v. Dep't of the Navy, 891 F.2d 414 (2d Cir.1989). Clearwateralso cited Fitzgibbon and Afshar and drew from those opinions more rigidity than was warranted. The issue inClearwater was simply whether the Navy had previously disclosed, as the plaintiff claimed, that it was planning to deploy nuclear weapons at the New York Harbor Homeport. The Court rejected the claim, pointing out that the Navy had said only that the ships to be stationed at the Homeport were capable of carrying nuclear weapons. See id. at 421.
[20] Other than the legal analysis in the documents considered in this section, it is unclear whether the Appellants are seeking on appeal any other withheld documents. See, e.g., Br. for ACLU at 50 ("Plaintiffs do not challenge the bulk of those withholdings."). In any event, except as to the OLC–DOD Memorandum discussed in Section III, above, the documents discussed in this Section IV, and the indices discussed in Section V, below, on the current record, we affirm the District Court's decision to withhold all other documents sought. After the Government submits its classified Vaughn indices on remand, the District Court may, as appropriate, order the release of any documents that are not properly withheld.
OLC: |
DOD: |
CIA: |
Glomar to NYTimes; no number, no list to ACLU as to classified documents, except OLC–DOD Memorandum |
no number, no list to Shane, |
Glomar to NYTimes; no number, no list to ACLU |
[22] For purposes of the issues on this appeal, it makes no difference whether the drones were maneuvered by CIA or DOD personnel so long as CIA has been disclosed as having some operational role in the drone strikes.
[23] This redaction implements section 2(a) of our order of May 28, 2014.
[24] Prior to filing, we have made this opinion available to the Government in camera to afford an opportunity to advise whether any classified information, not intended to be disclosed by this opinion, has been inadvertently disclosed.
[6] See also 18 U.S.C, § 1119(a) (providing that "national of the United States" has the meaning stated in section 101(aX22) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(22)).
[7] Section 1119 itself also expressly imposes various procedural limitations on prosecution. Subsection 1119(c)(1) requires that any prosecution be authorized in writing by the Attorney General, the Deputy Attorney General, or an-Assistant Attorney General, and precludes the approval of such an action "if prosecution has been previously undertaken by a foreign country for the same conduct." In addition, subsection I 119(c)(2) provides that "[n]o prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person's return"—a determination that "is not subject to judicial review," id
[8] A 1908 joint congressional committee report on the Act explained that "[u]nder existing law [i.e., prior to the 1909 Act], there [had been] no statutory definition of the crimes of murder or manslaughter." Report by the Special Joint Comm. on the Revision of the Laws, Revision and Codification of the Laws, Etc., H.R.Rep. No. 2, 60th Cong. 1st Sess., at 12 (Jan. 6, 1908) ("Joint Committee Report"). We note, however, that the 1878 edition of the Revised Statutes did contain a definition for manslaughter (but not murder): "Every person who, within any of the places or upon any of the waters [within the exclusive jurisdiction of the United States] unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such other person dies, either on land or sea, within or without the United States, is guilty of the crime of manslaughter." Revised Statutes § 5341 (1878 ed.) (quoted in United States v. Alexander, 471 F.2d 923, 944–45 n. 54 (D.C.Cir.1972)). With respect to murder, the 1908 report noted that the legislation "enlarges the common-law definition, and is similar in terms to the statutes defining murder in a large majority' of the States." Joint Committee Report at 24; see also Revision of the Penal Laws: Hearings on S. 2982 Before the Senate as a Whole, 60th Cong., 1st Sess. 1184, 1185 (1908) (statement of Senator Heyburn) (same). With respect to manslaughter, the report stated that "[w]hat is said with respect to [the murder provision] is true as to this section, manslaughter being defined and classified in laneuaee similar to that to be found in the statutes of a large majority of the States." Joint Committee Report at 24.
[9] See, e.g., Cal. Penal Code § 187(a) (West 2009) ("Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."); Fla. Scat. § 782.04(1)(a) (West 2009) (including "unlawful killing of a human being" as an element of murder); Idaho Code Ann. § 18–4001 (West 2009) ("Murder is the unlawful killing of a human being"); Nev.Rev.Stat. Ann. § 200.010 (West 2008) (including "unlawful killing of a human being" as an element of murder); R.I. Gen. Laws § 11–23–1 (West 2008) ("The unlawful killing of a human being with malice aforethought is murder."); Tenn.Code Ann. § 39–13–201 (West 2009) ("Criminal homicide is the unlawful killing of another person"). Such statutes, in turn, reflect the view often expressed in the common law of murder that the crime requires an "unlawful" killing. See, e.g., Edward Coke, The Third Part of the Institutes of Laws of England 47 (London, W. Clarke & Sons 1809) ("Murder is when a man of sound meinory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum naturaunder the king's peace, with malice fore-thought, either expressed by the party, or implied by law, so as the party wounded, or hurt, & c. die of the wound, or hurt, & c. within a year and a day after the same."); 4 William Blackstone,Commentaries on the Laws of England 195 (Oxford 1769) (same); see also A Digest of Opinions of the Judge Advocates General of the Army 1074 n. 3 (1912) ("Murder, at common law, is the unlawful killing by a person of sound memory and discretion, of any reasonable creature in being and under the peace of the State, which malice aforethought either express or implied.") (internal quotation marks omitted).
[10] The same is true with respect to other statutes, including federal laws, that modify a prohibited act other than murder or manslaughter with the term "unlawfully." See, e.g., Territory v. Gonzales, 14 N.M. 31, 89 P. 250, 252 (N.M.Terr.1907)(construing the term "unlawful" in statute criminalizing assault with a deadly weapon as "clearly equivalent" to "without excuse or justification"). For example, 18 U.S.C. § 2339C makes it unlawful, inter alia, to "unlawfully and willfully provide[ ] or collect[ ] funds" with the intention that they be used (or knowledge they are to be used) to carry out an act that is an offense within certain specified treaties, or to engage in certain other terrorist acts. The legislative history of section 2339C makes clear that "[t]he term 'unlawfully' is intended to embody common law defenses." H.R.Rep. No. 107–307, at 12 (2001), 2002 U.S.C.C.A.N. 521. Similarly, the Uniform Code of Military Justice makes it unlawful for members of the armed forces to, "without justification or excuse, unlawfully kill[ ] a human being" under certain specified circumstances.10 U.S.C. § 918. Notwithstanding that the statute already expressly requires lack of justification or excuse, it is the longstanding view of the armed forces that "[k]illing a human being is unlawful " for purposes of this provision "when done without justification or excuse." Manual for Courts–Martial United States (2008 ed.), at IV–63, art. 118, comment (c)(1) (emphasis added).
[11] [missing text]
[12] Where a federal criminal statute incorporates the public authority justification, and the government conduct at issue is within the scope of that justification, there is no need to examine whether the criminal prohibition has been repealed, impliedly or otherwise, by some other statute that might potentially authorize the governmental conduct, including by the authorizing statute that might supply the predicate for the assertion of the public authority justification itself. Rather, in such cases, the criminal prohibition simply does not apply to the particular governmental conduct at issue in the first instance because Congress intended that prohibition to be qualified by the public authority justification that it incorporates. Conversely, where another statute expressly authorizes the government to engage in the specific conduct in question, then there would be no need to invoke the more general public authority justification doctrine, because in such a case the legislature itself has, in effect, carved out a specific exception permitting the executive to do what the legislature has otherwise generally forbidden. We do not address such a circumstance in this opinion.
[13] The question of a "public authority" justification is much more frequently litigated in cases where a private party charged with a crime interposes the defense that he relied upon authority that a public official allegedly conferred upon him to engage in the challenged conduct. See generally United States Attorneys' Manual tit. 9, Criminal Resource Manual § 2055 (describing and discussing three different such defenses of "governmental authority"); National Comm'n on Reform of Federal Criminal Laws, A Proposed New Federal Criminal Code § 602(2); Model Penal Code § 3.03(3)(b); see alsoUnited States v. Fulcher, 250 F.3d 244, 253 (4th Cir.2001); United States v. Rosenthal, 793 F.2d 1214, 1235–36 (11th Cir.1986); United States v. Duggan, 743 F.2d 59, 83–84 (2d Cir.1984); Fed.R.Crim.P. 12.3 (requiring defendant to notify government if he intends to invoke such a public authority defense). We do not address such cases in this memorandum, in which our discussion of the "public authority" justification is limited to the question of whether a particular criminal law applies to specific conduct undertaken by government agencies pursuant to their authorities.
[14] See, e.g., Memorandum for see also Visa Fraud Investigation, 8 Op. O.L.C. at 287–88 (concluding that civil statute prohibiting issuance of visa to an alien known to be ineligible did not prohibit State Department from issuing such a visa where "necessary" to facilitate important Immigration and Naturalization Service undercover operation carried out in a "reasonable" fashion).
[15] See, e.g., Nardone v. United States, 302 U.S. 379, 384, 58 S.Ct. 275, 82 L.Ed. 314 (1937) (government wiretapping was proscribed by federal statute);
[16] In accord with our prior precedents, each potentially applicable statute must be carefully and separately examined to discern Congress's intent in this respect—such as whether it imposes a less qualified limitation than section 1119imposes. See generally, e.g., United States Assistance to Countries that Shoot Down Civil Aircraft Involved in Drug Trafficking, 18 Op. O.L.C. 148 (1994); Application of Neutrality.Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).
[17] See, e.g., Neb.Rev.Stat. § 28–1408(2)(b); Pa.C.S.A. § 504(b)(2); Tex. Penal Code tit. 2, § 9.21(c).
[18] See, e.g., Ariz.Rev.Stat. § 13–410.C; Maine Rev. Stat. Ann. tit. 17, § 102.2.
[19] See, e.g., Ala. Stat. § 13A–3–22; N.Y. Penal Law § 35.05(1); LaFave, Substantive Criminal Law § 10.2(b), at 135 n. 15;see also Robinson, Criminal Law Defenses § 149(a), at 215 (proposing that the defense should be available only if the actor engages in the authorized conduct "when and to the extent necessary to protect or further the interest protected or furthered by the grant of authority" and where it "is reasonable in relation to the gravity of the harms or evils threatened and the importance of the interests to be furthered by such exercise of authority"); id. § 149(c), at 218–20.
[20] In concluding that the use of the term "unlawful" supports the conclusion that section ¶ 19 incorporates the public authority justification, we do not mean to suggest that the absence of such a term would require a contrary conclusion regarding the intended application of a criminal statute to otherwise authorized government conduct in other cases. Each statute must be considered on its own terms to determine the relevant congressional intent. See supra note 16.1
[21] The Thurmond proposal also contained procedural limitations on prosecution virtually identical to those that Congress ultimately enacted and codified at 18 U.S.C. § 1119(c). See S. 861, 102d Cong. § 2.
[22] See Geoffrey R. Watson, The Passive Personality Principle, 28 Tex. Int'l L.J. I, 13 (1993); 137 Cong. Rec. 8677 (1991) (letter for Senator Ernest F. Hollings, from Janet G. Mullins, Assistant Secretary, Legislative Affairs, U.S. State Department (Dec. 26, 1989), submitted for the record during floor debate on the Thurmond bill) (S4752) ("The United States has generally taken the position that the exercise of extraterritorial criminal jurisdiction based solely on the nationality of the victim interferes unduly with the application of local law by local authorities.").
[23] Courts have interpreted other federal homicide statutes to apply extraterritorially despite the absence of an express provision for extraterritorial application. See, e.g., 18 U.S.C. § 1114 (criminalizing unlawful killings of federal officers and employees); United States v. Al Kassar, 582 F.Supp.2d 488, 497 (S.D.N.Y.2008) (construing 18 U.S.C. § 1114 to apply extraterritorially).
[24] In light of our conclusion that section 1119 and the statutes it cross-references incorporate this justification, and that the operations here would be covered by that justification, we need not and thus do not address whether other grounds might exist for concluding that the operations would be lawful.
[25] See. e.g., 2 Paul H. Robinson, Criminal Law Defenses § 148(a), at 208 (1984) (conduct that would violate a criminal statute is justified and thus not unlawful "Iwinere the exercise of military authority relies upon the law governing the armed forces or upon the conduct of war"); 2 LaFave, Substantive Criminal Law § 10.2(c), at 136 ("another aspect of the public duty defense is where the conduct was required or authorized by 'the law governing the armed services or the lawful conduct of war' ") (internal citation omitted); Perkins & Boyce, Criminal Law at 1093 (noting that a "typical instance[ ] in which even the extreme act of taking human life is done by public authority" involves "the killing of an enemy as an act of war and within the rules of war"); Frye, 10 Cal.Rptr.2d at 221 n. 2 (identifying "homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war," as one example of a justifiable killing that would not be "unlawful" under the California statute describing murder as an "unlawful" killing); State v. Gut, 13 Minn. 341, 357 (1868) ("that it is legal to kill an alien enemy in the heat and exercise of war, is undeniable"); see alsoModel Penal Code § 3.03(2)(b) (proposing that criminal statutes expressly recognize a public authority justification for a killing that "occurs in the lawful conduct of war," notwithstanding the Code recommendation that the use of deadly force generally should be justified only if expressly prescribed by law); see also id. at 25 n. 7 (collecting–representative statutes reflecting this view enacted prior to Code's promulgation); 2 Robinson, Criminal Law Defenses § 148(b), at 210–11 nn. 8–9 (collecting post-Model Code state statutes expressly recognizing such a defense).
[26] Cf. Public Committee Against Torture in Israel v. Government of Israel, 11CJ 769/02 ¶ 19, 46 I.L.M. 375, 382 (Israel Supreme Court sitting as the High Court of Justice, 2006) ("When soldiers of the Israel Defense Forces act pursuant to the laws of aimed conflict, they are acting 'by law', and they have a good justification defense [to criminal culpability]. However, if they act contrary to the laws of armed conflict they may be, inter alia, criminally liable for their actions.");Calley v. Callaway, 519 F.2d 184, 193 (5th Cir.1975) ("an order to kill unresisting Vietnamese would be an illegal order, and ... if [the defendant] knew the order was illegal or should have known it was illegal, obedience to an order was not a legal defense").
[27] We emphasize this point not in order to suggest that statutes such as the AUMF have superseded or implicitly repealed or amended section 1119, but instead as one factor that helps to make particularly clear why the operation contemplated here would be covered by the public authority justification that section 1119 (and section 1111) itself incorporates.
[28] See Hamlily, 616 F.Supp.2d at 75 (construing AUMF to reach individuals who "function[ ] or participate[ ] within or under the command structure of [al–Qaida]"); Gherebi v. Obama, 609 F.Supp.2d 43, 68 (D.D.C.2009); see also al–Marri v. Pucciarelli, 534 F.3d 213, 325 (4th Cir.2008) (en banc) (Wilkinson, J., dissenting in part) (explaining that the ongoing hostilities against al-Qaida permit the Executive to use necessary and appropriate force under the AUMF against an "enemy combatant," a term Judge Wilkinson would have defined as a person who is (1) "a member of" (2) "an organization or nation against whom Congress has declared war or authorized the use of military force," and (3) who "knowingly plans or engages in conduct that harms or aims to harm persons or property for the purpose of furthering the military goals of the enemy nation or organization"), vacated and remanded sub nom. al–Marri v. Spagone, 555 U.S. 1220, 129 S.Ct. 1545, 173 L.Ed.2d 671 (2009); Government March 13th Guanuinamo Bay Detainee Brief at (arguing that AUMF authorizes detention of individuals who were "part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces").
Several of the Guantiniuno habeas petitioners, as well as some commentators, have argued that in a non-international conflict of this sort, the laws of war and/or the AUMF do not permit the United States to treat persons who are part of al-Qaida as analogous to members of an enemy's armed forces in a traditional international armed conflict, but that the United States instead must treat all such persons as civilians, which (they contend) would permit targeting those persons only when they are directly participating in hostilities. Cf also al–Marri, 534 F.3d at 237–47 (Mott, J. concurring in the judgment, and writing for four of nine judges) (arguing that the AUIVIT and the Constitution, as informed by the laws of war, do not permit military detention of an alien residing in the United States whom the government alleged was "closely associated with" al-Qaida, and that such individual must instead be treated as a civilian, because that person is not affiliated with the military arm of an enemy nation); Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions 58, at 19 (United Nations Human Rights Council, Fourteenth Session, Agenda Item 3, May 28, 2010) ("Report of the Special Rapporteur") (reasoning that because "[u]nder the [international humanitarian law] applicable to non-international armed conflict, there is no such thing as a 'combatant' "—i.e., a non-state actor entitled to the combatant's privilege—it follows that "States are permitted to attack only civilians who 'directly participate in hostilities' "). Primarily for the reasons that Judge Walton comprehensively examined in the Gherebi case, see 609 F.Supp.2d at 62–69, we do not think this is the proper understanding of the laws of war in a non-international armed conflict, or of Congress's authorization under the AUMF.Cf. also International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities Under International Humanitarian Law 28, 34 (2009) (even if an individual is otherwise a "citizen" for purposes of the laws of war, a member of a non-state armed group can be subject to targeting by virtue of having assumed a "continuous combat function" on behalf of that group); Alston, supra, ¶ 65, at 30–31 (acknowledging that under the ICRC view, if armed group members take on a continuous command function, they can be targeted anywhere and at any time); infra at 37–38 (explaining that al-Aulaqi is continually and "actively" participating in hostilities and thus not protected by Common Article 3 of the Geneva Conventions).
[29] See also Al Odah v. U.S., 611 F.3d 8, 9–10 (D.C.Cir.2010), and other D.C. Circuit cases cited therein (D.C.Cir.2010) (AUMF gives United States the authority to detain a person who is "part of" al-Qaida or Taliban forces); Hamlily, 616 F.Supp.2d at 74 (Bates, J.); Gherebi, 609 F.Supp.2d at 67 (Walton, J.); Mattan v. Obama, 618 F.Supp.2d 24, 26 (D.D.C.2009) (Lamberth, C.J.); Al Mutairi v. United States, 644 F.Supp.2d 78, 85 (D.D.C.2009) (Kollar–Kotelly, J,); Awad v. Obama, 646 F.Supp.2d 20, 23 (D.D.C.2009) (Robertson, J.); Anam v. Obama, 653 F.Supp.2d 62, 64 (D.D.C.2009)(Hogan, J.); Hatim v. Obama, 677 F.Supp.2d 1, 7 (D.D.C.2009) (Urbina, J.); Al–Adahi v. Obama, No. 05–280, 2009 WL 2584685 (D.D.C. Aug. 21, 2009) (Kessler, J.), rev'd on other grounds, 613 F.3d 1102 (D.C.Cir.2010).
[30] Our analysis is limited to the circumstances presented here, regarding the contemplated use of lethal force in Yemen. We do not address issues that a use of force in other locations might present. See also supra note 1.
[31] We think it is noteworthy that the AUMF itself does not set forth an express geographic limitation on the use of force it authorizes, and that nearly a decade after its enactment, none of the three branches of the United States Government has identified a strict geographical limit on the permissible scope of the authority the AUMF confers on the President with respect to this armed conflict. See, e.g., Letter from the President to the Speaker of the House of Representatives and the President Pro Tempore of the Senate (June 15, 2010) (reporting, "consistent with ... the War Powers Resolution," that the armed forces, with the assistance of numerous international partners, continue to conduct operations "against al-Qaida terrorists," and that the United States has "deployed combat–equipped forces to a number of locations in the U.S. Central ... Command area[ ] of operation in support of those [overseas counter-terrorist] operations"); Letter for the Speaker of the House of Representatives and the President Pro Tempore of the Senate, from President Barack Obama (Dec. 16, 2009) (similar); DoD May 18 Memorandum for OLC, at 2 (explaining that U.S. armed forces have conducted AQAP targets in Yemen since December 2009, and that DoD has reported such strikes to the appropriate congressional oversight committees).
[32] In the speech cited above, Legal Adviser Stevenson was referring to cases in which the government of the nation in question is unable to prevent violations of its neutrality by belligerent troops.
[33] The fact that the operation occurs in a new location might alter the way in which the military must apply the relevant principles of the laws of war—for example, requiring greater care in some locations in order to abide by the principles of distinction and proportionality that protect civilians from the use of military force. But that possible distinction should not affect the question of whether the laws of war govern the conflict in that new location in the first instance
[34] See also Geoffrey S. Corn & Eric Talbot Jensen, Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, 81 Temp. L.Rev. 787, 799 (2008) ("If ... the ultimate purpose of the drafters of the Geneva Conventions was to prevent 'law avoidance' by developing de facto law triggers—a purpose consistent with the humanitarian foundation of the treaties—then the myopic focus on the geographic nature of an armed conflict in the context of transnational counterterrorist combat operations serves to frustrate that purpose."); cf. also Derek Jinks,September 11 and the Laws of War, 28 Yale J. Intl L. 1, 40–41 (2003) (arguing that if Common Article 3 applies to wholly internal conflicts, then it "applies a fortiori to armed conflicts with international or transnational dimensions," such as to the United States's armed conflict with al-Qaida).
[35] Cf. Prosecutor v. Haradnizaj, No IT–04–84–T 60 (ICTY Trial Chamber I, 2008) (an armed conflict can exist only between parties that are sufficiently organized to confront each other with military means—a condition that can be evaluated with respect to non-state groups by assessing "several indicative factors, none of which are, in themselves, essential to establish whether the 'organization' criterion is fulfilled," including, among other things, the existence of a command structure, and disciplinary rules and mechanisms within the group, the ability of the group to gain access to weapons, other military equipment, recruits and military training, and its ability to plan, coordinate, and carry out military operations).
[36] We note that the Department of Defense, which has a policy of compliance with the law of war "during all armed conflicts, however such conflicts are characterized, and in all other military operations," Chairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program ¶ 4.a, at 1 (Apr, 30, 2010) (emphasis added), has periodically used force—albeit in contexts different from a conflict such as this—in situations removed from "active battlefields," in response to imminent threats. See, e.g., Nat'l Comm'n on Terrorist Attacks Upon the United States, The 9/11 Commission Report 116–17 (2004) (describing 1998 cruise missile attack on al-Qaida encampments in Afghanistan following al-Qaida bombings of U.S. embassies in East Africa); W. Hays Parks, Memorandum of Law: Executive Order 12333 and Assassination, Army Lawyer, at 7 (Dep't of Army Pamphlet 27–50–204) (Dec.1989) ( "Assassination ") at 7 n. 8 (noting examples of uses of military force in "[s]elf defense against a continuing threat," including "the U.S. Navy air strike against Syrian military objections in Lebanon on 4 December 1983, following Syrian attacks on U.S. Navy F–14 TARPS flights supporting the multinational peacekeeping force in Beirut the preceding day," and "air strikes against terrorist-related targets in Libya on the evening of 15 April 1986"); see also id at 7 ("A national decision to employ military force in self defense against a legitimate terrorist or related threat would not be unlike the employment of force in response to a threat by conventional forces; only the nature of the threat has changed, rather than the international legal right of self defense. The terrorist organizations envisaged as appropriate to necessitate or warrant an armed response by U.S. forces are well-financed, highly-organized paramilitary structures engaged in the illegal use of force."); Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons ¶ 42, I996 I.C.J. 226, 245 ("Nuclear Weapons Advisory Opinion") (fundamental law-of-war norms are applicable even where military force might be employed outside the context of an armed conflict, such as when using powerful weapons in an act of national self-defense); cf. also 9/11 Commission Report at 116–17 (noting the Clinton Administration position—with respect to a presidential memorandum authorizing CIA assistance to an operation that could result in the killing of Usama Bin Ladin "if the CIA and the tribals judged that capture was not feasible"—that "under the law of armed conflict, killing a person who posed an imminent threat to the United States would be an act of self-defense, not an assassination"). As we explain below, DoD likewise would conduct the operation contemplated here in accord with the laws of war and would direct its lethal force against an individual whose activities have been determined to pose a "continued and imminent threat" to U.S. persons and interests.
[37] Cf. Nuclear Weapons Advisory Opinion ¶ 25, 1996 I.C.J. at 240 (explaining that the "test" of what constitutes an "arbitrary" taking of life under international human rights law, such as under article 6(1) of the International Covenant of Civil and Political Rights (ICCPR), must be determined by "the law applicable in armed conflict which is designed to regulate the conduct of hostilities," and "can only be decided by reference to the law applicable in armed conflict and not deduced from terms of the Covenant itself"); Written Statement of the Government of the United States of. America before the International Court of Justice, Re: Request by the United Nations General Assermbly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons at 44 (June 20, 1995) (ICCPR prohibition on arbitrary deprivation of life "was clearly understood by its drafters to exclude the lawful taking of human life," including killings "lawfully committed by the military in time of war"); Dinstein, Conduct of Hostilities at 23 (right to life under human rights law "does not protect persons from the ordinary consequences of hostilities"); cf also infra Part VI (explaining that the particular contemplated operations here would satisfy due process and Fourth Amendment standards because, inter alia, capturing al-Aulaqi is currently infeasible).
[38] Although the United States is not a party to the First Protocol, the State Department has announced that "we support the principle that individual combatants not kill, injure, or capture enemy personnel by resort to perfidy." Remarks of Michael J, Matheson, Deputy Legal Adviser, Department of State, The Sixth Annual American Red Cross–Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. U.J. of Int'I L. & Pol'y 415, 425 (1987).(U)
[39] There is precedent for the United States targeting attacks against particular commanders. See, e.g., Patricia Zengel,Assassination and the Law of Armed Conflict, 134 Mil. L.Rev. 123, 136–37 (1991) (describing American warplanes' shoot-down during World War II of plane carrying Japanese Admiral Isoroku Yamamoto); see also Parks, Assassination, Army Lawyer at 5.
[40] See Geneva Conventions Common Article 3(1) (prohibiting "violence to life and person, in particular murder of all kinds," with respect to persons "taking no active part in the hostilities" in a non-international armed conflict, "including members of armed forces who have laid down their arms"); see also Hague Convention IV, Annex, art. 23(c), 37 Stat. at 2301–02 ("it is especially forbidden ... [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion"); id art. 23(d) (forbidding a declaration that no quarter will be given); 2 William Winthrop, Military Law and Precedents 788 (1920) ("The time has long passed when 'no quarter' was the rule on the battlefield, or when a prisoner could be put to death simply by virtue of his capture.").
[42] We address potential restrictions imposed by two other criminal laws—18 §§ 956(a) and 2441—in Parts IV and V of this opinion.
[43] We note, in addition, that the "lawful conduct of war" variant of the public authority justification, although often described with specific reference to operations conducted by the armed forces, is not necessarily limited to operations by such forces; some descriptions of that variant of the justification, for example, do not imply such a limitation. See, e.g., Frye, 10 Cal.Rptr.2d at 221 n. 2 ("homicide done under a valid public authority, such as execution of a death sentence or killing an enemy in a time of war"); Perkins & Boyce, Criminal Law at 1093 ("the killing of an enemy as an act of war and within the rules of war").
[44] If the killing by a member of the armed forces would comply with the law of war and otherwise be lawful, actions of CIA officials facilitating that killing should also not be unlawful. See, e.g., Shoot Down Opinion at 165 n. 33 ("[O]ne cannot be prosecuted for aiding and abetting the commission of an act that is not itself a crime.") (citing Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963)).
Nor would the fact that CIA personnel would be involved in the operation itself cause the operation to violate the laws of war. It is true that CIA personnel, by virtue of their not being part of the armed forces, would not enjoy the immunity from prosecution under the domestic law of the countries in which they act for their conduct in targeting and killing enemy forces in compliance with the laws of war—an immunity that the armed forces enjoy by virtue of their status.See Report of the Special Rapporteur ¶ 71, at 22; see also Dinstein, Conduct of Hostilities, at 31. Nevertheless, lethal activities conducted in accord with the laws of war, and undertaken in the course of lawfully authorized hostilities, do not violate the laws of war by virtue of the fact that they are carried out in part by government actors who are not entitled to the combatant's privilege. The contrary view "arises ... from a fundamental confusion between acts punishable under international law and acts with respect to which international law affords no protection." Richard R. Baxter, So–Called "Unprivileged Belligerency" Spies, Guerillas, and Saboteurs, 28 Brit. Y.B. Int'l L. 323, 342 (1951) ("the law of nations has not ventured to require of states that they ... refrain from the use of secret agents or that these activities upon the part of their military forces or civilian population be punished"). Accord Yoram Dinstein, The Distinction Between Unlawful Combatants and War Criminals, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 103–16 (Y. Dinstein ed., 1989);
Statements in the Supreme Court's decision in Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. 3 (1942), are sometimes cited for the contrary view. See, e.g., id. at 36 n. 12, 63 S.Ct. 2 (suggesting that passing through enemy lines in order to commit "any hostile act" while not in uniform "renders the offender liable to trial for violation of the laws of war"); id. at 31, 63 S.Ct. 2 (enemies who come secretly through the lines for purposes of waging war by destruction of life or property "without uniform" not only are "generally not to be entitled to the status of prisoners of war," but also "to be offenders against the law of war subject to trial and punishment by military tribunals"). Because the Court inQuirin focused on conduct taken behind enemy lines, it is not clear whether the Court in these passages intended to refer only to conduct that would constitute perfidy or treachery. To the extent the Court meant to suggest more broadly that any hostile acts performed by unprivileged belligerents are for that reason violations of the laws of war, the authorities the Court cited (the Lieber Code and Colonel Winthrop's military law treatise) do not provide clear support.See John C. Dehn, The Hamdan Case and the Application of a Municipal Offense, 7 J. Int'l Crim. J. 63, 73–79 (2009);see also Baxter, So–Called "Unprivileged Belligerency," 28 Brit. Y.B. Int'l L. at 339–40; Michael N. Schmitt,Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int'l L. 511, 521 n. 45 (2005); W. Hays Parks, Special Forces' Wear of Non–Standard Uniforms, 4 Chic. J. Int'l L. 493, 510–11 n. 31 (2003). We note in this regard that DoD's current Manual for Military Commissions does not endorse the view that the commission of an unprivileged belligerent act, without more, constitutes a violation of the international law of war. See Manual for Military Commissions, Part IV, § 5(13), Comment, at IV–11 (2010 ed., Apr. 27, 2010) (murder or infliction of serious bodily injury "committed while the accused did not meet the requirements of privileged belligerency" can be tried by a military commission "even if such conduct does not violate the international law of war").
[45] As one example, the Senate Report pointed to the Department of Justice's conclusion that the Neutrality Act, 18 U.S.C. § 960, prohibits conduct by private parties but is not applicable to the CIA and other government agencies. Id. The Senate Report assumed that the Department's conclusion about the Neutrality Act was premised on the assertion that in the case of government agencies, there is an "absence of the mens rea necessary to the offense." Id. In fact, however, this Office's conclusion about that Act was not based on questions of mens rea, but instead on a careful analysis demonstrating that Congress did not intend the Act, despite its words of general applicability, to apply to the activities of government officials acting within the course and scope of their duties as officers of the United States. See Application of Neutrality Act to Official Government Activities, 8 Op. O.L.C. 58 (1984).
[46] Cf. also VISA Fraud Investigation, 8 Op. O.L.C. at 287 (applying similar analysis in evaluating the effect of criminal prohibitions on certain otherwise authorized law enforcement operations, and explaining that courts have recognized it may be lawful for law enforcement agents to disregard otherwise applicable laws "when taking action that is necessary to attain the permissible law enforcement objective, when the action is carried out in a reasonable fashion"); id at 288 (concluding that issuance of an otherwise unlawful visa that was necessary for undercover operation to proceed, and done in circumstances—"for a limited purpose and under close supervision"—that were "reasonable," did not violate federal statute).
[47] The operations in question here would not involve conduct covered by the Land Mine Protocol. And the articles of the Geneva Conventions to which the United States is currently a party other than Common Article 3, as well as the relevant provisions of the Annex to the Fourth Hague Convention, apply by their terms only to armed conflicts between two or more of the parties to the Conventions. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955], art. 2, 6 U.S.T. 3316, 3406.
7.2.8.5.2 IV.B. Excuse 7.2.8.5.2 IV.B. Excuse
7.2.8.5.2.1 IV.B.i. Duress 7.2.8.5.2.1 IV.B.i. Duress
Excuses, unlike justifications, do not assert that an action was morally right: instead, they deem an action to have been wrong, but less blameworthy under the circumstances. Every category of excuse, however, raises problems. In the case of duress, the question becomes what level of duress is necessary to excuse a crime, and what crimes can it excuse? As you will see, there is both a traditional duress doctrine and a reformed doctrine promoted by the Model Penal Code. Consider the differences between duress (an excuse) and necessity (a justification). What is the distinction between them, and why does blameworthiness attach to one but not the other?
7.2.8.5.2.1.1. Model Penal Code sec. 2.09
7.2.8.5.2.1.2 U.S. v. Fleming 7.2.8.5.2.1.2 U.S. v. Fleming
7 USCMA 543, 23 CMR 7
UNITED STATES
v.
FLEMING
No. 7943
Decided February 8, 1957
[23 CMR 11] On petition of the accused below. CM 377846, reported below at 19 CMR 438. Affirmed.
Major Frank C. Stetson, Allen E. Gramza, Esq., and Alfred E. LaFrance, Esq., argued the cause for Appellant, Accused.
First Lieutenant Arnold I. Burns argued the cause for Appellee, United States. With him on the brief was Lieutenant Colonel Thomas J. Newton.
Opinion of the Court
HOMER FERGUSON, Judge: The accused Army officer was tried by general court-martial for three specifications alleging violations of Article of War 95, 10 USC § 1567 (1946 ed) (Charge I), two specifications reciting similar acts-allegedly violative of Article of War 96, 10 USC § 1568 (1946 ed) (Charge II), one specification of violating Article 133, Uniform Code of Military Justice, 10 USC § 933 (Charge III), and an identical specification purportedly violating Article 134, Uniform Code of Military Justice, 10 USC § 934 (Charge IV). He pleaded not guilty to all charges and specifications but was convicted with certain exceptions and substitutions of specification 3 of Charge I, specification 2 of Charge II, and the specifications and Charges III and IV. The accused was sentenced to total forfeitures, and to be dismissed from the service. After modifications of the findings, the convening authority approved the findings and sentence. An Army board of review, exercising its fact-finding powers, disapproved the findings of guilty of Charges III and IV and, after excepting an allegation from the identical specifications laid under Articles of War 95 and 96, supra, affirmed the findings of guilty and the sentence. In order to more clearly understand the case, the now remaining allegations in the two identical specifications of which the accused now stands convicted state as follows:
That the accused, "then Major and held as a prisoner of war by the enemy, did at or in the vicinity of Pyongyang, North Korea, between 1 February 1951 and 30 May 1951, willfully, unlawfully, and knowingly, collaborate, communicate, and hold intercourse directly with the enemy by joining with, participating in, and leading discussion groups and classes reflecting views and opinions that the United Nations and United States were illegal aggressors in the [23 CMR 12] Korean conflict, . . .[1] and by participating in the preparation and making communist propaganda recordings designed to promote disloyalty and disaffection among United States troops, by praising the enemy and attacking the war aims of the United States, which recordings were later broadcasted in English over the Pyongyang radio, to wit: a statement which was broadcasted on or about 13 April 1951, stating in effect that the communists were treating prisoners of war in accordance with the principles' of humanity and democracy, and that the United States made a grave error in interferring [sic] in Korean internal affairs and should leave at once; an appeal to the 'Five Great Powers' (USSR, Peoples Republic of China, United Kingdom, United States, and France) broadcasted on or about 24 April 1951, urging them to sign a peace pact, and urging that anyone of the powers which refused to attend conferences for that purpose be considered a government with aggressive intentions; an appeal to President Truman and General McArthur [sic] broadcasted on or about 24 April 1951, urging them to withdraw United Nations forces immediately from Korea; a surrender appeal broadcasted on or about 27 April 1951, inviting United Nations Troops to surrender and promising kind treatment by the communists; and a round-table conference or panel of five prisoners of war broad casted on or about 4 May 1951,urging support for the Communist sponsored Second World Peace Congress, in which he served as moderator; thereby giving aid and comfort to the enemy."
This Court granted the accused's petition for review, setting forth in pertinent part the following issues:
1. Whether the evidence is sufficient to support the findings of guilt.
2. Whether the law officer erred by instructing the court that in order to excuse a criminal act on ground of coercion, compulsion, or necessity, one must have acted upon a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm.
3. Whether the law officer erred by refusing to give the defense requested instructions on partial mental responsibility.
4. Whether the law officer erred by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life.
5. Whether the law officer erred by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a.
6. Whether employment by the accuser and the convening authority of pleadings designated by the accused as embodying a "shot gun" technique prejudiced the accused.
The record before us in this case is voluminous and the two specifications remaining for consideration recite a course of conduct which permeates the entire trial record. Therefore a detailed statement of the facts will be necessary. There is, however, little dispute between the parties as to what happened. Basically the issue boils down not so much as to what the accused did or did not do, but rather to the justifications for his actions. As stated in the defense appellate brief, "the issues with which we are here concerned are not the acts of the accused but whether the affirmative defenses of these acts were rebutted by the prosecution evidence."
The accused was captured by the Chinese Communists near the Yalu River in the northern reaches of Korea. After his capture he was marched to different locations and ended up being interned in the Valley Camp for about two months and for a month at a camp near Pyoktong. At the Valley Camp an English-speaking North Korean officer, whom we will hereafter refer to as Colonel Kim or Kim, informed the accused that arrangements were being [23 CMR 13] made to enable the prisoners to broadcast radio messages informing their families of their whereabouts. On January 29, 1951, Colonel Kim notified the accused, Lieutenant Colonel, then Major, Liles, and Major MacGhee, the three senior American officers in this particular prisoner of war group, that the time had arrived for the broadcast. The day following, these three officers, in company with seventeen other prisoners, departed by truck for Pyongyang. En route, the party stopped at the badly damaged village of Tackchon. The populace was hostile and evinced a threatening attitude toward the prisoners. A People's Court or Town Meeting was called, attended by about eighty-five Korean civilians. Questions were asked by the villagers as to why the Americans had come to Korea. According to a number of witnesses at the trial, most of the questions were answered by the accused and Colonel Liles through Colonel Kim, who acted as interpreter. Captain Galing testified that the accused stated that South Korea was the aggressor; that the war was propagated at the instigation of the imperialistic war mongers of Wall Street; and that President Truman and General MacArthur were the tools of the Wall Street conspiracy. Major MacGhee could not recall the accused specifically answering any questions; however he did remember that the answers given were to the effect that the United States was the aggressor in Korea; that its forces had no business there, and that the war and slaughter should be ended. The accused admitted that in order to placate Kim and the hostile and threatening crowd, he might have used some "party line" phrases.
Upon arrival at Pyongyang on February 2, 1951, the accused was elected compound leader. Not only was he responsible for the discipline and organization of the prisoners but he was also the link between the prisoners and Colonel Kim. He transmitted the captors' orders to the prisoners of war, and, conversely, the complaints and requests of the group to their captors. The accused held the position of group leader until June 1, 1951, at which time Captain Allen succeeded him.
After arrival at Pyongyang, Kim informed the prisoners that they were to prepare radio scripts describing their capture and Korean experiences. The accused testified that up to this time his idea had been only to let his wife know he was alive. To that end the accused submitted a short script. This was returned and he was informed by Kim that his broadcast time had been lengthened to fifteen minutes. The script was written, rewritten and revised some twenty or thirty times until finally broadcast. According to the accused he resisted the propaganda directed against President Truman along with demands that only United Nations troops be withdrawn from Korea. He testified that he succeeded in getting by with comments about the Roosevelt administration and a statement that all foreign armies—which of course included the Chinese—be withdrawn from Korea. Also included in the broadcast were statements that the prisoners were being treated according to the principles of democracy and humanity, and that the United States erred when it interfered in the internal affairs of Korea.
The accused testified that after the broadcast, Kim informed him that he was dissatisfied with the cooperation he had been receiving from the prisoners. They were insincere and, apparently to educate them, he was going to commence round-table discussions. The accused objected, but he was forced to pick four other prisoners to participate in a panel discussion, of which he was to act as moderator. Subsequently a month was spent in preparation of the script, after which time the panel discussion recording was made. The subject matter was the "Second World Peace Congress." The accused testified that Kim had inserted in the script as broadcast a number of his own Communist line phrases. A member of the panel, Lieutenant Wilson, testified that included among the points discussed were reduction of armaments and the outlawing of mass destruction weapons.
While the round-table script was being prepared, Kim read several "appeals" to the prisoners. The substance of these appeals is related in the specifi [23 CMR 14] cations. In brief, they were for a Five Great Powers Peace Pact; for President Truman and General MacArthur to withdraw United Nations forces from Korea; and for the United Nations troops to lay down their arms and surrender, being assured of kind treatment by the Communists. Each appeal was reduced to writing on a separate sheet of paper. They were laid on a table and a blank sheet for signature was placed underneath. The accused testified that he wrote his name on two of the blank sheets of paper. However, blank sheets of paper, or not, he pointed out that it made little difference whether the prisoners did or did not sign the appeals, for the Communists had already obtained the prisoners' signatures and would simply superimpose any signature upon any publication or article they desired.
Toward the end of April 1951, the prisoners were taken to a Korean house, which had electricity, where the roundtable discussion and the appeals were to be recorded. After the panel discussion was recorded, the appeals were read into the microphone. When an appeal was read, each prisoner by order of rank trooped to the front of the room and "voice signed" his name, rank and serial number. The accused admitted voice signing the Five Great Powers Peace Conference Appeal. However, he and the other prisoners objected to signing a demand to President Truman and General MacArthur to withdraw United Nations troops from Korea. The prisoners finally prevailed in that the word "demand" was changed to "appeal." The accused then voice signed it. In addition he admitted voice signing the surrender appeal. After the accused and Colonel Liles had voice signed the latter appeal, dissension began to develop among the prisoners in the back of the room. This dissension grew into outright refusal to sign this appeal. The objections became so vehement that Kim thereafter abandoned any attempt to secure voice signatures to the surrender appeal.
To keep the picture in focus, it is advisable at this point to drop back and pick up the coercive circumstances leading up to the accused's surrender, and his participation in the propaganda broadcasts. The accused testified that just before his capture, while firing upon the enemy, he was rendered unconscious by a shell blast. The blast resulted in approximately fifteen superficial wounds in his back and legs. His first recollection after the blast was being kicked in the head by a Chinese soldier. He struggled to his feet and noticed a wounded fellow officer who had been his assistant as an advisor to a South Korean regiment. While prevented at bayonet point from rendering aid to this officer, another Communist soldier walked over to where he lay and killed him with a burp gun. The accused was marched south about seventy miles. He was questioned on numerous occasions and during one of the interrogations, when he continued to refuse to give more than his name, rank and serial number, he was physically abused by being slapped, knocked down, kicked, and pushed around on the floor. For about ten days he was given practically no food and water. He was subsequently taken to the Valley Camp. By this time, due to wounds, mistreatment, malnutrition and debilitation, he had lost approximately forty pounds. Conditions at the Valley Camp—not only according to the accused, but other prisoners as well—were extremely bad. Few of the captured soldiers had other than summer clothing. The accused in company with twelve other prisoners, occupied one small room. There was not enough space for all the prisoners to lie down at night and stretch out. Two cups of millet per day constituted the daily sustenance. Approximately sixty per cent of the prisoners were unable to walk and the mortality rate was so high that the dead were not buried for days, merely stacked up like cordwood outside in the freezing weather. The accused made numerous demands upon his captors for more food and for other necessities of life, such as medical attention and medical supplies for the sick and wounded. He felt that he was able to restore some type of discipline, organization, and the will to live among the prisoners. Toward the end of 1950 the prisoners were marched to another location. The accused testified that due [23 CMR 15] to his intercessions, the sick and wounded were carried in ox carts, instead of being marched on foot, which would have resulted in death to a sizable number. The accused was himself so weak that he was unable to carry his own knapsack. Conditions at the new camp were as bad, if not worse than those at the original location. The accused continued his efforts to obtain better treatment from his captors.
After the twenty prisoners arrived at Pyongyang, the food and living conditions markedly improved.
Before making the broadcasts, the accused testified that he was constantly harangued and pressured by Colonel Kim. According to Kim, there were two kinds of people: those for peace and those against peace. Those against peace were war criminals and not fit to live. If the accused fitted into that category he would be put in a "hole" and would never come out. But if he were for peace, he was a friend. His actions would indicate whether he was for or against peace. When the accused initially refused to do the acts to prove his "friendliness," he was asked if he wanted to return to the previous camp up north. The accused replied in the affirmative and Kim informed him that he could start walking the 150-200 mile distance. It was midwinter, the accused's shoes had been stolen, and he was wearing rags wrapped around is feet. These factors, plus his greatly weakened physical condition, led the accused to the conclusion that he would never reach the north camp alive. Thereafter, on each occasion when the accused objected to Kim's propaganda efforts, he was threatened with the walk north.
Colonel Liles testified that when Kim insisted on the manuscripts being prepared, the accused informed him that the prisoners could not comply unless more food was forthcoming. Kim, promised to try to accomplish that objective, but subsequently returned and said he was unable to secure additional rations. In the meanwhile nothing more had been done on the manuscripts. Kim was angry and declared that any man who refused to make a radio recording would march back to Pyoktong on foot. After this threat, the writing commenced. Major Allen also testified to numerous threats to march the prisoners north to the Yalu River. In his opinion, none could have survived the march.
The accused ascribed as further reasons for lending support to the roundtable panel and the appeals, the fact that due to his weakened physical condition and the constant psychological hammering of Colonel Kim, he was in a state of complete confusion, frustration, and hopelessness. Morale among the prisoners had reached bottom. The food was barely sufficient to sustain life, and during the arguments over the appeals Kim even threatened to cut that off.
Also Kim's subsequent threat of the caves made to the accused and the other prisoners of war unless they cooperated undoubtedly affected prisoner cooperation. After completion of the accused's broadcast at Pyongyang, the prisoners were moved to a location near the caves. The latter were recesses in the hillside. They were wet and muddy with little or no heating facilities. The prisoners lived in the muck and mire like animals. Primarily the caves were used for South Korean prisoners, but also some American and British soldiers were incarcerated there. Also a great many transient, sick and wounded, and in some instances recalcitrant prisoners, resided in the caves. The mortality rate in the indescribable filth and privation of these holes in the ground was extremely high. The prisoners felt that a sentence to the caves was almost tantamount to a sentence of death. Of the prisoner group with whom the accused was associated at least eight were punished by being sent to the caves. Fortunately these eight survived, except that one officer died shortly after being taken out of the caves because of his weakened condition. Almost all who testified were of the opinion that had their confinement in the caves lasted much longer, they would have died. Major MacGhee, one of the officers sentenced to the caves, testified that all twenty-three Ameri [23 CMR 16] cans already there when he arrived died.
The accused testified that when he objected to a round-table discussion, Kim took him to see fourteen recently captured young American enlisted men huddled together in the filth of a small cave. They were sick, dirty, had no latrine, little water, and no hope. The accused tried to get them moved to his camp, and they pleaded with him to try to accomplish this objective. Kim kept the accused "dangling" with vague promises. According to the accused, whenever he balked on the propaganda, Kim reminded him of the Americans in the caves and again took him to see them. Each time marked fewer numbers. On the last trip only one American remained. He was lying in the mud, too sick to rise, and he informed the accused that all the rest had died, and that he too was dying.
Discussion groups were formed and classes were held in the prisoner of war camp. Initially, Mr. and Mrs. Suh came over in the evenings and discussed political matters. These discussions and subsequent developments will be related through the witnesses.
According to Captain Galing, after the twenty prisoners were taken to Pyongyang, Kim or his secretary, Suh, came to their rooms on a number of occasions and one or two hour discussions would be held with respect to who started, and who was responsible for the Korean war. Magazine articles were sometimes read, followed by questions. The accused responded to these questions and some of his statements were to the effect that South Korea was the aggressor; that Americans had no business interfering in a Korean civil war, and that Wall Street was backing the war for financial gain.
Major MacGhee testified that study classes were supervised by Suh or Colonel Kim. These classes were held in the evenings after Communist propaganda for study had been given to the accused for distribution to the prisoners during the day. During the study sessions one of the prisoners would be called upon to read a portion of the material and thereafter the group would discuss it. MacGhee recalled that on one such occasion, the accused made remarks with respect to business in America, which highlighted the decadence of capitalism. Quite often the Korean who had commenced the class would leave. When that happened, normally the accused or Colonel Liles led the discussion.
Lieutenant Wilson testified that he remembered the general tenor of one of the articles discussed was that the "people" were speaking out for peace, disarmament, and the outlawing of weapons of mass destruction. Wilson was aware of the fact that the accused participated in a number of the discussions, but he had no present recollection of what he said.
Master Sergeant Christie recalled that he remembered hearing the accused and other prisoners of war discuss the eventual collapse of the monopoly controlled American economy. On one occasion the accused used as an example Argentina, pointing out that with a lower standard of living, it could produce wheat on the world market cheaper than the United States.
When the twenty prisoners, together with another group of fifteen prisoners who had joined them two weeks earlier, were moved to the new location near the caves—sometime in March 1951—two-hour indoctrination classes were held during the day followed by two-hour evening discussion periods. Sergeant Gardiner testified that the accused appeared to be in charge of these evening sessions. He could not recall that anything anti-American was stated by the accused. A number of witnesses testified that when the Korean monitors left the room, the accused would slant his discussion favorably to the United States.
John Narvin, formerly private first class, recalled being posted by the accused to watch for the Koreans during one of the discussions. Colonel Liles testified that when the captors were absent the accused attempted to point out flaws in the Communist system.
An article appearing in a North Korean magazine bore the accused's name and picture. It stated that United States forces should leave Korea. The [23 CMR 17] accused testified that although he did not author the article it appeared to contain language similar to his first broadcast. He pointed out that it was an easy matter for the Communists to obtain one's picture and signature on any publication they desired. They frequently took pictures of the prisoners and had everyone's signature.
After June 1st, 1951, Captain Allen was elected group leader and the accused was made librarian. He was responsible for a considerable quantity of Communist propaganda. He did not let the prisoners use the material for toilet paper because it was inventoried and he was held responsible for the missing items.
The accused's policy with respect to cooperation with the enemy by the other prisoners was predicated upon his belief that every prisoner had to be guided by his own conscience. The record is clear that Fleming did make statements to that effect to a number of the prisoners. But there is also testimony in the record that he urged some of the prisoners to complete propaganda writings and not hold back from involvement in the political activities, or else Kim might make some changes. The accused's idea of his policy as to the propaganda activities can best be described by his own testimony. He testified:
"A. I know in my own mind that if I had taken the policy of saying to these men: 'Resist them; everybody resist them,’ that information would have gone to headquarters so fast that they would have known it about as fast as everybody else. And I had a pretty good idea of what would happen to me.
"Secondly, I then would be the individual responsible for any beatings, tortures or deaths that may occur to anyone of the men there.
"Another thing was that a policy like that was absolutely not practical because you have to take human nature into this thing. They wouldn't have done it.
"So it had to be one where the individual himself, in the final analysis, was going to be the one that said: ‘I stop here regardless of what happens.'
"And I am firmly convinced in my own mind that the policy was right. It proved itself right when the flare-up came during the recordings of the so-called appeals; when some of these people went to the end and stopped, and that was it.
"That is the only policy I could see that would have any practicability at all and be workable.
"By doing that we could resist in every way that we could think of as individuals. I resisted in every way that I could, and I know that every other individual resisted in every way that he could, and the resistance was different as the situations developed. Some of it was blunt resistance; some of it was passive; some of it took the turn, as I have mentioned so many times, of delay, double talk, sabotage, not understanding, everything we could think of to hold off.
. . . . .
"A. I felt this way, and this was certainly nothing new at Camp Twelve. It had started long before I had anything to do with Camp Twelve. The most futile thing in the world was a dead prisoner of war in North Korea. And I had determined a long time before this that I was going to do everything in my power to keep those people alive. By doing so I was, in some small way, defeating what the Communists were trying to do.
"As I said before, the best thing that could happen to the Communists was to have us all die. And, secondly, in a situation like that you have many thoughts of home. I thought, and everyone else thought-not only thoughts of just yourself getting home, but the thoughts of those people at home that are waiting for you to get home, the mothers, and the wives, and the fathers. And the way I feel about it personally is, and I think I am right, that for these men that came hack that may have done things wrong over there, it means more to their mothers and their families than a little bit of Com [23 CMR 18] munist indoctrination that actually may have more Communist heroes than anything else.
"A. I feel that there are innumerable officers and enlisted men that have had a long-time experience as prisoners of the Communist armies, that can give invaluable information to not only the American military establishment as to what can be done to better the situation if and when we fight the Communists again, for those that may be captured in the future; lessons that were learned by our mistakes, and by the suffering of the men that were over there. But also to show the American people our side of what Communism really is. And, believe me, the American people need to be shown.”
There is evidence in the record that by virtue of the accused's efforts more favorable conditions were obtained for the prisoners. A kitchen was set up with some degree of cleanliness, which helped reduce dysentery which was fatal to so many prisoners in Korea. Some semblance of discipline was restored and the prisoners were forced to exercise and follow a more or less military routine. They were not allowed, as Fleming testified, to merely lie down, give up and die. On at least one occasion, the accused obtained hospitalization for two prisoners which possibly saved their lives. Also he was able to secure a certain amount of medical attention and supplies. He pushed some of his demands so forcefully that, according to his testimony, on at least two occasions Colonel Kim flew into a ranting rage, pulled out his pistol, and threatened to kill him. Other witnesses testified that they recalled one instance when the accused was forced to get up before the prisoner group and condemn himself for his persistent behavior.
To counterbalance the scale, there is evidence that a number of prisoners reached a point from which they refused to budge with regard to Communist propaganda. These prisoners unquestionably knew that their refusal would mean banishment to the caves.
They nevertheless threw back the challenge to their Communist captors and refused to go any further. One British soldier, Sergeant O'Hara, refused from the inception to have anything to do with the Communist propaganda. A devoutly religious man, he was apparently able to withstand the Communist pressure. He eventually ended up in the caves but survived the war.
Evidence was introduced of the accused's outstanding military record.
There was psychiatric testimony that the accused was able at the time of the commission of the offenses to distinguish right from wrong and to adhere to the right. However, both psychiatrists—one for the accused and one for the Government—declared that under the circumstances described, the extreme stress and privation impaired the accused's ability to adhere to the right.
The assignments of error in this case will be taken up seriatim:
I
Is the evidence sufficient to support the findings of guilty?
As previously stated, there is actually little dispute on the facts. For all practical purposes the accused admits that he committed the acts alleged but insists that under the circumstances he was justified in so doing. According to the accused the acts were committed (1) to protect the lives and well-being of the fellow-prisoners of war; (2) under coercion and duress; and (3) while incapable of adhering to the right. These defenses will be dealt with chronologically.
There is considerable evidence in the record indicating that the accused was motivated—in part at least—by the well-being of his fellow-prisoners of war. There is other evidence, however, which casts a doubt as to the accused's primary motivation. Major MacGhee testified that when he refused to make a recording, Fleming informed him that he, Fleming, would have to report to Colonel Kim that MacGhee had double-crossed him. Within a short space of time thereafter MacGhee was transferred to the caves. According to Ser [23 CMR 19] geant Gardiner, the accused informed him that if he didn't straighten out he would be "shipped to the caves." Lieutenant Van Orman recalled that the accused told him that Kim's "got his eye on some of the people laying down around here and trying to get by and not get involved in the political program." And "Kim is getting sick of people hanging around here who are not producing, and is thinking about lowering the strength of the camp." Van Orman took the last statement to mean that if he didn't start cooperating, he would be transferred to the caves. But under the circumstances of this case, as it pertains to the issue now under discussion, we will assume that the motives of the accused were to "protect the lives and well-being of his fellow prisoners of war." However, good motives are not a defense to a crime.
In United States v Batchelor, 7 USCMA 354, 22 CMR 144, the Court had before it the defense contention that under the law officer's instructions the members of the court-martial could convict the accused if they were satisfied that he had voluntarily and knowingly communicated with the enemy without proper authority "even though the accused believed his acts contributed to world peace and the best interests of his fellow-prisoners and his country." The Court concluded that "the instruction is a good statement as to what the law is in this field," adding:
". . . The question then becomes one of whether what might be a laudable motive—in entirely different circumstances—will serve to exculpate a defendant charged with improper communication with the enemy.
"In Chandler v United States, 171 F2d 921 (CA 1st Cir) (1948), the accused, an American citizen, was charged with treason. It was argued that treason is a crime dependent upon the actor's motives, and that the jury should have been told that the defendant could not be found to have had an 'intent to betray' if they believed that he acted from patriotic motives upon a firm conviction that what he did was for the best interests of the United States. The Circuit Court rejected this argument, and we believe its language is appropriate here. Chief Judge Magruder, the organ for the court, disposed of the matter as follows:
‘. . . if appellant's argument in this connection were sound, it would of course be applicable whatever might be the character of the overt acts of aid and comfort to the enemy. Suppose Chandler had obtained advance information of the Anglo-American plans for the invasion of North Africa and had passed the information on to the enemy. Would a treason prosecution fail if he could convince the jury that, in his fanatical and perhaps misguided way, he sincerely believed his country was on the wrong side of the war; that he sincerely believed his country's ultimate good would be served by an early withdrawal from the war; that he sincerely believed that the best, perhaps the only, way to accomplish this good end was to bring it about that the first major military operation of the United States should be a resounding fiasco, thereby stimulating such a revulsion among the American people that the perfidious administration would be forced to negotiate a peace? It is hardly necessary to state the answer to that question.
'When war breaks out, a citizen's obligation of allegiance puts definite limits upon his freedom to act on his private judgment. If he trafficks with enemy agents, knowing them to be such, and being aware of their hostile mission intentionally gives them aid in steps essential to the execution of that mission, he has adhered to the enemies of his country, giving them aid and comfort within our definition of treason. He is guilty of treason, whatever his motive.'''
In United States v Schniederman, 106 F Supp 906, 930 (S .D. Calif) (1952), the Federal District Court had before it, allegedly, violations of the Smith Act; i.e., teaching and advocating the [23 CMR 20] overthrow of the United States Government by force and violence. With respect to motive, the court made the following observation:
"Intent and motive should never be confused. Motive is that which prompts a person to act. Intent refers only to the state of mind with which the act is done.
"Personal advancement and financial gain are two well-recognized motives for much of human conduct. These laudable motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.
"Good motive alone is never a defense where the act done is a crime. If a person intentionally does an act which the law denounces as a crime, motive is immaterial except insofar as evidence of motive may aid determination of the issue as to intent." [Emphasis supplied.]
The evidence in the instant case is ample to support the conclusion that the accused intended to do the acts charged. Since, as we will hereafter discuss, the offenses here require no specific intent, the accused's motives are immaterial, except, of course, as they relate to the determination of an appropriate sentence.
The accused next argues that the evidence is insufficient because he was excused from the legal consequences of his actions by virtue of duress and coercion. In substance, the law officer instructed the court that in order to convict it had to find beyond a reasonable doubt that the accused did not act under a well-grounded apprehension of immediate and impending death, or of immediate serious bodily harm. The trial court did not so find. The members of the court had all the facts laid before them. Whether or not they chose to believe Fleming and, if so, to what extent, was a matter solely within their province. They had the right to assess to the witnesses, including the accused, whatever weight they desired, in the light of all the testimony in the case. Being the sole judges of the credibility of the witnesses, they were entitled to accord to the evidence such weight as they considered under all the circumstances of the case it merited under proper instructions. The real issue then is whether the instructions on the claimed defense of duress and coercion were legally correct. This issue is decided in subdivision II hereinafter. Since this Court cannot weigh the facts as to this, for the accused to prevail we would have to find as a matter of law that the accused's actions were committed under a well-grounded apprehension of immediate death or serious bodily harm. Although by civilized standards conditions in the prisoner of war camp were deplorable, we cannot conclude as a matter of law that the threat of duress or coercion was so immediate as to legally justify the accused's acts. Admittedly, lingering in the background at the camp was the threat of the caves. Moreover it appears that the accused was threatened with a 150-200 mile hike back north. At the time of this threat the accused was without shoes and he deduced that he would be unable to successfully accomplish the trip alive. However, assuming this fact to be true, the court-martial did not find that the threat, standing alone, fell within the immediacy contemplated by the law. Perhaps they felt that accused should have determined by refusal what would have then happened; whether and under what conditions the threat would have been carried out. He might have been given shoes. He might have been called upon to make the march in stages that he could have endured. We note that as a matter of fact many threats were made by the Communists which were not carried out. Major MacGhee testified that after several months' captivity, he definitely concluded that his captors would not carry out their threats to the death. He thereafter refused to "cooperate" and although sent to the caves, he survived. Also, the court-martial could have found that daily life in the prisoner camp did not equate to fear of immediate death or great bodily harm. During the accused's tenure as group leader, not a single prisoner of war died. Many people who resided in the caves died; many did not. Of the eight prisoners in Colonel Fleming's group [23 CMR 21] who eventually ended up in the caves, all survived. One, Lieutenant Crockett, died shortly after his release; he had long been seriously ill. At one time he had been hospitalized by his captors. The rigors of prison life eventually exacted their toll and this fine officer—like many others—died. Further, there is evidence in the record which indicates that the accused had already communicated and cooperated with his captors prior to his knowledge of the caves. He testified that he made his initial recording in Pyongyang and then moved to the new location near the caves. Before the move he had not been impressed with Kim's threats to put him into a "hole," and it was not until later that he was aware of the fact that the threat actually referred to the caves. But prior to that time he had made a recording allegedly stating that prisoners were being treated humanely and the United States had made a mistake in interfering in Korea. He had addressed the town meeting in Tackchon, purportedly declaring that the war was being fought at the behest of the Wall Street profiteers. He had also participated in some of the discussion groups. Finally, the fact-finders could have concluded that the prisoners were not—with isolated exceptions—physically abused. A number of witnesses testified that they were not subjected to physical abuse and that they had never noticed marks of physical violence upon the accused.
After a careful study of the facts in this case, we cannot conclude that the court-martial erred as a matter of law in not finding that the threats of duress and coercion fell within the law officer's definition of immediacy, which would excuse the accused's conduct. Stated differently, the court on the evidence of record could have reasonably found that the accused acted without any well-grounded apprehension of immediate death or serious bodily harm.
The accused next maintains that the evidence is insufficient in that his ability to adhere to the right was so impaired or diminished by harassment, deprivation, degradation, or physical impairment as to make it impossible for him to refuse his captor's demands or to adhere to the right with respect to the particular acts charged.
The expert psychiatric testimony adduced by both the prosecution and the defense was to the effect that although the accused was responsible for his acts and could adhere to the right, his ability with respect to the latter was limited or impaired. In this regard this Court has repeatedly approved the test set out in paragraph 120b, Manual for Courts-Martial, United States, 1951, which provides:
". . . A person is not mentally responsible in a criminal sense for an offense unless he was, at the time, so far free from mental defect, disease, or derangement as to be able concerning the particular act charged both to distinguish right from wrong and to adhere to the right. The phrase 'mental defect, disease, or derangement' comprehends those irrational states of mind which are the result of deterioration, destruction, or malfunction of the mental, as distinguished from the moral, faculties. To constitute lack of mental responsibility the impairment must not only be the result of mental defect, disease, or derangement but must also completely deprive the accused of his ability to distinguish right from wrong or to adhere to the rig ht as to the act charged." [Emphasis supplied.]
The law officer in his charge to the court gave this portion of paragraph 120b practically verbatim. There is simply no evidence of record that the accused's ability to distinguish right from wrong or adhere to the right was completely impaired. Evidence that the accused's ability to adhere to the right was impaired is not a good defense. Furthermore, under the facts of this case, the fact-finders were justified in finding that the accused could adhere to the right. The accused testified on two occasions he was so adamant in his stand that Colonel Kim threatened to kill him, and he told Kim to go ahead and pull the trigger. And after he left the Pyongyang area, according to his testimony, he no longer cooperated with [23 CMR 22] his captors and was considered a reactionary. These factors do not indicate even a partial inability to adhere to the right.
II
Did the law officer err by instructing the court that in order to excuse a criminal act on grounds of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate serious bodily harm?
That part of the law officer's instruction on duress and coercion, objected to by the accused, is set forth below:
"However, this doctrine of coercion, compulsion or necessity is hedged about with certain positive rules of law and is recognized only in clear cases. In order to excuse a criminal act on the ground of coercion, compulsion, or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.
"Fear of injury to one's property or of remote bodily harm does not excuse a crime. Moreover, the threat of immediate and impending death or of serious and immediate bodily injury must have continued throughout the entire period of time during which the crime was allegedly committed. If the accused had a reasonable opportunity to avoid committing the crime without such danger, he cannot invoke duress as a defense. In other words, this coercion or compulsion that will excuse a criminal act must be present, immediate and im1Jencling, and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done." [Emphasis supplied.]
During an out-of-court conference, the defense counsel, after objecting to the wording of the law officer's proposed instruction—as above given—offered a substitute:
". . . First of all, with reference to the instruction on coercion and compulsion, we object to the last sentence on page 21, which carries on to page 22, in which the Law Officer proposes to instruct the Court as follows:
"'In order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under a well-grounded apprehension of immediate and impending death or of immediate, serious, bodily harm.'
"We submit that in lieu of the statement just read the following be incorporated in the instruction:
"'Coercion, which will excuse the commission of an act, otherwise criminal, must be immediate and of such nature as to induce a well-grounded apprehension of immediate, imminent, or impending death, or serious bodily injury, and leave no reasonable opportunity to escape the compulsion without committing the act.'
"Now, in this connection it is our position that in light of the testimony in this case, notwithstanding the Manual instruction on the subject, it would be improper to instruct a jury that one must have acted under a well-grounded apprehension of immediate and impending death.
"The fear of mediate or a delayed, or a wasting death from starvation, deprivation or other like conditions, can just as well spell coercion and compulsion as the fear of immediate death.
"The instruction that we have requested is substantially taken from the case of R. I. Recreational Center vs Aetna Casualty & Surety Company, 172 [sic, 177J Fed. 2d, 603, and cited in 12 ALR 2d, at page 230, and in 14 CMR, at Page 350 [sic 356].” [Emphasis supplied.]
A similar instruction was before this Court in United States v Olson, 7 USCMA 460, 22 CMR 250. In that case Judge Latimer, writing for the Court, upheld the instruction as being in accordance with the Federal holdings.
In their brief, counsel for the accused admit that the law officer's instruction on duress and coercion is a correct statement of the law when prof [23 CMR 23] fered as a defense to a routine crime committed in a civilized society. However, in a case such as this the defense argues that "to attempt to apply such law to the situation overwhelmingly shown by this record of trial, and by history to have existed in the prisoner of war camps, where every breath was drawn under constant pressure by unscrupulous captors, and in the ever present shadow of death, is to ignore reality to the grave prejudice of the accused." To buttress his position, the accused cites an 1865 opinion of the Judge Advocate General of the Army to the effect that the severe rule of duress, as laid down in Respublica v McCarty, 2 Dallas 86 (US 1781) (which held that the only excuse for joining the King's forces was the fear of immediate death), could not be properly applied in all its strictness to cases of Union prisoners—during the war between the States—who were held in Confederate prisons and allegedly subjected to "authenticated cruelties" and were thereby "induced" to join the Southern forces. This opinion, however, is not the law and merely expounds a policy pertinent to those times, that certain recaptured Union prisoners should not be court-martialed. On the other hand, we have ample Federal law on this precise subject which is as the law officer instructed.
In Iva Ikuko Toguri D'Aquino v United States, 192 F2d 338 (CA9thCir) (1951) the defendant was convicted of treason, which arose from radio broadcasts from Japan (Tokyo Rose) during World War II. The defendant raised the defense of duress and coercion. The Court of Appeals held that:
". . . The Court instructed the jury at length upon the defense that the criminal act was not committed voluntarily but was the result of coercion, compulsion or necessity. The instruction included the statement that 'in order to excuse a criminal act on the ground of coercion, compulsion or necessity, one must have acted under the apprehension of immediate and impending death or of serious and immediate bodily harm. Fear of injury to one's property or remote bodily harm do not excuse an offense.' It will be noted that the court's instruction was almost identical to that approved in Gillars v. United States, supra, 182 F. 2d at page 976, note 14. The charge was a correct statement of the law upon this subject. United States v. Vigol, 2 Dall 346, 2 U.S. 346, 1 L. Ed. 409; Respublica v. McCarty, 2 Dall 86, 2 U.S. 86, 1 L. Ed. 300; Shannon v. United States, 10 Cir., 76 F. 2d 490; R. I. Recreation Center v. Aetna Casualty & Surety Co., 1 Cir., 177 F. 2d 603, 12 A.L.R. 2d 230. [Emphasis supplied.]
"Appellant seriously contends that however correct the instruction might be in an ordinary case where a person accused of crime committed in his own country claims to have been coerced by an individual, the instruction of the court was in error particularly in its requirement of apprehension of immediate and impending death, or of immediate bodily harm, in a case where the accused person was in an enemy country, unable. To get protection from the United States and where the compulsion is on the part of the enemy government itself.
“. . . We know of no rule that would permit one who is under the protection of an enemy to claim immunity from prosecution for treason merely by setting up a claim of mental fear of possible future action on the part of the enemy. We think that the citizen owing allegiance to the United States must manifest a determination to resist commands and orders until such time as he is faced with the alternative of immediate injury or death. Were any other rule to be applied, traitors in the enemy country would by that fact alone be shielded from any requirement of resistance. The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch."
In Gillars v United States, 182 F2d 962 (CA DC Cir) (1950), the defendant, Mildred Gillars, was convicted of treason for taking part in psychological warfare against the United States by [23 CMR 24] broadcasting radio programs from Germany during World War II (a German Tokyo Rose). The defense of duress and coercion was raised and the jury instructed as set forth in Footnote 14:
"'Moreover, the force and fear, in order to constitute a defense in a case of treason, must continue during all the time of such service with the enemy, and one who makes force his defense must show that he left the service as soon as he could. In other words, ladies and gentlemen of the jury, this coercion or compulsion that will excuse a criminal act must be present, immediate and impending, and of such a nature as to induce a well grounded apprehension of death or serious bodily injury if the act is not done.
"'* * * Nor is it sufficient that the defendant thought she might be sent to a concentration camp, if you so find, nor are threats to other persons sufficient. * * *'" [Emphasis supplied.]
The court concluded "The instructions which were granted were indeed all that the evidence warranted." We must necessarily note that both the civil and the military have repeatedly affirmed this same test over a period of many years. See Shannon v United States, 76 F2d 490 (CA10th Cir) (1935); United States v Floyd, 18 CMR 362; Winthrop's Military Law and Precedents, 2d ed, 1920 Reprint, pages 297, 635; Snedeker, "Military Justice under the Uniform Code," § 2405 (b) (1) (1953); Davis, "A Treatise on Military Law of the United States," 3d ed, page 138.
In the present case the board of review had this to say about the defense of coercion and duress (United States v Fleming [CM 377846], 19 CMR 438, 450):
"We are not unmindful of the hardships or the pressures to which the accused and his fellow prisoners were subjected prior to the time of his collaboration with the enemy. Obviously living conditions were not good, the diet was poor, and threats were made of worse things to come if cooperation was not forthcoming. It could hardly be argued that the accused was not under great pressure. However, it is important to note that,: at the times accused committed the acts alleged, the food ration, though scarcely abundant, was considerably improved over the ration in Camp Five. Furthermore, we cannot overlook the fact that accused cooperated with his captors upon the mere assertion of the threats. Thus, when first threatened with being forced to walk north to Pyoktong, the accused immediately proceeded to write and record his propaganda broadcast, without attempting to ascertain that his captors actually meant to carry out their threat. These circumstances preclude a finding that accused's fears were well grounded. But even assuming that accused was justified in believing that his captors would execute their threat, the defense of duress was not established, for the threat was not of immediate and impending death or serious bodily harm. It was not at all certain at the time the threat was made that walking north to Pyoktong would cause death at all, much less immediately. By way of comparison, if, for example, accused's captors had actually made him start on foot for Camp Five, and it then became evident that he could not survive the march, a valid defense of duress might have arisen for capitulation at that point. But that is not this case. Here the danger of death was problematical and remote. Even more damaging to the cause of the accused was the instance of the 'surrender appeal.' Accused 'voice-signed' this monstrous item of propaganda apparently upon the threat of having the food rations cut off or curtailed, and of being sent to the 'Caves'. The junior officers and enlisted men present refused en masse, although they were subject to substantially the same pressures as accused. Despite the example of capitulation set by the accused, a field grade officer and their leader, they at least were willing to determine whether their captors would send them to the Caves or cut off the food if they refused to collaborate. [23 CMR 25] Accused was not. As the court stated in D'Aquino v. United States, supra, 'The person claiming the defense of coercion and duress must be a person whose resistance has brought him to the last ditch' (182 F. 2d at 359 ). Accused's resistance had not 'brought him to the last ditch'; the danger of death or great bodily harm was not immediate. Accused can not now avail himself of the defense of duress."
The final disposition here as to duress and coercion must be determined by the law which is without exception that the defense is only available under a reasonably grounded fear of immediate death or great bodily harm. The fact-finders found such not to be the fact in this case.
III
Did the law officer err by refusing to give the defense requested instructions on insanity?
The defense requested, during an out-of-court hearing, the following instruction as to the effect of physical impairment on the accused's ability to adhere to the right and resist his captors:
"In connection with your consideration of the elements of coercion and duress about which I have just instructed you, you are further instructed that you may take into consideration, in your deliberations, the elements of harassment, deprivation, degradation, and physical impairment, if any, as revealed by all of the evidence in this case. If, in your determination of the accused's ability to adhere to the right, you find, from the testimony that has been offered in this case, that the ability of the accused so to do was so impaired or diminished by harassment, deprivation, degradation, or physical impairment, so as to make it impossible for the accused to refuse to comply with the demands of his captors or to adhere to the right, then, you must find him not guilty of those charges in which these elements are involved." [Emphasis supplied.]
We have already noted that the instructions given by the law officer on duress and coercion were correct. The above requested instruction appears to be an effort to combine elements of the duress, coercion, and insanity defenses. We further observe that the law officer thereafter instructed the court concerning the approved test with respect to the ability to adhere to the right. Without ruling whether such an instruction as requested by the defense here would ever be required, suffice it to say that the defensive theories of duress and coercion were adequately covered by the law officer. The requested instruction would have changed the test of insanity as approved by this Court and set forth in paragraph 120b of the Manual for Courts-Martial, supra (and as given by the law officer) which declares that lack of mental responsibility must result from mental defect, disease, or derangement. Under the instruction as requested, the accused could have been acquitted by reason of mental irresponsibility even though he was not suffering from a disease of the mind. In addition, the requested instruction would have permitted acquittal of the accused by a showing that his ability to adhere to the right had only been impaired or diminished by factors other than mental sickness whereas the law as recognized by this Court requires complete deprivation of the ability to adhere to the right.
The only evidence of record touching upon mental capacity was the testimony of Drs. Arnold and Baker, psychiatrists, who testified that the accused was not suffering from mental defect, disease or derangement of the mind, but that his ability to adhere to the right was possibly impaired or diminished due to the stresses and strains of prison life and nutritional deficiencies. Defense witness, Dr. Baker, testified that the accused was not suffering from a psychiatric or psychoneurotic disorder. It is quite apparent, therefore, that the accused was not suffering from the type of physical infirmity recited by the Manual and approved by this Court.
One further facet of the accused's [23 CMR 26] argument as to insanity should be commented upon. The accused attempts to bring himself within the rule of United States v Kunak, 5 USCMA 346, 17 CMR 346, and United States v Dunnahoe, 6 USCMA 745, 21 CMR 67, wherein it was held that partial mental irresponsibility arising from a mental impairment falling short of legal insanity was a defense to an offense requiring a specific criminal intent. The difficulty with this argument, however, is that the accused does not stand convicted of offenses requiring a specific criminal intent. The charges here are similar to the offense defined by Article of War 81, 10 USC § 1553 (1946 ed). The argument was raised in United States v Batchelor, supra, that Article 104 (the aiding the enemy Article of the Uniform Code of Military Justice which replaces Article of War 81) required a specific criminal intent. The Court held that the offense of knowingly communicating, corresponding, or holding intercourse with the enemy, in violation of Article 104, does not require a specific intent; that an instruction requiring only a finding of general criminal intent and a finding of words importing criminality is sufficient. We hold that the same reasoning should apply to the offenses now before this Court. See also paragraph 183d, Manual for Courts-Martial, supra, and paragraph 169c, Manual for Courts-Martial, U. S. Army, 1949.
Also throughout the lengthy record of this trial, it was never claimed by the accused or defense witnesses that he did not know he was communicating with the enemy. The accused testified at considerable length that he not only was aware that he was communicating with the enemy, but he resisted their efforts by delay, technicalities, and general sabotage. He recalled with vigor—and we believe him—that he never for an instant believed any of the "malarky" they were trying to get across to the prisoners. Absent is the claim that the accused was acting under any type of mental illness which deprived him of the ability to form a criminal intent.
IV
Did the law officer err by instructing the court that the punishment for the offenses of which the accused was convicted included confinement at hard labor for life?
According to the Manual for Courts-Martial, U. S. Army, 1949, the sentence for a conviction under the Article of War 95 was dismissal, and for Article 96 as a court-martial might direct. Paragraph 117c of the 1949 Manual, supra, provides that:
". . . If an offense not listed in the table [Table of Maximum Punishments] is included in an offense which is listed and is also closely related to some other listed offense, the lesser punishment prescribed for either the included or closely related offense will prevail as the maximum limit of punishment."
So if no punishment is listed in the Table of Maximum Punishments with respect to an offense, we must examine the Table for a closely related offense. See United States v Stewart, 2 USCMA 321, 8 CMR 121; United States v Blevens, 5 USCMA 480, 8 CMR 104. The only similar offense to the instant one is Article of War 81 which provided that any person who, without proper authority, "knowingly holds correspondence with or gives intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as a court-martial or military commission may direct." However the Table does not list a maximum punishment for that offense. We are therefore referred back to the Article itself. Thus it would appear that the law officer did not err by instructing the court that the maximum punishment was life imprisonment.
V
Did the law officer err by admitting into evidence Prosecution Exhibits 3, 5, 3a and 5a? The parties stipulated that Prosecution Exhibits 3 and 5 were magnetic tape recordings of radio broadcasts, purportedly emanating from the Central Broadcasting Station of the Democratic People's Republic of Korea located at Pyongyang, Korea. The broadcasts [23 CMR 27] were intercepted and recorded on the tapes on Okinawa by the United States Foreign Broadcast Information Service. Prior to their introduction into evidence, the records were played during an out-of-court hearing. Several witnesses identified their own and other voices and recognized segments of the recordings as containing appeals to the Five Great Powers, President Truman, and General MacArthur. Sergeant Mares identified the accused's voice and Warrant Officer Coxe believed that one of the voices was similar to the accused. Lieutenant Wilson testified that besides recognizing his own voice, he recognized the voices of the accused and other individuals who participated in the panel discussion. When the court reopened Wilson identified the panel discussion recording. It is quite true that the records were garbled with extraneous noises and obviously the witnesses had difficulty recognizing clearly and distinctly the participants. However, since the source of the broadcasts was admitted and agreed upon by the parties, any difficulty in understanding portions of the broadcast would appear to affect only the weight to be assessed to the exhibits by the fact-finders, not their admissibility.
In United States v Schanerman, 150 F2d 941 (CA3d Cir) (1945), the accused was prosecuted for bribery of a draft board member to obtain a deferment. The court declared:
"No error is found, as charged by appellant, in the refusal of the district court to instruct the jurors to disregard what they had heard when records of conversations between Appellant and Finneran were 'played' in the hearing of the jury during the trial. This type of evidence was admissible upon the authority of Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322 . . . but the mere fact that certain portions of the mechanically recorded conversations were less audible than others did not call for exclusion of what the jurors personally heard from the 'playing' of the records. There would be no more valid reason for exclusion of the mechanically recorded conversations than there would be for excluding competent conversations, overheard in part, by human witnesses."
Besides the garbled nature of the tapes, the accused argues that the broadcasts should also have been excluded because the Communists may have through trickery altered the recordings after they had been made. This possibility would also affect weight rather than admissibility. If valid, certainly such an argument should in all instances comparable to this render recordings from enemy territory inadmissible. However, similar recordings were admitted in the Iva Ikuko Toguri D' Aquino and Gillars cases, supra.
One further complaint remains with respect to the recordings. After the president of the court expressed his dissatisfaction about the lack of clarity of the tapes, an alleged expert in the field of radio and audiofrequency ran the recordings through an electric audio filter process and re-recorded them. This "expert" testified at the trial that since this filtering process removed only the high frequency noises it would not materially alter the sound characteristics of a male voice. The re-recordings were admitted into evidence as Exhibits 3a and 5a. The defense strenuously objected that since the original tapes were available, the best evidence rule precluded the admissibility of the secondary evidence. We agree with the holding of the court in People v Stephens, 117 Cal App2d 653, 256 P2d 1033 that re-recordings made from a tape and wire recording "would appear . . . admissible in evidence and that the best evidence rule is not applicable." In the present case the recordings were improved by the filtering process and the contents thereof were not changed. There is no logical reason why the benefits of scientific developments should be denied access to the courtroom so long as the rights of the accused are fully protected.
Moreover, in this case the accused never denied that he made recordings for his captors. His defensive posture [23 CMR 28] was that he committed the acts but under the unusual circumstances he was justified. On the witness stand, he admitted recording the round-table discussion and voice signing the appeals. Besides the accused, other witnesses testified to the content of the recordings. As we stated in the beginning of this opinion, the issue was not whether the accused did the acts, but whether the illegality thereof was more than offset by the accused's explanation—along with other evidence—justifying his conduct. We hold, therefore, that the accused was not prejudiced by the admission of these recordings into evidence.
VI
Was the accused prejudiced by the Government's use of a “shot gun" type of pleading?
The accused stoutly contends that his rights were substantially prejudiced by frivolous pleadings on the part of the Government. He attempts to support his argument by quoting from a dissenting opinion of Judge Brosman in United States v Voorhees, 4 USCMA 509, 16 CMR 83, wherein the Judge condemned a "shot gun" type of pleading, which evinced an attempt to get a conviction despite the merits or lack of evidence as to all of the particular specifications and charges. The defense points the accusing finger at one of the specifications wherein it was alleged that during a crowded truck ride, the accused stomped on the foot of Corporal Gorr. The investigating officer recommended that the charge be dropped because, "I do not believe that the alleged offense committed under such circumstances was sufficiently serious as to warrant trial." Perhaps the advice of the investigating officer should have been heeded. But the convening authority has discretion in referring the charges. Under the circumstances we do not believe the accused was prejudiced or that the convening authority abused his discretion in referring this charge to trial. United States v Greenwalt, 6 USCMA 569, 20 CMR 285.
We are not unmindful of the rigors and horrors of the prisoner of war camps in Korea. Our sympathy goes out to the men who were unfortunately forced to endure the inhuman treatment foisted upon them by their barbaric captors. However, we cannot let a hard case make bad law. "War is a harsh business and Colonel Fleming was a field grade officer in the United States Army. He was senior to most of the other prisoners of war in his group and acted as a group leader. The exigencie s of the situation called upon him to be an example to his men. If anything, due to his superior rank and senior position, he was called upon to exercise a conduct more exemplary than the other prisoners. In this regard we think a quotation from the board of review holding in United States v Floyd [CM 374314], 18 CMR 362, is appropriate:
". . . As a commissioned officer of the United States Army, Colonel Keith, whether the senior American officer present in the particular camp or not, and although deprived of many of the functions and prerogatives of his office by his Communist captors, had the responsibility and duty to take such actions as were available to him (and if the senior officer present to exercise such command as he was able) to assist his fellow prisoners, to help maintain their morale, and to counsel, advise and, where necessary, order them to conduct themselves in keeping with the standards of conduct traditional to American servicemen."
The court-martial, convening authority, and the board of review found that he failed to meet those high standards demanded by the Army of an officer of his rank. Under the circumstances we cannot hold that they were wrong.
The decision of the board of review is affirmed.
Judge LATIMER concurs.
QUINN, Chief Judge (concurring in the result):
I disagree with a number of statements made in the majority opinion. Most important is my disagreement with the majority's conclusion that, as a matter of law, a threat of confinement in the caves did not constitute a sufficient [23 CMR 29] threat of, at least, grievous bodily harm. The principal opinion itself notes that the "prisoners felt that a sentence to the caves was almost tantamount to a sentence of death"; that twenty-three Americans died in the caves between Major MacGhee's confinement and release; that the accused was taken to see fourteen newly captured prisoners confined in the caves, and by his last visit, all had died except one, and "he too was dying." In my opinion, this evidence is sufficient to raise a defense of coercion or necessity.
Raising a defense, however, does not mean that the court-martial was bound to accept it. Other evidence shows that the accused had freely and materially cooperated with and helped the enemy before he had heard or seen anything of the caves. Acts of misconduct prior to those charged can be considered by the court-martial in determining the accused's purpose or design in the commission of the offenses alleged. United States v Dickenson, 6 USCMA 438, 456, 462, 20 CMR 154. And, as the majority opinion indicates, there is evidence tending to show that the accused freely helped his enemy captors in enforcing their efforts to subjugate the prisoners. On the basis of this evidence, the court-martial could reject the accused's defense and find that he committed the acts charged without duress or compulsion. The question then is whether the court-martial received proper instructions from the law officer on the legal principles relating to the defense.
It is conceded, and the cases support the concession,[2] that the law officer's instructions are a correct general statement of the law. However, at the trial the accused contended that the court members should not be instructed that to establish his defense of coercion, it must appear that he "acted under a well-grounded apprehension of immediate and impending death,” but that it would be sufficient if he were confronted with death, “or a wasting death from starvation, deprivation or other like conditions.” As I have already noted, in my opinion, the evidence of the many deaths that occurred in the caves provides a basis from which the court members could find that a threat of confinement therein was sufficient for a "well-grounded apprehension" of immediate and impending death or serious bodily harm, especially since the threat bears the "color" of the conditions that existed there. See United States v Olson, 7 USCMA 460, 22 CMR 250. The requested instruction, however, does not present that issue. On the contrary, it attempts to substitute a general fear of future possible mistreatment for the requirement of a present threat of present harm. Accordingly, the law officer was justified in rejecting the request to instruct. Since the instructions which he gave are correct and appropriate, the accused cannot complain.
Further particularization of my disagreement with statements in the majority opinion is unnecessary. Suffice it to say that I agree with the conclusions on the points discussed. Consequently, I join in the result.
Notes
[1] This omission "and extolling the virtues of communism" is the portion of the specifications excepted by the board of review in their decision dated July 28, 1955.
[2] Parenthetically, I do not read the 1865 JAG opinion cited by the majority as expressing merely a policy not to punish returned Union prisoners. It seems to me that the JAG opinion approaches the modern view that a threat of serious bodily harm as well as a threat of death gives rise to the defense of coercion or necessity. See United States v Olson, 7 USCMA 460, 22 CMR 250.
7.2.8.5.2.1.3 United States v. Chi Tong Kuok 7.2.8.5.2.1.3 United States v. Chi Tong Kuok
UNITED STATES of America, Plaintiff-Appellee,
v.
CHI TONG KUOK, AKA Yoko Chong, AKA Eddy, AKA Yoko Kawasaki, AKA Edison Kuok, AKA James Kuok, Defendant-Appellant.
United States Court of Appeals, Ninth Circuit.
[934] Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, CA, for the appellant.
Peter Ko, Assistant U.S. Attorney, San Diego, CA, for the appellee.
Before: HARRY PREGERSON and JAY S. BYBEE, Circuit Judges, and GLEN H. DAVIDSON, Senior District Judge.[*]
OPINION
BYBEE, Circuit Judge:
Chi Tong Kuok was convicted after a jury trial on four counts of conspiracy and attempt to export defense articles without a license, money laundering, and conspiracy and attempt to smuggle goods from the United States. Kuok raises a variety of challenges to his conviction and sentence. We first conclude that venue was proper in the Southern District of California. We disagree with Kuok that the Arms Export Control Act violates the nondelegation principle. We next conclude that Kuok's conviction on count three must be vacated as a matter of law, because attempting to cause an export of a defense article is not a federal crime. Likewise, Kuok's conviction on count four must be vacated for lack of jurisdiction. Finally, because the district court should have allowed Kuok to present evidence of duress to the jury, we reverse and remand for a new trial on counts one and two. Given this disposition, we do not reach Kuok's arguments regarding his sentence.
I
Kuok is a citizen of Macau, a special administrative region of the People's Republic of China and, until recently, a colony of Portugal. For roughly a decade, Kuok engaged in efforts to import protected defense articles from the United States into China, without the licenses required by law. In the summer of 2009, his activities caught up with him, and Kuok was arrested by U.S. Immigration and Customs Enforcement ("ICE") agents at the Atlanta airport. The indictment, filed in July 2009, charged, in count one, conspiracy to export items on the U.S. Munitions List without the required license and conspiracy to buy items knowing they were intended for export in violation of law. 18 U.S.C. §§ 371, 554(a); 22 U.S.C. § 2778(b)(2). Count two charged Kuok with buying a KG-175 Taclane encryptor knowing that it was "intended for exportation contrary to . . . law." 18 U.S.C. § 554(a). Count three charged Kuok with attempting to export the encryptor from [935] the United States without the required license. 22 U.S.C. § 2778(b)(2); 22 C.F.R. § 127.1(a)(1). Count four charged Kuok with transmitting $1700 in funds with the intent to promote the carrying on of "specified unlawful activity": the smuggling and the export offenses charged in counts two and three. 18 U.S.C. § 1956(a)(2)(A).
At trial, the government presented evidence that, over the course of a two-and-a-half year period between 2006 and 2009, Kuok tried to purchase from vendors in the United States various types of communication equipment commonly used by the U.S. military. The government's investigation began in December 2006 when Kuok approached a British company to obtain materials for a device used to transfer data to and from aircraft. Kuok's contact at the company referred the case to ICE, who proceeded to investigate Kuok via undercover agents. As part of the investigation, ICE subpoenaed Kuok's eBay records and discovered that Kuok had purchased two-way radios from a Los Angeles seller. After raiding the seller's home, undercover ICE agents took over and continued to discuss transactions for similar equipment with Kuok. Kuok eventually grew suspicious of the undercover agents, and broke off negotiations. ICE continued in this vein, opening several other investigations into Kuok's eBay activity and tracking him via undercover agents until Kuok broke off communications.
The crux of the government's case lies in the encryptor described in the indictment—a device called the KG-175 Taclane Encryptor offered for sale on eBay by an Arizona company. Kuok's attempts to purchase the device prompted another investigation by undercover ICE agents, who pretended to be willing to sell this device to Kuok. Kuok arranged for a money order transfer to pay for the encryptor. The encryptor never showed up, and the undercover agent claimed it had been confiscated in customs in Alaska. Despite Kuok's repeated suspicions that he was dealing with law enforcement, he arranged to meet the agent in Panama to obtain the encryptor. Kuok promptly informed his contact that he would be traveling through Atlanta to get to Panama, which—unsurprisingly—resulted in his arrest in the Atlanta airport.
At trial, Kuok did not dispute the facts described above, nor the government's evidence that the items Kuok purchased or attempted to purchase required a license to export them from the United States—a license which Kuok did not possess. Kuok also did not dispute that he knew his actions violated U.S. law. Rather, Kuok's entire defense strategy rested on a theory of duress.
Defense counsel raised the issue of duress in his opening statement. He described the facts supporting the duress defense to the jury, explaining that Kuok had lived in Macau all his life. Kuok started his own business in 2000, installing and maintaining building management systems. A few years before he opened this business, Kuok developed contacts with a businessman who identified himself as a Chinese cultural official, Kung Pen Zheng. Zheng began asking Kuok to buy items from abroad that could not be obtained in China, and Kuok cooperated in order to develop this business contact. The items were available on eBay, and Kuok generally had no problems acquiring them, but troublingly, it would often take a long time for Zheng to pay Kuok back.
According to Kuok's counsel, what started out as a friendly relationship turned serious at one business dinner, when Zheng—after encouraging Kuok to drink to excess—pressured Kuok into signing a note promising to locate and purchase certain items that could not be obtained in [936] China. The next day, Kuok realized that he might be in a bad situation and attempted to back out by telling Zheng that his wife was ill and work needed his attention. Zheng reminded Kuok that he had signed the contract promising to find these items. Zheng then contacted Kuok's wife, who was surprised to hear that she was supposed to be ill. Kuok—who had never given Zheng his home telephone number— was unhappy when he heard about Zheng's phone call to his wife, and spoke to Zheng again later that day. Zheng asked Kuok why he had lied, and Kuok asked Zheng not to call his wife again. Zheng replied: "Why? Are you afraid we're going to hurt her?" Kuok interpreted this as a clear threat to harm his family, but by that point he knew that the threat was coming from the Chinese government itself and that he could not go to the local police, who were under the Chinese government's control.
According to counsel, Kuok's situation only escalated from there: he was presented with reports detailing his wife's comings-and-goings, and her employer's name and address. Kuok was shown reports of this type for the next several years, as well as photos of himself with his wife and child out in public, with the clear implication that his family was being tracked. Zheng even sent Kuok a gift after the birth of his son, although Kuok had never told Zheng that his wife was pregnant.
Around 2002, Zheng stopped being subtle. He explained to Kuok that others were doing the same things Kuok was being made to do, and if they refused, a family member would be arrested and held in a "black jail"—where the Chinese government sends people to "take [them] off the grid." In 2005, Kuok first learned that his actions could violate U.S. export laws. He went to Zheng again and asked to stop. Zheng refused to let him out of the deal, instead telling Kuok that he had no choice. In 2007, Kuok was diagnosed with a tumor and hospitalized for a week, again begging to be let out of Zheng's schemes, but still Zheng refused.
After opening statements concluded, Kuok made a Brady request for any materials in the government's possession that would support his duress defense. The government objected to the Brady request, and the district court denied it as untimely.[1] The government also objected to the duress defense on the grounds that Kuok should have given notice of his defense before trial.[2] The district court ordered the parties to brief the duress issue. The government argued that there was insufficient evidence to support the duress defense, and the district court agreed. Kuok filed a motion to reconsider, which contained a more detailed proffer of the defense case. For instance, he claimed that Zheng told Kuok that if his wife were taken to a black jail, she would be harmed and might not ever return. Kuok also asserted that he had attempted to tell the ICE agents at the airport that he had been forced to act. Finally, Kuok added details explaining how he knew that Zheng and the other officials worked for the Ministry of State Security, China's equivalent of the CIA.
The district court denied the motion for reconsideration. The case proceeded to [937] trial, and the jury found Kuok guilty on all counts. Prior to sentencing, Kuok served another Brady request on the government, asking for evidence to support an imperfect duress defense. The district court denied the request. At sentencing, the district court calculated the applicable Guidelines range to be 63 to 78 months. The district court varied upward and sentenced Kuok to 96 months on counts two through four, and 60 months on count one, to run concurrently. This appeal followed.
II
We first address Kuok's claims common to all counts: that venue in the Southern District of California was improper, and the statutory export control regime violates the nondelegation doctrine.[3] Our review of both claims is de novo, United States v. Bozarov, 974 F.2d 1037, 1040 (9th Cir.1992) (non-delegation doctrine); United States v. Ruelas-Arreguin, 219 F.3d 1056, 1059 (9th Cir.2000) (venue), and we reject Kuok's arguments.
A
Kuok challenges venue on counts two through four, which are based on Kuok's purchase of the Taclane encryptor.[4] The Constitution requires that venue lie in the state and district where a crime was committed. U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; see also Fed. R.Crim.P. 18. "The burden of establishing proper venue by a preponderance of the evidence rests with the government." Ruelas-Arreguin, 219 F.3d at 1060. The government argues that venue was plainly proper in the Southern District of California, because the undercover ICE agent withdrew funds in a San Diego bank from Kuok's money transfer.
Kuok argues that venue is not proper because the government manufactured venue in the Southern District of California by its own activities. This argument fails. Kuok cites two cases in support of his argument, neither of which even mention the word "venue." See United States v. Coates, 949 F.2d 104, 106 (4th Cir.1991) ("`[M]anufactured jurisdiction' cannot form the basis for a federal prosecution."); United States v. Archer, 486 F.2d 670, 681 (2d Cir.1973) ("Whatever Congress may have meant by [18 U.S.C.] § 1952(a)(3), it certainly did not intend to include a telephone [938] call manufactured by the Government for the precise purpose of transforming a local bribery offense into a federal crime."). Both cases deal with manufacturing jurisdiction for a crime, which is a distinct question from the manufacturing of venue. In fact, the Fourth Circuit has distinguished Coates on this very ground: "There is no such thing as `manufactured venue' or `venue entrapment.'" United States v. Al-Talib, 55 F.3d 923, 929 (4th Cir.1995); see also United States v. Rodriguez-Rodriguez, 453 F.3d 458, 462 (7th Cir.2006) (holding that the entrapment doctrine does not apply to venue, and that the proper remedy for prosecutorial forum shopping is Federal Rule of Criminal Procedure 21(b)).
Although we have not yet adopted a similar holding rejecting manufactured venue in this circuit, we need not decide the issue today. We have noted that Archer "cannot offer . . . generally applicable principles" and that it has been limited to cases involving "extreme" law enforcement tactics. United States v. Bagnariol, 665 F.2d 877, 898 n. 15 (9th Cir.1981). We find nothing "extreme" about an ICE undercover operation, based in San Diego, deciding to cash Kuok's money order in a bank in San Diego. Therefore, because part of the conduct that formed the offense occurred in the Southern District of California, even if that conduct was performed by an undercover government agent, venue there was proper.
B
Kuok argues that the Arms Export Control Act ("AECA"), 22 U.S.C. § 2778, invalidly delegates legislative authority. Section 2778(a)(1) of Title 22 provides:
In furtherance of world peace and the security and foreign policy of the United States, the President is authorized to control the import and the export of defense articles and defense services and to provide foreign policy guidance to persons of the United States involved in the export and import of such articles and services. The President is authorized to designate those items which shall be considered as defense articles and defense services for the purposes of this section and to promulgate regulations for the import and export of such articles and services. The items so designated shall constitute the United States Munitions List.
22 U.S.C. § 2778(a)(1); see 22 C.F.R. § 121.1 (setting forth the U.S. Munitions List). Section 2778(b)(2) provides that "no defense articles or defense services designated by the President [on the U.S. Munitions List] may be exported or imported without a license." 22 U.S.C. § 2778(b)(2). Any person who violates § 2778(b)(2), or "any rule or regulation issued under th[at] section," may be fined not more than $1,000,000 or imprisoned for not more than 20 years, or both. Id. § 2778(c). Kuok argues that Congress, in enacting the AECA, failed to "clearly delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Mistretta v. United States, 488 U.S. 361, 372-73, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (internal quotation marks omitted).
The argument is easily answered. The Constitution provides that "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. Const. art. I, § 1. From this language and first principles of separation of powers, the Supreme Court has announced a nondelegation principle: "Congress may not constitutionally delegate its legislative power to another branch of Government." Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Accordingly, when "Congress confers decisionmaking [939] authority upon agencies Congress must `lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.'" Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)).
The AECA authorizes the President to maintain the United States Munitions List, which consists of "those items which shall be considered as defense articles and defense services." 22 U.S.C. § 2778(a)(1). Although the defining principle for "articles" and "services" has not been set forth with particularity, it is intelligible: the President is to designate those articles or services "which shall be considered as defense articles and defense services." Id. Articles or services that are not regarded as belonging to defense may not be so designated. Furthermore, Congress prefaced the delegation to the President by referring to its shared interest in the "furtherance of world peace and the security and foreign policy of the United States." Id. The "[d]elegation of foreign affairs authority is given even broader deference than in the domestic arena." Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9th Cir.1996).
The Supreme Court rejected a similar nondelegation challenge in United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Congress had authorized the President to prohibit the sale of "arms and munitions of war in the United States to those countries now engaged in armed conflict in the Chaco." Id. at 312, 57 S.Ct. 216 (internal quotation marks omitted). Congress made it a criminal act to violate the President's prohibition. The Supreme Court recognized that it was "dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations." Id. at 319-20, 57 S.Ct. 216. The Court commented on the "unwisdom of requiring Congress in this field of governmental power to lay down narrowly definite standards" and declined to "condemn[] legislation like that under review as constituting an unlawful delegation of legislative power." Id. at 321-22, 57 S.Ct. 216; see id. at 329, 57 S.Ct. 216 ("[T]here is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the re-establishment of peace. . . ."). This logic applies with equal force to the present case. The AECA does not violate the constitutional prohibition on delegation of legislative power.
III
We next address Kuok's argument that the district court lacked jurisdiction over count four of the indictment, which arises under the money laundering statute, 18 U.S.C. § 1956.[5] We review jurisdictional questions de novo. See United States v. Moncini, 882 F.2d 401, 403 (9th Cir.1989).
Section 1956(a)(2) of Title 18 prohibits the transmission of funds from a place outside the United States to a place inside the United States with the intent to promote the carrying on of specified unlawful activity. The government's theory at trial was that Kuok violated this provision by [940] transmitting funds in exchange for the Taclane encryptor, in order to promote the violation of export control laws and anti-smuggling laws. Section 1956 comes with its own restriction on any assertion of extraterritorial jurisdiction. It provides:
There is extraterritorial jurisdiction over the conduct prohibited by this section if—
(1) the conduct is by a United States citizen or, in the case of a non-United States citizen, the conduct occurs in part in the United States; and
(2) the transaction or series of related transactions involves funds or monetary instruments of a value exceeding $10,000.
18 U.S.C. § 1956(f).
At trial, the government established that the relevant conduct occurred in part in the United States. But the government did not establish that the transaction involved funds of a value exceeding $10,000. Rather, the evidence established—and the government concedes—that the transaction involved a total value of only $5,400.
The government attempts to bypass subsection (f) entirely by arguing that subsection (f) is only invoked when the case involves purely extraterritorial conduct. The government argues that Kuok's case, because it involves conduct that occurred in part in the United States, does not invoke extraterritorial jurisdiction at all, arguing that the issue of "extraterritorial jurisdiction" arises only if no part of the offense occurred in the United States.
The government's argument would render subsection (f) a nullity. If the government were correct that subsection (f) can only be invoked in cases that involve conduct taking place entirely outside of the United States, the second part of subsection (f)(1) would be meaningless, and proscribe no possible set of conduct. That is, if "extraterritorial jurisdiction" only need be invoked when prohibited conduct by a non-U.S. citizen occurred entirely outside the United States, the statement in § 1956(f)(1) ("There is extraterritorial jurisdiction over the conduct prohibited by this section if . . . in the case of a non-United States citizen, the conduct occurs in part in the United States") could never be invoked. We presume that Congress did not intend to enact a literally meaningless statute. Because the government failed to satisfy the amount-in-controversy requirement of § 1956(f)(2), Kuok's conviction on count four must be vacated for lack of jurisdiction.
IV
We now turn to Kuok's conviction on count three. Count three arises under the AECA and its implementing regulations, specifically 22 C.F.R. § 127.1(a)(1). The government charged Kuok with violating the AECA by asking the undercover agent to send him the Taclane encryptor in exchange for a $1700 wire transfer. Kuok challenges his conviction on the grounds that the AECA and its implementing regulations do not create liability for attempting to cause another person to violate the AECA.[6] We review de novo. See United States v. Cabaccang, 332 F.3d 622, 624-25 (9th Cir.2003) (en banc).
Section 127.1(a)(1) makes it unlawful "[t]o export or attempt to export from the United States . . . by a U.S. person of any defense article . . . or by anyone of any U.S. origin defense article . . . for which a license or written approval is required . . . [941] without first obtaining the required license." 22 C.F.R. § 127.1(a)(1). Kuok notes that the government's evidence did not establish that he exported or attempted to export the Taclane encryptor. Rather, the government's theory was that he attempted to cause an undercover ICE agent to export the encryptor. Kuok then argues that § 127.1(a)(1) does not make it illegal to cause a "U.S. person" to "export or attempt to export" a defense article. In response, the government points to 18 U.S.C. § 2(b), which states: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."
By overlaying § 2(b) on 22 C.F.R. § 127.1(a)(1), it becomes clear that § 2(b) prohibits causing an export or an attempted export: an export or an attempted export is an "act . . . which if directly performed by [Kuok] would be an offense against the United States." However, the government's case at trial did not establish that Kuok caused an attempt to export: it established that he attempted to cause an export. That is, Kuok attempted to cause the undercover ICE agent to export the encryptor without a license. Neither an export nor an attempted export occurred: the ICE agent did not form the mens rea sufficient for an illegal export or an attempt, because he was an undercover agent working for the government the whole time. Kuok, for his part, intended to import the device into Macau, not export it from the United States. See 22 C.F.R. § 120.17(a)(1)(defining "export" as "[s]ending or taking a defense article out of the United States in any manner"). Rather, there was an attempt to cause an export: Kuok tried to get the undercover agent to export the encryptor.
We have long recognized that "[t]here is no general federal `attempt' statute. A defendant therefore can only be found guilty of an attempt to commit a federal offense if the statute defining the offense also expressly proscribes an attempt." United States v. Hopkins, 703 F.2d 1102, 1104(9th Cir.1983); see also United States v. Joe, 452 F.2d 653, 654 (10th Cir.1972) ("[I]t is well settled that the only attempts to commit crimes which are made Federal crimes are those specifically so proscribed by Federal law."); United States v. Padilla, 374 F.2d 782, 787 n. 7 (2d Cir.1967) ("[U]nlike many state criminal codes, federal criminal statutes contain no general attempt provision. An attempt to commit a federal crime is punishable only where the section defining the crime specifically includes an attempt within its proscription." (citations omitted)). For the government's theory to be viable, therefore, either 18 U.S.C. § 2(b) would have to contain an attempt provision, or 22 C.F.R. § 127.1 would have to contain an attempted causation provision. Since neither statute does so, Kuok cannot be convicted on this count based on the government's evidence at trial. The government's argument that attempt should rationally be read into § 2(b) fails in light of the rule against reading an attempt into a criminal statute that does not explicitly include it.
The government cites to United States v. Giese, in which we approved an indictment charging that the defendant "conspired `to commit and cause to be committed certain offenses against the United States.'" 597 F.2d 1170, 1179-80 (9th Cir. 1979). The reasoning in Giese is not analogous here because, unlike for attempt, there does exist a general federal statute for conspiracy. See 18 U.S.C. § 371. Thus, for example, conspiracy to cause an export or attempted export would be a federal crime.
The United States also points to cases from the Sixth and Eighth Circuits which [942] approve of an "attempt to cause" theory. In United States v. May, the defendant placed a call to a retired general, asking him to destroy certain records. 625 F.2d 186, 194 (8th Cir.1980). The general attempted to do so by calling a friend, but the attempt failed when his friend refused. Id. May was then charged with "`unlawfully attempt(ing) to cause to have concealed, obliterated, or destroyed' government records" in violation of 18 U.S.C. § 2071. Id. We do not find May persuasive on this issue, because, while the indictment may have charged "attempting to cause," it is clear that May's actions in that case actually constituted "causing an attempt": that is, May caused the retired general to attempt to violate 18 U.S.C. § 2071. The May court correctly characterized May's position as arguing that "`causing' an attempt is not prohibited by the statute," and relied on § 2(b) to reject this proposition, noting that "section 2(b), like section 2(a), is applicable to the entire criminal code." Id. (internal quotation marks omitted). This reasoning, however, is not helpful for purposes of the present case: even if § 2(b) is applicable to the entire criminal code, there is no general federal attempt provision that would be applicable to § 2(b).
Similarly, United States v. Zidell affirmed the defendant's conviction on the charge of "attempt[] to cause the possession with intent to distribute methamphetamine," but it is clear that this case also deals with causing an attempt, rather than attempting to cause. 323 F.3d 412, 424-25 (6th Cir.2003) (emphasis removed) (internal quotation marks omitted). In Zidell, the defendant, living in Texas, received a visit from his co-conspirators from Tennessee. He distributed methamphetamine to both of them, and sent them on their way back to Tennessee. Id. at 421-22. As the court explained, "[t]his conduct gave rise to an attempt charge, as opposed to a charge of a completed drug distribution offense, when [the coconspirators] were stopped by the police before they reached their intended destination." Id. at 422. In other words, the defendant caused his coconspirators to attempt to commit a drug distribution crime. Moreover, the defendant in Zidell did not even raise a challenge to this language in the indictment: rather, his argument was that venue in Tennessee was improper. Id. at 421-25.
Therefore, both May and Zidell are factually inapposite to Kuok's case: whereas Kuok's attempt to cause illegal activity failed because he was working with an undercover law enforcement officer, the defendants in May and Zidell successfully caused an attempt because the coconspirators in those cases had each formed the mens rea necessary to charge them with attempt, had the government so chosen. And to the extent May and Zidell stand for the proposition advanced by the government based on the wording of the indictments, we disagree.
We hold that attempting to cause an export of defense articles without a license is not a violation of U.S. law, and vacate Kuok's conviction on count three.
V
Kuok challenges his conviction on count two because he argues that the government did not satisfy all of the elements of 18 U.S.C. § 554, which criminalizes smuggling goods into or out of the United States. This count is based on Kuok's purchase of the Taclane encryptor. We do not agree with Kuok's interpretation of the statute, and decline to vacate his conviction on count two.
The relevant section states:
Whoever fraudulently or knowingly exports or sends from the United States, [943] or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.
18 U.S.C. § 554(a).
Kuok argues, first, that he never took physical possession of the encryptor, thus making it impossible for the government to satisfy the element that he "bought" it; second, because both Kuok and the undercover ICE agent lacked the intent to export the encryptor, the encryptor was not "intended for exportation"; and third, that since the encryptor was not exported, the government could not satisfy the statutory requirement that the conduct occur "prior to exportation." These arguments present issues of statutory construction, which we review de novo. Cabaccang, 332 F.3d at 624-25.
A
The indictment charged Kuok with "buy[ing]" the encryptor, but Kuok only wired money to the undercover agent and never actually received the encryptor, since it was never sent. The parties point to two different definitions of the word "buy" that support their respective cases. Kuok cites to one definition of the word indicating that "buy" entails obtaining possession of the item paid for. See Shorter Oxford English Dictionary 316 (5th ed.2002) (defining "buy" as to "[g]et possession of by giving an equivalent, usu. in money; obtain by paying a price"). The government cites to another definition of the word "buy," which includes "to get possession or ownership of by giving or agreeing to give money in exchange." See Webster's Third New International Dictionary 306 (2002) (emphasis added). Kuok argues that competing definitions render the statutory text ambiguous and require application of the rule of lenity. See United States v. Santos, 553 U.S. 507, 513-14, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008).
We think the government has the better argument. Whatever ambiguity appears after consulting dictionaries fades when we construe the statute as a whole. Section 554(a) applies to anyone who "receives, [or] conceals, [or] buys, [or] sells" any merchandise, article, or object contrary to law. If we were to adopt Kuok's definition of "buy"—requiring receipt or possession—then the term "receive" would become superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). To avoid interpreting one phrase so as to render another superfluous, we accept the government's interpretation of the statute.[7]
[944]
B
Kuok argues that § 554(a) requires proof of his "intent to export." The statutory language actually requires that a person buy an item "knowing the same to be intended for exportation contrary to any law or regulation." 18 U.S.C. § 554(a). The mens rea requires only "knowing" the item is intended for export, rather than an "intent to export." Because of the passive construction of the phrase "intended for exportation," no specific actor need form the intent to export the item. Thus, although Kuok was not doing the exporting himself (his scheme involved receiving an import, not sending an export), he certainly intended that another actor (the undercover agent) intend to export the item. In other words, the government's case need not establish that the defendant intended to export the encryptor, because Congress did not specify who must form the intent to export the item, only that the defendant know that the item was intended for export contrary to U.S. law.
C
Kuok argues that since the statute applies to "[w]hoever . . . buys . . . such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to" law, id., the government must prove that the item was actually exported, or else the condition "prior to exportation" cannot be satisfied. The government responds that "prior to exportation" simply limits prosecutions to purchases that occurred during or before exportation. This is not superfluous with the phrase "knowing the same to be intended for exportation contrary to any law," the government argues, because while the latter phrase does exclude prosecutions from taking place after the exportation has been completed, it does not exclude prosecutions against one who buys an item while it is in transit, whereas the former phrase does.
Alternatively, the government argues that superfluity is not always to be avoided: the "hesitancy to construe statutes to render language superfluous does not require [courts] to avoid surplusage at all costs. It is appropriate to tolerate a degree of surplusage rather than adopt a textually dubious construction that threatens to render the entire provision a nullity." United States v. Atl. Research Corp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007).
Kuok replies that the portion of § 554(a) under which he was charged lacks an attempt provision, and the government's efforts to charge him under this statute, without proving that an export actually took place, constructively read an attempt provision into it. We do not agree with Kuok, but we do note that the statutory text is challenging to parse. The operative phrase states:
Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object. . . .
18 U.S.C. § 554(a) (emphasis added). The emphasized "or" above divides this statute into two clauses: the first applying to exporters, and the second to buyers. This might lend support to Kuok's reading; that is, the attempt provision can be read only as far as the "or," and thus applies uniquely to exporters, not buyers. On the other hand, the reference to "such merchandise" could be read as incorporating the entire exporters clause; that is, "such" merchandise is "merchandise" that has [945] been the object of an "export[ing] or send[ing] from the United States, or attempt[ed]. . . export[ing] or send[ing] from the United States . . . contrary to any law or regulation." The latter interpretation is persuasive because there is no other phrase in the exporters clause indicating the type of merchandise at issue ("contrary to any law or regulation of the United States" is an adverbial clause modifying the verbs "exports" and "attempts to export," not an adjectival clause modifying the noun "merchandise"). Without a phrase that limits or defines the merchandise, the second clause's use of the word "such" is meaningless.[8]
We find that the attempt provision spans the "or." There is no extratextual reason to interpret the statute in a manner that treats exporters and buyers differently, and there are strong intratextual reasons for treating them similarly. Kuok's interpretation of "prior to exportation" "render[s] the entire provision a nullity," and we reject it. Cf. Atl. Research Corp., 551 U.S. at 137, 127 S.Ct. 2331. In sum, we have considered Kuok's objections to count two, and have found them without merit.
VI
Kuok brings multiple challenges to the jury instructions given in this case. We review "de novo whether the jury instructions accurately define the elements of a statutory offense." United States v. Summers, 268 F.3d 683, 687 (9th Cir.2001).
First, Kuok argues that the jury instructions with respect to count two were improper for the same reasons that he argued his conviction on count two must be vacated. Because we have rejected his arguments and concluded that Kuok's conviction under § 554(a) need not be vacated as a matter of law, we disagree that the jury instructions were improper.
Second, Kuok argues that the instructions with respect to count one are invalid because they allowed the jury to convict based on the "attempt to cause an export" theory of count three. Instruction 21, relating to count three, states in full:
Count 3 of the Indictment charges the defendant with attempted export of a defense article without a license. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, on or about April 29, 2009, the defendant intended to commit the crime of willfully causing the export of a KG-175 Taclane Encryptor which was designated on the United States Munitions List, without first obtaining a license or written approval from the Department of State, Directorate of Defense Trade Controls, and,
Second, the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.
Mere preparation is not a substantial step toward committing the crime of exporting defense articles without a license.
An act is done "willfully" if it is voluntarily committed with the knowledge that it was prohibited by law and with the purpose of disobeying or disregarding the law. While the government must prove beyond a reasonable doubt that the defendant intended to violate the law, it is not necessary for the government to prove that the defendant had [946] read, was aware of, or had consulted the specific regulations governing his activities. In other words, in this case, while the government must prove beyond a reasonable doubt that the defendant intended to violate the law, the government is not required to prove that the defendant had read or consulted the United States Munitions List or the specific export licensing requirements of the Arms Export Control Act.
As discussed above, we vacate Kuok's conviction on count three because there is no crime of attempting to cause an export contrary to U.S. law. Kuok argues that his conviction on count one was "tainted" by this invalid offense theory because the instruction on count one refers to the same substantive offense as that in count three (exporting without a license). Instruction 16, relating to count one, states in full:
As mentioned, Count 1 of the Indictment alleges two possible criminal objects of the conspiracy.
The elements of the crime of buying merchandise, articles, or objects prior to exportation, knowing they would be exported contrary to the laws and regulations of the United States are:
First, the defendant knowingly bought merchandise, articles, and objects, prior to exportation, and
Second, at that time, the defendant knew the same to be intended for exportation contrary to any law or regulation of the United States.
The elements of the crime of exporting defense articles without a license are:
First, the defendant exported, or caused to be exported, from the United States an item or items designated on the United States Munitions List;
Second, the defendant did not obtain a license or written approval from the Department of State to export the item or items; and
Third, the defendant acted willfully.
The term "willfully" is defined in Court's Instruction 21.
To willfully "cause" an act to be done means to intentionally bring it about, with knowledge that it is prohibited by law and with the purpose of disobeying or disregarding the law.
There is no taint here. Instruction 21 is invalid because it allowed the jury to convict on an "attempt to cause an export" theory, but instruction 16 allowed the jury to convict on a "conspiracy to cause an export" theory. We have already concluded that because of the existence of a general federal conspiracy statute, a conspiracy to cause an act to be undertaken is prohibited by U.S. law in a way that an attempt to cause an act to be undertaken is not. See Giese, 597 F.2d at 1179-80; see also 18 U.S.C. § 371. The cross-reference for the definition of "willfully" does not alter this analysis, as the meaning of the term "willfully" is entirely irrelevant to the question of whether instruction 21 is invalid. This cross-reference does not incorporate the "attempt to cause an export" theory.
Kuok's third argument fails for the same reason. He challenges the correctness of the phrase in instruction 16 indicating that a possible object of the conspiracy for count one was that "the defendant exported, or caused to be exported" a defense article. Kuok argues both that a "causation" theory was not charged in the indictment, and that no authority supports the causation theory in the context of conspiracy liability. We disagree. "[A]n indictment need not specifically charge . . . `causing' the commission of an offense . . . to support a jury verdict based upon a finding of [causation]." United States v. Armstrong, 909 [947] F.2d 1238, 1241 (9th Cir.1990) (internal quotation marks omitted). And as discussed above, conspiracy to cause an export is a valid offense theory. See Giese, 597 F.2d at 1179-80; see also 18 U.S.C. § 371.
VII
Because we hold that the government's theory on counts one and two is viable as a matter of law, we finish by considering Kuok's claim that he should have been permitted to present evidence of duress to the jury. We review the district court's decision to exclude the duress defense de novo.[9] United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir.2008).
Duress is not a statutory defense, but a common-law defense that allows a jury to find that the defendant's conduct is excused, even though the government has carried its burden of proof. See Dixon v. United States, 548 U.S. 1, 12-14 & n. 9, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). To establish duress, the burden of proof is on the defendant to show that: (1) he was under an immediate threat of death or serious bodily injury, (2) he had a well grounded fear that the threat would be carried out, and (3) he had no reasonable opportunity to escape. United States v. Shapiro, 669 F.2d 593, 596 (9th Cir.1982); see also Dixon, 548 U.S. at 7, 126 S.Ct. 2437; United States v. Bailey, 444 U.S. 394, 409-10, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). "Factfinding is usually a function of the jury, and the trial court rarely rules on a defense as a matter of law." United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984). Because we consider this defense as a matter of law, we must accept Kuok's proffer as true in its entirety. Here, the parties' dispute concerns the first and the third elements.[10]
A
The threat to Kuok's family was both immediate and serious. According to his counsel's opening statement, Zheng made it clear to Kuok that his family was being monitored, through Zheng's actions in giving Kuok reports on his wife's daily activities, calling her at the family's home phone number, and sending Kuok various pictures of his wife and his son taken in public. When Kuok attempted to get out of his dealings with the government, Zheng explicitly threatened to send Kuok's wife to a "black jail," and told Kuok that this was "somewhere where we take people off the grid if they don't do what we ask them to do."
Our decision in United States v. Contento-Pachon is most similar to the present case. In Contento-Pachon, a taxi driver was lured into a meeting with a drug dealer when the drug dealer promised him a job driving a private car. 723 F.2d at 693. What the drug dealer actually wanted was a mule to smuggle drugs into the United States. Id. The defendant protested, but capitulated in the face of threats to his family. Id. The drug dealer revealed that he knew private details about the defendant's life—details that the defendant [948] had never mentioned to the drug dealer. Id. We held that this evidence supported a defense of duress because
[the drug dealer] had gone to the trouble to discover that Contento-Pachon was married, that he had a child, the names of his wife and child, and the location of his residence. These were not vague threats of possible future harm. According to the defendant, if he had refused to cooperate, the consequences would have been immediate and harsh.
Id. at 694; see also id. ("Contento-Pachon contends that he was being watched by one of [the drug dealer]'s accomplices at all times during the airplane trip.").
The government contends that the threats to Kuok's family were not "immediate" because Kuok could not demonstrate that "someone was present to enforce the threat immediately during the entire criminal conduct." United States v. Sawyer, 558 F.3d 705, 712 (7th Cir.2009) (coercion over a year-long period was insufficient to prove duress because defendant could not show that someone was present at all times the defendant was involved in illegal activity).
The government cites United States v. Becerra in support of its position. 992 F.2d 960 (9th Cir.1993). In that case, the defendant believed that his family was threatened when an undercover agent said he would "take care" of the defendant's family if the defendant did not go through with various drug transactions. Id. at 964. We found that this was not enough, because the threat was not "immediate," even though the undercover agent was "almost constantly" around the defendant. Id. The government argues that this indicates that surveillance must rise above the level of "almost constant," but we think this confuses "constant surveillance" with "specificity."
Our case law makes it clear that to be immediate, a threat must be specific: "A veiled threat of future unspecified harm will not satisfy this requirement." Contento-Pachon, 723 F.2d at 694 (internal quotation marks omitted) (alteration omitted). To that effect, we rejected the defense in Becerra, where the threat to "take care" of the defendant's family did not include a specific time frame, and lacked detail. 992 F.2d at 964. In United States v. Karr, we found that no evidence supported the duress defense when the defendant testified only that "Harry threatened his daughter, his mother and himself." 742 F.2d 493, 497 (9th Cir.1984). Similarly, in United States v. Moreno, we rejected the defense where, "[d]uring [a] three week period, Moreno saw Joker on only three occasions. No one else made any threats or appeared to follow Moreno. Joker did not know Moreno's address, or where in the `westside' his daughters could be located." 102 F.3d 994, 997 (9th Cir.1996). Put simply, vague and undetailed threats will not suffice.
Kuok's case is close, but we find that the threats against his family were not vague. Kuok was told his wife would be arrested and disappear into a secret prison if he refused to cooperate. Immediacy is demonstrated by the fact that Zheng clearly indicated that harm to Kuok's wife would be the specific and direct consequence of refusing to obey the government's commands. It is further supported by the fact that Zheng knew his family's movements and other intimate details that demonstrated that his family was regularly monitored. Kuok believed that Zheng represented the Chinese intelligence service, whose capacity to carry out its threats would be far greater than the run-of-the-mill criminal organization. The vivid detail in Zheng's threat distinguishes it from threats in cases rejecting the duress defense [949] when the defendant received only generic threats against himself or his family.
B
Kuok argues that he had no reasonable opportunity to escape his situation because the government was monitoring him and his family, because he could not turn to the local police for help, and because even if he could leave the country on his travels and seek help from U.S. law enforcement, his family would have remained vulnerable. This issue should have been submitted to the jury. We have held that the inability to seek help from the local police is a relevant factor in assessing the opportunity to escape. In Contento-Pachon, the defendant believed that the police were corrupt and paid off by drug traffickers. 723 F.2d at 693. We held that the case had to be submitted to the jury for it to "decide whether one in Contento-Pachon's position might believe that some of the Bogota police were paid informants for drug traffickers and that reporting the matter to the police did not represent a reasonable opportunity of escape." Id. at 694. Here also, a jury should decide whether Kuok, who claims the government itself was threatening him, could not seek aid from local authorities.
Furthermore, the possibility of packing up and moving out of the dangerous environment, abandoning one's work and displacing one's entire family, does not necessarily present a reasonable opportunity for escape. Again, Contento-Pachon is instructive: "To flee, Contento-Pachon, along with his wife and three year-old child, would have been forced to pack his possessions, leave his job, and travel to a place beyond the reaches of the drug traffickers. A juror might find that this was not a reasonable avenue of escape." Id. Here, Kuok might have been able to escape Macau, but it is less clear that he could have reasonably escaped with his wife and son, and it was their safety that been threatened.[11]
The government contends that if Kuok had an opportunity to notify U.S. law enforcement about his situation, he was required to do so. However, the cases the government cites are inapposite. First, we have not held that a defendant must surrender to authorities after reaching a place of safety, except in prison escape cases. See Bailey, 444 U.S. at 412-13, 100 S.Ct. 624. Second, the cases upon which the United States relies involve seeking the help of local police. For example, in Moreno, we noted that "[u]nlike the defendant in Contento-Pachon, . . . Moreno presented no evidence that he could not flee from his gang's reach, or that he could not seek help from local law enforcement agencies because they were corrupt and controlled by gang members." 102 F.3d at 997; see also United States v. Sixty Acres in Etowah Cnty., 930 F.2d 857, 861 (11th Cir.1991) (holding that the duress defense was insufficient because the defendant did not show he had no reasonable opportunities to inform the police); United States v. Charmley, 764 F.2d 675, 676-77 (9th Cir. 1985) (same); Shapiro, 669 F.2d at 596-97 & n. 4 (same). In any event, the government's suggestion that Kuok should have cooperated with the authorities immediately upon landing in the Atlanta airport may be unreasonable, given that Kuok knew his family was still in danger of being jailed by Chinese government officials beyond the [950] control of U.S. authorities. See United States v. Otis, 127 F.3d 829, 835 (9th Cir. 1997) ("The government argues that . . . [the defendant] could have escaped by cooperating with the American authorities. We do not see how protection would have protected his father in Colombia.").
In short, the ultimate factfinders may or may not accept Kuok's story, but he has alleged facts sufficient to present his defense to the jury.
VIII
We vacate Kuok's convictions on counts three and four. We remand to the district court for a new trial on counts one and two, with instructions to allow Kuok to present evidence of duress to the jury.
REVERSED; REMANDED.
[*] The Honorable Glen H. Davidson, Senior District Judge for the U.S. District Court for the Northern District of Mississippi, sitting by designation.
[1] The government had no notice of the duress defense, and the request would have entailed a continuance of the trial. See United States v. Hayes, 120 F.3d 739, 743 (8th Cir.1997) ("The defendants offered no good cause for waiting six months [two days after the start of their trial] to request this alleged Brady material."). We express no opinion, however, on the merits of the issue should a timely request occur on remand.
[2] On appeal, the government does not brief the claim that the duress defense should be excluded because pretrial notice was not given.
[3] Although Kuok raises the nondelegation argument in the context of count three, it is clear that this argument is common to all counts, which arise under or depend in some way on the validity of the Arms Export Control Act.
[4] At the close of the government's case, Kuok made a general motion for a judgment of acquittal, which the district court kept under submission. Kuok only explicitly raised the venue issue in briefing following the jury's verdict. The government raises a non-frivolous argument that Kuok has therefore waived his challenge to venue. This turns out to be a complex issue, given the state of the law in this circuit. See United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 (9th Cir. 2000) ("[V]enue objections made at the close of the government's case-in-chief are timely if the defect in venue is not apparent on the face of the indictment."); United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974) ("[V]enue may be waived, and where, as here, the objection was not raised until after the jury had returned its verdict of guilty, we find that waiver did in fact occur." (citation omitted)); Gilbert v. United States, 359 F.2d 285, 288 (9th Cir. 1966) (general motion for acquittal, when "specifically limited" to grounds other than venue, does not preserve a timely venue objection); Hanson v. United States, 285 F.2d 27, 28-29 (9th Cir. 1960) (holding that venue must be raised before the close of the government's case, and disagreeing with the appellant's contention that a "timely motion for a directed verdict of acquittal" preserved the challenge). Because we think that Kuok's venue objection is easily disposed of on the merits, we do not deal with the waiver issue.
[5] Kuok also contends that count four, as charged, presents a merger problem. See United States v. Santos, 553 U.S. 507, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008). Because we agree with Kuok on the jurisdictional issue, we do not reach the merger issue.
[6] Because of our resolution, we do not reach Kuok's other arguments pertaining to count three.
[7] In reply, Kuok argues that "buy" and "receive" are not superfluous because "`buy' means to pay for something and obtain possession of it, and `receive' means to take delivery of something." We do not see the relevance of the difference between obtaining possession and taking delivery of something. Especially in the context of exports from the United States into a foreign country, it can hardly be expected that one could obtain possession of an export without taking delivery of it.
Article 2 of the Uniform Commercial Code lends support to our interpretation: it defines the term "buyer" as "a person that buys or contracts to buy goods," U.C.C. § 2-103(1)(a) (emphasis added), and the term "receipt of goods" as "taking physical possession of goods," id. § 2-103(1)(l). The U.C.C. therefore adopts neither Kuok's definition of "buy" nor his proposed distinction between receiving goods and obtaining possession of those goods.
[8] "Such" in this context means "of the sort or degree previously indicated or implied." Webster's Third New International Dictionary 2283 (2002).
[9] After the district court first precluded Kuok's duress defense, Kuok filed a motion to reconsider, which included additional detail and a proffer of his entire defense case. Motions to reconsider are reviewed for abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Because we conclude that the duress defense should have been sent to the jury on the basis of the facts presented to the district court before the motion to reconsider, we limit this discussion to those facts and review the legal issue de novo.
[10] The government does not challenge the sufficiency of Kuok's proffer with respect to the second element of duress.
[11] There is some evidence in the record that Kuok did, in fact, take multiple trips outside Macau, including family vacations. Given the other evidence Kuok proffered, we think this is evidence a jury should consider in assessing the reasonableness of Kuok's duress defense, rather than evidence that precludes his duress defense as a matter of law.
7.2.8.5.2.1.4 Com. v. DeMarco 7.2.8.5.2.1.4 Com. v. DeMarco
809 A.2d 256 (2002)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Richard DEMARCO, Appellant.
Supreme Court of Pennsylvania.
Submitted May 14, 2002.
Decided October 23, 2002.
[257] Brian R. Germano, Stroudsburg, for Richard DeMarco.
Bernard Ashley Anderson, Mark Peter Pazuhanich, Stroudsburg, for Com.
Before ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, JJ.
OPINION OF THE COURT
Justice NIGRO.
We granted allowance of appeal in the instant case to review whether the Court of Common Pleas of Monroe County committed reversible error during the trial of Appellant Richard DeMarco by refusing to charge the jury on the defense of duress. For the reasons that follow, we find that the trial court did err, and therefore, vacate Appellant's judgment of sentence and remand the case to the trial court for a new trial.
On February 16, 1998, Frank Larwa called the Pocono Mountain Regional Police Department to report that Salvatore Zarcone was at his home in Blakeslee, Pennsylvania, and had damaged his two cars. Shortly after Larwa's phone call, Officer Martin Reynolds arrived at Larwa's home and observed that two cars in the driveway next to the home were damaged. Officer Reynolds spoke with Larwa and Appellant, who were the only people present in the home.[1] Larwa told Officer Reynolds that Zarcone had appeared at his home and when he refused to open the door to allow Zarcone inside, Zarcone threatened to injure him and vandalized his two cars. Appellant corroborated Larwa's statements. Officer Reynolds asked Larwa and Appellant to each make a written statement regarding their allegations and gave them forms on which to make those statements.
Officer Reynolds had to leave the home before Larwa and Appellant wrote their statements but he returned later that day to pick up the completed statements. Both Larwa's and Appellant's signed written statements substantiated what they had orally told Officer Reynolds earlier that day. Based on Larwa's and Appellant's allegations, Officer Reynolds filed a charge of terroristic threats against Zarcone. On April 9, 1998, a preliminary hearing was held concerning that charge. Appellant testified during the preliminary hearing in a manner consistent with his [258] previous statements to Officer Reynolds. Based on the evidence presented at the preliminary hearing, the trial court determined that there was sufficient evidence to proceed to trial.
On November 10, 1998, a trial was held on the terroristic threats charge against Zarcone. During the trial, Zarcone called Appellant to testify regarding the statements he made to Officer Reynolds and the testimony he gave during the preliminary hearing. Instead of confirming his prior statements and testimony, however, Appellant testified that his statements and testimony were not true accounts of what happened on February 16. According to Appellant's testimony at trial, Zarcone was not at Larwa's house on February 16 and, in fact, Larwa had vandalized his cars himself. Appellant also testified that Larwa had coerced him into telling the false story both to Officer Reynolds and at the preliminary hearing. The jury subsequently acquitted Zarcone of the terroristic threats charge.
Based on the inconsistencies between his earlier statements and his testimony at Zarcone's trial, Appellant was charged with two counts of perjury, 18 Pa.C.S. § 4902, two counts of false swearing, 18 Pa.C.S. § 4903(a)(1),[2] one count of unsworn falsification to authorities, 18 Pa. C.S. § 4904(a)(1), and one count of false reports to law enforcement, 18 Pa.C.S. § 4906(b)(1).[3] Prior to trial, Appellant obtained a report from a medical expert in which the expert found that Appellant was coerced by Larwa into telling the false story to Officer Reynolds and at the preliminary hearing. Based on its receipt of the report, which Appellant planned to admit into evidence at his trial, on September 13, 1999, the day before Appellant's trial, the Commonwealth filed a motion in limine requesting that the trial court preclude Appellant from presenting any evidence regarding the duress defense provided for in 18 Pa.C.S. § 309. According to Section 309, the duress defense applies in the following circumstances:
(a) General Rule.—It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
(b) Exception.—The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.
P.L. 1482, No. 334, § 1, Dec. 6, 1972 (effective June 6, 1973), codified as amended, 18 Pa.C.S. § 309 (2002). Alternatively, the Commonwealth argued that if the trial court allowed Appellant to present evidence of the duress defense, the trial court [259] should exclude evidence from any medical experts regarding Appellant's mental condition.
On the morning of the first day of Appellant's trial, the trial court held a pretrial conference on the Commonwealth's motion in limine. The trial court ruled that Appellant could present evidence of the duress defense but that Appellant could not present any evidence from medical experts regarding his mental condition because, according to the trial court, such evidence would improperly bolster Appellant's credibility. Consequently, on the first day of his trial, Appellant argued that although he had made false statements to Officer Reynolds and at the preliminary hearing, Larwa had coerced him into making those statements. In support of his argument, Appellant presented evidence of his own testimony during Zarcone's trial in which he stated that Larwa had forced him to tell the false story by shooting him with a B.B. Gun and choking him, as well as Larwa's testimony at Zarcone's trial in which Larwa stated, "[Appellant's] brain doesn't work like yours and mine." N.T., 9/14/99, at 45.
In addition, Appellant presented evidence from his mother, Charmaine Mesa. Mesa testified that Appellant's father hit Appellant in the head when he was just nine months old and, as a result, Appellant underwent several operations, and ultimately, had a metal plate placed in his head. According to Mesa, Appellant continues to suffer from severe headaches and seizures. Mesa also testified that Appellant's school informed her that Appellant is borderline mentally retarded and will not be able to intellectually develop above approximately a third-grade level. Furthermore, Mesa testified that both Appellant and his wife, Tracey Zook, notified her that Larwa was threatening Appellant. Mesa explained that she notified her local police in Philadelphia about the threats, but was told by the police that they could not help Appellant because he was outside of their jurisdiction.
Zook also testified at Appellant's trial. She confirmed that Appellant receives social security checks because he is mentally disabled. Zook further testified that she was living at Larwa's home with Appellant when Larwa coerced Appellant into falsely accusing Zarcone. According to Zook, she heard Larwa telling Appellant what he should say in court and threatening to either kill Appellant or take away his social security checks if he did not testify as rehearsed.
At the end of the first day of trial, the Commonwealth made a motion requesting that the trial court exclude any additional evidence regarding the duress defense and refrain from instructing the jury about that defense. The next morning, before the start of the second day of the trial, the trial court granted the Commonwealth's motion. In support of its ruling, the trial court initially noted that the duress defense is provided for in 18 Pa.C.S. § 309. Nevertheless, the trial court then determined that based on the Superior Court's decision in Commonwealth v. Berger, 417 Pa.Super. 473, 612 A.2d 1037 (1992), in order to establish the duress defense, the evidence must show that: (1) the defendant was subject to a present and impending threat of death or serious bodily injury; (2) the defendant had a reasonable fear that the threatened harm would be made against him; and (3) the defendant had no reasonable opportunity to escape the threatened harm except by committing the criminal act. Id. at 1041-42.
Based upon its review of the evidence introduced on the first day of trial, the trial court found that the evidence was insufficient to support two of the three necessary elements set forth in Berger, [260] namely, that Appellant was subject to a present and impending threat of death or serious bodily injury, and that he did not have a reasonable opportunity to escape the threatened harm except by committing the criminal offenses.[4] Therefore, the trial court concluded that the duress defense was not a viable defense in the instant case. Moreover, the trial court determined that because the evidence indicated that by living with Larwa, Appellant recklessly placed himself in a situation where it was likely that he would be subject to duress, even if the evidence supported the duress defense, Appellant was not entitled to avail himself of the defense in light of the exception in 18 Pa.C.S. § 309(b).
Given its ruling on the Commonwealth's motion in limine, the trial court precluded Appellant from offering any additional evidence concerning the duress defense and refused, despite Appellant's requests, to instruct the jury regarding the defense. Indeed, in its charge to the jury, the trial court instructed, "as a matter of law, there is no legal application of duress that would apply in this particular case." N.T., 9/15/99, at 109. Following deliberations, the jury convicted Appellant of one count each of perjury, false swearing, unsworn falsification to authorities, and false reports to law enforcement. The trial court subsequently sentenced Appellant to one to two years imprisonment for his perjury conviction, two concurrent terms of eleven and one-half to twenty-three months imprisonment for his false swearing and unsworn falsification to authorities convictions, and another concurrent term of six to twelve months imprisonment for his false reports to law enforcement conviction.
Appellant appealed from his judgment of sentence to the Superior Court arguing, among other things, that the trial court erred in failing to instruct the jury on the duress defense. The Superior Court agreed with the trial court that Appellant was required to offer evidence of the three elements set forth in Berger in order to establish the duress defense. The Superior Court then affirmed the trial court's finding that because the evidence failed to satisfy two of those three elements, the duress defense was not proper in the instant case and Appellant was not entitled to a jury charge regarding the defense.[5] Appellant subsequently filed a petition for allowance of appeal to this Court, and we granted allocatur to consider whether the lower courts properly determined that Appellant was not entitled to a jury charge on the duress defense.
In deciding whether a trial court erred in refusing to give a jury instruction, we must determine whether the court abused its discretion or committed an error [261] of law. Von der Heide v. Commonwealth, Dep't of Transp., 553 Pa. 120, 718 A.2d 286, 288 (1998). Where a defendant requests a jury instruction on a defense, the trial court may not refuse to instruct the jury regarding the defense if it is supported by evidence in the record.[6]Commonwealth v. Lightfoot, 538 Pa. 350, 648 A.2d 761, 764 (1994). When there is evidence to support the defense, it is "for the trier of fact to pass upon that evidence and improper for the trial judge to exclude such consideration by refusing the charge." Id. (internal quote and citations omitted).
As noted above, both lower courts in the instant case applied a stringent three-part test in determining whether the evidence was sufficient to support the duress defense. We conclude, however, that the three-part test applied by the lower courts is the wrong test for determining whether the evidence supports the duress defense. That test was the one followed at common law, which governed the law of duress prior to the enactment of 18 Pa.C.S. § 309 in 1972. See United States v. Anthony, 145 F.Supp. 323, 339-40 (M.D.Pa.1956) (citing common law rule); see also Commonwealth v. Schwartz, 445 Pa. 515, 285 A.2d 154, 157 (1971) (citing common law rule as law governing duress in Pennsylvania); 10 P.L.E. Criminal Law § 42 (1972) (same). When the General Assembly enacted Section 309, however, it abrogated the common law test, finding that it was too difficult for defendants to meet. See 18 Pa.C.S. § 309, cmt. (1972) (standard set forth in Section 309 liberalizes existing law which provides that the coercion must be immediate and induce a well-grounded fear of death or serious bodily injury); see also 18 Pa.C.S. § 105 cmt. (1972) (code "carefully defines crimes and defenses rather than leaving their definition to several centuries of common law"). Moreover, since the enactment of Section 309, this Court has repeatedly recognized that the test for determining whether the evidence supports the duress defense is the one set forth in the statute, rather than the common law test followed below. See Commonwealth v. Pelzer, 531 Pa. 235, 612 A.2d 407, 413-14 (1992); Commonwealth v. Kyslinger, 506 Pa. 132, 484 A.2d 389, 390-91 (1984); Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986, 988 (1980); Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440, 446 (1975); see also, Pa. SSJI (Crim.) § 3.09.[7] Accordingly, the trial court in the instant case committed an error of law by using the abrogated common law test to determine whether the evidence supported the duress defense here.
As set forth by the General Assembly in Section 309, in order to establish the duress defense in this Commonwealth, there must be evidence that: (1) there was a use of, or threat to use, unlawful force against the defendant or another person; and (2) the use of, or threat to use, unlawful force was of such a nature that a person of [262] reasonable firmness in the defendant's situation would have been unable to resist it. Thus, to establish the duress defense under Section 309, unlike under the common law rule, the force or threatened force does not need to be of present and impending death or serious bodily injury. Instead, the relevant inquiry under Section 309 is whether the force or threatened force was a type of unlawful force that "a person of reasonable firmness in [the defendant's] situation would have been unable to resist." Id. (emphasis added). This test is a hybrid objective-subjective one. See 18 Pa.C.S. 309 cmt. (1972) ("[Section 309] is derived from Section 2.09 of the Model Penal Code"); MODEL PENAL CODE § 2.09 explanatory note (1985); id. § 2.09 cmt. at 7 (Tent. Draft No. 10, 1960). While the trier of fact must consider whether an objective person of reasonable firmness would have been able to resist the threat, it must ultimately base its decision on whether that person would have been able to resist the threat if he was subjectively placed in the defendant's situation. Therefore, in making its determination, the trier of fact must consider "stark, tangible factors, which differentiate the [defendant] from another, like his size or strength or age or health." MODEL PENAL CODE § 2.09 cmt. at 7 (Tent. Draft No. 10, 1960). Although the trier of fact is not to consider the defendant's particular characteristics of temperament, intelligence, courageousness, or moral fortitude, the fact that a defendant suffers from "a gross and verifiable" mental disability "that may establish irresponsibility" is a relevant consideration. Id. at 6. Moreover, the trier of fact should consider any salient situational factors surrounding the defendant at the time of the alleged duress, such as the severity of the offense the defendant was asked to commit, the nature of the force used or threatened to be used, and the alternative ways in which the defendant may have averted the force or threatened force. See id. at 7-8.
Even where the evidence is sufficient to establish the elements of the duress defense set forth in Section 309(a), however, the defendant still may not be entitled to avail himself of the defense under the exception in Section 309(b). According to that exception, the duress defense is not available if the evidence establishes that the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress. 18 Pa.C.S. § 309(b). For purposes of Section 309, "recklessly" is defined as follows:
A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.
18 Pa.C.S. § 302(b)(3) (emphasis added). See also Commonwealth v. Knight, 416 Pa.Super. 586, 611 A.2d 1199, 1204-05 (1992). Therefore, like the test for determining whether the defendant was subject to duress, the test for determining whether a defendant acted recklessly under Section 309 is a hybrid objective-subjective one. See MODEL PENAL CODE § 2.02 cmt. at 237-40 (1985). The trier of fact must decide whether the defendant disregarded a risk that involves a gross deviation from what an objective "reasonable person" would observe if he was subjectively placed "in the [defendant's] situation." 18 Pa.C.S. § 302(b)(3). Thus, in making its determination, the trier of fact must again take into account the stark tangible factors [263] that differentiate the defendant from another person and the salient situational factors surrounding the defendant. See MODEL PENAL CODE § 2.02 cmt. at 237-40 (1985).
Here, Appellant presented evidence at trial that Larwa shot him with a B.B. Gun, choked him, and threatened to deprive him of his social security checks or kill him if he did not corroborate Larwa's account of how his cars came to be damaged. Appellant also presented evidence of his situation when the threats occurred, including that he: (1) suffers from seizures, (2) is borderline mentally retarded with a third grade intellectual level,[8] (3) receives social security because he is mentally disabled, and (4) was living with Larwa without transportation or sufficient money to move to alternative housing. We find that the above evidence was clearly sufficient to present a question for the jury as to whether Appellant was subject to duress pursuant to Section 309, i.e., whether Appellant was subject to unlawful force and threats by Larwa that a person of reasonable firmness in Appellant's situation would not have been able to resist.
The trial court found, however, that even if the evidence was sufficient to support the duress defense, the defense was not available based on the exception in Section 309(b). According to the trial court, this Court's decision in Pelzer, 531 Pa. 235, 612 A.2d 407, compelled such a conclusion. We disagree.
In Pelzer, the defendant argued that the trial court erred in refusing to provide a jury instruction regarding the duress defense because his post-arrest statement showed that his co-defendant had coerced him into shooting the victim. This Court rejected that argument, finding that the defendant's post-arrest statement was the only evidence tending to support the duress defense and that the statement itself showed that "nothing ... can be more obvious than that [the defendant] knowingly placed himself a situation in which it was probable that he would be subject to duress." Id. at 414. Thus, in Pelzer, this Court clearly based its decision that the defendant was not entitled to a duress defense instruction on the fact that the evidence left no question as to whether or not the defendant had recklessly placed himself in a situation where it was probable that he would be subject to duress.
Here, as noted by the trial court, there was evidence introduced at trial that Appellant had lived with Larwa in the past, had a bank account and an ATM card, had married several times, had worked, and was capable of contacting others via telephone. There was also evidence that Appellant had failed to seek the assistance of law enforcement officers in dealing with the alleged duress by Larwa when he was in the officers' presence. While these factors may call into question whether Appellant recklessly placed himself in a situation where it was probable that he would be subject to duress, we do not find that they made it completely obvious, as in Pelzer, that that was the case. This is particularly so in light of the evidence of Appellant's [264] situation, including the fact that he suffers from borderline mental retardation and that he was living with Larwa without transportation or sufficient money to leave. Accordingly, we conclude that there was sufficient evidence to raise a question of fact as to whether or not Appellant had acted recklessly.
Given that the evidence introduced at trial was sufficient to create an issue of fact for the jury regarding whether Appellant was subject to duress under Section 309 and whether the exception in Section 309(b) applies, we find that the trial court was required to instruct the jury regarding the duress defense and committed reversible error by refusing to do so. See Lightfoot, 648 A.2d at 764. We therefore reverse the decision of the Superior Court, vacate Appellant's judgment of sentence, and remand this case to the trial court for proceedings consistent with this decision.
Justice EAKIN files a concurring opinion.
Justice EAKIN, Concurring.
I agree with the proposition that the statute trumps the "three pronged test," and that the defense was entitled to the instruction, despite contrary language in the caselaw. While defendant never testified, the evidence included his prior testimony of threats, making the duress instruction appropriate, and I therefore concur in the reversal of the prior decision. However, I cannot agree with the broad statements of what is and is not relevant and admissible evidence as concerns this defense.
The test involves (1) a person of reasonable firmness, (2) in the accused's circumstance. I believe the language used by my colleagues elevates the accused's subjective mental firmness into the equation; this is not part of the statute, comments from the 1960 tentative draft of the Model Penal Code notwithstanding. These broad strokes open the way for "experts" to offer hindsight opinions about what a defendant could and could not resist, which is the ultimate issue for the jury. Considerations of retardation and such may be relevant in a given case, but they are not determinative of this appeal; I would let them for another day when they are squarely presented.
[1] Appellant had been living with his sister Donna DeMarco and her boyfriend Larwa for some time before the alleged events of February 16, 1998. Appellant did not move out of the home until approximately August 12, 1998.
[2] The Commonwealth charged Appellant with two counts of perjury and two counts of false swearing because, according to the Commonwealth, Appellant either committed one count of perjury and one count of false swearing at Zarcone's trial or alternatively one count of perjury and one count of false swearing at the preliminary hearing.
[3] Appellant was also charged with receipt of stolen property, 18 Pa.C.S. § 3925, and theft by unlawful taking or disposition, 18 Pa.C.S. § 3921(a), based on Larwa's claims that Appellant had taken $3,000 from him. However, the trial court dismissed the charge of receipt of stolen property and Appellant was acquitted of theft by unlawful taking or disposition.
[4] According to the trial court, the evidence established that Appellant was not subject to a present and impending threat of serious harm by Larwa because Appellant had the opportunity to notify either Officer Reynolds or one of the many law enforcement officers present at the preliminary hearing about the alleged coercion by Larwa, but he failed to do so. In addition, the trial court found that Appellant could have escaped Larwa's allegedly coercive conduct by moving out of Larwa's residence and going to live with friends or family. Indeed, the trial court found it notable that in August 1998, Appellant did move to Lancaster, Pennsylvania, nearly two hundred miles away from Larwa's home in Blakeslee, and he did not notify any authorities about the alleged threats by Larwa until Zarcone's trial in November 1998.
[5] The Superior Court also agreed with the trial court that the evidence indicated that Appellant recklessly placed himself in a situation where he would be subject to duress and therefore, even if the evidence established the duress defense, the defense was not available to Appellant based on the exception in Section 309(b).
[6] We note that "[s]uch evidence may be adduced by the defendant as part of his case, or, conceivably, may be found in the Commonwealth's own case in chief or be elicited through cross-examination." Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880, 884-85 (1974).
[7] We also note that the Superior Court erroneously cited Berger, 417 Pa.Super. 473, 612 A.2d 1037, as support for its conclusion that the common law test for duress applied in the instant case. While in its opinion, the Berger court did quote a portion of the Superior Court's decision in Commonwealth v. Morningwake, 407 Pa.Super. 129, 595 A.2d 158 (1991), which set forth the common law test for duress, the Berger court ultimately concluded that the duress defense was not viable based on Section 309. Moreover, to the extent that Morningwake endorses the common law test for duress, rather than that set forth in Section 309, we disagree with it.
[8] During Appellant's trial, the Commonwealth argued that evidence that Appellant had a plate in his head, suffered from seizures, and was borderline mentally retarded could not be admitted for purposes of determining whether the duress defense was applicable under Section 309. Although the trial court decided to allow the evidence, it subsequently questioned whether such evidence was relevant under Section 309. See N.T., 9/14/99, at 157; Tr. Ct. Op. at 33. We find that the above evidence is clearly indicative of stark tangible ways in which Appellant differs from others in terms of his health and mental capacity, which, as noted above, is relevant to determining whether a defendant was subject to duress under Section 309, and therefore, it was properly admitted.
7.2.8.5.2.1.5 Dando v. Yukins 7.2.8.5.2.1.5 Dando v. Yukins
461 F.3d 791 (2006)
Debra DANDO, Petitioner-Appellant,
v.
Joan YUKINS, Warden, Respondent-Appellee.
No. 04-1691.
United States Court of Appeals, Sixth Circuit.
Argued: April 28, 2006.
Decided and Filed: August 30, 2006.
[792] [793] ARGUED: Carol Wright, Columbus, Ohio, for Appellant. Janet A. VanCleve, Office of the Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Carol Wright, Columbus, Ohio, for Appellant. William C. Campbell, Office of the Attorney General, Lansing, Michigan, for Appellee.
Before: MARTIN, GUY, and CLAY, Circuit Judges.
MARTIN, J., delivered the opinion of the court, in which CLAY, J., joined.
GUY, J. (pp. 802-805), delivered a separate dissenting opinion.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
Debra Dando appeals the district court's denial of her habeas corpus petition. Dando had been involved in a crime spree with her boyfriend, and pled no contest to several counts of robbery and related charges. Dando later sought unsuccessfully to vacate her plea. Her habeas petition challenged the Michigan state courts' denial of her request for a mental health expert and her claim of ineffective assistance of counsel. For the following reasons, we reverse the district court's denial of her habeas petition.
I.
The district court found the following uncontested facts regarding the crimes to which Dando pled no contest:
On January 28, 2000, Petitioner Debra Dando and her boyfriend Brian Doyle committed a string of armed robberies and assaults in Oakland County, Michigan. At approximately, 6:10 a.m., Petitioner requested a ride from George Cubitt in White Lake Township. Mr. Cubitt drove Petitioner to the Kroger store in White Lake as she requested. Doyle followed Mr. Cubitt and Petitioner in his pickup truck. When Mr. Cubitt stopped at the Kroger store, Doyle confronted him with a sawed off shotgun. Mr. Cubitt was robbed of his wallet and car keys and Petitioner and Doyle fled in Doyle's truck.
At approximately 6:46 a.m., Petitioner attempted to use two of Mr. Cubitt's stolen credit cards at an Amoco Gas Station in Waterford Township to purchase gasoline. Both of the credit cards were rejected by the Amoco station and Petitioner and Doyle fled the gas station in their truck with [out] paying for $ 32.00 in gasoline.
At approximately 7:15 a.m., Doyle attempted the armed robbery of Cheryl Gibbons at the Mobil gas station in Pontiac. Petitioner and Doyle were inside their truck at the gas station parking lot. Ms. Gibbons, a customer of the gas station, had re-entered her motor vehicle when Doyle approached her and put the sawed off shotgun to her cheek. Doyle told Ms. Gibbons to move over inside of her car, but Ms. Gibbons refused to comply and exited her vehicle. Doyle yelled at Ms. Gibbons to give him her money. When Ms. Gibbons refused to comply, Doyle ran back to the truck and Petitioner drove away with him from the gas station.
At approximately 9:06 a.m., Scott Cooper was sitting in his motor vehicle at the parking lot the Great Lakes Crossing Shopping Mall in Auburn Hills. Petitioner drove Doyle's truck and parked [794] behind Mr. Cooper's vehicle. Doyle exited the truck and put the sawed-off shotgun to Mr. Cooper's face and robbed him of his wallet and car keys. Doyle re-entered the truck and Petitioner drove away from the crime scene.
At approximately 12:30 p.m., Petitioner and Doyle drove to Shanigan's restaurant in Pontiac. Doyle entered the restaurant and pointed the sawed-off shotgun at a waitress, Jennifer Sanchez, demanding her money. Ms. Sanchez refused to comply with this demand and ran into the kitchen to call the police. Doyle left without obtaining any money and he and Petitioner drove to a nearby party store.
Petitioner was seen walking into a party store where Mitchell Figa was working behind the counter. Petitioner asked Mr. Figa if he was the only person present and then left. Doyle entered the store and committed armed robbery of Mr. Figa with the sawed-off shotgun, obtaining $100.00 from Mr. Figa. Petitioner drove away from the party store. Several law enforcement agencies became engaged in an attempt to apprehend Petitioner and Doyle. During the late afternoon hours of January 28, 2000, Petitioner and Doyle were spotted in their truck by a Waterford Township police officer. A traffic stop of the truck was attempted and Petitioner exited the truck and began to flee. The officer was subsequently confronted by Doyle who was still in possession of the sawed-off shotgun. Doyle was fatally shot by the officer who was forced to act in self-defense. Petitioner was apprehended in her flight on foot a short while later.
D. Ct. Op. at 2-4.
After Dando was apprehended on January 28, 2000, she waived her Miranda rights and confessed to participating in the robberies. She received appointed counsel, who subsequently recommended that she plead no contest to all charges. According to Dando, she informed her attorney that she had a long history of violent sexual and physical abuse and that Doyle beat her and threatened to kill her immediately before she participated in the robberies. She requested that counsel seek a mental health expert before she enter a no contest plea. Counsel allegedly refused to request expert assistance, explaining that an expert would cost too much money. Counsel also allegedly continued to insist that Dando enter a no contest plea. On March 12, 2000, Dando followed her attorney's advice and pled no contest to three counts of armed robbery, one count of conspiracy to commit armed robbery, two counts of assault with intent to rob while armed, and two counts of unlawful possession or use of a financial transaction device. The plea was entered pursuant to a Cobbs agreement, whereby the circuit court agreed to sentence Dando at the low end of the state's sentencing guidelines. On April 24, 2000, the circuit court sentenced Dando to ten to thirty years imprisonment, explaining:
Miss Dando's 30, and certainly by sentencing her at the low end of the guidelines we are recognizing the fact that she was apparently misused by Mr. Doyle, but I've indicated on the record already she had several opportunities to remove herself from that and cease in the agreement to perpetrate these crimes . . .
Sentencing Hr'g Tr. at 13.
On May 22, 2000, Dando obtained new counsel for the appeals process. On January 17, 2001, Dando's appellate counsel moved in the Michigan circuit court for the appointment of an expert on Battered Woman's Syndrome to assist with the appeals process. The motion indicated that Petitioner was considering whether to move to withdraw her plea and enter a [795] duress defense based on Battered Woman's Syndrome. Along with the motion, Dando submitted three affidavits, one from her aunt, Barbara Ditch, one from a friend, Luther Early, and one from herself. The affidavits documented a history of physical and sexual abuse.
The circuit court held a hearing on the motion on January 24, 2001. At the hearing, appellate counsel explained that she needed an expert to assess whether Dando should move to withdraw her no contest plea. The circuit court construed the request as one for an expert to assist with an ineffective assistance of counsel claim, presumably because Dando would need such a claim to withdraw her plea. The circuit court denied this request, holding that Dando had not received ineffective assistance of counsel. The court reasoned that Dando's trial counsel had made a strategic choice to recommend a no contest plea and that this strategic choice was "very appropriate" in light of the lessened sentence.
On March 1, 2001, Dando filed a "delayed application for leave to appeal" and a "motion to remand to permit Petitioner to withdraw her plea" with the Michigan Court of Appeals. In the application for leave to appeal, Dando argued that the trial court abused its discretion in denying her motion for an expert on Battered Woman's Syndrome because counsel needed the assistance of a Battered Woman's Syndrome expert in determining whether she should move to withdraw her plea. The motion expressly stated that Dando's trial counsel was "ineffective for failing to request an expert witness prior to determining how Ms. Dando should proceed." The Michigan Court of Appeals denied both motions, stating that the application for leave to appeal was denied "for lack of merits in the grounds presented." The Michigan Supreme Court subsequently denied leave to appeal.
Dando filed a petition for writ of habeas corpus on July 22, 2002 with the United States District Court for the Eastern District of Michigan, claiming "the trial court abused its discretion when it denied the motion for payment of a Battered Woman's Syndrome expert on appeal." The district court noted that an abuse of discretion claim based on the state's rules of evidence is not a recognized basis for habeas relief, as it only involves a question of state law. D. Ct. Op. at 10. However if the state courts' rulings amounted to "a functional denial of the right to present a meaningful defense," the decision constituted a violation of Dando's Sixth Amendment rights, and presented a ground for federal habeas relief. Id. Further, Dando's claim that her trial counsel was ineffective for failing to investigate a duress defense was another cognizable ground for federal habeas relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id.
Ultimately, however, the district court denied the writ, reasoning that duress was not a tenable defense on the facts of Dando's case. Id. at 11-17. Consequently, the district court determined that Dando was not prejudiced either by her counsel's failure to pursue a duress defense, or the denial of a mental health expert, and that there was no basis to grant habeas relief on either ground. Id. at 17-18. The district court also reasoned that since a duress defense "would have been hopeless," Dando had no legitimate grounds to contest her plea. Id. at 20-24. Dando sought to appeal the district court's decision to this Court. Although the district court denied her request for a certificate of appealability, it was subsequently granted by this Court.
II.
This Court reviews a district court's denial of a writ of habeas corpus de novo. [796] Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.2000). Factual determinations are generally reviewed for clear error, "except where the district court has made factual determinations based on its review of trial transcripts and other court records." Mackey v. Russell, 148 Fed. Appx. 355, 359 (6th Cir.2005). In such cases, because no credibility determination or findings of fact are required, factual conclusions are reviewed de novo. Wolfe, 232 F.3d at 501.
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a writ of habeas corpus may be granted "with respect to any claim that was adjudicated on the merits in State court" if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Under the "contrary to" provision, a federal habeas court should grant the writ "if the state court arrived at a conclusion `opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.'" Wolfe, 232 F.3d at 501 (quoting Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The district court should issue the writ under the "unreasonable application" clause where "the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. Where a state court fails to address federal law, § 2254 does not apply, and the decision is reviewed de novo. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004) (finding the § 2254(d) standard inapplicable where state courts did not address federal issue because "[b]y its terms, this provision only applies to claims that were `adjudicated on the merits in State court proceedings.'").
III.
The certificate of appealability from this Court defined Dando's claim as presenting two questions: (1) whether the sentencing court abused its discretion in denying Dando's motion for an expert witness, and (2) whether trial counsel was ineffective for failing to pursue a duress defense. Although the certificate of appealability framed the issues involved here as separate questions, they are inherently intertwined with one another. Dando did not seek the help of an expert before entering her no contest plea in state court. Rather, in a collateral state proceeding, she requested an expert to assist her in determining whether or not she should seek to withdraw her plea. The only relevant federal constitutional hook that would require allowing Dando to withdraw her plea is a claim that her counsel was ineffective in advising her to plead no contest under Hill v. Lockhart. 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (stating that when "a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases."). Thus, her request for a mental health expert to help her decide whether or not to withdraw her plea and her claim of ineffective assistance of counsel are one in the same. As presented in her federal habeas claim now before this Court, the issue can be articulated as follows: was it an unreasonable application of federal law to reject Dando's claim of ineffective assistance of counsel based on her trial counsel's failure to consult an expert and otherwise investigate the validity of a duress defense based on Battered Woman's Syndrome?
It is clear from the record that the Michigan state courts and the district [797] court understood these two issues to be inherently intertwined, and addressed the questions together accordingly. Dando's initial post-sentencing motion in state court was styled "motion for payment of expert witness fees," in which Dando made clear she was "considering whether to withdraw her plea and asserting that she suffered from Battered Woman's Syndrome." The motion explicitly stated "[t]rial counsel was therefore ineffective for failing to request an expert witness." At the hearing on this motion, the state trial judge acknowledged that ineffective assistance of counsel was the basis for the motion by asking the prosecutor "[i]sn't her claim then on appeal ineffectiveness of counsel?" The prosecutor replied, "[t]hat's essentially what we have." After the trial court denied this motion, Dando's Application for Leave to Appeal, filed with the Michigan Court of Appeals, included the exact same sentence about trial counsel's ineffective assistance, as did her application to the Michigan Supreme Court. Both of these applications for discretionary appeal were summarily denied.
Despite the inseparability of Dando's request for an expert and her ineffective assistance of counsel claim, the state now contends that the ineffective assistance of counsel claim was never presented to the state's appellate courts, and that the district court should not have entertained this claim because Dando failed to meet the exhaustion requirements of 28 U.S.C. § 2254(b) and (c). Given our determination that the two issues from the certificate of appealability are in fact one in the same and that Dando adequately referenced the ineffective assistance of counsel claim in her state court filings, we conclude that Dando did indeed present this claim to the state courts. She has thus "exhausted the remedies available in the courts of the State" as required under section 2254.
The state also contends that Dando's ineffective assistance of counsel claim is procedurally defaulted because she failed to follow the correct procedures in presenting it to the state courts. See Clinkscale v. Carter, 375 F.3d 430, 440 (6th Cir.2004) ("[a] federal court is generally barred from considering an issue of federal law arising from the judgment of a state court if the state judgment `rests on a state-law ground that is both "independent" of the merits of the federal claim and an "adequate" basis for the [state] court's decision.'" (quoting Frazier v. Huffman, 343 F.3d 780, 790 (6th Cir.2003)). Specifically, the state points to a Michigan rule of appellate procedure regarding the format of briefs, which requires a statement of the questions involved, with each issue for appeal separately numbered. MICH. CT. R. § 7.212(C)(5). The state claims that because Dando did not present the ineffective assistance of counsel claim with a separate preceding number in the title, the claim has been procedurally defaulted.
Because Dando's claim of ineffective assistance of counsel is effectively inseparable from her claim for a mental health expert, it is far from clear that she would have had to separately number it in her brief to meet the requirements of the state court rule. Both the Michigan Court of Appeals and the state Supreme Court denied Dando's Applications for Leave to Appeal without issuing an opinion, so we have no way to know whether some inadequacy of these filings could have amounted to an "independent" and "adequate" basis for the rejection of her attempt to appeal the state trial court's decision under our procedural default precedent. See Clinkscale, 375 F.3d at 430. Moreover, a close look at the Michigan Rules of Court reveals that the rule identified by the state was not even relevant to Dando's state [798] court filings. This rule explicitly governs the format for briefs filed on appeal. See MICH. CT. R. § 7.212. Dando never had an opportunity to file an appellate brief, because the state appellate courts denied both of her applications for leave to file a discretionary appeal. A separate Michigan Court Rule governs the filing of Applications for Leave to Appeal. See MICH. CT. R. § 7.205. The state has not identified any shortcomings of Dando's Application under this rule, nor does our review of Dando's filing and the text of the rule make any such shortcoming apparent. Because Dando has done all she could to properly raise her present claim in the state courts, her claim is not procedurally defaulted, she has met the exhaustion requirement of 28 U.S.C. § 2254(b) and (c), and her claim as articulated above is properly before us.[1]
IV.
Dando's claim that her trial counsel's failure to seek a mental health expert and to explore a potential defense based on duress and Battered Woman's Syndrome is governed by the standard set forth in Hill. 474 U.S. at 56, 106 S.Ct. 366. The Supreme Court stated in Hill that the two-part test to establish ineffective assistance of counsel, articulated earlier in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), "applies to challenges to guilty pleas based on ineffective assistance of counsel." 474 U.S. at 58, 106 S.Ct. 366. Under that test, a defendant must show that counsel's performance fell below an objective standard of reasonableness, and that the defendant was prejudiced by the attorney's error. Id. at 57-59, 106 S.Ct. 366. In the context of a challenge to a guilty plea, the defendant must show that "but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. 366. The Supreme Court added that an assessment of prejudice must include a prediction of the likely outcome at trial. Id. In the case of an unexplored affirmative defense or undiscovered evidence, this prediction of the likely outcome at trial is relevant to determine whether or not the potential defense or evidence would have caused counsel to change the recommendation as to the plea. Id.
Dando's counsel failed here to adequately investigate the availability of a duress defense and the related possibility that Dando suffered from Battered Women's Syndrome. Dando informed her attorney that she had a long history of violent sexual and physical abuse, that Doyle beat her and threatened to kill her immediately before she participated in the robberies, and even requested a consultation with a mental health expert before entering her plea. The attorney refused to seek assistance from an expert, informing Dando that it would be too costly. This advice was flatly incorrect, as Dando would have been entitled to have the state pay for a mental expert under the Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (holding that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, [799] assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense").[2] Investigation of this potential defense was a minimal requirement to providing adequate representation at the plea stage, particularly since Dando herself told her attorney about her history of abuse, and even suggested the need for a mental health expert. See O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir.1994) ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052)). Although courts are typically required to show heightened deference to an attorney's strategic decisions supported by professional judgment, where a failure to investigate does not reflect sound professional judgment, such deference is not appropriate. Id. The evidence in this case suggests that the attorney's decision was not an exercise in professional judgment because it reflected a misunderstanding of the law regarding the availability of a mental health expert. The state courts' determination that Dando's counsel's performance was not inadequate misapplied clearly established Supreme Court precedent that required counsel to adequately investigate potential defenses.
The fact that Dando received a relatively lenient sentence in exchange for her no contest plea does not render the failure to investigate Battered Women's Syndrome [800] and duress a sound professional judgment. The state court praised the decision by trial counsel to raise Dando's abuse in obtaining a shorter sentence. However, had counsel investigated the potential defenses and pursued them at trial, Dando would have had a chance to be acquitted altogether, or convicted of only some of the counts charged and acquitted of others (perhaps if the jury found the duress to be more immediate during particular portions of the crime spree). Given this possibility, there is a likelihood that Dando would not have entered a plea, and that the failure to investigate undermined the knowing and voluntary nature of her plea. In showing deference to the decision to seek a plea bargain with a lower sentence, the state courts essentially conflated what were two critical decisions by Dando's attorney into one. Counsel had an obligation both to investigate potential defenses, and to subsequently ensure that Dando's history of abuse was accounted for at sentencing. If the attorney had assessed possible defenses, and still recommended a plea because in his judgment the defenses were long shots, his choice to negotiate a lower sentence based on Dando's history of abuse and to forego the potential defense would be sound, or at least entitled to some deference. However because he simply failed to assess a possible defense, due in part to his incorrect understanding of the law regarding the provision of a mental health expert[3], his advocacy at sentencing does not insulate the shortcomings at the plea stage. Given these shortcomings, Dando has met the first requirement of Hill.
V.
The remaining question is whether Dando was prejudiced by the inadequate representation she received in deciding to plead guilty. To meet the prejudice requirement, Dando "must show that there is a reasonable probability that, but for counsel's errors, [s]he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59, 106 S.Ct. 366. This determination depends in part "on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea" and the related inquiry of "whether the evidence likely would have changed the outcome of a trial." Id. Dando argues that she would not have pled guilty had counsel investigated and discussed with her the possibility of presenting a duress defense based on Battered Woman's Syndrome.
The district court rejected this approach based on its determination that evidence Dando was suffering from Battered Woman's Syndrome would not have supported a duress defense. The elements of duress under Michigan law are:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [801] People v. Lemons, 454 Mich. 234, 247, 562 N.W.2d 447 (Mich.1997). Additionally, "the threatening conduct or act of compulsion must be "`present, imminent, and impending[,][a] threat of future injury is not enough,' and []the threat `must have arisen without the negligence or fault of the person who insists upon it as a defense.'" Id. (quoting People v. Merhige, 212 Mich. 601, 610-11, 180 N.W. 418 (1920)). The district court found that Dando would have been unable to establish a duress defense because she had several opportunities to escape during the crime spree, and because the requirement for a duress defense that the threat create a fear in the mind of a reasonable person precludes the use of evidence of Battered Woman's Syndrome, which is inherently subjective.
We disagree with the district court's conclusion that evidence of Battered Woman's Syndrome is irrelevant to a duress defense under Michigan law. Although we have not found, and the parties have not cited, a case that addresses the issue either way, the Michigan Court of Appeals has allowed evidence of Battered Woman's Syndrome to show the related affirmative defense of self-defense. In People v. Wilson, 194 Mich.App. 599, 604, 487 N.W.2d 822 (Mich.Ct.App.1992), the Michigan Court of Appeals endorsed the introduction of evidence of a defendant's Battered Woman's Syndrome "to explain how a battered spouse reacts to the batterer, to explain the reasonableness of the battered spouse's perception that danger or great bodily harm is imminent, and also to rebut the prosecution's inference that the defendant could have left rather than kill the spouse." In the self defense context, the court agreed with the defendant that the evidence of Battered Woman's Syndrome could be introduced to the jury "because it relates to the question whether she reasonably believed her life was in danger." Id. at 602, 487 N.W.2d 822 (emphasis added).
This reasoning makes clear that the theory of Battered Woman's Syndrome is not at odds with a reasonableness requirement—if anything, evidence of Battered Woman's Syndrome can potentially bolster an argument that a defendant's actions were in fact reasonable. Although those of us who are not so unfortunate to have to live with constant, imminent threats of violence might look at the actions of a defendant in Dando's situation from the relative comfort of a judge's chambers or a jury box and wonder what reasonable person would have facilitated Doyle's shocking crime spree, evidence of Battered Woman's Syndrome can explain why a reasonable person might resort to such actions given a history of violent abuse and the imminent violent threats. Additionally, as the Wilson court noted, this evidence is relevant to show why a defendant did not leave the company of her abuser. For these reasons, we believe that evidence of Battered Woman's Syndrome could potentially have been relevant to all of the elements of a duress defense under Michigan law.
Dando's experience of abuse is itself shocking, and would present a potentially compelling duress defense based on Battered Woman's Syndrome. Dando's mother was a drug addict, who would "lend out" Dando to drug dealers for months at a time to pay off her drug debts, from the time Dando was six years old until she was twelve. Dando was forced to perform sex acts upon the dealers. Her parents abused her both physically and sexually, and her father took photographs of her which the state court described as shocking and appalling. Dando's first husband seems to have abused her to the point where she was "scared to death of him." Doyle also violently abused Dando, and one of the affidavits submitted by an acquaintance claimed that Doyle said he was "selling" Dando. Doyle threatened and hit [802] Dando on the morning of the offenses, possibly giving her a concussion and requiring her to seek medical attention. Doyle's reckless and violent behavior is also exemplified by his brandishing of a shotgun, repeated robbery attempts, and eventual armed confrontation with the police that resulted in his death.
With help from an expert on Battered Woman's Syndrome, Dando could have introduced evidence of all of the elements of a duress defense. Just prior to embarking on the crime spree, Doyle had threatened her life if she did not cooperate. Given Doyle's propensity for violence, with which Dando had sadly become too familiar, a reasonable person in her situation would likely have feared death or serious bodily harm. Dando's testimony could also support conclusions that the threats in fact caused her to fear death or serious bodily harm, that this fear was operating upon her mind at the time of her cooperation with Doyle, and that she cooperated with Doyle to avoid the threatened harm. Evidence of Battered Woman's Syndrome would also have been relevant to explain why Dando may have felt unable to escape the situation.
For purposes of evaluating prejudice under Hill, we need not determine to an absolute certainty that a jury would have acquitted Dando based on a defense of duress. Rather, we need only find a likelihood of a favorable outcome at trial such that Dando's counsel would not have given the same recommendation and she likely would have rejected the guilty plea. We find there to be a sufficient likelihood here to establish ineffective assistance of counsel under Hill. Because the state courts failed to apply this well established Supreme Court precedent, the writ of habeas corpus should be granted by the district court.
VI.
For the foregoing reasons, the district court's order denying Dando's writ of habeas corpus is reversed. The case is remanded to the district court, with instructions to issue the writ requiring the state to vacate Dando's guilty plea.
RALPH B. GUY, JR., dissenting.
I agree that the question is whether petitioner was denied effective assistance of counsel, and that this claim was not waived. I respectfully dissent, however, from the result reached by the court.
A claim of ineffective assistance of counsel requires proof that counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court was the only state court to address this claim on the merits. While not parsed out under the Strickland framework, the trial court made the following findings: (1) that the decision to abandon potential defenses in exchange for a favorable sentencing agreement is a common defense strategy; (2) that, as a factual matter, Dando had several opportunities to remove herself from the crime spree, but did not; and (3) that trial counsel had acted appropriately and secured a "very good break" on Dando's sentence as a result of the plea.
Arguing first that the state court's rejection of this claim was based on an unreasonable determination of the facts under § 2254(d)(2), Dando focuses on the trial judge's explanation that the decision to enter the plea was "a choice made there by her attorney in counseling her, and they both made a choice together that it would be best for her to plead and move onward, rather than going to trial and setting up the defenses that may have been available to her." Specifically, she claims it was [803] unreasonable to find that "they both made the choice together" because it was contradicted by her insistence at sentencing that she was trying to prove that she did not have a choice about joining in the crime spree. The significance of this finding, however, was not that they had made the decision together but, rather, that counsel's failure to pursue possible defenses was a strategic decision.
Under the unreasonable application clause of § 2254(d)(1), it is not sufficient that a reviewing court find in its independent judgment that the state court decision applied clearly established law erroneously or incorrectly; the application must also be objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this case, the claim is that trial counsel provided constitutionally defective assistance because he failed to pursue a duress defense before advising Dando to accept the plea-bargained sentence. Specifically, petitioner faults counsel (1) for failing to obtain the emergency room records; and (2) for failing to request payment for an expert on battered woman syndrome. The district court concluded after examining the law on duress and the admissibility of testimony from an expert on battered woman syndrome, that the state court decision was not objectively unreasonable because it would have been fruitless for trial counsel to have pursued a duress defense at trial.
The Supreme Court has made clear that "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052; see also Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). When it is alleged that the defendant was prejudiced by the failure of counsel to advise him of a possible defense before he pleaded guilty, the prejudice inquiry will depend largely on whether the defense "likely would have succeeded at trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Because both the reasonableness of counsel's strategic decision and the prejudice inquiry are informed by the likelihood that a duress defense would have been successful at trial, one must begin with the relevant Michigan law.
In Michigan, duress is a common-law affirmative defense that arises in situations where the crime committed avoids a greater harm. People v. Lemons, 454 Mich. 234, 562 N.W.2d 447, 453 (1997). To be entitled to an instruction on the defense of duress, the defendant bears the burden to produce some evidence from which the jury could conclude that each of the following elements are present:
A) The threatening conduct was sufficient to create in the mind of a reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm.
Id. (quoting People v. Luther, 394 Mich. 619, 232 N.W.2d 184, 187 (1975)). The Michigan Supreme Court elaborated that the threatening conduct must be "`present, imminent, and impending'"; that "`threat of future injury is not enough'"; and that "`the threat must have arisen without the negligence or fault of the person who insists upon it as a defense.'" Id. at 454 (quoting People v. Merhige, 212 [804] Mich. 601, 180 N.W. 418, 422 (1920)). Also, a defendant may forfeit a duress defense when he fails to use a reasonable opportunity to escape if it would not unduly expose him to death or serious bodily injury. Id. at n. 18 (citing LaFave & Scott, Substantive Criminal Law, § 5.3, pp. 619-20).[4]
The court and counsel were, by all accounts, aware of Dando's lifelong history of being abused and that she had been abused by Doyle as well. The emergency room records concerning the treatment she received in the hours before the crime spree were not obtained by trial counsel. No attempt has been made to demonstrate how these records might have supported a duress defense. Even if they were to provide an account of abuse by Doyle before the crime spree began, a successful duress defense would require evidence that Dando committed the crimes under present, imminent, and impending threat of death or serious bodily harm. Neither past abuse nor the fear of future abuse at the hands of Doyle would be sufficient.
The facts as admitted by Dando support the trial court's factual finding that she had several opportunities to remove herself from the crime spree, but did not. The undisputed facts are that Dando rode alone with the first victim before he was robbed, went in alone to "case" the party store where the cashier was robbed, and waited alone in the truck while Doyle confronted the other victims. That being the case, it is hard to imagine that a duress defense would be likely to succeed at trial. This leaves the question of counsel's failure to request payment of an expert on battered woman syndrome.
Short of adopting battered woman syndrome, the Michigan Supreme Court has held that expert opinion evidence regarding the syndrome may be admissible when relevant to explain behavior that would be incomprehensible to the average person. People v. Christel, 449 Mich. 578, 537 N.W.2d 194 (1995). Such evidence is typically offered when a defendant charged with killing her abuser is claiming self defense, or when a complainant files charges against her abuser after years of tolerating the abuse. Id. at 202. Even then, however, the expert may not testify that the individual suffered from battered woman syndrome, but may explain the generalities or characteristics of the syndrome to explain specific behavior brought out at trial. Id. at 201. Petitioner has not indicated what an expert on battered woman syndrome might have contributed to her defense. This is not a typical case in which the characteristics of the syndrome might be relevant, and an expert would not likely have been permitted to testify that Dando suffered from battered woman syndrome at the time of the offenses. See People v. Neff, No. 206498, 2000 WL 33538583 (Mich.App. Jan.11, 2000) (unpublished) (holding exclusion of evidence of battered woman syndrome did not deny defendant the right to present a defense).
It is also questionable whether the evidence would be relevant to the defense of duress. Because duress requires objective reasonableness — that the threat be sufficient to cause a reasonable person to fear death or serious bodily injury and the absence of a reasonable opportunity to avoid violating the law — I agree with the district court that evidence that a defendant suffered [805] from battered woman syndrome is not relevant to a duress defense. As one court explained:
Such evidence is not addressed to whether a person of reasonable firmness would have succumbed to the level of coercion present in a given set of circumstances. Quite the contrary, such evidence is usually consulted to explain why this particular defendant succumbed when a reasonable person without a background of being battered might not have. Specifically, battered woman's syndrome evidence seeks to establish that, because of her psychological condition, the defendant is unusually susceptible to the coercion.
United States v. Willis, 38 F.3d 170, 175 (5th Cir.1994).
Despite having reason to believe Dando had been abused by Doyle, it was not unreasonable for counsel to decide not to pursue a duress defense based on battered woman syndrome given the undisputed circumstances of the crime spree and the questionable relevance and limited admissibility of such testimony. It was not objectively unreasonable for the state court to find that counsel's decision to abandon a possible duress defense in favor of the plea was a reasonable strategic decision. Nor has petitioner averred that she would not have entered the plea if counsel had fully pursued the duress defense. I conclude that the state court's decision that petitioner was not denied effective assistance of counsel did not involve an unreasonable application of Supreme Court precedent. See Gumangan v. United States, 254 F.3d 701, 705 (8th Cir.2001) (holding no ineffective assistance where counsel did not advise defendant of a possible defense based on duress and battered woman syndrome).
[1] Additionally, the state argues that Dando waived her right to seek an expert and assert a defense by pleading guilty. This argument is not availing. Although a defendant might generally waive her right to put on a defense and seek an expert by pleading no contest, where the plea is challenged through an ineffective assistance of counsel claim, the availability of a defense and of an expert becomes relevant under Hill for determining whether or not the defendant suffered prejudice. See Magana v. Hofbauer, 263 F.3d 542, 551(6th Cir.2001). The application here of the waiver approach suggested by the state would instead render Hill a nullity.
[2] Ake employed the three prong test balancing test from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether due process required a state to pay for a mental health expert at trial, as opposed to during consideration of a guilty plea. Ake, 470 U.S. at 77, 105 S.Ct. 1087. The three relevant factors for this inquiry are the private interest at stake, the governmental interest, and the risk of an erroneous result without the safeguard in question. Id. These considerations apply with equal, if not greater force, in the guilty plea context. A defendant's decision to plead guilty and waive her right to a jury trial and to put on a defense implicates her significant private liberty interest, and given the relevant consequences, ensuring that a plea is entered knowingly and voluntarily presents as weighty a private interest as ensuring an accurate result at trial. Further, there is considerably less of a burden on the state in providing an expert in the guilty plea context than at trial, as all the expert would initially have to do would be to consult with the defendant, and presumably advise defense counsel as to any relevant findings. This work is a relatively small subset of what would be required of the trial expert, and significantly does not include preparing for or testifying at trial. Not only is the financial burden less in the plea context, but this burden and the state's interest in prevailing at trial are "necessarily tempered by its interest in the fair and accurate adjudication of criminal cases." Ake, 470 U.S. at 79, 105 S.Ct. 1087. Finally, the risk of an inaccurate result in the form of a plea that is not knowing and voluntary presents an issue of significant constitutional concern. See Tollett v. Henderson, 411 U.S. 258, 263, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ("we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial."). In cases where the defendant's mental health is a potential issue at trial, and necessarily could undermine the knowing and voluntary nature of her plea, providing expert consultation would seem almost critical to ensuring a more accurate result. Because the validity of a guilty plea centrally involves the mental state of the defendant even more than does a jury verdict in that it must be knowing and voluntary, it would seem that an expert would be essential whenever mental health is a potentially relevant issue regarding the defendant's culpability. As indicated by Ake's requirement of an expert, it would not be realistic to expect a defendant with mental health issues or her attorney to assess these issues on their own. For these reasons, Ake would require that the state appoint a mental health expert to advise a defendant regarding her plea whenever there is a showing that mental health is a relevant concern as to her guilt.
[3] Dando's attorney informed her that she was not entitled to a mental health expert prior to entering a guilty plea. This is incorrect. Under Ake, 470 U.S. at 77-79, 105 S.Ct. 1087, a defendant is entitled to a mental health expert if a mental health expert is necessary to help the defendant determine whether to proceed to trial. See infra at note 2. In this case, a mental health expert was clearly needed for this purpose, and thus Dando was entitled to the assistance of a mental health expert.
[4] The Court also indicated that the elements required to establish the defense in Michigan were substantially similar to those required in federal court: "(1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear that the threat will be carried out; and (3) lack of a reasonable opportunity to escape the threatened harm." Lemons, 562 N.W.2d at 454 n. 19 (citing United States v. Beltran-Rios, 878 F.2d 1208 (9th Cir. 1989)).
7.2.8.5.2.2 IV.B.ii. Insanity 7.2.8.5.2.2 IV.B.ii. Insanity
The insanity excuse has been around for a long time, even as society’s social and scientific understandings of insanity have evolved. As an excuse, rather than a justification, insanity doctrine does not hold that the criminal act was morally correct, but rather that the insane person is not responsible for a morally wrong action. The cases and readings in this section introduce some of the formulations of the insanity defense that are currently in use. Consider how the various formulations balance the moral and the medical. According to one insanity rule, the ability to tell right from wrong is central to the insanity inquiry. According to another, self-control is key, as an irresistible impulse may excuse culpability. The Model Penal Code applies a sort of hybrid. Each major test is followed in a variety of jurisdictions, and some jurisdictions follow yet another test or provide for no insanity defense at all. What does the sheer diversity of approaches and standards tell us about the insanity excuse? Should the very diversity of approaches implicate fairness concerns? Consider why our criminal justice system may not seek to punish the insane. How does insanity implicate the traditional justifications of punishment (retribution, deterrence, incapacitation, and rehabilitation)? Since criminal punishment undoubtedly has a moral component, what should be the role of science in defining who is insane and who is excused due to insanity? Are those the same questions, or are they different? Lastly, insanity may implicate more than the question of excuse. Even if someone is guilty, they may be “guilty but mentally ill.” Consider what role insanity or mental illness may play in establishing the other elements of a crime, such as mens rea.
7.2.8.5.2.2.1 The King v. Porter 7.2.8.5.2.2.1 The King v. Porter
HIGH COURT OF AUSTRALIA
THE KING against PORTER.
Criminal Law - Insanity - Temporary - Charge of Murder.
Charge to the jury upon a plea of temporary insanity set up to an indictment for murder.
TRIAL on Indictment.
On 31st January and 1st February 1933 (before the passing of the Seat of Government Supreme Court Act 1933) Bertram Edward Porter was tried on indictment for murder at Canberra before Dixon J. sitting in the original jurisdiction of the High Court under sec. 30B of the Judiciary Act 1903-1932.
It appeared that the prisoner had administered strychnine to his infant son aged eleven months and had then attempted to take strychnine himself but had been interrupted by the entry of the police. The child died, and this was the murder with which he was charged. His defence was that he was insane at the time he committed the act.
The facts set up in support of the defence were briefly as follows :- After a period of separation from his wife during which he looked after the child, he had made desperate but unsuccessful efforts to fleet a reconciliation. He became extremely emotional and showed symptoms of a nervous breakdown. He was sleepless, and took quantities of aspirin, phenacetin and caffein. He then travelled with the child from Canberra to Sydney in circumstances which made it probable that he was without sleep for three nights. On his return he had a final interview with his wife, in which he appeared to have lost all control of his emotions. On her refusing to have anything to do with him or the child, he told her he would poison himself and the child and hastened away to obtain the strychnine. She informed the police, who found him shut in his house, sobbing. He had just given the strychnine to the child and was about to take it himself.
P. V. Storkey, for the Crown.
O'Sulliva.n and Hidden, for the prisoner.
DIXON J., in summing up, said :-
The accused stands charged under the name of Bertram Edward Porter, for the murder of his child, Charles Robert Porter, committed on 28th November 1932. The crime of murder is committed when, without any lawful justification, without any excuse, without any provocation, a person of sufficient soundness of mind to be criminally responsible for his acts intentionally kills another. To begin with, every person is presumed to be of sufficient soundness of mind to be criminally responsible for his actions until the contrary is made to appear upon his trial. It is not for the Crown to prove that any man is of sound mind; it is for the defence to establish inferentially that he was not of sufficient soundness of mind, at the time that he did the actions charged, to be criminally responsible. On the other hand, every person is to be presumed to be innocent of the actions charged against him until it is proved to the satisfaction of the jury beyond any reasonable doubt that he committed them.
You will see, gentlemen, that the presumptions are not of equal strength. The criminal law requires that, when a crime is charged, the things which constitute that crime shall be proved to the complete satisfaction of the jury; that they shall be so satisfied that those things were done that they have no reasonable doubt about it. On the other hand, when that is proved, and the jury turn from the consideration of the question whether the things which constitute the crime were done to the question whether the man who did them was criminally responsible for his actions or was not, because of unsoundness of mind at the moment, it is necessary for the accused person to make out positively, upon a balance of probability, that he was not criminally responsible, and that he was not of such a mental condition at that time as to be criminally responsible. He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.
You will therefore see that the first questions in this case for your consideration are these: Did the prisoner administer strychnine to his infant son with the intention of causing his death; and, did its death result from his so doing? Unless you are so satisfied, beyond reasonable doubt, that he did administer strychnine to the child with the intention of causing his death, and that death resulted from strychnine, then it is your simple duty to return a plain verdict of not guilty, because he would not have done the things which constitute murder.
Probably you will have no difficulty at all in arriving at the conclusion that the prisoner did administer strychnine to his son with the intention of causing its death, and that death did result from the strychnine. I am bound to add that it is entirely for you to give effect to that evidence, and, if you think the evidence is not so strong as Ind the Crown Prosecutor have suggested it is, you will stop the case at that stage. You will not go any further and consider the question of insanity.
[His Honour referred to the facts material to the commission of the acts constituting the crime and proceeded :--]
The facts, as I have said, appear to me to be clear, but if you disagree with that, you should give effect to your disagreement by finding the prisoner not guilty. The responsibility is yours, and not mine. If, on the contrary, you are satisfied beyond reasonable doubt, to the exclusion of all doubt, of these three matters – (1) that he did administer strychnine to the child; (2) that he did so with the intention of killing it; and 3) that the child's death did result from that administration – then you will turn and proceed to consider whether, at that particular time when he did those things, his state of mind was such as to make him criminally responsible for his act. That means, has it been made out to your reasonable satisfaction that, at the time, the prisoner’s faculties were so disordered that he is not in law criminally responsible for what he did. If you form the opinion that his faculties were so disordered that he is not criminally responsible, you will find a verdict of not guilty on the ground that the prisoner was insane at the time the offence was committed. You do not find him guilty but insane, as they do in some British countries. According to the law in this country the technical verdict is such a case is: Not guilty on the ground of insanity at the time of the commission of the offence charged. It is your function specifically to state that ground for your verdict of not guilty, because the legal consequences are quite different from those which follow a plain verdict of not guilty on the ground that the prisoner did not do the things charged. If you think it is not proved that the prisoner poisoned his child and brought about his death, your verdict, of course, will be simply not guilty, and he will be completely free. If, however, you think that he did the things charged against him, but that, at the time, his mind was so disordered that he could not be held responsible, then you will find him not guilty on the ground of insanity at the time of the offence charged.
There is a legal standard of disorder of mind which is sufficient to afford a ground of irresponsibility for crime, and a ground for your finding such a verdict as I have indicated. It is my duty to explain that standard to you. It is plain from what passed the witness-box this morning, when Dr. Henry was giving evidence, that the legal standard is a matter which he himself wished to discuss, but I prevented him, and kept him to his medical function. In my judgment, from remarks which have been made at the Bar in the course of speeches, it appears that some difference of opinion between learned counsel exists as to what that legal standard is. You will take my explanation of it, and disregard the attempts which have been made elsewhere to explain it, because mine is the responsibility of laying down what the law is. Yours is the responsibility of applying it to the facts.
Before explaining what that standard actually is, I wish to draw your attention to some general considerations affecting the question of insanity in the criminal law jn the hope that by doing so you may be helped to grasp what the law prescribes. The purpose of the law in punishing people is to prevent others from committing a like crime or crimes. Its prime purpose is to deter people from committing offences. It may be that there is an element of retribution in the criminal law, so that when people have committed offences the law considers that they merit punishment, but its prime purpose is to preserve society from the depredations of dangerous and vicious people. Now, it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment; if they cannot understand what they are doing or cannot understand the ground upon which the law proceeds. The law is not directed, as medical science is, to curing mental infirmities. The criminal law is not directed, as the civil law of lunacy is, to the care and custody of people of weak mind whose personal property may be in jeopardy through someone else taking a hand in the conduct of their affairs and their lives. This is quite a different thing from the question, what utility there is in the punishment of people who, at a moment, would commit acts which, if done when they were in sane minds, would be crimes. What is the utility of punishing people if they be beyond the control of the law for reasons of mental health? In considering that, it will not perhaps, if you have ever reflected upon the matter, have escaped your attention that a great number of people who come into a Criminal Court are abnormal. They would not be there if they were the normal type of average everyday people. Many of them are very peculiar in their dispositions and peculiarly tempered. That is markedly the case in sexual offences. Nevertheless, they are mentally quite able to appreciate what they are doing and quite able to appreciate the threatened punishment of the law and the wrongness of their acts, and they are held in check by the prospect I of punishment. It would be very absurd if the law were to withdraw that check on the ground that they were somewhat different from their fellow creatures in mental make-up or texture at the very moment when the check is most needed. You will therefore see that the law, in laying down a standard of mental disorder sufficient to justify a jury in finding a prisoner not guilty on the ground of insanity at the moment of the offence, is addressing itself to a somewhat difficult task. It is attempting to define what are the classes of people who should not be punished although they have done actual things which in others would amount to crime. It is quite a different object to that which the medical profession has in view or other departments of the law have in view in defining insanity for the purpose of the custody of a person's property, capacity to make a will, and the like. With that explanation I shall tell you what that standard is.
The first thing which I want you to notice is that you are only concerned with the condition of the mind at the time the act complained of was done. That is the critical time when the law applies to the man. You are not concerned, except for the purpose of finding out how he stood at that moment, what his subsequent condition was or what his previous condition was. He may have been sane before and he may have been sane after, but if his mind were disordered at the time to the required extent, then he should be acquitted on the ground of insanity at the time he committed the offence. It is helpful in finding out how he was at the time to find out how we has before and after. It is merely because it is helpful that we go into it in this case, not because it is decisive.
The next thing I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. The first relates to a class of case to which so far as I am concerned I do not think this case belongs. But again, that is my opinion of a matter of fact and it is for you to for you to form your opinion upon it. In a case where a man intentionally destroys life he may have so little capacity for understanding the nature of life and the destruction of life, that to him it is no more than breaking a twig or destroying an inanimate object. In such a case he would not know the physical nature of what he was doing. He would not know the implications and what it really amounted to. In this case, except for the prisoner's own statement from the dock that after a certain time he remembered nothing of what he did, there seems to be nothing to support the view that this man was in such a condition that he could not appreciate what death amounted to or that he was bringing it about or that he was destroying life and all that is involved in the destruction of life. It is for you to form a conclusion upon that matter, but I suggest to you that the evidence of what he said to the police when he was found after he had given the poison to the child and was about, apparently, to administer it to himself, shows that he understood the nature of life and death and the nature of the act he was doing in bringing it about. But you are at liberty to take into account that he said he knows nothing of what he did at that time. If you form the conclusion that notwithstanding the evidence which I have mentioned the mental disorder of this man was such that he could not appreciate the physical thing he was doing and its consequences, you will acquit him on the ground of insanity at the time he did the thing charged.
The other head is of quite a different character, namely, that his disease or disorder or disturbance of mind was of such a character that he was unable to appreciate that the act he was doing was wrong. It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act. That is the issue, the real question in this case. Was his state of mind of that character? I have used simple expressions, but when you are dealing with the unseen workings of the mind you have to come to close quarters with what you are speaking about, and it is very difficult to be quite clear as to what is meant in describing mental conditions. I have used the expression "disease, disorder or disturbance of the mind." That does not mean (as you heard from the doctor's replies this morning to certain questions I asked him) that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind, as disease ordinarily means when you are dealing with other organs of the body where you can see and feel and appreciate structural changes in fibre, tissue and the like. You are dealing with a very different thing- with the understanding. It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder. Then I have used the expression "know," "knew that what he was doing was wrong." We are dealing with one particular thing, the act of killing, the act of killing at a particular time a particular individual. We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?
If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by “wrong”? What is meant by wrong is wrong having regard to the everyday standards of reasonable people. If you think that at the time when he administered the poison to the child he had such a mental disorder or disturbance or derangement that he was incapable of reasoning about the right or wrongness, according to ordinary standards, of the thing which he was doing, not that he reasoned wrongly, or that being a responsible person he had queer or unsound ideas, but that he was quite incapable of taking into account the considerations which go to make right or wrong, then you should find him not guilty upon the ground that he was insane at the time he committed the acts charged. In considering these matters from the point of view of fact you must be guided by his outward actions to a very large extent. The only other matter which can help you really is the medical opinion. I think the evidence may be described as his outward conduct and the medical opinion. It is upon this you must act. The medical opinion included explanations of the course of mental conditions in human beings generally.
[His Honour reviewed the circumstances affecting the question of the prisoner's state of mind at the time of the commission of the acts charged and the medical evidence and proceeded:~]
In conclusion I go back to what I consider the main question of the case and it is whether you are of the opinion that at the stage of administering the poison to the child the man whom you are trying had such a mental disorder or diseased intelligence at that moment that he was disabled from knowing that it was wrong act to commit in the sense that ordinary reasonable men understand right and wrong and that he was disabled from considering with some degree of composure and reason what he was doing and its wrongness. If you answer that question in his favour you will find him not guilty on the ground of insanity at the time of the commission of the offence charged. If you answer the question against him, and you have already formed a conviction on that question, that he committed the actual act which constituted murder with the necessary intention of bringing about death, you will find him guilty of murder. I repeat that the burden of establishing to your complete satisfaction to the exclusion of all reasonable doubt that he did all the acts with the requisite intention of killing which constitutes murder and brought about death, is upon the Crown. I think upon the evidence you will have little difficult on that point.
The burden of establishing to your reasonable satisfaction, not to the exclusion of all doubt but on the balance of probability, that his state of mind was one which I have described is upon the prisoner. If you are in the condition of mind of being quite unable to answer that question it will be your duty then to find him guilty, assuming that you have arrived at the conclusion that you are convinced that the act, if that of a sane man, would amount to murder. Three verdicts upon this view of the case are open to you. You may find him completely not guilty, which would mean that you are not satisfied beyond reasonable doubt that he caused the death but at the time his intelligence was so disordered that he was in such a state that he was not criminally responsible for his act.
Finally, you may find him guilty of murder.
You will now retire to consider your verdict.
The jury returned the following verdict :-
Not guilty on the ground of insanity at the time of commission of the act charged.
Solicitor for the Crown, W. H. Sharwood, Crown Solicitor for the Commonwealth.
Solicitor for the prisoner, Felix Mitchell, Cooma.
7.2.8.5.2.2.2 M'Naughten's Case 7.2.8.5.2.2.2 M'Naughten's Case
DANIEL M'NAGHTEN'S CASE.
May 26, June 19, 1843.
[Mews' Dig. i. 349; iv. 1112. S.C. 8 Scott N.R. 595; 1 C. and K. 130; 4 St. Tr. N.S, 847. The rules laid down in this case have been accepted in the main as an authoritative statement of the law (cf. Beg. v. Townley, 1863, 3 F. and F. 839; Beg. v. Southey, 1865, 4 F. and F. 864; Beg. v. Leigh, 1866, 4 F. and F. 919). But they have been adversely criticised both by legal and medical text writera (see 2 Steph. Hist Crim. Law, 124-186; Mayne Ind. Crim. Law (ed. 1896), 368), have been rejected by many of the American States (see e.g. Parsons v. State, 1887, 81 Ala. 577), and frequently receive a liberal interpretation in England. On point as to questions to the Judges, see note to London and Westminster Bank Case, 2 Cl. and F. 191.]
Murder-Evidence-lnsanity.
The House of Lords has a right to require the Judges to answer abstract questions of existing law (see London and Westminster Bank Case, ante [2 Cl. and F.], p. 191 [and note thereto].
Notwithstanding a party accused did an act, which was in itself criminal, under the influence of insane delusion, with a view of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable if he knew at the time that he was acting contrary to law.
That if the accused was conscious that the act was one which he ought not to do; and if the act was at the same time contrary to law, he is punishable. In all cases of this kind the jurors ought to be told that every man is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction: and that to establish a defence on the ground of insanity, it must be clearly proved that at the time of commiting the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or as not to know that what he was doing was wrong.
That a party labouring under a partial delusion must be considered in the same situation, as to responsibility, as if the facts, in respect to which the delusion exists, were real.
That where an accused person is supposed to be insane, a medical man, who has been present in Court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong.
The prisoner had been indicted for that he, on the 20th day of January 1843, at the parish of Saint Martin in the Fields, in the county of Middlesex, and within the jurisdiction of the Central Criminal Court, in and upon one Edward Drummond, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Daniel M'Naghten, a certain pistol of the value of 20s., loaded and [201] charged with gunpowder and a leaden bullet (which pistol he in his right hand had and held), to, against and upon the said Edward Drummond, feloniously, wil-fully, and of his malice aforethought, did shoot and discharge; and that the said Daniel M'Naghten, with the leaden bullet aforesaid, out of the pistol aforesaid, by force of the gunpowder, etc., the said Edward Drummond, in and upon the back of him the said Edward Drummond, feloniously, etc. did strike, penetrate and wound, giving to the said Edward Drummond, in and upon the back of the said Edward Drummond, one mortal wound, etc., of which mortal wound the said E. Drummond languished until the 25th of April and then died; and that by the means aforesaid, lie the prisoner did kill and murder the said Edward Drummond. The prisoner pleaded Not guilty.
Evidence having been given of the fact of the shooting of Mr .Drummond, and of his death in consequence thereof, witnesses were called on the part of the prisoner, to prove that he was not, at the time of committing the act, in a sound state of mind. The medical evidence was in substance this: That persons of otherwise sound mind, might be affected by morbid delusions: that the prisoner was in that condition: that a person so labouring under a morbid delusion, might have a moral perception of right and wrong, but that in the case of the prisoner it was a delusion which carried him away beyond the power of his own control, and left him no such perception; and that he was not capable of exercising any control over acts which had connexion with his delusion: that it was of the nature of the disease with which the prisoner was affected, to go on gradually until it had reached a climax, when it burst forth with irresistible [202] intensity: that a man might go on for years quietly, though at the same time under its influence, but would all at once break out into the most extrava- gant and violent paroxysms.
Some of the witnesses who gave this evidence, had previously examined the prisoner: others had never seen him till he appeared in Court, and they formed their opinions on hearing the evidence given by the other witnesses.
Lord Chief Justice Tindal (in his charge): -The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not the use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.
Verdict, Not guilty, on the ground of insanity.
This verdict., and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort, having been made the subject of debate in the House of Lords (the 6th and 13th March 1843 ; see Hansard's Debates, vol. 67, pp. 288, 714), it was determined to take the opinion of the Judges on the law governing such cases. Accordingly, on the 26th of May, all the Judges attended their Lordships, but no questions were then put.
On the 19th of June, the Judges again attended the House of Lords; when (no argument having been [203] had) the following questions of law were propounded to them:-
1st. What is the law respecting alleged crimes committed by persons afflicted with insane delusion, in respect of one or more particular subjects or persons: as, for in- stance, where at the time of the commission of the alleged crime, the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?
2d. What are the proper questions to be submitted to the jury, when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and in-sanity is set up as a defence?
3d. In what terms ought the question to be left to the jury, as to the prisoner's state of mind at the time when the act was committed?
4th. If a person under an insane delusion as to existing facts, commits an offence in consequence thereof, is he thereby excused?
5th. Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act, that he was acting contrary to law, or whether he was labouring under any and what delusion at the time?
[204] Mr. Justice Maule :--I feel great difficulty in answering the questions put by your Lordships on this occasion :-First, because they do not appear to arise out of and are not put with reference to a particular case, or for a particular purpose, which might explain or limit the generality of their terms, so that full answers to them ought to be applicable to every possible state of facts, not inconsistent with those assumed in the questions: this difficulty is the greater, from the practical experience both of the bar and the Court being confined to questions arising out of the facts of particular cases :-Secondly, because I have heard no argument at your Lordships' bar or elsewhere, on the subject of these questions; the want of which I feel the more, the greater are the number and extent of questions which might be raised in argu- ment:-and Thirdly, from a fear of which I cannot divest myself, that as these ques- tions relate to matters of criminal law of great importance and frequent occurrence, the answers to them by the Judges may embarrass the administration of justice, when they are cited in criminal trials. For these reasons I should have been glad if my learned brethren would have joined me in praying your Lordships to excuse us from answering these questions; but as I do not think they ought to induce me to ask that indulgence for myself individually, I shall proceed to give such answers as I can, after the very short time which I have had to consider the questions, and under the difficulties I have mentioned; fearing that my answers may be as little satisfactory to others as they are to myself.
The first question, as I understand it, is, in effect, What is the law respecting the alleged crime, when at the time of the commission of it, the accused knew he was acting contrary to the law, but did the act [205] with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit?-If I were to understand this question according to the strict meaning of its terms, it would require, in order to answer it, a solution of all questions of law which could arise on the circumstances stated in the question, either by explicitly stating and answering such questions, or by stating some principles or rules which would suffice for their solution. I am quite unable to do so, and, indeed, doubt whether it be possible to be done; and therefore request to be permitted to answer the question only so far as it comprehends the question, whether a person, circumstanced as stated in the question, is, for that reason only, to be found not guilty of a crime respecting which the question of his guilt has been duly raised in a criminal proceeding? and I am of opinion that he is not. "'There is no law, that I am aware of, that makes persons in the state described in the question not re.:ponsible for their criminal acts. To render a person irresponsible for crime on account of unsoundness of mind, the unsoundness should, according to the law as it has long been understood and held, be such as rendered him incapable of knowing right from wrong. The terms used in the question cannot be said (with reference only to the usage of language) to be equivalent to a description of this kind and degree of unsoundness of mind. If the state described in the question be one which involves or is necessarily connected with such an unsoundness, this is not a matter of law but of physiology, and not of that obvious and familiar kind as to be inferred without proof.
Second, the questions necessarily to be submitted to the jury, are those questions of fact which are [206] raised on the record. In a criminal trial, the question com- monly is, whether the accused be guilty or not guilty: but, in order to assist the jury in coming to a right conclusion on this necessary and ultimate question, it is usual and proper to submit such subordinate or intermediate questions, as the course which the trial has taken may have made it convenient to direct their attention to. What those questions are, and the manner of submitting them, is a matter of discretion for the Judge: a discretion to be guided by a consideration of all the circumstances at- tending the inquiry. In performing this duty, it is sometimes necessary or con- venient to inform the jury as to the law; and if, on a trial such as is suggested in the question, he should have occasion to state what kind and degree of insanity would amount to a defence, it should be stated conformably to what I have mentioned in my answer to the first question, as being, in my opinion, the law on this subject.
Third, there are no terms which the Judge is by law required to use. They should not be inconsistent with the law as above stated, but should be such as, in the dis- cretion of the Judge, are proper to assist the jury in coming to a right conclusion as to the guilt of the accused.
Fourth, the answer which I have given to the first question, is applicable to this. Fifth, whether a question can be asked, depends, 'not merely on the questions of fact raised on the record, but on the course of the cause at the time it is proposed to ask it; and the state of an inquiry as to the guilt of a person charged with a crime, and defended on the ground of insanity, may be such, that such a question as either of those suggested, is proper to be asked and answered, though the witness has [207] never seen the person before the trial, and though he has merely been present and heard the witnesses: these circumstances, of his never having seen the person before, and of his having merely been present at the trial, not being necessarily suffi- cient, as it seems to me, to exclude the lawfulness of a question which is otherwise lawful; though I will not say that an inquiry might not be in such a state, as that these circumstances should have such an effect.
Supposing there is nothing else in the state of the trial to make the questions suggested proper to be asked and answered, except that the witness had been present and heard the evidence; it is to be considered whether that is enough to sustain the question. In principle it is open to this objection, that as the opinion of the witness is founded on those conclusions of fact which he forms from the evidence, and as it does not appear what those conclusions are, it may be that the evidence he gives is on such an assumption of facts, as makes it irrelevant to the inquiry. But such ques- tions have been very frequently asked, and the evidence to which they are directed has been given, and has never, that I am aware of, been successfully objected to. Evi- dence, most clearly open to this objection, and on the admission of which the event of a most important trial probably turned, was received in the case of The Queen v. M'Naghten, tried at the Central Criminal Court in March last, before the Lord Chief Justice, Mr. Justice Williams, and Mir. Justice Coleridge, in which counsel of the highest eminence were engaged on both sides; and I think the course and practice of receiving such evidence, confirmed by the very high authority of these Judges, who not only received it, but left it, as I understand, to the jury, without any remark derogating from its [208] weight, ought to be held to warrant its reception, notwith- standing the objection in principle to which it may be open. In cases even where the course of practice in criminal law has been unfavourable to parties accused, and entirely contrary to the most obvious principles of justice and humanity, as well as those of law, it has been held that such practice constituted the law, and could not be altered without the authority of Parliament.
Lord Chief Justice Tindal :-ly Lords, Her Majesty's Judges (with the exception of Mr. Justice Maule, who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships' House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these questions, from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case; and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time danger- ous to tbe administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lord- ships' questions.
They have therefore confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships; and as they deem it unnecessary, in this peculiar case, to deliver their opinions seriatim, and as all concur in [209] the same opinion, they desire me to express such their unanimous opinion to your Lordships.
The first question proposed by your Lordships is this: "What is the law respect- ing alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons: as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of re- dressing or revenging some supposed grievance or injury, or of producing some sup- posed public benefit ?"
In answer to which question, assuming that your Lordships' inquiries are con- fined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redress- ing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land.
Your Lordships are pleased to inquire of us, secondly, "What are the proper ques- tions to be submitted to the jury, where a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons, is charged with the commission of a crime (murder, for example), and insanity is set up as a defence?" And, thirdly, "In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time when [210] the act was committed? " And as these two questions appear to us to be more conveniently answered together, we have to submit our opinion to be. that the jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be respon- sible for his crimes,until the contrary be proved to their satisfaction ; and that to estab- lish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not, know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong: which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party's knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a convic- tion ; whereas the law is administered upon the principle that every one must be taken conclusively to know it, without proof that he does know it. If the accused was con- scious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course therefore [211] has been to leave the question to the jury, whether the party accused had a suffi- cient degree of reason to know that he was doing an act that was wrong: and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require.
The fourth question which your Lordships have proposed to us is this :-"If a person under an insane delusion as to existing facts, commits an offence in conse- quence thereof, is he thereby excused?" To which question the answer must of course depend on the nature of the delusion: but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsi- bility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that-the deceased had in- flicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.
The question lastly proposed by your Lordships is :-" Can a medical man con- versant with the disease of insanity, who never saw the prisoner previously tothe trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner's mind at the time of the commis- sion of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and [212] what delusion at the time?" In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.
Lord Brougham:- My Lords, the opinions of the learned Judges, and the very able manner in which they have been presented to the House, deserve our best thanks. One of the learned Judges has expressed his regret that these questions were not argued by counsel. Generally speaking, it is most important that in questions put for the consideration of the Judges, they should have all that assistance which is afforded to them by an argument by counsel: but at the same time, there can be no doubt of your Lordships' right to put, in this way, abstract questions of law to the Judges, the answer to which might be necessary to your Lordships in your legislative capacity. There is a precedent for this course, in the memorable instance of Air. Fox's Bill on the law of libel; where, before passing the Bill, this House called on the Judges to give their opinions on what was the law as it then existed.
Lord Campbell :- My Lords, I cannot avoid express-[213]-ing my satisfaction, that the noble and learned Lord on the woolsack carried into effect his desire to put these questions to the Judges. It was most fit that the opinions of the Judges should be asked on these matters, the settling of which is not a mere matter of speculation; for your Lordships may be called on, in your legislative capacity, to change the law; and before doing so, it is proper that you should be satisfied beyond doubt what the law really is. It is desirable to have such questions argued at the bar, but such a course is not always practicable. Your Lordships have been reminded of one prece-dent for this proceeding, but there is a still more recent instance; the Judges having been summoned in the case of the Canada Reserves, to express their opinions on what was then the law on that subject. The answers given by the Judges are most highly satisfactory, and will be of the greatest use in the administration of justice.
Lord Cottenham :- My Lords, I fully concur with the opinion now expressed, as to the obligations we owe to the Judges. It is true that they cannot be required to say what would be the construction of a Bill, not in existence as a law at the moment at which the question is put to them; but they may be called on to assist your Lord- ships, in declaring their opinions upon abstract questions of existing law.
Lord Wynford :- My Lords, I never doubted thatyour Lordships possess the power to call on the Judges to give their opinions upon questions of existing law, proposed to them as these questions have been. I myself recollect, that when I had the honour to hold the office of Lord Chief Justice of the Court of [214] Common Pleas, I com- municated to the House the opinions of the Judges on questions of this sort., framed with reference to the usury laws. Upon the opinion of the Judges thus delivered to the House by me, a Bill was founded, and afterwards passed into a law.
The Lord Chancellor :- My Lords, I entirely concur in the opinion given by my noble and learned friends, as to our right to have the opinions of the Judges on ab- stract questions of existing law; and I agree that we owe our thanks to the Judges, for the attention and learning with which they have answered the questions now put to them.
7.2.8.5.2.2.3 State v. Singleton 7.2.8.5.2.2.3 State v. Singleton
—N.J.—
STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
BOYCE SINGLETON, JR., Defendant-Respondent.
SUPREME COURT OF NEW JERSEY
No. 067756
Argued January 31, 2012 – Decided July 30,2012
On certification to the Superior Court, Appellate Division, whose opinion is reported at 418 N.J. Super. 177 (2011).
Frank J. Ducoat, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General of New Jersey, attorney).
John W. Douard, Assistant Deputy Public Defender, argued the cause for respondent (Joseph E. Krakora, Public Defender, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
In New Jersey, we adhere to the general proposition that a defendant who has the mental capacity to know basic societal mores that distinguish objectively between right and wrong is legally responsible for his criminal conduct. See State v. Sikora, 44 N.J. 453, 470 (1965). Mental illness does not in and of itself eliminate moral blameworthiness under the test for criminal insanity enshrined in the Code of Criminal Justice 2 (Code). See N.J.S.A. 2C:4-1. As our Model Jury Charge illuminates for jurors, “[t]he law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrists.” Model Jury Charges (Criminal), § 2C:4-1 Insanity (Oct. 17, 1988). And, moreover, jurors are informed that the law does not require that the defendant actually consider the wrongness of his act when accomplishing the deed. Rather,
[t]he question is not whether the defendant, when (he/she) engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether defendant had sufficient mind and understanding to have enabled (him/her) to comprehend that it was wrong if defendant had used (his/her) faculties for that purpose.
[Ibid.]
Thus, the test hinges on a defendant’s general knowledge of society’s mores and objective expectations about behavior. In State v. Worlock, 117 N.J. 596 (1990), a narrow caveat was added for the delusional defendant who, at the time of a homicidal act, affirmatively acts under a direct command from God to kill the victim. This appeal raises an issue concerning Worlock’s applicability.
In September 2005, defendant Boyce Singleton Jr. killed his pregnant girlfriend, Michelle Cazan. He was indicted and tried in June 2008, on a charge of first-degree murder and other 3 related offenses, including tampering with evidence and hindering. Defendant has never disputed that he killed Cazan. His defense at trial was keyed to whether he should be found not guilty by reason of insanity. Afflicted with schizoaffective disorder, defendant had developed the delusional religious belief that he was in a form of communication with God and that he was authorized to kill those who violated “God’s word.” Defendant’s mental illness was the centerpiece of the parties’ summations and the trial court included the model charge on the insanity defense, which refers to the defendant’s ability to comprehend that his action is wrong, in its instructions to the jury. Defendant interposed no objection to the insanity charge’s content.
Defendant’s insanity defense proved unsuccessful as the jury convicted him of murder, as well as the other charged offenses. In a motion for a new trial, defendant claimed for the first time that the jury should have been provided with a variant of the insanity-defense jury charge informing the jury that a defendant can be found not guilty by reason of insanity if he lacks the capacity to understand that his actions are morally wrong, even if he understands that they are legally wrong. In Worlock, supra, we recognized in dicta that such a jury charge might be necessary in cases where a defendant claims to have been compelled by a “command from God.” 117 N.J. at 4611; cf. State v. Winder, 200 N.J. 231 (2009) (rejecting Worlock’s applicability to facts of case). Finding no evidence that defendant acted under compulsion of a command from God when he murdered Cazan, the trial court concluded that circumstances warranting a “Worlock” variation to the model charge were not present. The court denied the motion for a new trial and imposed sentence on September 12, 2008.
Defendant appealed and a panel of the Appellate Division reversed the conviction and remanded for a new trial based on finding the insanity-defense jury charge to have been incomplete. State v. Singleton, 418 N.J. Super. 177, 204-05 (App. Div. 2011).
The State filed a petition for certification, which was granted. 207 N.J. 188 (2011). We now reverse.
I.
A. Background
Defendant’s expert in forensic psychology and the State’s expert agree that defendant suffers from schizoaffective disorder.[1] At trial defendant produced lay witnesses –- five family members and one friend –- and testified on his own behalf to provide insight into his mental illness prior to and during the events related to Cazan’s death. That testimony showed that defendant had developed a set of delusional religious beliefs derived from his perspective on scripture. Importantly, he believes that he has an obligation to kill sinners, especially sinners who attempt to deter him from honoring God’s word according to his strongly held, personal interpretation of the Bible’s Old Testament.
Defendant’s mental illness significantly manifested itself during his relatively brief period of attendance at college. In 2003, he turned to religious study for guidance, discipline, and a means of control over his life, but soon developed a preoccupation with the Bible and God and became obsessed with the Old Testament. His interpretation of scripture developed into a delusional system that, the experts agree, distorts his logical reasoning. For example, defendant came to believe that money was the root of all evil because people idolized it, rather than God. On one occasion, his distaste for money led him to choose imprisonment for failure to pay a court fine over violating his belief in the wrongness of using money. His mother obtained his release by paying the fine herself.
According to defendant, over time, he became convinced that he was a “soldier” for God. He testified that he came to believe that God communicates with him, although he does not 6 claim to hear a distinct voice speaking or commanding him. Rather, he receives messages or communications from God while asleep.[2] As he explained in his testimony, and in a statement to police after Cazan’s death, he felt a general obligation to kill sinners who did not comport themselves in accordance with his beliefs about God’s expectations, once he explained those expectations to them. Indeed, in 2005, not long before Cazan’s murder, defendant, who had moved back into his parents’ home, told his older sister, Lakeisha, “if I didn’t love you so much, you would have already been dead, because the voices told me to kill all of you all because you’re sinning.”
On another occasion, during the spring of 2005, defendant threatened the gay friend of his younger sister Shakia, who was staying at their parents’ home. Defendant claimed that he “heard something say to me go downstairs and kill him because he was homosexual.” Shakia’s friend left the home without being physically harmed, but by July 2005, defendant’s beliefs and behaviors had become too extreme for his mother and siblings. Although defendant had not yet acted on his beliefs, he was asked to leave the home.[3]
On July 27, 2005, he moved in with Michelle Cazan, a friend of Shakia and a participant in the same bible studies group as defendant’s mother and Shakia. The relationship became intimate within one week’s time and, on September 12, 2005, Cazan told defendant that a home pregnancy test had confirmed that she was pregnant. Defendant killed her the next day. We turn next to the murder and subsequent events.
B. Cazan’s murder
On September 13, 2005, while Cazan was at work, defendant went with a friend to an Air Force and Army recruiting center to discuss enlistment, which he explained was motivated by a desire to help his “family,” meaning his parents and siblings who were struggling, not Cazan. He claimed that he trusted in God to look after Cazan and the baby that was on the way. Still, he was conflicted about enlisting even to help his parents and siblings because he would be working for money, which would be contrary to his religious beliefs.
That afternoon defendant picked up Cazan from work later than she expected, causing her to miss an appointment she had scheduled with an organization that might have provided a source of employment for defendant. He knew that she was not happy about missing the appointment, but testified that they did not argue about it. However, there was tension between the two and they had a discussion during which he considered leaving Cazan’s vehicle, but did not. Instead, he agreed to accompany her on a visit to her hometown of East Rutherford to see places that were important to her, including her brother’s gravesite.
During the trip north, the two quarreled over their future. Cazan was concerned about his ability to provide for the baby. As for defendant, he had reached the conclusion that he would not enlist in military service because he was uncomfortable with the idea of serving “a God other than my God” by earning “evil” money. And, he became increasingly disturbed over Cazan’s change of heart from earlier discussions in which they had talked about going “into the woods” and living apart from a money-based civilization. He felt she had turned from the religious beliefs and principles he thought they shared. He grew more upset with Cazan during that conversation because he felt as though she had not fully adopted his religious beliefs and, worse, she was driving a wedge between him and God. He testified that he began to view Cazan “[a]s a prostitute,” because “she was prostituting herself to another God.” Defendant said he “didn’t trust her,” and that he “didn’t want 9 to be around her . . . [or] with her anymore.” Moreover, on arriving in East Rutherford, defendant did not respond favorably as Cazan showed him the area. He said he became “enraged” by her “stories of mob activity” that allegedly had occurred in the vicinity. He regarded her as “bragging” about it, which offended him.
At approximately 10:30 p.m., the two arrived home at Cazan’s condominium in Mansfield. Defendant claims that, at this point, he was very upset. After using the first-floor bathroom, he went upstairs to the bedroom where Cazan was and asked her to give him the keys to her BMW. She refused. He admitted at trial that had she given him the keys he would have left. However, when she would not give him the car keys, he pulled a revolver from his waistband and shot her four times, emptying the gun. One bullet went through her face and out behind her ear, another entered her chest and passed through her rib cage, chest cavity, and lungs, exiting through her lower back. Forensic evidence showed that Cazan was shot twice more in the back while on her hands and knees. One bullet traveled through her trachea and exited through her neck. Cazan began to choke on her own blood. Defendant said he “didn’t want her to suffer,” so he stabbed her, four times, in the chest and abdomen, one of which pierced her lung. The stab wounds were between three and six inches in depth. She died within minutes.
Defendant took the knife, but left behind the handgun, and drove Cazan’s car to the home of his friend William Britt, where both William and his brother John were. There he washed his hands of blood and gunshot residue and changed his clothes. During the next few hours, defendant and his friends drank alcohol and smoked marijuana. Although defendant told William and John that he had killed Cazan, neither believed him.
Early the next morning, defendant left Cazan’s car around the corner from Britt’s home in Trenton and walked to Morrisville, Pennsylvania where his parents lived. Along the way, he threw the knife into a canal. He did so because he said he had learned from “movies” that “you’re supposed to get rid of the murder weapon.” According to defendant, at that time, he “planned on running” and “kill[ing] everybody . . . until [he] got killed.” However, when he arrived in Morrisville at about 2:00 a.m., he met his older sister Lakeisha also arriving home and asked her to drive him to Cazan’s house. According to Lakeisha, he told her that he had shot and stabbed Cazan, that she was dead, and that he had left the gun behind at the house. Lakeisha testified that during this trip, defendant had “many rambling conversations” in which he was not talking directly to her: “Whoever he was talking to or whatever he was hearing, he was responding to. But the conversation wasn’t for me.” At Cazan’s home, he asked Lakeisha to let him out in the back of the home and to wait for him in the car.
According to defendant, after determining that no police or others were in or around Cazan’s home, he went inside, retrieved his gun, wiped down the door handles, and otherwise attempted to clean the blood splatter. He placed the gun and the cleaning materials he had used in a garbage bag and left, returning to Lakeisha’s car. He asked her to take him to Britt’s home. Along the way she convinced him to go instead to their parents’ home in Morrisville. There he told his father what he had done and fled the area, intending to go to a family member’s home in North Carolina, along the way retrieving his duffle bag from Britt’s home. In his later statements he explained that the police were his enemy because, if he was captured, he could not serve God. However, when he reached Baltimore, he abandoned his plan and returned home after talking with his mother.
Arriving back at his parents’ home, he told his family that he planned to turn himself in but wanted to “hold Cazan” before doing so. So, on September 15, he drove Cazan’s BMW to her home. His brother, Damon, rode with him, and Lakeisha and his mother followed in a separate car. Damon testified that during the trip defendant “was talking to someone” other than him. Defendant entered Cazan’s home alone, repositioned her body and clothing, and placed a stuffed animal, sprayed with perfume, at her side. Concerned by the amount of time that had elapsed, Damon entered the condo and said that he found defendant holding Cazan’s body, “trying to wake her [and] telling her [to] wake up.” Meanwhile, defendant’s mother had arranged for the police to be contacted by one of Cazan’s neighbors.
Mansfield Patrolman Jason Abadia responded and, after backup arrived, he arrested defendant. Abadia testified that defendant stated, “I killed her. I killed her. Don’t leave her like that. Cover her up. I killed her.” Abadia read defendant his Miranda[4] rights and defendant again stated that he had killed Cazan, explaining also what he had done with the knife and gun.
Detective Sergeant Lindsey Cooper of the New Jersey State Police took over the investigation approximately one hour later. To obtain a recorded statement from defendant, Cooper reread the Miranda rights to defendant. During the interrogation, defendant admitted killing Cazan and claimed that he could see a vision of her smiling through the window of the squad car when he was first placed under arrest, and later from the vantage of the room in which he was interrogated. In explaining his killing of Cazan, he stated that he was angry because of “that damn book,” which he clarified as referring to the Bible. Defendant told the officers, “I lost it and the devil kept f...ing with me, he just kept f...ing with me and I lost it . . . .” When asked if anyone else was involved in Cazan’s killing, defendant answered, “No, the devil, god and the devil (inaudible) inside of me, outside of me, all over the place, all over the place.”
C. Trial
Defendant was charged with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon (handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); thirddegree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1).
At trial, in addition to the family members who testified, Dr. Maureen Santina, a clinical and forensic psychologist, testified as an expert for defendant. She diagnosed defendant with schizoaffective disorder which causes hallucinatory experiences and delusional perceptions. [5] She testified that as a result of his delusional system, defendant lost his “ability to regulate his interpretation of the world and his reaction to the world.” She explained that defendant became obsessed with his delusions, including his belief that God wanted him to kill sinners, even his own family, and concluded as follows:
I think that he knew that he was killing her but I don’t think that he understood the nature of his killing her. In other words, I think that he believed that he was supposed to kill her. Whether he wanted to or not, he was supposed to kill her. And that he was supposed to kill her because God was ordering it.
On redirect, Dr. Santina clarified,
As I said, [defendant] believed that God was telling him to do it. He said, I didn’t want to kill her. He in the past, had family members that he had said God was telling him to kill them because he was seeing these people as being bad. And saying I don’t want to do it but feeling he had to. He even talked to himself as not having the courage to do what God wanted.
So in that moment when he feels that God wants him to do it he says I have to do it, I’m supposed to do it because God wants me to do it. He believed that he was following God’s word. And God as being the supreme authority who has the right to decide what’s right or wrong.
The State’s expert, Dr. Elliot Atkins, agreed with Dr. Santina’s conclusion that defendant suffered from the severe mental illness of schizoaffective disorder. The State’s expert further agreed that defendant operated under a delusional system. However, Dr. Atkins disagreed with Dr. Santina’s conclusion that defendant was legally insane at the time of the killing. Dr. Atkins emphasized that defendant admitted to not hearing voices at the time of the killing. Rather, Dr. Atkins testified that defendant was merely acting on his interpretation of what God wanted. On direct examination, Dr. Atkins testified:
For example, he said that he only really heard the voices when he was sleeping. He said that most of these were really not voices, but just thoughts in his head. That he wasn’t even able to describe the voice. And he said to me it was probably just some subconscious thing going on rather than a voice.
That the last time God had spoken to him was two years before the killing. That although he indicated that the idea that he should hurt someone came from God, he said that that information had never been transmitted to him from any voices. And he said it was just my interpretation. I never heard the voice of God.
When I asked him whether he had heard any voices on the night of the incident, he said no. So, although I agree that he was mentally ill at the time, what was going on at that time was not a psychotic episode where a voice is saying this is what you’ve got to do.
When asked on cross-examination whether defendant believed he could talk to God, Dr. Atkins responded, “he clarified for me that he didn’t believe God was actually talking to him. But he believed in this delusional system that what he was thinking was God’s wishes or God’s will.”
Dr. Atkins also pointed to several considerations that, in his opinion, indicated defendant knew what he was doing was wrong. First, defendant had a history of violence and aggression toward women, pointing to defendant’s experiences with the mother of one of his children, and to the fact that he had been fighting with Cazan on the day of the killing. Second, defendant had stated that he stabbed Cazan, not to serve God, but to put her out of her misery. Third, Defendant drank alcohol and smoked marijuana at the Britts’ apartment, which could indicate that defendant sought to dull the guilt he felt. Last, defendant’s forensic evaluation test results indicated he was trying to “make himself look better . . . by claiming that it was God that had him do this.” Dr. Atkins also noted that defendant’s decision to evade police was inconsistent with his claims of righteousness. Based on his evaluation of those considerations, Dr. Atkins opined that defendant was not acting in accordance with his delusional system at the time of the killing and that, therefore, “he knew that what he was doing was wrong.”
The jury instruction that the court and all parties agreed would be given in this matter was the Model Jury Charge for the insanity defense. Drawing from the model charge, the court instructed the jury as follows:
Apart from his general denial of guilt, the defendant maintains that he is not guilty of the crimes charged by reason of insanity. . . .
. . . .
A hostile act, that is an illegal act, may in one case spring from wickedness, and in another from some infirmity or sickness of the mind, which the individual did not design. . . .
. . . .
The law adopts a standard of its own as a test of criminal responsibility, a standard not always in harmony with the views of psychiatrist[s]. If, at the time of committing the act, the defendant was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or if defendant did know it, that he did not know what he was doing was wrong, defendant –- the defendant is then legally insane, and therefore, not criminally responsible for his conduct.
As you can see, the law regards insanity as a disease of the mind. It may be temporary or permanent in its nature, but the condition must be a mental disease. An accused may have the most absurd and irrational notions on some subject. He may be unsound in mind and be a fit subject for confinement and treatment in a mental hospital, but if at the time of the offenses, the defendant had the mental capacity to distinguish right from wrong, and to understand the nature and quality of the acts done by him, he is subject to the criminal law.
. . . .
The question is not whether the defendant, when he engaged in the deed, in fact actually thought or considered whether the act was right or wrong, but whether the defendant had sufficient mind and understanding to have enabled him to comprehend that it was wrong, if the defendant has used –- had used his faculties for that purpose.
The jury rejected defendant’s insanity defense and convicted him of murder and the other charges. His post-trial challenge to the insanity-defense jury instruction was denied by the court. At sentencing, the court imposed a fifty-year term of imprisonment, with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the murder conviction, and a five-year prison term for the hindering conviction, to be served consecutively to the fifty-year term. The judge also imposed lesser terms that were made concurrent to the sentences for the murder and hindering convictions.
On appeal, the Appellate Division reversed the conviction and remanded for a new trial. Singleton, supra, 418 N.J. Super. 177. The panel held that defendant had presented sufficient evidence at trial to have required the trial court, sua sponte, to fashion a deific-command variant to the insanity-defense jury charge based on Worlock. Id. at 202-04. The panel was persuaded that the instruction was necessary because defendant testified that he believed killing his girlfriend was “the right thing because it was something God was telling [him] to do.” Id. at 202. The panel noted also the confirming expert testimony that defendant believed he was compelled to obey what he perceived to be a command from God. Id. at 201. In light of that evidence, the panel concluded that failure to provide a deific-command instruction constituted plain error requiring reversal of the conviction. Id. at 203-04. On remand for a new trial, the panel held that “the judge must instruct that the defendant may not be held responsible for his actions ‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’” Id. at 204 (quoting Winder, supra, 200 N.J. at 251).[6]
We granted the State’s petition for certification. 207 N.J. 188 (2011).
II.
The State offers alternative arguments why the decision of the Appellate Division should be reversed. First, the State maintains that the evidence presented at trial supports the trial court’s decision to give only the model charge for the insanity defense and forego the deific-command variation described in Worlock. The Worlock charge is only appropriate in the “clearest and narrowest category of cases” in which a defendant believes that he or she has received a direct command from God ordering the defendant to commit an illegal act. Winder, supra, 200 N.J. at 251. The State contends that defendant’s decision to kill Cazan sprang not from a perception that he had received a direct deific command, but rather from defendant’s subjective, religiously derived, moral code under which he was generally obligated to kill those who did not interpret the Bible and follow God in the way that he did. Moreover, the State emphasizes that the circumstances surrounding the killing indicate that defendant’s immediate motivation for murdering Cazan was his anger over Cazan’s pregnancy and refusal to hand over her car keys, not his religious beliefs.
In the alternative, the State asks that we reject Worlock, “abandon the ‘deific decree’ variation of the insanity defense and abolish the distinction between legal and moral wrong.” The State argues that Worlock introduced uncertainty and subjectivity into the operation of the insanity defense. The State contends that reinterpreting the insanity test, so that a defendant who is able to understand the nature and quality of his acts can only invoke the defense if he is unable to comprehend that his acts are illegal, would create a more objective and workable standard.
Defendant argues that the Appellate Division correctly concluded that a Worlock jury charge was necessary in this matter. He points to several instances in the record, many relied on by the Appellate Division, where he claimed to have received direct communications from God. Defendant also contends that Worlock does not require a defendant to experience actual auditory hallucinations of the voice of God to secure a deific-decree jury charge; rather, he argues that it is enough that a defendant delusionally believes that God wants him to kill. In this case, defendant claims that there is no real dispute that he “suffered from a relatively stable delusion, over a period of years, that he was communicating with God, and that God was telling him to kill those who violated the Word.”
In response to the State’s argument that the deific decree jury charge should be abandoned, defendant contends that the charge is required by the statutory language of the test for legal insanity in New Jersey. Because the Legislature adopted that language, defendant argues that only the Legislature can discard the Worlock charge. Moreover, even if the courts were free to abandon it, to do so in this case would violate the Ex Post Facto clauses of the United States and New Jersey Constitutions. See U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3.
III.
A.
The insanity defense exists in criminal law not to identify the mentally ill, but rather to determine who among the mentally ill should be held criminally responsible for their conduct. Sikora, supra, 44 N.J. at 470. As a sister jurisdiction has observed, “[t]he insanity defense is not available to all who are mentally deficient or deranged; legal insanity has a different meaning and a different purpose than the concept of medical insanity.” State v. Crenshaw, 659 P.2d 488, 491 (Wash. 1983) (en banc). In New Jersey, N.J.S.A. 2C:4-1 sets forth the test for legal insanity:
A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong. Insanity is an affirmative defense which must be proved by a preponderance of the evidence.
N.J.S.A. 2C:4-1 codifies the common-law M’Naghten[7] test for legal insanity, which was originally formulated in England in the 1840s. See Winder, supra, 200 N.J. at 242-45 (discussing history of M’Naghten test in England and New Jersey); Worlock, supra, 117 N.J. at 602-04 (same). Our state adopted the M’Naghten test shortly after it was introduced in England, see State v. Spencer, 21 N.J.L. 196, 204-05 (Oyer and Terminer 1846), and has employed it consistently thereafter, see, e.g., State v. Coleman, 46 N.J. 16, 39 (1965); State v. Lucas, 30 N.J. 37, 72 (1959); State v. Maioni, 78 N.J.L. 339, 341-42 (E. & A. 1909). When the Legislature adopted N.J.S.A. 2C:4-1 in 1978, L. 1978, c. 95, it chose to preserve the M’Naghten test in spite of a recommendation from the New Jersey Criminal Law Commission to abandon it in favor of the Model Penal Code test. See 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96-97 (1971).
The M’Naghten test provides two distinct paths for a defendant to demonstrate that he was legally insane at the time he committed an act and therefore not criminally responsible for his conduct. First, a defendant can show that “he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing.” N.J.S.A. 2C:4-1. Second, even if the defendant did know the nature and quality of the act, he can still establish legal insanity if, because of a “disease of the mind,” “he did not know what he was doing was wrong.” Ibid.
In the century-and-a-half since the M’Naghten test was formulated, courts have recognized that the term “wrong” in the second part of the test is susceptible of multiple interpretations. See People v. Schmidt, 110 N.E. 945, 946-49 (N.Y. 1915) (recognizing ambiguity and discussing possible interpretations); see also Diestel v. Hines, 506 F.3d 1249, 1271-73 (10th Cir. 2007), cert. denied, 553 U.S. 1079, 128 S. Ct. 2875, 171 L. Ed. 2d 812 (2008) (same); Crenshaw, supra, 659 P.2d at 492-94 (same). One interpretation would equate the term “wrong” with illegality. Under that understanding, a defendant invoking the insanity defense must demonstrate that despite knowing “the nature and quality of the act he was doing,” he suffered a disease of the mind that prevented him from understanding that the act was illegal. See N.J.S.A. 2C:4-1. A minority of states that follow the M’Naghten test have adopted that interpretation. See State v. Hamann, 285 N.W.2d 180, 183 (Iowa 1979); State v. Boan, 686 P.2d 160, 168 (Kan. 1984); see also Regina v. Windle, 2 Q.B. 826 (1952) (interpreting “wrong” to mean legal wrong in England).
However, a majority of states following the M’Naghten test have interpreted “wrong” as encompassing legal as well as moral wrong. See State v. Skaggs, 586 P.2d 1279, 1284 (Ariz. 1978); People v. Skinner, 704 P.2d 752, 764 (Cal. 1985); People v. Serravo, 823 P.2d 128, 137 (Colo. 1992) (en banc); State v. Cole, 755 A.2d 202, 210 (Conn. 2000); Schmidt, supra, 110 N.E. at 949; State v. Pittman, 647 S.E.2d 144, 170 (S.C. 2007); State v. Cameron, 674 P.2d 650, 653–54 (Wash. 1983) (en banc); Wilson v. State, 78 N.W.2d 917, 920 (Wis. 1956); see also United States v. Ewing, 494 F.3d 607, 617 (7th Cir. 2007) (discussing federal courts’ position that wrong encompasses “the broader meaning of moral rather than criminal wrongfulness” (citation omitted)). Under that interpretation, a defendant who understands that his actions are contrary to law nonetheless may successfully invoke the insanity defense if he lacked the capacity to understand that his actions were morally wrong. Courts that follow that approach generally assess moral wrong from a societal, and not a personal, standard, requiring a defendant to show that he did not understand that his actions contravened generally accepted objective societal notions of morality. See, e.g., Serravo, supra, 823 P.2d at 137-38 (adopting that standard and citing other jurisdictions adopting same approach); Crenshaw, supra, 659 P.2d at 493-94 (same).
B.
Our Court addressed the ambiguity in the term “wrong” for the first time in Worlock. In that case, the defendant was convicted of murder after shooting and killing two friends. Worlock, supra, 117 N.J. at 599-01. At trial, the defendant did not deny his involvement in the killings, but relied instead on a defense of legal insanity. Id. at 601. He claimed to have believed the killings were justified because “might makes right” and the laws of society are only meant for “subservient people,” and the defendant did not consider himself to be in that category. Id. at 614. After the defendant presented his defense, the trial court charged the jury with the legal definition of insanity, but did not define the meaning of the term “wrong.” Id. at 612. On appeal, the defendant argued that the trial court should have instructed the jury that the term “wrong” can mean either legal or moral wrong, so that the jury would have known that it could acquit in the event it found that he did not understand that his actions were morally wrong, even if he knew them to be against the law. Id. at 606.
We held that the term “wrong” embraces more than just the concept of legal wrong, id. at 610, and that “a defendant’s ability to appreciate society’s morals may be relevant to the determination of his sanity,” id. at 609. Importantly, we added that
[i]n the vast majority of cases, if the defendant was capable of understanding that he was acting contrary to law, he would also have sufficient capacity to understand that he was acting contrary to the morals of society. Law is largely the crystallization of societal morals. Rarely would an allegedly illegal act not also be wrongful morally. Thus, “wrong” as used in the insanity defense will generally incorporate notions of both legal and moral wrong. [Id. at 609-10.]
Because legal and moral wrong are usually “coextensive,” especially when the criminal act at issue is murder, we held that a jury charge explaining that “wrong” encompasses both legal and moral wrong is almost always unnecessary and would more often than not only serve to confuse the jury. Id. at 610-11. But, in the odd case in which a defendant is able to recognize that his actions are legally wrong but is nonetheless incapable of understanding that they are morally wrong, we held that “the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.” Id. at 611.
We emphasized that the insanity defense has always been premised on a “defendant’s ability to comprehend whether his or her actions would ordinarily be disapproved by society.” Id. at 610. Thus, we held that “the concept of moral wrong must be judged by societal standards, not the personal standard of the individual defendant. As a general rule, it will not be sufficient, therefore, that a defendant’s personal moral code justified a killing otherwise prohibited by law and societal morals.” Ibid. (citations omitted). In other words, in order to warrant a jury charge explaining the concepts of legal and moral wrong, a defendant would have to show that, at the time he committed the crime, he believed that his actions were morally right under prevailing social norms, not just his own “idiosyncratic code of morality.” Id. at 614.
We observed that there is only one “generally-recognized” situation in which legal and moral wrong become sufficiently distinct to necessitate a jury charge defining the term wrong: when “the defendant contends that he or she knowingly killed another in obedience to a command from God.” Id. at 611. In such a scenario, a defendant could justifiably believe that although he acted contrary to law, society would consider his actions to have been morally right. Ibid. We noted that there might be situations other than a deific decree to kill in which a defendant could at the same time understand that his actions were legally wrong but believe them to be morally right under prevailing social values, but declined to speculate on what those scenarios might be. Ibid.
Applying the above standard to the facts of the case, we held that Worlock had not demonstrated that he believed society would have approved of his killings. Id. at 614. Indeed, we noted that he “viewed society with contempt” and candidly admitted that the moral code by which he lived was not for “the folly-ridden mass.” Ibid. Thus, because it was clear that Worlock had the capacity to understand that his actions were morally wrong under conventional notions of morality, we held that the trial court did not err in declining to define the word “wrong” for the jury. Ibid.
Recently, we had occasion to revisit the standard introduced in Worlock and again consider whether a defendant had presented the kind of insanity defense that would necessitate a jury charge defining the term “wrong.” In Winder, supra, the defendant shot and killed a cab driver outside of a police station, and immediately turned himself in to confess to the crime. 200 N.J. at 238. The defendant maintained that he killed the driver because he believed that his parents were trying to kill him and was convinced that prison was the only place he could be safe from them. Id. at 238, 249. The defendant pursued an insanity defense at trial, presenting an expert witness who testified that he suffered from paranoid schizophrenia and heard voices compelling him to kill. Id. at 239. At the charge conference, defense counsel requested that the jury be given an insanity instruction that, following Worlock, included an explanation that the term “wrong” encompasses both legal and moral wrong. Id. at 240. The trial court denied the request and instructed the jury with the model insanity charge. Ibid. The jury found the defendant guilty of first-degree murder and related weapons offenses. Ibid.
On appeal, the defendant challenged the trial court’s decision to forego the Worlock charge, contending that his case presented one of the “‘other delusion-based exceptions’” that we intimated could necessitate a jury charge on the definition of “wrong.” Id. at 249 (quoting Worlock, supra, 117 N.J. at 611). We disagreed, and reemphasized that, outside of the “deificcommand delusion” discussed in dicta in Worlock, situations in which a defendant could understand that his actions were illegal but be incapable of understanding that society would disapprove of them are exceedingly rare. Id. at 249-50. We explained that
[o]ur reference to other delusion-based exceptions in Worlock was not meant to expand the narrow field of potential exceptions to the general understanding that legal and moral wrong, particularly in murder cases, are coextensive. The hurdle to overcoming societal disapproval of the killing of another human being cannot be accomplished easily by references to subjective beliefs, personal preferences, or even alternative notions of morality, unrelated to mental illness, that clash with the law and the mores of society. [Id. at 250.]
We held that the defendant in Winder was not entitled to a Worlock charge because his actions immediately before and after the killing “demonstrated knowledge of the social unacceptance of his deed.” Id. at 249. Moreover, the defendant’s delusions had no apparent impact on his ability to appreciate the way in which society would view the murder. Id. at 250. The defendant believed that the only way he could be safe from his parents’ machinations was to go to prison, and settled on murder as the best way to effect his entry. Id. at 249. There was no indication that the defendant delusionally believed that society would give its blessing to his use of murder to escape his parents. Id. at 250. Thus, because we could discern “no credible claim of moral rightness” flowing from the defendant’s delusions, we upheld the trial court’s decision to give the standard insanity charge. Ibid.
IV.
We dispense at the outset with the State’s argument that we should abandon Worlock’s recognition of a deific-command exception to the general charge covering criminal insanity. Stare decisis and other stabilizing principles of the law compel us to reject that request.
As recently as this term we noted that “[s]tare decisis is a principle to which we adhere for the sake of certainty and stability.” State v. Shannon, 210 N.J. 225, 226 (2012) (citations omitted). Nonetheless, stare decisis is not so inviolate that it should “foreclose reanalysis” when warranted. Ibid. (citations omitted). It is undeniably a healthy practice for a court of last resort to re-examine its own doctrine, but, consistent with the practice of other courts of last resort, we have required “special justification” to overturn the persuasive force of precedent. See Luchejko v. City of Hoboken, 207 N.J. 191, 208-09 (2011) (citations omitted); State v. Brown, 190 N.J. 144, 157 (2007). Finding such circumstances can depend on whether a particular decision has proven to be unsound or unworkable in practice, as the State here argues. See AlliedSignal, Inc. v. Dir., Div. of Taxation, 504 U.S. 768, 783, 112 S. Ct. 2251, 2261, 119 L. Ed. 2d 533, 549 (1992). However, in matters where a judiciary may rely on legislative correction, special justification for disturbing precedent is difficult to establish.
Statutory-based decisions are less likely to be subject to reconsideration because the legislative branch can correct a mistaken judicial interpretation of a legislative enactment. Indeed, as a principle of statutory construction, the legislative branch is presumed to be aware of judicial constructions of statutory provisions. See White v. Twp. of N. Bergen, 77 N.J. 538, 556 (1978) (“[T]here is ample precedent in New Jersey to support the proposition that, where a statute has been judicially construed, the failure of the Legislature to subsequently act thereon evidences legislative acquiescence in the construction given the statute.”); 2B Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 49:10 at 137 (7th ed. 2008) (“A number of decisions have held that legislative inaction following a contemporaneous and practical interpretation is evidence that the legislature intends to adopt such an interpretation.”). Thus, legislative acquiescence to an interpretation of a statute renders the judicial decision an unlikely candidate for abandoning stare decisis. That is precisely the circumstance here.
Worlock’s explanation of the general confluence of legal wrong with moral wrong in the legislative use of the single term, “wrong,” in N.J.S.A. 2C:4-1, and our holding out of the possibility that a special instruction may be necessary to explain a divergence of the two only in the clearest and narrowest category of class of cases, occurred more than two decades ago. Worlock’s interpretation of the M’Naghten test, adopted by the Legislature in N.J.S.A. 2C:4-1, has stood since, without reaction by the legislative branch in the interim. Nor has there been a legislative reaction since Winder reinforced a restrictive approach to the application of Worlock, not a more expansive one as the concurrence in Winder had urged. Due to the Legislature’s longstanding acceptance of Worlock, and the fact that we are addressing a settled interpretation of case law, we decline to accept the invitation to overturn Worlock at this point in time, even were we to concede some merit to the argument.
We turn therefore to consider whether there was plain error in the trial court’s jury instruction on the insanity defense in this matter.
V.
A.
Certain principles pertain in the review of jury instructions. Jury charges must provide a “comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find.” State v. Green, 86 N.J. 281, 287–88 (1981). The charge as a whole must be accurate. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Thompson, 59 N.J. 396, 411 (1971). If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant’s case. State v. Macon, 57 N.J. 325, 333–34 (1971).
At trial, defendant did not challenge the jury instruction that used the model charge on insanity until after a guilty verdict had been returned. Thus, the question here presented is whether the trial court erred in not sua sponte including additional language separating defendant’s ability to appreciate legal wrong from moral wrong based on “deific commands” to kill. [8]
Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge. See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) (“[T]he failure to object to a jury instruction requires review under the plain error standard.”). Plain error is that which is “clearly capable of producing an unjust result.” R. 2:10-2. In respect of a late claim of error in a jury instruction, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.’” State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).
B.
In State v. Walker, 203 N.J. 73 (2010), we recently addressed the issue of “when a trial court should instruct the jury on the defense to statutory felony murder in the absence of a request to charge from counsel.” Id. at 86. We determined that a requested jury instruction should be given if “there is a rational basis in the record to give it . . . . On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it.” Id. at 87.
The delusional command variation of the insanity defense is a much more limited defense than that which we considered in Walker. See Winder, supra, 200 N.J. at 250-51; Worlock, supra, 117 N.J. at 611. We said clearly in Worlock that “[b]elief in an idiosyncratic code of morality does not constitute the defense of criminal insanity.” 117 N.J. at 614; see also Crenshaw, supra, 659 P.2d at 493-94 (concluding that personal moral beliefs will not exculpate defendant when he or she knew killing was contrary to societal moral and legal norms). “Worlock cracked open the door only to a command delusion that, objectively viewed, could have rendered it impossible for its hearer to know the difference between right and wrong.” Winder, supra, 200 N.J. at 249. A rigorous standard was expressed and applied in Winder consistent with the few decisions around the country to have grappled with such circumstances. [9]
Applying to this case that stringent standard for qualification into the narrow and clear class of case envisioned to satisfy a deific command to kill, we conclude that the evidence does not clearly indicate that it was impossible for defendant to appreciate that killing Cazan was contrary to society’s morals. The Worlock variation of the insanity-defense jury charge is not available to all those who intuit reprehensible obligations or develop idiosyncratic moral compulsions from interpreting religious material. Were that all that was required in order to constitute a deific “command,” then acting pursuant to any such personal belief system would qualify as lack of knowledge of having committed “moral” wrong and a defendant would no longer have to show that he believed that society would not objectively disapprove of the moral wrongness of the action. The decision in Winder was circumscribed carefully to ensure that such a result would not come to fruition. See Winder, supra, 200 N.J. at 248-51.
Here, defendant claimed to have formed a general belief that he ought to kill sinners who refused to follow his explanation of God’s expectations. In essence, defendant had an idiosyncratic personal belief system analogous, albeit in different form, to that in Worlock. See also State v. DiPaolo, 34 N.J. 279, 292-93 (1961) (distinguishing between insane delusion that negates consciousness of immorality of act from delusion that does not prevent defendant from simultaneously appreciating that deed was contrary to law); Crenshaw, supra, 659 P.2d at 494-95 (holding that defendant claiming Moscovite belief system that calls for killing as retribution for adultery is not entitled to deific-command adjustment to jury charge on criminal insanity).
Defendant’s personal belief system was based on his own interpretation of scripture, fortified through dreams in which he believed to receive communications from God, which does not render his belief system in his “right to kill” certain sinners the equivalent of a command from God to kill.
Moreover, defendant had demonstrated on prior occasions the ability to exercise his own will and resist the obligation he perceived from God’s teachings. Defendant had chosen not to kill his family or their friends despite his religious delusions generally and his specific belief, expressed on occasion, that they were sinners. Defendant also determined that he would not kill anyone to whom he had not had a chance to explain his religious beliefs. For example, he decided that he would not attempt to hurt or kill Britt’s brother because defendant had not taught him to believe in God’s word as defendant interpreted it, and also because he was bigger and apparently stronger than defendant. Defendant’s inconsistent application of “God’s will” and the concomitant deific desire that he kill sinners, which he claims to have perceived, and his reluctance to kill those whom he had not tried to convert, indicates his awareness of an objective societal disapproval of the personal religious belief system he had developed.
Defendant also has failed to demonstrate entitlement to a Worlock charge because the evidence does not clearly indicate that he was acting pursuant to a delusional command at the time of the killing. As explained in Winder, an amplified criminal insanity charge differentiating between legal and moral wrong is available only to a defendant whose will is overborne by a perceived divine command that overcomes the ability to be conscious of society’s law and mores disapproving of that “command.” See Winder, supra, 200 N.J. at 247-48 (citing Crenshaw, supra, 659 P.2d at 494-95; DiPaolo, supra, 34 N.J. at 293). There is a necessary temporal proximity to the action for which a defendant is charged and the overbearing of his will by God’s order or command at the time of the action. In rejecting a Worlock instruction in Winder, we curbed expansion of Worlock in part because there was no showing that the defendant was operating under a direct command from God at the time of the killing. Here, defendant admitted that he never heard a voice or saw a vision that commanded him to kill Cazan when he committed the murderous act. [10] Moreover defendant admitted that he had not received any specific command to kill Cazan at the moment of the killing, and indeed had not received any communications from God for some time.
Nothing in Winder’s application of the law to its facts supports the extrapolation made by the appellate panel in this matter, which would permit anyone who interprets a religious text in an outrageous and violent manner to a deific-command, insanity-defense charge. Isolated references to voices, and to communication with God through scripture and in dreams, are not the equivalent of a command from God, at the time of the killing, sufficient to demonstrate that it deprived defendant of his ability to appreciate society’s disapproval of his action. The appellate panel mistakenly accepted defendant’s belated argument that the charge, given in its classic form, was insufficient for the jury to consider his insanity defense. Plain error is not present in the charge given here on this record.
Defendant’s complaints post-trial and on appeal that, in light of Worlock and Winder, the charge required clarification are not consistent with precedent as to the factual requirements needed to trigger a deific command variation to the insanity defense jury charge. [11] What the record shows is that, based on defendant's interpretation of the Bible, he believed Cazan was a sinner. And, he similarly interpreted “God’s word” to direct that he kill sinners. That is not the type of case to which we referred in Winder when we discussed a deific-command clarification to the insanity-defense charge. And, more pointedly, there is too tenuous a connection between any “alleged” deific-command and the murder that occurred in this matter on which to base a reversal on plain error. Defendant admitted that he would have left and not killed Cazan if she only had given him the car keys. He thereafter stated that he stabbed Cazan, not to kill her, but to put her out of her misery. Since the killing, defendant has questioned whether it was God’s will for him to kill Cazan. [12]
In sum, we conclude that the evidence does not clearly indicate defendant killed Cazan as a result of a deific command. Defendant was entitled to assert an insanity defense, and he did. He received an insanity jury charge. The trial court did not commit plain error by failing to give, sua sponte, a Worlock charge as part of the insanity-defense jury instruction. Defendant’s conviction should not have been reversed on appeal on that basis. We express no view on the other claims of error raised on appeal that were not addressed by the Appellate Division. Those issues can be addressed on remand.
VI.
The judgment of the Appellate Division is reversed and the matter is remanded to the Appellate Division for consideration of defendant’s remaining claims of error.
JUDGE WEFING (temporarily assigned) joins in JUSTICE LaVECCHIA’s opinion. JUSTICE PATTERSON, joined by CHIEF JUSTICE RABNER, filed a separate opinion concurring in the judgment. JUSTICE HOENS filed a separate, dissenting opinion in which JUSTICE ALBIN joins.
JUSTICE PATTERSON, concurring.
I concur with the majority opinion, which reverses the determination of the Appellate Division panel and holds that defendant Boyce Singleton, Jr. was not entitled to the deific command jury instruction addressed by this Court in State v. Worlock, 117 N.J. 596, 611 (1990). The majority opinion faithfully follows the reasoning in Worlock and State v. Winder, 200 N.J. 231 (2009). For the reasons articulated by Justice LaVecchia, I agree that defendant’s belated invocation of the deific command variation of the insanity defense was unsupported in the circumstances of his crime.
I write separately because in my opinion, the deific command concept is neither mandated by the Legislature in N.J.S.A. 2C:4-1 nor firmly rooted in our jurisprudence, and should not be part of our law. It invites a defendant to exploit a core value of our society, respect for the religious beliefs of others, for tactical advantage. The deific command concept does not meaningfully guide a jury’s exploration of the intricate issues raised by the insanity defense. Instead, it can reduce the dispassionate analysis of a defendant’s mental state, envisioned by the Legislature when it codified the insanity defense, to a superficial review of the defendant’s religious utterances. Application of the deific command results in inequitable treatment of defendants who have committed similar crimes based on nothing more than one person’s assertion of a religious delusion. In my view, a defendant’s claim that he or she heeded a deity’s purported instruction to commit a murder or other crime should not prompt a jury instruction that suggests a finding of legal insanity within the meaning of N.J.S.A. 2C:4-1.
Neither the plain language nor the legislative history of N.J.S.A. 2C:4-1 warrants special consideration for defendants who claim that deific commands prompted their crimes. The statute at issue bars the imposition of criminal responsibility for conduct if, at the time of the crime, the defendant “was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.” N.J.S.A. 2C:4-1. The Legislature did not expressly or by implication define the word “wrong” as used in N.J.S.A. 2C:4-1. It provided no instruction that a defendant’s failure to comprehend that his or her act was “wrong” should mean anything other than he or she did not understand that it was an illegal act.
As the majority notes, the statute codified the test articulated by the House of Lords in M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843), long accepted as the formulation of the insanity defense in New Jersey case law. Statement to Senate Bill No. 738, at 3 (May 15, 1978). The M’Naghten rule, reflected in our statute, did not differentiate between defendants who invoke deific commands and defendants who do not. In this Court’s articulation of the M’Naghten rule -- relied on by the drafters of New Jersey’s Penal Code, 2 Final Report of the New Jersey Criminal Law Revision Commission, commentary to § 2C:4-1, at 96 (1971) -- the Court held that a defendant could invoke the insanity defense if “the accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong.” State v. Coleman, 46 N.J. 16, 39 (1965). That construction, adopted nearly verbatim by the Legislature in N.J.S.A. 2C:4-1, refers to “wrong” without reference to religious belief. It does not contemplate a deific delusion as part of the test for insanity.
To the extent that the deific command permutation of the insanity defense has gained a foothold in New Jersey law, it has done so through this Court’s dicta, not legislative action. The concept originated in the New York Court of Appeals, finding its source in dicta written by Judge Cardozo in People v. Schmidt, 110 N.E. 945 (N.Y. 1915). There, the defendant concocted -- and later recanted -- an elaborate account of visions and voices conveying directions from God that he should kill a woman “as a sacrifice and atonement.” Id. at 945. Although the defendant conceded “that he never saw the vision and never heard the command,” id. at 950, Judge Cardozo nonetheless introduced to New York law a distinction between legal and moral “wrong” illustrated by a hypothetical scenario:
A mother kills her infant child to whom she has been devotedly attached. She knows the nature and quality of the act; she knows that the law condemns it; but she is inspired by an insane delusion that God has appeared to her and ordained the sacrifice. It seems a mockery to say that, within the meaning of the statute, she knows that the act is wrong. [Id. at 949.]
Schmidt was first noted by this Court in State v. DiPaolo, 34 N.J. 279, 292-93, cert. denied, 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961). However, it was not until 1990, more than a decade after the enactment of N.J.S.A. 2C:4-1, that the Court suggested in Worlock that the statute could be construed to incorporate the deific command concept.
As the majority recounts, the principle that a deific delusion could illustrate a potential distinction between legal and moral wrong was addressed for the first time by this Court in Worlock, supra, 117 N.J. at 608-09. Like the discussion of the deific command in Schmidt, the Court’s first articulation of this theory was in dicta and did not apply to the facts of the case. The defendant in Worlock attributed his killing of two friends not to a purported deific command, but to his stated belief that he was exempt from the laws of society, which in his view were intended to govern only the “subservient.” Id. at 614. The Court discussed the distinction between “legal” and “moral” wrong, noting that in most cases the two concepts converge. Id. at 610-11. The Court made the following observation:
Occasionally, however, the distinction between moral and legal wrong may be critical. For example, if the defendant contends that he or she knowingly killed another in obedience to a command from God, a jury could find that the defendant was insane. Schmidt, supra, 110 N.E. at 949; see also DiPaolo, supra, 34 N.J. at 291-93 (“The experts disagreed upon whether there was evidence of a psychosis to support the alleged delusion, but none suggested that if defendant in fact suffered an insane delusion that God commanded the deed, he nonetheless was legally sane if he simultaneously appreciated that the deed was contrary to law.”). [Id. at 611.]
Although the Worlock defendant had not suggested that the murders he committed were directed by any deity, the Court postulated that in an “exceptional case, such as the deific exception in which the defendant claims that he or she acted under a command from God, the court should instruct the jury that ‘wrong’ encompasses both legal and moral wrong.” Ibid. For defendant Worlock, the Court found no such exceptional circumstances. Id. at 613-14.
In Winder, the Court recognized its prior discussion of the deific command, but nonetheless rejected the defendant’s claim that he was entitled to a jury charge regarding the distinction between legal and moral wrong in his trial for the murder of a taxi driver. Winder, supra, 200 N.J. at 250. The Court concluded that the defendant in Winder, who attempted to justify his act by professing his belief that his parents were trying to kill him, was not entitled to the jury instruction that he sought. In doing so, the Court reiterated the narrow scope of any “delusion-based” exceptions to the rule that legal wrong and moral wrong are coextensive. Id. at 248. Thus, in the three cases in which it has considered the “deific command” issue –- Worlock, Winder, and the present case -- the Court has never concluded that a defendant is entitled to a deific command charge.
Given this history, I respectfully submit that the deific command concept has a tenuous connection to New Jersey law. Special consideration for defendants relying on a deific command theory is not, in my view, compelled by the Legislature’s use of the term “wrong” in N.J.S.A. 2C:4-1, which codifies M’Naghten but makes no reference to the notion of a defendant’s inability to perceive “moral wrong.” The concept was not introduced to our law by the circumstances of an actual case involving a deific delusion. Instead, in both New York and New Jersey, it originated as nothing more than a hypothetical illustration of a setting in which a defendant could perceive an act as legally but not morally wrong. Schmidt, supra, 110 N.E. at 949; Worlock, supra, 117 N.J. at 608-09. Its limits were further underscored by the Court in Winder, supra, 200 N.J. at 248.
The jury instruction formulated by the Appellate Division panel below -- to be given in a retrial of defendant -- would direct the jury to find defendant not guilty by reason of insanity if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command, or “‘where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.’” State v. Singleton, 418 N.J. Super. 177, 204 (App. Div. 2011) (quoting Winder, supra, 200 N.J. at 251). The Appellate Division’s proposed jury instruction demonstrates the hazards of the deific command concept. The instruction could be construed to suggest that a defendant’s invocation of a deific command presumptively resolves what should be a fact-sensitive, dispassionate inquiry into the psychiatric condition of a criminal defendant. It poses the real danger of confusing and distracting a jury, and could reward the defendant who fabricates an account of visions, voices and divine commands. In my opinion, the insanity defense should be reserved for a defendant whose psychiatric condition renders him or her unable to appreciate the illegality of the crime at issue, and the deific command theory should be jettisoned.
I fully subscribe to the majority’s observations about the principle of stare decisis; it is an important foundation of our legal system, “‘to which we adhere for the sake of certainty and stability.’” Ante at ___ (slip op. at 31) (quoting State v. Shannon, 210 N.J. 225, 226 (2012)). However, I consider this case to present the unusual setting in which the principle of stare decisis does not compel the Court to precisely conform its holding to prior decisions.
Given the factual setting of Worlock, its discussion of the deific command is dicta. In Winder, the Court also declined to apply the deific command theory to the defendant in that case. Winder, supra, 200 N.J. at 250-51. As a result, the discussions are authoritative even though they were not essential to the disposition of either case. See State v. Rose, 206 N.J. 141, 182-84 (2011).
But even if we were to treat the dicta in Worlock and Winder as though they had the full weight of precedent, there are still “special justifications” that would warrant overturning the deific command construct. Luchejko v. City of Hoboken, 207 N.J. 191, 209 (2011). Such justifications include “when a rule creates unworkable distinctions [or] when a standard defies consistent application by lower courts,” ibid., or when “‘conditions change and as past errors become apparent,’” White v. Twp. of N. Bergen, 77 N.J. 538, 551 (1978) (quoting Fox v. Snow, 6 N.J. 12, 27 (1950) (Vanderbilt, C.J., dissenting)). In my opinion, that standard is easily met here. The deific command concept is not required by the text of the statute or its legislative history. Our Court has not once held that the facts before it have entitled a defendant to an expanded jury instruction based on this theory. Such an instruction has the tendency to mislead and confuse jurors, and raises the specter of rewarding the fabrication of deific delusions. Its arguable utility is therefore offset by its potential to lead to inequitable results.
The majority characterizes this case as one in which the judiciary may rely on legislative correction, and finds the deific command concept to be fortified by the Legislature’s failure over the years to nullify it by statute. Ante at ___ (slip op. at 32) (citing White, supra, 77 N.J. at 556). In this regard, I must part company with the majority. As we have held, “[t]he Legislature need not explicitly amend a statute . . . every time [a court] takes action inconsistent with it in order to avoid the implication that the Legislature concurs.” State v. Cannon, 128 N.J. 546, 566-67 (1992). The Court has noted in other contexts that “[l]egislative inaction has been called a ‘weak reed upon which to lean’ and a ‘poor beacon to follow’ in construing a statute.” GE Solid State, Inc. v. Dir., Div. of Taxation, 132 N.J. 298, 313 (1993) (citations omitted); see also Amerada Hess Corp. v. Dir., Div. of Taxation, 107 N.J. 307, 322 (1987), aff’d, 490 U.S. 66, 109 S. Ct. 1617, 104 L. Ed. 2d 58 (1989).
Here, the Legislature enacted N.J.S.A. 2C:4-1 before this Court construed the simple word “wrong” to permit an insanity defense based on deific command delusions, whether in dicta or in any holding. I cannot presume that the Legislature’s failure to address this specific issue, given its many priorities, amounts to an endorsement of the deific command. In my view, the inclusion of a deific command notion as part of N.J.S.A. 2C:4-1 is the creation of our case law. The principles of stare decisis do not require that we apply it now or in the future.
Except as noted above, I join in the majority’s decision to reverse the determination of the Appellate Division panel and remand to the Appellate Division for consideration of defendant’s remaining arguments.
CHIEF JUSTICE RABNER joins in this opinion. SUPREME COURT OF NEW JERSEY
JUSTICE HOENS, dissenting.
A man, having given himself over to the study of religious texts and tracts, believes that he is called by God to carry out various acts that no sane man would perform. His family grows fearful of his numerous expressions of what he believes he has been called to do in order to cleanse the world of them or to cleanse them of their sins. Some of his pronouncements include expressions that he is resisting God’s orders; others make it plain that he is intent on complying with God’s will as he understands it, even to the point of putting others to death.
His family first tries to use the powers of reason in an effort to convince him that his views do not comport with traditional religious teachings and in order to convince him of the errors in his increasingly bizarre and frightening pronouncements. Failing that, they essentially force him from their home. He moves in with a woman who then becomes pregnant with his child. Believing that she is nothing more than a harlot in the eyes of God and that she is in need of cleansing, he kills her. In the aftermath of that horrific act, his behavior includes some actions that appear to be consistent with efforts to elude detection and some lucid statements, but his family members report that he is babbling, obviously talking to and hearing the voice of someone they can neither see nor hear.
By the time of his trial, the explanations he has given about his behavior to the mental health professionals include both assertions that he was acting in accordance with what he believed to be the will of God and expressions of remorse that he now recognizes that he was duped by the devil into doing things contrary to the will of God. Nonetheless, his own testimony at trial explained that sometimes he heard directives and sometimes the “Spirit ministered to me and that I received like — a talk from Him” and that killing his girlfriend “was the right thing because it was something God was telling me to do.” Expert testimony included the opinion that defendant killed his girlfriend because he “believed that he was being compelled to do this by God and that therefore he had to obey that belief.”
No one disputes that defendant Boyce Singleton is mentally ill. The question before the Court today is whether the factual setting in which he acted and the expert testimony concerning his mental status is sufficient to meet the test that we have devised for the deific command variation on the traditional insanity defense. See State v. Winder, 200 N.J. 231, 246-48 (2009) (considering difference between deific command and personal moral code); State v. Worlock, 117 N.J. 596, 611 (1990) (recognizing deific command variation on insanity defense). More to the point, the question before this Court is whether, in light of that record, the trial court’s failure to charge the jury in accordance with Worlock was an error that entitles defendant to a new trial. The Appellate Division concluded that it was, as do I. Therefore, I respectfully dissent.
I.
We have long recognized that “clear and correct jury instructions are fundamental to a fair trial.” State v. Adams, 194 N.J. 186, 207 (2008). In the context of a criminal trial in particular, we have cautioned that erroneous jury charges presumptively constitute reversible error, State v. Jordan, 147 N.J. 409, 422 (1997), and are “poor candidates for rehabilitation under the harmless error philosophy,” State v. Vick, 117 N.J. 288, 289 (1989) (citation omitted). Those expressions of our deeply held concern for ensuring that all defendants are accorded a fair trial are no more compelling than they are in the case of one facing a charge of murder.
To be sure, we have fixed different standards against which to test such errors based upon whether a defendant requested a charge or failed to do so. In the latter circumstance, we have established a stringent standard, one that requires the defendant to demonstrate that the failure to include the charge was plain error and therefore clearly capable of producing an unjust result. R. 2:10-2; see State v. Burns, 192 N.J. 312, 341 (2007). Although the plain error standard is an exacting one, the record in this case, fairly and objectively viewed, surely meets it.
Indeed, it is only by redefining the meaning of Worlock’s deific command variation on the insanity defense, by imposing a new and exceedingly narrow view of the type of command that will qualify for that defense, by altering our previously-accepted notion of the difference between a true deific command and acts based on a personal moral code, and by ignoring the abundant evidence adduced at trial through fact and expert testimony in support of the conclusion that defendant fit within the traditional bounds of the deific command defense, that the majority can conclude that the failure to give the charge sua sponte did not amount to reversible error. In adopting this approach, the majority has created a test so narrow as to be essentially non-existent. It is, therefore, a new test that stands in clear disregard of the statutory definition of insanity, that is contrary to our previous decisions explaining the sources from which that statute was drawn and that is at odds with both religious practices and psychiatry.
Whether a jury would find that defendant met the definition of insanity had they been correctly charged we cannot know; that defendant has been deprived of the chance to be judged fairly in accordance with the statutory commands that define insanity in terms of both legal and moral wrong is the essence of injustice.
II.
The essential reasons for my disagreement with the majority’s reasoning and conclusion can be explained succinctly. First, the majority fails to recognize that the issue presented in Worlock, as to which the deific command discussion was but a small component, was nothing less than this Court’s clear articulation of the fundamental basis upon which we, and our Legislature, have embraced a definition of insanity that includes both legal and moral wrong. Worlock, supra, 117 N.J. at 606 (describing issue as one of first impression). It was there that this Court traced the concept back to its roots in M’Naghten, see id. at 603-07, there that the Court described the evolution of the concept here and around the country, id. at 608-09, and there that this Court adopted Judge Cardozo’s reasoning that serves as the essential underpinning of our now well-established recognition of the deific command defense, ibid. (quoting People v. Schmidt, 110 N.E. 945, 949 (1915)). To dismiss that scholarly explanation on such an important subject as a “narrow caveat,” ante at ___ (slip op. at 2), suggests that the majority deems both this Court’s decision in Worlock and the entire notion of the deific command defense to be unworthy of our attention.
Second, the majority overemphasizes the confined focus that this Court had in the more recent Winder decision, implying that Winder forged new ground. In fact, this Court in Winder merely recognized that a defendant who acts based on a personal moral code cannot claim the benefit of the deific command defense that we authorized in Worlock. The defendant in Winder made little effort to suggest that he acted pursuant to a deific command. Rather, his defense was that there were “other delusion-based exceptions” that Worlock suggested might be available and for which he qualified. Winder, supra, 200 N.J. at 249. Although the Court referred to the deific command defense as a narrow one, the Court did so in the context of a refusal to expand it to one who failed to demonstrate that the delusion he identified could or did fall into the category of legal but not moral wrong. Id. at 249-50. Nothing in that decision suggests, as the majority today prefers, that the true deific command has lost any of its vitality as a variant of the insanity defense.
Third, the majority’s analysis of the record today alters the distinction we recognized and applied both in Winder and in Worlock between defendants who respond to true deific commands and those whose criminal acts are instead motivated by adherence to a personal moral code. The defendant in Worlock believed that he was permitted to kill his victims because “they’re the folly-ridden mass, they’re controlled by their popular beliefs” and because he lived by the code of “might makes right,” not because he was responding to any deific directive. Worlock, supra, 117 N.J. at 614. The defendant in Winder contended that he feared his parents were planning to kill him and murdered an innocent cab driver in order to be sent to prison where he would be safe from them. Winder, supra, 200 N.J. at 236-39. That logic, too, had all of the hallmarks of a purely personal code of conduct and none of the criteria by which a deific command can be identified. It was in that context that we cited precedents of our own, see id. at 247-48 (citing State v. DiPaolo, 34 N.J. 279, 293 (1961)), as well as the leading authority from another jurisdiction, id. at 247 n.6 (discussing State v. Crenshaw, 659 P.2d 488, 494-95 (Wash. 1983)), that demonstrate that a belief system that is contrary to societal mores is not sufficient.
This accepted distinction between deific commands and personal moral codes is best illustrated by the decision of the Supreme Court of Washington. See Crenshaw, supra, 659 P.2d at 494-95. There, the defendant acted in conformance with his Muscovite beliefs which, he contended, obligated him to kill his wife for her infidelity. Rejecting his assertion that he was entitled to claim the “sanctuary of the insanity defense,” the court held that “some notion or morality, unrelated to a mental illness, which disagrees with the law and mores of our society is not an insane delusion.” Id. at 495. Such a set of beliefs would no more be insane and would no more be a defense than the man who, coming from a culture where women are property and beating them is the accepted norm, claimed entitlement to walk free from the crime of assault if he beat his wife here. See S.D. v. M.J.R., 415 N.J. Super. 417, 431-33 (App. Div. 2010) (rejecting contention that asserted religious beliefs about husband’s marital rights negated ability to form criminal intent); see also Reynolds v. United States, 98 U.S. 145, 166, 25 L. Ed. 244, 250 (1879) (concluding that First Amendment’s guarantee of freedom of religion did not shield defendant from polygamy conviction).
The reliance on a moral code that is on its face rational but unacceptable to our legal system is not a form of insanity. But that is not what deific commands are all about. The reason that the deific command qualifies as a defense to murder is that it is the one corner of insanity in which legal and moral wrong do not coincide. See Worlock, supra, 117 N.J. at 610-11. One who acts in accordance with a sincerely held belief that he has been directed by God to carry out a murder may well appreciate that the crime is legally wrong, but will nonetheless act on the directive because he equally believes that it is a moral imperative. And it is only by recognizing the deific command that we, as a Court, can give full meaning and content to the Legislature’s statutory definition of insanity. N.J.S.A. 2C:4- 1. That body chose the word “wrong” rather than the word “illegal” in defining the insanity defense; it made that choice against the backdrop of the decades, in fact more than a century, of precedent extending back to the M’Naghten formulation of the distinction between legal and moral wrong. This Court is not free to abandon that distinction through today’s crabbed interpretation.
Fourth, the majority redefines Worlock and Winder to suit the current purpose. It does so by altering the meaning of deific command so that it means one thing and one thing only, namely a direct, apparently verbally transmitted, command from God to do a specific act that the defendant then cannot help himself from carrying out. That view of deific command, however, finds no real support in any of this Court’s prior cases, nor in the precedents on which they were based. The majority’s decision expresses a new and rigid view of just what sort of a command from God it now believes is needed to so blur the line between legal and moral wrong as to call for the Worlock charge. Apparently only a booming voice from heaven, presumably admitting of only a singular direction, will meet the test for deific command. That constricted version of the test serves only to substitute as part of the fabric of our law an exceedingly narrow view of religious traditions found only in the cinema.
More troubling to me, that articulation of the sort of command that the majority now finds will define the Worlock variant on the insanity defense is sadly lacking in an understanding of either religion or psychiatry. While I do not profess to be expert in either, there is abundant support for the proposition that deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed. See, e.g., People v. Coddington, 2 P.3d 1081, 1111 (Cal. 2000) (permitting insanity defense for defendant who believed, among other things, that God communicated to him through traffic signals and numbers), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 449 (N.H. 1999) (permitting insanity defense based on defendant’s contention that God appeared while he was in “trance”); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001) (permitting insanity defense for Mormon fundamentalist who killed his sister-in-law and her infant child based on God’s “removal revelation”).
The majority’s suggestion that henceforth only a very specific variation of a command from God will suffice also ignores the fact that entirely sane people of faith profess to receive directions from God in ways far different from the cinematic version of how God speaks. They see visions, they find directions in dreams, they feel called, they express their knowledge of the will of God in myriad different ways. By extension, why would an insane person who believes he is directed by God to do something we would all say is illegal not similarly profess to have received that command in one of these other, entirely traditional manners?
Indeed, if we accept, as the majority apparently does, that for an insane person, there is but one version of a deific command and that it takes the sole form of an audible voice directing an immediate action, we are resurrecting, without perhaps intending to do so, the irresistible impulse approach to insanity that we long ago discarded. See State v. Cordasco, 2 N.J. 189, 196 (1949) (adhering to M’Naghten rule and rejecting irresistible impulse formulation of insanity); Mackin v. State, 59 N.J.L. 495, 496-97 (E. & A. 1896) (same). This is so not because of the requirement that it be a voice, but because the majority has coupled that requirement with notions about commands, orders, and “do this now” language as to which the recipient cannot but comply. I see no basis for such a remarkable alteration in the law that governs the insanity defense.
Nor does the majority’s opinion remain faithful to the psychiatrists’ view of what might qualify as a delusional deific command. The experts in this case did not quarrel over whether the form in which defendant said he had received his instructions from God would suffice, they in fact agreed that defendant suffered from delusions that caused him to believe he had been called in some way by God. What they disputed was whether it was a call to commit this murder or whether the murder was instead triggered by defendant’s history of aggressions against women, his strained and troubled relationship with the victim, or the victim’s refusal to turn over the car keys when he asked for them. For the majority to substitute its newfound belief that God only speaks in one way, or more precisely, that we will only recognize that an insane person hears the instruction from God or the call of God in a single format, is a dramatic and unsupported departure indeed.
Fifth, the majority, rather than reviewing the evidence in the record in accordance with our usual principles concerning the review on appeal of whether there is enough evidence in the record to require that the jury be charged sua sponte, proceeds instead to draw its own conclusions about the result it would have reached about whether defendant was insane. We have held that the trial court is obliged to charge a jury sua sponte “only when the evidence clearly indicates the appropriateness of such a charge[.]” State v. Walker, 203 N.J. 73, 87 (2010) (considering court’s obligation to charge statutory defense to felony murder without request); see State v. Rivera, 205 N.J. 472, 488-90 (2011) (applying same standard to evaluate court’s obligation to charge any defense sua sponte); State v. Denofa, 187 N.J. 24, 41 (2006) (applying same standard in considering requirement to charge lesser-included offenses).
Utilizing our well-established test, the question is whether the evidence in the record “clearly indicates the appropriateness” of the Worlock charge. Tested in accordance with that standard, rather than tested in accordance with the majority’s approach of viewing the evidence through the lens of its new definition of the contours of the deific command variation of insanity, one can only conclude that the substantial evidence concerning defendant’s behavior, beliefs and rationale sufficed. That there is evidence suggesting that defendant was not insane, or did not act in accordance with a deific command is not the point; rather, the existence of such evidence and the manner in which it should have been weighed and balanced is the proper function of a jury and not of this Court. The fundamental error of the majority’s analysis is that it tries to make rational sense out of what in the end is clear evidence of a disordered and delusional mind. Mistaking a few glimmers of lucidity or perhaps some sane behaviors for an organized thought process, the majority finds so little evidence of the deific command that it deprives defendant of the defense entirely. In doing so, it inappropriately substitutes its view for that of the finder of fact.
III.
In the end, I dissent because the majority has adopted a crabbed view of Worlock, has announced a view of Winder not expressed by the majority of the Court who joined it, and has retreated to an indefensible understanding of concepts of insanity and deific commands. I therefore respectfully dissent.
JUSTICE ALBIN joins in this opinion.
[1] The evidence concerning defendant’s mental illness was presented to support defendant’s insanity defense and also to show that mental illness could have affected his capacity to knowingly or purposely commit the offense. Defendant’s claim of error based on the trial court’s failure to give a diminished capacity instruction was not addressed in the Appellate Division’s resolution of this matter.
[2] In explaining an instance of such a communication that occurred prior to the events surrounding Cazan’s death, he identified a message related to his younger sister who suffered from serious seizures and was on medication. Defendant awoke one morning to inform her that he had received a message from God that she should cease taking the medication. He described the communication as follows: “His Spirit ministered to me and that I received like — a talk from Him, yes. Not, per se, did I hear His — His voice, specifically.” He explained, “I was happy that God was talking to me. I mean, I was happy about that. You know, I felt like He used me, so if He used me, there was something about me that He obviously was pleased with.”
[3] In fact, as a result of the incident involving Shakia’s friend, defendant’s family started to pursue eviction proceedings against him.
[4] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 13
[5] As explained by Dr. Santina, a hallucination occurs when the mentally ill person hears a voice or sees visions. A person experiencing delusions does not necessarily experience hallucinations, but rather he or she will come to know God is speaking to them “within themselves” and then act accordingly; thus, a delusional person may believe he or she is receiving commands from God without hearing a voice or seeing a vision.
[6] The panel granted relief on this basis alone. Although defendant had other points of error, which the State contested, the panel did not address them in light of its holding on the jury-charge issue.
[7] M’Naghten’s Case, 8 Eng. Rep. 718 (H.L. 1843).
[8] Like the situation in the cases cited by the dissent, see post at ___ (slip op. at 10), defendant was not denied the opportunity to assert an insanity defense, and the jury received the model jury charge on the defense, see People v. Coddington, 2 P.3d 1081, 1139-40 (Cal. 2000), overruled in part on other grounds, Price v. Superior Court, 25 P.3d 618, 633 n.13 (Cal. 2001); State v. Blair, 732 A.2d 448, 450 (N.H. 1999); State v. Lafferty, 20 P.3d 342, 363 (Utah 2001). Our dissenting colleagues’ observation that “deific commands come in many forms and that courts do not reject the defense based on the manner in which the instruction has been purportedly received or revealed” misses that essential point when seemingly asserting that those cases undermine what occurred in this matter. Post at ___ (slip op. at 10). Defendant’s insanity defense was not “rejected” by the trial court.
[9] In one of the few jurisdictions to have addressed such circumstances, Washington state courts similarly have hewed to a path in respect of deific commands, requiring a substantial showing that a defendant’s will has been “subsumed.” Crenshaw, supra, 659 P.2d at 494-95 (requiring that will be subsumed in order for specialized instruction to be utilized). See, e.g., State v. Rice, 757 P.2d 889, 904 (Wash. 1988) (adhering to strident test that authorizes jury instruction on legal-moral dichotomy only when defendant presents evidence that “his free will has been subsumed by his belief in the deific decree”), cert. denied, 491 U.S. 910, 109 S. Ct. 3200, 105 L. Ed. 2d 707 (1989).
[10] It is insufficient that defendant can point to isolated references he made to hearing a voice, or “hearing” God speaking to him through his scripture study or in his dreams. The Appellate Division’s citation to such examples, here and there, in the record do not comprise the quality or quantity of evidence that was contemplated by our earlier decisions. See Singleton, supra, 418 N.J. Super. at 197-99.
[11] Winder signaled a restrictive application of a deific-command variation to the model charge on criminal insanity, to the extent it would ever be allowed. The Appellate Division’s interpretation of Winder, as well as the dissent’s, instead expands it and would send even more arguable cases than this one to the jury.
[12] The defense expert testified to the following: “And [defendant] said to me that now in retrospect looking at it, he felt that God, that Satan had actually tricked him into thinking that it was God. And that God was actually trying to stop him but that he was tricked by Satan.”
7.2.8.5.2.2.4. Model Penal Code sec. 4.01
7.2.8.5.2.2.5 18 U.S.C.A. § 17. Federal Insanity defense 7.2.8.5.2.2.5 18 U.S.C.A. § 17. Federal Insanity defense
18 U.S.C.A. § 17. Insanity defense
(a) Affirmative defense.--It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of proof.--The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
7.2.8.5.2.2.6 Galloway v. State 7.2.8.5.2.2.6 Galloway v. State
Gregory L. GALLOWAY, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
Supreme Court of Indiana.
[703] Stacy R. Uliana, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Stephen Creason, Angela N. Sanchez, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
On Petition to Transfer from the Indiana Court of Appeals, No. 33A01-0906-CR-280
SULLIVAN, Justice.
Despite nonconflicting expert and lay opinion testimony that defendant Gregory Galloway was insane, the trial court rejected the insanity defense after concluding that the defendant could continue to be a danger to society because of an inadequate State mental health system. This was insufficient to sustain the trial court's finding because there was no probative evidence from which an inference of sanity could be drawn.
Background
The defendant, Gregory Galloway, was found guilty but mentally ill for the October, 2007, murder[1] of his grandmother, Eva B. Groves. The defendant raised the "insanity defense"[2] at his bench trial. The trial court found that although the defendant had a long history of mental illness, he did not meet his burden of proving that he was "insane" at the time of the crime.
The trial court concluded, based on the expert testimony and the numerous medical records introduced into evidence, that the defendant suffers from bipolar disorder, an Axis I psychiatric disorder.[3] This evidence showed that prior to his killing [704] his grandmother, the defendant had had a long history of mental illness, and he had had many "contacts" with the mental health system.[4] He had been diagnosed with bipolar disorder by up to twenty different physicians, often with accompanying psychotic and manic symptoms. He had also been voluntarily and involuntarily detained or committed for short-term treatment more than fifteen times.
The defendant was first diagnosed with an Axis I mental illness in 1989, when he was a senior in high school. By 2000, his mental health became more problematic; he had difficulty holding a steady job, he struggled with substance abuse,[5] and his marriage failed. Despite these difficulties, he had very few encounters with law enforcement that were not traffic or mental illness related. After his divorce, the defendant moved in with his grandmother, who lived next door to his parents. He had a great relationship with his grandmother; "he loved [her] very much and considered [her to be] his best friend." Appellant's Br. 3; see also Appellant's App. 183; Tr. 40-41, 83-84, 175.
Since 2001, the defendant experienced psychotic episodes with increased frequency and severity. See Galloway v. State, 920 N.E.2d 711, 713-14 (Ind.Ct.App.2010) (chronicling the defendant's psychotic episodes). For instance, in February, 2002, he was involuntarily committed after his parents found him with a gun and looking for ammunition — he planned to kill his grandmother because she was the devil and he was Jesus Christ, and he planned to kill his neighbor because he believed his neighbor was controlling his son. Then in June, 2004, the defendant drove to Dayton, Ohio, after God told him to leave his job; he was hospitalized in Ohio after being found in a stranger's driveway looking for the perfect wife for the son of God. In July, 2005, the defendant was admitted to a hospital after crashing his car during a car chase with his mother; he believed she was the devil and was chasing her so that he could kill her, and he believed he was protected because he was an alien.
In the year leading up to the murder, the defendant had at least twelve contacts with the mental health system. In January, 2007, he pulled over on the side of the interstate near Lafayette, Indiana, got out of his car, and began erratically yelling and talking to himself. Because the air temperature was 27 degrees, concerned bystanders called the police. When the medics arrived, he was sitting in the back of a police car; his skin was cold to the touch, and there were ice particles in the facial hair under his nose. At the emergency room, the defendant was uncooperative, mumbling to himself, acting aggressively toward staff, and reacting to audio and visual hallucinations; he was admitted to a Lafayette hospital for a few days.
In March, 2007, after refusing to eat or sleep for one week because he was fearful of something bad happening to him, the defendant lacerated his stomach while trying [705] to get into his grandmother's house through a window after he was accidentally locked out. At the emergency room, he was attending to internal stimuli, having difficulty concentrating, and experiencing auditory hallucinations and paranoid delusions. He was transferred to an Anderson hospital, where he was confused and disoriented, detached from reality, and in a catatonic-like state; he was discharged after a few days. Several days later, the defendant was involuntarily committed after the court found him to be a danger to himself because he did not know who or where he was, he had been staying awake all night, he had been trying to sleep with his parents in their bed because he believed someone was in his room, and he was hearing voices; again, he was released after a few days.
In June, 2007, the defendant was admitted to a hospital in Tennessee after police found him driving a semi-truck full of gasoline, threatening to blow up a gas station; he was confused and disoriented, responding to internal stimuli and laughing inappropriately, experiencing racing thoughts and auditory hallucinations, and had not slept for three days. He was discharged from the Tennessee hospital within days. A few days later, he went to counseling where he was delusional about raping a girl (there was no evidence that any rape had occurred). He did not take medications prescribed for him in Tennessee.
In the days leading up to the murder, the defendant heard voices and thought that his grandmother's trailer was haunted. To abate his fears, he slept on the floor next to his parents' bed while holding his mother's hand. The night before the murder, he drank a pint of whiskey, finishing around 3:00 or 4:00 a.m., and did not sleep.
The defendant reported feeling strange on October, 26, 2007, the morning of the murder. He was supposed to pick up his friend from work, but he refused to do so because he was feeling strange. When the friend called to ask about the ride, the defendant uncharacteristically yelled at him. The defendant also spoke with his father that morning, and during their conversation, his father became concerned because his son was not acting normal and seemed to be in another world. The defendant told the police that during this conversation, his father was telling him through coded verbal messages that he needed to kill his grandmother.
During the early afternoon, the defendant went shopping with his grandmother and his aunt (the victim's daughter). They shopped for only fifteen minutes and then went to lunch, though the defendant did not eat much. While eating lunch, the defendant began thinking that his grandmother was against him and "that life should be more colorful" and that it would be if she were gone-life would be better again once he killed his grandmother. Appellant's App. 194. He believed that she was the devil, that she was out to get him, and that he needed to kill her to restore his powers. As they sat there eating, he was hoping that his grandmother would die. After lunch, they stopped at a gas station, where the defendant pumped their gas and purchased cigarettes. They returned home a little more than an hour after they had originally left; there had been no arguments, and nothing unusual had occurred during their outing. On the way home, the defendant's grandmother remarked that it had been a wonderful day.
Once they arrived home, the defendant went next door to his parents' house while his grandmother and aunt sat on a couch inside the grandmother's trailer and talked. While at his parents' house, the defendant began believing that he was [706] reading his father's mind; his father was communicating telepathically, telling the defendant that he needed to kill his grandmother "to feel good again[,] to see like the bright lights and the flowers and the pretty things." Appellant's App. 194.
The defendant then went back to his grandmother's house and sat on the porch swing. Shortly thereafter, the defendant's fifteen-year-old son, Cory, arrived and said "hi" to his dad. Cory had seen his father cycle from normal to psychotic before and could tell that something was not quite right. At the same time, the defendant's father, who had come over from next door, was entering the grandmother's house.
The defendant entered the house at the same time as his father and went to his bedroom, grabbed his knife, and came back down the hallway to the living room, where his aunt and grandmother were sitting on a couch. According to his aunt, the defendant had a "wild look" in his eye that she had seen before — it was the look he gets right before he "lose[s] it." Tr. 60. With his father, son, and aunt in the room, and with no plan or motive, the defendant jumped on top of his grandmother, straddled her, and stabbed her in the chest while yelling "you're going to die, I told you, you're the devil." Tr. 50, 74-75. His father yelled, "What have you done!," and the defendant responded that she "was going to kill me." Tr. 86.
As soon as everyone started screaming, the defendant realized that he did not feel better like he thought he would, and he hoped that his grandmother would survive. His father was able to commandeer the knife and store it in a safe place until the police arrived. As the defendant's son applied pressure to the wound, the defendant told his grandmother that he loved her and that he did not mean to do it. He pleaded for the paramedics to save his grandmother's life. When the police arrived, he told them that he loved his grandmother and would not hurt her. When the police were getting ready to take him to the police station, he did not understand what was happening and asked where he was going. But he was cooperative during the police interrogation, which occurred two-and-a-half hours later.
Prior to trial, the defendant was examined by three experts: Dr. Parker, a psychiatrist engaged by the defense; Dr. Coons, a court-appointed psychiatrist; and Dr. Davidson, a court-appointed psychologist. All three experts agreed that he suffers from a mental illness, suffers paranoid delusions (a symptom of severe psychosis), and has suffered from intermittent psychosis since 1999. Dr. Parker and Dr. Coons both testified (and submitted in their preliminary reports) that the defendant was legally insane at the time of the murder. They both opined that he was jolted out of his delusion when he realized that he did not feel better and had just harmed someone he loved. The psychologist, Dr. Davidson, submitted a preliminary opinion to the court that the defendant was sane at the time of the murder. The basis for his opinion was that it was unlikely the defendant would have been insane only for the few moments that it took for him to grab the knife and stab his grandmother. But while testifying, Dr. Davidson withdrew his opinion in light of additional facts that he did not have when he submitted his preliminary opinion. Among other things, Dr. Davidson was unaware that the defendant had been experiencing delusions and responding to internal stimuli in the days leading up to the murder and on the day of the murder. Dr. Davidson also was unaware that eyewitnesses heard the defendant call his grandmother the devil as he stabbed her. After being presented with all of the facts while on the witness stand, Dr. Davidson [707] ultimately testified that he could not give an opinion on the matter.
After the close of trial, but before a verdict was rendered, the defendant stopped taking his medication and deteriorated to the point where he was found incompetent to stand trial. He regained competence after treatment at a state mental hospital.
On May 4, 2009, the trial court found the defendant guilty but mentally ill for murdering his grandmother, rejecting the insanity defense. Finding that none of the experts or lay witnesses testified that the defendant was sane, the trial court based its conclusion on demeanor evidence. Specifically, the court found that the defendant and his grandmother had interacted with each other and other people on the day of the murder, he had committed the offense in front of several family members and made no effort to conceal his crime, he had not attempted to evade police, and he had cooperated with law enforcement. Additionally, the defendant had been alert and oriented throughout the trial proceedings and had been able to assist counsel. The court also found that the defendant's "psychotic episodes increased in duration and frequency" and that he "lacks insight into the need for his prescribed medication." Appellant's App. 255. The court then found that the defendant had "repeatedly discontinued medication because of side effect complaints and would self medicate" by abusing alcohol and illicit drugs. Id. Furthermore, there was "no evidence that this pattern of conduct [would] not continue if the Defendant [were] hospitalized and released, posing a danger to himself and others in the community." Id. The court concluded that the defendant "is in need of long term stabilizing treatment in a secure facility." Id.
During the sentencing hearing, on June 2, 2009, the trial court indicated that the preferred route would be to commit the defendant to a mental health facility for the rest of his life but concluded that route was not an option.
There is absolutely no evidence that this mental illness is [feigned], or malingered, or not accurate and there is no dispute as to that. But quite frankly, this is a tragedy that's ripped apart a family and there is very little this Court can do to remedy that. This case is as much a trial of our mental health system as it is of a man. For 20 years, Mr. Galloway's family has sought long-standing permanent treatment for Mr. Galloway, and the fact that there may not be the funds available to pay for the mentally ill in the State of Indiana does not mean that we don't have mentally ill people in the State of Indiana. . . . [T]his is difficult for everyone[,] and I can pick apart about 20 mental health records that were submitted to this Court where I would have begged a mental health provider to keep Mr. Galloway long term in a civil commitment, but they have not. Mr. Galloway is able to take his medication when forced to do so in a very structured setting, but we have a 20-year history which shows when he is not in that setting that he will not take his medication, that he will continue to have episodes[,] and most concerning for this Court is that he will endanger others and himself. One of my options is not to say that he's committed for the rest of his life in a mental health institution. That would have been easy, but that's not one of my choices. . . . I cannot in good conscience allow someone with the severe mental health illness to return to the community[,] and that is what has made this case so very difficult.
[708] Tr. 389-91. After considering the aggravating and mitigating factors under Weeks v. State, 697 N.E.2d 28, 30 (Ind.1998), the court sentenced the defendant to 50 years imprisonment.
The Court of Appeals affirmed the defendant's conviction, holding that this Court's decision in Thompson v. State, 804 N.E.2d 1146 (Ind.2004), compelled such a result. Galloway, 920 N.E.2d at 720. The Court of Appeals interpreted Thompson as holding that where a defendant appeals claiming that his insanity defense should have prevailed, the conviction must be affirmed "if there is any evidence whatsoever supporting the verdict, no matter how slight." Id.
The defendant sought, and we granted, transfer, Galloway v. State, 929 N.E.2d 790 (Ind.2010) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).
Discussion
I
To sustain a conviction, the State must prove each element of the charged offense beyond a reasonable doubt. See I.C. § 35-41-4-1(a); see also In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Even where the State meets this burden, a defendant in Indiana can avoid criminal responsibility by successfully raising and establishing the "insanity defense."[6] See I.C. § 35-41-3-6(a). A successful insanity defense results in the defendant being found not responsible by reason of insanity ("NRI"). See I.C. §§ 35-36-2-3, -4.
The defendant bears the burden of establishing the insanity defense by a preponderance of the evidence.[7] I.C. § 35-41-4-1(b). To meet this burden, the defendant must establish both (1) that he or she suffers from a mental illness and (2) that the mental illness rendered him or her unable to appreciate the wrongfulness of his or her conduct at the time of the offense.[8] See I.C. § 35-41-3-6(a). Thus, mental illness alone is not sufficient to relieve criminal responsibility. See Weeks v. State, 697 N.E.2d 28, 29 (Ind.1998). Rather, a defendant who is mentally ill but fails to establish that he or she was unable to appreciate the wrongfulness of his or her conduct may be found guilty but mentally ill ("GBMI").[9] See, e.g., Taylor v. State, 440 N.E.2d 1109, 1112 (Ind.1982).
[709] Whether a defendant appreciated the wrongfulness of his or her conduct at the time of the offense is a question for the trier of fact. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004). Indiana Code section 35-36-2-2 provides for the use of expert testimony to assist the trier of fact in determining the defendant's insanity.[10] Such expert testimony, however, is merely advisory, and even unanimous expert testimony is not conclusive on the issue of sanity. Cate v. State, 644 N.E.2d 546, 547 (Ind.1994). The trier of fact is free to disregard the unanimous testimony of experts and rely on conflicting testimony by lay witnesses. Barany v. State, 658 N.E.2d 60, 63 (Ind.1995). And even if there is no conflicting lay testimony, the trier of fact is free to disregard or discredit the expert testimony. Thompson, 804 N.E.2d at 1149.
Because it is the trier of fact's province to weigh the evidence and assess witness credibility, a finding that a defendant was not insane at the time of the offense warrants substantial deference from reviewing courts. See Barany, 658 N.E.2d at 63. A defendant claiming the insanity defense should have prevailed at trial faces a heavy burden because he or she "is in the position of one appealing from a negative judgment." Thompson, 804 N.E.2d at 1149. A court on review will not reweigh evidence, reassess witness credibility, or disturb reasonable inferences made by the trier of fact (even though "more reasonable" inferences could have been made). Id. at 1149-50.
Although this standard of review is deferential, it is not impossible, nor can it be. The Indiana Constitution guarantees "in all cases an absolute right to one appeal." Ind. Const. art. VII, § 6. An impossible standard of review under which appellate courts merely "rubber stamp" the fact finder's determinations, no matter how unreasonable, would raise serious constitutional concerns because it would make the right to an appeal illusory. Cf. Serino v. State, 798 N.E.2d 852, 856 (Ind.2003) (standard of review for sentencing claims so high that it risked impinging upon the [710] constitutional right to appeal). As such, this Court has long held that where the defendant claims the insanity defense should have prevailed, the conviction will be set aside "when the evidence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed." Thompson, 804 N.E.2d at 1149 (emphasis added); see also Barany, 658 N.E.2d at 63-64 (citation omitted).
II
We have on several occasions addressed a defendant's claim that his or her insanity defense should have prevailed at trial because of nonconflicting expert testimony that the defendant was insane at the time of the crime. Each time we have upheld the conviction(s) because the evidence as to the defendant's insanity was in conflict and thus sufficient to sustain the trier of fact's determination of sanity. See, e.g., Thompson, 804 N.E.2d 1146; Gambill v. State, 675 N.E.2d 668 (Ind.1996); Barany, 658 N.E.2d 60; Cate, 644 N.E.2d 546; Rogers v. State, 514 N.E.2d 1259 (Ind. 1987); Green v. State, 469 N.E.2d 1169 (Ind.1984). That is, in each of the cases where there has been nonconflicting expert opinion testimony that a defendant was insane, there has been other sufficient probative evidence from which a conflicting inference of sanity reasonably could be drawn. See Thompson, 804 N.E.2d at 1152 (Sullivan, J., concurring).
A
The strongest showing of an evidentiary conflict occurs where the experts disagree as to whether the defendant was insane at the time of the offense. Our cases have consistently held that conflicting credible expert testimony is sufficiently probative of sanity. See, e.g., Robinette v. State, 741 N.E.2d 1162, 1167 (Ind.2001); Weeks, 697 N.E.2d at 29; Metzler v. State, 540 N.E.2d 606, 610 (Ind.1989); Smith v. State, 502 N.E.2d 485, 490 (Ind.1987); Reed v. State, 479 N.E.2d 1248, 1253 (Ind.1985). Such a conflict arises where one or several experts opine that the defendant was insane at the time of the offense, while one or several other experts opine that the defendant was sane at the time of the offense.
A-1
A conflict does not exist, however, where one or several experts testify that the defendant was insane at the time of the offense and another expert testifies that he or she is unable to give an opinion as to the defendant's sanity at the time of the offense.
In Green, three of four experts testified that the defendant was insane at the time of the crime. 469 N.E.2d at 1172. The fourth expert testified that the defendant met only one of the requirements of insanity under then-applicable law, but he could not form an opinion as to the second. Id. Even though there was no actual conflict in the expert testimony, we affirmed the conviction because the "other evidence" presented to the jury was sufficient to support its finding that the defendant was sane at the time of the crime.[11] Id. Similarly, in Rogers, the court-appointed expert [711] testified that the defendant was insane at the time of the crime, while the defendant's expert testified that he could not render an opinion on the matter. 514 N.E.2d at 1261. Although there was no actual conflict in the experts' testimony, this Court once again affirmed the conviction based on the conflict presented by the lay testimony. Id. The Court cited Green for the proposition that a jury may reject expert testimony of insanity and rely upon lay testimony that the defendant was sane at the time of the crime. Id. Like Green, the conflicting evidence that provided sufficient grounds for the jury's finding of sanity was based on a conflict between lay testimony and expert testimony, not a conflict between experts.[12] Id.
Moreover, as a matter of law, a person is either sane or insane at the time of the crime; there is no intermediate ground. Marley v. State, 747 N.E.2d 1123, 1128 (Ind.2001) (quoting Cowell v. State, 263 Ind. 344, 331 N.E.2d 21, 24 (1975) (providing that "complete mental incapacity must be demonstrated before criminal responsibility can be relieved")). The trier of fact therefore has one of only two options with regard to insanity. And its decision must be based on probative evidence, which means "[e]vidence that tends to prove or disprove a point in issue." Black's Law Dictionary 639 (9th ed.2009). An expert witness who is called to testify as to his or her opinion, in an effort to aid the trier of fact, and who testifies that he or she has no opinion does not provide probative evidence.
A-2
The expert testimony in this case did not conflict. Although Dr. Davidson submitted a preliminary report opining that the defendant was sane at the time of the murder, he recanted that opinion under cross-examination in light of learning critical facts. The State contends that Dr. Davidson's equivocation illustrates that the expert testimony was in conflict. We disagree.
First, the State's argument is not consistent with our prior cases. Both Green and Rogers involved an expert who was unable to form an opinion as to the defendant's sanity. We affirmed the convictions in both cases only because there was conflicting lay evidence. Under the State's view that no opinion represents a conflicting opinion, both Green and Rogers could have been affirmed without a discussion of the lay evidence, given our consistent holdings as to the value and sufficiency of conflicting expert testimony.
Second, the trial court's findings preclude the possibility of a true conflict in the expert testimony because it did not give any weight to the expert testimony in this case. Rather, the trial court focused its analysis on demeanor evidence to support its finding that the defendant was guilty but mentally ill. It mentions the experts only once, as a preface to its finding that the defendant meets the definition of "mentally ill," and merely states that "[e]ach of the examining doctors . . . were divided on the issue of insanity." Appellant's App. 258. Given the consistent holdings of this Court with respect to the strength of conflicting expert testimony in sustaining a finding of sanity, and given the trial court's analysis in this case, the trial court clearly did not make a finding that the expert testimony was in conflict. Thus, the experts' testimony about the defendant's [712] insanity at the time of the crime did not conflict.
B
Where there is no conflict among the expert opinions that the defendant was insane at the time of the offense, there must be other evidence of probative value from which a conflicting inference of sanity can be drawn. See Thompson, 804 N.E.2d at 1152 (Sullivan, J., concurring). Such probative evidence is usually in the form of lay opinion testimony that conflicts with the experts or demeanor evidence that, when considered in light of the other evidence, permits a reasonable inference of sanity to be drawn.
B-1
In many cases, there will be lay opinion testimony that the defendant was sane at the time of the crime. Credible and informed lay opinion testimony as to the defendant's mental state at the time of the crime may be sufficiently probative to support a trier of fact's determination of sanity, even where there is unanimous expert testimony to the contrary. See, e.g., Barany, 658 N.E.2d at 64; Green, 469 N.E.2d at 1172. Lay witnesses who are familiar with and observe the defendant at or around the time of the crime reasonably may be able to give a more accurate account of the defendant's mental state at the time of the crime than experts who examine the defendant months later. See Thompson, 804 N.E.2d at 1149.
For instance, in Gambill, we affirmed the conviction of a mother convicted of murdering her son because there was lay opinion testimony that conflicted with the unanimous expert testimony. 675 N.E.2d 668. One of the officers who spent time with the defendant at the hospital in the immediate aftermath of her arrest had attended high school with the defendant, and based on his familiarity with her and his observations of her on the day of the murder, he testified that, in his lay opinion, she was able to appreciate the wrongfulness of her conduct at the time of the crime. Id. at 672; see also Green, 469 N.E.2d at 1172. A jail-house informant with whom the defendant discussed the murder also testified that she believed the defendant was able to appreciate the wrongfulness of her conduct at the time of the murder. Gambill, 675 N.E.2d at 671-72. Additionally, the defendant made several self-serving exculpatory statements during the immediate aftermath of the murder — namely, she did not tell medical personnel of her heavy drug use that day, and she told a motorist who gave her a ride that she had been raped and that her former boyfriend had hurt her son. Id. at 672-73.
B-2
Even where there is no conflict among the experts and the lay witnesses, a finding that a defendant was sane at the time of the crime still may be sustained by probative demeanor evidence from which a conflicting inference of sanity may be drawn. See Thompson, 804 N.E.2d at 1149. We have recognized the importance of demeanor evidence in insanity cases. Demeanor is useful because a defendant's "behavior before, during, and after a crime may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later." Id. (citing Barany, 658 N.E.2d at 64).
Demeanor evidence may be most useful where there is some indication that the defendant is feigning mental illness and insanity. E.g., Thompson, 804 N.E.2d 1146; Cate, 644 N.E.2d 546. In Thompson, we affirmed the defendant's conviction for residential entry because there was sufficient evidence of probative value to [713] sustain the trial court's finding that the defendant was not insane at the time of the crime. 804 N.E.2d at 1150. For instance, the defendant removed only her possessions once she entered the victim's residence, which reasonably suggested that she was aware that it was wrong to take things that did not belong to her. Id. at 1148. Moreover, as she fled from the scene of the crime, she was stopped momentarily by police but allowed to leave, which reasonably suggested that she was sufficiently lucid to continue about her business. Id. Thompson had also recently been discharged from the hospital with "no active psychotic symptoms . . . and was calm and pleasant without agitation." Id. at 1150. Finally, Thompson had a history of lying and "avoiding criminal responsibility through her illness." Id. Based on all of the probative evidence, the trial judge concluded that Thompson "knew her actions were wrong but was using her illness to manipulate the system." Id.; see also Cate, 644 N.E.2d at 547-48 (affirming the defendant's conviction because of inconsistencies in his story, which suggested feigning, and because there was probative demeanor evidence of defendant's lucidity upon arrest).
To be sure, demeanor evidence may be appropriate in cases where there is no evidence of feigning. For instance, the defendant in Barany was found by all three experts to have been legally insane at the time of the crime, but we affirmed his murder conviction because there was conflicting evidence of sanity given by lay witnesses. 658 N.E.2d at 64. Specifically, an investigating police detective testified that the defendant "talked about the victim's complaints and nagging" only a few hours after the crime. Id. Additionally, one of the defendant's friends testified that although the defendant engaged in unusual topics of conversation, he "seemed O.K." Id. Finally, the defendant told his sister that he believed the victim was calling the police when he killed her. Id. We concluded that "[t]he jury could have decided that this testimony about [the defendant's] behavior was more indicative of his actual mental health at the time of the killing than medical examinations conducted four weeks after the arrest." Id.
Although demeanor evidence often is useful, there are limits to its probative value. First, demeanor evidence is of more limited value when the defendant has a long history of mental illness with psychosis. As the Court of Appeals previously explained:
While the jury is the ultimate finder of fact, we fail to see how evidence of a defendant's demeanor before and after a crime can have much probative value when a schizophrenic defendant is involved.. ..
. . . .The proposition that a jury may infer that a person's actions before and after a crime are "indicative of his actual mental health at the time of the" crime is logical when dealing with a defendant who is not prone to delusional or hallucinogenic episodes. However, when a defendant has a serious and well-documented mental disorder, such as schizophrenia, one that causes him to see, hear, and believe realities that do not exist, such logic collapses. . . .
Moler v. State, 782 N.E.2d 454, 458-59 (Ind.Ct.App.2003), trans. denied, 792 N.E.2d 43 (Ind.2003) (table). Demeanor evidence requires the trier of fact to infer what the defendant was thinking based on his or her conduct. The trier of fact uses its common knowledge of what is normal and what is abnormal to make these inferences. But insanity is not limited to the stereotypical view of a "raging lunatic" — a [714] person experiencing a psychotic delusion may appear normal to passersby.
Second, Indiana's insanity test is a purely cognitive test — it asks only what the defendant was thinking and whether he or she could appreciate the wrongfulness of his or her conduct. At one time, Indiana included, as a second basis for insanity, whether a defendant had the capacity to conform his or her conduct to the law — i.e., the irresistible impulse test. Green, 469 N.E.2d at 1171 (citing Ind.Code § 35-41-3-6(a) (Burns 1979)). This volitional component was removed from the statute in 1984. See Act of Feb. 24, 1984, No. 184, § 1, 1984 Ind. Acts 1501, 1501. Demeanor evidence thus had more probative value to negate a defense of insane conduct because of the volitional component of the insanity test. See, e.g., Taylor, 440 N.E.2d 1109.
Finally, demeanor evidence before and after a crime is of more limited value than the defendant's demeanor during the crime. The insanity defense concerns the defendant's mental state at the time of the crime. As such, Indiana law recognizes the defense of "temporary insanity." Gambill, 675 N.E.2d at 674-75; Flowers v. State, 236 Ind. 151, 139 N.E.2d 185, 196 (1956). The law thus allows for the possibility that a defendant will be legally insane at the time of the crime, but compos mentis immediately before and immediately after the crime. Therefore, a defendant's demeanor before and after a crime may be even less indicative of the defendant's mental state during the crime than demeanor evidence normally is.
Thus, as a general rule, demeanor evidence must be considered as a whole, in relation to all the other evidence. To allow otherwise would give carte blanche to the trier of fact and make appellate review virtually impossible. For instance, in Thompson and Gambill, the trial courts found that the defendant's flight from police was probative of sanity. But in Lyon v. State, the fact that the defendant did not flee but rather waited for police in the next room was probative of sanity. 608 N.E.2d 1368, 1369-70 (Ind.1993). If a piece of demeanor evidence standing alone is considered probative, evidence of the defendant's actions after the crime could be used as the sole basis for a finding of sanity, whether the defendant cooperated with police or not.
C
In this case, there was not sufficient evidence of probative value from which an inference of sanity could be drawn sufficient to create a conflict with the (nonconflicting) expert testimony that the defendant was insane at the time of the offense. First, there was no lay opinion testimony given that conflicted with the experts' opinions that the defendant was insane at the time of the stabbing. The three eyewitnesses to the stabbing called by the State testified that the defendant was showing familiar signs of "losing it." The defendant's aunt, who was sitting on the couch as her mother was stabbed only a few feet away, testified that the defendant had a "wild look" in his eye and that she recognized this as the look he gets right before he loses it. She also heard the defendant call his beloved grandmother the devil as he stabbed her. Two other witnesses — the defendant's mother and the defendant's friend — also testified that the defendant was showing signs of losing it in the days and hours leading up to the murder. Thus, unlike Thompson, where there was no lay opinion evidence on the issue of insanity, there were five lay witnesses in this case whose testimony supports the experts' opinions.
Second, there was not sufficient demeanor evidence of probative value from which [715] an inference of sanity could be drawn. The trial court based its findings on very little evidence. It found as probative of sanity the fact that, over the course of an hour, the defendant shopped, ate, and filled a car with gasoline without incident. It also found as probative the fact that the defendant cooperated with police after the fact. Viewed in isolation, each of these events may indeed represent the normal events of daily life. However, when viewed against the defendant's long history of mental illness with psychotic episodes, the defendant's demeanor during the crime, as testified to by three eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor evidence is simply neutral and not probative of sanity.
Additionally, we are unable to agree with the trial court's conclusions that certain facts were probative of sanity. Two investigating officers testified that there was absolutely no evidence of a plan or motive. In light of this, the trial court found as probative of sanity the fact that the defendant, without any warning, stabbed his grandmother, his best friend with whom he had lived for seven years, in front of three family members while calling her the devil. We see nothing connecting the absence of plan or motive and the defendant acting without warning as he did as probative of sanity.
The trial court also found as probative of sanity the fact that the defendant deteriorated during trial to the point that he was deemed legally incompetent and was committed to a state hospital to regain competence. We do not find the defendant's deteriorating to incompetence to stand trial to be probative of his sanity at the time of the offense.
The trial court expressly found that the defendant deteriorates mentally and experiences psychosis when he does not take his medication. At the time of the stabbing, the defendant was supposed to be taking his medications twice a day. He told police, however, that he had not taken any prescription medication in two days. The trial court found this failure to take medication to be probative of sanity, but we do not, especially in light of the trial court's finding that the defendant became psychotic when not on his medication.
The trial court also relied on the defendant's demeanor during trial, when he was competent to stand trial, as probative of his sanity at the time of the crime. As discussed at length supra, a defendant's demeanor during court proceedings is certainly probative of sanity with regard to his or her competence to stand trial. See Manuel v. State, 535 N.E.2d 1159, 1162 (Ind.1989) (per curiam). But the probative value of a defendant's courtroom demeanor during trial as to his or her mental state at the time of the crime is doubtful. The justification for considering a defendant's demeanor before and after the crime is that conduct occurring in temporal proximity to the crime "may be more indicative of actual mental health at [the] time of the crime than mental exams conducted weeks or months later." Thompson, 804 N.E.2d at 1149. Trial proceedings, however, often occur many months or even years after the crime. In this case, the two-day bench trial occurred nearly a year after the murder. Thus, we do not find the fact that the defendant "was alert and oriented throughout the proceedings and assisted his counsel and the investigator" to be probative of his sanity at the time of the crime.
Finally, unlike Thompson and Cate, where there were suggestions of feigning or malingering, there is no evidence or suggestion that the defendant here feigned [716] his mental illness. The trial court expressly found as much with regard to defendant's long history of mental illness.
III
Because the insanity defense relieves a defendant of criminal responsibility, even where it is established beyond a reasonable doubt that he or she committed the criminal act, there is an inherent risk of abuse. We are mindful of these risks, which is why substantial deference is given to the trier of fact's finding of sanity. The trier of fact is in the best position to judge the credibility of the witnesses and to observe the defendant over a period of time. Accordingly, whether a defendant is malingering or feigning mental illness or insanity is clearly an appropriate consideration for the trier of fact. See Part II.B, supra.
It was not appropriate, however, for the trier of fact to consider the condition of our State's mental health system. Although raising the insanity defense opens the door to examining the defendant's entire life and allows in evidence that might otherwise be inadmissible under our rules of evidence, see Garner v. State, 704 N.E.2d 1011, 1014 (Ind.1998), what may or may not happen to the defendant in the future cannot be considered. The trier of fact must make its determination as to whether the defendant was insane at the time of the offense using only evidence and considerations that are relevant[13] to the defendant's mental state at the time of the offense.
The insanity defense may not be a constitutional mandate, see Clark v. Arizona, 548 U.S. 735, 748-49, 126 S.Ct. 2709, 165 L.Ed.2d 842 (2006), but it dates back to the twelfth century, see Francis Bowes Sayre, Mens Rea, 45 Harv. L.Rev. 974 (1932). Prior to the twelfth century, criminal law was based on principles of strict liability — the only inquiry was whether the criminal defendant committed the criminal act. See Sayre, supra, at 977. Toward the end of the twelfth century, the influences of ancient Roman law and canon law began to call into question the morality of punishing someone for a criminal act committed without criminal intent. See id. at 982-84. Insanity, like self-defense, thus became a basis for a royal pardon wherein the insane defendant was convicted of the charged offense but pardoned by the King. See id. at 1004-05.
Over the centuries, insanity became a defense to criminal responsibility. See, e.g., 4 William Blackstone, Commentaries on the Laws of England 24-25 (1769). Arguably the most clear and influential statement of the insanity defense came from the House of Lords in M'Naghten's Case, (1843) 8 Eng. Rep. 718 (H.L.). It was there held that the common law test for insanity had been and was "whether the accused at the time of doing the act knew the difference between right and wrong." Id. at 722. That is, a defendant was not criminally responsible if, at the time of the offense, he was unable to appreciate the wrongfulness of his conduct.
The insanity defense has undergone many changes since the mid-nineteenth century. One of the most significant was the development of the irresistible impulse test, which recognized volitional impairment as a basis for the insanity defense, and the subsequent expansion of both the cognitive and volitional tests embodied in the Model Penal Code. See Christopher Slobogin, An End to Insanity: Recasting [717] the Role of Mental Disability in Criminal Cases, 86 Va. L.Rev. 1199, 1211-12 (2000). Although many states, including Indiana, adopted some variation of the broader insanity defense during the 1960s and 1970s, most states repealed the volitional test after John Hinckley was found not guilty by reason of insanity for the attempted assassination of President Ronald Reagan in the early 1980s. See id. at 1214. Since then, many states, like Indiana, have reverted back to the original common law insanity test described in M'Naghten. Id. In fact, several states have abolished the insanity defense completely. See, e.g., Idaho Code Ann. § 18-207 (2004); Kan. Stat. Ann. § 22-3220 (2007); Mont.Code Ann. § 46-14-102 (2009).[14]
The Indiana General Assembly has chosen to return to our common law roots and hold criminally responsible only those defendants who are morally responsible for their actions. Judges must apply that law and find not responsible by reason of insanity those defendants who establish each component of the insanity defense by a preponderance of the evidence. It is not for the judicial branch to decide that a legally insane defendant should be convicted and sentenced to prison because of the condition of the State's mental health system.
The trial court erred in this case by entering a verdict of guilty but mentally ill when the evidence presented reasonably led only to a conclusion that the defendant was legally insane at the time of the offense. Underlying the trial court's decision was not a concern of malingering or feigning but a concern about the State's mental health system and the defendant's need for structure and constant supervision. Among the trial court's findings is that the defendant "lacks in-sight into the need for his prescribed medication" and "is in need of long term stabilizing treatment in a secure facility." The trial court also found that the defendant "repeatedly discontinued medication" and there was "no evidence that this pattern of conduct will not continue if [the defendant] is hospitalized and released, posing a danger to himself and others in the community."
Though made after the verdict, the trial court's statements at sentencing cast light on the rationale underlying the verdict.[15] The trial court confessed at sentencing that it viewed "[t]his case . . . as much a trial of our mental health system as . . . of a man." The court lamented that it could not simply commit the defendant to a mental health institution for the rest of his life — the "easy" decision. What made the court's decision so difficult was that it could not "in good conscience allow someone with . . . severe mental illness to return to the community."
To be sure, the trial court was not unreasonable in finding that the defendant's history of mental illness, his lack of insight into the need for medication, and his track record of mentally deteriorating after stopping his medication creates a high probability that the defendant will be a danger to himself and to others in the community if treated and released. Although such considerations may be relevant and appropriate during a commitment proceeding, [718] they are not relevant or appropriate in determining whether the defendant was legally insane at the time of the offense. Thus, while we sympathize with the difficulty of the trial court's decision, we cannot sustain it.
Conclusion
We reverse the judgment of the trial court.
RUCKER and DAVID, JJ., concur.
SHEPARD, C.J., dissents with separate opinion in which DICKSON, J., joins.
SHEPARD, Chief Justice, dissenting.
Gregory Galloway is someone who went shopping at a going-out-of-business sale in the morning, had some lunch at a local restaurant with his aunt and grandmother, and stopped off at a gas station to buy fuel and cigarettes. Galloway appeared normal all day; "everybody was happy," one of his companions said.
When Galloway arrived home, he stabbed his grandmother to death, and then immediately announced that he regretted what he had done. The finder of fact in this case, Judge Mary Willis, concluded on the basis of the admitted evidence that Galloway was not insane at the time of the crime, that is to say, that he knew killing his grandmother was wrong.
Of course, all of the testimony by psychiatrists and psychologists necessarily came from witnesses who were not present at the scene of the crime. They offered their observations based on records of Galloway's medical history from moments other than the hour of the killing and on direct observations of Galloway that occurred months or even years after the crime. One of these experts, Dr. Glenn Davidson, appointed by the court, concluded that Galloway was not insane at the time of the crime. Eyewitness evidence about how Galloway acted before and after the crime also supported the trial court's decision.
This was one of those cases where the defense argued that the perpetrator was sane right before the crime and sane right after the crime, but insane for the sixty seconds or so it took to commit it. Dr. Davidson's basic view was that it was unlikely that Galloway qualified as insane on the basis of a "very thin slice of disorganized thinking." (Tr. at 228.)
Defense counsel's vigorous cross-examination confronted Dr. Davidson with a host of hypotheticals ("now what if I told you") and asked as to each new proposed fact whether it would affect his diagnosis. It was twenty to thirty pages of the sort of energetic cross-examination tactics to which we lawyers are inured but which often befuddle the uninitiated. It finally left the witness saying, in the face of this onslaught, that he was unsure.
As the majority points out, juries and judicial factfinders are not required to take as completely true all or none of what witnesses say. They are entitled to believe and disbelieve some, all, or none of the testimony of experts and non-experts alike. Indeed, their assignment is to sort out truth from cacophony. It was altogether plausible that Judge Willis could credit Dr. Davidson's opinion that Galloway was sane and treat the doctor's answers under cross as less compelling. She could also, of course, give weight to Galloway's own contemporaneous declaration of regret right after he killed his grandmother.
To be sure, if the right of appeal is to be meaningful, both trial and appellate judges must be open to the possibility of mistake. We set a pretty tough standard for trial judges as to casting aside jury verdicts, for example, saying that they may do only when the jury's verdict is "against the weight of the evidence" or "clearly erroneous." [719] Ind. Trial Rule 59(J). Our rules require that the judge who sets aside a jury verdict explain in detail, if you will, why the judge is better at weighing the evidence than the members of the jury. The appellate standard is roughly the same, and appellate judges regularly declare that we who have not even seen the witnesses or the defendant should be extremely restrained when we contemplate announcing that our assessment of the weight of the evidence is superior to that of juries or judges who have seen both.
It seems straightforward enough that Dr. Davidson's testimony and the defendant's own demeanor at the time of the offense support Judge Willis's judgment. Thus, the appellate standard for reversal has not been met. Thompson v. State, 804 N.E.2d 1146, 1149 (Ind.2004) ("evidence is without conflict and leads only to the conclusion the defendant was insane.")
The majority declares that it is not relevant what may happen as a result of this reversal by appellate judges. Not many of our fellow citizens would not recognize this disclaimer of responsibility as legitimate.
As the majority does acknowledge, there is risk involved when appellate judges second-guess a jury or trial judge and acquit a criminal offender. If Galloway is declared not guilty by this Court, the prosecutor will initiate a civil commitment process to determine whether Galloway should be confined because his mental illness makes him a danger to himself or to others.
The one thing we know for sure about Mr. Galloway is that he is in actual fact a danger to others.
We also know what is likely to occur as a result of this Court setting aside Judge Willis's judgment: sooner or later, probably sooner rather than later, Galloway will be determined safe and turned back into society.
The reason we know that is that the civil commitment process has produced such an outcome over and over again with Mr. Galloway. The majority has recited the long trail of medical treatments and mental commitments. It has not focused much in that recitation on how the exercise of expert medical judgments and the civil commitment processes have combined to turn him back out on the street over and over again.
I count perhaps seventeen identifiable encounters by Galloway. But just to name a few, call it number 5, there was a May 1999 event in which Galloway's wife brought him in because he had been carrying around a gun and threatening to use it on his supervisor at work. This trip produced a prescription for medication and a period of outpatient treatment, then a failure to take his medications and a medical trail gone cold.
During encounter number 7, in April 2001, Galloway was admitted to the hospital because of aggressive and frightening behavior at home. He said he had been receiving messages from the television. This interaction with the system produced several months of monitoring during which Galloway took some of his medicines and not others. And then he was out.
During encounter number 8, Galloway was involuntarily committed because he had threatened to kill his neighbor and his grandmother. He was released from commitment and then admitted again just a month later, in March 2002. He stayed a few months at Richmond State Hospital before being declared safe for release.
In encounter number 13, not long before Galloway killed his grandmother, Galloway came under care after he stopped taking his medicines and began reporting hallucinations [720] and recurring thoughts of suicide. After being stabilized, he was discharged to live with his grandmother, with a result plain and painful for all to see.
I mention this litany—just salient elements in an even longer story—to suggest that some innocent future victim is placed at risk by this Court's decision to second-guess Judge Willis. A society that responds to such violence with tolerance should well expect that it will experience more violence than it would if it finally said, "This is unacceptable." Not knowing what I would say to the next victim, I choose to stand with Judge Willis and affirm the judgment of guilty but mentally ill.
DICKSON, J., joins.
[1] Ind.Code § 35-42-1-1(1) (2008).
[2] I.C. § 35-41-3-6(a).
[3] Axis I disorders are the mental health disorders recognized by the DSM-IV, except for personality disorders and mental retardation (which are both reported on Axis II). See Am. Psychiatric Ass'n, DSM-IV: Diagnostic and Statistical Manual of Mental Disorders 25-26 (4th ed.1994). Thus, a finding that the defendant has an Axis I disorder means that he has a recognized mental illness.
[4] The trial court tabulated the defendant's contacts with the mental health system; he has had at least 40 contacts since 1989, but more than 30 occurred after 2000. See Appellant's App. 251-55.
[5] Substance abuse is highly prevalent among people with mental illness, particularly schizophrenia and bipolar disorder. See generally Peter F. Buckley, Prevalence and Consequences of the Dual Diagnosis of Substance Abuse and Severe Mental Illness, 67 J. Clinical Psychiatry (Supp.7) 5 (2006). The probability of a person with bipolar disorder also having drug-abuse problems "is 11 times greater than in those with out bipolar disorder." Darrel A. Regier et al., Comorbidity of Mental Disorders with Alcohol and Other Drug Abuse: Results from the Epidemiologic Catchment Area (ECA) Study, 264 J. Am. Med. Ass'n 2511, 2514-15, 2516 tbl.3, 2517 (1990).
[6] The rationale underlying the insanity defense is that a legally insane person is unable to form the requisite criminal intent. See Truman v. State, 481 N.E.2d 1089, 1089-90 (Ind.1985) ("the inability to form intent by reason of insanity" is a defense to crime in Indiana).
[7] "Preponderance of the evidence" means "[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force." Black's Law Dictionary 1301 (9th ed.2009). Thus, a defendant must convince the trier of fact that, in consideration of all the evidence in the case, he or she was more probably legally insane than legally sane at the time of the crime. See Gambill v. State, 675 N.E.2d 668, 676 (Ind. 1996).
[8] Indiana Code section 35-41-3-6 provides that a person is not criminally responsible for engaging in criminal acts "if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense," and it defines a "mental disease or defect" as a "severely abnormal mental condition that grossly and demonstrably impairs a person's perception."
[9] The results of an NRI verdict and of a GBMI verdict are different. When an NRI verdict is rendered, the prosecutor is required to initiate a civil commitment proceeding under either section 12-26-6-2(a)(3) (temporary commitment) or section 12-26-7 (regular commitment) of the Indiana Code. See I.C. § 35-36-2-4. The defendant remains in custody pending the completion of the commitment proceeding. Id. The trial court may order the defendant committed if it finds by clear and convincing evidence that the defendant is currently mentally ill and either dangerous or gravely disabled. See Deal v. State, 446 N.E.2d 32, 34 (Ind.Ct.App.1983) (citing Addington v. Texas, 441 U.S. 418, 425-33, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)), trans. denied. But see Foucha v. Louisiana, 504 U.S. 71, 87-88, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (O'Connor, J., concurring) (stating that it might be permissible for a state "to confine an insanity acquittee who has regained sanity if . . . the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee's continuing dangerousness"); Jones v. United States, 463 U.S. 354, 361-70, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (holding that a defendant who successfully establishes the insanity defense may be committed to a mental institution on the basis of the insanity judgment alone).
Unlike an NRI verdict, a GBMI verdict is a conviction. See I.C. § 35-36-2-5(a). The trial court sentences a GBMI defendant "in the same manner as a defendant found guilty of the offense," id., but the full consequences of a GBMI verdict are different from the consequences of a guilty verdict. See Georgopulos v. State, 735 N.E.2d 1138, 1141 (Ind.2000). Specifically, a physician must evaluate the GBMI defendant before sentencing, and the defendant must be appropriately treated and evaluated once in the Department of Correction's custody. Id. (citing I.C. § 35-36-2-5(b), (c)).
[10] The trial court is required to appoint two or three disinterested experts to examine the defendant and testify at trial as the court's witnesses, after the State and the defendant have both presented their respective cases. I.C. § 35-36-2-2(b). Additionally, the State and the defense may each employ its own expert(s) to testify along with the court's witnesses. Id.
[11] The "other evidence" included testimony from a detective that, based on his interactions with the defendant, in his lay opinion the defendant was sane. Green, 469 N.E.2d at 1172.
Moreover. . . . [a]fter beating her daughter with the skillet, Defendant changed her clothing, told her daughter's schoolmate that [the victim] was not going to school, packed a suitcase, ripped a page from an address book bearing the name of a friend in Chicago, withdrew money from the bank, purchased a bus ticket, and went to her friend's house.
Id.
[12] In Rogers, there was lay testimony that although the defendant "had a `weird' facial expression" earlier in the day, his speech and actions were "calmer" and he was not acting "crazy" at the time of the crime. 514 N.E.2d at 1261.
[13] Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Ind. Evidence Rule 401.
[14] Nevada also abolished the insanity defense, see Act of July 5, 1995, ch. 637, § 5, 1995 Nev. Stat. 2448, 2450, but the Nevada Legislature reinstated the defense in 2003, see Act of May 28, 2003, ch. 284, § 4, 2003 Nev. Stat. 1456, 1457 (codified as amended at Nev. Rev.Stat. Ann. § 174.035 (West Supp.2010)).
[15] We have previously considered the trial court's sentencing statements as illustrative of its reasoning with regard to the verdict, at least where the trial court was both the trier of law and the trier of fact. See Thompson, 804 N.E.2d at 1150.
7.2.8.5.2.2.7 US v. Rezaq 7.2.8.5.2.2.7 US v. Rezaq
918 F.Supp. 463 (1996)
UNITED STATES of America,
v.
Omar Mohammed Ali REZAQ, a/k/a Omar Marzouki, Defendant.
Criminal No. 93-0284 (RCL).
United States District Court, District of Columbia.
March 12, 1996.
[464] Joseph Valder, Asst. U.S. Atty., U.S. Attorney's Office, Washington, DC, Scott Glick, U.S. Department of Justice, Washington, DC, for U.S.
Robert Tucker, Teresa Alva, Federal Public Defender for District of Columbia, Washington, DC, for defendant.
MEMORANDUM OPINION AND ORDER
LAMBERTH, District Judge.
This matter comes before the court on a motion in limine filed by the United States [465] regarding defendant's insanity defense,[1] and a motion filed by defendant requesting a stay of the court's discovery Order of December 14, 1995. The government's motion actually consists of three separate requests. The government first seeks to preclude all evidence related to defendant's insanity defense on the ground that defendant's notice of an insanity defense, filed pursuant to Federal Rule of Criminal Procedure 12.2 ("Rule 12.2") was untimely, and that defendant had not shown "cause" sufficient to justify a late filing. See Govt.'s Mot., at 3-6. This first request was denied in open court on February 5, 1996. In the second part of the government's motion, the government moves the court to exclude all of defendant's lay and expert evidence related to his insanity defense on relevancy grounds or, alternatively, on a finding that defendant's evidence is needlessly confusing and will mislead the jury. See Govt.'s Mot., at 6-18. In the last part of the government's motion, the government requests that the court conduct a pretrial hearing to determine the scope of lay and expert evidence that defendant intends to introduce in support of his insanity defense. See Govt.'s Mot., at 18-24. Defendant's motion seeks a stay of the discovery of expert witnesses as outlined in the court's discovery Order of December 14, 1995 in light of the challenge to defendant's insanity defense posed by the government's motion in limine.
Upon consideration of the filings and arguments of counsel with respect to the two remaining parts of the government's motion, the court shall grant in part and deny in part the government's motion. Furthermore, in light of the court's ruling on the government's motion in limine, the court shall deny defendant's motion to stay the court's discovery Order of December 14, 1995. The court's reasoning is set forth below.
DISCUSSION
On November 1, 1995, defendant provided notice to the government, pursuant to Rule 12.2, of his intent to rely on a defense of temporary insanity and to introduce expert testimony to negate the mens rea element of the offense of aircraft piracy.[2] On the same day, defense counsel also notified the government that defendant had been evaluated by three expert psychologists — Drs. Nuha Abudabbeh, John Wilson, and Harvey Dondershine — as part of the preparation of defendant's insanity defense. All three experts conducted psychological testing on defendant, and diagnosed the defendant as suffering from post traumatic stress disorder ("PTSD"). Defendant provided the reports to the government and, shortly thereafter, the government filed the present motion in limine to preclude defendant from introducing lay and expert evidence related to the insanity defense, and requested a pretrial hearing to determine the admissibility and scope of the evidence that defendant intends to introduce in support of his insanity defense. Defendant responded by filing a motion to stay the court's Discovery Order of December 14, 1995.
The government's first argument for preclusion — that defendant's notice was untimely — has already been rejected by the court. The remaining portions of the government's motion and defendant's motion to stay the court's Discovery Order of December 14, 1995 are addressed seriatim.
A. Motion In Limine Regarding Defendant's Rule 12.2 Evidence
1. Preclusion of Evidence Offered by Defendant Pursuant to Rule 12.2(b) to Negate the Mens Rea Element of the Offense
Rule 12.2(b) permits a defendant to introduce "expert testimony relating to a [466] mental disease or defect or any other mental condition of defendant bearing upon the issue of guilt" to prove that defendant did not possess the requisite mens rea of a specific intent crime. See Fed.R.Crim.P. 12.2(b). The government argues that defendant should be precluded from introducing any evidence under Rule 12.2(b) because aircraft piracy — the crime with which defendant is charged — is not a specific intent crime. Accordingly, the government moves this court to enter an order precluding the defendant from offering evidence pursuant to Rule 12.2(b), and from making any reference to such evidence in his opening statement.
Defendant disputes the government's characterization of the offense of aircraft piracy as a specific intent crime,[3] but claims that the issue whether to preclude the defendant from introducing evidence pursuant to Rule 12.2(b) is mooted by the fact that defendant intends neither to offer expert evidence concerning defendant's mens rea at the time of the offense nor to request a jury instruction that expert evidence may be considered in regard to that issue. See Def.'s Opp., at 10-11.
The government correctly points out that defendant's present position on Rule 12.2(b) evidence is inconsistent with the Rule 12.2 notice initially filed by defendant. The notice states explicitly that "pursuant to Fed. R.Crim.P. 12.2(b), the [defendant] intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of guilt." Def.'s Rule 12.2. Notice, at 1. In any event, defendant does not object to the government's request for an order precluding defendant both from introducing evidence pursuant to 12.2(b) and from making reference to any such evidence in defendant's opening statement. Accordingly, the government motion in limine, with respect to 12.2(b) evidence, shall be granted.[4]
2. Preclusion of Evidence Offered By Defendant Pursuant to Rule 12.2(a) In Support of Defendant's Affirmative Defense of Insanity
The government also seeks to preclude defendant from introducing lay and expert evidence, pursuant to Rule 12.2(a), in support of his affirmative defense of insanity. Defendant's insanity defense is based on a claim that defendant, at the time of the offense, suffered from PTSD. According to the government, lay and expert evidence of defendant's [467] PTSD diagnosis is irrelevant to an insanity defense because defendant's case of PTSD is not of sufficient severity to constitute an affirmative defense of insanity under 18 U.S.C. § 17(a). The government also contends that, even if defendant's evidence were relevant to a viable insanity defense, such evidence should nevertheless be precluded by the court because it has a strong tendency to either confuse the issues or mislead the jury.
The affirmative defense of insanity is set forth in 18 U.S.C. § 17(a).[5] The requirements of section 17(a) are clear: unless the mental condition claimed by defendant was "severe" and resulted in the inability of defendant to "appreciate the nature and quality or wrongfulness of his acts," the "[m]ental disease or defect does not ... constitute [an affirmative] defense." 18 U.S.C. § 17(a). Thus, the relevance of the evidence pertaining to defendant's PTSD diagnosis turns on whether defendant's case of PTSD is of sufficient severity to constitute an affirmative defense of insanity.[6]
Courts have generally taken a liberal approach to the admissibility of evidence in support or contradiction of the affirmative defense of insanity. See United States v. Brawner, 471 F.2d 969, 994-95 (D.C.Cir. 1972); accord United States v. Alexander, 805 F.2d 1458, 1464 (11th Cir.1986) (noting that a court "should be liberal in admitting testimony (and evidence) regarding the issue of insanity"); United States v. McRary, 616 F.2d 181, 184 (5th Cir.1980) (holding that a "court should be liberal in ruling on the admissibility of evidence bearing on that issue [insanity]"), cert. denied, 456 U.S. 1011, 102 S.Ct. 2306, 73 L.Ed.2d 1307 (1982); United States v. Ives, 609 F.2d 930, 932-33 (9th Cir.), cert. denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 605 (1980); United States v. Smith, 507 F.2d 710, 711 (4th Cir. 1974) ("[A] trial judge should permit `an unrestricted inquiry into the whole personality of defendant' and should be free in his admission of all possibly relevant evidence.").
The three reports by defendant's experts, when reviewed as a whole, clearly indicate that defendant's diagnosis of PTSD meets the test of insanity as set out in 18 U.S.C. § 17(a).[7] Dr. Dondershine's report concluded that defendant suffered from what can only be described as a severe case of PTSD and depression that "seriously impaired" his ability to judge the wrongfulness of his conduct. According to Dr. Dondershine, at the time of the hijacking, defendant's "personality was fragmenting and the parts — perception, reason, judgment, contemplation of right and wrong, and assessment of consequences — were no longer fully [operative]."[8]Id. at 6. Similarly, Dr. Wilson concluded that, at the time of the offense, [468] defendant "suffered from Post Traumatic Stress Disorder and Major Depression," and as a result of this illness, "was unable to appreciate [the] wrongfulness of his conduct." Wilson Report, November 30, 1995 at 7. He also described defendant's mental state at the time of the hijacking as "fragile, vulnerable, and unstable." Id. at 5.
Dr. Abudabbeh diagnosed defendant's PTSD as less severe than the others. Although Dr. Abudabbeh concluded in the report that "[o]n November 23-24, 1985, Mr. Rezaq did suffer from Posttraumatic Stress Disorder, Chronic," and that "as a result of his mental illness, Mr. Rezaq was unable to appreciate the wrongfulness of his acts...." Abudabbeh Report, Dec. 1995, at 8., conspicuously absent from Dr. Abudabbeh's report is the kind of description of defendant's condition that would indicate that defendant case of PTSD and depression was indeed severe. Nevertheless, these three reports, when reviewed as a whole, indicate that defendant's case of PTSD meets the test of insanity as set out in 18 U.S.C. § 17(a). Accordingly, defendant's expert evidence cannot be excluded on relevancy grounds.
The government also maintains that, even if the evidence is relevant to defendant's insanity defense, it should nevertheless be precluded by the court because its "probative value is substantially outweighed by the danger of ... confusion of the issues, or misleading the jury." Fed.R.Evid. 403. The government, however, provides no support for this contention. Rather, the government merely recites a concern raised by Congress when it passed the Insanity Defense Reform Act of 1984 that psychiatric testimony, in certain instances, may be needlessly confusing. See Govt.'s Mot., at 13. The government, however, has not asserted that the psychiatric evidence in this case is either needlessly confusing or has the potential to mislead the jury. The court therefore finds that the probative value of defendant's expert testimony in support of his insanity defense is not substantially outweighed by the risk of unfair prejudice. Accordingly, the court shall deny the part of the government's motion in limine that seeks to preclude the defendant from introducing lay and expert testimony, pursuant to Rule 12.2(a), in support of his insanity defense.
B. Government's Request for a Preliminary Hearing
The government also moves the court to enter an Order directing defendant to introduce evidence at a pretrial hearing so that the court may determine the admissibility and scope of the lay and expert testimony and evidence that defendant intends to offer at trial in support of his insanity defense pursuant to Rule 12.2(a). The government, however, cites a series of cases that support an entirely different proposition — that defendant should be required to make an additional proffer with respect to evidence offered under Rule 12.2(b) to negate an element of the offense. See Govt.'s Mot., at 19-22 (citing United States v. Childress, 58 F.3d 693 (D.C.Cir.) (evidence of mental retardation offered under Rule 12.2(b) to negate specific intent), cert. denied, ___ U.S. ___, 116 S.Ct. 825, 133 L.Ed.2d 768 (1996); United States v. Cameron, 907 F.2d 1051 (11th Cir.1990) (psychiatric evidence offered under Rule 12.2(b) to negate specific intent); United States v. Fazzini, 871 F.2d 635 (7th Cir.) (evidence of drunkenness offered under Rule 12.2(b) to negate intent), cert. denied, 493 U.S. 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989); United States v. Click, 807 F.2d 847 (9th Cir.1987) (evidence of medical records offered under 12.2(b) to determine whether defendant entered false confession); United States v. Gold, 661 F.Supp. 1127 (D.D.C.1987) (whether evidence offered under Rule 12.2(b) addressed the issue of specific intent); United States v. Shorter, 618 F.Supp. 255 (D.D.C. 1985) (evidence of gambling addiction offered under Rule 12.2(b) to negate willfulness in tax prosecution).
A more detailed proffer may be necessary with respect to notices under Rule 12.2(b) in light of the fact that many crimes are general intent offenses, and in such cases, psychological evidence is deemed not relevant. See United States v. Cameron, 907 F.2d 1051, 1063 n. 20 (11th Cir.1990); accord United States v. Fazzini, 871 F.2d 635, 640-41 (7th Cir.), cert. denied, 493 U.S. 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989); United States v. Twine, 853 F.2d 676, 679 (9th Cir. [469] 1988); United States v. White, 766 F.2d 22 (1st Cir.1985); United States v. Gold, 661 F.Supp. 1127 (D.D.C.1987); United States v. Frisbee, 623 F.Supp. 1217, 1219-23 (N.D.Cal. 1985). Moreover, "[b]ecause psychiatric evidence (1) will only rarely negate specific intent, (2) presents an inherent danger that it will distract the jury's [sic] from focusing on the actual presence or absence of mens rea, and (3) `may easily slide into wider usage that opens up the jury to theories of defense more akin to justification,' district courts must examine such psychiatric evidence carefully to ascertain whether it would, if believed, `support a legally acceptable theory of lack of mens rea.'" Cameron, 907 F.2d at 1067 (citations omitted).
Thus, courts in this Circuit have generally followed the approach articulated in United States v. Brawner, 471 F.2d 969 (D.C.Cir. 1972) when dealing with evidence offered pursuant to Rule 12.2(b). In Brawner, the court observed:
Our rule permits the introduction of expert testimony as to abnormal condition if it is relevant to negative, or establish the specific mental condition that is an element of the crime. The receipt of this expert testimony to negative the mental condition of specific intent requires careful administration by the trial judge. Where the proof is not offered in the first instance as evidence of exonerating mental disease or defect within the ALI rule the judge may, and ordinarily would, require counsel first to make a proffer of the proof to be adduced outside the presence of the jury. The judge will then determine whether the testimony is grounded in sufficient scientific support to warrant use in the court-room, and whether it would aid the jury in reaching a decision on the ultimate issues.
Id. at 1002 (emphasis added). Brawner remains the law of this Circuit, see United States v. Shorter, 618 F.Supp. at 259, even after the passage of the Insanity Defense Reform Act of 1984. See Childress, 58 F.3d at 730; Gold, 661 F.Supp. at 1130-31.
Defendant, however, no longer seeks to introduce evidence pursuant to Rule 12.2(b), and instead chooses to introduce lay and expert evidence only in support of a full-fledged insanity defense pursuant to Rule 12.2(a). It is clear that had defendant sought to introduce this evidence under 12.2(b) on the mens rea issue, the court would have been obliged to conduct a preliminary hearing on the matter. Only in exceptional circumstances, however, is the government entitled to the same sort of detailed proffer with respect to Rule 12.2(a) evidence.
Perhaps the strongest case for requiring defendant to make a more detailed proffer on Rule 12.2(a) evidence is the case in which the government seeks to prevent the interposition of an insanity defense because there is insufficient evidence of a severe mental disease or defect. The government cites three cases — United States v. Meader, 914 F.Supp. 656, 1996 WL 65136 (D.Me.1996), United States v. Duggan, 743 F.2d 59, 80 (2d Cir. 1984), and United States v. Cameron — in which the possibility of a more detailed proffer of evidence offered pursuant to Rule 12.2(a) was entertained by a court. In all three cases, however, defendant had given little, if any, indication as to the specifics of the insanity defense prior to the court ordering a more detailed proffer by defendant or a pretrial hearing.
In Meader, defendant gave Rule 12.2 notice to the government that he intended to rely upon a defense of insanity. At the time the government was notified, defendant's entire insanity defense rested on "limited statements" made by an expert psychologist in a letter to defendant's lawyer. Meader, 914 F.Supp. at 657, 1996 WL 65136, at *1. The government moved in limine to exclude the defense, presumably on the ground that defendant had not provided evidence sufficient to support the defense. Because the court had no basis upon which to evaluate the validity of defendant's insanity defense or to gauge the admissibility of the evidence upon which the defendant was based, the court ordered a pretrial hearing, at which time the defendant proffered testimony by the expert psychologist who drafted the letter discussing defendant's condition. Based on the expert's elaboration on the statements contained in the letter, the court concluded that defendant had evidence sufficient to support a legitimate insanity defense, and that the evidence could be submitted to the jury.
In Duggan, two of the defendants filed last minute Rule 12.2(a) notices of an insanity defense. Defendants filed no papers or affidavits [470] from experts explaining the basis for the proposed defense. The court ordered the defendants to file a more detailed statement concerning the basis of the insanity defense. In response, defendants submitted an affidavit by counsel that defendants "acted as if they had `something which seemed like a psychiatric disorder' and conclusory statements from two doctors that a `diagnostic possibility exists,' but that an additional four to five months would be need to complete the diagnosis." Duggan, 743 F.2d at 80-81. The Second Circuit affirmed both the district court's request for a more detailed proffer and the court's eventual rejection of defendant's proffer as to the insanity defense. Similarly, in Cameron, the court hypothesizes that "a specific proffer might be necessary if the government ... seeks to foreclose the presentation of an insanity defense because there is insufficient evidence of mental disease of defect." Cameron, 907 F.2d at 1058 n. 10 (emphasis added).
All of these cases are distinguishable from the instant case in that, unlike the courts in Meader, Duggan, and Cameron, this court has more than an adequate basis upon which to evaluate both the validity of defendant's insanity defense and the strength of the evidence upon which it is based. The courts in Meader, Duggan, and Cameron were all constrained in their ability to evaluate defendant's insanity defense because of the lack of evidence before them. Pretrial hearings or more detailed proffers were either contemplated or ordered in those cases so as to provide the court with a sufficient basis to evaluate defendant's insanity defense and the evidence upon which it is based.
Defendant Rezaq, however, has proffered three detailed psychological reports months in advance of trial, and has allowed himself to be examined by at least three psychiatrists chosen by the government. Thus, the court as well as the government has a sufficient basis to evaluate the validity of defendant's insanity defense as well as admissibility of the evidence upon which the defense is based. The reports submitted to the government describe in exhaustive detail defendant's personal, political, cultural, and emotional history. Defendant's diagnosis of PTSD, which is the lodestar of his insanity defense — is amply explained and evaluated in each of the three reports already in the possession of the government.
The court is satisfied with defendant's proffer of three detailed psychological evaluations. Defendant has made a facial showing that the evidence in support of his insanity defense meets the standards set forth in 18 U.S.C. § 17. The expert evidence, when taken as a whole, suggests that defendant suffered from what appears to be a severe case of PTSD at the time of the offense.[9] Furthermore, the diagnoses appear to be based on acceptable techniques, evaluations, and measuring devices. In light of the consistency among the three diagnoses, the court finds that defendant presented evidence of sufficient quantity and quality to properly raise the insanity defense at trial. Accordingly, the government's request for a pretrial hearing to determine the admissibility and scope of defendant's Rule 12.2(a) evidence shall be denied.
C. Defendant's Motion to Stay the Court's Discovery Order of December 14, 1995
In light of the court's ruling that defendant's 12.2 notice is timely, and that defendant's affirmative defense of insanity is both viable and based upon evidence admissible the Federal Rules of Evidence, there is no reason to further delay discovery as to the experts that will testify at trial. Accordingly, the court shall deny defendant's motion to stay the agreed upon discovery Order of December 14, 1995, and discovery of expert evidence shall continue as set forth in the December 14, 1995 Order.
CONCLUSION
For the foregoing reasons, it is hereby
[471] ORDERED that the government's motion in limine to preclude lay and expert evidence regarding defendant's Rule 12.2 notice and motion for pretrial hearing is GRANTED in part and DENIED in part as follows:
1. The government's motion to preclude defendant from introducing lay and expert testimony and evidence pursuant to 12.2(b) to negate an element of the offense is GRANTED;
2. The government's motion to preclude defendant from introducing lay and expert testimony and evidence pursuant to Rule 12.2(a) to support an affirmative defense of insanity is DENIED;
3. The government's motion for a pretrial hearing to determine the admissibility and scope of defendant's Rule 12.2(a) evidence is DENIED; and
4. Defendant's motion to stay the court's discovery Order of December 14, 1995 is DENIED.
SO ORDERED.
[1] The complete title of the government's motion is "United States Motion-In-Limine to Preclude Lay and Expert Evidence in Regard to Defendant Rezaq's Rule 12.2 Notice and Motion for Pre-Trial Hearing to Determine the Admissibility and Scope of Certain Evidence."
[2] text of defendant's Rule 12.2 notice is as follows: Defendant gives notice pursuant to Fed.R.Crim.P. 12.2(a) that he intends to rely upon the defense of insanity at the time of the alleged offense, and, pursuant to Fed. R.Crim.P. 12.2(b), the he intends to introduce expert testimony relating to a mental disease or defect or any other mental condition of the defendant bearing on the issue of guilt.
Def.'s Rule 12.2. Notice, at 1.
7.2.8.5.2.2.8 State v. Bottrell 7.2.8.5.2.2.8 State v. Bottrell
14 P.3d 164 (2000)
103 Wash.App. 706
STATE of Washington, Respondent,
v.
Teresa Ann BOTTRELL, Appellant.
No. 23757-1-II.
Court of Appeals of Washington, Division 2.
December 15, 2000.
[165] Suzan L. Clark, Vancouver, for Appellant.
John Prince Fairgrieve, Clark Co. Deputy Prosecuting Attorney, Vancouver, for Respondent.
OPINION PUBLISHED IN PART
BRIDGEWATER, J.
Teresa Ann Bottrell was charged with first degree premeditated murder and first degree felony murder in the death of John Hall. She appeals her convictions for first degree felony murder and the lesser included offense of premeditated murder, i.e., second degree murder.
With regard to the charge of first degree premeditated murder, Bottrell offered testimony that she suffered from post traumatic stress disorder (PTSD). The testimony was relevant and admissible because the psychiatric community recognizes a link between PTSD and diminished capacity. In addition, the medical testimony indicated that Bottrell suffered from PTSD and she might have experienced a flashback at the time of her struggle with Hall, impairing her ability to act with intent. We hold that the trial court [166] erred in failing to allow the testimony regarding PTSD because it may have negated the intent necessary for this crime and the lesser included offense of second degree murder. We reverse that conviction and remand.[1]
But, we affirm the conviction for felony murder. We hold that the offer of proof of PTSD did not include the intent required under the felony murder charge of homicide/robbery. We hold that there was sufficient evidence to find that Bottrell had the intent to rob Hall before she went to his home, and that she killed him during the course of, or in furtherance of, or in flight from the robbery.
FACTS
In late 1997 and early 1998, Teresa Bottrell was incarcerated in the Clark County Jail for a forgery conviction. While in jail, Bottrell learned that John Hall, a person much older than she who was not incarcerated, was willing to deposit money in female inmates' jail accounts in exchange for telephonic sexual conversation. Bottrell needed money, so she called Hall from the jail and spoke with him several times. Hall visited her at the jail and she obtained probation permission to live at his house upon her release. Hall hoped to get sexual favors from Bottrell. Upon her release, she visited Hall at his home several times.
On the night of Hall's murder, Bottrell went to Hall's house. Bottrell testified that she went there to get money from Hall by having sex with him. She and Hall talked about what he wanted before Hall went into the bedroom.
According to Bottrell, Hall asked her to tie him up and put tape over his mouth. She took a roll of duct tape and went into the bedroom. Hall was lying on the bed, propped up against a pillow. She tore off some of the tape, then changed her mind, told him no, and threw down the tape. Hall hit her in the face and they began to fight. During the struggle, Bottrell hit Hall with a lacquered wooden ornamental duck and a clock radio. While Hall was on the floor, Bottrell got up, grabbed a pair of scissors, and cut a piece of the phone cord. Hall asked Bottrell for help and then he grabbed her again. So, she "tried to tie his hands [with the cord], but ... got it around his neck" instead. Report of Proceedings at 502.
Bottrell next remembers standing against the wall looking down at Hall, touching him with her foot and noticing that he did not move. She testified that at that point, she realized Hall was dead. She also testified that during the struggle with Hall she thought about past events in her life. She thought about an incident where her mother tried to run over her father with the car. She thought about her father's alcoholism and him beating her as a child. Bottrell thought about a man who had almost killed her when she was hitchhiking.
When she realized Hall was dead, Bottrell attempted to clean up and cover up by changing her clothing and starting a load of laundry. She tried to burn a towel, setting off the smoke alarm. Then she went into the bedroom, got Hall's safe out, and rifled through it looking for money. She and her boyfriend, Larry Jones, later returned looking for money. They stole Hall's keys and his Lincoln Continental.
Bottrell acknowledged that on February 28, 1998, the night of the homicide, she went to Hall's house planning to get money from him. Sometime before the night of the homicide and while still incarcerated, Bottrell told a fellow inmate that she would take Hall for everything he had, including his Lincoln Continental, Jeep, tools, and checkbook. She previously told another inmate, sometime before February 14, that: she would marry Hall; because he was old and on insulin, it would not take long for him to die; and if he had an overdose of insulin, he would die and everything would be hers. Although Bottrell claimed initially to have planned to exchange sex with Hall for money, she testified that she stole two of Hall's checks the day before his death and gave them to Jones, [167] who tried to forge and to cash them. After Hall's death, while incarcerated in the Portland jail, Bottrell told yet another inmate that: she had gone over to Hall's house planning to take money and "stuff" which prompted Hall to call the police and precipitated the fight; she was glad she had killed him; and she was going to claim that she killed him because he was a child molester.
Bottrell was charged by an amended information with one count of first degree premeditated murder and one count of first degree felony murder, with a predicate crime of robbery. The jury returned a verdict of guilty of the lesser included offense of second degree murder on count one and first degree felony murder on count two.[2]
I. MURDER IN THE SECOND DEGREE
A. Standard of Review
A trial court's evidentiary rulings are reviewed for an abuse of discretion. State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).
B. Dr. Stanulis
1. ER 702, 401, and 402[3]
"Diminished capacity is a mental condition not amounting to insanity which prevents the defendant from possessing the requisite mental state necessary to commit the crime charged." State v. Warden, 133 Wash.2d 559, 564, 947 P.2d 708 (1997). Here, part of Bottrell's defense was that her ability to form the requisite intent was impaired by PTSD.[4] First degree premeditated murder requires "premeditated intent." RCW 9A.32.030(1)(a). The lesser included crime of second degree murder requires the "intent to cause the death of another person."[5] The State bears the burden of proving beyond a reasonable doubt that the defendant had the requisite mental state for the crime charged. State v. James, 47 Wash. App. 605, 609, 736 P.2d 700 (1987). When specific intent or knowledge is an element of the crime charged, a defendant is entitled to present evidence showing an inability to form the specific intent or knowledge at the time of the crime. State v. Edmon, 28 Wash.App. 98, 102-04, 621 P.2d 1310, review denied, 95 Wash.2d 1019 (1981); State v. Martin 14 Wash.App. 74, 75, 538 P.2d 873 (1975), review denied, 86 Wash.2d 1009 (1976).
Bottrell argues that the trial court should have allowed her expert, Dr. Robert Stanulis, to testify that she suffered from PTSD and had diminished capacity. Bottrell contends that the foundational requirements for admissibility of Dr. Stanulis's testimony as set forth in State v. Edmon are not absolute and that the testimony should have been admissible under ER 702, ER 401, ER 402, and State v. Ellis, 136 Wash.2d 498, 963 P.2d 843 (1998). The State responds that the Edmon factors were not satisfied, and that Ellis is inapposite because it involved a capital case. The trial court did not have the benefit of the Supreme Court's later decisions and it considered Dr. Stanulis's testimony under [168] the foundational requirements set forth in State v. Edmon.[6] The trial court determined that the foundational requirements were not met and excluded the testimony.
In 1998, a month after Bottrell was sentenced, the Supreme Court announced that it did "not adopt the foundational requirements announced in Edmon as absolute." State v. Ellis, 136 Wash.2d 498, 522, 963 P.2d 843 (1998). "In excluding the expert testimony on diminished capacity in the State's motion in limine, the court unreasonably and prematurely concluded the foundation for admissibility had not been satisfied. The court should have considered admissibility under ER 702 and application of ER 401 and 402." Ellis, 136 Wash.2d at 523, 963 P.2d 843. In reaching its decision, the court emphasized that Ellis was a capital case. Ellis, 136 Wash.2d at 522, 963 P.2d 843. Here, the State argues that Ellis is not the law in non-capital cases such as Bottrell's. But, this is not a proper reading of Ellis, nor is the State's position supported by subsequent case law. See State v. Greene, 139 Wash.2d 64, 984 P.2d 1024 (1999), cert. denied, 529 U.S. 1090, 120 S.Ct. 1726, 146 L.Ed.2d 647 (2000); State v. Mitchell, 102 Wash.App. 21, 997 P.2d 373 (2000); State v. Atsbeha, 96 Wash.App. 654, 981 P.2d 883 (1999), review granted, 140 Wash.2d 1001, 999 P.2d 1262 (2000).
The Supreme Court has reiterated its holding in Ellis:
ER 702 controls the analysis for both insanity and diminished capacity. The State asks us to revisit our recent decision in State v. Ellis in which we held the admissibility of expert testimony regarding diminished capacity is to be determined under ER 702. We decline the State's invitation. ER 702 is the standard for admissibility of expert testimony in Washington.
Greene, 139 Wash.2d at 73 n. 3, 984 P.2d 1024 (expert testimony excluded because it was not possible to reliably connect the symptoms of dissociative identity disorder to the mental capacity of the defendant) (citations omitted).
Recently, Division One has followed Ellis when making decisions regarding the exclusion of expert testimony in non-capital cases. Mitchell, 102 Wash.App. 21, 997 P.2d 373 (defendant was convicted of one count of third degree assault and two counts of fourth degree assault); Atsbeha, 96 Wash.App. 654, 981 P.2d 883 (defendant was convicted of possession of a controlled substance with intent to deliver).
2. Psychiatric Community Recognition
According to the American Psychiatric Association:
The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person; or learning about unexpected or violent death, serious harm, or threat of [169] death or injury experienced by a family member or other close associate.
American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 424 (4th ed.1994).
One hallmark of PTSD is flashback, a condition "during which components of the [traumatic] event are relived and the person behaves as though experiencing the event at that moment. American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 424 (4th ed.1994). When a person has a flashback, he or she undergoes an "alteration in the perception or experience of the self in which the usual sense of one's own reality is temporarily lost or changed." American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 275 (3rd ed. revised 1987). While in this state, the person experiences "[v]arious types of sensory anesthesia and a sensation of not being in complete control of one's actions, including speech." American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 275 (3rd ed. revised 1987). So, a person who truly suffers from PTSD could experience a flashback and during that flashback might be unable to control his or her actions. As one commentator stated:
Ordinarily, persons with PTSD are in contact with reality and do not display any symptoms of psychosis such as hallucinations or delusions. PTSD is essentially an anxiety disorder. However, some patients, especially those who are subsequently subjected to extreme stress, develop a transient dissociative reaction with episodes of depersonalization or derealization. Most of the time, these feelings of unreality pass without incident, but occasionally criminal behavior may erupt. The question of criminal responsibility, therefore, is pertinent since a person's cognitive or volitional state may be impaired during a dissociative reaction.
Chester B. Scrignar, M.D., POST-TRAUMATIC STRESS DISORDER: DIAGNOSIS, TREATMENT, AND LEGAL ISSUES, 245 (2d ed.1988).
Washington case law acknowledges that PTSD is recognized within the scientific and psychiatric communities and can affect the intent of the actor resulting in diminished capacity. See State v. Janes, 121 Wash.2d 220, 233-36, 850 P.2d 495 (1993) (battered woman and battered child syndromes are a subset of PTSD and are admissible to show how severe abuse affects the battered person's perceptions and reactions); see also, State v. Riker, 123 Wash.2d 351, 869 P.2d 43 (1994). Other cases that acknowledge the link and the defense, although not directly addressing the issue before us are: State v. Warden, 133 Wash.2d 559, 564, 947 P.2d 708 (1997); State v. Hamlet, 133 Wash.2d 314, 944 P.2d 1026 (1997).
Therefore, we hold that PTSD is generally accepted by the scientific and psychiatric communities as a condition that may result in the diminished capacity of the actor.
3. Offer of Proof and Admissibility of Dr. Stanulis's Testimony
There is no dispute that Dr. Stanulis qualified as an expert under ER 702. Because a generally-accepted link exists between PTSD and diminished capacity, the trial court should have admitted the testimony of Dr. Stanulis if he testified that: (1) Bottrell suffered from PTSD; (2) as a result of her PTSD she experienced flashbacks during the incident with Hall; and (3) the flashbacks impaired her ability to act with intent. Dr. Stanulis evaluated Bottrell by reviewing over 9 years of police reports, interviewing her for about 4.5 hours, and administering the Minnesota Multiphasic Personality Inventory. Dr. Stanulis testified to each element during the offer of proof. First, Dr. Stanulis testified that Bottrell suffered from PTSD. According to him, Bottrell "met the criteria for post-traumatic stress disorder[,]" Report of Proceedings at 88, and opined "to a medical certainty" that she suffered from the condition. Report of Proceedings at 90-91. The State's expert, Dr. Ronald Hart, agreed that Bottrell was suffering from resolving PTSD, but asserted that its onset was triggered by Hall's death. Second, Dr. Stanulis testified that Bottrell experienced flashbacks during the incident with Hall: "at the time of [the incident with Hall] ... she was describing, symptoms of a flashback, she was re-experiencing [170] past abusive episodes." Report of Proceedings at 92.
Finally, Dr. Stanulis testified that Bottrell's flashbacks impaired her ability to act with intent:
A: [The flashbacks] are, of course, by definition quite emotionally laden events, and they would directly affect her ability to both perceive what was going on about her accurately and to form specific intents.
Q: Do you have an opinion as to what triggered the inability to form the specific intent?
A: Well, she was clearly in a position where she perceived herself again in an abusive position where her life was being threatened. Again, to what degree that is from a reasonable perspective and what degree that is influenced by her hypervigilance and her PTSD, which would tend to see things as sometimes more dangerous than they are, I think both are arguably present.
Certainly when you start to be flooded with memories of abusive events, emotional, that's a very strong emotional content. This is an individual who has lived many years of her life as a substance abuser to avoid those feelings. So it's hard to imagine that when those feelings and those memories are flooding her that she would be able to form the specific intent and be responding only to that which is in front of her.
Report of Proceedings at 92-93.
Under ER 702, Dr. Stanulis's testimony would assist the jury in determining if Bottrell had the requisite specific intent to murder Hall. "[M]ental disorders are beyond the ordinary understanding of lay persons." Ellis, 136 Wash.2d at 517, 963 P.2d 843. Such evidence is relevant, under ER 401 and ER 402, to determine whether Bottrell's mental capacity was diminished. Further, Dr. Stanulis's testimony was admissible because he based it upon a "medical certainty" that the malady, PTSD, affected Bottrell. This standard is consistent with established case law. See Edmon, 28 Wash.App. at 102, 621 P.2d 1310 (expert must examine and diagnose defendant personally and testify "to an opinion with reasonable medical certainty"); State v. Martin, 14 Wash.App. 74, 76-77, 538 P.2d 873 (1975) (expert proposing to testify that criminal defendant could not form specific intent must base testimony on a "reasonable medical certainty"); State v. Fullen, 7 Wash. App. 369, 383, 499 P.2d 893 ("[i]f the candid medical expert cannot state an opinion with reasonable medical certainty because the symptoms before him are insufficient to support an expert opinion, then he may not speculate"), review denied, 81 Wash.2d 1006 (1972), cert. denied, 411 U.S. 985, 93 S.Ct. 2282, 36 L.Ed.2d 962 (1973); State v. Moore, 7 Wash.App. 1, 499 P.2d 16, review denied, 81 Wash.2d 1004 (1972) (holding the same). In the offer of proof Dr. Stanulis was asked the specific question of "Do you have an opinion as to whether she was able to form the specific intent to commit premeditated first degree murder in this case." Report of Proceedings at 92. Although, in Stanulis's opinion, Bottrell was not able to form specific intent to commit first degree premeditated murder, he offered no opinion about her ability to form an intent to steal from Hall, dead or alive. Rather, he focused solely on Bottrell's state of mind at the time of the killing, when she was reexperiencing via flashbacks past abusive episodes in her life.
Here, if Bottrell suffered from PTSD at the time of Hall's murder, the disorder may have negated the intent necessary for the crime charged, first degree premeditated murder, and for its lesser included offense of second degree murder. Because Dr. Stanulis testified that Bottrell suffered from PTSD, that the PTSD caused flashbacks, and that the flashbacks impaired Bottrell's ability to act with intent, the trial court abused its discretion by excluding Dr. Stanulis's testimony at trial. See Ellis, 136 Wash.2d at 523, 963 P.2d 843. We reverse this conviction and remand for a new trial on the issue of second degree murder.
FIRST DEGREE FELONY MURDER
First degree felony murder has two elements: (1) a homicide; (2) committed "in the course of or in furtherance of ... or in [171] immediate flight" from a robbery. RCW 9A.32.030(1)(c). "Robbery" is defined as:
[U]nlawfully tak[ing] personal property from the person of another or in his presence against his will by the use or threatened use of immediate force, violence, or fear of injury to that person or his property[.]... Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking[.] ... Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
RCW 9A.56.190.
At trial, Bottrell admitted that she had stolen from Hall before. From this admission, the jury could have reasonably inferred that Bottrell intended to steal from Hall again, especially if the jury viewed the admission in conjunction with her statements to fellow inmates: (1) She intended "taking [Hall] for all he had;" (2) if she married Hall and he happened to die from an overdose of insulin, everything would be hers; (3) she had gone over to Hall's house to take money and "stuff"; (4) Hall had resisted and called police; and (5) a fight had ensued and she was glad she had killed Hall. Moreover, after her aborted attempts to clean and to cover up evidence at the crime scene, she and her boyfriend stole Hall's Lincoln Continental, the very car she had previously told a fellow inmate she would take from Hall. Thus, a jury could have reasonably inferred from the evidence that, even before she killed Hall, Bottrell had the requisite intent to commit robbery, the underlying predicate offense for her felony murder conviction. The excluded proffered testimony of Dr. Stanulis would have done nothing to rebut the inference that Bottrell intended to rob Hall.
Although Stanulis's testimony would have reflected on whether Bottrell had the requisite intent to murder, such intent to murder is not an element of felony murder. State v. Dennison, 115 Wash.2d 609, 627, 801 P.2d 193 (1990). Rather, the intent required to prove robbery is intent to deprive the victim of property. State v. Byers, 136 Wash. 620, 622, 241 P. 9 (1925); State v. Carter, 4 Wash.App. 103, 109, 480 P.2d 794, review denied, 79 Wash.2d 1001 (1971).
Since the [felony murder] statute does not require the state to prove the intent with which a murder is committed, when it is done in connection with the perpetration of a robbery, mere lack of an intent to rob at the moment of the killing is not a defense.
State v. Craig, 82 Wash.2d 777, 783, 514 P.2d 151 (1973).
A homicide is committed in connection with the perpetration of a felony if it is in "close proximity in terms of time and distance between the felony and the homicide and there was no break in the chain of events from the inception of the felony to the time of the homicide." CHARLES E. TORCIA, 2 WHARTON'S CRIMINAL LAW § 150 at 312-14 (15th ed.1994) (footnotes omitted). That the homicide preceded the final act of the robbery, namely the theft, does not fragment the chain of events. State v. Temple, 5 Wash.App. 1, 8, 485 P.2d 93 (1971). It is enough that Bottrell admitted to a cellmate that she went to Hall's house to steal from him, he tried to stop her and called police, and the deadly fight ensued. The other physical evidence is consistent with this explanation by Bottrell.
In determining whether sufficient evidence supports a conviction, "[t]he standard of review is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wash.2d 77, 82, 785 P.2d 1134 (1990) (citing State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980)). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980). There was sufficient evidence to prove that Bottrell committed felony murder. And Dr. Stanulis's excluded PTSD testimony would not [172] have materially borne on Bottrell's intent to rob Hall.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, J., and HUNT, A.C.J., concur.
[1] The new trial would be as to second degree murder, not first degree premeditated murder. See Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); State v. Anderson, 96 Wash.2d 739, 742, 638 P.2d 1205 (1982).
[2] The parties agreed that the sentences merged and only one counted in determining Bottrell's offender score. Only one sentence was imposed because only one murder occurred. The judgment and sentence stated that the crimes encompassed the same criminal conduct and counted as one crime in determining criminal history.
[3] ER 702. Testimony By Experts
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
ER 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
ER 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, or by other rules or regulations applicable in the courts of this state. Evidence which is not relevant is not admissible.
[4] RCW 9A.08.010(1)(a) INTENT. A person acts with intent or intentionally when he acts with the objective or purpose to accomplish a result which constitutes a crime.
[5] RCW 9A.32.050(1)(a).
[6] 1. The defendant lacked the ability to form a specific intent due to a mental disorder not amounting to insanity.
2. The expert is qualified to testify on the subject.
3. The expert personally examines and diagnoses the defendant and is able to testify to an opinion with reasonable medical certainty.
4. The expert's testimony is based on substantial supporting evidence in the record relating to the defendant and the case, or there must be an offer to prove such evidence. The supporting evidence must accurately reflect the record and cannot consist solely of uncertain estimates or speculation.
5. The cause of the inability to form a specific intent must be a mental disorder, not emotions like jealousy, fear, anger, and hatred.
6. The mental disorder must be causally connected to a lack of specific intent, not just reduced perception, overreaction or other irrelevant mental states.
7. The inability to form a specific intent must occur at a time relevant to the offense.
8. The mental disorder must substantially reduce the probability that the defendant formed the alleged intent.
9. The lack of specific intent may not be inferred from evidence of the mental disorder, and it is insufficient to only give conclusory testimony that a mental disorder caused an inability to forma specific intent. The opinion must contain an explanation of how the mental disorder had this effect.
Edmon, 28 Wash.App. at 102-03, 621 P.2d 1310 (citations omitted).
7.2.8.5.2.2.9 US v. Polizzi (545 F.Supp.2d 270) 7.2.8.5.2.2.9 US v. Polizzi (545 F.Supp.2d 270)
545 F.Supp.2d 270 (2008)
UNITED STATES of America,
v.
Peter POLIZZI, Defendant.
No. 06-CR-22(JBW).
United States District Court, E.D. New York.
April 1, 2008.
Benton J. Campbell, U.S. Attorney for the Eastern District of New York, by: Allen Lee Bode, for the Government.
Mitchell J. Dinnerstein, Esq., for Defendant Peter Polizzi.
[271] MEMORANDUM & LEGAL INSANITY CHARGE
JACK B. WEINSTEIN, Senior District Judge:
TABLE OF CONTENTS I. Introduction ..............................................................271 A. Defendant .............................................................271 B. Jury Charge on Legal Insanity .........................................272 C. Trial .................................................................272 D. Jury Verdict ..........................................................273 E. Post-Verdict Proceedings ..............................................273 II. Legal Insanity Defense ....................................................273 A. Federal Insanity Defense Reform Act ...................................273 B. Government's Proposed Insanity Charge .................................274 C. Defendant's Proposed Insanity Charge ..................................275 D. Insanity Charge Given by the Court ....................................276 1. Definition of "Wrongfulness" ......................................276 2. Rationale .........................................................278 a. A "Public Morality" Charge Would Be Prejudicial and Unnecessarily Vague .........................................279 b. Ewing Is Distinguishable ......................................280 c. Polizzi Did Not Directly Introduce Moral Justification ........280 III. Conclusion ................................................................280
I. Introduction
Defendant, Peter Polizzi, was charged with — and convicted after a jury trial of — twelve counts of receipt and eleven counts of possession of images of child pornography under 18 U.S.C. §.§ 2252(a) (2) and 2252(a)(4)(B), see Superseding Indictment, Mar. 8, 2007, Docket Entry No. 35, after a search of his home's detached garage resulted in the discovery of over 5,000 digital images stored on his computers and hard drives. At trial, Polizzi pleaded the affirmative defense of not guilty by reason of insanity under the federal Insanity Defense Reform Act of 1984 ("IDRA"), 18 U.S.C. § 17. The jury rejected the defense. Familiarity with the facts is assumed. See memorandum and order on motions to dismiss and for a new trial and on sentencing, United States v. Polizzi, No. 06-22, ___ F.Supp.2d ___, 2008 WL 1886006 (E.D.N.Y. Apr. 1, 2008).
The insanity defense was largely predicated on Polizzi's having himself been severely sexually abused as a child and the psychological aftereffects. The parties had considerable difficulty in suggesting the form of the jury charge under the unique circumstances of the case. See 18 U.S.C. § 17.
A. Defendant
Defendant's background was positive. See Part II.A of Polizzi, ___ F.Supp.2d ___. He was brought to this country when he was a young teenager after a childhood in Sicilian poverty; had little formal education, yet, after teaching himself to play an instrument, led a popular local band; worked extremely long hours at menial labor as a boy, and then bought and built-up a successful restaurant; had a loving wife and five supportive lawfully engaged sons; lived in a fine home; was well respected in the community by the [272] police, clergy and others; had no criminal record; viewed the charged pornography downloaded from the Internet alone in a double-locked room above his garage; and, upon his arrest, cooperated fully with the police, suggesting to them that whoever participated in producing these dreadful pornographic images should be prosecuted. His testimony as to the severe sexual abuse he had suffered while a child in Sicily was credible and moving.
B. Jury Charge on Legal Insanity
At trial the only contested issue was Polizzi's affirmative defense of legal insanity. See 18 U.S.C. § 17. Polizzi admitted collecting child pornography and described at length how and why he began to do so. His testimony — accepted as truthful by the jury — was that severe childhood sexual abuse had caused him, as an adult, to develop what experts referred to as an obsessive-compulsive disorder ("OCD") and hoarding behavior as well as a post-traumatic stress disorder ("PTSD"). As a result of the trauma he re-experienced upon accidentally stumbling across child pornography on the Internet and seeing other children being sexually abused, he claimed he began to collect child pornography to turn over to law enforcement in a misguided attempt to "help the children." Until his arrest, however, Polizzi never told anyone about his collection.
The definition of legal insanity was critical. The parties' proposed jury instructions, and in particular their definitions of "wrongfulness," were sharply contrasting. The government requested that the court, based on a recent Seventh Circuit Court of Appeals decision, United States v. Ewing, 494 F.3d 607, 618 (7th Cir.2007), issue a jury charge defining "wrongfulness" under the IDRA to be "contrary to public morality, as well as contrary to law." Govt.'s Req. to Charge 29, Aug. 20, 2007, Docket Entry No. 59 (emphasis added); see Govt.'s Letter Objecting to Def.'s Req. to Charge 1-2, Sept. 5, 2007, Docket Entry No. 67; Govt.'s Mem. of Law in Support of Proposed Jury Req. No. 18: Aff. Defense — Insanity 8-11, Sept. 12, 2007, Docket Entry No. 75. Defendant opposed, arguing for a standard jury instruction based on 1 Leonard Sand, et al., Modern Federal Jury Instructions — Criminal § 8.09 (2007), which does not specifically define "wrongfulness." Def.'s Req. to Charge 9-10, Sept. 5, 2007, Docket Entry No. 66; Def.'s Letter Br. on Aff. Defense of Insanity 1-2, Sept. 14, 2007, Docket Entry No. 76. The court denied both requests and issued its own instruction, defining "wrongfulness" as "unlawfulness." See Part II, infra, for reasons. No objection was taken to the court's formulation.
C. Trial
At trial, defendant's receipt and possession of the pornographic images and the fact that the images depicted minors engaging in sexually explicit conduct were not disputed.
To satisfy the IDRA, Polizzi had the burden of proving by "clear and convincing" evidence that he was legally insane when the offenses occurred in that he: 1) had a "severe mental disease or defect" at the time he downloaded the images over a period of some five years; and 2) as a result he had been "unable"to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17. The statute reads in pertinent part as follows:
It is an affirmative defense to a prosecution under any Federal Statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of [273] his acts. Mental disease or defect does not otherwise constitute a defense.
Id.
Focusing on Polizzi's childhood sexual abuse, the defense emphasized its lasting psychological effects as manifested in his post-traumatic stress and obsessive-compulsive disorders. See Dr. Goldsmith's Addendum: Psych. Rep. 1, Jan. 2, 2007 ("[W]hen viewing child pornography on the Internet [Polizzi] had a retraumatizing experience. In a regressed and obsessive state he downloaded and searched child pornographic images for evidence of victimization, something he had experienced as a child."). According to defense counsel,
Mr. Polizzi was doing what he believed to be right. He could not appreciate that downloading pictures of the children was wrong. What is wrong, what Mr. Polizzi knows is wrong ... is child abuse.... Mr. Polizzi, in a wrong way maybe, but in his way because of his psychological trauma, is trying to figure out a way to stop child abuse.
Trial Tr. 1368; see id. at 782. Polizzi attempted to prove legal insanity through his own and expert testimony. The government rebutted defense contentions with its own expert who found no mental disease or defect. See Part II.B.6 of Polizzi, ___ F.Supp.2d ___.
D. Jury Verdict
The jury found Polizzi guilty on all counts. During jury deliberations, it was evident from its questions that it rather quickly decided the issue of guilt. Determining whether Polizzi had carried his burden of proving legal insanity took the jury several days during which jurors reviewed the exhibits concerning Polizzi's mental condition. Trial Tr. 1439.
The jury ultimately rejected" Polizzi's defense of legal insanity. It was justified in doing so. Despite defendant's mental problems, a jury could find that he was able to appreciate the nature and quality and the wrongfulness of his acts (i.e., the downloading and possessing images of child pornography). See 18 U.S.C. § 17. At the time he obtained and viewed the images, Polizzi testified, he believed he was not violating the law or morality. Once he was told his actions were illegal, he understood they were wrong. See Trial Tr. 1047, 1105 ("Now I know it's wrong, but back then I didn't — I didn't know it was wrong"); id. at 667 ("When we [the police] explained the circumstances to him of what possessing child pornography was, what it actually meant, he was remorseful. He understood that it isn't just possessing pictures, we spoke to him about that. It wasn't just having these images and looking at them that, it was damaging children and he became remorseful.").
E. Post-Verdict Proceedings
After the jury was discharged, some members of the jury supported a sentence providing for mental health treatment rather than imprisonment. See id. at 1454-59. They wanted treatment and close supervision to prevent a recurrence, not the mandatory minimum term of no less than five years' incarceration.
II. Legal Insanity Defense
A. Federal Insanity Defense Reform Act
As noted above, the insanity defense incorporated by Congress in the IDRA provides that it is "an affirmative defense" that "the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C. § 17(a). The defendant has the burden of [274] proof "by clear and convincing evidence." 18 U.S.C. § 17(b).
The IDRA does not define "wrongfulness." M'Naghten's Case, 8 Eng. Rep. 718 (1843), upon which the IDRA is based, specifically "used the term `wrong' instead of `illegal' to prevent confound[ing] the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction." Ewing, 494 F.3d at 619 (quoting M'Naghten, 8 Eng. Rep. at 723). Since the enactment of the IDRA, only three published opinions have directly addressed the definition of wrongfulness under the IDRA. See id.; United States v. Dubray, 854 F.2d 1099 (8th Cir.1988); United States v. Danser, 110 F.Supp.2d 807 (S.D.Ind.1999).
The Ewing court provided a matrix of alternative possible interpretations:
In the context of the insanity defense, courts and scholars have generally proposed three alternative definitions for the term: (1) legal wrongfulness, as in "contrary to law"; (2) moral wrongfulness, as in "contrary to public morality," determined objectively by reference to society's condemnation of the act as morally wrong; or (3) moral wrongfulness, as in "contrary to personal morality," determined subjectively by reference to the defendant's belief that his action was morally justified (even if he appreciated that it was illegal or contrary to public morality).
Ewing, 494 F.3d at 616.
Following this schema, the government's proposed jury charge in the instant case requested both definitions (1) and (2); defendant's proposed pattern jury charge left open the specific definition of wrongfulness; and the court's actual jury charge endorsed the first definition only, legal wrongfulness. See Ct.'s Jury Charge 18 ("`Wrongfulness' means in this case `unlawfulness.'"). Somewhat ambiguous, the proposed government charge could have been construed as requiring proof of both forms of wrongfulness.
B. Government's Proposed Insanity Charge
The government's complete proposed jury instruction on the affirmative defense of insanity under the IDRA was as follows:
AFFIRMATIVE DEFENSE — INSANITY
The defendant claims to have been insane at the time that the crimes charged in the indictment were allegedly committed. Since the law does not hold a person criminally accountable for his or her conduct while insane, insanity is a defense to the crime charged. The sanity of the defendant at the time of the alleged offenses is, therefore, a question which you must decide.
To be found to be insane, the defendant must prove by clear and convincing evidence that:
First: He had a severe mental disease or defect at the time that the acts constituting the crime charged were committed, and
Second: As a result of this severe mental disease or defect, he was not able to appreciate the nature and quality or wrongfulness of his acts. In other words, he was unable to understand what he was doing or to understand what he was doing was wrong.
The term "wrongfulness" as used in these instructions means contrary to public morality, as well as contrary to law.
However, evidence that the defendant knew his conduct was contrary to law may be considered by you in determining [275] whether the defendant appreciated that his conduct was contrary to public morality.
The defendant must prove his insanity at the time of the offense by clear and convincing evidence, that is, the defendant must show that it is highly probable that he was insane at that time.
In making your decision, you may consider evidence of the mental condition of the defendant before or after the crime charged and you may consider not only, the statements and opinions of any experts who have testified, but also all of the other evidence received in the case.
If you find that the defendant committed the acts described in the essential elements of the crimes charged, but that the defendant was legally insane at the time that the acts were committed, you must find the defendant "not guilty only by reason of insanity."
Applying all of the other instructions given to you, you may also find the defendant "guilty" or "not guilty."
Even though the defendant has raised the issue of insanity, the government still has the burden of proving all of the essential elements of the offenses charged beyond a reasonable doubt. [Adapted from 1A Kevin F. O'Malley, et al., Federal Jury Practice and Instructions § 19.03 (5th ed. 2007); 18 U.S.C. § 17; Ewing, 494 F.3d 607.]
Govt's Req. to Charge 30 (emphasis added). In Ewing, the Court of Appeals for the Seventh Circuit upheld a virtually identical instruction. 494 F.3d at 613 (approving of a "contrary to public morality, as well as contrary to law" charge).
C. Defendant's Proposed Insanity Charge
The defense's proposed insanity charge, based on 1 Sand, supra, § 8.09, did not include any definition of "wrongfulness" but applied the IDRA's test:
AFFIRMATIVE DEFENSE — SEVERE MENTAL DISEASE OR DEFECT
You have heard evidence tending to show that the defendant was insane at the time that the crime was committed. Specifically, I am referring to the testimony of Dr. Eric Goldsmith. The Government has offered evidence in rebuttal tending to show that the defendant was sane. Specifically, I am referring to the testimony of Dr. N.G. Berrill. The burden of proof is on the defendant to prove by clear and convincing evidence that he was insane at the time of the acts.
The acts in this case, is as described by the Government, that the defendant downloaded onto his computer the material described in the indictment. The Government says that the unlawful conduct is the receipt and possession of the downloaded material.
The defense on the other hand says that the defendant due to a severe mental disease or defect at the time of the commission of the acts constituting the offense was unable to appreciate the nature and quality or the wrongfulness of his acts, that is the downloading of the material.
Under the law, a defendant is not guilty if he was insane when the crime was committed. The law defines insanity to mean that a person is not criminally responsible for criminal conduct if, at the time of such conduct, as a result of a severe mental disease or defect, he was unable to appreciate the nature and the quality or wrongfulness of his acts.
When I speak about a mental defect, I do not refer to any particular medical [276] term, even though the opposing doctors did make reference to medical terms.
It is for you to determine whether the defendant is suffering from a mental disease or defect not the doctors.
If you unanimously agree that the defendant has proven the affirmative defense of insanity by clear and convincing evidence, then you must find the defendant not guilty by reason of mental disease or defect. If you unanimously agree that the government has proven each element of the offense beyond a reasonable doubt and you unanimously agree that the defendant has not proven this defense of insanity by clear and convincing evidence then you must find the defendant guilty. If you cannot agree unanimously on whether the defendant has established the affirmative defense of insanity, then you cannot return any verdict. [See 1 Sand, supra, § 8.09.]
Def.'s Req. to Charge 9-10 (emphasis added).
By emphasizing that the acts involved — the acts which defendant claimed "as a result of a severe mental disease or defect, he was unable to appreciate the[ir] nature and the quality or wrongfulness" — were the passive downloading onto his computer of the images involved, Polizzi reminded the jury that his offense was not a typical violent act. See Def.'s Letter Br. on Aff. Defense of Insanity 2.
D. Insanity Charge Given by the Court
There was no need in the present case to explore with the jury the difference between moral and legal wrongfulness. See Dubray, 854 F.2d at 1101 ("The jury should be instructed on the distinction between moral and legal wrongfulness ... only where the evidence at trial suggests that this is a meaningful distinction in the circumstances of the case."). The child pornography pictures — both still and moving — were so hideously inappropriate that they were recognized by all participants in the trial, including defendant and the jury, as morally wrong and appropriately characterized as legally wrong. In context, "wrongfulness" and "unlawfulness" were congruent insofar as the receipt and possession of child pornography was criminal.
The term "appreciate" rather than "know" was used and defined. This approach is based on the IDRA itself as well as the well-conceived American Law Institute's Model Penal Code., See Model Penal Code § 4.01 (1985) ("lacks substantial capacity... to appreciate the criminality [wrongfulness] of his conduct") (original brackets).
"Substantial" rather than "total" lack of capacity was charged. Although "substantial" is in the Model Code, see id., it is not a term used in the statute. But absolutes are almost impossible to prove when dealing with the subtle and complex operations of the human mind. The word "substantial" gives play to the heavy — but far less than one hundred percent probability — burden placed upon defendant. See In re Winship, 397 U.S. 358, 367-68, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (probabilities of truth in various burdens of proof); NAACP v. AcuSport, Inc., 271 F.Supp.2d 435, 478-80 (E.D.N.Y.2003) (collecting cases and discussing the hierarchy of proof among the beyond a reasonable doubt, clear and convincing, and preponderance of evidence standards); United States v. Copeland, 369 F.Supp.2d 275, 333-34 (E.D.N.Y.2005) (recounting testimony describing differing burdens of proof).
1. Definition of "Wrongfulness"
The court's complete jury charge on the insanity defense was as follows:
[277] AFFIRMATIVE DEFENSE — LEGAL INSANITY
The defendant claims to have been legally insane at the time that the crimes charged in the indictment were allegedly committed. Because the law does not hold a person criminally responsible for his conduct while he is legally insane, legal insanity is a defense to the crime charged. You must decide whether the defendant was legally insane at the time of the alleged offense. [See 1A O'Malley, supra, § 19.03.]
That law that provides for the insanity defense is Section 17 of Title 18 of the United States Code. The statute reads as follows:
§ 17. Insanity defense
(a) Affirmative defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
1) When the statute says "at the time" of the commission of the acts constituting the offense, it means at or about the times charged in the indictment.
2) When the statute says "severe mental disease or defect," it means that the defendant's mental disease or defect must be quite serious.
The "disease" need not be one defined by medical terminology. It may be a medically defined disease or one you as laypersons would call a disease.
The defect need not be one defined by medical terminology. It may be a medically defined defect or one you as laypersons would call a defect.
Either "disease" or "defect" is enough to constitute a defense.
3) The statute says, "was unable to appreciate the nature and quality or the wrongfulness of his acts." Either inability to appreciate the nature and quality of his acts or the wrongfulness of his acts is enough to establish the defense.
"Wrongfulness" means in this context "unlawfulness." The definition becomes somewhat subtle because a defendant does not have to know an act is illegal to be guilty of doing the act which constitutes the crime as defined by law. The specific intents charged here are essentially to download and to possess. Thus, when the statute says "unable to appreciate" the "wrongfulness" of his acts, you are, in effect, being asked to determine, "If he were told that the act was illegal, would he be able to understand, i.e., "appreciate," that he would be breaking the law by downloading or by possessing? Ask yourselves, for example, could he understand and appreciate that what he was doing was unlawful?
When the statute says "unable to appreciate the nature and quality of his acts," you are, in effect, being asked to determine whether he was able to understand, i.e, "appreciate," that he was downloading or possessing the charged images. Ask yourselves, for example, could he understand and appreciate that he was doing the act of downloading or possessing?
4) The statute uses the word "appreciate" rather than "know." That conveys a broader requirement of a sense of understanding than mere cognition. [278] [See Am. Law Inst., Model Penal Code § 4.01 (1985).] Ask yourselves, for example, was he not only intellectually able to understand, but was he emotionally able to realize the nature and quality or wrongfulness of his acts? For example, a child may say something by rote, but not understand what the words implicate and mean; in such an instance, the child does not appreciate what is being said.
5) To be held not responsible because of legal insanity, the defendant must, as a result of a mental disease or defect, either lack substantial capacity to appreciate the wrongfulness of his conduct or lack substantial capacity to appreciate the nature and quality of his acts. The standard requires not a total lack of capacity, but a substantial lack of capacity. [See id.]
An individual's failure to appreciate the criminality of his conduct may consist in a lack of awareness of what he is doing or a failure to apprehend the significance of his actions in some deeper sense. [This is substantially the American Law Institute's Model Penal Code definition in § 4.01, with the elimination of the language, "to conform his conduct to the requirements of law," which is not in the federal statute.]
The defendant has the burden of proving insanity by "clear and convincing evidence." That is a high degree of proof. It is higher than "more probable than not," but not as high as "beyond a reasonable doubt."
Experts for either side are not permitted to give an opinion about or infer whether the defendant was or was not able to appreciate the nature or wrongfulness of his conduct. They may give an opinion as to whether the defendant did or did not have the defect or disease relied upon as a defense. That ultimate issue is for you alone.
To summarize the insanity defense:
You have heard evidence tending to show that the defendant was legally insane at the time that the crime was committed. The government has offered evidence tending to show that he was not legally insane. The burden of proof is on the defendant to prove by clear and convincing evidence that he was legally insane at the time of the offense.
Under the law, a defendant is not guilty if he was legally insane when the crime was committed. The law defines insanity to mean that a person is not responsible for criminal conduct if at the time of such conduct, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or wrongfulness of his acts. When the law speaks about a mental disease or defect, it does not refer to any particular medical term.
There are three possible verdicts in this case: not guilty, not guilty only by reason of insanity, or guilty.
Even though the defendant has raised the defense of insanity, the government still has the burden of proving all the elements of the offense beyond a reasonable doubt. [This recapitulation is essentially from 1 Sand, supra, § 8.09 (Instruction 8-10).]
Ct.'s Jury Charge 17-20 (emphasis added). When defining "knowingly" in another section of the charge, the court repeated that "[i]gnorance of the law is no excuse." Id. at 9.
2. Rationale
The problems of the relation of insanity to criminal culpability have long been daunting. See, e.g., United States v. Brawner, 471 F.2d 969, 1033 (D.C.Cir. [279] 1972) (adopting the Model Penal Code's test of "lack[ing] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law"); Durham v. United States, 214 F.2d 862 (D.C.Cir.1954) (defining legal insanity as where the defendant's conduct was "the product of a mental disease or defect"); M'Naghten, 8 Eng. Rep. 718; Model Penal Code § 4.01 (combining the M'Naghten test and "irresistible impulse" test). Professor Herbert Wechsler, who led the drafting of the American Law Institute's definition, as well as the legislatures and courts that modified the ALI's language were more troubled with this subject than any other in the Penal Code. See Modern Penal Code § 4.01 cmt. and app. A-C; note Dr. M.S. Guttmacher's objection in Appendices A and B.
a. A "Public Morality" Charge Would Be Prejudicial and Unnecessarily Vague
There is merit in the government's contention that appreciation of both law and community views of morality must be considered in applying the statute. But a difficulty with the government's suggested use of a "contrary to public morality" charge is that community views of what should be punishable as pornography vary greatly. See Part III.F of Polizzi, ___ F.Supp.2d ___. To explicitly introduce the issue of morality in a case such as this one, particularly were the jury's knowledge of the harsh probable sentence blocked, see id. at Part II.B.5.b, would be likely to confuse many jurors.
"[T]here is no provable `national standard' [of obscenity]" .... It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.
Miller v. California, 413 U.S. 15, 32-33, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (quoting Jacobellis v. Ohio, 378 U.S. 184, 200, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Warren, C.J., dissenting) (footnote and citations omitted)); see also Jacobellis, 378 U.S. at 197, 84 S.Ct. 1676 (Stewart, J., concurring) ("[F]aced with the task of trying to define what may be indefinable.... I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description .... But I know it when I see it") (footnotes omitted).
Injecting a "public morality" element into the instruction unnecessarily complicates the jury's job, possibly leading to more intrajury conflicts and mistrials. As Justice Douglas warned in Roth v. United States,
Any test that turns on what is offensive to the community's standards is too loose, too capricious, too destructive of freedom of expression to be squared with the First Amendment. Under that test, juries can censor, suppress, and punish what they don't like, provided the matter relates to "sexual impurity" or has a tendency "to excite lustful thoughts." This is community censorship in one of its worst forms.
354 U.S. 476, 512, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (Douglas, J., dissenting). But see Miller, 413 U.S. at 24, 93 S.Ct. 2607 (defining obscenity based on, in part, "whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest") (quotations omitted). Just as there is no one-size-fitsall public morality given our country's extraordinary heterogeneity, the imposition into the insanity defense of local interpretations [280] of public morality via a jury composed of a cross-section of the local community compounds the difficulties of reaching a consensus verdict.
Here the statutory definition is fairly precise, so that the court need not be concerned with varying views of what is immoral pornography. See 18 U.S.C. § 2252(a)(2) (prohibiting knowing receipt of "any visual depiction ... if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct"); 18 U.S.C. § 2252(a)(4)(B) (prohibiting knowing possession of same). There was no doubt that the charged images briefly shown at trial fell within the statutory law. Thus, a definition sticking closely to that in the statute defining the illegal acts, rather than adding the issue of general morality, was appropriate. The need for precision is particularly important in a case such as the present once, where the emotional animus of the community against the acts charged is great.
b. Ewing Is Distinguishable
Ewing, the case upon which the government primarily relies, is distinguishable. In contrast to Polizzi's case, Ewing's unusual facts did support a "contrary to public morality charge." There, the defense attempted to directly introduce the defense of moral justification by first proposing a non-pattern jury instruction focusing on the defendant's personal, subjective, morality. Ewing, 494 F.3d at 611-12. In response, the government suggested a charge defining wrongfulness as "contrary to public morality." The court "rejected the defendant's proposed instruction, concluding that it was an incorrect statement of law because it defined wrongfulness according to the defendant's personal standards of morality," but reserved judgment on the need for a wrongfulness instruction. Id. at 612.
At trial, evidence was introduced that Ewing, as a result of his paranoid schizophrenia conceded by the government, had attacked his victim, a judge, because he believed the judge to be part of a conspiracy to read his thoughts and steal his imagined twenty-five million dollar personal injury judgment. Only after the defendant's doctor testified that defendant had believed that his attack was morally justified did the court adopt the government's proposed charge. Id. at 612-13. The jury found Ewing guilty.
The Court of Appeals for the Seventh Circuit upheld the "contrary to public morality" instruction because the instruction "asked not whether the defendant believed he was justified based on his delusional view of reality, but whether society would judge his actions an appropriate response to his delusions." Id. at 619-20. Ewing's belief in the judge's participation in the mind-reading conspiracy against him — even if true — did not justify his knowingly throwing a Molotov cocktail into the courtroom. See id. at 619-20 (citing M'Naghten, 8 Eng. Rep. 718).
c. Polizzi Did Not Directly Introduce Moral Justification
Unlike the defendant in Ewing, Polizzi did not request a non-pattern jury instruction defining insanity in terms of his own subjective personal morality. Neither did he contend that he was morally justified in collecting child pornography, although that inference was arguably raised by his assertion that he had intended to turn his collection over to law enforcement to help the victimized children. The crux of his insanity claim lay in his assertion that seeing the images had retraumatized and reminded him of his own abuse; his PTSD, obsessive compulsiveness, and hoarding impulse caused him to begin collecting the images [281] as a way of "saving" the children by taking the images "off the Internet; and that he was searching for images of his uncle, his primary abuser, or of himself as a child. A "contrary to public morality charge" was irrelevant.
Regarding the government's objection that Polizzi would argue that he did not know child pornography was illegal in order to show he did not appreciate the legal wrongfulness of his actions, the court's instructions were sufficient. Although the jury was informed that "`[w]rongfulness' means in this context `unlawfulness,'" it was told that "a defendant does not have to know an act is illegal to be guilty of doing the act which constitutes the crime as defined by law;" rather, the question was, "`[i]f he were told that the act was illegal, would he be able to understand, i.e, `appreciate,' that he would be breaking the law by downloading or by possessing?'" Ct.'s Jury Charge 18. Emphasized was the rule that "[i]gnorance of the law is no excuse." Id. at 9.
Although Polizzi did testify that he did not know that child pornography was illegal, he told the jury he had been shocked to learn that such images existed on the Internet, believed they were wrong, and wished they were illegal. Trial Tr. 1047, 1105; see id. at 667. The jury could appropriately have concluded that Polizzi did appreciate the inherent wrongfulness of child pornography, and, once informed of the law, could appreciate that downloading it was illegal. It cannot be said that the defense was proved.
III. Conclusion
The proposed jury charges of the parties were properly rejected in favor of the charge given. There is no ground for a new trial on this ground. See Parts V-VI of Polizzi, ___ F.Supp.2d ___.
SO ORDERED.
7.2.8.5.2.3 IV.B.iii. Environmental Deprivation and Psychological Injury 7.2.8.5.2.3 IV.B.iii. Environmental Deprivation and Psychological Injury
If insanity and duress can excuse criminal behavior, why can’t social and economic distress affect culpability? The theory that environmental deprivation or a “rotten social background” should excuse criminal liability has been widely discussed. Some research indicates that growing up in impoverished, unstable, and violent environments can affect moral judgment—implicating the M’Naghten test—or other attributes such as self-control—perhaps implicating the irresistible impulse test. Nevertheless, the idea of an environmental deprivation excuse remains highly controversial, and there are many distinctions between insanity and environmental deprivation. As you read the following passages, consider both the similarities and the differences between environmental deprivation and the excuses we have studied. Remember, too, that criminal law is partly moral, and partly instrumental. What would be the practical effects of recognizing an environmental deprivation defense?
7.2.8.5.2.3.1. Richard Delgado - 'Rotten Social Background': Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?
7.2.8.5.2.3.2. Clarence Thomas, "Crime and Punishment—and Personal Responsibility," The National Times, August/September 1994, pp. 31-33.
7.2.8.5.2.3.3. Jeannie Suk - "Laws of Trauma"
7.2.8.5.2.3.4 Buck v. Bell 7.2.8.5.2.3.4 Buck v. Bell
v.
BELL, Superintendent of State Colony Epileptics and Feeble Minded.
Page 201
Mr. I. P. Whitehead, of Lynchburg, Va., for plaintiff in error.
[Argument of Counsel from pages 201-202 intentionally omitted]
Page 203
Mr. A. E. Strode, of Lynchburg, Va., for defendant in error.
[Argument of Counsel from pages 203-205 intentionally omitted]
Page 205
Mr. Justice HOLMES delivered the opinion of the Court.
This is a writ of error to review a judgment of the Supreme Court of Appeals of the State of Virginia, affirming a judgment of the Circuit Court of Amherst County, by which the defendant in error, the superintendent of the State Colony for Epileptics and Feeble Minded, was ordered to perform the operation of salpingectomy upon Carrie Buck, the plaintiff in error, for the purpose of making her sterile. 143 Va. 310, 130 S. E. 516. The case comes here upon the contention that the statute authorizing the judgment is void under the Fourteenth Amendment as denying to the plaintiff in error due process of law and the equal protection of the laws.
Carrie Buck is a feeble-minded white woman who was committed to the State Colony above mentioned in due form. She is the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court in the latter part of 1924. An Act of Virginia approved March 20, 1924 (Laws 1924, c. 394) recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, etc.; that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life; that the Commonwealth is supporting in various institutions many defective persons who if now discharged would become
Page 206
a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society; and that experience has shown that heredity plays an important part in the transmission of insanity, imbecility, etc. The statute then enacts that whenever the superintendent of certain institutions including the abovenamed State Colony shall be of opinion that it is for the best interest of the patients and of society that an inmate under his care should be sexually sterilized, he may have the operation performed upon any patient afflicted with hereditary forms of insanity, imbecility, etc., on complying with the very careful provisions by which the act protects the patients from possible abuse.
The superintendent first presents a petition to the special board of directors of his hospital or colony, stating the facts and the grounds for his opinion, verified by affidavit. Notice of the petition and of the time and place of the hearing in the institution is to be served upon the inmate, and also upon his guardian, and if there is no guardian the superintendent is to apply to the Circuit Court of the County to appoint one. If the inmate is a minor notice also is to be given to his parents, if any, with a copy of the petition. The board is to see to it that the inmate may attend the hearings if desired by him or his guardian. The evidence is all to be reduced to writing, and after the board has made its order for or against the operation, the superintendent, or the inmate, or his guardian, may appeal to the Circuit Court of the County. The Circuit Court may consider the record of the board and the evidence before it and such other admissible evidence as may be offered, and may affirm, revise, or reverse the order of the board and enter such order as it deems just. Finally any party may apply to the Supreme Court of Appeals, which, if it grants the appeal, is to hear the case upon the record of the trial
Page 207
in the Circuit Court and may enter such order as it thinks the Circuit Court should have entered. There can be no doubt that so far as procedure is concerned the rights of the patient are most carefully considered, and as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that in that respect the plaintiff in error has had due process at law.
The attack is not upon the procedure but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited and that Carrie Buck 'is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,' and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.
Page 208
But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similary situated so far and so fast as its means allow. Of course so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.
Judgment affirmed.
Mr. Justice BUTLER dissents.
7.2.8.5.2.3.5. COLUMN-Sometimes poor little rich kids really are poor little rich kids
7.2.8.5.2.3.6 People v Kobayashi 7.2.8.5.2.3.6 People v Kobayashi
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal, Second District,
Division 8.
The PEOPLE, Plaintiff and Respondent,
v.
Harvey KOBAYASHI, Defendant and Appellant.
No. B157685.
(Los Angeles County Super. Ct. No. NA049139).
March 26, 2003.
Affirmed.
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.
Attorneys and Law Firms
Thomas T. Ono, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jamie L. Fuster, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
COOPER, P.J.
*1 Following a jury trial, Harvey Kobayashi was convicted of the second degree murder of Sheila Ann Randle, a woman he met through a telephone dating service. He admits stabbing her to death with her eight-year-old son in the apartment, cleaning the bloody scene, and then burning her body after moving it to his family’s farm in Dinuba. Appellant proffered principally a defense of imperfect self-defense, i.e., the victim made threats to kill him and his parents after he could or would not continue making payments to her or buy her a house; instructions on heat of passion and provocation were also given. The trial court excluded testimony of appellant’s expert witness, a psychologist, and gave or failed to give instructions appellant now contests. Sentenced to 16 years to life in prison, appellant appeals the judgment of conviction.1 We shall affirm the judgment.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Appellant stabbed the victim to death with a buck knife on April 7, 2001. She was on the bed in her bedroom, where appellant had spent the previous night, in the apartment provided to her by appellant. Injuring his own left hand in the attack, appellant took the victim’s son with him to a hospital where he was treated and then dropped the boy off at the home of the boy’s grandmother, the victim’s mother.2 Appellant stopped to get boxes and cleaned up the master bedroom; he spent the night at a motel in Torrance. The next morning appellant rented storage space in Torrance for the bloody mattress and other incriminating items and paid someone to help him move the victim’s body, encased in boxes and bed linens, so that he could take it to his parents’ home and burn her remains beyond recognition. The body was identified from her dental records. Appellant’s and the victim’s blood were found in the apartment and on the items stored by appellant.
Contacted by the victim’s mother and friend as well as by the police when she was found to be missing, appellant denied knowing what had happened to her, gave a phony story about wanting to buy her a new mattress, and falsely declared she was alive when he went to the hospital. Officers who investigated a week after the homicide found spots of blood in the apartment and bleached areas in the carpet padding. The victim’s purse and jewelry were missing; her mother saw that the victim’s underwear was also gone.
When the police arrived at the family farm on May 17, appellant in a two-hour conversation initially denied any involvement and lied about his relationship with Sheila Randle, claiming to be her mentor. After being told the detectives did not believe him and that he was under arrest, appellant asked them not to tell his mother.3
Within hours appellant confessed to the homicide. The tale he told the detectives at the station, essentially the same as his testimony at trial and consistent with the testimony of the victim’s best friend and documentary evidence of monies paid to the victim by appellant, attempted to explain why he killed her.4 As defense counsel noted, the issue for the jury was not “what” happened, but “why.” Appellant’s state of mind was the key to the defense, which sought a conviction of manslaughter instead of murder.5
*2 Appellant’s relationship with the victim was complicated. He first contacted her in about June 1999 and began to know her on the telephone as “Frankie,” a woman on a date phone line. There was a lot of talk about sex, which he liked, and he wanted to meet Frankie .6 Within a short time, Frankie began asking appellant for increasing amounts of money. Appellant provided the money but never met Frankie; instead, the funds were given to Ebony, who pretended to be Frankie’s good friend but was really the same woman as Frankie and as the victim, Sheila Randle. Soon, Frankie’s requests escalated from babysitting money, to rental cars, leasing a Honda and then a Monte Carlo, clothes, expensive jewelry, alleged medical expenses,7 and thousands of dollars in loans or gifts.8 However, it was “Ebony” who received much of this money, went to lease the Honda in November 1999, and was then in the middle of these transactions.9
Appellant’s financial circumstances became worse and worse. He filed for bankruptcy in November or December 1999 but continued his financing of Frankie’s wishes. In February 2000, he moved back to Dinuba to take care of his elderly parents and thought he could get rid of the stress from Frankie and Ebony by moving out of the area. Thinking Frankie could not trace him, appellant had the Honda repossessed. “Ebony” called him in Dinuba and said the car was stolen; when she figured out he had it taken, appellant testified she said “he’d better get the fucking car or they are going to come and kill his mother and father.”10 Appellant then returned the car to Ebony.
At one point, according to appellant, a Black female (but not Ebony) called and said Frankie had committed suicide because appellant left without letting her know where he was going. Ebony called later that night and said Frankie, whom he still believe existed, had attempted to commit suicide and tried to get him to pay for the funeral expenses. According to appellant, Frankie was threatening to kill his mother and father so he paid her thousands for alleged medical bills.
In July 2000, he went with Sheila to trade the Honda for a Monte Carlo; appellant borrowed $8000 from his mother and a friend. He testified he felt he had “no choice” but to make the payments; Frankie/Sheila was threatening to hurt his mother and father, saying she would make appellant watch as her friends shot his parents.
In November 2000, appellant testified he was scared by Frankie’s threats and called the Tulare County Sheriff, told of very vague threats, and asked for someone to drive by. A tape of that call was played for the jury. He made no other calls to law enforcement.
The demands became more pressing. They had looked at homes in Palmdale. He did not want to buy a place for Sheila and Frankie in Palmdale, but he did not want to make a scene. He also did not and could not buy the expensive house the victim wanted him to buy her in Carson shortly before her death.
*3 Although the point when he realized that all three women were the same is in dispute, even appellant admits suspecting that reality and knowing it by January 2001, when Sheila purportedly told him.11 Appellant signed rental papers for an apartment in Long Beach for Sheila Randle and himself in February 2001. There is evidence he visited her on weekends.
According to the apartment manager, appellant was at the apartment roughly every other weekend. The victim’s mother testified he slept on the sofa on one visit and in Sheila’s bed at the mother’s house once before Sheila moved to the Long Beach apartment. Appellant vehemently denied any type of sexual or romantic relationship with Sheila or discussions about having a baby with her.12 He admitted initial romantic thoughts about Frankie but testified her threats and anger changed that.
Danella Wright, the victim’s friend who lived in Palmdale, met appellant on several occasions, including a visit to Palmdale for appellant and Sheila to look at a home to buy or an apartment for Sheila and her son to rent. She saw no stress in the relationship, and appellant and Sheila seemed friendly to each other. At one point in 2000, Sheila told her that Harvey was buying her a town home but later reported that he could not get it in his name so he was going to try to get it for her in a friend’s name. Near the holidays in 2000, Sheila showed her friend a ring that looked like an engagement ring and said appellant gave it to her; asked if she was going to marry him, Sheila replied “I’m not sure.” On another visit, in 2001, appellant drove the two women and a friend to shop in Chinatown. Ms. Wright later helped Sheila decorate her new apartment in Long Beach; she used an Asian theme in the living room, just as Ms. Wright had in her own house. Sheila later bought a Buddha for the living room table.
Sheila was about 5′2″ to 5′4″ and between 160 and 198 pounds. Danella Wright described her friend as “Wild. Fast, a lot of life to her” and very vocal. Her mother described Sheila as an outspoken individual, a talker, who completed 11th grade and was 28 years old when she died. Makeba Fielding, her best friend, told detectives that Sheila was quite a mouthpiece, a loud person, could get physical very easily and could be easily provoked.
Appellant testified that he came to Long Beach at Sheila’s demand on the night of April 6. She threatened to kill his mother if he did not come down from Dinuba.13 They shared a bed that night, at her insistence; appellant denies any romantic touching. On the morning of her death, Sheila got upset and said he should buy her the $340,000 “fucking” house even if he had to force his mother to sell the ranch or if she had to dig up his father, who had died in October 2000, out of the grave. She swore at him and asked where the $8000 was.
Appellant’s version of the killing is that he went to the kitchen drawer, saw the knife, and took it for his own protection, thinking Sheila had talked about a gun before and he did not know if one was in the house. Hiding the knife behind him, he returned to the master bedroom and listened to her yell about the house, the $8000, and her threats to send friends to his mother’s house to make him watch while they killed his mother and then killed him. She allegedly then said “you better fucking do it” and “I’m going to kill you.” When she came towards him with a fist, he displayed the knife and without warning stuck her in the chest. They struggled and he stabbed her three to five times.14 He testified he had no intention to kill her the night before, the morning when he woke up, or even when he went to the kitchen to get the knife. Rather, he was “freaking out” and in a daze and panic. He covered her up, and her son Michael saw her from the bedroom doorway before they left for the hospital.
*4 Old friends from Dinuba testified as to appellant’s reputation for honesty and nonviolence.
Defense psychologist
The defense wished to present testimony by psychologist Adrienne Davis, an assistant clinical professor in the Department of Psychology at the University of Southern California who had examined appellant and prepared an 8-page report. The People moved to limit the testimony of the defense psychologist and exclude hearsay statements. The report was used as the defense offer of proof. Defense counsel described imperfect self-defense as the primary issue in the case and argued appellant’s state of mind was critical to that defense. The prosecutor argued that the report did not contain what the Penal Code allows as a defense. The trial court initially deferred ruling until hearing appellant’s testimony and stated it would review authority on cultural defenses.
During the defense phase of trial, appellant’s counsel stated he told Dr. Davis to stay home based on the court’s tentative ruling. He submitted her report, and the court found Penal Code sections 25 and 29 excluded the testimony and the court could not “see admissible testimony insofar as the psychiatric opinion from the report. If you don’t have anything to add to her report, that would be the court’s ruling.”15 Dr. Davis was not called by the defense, which urges on appeal that the exclusion of her testimony was reversible error.
The report, dated February 1, 2002, states that Dr. Davis met with appellant several times to interview him, collect personal history information and administer several psychological tests. The report summarized the crime, including appellant’s statement to the police that “he became increasingly fearful of the victim who he reports threatened him and his mother with death if he did not comply with her wishes for continuing financial support. Mr. Kobayashi reported that eventually her demands and his refusals led to a violent argument during which he stabbed her, after which he took her remains to his mother’s home in central California and burned them.” She set forth appellant’s family history, including that he is a 46-year-old “second-generation Japanese man” who never married and has no children. He was raised by his parents in the Central California town of Dinuba. His two brothers were at least 15 years older than appellant and by the time he reached his teenage years they had each started their own families. His parents “were ‘from the old school’ in terms [of] values, discipline, the importance of working hard, independence, academic achievement and commitment to family.”
Appellant was shy and reserved and did not date in high school. His parents were active in church, and he was involved in the Young Buddhist Association. He completed high school in 1973, went to community college, and then graduated from Cal State Long Beach. He worked for UPS and eventually for Hughes Aircraft, Magnavox, Rockwell, and TRW. He was an avid bass fisherman and spent more time developing his fishing hobby than pursuing relationships. However, he was “curious” about on-line relationships and contacted the victim, leading her taking thousands of dollars from him while representing herself as someone else. The report continued: “When asked why he continued to given even when he felt he was being exploited, he reported that she was so demanding, and he felt sorry for her and wanted to help her out even at his own expense. When he finally could not longer meet her demands, he tried to extricate himself from the relationship but to no avail.” According to the report, he became increasingly afraid and feared the worst. When his bankruptcy, moving away, and repossession of the car did not stop the demands as he had hoped, her demands became even more intense. From his report “he found himself in a situation for which he had no frame of reference, no experience and no solution, and about which he felt vulnerable, fearful and embarrassed.”
*5 Dr. Davis reported on her observations of appellant and his test results. His one significant elevation in a certain subscale was for “over-controlled hostility,” a scale used “in the late 1960s to define and describe a group of inmates who had [no] prior history of violence, in fact, were model citizens until one day they erupted into uncontrollable violence that everyone who knew them argued was ‘out of character.’ “
Another clinical scale that was significantly elevated was one for compulsiveness. According to the report, such individuals “exhibit an unusual adherence to social conventions,” deny any internal conflict and tend to be hard working and conscientious.
Dr. Davis opined: “These results seem to describe [appellant] quite well. Certainly there are cultural issues that contribute to his personality development including a tendency to over-value emotional control, strong work ethic, deference to authority, denial of needs, the experience of shame when one is unable to meet the expectations of others and violates one’s own personal standards. The combination of these factors contributed to [his] mental state at the time of this offense. He was angry, overwhelmed, confused and without appropriate outlets for managing this situation.” (Italics added.)
Dr. Davis’s summary and discussion again set forth his lack of relationships with women and his family background in a “strict, conservative, traditional Asian family with hard-working parents who set a positive example for their three sons.” (Italics added.) She opined that because of his inadequacy in relationships “and equally strong sense of loyalty, trust and generosity, [he] was vulnerable to the potential exploits of anyone with more street smarts than himself, who would recognize his vulnerability and his gullibility and take full advantage. The fact that the victim could pose as another person over many, many months and continue to get money from him when he had yet to meet her is a testament to his naiveté, his desperate need to be needed, strong denial mechanisms, his inexperience and failure to recognize and appreciate the pathology and danger in this relationship early on.”
Moreover, “It is not at all surprising that [appellant] could not bring himself to contact police when the victim began to threaten him. His feelings of shame and embarrassment about the entire situation far outweighed any rational thinking and thereby further isolated him from those who may have been able to assist him. Just as salient were underling feelings of frustration and outrage, feelings for which he had no appropriate outlet. [He] was quite simply, overwhelmed. He was isolated, alone and frightened, left to cope with a novel escalating situations that had become wildly out of control. The dynamics of [his] personality, which are influenced by Asian culture, dictate a certain amount of emotional suppression, self-sacrifice and self-blame.” (Italics added.)
*6 Dr. Davis concluded: “Up until the time of this offense, [appellant] was a law-abiding, productive citizen with a responsible job, who found peace, satisfaction and fulfillment through competitive bass-fishing. He was a devoted son who had recently lost his father. However, having a successful relationship with a woman continued to elude him and his inept efforts to resolve this area of his life led to a tragic ending.”
Arguments to the jury
The People urged the jury to return a verdict of first degree murder. Arguing that appellant was fed up with being played like a yo yo for two years, appellant brought the buck knife from fishing, not from the victim’s kitchen drawer, and intended to kill her that weekend. At the very least, he hid the knife behind his back and stabbed her, probably when she was asleep in bed, in conscious disregard for her life, for second degree murder. The prosecutor also explained voluntary manslaughter, a killing without malice aforethought but upon a sudden quarrel, heat of passion, or conscious disregard for human life. He told the jury that there is an objective test for heat of passion/provocation and that appellant is not permitted to set up his own standard of conduct and justify or excuse himself because his passions were aroused. Neither, argued the prosecutor, can appellant create his own provocation.
Contending that appellant was trying to use physical evidence to contrive a lesser offense of voluntary manslaughter, he urged the jury to see appellant as someone whose lust took him off base. The prosecutor referred to appellant’s attendance at the pornographic convention and argued Sheila Randle was his fantasy girl: it was fine “[a]s long as he was getting what he wanted” but if “she didn’t put out, or ... it wasn’t the right kind or enough[,][s]he’s dead.”16 The prosecutor cited many alternatives short of killing Sheila in her bed when she was not looking that were available to appellant but were not taken.
The defense acknowledged the “pretty absurd” story but emphasized it was true, was “too stupid to make up,” and matched the tale told by the victim’s best friend. The defense asked for a verdict of manslaughter, emphasizing the all-enveloping and all-engrossing fear that had built up for almost two years, appellant’s actual fear of Sheila Randle, a woman who realized she had herself a pigeon and was “picking the wings off of a fly.”
Apparently utilizing the information in Dr. Davis’s report without mentioning the source, defense counsel argued: “Everything he does along the way here is consistent. It’s consistent with a personality that is experiencing shame and guilt. It is consistent with a personality that has difficulty dealing directly with problems.” Moreover, appellant “is a man who, in that sort of Buddhist way is concerned about harmony and interpersonal relationship. This harmony (sic ) doesn’t fit. Cognitive disdain doesn’t make any sense to him. He has no way of dealing with it. He can feel fear but he can’t confront anger and he never does. We have no report of him ever getting angry.” Addressing his relationship with the victim, she “doesn’t fit anything he knows or anything he was trained for. She doesn’t fit how he was brought up in a Japanese-American farm family.”
*7 The victim, a convicted felon, was portrayed as an evil person who pushed and pushed, threatened his mother, and told appellant Frankie had died. He was trying to get out of this horrible situation by moving back to Dinuba, but he could not escape her. Socially isolated, his whole life was “wrapped up in that completely dysfunctional relationship that started out thinking that he was going to be saved by a voice mailbox and he is completely enveloped in shame and embarrassment.” The defense argued the case is “not about sex” but about a person who killed in the actual but unreasonable belief in the necessity to defend against imminent peril. Defense counsel briefly mentioned the alternative of heat of passion/provocation.
Before reaching its verdict, the jury asked for a readback of “Harvey’s testimony about what happened the morning of April 7th from the point of waking up to when Harvey & Michael left to go to the emergency [room] the first time.” The entire deliberation took a day and a half.
CONTENTIONS ON APPEAL
Appellant contends: 1. The trial court’s exclusion of the proffered cultural evidence by the defense expert deprived appellant of his constitutional rights to due process and to a jury trial. 2. Multiple jury instruction errors compel a reversal of the judgment: a. The trial court had a sua sponte duty to modify CALJIC No. 8.42 to instruct that the jury should consider cultural evidence in determining the sufficiency of the provocation. b. There is an equal protection and due process right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter. c. The error in giving CALJIC No. 8.51 was compounded by the trial court’s extemporaneous comments which where tantamount to a directed verdict against a manslaughter finding. d. Cumulative prejudice from the multiple instructional errors constitutes reversible error. 3. Because the trial court abused its discretion in admitting the photograph depicting appellant at the adult entertainment convention, appellant’s constitutional rights to a fair trial and to due process were violated, compelling a reversal of the judgment.
Respondent contends that the award of 157 days of presentence custody credits was erroneous. Appellant counters that the issue is moot in that the Department of Corrections has brought the issue to the trial court’s attention. (People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109.) Having received no contrary information from respondent, we do not address that issue. In addition, at oral argument, appellant’s counsel provided a minute order of May 31, 2002, demonstrating the trial court’s correction of the credits. We therefore do not address that issue.
DISCUSSION
1. Dr. Davis’s report and appellant’s testimony do not support the cultural defense appellant posits on appeal.
Appellant wanted to use the expert’s report in order to negate malice and have his crime reduced to voluntary manslaughter (People v. Blakeley (2000) 23 Cal.4th 82, 88, 96 Cal.Rptr.2d 451, 999 P.2d 675) and on appeal claims its exclusion deprived him of his constitutional rights to due process and to a jury trial. He recognizes that evaluation of heat of passion or provocation is dependent on the reaction of the hypothetical “reasonable person of average disposition” and cites cases stating that the jurors must place themselves in the shoes of the defendant and then judge whether his conduct was reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1086, 56 Cal.Rptr.2d 142, 921 P.2d 1 [expert testimony that defendant was suffering from battered women’s syndrome admissible in murder prosecution both on question of whether defendant actually believed that it was necessary to kill in self-defense and on the reasonableness of her belief]; People v. Minifie (1996) 13 Cal.4th 1055, 1065, 56 Cal.Rptr.2d 133, 920 P.2d 1337.) He argues that the jurors, in placing themselves in “like circumstances,” are able to consider the physical, mental, and cultural characteristics of the defendant.
*8 Appellant analogizes his predicament to the defense of battered women’s syndrome, arguing: “It is understandable that a Japanese man may react violently to the latest in a series of threats over two years after hiding the festering shame and embarrassment of having cause his own desperate predicament. A predicament initiated by his loneliness and resulting in further anomie when bullied and extorted by death threats to himself and to his parents. For in Japanese culture, intense shame attaches to males who lack emotional control, who are unable to meet the expectations of others, and who violate their personal standards. (Davis Report, pp. 7-8.) Certainly, appellant’s cultural standards for filial piety were repeatedly trashed by Sheila Randle’s orders to borrow money from his elderly mother, to give her a share of his father’s funeral proceeds, to sell the farm from under his mother, and even to dig his father up from his grave if that [is] what it took to get her a house.” Moreover, “[h]ere, there was evidence that appellant had experienced a series of events over two-year period which culminated in the heated argument where Sheila threatened to make him watch as her friends killed his mother and then threatened to kill him as she charged at him with her fist even after he brandished the knife.” Thus, “[t]he expert testimony concerning Japanese culture was relevant to explain the significance of these events on appellant’s state of mind, and to show how Sheila’s verbal threats and physical assault could have constituted ‘sufficient provocation’ to cause appellant to kill her in a ‘heat of passion’ or how he acted in an unreasonable, but good faith, belief to act in self-defense.” Furthermore, he contends that that theory “could not be fully understood by the jury without reference to the expert testimony explaining the cultural evidence factors affecting appellant’s state of mind.”
[1] Appellant’s argument on appeal reads more into both the Davis report and the arguments for its admissibility at trial than is supported by the record. The argument below focused on appellant’s effort to demonstrate his actual, if perhaps objectively unreasonable, belief that “he had no option but to do what he did at the time it happened.” In arguing the admissibility of Dr. Davis’s testimony, trial counsel clearly focused on imperfect self-defense and not provocation or heat of passion.17 (See In re Christian S. (1994) 7 Cal.4th 768, 30 Cal.Rptr.2d 33, 872 P.2d 574 [imperfect self-defense survives the abolition of diminished capacity defense].) The argument now made, that “like circumstances” for provocation/heat of passion must consider one’s cultural background, was not articulated in the trial court.
Our reading of Dr. Davis’s report, which was the sole offer of proof to the trial court, is that she mentioned appellant’s family background and Japanese culture, found his personality was decisive in his actions, but only vaguely tied his personality characteristics to his cultural background, e.g., “The dynamics of Mr. Kobayashi’s personality, which are influenced by Asian culture, dictate a certain amount of emotional suppression, self-sacrifice and self-blame.” Neither the report nor appellant’s own testimony adequately related his cultural background to evidence that would be admissible as to his state of mind. Furthermore, defense counsel was allowed to argue appellant’s personality traits, in evidence through appellant’s own testimony and reports of his conduct from others, in urging the jury to find imperfect self-defense.18
*9 Thus, on the record before us, the trial court did not err in excluding Dr. Davis’s testimony as it was presented in the offer of proof. We need not and do not decide if a different offer of proof with a more thorough analysis of a defendant’s cultural background and beliefs, tied in with a defendant’s testimony that would support the expert’s opinion, would compel admission of such expert testimony. In addition, we cannot conclude that a result more favorable to appellant would have resulted from any cumulative evidence in Dr. Davis’s report.
2. There was no prejudicial instructional error.
Appellant claims that the trial court erred by failing to modify CALJIC No. 8.42 and by giving CALJIC No. 8.51. He argues that the “prejudice flowing from these instructional errors, separately and cumulatively, compels reversal of the judgment....”
a. The trial court did not have a sua sponte duty to modify CALJIC No. 8.42 to instruct that the jury should consider cultural evidence in determining the sufficiency of the provocation.
[2] The trial court instructed the jury in terms of CALJIC No. 8.42, the standard instruction on regarding sudden quarrel or heat of passion and provocation. Appellant contends that such an instruction is “insufficient standing alone to inform the jury that it should evaluate the sufficiency of provocation from the standpoint of a reasonable person in terms of defendant’s position as a Japanese American;” that there “was a reasonable possibility that the jurors could have interpreted CALJIC No. 8.42 to preclude consideration of the sufficiency of provocation from the defendant’s perspective;” and the court prejudicially erred in failing to give a sua sponte instruction on the relevancy of cultural evidence to the reasonable person standard.19
The instructions given were correct. Appellant was allowed to present fully his defenses, with a complete rendition of his own state of mind due to the victim’s escalating demands and threats and his reaction to her. (See People v. Minifie (1996) 13 Cal.4th 1055, 1065-1068, 56 Cal.Rptr.2d 133, 920 P.2d 1337.) If the instructions were confusing, appellant must request clarification. “Because defendant did not request clarification of the otherwise adequate instructions below, he may not complain here. (E.g., People v. Sanders [ (1995) ] 11 Cal.4th [475,] 533, 46 Cal.Rptr.2d 751, 905 P.2d 420.)” (People v. Alvarez (1996) 14 Cal.4th 155, 223, 58 Cal.Rptr.2d 385, 926 P.2d 365, fn. omitted; see also People v. Saille (1991) 54 Cal.3d 1103, 1117, 2 Cal.Rptr.2d 364, 820 P.2d 588 [pinpoint instructions need be given only on request, not sua sponte].) We need not and do not reach the issue of whether appellant’s proposed instruction, provided for the first time on appeal, is either an accurate statement of law or supported by the record in the case at bench.
b. Given the record before this court, we decline to reach the issue of whether there is an equal protection and due process right to a culturally specific evaluation of the element of provocation as it relates to the crime of manslaughter.
*10 [3] Appellant argues that “Equal treatment of ethnic minority defendants requires that if certain provocative acts are sufficiently offensive in mainstream American culture to reduce murder to manslaughter [citations], then certain acts that are equally provocative in appellant’s culture should be treated as equally mitigating.” He asks us to decide this as an issue of first impression. (See People v. Romero (1999) 69 Cal.App.4th 846, 853-855, 81 Cal.Rptr.2d 823 [finding no error and no prejudice from excluding proposed testimony of a sociology professor on Hispanic culture].) Given the record before us, we do not find that this particular issue was specifically raised in the trial court and we decline to address it on appeal.
c. There was no reversible error in giving CALJIC No. 8.51 or in the trial court’s extemporaneous comments about involuntary manslaughter.
[4] The involuntary manslaughter instructions had been withdrawn by both counsel. Appellant argues that CALJIC No. 8.51, which distinguishes murder and manslaughter, was irrelevant to the trial issues and only served to confuse the jury. Appellant claims the concluding language of 8.51 “confused and effectively eviscerated any exculpatory jury interpretation of the preceding CALJIC No. 8.50 .”
CALJIC No. 8.50 told the jury: “The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. [¶] When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, or in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
“To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done in the heat of passion or upon a sudden quarrel or in the actual, even though unreasonable, belief in the necessity to defend against imminent peril to life or great bodily injury.”
The written version of CALJIC No. 8.51 adds: “If a person causes another’s death, while committing a felony which is dangerous to human life, the crime is murder. If a person causes another’s death, while committing a misdemeanor ... which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter.
“There are many acts which are lawful but nevertheless endanger human life. If a person causes another’s death by doing an act or engaging in conduct in a criminally negligent manner, without realizing the risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk and acted in total disregard of the danger to life involved, malice is implied, and the crime is murder.20
*11 We have read the instructions as a whole, as the jury was instructed to do, and conclude the jury was properly instructed on the difference between murder and manslaughter and we do not find the charge misleading. (People v. Ochoa (1999) 19 Cal.4th 353, 421, 79 Cal.Rptr.2d 408, 966 P.2d 442 [jury and appellate court look at instructions as a whole]; People v. Castillo (1997) 16 Cal.4th 1009, 1015, 68 Cal.Rptr.2d 648, 945 P.2d 1197.) Even assuming arguendo the jury considered the second paragraph of 8.51 in the written instructions, that paragraph in context does not misstate the law. Malice may indeed be implied when a “person realized the risk and acted in total disregard of the danger to life involved.” (See People v. Blakeley, supra, 23 Cal.4th 82, 87, 96 Cal.Rptr.2d 451, 999 P.2d 675 [juries should be instructed that malice is implied “ ‘when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ [Citation.] ... [F]or convenience we shall describe this mental state as ‘conscious disregard for life.’ “] See also People v. Rios (2000) 23 Cal.4th 450, 461, fn. 7, 97 Cal.Rptr.2d 512, 2 P.3d 1066 [“voluntary manslaughter, but no lesser offense, is also committed when one kills unlawfully, and with conscious disregard for life, but lacks malice because of provocation or imperfect self-defense.”].)
There was neither error nor prejudice in the instructions or the trial court’s remarks. The claim of cumulative prejudice from multiple instructional errors is likewise without merit.
3. The trial court did not abuse its discretion in admitting the photograph depicting appellant at the adult entertainment convention.
[5] [6] Appellant unsuccessfully objected, on the grounds of relevance and Evidence Code section 352, to the prosecutor’s use of a photograph seen by the detectives in appellant’s bedroom in Dinuba. He contends that the trial court abused its discretion in admitting evidence of the photograph, which is described as depicting a pornographic star in a bikini at an adult entertainment convention sitting on appellant’s lap. Appellant contends his rights to a fair trial and due process were violated.
The trial court did not abuse its discretion in admitting evidence of the photograph the detectives had seen in appellant’s bedroom. (People v. Barnett (1998) 17 Cal.4th 1044, 1118-1119, 74 Cal.Rptr.2d 121, 954 P.2d 384 [abuse of discretion standard of review for Evidence Code section 352 admission of evidence].) The photograph was relevant in light of appellant’s vehement denial of any sexual or romantic relationship with the victim despite his visits to her and sleeping in the same bed on several occasions. The photograph and evidence of his attendance at the adult entertainment convention contradicted his portrayal of himself as a man who had to be asked to share the victim’s bed and then expected and wanted no sexual contact with her. It also corroborated his interest in Frankie, whom he thought as a stripper, perhaps explaining why he continued such an unfulfilling relationship with a woman he never even met. “Conversely, the evidence was not unduly prejudicial within the meaning of Evidence Code section 352 because it did not amount to ‘ “ ‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ “ ‘ [Citations.]” (Id. at pp. 1118-1119, 74 Cal.Rptr.2d 121, 954 P.2d 384.)
*12 [7] The constitutional and other grounds raised on appeal were not raised in the trial court and may be rejected on appeal. (People v.. Rodrigues (1994) 8 Cal.4th 1060, 1116, fn. 20, 36 Cal.Rptr.2d 235, 885 P.2d 1.) As explained, above, the evidence was admissible. Given the cumulative testimony of appellant’s interested in Frankie as a stripper and liking to talk to her about sex on the phone, error if any in admitting the challenged evidence was harmless.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN and BOLAND, JJ.
All Citations
Footnotes
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The trial court imposed 15 years to life for the second degree murder plus a consecutive one-year sentence for personal use of a knife pursuant to Penal Code section 12022, subdivision (b)(1). Denying a motion for new trial or a request to reduce the offense, the court stated “I cannot find, either factually or in an equitable sense, that I should do that. The jury verdict will stand .” Unless otherwise indicated, all further statutory references are to the Penal Code.
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Appellant, knowing the victim was dead, pretended to call her on his cell phone while taking the boy to his grandmother’s home. Appellant told the boy he cut himself with a hunting knife. Appellant testified he did not bring the knife with him but obtained it from the victim’s kitchen and hid it behind his back as he reentered the bedroom. On the morning of the homicide, appellant told the nurse practitioner at the hospital that he was opening a box with a buck knife. He was alert, oriented, and in no distress.
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The officers could smell the odor of rotting flesh and found a human torso in the barn; several pieces of a burned human body and a knife were inside a duffel bag.
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However, he did not mention Sheila’s threat to dig up his father. In the taped confession, unlike in court, he may have told the detectives that he and the victim were just off the bed.
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The jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The parties agreed not to instruct on involuntary manslaughter. In reading the instructions, the trial court, apparently inadvertently and without objection by defense counsel, started to instruct on involuntary manslaughter before retracting that instruction. Appellant contends that the comments made by the court at that time amounted to a directed verdict against manslaughter.
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After appellant testified he liked to talk about sex on the phone, the People sought to introduce evidence that the investigators found a picture in appellant’s Dinuba bedroom of appellant with a “porn film star” in a bikini sitting on his lap. The court initially was not going to admit the photograph or evidence of appellant’s attendance at the convention. After the age of appellant was established at near to that in the photograph, the court decided to allow the testimony. Appellant then testified he went to the adult entertainment convention in June 1999 and the detectives did find a photo of him with a scantily clad young lady sitting on his lap. In addition, he admitted Frankie said she was an exotic dancer, which was “just more curiosity.”
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Appellant testified that Frankie screamed at him in Spanish and threatened to pour battery acid over his car when he denied her money for alleged cancer treatments. He took out a loan to get her the $2000. According to appellant, she also told him she knew Mexican gang bangers and some Crips who would come after him.
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The victim’s best friend estimated his total gifts to Sheila Randle at $250,000. She was equivocal about whether there was a sexual relationship between appellant and the victim, initially telling the detectives there was not. She knew that the victim had an actual boyfriend, Eugene, who at some point was serving 35 years in prison for murder.
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Sheila’s best friend, Makeba Fielding, verified the scam of using the name “Frankie” and getting money, gifts, and cards from appellant. She also corroborated Sheila’s profanity laden demands on appellant, Sheila’s lies to the phone company to get his address and phone number in Dinuba when the Honda was repossessed, her telling appellant that Frankie was dead, and even her request for part of the money received by the Kobayashi family when appellant’s father died. Hoping to help find her friend, she reported all this to the detectives on April 17, a month before they interviewed appellant in Dinuba. She did not remember telling the detectives of any threat by Sheila to kill appellant’s mother, but Detective Edwards reported that Makeba Fielding said she heard Sheila tell appellant she knew where he lived and would go and kill his mother if he did not give her the car back.
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He did not know how he got his unlisted number and was surprised to hear from her.
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Appellant also testified he knew Sheila Randle was also Ebony in the latter part of 1999 or early spring 2000, prior to calling the Tulare sheriff. Indeed, his knowledge of Sheila/Ebony’s address, where he had the Honda repossessed, seems to indicate he knew someone aside from Frankie was the primary user of the Honda. In addition, despite his professed fondness for “Frankie,” he made no effort to visit her in a named hospital after her reported suicide attempt. Despite the announcement by Sheila in January 2001, which appellant found to be a shocker, he continued the relationship with Sheila. He again felt “no choice” and the threats were occurring more often.
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Sheila’s best friend testified that Sheila once asked what she would think if Sheila was to have a baby by appellant.
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Nevertheless, he left his mother alone in Dinuba and did not move her to a safer place or ask anyone to look in on her.
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Despite the struggle testified to by appellant, he had no injuries other than the cut to his hand.
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Penal Code section 25, added by initiative in 1982, abolished the defense of diminished capacity. Section 28, subdivision (a), proscribes evidence of mental disease, mental defect or mental disorder to show or negate the capacity to form any mental state, including premeditation, deliberation, and malice aforethought. However, such evidence “is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” Section 29 provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.” (See People v. Nunn (1996) 50 Cal.App.4th 1357, 1364-1366, 58 Cal.Rptr.2d 294 [permissible to allow presentation of detailed expert testimony relevant to whether defendant harbored a required mental state, but not to conclude the ultimate question of whether defendant had or did not have a particular mental state at the time he acted]; People v. Erickson (1997) 57 Cal.App.4th 1391, 1401, 67 Cal.Rptr.2d 740 [applying same general rule to allow evidence of battered women’s syndrome but not “to predict the actual state of mind of a particular individual at a given moment”].)
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In his closing argument, the prosecutor repeated the theme, stating appellant is a monster who could not control his lust and was blinded by it. He wanted sex, wanted a stripper, and was characterized by the prosecution as “a lust hound.”
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His comment to the court was “I think there is a just, a traditional manslaughter argument as well as provocation and heat of passion but I think this case is a, if I were going to center this case on any single thing, imperfect self-defense would be it, and I submit that Mr. Kobayashi’s state of mind at the time of the killing is critical to whether or not he successfully makes an imperfect self-defense case. [¶] That is to say, from his point of view, and I will repeat myself right up to the present moment, he is absolutely convinced he had no option but to do what he did at the time it happened.”
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Defense counsel’s closing argument made references to appellant’s “Buddhist way” and being “brought up in a Japanese-American farm family.”
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Appellant proposes an instruction in his opening brief: “The [defendant] [and][or] [the prosecution] has introduced evidence that the defendant has a cultural background that may be unique to you. Such cultural evidence may be relevant to your evaluation of whether the provocation in this case was of such a character and degree as to cause a reasonable person in the position of the defendant to have lost self-control and to have acted upon impulse rather than deliberation and reflection. You should give this evidence whatever weight you think it deserves. However, you may not reject this evidence out of caprice or prejudice because the defendant has cultural beliefs or practices different from your own.”
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This second paragraph was not read to the jury but was in the packet of written instructions available to them. The first paragraph was read as follows: “If a person causes another’s death while committing a felony dangerous to human life, the crime is murder. If a person causes another’s death while committing a misdemeanor ... which is dangerous to human life under the circumstances of its commission, the crime is involuntary manslaughter. [¶] I don’t need to define involuntary manslaughter because that is not part of what you are going to be asked to decide. You have four things before you. Murder 1, Murder 2, voluntary manslaughter and manslaughter. [¶] If a person causes death while committing a felony-I just read to constitute murder or manslaughter there must be, in addition to the death of a human being-I’m going to strike that.”
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7.2.8.6 V. Sex Offenses 7.2.8.6 V. Sex Offenses
7.2.8.6.1 V.A. Introduction 7.2.8.6.1 V.A. Introduction
To a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties. The traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives. As the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question whether there was consent. Consider what problems consent itself may have as a central element of rape law. As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?
7.2.8.6.1.1. Susan Estrich, Teaching Rape Law, 102 Yale L.J. 509 (1992)
7.2.8.6.1.2. Jeannie Suk, "The Trouble with Teaching Rape Law," New Yorker (2014)
7.2.8.6.1.3. Catharine MacKinnon, Rape: On Coercion and Consent
7.2.8.6.1.4. Janet Halley, Split Decisions
7.2.8.6.1.5. Kimberle Crenshaw - "Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color"
7.2.8.6.1.6. Cathy Young, Feminists want us to define these ugly sexual encounters as rape. Don’t let them. (2015)
7.2.8.6.1.7. Deborah Copaken Kogan, "Entering the Mind of My Rapist"
7.2.8.6.1.8. Byron Hurt, Rape, A Loaded Issue for Black Men
7.2.8.6.2 V.B. Statutes 7.2.8.6.2 V.B. Statutes
7.2.8.6.2.1 CA Penal Code, Title 9 sec. 261 (1950) 7.2.8.6.2.1 CA Penal Code, Title 9 sec. 261 (1950)
Title IX.
Crimes Against the Person, Public Decency and Morals
§261. Rape—Acts Constituting.
Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances:
1. Where the female is under the age of eighteen years;
2. Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent;
3. Where she resists, but her resistance is overcome by force or violence;
4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anesthetic, substance, administered by or with the privity of the ascused;
5. Where she is at the time unconscious of the nature of the act, and this is known to the accused;
6. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief. Leg.H. 1872, 1889 p. 223, 1897 p. 201, 1913 p. 212.
See §290 infra as to registering with sheriff or chief of police by one convicted under div. 3 and 4 of this section.
Assault with intent to rape, see ante §220.
Anno. 22 Cal.J. 357-359; 52 C.J. 1005 §2; 22 RCL. 1171: Rape A.Dig. §1; McK.D. §2-7.
New—W.S.C.L. Crimes §§44, 67.
7.2.8.6.2.2 WI Statues Ch 940 7.2.8.6.2.2 WI Statues Ch 940
940.01 First-degree intentional homicide.
(1) Offenses.
(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.
(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.
(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:
(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.
(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.
(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.
(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).
(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).
History: 1987 a. 399; 1997 a. 295.
Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of "intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.
The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense "has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N. 173 Wis. 2d 343, 497 N.W.2d 141 (Ct. App. 1992).
Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
Barring psychiatric or psychological opinion testimony on the defendant's capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F. 2d 384 (1990) citing Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).
A privilege for excusable homicide by accident or misfortune is incorporated in s. 939.45 (6). Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant may demonstrate that he or she was acting lawfully, a necessary element of an accident defense, by showing that he or she was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.
A defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm. A defendant seeking a jury instruction on unnecessary defensive force under sub. (2) (b) to a charge of first-degree intentional homicide is not required to satisfy the objective threshold. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
A defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim's violent character and past acts of violence to show a satisfactory factual basis that he or she actually believed he or she was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend himself or herself, even if both beliefs were unreasonable. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.
940.02 First-degree reckless homicide.
(1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.
(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.
(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:
(a) By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled substance included in schedule I or II under ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:
1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of s. 961.41 occurs.
3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of s. 961.41 is guilty under this paragraph.
(b) By administering or assisting in administering a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.
History: 1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109.
Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan, 44 Wis. 2d 68 (1969); State v. Weso, 60 Wis. 2d 404 (1973).
Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt, 21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]
Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons, 164 Wis. 2d 506, 476 N.W.2d 283 (Ct. App. 1991).
Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.
Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), 98-2171.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
The punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for human life. State v. Geske, 2012 WI App 15, 339 Wis. 2d 170, 810 N.W.2d 226, 10-2808.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.03 Felony murder.
Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.
History: 1987 a. 399; 2001 a. 109; 2005 a. 313.
Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson, 5 Wis. 2d 595, 93 N.W.2d 355 (1958). [Bill 191-S]
To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase "while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994), State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994) and State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).
Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.
Oimen affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.
An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.
940.04 Abortion.
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
(a) Intentionally destroys the life of an unborn quick child; or
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
(5) This section does not apply to a therapeutic abortion which:
(a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
(6) In this section "unborn child" means a human being from the time of conception until it is born alive.
History: 2001 a. 109; 2011 a. 217.
Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).
Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe v. Wade. State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113 (1973).
The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9 (1975).
The viability of an unborn child is discussed. Colautti v. Franklin, 439 U.S. 379 (1979).
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297 (1980).
Abortion issues are discussed. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Simopoulas v. Virginia, 462 U.S. 506 (1983).
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).
Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970).
When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).
State regulation of abortion. 1970 WLR 933.
940.05 Second-degree intentional homicide.
(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
(2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.
(3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.
History: 1987 a. 399; 1997 a. 295.
Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.06 Second-degree reckless homicide.
(1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]
Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).
940.07 Homicide resulting from negligent control of vicious animal.
Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class G felony.
History: 1977 c. 173; 2001 a. 109.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
(1) Except as provided in sub. (3), whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.
(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
History: 1977 c. 173; 1985 a. 293; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.09 Homicide by intoxicated use of vehicle or firearm.
(1) Any person who does any of the following may be penalized as provided in sub. (1c):
(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(1c)
(a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony.
(b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2).
(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.
(1g) Any person who does any of the following is guilty of a Class D felony:
(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.
(1m)
(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); any combination of sub. (1) (c), (cm), or (e); any combination of sub. (1g) (a), (am), or (b) or; any combination of sub. (1g) (c), (cm), or (d) for acts arising out of the same incident or occurrence.
(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.
(2)
(a) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e) or (1g) (b) or (d).
(b) In any action under sub. (1) (am) or (cm) or (1g) (am) or (cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.
(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.
History: 1977 c. 173; 1981 c. 20, 184, 314, 391; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 32, 277; 1993 a. 317; 1995 a. 425, 436; 1997 a. 237, 295, 338; 1999 a. 32, 109; 2001 a. 16, 109; 2003 a. 30, 97; 2009 a. 100.
NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).
Each death caused by an intoxicated operator's negligence is chargeable as a separate offense. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).
Because driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver's intoxication and the victim's death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985). Affirmed. State v. Fonte, 2005 WI 77, 281 Wis. 2d 654, 698 N.W.2d 594, 03-2097.
The definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).
Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 Wis. 2d 432, 538 N.W.2d 821 (Ct. App. 1995), 94-2187.
The defense under sub. (2) does not require an intervening cause; a victim's conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim's negligence in relation to causation. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.
Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392, 576 N.W.2d 912 (1998), 96-2830.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is prospectively abrogated. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
Defendant's conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1399.
This statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (W. D. Wis. 1986).
Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.
940.10 Homicide by negligent operation of vehicle.
(1) Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a vehicle is guilty of a Class G felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988 Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]
A motorist was properly convicted under this section for running a red light at 50 m.p.h., even though the speed limit was 55 m.p.h. State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).
The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).
A corporation may be subject to criminal liability under this section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc. 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.
It is not a requirement for finding criminal negligence that the actor be specifically warned that his or her conduct may result in harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999), 98-2239.
The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.11 Mutilating or hiding a corpse.
(1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class F felony.
(2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime or notwithstanding s. 49.141 (7), 49.49 (1), or 49.795 with intent to collect benefits under one of those sections, is guilty of a Class G felony.
(3) A person may not be subject to prosecution under both this section and s. 946.47 or under both this section and s. 948.23 (2) for his or her acts regarding the same corpse.
History: 1991 a. 205; 2001 a. 109; 2011 a. 268.
Evidence that the defendant dragged a corpse behind a locked gate into a restricted, secluded wildlife area, then rolled the corpse into water at the bottom of a ditch was sufficient for a jury to conclude that the defendant hid a corpse in violation of this section. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.
940.12 Assisting suicide.
Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony.
History: 1977 c. 173; 2001 a. 109.
940.13 Abortion exception.
No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.
History: 1985 a. 56.
940.15 Abortion.
(1) In this section, "viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.
(2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class I felony.
(3) Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.
(4) Any abortion performed under sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.
(5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.
(6) Any physician who intentionally performs an abortion under sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class I felony.
(7) Subsections (2) to (6) and s. 939.05, 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.
History: 1985 a. 56; 2001 a. 109.
The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).
940.16 Partial-birth abortion.
(1) In this section:
(a) "Child" means a human being from the time of fertilization until it is completely delivered from a pregnant woman.
(b) "Partial-birth abortion" means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.
(2) Except as provided in sub. (3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.
(3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.
History: 1997 a. 219.
A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 949, 147 L. Ed. 2d 743 (2000).
Enforcement of this section is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).
SUBCHAPTER II
BODILY SECURITY
940.19 Battery; substantial battery; aggravated battery.
(1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.
(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.
(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.
(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.
(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:
(a) If the person harmed is 62 years of age or older; or
(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.
History: 1977 c. 173; 1979 c. 111, 113; 1987 a. 399; 1993 a. 441, 483; 2001 a. 109.
Under the "elements only" test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).
"Physical disability" is discussed. State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988).
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).
The act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999), 98-1811.
Section 941.20 (1), 1st-degree recklessly endangering safety, is not a lesser included offense of sub. (5), aggravated battery. State v. Dibble, 2002 WI App 219, 257 Wis. 2d. 274, 650 N.W.2d 908, 02-0538.
940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.
(1) Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class A misdemeanor.
(2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class I felony.
(4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class H felony.
(5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class E felony.
(6) Whoever intentionally causes bodily harm to an unborn child by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.
History: 1997 a. 295; 2001 a. 109.
940.20 Battery: special circumstances.
(1) Battery by prisoners. Any prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally causes bodily harm or a soft tissue injury, as defined in s. 946.41 (2) (c), to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.
(1g) Battery by certain committed persons. Any person placed in a facility under s. 980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.
(1m) Battery by persons subject to certain injunctions.
(a) Any person who is subject to an injunction under s. 813.12 or a tribal injunction filed under s. 806.247 (3) and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
(b) Any person who is subject to an injunction under s. 813.125 and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.
(2) Battery to law enforcement officers, fire fighters, and commission wardens. Whoever intentionally causes bodily harm to a law enforcement officer or fire fighter, as those terms are defined in s. 102.475 (8) (b) and (c), or to a commission warden, acting in an official capacity and the person knows or has reason to know that the victim is a law enforcement officer, fire fighter, or commission warden, by an act done without the consent of the person so injured, is guilty of a Class H felony.
(2m) Battery to probation, extended supervision and parole agents and aftercare agents.
(a) In this subsection:
1. "Aftercare agent" means any person authorized by the department of corrections to exercise control over a juvenile on aftercare.
2. "Probation, extended supervision and parole agent" means any person authorized by the department of corrections to exercise control over a probationer, parolee or person on extended supervision.
(b) Whoever intentionally causes bodily harm to a probation, extended supervision and parole agent or an aftercare agent, acting in an official capacity and the person knows or has reason to know that the victim is a probation, extended supervision and parole agent or an aftercare agent, by an act done without the consent of the person so injured, is guilty of a Class H felony.
(3) Battery to jurors. Whoever intentionally causes bodily harm to a person who he or she knows or has reason to know is or was a grand or petit juror, and by reason of any verdict or indictment assented to by the person, without the consent of the person injured, is guilty of a Class H felony.
(4) Battery to public officers. Whoever intentionally causes bodily harm to a public officer in order to influence the action of such officer or as a result of any action taken within an official capacity, without the consent of the person injured, is guilty of a Class I felony.
(5) Battery to technical college district or school district officers and employees.
(a) In this subsection:
1. "School district" has the meaning given in s. 115.01 (3).
2. "Technical college district" means a district established under ch. 38.
(b) Whoever intentionally causes bodily harm to a technical college district or school district officer or employee acting in that capacity, and the person knows or has reason to know that the victim is a technical college district or school district officer or employee, without the consent of the person so injured, is guilty of a Class I felony.
(6) Battery to public transit vehicle operator, driver or passenger.
(a) In this subsection, "public transit vehicle" means any vehicle used for providing transportation service to the general public.
(b) Whoever intentionally causes bodily harm to another under any of the following circumstances is guilty of a Class I felony:
1. The harm occurs while the victim is an operator, a driver or a passenger of, in or on a public transit vehicle.
2. The harm occurs after the offender forces or directs the victim to leave a public transit vehicle.
3. The harm occurs as the offender prevents, or attempts to prevent, the victim from gaining lawful access to a public transit vehicle.
(7) Battery to emergency medical care providers.
(a) In this subsection:
1e. "Ambulance" has the meaning given in s. 256.01 (1).
1g. "Emergency department" means a room or area in a hospital, as defined in s. 50.33 (2), that is primarily used to provide emergency care, diagnosis or radiological treatment.
2. "Emergency department worker" means any of the following:
a. An employee of a hospital who works in an emergency department.
b. A health care provider, whether or not employed by a hospital, who works in an emergency department.
2g. "Emergency medical technician" has the meaning given in s. 256.01 (5).
2m. "First responder" has the meaning given in s. 256.01 (9).
3. "Health care provider" means any person who is licensed, registered, permitted or certified by the department of health services or the department of safety and professional services to provide health care services in this state.
(b) Whoever intentionally causes bodily harm to an emergency department worker, an emergency medical technician, a first responder or an ambulance driver who is acting in an official capacity and who the person knows or has reason to know is an emergency department worker, an emergency medical technician, a first responder or an ambulance driver, by an act done without the consent of the person so injured, is guilty of a Class H felony.
History: 1977 c. 173; 1979 c. 30, 113, 221; 1981 c. 118 s. 9; 1983 a. 189 s. 329 (4); 1989 a. 336; 1993 a. 54, 164, 491; 1995 a. 27 s. 9126 (19); 1995 a. 77, 145, 225, 343; 1997 a. 35, 143, 283; 1999 a. 85; 2001 a. 109; 2005 a. 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 27, 130; 2011 a. 32, 74.
Resisting or obstructing an officer, s. 946.41, is not a lesser-included offense of battery to a peace officer. State v. Zdiarstek, 53 Wis. 2d 776, 193 N.W.2d 833 (1972).
A county deputy sheriff was not acting in an official capacity under s. 940.205 [now s. 940.20 (2)] when making an arrest outside of his county of employment. State v. Barrett, 96 Wis. 2d 174, 291 N.W.2d 498 (1980).
A prisoner is "confined to a state prison" under sub. (1) when kept under guard at a hospital for treatment. State v. Cummings, 153 Wis. 2d 603, 451 N.W.2d 463 (Ct. App. 1989).
A defendant's commitment to a mental institution upon a finding of not guilty by reason of mental disease or defect rendered him a "prisoner" under sub. (1). State v. Skamfer, 176 Wis. 2d 304, N.W.2d (Ct. App. 1993).
There is no requirement under sub. (2) that the officer/victim be acting lawfully when he or she is hit by a defendant. When an officer was assaulted when doing something within the scope of what the officer was employed to do, the lawfulness of the officer's presence in the house where the defendant hit him was not material to a violation of sub. (2). State v. Haywood, 2009 WI App 178, 322 Wis. 2d 691, 777 N.W.2d 921, 09-0030.
940.201 Battery or threat to witnesses.
(1) In this section:
(a) "Family member" means a spouse, child, stepchild, foster child, parent, sibling, or grandchild.
(b) "Witness" has the meaning given in s. 940.41 (3).
(2) Whoever does any of the following is guilty of a Class H felony:
(a) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is or was a witness by reason of the person having attended or testified as a witness and without the consent of the person harmed or threatened.
(b) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is a family member of a witness or a person sharing a common domicile with a witness by reason of the witness having attended or testified as a witness and without the consent of the person harmed or threatened.
History: 1997 a. 143; 2001 a. 109; 2009 a. 28.
Battery to a prospective witness is prohibited by s. 940.206 [now s. 940.201]. McLeod v. State, 85 Wis. 2d 787, 271 N.W.2d 157 (Ct. App. 1978).
940.203 Battery or threat to judge.
(1) In this section:
(a) "Family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(b) "Judge" means a supreme court justice, court of appeals judge, circuit court judge, municipal judge, temporary or permanent reserve, judge or circuit, supplemental, or municipal court commissioner.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any judge under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a judge or a member of his or her family.
(b) The judge is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1993 a. 50, 446; 2001 a. 61, 109; 2009 a. 28.
Only a "true threat" is punishable under this section. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. Jury instructions must contain a clear definition of a true threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.
940.205 Battery or threat to department of revenue employee.
(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of revenue official, employee or agent under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of revenue official, employee or agent or a member of his or her family.
(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1985 a. 29; 1993 a. 446; 2001 a. 109; 2009 a. 28.
940.207 Battery or threat to department of safety and professional services or department of workforce development employee.
(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.
(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of safety and professional services or department of workforce development official, employee or agent under all of the following circumstances is guilty of a Class H felony:
(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of safety and professional services or department of workforce development official, employee or agent or a member of his or her family.
(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
(c) There is no consent by the person harmed or threatened.
History: 1993 a. 86, 446; 1995 a. 27 ss. 7227 to 7229, 9116 (5), 9130 (4); 1997 a. 3; 2001 a. 109; 2009 a. 28; 2011 a. 32.
940.208 Battery to certain employees of counties, cities, villages, or towns.
Whoever intentionally causes bodily harm to an employee of a county, city, village, or town under all of the following circumstances is guilty of a Class I felony:
(1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town.
(2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity.
(2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement.
(3) There is no consent by the victim.
History: 2007 a. 193.
940.21 Mayhem.
Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.
History: 1977 c. 173; 2001 a. 109.
The forehead qualifies as an "other bodily member" under s. 940.21 because "other bodily member" encompasses all bodily parts. State v. Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W.2d 447, 06-0499.
Failure to instruct a jury that great bodily harm is an essential element of mayhem was reversible error. Cole v. Young, 817 F. 2d 412 (1987).
940.22 Sexual exploitation by therapist; duty to report.
(1) Definitions. In this section:
(a) "Department" means the department of safety and professional services.
(b) "Physician" has the meaning designated in s. 448.01 (5).
(c) "Psychologist" means a person who practices psychology, as described in s. 455.01 (5).
(d) "Psychotherapy" has the meaning designated in s. 455.01 (6).
(e) "Record" means any document relating to the investigation, assessment and disposition of a report under this section.
(f) "Reporter" means a therapist who reports suspected sexual contact between his or her patient or client and another therapist.
(g) "Sexual contact" has the meaning designated in s. 940.225 (5) (b).
(h) "Subject" means the therapist named in a report or record as being suspected of having sexual contact with a patient or client or who has been determined to have engaged in sexual contact with a patient or client.
(i) "Therapist" means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.
(2) Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.
(3) Reports of sexual contact.
(a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient's or client's identity will be included in the report.
(b) Within 30 days after a patient or client consents under par. (a) to a report, the therapist shall report the suspicion to:
1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board or affiliated credentialing board.
2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1. is not applicable.
(c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of sub. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.
(d) Whoever intentionally violates this subsection by failing to report as required under pars. (a) to (c) is guilty of a Class A misdemeanor.
(4) Confidentiality of reports and records.
(a) All reports and records made from reports under sub. (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim. The report of information under sub. (3) and the disclosure of a report or record under this subsection does not violate any person's responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.
(b)
1. The department, a district attorney, an examining board or an affiliated credentialing board within this state may exchange information from a report or record on the same subject.
2. If the department receives 2 or more reports under sub. (3) regarding the same subject, the department shall communicate information from the reports to the appropriate district attorneys and may inform the applicable reporters that another report has been received regarding the same subject.
3. If a district attorney receives 2 or more reports under sub. (3) regarding the same subject, the district attorney may inform the applicable reporters that another report has been received regarding the same subject.
4. After reporters receive the information under subd. 2. or 3., they may inform the applicable patients or clients that another report was received regarding the same subject.
(c) A person to whom a report or record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this section.
(d) Whoever intentionally violates this subsection, or permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, is guilty of a Class A misdemeanor.
(5) Immunity from liability. Any person or institution participating in good faith in the making of a report or record under this section is immune from any civil or criminal liability that results by reason of the action. For the purpose of any civil or criminal action or proceeding, any person reporting under this section is presumed to be acting in good faith. The immunity provided under this subsection does not apply to liability resulting from sexual contact by a therapist with a patient or client.
History: 1983 a. 434; 1985 a. 275; 1987 a. 352, 380; 1991 a. 160; 1993 a. 107; 1995 a. 300; 2001 a. 109; 2011 a. 32.
This section applies to persons engaged in professional therapist-patient relationships. A teacher who conducts informal counseling is not engaged as a professional therapist. State v. Ambrose, 196 Wis. 2d 768, 540 N.W.2d 208 (Ct. App. 1995), 94-3391.
Even though the alleged victim feigned her role as a patient at the last counseling session she attended, attending as a police agent for the purpose of recording the session to obtain evidence, any acts that occurred during the session were during an ongoing therapist-patient relationship as those terms are used in this section. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.
The totality of the circumstances determine the existence of an ongoing therapist-patient relationship under sub. (2). A defendant's state of mind, a secret unilateral action of a patient, and explicit remarks of one party to the other regarding the relationship may be factors, but are not necessarily dispositive. Other factors may be: 1) how much time has gone by since the last therapy session; 2) how close together the therapy sessions had been to each other; 3) the age of the patient; 4) the particular vulnerabilities experienced by the patient as a result of mental health issues; and 5) the ethical obligations of the therapist's profession. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.
It was constitutional error to give a pattern jury instruction that never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether the defendant clergy member performed or purported to perform psychotherapy. State v. Draughon, 2005 WI App 162, 285 Wis. 2d 633, 702 N.W.2d 412, 04-1637.
940.225 Sexual assault.
(1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.
(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.
(c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:
(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
(b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.
(c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.
(cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.
(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.
(f) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.
(g) Is an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.
(h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
(i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
(j) Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c), and has sexual contact or sexual intercourse with a client of the entity.
(3) Third degree sexual assault. Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony. Whoever has sexual contact in the manner described in sub. (5) (b) 2. or 3. with a person without the consent of that person is guilty of a Class G felony.
(3m) Fourth degree sexual assault. Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.
(4) Consent. "Consent", as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d), (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):
(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.
(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.
(5) Definitions. In this section:
(abm) "Client" means an individual who receives direct care or treatment services from an entity.
(acm) "Correctional institution" means a jail or correctional facility, as defined in s. 961.01 (12m), a juvenile correctional facility, as defined in s. 938.02 (10p), or a juvenile detention facility, as defined in s. 938.02 (10r).
(ad) "Correctional staff member" means an individual who works at a correctional institution, including a volunteer.
(ag) "Inpatient facility" has the meaning designated in s. 51.01 (10).
(ai) "Intoxicant" means any alcohol beverage, controlled substance, controlled substance analog, or other drug or any combination thereof.
(ak) "Nonclient resident" means an individual who resides, or is expected to reside, at an entity, who is not a client of the entity, and who has, or is expected to have, regular, direct contact with the clients of the entity.
(am) "Patient" means any person who does any of the following:
1. Receives care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program or from a person providing services under contract with a facility or program.
2. Arrives at a facility or program under s. 940.295 (2) (b), (c), (h) or (k) for the purpose of receiving care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k), or from a person providing services under contract with a facility or program under s. 940.295 (2) (b), (c), (h) or (k).
(ar) "Resident" means any person who resides in a facility under s. 940.295 (2) (b), (c), (h) or (k).
(b) "Sexual contact" means any of the following:
1. Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19 (1):
a. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.
b. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.
2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
3. For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.
(c) "Sexual intercourse" includes the meaning assigned under s. 939.22 (36) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.
(d) "State treatment facility" has the meaning designated in s. 51.01 (15).
(6) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.
(7) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.
History: 1975 c. 184, 421; 1977 c. 173; 1979 c. 24, 25, 175, 221; 1981 c. 89, 308, 309, 310, 311; 1985 a. 134; 1987 a. 245, 332, 352; 1987 a. 403 ss. 235, 236, 256; 1993 a. 445; 1995 a. 69; 1997 a. 220; 2001 a. 109; 2003 a. 51; 2005 a. 273, 344, 388, 435, 436.
Legislative Council Note, 1981: Presently, [in sub. (5) (a)] the definition of "sexual intercourse" in the sexual assault statute includes any intrusion of any part of a person's body or of any object into the genital or anal opening of another person. This proposal clarifies that the intrusion of the body part or object may be caused by the direct act of the offender (defendant) or may occur as a result of an act by the victim which is done in compliance with instructions of the offender (defendant). [Bill 630-S]
Failure to resist is not consent under sub. (4). State v. Clark, 87 Wis. 2d 804, 275 N.W.2d 715 (1979).
Injury by conduct regardless of life is not a lesser-included crime of first-degree sexual assault. Hagenkord v. State, 94 Wis. 2d 250, 287 N.W.2d 834 (Ct. App. 1979).
Separate acts of sexual intercourse, each different in kind from the others and differently defined in the statutes, constitute separate chargeable offenses. State v. Eisch, 96 Wis. 2d 25, 291 N.W.2d 800 (1980). See also State v. Ziegler, 2012 WI 73, ___ Wis. 2d ___, 816 N.W.2d 238, 10-2514.
The trial court did not err in denying the accused's motions to compel psychiatric examination of the victim and for discovery of the victim's past addresses. State v. Lederer, 99 Wis. 2d 430, 299 N.W.2d 457 (Ct. App. 1980).
The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983).
A jury instruction that touching the "vaginal area" constituted sexual contact was correct. State v. Morse, 126 Wis. 2d 1, 374 N.W.2d 388 (Ct. App. 1985).
"Unconscious" as used in sub. (2) (d) is a loss of awareness that may be caused by sleep. State v. Curtis, 144 Wis. 2d 691, 424 N.W.2d 719 (Ct. App. 1988).
The probability of exclusion and paternity are generally admissible in a sexual assault action in which the assault allegedly resulted in the birth of a child, but the probability of paternity is not generally admissible. HLA and red blood cell test results showing the paternity index and probability of exclusion were admissible statistics. State v. Hartman, 145 Wis. 2d 1, 426 N.W.2d 320 (1988).
Attempted fourth-degree sexual assault is not an offense under Wisconsin law. State v. Cvorovic, 158 Wis. 2d 630, 462 N.W.2d 897 (Ct. App. 1990).
The "use or threat of force or violence" under sub. (2) (a) does not require that the force be directed toward compelling the victim's submission, but includes forcible contact or the force used as the means of making contact. State v. Bonds, 165 Wis. 2d 27, 477 N.W.2d 265 (1991).
A dog may be a dangerous weapon under sub. (1) (b). State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Ct. App. 1992).
Convictions under both subs. (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992).
A defendant's lack of intent to make a victim believe that he was armed was irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed was reasonable, that is enough. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).
Sub. (2) (d) is not unconstitutionally vague. Expert evidence regarding sleep based solely on a hypothetical situation similar, but not identical, to the facts of the case was inadmissible. State v. Pittman, 174 Wis. 2d 255, 496 N.W.2d 74 (1993).
Convictions under both sub. (2) (a) and (e) did not violate double jeopardy. State v. Selmon, 175 Wis. 2d 155, 877 N.W.2d 498 (Ct. App. 1993).
"Great bodily harm" is a distinct element under sub. (1) (a) and need not be caused by the sexual act. State v. Schambow, 176 Wis. 2d 286, N.W.2d (Ct. App. 1993).
Intent is not an element of sub. (2) (a); lack of an intent element does not render this provision constitutionally invalid. State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993).
A previous use of force, and the victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995).
Violation of any of the provisions of this section does not immunize the defendant from violating the same or another provision in the course of sexual misconduct. Two acts of vaginal intercourse are sufficiently different in fact to justify separate charges under sub. (1) (d). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995).
Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 Wis. 2d 84, 572 N.W.2d 496 (Ct. App. 1997), 96-2961.
For a guilty plea to a sexual assault charge to be knowingly made, a defendant need not be informed of the potential of being required to register as a convicted sex offender under s. 301.45 or that failure to register could result in imprisonment, as the commitment is a collateral, not direct, consequence of the plea. State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, 98-2196.
Sub. (2) (g) was not applicable to an employee of a federal VA hospital as it is not a facility under s. 940.295 (2). The definition of inpatient care facility in s. 940.295 incorporates s. 51.35 (1), which requires that all of the specifically enumerated facilities be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.
Expert testimony is not required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under sub. (2) (c). State v. Perkins, 2004 WI App 213, 277 Wis. 2d 243, 689 N.W.2d 684, 03-3296.
The statutory scheme of the sexual assault law does not require proof of stimulation of the clitoris or vulva for finding cunnilingus under sub. (5) (c). The notion of stimulation of the victim offends the principles underpinning the sexual assault law. State v. Harvey, 2006 WI App 26, 289 Wis. 2d 222, 710 N.W.2d 482, 05-0103.
Sub. (2) (h) does not extend to a sheriff's deputy, who was assigned to work as a bailiff in the county courthouse. State v. Terrell, 2006 WI App 166, 295 Wis. 2d 619, 721 N.W.2d 527, 05-1499.
This section criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
The plain language of sub. (3) requires the state to prove beyond a reasonable doubt that the defendants attempted to have sexual intercourse with the victim without the victim's words or overt actions indicating a freely given agreement to have sexual intercourse. The state does not have to prove that the victim withheld consent. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
One who has sexual contact or intercourse with a dead person cannot be charged with 1st- or 2nd-degree sexual assault, because the facts cannot correspond with the elements of those two charges. However, the possibility that the facts of a particular case will not come within the elements necessary to establish every crime listed in the statute does not mean the statute is absurd, but rather that the evidence necessary for all potential crimes under this section does not exist in all cases. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
Sub. (7) does not limit sub. (3) to only those circumstances in which the perpetrator kills and has sexual intercourse with the victim in a series of events. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.
Conviction on 2 counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel, 478 F. Supp. 752 (1979).
A conviction for attempted 1st-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F. Supp. 1264 (1979).
940.23 Reckless injury.
(1) First-degree reckless injury.
(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.
(b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class D felony.
(2) Second-degree reckless injury.
(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.
(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class F felony.
History: 1987 a. 399; 1997 a. 295; 2001 a. 109.
Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.
Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, 98-3175.
Utter disregard requires more than a high degree of negligence or recklessness. To evince utter disregard, the mind must not only disregard the safety of another but be devoid of regard for the life of another. A person acting with utter disregard must possess a state of mind that has no regard for the moral or social duties of a human being. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
In evaluating whether there is sufficient proof of utter disregard for human life, factors to be considered include the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim's injuries, and the degree of force that was required to cause those injuries. Also considered are the type of victim and the victim's age, vulnerability, fragility, and relationship to the perpetrator, as well as whether the totality of the circumstances showed any regard for the victim's life. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
Pointing a loaded gun at another is not conduct evincing utter disregard if it is otherwise defensible, even if it is not privileged. When conduct was to protect the defendant and his friends, although not found to be self defense, the conduct is inconsistent with conduct evincing utter disregard. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
Jensen does not create a rule assigning less weight to a defendant's after-the-fact conduct. When evaluating whether a defendant's conduct reflects utter disregard for human life, the fact-finder should examine the totality of the circumstances surrounding the crime, considering all relevant conduct before, during, and after a crime, giving each the weight it deems appropriate under the circumstances. State v. Burris, 2011 WI 32, 333 Wis. 2d 87, 797 N.W.2d 430, 09-0956.
940.235 Strangulation and suffocation.
(1) Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony.
(2) Whoever violates sub. (1) is guilty of a Class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1.
History: 2007 a. 127.
940.24 Injury by negligent handling of dangerous weapon, explosives or fire.
(1) Except as provided in sub. (3), whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
(2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.
(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.
History: 1977 c. 173; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]
Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh, 226 Wis. 2d 718, 595 N.W.2d 330 (1999), 97-0495.
940.25 Injury by intoxicated use of a vehicle.
(1) Any person who does any of the following is guilty of a Class F felony:
(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.
(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.
(cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.
(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).
(e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.
(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.
(1m)
(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); or any combination of sub. (1) (c), (cm), or (e) for acts arising out of the same incident or occurrence.
(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. or 3., under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require.
(2)
(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).
(b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.
(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.
History: 1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100.
NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).
The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983).
The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (1990).
The offense under sub. (1) (am) has 2 elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in his or her blood; and 2) the defendant's operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieves the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.
The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that he or she is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.
"Materially impaired" as used in the definition of "under the influence of an intoxicant" in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.
940.285 Abuse of individuals at risk.
(1) Definitions. In this section:
(ag) "Abuse" means any of the following:
1. Physical abuse, as defined in s. 46.90 (1) (fg).
2. Emotional abuse, as defined in s. 46.90 (1) (cm).
3. Sexual abuse, as defined in s. 46.90 (1) (gd).
4. Treatment without consent, as defined in s. 46.90 (1) (h).
5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).
6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.
(am) "Adult at risk" has the meaning given in s. 55.01 (1e).
(dc) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(dg) "Individual at risk" means an elder adult at risk or an adult at risk.
(dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.
(2) Abuse; penalties.
(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):
1. Intentionally subjects an individual at risk to abuse.
2. Recklessly subjects an individual at risk to abuse.
3. Negligently subjects an individual at risk to abuse.
(b)
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.
1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.
940.29 Abuse of residents of penal facilities.
Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class I felony.
History: 1975 c. 119; 1975 c. 413 s. 18; 1977 c. 173; 1979 c. 124; 1981 c. 20; 1987 a. 161 ss. 12, 13m; 1987 a. 332; 1993 a. 445; 2001 a. 109.
940.291 Law enforcement officer; failure to render aid.
(1) Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.
(2) Any peace officer who knowingly permits another person to violate sub. (1), while acting in the course of employment or under the authority of employment, is guilty of a Class A misdemeanor.
History: 1983 a. 27.
940.295 Abuse and neglect of patients and residents.
(1) Definitions. In this section:
(ad) "Abuse" has the meaning given in s. 46.90 (1) (a).
(ag) "Adult at risk" has the meaning given in s. 55.01 (1e).
(am) "Adult family home" has the meaning given in s. 50.01 (1).
(b) "Bodily harm" has the meaning given in s. 46.90 (1) (aj).
(c) "Community-based residential facility" has the meaning given in s. 50.01 (1g).
(cr) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(d) "Foster home" has the meaning given in s. 48.02 (6).
(e) "Great bodily harm" has the meaning given in s. 939.22 (14).
(f) "Group home" has the meaning given in s. 48.02 (7).
(g) "Home health agency" has the meaning given in s. 50.49 (1) (a).
(h) "Hospice" has the meaning given in s. 50.90 (1).
(hr) "Individual at risk" means an elder adult at risk or an adult at risk.
(i) "Inpatient health care facility" has the meaning given in s. 50.135 (1).
(k) "Neglect" has the meaning given in s. 46.90 (1) (f).
(km) "Negligence" means an act, omission, or course of conduct that the actor should realize creates a substantial and unreasonable risk of death, great bodily harm, or bodily harm to another person.
(L) "Patient" means any person who does any of the following:
1. Receives care or treatment from a facility or program under sub. (2), from an employee of a facility or program or from a person providing services under contract with a facility or program.
2. Arrives at a facility or program under sub. (2) for the purpose of receiving care or treatment from a facility or program under sub. (2), from an employee of a facility or program under sub. (2), or from a person providing services under contract with a facility or program under sub. (2).
(o) "Recklessly" means conduct that creates a situation of unreasonable risk of death or harm to and demonstrates a conscious disregard for the safety of the patient or resident.
(p) "Resident" means any person who resides in a facility under sub. (2).
(r) "State treatment facility" has the meaning given in s. 51.01 (15).
(s) "Treatment facility" has the meaning given in s. 51.01 (19).
(2) Applicability. This section applies to any of the following types of facilities or programs:
(a) An adult day care center.
(b) An adult family home.
(c) A community-based residential facility.
(d) A foster home.
(e) A group home.
(f) A home health agency.
(g) A hospice.
(h) An inpatient health care facility.
(i) A program under s. 51.42 (2).
(j) The Wisconsin Educational Services Program for the Deaf and Hard of Hearing under s. 115.52 and the Wisconsin Center for the Blind and Visually Impaired under s. 115.525.
(k) A state treatment facility.
(L) A treatment facility.
(m) A residential care center for children and youth operated by a child welfare agency licensed under s. 48.60 or an institution operated by a public agency for the care of neglected, dependent, or delinquent children.
(n) Any other health facility or care-related facility or home, whether publicly or privately owned.
(3) Abuse and neglect; penalties.
(a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. (b):
1. Intentionally abuses or intentionally neglects a patient or resident.
2. Recklessly abuses or recklessly neglects a patient or resident.
3. Except as provided in par. (am), abuses, with negligence, or neglects a patient or a resident.
(am) Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.
(b)
1g. Any person violating par. (a) 1. or 2. under circumstances that cause death to an individual at risk is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death to an individual at risk is guilty of a Class D felony.
1m. Any person violating par. (a) under circumstances that cause great bodily harm to an individual at risk is guilty of a Class E felony.
1r. Except as provided in subd. 1m., any person violating par. (a) 1. under circumstances that cause great bodily harm is guilty of a Class F felony. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony.
2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.
3. Except as provided in subd. 1m., any person violating par. (a) 2. or 3. under circumstances that cause great bodily harm is guilty of a Class H felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.
4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
History: 1993 a. 445; 1995 a. 225; 1997 a. 180; 1999 a. 9; 2001 a. 57, 59, 109; 2005 a. 264, 388; 2007 a. 45; 2011 a. 2.
Evidence that residents suffered weight loss and bedsores was sufficient to support the conviction of a nursing home administrator for abuse of residents. State v. Serebin, 119 Wis. 2d 837, 350 N.W.2d 65 (1984).
Section 50.135 (1), as incorporated in sub. (1) (i), requires that all of the specifically enumerated facilities must be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state and thus not within the definition of inpatient health care facility. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.
Seeking Justice in Death's Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.
A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 2004.
940.30 False imprisonment.
Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony.
History: 1977 c. 173; 2001 a. 109.
False imprisonment is not a lesser included offense of the crime of kidnapping. Geitner v. State, 59 Wis. 2d 128, 207 N.W.2d 837.
A victim need only take advantage of reasonable means of escape; a victim need not expose himself or herself or others to danger in attempt to escape. State v. C.V.C. 153 Wis. 2d 145, 450 N.W.2d 463 (Ct. App. 1989).
False imprisonment, or confinement, is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.
In the context of false imprisonment, consent means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. Under the circumstances of the case, even if the jury did not believe that the victim said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint. State v. Long, 2009 WI 36, 317 Wis. 2d 92, 765 N.W.2d 557, 07-2307.
940.302 Human trafficking.
(1) In this section:
(a) "Commercial sex act" means sexual contact for which anything of value is given to, promised, or received, directly or indirectly, by any person.
(b) "Debt bondage" means the condition of a debtor arising from the debtor's pledge of services as a security for debt if the reasonable value of those services is not applied toward repaying the debt or if the length and nature of the services are not defined.
(c) "Services" means activities performed by one individual at the request, under the supervision, or for the benefit of another person.
(d) "Trafficking" means recruiting, enticing, harboring, transporting, providing, or obtaining, or attempting to recruit, entice, harbor, transport, provide, or obtain, an individual without consent of the individual.
(2)
(a) Except as provided in s. 948.051, whoever knowingly engages in trafficking is guilty of a Class D felony if all of the following apply:
1. One of the following applies:
a. The trafficking is for the purposes of labor or services.
b. The trafficking is for the purposes of a commercial sex act.
2. The trafficking is done by any of the following:
a. Causing or threatening to cause bodily harm to any individual.
b. Causing or threatening to cause financial harm to any individual.
c. Restraining or threatening to restrain any individual.
d. Violating or threatening to violate a law.
e. Destroying, concealing, removing, confiscating, or possessing, or threatening to destroy, conceal, remove, confiscate, or possess, any actual or purported passport or any other actual or purported official identification document of any individual.
f. Extortion.
g. Fraud or deception.
h. Debt bondage.
i. Controlling any individual's access to an addictive controlled substance.
j. Using any scheme or pattern to cause an individual to believe that any individual would suffer bodily harm, financial harm, restraint, or other harm.
(b) Whoever benefits in any manner from a violation of par. (a) is guilty of a Class D felony if the person knows that the benefits come from an act described in par. (a).
(3) Any person who incurs an injury or death as a result of a violation of sub. (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.
History: 2007 a. 116.
Halting Modern Slavery in the Midwest: The Potential of Wisconsin Act 116 to Improve the State and Federal Response to Human Trafficking. Ozalp. 2009 WLR 1391.
940.305 Taking hostages.
(1) Except as provided in sub. (2), whoever by force or threat of imminent force seizes, confines or restrains a person without the person's consent and with the intent to use the person as a hostage in order to influence a person to perform or not to perform some action demanded by the actor is guilty of a Class B felony.
(2) Whoever commits a violation specified under sub. (1) is guilty of a Class C felony if, before the time of the actor's arrest, each person who is held as a hostage is released without bodily harm.
History: 1979 c. 118; 1993 a. 194; 2001 a. 109.
The constitutionality of s. 940.305 is upheld. State v. Bertrand, 162 Wis. 2d 411, 469 N.W.2d 873 (Ct. App. 1991).
940.31 Kidnapping.
(1) Whoever does any of the following is guilty of a Class C felony:
(a) By force or threat of imminent force carries another from one place to another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or
(b) By force or threat of imminent force seizes or confines another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or
(c) By deceit induces another to go from one place to another with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will.
(2)
(a) Except as provided in par. (b), whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class B felony.
(b) Whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class C felony if the victim is released without permanent physical injury prior to the time the first witness is sworn at the trial.
History: 1977 c. 173; 1993 a. 194, 486; 2001 a. 109.
A conviction under sub. (1) (c) does not require proof of express or implied misrepresentations. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).
"Service," as used in this section includes acts done at the command of another and clearly embraces sexual acts performed at the command of another. State v. Clement, 153 Wis. 2d 287, 450 N.W.2d 789 (Ct. App. 1989).
Parental immunity does not extend to an agent acting for the parent. State v. Simplot, 180 Wis. 2d 383, 509 N.W.2d 338 (Ct. App. 1993).
Forced movement of a person from one part of a building to another satisfies the "carries another from one place to another" element of sub. (1) (a). State v. Wagner, 191 Wis. 2d 322, 528 N.W.2d 85 (Ct. App. 1995).
Confinement is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.
Sub. (2) (b) allows for a lesser degree of kidnapping if two additional elements are present: 1) the victim is released prior to the first witness testimony, and 2) there is no permanent physical injury to the victim. Once there is some evidence of the mitigating factor of no permanent injury, the burden is on the state to prove the absence of that factor and a court accepting a guilty plea to a charged kidnapping offense under sub. (2) (a) should ascertain a factual basis for excluding the lesser-related offense under sub. (2) (b). State v. Ravesteijn, 2006 WI App 250, 297 Wis. 2d 663, 727 N.W.2d 53, 05-1955.
940.32 Stalking.
(1) In this section:
(a) "Course of conduct" means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:
1. Maintaining a visual or physical proximity to the victim.
2. Approaching or confronting the victim.
3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.
4. Appearing at the victim's home or contacting the victim's neighbors.
5. Entering property owned, leased, or occupied by the victim.
6. Contacting the victim by telephone or causing the victim's telephone or any other person's telephone to ring repeatedly or continuously, regardless of whether a conversation ensues.
6m. Photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the victim. This subdivision applies regardless of where the act occurs.
7. Sending material by any means to the victim or, for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to a member of the victim's family or household or an employer, coworker, or friend of the victim.
8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.
9. Delivering an object to a member of the victim's family or household or an employer, coworker, or friend of the victim or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim.
10. Causing a person to engage in any of the acts described in subds. 1. to 9.
(am) "Domestic abuse" has the meaning given in s. 813.12 (1) (am).
(ap) "Domestic abuse offense" means an act of domestic abuse that constitutes a crime.
(c) "Labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
(cb) "Member of a family" means a spouse, parent, child, sibling, or any other person who is related by blood or adoption to another.
(cd) "Member of a household" means a person who regularly resides in the household of another or who within the previous 6 months regularly resided in the household of another.
(cg) "Personally identifiable information" has the meaning given in s. 19.62 (5).
(cr) "Record" has the meaning given in s. 19.32 (2).
(d) "Suffer serious emotional distress" means to feel terrified, intimidated, threatened, harassed, or tormented.
(2) Whoever meets all of the following criteria is guilty of a Class I felony:
(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.
(2e) Whoever meets all of the following criteria is guilty of a Class I felony:
(a) After having been convicted of sexual assault under s. 940.225, 948.02, 948.025, or 948.085 or a domestic abuse offense, the actor engages in any of the acts listed in sub. (1) (a) 1. to 10., if the act is directed at the victim of the sexual assault or the domestic abuse offense.
(b) The actor knows or should know that the act will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
(c) The actor's act causes the specific person to suffer serious emotional distress or induces fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.
(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:
(a) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v), or (1x).
(b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.
(c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.
(d) The person violates s. 968.31 (1) or 968.34 (1) in order to facilitate the violation.
(e) The victim is under the age of 18 years at the time of the violation.
(3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:
(a) The act results in bodily harm to the victim or a member of the victim's family or household.
(b) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v) or (1x), the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.
(c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1) (a) 1. to 9.
(3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under sub. (2) (c) or (2e) (c).
(4)
(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:
1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.
2. Assembling peaceably.
3. Peaceful picketing or patrolling.
(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.
(5) This section does not apply to conduct arising out of or in connection with a labor dispute.
(6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.
History: 1993 a. 96, 496; 2001 a. 109; 2003 a. 222, 327; 2005 a. 277.
This section does not violate the right to interstate travel and is not unconstitutionally vague or overbroad. State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), 96-2280.
The actor's "acts" under sub. (2) (c) are not the equivalent of the actor's "course of conduct" under sub. (2) (a). There must be proof that the actor's acts caused fear and not that the course of conduct caused fear. State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998), 97-2185.
A "previous conviction for a violent crime" is a substantive element of the Class H felony stalking offense under sub. (2m) (a), not a penalty enhancer. It was not error to allow the introduction of evidence at trial that the defendant had stipulated to having a previous conviction for a violent crime, nor was it error to instruct the jury to make a finding on that matter. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.
The 7-year time restriction specified in sub. (2m) (b) requires that only the final act charged as part of a course of conduct occur within 7 years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.
Although the acts in this case spanned apparently fewer than 15 minutes, this section specifically provides that stalking may be a series of 2 acts over a short time if the acts show a continuity of purpose. State v. Eichorn, 2010 WI App 70, 325 Wis. 2d 241, 783 N.W.2d 902, 09-1864.
940.34 Duty to aid victim or report crime.
(1)
(a) Whoever violates sub. (2) (a) is guilty of a Class C misdemeanor.
(b) Whoever violates sub. (2) (b) is guilty of a Class C misdemeanor and is subject to discipline under s. 440.26 (6).
(c) Whoever violates sub. (2) (c) is guilty of a Class C misdemeanor.
(2)
(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.
(b) Any person licensed as a private detective or granted a private security permit under s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
(c)
1. In this paragraph, "unlicensed private security person" means a private security person, as defined in s. 440.26 (1m) (h), who is exempt from the permit and licensure requirements of s. 440.26.
2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
(d) A person need not comply with this subsection if any of the following apply:
1. Compliance would place him or her in danger.
2. Compliance would interfere with duties the person owes to others.
3. In the circumstances described under par. (a), assistance is being summoned or provided by others.
4. In the circumstances described under par. (b) or (c), the crime or alleged crime has been reported to an appropriate law enforcement agency by others.
(2m) If a person is subject to sub. (2) (b) or (c), the person need not comply with sub. (2) (b) or (c) until after he or she has summoned or provided assistance to a victim.
(3) If a person renders emergency care for a victim, s. 895.48 (1) applies. Any person who provides other reasonable assistance under this section is immune from civil liability for his or her acts or omissions in providing the assistance. This immunity does not apply if the person receives or expects to receive compensation for providing the assistance.
History: 1983 a. 198; 1985 a. 152, 332; 1987 a. 14; 1995 a. 461.
This section is not unconstitutional. For a conviction, it must be proved that an accused believed a crime was being committed and that a victim was exposed to bodily harm. The reporting required does not require the defendant to incriminate himself or herself as the statute contains no mandate that an individual identify himself or herself. Whether a defendant fits within an exception under sub. (2) (d) is a matter of affirmative defense. State v. LaPlante, 186 Wis. 2d 427, 521 N.W.2d 448 (Ct. App. 1994).
940.41 Definitions.
In ss. 940.42 to 940.49:
(1g) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).
(1r) "Malice" or "maliciously" means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.
(2) "Victim" means any natural person against whom any crime as defined in s. 939.12 or under the laws of the United States is being or has been perpetrated or attempted in this state.
(3) "Witness" means any natural person who has been or is expected to be summoned to testify; who by reason of having relevant information is subject to call or likely to be called as a witness, whether or not any action or proceeding has as yet been commenced; whose declaration under oath is received as evidence for any purpose; who has provided information concerning any crime to any peace officer or prosecutor; who has provided information concerning a crime to any employee or agent of a law enforcement agency using a crime reporting telephone hotline or other telephone number provided by the law enforcement agency; or who has been served with a subpoena issued under s. 885.01 or under the authority of any court of this state or of the United States.
History: 1981 c. 118; 1993 a. 128.
940.42 Intimidation of witnesses; misdemeanor.
Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.
History: 1981 c. 118.
When a mother and child were to testify against the defendant and the defendant sent letters to the mother urging that she and the child not testify, regardless of whether the letters were addressed to the child or the child was aware of the letter's contents, the defendant attempted to dissuade the child through her mother. As the mother of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with the child, and to influence whether the child cooperated with the court proceedings, there was sufficient evidence to convict. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.
This section supports charging a person with a separate count for each letter sent, and each other act performed, for the purpose of attempting to dissuade any witness from attending or giving testimony at a court proceeding or trial. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.
940.43 Intimidation of witnesses; felony.
Whoever violates s. 940.42 under any of the following circumstances is guilty of a Class G felony:
(1) Where the act is accompanied by force or violence or attempted force or violence upon the witness, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the witness, or any person sharing a common domicile with the witness.
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).
(4) Where the act is in furtherance of any conspiracy.
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
(7) Where the act is committed by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.
History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2005 a. 280; 2007 a. 96; 2009 a. 28.
Conspiracy to intimidate a witness is included under sub. (4). State v. Seibert, 141 Wis. 2d 753, 416 N.W.2d 900 (Ct. App. 1987).
940.44 Intimidation of victims; misdemeanor.
Except as provided in s. 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:
(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
(2) Causing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof.
(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.
History: 1981 c. 118.
A jury instruction for a violation of s. 940.44 should specify the underlying crime and that a defendant cannot be found guilty of intimidating a victim of a crime unless the elements of the underlying crime are proved beyond a reasonable doubt. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).
Acquittal on the underlying charge does not require acquittal on a charge under s. 940.44 as the jury may have exercised its right to return a not guilty verdict irrespective of evidence on the underlying charge. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).
The disorderly conduct statute, s. 947.01, does not require a victim, but when the disorderly conduct is directed at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under this section. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95-1484.
In the phrase "causing a complaint ... to be sought and prosecuted and assisting in the prosecution thereof" in sub. (2), "and" is read in the disjunctive. Sub. (2) includes alleged acts of intimidation that occur after a victim has caused a complaint to be sought and applies to all acts of intimidation that attempt to prevent or dissuade a crime victim from providing any one or more of the following forms of assistance to prosecutors: 1) causing a complaint, indictment or information to be sought; 2) causing a complaint to be prosecuted; or, more generally, 3) assisting in a prosecution. State v. Freer, 2010 WI App 9, 323 Wis. 2d 29, 779 N.W.2d 12, 08-2233.
940.45 Intimidation of victims; felony.
Whoever violates s. 940.44 under any of the following circumstances is guilty of a Class G felony:
(1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the victim, or any person sharing a common domicile with the victim.
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).
(4) Where the act is in furtherance of any conspiracy.
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2007 a. 96; 2009 a. 28.
940.46 Attempt prosecuted as completed act.
Whoever attempts the commission of any act prohibited under ss. 940.42 to 940.45 is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or in fact intimidated is not a defense against any prosecution under ss. 940.42 to 940.45.
History: 1981 c. 118.
940.47 Court orders.
Any court with jurisdiction over any criminal matter, upon substantial evidence, which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, may issue orders including but not limited to any of the following:
(1) An order that a defendant not violate ss. 940.42 to 940.45.
(2) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, not violate ss. 940.42 to 940.45.
(3) An order that any person described in sub. (1) or (2) maintain a prescribed geographic distance from any specified witness or victim.
(4) An order that any person described in sub. (1) or (2) have no communication with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.
History: 1981 c. 118.
940.48 Violation of court orders.
Whoever violates an order issued under s. 940.47 may be punished as follows:
(1) If applicable, the person may be prosecuted under ss. 940.42 to 940.45.
(2) As a contempt of court under ch. 785. A finding of contempt is not a bar to prosecution under ss. 940.42 to 940.45, but:
(a) Any person who commits a contempt of court is entitled to credit for any punishment imposed therefor against any sentence imposed on conviction under ss. 940.42 to 940.45; and
(b) Any conviction or acquittal for any substantive offense under ss. 940.42 to 940.45 is a bar to subsequent punishment for contempt arising out of the same act.
(3) By the revocation of any form of pretrial release or forfeiture of bail and the issuance of a bench warrant for the defendant's arrest or remanding the defendant to custody. After hearing and on substantial evidence, the revocation may be made whether the violation of order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by the defendant.
History: 1981 c. 118.
940.49 Pretrial release.
Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed to include a condition that the defendant neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by ss. 940.42 to 940.45 and any willful violation of the condition is subject to punishment as prescribed in s. 940.48 (3) whether or not the defendant was the subject of an order under s. 940.47.
History: 1981 c. 118.
7.2.8.6.2.3 CA Penal Code, Title 9 secs. 261-269 (2011) 7.2.8.6.2.3 CA Penal Code, Title 9 secs. 261-269 (2011)
CA Penal Code §261
(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.
CA Penal Code § 261.5
(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.
(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.
(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.
(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(e)
(1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).
(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.
(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
CA Penal Code § 261.6
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.
CA Penal Code § 261.7
In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
CA Penal Code § 261.9
(a) Any person convicted of seeking to procure or procuring the sexual services of a prostitute in violation of subdivision (b) of Section 647, if the prostitute is under 18 years of age, shall be ordered by the court, in addition to any other penalty or fine imposed, to pay an additional fine in an amount not to exceed twenty-five thousand dollars ($25,000).
(b) Every fine imposed and collected pursuant to this section shall, upon appropriation by the Legislature, be available to fund programs and services for commercially sexually exploited minors in the counties where the underlying offenses are committed.
CA Penal Code § 262
(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.
(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress.
(c) As used in this section, "menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another.
(d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:
(1) That the defendant make payments to a battered women's shelter, up to a maximum of one thousand dollars ($1,000).
(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.
For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.
CA Penal Code § 263
The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.
CA Penal Code § 264
(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.
(b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.
(c)
(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.
(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
CA Penal Code § 264.1
(a) The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years.
(b)
(1) If the victim of an offense described in subdivision (a) is a child who is under 14 years of age, the defendant shall be punished by imprisonment in the state prison for 10, 12, or 14 years.
(2) If the victim of an offense described in subdivision (a) is a minor who is 14 years of age or older, the defendant shall be punished by imprisonment in the state prison for 7, 9, or 11 years.
(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.
CA Penal Code § 264.2
(a) Whenever there is an alleged violation or violations of subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5, 286, 288a, or 289, the law enforcement officer assigned to the case shall immediately provide the victim of the crime with the "Victims of Domestic Violence" card, as specified in subparagraph (G) of paragraph (9) of subdivision (c) of Section 13701.
(b)
(1) The law enforcement officer, or his or her agency, shall immediately notify the local rape victim counseling center, whenever a victim of an alleged violation of Section 261, 261.5, 262, 286, 288a, or 289 is transported to a hospital for any medical evidentiary or physical examination. The victim shall have the right to have a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, and a support person of the victim's choosing present at any medical evidentiary or physical examination.
(2) Prior to the commencement of any initial medical evidentiary or physical examination arising out of a sexual assault, a victim shall be notified orally or in writing by the medical provider that the victim has the right to have present a sexual assault counselor and at least one other support person of the victim's choosing.
(3) The hospital may verify with the law enforcement officer, or his or her agency, whether the local rape victim counseling center has been notified, upon the approval of the victim.
(4) A support person may be excluded from a medical evidentiary or physical examination if the law enforcement officer or medical provider determines that the presence of that individual would be detrimental to the purpose of the examination.
CA Penal Code § 265
Every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.
CA Penal Code § 266
Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment.
CA Penal Code § 266a
Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).
CA Penal Code § 266b
Every person who takes any other person unlawfully, and against his or her will, and by force, menace, or duress, compels him or her to live with such person in an illicit relation, against his or her consent, or to so live with any other person, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.
CA Penal Code § 266c
Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.
As used in this section, "fear" means the fear of physical injury or death to the person or to any relative of the person or member of the person's family.
CA Penal Code § 266d
Any person who receives any money or other valuable thing for or on account of placing in custody any other person for the purpose of causing the other person to cohabit with any person to whom the other person is not married, is guilty of a felony.
CA Penal Code § 266e
Every person who purchases, or pays any money or other valuable thing for, any person for the purpose of prostitution as defined in subdivision (b) of Section 647, or for the purpose of placing such person, for immoral purposes, in any house or place against his or her will, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.
CA Penal Code § 266f
Every person who sells any person or receives any money or other valuable thing for or on account of his or her placing in custody, for immoral purposes, any person, whether with or without his or her consent, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.
CA Penal Code § 266g
Every man who, by force, intimidation, threats, persuasion, promises, or any other means, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution, or connives at or consents to, or permits, the placing or leaving of his wife in a house of prostitution, or allows or permits her to remain therein, is guilty of a felony and punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years; and in all prosecutions under this section a wife is a competent witness against her husband.
CA Penal Code § 266h
(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years.
(b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows:
(1) If the person engaged in prostitution is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.
(2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
CA Penal Code § 266i
(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:
(1) Procures another person for the purpose of prostitution.
(2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.
(3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state.
(4) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.
(5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution.
(6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution.
(b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows:
(1) If the other person is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.
(2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.
CA Penal Code § 266j
Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000).
CA Penal Code § 266k
(a) Upon the conviction of any person for a violation of Section 266h or 266i, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed five thousand dollars ($5,000). In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, whether the defendant derived any economic gain as the result of the crime, and the extent to which the victim suffered losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs under Section 13837.
(b) Upon the conviction of any person for a violation of Section 266j or 267, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed twenty thousand dollars ($20,000).
(c) Fifty percent of the fines collected pursuant to subdivision (b) and deposited in the Victim-Witness Assistance Fund pursuant to subdivision (a) shall be granted to community-based organizations that serve minor victims of human trafficking.
(d) If the court orders a fine to be imposed pursuant to this section, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.
CA Penal Code § 267
Every person who takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).
CA Penal Code § 269
(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
(2) Rape or sexual penetration, in concert, in violation of Section 264.1.
(3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
(4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.
(5) Sexual penetration, in violation of subdivision (a) of Section 289.
(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.
(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.
7.2.8.6.2.4 Provisions of California Penal Code under which Brock Turner was convicted: Title 9 secs. 220(a)(1), 289(e), and 289(d) (2013). 7.2.8.6.2.4 Provisions of California Penal Code under which Brock Turner was convicted: Title 9 secs. 220(a)(1), 289(e), and 289(d) (2013).
CA Penal Code § 289. Forcible acts of sexual penetration; punishment
[. . .]
(e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
7.2.8.6.2.5 Amendments to CA Penal Code Following Convictions of Brock Turner, secs. 263.1, 1203.065 (Effective Jan. 1, 2017) 7.2.8.6.2.5 Amendments to CA Penal Code Following Convictions of Brock Turner, secs. 263.1, 1203.065 (Effective Jan. 1, 2017)
7.2.8.6.2.6. Model Penal Code 213 (1962)
7.2.8.6.2.7. Model Penal Code Proposed Section Article 213 (2016)
7.2.8.6.2.8. Antioch College Policy
7.2.8.6.2.9 CA Education Code, sec. 67386 (2016) 7.2.8.6.2.9 CA Education Code, sec. 67386 (2016)
CA Education Code § 67386. Adoption of policy concerning sexual assault, domestic violence, dating violence, and stalking; receipt of state funds; contents of policy
(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)), involving a student, both on and off campus. The policy shall include all of the following:
(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused's belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.
(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:
(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.
(2) Initial response by the institution's personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.
(3) Response to stranger and nonstranger sexual assault.
(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.
(5) Contacting and interviewing the accused.
(6) Seeking the identification and location of witnesses.
(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.
(8) Participation of victim advocates and other supporting people.
(9) Investigating allegations that alcohol or drugs were involved in the incident.
(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.
(11) The role of the institutional staff supervision.
(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.
(13) Procedures for confidential reporting by victims and third parties.
(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.
(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution's overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.
(e) Outreach programming shall be included as part of every incoming student's orientation.
7.2.8.6.3 V.C. Race History 7.2.8.6.3 V.C. Race History
7.2.8.6.3.1 Grandison v. State 7.2.8.6.3.1 Grandison v. State
21 Tenn. 451
GRANDISON, a Slave,
v.
THE STATE.
Supreme Court of Tennessee.
December, 1841.
Thompson, for Grandison; Attorney General, for the State.
Green, J., delivered the opinion of the court.
The defendant was convicted, in the circuit court of Warren county, of an assault and battery with intent to ravish Mary Douglass, and was sentenced to suffer death.
The first count in the indictment charges that the defendant did make an assault, and her, the said Mary Douglass, then and there, violently and against her will, feloniously did ravish and carnally know.
The second count charges that the negro slave Grandison did make an assault on her, the said Mary Douglass, then and there did beat, wound, and ill-treat, with intent her the said Mary Douglass, violently and against her will, then and there feloniously to ravish and carnally know.
This indictment is framed under the act of 1833, ch. 75, sec. 1, and the act of 1835, ch. 19, sec. 10 (Caruthers & Nicholson's Comp. Stat. 683). The act of 1833 provides that, if any negro or mulatto, whether bond or free, shall make an assault upon a white woman, with intent to commit a rape, and use violence to her person, such negro or mulatto, for such offense, shall suffer death by hanging.
The act of 1835 provides that any slave or slaves who shall commit an assault and battery upon any free white person, with an intent to commit murder in the first degree, or a rape upon a free white woman, shall, on conviction, be punished with death by hanging.
Both these acts make the offence of an assault and battery with [21 Tenn. 452] intent to commit a rape, by a negro, capital only on the ground that such person so assaulted with such intent shall be a white woman. Such an act committed upon a black woman would not be punished with death. It follows, therefore, most clearly, that this fact, which gives to the offense its enormity, and on account of which the punishment of death is inflicted, must be charged in the indictment and proved on the trial.
But this indictment contains no such charge. It alleges that the assault and battery was made upon Mary Douglass, with intent to ravish the said Mary Douglass.
Now, whether Mary Douglass be black or white, bond or free, the indictment does not disclose, and of course the court can not know. The name imports nothing, and if it did furnish some slight ground to suppose that a female named Mary Douglass might be a free white woman, most clearly it could not be any ground for omitting the express allegation of this material fact in the indictment.
As to the point suggested by defendant's counsel, that these acts making the offence of an assault and battery upon a white woman, with intent to ravish her, by a negro, capital, does not, by the expression woman, include the case of an infant under ten years, we deem it unnecessary to decide, as the judgment must be arrested upon the ground just mentioned.
It may be proper to remark that the caption to this record is wholly defective. It does not state where the court was holden, or that a grand jury of good and lawful men was empanelled. To presume that the court was holden at McMinnville, and that a grand jury was regularly empanelled, is going farther than any case has ever gone; and farther then we can go, consistently with that regularity and strictness which is required in criminal proceedings.
Let the judgment be reversed and arrested, and let the prisoner be remanded to the jail of Warren county to be proceeded against as the law directs.
7.2.8.6.3.2 Dorsey v. State 7.2.8.6.3.2 Dorsey v. State
34 S.E. 135
108 Ga. 477
DORSEY.
v.
STATE.
Supreme Court of Georgia.
July 26, 1899.
ASSAULT WITH INTENT TO RAPE EVIDENCE.
1. In order to authorize a conviction for the offense of assault with intent to rape, the evidence must show, beyond all reasonable doubt, (1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female. If any of these three elements is lacking, the offense is not made out.
2. Difference in race and social standing may properly be considered in determining, in cases of the character above referred to, whether there was a purpose to carry into effect the intent to have carnal knowledge of the female forcibly and against her will.
3. The evidence in the present case did not authorize a conviction.
4. Evidence warranting a jury in finding that a negro man, who had concealed himself by the side of a public road at a lonely point thereon, and at a late hour in the afternoon, suddenly sprang up, with a pistol in his hand, and rudely accosted an unprotected white woman, who was passing the place, with the words, "I have got you where I have wanted you for a long time, " whereupon she immediately turned and fled, and he hotly pursued her, until she came within reach of aid, was sufficient to support a verdict of assault with intent to rape; and where such a verdict has been returned upon evidence of this character, and approved by the [34 S.E. 136] trial judge, the supreme court ought not to set it aside. Per Lumpkin, P. J., and Little, J., dissenting.
(Syllabus by the Court.)
Error from superior court, Carroll county; S. W. Harris, Judge.
Bob Dorsey was convicted of assault with intent to rape, and brings error. Reversed.
Reese & Gordon, for plaintiff in error.
T. A. Atkinson, Sol. Gen., and W. D. Hamrick, for the State.
COBB, J.
The accused was convicted of an assault with intent to rape, and made a motion for a new trial, based on the general grounds and newly-discovered evidence. The motion having been overruled, he excepted.
Taking the evidence in the record most strongly against the accused, it warranted a finding of the following facts: Mrs. Vines, a white woman, was walking alone along a public road in the country, leading from the home of her husband to that of her father-in-law, at a late hour in the afternoon. When she bad reached a lonely point on the road, not within view of any dwelling, the accused, a negro, suddenly sprang up from behind some bushes at the side of the road, with a pistol in his hand, and said to Mrs. Vines, "I have got you where I have wanted you for a long time." He was then some 20 or 25 yards distant from her. She immediately turned and fled, and the accused pursued her for a distance of 70 to 75 yards. He did not relinquish his pursuit until she came within sight of her husband, who was at work in a field near the roadside. The accused then turned, and ran off through the woods. He did not get nearer to Mrs. Vines than 10 or 15 yards, nor did he make any attempt to shoot or otherwise injure her with the pistol.
We do not think that the evidence warranted a conviction of the crime charged in the indictment. To make out a case of assault with intent to rape, it is absolutely essential that the evidence should show beyond a reasonable doubt (1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female. If any one of these three elements is lacking, the offense is not made out To constitute an assault, no actual injury need be shown, it being only necessary to show an intention to commit an injury, coupled with an apparent ability to do so. Thomas v. State, 99 Ga. 38, 26 S. E. 748. Do the facts of this case bring it within the rule above stated? They show, of course, an apparent ability to commit an injury upon the female, although the accused never got within striking distance; but it is doubtful if the bare fact that the accused ran after, but did not overtake, her, when he most probably could have done so, coupled with the language that he used, is sufficient to constitute an assault. True, he had a pistol in his hand, but it was never pointed at the female, nor is there the slightest circumstance, save the bare fact that he had the pistol exposed, to show an intention to use it. Without going more fully into this branch of the case, we content ourselves with saying that it is doubtful if an assault has been proven.
The main point upon which we place our judgment is that the evidence does not show an intention on the part of the accused to have carnal knowledge of Mrs. Vines forcibly and against her will. An intention to do any one of three things might be inferred from this evidence, rob, frighten, or rape, or there might have been some other motive for his conduct difficult to conjecture. It is not sufficient that the intent to do one may as likely be presumed as an intention to commit the others; but the question is, is the intention to commit the crime charged "more likely to be true than any other"? Carter v. State, 35 Ga. 263. Now, can it be said that this evidence points with a greater degree of certainty to an intention to commit rape than to any other act? The female was walking along the road in the daytime. Her husband was not more than 100 yards away, though it does not appear that the accused knew this. The accused was concealed behind some bushes along the side of the road. Instead of waiting until she approached near enough for him to place his hands upon her, and detain her, and stop any outcries she might make, he emerges from behind the bushes when she gets within 20 or 25 yards of him. Is this the conduct of a man who intends to commit a rape? He had a pistol in his hand, but showed no intention of using it. He said he had her where he had wanted her for a long time. He did not advance upon her until she. turned to run. He chased her 75 yards, and never came closer to her than 10 or 15 steps. Surely, if urged on by a desire to have carnal knowledge, and knowing full well that this purpose, if accomplished at all, must be accomplished speedily, he could have overtaken her before she emerged from the woods. If he did not desire to commit this offense, what was his desire? We do not know. Possibly to rob, possibly to frighten, possibly something else; but we are not willing to say that his conduct showed, beyond a reasonable doubt, that there was more of an intention to commit one than the other. And, if it points to one with as great a degree of certainty as another, that which is the least heinous will be presumed to have been intended. This follows logically from the presumption of innocence which the law raises in favor of a person charged with crime.
The fact that the alleged assailant is a negro may, in eases like the one now under consideration, be properly considered for one purpose, and that is to rebut any presumption that might otherwise arise in favor of the accused that his intention was to obtain the consent of the female, upon failure of which [34 S.E. 137] he would abandon his purpose to have sexual intercourse with her. Under the conditions surrounding the two races in this state, when, in the trial of a person charged with assault with intent to commit a rape, the only theory of the defense is that the accused intended to have sexual intercourse, but that it was his purpose to desist if he met with opposition, if the assailant is a negro, and the female is a white woman, such a theory will avail nothing, unless the evidence shows either that the female was not a virtuous woman, or that she had in some way encouraged the approaches of her assailant. The vital question, however, to be considered, is whether, under the circumstances of the particular case, a negro could reasonably be presumed to have thought that a white woman would consent to his lustful embraces, and no such inference will ever arise in his favor unless the circumstances are such that no other inference can be possibly drawn. The ruling in the case of Jackson v. State, 91 Ga. 322, 18 S. E. 132, is to the above effect, but it goes no further. No decision of this court has ever been made in which it was held that evidence of the character relied on for a conviction in the present case was sufficient to convict one of the offense for which the accused was charged. On the contrary, the decisions heretofore made tend to establish an opposite conclusion. In the case of Carter v. State, 35 Ga. 263, a negro was found in bed with a white girl, and when she awakened he had his hand on her arm. That this evidence makes a much stronger case than the present one cannot be doubted. In the Ware Case, 67 Ga. 349, a girl 12 years of age was on her way, late in the evening, to a neighbor's house, when suddenly the accused, who was a grown man and a stranger, rushed out from the woods, demanded to know her name and business, took hold of her hand, squeezed it, clasped his arm around her waist, raised her from the ground, and started to bear her to the woods, threatening her life, and, when she threatened him with her father, he suddenly dropped her on the ground and fled. The most reasonable inference from such conduct was that the accused intended to commit a rape, and every other reasonable hypothesis is excluded. In the Jackson Case, supra, the accused was found by a girl about 12 o'clock at night sitting on her bed, she having been awakened by his calling her name. She sprang up, calling her father, when the accused got off of her bed, touching or catching hold of her foot as he did so. Her father was sleeping in a room near by. Grave doubts were expressed by Chief Justice Bleckley in the opinion in that case as to whether the evidence was sufficient to uphold the verdict, but the conclusion was finally reached that it was. We are also extremely doubtful as to the correctness of this decision, but that an intent to ravish was more certainly indicated than in the present case cannot be questioned. The case of Sharpe v. State, 48 Ga. 16, is very similar to the Carter Case, supra, and, if anything, stronger than that case. In Joice v. State, 53 Ga. 50, the accused went into the kitchen where a female was washing dishes. As she started out of the door, he blew out the light, and caught her around the waist, but did not pull her to him. She called her father, who came. The kitchen was about 30 yards from the house. A conviction for assault with intent to rape was set aside, on the ground that no intention to commit the offense had been shown. It does not appear to what race either the accused or the female belonged. The conclusion reached, we think, was manifestly right; but if a jury could not find from that evidence that there was an intention to rape, without regard to the race of the participants, it is difficult to see how a conviction founded on such evidence as the present record discloses can be upheld. The case of Johnson v. State, 63 Ga. 355, is the strongest case on this line in our Reports. In that case Sarah Cole was awakened at night by having some one place his hand over her mouth. She threw up her hand, and felt the kinky hair of a negro, when he grabbed her by the feet, and pulled her to the door. She screamed, and he ran. Chief Justice Warner in the opinion said: "There is no evidence in the record that we can discover, either by the defendant's confessions or otherwise, that he attempted to have carnal knowledge of Sarah Cole, as alleged in the indictment." Surely, if that case be a precedent, the conviction in the present case ought not to stand. The case of Jackson v. State, supra, was followed in Darden v. State, 97 Ga. 407, 25 S. E. 676. Darden was a negro, and the person alleged to have been assaulted was a white girl of 20 years. She was sleeping in her bedroom, and was awakened about midnight by the cover moving on her bed. She did not rise immediately, and the cover moved twice more, when she screamed for her father. When she did this, the accused jumped out of the window, and ran away. The room was dark. That the purpose of the accused in that case was to commit the offense for which he was convicted can hardly be doubted. In Gaskin v. State, 105 Ga. 631, 31 S. E. 740, a negro boy 16 or 17 years of age concealed himself at night under the bed of a white girl about 14 years old. He was discovered in this position by the girl and her mother, and fled through a window and escaped. It was held that the element of assault was not proven, as no overt act amounting to an assault was shown, and that the evidence was not sufficient to warrant a finding that the accused had any intention of committing a rape upon the girl. In the opinion it is said that "there should be no reasonable doubt as to the specific intent of the accused, from the facts and circumstances proven." If it cannot be said to be the intention of a negro boy who goes into the room of a white girl, and conceals himself under her bed, and, when dis-[34 S.E. 138]covered, makes his escape, to commit a rape upon her, we cannot understand how the facts of the present case would justify a conviction for this offense.
We have been able to find but one decision in the United States where a conviction for assault with intent to commit a rape was upheld under facts similar to those disclosed by the record in the present case. State v. Neely, 74 N. C. 425. That decision was rendered by a bare majority of the court, two of the judges dissenting. Rodman, J., in his dissenting opinion, admits that, under a prior decision of that court, there was evidence from which the jury could have convicted the accused of a simple assault, but insists that there was no evidence of intent to commit the offense charged. We quote the following extract from that opinion as being peculiarly appropriate to our discussion: "But the method of reasoning [of the majority] is misleading and objectionable on principle. It assumes that the prisoner is a brute, or so like a brute that it is safe to reason from the one to the other; that he is governed by brutish, and, in his case, vicious, passions, unrestrained by reason or a moral sense. The assumption is unreasonaable and unjust. * * * Assume, as the opinion of the court does, that the inquiry as to intent is to be conducted upon an analogy from the intents of brutes, you treat him worse than a brute, because what would not be vicious or criminal in a brute is vicious and criminal in him, being a man. When you assume him to be a brute, you assume him to be one of vicious properties. If that be true, what need of court and jury? The prisoner is not only ferae natur, but caput lupinum, whom any one may destroy without legal ceremony. The evidence of the prisoner's intent is circumstantial; the circumstances being the pursuit, and its abandonment when he got in sight of White's house. It is the admitted rule in such cases that, if there be any reasonable hypothesis upon which the circumstances are consistent with the prisoner's innocence, the judge should direct an acquittal; for in such cases there is no positive proof of guilt. The particular criminal intent charged must be proved. It will not do to prove that the prisoner had that intent or some other, although the other may have been criminal; and especially if the other, although immoral, was not criminal." This decision was never followed by the supreme court of North Carolina, and was expressly overruled in the case of State v. Massey, 86 N. C. 658, where the dissenting opinion from which the above extract is taken was approved by a unanimous bench. In the case of House v. State, 9 Tex. App. 53, a conviction upon what seems to us to be stronger evidence than that of the present case was set aside, and that, too, in a state where the social status of the negro is the same as with us. It appears from the evidence in that case that Miss Coulter, a white woman, was wash ing clothes in a wash room, and that about half past 5 o'clock in the morning she went into the yard to get a bucket of water. Just as she dipped up the water and turned around she saw the accused, a negro, standing at the corner of the kitchen, which was in the same building as the wash room. He came straight towards her, until he got up close enough to take hold of her, when he reached out both hands, as though he would take her in his arms. The woman screamed, and accused went away. He did not put his hands or her, nor say anything, during the occurrence above detailed. It was ascertained that the window of the wash room had been raised, and a stick placed under it, before the meeting of the parties. It was held that the offense was not made out. In Jones v. State, 18 Tex. App. 485, it appeared that a white girl was walking from one village to another through the country. She passed a mill where the accused, a negro, was working. After passing the mill, she looked back, and discovered the negro in her wake. The accused came up with her, caught her by the heels, seized her with one hand by the throat, and threw her to the ground. She screamed out, and he seized her by the throat with both hands, choking her violently, and placed his knee on her breast. After the girl had screamed out, and the accused had choked her, he jumped up and ran off, without having made any attempt to raise the girl's clothing, or to do anything but throw her down and choke her. Notwithstanding the difference in race between the parties, the court held that "each and every fact is consistent with the commission of an aggravated assault and battery." See, also, Burney v. State, 21 Tex. App. 565, 1 S. W. 458; Thomas v. State, 16 Tex. App. 535. In Green v. State, 67 Miss. 356, 7 South. 326, the evidence showed that the prosecutrix was riding in the daytime, alone, on horseback, along a country road. When she reached a place where the road crossed the railroad, she noticed the accused, a negro man, standing on the crossing. After riding two or three hundred yards beyond the crossing, she noticed that the accused was following her on foot, evidently having traveled very briskly, and she had ridden but very little further when he came up behind her, and caught her riding skirt. She immediately uttered an outcry, and urged her horse forward, when the accused, without having spoken a word, fled in another direction. It was ruled that: "It is conjecture, and not an inference reasonably drawn from the evidence, that the defendant intended a rape, rather than robbery or murder. Mere probability of guilt of a particular crime, and that, too, springing more from instinct than from facts proved, cannot support a conviction." In this case you have a lonely country road, an unprotected white female, and a negro, not only pursuing, but actually coming up with, the woman, and putting his hands on her riding skirt. See, [34 S.E. 139] also, State v. Donovan, 61 Iowa, 369, 16 N. W. 206; Hairston v. Com. (),32 S. E. 797. Cases might be multiplied, but, of course, each case must rest upon its peculiar facts. Suffice it to say that we have found nowhere in the books, with the single exception of the North Carolina case, supra, any case which, in our opinion, is authority for upholding the conviction in the present case. We cannot bring our minds to the conclusion that the evidence in the present case showed, beyond all reasonable doubt, that the accused intended to have carnal knowledge of Mrs. Vines forcibly and against her will. One who frightens and chases along the public road an unprotected female should meet with proper punishment for such conduct, but we cannot say that such conduct alone authorizes a conviction of the offense with which the accused was charged in the present case.
Judgment reversed.
All the justices concurring, except LUMPKIN, P. J., and LITTLE, J., dissenting.
LUMPKIN, P. J. (dissenting).
The naked question is whether or not, upon the state of facts set forth at the beginning of the above opinion, the verdict should be upheld. Beyond doubt, the evidence was sufficient to establish the commission by the accused of an assault of some kind. Thomas v. State, 99 Ga. 38, 26 S. E. 748, and authorities there cited. In that case, which is in some respects similar to the one now before us, it was held: "Where one raised a stick in a striking position, and ran towards another person fifty yards distant, at the same time threatening to beat that person, and the latter fled, whereupon the pursuer, after getting within about half the above-mentioned distance of the pursued, abandoned the pursuit, it was, under all the circumstances, a question for determination by a jury whether or not there was an intention to strike, and, if so, whether or not it could probably have been accomplished if the pursuit had been continued. If there was such an intention, and an apparent ability to carry it into effect, the offense of an assault was committed, though there may not have been an actual ability to inflict the battery intended. If there was no intention to strike at all, or if there was no real or apparent ability to inflict a battery, there was no assault." The offense there charged was a simple assault, and the court, in effect, ruled that the intention to beat was inferable from evidence showing that a threat was made by the accused to the prosecutrix in the following language: "Confound your soul! If you don't like what I said, I will take this to your head, "he at the same time using an oath, raising a stick, and starting towards her. See page 41, 99 Ga., and page 749, 26 S. E. There was nothing In the present case to indicate an intention on the part of the accused to beat Mrs. Vines. He made no threat or effort to do so, nor was there any thing in his conduct tending to show that he had any such purpose. It could not have been an assault with intent to murder; for, if this had been the object of the accused, he would unquestionably have used the pistol. It was something more than a bare assault or wicked purpose to frighten, or the accused would scarcely have persisted in the pursuit of Mrs. Vines until it became evident that assistance was at hand. It must, then, have been either an assault with intent to rob or an assault with intent to rape. There is scarcely any reason for even supposing that the object which the accused had in view was robbery. He did not demand of her money or property of any kind. Neither his words nor his acts were those to be naturally expected of a highwayman seeking plunder. Moreover, the theory that a robbery was contemplated is, we think, effectually negatived by the character of the language used by him. In the case of Thomas v. State, cited supra, this court was of the opinion that the threat to beat indicated an intention to beat. The remark addressed to Mrs. Vines is of the very greatest importance in arriving at the intention of her assailant. His precise words were: "I have got you where I have wanted you for a long time." What could such a remark mean, addressed by a negro to an unprotected white woman, at the time and place, and under the circumstances, above detailed? The answer to this question necessarily embraced in the verdict is that the accused meant to ravish. Is that answer so unreasonable that a reviewing court can properly say it was unwarranted? We cannot, of course, know with absolute certainty what the accused did mean; but, after careful and thorough deliberation, we are not prepared to say that the jury were not justified in finding that he desired to have sexual intercourse with Mrs. Vines, and intended by the remark addressed to her to express the idea that he at last had her in his power and at his mercy, with a view to the accomplishment of this end. We do not feel justified in saying that the jury could not reasonably conclude that such was the true import of the words he used. If he meditated having carnal knowledge of her person, he could not possibly have believed she would consent, and therefore it must have been his purpose to accomplish his design forcibly and against her will. When we take into consideration the lonely place, the approaching nightfall, the fact that assistance was apparently remote, and also the immeasurable difference in the social standing of these parties, we cannot say the jury erred in their conclusion that a rape was intended.
The case of Ware v. State, 67 Ga. 349, is in many respects similar to that now under consideration, though there the evidence of the lustful intention of the accused was more apparent. Still, there was no positive evidence of an intention to rape. In commenting upon the question of the intent of the [34 S.E. 140] accused in that case, Justice Speer said (page 352): "In seeking the motives of human conduct, the jury need not stop where the proof ceases. Inferences and deductions from human conduct are proper to be considered, where they flow naturally from the facts proved. And such conduct as this points with reasonable, if not with unerring, certainty to the lawless intent he had in view." And see, also, Jackson v. State, 91 Ga. 322, 18 S. E. 132, where a conviction of assault with intent to rape was upheld, although it was, in the opinion of this court, after long and anxious consideration, "a case on which the jury might well have doubted whether the accused intended to ravish, " but in which the conclusion was finally reached that there was sufficient evidence to sustain a finding that his purpose was to commit a rape. This was a case, too, in which was distinctly recognized the doctrine that difference in race and social standing might be considered in arriving at the intention of the accused.
This court cannot, consistently with the purposes of its organization, or with the precedents almost without number which it has itself established, set aside verdicts merely because there may be some ground for doubting their correctness. It is possible that Mrs. Vines may have been mistaken as to the identity of her assailant, and in this connection the jury, had they seen proper so to do, might have given more weight to the testimony relating to the defense of alibi which was set up. Again, they might have had a doubt as to the intention with which the assault was made. They were, however, the exclusive and legally appointed judges of all the issues and inferences of fact involved in the case, and this court has no authority to usurp their function. Granting the existence of room for doubt on the questions both of identity and intention, we do not think this verdict ought to be disturbed. As a pointed instance among the hundreds which could be cited of the steadfastness with which this court has adhered to its duty of declining to interfere with the findings of juries supported by evidence and approved by the trial judges, we quote from Chief Justice Bleckley in Railroad Co. v. Howard, 79 Ga. 54, 55, 3 S. E. 429. After intimating his own view of what the verdict in that case should have been, he said: "The jury have found to the contrary, and the court below, who was near to them. nearer to the case than we are, upheld their finding; and, because we are constrained by the law (for all the members of the court share in the doubt), we affirm the judgment. As matter of stern legal duty, this court yields its strong doubts to the correctness of the verdict."
The verdict in the present case comes here with the sanction of the trial judge's approval, and there was, in our judgment, enough evidence to warrant it. The opinion of the court, delivered by Mr. Justice COBB, is able and strong, but it does not convince us that the majority have reached the correct conclusion. None of the cases cited by him, whether decided by this court or in other jurisdictions, can be fairly regarded as binding authority in the case before us. They only resemble it in greater or less degree, and the reasoning from them is merely by analogy. Every case must, at last, be considered and determined upon its own facts. We venture, without fear of contradiction, the assertion that, if a statement of the facts proved in this case should be made to 1, 000 upright, intelligent, and fair-minded citizens of this state, taking them as they came, at least 900 of them would say they believed the accused intended to rape Mrs. Vines. Indeed, this is the very first idea that would occur to almost any mind, upon being informed of what he did. It does not, of course, follow that the accused ought to have been convicted; but, as he was convicted, how can a verdict which accords with common experience, and with the view which would naturally be entertained of it by good men, be so unreasonable as to require a reviewing court to set it aside? We are strengthened in our dissent from the judgment of the court by the fact that this particular verdict was upheld by one of the ablest, best, and most fearless judges who ever sat upon the bench of this or any other state. The finding of the jury was satisfactory to him, and we honestly believe it ought to be to this court.
7.2.8.6.3.3 State v. Petit 7.2.8.6.3.3 State v. Petit
119 La. 1013
STATE
v.
PETIT.
Supreme Court of Louisiana.
No. 16,672.
Nov. 4, 1907.
Appeal from Twenty-Eighth Judicial District Court, Parish of Jefferson; Prentice Ellis Edrington, Judge.
Pierre Petit was convicted of breaking and entering a certain dwelling house with intent to commit crime, and appeals. Affirmed.
The fact that a juror may be a justice of the peace or constable or deputy sheriff is not a sufficient cause for challenge under the express terms of section 2, Act No. 135, p. 217, of 1898. Exemption from jury duty is a personal privilege.
The fact that a juror may be engaged in operating a gambling game is no sufficient cause for challenge. The law excludes only those persons who have been convicted of some infamous crime. Const. 1898, art. 159.
Objections to the service of the jury list, based on the small number of regular jurors present for duty, if not seasonably urged, will be considered as waived.
Where the counsel for defendant opened a discussion on the subject of lynching negroes for criminal assault on white women, and argued that his client was innocent because he had not been lynched, and the district attorney thereupon replied that negro domination in times past had forced the white people to protect themselves, but that there was no longer any necessity for lynching, and every man, white or black, was entitled to a fair and impartial trial, held that, while the whole discussion was exceedingly improper and should have been repressed by the trial judge, the remarks of the district attorney could not be considered as an appeal to race prejudice for the purpose of influencing the jury.
Attorneys and Law Firms
*848 Frederick Anthony Middleton, for appellant.
Walter Guion, Atty. Gen., and Louis Herman Marrero, Jr., Dist. Atty. (Lewis Guion, of counsel), for the State.
Opinion
LAND, J.
Defendant was indicted for feloniously, in the nighttime, breaking and entering a certain dwelling house with the intent to commit the crime of rape, and also for an assault with intent to rape a certain woman then being in said dwelling house.
Defendant was tried and convicted on the first count of the indictment, and, after his motion for a new trial was overruled, was sentenced to imprisonment in the state penitentiary for the term of 14 years. Defendant has appealed from the sentence, and relies for reversal on a number of bills of exception, most of which appertain to the selection of the trial jury.
It appears that the court ordered the jury commissioners to select a venire of 30 additional jurors for service as regular jurors, and also that said special jury was duly drawn. It appeared from the sheriff's return on the venire that 6 of the jurors on the list could not be found, and that 1 was dead. Another juror failed to answer, and 6 were excused by the court, presumably for sufficient cause, and 2 more because of ignorance of the English language. The result was *849 that the trial venire was reduced to 14 jurors, but the accused made no objections to going to trial.
Bill of exception No. 1 was taken to the ruling of the court refusing to sustain a challenge for cause to juror Root, on the ground that he was a constable. Bill No. 2 was taken to a similar ruling in the case of juror Fargot, on the ground that he was a deputy sheriff. Bill No. 4 was reserved to a similar ruling in case of the juror Kerner, who was a justice of the peace.
Bills Nos. 5 and 6 were taken to similar rulings in the cases of two tales jurors, who held commissions as special deputy sheriffs. It does not appear that any one of these five jurors were sworn in, but we infer that all of them were challenged peremptorily by the defendant. Bill No. 6 was taken to the refusal of the court to sustain a challenge to tales juror Schenerman, on the ground that he held a commission as deputy sheriff. The defendant having exhausted all his peremptory challenges, this juror was sworn in as a member of the panel which tried the case.
There is no error in the rulings complained of, since the statute provides that the fact that a juror may be a judge or officer of court shall not be sufficient cause for challenge. Section 2, Act No. 135, p. 217, of 1898; State v. Carter, 106 La. 407, 30 South. 895; State v. Forbes, 111 La. 473, 35 South. 710.
We fail to appreciate the argument that this rule does not apply when five or six officials are summoned to serve on the same jury. You cannot increase zero by addition or multiplication.
Bill No. 3 was reserved to the overruling of a challenge to juror Reach, on the ground that his answers on voir dire showed that he was not a truthful man, in that the juror, after asserting that he was a ‘stable boy,’ admitted that he was employed in operating a gambling game, and on the further ground that said Reach, being engaged in a business prohibited by law, was not a competent juror. The trial judge states that, when first questioned as to his occupation, the juror answered jokingly, ‘Hyland's stable minder,’ believing that counsel for defendant was aware of his occupation. The judge considered the second ground of challenge as untenable. While the flippant answer of the juror deserved the animadversion of the court, he in the next breath answered frankly enough that he was engaged in conducting a game of chance in a gambling house. While the commissioners might have omitted from the list of jurors the names of persons engaged in gambling pursuits, the law excludes only those who have been convicted of some infamous crime. Const. 1898, art. 159. We see no reversible error in the ruling complained of, even if it was prejudicial, which is not at all clear on the face of the record, which shows that Reach did not serve as a juror.
Bill of exception No. 8 was reserved to certain alleged remarks of the district attorney to the jury. As the statement of the judge must prevail, we transcribe it in full, as follows:
‘Counsel for the accused in his argument said:
“Gentlemen of the jury, this man, a nigger, is charged with breaking into the house of a white man in the nighttime and assaulting his wife, with the intent to rape her. Now, don't you know that, if this nigger had committed such a crime, he never would have been brought here and tried; that he would have been lynched, and if I were there I would help pull on the rope.'
‘In his closing argument the district attorney in reply to the above statement, said:
“During the reconstruction days, when we had negro domination in this state, the Kuklux Klans were organized and the best people of the state shouldered their guns for the protection of our white people. During those days white people were thrown into jail and tried by negro justices of the peace and negro juries. Now we have no more negro domination, but a government by the white people, and hence no necessity for lynching.
“Every man, white or black, is entitled to and will have a fair and impartial trial, no matter what the charge might be, and the fact that this negro is given a fair trial is no reason why you should believe him innocent.'
‘This statement was made as an answer to the remarks made by counsel for the accused, who prompted the same. The court did not believe that said remarks were prejudicial. Counsel for the accused did not ask the court to interfere, and for those reasons did not take any steps to remove from the minds of the jury that which, at no time, the court believed to exist.’
The judge does not deny that counsel for the accused objected to the remarks of the district attorney at the time and reserved a bill of exceptions. Otherwise, we assume that the judge would not have signed the bill.
Counsel for the accused, in his zeal for his client, went outside of the record to postulate that it was the custom to lynch all negroes guilty of criminal assaults on white women, and to argue the innocence of the accused from the circumstance that he had not been lynched.
The district attorney, in reply, while admitting the intervention of Judge Lynch in times past, asserted that there was no longer any necessity for lynching; that every man, white or black, was entitled to a fair and impartial trial no matter what the charge might be; and that the circumstance that the accused had not been lynched was no evidence of his innocence.
While this discussion of matters outside of the record was highly improper, and should have been, in its inception, repressed by the trial judge, we fail to perceive in the remarks of the district attorney any appeal to racial prejudice for the purpose of influencing the jury. We may add that this inference is re-enforced by the fact that the verdict acquitted the accused of the crime of criminal assault as charged in the indictment.
No bill of exception was taken to the overruling of the motion for a new trial, which is *850 not supported by affidavit or other evidence. Moreover, the motion is not discussed in the brief of counsel for the accused.
We have considered and determined all the points raised by the bills of exception. In the brief of defendant's counsel the point is made that he was not served with the list of the jury which were to pass on his trial, because only 14 of the 30 jurors drawn and summoned participated in the trial. As a matter of fact a correct list of the jurors was served on the defendant, and he made no objections to going to trial on the ground that only 14 jurors were present. There is no precedent for raising such an objection for the first time in the Supreme Court.
Judgment affirmed.
7.2.8.6.4 V.D. Force 7.2.8.6.4 V.D. Force
7.2.8.6.4.1 State v. Rusk 7.2.8.6.4.1 State v. Rusk
STATE OF MARYLAND
v.
EDWARD SALVATORE RUSK
Court of Appeals of Maryland.
The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.
Stephen H. Sachs, Attorney General, with whom were Deborah K. Handel and Kathleen M. Sweeney, Assistant Attorneys General, on the brief, for appellant.
Ira C. Cooke, with whom were Melnicove, Kaufman & Weiner, P.A. on the brief, for appellee.
MURPHY, C.J., delivered the opinion of the Court. SMITH, DIGGES and COLE, JJ., dissent. COLE, J., filed a dissenting Opinion at page 247 infra, which SMITH and DIGGES, JJ., concur.
Edward Rusk was found guilty by a jury in the Criminal [232] Court of Baltimore (Karwacki, J. presiding) of second degree rape in violation of Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 463 (a) (1), which provides in pertinent part:
"A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the consent of the other person; ...."
On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction; it concluded by an 8 — 5 majority that in view of the prevailing law as set forth in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury. Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979). We granted certiorari to consider whether the Court of Special Appeals properly applied the principles of Hazel in determining that insufficient evidence had been produced to support Rusk's conviction.
At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.
The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E.J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily [233] interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.
Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "`I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "`Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.
Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "`Now, will you come up?'" Pat explained her subsequent actions:
"At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.
"Now, I know that I should have blown the horn. I should have run. There were a million things I [234] could have done. I was scared, at that point, and I didn't do any of them."
Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said `Come on up, come on up;' and when he took the keys, I knew that was wrong."
It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "`Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.
Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:
"I was still begging him to please let, you know, let me leave. I said, `you can get a lot of other girls down there, for what you want,' and he just kept saying, `no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, `If I do what you want, will you let me go without killing me?' [235] Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, `If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."
Pat testified that Rusk made her perform oral sex and then vaginal intercourse.
Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "`Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, `Yes;' and he asked me for my telephone number; and I said, `No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.
On her way home, Pat stopped at a gas station, went to the ladies room, and then drove "pretty much straight home and pulled up and parked the car." At first she was not going to say anything about the incident. She explained her initial reaction not to report the incident: "I didn't want to go through what I'm going through now [at the trial]." As she sat in her car reflecting on the incident, Pat said she began to "wonder what would happen if I hadn't of done what he wanted me to do. So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car." She reported the incident to the police at about 3:15 a.m. Subsequently, Pat took the police to Rusk's apartment, which she located without any great difficulty.
Pat's girlfriend Terry corroborated her testimony concerning the events which occurred up to the time that Pat left the bar with Rusk. Questioned about Pat's alcohol consumption, Terry said she was drinking screwdrivers that night but normally did not finish a drink. Terry testified about her acquaintanceship with Rusk: "I knew his face, and his first name, but I honestly couldn't tell you — apparently I ran into him sometime before. I couldn't tell you how I know him. I don't know him very well at all."
[236] Officer Hammett of the Baltimore City Police Department acknowledged receiving Pat's rape complaint at 3:15 a.m. on September 22, 1977. He accompanied her to the 3100 block of Guilford Avenue where it took Pat several minutes to locate Rusk's apartment. Officer Hammett entered Rusk's multi-dwelling apartment house, which contained at least six apartments, and arrested Rusk in a room on the second floor.
Hammett testified that Pat was sober, and she was taken to City Hospital for an examination. The examination disclosed that seminal fluid and spermatazoa were detected in Pat's vagina, on her underpants, and on the bed sheets recovered from Rusk's bed.
At the close of the State's case-in-chief, Rusk moved for a judgment of acquittal. In denying the motion, the trial court said:
"There is evidence that there is a taking of automobile keys forcibly, a request that the prosecuting witness accompany the Defendant to the upstairs apartment. She described a look in his eye which put her in fear.
"Now, you are absolutely correct that there was no weapon, no physical threatening testified to. However, while she was seated on a chair next to the bed, the Defendant excused himself, and came back in five minutes; and then she testifies, he pulled her on to the bed by reaching over and grabbing her wrists, and/or had her or requested, that she disrobe, and assist him in disrobing.
"Again, she said she was scared, and then she testified to something to the effect that she said to him, she was begging him to let her leave. She was scared. She started to cry. He started to strangle her softly she said. She asked the Defendant, that if she'd submit, would he not kill her, at which point he indicated that he would not; and she performed oral sex on him, and then had intercourse."
[237] Rusk and two of his friends, Michael Trimp and David Carroll, testified on his behalf. According to Trimp, they went in Carroll's car to Buggs' bar to dance, drink and "tr[y] to pick up some ladies." Rusk stayed at the bar, while the others went to get something to eat.
Trimp and Carroll next saw Rusk walking down the street arm-in-arm with a lady whom Trimp was unable to identify. Trimp asked Rusk if he needed a ride home. Rusk responded that the woman he was with was going to drive him home. Trimp testified that at about 2:00 — 2:30 a.m. he returned to the room he rented with Rusk on Guilford Avenue and found Rusk to be the only person present. Trimp said that as many as twelve people lived in the entire building and that the room he rented with Rusk was referred to as their "pit stop." Both Rusk and Trimp actually resided at places other than the Guilford Avenue room. Trimp testified that there was a telephone in the apartment.
Carroll's testimony corroborated Trimp's. He saw Rusk walking down the street arm-in-arm with a woman. He said "[s]he was kind of like, you know, snuggling up to him like.... She was hanging all over him then." Carroll was fairly certain that Pat was the woman who was with Rusk.
Rusk, the 31-year-old defendant, testified that he was in the Buggs Tavern for about thirty minutes when he noticed Pat standing at the bar. Rusk said: "She looked at me, and she smiled. I walked over and said, hi, and started talking to her." He did not remember either knowing or speaking to Terry. When Pat mentioned that she was about to leave, Rusk asked her if she wanted to go home with him. In response, Pat said that she would like to, but could not because she had her car. Rusk then suggested that they take her car. Pat agreed and they left the bar arm-in-arm.
Rusk testified that during the drive to her apartment, he discussed with Pat their similar marital situations and talked about their children. He said that Pat asked him if he was going to rape her. When he inquired why she was asking, Pat said that she had been raped once before. Rusk expressed his sympathy for her. Pat then asked him if he [238] planned to beat her. He inquired why she was asking and Pat explained that her husband used to beat her. Rusk again expressed his sympathy. He testified that at no time did Pat express a fear that she was being followed by her separated husband.
According to Rusk, when they arrived in front of his apartment Pat parked the car and turned the engine off. They sat for several minutes "petting each other." Rusk denied switching off the ignition and removing the keys. He said that they walked to the apartment house and proceeded up the stairs to his room. Rusk testified that Pat came willingly to his room and that at no time did he make threatening facial expressions. Once inside his room, Rusk left Pat alone for several minutes while he used the bathroom down the hall. Upon his return, he switched the light on but immediately turned it off because Pat, who was seated in the dark in a chair next to the bed, complained it was too bright. Rusk said that he sat on the bed across from Pat and reached out
"and started to put my arms around her, and started kissing her; and we fell back into the bed, and she — we were petting, kissing, and she stuck her hand down in my pants and started playing with me; and I undid her blouse, and took off her bra; and then I sat up and I said `Let's take our clothes off;' and she said, `Okay;' and I took my clothes off, and she took her clothes off; and then we proceeded to have intercourse."
Rusk explained that after the intercourse, Pat "got uptight."
"Well, she started to cry. She said that — she said, `You guys are all alike,' she says, `just out for,' you know, `one thing.'
"She started talking about — I don't know, she was crying and all. I tried to calm her down and all; and I said, `What's the matter?' And she said, that she just wanted to leave; and I said, `Well, okay;' [239] and she walked out to the car. I walked out to the car. She got in the car and left."
Rusk denied placing his hands on Pat's throat or attempting to strangle her. He also denied using force or threats of force to get Pat to have intercourse with him.
In reversing Rusk's second degree rape conviction, the Court of Special Appeals, quoting from Hazel, 221 Md. at 469, noted that:
"Force is an essential element of the crime [of rape] and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety."
Writing for the majority, Judge Thompson said:
"In all of the victim's testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that `the way he looked' fails utterly to support the fear required by Hazel." 43 Md. App. at 480.
The Court of Special Appeals interpreted Hazel as requiring a showing of a reasonable apprehension of fear in instances where the prosecutrix did not resist. It concluded:
"we find the evidence legally insufficient to warrant a conclusion that appellant's words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of `the look in his eyes.' After both were undressed and in the bed, and [240] she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the `lightly choking' could have been a heavy caress. We do not believe that `lightly choking' along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape." Id. at 484.
In argument before us on the merits of the case, the parties agreed that the issue was whether, in light of the principles of Hazel, there was evidence before the jury legally sufficient to prove beyond a reasonable doubt that the intercourse was "[b]y force or threat of force against the will and without the consent" of the victim in violation of Art. 27, § 463 (a) (1). Of course, due process requirements mandate that a criminal conviction not be obtained if the evidence does not reasonably support a finding of guilt beyond a reasonable doubt. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, as the Supreme Court made clear in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the reviewing court does not ask itself whether it believes that the evidence established guilt beyond a reasonable doubt; rather, the applicable standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319 (emphasis in original).
The vaginal intercourse once being established, the remaining elements of rape in the second degree under § 463 (a) (1) are, as in a prosecution for common law rape (1) force — actual or constructive, and (2) lack of consent. The terms in § 463 (a) (1) — "force," "threat of force," "against the will" and "without the consent" — are not defined in the statute, but are to be afforded their "judicially determined meaning" as applied in cases involving common law rape. [241] See Art. 27, § 464E.[1] In this regard, it is well settled that the terms "against the will" and "without the consent" are synonymous in the law of rape.[2]
Hazel, which was decided in 1960, long before the enactment of § 463 (a) (1), involved a prosecution for common law rape, there defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." 221 Md. at 468-69. The evidence in that case disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The Court said that the issue before it was whether "the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law." Id. at 468. It was in the context of this evidentiary background that the Court set forth the principles of law which controlled the [242] disposition of the case. It recognized that force and lack of consent are distinct elements of the crime of rape. It said:
"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id. at 469.
As to the element of lack of consent, the Court said in Hazel:
"[I]t is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent." Id.
The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear. The degree of fear necessary to obviate the need to prove resistance, and thereby establish lack of consent, was defined in the following manner:
"The kind of fear which would render resistance by a woman unnecessary to support a conviction of [243] rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist." Id. at 470.
Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and nonconsent, particularly when a threat rather than actual force is involved.
The Court noted in Hazel that the judges who heard the evidence, and who sat as the trier of fact in Hazel's non-jury case, had concluded that, in light of the defendant's acts of violence and threats of serious harm, there existed a genuine and continuing fear of such harm on the victim's part, so that the ensuing act of sexual intercourse under this fear "`amounted to a felonious and forcible act of the defendant against the will and consent of the prosecuting witness.'" In finding the evidence sufficient to sustain the conviction, the Court observed that "[t]he issue of whether the intercourse was accomplished by force and against the will and consent of the victim was one of credibility, properly to be resolved by the trial court." 221 Md. at 470.
Hazel did not expressly determine whether the victim's fear must be "reasonable." Its only reference to reasonableness related to whether "the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm...." 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious [244] bodily harm would suffice. The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.[3] We think that, generally, this is the correct standard.
As earlier indicated, the Court of Special Appeals held that a showing of a reasonable apprehension of fear was essential under Hazel to establish the elements of the offense where the victim did not resist. The Court did not believe, however, that the evidence was legally sufficient to demonstrate the existence of "a reasonable fear" which overcame Pat's ability to resist. In support of the Court's conclusion, Rusk maintains that the evidence showed that Pat voluntarily entered his apartment without being subjected to a "single threat nor a scintilla of force"; that she made no effort to run away nor did she scream for help; that she never exhibited a will to resist; and that her subjective reaction of fear to the situation in which she had voluntarily placed herself was unreasonable and exaggerated. Rusk claims that his acts were not reasonably calculated to overcome a will to resist; that Pat's verbal resistance was not resistance within the contemplation of Hazel; that his alleged menacing look did not constitute a threat of force; and that even had he pulled Pat to the bed, and lightly choked her, as she claimed, [245] these actions, viewed in the context of the entire incident — no prior threats having been made — would be insufficient to constitute force or a threat of force or render the intercourse nonconsensual.
We think the reversal of Rusk's conviction by the Court of Special Appeals was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had "trampled upon the first principle of appellate restraint ... [because it had] substituted [its] own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury ... [and had thereby] improperly invaded the province allotted to those tribunals." 43 Md. App. at 484-85. In view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); State v. Baldwin, 571 S.W.2d 236 (Mo. 1978); People v. Yannucci, 283 N.Y. 546, 29 N.E.2d 185 (1940); Schrum v. Commonwealth, 246 S.E.2d 893 (Va. 1978); Tryon v. State, 567 P.2d 290 (Wyo. 1977). The principle of these cases was applied in Giles v. State, 229 Md. 370, 382, 183 A.2d 359 (1962), a common law rape prosecution involving conflicting evidence as to the use of force and lack of consent, where the Court concluded that the question "whether the intercourse had been consented to or had been accomplished by force, was clearly one to be resolved by the trier of facts." Johnson v. State, 232 Md. 199, 192 A.2d 506 (1963), another rape case, is to the same effect. Applying the constitutional standard of review articulated in Jackson v. Virginia, supra, i.e. — whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt — it is readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. Of course, it was for the jury to observe the witnesses and their demeanor, and to judge their credibility and weigh their testimony. Quite obviously, the [246] jury disbelieved Rusk and believed Pat's testimony. From her testimony, the jury could have reasonably concluded that the taking of her car keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was not familiar; that after Pat had repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared that Rusk intended to rape her; that unable to think clearly and believing that she had no other choice in the circumstances, Pat entered Rusk's apartment; that once inside Pat asked permission to leave but Rusk told her to stay; that he then pulled Pat by the arms to the bed and undressed her; that Pat was afraid that Rusk would kill her unless she submitted; that she began to cry and Rusk then put his hands on her throat and began "`lightly to choke'" her; that Pat asked him if he would let her go without killing her if she complied with his demands; that Rusk gave an affirmative response, after which she finally submitted.
Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel, supra; Dumer v. State, 64 Wis.2d 590, 219 N.W.2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v. Benavidez, 63 Cal. Rptr. 357, 255 C.A.2d 563 (1967); State v. Douglas, 256 La. 572, 237 So.2d 382, death sentence vacated, 408 U.S. 937, 92 S.Ct. 2864, 33 L.Ed.2d 756 (1970); State v. Bouldin, 153 Mont. 276, 456 P.2d 830 (1969); Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980). That a victim did not scream out for help or attempt to escape, while bearing on the question of consent, is unnecessary where she is restrained by fear of violence. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); Holland v. State, 356 N.E.2d 686 (Ind. App. 1976); State v. Stevenson, 195 N.W.2d 358 (Iowa 1972).
Considering all of the evidence in the case, with particular focus upon the actual force applied by Rusk to Pat's neck, we conclude that the jury could rationally find that the essential [247] elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.
Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that it affirm the judgment of the Criminal Court of Baltimore; costs to be paid by the appellee.
Cole, J., dissenting:
I agree with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape. I, therefore, respectfully dissent.
The standard of appellate review in deciding a question of sufficiency, as the majority correctly notes, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, it is equally well settled that when one of the essential elements of a crime is not sustained by the evidence, the conviction of the defendant cannot stand as a matter of law.
The majority, in applying this standard, concludes that "[i]n view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine." In so concluding, the majority has skipped over the crucial issue. It seems to me that whether the prosecutrix's fear is reasonable becomes a question only after the court determines that the defendant's conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist. In other words, the fear must stem from his articulable conduct, and equally, if not more importantly, [248] cannot be inconsistent with her own contemporaneous reaction to that conduct. The conduct of the defendant, in and of itself, must clearly indicate force or the threat of force such as to overpower the prosecutrix's ability to resist or will to resist. In my view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.
This Court defined rape in Hazel v. State, 221 Md. 464, 468-69, 157 A.2d 922 (1960), as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." The Court went on to declare that "[f]orce is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety." 221 Md. at 469. We noted that "no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances." Id. However, we hastened to add that "[i]f the acts and threats of the defendant [are] reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she [is] placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force." Id.
To avoid any confusion about the substantive law to be applied, we further stated in Hazel that while
[t]he authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent ... the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or so terrified by threats as to overcome her will to resist. [221 Md. at 469-70.]
[249] By way of illustration, we cited certain cases. In State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946), the victim and her friend, Straughan, were riding in a car which stalled and could not be started again even with the help of the defendants, who were strangers. One of the defendants persuaded Straughan to accompany him down the road to get a chain for the purpose of towing the car. After Straughan and one defendant left, the other three forcibly took the victim from her car into an unfinished house, a block away, and each had intercourse with her. The victim did not object to intercourse with the three defendants because she was frightened and afraid they would kill her. In addition, it was plainly a jury question whether the prosecutrix was "[i]n such place and position that resistance would have been useless." 40 S.E.2d at 625 (quoting Mills v. United States, 164 U.S. 644, 649, 17 S.Ct. 210, 41 L.Ed. 584 (1879)).
In State v. Dill, 3 Terry 533, 40 A.2d 443 (Del. 1944), the State produced evidence to show that the victim, her husband, and two children were impeded in their return home when their automobile stalled on the highway near a tavern. The husband got out and began walking home for gas, leaving his wife and two children in the car. Sometime later, the defendant happened upon the scene and induced the wife to let him take her in his automobile for the purpose of overtaking her husband along the road. Instead, the defendant drove his car off the highway into a private lane. When the car stopped, the wife got out of the car and attempted to flee but was overtaken by the defendant who on the grass plot between the two highway lanes had sexual intercourse with her.
The trial judge, in submitting the case to the jury, instructed them, in part, as follows:
In the absence of excusing circumstances it must be shown that the woman did resent the attack made upon her in good faith and without pretense, with an active determination to prevent the violation of her person, and was not merely passive and perfunctory in her resistance. [40 A.2d at 445.] [Emphasis supplied.]
[250] In State v. Hoffman, 228 Wis. 235, 280 N.W. 357 (1938), the complaining witness entered the defendant's car under friendly circumstances and was driven out into the country without protest. When the defendant made his advances she shouted she was going home, pulled away from him and ran. He caught up with her and there was a tussle; she fell and tried to kick him. Again she ran and he caught her and said "if you run again I will choke you and throw you in the ditch...." 280 N.W. at 360. After that she walked with him back to the car. He did not order her to get in, but begged her. No force was used thereafter. Finally, she consented and acquiesced in the events which followed. At trial the complainant testified she was terribly frightened. Nevertheless the court concluded:
Suffice it to say that we have painstakingly read and re-read her testimony with the result that in our opinion it falls far short of proving that resistance which our law requires, unless her failure to resist was excused because of a fear of death or of great bodily harm or unless she was so terrified as to be unable to resist the defendant. It is apparently conceded by the State that her resistance was insufficient to prove the crime of rape unless her acquiescence or submission to the defendant was the result of that fear which our settled rules require. From the testimony of the complaining witness, it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof and that she was in no reasonable sense dominated by that fear which excused the "utmost resistance" within her power.
While the evidence is well calculated to arouse keen indignation against the defendant who so persistently and importunately pursued the complaining witness, who at that time was a virgin, it falls short, in our opinion, of proving a case of rape. [280 N.W. at 360-361.]
[251] In Selvage v. State, 148 Neb. 409, 27 N.W.2d 636 (1947), an 18-year-old woman went to a dance with her brother and later decided to go to a cafe with the defendants and some other acquaintances. They drove to a ball park several blocks away where she and the defendant and another got out. The others in the car drove away. She and the two males walked about a block into the park; she refused their advances for intercourse. She claimed they threw her to the ground, held her while they took turns having sexual intercourse. While this was going on a car with its lights on drove up and the two young men hurried some distance away from her. She made no outcry, nor attempted to communicate with the people in this car. Later at a different place in the park, she claimed each had intercourse with her again. The three walked back to the cafe, drank coffee, and waited to get a car to take them to the city near her home. When they finally got a car, she testified the two repeated the acts of intercourse with her. She resisted but made no complaint to those riding in the front seat. When she got home she related to her parents what had happened.
The Supreme Court of Nebraska, in holding the evidence insufficient to convict for rape, said:
Resistance or opposition by mere words is not enough; the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman. She must resist the consummation of the act, and her resistance must not be a mere pretense, but must be in good faith, and must persist until the offense is consummated. [27 N.W.2d at 637.]
In Kidd v. State, 97 Okla. Crim. 415, 266 P.2d 992 (1953), the rape took place in a car in an isolated spot. One assailant in that case told the victim that if she did not shut up he would kill her with a beer bottle. "By the time [the defendant] took over," the court concluded, "this victim was whipped down and demoralized." 266 P.2d at 1001.
These cases make plain that Hazel intended to require clear and cognizable evidence of force or the threat of force [252] sufficient to overcome or prevent resistance by the female before there would arise a jury question of whether the prosecutrix had a reasonable apprehension of harm.[*] The majority today departs from this requirement and places its imprimatur on the female's conclusory statements that she was in fear, as sufficient to support a conviction of rape.
It is significant to note that in each of the fourteen reported rape cases decided since Hazel, in which sufficiency of the evidence was the issue, the appellate courts of this State have adhered to the requirement that evidence of force or the threat of force overcoming or preventing resistance by the female must be demonstrated on the record to sustain a conviction. In two of those cases, Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, certiorari dismissed as improvidently granted, September 18, 1979, and Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970), the convictions were reversed by the Court of Special Appeals. Goldberg concerned a student, professing to be a talent agent, who lured a young woman to an apartment upon the pretext of offering her a modeling job. She freely accompanied him, and though she protested verbally, she did not physically resist his advances. The Court of Special Appeals held:
The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant's advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be "the equivalent of force". (Hazel v. State, supra, at 469.) Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. [41 Md. App. at 69.] [Footnote omitted.]
[253] In Winegan, the appellant's conviction was reversed because, although the prosecutrix accompanied him to a boarding house and had sexual intercourse only because she thought he had a gun, he in fact had no gun nor at any time claimed to have one. It was on this basis, coupled with the facts that (1) the complainant at no time made outcry and (2) she followed him up the steps to his room, that the court concluded that her fear, if actually present, was so unreasonable as to preclude a conviction for rape.
Of the other twelve cases, four from this Court, not one contains the paucity of evidence regarding force or threat of force which exists in the case sub judice. In Johnson, Jr. v. State, 232 Md. 199, 192 A.2d 506 (1963), the court stated that although there was some evidence tending to indicate consent, which, standing alone, might have justified a judgment of acquittal, there was also evidence of violent acts and verbal threats on the part of the appellant, which, if believed, would have been the equivalent of such force as was reasonably calculated to create the apprehension of imminent bodily harm which could have impaired or overcome the victim's will to resist. In that case, the court related:
The acts alluded to took place at the parked car. The jury had testimony before it that obscene remarks and threats were directed to her and [her companion] while they were locked in the car, and that rocks were thrown at the windows, breaking them. [The prosecutrix] testified that one of the three men suggested shooting [her companion]. The victim may have submitted to sexual relations but that does not necessarily imply consent. [232 Md. at 204.]
In Thompson v. State, 230 Md. 113, 186 A.2d 461 (1962), the victim was murdered and there was no question whether the act had been accomplished by force. The woman died as a result of injuries she sustained.
In Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 [254] (1963), as in Johnson, there was some evidence tending to indicate consent, "[b]ut there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force...." 229 Md. at 381.
In Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960), as in Thompson, the victims were killed in the attempt or perpetration of rape.
In Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980), the Court of Special Appeals upheld a rape conviction in a case in which the victim was physically harmed in the assault. She "received substantial injuries to her genital area, requiring as noted, surgical suturing. This was force, raw, actual force; unnecessary force; force beyond that normally involved in completing the coital act." 45 Md. App. at 70 (emphasis supplied). In addition, the assailant made "pointed and repeated reference to having a knife, [which,] under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in [the victim's] mind a real apprehension of serious and imminent bodily injury if she did not comply...." 45 Md. App. at 70-71. At the time, the court concluded, the victim was absolutely helpless.
In Briscoe v. State, 40 Md. App. 120, 388 A.2d 153, cert. denied, 283 Md. 730 (1978), the facts were similar to those in Hazel. The assailant broke into the victim's home, pointed a shotgun at her and tied her up.
In Dove v. State, 33 Md. App. 601, 365 A.2d 1009 (1976), "the victim tried to run, but was leaped upon and smothered when she fell. There [was] nothing to indicate she would not have been injured more substantially if she had continued to resist his advances." 33 Md. App. at 617.
Along the same lines was Burnette v. State, 15 Md. App. 371, 290 A.2d 816 (1972). The victim "was alone with appellant who in a lonely spot assaulted and beat her." 15 Md. App. at 377. And in Coward v. State, 10 Md. App. 127, 268 A.2d 508, cert. denied, 259 Md. 730 (1970), the victim was driven to a wooded area by two men, and the driver threatened to break her neck.
[255] In Rice v. State, 9 Md. App. 552, 267 A.2d 261, cert. denied, 259 Md. 735 (1970), it was explained: "Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter." 9 Md. App. at 560.
And in Walter v. State, 9 Md. App. 385, 264 A.2d 882, cert. denied, 258 Md. 731 (1970), and Lucas v. State, 2 Md. App. 590, 235 A.2d 780, cert. denied, 249 Md. 732 (1968), the circumstances were also persuasive to show fear induced by force or threats. In Walter a police officer subdued a woman who, realizing he had a gun, became hysterical. She was also afraid of his abrupt tone of voice. The court concluded that it was "apparent the accused deliberately placed the victim in a situation where she would be afraid, with the expectation she would thereby yield to his lustful demands without physical resistance." 9 Md. App. at 395. In Lucas the perpetrator threatened the victim and her four infant children with a knife.
In each of the above 12 cases there was either physical violence or specific threatening words or conduct which were calculated to create a very real and specific fear of immediate physical injury to the victim if she did not comply, coupled with the apparent power to execute those threats in the event of non-submission.
While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance. She may not simply say, "I was really scared," and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist. She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. The law [256] regards rape as a crime of violence. The majority today attenuates this proposition. It declares the innocence of an at best distraught young woman. It does not demonstrate the defendant's guilt of the crime of rape.
My examination of the evidence in a light most favorable to the State reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be so fearful that she should fail to resist and thus, the element of force is lacking in the State's proof.
Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances. They drink and talk together. She agrees to give him a ride home in her car. When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses. According to her testimony he takes her keys, walks around to her side of the car, and says "Now will you come up?" She answers, "yes." The majority suggests that "from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar...." But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above. How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm? There was no weapon, no threat to inflict physical injury.
She also testified that she was afraid of "the way he looked," and afraid of his statement, "come on up, come on up." But what can the majority conclude from this statement coupled with a "look" that remained undescribed? There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination.
After reaching the room she described what occurred as follows:
[257] I was still begging him to please let, you know, let me leave. I said, "you can get a lot of other girls down there, for what you want," and he just kept saying, "no," and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, "If I do what you want, will you let me go without killing me?" Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat and started lightly to choke me; and I said "If I do what you want, will you let me go?" And he said, yes, and at that time, I proceeded to do what he wanted me to.
The majority relies on the trial court's statement that the defendant responded affirmatively to her question "If I do what you want, will you let me go without killing me?" The majority further suggests that the jury could infer the defendant's affirmative response. The facts belie such inference since by the prosecutrix's own testimony the defendant made no response. He said nothing!
She then testified that she started to cry and he "started lightly to choke" her, whatever that means. Obviously, the choking was not of any persuasive significance. During this "choking" she was able to talk. She said "If I do what you want will you let me go?" It was at this point that the defendant said yes.
I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse. In the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, I find it difficult to understand how a victim could participate in these sexual activities and not be willing.
What was the nature and extent of her fear anyhow? She herself testified she was "fearful that maybe I had someone following me." She was afraid because she didn't know him [258] and she was afraid he was going to "rape" her. But there are no acts or conduct on the part of the defendant to suggest that these fears were created by the defendant or that he made any objective, identifiable threats to her which would give rise to this woman's failure to flee, summon help, scream, or make physical resistance.
As the defendant well knew, this was not a child. This was a married woman with children, a woman familiar with the social setting in which these two actors met. It was an ordinary city street, not an isolated spot. He had not forced his way into her car; he had not taken advantage of a difference in years or any state of intoxication or mental or physical incapacity on her part. He did not grapple with her. She got out of the car, walked with him across the street and followed him up the stairs to his room. She certainly had to realize that they were not going upstairs to play Scrabble.
Once in the room she waited while he went to the bathroom where he stayed for five minutes. In his absence, the room was lighted but she did not seek a means of escape. She did not even "try the door" to determine if it was locked. She waited.
Upon his return, he turned off the lights and pulled her on the bed. There is no suggestion or inference to be drawn from her testimony that he yanked her on the bed or in any manner physically abused her by this conduct. As a matter of fact there is no suggestion by her that he bruised or hurt her in any manner, or that the "choking" was intended to be disabling.
He then proceeded to unbutton her blouse and her bra. He did not rip her clothes off or use any greater force than was necessary to unfasten her garments. He did not even complete this procedure but requested that she do it, which she did "because he asked me to." However, she not only removed her clothing but took his clothes off, too.
Then for a while they lay together on the bed kissing, though she says she did not return his kisses. However, without protest she then proceeded to perform oral sex and later submitted to vaginal intercourse. After these activities [259] were completed, she asked to leave. They dressed and he walked her to her car and asked to see her again. She indicated that perhaps they might meet at Fells Point. He gave her directions home and returned to his apartment where the police found him later that morning.
The record does not disclose the basis for this young woman's misgivings about her experience with the defendant. The only substantive fear she had was that she would be late arriving home. The objective facts make it inherently improbable that the defendant's conduct generated any fear for her physical well-being.
In my judgment the State failed to prove the essential element of force beyond a reasonable doubt and, therefore, the judgment of conviction should be reversed.
Judges Smith and Digges have authorized me to state that they concur in the views expressed herein.
APPENDIX
In the following cases rape convictions were overturned because the requirement of force necessary to affirmatively demonstrate lack of consent was not strictly complied with, or the facts were so sketchy or inherently improbable that this element could not be established, as a matter of law, beyond a reasonable doubt.
In Zamora v. State, 449 S.W.2d 43 (Tex. Crim. App. 1969), it was held that the evidence was insufficient to sustain a conviction of rape by force and threats where the sixteen-year-old prosecutrix, who had been engaging in sexual relations with the defendant stepfather for about six years, went to his bedroom to take him coffee, did not try to leave, took off part of her clothes at his request, made no outcry, and did not resist in any way, even though she knew what was going to happen when she sat on the bed. On appeal reference was made to certain threats which, if sufficient, would have excused the complainant's failure to resist. The defendant threatened to put the girl in a juvenile home and to whip her younger brother and sisters if she told her [260] mother. But the court explained, "the threats that were made occurred after the alleged act and were not made to cause the prosecutrix to yield, but to prevent her from informing her mother." 449 S.W.2d at 47 (emphasis supplied). The conviction was reversed.
In People v. Bales, 74 Cal. App.2d 732, 169 P.2d 262 (1946), the complaining witness testified that she met the appellant in a bar and later he physically forced her into his car and drove off. (The evidence in this respect was sufficient to sustain a charge of kidnapping.) Appellant next drove the woman down the highway and stopped the car off the road. He "came around to her side, and make a remark to the effect that he would then find out what kind of woman she was." 169 P.2d at 264. She testified "that she was `afraid' of the threat." Id. The court concluded:
There is an entire absence of evidence that she voiced any objection, made any appeal for help or tried to fight or struggle. There is no evidence of any force or threat by the appellant at that time, and no substantial evidence of any apprehension of immediate bodily harm accompanied by apparent power of execution. The evidence material to his charge fails to show either any reasonable resistance or any reasonable excuse for its absence. The old rule that there must be resistance to the utmost has been relaxed (People v. Cline, 117 Cal. App. 181, 3 P.2d 575), but not to the extent of doing away with the need of showing some resistance or, in proper cases, showing facts which fairly indicate some good reason for not resisting. [169 P.2d at 265.]
In Farrar v. United States, 275 F.2d 868 (D.C. Cir.1959), opinion amended (1960), the words of Chief Judge Prettyman, speaking for the court, are better left to speak for themselves:
As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it [261] is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, "I was scared," and thus transform an apparent consent into a legal non-consent which makes the man's act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.
In the case at bar there was an apparent acquiescence on the girl's part. She said she took off all her clothes, lay down on the bed, and had intercourse twice, some forty-five minutes apart. But she said she did this because she was scared. And she was quite clear, emphatic and insistent upon the cause of her fear; the man had a knife in his hand. The reason for her fear was tangible and definite. It was a knife, and it was in his hand. She so testified repeatedly.
But she never saw any knife. Now it is perfectly apparent that, if this man had had a knife in his hand while he was doing all the things she said he did over this two or three hour period, she must have seen it. He could not have had a knife and have done all these things, with her watching him as she said she did, without her seeing the knife. As a matter of fact, at the close of the Government's testimony the trial judge struck from the record all the testimony concerning the knife, "leaving her testimony in that it was something that felt sharp and felt like a knife." The judge said if there had been a knife the girl would have seen it.
...
Upon the foregoing facts and circumstances, when the knife disappeared from the record as a possible fact, the charge of rape disappeared, as I view the matter. The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear. The only factual substance to [262] any of the intangible threats allegedly made by him to her was the knife. There was no force or violence and no threat or fear of force or violence except for the knife. The charge of rape rested upon the presence of the knife. The Government failed to prove a case of rape. [275 F.2d at 876-77.] [Footnotes omitted.]
In Gonzales v. State, 516 P.2d 592 (Wyo. 1973), the complaining witness was 33 years old and the divorced mother of three children. She was working in a bar and defendant, someone she knew, came in shortly before closing and had been drinking. He asked her for a ride home and she refused, but he followed her and got into her car anyway. She testified she was nervous and scared at the time and made no further protest nor signalled with her horn. On a side road "[h]e asked her to stop `to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car...." 516 P.2d at 593.
When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, "I'm going to do it. You can have it one way or the other." [Id.]
There were no other threats. The witness testified she knew defendant's temper and was scared of him. She related several previous incidents to sustain her knowledge of his temper. The court concluded, "This is not a firm basis upon which to sketch a man of violence and one who would inspire fear." 516 P.2d at 593-94. It should be noted that although the conviction was reversed on other grounds, the court concluded that:
[i]nasmuch as the case must be retried in conformity with these principles [having quoted from Farrar and cited Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970)] we do not deem it amiss to state it is not entirely fair to a trial court or to the defendant to rely on the sketchy showing and lack of detail presented at this trial. [516 P.2d at 595.]
[263] There are a number of other cases in which the threats relied upon were found insufficient. In State v. Horne, 12 Utah, 2d 162, 364 P.2d 109 (1961), the prosecutrix was a 21-year-old married woman with two young children. They lived in a trailer. The defendant and she were acquainted, and he had visited her on previous occasions. On this particular night he entered her trailer uninvited and stated he was going to make love to her. She protested, she struggled, and her little girl, who had been asleep in her mother's bed, awoke and began crying. Finally he let her go to the bathroom and she refused to come out. He came and got her and they struggled some more. Eventually she gave in. She testified she was afraid for her children.
The court set forth the rule to be applied and applied it to the facts:
The old rule of "resistance to the utmost" is obsolete. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make reasonable for her to do in order to manifest her opposition. However, in determining the sufficiency of the evidence, there must be considered the ease of assertion of the forcible accomplishment of the sexual act, with impossibility of defense except by direct denial, or of the proneness of the woman, when she finds the fact of her disgrace discovered or likely of discovery to minimize her fault by asserting force or violence, which had led courts to hold to a very strict rule of proof in such cases.
...
The prosecutrix did not attempt to leave the trailer to seek help, although she had ample opportunity. When she went to the bathroom the defendant, according to her testimony, had already removed his pants and had made indecent proposals and advances. Yet, she did not avail herself of the opportunity to seek help. It is the natural impulse of every honest and virtuous female to flee from threatened outrage. Her explanation that she did [264] not want to leave the children alone with the defendant is a rather weak one, to say the least. It would have taken less than a minute to rouse her neighbors. Furthermore, she left the defendant with the children for 10 to 15 minutes while she was in the bathroom.
...
There was no evidence of any threats made to either the prosecutrix or her children.
We have carefully evaluated the testimony of the prosecutrix and conclude that it is so inherently improbable as to be unworthy of belief and that, upon objective analysis, it appears that reasonable minds could not believe beyond a reasonable doubt that the defendant was guilty. The jury's verdict cannot stand. [364 P.2d at 112-13.] [Footnotes omitted.]
In Johnson v. State, 118 So.2d 806 (Fla. Dist. Ct. App. 1960), the evidence was insufficient to sustain a jury finding that the prosecutrix was forced against her will to have intercourse with defendant or that her fear was sufficient for the jury to find that defendant was guilty of rape through fear. In this case an eighteen-year-old high school student accepted a ride home from an acquaintance, which eventually led to her seduction. At no time did the defendant threaten her with any weapon. She screamed, but did not resist in any other way, nor attempt to flee. Quoting from State v. Remley, 237 S.W. 489, 492 (Mo. 1922), the Florida court stated:
The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts [265] to which they relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, [41 S.W. 973, 43 S.W. 1095]. But we do hold that statements made by a witness that are not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness, and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding. [118 So.2d at 815-16.]
And in People v. Blevins, 98 Ill. App.2d 172, 240 N.E.2d 434 (1968), the evidence was insufficient where there were unexplained inconsistencies in the prosecution's case and the defendant was found peacefully asleep at the scene of the "crime" when arrested.
Even in the closest cases which have been upheld by other jurisdictions there existed more evidence of threat-induced fear of imminent bodily harm than existed in the present case.
In Brown v. State, 59 Wis. 200, 207 N.W.2d 602 (1973), the defendant threatened his victim with a water pistol. She had reason to believe it was real, and reason to believe he would shoot her if she did not comply.
In Johnson v. United States, 426 F.2d 651, 654 (D.C. Cir.1970), the victim's failure to resist "was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location and told her it would be useless for her to scream because no one would hear." (Emphasis in original.)
In Brown v. State, 581 P.2d 189 (Wyo. 1978), the victim was treated very roughly and bruised. She didn't resist because she was three or four months pregnant (which the defendant knew) and because she was afraid for both her own and her baby's lives.
[266] In Tryon v. State, 567 P.2d 290 (Wyo. 1970), the victim did not resist, out of fear. Although he did not threaten her, the conviction was sustained. The court explained:
We find here a child afraid of the dark alone with this defendant several miles from her home, very late at night — and with a man whom she knew had been drinking and quarreling with the woman for whom she had been baby-sitting. We cannot help but suggest that all of these elements could totally terrify a child of tender years or that the jury could have so reasonably inferred.
...
Although the defendant did not express threats, wielded no weapons, and did not strike the victim, the force applied when considered in light of the facts previously related is sufficient to support the jury's finding of non-consent. [567 P.2d at 292-93.]
[1] Section 464E provides as follows:
"Undefined words or phrases in this subheading which describe elements of the common-law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading."
[2] See, e.g., McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Wilson v. State, 49 Del. 37, 109 A.2d 381 (1954), cert. denied, 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955); Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, cert. denied, 359 U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959); State v. Catron, 317 Mo. 894, 296 S.W. 141 (1927); State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); Commonwealth v. Stephens, 143 Pa. Super. 394, 17 A.2d 919 (1941); R. Perkins, Perkins on Criminal Law, 160-61 (2d ed. 1969).
[3] See State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979); People v. Hunt, 72 Cal. App.3d 190, 139 Cal. Rptr. 675 (1977); State v. Dill, 42 Del. 533, 40 A.2d 443 (1944); Arnold v. United States, 358 A.2d 335 (D.C. App. 1976); Doyle v. State, 39 Fla. 155, 22 So. 272 (1897); Curtis v. State, 236 Ga. 362, 223 S.E.2d 721 (1976); People v. Murphy, 124 Ill. App.2d 71, 260 N.E.2d 386 (1970); Carroll v. State, 263 Ind. 86, 324 N.E.2d 809 (1975); Fields v. State, 293 So.2d 430 (Miss. 1974); State v. Beck, 368 S.W.2d 490 (Mo. 1963); Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947); State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933, 96 S.Ct. 288, 46 L.Ed.2d 264 (1975); State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975); Brown v. State, 576 S.W.2d 820 (Tex. Cr. App. 1979); Jones v. Com., 219 Va. 983, 252 S.E.2d 370 (1979); State v. Baker, 30 Wash.2d 601, 192 P.2d 839 (1948); Brown v. State, 581 P.2d 189 (Wyo. 1978).
Some jurisdictions do not require that the victim's fear be reasonably grounded. See Struggs v. State, 372 So.2d 49 (Ala. Cr. App.), cert. denied, 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195 (1979); Kirby v. State, 5 Ala. App. 128, 59 So. 374 (1912); Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976), citing Hazel v. State, supra; State v. Herfel, 49 Wis.2d 513, 182 N.W.2d 232 (1971). See also Salsman v. Com., 565 S.W.2d 638 (Ky. App. 1978); State v. Havens, 264 N.W.2d 918 (S.D. 1978).
[*] See the attached Appendix for a further recitation of cases which support this view.
7.2.8.6.4.2. Jeannie Suk, "The Look in His Eyes": The Story of Rusk and Rape Reform
7.2.8.6.4.3. Janet Halley, Rusk Ideal Types
7.2.8.6.4.4 State of New Jersey in the Interest of M.T.S. 7.2.8.6.4.4 State of New Jersey in the Interest of M.T.S.
STATE OF NEW JERSEY IN THE INTEREST OF M.T.S.
The Supreme Court of New Jersey.
[424] Carol M. Henderson, Deputy Attorney General, argued the cause for appellant, State of New Jersey (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Jessica S. Oppenheim, Deputy Attorney General, of counsel and on the brief).
Susan Herman, Assistant Deputy Public Defender, argued the cause for respondent M.T.S. (Wilfredo Caraballo, Public Defender, attorney).
The opinion of the Court was delivered by HANDLER, J.
Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by [425] this appeal is whether the element of "physical force" is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.
That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.
The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J. Super. 254, 588 A.2d 1282 (1991). We granted the State's petition for certification. 126 N.J. 341, 598 A.2d 897 (1991).
I
The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.
On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept [426] downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager's testimony.
C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.
C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.
[427] C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.
At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.
According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."
M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as [428] C.G. pushed him off, she said "stop, get off," and he "hopped off right away."
According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving ... I'm going with my real girlfriend, don't talk to me ... I don't want nothing to do with you or anything, stay out of my life ... don't tell anybody about this ... it would just screw everything up." He then walked downstairs and went to sleep.
On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.
Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed [429] the juvenile's adjudication of delinquency for that offense. 247 N.J. Super. at 260-61, 588 A.2d 1282.
II
The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual penetration" "with another person" with the use of "physical force or coercion."[1] An unconstrained reading of the statutory language indicates that both the act of "sexual penetration" and the use of "physical force or coercion" are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be [430] understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that "physical force" had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.
The parties offer two alternative understandings of the concept of "physical force" as it is used in the statute. The State would read "physical force" to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of "physical force" to mean force "used to overcome lack of consent." That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.
Current judicial practice suggests an understanding of "physical force" to mean "any degree of physical power or strength used against the victim, even though it entails no injury and leaves no mark." Model Jury Charges, Criminal 3 (revised Mar. 27, 1989). Resort to common experience or understanding does not yield a conclusive meaning. The dictionary provides several definitions of "force," among which are the following: (1) "power, violence, compulsion, or constraint exerted upon or against a person or thing," (2) "a general term for exercise of strength or power, esp. physical, to overcome resistance," or (3) "strength or power of any degree that is exercised without justification or contrary to law upon a person or thing." Webster's Third New International Dictionary 887 (1961).
Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words "physical force" do not evoke a single [431] meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42, 342 A.2d 199 (1975). With respect to a law, like the sexual assault statute, that "alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy." Grobart v. Grobart, 5 N.J. 161, 166, 74 A.2d 294 (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98, 155 A.2d 547 (1959) (noting that ambiguous statutory phrases should be interpreted in light of the occasion and necessity of the law, mischief felt, and remedy in view). We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature. See State v. Des Marets, 92 N.J. 62, 68-70, 455 A.2d 1074 (1983); State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956).
The provisions proscribing sexual offenses found in the Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), became effective in 1979, and were written against almost two hundred years of rape law in New Jersey. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as "carnal knowledge of a woman against her will." Cynthia A. Wicktom, Note, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender's Forceful Conduct). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim's will. Id. at 402 [432] (citing Rollin Perkins & Ronald Boyce, Criminal Law 211 (3d ed. 1982)). As of 1796, New Jersey statutory law defined rape as "carnal knowledge of a woman, forcibly and against her will." Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape — carnal knowledge, forcibly, and against her will — remained the essential elements of the crime until 1979. Leigh Bienen, Rape III — National Developments in Rape Reform Legislation, 6 Women's Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III).
Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman's will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind. "Thus, the perpetrator's use of force became criminal only if the victim's state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent." National Institute of Law Enforcement and Criminal Justice, Forcible Rape — An Analysis of Legal Issues 5 (March 1978) (Forcible Rape). Although the terms "non-consent" and "against her will" were often treated as equivalent, see, e.g., Wilson v. State, 109 A.2d 381 (Del. 1954), cert. den., 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955), under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will. As a Delaware court stated, "If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape." State v. Brown, 83 A. 1083, 1084 (O.T. 1912); 75 C.J.S. Rape § 11-12 (1952).
The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the [433] intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, "assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness." Offender's Forceful Conduct, supra, 56 Geo. Wash.L.Rev. at 403. Evidence of resistance was viewed as a solution to the credibility problem; it was the "outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent." Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).
The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. See, e.g., State v. Brown, 127 Wis. 193, 106 N.W. 536 (1906) (overturning forcible rape conviction based on inadequate resistance by the victim); People v. Dohring, 59 N.Y. 374 (1874). Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes, 42 Cal.3d 284, 228 Cal. Rptr. 228, 721 P.2d 110, 117 (1986) (observing that "[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force"). In many jurisdictions the requirement was that the woman have resisted to the utmost. "Rape is not committed unless the woman oppose the man to the utmost limit of her power." People v. Carey, 223 N.Y. 519, 119 N.E. 83 (N.Y. 1918). "[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost." Moss v. State, 208 Miss. 531, 45 So.2d 125, 126 (1950). Other states [434] followed a "reasonableness" standard, while some required only sufficient resistance to make non-consent reasonably manifest. Forcible Rape, supra, at 5.
At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. In State v. Harris, 70 N.J. Super. 9, 174 A.2d 645 (1961), the Appellate Division recognized that the "to the uttermost" test was obsolete. Id. at 16, 174 A.2d 645. "The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent." Id. at 16-17, 174 A.2d 645. Nonetheless, the "resistance" requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: "[W]e have rejected the former test that a woman must resist `to the uttermost.' We only require that she resist as much as she possibly can under the circumstances." State v. Terry, 89 N.J. Super. 445, 449, 215 A.2d 374.
The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant's conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant's actions as on the nature of the victim's response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505-07 (1975) (Definition of Forcible Rape). "[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault." State v. Terry, supra, 89 N.J. Super. at 449, 215 A.2d 374. Under the pre-reform law, the resistance offered had to be "in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory." State v. Terry, supra, 89 N.J. Super. at 450, 215 A.2d 374. That the law put the rape victim on trial was clear.
[435] The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim's will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex.Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that "the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female"). In New Jersey the amount of force necessary to establish rape was characterized as "`the degree of force sufficient to overcome any resistance that had been put up by the female.'" State v. Terry, supra, 89 N.J. Super. at 451, 215 A.2d 374 (quoting jury charge by trial court). Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. See, e.g., Moss v. State, supra, 45 So.2d at 125. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the "force" element of the offense. E.g., Pomeroy v. State, 94 Ind. 96 (1884); State v. Atkins, 292 S.W. 422 (Mo. 1926); Lee v. State, 322 So.2d 751, 752 (Miss. 1975).
The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary [436] rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. See, e.g., Allison v. United States, 409 F.2d 445, 448 (D.C. Cir.1969). Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. State v. Conner, 97 N.J.L. 423, 424, 118 A. 211 (Sup.Ct. 1922). Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).
During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack. See, e.g., House [of Delegates] Urges New Definition of Rape, 61 A.B.A.J. 464 (1975); Note, Toward a Consent Standard in the Law of Rape, 43 U.Chi.L.Rev. 613, 638 (1976) (Toward a Consent Standard); see also People v. Barnes, supra, 721 P.2d at 117 (discussing influence of distrust of female rape victims on legal standards). Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that "[d]istrust of the complainant's credibility [had] led to an exaggerated insistence on evidence of resistance," resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. [437] See Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to "bring[] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence").
To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result. Menachem Amir, Patterns in Forcible Rape, 164-65, 169-171 (1971); Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506; Note, Elimination of the Resistance Requirement and Other Rape Law Reforms: The New York Experience, 47 Alb.L.Rev. 871, 872 (1983). That research discredited the assumption that resistance to the utmost or to the best of a woman's ability was the most reasonable or rational response to a rape.
The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman's will or the insult to her chastity but in the forcible attack itself — the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.
That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal [438] exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. See, e.g., State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981); see also Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 184, 207 (noting that common-law principles excluded spouses from prosecution in New Jersey as in most other jurisdictions). Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender's Forceful Conduct, supra, 58 Geo.Wash.L.Rev. at 402; Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258-60 (1986); see also Hale, supra, at 629 (noting that "a `ravished' woman could `redeem' the convicted offender and save him from execution by marrying him").
Critics of rape law agreed that the focus of the crime should be shifted from the victim's behavior to the defendant's conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse, Towards a Consent Standard, supra, 43 U.Chi.L.Rev. 613; others urged the elimination of any reference to consent from the definition of rape, Offender's Forceful Conduct, supra, 56 Geo.Wash.L.Rev. at 401. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented. Ibid.
Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that [439] depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of "bodily integrity." Susan Estrich, Rape, 95 Yale L.J. 1087, 1105, (1986). In urging that the "resistance" requirement be abandoned, reformers sought to break the connection between force and resistance.
III
The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.
In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute's Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14-1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14-1(b)(1). The comments to the MPC, on which the proposed Code was based, state that "[c]ompulsion plainly implies non-consent," [440] and that the words "compels to submit" require more than "a token initial resistance." A.L.I., MPC, § 213.1, comments at 306 (revised commentary 1980).
The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L. 1978, c. 95 § 2C:14-1 to -7; N.J.S.A. 2C:14-1 to -7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. Id. at 207-08. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. Leigh Bienen, Rape II, 3 Women's Rts.L.Rep. 90 (1977). The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), [M.C.L.A. § 750.520d] and on the reform statutes in New Mexico, Minnesota, and Wisconsin. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. The stated intent of the drafters of the Philadelphia Center's Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would "`normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.'" Stuart Marques, Women's Coalition Lauds Trenton Panel: Tough Rape Law Revisions Advance, Newark Star Ledger, (May 10, 1978) at 1 (quoting Roberta Kaufman, New Jersey Coalition Against Rape).
Since the 1978 reform, the Code has referred to the crime that was once known as "rape" as "sexual assault." The crime now requires "penetration," not "sexual intercourse." It requires "force" or "coercion," not "submission" or "resistance." [441] It makes no reference to the victim's state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional "carnal knowledge."[2] Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.
The reform statute defines sexual assault as penetration accomplished by the use of "physical force" or "coercion," but it does not define either "physical force" or "coercion" or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining "physical force" too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 181. The task of defining "physical force" therefore was left to the courts.
That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape "[t]he prohibition of force or `forcible compulsion' ends up being defined in terms of a woman's resistance"). That risk was encountered by the Michigan Supreme Court in People v. Patterson, 428 Mich. 502, 410 N.W.2d 733 (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of [442] the court concluded that the defendant had not used force as required by the statute because there was "no evidence of physical overpowering ... [and] there was no submission." Id. 410 N.W.2d at 740. Justice Boyle, in dissent, soundly criticized the majority's position as a distortion of the legislature's intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in "defin[ing] force by measuring the degree of resistance by the victim," the majority had effectively "reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted." Id. at 747-49.
Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to "overcoming the will" of the victim, or to the "physical overpowering" of the victim, or the "submission" of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.
The Legislature's concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as "the unlawful application of force to the person of another." 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another [is] a battery." Perna v. Pirozzi, 92 N.J. 446, 462, 457 A.2d 431 (1983). Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse [443] between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.
The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.
The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature's decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.
[444] We note that the contrary interpretation of force — that the element of force need be extrinsic to the sexual act — would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.
Because the statute eschews any reference to the victim's will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.
Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. See Ill. Rev. Stat. ch. 38, para. 12-17 (1984) (defining consent as "freely given agreement"); see also, People v. [445] Patterson, supra, 410 N.W.2d at 749 (Boyle, J., dissenting) (reasoning that "force" may include "a sexual touching brought about involuntarily," and may consist of "a contact which occurs before consent can be given or refused"); cf. N.J.S.A. 2C:2-10(c)(3) (indicating that "consent" does not constitute a defense sufficient to negate an element of a crime if consent was induced or accomplished by force or coercion). Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.
Our understanding of the meaning and application of "physical force" under the sexual assault statute indicates that the term's inclusion was neither inadvertent nor redundant. The term "physical force," like its companion term "coercion," acts to qualify the nature and character of the "sexual penetration." Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of "physical force" encompasses the notion of "unpermitted touching" derived from the Legislature's decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving "sexual penetration," the term "physical force" serves to define and explain the acts that are offensive, unauthorized, and unlawful.
That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is [446] possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle Paint Oil Co., 129 N.J. 81, 94-96, 609 A.2d 11 (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106, 609 A.2d 11 (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting "physical force" to include any touching that occurs without permission we seek to respect that goal.
Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1529 (arguing that "forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person's bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature").
We emphasize as well that what is now referred to as "acquaintance rape" is not a new phenomenon. Nor was it a "futuristic" concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the [447] stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. Acquaintance Rape, supra, at 10. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Acquaintance Rape, supra, at 10. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s. Id. at 18.
The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.
IV
In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant's act of penetration was undertaken in circumstances that led the defendant reasonably [448] to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.
In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant's actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable.
In these cases neither the alleged victim's subjective state of mind nor the reasonableness of the alleged victim's actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.
In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of [449] surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.
In the context of a sexual penetration not involving unusual or added "physical force," the inclusion of "permission" as an aspect of "physical force" effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2-10c(3). The definition of "permission" serves to define the "consent" that otherwise might allow a defendant to avoid criminal liability. Because "physical force" as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the "consent" necessary to negate such "physical force" under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.
In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. 247 N.J. Super. at 260, 588 A.2d 1282. It acknowledged that its conclusion was "anomalous" because it recognized that "a woman has every right to end [physically intimate] activity without sexual penetration." Ibid. Thus, it added to its holding that "[e]ven the force of penetration might... be sufficient if it is shown to be employed to overcome the victim's unequivocal expressed desire to limit the encounter." Ibid.
The Appellate Division was correct in recognizing that a woman's right to end intimate activity without penetration is a [450] protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman's unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim's will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person's failure to protest or resist cannot be considered or used as justification for bodily invasion.
We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court's disposition.
Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.
For reversal and reinstatement — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.
Opposed — None.
[1] The sexual assault statute, N.J.S.A.: 2C:14-2c(1), reads as follows:
c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:
(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;
(2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;
(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;
(4) The victim is at least 16 but less than 18 years old and:
(a) The actor is related to the victim by blood or affinity to the third degree; or
(b) The actor has supervisory or disciplinary power over the victim; or
(c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;
(5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.
Sexual assault is a crime of the second degree.
[2] The reform replaced the concept of carnal abuse, which was limited to vaginal intercourse, with specific kinds of sexual acts contained in a broad definition of penetration:
Sexual penetration means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. [N.J.S.A. 2C:14-1.]
7.2.8.6.5 V.E. Consent 7.2.8.6.5 V.E. Consent
7.2.8.6.5.1 Commonwealth v. Fischer 7.2.8.6.5.1 Commonwealth v. Fischer
COMMONWEALTH of Pennsylvania, Appellee,
v.
Kurt FISCHER, Appellant.
Superior Court of Pennsylvania.
[1112] Michael M. Mustokoff, Huntington Valley, for appellant.
Before DEL SOLE, SCHILLER and BECK, JJ.
BECK, J.:
This case prompts our consideration of the law with respect to forcible compulsion and consent in sexual assault cases. After a careful review of the record and an in-depth analysis of the issue at hand, we affirm.
Appellant, an eighteen year-old college freshman, was charged with involuntary deviate sexual intercourse (IDSI), aggravated indecent assault and related offenses in connection with an incident that occurred in a Lafayette College campus dormitory. The victim was another freshman student appellant met at school.
At trial, both the victim and appellant testified that a couple of hours prior to the incident at issue, the two went to appellant's dorm room and engaged in intimate contact. The victim testified that the couple's conduct was limited to kissing and fondling. Appellant, on the other hand, testified that during this initial encounter, he and the victim engaged in "rough sex" which culminated in the victim performing fellatio on him. According to appellant, the victim acted aggressively at this first rendezvous by holding appellant's arms above his head, biting his chest, stating "You know you want me," and initiating oral sex.
After the encounter, the students separated and went to the dining hall with their respective friends. They met up again later and once more found themselves in appellant's dorm room. While their accounts of what occurred at the first meeting contained significant differences, their versions of events at the second meeting were grossly divergent. The victim testified that appellant locked the door, pushed her onto the bed, straddled her, held her wrists above her head and forced his penis into her mouth. She struggled with appellant throughout the entire encounter and warned him that "someone would look for her" and "someone would find out." She also told him that she was scheduled to be at a mandatory seminar and repeatedly stated that she did not want to engage in sex, but her pleas went unheeded.
According to the victim, appellant forced his hands inside a hole in her jeans and penetrated her with his fingers. He then placed his penis inside the torn jeans, removed it and ejaculated on her face, hair and sweater. Thereafter, he turned her over onto her stomach, pulled down her underpants and attempted to penetrate her anally. Throughout the incident, appellant made various statements to the victim, including "I know you want it," "I know you want my dick in your mouth" and "Nobody will know [1113] where you are." When the victim attempted to leave, appellant blocked her path. Only after striking him in the groin with her knee was the victim able to escape.
Appellant characterized the second meeting in a far different light. He stated that as he led the victim into his room, she told him it would have to be "a quick one." As a result, appellant figured that their sexual liaison would be brief. Thereafter, according to appellant, he began to engage in the same type of behavior the victim had exhibited in their previous encounter. Appellant admitted that he held the young woman's arms above her head, straddled her and placed his penis at her mouth. He testified that at that point he told her "I know you want my dick in your mouth." When she replied "no," appellant answered "No means yes." After another verbal exchange that included the victim's statement that she had to leave, appellant again insisted that "she wanted it." This time she answered "No, I honestly don't." Upon hearing this, appellant no longer sought to engage in oral sex and removed himself from her body. However, as the two lay side by side on the bed, they continued to kiss and fondle one another.
Appellant admitted to touching the victim's genitalia and to placing his penis inside the hole in her jeans. According to appellant, the victim enjoyed the contact and responded positively to his actions. At some point, however, she stood up and informed appellant that she had to leave. When appellant again attempted to touch her, this time on the thigh, she told him she was "getting pissed." Before appellant could "rearrange himself," so that he could walk the victim to her class, she abruptly left the room.
At trial, both sides presented evidence to support their positions. Appellant's college friends testified that after the first encounter, but before the second, appellant showed them bite marks on his chest that he had received from the victim during the first encounter. Numerous character witnesses testified on appellant's behalf.
The Commonwealth offered physical evidence of sperm found on the victim's sweater. Medical personnel testified to treating the victim on the night in question. Many of the victim's friends and classmates described her as nervous, shaken and upset after the incident.
Defense counsel argued throughout the trial and in closing that appellant, relying on his previous encounter with the victim, did not believe his actions were taken without her consent. Presenting appellant as sexually inexperienced, counsel argued that his client believed the victim was a willing participant during their intimate encounters. In light of his limited experience and the victim's initially aggressive behavior, argued counsel, appellant's beliefs were reasonable. Further, the victim's conduct throughout the second encounter, as testified to by appellant, would not make appellant's actions "forcible" since it appeared that the victim was enjoying the encounter. Finally, as soon as appellant realized that the victim truly did not wish to engage in oral sex a second time, appellant stopped seeking same. As a result, appellant's actions could not be deemed forcible compulsion.
The jury returned a verdict of guilty on virtually all counts.[1] Appellant was sentenced to two to five years in prison. On direct appeal, he retained new counsel who has raised a single issue of ineffectiveness before this court. He argues that trial counsel provided ineffective assistance in failing to request a jury charge on the defense of mistake of fact. Specifically, appellant claims that counsel should have asked the court to instruct the jurors that if they found appellant reasonably, though mistakenly, believed that the victim was consenting to his sexual advances, they could find him not guilty.
The standard of review for ineffectiveness challenges is clear. Appellant must establish: 1) an underlying issue of arguable merit; 2) the absence of a reasonable strategy on the part of counsel in acting or failing to act; and 3) prejudice as a result of counsel's action or inaction. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303, 1305 (1991). In all instances we presume that [1114] counsel is effective and place the burden on appellant to prove otherwise. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75, 81 (1990).
Our initial inquiry is whether counsel would have been successful had he requested a mistake of fact instruction. Counsel cannot be deemed ineffective for failing to pursue a baseless claim. Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990). Further, the quality of counsel's stewardship is based on the state of the law as it existed at time of trial; counsel is not ineffective if he fails to predict future developments or changes in the law. Commonwealth v. Todaro, 549 Pa. 545, 701 A.2d 1343, 1346 (1997).
The Commonwealth relies on two bases for dispensing with appellant's claims. It first argues that appellant's claim does not warrant consideration because he testified that the victim did not perform oral sex on him at the second encounter. The Commonwealth insists that appellant's testimony prevents him from claiming a mistake of fact regarding commission of the crime. The record, however, establishes otherwise. Throughout the trial, counsel clearly relied on appellant's previous contact with the victim to support his claim that appellant reasonably believed the victim consented to his advances. While on the stand, appellant admitted that he placed his penis on the victim's mouth. He testified: "the head of my penis went halfway in, but then she closed her mouth and turned to the side." Because the crime of IDSI is complete at the point of "penetration, however slight," appellant clearly admitted that the physical element/requirement of the crime was met. 18 Pa.C.S.A. § 3101. The Commonwealth's first argument, therefore, is unavailing.
The Commonwealth's second line of attack is its reliance on an opinion by a panel of this court. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (Pa.Super.1982), concerned the rape and assault of a Temple University student. The facts established that the victim accepted a ride from the appellant on a snowy evening in Philadelphia. Instead of taking the young woman to the bus station, appellant drove her to a dark area, threatened to kill her and informed her that he wanted sex. The victim told Williams to "go ahead" because she did not wish to be hurt.
After his conviction and sentence, appellant filed a direct appeal and argued, among other things, that the trial court erred in refusing to instruct the jury "that if the defendant reasonably believed that the prosecutrix had consented to his sexual advances that this would constitute a defense to the rape and involuntary deviate sexual intercourse charge." Id. 439 A.2d at 767. This court rejected Williams's claim and held:
In so refusing the proffered charge the court acted correctly. The charge requested by the defendant is not now and has never been the law of Pennsylvania. When one individual uses force or the threat of force to have sexual relations with a person not his spouse and without the person's consent he has committed the crime of rape. If the element of the defendant's belief as to the victim's state of mind is to be established as a defense to the crime of rape then it should be done by our legislature which has the power to define crimes and offenses. We refuse to create such a defense.
Id. (emphasis supplied.) The Commonwealth insists that under Williams, appellant was not entitled to the instruction he now claims trial counsel should have requested.
In response, appellant makes two arguments. First, he argues that the "stranger rape" facts of Williams were far different from those of this case, making the case inapplicable. Second, he maintains that the law with respect to rape and sexual assault has changed significantly over the last decade, along with our understanding of the crime and its permutations, making a mistake of fact instruction in a date rape case a necessity for a fair trial.
In support of his argument, appellant draws our attention to many sources, including the evolution of sexual assault case law in this Commonwealth, recent amendments to our sexual offenses statutes, commentary accompanying the Pennsylvania Standard Jury Instructions, law review articles and treatment of the issue in other jurisdictions. Because [1115] we find appellant's arguments thoughtful and compelling, we will address them here.
The issues of consent and forcible compulsion raised in sexual assault prosecutions have always been complex. Unless the incident is witnessed by a third party, or is accompanied by conspicuous injury, a rape case is often reduced to a credibility battle between the complainant and the defendant. Our laws have sought continually to protect victims of sexual assault, and in the process, have undergone significant change. Although the rape and IDSI laws have always required the element of "forcible compulsion," that term was not initially defined. The definition of that term and its relation to the concept of consent have been the frequent topic of discussion among lawmakers, courts and scholars.[2]
Not long after Williams was decided, our supreme court published Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). In that case, a twenty-year-old man was accused of raping an eight-year-old girl. The evidence established that the appellant took the victim, whom he knew, to an abandoned building and sexually assaulted her. The child complied with all of the appellant's instructions until she felt pain, whereupon she asked him to stop. Medical tests showed the presence of semen in the child's vaginal and rectal areas, as well as a "rectovaginal fissure (tear)." A panel of this court reversed Rhodes's rape conviction based on insufficient evidence. The panel held that while the crime of statutory rape clearly was established given the victim's age, there was no evidence of the forcible compulsion necessary for the rape conviction.
Our supreme court disagreed. Noting that sexual assault crimes present "perplexing, controversial and emotionally charged problems for the criminal justice system," the court borrowed the language of Williams and stated that "the degree of force required to constitute rape [or IDSI] is relative and depends upon the facts and particular circumstances of the case." Id. at 554-56, 510 A.2d at 1226. Defining forcible compulsion as including "not only physical force or violence but also moral, psychological or intellectual force," the court held that forcible compulsion was established.
There is an element of forcible compulsion, or threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. This is especially so where the child knows and trusts the adult. In such cases, forcible compulsion or the threat of forcible compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult ("prevent resistance"), without the use of physical force or violence or the explicit threat of physical force or violence.
Id. at 556-58, 510 A.2d at 1227.
The Rhodes court's inclusion of types of forcible compulsion other than physical was a significant change in the law. Of course, defining those new types was not an easy task. In Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988), our supreme court again faced the issue of what constitutes forcible compulsion necessary for a rape conviction. In that case, the appellant was charged with raping a fourteen-year-old girl, his former neighbor who had been released to his wife's custody. The child was no longer living with her parents because she was involved in a theft and had spent a period of time in a juvenile detention center. When the appellant instructed the girl to disrobe, she refused. He responded by [1116] threatening to send her back to the detention home if she did not comply. The victim acquiesced and on several occasions thereafter, the appellant engaged in vaginal and oral intercourse with her.
After convictions on counts of rape, IDSI, assault and related charges, the appellant came before this court. The en banc court ultimately ruled, in a five to four majority, that the rape and attempted rape charges must be reversed for lack of proof of forcible compulsion.
Upon review, the supreme court was evenly divided and so the reversal by this court was sustained. The supreme court's opinion in support of affirmance recognized that physical violence was not the only manner in which forcible compulsion could be accomplished, however it also stated that "forcible compulsion was [not] intended by the General Assembly, in this context, to be extended to embrace appeals to the intellect or the morals of the victim." Id. at 252-53, 542 A.2d at 1338. The court reasoned:
Certainly psychological coercion can be applied with such intensity that it may overpower the will to resist as effectively as physical force. See e.g., Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). The purpose of the term was to distinguish between assault upon the will and the forcing of the victim to make a choice regardless how repugnant. Certainly difficult choices have a coercive effect but the result is the product of the reason, albeit unpleasant and reluctantly made. The fact cannot be escaped that the victim has made the choice and the act is not involuntary.
Id. at 260-62, 542 A.2d at 1342.
In his opinion in support of reversal, Justice Larsen opined that under Rhodes, the element of forcible compulsion was met. He further implored the legislature to correct what he characterized as a "misreading of its intention." Id. at 273-75, 542 A.2d at 1349.
A correction by the legislature did not occur immediately after Mlinarich or even shortly thereafter. Indeed, it was not until the supreme court's decision in Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994), that the legislature amended the law with respect to sexual assaults.[3] Berkowitz, like the case before us, involved an incident between two young college students in a dormitory room. The complainant testified that she entered the appellant's room hoping to find his roommate. She stayed in the room at the appellant's request. At some point, the appellant moved toward the complainant, touched her breasts and attempted to put his penis in her mouth. He then removed her pants and undergarments and penetrated her vagina with his penis. Throughout the encounter, the complainant repeatedly told the appellant "no," but she made no attempt to leave even though she could have done so as the appellant was not restraining her in any manner.
Our supreme court considered the facts set out above and concluded that the element of forcible compulsion was not established. While recognizing that the complainant said "no" throughout the incident, the court stated that the legislature intended the term forcible compulsion to mean "something more than a lack of consent." Id. at 150-51, 641 A.2d at 1165. Berkowitz's rape conviction was reversed.
Less than one year after the Berkowitz decision, the legislature amended the sexual assault law by adding a definition for forcible compulsion. The language of the amendment closely followed that used by the Rhodes court:
"Forcible Compulsion." Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. The term includes, but is not limited to, compulsion resulting in another person's death, whether the death occurred [1117] before, during or after sexual intercourse.
18 Pa.C.S.A. § 3101.
It is this broader definition, argues appellant in this case, that prompts the necessity for a mistake of fact jury instruction in cases where such a defense is raised. According to appellant:
The language of the present statute inextricably links the issues of consent with mens rea. To ask a jury to consider whether the defendant used "intellectual or moral" force, while denying the instruction as to how to consider the defendant's mental state at the time of alleged encounter is patently unfair to the accused.
Appellant's Brief at 24.
Appellant's argument is bolstered by the fact that the concept of "mistake of fact" has long been a fixture in the criminal law. The concept is codified in Pennsylvania and provides:
Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is a defense if:
(1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or
(2) the law provides that the state of mind established by such ignorance or mistake constitutes a defense
18 Pa.C.S.A. § 304.
The notion that one charged with sexual assault may defend by claiming a reasonable belief of consent has been recognized in other jurisdictions. The New Jersey Supreme Court has stated:
If there is evidence to suggest that the defendant reasonably believed that ... permission had been given, the State must demonstrate either that the defendant did not actually believe that affirmative permission had been freely-given or that such belief was unreasonable under all of the circumstances.
In the Interest of M.T.S., 129 N.J. 422, 609 A.2d 1266, 1279 (N.J.1992).
Courts in other jurisdictions have likewise held that jury instructions regarding the defendant's reasonable belief as to consent are proper. See State v. Smith, 210 Conn. 132, 554 A.2d 713 (Conn.1989) ("We agree with the California courts that a defendant is entitled to a jury instruction that a defendant may not be convicted of this crime if the words or conduct of the complainant under all the circumstances would justify a reasonable belief that she had consented.") See also People v. Mayberry, 15 Cal.3d 143, 125 Cal.Rptr. 745, 542 P.2d 1337 (Cal.1975).
Although the logic of these other cases is persuasive, we are unable to adopt the principles enunciated in them because of the binding precedent with which we are faced, namely, Williams. In an effort to avoid application of Williams, appellant directs our attention to the Subcommittee Notes of the Pennsylvania Criminal Suggested Standard Jury Instructions. The possible conflict between Williams and § 304 (Mistake of Fact) was not lost on the Subcommittee.
Quaere whether Williams is wholly consistent with Crimes Code §§ 302(c) and 304(1). In the Subcommittee's opinion, the courts should recognize as a defense a defendant's non-recklessly held, mistaken belief regarding consent. The jury ought to be told in what circumstances a mistaken belief may preclude a defendant's forceful conduct from being forcible compulsion or threat of forcible compulsion.
Subcommittee Note, Pa. Suggested Standard Crim. Jury Instructions at 15.3121A.
Appellant's insistence that Williams should be disregarded in light of the legislature's broader and more complex definition of forcible compulsion is echoed by the Subcommittee:
In the opinion of the Subcommittee there may be cases, especially now that Rhodes has extended the definition of force to psychological, moral and intellectual force, where a defendant might non-recklessly or even reasonably, but wrongly, believe that his words and conduct do not constitute force or the threat of force and that a non-resisting female is consenting. An example might be "date rape" resulting from mutual misunderstanding. The boy does [1118] not intend or suspect the intimidating potential of his vigorous wooing. The girl, misjudging the boys' character, believes he will become violent if thwarted; she feigns willingness, even some pleasure. In our opinion the defendant in such a case ought not to be convicted of rape.
Id.
It is clear that the Subcommittee gave extensive thought to the ever-changing law of sexual assault and our understanding of sexual behavior in modern times. We agree with the Subcommittee that the rule in Williams is inappropriate in the type of date rape case described above. Changing codes of sexual conduct, particularly those exhibited on college campuses, may require that we give greater weight to what is occurring beneath the overt actions of young men and women. Recognition of those changes, in the form of specified jury instructions, strikes us an appropriate course of action.
Despite appellant's excellent presentation of the issues, there remain two distinct problems precluding relief in this case. First is appellant's reliance on the evolution of our sexual assault laws to avoid the application of Williams. As is obvious from our discussion above, the changes in the statute are significant and have served to extend culpability in rape and IDSI cases to a variety of new circumstances, including incidents involving psychological, moral and intellectual force.
This case, however, is not one of the "new" varieties of sexual assault contemplated by the amended statute. It does not involve the failure to resist due to a tender age, as in Rhodes, or the threat of punishment for failure to comply, as in Mlinarich. Nor is it a situation where the complainant admits she offered no resistance and the evidence shows that nothing prevented her escape, as in Berkowitz. This is a case of a young woman alleging physical force in a sexual assault and a young man claiming that he reasonably believed he had consent.[4] In such circumstances, Williams controls.
We are keenly aware of the differences between Williams and this case. Most notable is the fact that Williams and his victim never met before the incident in question. Here, appellant and the victim not only knew one another, but had engaged in intimate contact just hours before the incident in question.[5] It is clear however, that the Williams court's basis for denying the jury instruction was its conclusion that the law did not require it and, further, that the judiciary had no authority to grant it. Even if we were to disagree with those conclusions, we are powerless to alter them.
In any event, distinguishing Williams on the basis of the parties' previous contacts, and therefore holding that it should not apply here, is not enough to allow appellant the relief he seeks. Even if we decide that we are persuaded by appellant's arguments chronicling the history of sexual assault law and the Jury Instructions Subcommittee's views, we face a second barrier. Because this appeal raises ineffective assistance of counsel, we are required to find that appellant's trial lawyer made a mistake. That mistake is the failure to ask the trial court for an instruction that the Williams case held is unwarranted. In other words, we would have to find that counsel's failure to argue for a change in the law constituted ineffectiveness. This, of course, is not possible. We simply cannot announce a new rule of law and then find counsel ineffective for failing to predict same. Todaro, supra.
Assuming that we have the authority to declare that the instruction is one to which appellant should be entitled, we cannot hold that counsel erred in failing to demand it. The relief appellant seeks represents a significant departure from the current state of the law. Despite its compelling nature, it [1119] cannot be the basis for an ineffective assistance of counsel claim.
Judgment of sentence affirmed.
DEL SOLE, J., concurs in the result.
[1] Appellant was acquitted of criminal attempt.
[2] It is clear from a reading of the relevant statutes and accompanying case law that the rape and IDSI statutes rely on the same definitions. See generally 18 Pa.C.S.A §§ 3101; 3121; 3123. See also Commonwealth v. Smolko, 446 Pa.Super. 156, 666 A.2d 672 (Pa.Super.1995) (forcible compulsion for rape and IDSI is identical); Commonwealth v. Poindexter, 435 Pa.Super. 509, 646 A.2d 1211 (Pa.Super.1994) (IDSI addresses forcible acts of anal and oral intercourse), appeal denied, 540 Pa. 580, 655 A.2d 512 (1995). Therefore, despite the fact that this is an IDSI case, our discussion of rape laws and cases involving rape convictions is relevant to and probative of the issue before us.
[3] Apparently, calls to "overhaul" sexual assault laws came before Berkowitz was handed down, but the actual amendments were not enacted until after the decision was published. The case itself was a focal point in several legislative discussions. Theresa A. McNamara, Act 10: Remedying Problems of Pennsylvania's Rape Laws or Revisiting Them?. 10 Dick.L.Rev. 203, 210-14 (1996).
[4] We observe that the facts of this case are not the same as those set out in the Subcommittee's "date rape" scenario. The victim in this case testified that she was physically forced to engage in sex against her will, that she resisted verbally and physically and that she had to strike appellant in order to leave the room. Appellant characterized the victim as a sexually experienced woman who initiated oral sex in the first encounter, declined it in the second and made a false rape claim thereafter.
[5] The nature of that contact was disputed by the parties. It is, of course, the jury's task to resolve issues of credibility.
7.2.8.6.5.2 Commonwealth v. Carey 7.2.8.6.5.2 Commonwealth v. Carey
463 Mass. 378 (2012)
COMMONWEALTH
vs.
JOHN CAREY.
SJC-11050.
Supreme Judicial Court of Massachusetts. Essex.
May 10, 2012.
September 7, 2012.
Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.
James L. Sultan for the defendant.
[379] Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.
CORDY, J.
Based on an assault that occurred during the evening of June 6, 2007, at a home in Hamilton, a jury in the Superior Court convicted the defendant of attempted murder in violation of G. L. c. 265, § 16; armed home invasion in violation of G. L. c. 265, § 18C; assault and battery by means of a dangerous weapon in violation of G. L. c. 265, § 15A (b); and assault and battery in violation of G. L. c. 265, § 13A.[1] A divided panel of the Appeals Court affirmed the convictions, Commonwealth v. Carey, 79 Mass. App. Ct. 587 (2011), and we granted the defendant's application for further appellate review.
On appeal, the defendant contends that the assault constituted a consensual sexual encounter. He thus argues that, in light of the decision of the United States Supreme Court in Lawrence v. Texas, 539 U.S. 558, 577-578 (2003) (Lawrence), the trial judge committed constitutional error by not instructing the jury that consent is a defense to the crimes of armed home invasion and assault and battery by means of a dangerous weapon. The defendant also claims that the judge erred by admitting certain evidence regarding materials retrieved from his home computer. This evidence included eight photographs and one ninety-second "video clip" (video), each depicting a nude or partially nude woman being strangled seemingly to death; an Internet article reporting the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of images stored on the computer "that were strangulation-oriented or had strangulation themes," as well as testimony about Internet searches and the number of files saved on the computer that concerned asphyxiation.
We conclude that there is no conflict between the reasoning of Lawrence, supra, and our prior decisions holding that consent is not a defense to the crimes charged, see Commonwealth v. Mahar, 430 Mass. 643, 652-653 (2000) (armed home invasion), and Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (assault and battery by means of dangerous weapon), and the judge [380] appropriately instructed the jury on consent. We further conclude that, although admission of the photographs, article, and testimony were proper, the judge's failure to view the video prior to ruling that its probative value outweighed its prejudicial effect was an abuse of discretion. Consequently, we have independently reviewed the content of the video in the context of its use at trial and conclude that it was highly probative of the defendant's motive and intent, the principal issues contested at trial, outweighing its plainly prejudicial effect. Accordingly, we affirm.
Background.
We recite the essential facts the jury could have found, the details of which are set forth in Commonwealth v. Carey, supra at 588-591.
1. The Commonwealth's case. In the spring of 2007, the victim and her husband were separated, the victim living with their twelve year old son in Hamilton, and her husband residing in an apartment in Arlington. The couple were in the process of reconciling, however, and the husband frequently spent time at the Hamilton home. The defendant lived with his girl friend in Braintree; however, the defendant's former wife lived near the victim and was her friend. The defendant performed work on the victim's home and had become acquainted with the victim's husband through their mutual interest in golf. The defendant's daughter was also friendly with the victim's son.
On the evening of June 6, 2007, the victim's son informed her that he needed to bring a Spanish food dish to school the following day. After a brief trip to the market to purchase ingredients, the victim began making a flan in the kitchen on the first floor of her home. Her son was in his second-floor bedroom.
At approximately 9:40 P.M., the victim heard a knock on a glass door that separated the kitchen area from a rear deck. Thinking it was her husband, who had just left to return to his apartment, the victim walked toward the door and recognized instead the defendant. She opened the door for the defendant, who entered and asked for her husband. When the victim informed him that her husband was not there, the defendant responded, in an aggressive tone, "Why would he invite me over for a drink if he's not here?"[2] Frightened, the victim suggested [381] that they telephone her husband, but the defendant declined the offer. The victim then asked the defendant, who looked "drunk" and whose breath smelled of alcohol, to leave. She explained that she had to finish making the dessert, and moved toward the glass door through which the defendant had entered the house.
The defendant, however, did not leave. Instead, he attacked the victim, wrapping a necktie around her neck and pulling it from both ends. The victim managed to place her hands between the tie and her throat as the defendant continued to pull on the ligature. The two struggled, and the victim knocked over a heavy chair before falling to the floor.
As the victim "began to fade out," she heard her son run downstairs. The son testified that, on reaching the kitchen area, he saw the defendant choking his mother, who was on the floor and trying to free herself from the defendant's grasp. When the son yelled, "What are you doing?" the victim told him to "[g]et a knife and stab him." The son went to the kitchen, retrieved a small knife, and stabbed the defendant in the back. When he did so, the blade of the knife separated from the handle. The son then dropped the handle, grabbed the defendant, and attempted to pull the defendant away from his mother.
At some point, the defendant released his hold on the victim's throat and advanced toward the son. When he saw that the victim had risen to her feet, however, the defendant moved back toward her and punched her in the forehead and mouth.[3] The victim, her son, and the defendant then ran from the house. The victim ran to one neighboring house, and her son fled to another. The defendant got into his vehicle and drove away.
The victim's neighbors contacted the police soon after the victim and her son arrived at their respective houses. Police officers arrived and examined the area, noticing signs of a struggle in the victim's house and discovering a piece of a necktie on the deck behind it. A deoxyribonucleic acid (DNA) analyst testified at trial that hairs found on the tie matched that of the [382] victim, and that "handler DNA" discovered on the tie was a mixture from at least three people, including the victim and the defendant.[4]
As part of their investigation, State police conducted a forensic examination on the defendant's home computer. Sergeant Thomas Neff testified that, during the examination, he retrieved from the computer "four hundred or more" images "that were strangulation-oriented or had strangulation themes," as well as the ninety-second video depicting a man strangling a naked woman, apparently to her death. Neff also informed the jury that he found 978 "hits" and forty-seven files related to the term "asphyxia." One of the "hits" led to an article, accessed by the defendant, about a man whose convictions of strangling four women to death were reversed on appeal. Eight photographs, the video, and the article were admitted in evidence, as was testimony concerning the quantity of material retrieved from the defendant's computer.
2. The defense. The defendant admitted at trial that he had entered the victim's house and strangled her with a ligature.[5] But he testified that he did so as part of a consensual sexual encounter, and without any intention to harm or kill the victim.
According to the defendant, he and the victim had sexual intercourse twice in February, 2007.[6] He enjoyed asphyxiation as a means toward sexual gratification, and the victim had allowed him to choke her with his hands on one occasion. When he arrived at her home on the evening of June 6, 2007, the defendant intimated his desire for sexual intercourse, and the victim acquiesced. He then placed the tie around her neck and began to pull it, all the while rubbing his genitals against her body to obtain an erection.[7] The defendant admitted that he [383] continued his efforts even after the victim knocked over a chair, fell to the floor, and warned him that her son was in the house. He claimed to have stopped only when he felt the son's presence behind him, at which point he released the victim and left the house.
3. Jury instructions on consent. Defense counsel alluded to the encounter as consensual in his opening statement and stressed that view again during his closing argument, although he did not use it as a basis to request a jury instruction that the victim's consent could act as a defense to the charges of armed home invasion and assault and battery by means of a dangerous weapon. The judge, however, raised the issue of consent during the charge conference, at which time defense counsel conceded that controlling precedent precluded such instructions. See Commonwealth v. Mahar, 430 Mass. 643, 653 (2000) (Mahar); Commonwealth v. Appleby, 380 Mass. 296, 310 (1980) (Appleby). Thus, defense counsel did not object when the judge instructed the jury, both during the initial charge and in response to a question submitted during their deliberations, that "consent is immaterial" to the charge of assault and battery by means of a dangerous weapon.[8] Similarly, defense counsel did not object to the judge's instruction that, with regard to the offense of armed home invasion, "consent cannot be considered legally significant unless the occupant who is allowing the person in has been made aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside."
Discussion.
1. Consent as a defense.[9] The defendant now contends that, in light of the holding in Lawrence, supra, the judge erred by not instructing the jury that consent was a defense to his conduct. In that case, the Court deemed unconstitutional a [384] Texas statute that prohibited two persons of the same sex from engaging in consensual sexual intercourse. Lawrence, supra at 577-578. Overruling its decision in Bowers v. Hardwick, 478 U.S. 186 (1986) (Bowers), the Court recognized that "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex," Lawrence, supra at 572, and concluded that the due process clause of the Fourteenth Amendment to the United States Constitution provided the petitioners "the full right to engage in their conduct without intervention of the government." Id. at 578. The Court also adopted the reasoning of Justice Stevens's dissenting opinion in the Bowers case: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice." Lawrence, supra at 577, quoting Bowers, supra at 216 (Stevens, J., dissenting).
Grasping on to this language, the defendant contends that our decision in Appleby, supra at 309-311, in which we first ruled that consent was not a defense to a charge of assault and battery by means of a dangerous weapon committed as or as part of sexual activity, is no longer valid. He argues that the Appleby holding was motivated by a public policy disapproving of certain consensual sexual behavior and, therefore, represents precisely the type of morals-based judgment the Supreme Court rejected in Lawrence. We disagree.
In Appleby, supra at 298-299, the victim alleged that the defendant, Appleby, struck him with a riding crop after he served Appleby melted ice cream. Appleby, in turn, testified that, although he did not recall the specific incident at issue, he regularly beat the victim in the context of a consensual sadomasochistic relationship, in which the victim attained sexual gratification from the physical pain Appleby administered to him. Id. at 300-302. Consequently, the defendant requested that the judge instruct the jury that "private, consensual sadomasochistic behavior is an `absolute defense to the charge of assault and battery with a dangerous weapon.'" Id. at 312. The judge declined to do so, and the jury convicted the defendant on one indictment charging him with "assault and battery with a dangerous weapon, to wit: a riding crop." Id. at 297. See G. L. c. 265, § 15A.
[385] Affirming the conviction on appeal, we rejected Appleby's underlying assertion that, as a matter of law, a party could consent to become the victim of an assault and battery by means of a dangerous weapon. Appleby, supra at 309-311. We reasoned: "The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another ...) does not prevent the State from protecting its citizens against physical harm" (emphasis in original). Id. at 311. Accordingly, we adhered to the traditional view and fit the facts of the case into the "general rule" that "to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial."[10]Id., quoting Commonwealth v. Farrell, 322 Mass. 606, 620 (1948).
The defendant's contention that Lawrence vitiates the validity of this holding is premised on a fundamental misunderstanding of the Appleby decision, as well as a selective misreading of Lawrence itself. First, in reaching our conclusion that one could not consent to violent conduct related to or constituting sexual activity, the court recognized the existence of some "right to sexual privacy that citizens enjoy." Appleby, supra at 310. However, we reasoned that such a right "would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations." Id. Thus, the foundation from which our decision sprang anticipated the Supreme Court's conclusion in Lawrence twenty-three years later that there is some sphere of sex-related activity on which the government should not, and cannot, intrude. See Commonwealth v. Balthazar, 366 Mass. 298, 301-302 (1974). Although we proceeded to set a boundary to this protected sphere of activity, we did not do so because of any societal disapproval of the underlying sexual conduct, but rather because the government has a legitimate interest in discouraging violent behavior between and against its citizens. See Appleby, supra, citing Commonwealth v. Farrell, supra at 620-621 (Appleby [386] "was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of assault and battery with a dangerous weapon"). See also Hanna, Sex Is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239, 261 (2001) ("court in Appleby goes out of its way to suggest that this is not a case directed against homosexuals, but rather focuses on the nature of the violence itself").
At the core of his argument, the defendant suggests that in Lawrence, the Supreme Court articulated a sweeping prohibition against the regulation of consensual sexual conduct or, to state the converse, announced an absolute right of privacy in sexual affairs. As the Supreme Court of Nebraska explained in State v. Van, 268 Neb. 814, 826 (2004), the Court did no such thing: "The Lawrence Court did not extend constitutional protections to any conduct which occurs in the context of a consensual sexual relationship. Rather, the Court indicated that State regulation of [private, consensual sexual activity] was inappropriate `absent injury to a person or abuse of an institution the law protects.' [Lawrence, supra at 567]. In addition, it specifically noted that the case it was deciding did not involve `persons who might be injured [or coerced].' [Id. at 578]." We agree with this reading of Lawrence and understand the express limitations of that decision not only to align with our conclusion in Appleby, but also to anticipate and reject the very argument the defendant raises on appeal. The judge, therefore, appropriately adhered to our precedent. His instructions concerning the issue of consent were and remain correct.[11],[12]
2. Admission of computer materials and related testimony. [387] The defendant next claims that the judge abused his discretion by allowing the Commonwealth to introduce in evidence the eight photographs and the ninety-second video depicting women in various states of undress being strangled, ostensibly to death; the Internet article regarding the successful appeal of a man convicted of four strangulation murders; and testimony regarding the number of explicit images and Internet searches found on the defendant's home computer. According to the defendant, admission of this inflammatory and explicit evidence was erroneous because it was of minimal relevance to any issue in the case, and any probative value it may have had was outweighed by its prejudicial effect. The defendant also claims that the judge abused his discretion by not watching the video before ruling on its admissibility or allowing the jury to view it.
All evidence, including that of a violent or sexual nature, must meet the threshold test of relevancy; that is, it must have a "rational tendency to prove an issue in the case," Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977), or render a "desired inference more probable than it would have been without it." Commonwealth v. Fayerweather, 406 Mass. 78, 83 (1989), quoting Commonwealth v. Copeland, 375 Mass. 438, 443 (1978). This, however, is only the first step in the inquiry, for even relevant evidence may not be admitted if "its probative value is [388] substantially outweighed by the danger of unfair prejudice." Mass. G. Evid. § 403 (2012). We entrust questions of relevancy and prejudicial effect to the sound discretion of the trial judge, whose determinations we will not disturb except for "palpable error." Commonwealth v. Sylvia, 456 Mass. 182, 192 (2010), quoting Commonwealth v. Simpson, 434 Mass. 570, 579 (2001).
Here, the judge ruled that, while the computer materials as a whole were "certainly prejudicial to the defendant," they were highly probative of his intent and motive, as well as the victim's alleged consent. With regard to the photographs, article, and testimony, we see no cause to disrupt this ruling. The defendant's intent was the principal issue at trial, as the Commonwealth and the defendant sparred over whether he possessed the specific intent to kill the victim, a necessary element of the attempted murder charge. See Commonwealth v. Franchino, 61 Mass. App. Ct. 367, 373 n.1 (2004), discussing G. L. c. 265, § 16. Thus, while the defendant alleged that he only strangled the victim as a means toward sexual gratification and without any intent to do her harm, the Commonwealth was entitled to introduce evidence revealing the scope of this fantasy and the likelihood that it included continuing the act to its natural completion — the victim's death.
Although there was scant evidence establishing a temporal connection between the defendant's consumption of these materials and the incident at issue,[13] the contested materials fulfilled precisely this purpose. They were found stored on the defendant's computer, and the jury reasonably could have inferred that he possessed and viewed them. Contrast United States v. Curtin, 489 F.3d 935, 962 (9th Cir. 2007) (en banc) (Kleinfeld, J., concurring) (admission of five graphic, sexual stories selected from 2,998 single-spaced pages of material found on defendant's personal digital assistant failed relevancy standard of Fed. R. Evid. 401, in part because there was no evidence defendant had read them). The photographs depicted women being strangled [389] and portrayed them afterward, seemingly lifeless and in sexual positions. These images, and the testimony regarding the additional images and searches related to strangulation and asphyxiation stored on the defendant's computer, were sufficiently similar to the way in which the defendant assaulted the victim to be relevant to and probative of his sexual desire and state of mind. See Commonwealth v. Wallace, 70 Mass. App. Ct. 757, 765-766 (2007) (where defendant alleged that touching of child victim's breast was accidental, presence of photographs of fully clothed young girls, photographs of nude adult men and women, pornographic magazines containing pictures of teenage girls, and small-sized underwear in his automobile was relevant to and probative of whether touching was intentional). See also Commonwealth v. Scott, 408 Mass. 811, 820 n.9 (1990), citing Commonwealth v. King, 387 Mass. 464, 469-472 (1982) (defendant's possession of magazine article about serial killings admissible as evidence of sexual desire and contemplation of modus operandi, where circumstances surrounding manner of death were sufficiently similar). The article similarly relates to the defendant's interest in and research of strangulation murders, even though it reported an incident void of sexual overtones.
To be sure, this evidence was prejudicial to the defendant, insofar as the subject matter explored was explicitly sexual and violent. Yet, that fact alone is not enough to render the evidence inadmissible; to meet that threshold, any prejudicial effect must substantially outweigh the probative value. See Commonwealth v. Olsen, 452 Mass. 284, 294 (2008) ("That the [contested evidence] may be gruesome or have an inflammatory effect on the jury does not render [it] inadmissible as long as [it] possess[es] evidentiary value on a material matter"). The judge took deliberate and meaningful steps to mitigate the prejudicial effect of the evidence,[14] and appropriately concluded that its probative value, which related to the core issue in dispute, was [390] comparatively high. Contrast Commonwealth v. Darby, 37 Mass. App. Ct. 650, 652, 654 (1994) (prejudicial error to admit photograph of male defendant in sexually turgid state where impotence or sexual dysfunction "was not, directly or inferentially, relevant to any issue in the case").
We separately review the judge's decision to admit the ninety-second video. This video generally portrays a nude woman being strangled. More specifically, it depicts a man dressed in black standing behind the woman, who is seated on a chair. The man asks the woman if she is ready for her "surprise," and, when she answers in the affirmative, he takes a cloth strip from his pocket, wraps it around the woman's neck, and strangles her. The woman struggles at first, but less so as time wears on. Her face begins to turn blue and, at the end, she apparently expires.[15] The Commonwealth moved in limine to admit the video. After a hearing at which the Commonwealth described what it depicted and its relevance to the case, the judge ruled it to be admissible. As the defendant notes, the judge did not view the video himself, relying instead on the Commonwealth's description of it to render a ruling on its admissibility.[16] This was error.
"[T]rial judges must take care to avoid exposing the jury unnecessarily to inflammatory material that might inflame the jurors' emotions and possibly deprive the defendant of an impartial jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). Consequently, a judge must engage in a careful and reasoned assessment of any evidence proffered by the government that a criminal defendant contests; only then will the judge truly appreciate the substance and purpose of the evidence, thus enabling him fairly to balance the submission's prejudicial impact against its probative value. See United States v. Liefer, 778 F.2d 1236, 1241 (7th Cir. 1985) ("trial court must carefully assess all evidence offered by the government ... to ensure [391] that ... [it] has probative value that is not substantially outweighed by the danger of unfair prejudice to the defendant").
Although there may be instances where a judge can discharge this duty without reviewing the contested evidence personally, this is not such a case. See United States v. Loughry, 660 F.3d 965, 971 (7th Cir. 2011), citing United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005) (positing that "[t]here may be cases where the probative value of the evidence is so minimal that it will be obvious to the court that the potential prejudice to the defendant substantially outweighs any probative value the evidence might have"). As the dissenting Justice in the Appeals Court so aptly noted, there is a particular nuance and impression of watching a video of the strangulation "death" of a woman that the Commonwealth's description, however accurate, simply could not capture. See Commonwealth v. Carey, 79 Mass. App. Ct. 587, 597-598 (2011) (Grainger, J., dissenting). Given the highly inflammatory nature of the evidence, of which he was aware, the judge ought to have recognized the great potential for prejudice it carried and taken a moment to familiarize himself with its contents. Without having done so, the judge simply "could not have fully assessed the potential prejudice to [the defendant] and weighed it against the evidence's probative value." United States v. Loughry, supra at 972. See United States v. Curtin, 489 F.3d 935, 957-958 (9th Cir. 2007) ("inflammatory... and reprehensible nature of [sexually explicit] stories, although generally relevant, is such that a district court... must know precisely what is in the stories in order for its weighing discretion to be properly exercised and entitled to deference on appeal"; "[o]ne cannot evaluate in a [Fed. R. Evid. 403] context what one has not seen or read"). This failure is itself an abuse of discretion. See Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259 n.10 (2002).
This conclusion, however, does not end our inquiry. Rather, it requires us to evaluate whether the error in failing to view the video personally before ruling on its admissibility prejudiced the defendant, if his objection was preserved, see Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), or posed a substantial risk of a miscarriage of justice, if not. See Commonwealth v. Fredette, supra at 258-259. Because the defendant did not [392] explicitly request that the judge watch the video himself and failed to raise this precise issue before the Appeals Court,[17] the Commonwealth strenuously urges us to consider the defendant's argument under the less stringent standard of review. The defendant, in contrast, treats the evidentiary issue as though it were preserved and references the "prejudicial error" standard in his brief before us. See Commonwealth v. Flebotte, supra.
Because the error does not warrant reversal under either standard, we need not resolve this dispute. We have reviewed all of the disputed evidence and concur that the video, like the photographs, article, and Internet search testimony, was highly probative of the defendant's intent in strangling the victim. Granted, it posed a greater risk of prejudicing the defendant, but that risk did not subsume the probative value. The judge provided a curative instruction before playing it, and its content was confined to the exact act with which the defendant was charged. Contrast United States v. Curtin, supra at 938, 956-959 (although evidence relevant, admission of graphic stories portraying "adults having sex with children" constituted reversible error where judge did not read stories before admitting them and stories contained graphic descriptions of "excrescence" of different order of magnitude than acts charged). The video, and all of the contested evidence, illuminated the defendant's state of mind. Thus, it was admitted for the legitimate purpose of establishing the probability that the defendant possessed the specific intent to kill the victim, and not merely to dupe the jury into believing he was "a lewd man, and ... that a man of his character would be likely to commit the crimes charged." Commonwealth v. LaSota, 29 Mass. App. Ct. 15, 27 (1990), quoting Commonwealth v. Ellis, 321 Mass. 669, 670 (1947).[18]
Judgments affirmed.
[1] The jury acquitted the defendant on one other indictment charging him with assault and battery.
[2] Both the defendant and the husband testified that, prior to the defendant's arrival at the Hamilton home, the defendant had telephoned the husband and learned that he was driving to his apartment in Arlington, not to Hamilton.
[3] The defendant was charged in separate indictments with assault and battery for each of these acts. The jury acquitted him on the indictment stemming from the alleged punch to the mouth. See note 1, supra.
[4] The deoxyribonucleic acid (DNA) analyst also testified that the victim's husband and her son were excluded as possible sources of the "handler DNA" found on the necktie.
[5] The defendant testified that, although he remembered using a "cloth" ligature, he did not have a "specific recollection" of using the necktie. He nonetheless accepted the results of the forensic testing performed on the necktie, testifying at one point that he had brought the necktie with him to the house.
[6] The victim denied that she ever had sexual intercourse with the defendant.
[7] On cross-examination, the defendant conceded that he did not ask the victim specifically whether he could place the tie around her neck. But, he claimed, when he put it on her, she said, "Let's go," which he took to mean, "Let's get it over with."
[8] After proposing the language with which he intended to answer the jury question, the judge asked defense counsel whether he had an objection. Defense counsel responded, "I'd like to, but I don't think I can."
[9] We acknowledge the Commonwealth's argument that the defendant did not preserve this claim. Given our ultimate conclusion that the judge's instructions on consent were not erroneous, however, we need not resolve the parties' resulting dispute regarding the appropriate standard of review. Cf. Commonwealth v. Randolph, 438 Mass. 290, 293-297 (2002).
[10] "[B]odily harm" in this context "has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the [alleged victim]. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling." Commonwealth v. Farrell, 322 Mass. 606, 621 (1948), quoting The King v. Donovan, [1934] 2 K.B. 498, 509.
[11] Consent to enter a home — in and of itself — is also not a defense to a charge of armed home invasion. Commonwealth v. Mahar, 430 Mass. 643 (2000) (Mahar). In Mahar, supra at 650-651, the defense presented evidence that someone inside the home had opened the door and allowed the defendant to enter before the defendant, who was wielding a machete, attacked the home's occupants. We determined that "[w]hen consent to enter is allegedly given to someone, in circumstances such as presented here, the purported consent cannot be considered legally significant unless the occupant has been made aware that the person at the door is armed with a dangerous weapon and is about to commit an assault once inside." Id. at 652-653. Thus, "[f]or practical purposes, permissive entry into a dwelling, and entry while armed in order to commit an armed assault, are mutually exclusive concepts because G. L. c. 265, § 18C, implies, as a matter of public policy, that an occupant of a dwelling cannot consent to allow an armed intruder like the defendant inside to commit an assault." Id. at 653, referencing Commonwealth v. Appleby, 380 Mass. 296, 310 (1980).
[12] That American courts, by and large, have condoned certain harmful and injurious conduct carried out in a sporting contest does not diminish this conclusion. See, e.g., Commonwealth v. Collberg, 119 Mass. 350, 353 (1876). Cf. Jaworski v. Kiernan, 241 Conn. 399, 408 (1997) (adopting reckless or intentional conduct standard of care for determining tort liability for injuries sustained during athletic events). To be sure, the leap between that body of law and the issue before us appears short: in both scenarios, an actor may perpetrate a seemingly violent act against his or her partner, but only in one is that actor held legally responsible for the resulting injury. Appearances, however, are often deceiving, as this leap disregards the vast gulf that exists between the organized, regulatory apparatus of sports competitions, and the intensely personal and private negotiations outlining the permissible bounds of sexual conduct. See Hanna, Sex Is Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. Rev. 239, 247-248, 255-256, 287-290 (2001). See also Nabozny v. Barnhill, 31 Ill. App. 3d 212, 215 (1975) (referencing existence of "knowledgeable personnel," "a recognized set of rules governing the conduct of the competition," and "safety rule[s]" when assessing legal duty sports players owe one another for purposes of personal injury litigation).
[13] Sergeant Thomas Neff, who had conducted the forensic examination of the computer, testified that he had not gathered information concerning the date on which the materials at issue were viewed, although the exhibit submitted on appeal includes the notation "28 May 2007" alongside an Internet search for "asphyxiation." The defendant also testified that he had used his computer to access "pornographic and asphyxia Web sites."
[14] The judge added certain questions during empanelment designed to seat jurors capable of viewing the evidence dispassionately, and provided cautionary instructions aimed at guiding the jurors toward the "cool, rational" consideration of this evidence both during the trial and in the final charge. See Commonwealth v. Anderson, 445 Mass. 195, 214 (2005), citing Commonwealth v. Auclair, 444 Mass. 348, 260 (2005) ("Juries are presumed to follow a judge's instructions"). See also Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 84 (2011).
[15] The defendant testified that he was familiar with the woman featured in the "video clip" (video), who was the owner of an asphyxiation-themed Web site and performed in many of its videos.
[16] The defendant does not dispute the accuracy of the Commonwealth's description. The defendant did not request that the judge review the video before ruling on its admissibility, nor did he object when the judge ruled without doing so.
[17] The issue was raised by the Appeals Court's dissenting Justice. Commonwealth v. Carey, 79 Mass. App. Ct. 587, 597-599 (2011) (Grainger, J., dissenting).
[18] Although the admission of the video added to the over-all quantity of potentially inflammatory material provided to the jury, it did not render this grouping of evidence unduly repetitive or cumulative. Each item — the eight photographs, the video, the article, and the testimony — depicted the substance of the defendant's sexual desire in a different light, and together, they revealed the depth of his interest in, and inquiry into, asphyxiation. As a whole, they constituted a relatively small number of exhibits, and the jury were not provided with the video during their deliberations. Contrast Commonwealth v. Jaundoo, 64 Mass. App. Ct. 56, 59, 62-63 (2005) (prejudicial error to admit "great quantity of material," including pornographic videotape, evidence bag containing seventy-seven pornographic images, and several pornographic magazines, all of which were given to jury for perusal in jury room and none of which had any "direct bearing on the complainant's testimony").
7.2.8.6.5.3 Commonwealth v. Appleby 7.2.8.6.5.3 Commonwealth v. Appleby
380 Mass. 296 (1980)
402 N.E.2d 1051
COMMONWEALTH
vs.
KENNETH A. APPLEBY.
Supreme Judicial Court of Massachusetts, Hampden.
December 3, 1979.
April 1, 1980.
Present: HENNESSEY, C.J., QUIRICO, WILKINS, LIACOS, & ABRAMS, JJ.
[297] John P. Ward for the defendant.
Dianne M. Dillon, Special Assistant District Attorney, for the Commonwealth.
QUIRICO, J.
On November 22, 1978, a Superior Court jury convicted Kenneth A. Appleby of assault and battery with a dangerous weapon, to wit: a riding crop. G.L.c. 265, § 15A.[1] The judge sentenced Appleby to eight to ten years in the Massachusetts Correctional Institution at Walpole. Appleby appealed pursuant to G.L.c. 278, §§ 33A-33G, and we granted his petition for direct appellate review. He alleges error in (1) the judge's denial of a directed verdict, and (2) the judge's instructions to the jury on the issues of consent and intent. We affirm the conviction.
Kenneth Appleby and Steven Cromer were engaged in a homosexual, sadomasochistic relationship for over two years, during most of which period they lived together. Appleby frequently beat Cromer. Appleby's general defense to the indictments was that Cromer had consented to the beatings, and that he, Appleby, had intended them for Cromer's sexual gratification. In addition to pressing his arguments on consent and intent in this appeal, he maintains that he should have had a directed verdict because the Commonwealth failed to present a prima facie case of assault and battery by means of a dangerous weapon as set forth in G.L.c. 265, § 15A.
By far the major portion of the Commonwealth's case consisted of the testimony of the alleged victim, Steven Cromer. There follows a summary of his testimony; material from other sources is so noted. The summary continues to the point where we first mentioned Appleby's motion for a directed verdict.
Cromer lived with Appleby during most of the period from June, 1974, until August 31, 1976 (the date of the incident for which Appleby was convicted). His entire relationship [298] with Appleby, including the homosexual acts, was forced upon him; he lived with Appleby as a "servant," performing household and other duties. Appleby beat him when he was dissatisfied with Cromer's performance of these duties. Their residence was like a "military camp," with Appleby owning a variety of weapons and employing them on persons in his "torture chamber," which Cromer was forced to help design.
In October, 1975, an enraged Appleby beat Cromer badly with a bullwhip and baseball bat, fracturing his kneecap. Cromer was hospitalized for this injury until December 4. He received surgery to repair the kneecap, and he spent several weeks on crutches thereafter.
En route to the hospital, Appleby suggested to Cromer that they tell hospital personnel that Cromer had had an epileptic seizure and fallen down some stairs, and Cromer, who had had seizures before, agreed and maintained the story throughout the hospital stay. They fabricated the story "[t]o cover things up." When he left the hospital, Cromer returned to Appleby's residence in West Springfield, where he resumed his "duties" as best he could.
When asked what distinguished this October, 1975, incident from other beatings, Cromer stated that it was "going a little over what I was used to." The October, 1975, incident formed the basis of the first indictment, on which the jury acquitted Appleby.
A second incident, the subject of the second indictment, allegedly occurred on February 28, 1976, when Appleby beat Cromer with a bullwhip because of displeasure with a sandwich Cromer had prepared. A friend of Appleby was outside at the time, and Appleby called to this person to bring snow to apply to Cromer's wounds. Cromer liked this "attention": "Other beatings I had, nothing came. No attention was made to me like that. It was unusual in that respect." The jury acquitted Appleby on this indictment as well.
The third incident occurred on August 31, 1976. Cromer served Appleby some ice cream which had melted. This enraged [299] Appleby, who reached for a riding crop with which he hit Cromer. Cromer described the blow as follows: "He just connected on the back.... He was sitting down.... [H]e just lashed with it like that (Indicates.) And it just barely connected with my back. There were some thongs at the end and I just felt them hit me, and he was losing his temper.... I felt the whip hit me. A glancing blow." Cromer, in his underwear, ran from the house and to a monastery, where a priest encouraged him to telephone his relatives. His brother and sister-in-law came to the monastery for him, and later helped him to remove his personal belongings from Appleby's residence. Cromer never returned to Appleby's place thereafter. The jury convicted Appleby on the indictment involving the riding crop incident.
Cromer maintained that Appleby was sadistic, but denied that he was engaged in a sadomasochistic relationship with Appleby. He denied that he was a homosexual, and he claimed the homosexual acts were forced upon him from the beginning. He said he could not recall whether violence and sexual activity with Appleby occurred close in time. Cromer said "Mr. Appleby explained later that he delighted in violence to an extent that he said it was almost sexual or sexual."
Cromer acquiesced in this relationship because Appleby "took me over in a way.... He had convinced me that people were constantly following me and observing my every action and reporting to him." Cromer told no one about the relationship, and sought aid from no one, because Appleby told him no one would believe him, that he was a "hippie," a "weirdo," and on drugs. He thought that even the police could not "stop" Appleby. He was under "duress" the entire time because he feared that Appleby would harm him or members of his family if he did not continue in their relationship.
At one point Cromer stated that he never protested or told Appleby to stop, because he was afraid to do so. At [300] another point he stated that he did protest Appleby's sadistic activity.
Cromer had a low opinion of himself for having got into the situation, and he "lost" himself in his functions at the Appleby residence. He said that after the bullwhip incident, "I felt that I was just a joke — that I had taken the beating and had done nothing about it. Just took the beating, and when he told me to clean up the food off the floor after that, I did, and Jay Robbins [Appleby's friend] came in and saw me on my hands and knees doing this."
At the close of the Commonwealth's case-in-chief, which covered almost 700 pages of the trial transcript, Appleby moved for a directed verdict on the basis that the Commonwealth had failed to establish a prima facie case. The judge denied the motion. The defendant then presented evidence which, including his own testimony, covered almost 600 pages of the transcript. The defendant renewed his motion for a directed verdict at the end of the trial, and it was again denied.
Since the principal question for the jury was one of the credibility of the two main witnesses, Cromer and Appleby, we also summarize Appleby's account of his relationship with Cromer. This summary will continue to the point where we refer to the defense witness Webster.
Appleby's general defense to the three charges was that Cromer had consented to their sadomasochistic relationship. He admitted that he had whipped or beaten Cromer almost daily. He denied, however, that the fractured kneecap was caused by a beating; rather, he asserted the truth of the story of the epileptic seizure and fall down the stairs. (He also testified to witnessing a prior seizure and presented medical evidence of Cromer's epilepsy.) As to the second incident, he denied that he ever beat Cromer severely and said that February 28, 1976, did not stick out in his mind as involving any incident different from the usual daily whippings. Regarding the riding crop incident, Appleby testified that Cromer ran out of the house in his underwear on a rainy night, but said that this occurred on July 24, [301] 1976, after a conversation, and that there was no beating or whipping of any kind that evening.
Appleby trained attack dogs for a living, and kept whips in his house for that purpose. He ascribed the initiation of the sadomasochistic activities entirely to Cromer. He met Cromer while the latter was "hustling" sex for money on a Springfield street. At that time Appleby was a "conventional" homosexual. The first night they met, Cromer showed him a braided rope he had made from clothesline, and said he liked to be beaten with that. Appleby refused to engage in beatings. Cromer beat himself with the clothesline, and Appleby told him not to use it. In the months before Cromer moved in, their "regular sexual ritual" consisted solely of fellatio and anal intercourse. Cromer told Appleby that he took drugs, and Appleby saw Cromer injecting himself and taking pills.
One evening, Cromer asked to go home with Appleby; the latter assented on the condition that Cromer not bring any drugs. Shortly after they arrived, Cromer spotted one of the whips Appleby used to train dogs. Cromer asked Appleby to beat him with the whip, but the latter refused.
The next day, Cromer telephoned Appleby and asked if he could come to live with him, because some people were following him and trying to kill him. Appleby told Cromer he had taken too many pills. Shortly thereafter, Cromer arrived at Appleby's home and begged to be let in. Appleby told him he could move in if he fulfilled four conditions; Cromer balked at the condition that he give up drugs, but finally acquiesced, and moved all of his belongings into Appleby's home. One of the other conditions was that there would be no beatings, but within two weeks Appleby reneged on this condition and agreed to strike Cromer for the latter's sexual fulfilment.[2] He did this because Cromer begged for it, and because he, Appleby, had a sexual reaction to the sexual effect of the beatings on Cromer.
[302] After this, their relationship became a sadomasochistic one, as well as homosexual, and involved daily beatings of Cromer. At first, Cromer was able to attain sexual satisfaction with only a few strokes of a whip, but gradually he began to require more variety. Together they acquired or constructed leg irons, handcuffs, a torture rack, several other implements of torture, and a room which Cromer liked to call the "torture chamber."
When shown the riding crop on direct examination, Appleby denied ever using it on Cromer. On cross-examination, however, he admitted that the riding crop "was employed many times," and said that Cromer "favored" the crop, that "he would be whipped until he reached sexual orgasm." The riding crop never caused "welts," but only "redness;" in fact none of the beatings caused more than "redness." Appleby never enjoyed whipping Cromer; he enjoyed the sexual effect it had on Cromer and the fact that Cromer allowed him to have anal intercourse after each beating. When asked if he intended to strike Cromer, he said, "I did it with the intent to turn him on sexually."
Appleby had several other sadomasochistic relationships after Cromer left, and used the implements he had purchased or made for Cromer. All of the implements, including the riding crop, were found at Appleby's house in 1978.
Appleby presented as part of his case expert testimony of Dr. John Peter Webster, a minister and psychotherapist. Webster, who had counseled Appleby after his arrest, also had some knowledge of sadomasochism. We summarize his testimony. He defined sadomasochism as involving a fusion of the sexual and aggressive drives, and said the masochist may need to be "punished" in order to release inhibited sexual feelings. He said that the beatings are generally inseparable from the sexual part of the relationship, and that typically the masochist needs to feel helpless and dependent. Cromer's staying with Appleby under fear of harm to himself or his family "would certainly fit the pattern of masochism."
[303] The propriety of the denial of the motions for a directed verdict and the correctness of the judge's instructions to the jury both turn on certain questions of law, and we therefore address them first. Those questions are: (1) whether the riding crop was a "dangerous weapon" for purposes of G.L.c. 265, § 15A, (2) what sort of criminal intent is required by said § 15A, and (3) what role Appleby's consent defense should play in this case.
1. General Laws c. 265, § 15A reads: "Whoever commits assault and battery upon another by means of a dangerous weapon shall be punished by imprisonment in the state prison for not more than ten years or by a fine of not more than one thousand dollars or imprisonment in jail for not more than two and one half years." Courts have classified dangerous weapons into two categories: those dangerous per se and those dangerous as used. See Commonwealth v. Farrell, 322 Mass. 606, 615 (1948).
(a) A "dangerous weapon per se" is an instrumentality designed and constructed to produce death or great bodily harm. State v. Luckey, 69 Ohio Op.2d 111, 113 (Ohio App. 1974). See also Farrell, supra. Thus, for example, firearms, daggers, stilettos and brass knuckles are usually classified as dangerous per se, because they are designed for the purpose of bodily assault or defense. On the other hand, pocket knives, razors, hammers, wrenches and cutting tools are not so classified. People v. Vaines, 310 Mich. 500, 505 (1945) (dictum). In one case dealing with a "driving whip," the court held that the whip was not dangerous per se because it was not designed for the offense or defense of persons. State v. Page, 15 S.D. 613, 615-616 (1902).[3]
A riding crop is not designed to inflict death or serious bodily harm upon either persons or animals. It is designed [304] to inflict temporary pain in order to cause an animal to move. Therefore it is not dangerous per se.
(b) Weapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be "dangerous weapons." See Farrell, supra (lighted cigarette); Commonwealth v. LeBlanc, 3 Mass. App. Ct. 780, 780 (1975) (automobile door used to strike police officer); Commonwealth v. Tarrant, 2 Mass. App. Ct. 483, 486-487 (1974) ("kitchen-type" knife and German shepherd dog may both be used as "dangerous weapons"), S.C., 367 Mass. 411 (1975); United States v. Loman, 551 F.2d 164, 169 (7th Cir.) (walking stick used with enough force to break it), cert. denied, 433 U.S. 912 (1977); United States v. Johnson, 324 F.2d 264, 266 (4th Cir.1963) (chair brought down upon victim's head); Bennett v. State, 237 Md. 212, 216 (1964) (microphone cord tied around victim's neck, causing inability to speak and marks on throat); Vaines, supra at 505-506 (ordinary jackknife); People v. Buford, 69 Mich. App. 27, 30 (1976) (dictum) (automobile, broomstick, flashlight and lighter fluid may all be dangerous as used); State v. Howard, 125 N.J. Super. 39, 45 (1973) (straight razor). Generally it is held to be a question for the fact finder whether the instrument was so used in a particular case. Farrell, supra at 614-615. Tarrant, 2 Mass. App. Ct. at 487. Vaines, supra at 505. Buford, supra at 32. Howard, supra at 47.
A riding crop, such as the one involved in this case, is capable of being used to inflict serious bodily harm, and possibly even to cause death. The riding crop Cromer identified as that which Appleby used on August 31, was admitted in evidence. We have examined it. It is approximately eighteen inches in length, and constructed of heavy braided leather wrapped around a solid leather core. At its thickest point, it is slightly less than one inch in diameter, tapering off to a diameter of about one-third of an inch. Cromer and Appleby both testified that leather thongs were missing from the end by the time of the trial. The riding crop is more substantial than one might anticipate an ordinary riding crop to be. It resembles instead a short whip. We [305] are satisfied that it could be employed to inflict serious bodily harm. Therefore, we cannot hold as a matter of law that it can never be a dangerous weapon as used.
(c) The jury in this case had to find that the riding crop was in fact dangerous as used in order to convict Appleby under § 15A. Whether they could lawfully have done so depends on the gravamen of the offense of assault and battery by means of a dangerous weapon as set forth in § 15A.
The meaning of "dangerous weapon" depends to a certain extent on the context in which it is used. We have held that the thrust of the offense of assault with a dangerous weapon, for example, is the outward demonstration of force which breaches the peace, and therefore even an unloaded gun (known only by the defendant to be unloaded) may be a dangerous weapon in that context. Commonwealth v. Henson, 357 Mass. 686, 692 (1970). See also United States v. Maynard, 452 F.2d 1087, 1088 (1st Cir.1971) (assault with dangerous weapon does not require proof gun was loaded). The gist of the offense of armed robbery is robbery "while armed," and thus there is no need to prove the defendant used a weapon other than to threaten. Henson, supra at 690. Commonwealth v. Tarrant, 367 Mass. 411, 415-416, 418 (1975) (dog may be "dangerous weapon" for armed robbery, G.L.c. 265, § 17, and Commonwealth need not prove actually dangerous or used in harm-inflicting manner).
Thus the relevant behavior for the offense of assault with a dangerous weapon, G.L.c. 265, § 15B, is an outward demonstration of force, and § 15B requires only apparent ability to injure. Henson, supra at 692-693. The behavior for robbery while armed with a dangerous weapon, G.L.c. 265, § 17, which distinguishes it from unarmed robbery, G.L.c. 265, § 19, is the objectively menacing behavior of the defendant with the instrumentality causing fear in his victims. Tarrant, 367 Mass. at 415. Whether a weapon not dangerous per se qualifies for either of these statutory crimes is a question of fact to be decided "by objective standards [306] and not by the victim's subjective apprehension." Tarrant, 367 Mass. at 416. Henson, supra at 693.
One of the principal distinctions between assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon is in the punishment. The maximum penalty for the former is five years, G.L.c. 265, § 15B, and for the latter is ten years, G.L.c. 265, § 15A. We must therefore ask what behavior distinguishes the two crimes, and whether the meaning of "dangerous weapon" is different.
"The definition of an assault is, an attempt or offer with force and violence to do injury to a person either from malice or wantonness; and a battery is where an injury is actually inflicted under such circumstances." Commonwealth v. Ruggles, 6 Allen 588, 590-591 (1863). "An assault and battery is the intentional and unjustified use of force upon the person of another, however slight ..." (emphasis supplied). Commonwealth v. McCan, 277 Mass. 199, 203 (1931).[4] Under § 15A, the battery must be accomplished by means of the dangerous weapon, and not merely while possessing the weapon. Salemme v. Commonwealth, 370 Mass. 421, 424 (1976). Commonwealth v. Manning, 6 Mass. App. Ct. 430, 436, 438 (1978). Commonwealth v. Jacobs, 6 Mass. App. Ct. 618, 622-623 (1978). Therefore, § 15A requires an assault by means of a dangerous weapon, see Henson, supra, and also an intentional, unjustified touching, however slight, by means of that dangerous weapon. The criminal law of assault and battery by means of a dangerous weapon expresses society's desire to punish [307] the use of an instrument which is capable of producing serious bodily harm. We hold that there was sufficient evidence for the jury to find that the riding crop, used as it was by Appleby in this case, was a dangerous weapon.[5] The law need not wait until the instrument actually does cause serious bodily harm in order to classify the weapon as dangerous. Any touching with a potentially dangerous weapon can be assault and battery by means of a dangerous weapon for purposes of § 15A, provided that the assault element and the intentional application of force are established. Commonwealth v. Hawkins, 157 Mass. 551, 553 (1893), and cases cited.
2. We next examine the type of criminal intent necessary for the crimes punishable under G.L.c. 265, § 15A. It has been held that assault and battery by means of a dangerous weapon (G.L.c. 265, § 15A) is a general intent crime in Massachusetts. See Commonwealth v. Randall, 4 Gray 36, 38-39 (1855); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 759 n. 8 (1978). Compare G.L.c. 265, § 15A, with G.L.c. 265, § 14 (mayhem: "with malicious intent to maim or disfigure" and "by such assault disfigures") and G.L.c. 265, § 15 (assault with intent to murder or maim); cf. Commonwealth v. Hogan, 379 Mass. 190, 192 (1979). Section 15A does not require specific intent to injure; it requires only general intent to do the act causing injury. Hawkins, supra. See generally W.R. Lafave & A.W. Scott, Jr., Criminal Law § 28 (1972).[6]
[308] The required intent is satisfied by proof of intent to commit the lesser included crime of assault with a dangerous weapon. See Henson, supra; Commonwealth v. Slaney, 345 Mass. 135, 137-139, 141 (1962). Once an actor intends to commit assault with an object capable of causing bodily harm,[7] he is threatening to use the instrumentality in a dangerous fashion. The offense of assault and battery by means of a dangerous weapon is complete once the threat is consummated by the application of any force upon the victim by means of the instrumentality. Hawkins, supra. This effectuates the policy of § 15A to deter the use of "neutral" objects in a dangerous fashion.
In sum, the offense of assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A, requires that the elements of assault be present (see Henson, supra; Slaney, supra), that there be a touching, however slight (McCan, supra), that that touching be by means of the weapon (Salemme, supra), and that the battery be accomplished by use of an inherently dangerous weapon, or by use of some other object as a weapon, with the intent to use that object in a dangerous or potentially dangerous fashion.
3. The evidence in this case must be viewed in a strained manner in order to support Appleby's argument that the jury were required to find that Cromer consented to be hit with the riding crop. Cromer testified that he did not consent to any of the beatings, that the riding crop incident occurred [309] after an argument over melted ice cream, and that he immediately ran from the house when Appleby "lost his temper" and struck him. Appleby did not testify that there was any beating that evening which related to sexual activity or to which Cromer otherwise consented; he flatly denied that a beating had occurred on the night Cromer ran to the monastery. He further said this night was July 24, but Father Murray (from the monastery), Leon Cromer (Cromer's brother), and Mary Cromer (Cromer's sister-in-law) all testified that the monastery incident occurred on August 31. Furthermore, the riding crop incident was remote in time from the earlier alleged incidents, when a claim that Cromer consented to the relationship might have received more support in the evidence.
The only conceivable way that consent by Cromer on August 31 could be raised by the evidence is by inferences that a) Cromer consented to the relationship generally, and b) Appleby subjectively believed on the night in question that Cromer would consent to be hit with the crop on the basis of his past behavior. Giving Appleby the benefit of this rather strained construction, we shall briefly discuss the legal viability of Appleby's contention that as a matter of law Cromer could consent to their sadomasochistic relationship.
(a) Assuming that the riding crop incident occurred in relation to sexual behavior, the question is whether the State can regulate, by the law of assault and battery, violent behavior which occurs in private, consensual sexual relationships.
We held in Commonwealth v. Balthazar, 366 Mass. 298, 302 (1974), that G.L.c. 272, § 35, prohibiting "unnatural and lascivious" acts, "must be construed to be inapplicable to private, consensual conduct of adults. We do so on the ground that the concept of general community disapproval of specific conduct, which is inherent in § 35, requires such an interpretation. We do not decide whether a statute which explicitly prohibits sexual conduct, even if consensual and private, would be constitutionally infirm."
[310] After Balthazar, consent is a defense to a charge of "unnatural and lascivious" acts under c. 272, § 35. See also Commonwealth v. Hill, 377 Mass. 59, 62-63 (1979) (applying Balthazar retroactively); Balthazar v. Superior Court, 573 F.2d 698, 699 (1st Cir.1978) (dictum); People v. Onofre, 72 App. Div.2d 268 (N.Y. 1980). Appleby has cited no case, and we are aware of none, extending protection on either statutory or constitutional grounds beyond the sexual acts and to accompanying force or violence by means of dangerous weapons. See generally Cotner v. Henry, 394 F.2d 873 (7th Cir.), cert. denied, 393 U.S. 847 (1968); Towler v. Peyton, 303 F. Supp. 581 (W.D. Va. 1969) (defendant may constitutionally be convicted of forced acts of sodomy with wife). Any right to sexual privacy that citizens enjoy, and we do not here decide what the basis for such a right would be if it exists,[8] would be outweighed in the constitutional balancing scheme by the State's interest in preventing violence by the use of dangerous weapons upon its citizens under the claimed cloak of privacy in sexual relations. See generally Balthazar v. Superior Court, supra at 701 (dictum) (sadomasochistic behavior "universally condemned"); Onofre, supra (dictum) (privacy right not absolute; State may regulate conduct which "has the potential for working harm"; prevention of "physical violence and disorder" probably valid State interest).
General Laws c. 265, § 15A, is not aimed at regulating sexual conduct. Appleby was in no way charged with a crime for committing homosexual acts. Rather he was tried for violating a statute that implies, as a matter of public policy, that one may not consent to become a victim of an assault and battery with a dangerous weapon. Farrell, supra at 620-621. See also Commonwealth v. Collberg, 119 Mass. 350 (1876).
[311] (b) The fact that violence may be related to sexual activity (or may even be sexual activity to the person inflicting pain on another, as Appleby testified) does not prevent the State from protecting its citizens against physical harm. The invalidity of the victim's consent to a battery by means of a dangerous weapon would be the same, however, whether or not the battery was related to sexual activity. The general rule is: "It is settled that to commit a battery upon a person with such violence that bodily harm is likely to result is unlawful, and consent thereto is immaterial." Farrell, supra at 620.[9] Regardless of whether sexual activity was involved in the incident in question, Cromer's consent to assault and battery upon him by Appleby by means of a dangerous weapon cannot absolve Appleby of the crime charged punishable under G.L.c. 265, § 15A.
4. Appleby alleges that the judge erred in denying his motions for a directed verdict.[10] The standard we apply is whether there was enough evidence in the case-in-chief, when taken in the light most favorable to the Commonwealth, "that could have satisfied a rational trier of fact of each [essential element of the offense] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). Commonwealth v. Rosenberg, 379 Mass. 334, 337 (1979).
We hold that the Commonwealth presented in its case-in-chief enough evidence of the elements of assualt and battery [312] with a dangerous weapon, to which Cromer by law could not consent, to support the denial of the motion. We have already said that an assault with a dangerous weapon coupled with slight, intentional touching can qualify for assault and battery by means of a dangerous weapon under G.L.c. 265, § 15A. Even if Appleby subjectively intended to use the crop for his own sexual purposes, the evidence was sufficient to permit the jury to find that he possessed the requisite intent to use the riding crop in a dangerous manner and thereby commit a battery.
The evidence, both at the close of the Commonwealth's case and after both sides had rested, supports a jury finding that Appleby intentionally placed Cromer in fear and struck him with the riding crop, an instrumentality which was then being used as a dangerous weapon. There was no error in the denial of the directed verdict.
5. Appleby alleges error in the jury instructions, and in the denial of his request for instructions that (a) intent to cause sexual gratification precludes a finding of guilty of the offense charged, and (b) private, consensual sadomasochistic behavior is an "absolute defense to the charge of assault and battery with a dangerous weapon." We have reviewed the judge's charge, and find no error. Appleby's requested instructions squarely conflict with our holdings today and with the holdings of Farrell, supra.
For all the foregoing reasons, we affirm Appleby's conviction. While we express some reservation on the severity of the sentence imposed for the particular assault and battery on August 31, 1976, as established by the jury verdict, albeit an assault and battery by means of a dangerous weapon, that subject is not open to review by this tribunal. See G.L.c. 278, §§ 28A-28C.
Judgment affirmed.
HENNESSEY, C.J. (concurring).
I concur with the result and the reasoning of the court's opinion. I add these few [313] words to bring emphasis to the court's expressed "reservation" as to the severity of the sentence imposed. The only incident which resulted in a guilty verdict was minor. It was a blow which "barely connected" with the victim's back; it was a "glancing blow," with no evidence of visible injury or after effects. We may speculate that the sentencing process was perhaps influenced by the indictments as to two more serious episodes of violence. However, the jury, by their not guilty verdicts, rejected those charges, and as a consequence they would have no proper bearing on the sentence. Perhaps the sentence here was unduly influenced by knowledge of other charges pending against the defendant at the time of this trial. Perhaps, also, the sentence was influenced by certain related circumstances which are abhorrent to most persons, but the defendant was not charged with those circumstances in any indictment. In sum, the sentencing result here is one which focuses on the compelling need for reasoned application of the broad sentencing discretion ordinarily available to our trial court.
[1] The jury acquitted Appleby on two other indictments charging assault and battery with a dangerous weapon, to wit: a bat, and assault and battery with a dangerous weapon, to wit: a whip.
[2] The two other conditions were that Cromer (a) attend church every Sunday with Appleby, and (b) not engage in any "hustling."
[3] Page was decided in the context of a statute prohibiting rioting, and providing for higher penalties for rioting while carrying a "deadly or dangerous weapon." Because no use of the weapon was required for conviction of the higher offense, the court held that the weapon must be dangerous per se. State v. Page, 15 S.D. 613 (1902).
[4] The judge in Appleby's case charged the jury that a battery "is the intentional and unjustified use of force, however slight, upon the person of another. Now, not every touching or brushing is a battery. It must be intentional touching or brushing. Everyday social intercourse of urban and suburban life in shopping and public assemblies, in sporting events, persons in crowds are subject to a certain amount of jostling, pushing and shoving — while these contacts may be somewhat offensive, they do not constitute battery because they enjoy a measure of justification if they're not excessive. So there can be a touching or brushing and that can be a battery if it's intentional."
[5] Of course, the question whether a weapon is dangerous as used is always one for the fact finder. "In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled." Commonwealth v. Tarrant, 367 Mass. 411, 416 (1975). Thus the holding of the present case should not be construed to mean that any intentional unjustified touching with an object previously held in a different case to have been capable of being a dangerous weapon constitutes a crime under G.L.c. 265, § 15A. A reasonable jury might well reach a different conclusion as to a riding crop when used in different circumstances.
[6] Weapons which are dangerous per se will qualify for § 15A convictions when used to commit an assault and a battery of any kind, and without a jury determination that the weapon was dangerous as used. This is because public policy discourages the use of such weapons, and persons are charged with knowledge of their inherently dangerous nature. See Commonwealth v. Smith, 312 Mass. 557, 558-560 (1942); Commonwealth v. Jones, 6 Mass. App. Ct. 750, 758 (1978). See also Tarrant, 367 Mass. at 416 (for armed robbery, where weapon not dangerous per se, potential danger must be assessed by fact finder using objective standards and not victim's subjective apprehension).
[7] "Bodily harm" is defined as "any hurt or injury calculated to interfere with the health or comfort of the [victim]." Commonwealth v. Farrell, 322 Mass. 606, 621 (1948), quoting from Rex v. Donovan, [1934] 2 K.B. 498, 507.
[8] See generally Commonwealth v. Balthazar, 366 Mass. 298, 301 n. 2 (1974), and cases cited.
[9] Farrell involved a female victim who had gone to a hotel room with the defendant, apparently for the purpose of having sexual intercourse, although this is not clearly stated in the review of the evidence. The defendant cut her with a razor and disfigured her body with lighted cigarettes. It appears from the facts that she neither knew this would occur nor consented to it, but this court held that as a matter of law she could not have consented.
[10] The Commonwealth argues that the classification of the riding crop as a dangerous weapon is not properly before this court because Appleby did not state grounds for his motion for directed verdict and the thrust of his defense was consent. The motion for a directed verdict raises the question of the sufficiency of the evidence as to all essential elements of the offense, however. Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).
7.2.8.6.5.4 Commonwealth v. Lopez 7.2.8.6.5.4 Commonwealth v. Lopez
433 Mass. 722 (2001)
COMMONWEALTH
v.
KENNY LOPEZ.
Supreme Judicial Court of Massachusetts, Hampden.
December 6, 2000.
April 17, 2001.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, & SOSMAN, JJ.
Carlo A. Obligato, Committee for Public Counsel Services, for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.
SPINA, J.
The defendant, Kenny Lopez, was convicted on two indictments charging rape and one indictment charging indecent assault and battery on a person over the age of fourteen years. We granted his application for direct appellate review. The defendant claims error in the judge's refusal to give a mistake of fact instruction to the jury. He asks us to recognize a defendant's honest and reasonable belief as to a complainant's consent as a defense to the crime of rape, and to reverse his convictions and grant him a new trial. Based on the record presented, we decline to do so, and affirm the convictions.
1. Background. We summarize facts that the jury could have found. On May 8, 1998, the victim, a seventeen year old girl, was living in a foster home in Springfield. At approximately 3 P.M., she started walking to a restaurant where she had planned to meet her biological mother. On the way, she encountered the [723] defendant. He introduced himself, asked where she was going, and offered to walk with her. The victim met her mother and introduced the defendant as her friend. The defendant said that he lived in the same foster home as the victim and that "they knew each other from school." Sometime later, the defendant left to make a telephone call. When the victim left the restaurant, the defendant was waiting outside and offered to walk her home. She agreed.
The two walked to a park across the street from the victim's foster home and talked for approximately twenty to thirty minutes. The victim's foster sisters were within earshot, and the victim feared that she would be caught violating her foster mother's rules against bringing "a guy near the house." The defendant suggested that they take a walk in the woods nearby. At one point, deep in the woods, the victim said that she wanted to go home. The defendant said, "Trust me," and assured her that nothing would happen and that he would not hurt her. The defendant led the victim down a path to a secluded area.
The defendant asked the victim why she was so distant and said that he wanted to start a relationship with her. She said that she did not want to "get into any relationship." The defendant began making sexual innuendos to which the victim did not respond. He grabbed her by her wrist and began kissing her on the lips. She pulled away and said, "No, I don't want to do this." The defendant then told the victim that if she "had sex with him, [she] would love him more." She repeated, "No, I don't want to. I don't want to do this." He raised her shirt and touched her breasts. She immediately pulled her shirt down and pushed him away.
The defendant then pushed the victim against a slate slab, unbuttoned her pants, and pulled them down. Using his legs to pin down her legs, he produced a condom and asked her to put it on him. The victim said, "No." The defendant put the condom on and told the victim that he wanted her to put his penis inside her. She said, "No." He then raped her, and she began to cry. A few minutes later, the victim made a "jerking move" to her left. The defendant became angry, turned her around, pushed her face into the slate, and raped her again. The treating physician described the bruising to the victim's knees as [724] significant." The physician opined that there had been "excessive force and trauma to the [vaginal] area" based on his observation that there was "a lot of swelling" in her external vaginal area and her hymen had been torn and was "still oozing." The doctor noted that in his experience it was "fairly rare" to see that much swelling and trauma.
The defendant told the victim that she "would get in a lot of trouble" if she said anything. He then grabbed her by the arm, kissed her, and said, "I'll see you later." The victim went home and showered. She told her foster mother, who immediately dialed 911. The victim cried hysterically as she spoke to the 911 operator.
The defendant's version of the encounter was diametrically opposed to that of the victim. He testified that the victim had been a willing and active partner in consensual sexual intercourse. Specifically, the defendant claimed that the victim initiated intimate activity, and never once told him to stop. Additionally, the defendant testified that the victim invited him to a party that evening so that he could meet her friends. The defendant further claimed that when he told her that he would be unable to attend, the victim appeared "mildly upset."
Before the jury retired, defense counsel requested a mistake of fact instruction as to consent.[1] The judge declined to give the instruction, saying that, based "both on the law, as well as on the facts, that instruction is not warranted." Because the defendant's theory at trial was that the victim actually consented and not that the defendant was "confused, misled, or mistaken" as to the victim's willingness to engage in sexual intercourse, the judge concluded that the ultimate question for the jury was simply whether they believed the victim's or the defendant's version of the encounter. The decision not to give the instruction provides the basis for this appeal.
2. Mistake of fact instruction. The defendant claims that the judge erred in failing to give his proposed mistake of fact [725] instruction.[2] The defendant, however, was not entitled to this instruction. In Commonwealth v. Ascolillo, 405 Mass. 456 (1989), we held that the defendant was not entitled to a mistake of fact instruction, and declined to adopt a rule that "in order to establish the crime of rape the Commonwealth must prove in every case not only that the defendant intended intercourse but also that he did not act pursuant to an honest and reasonable belief that the victim consented" (emphasis added). Id. at 463, quoting Commonwealth v. Grant, 391 Mass. 645, 651 (1984). Neither the plain language of our rape statute nor this court's decisions prior to the Ascolillo decision warrant a different result.
A fundamental tenet of criminal law is that culpability requires a showing that the prohibited conduct (actus reus) was committed with the concomitant mental state (mens rea) prescribed for the offense. See, e.g., Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion"). The mistake of fact "defense" is available where the mistake negates the existence of a mental state essential to a material element of the offense.[3] See Model Penal Code § 2.04(1)(a) (1985) ("Ignorance or mistake as to a [726] matter of fact or law is a defense if: ... the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense"). In determining whether the defendant's honest and reasonable belief as to the victim's consent would relieve him of culpability, it is necessary to review the required elements of the crime of rape.
At common law, rape was defined as "the carnal knowledge of a woman forcibly and against her will." 4 W. Blackstone, Commentaries 210. See Commonwealth v. Chretien, 383 Mass. 123, 127 (1981). Since 1642, rape has been proscribed by statute in this Commonwealth. See Commonwealth v. Burke, 105 Mass. 376, 380 (1870) (citing first rape statute codified at 2 Mass. Col. Rec. 21). While there have been several revisions to this statute, the definition and the required elements of the crime have remained essentially unchanged since its original enactment. The current rape statute, G. L. c. 265, § 22 (b), provides in pertinent part:
"Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years."
This statute follows the common-law definition of rape, and requires the Commonwealth to prove beyond a reasonable doubt that the defendant committed (1) sexual intercourse (2) by force or threat of force and against the will of the victim. See Commonwealth v. Sherry, 386 Mass. 682, 687 (1982) ("The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury").
As to the first element, there has been very little disagreement. Sexual intercourse is defined as penetration of the victim, [727] regardless of degree. The second element has proven to be more complicated. We have construed the element, "by force and against his will," as truly encompassing two separate elements each of which must independently be satisfied. See generally Commonwealth v. Caracciola, 409 Mass. 648, 653-654 (1991) (stating elements of "force" and "against his will" not superfluous, but instead must be read together). Therefore, the Commonwealth must demonstrate beyond a reasonable doubt that the defendant committed sexual intercourse (1) by means of physical force, Commonwealth v. Sherry, supra at 696; nonphysical, constructive force, Commonwealth v. Caracciola, supra at 653-655; or threats of bodily harm, either explicit or implicit, Commonwealth v. Sherry, supra ("threats of bodily harm, inferred or expressed"); and (2) at the time of penetration, there was no consent.
Although the Commonwealth must prove lack of consent, the "elements necessary for rape do not require that the defendant intend the intercourse be without consent." Commonwealth v. Grant, 391 Mass. 645, 650 (1984). See Commonwealth v. Cordeiro, 401 Mass. 843, 851 n.11 (1988) ("The Commonwealth is not required to prove either that the defendant intended the sexual intercourse be without consent or that he had actual knowledge of the victim's lack of consent"); Commonwealth v. Lefkowitz, 20 Mass. App. Ct. 513, 518 (1985) ("As the Supreme Judicial Court made clear in Commonwealth v. Grant, [supra at 649,] the crime of rape ... does not require for conviction proof that the defendant harbored a `specific intent that the intercourse be without consent'"). Historically, the relevant inquiry has been limited to consent in fact, and no mens rea or knowledge as to the lack of consent has ever been required. See Commonwealth v. Burke, supra at 377 ("The simple question, expressed in the briefest form, is, Was the [victim] willing or unwilling?"). See also Commonwealth v. Lefkowitz, supra at 519 ("the prosecution has proved rape if the jury concludes that the intercourse was in fact nonconsensual [that is, effectuated by force or by threat of bodily injury], without any special emphasis on the defendant's state of mind").
A mistake of fact as to consent, therefore, has very little application to our rape statute. Because G. L. c. 265, § 22, does [728] not require proof of a defendant's knowledge of the victim's lack of consent or intent to engage in nonconsensual intercourse as a material element of the offense, a mistake as to that consent cannot, therefore, negate a mental state required for commission of the prohibited conduct. Any perception (reasonable, honest, or otherwise) of the defendant as to the victim's consent is consequently not relevant to a rape prosecution. See Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. Crim. L. & Criminology 815, 818 (1996) (mistake of fact instruction is "available as a defense to a particular charge only where the definition of the offense makes a defendant's mental state as to a particular element material").
This is not to say, contrary to the defendant's suggestion, that the absence of any mens rea as to the consent element transforms rape into a strict liability crime. It does not. See Commonwealth v. Cordeiro, 401 Mass. 843, 850-851 n.11 (1988); Commonwealth v. Grant, supra at 649-651. Rape, at common law and pursuant to G. L. c. 265, § 22, is a general intent crime, Commonwealth v. Troy, 405 Mass. 253, 260 (1989), citing Commonwealth v. Grant, supra at 649-650, and proof that a defendant intended sexual intercourse by force coupled with proof that the victim did not in fact consent is sufficient to maintain a conviction. See Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 325 (2000) ("At common law, rape was a `general intent' crime: The requisite intention was merely to perform the sexual act, rather than have nonconsensual intercourse").
Other jurisdictions have held that a mistake of fact instruction is necessary to prevent injustice. New Jersey, for instance, does not require the force necessary for rape to be anything more than what is needed to accomplish penetration. See In re M.T.S., 129 N.J. 422, 444 (1992) ("physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful"). Thus, an instruction as to a defendant's honest and reasonable belief as to consent is available in New Jersey to mitigate the undesirable and unforeseen consequences that may flow from this construction. By contrast, in this Commonwealth, unless the putative victim has been rendered incapable of consent, the prosecution must prove that [729] the defendant compelled the victim's submission by use of physical force; nonphysical, constructive force; or threat of force. See Commonwealth v. Caracciola, 409 Mass. 648, 653 (1991). See also Commonwealth v. Helfant, 398 Mass. 214, 220-222 (1986) ("Because the victim there was `so drunk as to be utterly senseless and incapable of consenting,' the court upheld the conviction based on proof only of `such force as was necessary to effect the [penetration]'") (citation omitted). Proof of the element of force, therefore, should negate any possible mistake as to consent.[4] See Johnson v. State, 204 Ga. App. 369 (1992). See also Estrich, Rape, 95 Yale L.J. 1087, 1098-1099 (1986) ("The requirement that sexual intercourse be accompanied by force or threat of force to constitute rape provides a [defendant] with some protection against mistakes as to consent").
We also have concerns that the mistake of fact defense would tend to eviscerate the long-standing rule in this Commonwealth that victims need not use any force to resist an attack. See Commonwealth v. Sherry, supra at 688, citing Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). A shift in focus from the victim's to the defendant's state of mind might require victims to use physical force in order to communicate an unqualified lack of consent to defeat any honest and reasonable belief as to consent. The mistake of fact defense is incompatible with the evolution of our jurisprudence with respect to the crime of rape.
We are cognizant that our interpretation is not shared by the [730] majority of other jurisdictions. States that recognize a mistake of fact as to consent generally have done so by legislation. Some State statutes expressly require a showing of a defendant's intent as to nonconsent. Alaska, for example, requires proof of a culpable state of mind. "Lack of consent is a `surrounding circumstance' which under the Revised Code, requires a complementary mental state as well as conduct to constitute a crime." Reynolds v. State, 664 P.2d 621, 625 (Alaska 1983). Because no specific mental state is mentioned in Alaska's statute governing sexual assault in the first degree, the State "must prove that the defendant acted `recklessly' regarding his putative victim's lack of consent." Id. So understood, an honest and reasonable mistake as to consent would negate the culpability requirement attached to the element of consent. See Colo. Rev. Stat. § 18-3-402(1) (1999) ("Any actor who knowingly inflicts sexual intrusion or sexual penetration on a victim commits sexual assault ..."); Or. Rev. Stat. § 161.115(2) (1999) ("Except as provided in [Or. Rev. Stat. §] 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence"); Tex. Penal Code § 22.021(a)(1)(A)(i) (West Supp. 2001) ("A person commits an offense if the person ... intentionally or knowingly ... causes the penetration of the anus or female sexual organ of another person by any means, without that person's consent").
The New Jersey statute defines sexual assault (rape) as "any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration." In re M.T.S., supra at 444. A defendant, by claiming that he had permission to engage in sexual intercourse, places his state of mind directly in issue. The jury must then determine "whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable." Id. at 448.
The mistake of fact "defense" has been recognized by judicial decision in some States. In 1975, the Supreme Court of California became the first State court to recognize a mistake of fact defense in rape cases. See People v. Mayberry, 15 Cal. 3d [731] 143 (1975) (en banc). Although the court did not make a specific determination that intent was required as to the element of consent, it did conclude that, "[i]f a defendant entertains a reasonable and bona fide belief that a prosecutrix [sic] voluntarily consented ... to engage in sexual intercourse, it is apparent he does not possess the wrongful intent that is a prerequisite under Penal Code section 20 to a conviction of ... rape by means of force or threat." Id. at 153. Thus, the intent required is an intent to engage in nonconsensual sexual intercourse, and the State must prove that a defendant intentionally engaged in intercourse and was at least negligent regarding consent.[5]
Other State courts have employed a variety of different constructions in adopting the mistake of fact defense. See State v. Smith, 210 Conn. 132, 142 (1989) ("We arrive at that result, however, not on the basis of our penal code provision relating to a mistake of fact ... but on the ground that whether a complainant should be found to have consented depends upon how her behavior would have been viewed by a reasonable person under the surrounding circumstances"); State v. Koonce, [732] 731 S.W.2d 431, 437 n.2 (Mo. Ct. App. 1987) (construing rape statute to require defendant acted at least recklessly as to consent).
However, the minority of States sharing our view is significant. See People v. Witte, 115 Ill. App. 3d 20, 26 n.2 (1983) ("whether the defendant intended to commit the offense[s] without the victim's consent is not relevant, the critical question being whether the victim did, in fact, consent. This involves her mental state, not the defendant's"); State v. Christensen, 414 N.W.2d 843, 845-846 (Iowa 1987) ("[D]efendant's awareness of a putative sexual abuse victim's lack of consent is not an element of third-degree sexual abuse.... [I]t follows from this premise that a defendant's mistake of fact as to that consent would not negate an element of the offense"); State v. Reed, 479 A.2d 1291, 1296 (Me. 1984) ("The legislature, by carefully defining the sex offenses in the criminal code, and by making no reference to a culpable state of mind for rape, clearly indicated that rape compelled by force or threat requires no culpable state of mind"); State v. Ayer, 136 N.H. 191, 195 (1992); Commonwealth v. Williams, 294 Pa. Super. 93, 100 (1982) ("The crux of the offense of rape is force and lack of [the] victim's consent.... When one individual uses force or the threat thereof to have sexual relations with a person ... and without the person's consent he has committed the crime of rape"). See also People v. Hale, 142 Mich. App. 451, 453 (1985); State v. Elmore, 54 Wash. App. 54, 56 (1989); Brown v. State, 59 Wis. 2d 200, 213-214 (1973). This case does not persuade us that we should recognize a mistake of fact as to consent as a defense to rape in all cases. See Commonwealth v. Ascolillo, supra at 463. Whether such a defense might, in some circumstances, be appropriate is a difficult question that we may consider on a future case where a defendant's claim of reasonable mistake of fact is at least arguably supported by the evidence. This is not such a case.
Judgments affirmed.
[1] The defendant proposed the following instruction: "If the Commonwealth has not proved beyond a reasonable doubt that the defendant was not motivated by a reasonable and honest belief that the complaining witness consented to sexual intercourse, you must find the defendant not guilty."
[2] Some commentators point out that a reasonable and honest belief as to consent and a reasonable mistake of consent are "slightly different defenses." Note, Rethinking the Reasonable Belief Defense to Rape, 100 Yale L.J. 2687, 2688 n.9 (1991). "A defendant's reasonable belief of consent may be consistent with actual consent, while a reasonable mistake implies that the victim did not consent." Id. "The defense of `mistake of fact' as to consent is similar to, but not precisely coextensive with, the defense of `honest and reasonable belief' as to consent." Cavallaro, A Big Mistake: Eroding the Defense of Mistake of Fact About Consent in Rape, 86 J. Crim. L. & Criminology 815, 815 n.1 (1996). The distinction between the two theories has little impact on this appeal, and therefore, we refer to the defendant's proposed instruction of a reasonable and honest belief as to consent as a "mistake of fact" instruction.
[3] Thus understood, a mistake of fact is not truly a defense, but rather a means of demonstrating that the prosecution has failed to prove beyond a reasonable doubt the essential elements of the crime. See Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv. L. Rev. 75, 86 n.4 (1908) ("Such defenses as mistake and alibi, each of which denies one of the elements of guilt, must not in this connection be confounded with defenses of an affirmative character under which the defendant admits the commission of the crime but claims exemption from punishment because of some excusing fact, such as self-defense"). See also W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 5.1(a), at 406 (2d ed. 1986) ("[i]nstead of speaking of ignorance or mistake of fact, it would be just as easy to note simply that the defendant cannot be convicted when it is shown that he does not have the mental state required by law for commission of that particular offense").
[4] In the case before us, the Commonwealth's evidence of force consisted of physical force, as described by the victim and corroborated by medical examination. The trial judge properly instructed as to the amount of force necessary to support a conviction. The judge, in essence, gave the model jury instruction as to the required element of force. We quote the model instruction, in pertinent part:
"The second element the Commonwealth must prove beyond a reasonable doubt is that the natural or unnatural sexual intercourse was accomplished by force or by threat of bodily injury and against the complainant's will. The force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence or threat of bodily harm."
[5] Since that time, the Supreme Court of California has retreated from its original holding and steadily has eroded the defense. Today, the defense is available only if there is "substantial evidence of equivocal conduct that would have led a defendant to reasonably and in good faith believe consent existed where it did not." People v. Williams, 4 Cal. 4th 354, 362 (1992). Thus, as a threshold matter, the judge, not the jury, must find that the evidence with respect to consent is equivocal. Unless this showing is made, the "jury will be foreclosed from considering evidence that the defendant honestly and reasonably believed that there was consent, even if that jury would have credited such evidence." Cavallaro, supra at 852. This requirement, in effect, virtually eliminates the mistake of fact doctrine because "[t]hose defendants who, as a factual matter, would present the strongest mistake case, by testifying to conduct that could be characterized as `unequivocal,' are precluded by the rule of Williams from presenting that defense to the jury." Id. at 838. On the other hand, a "defendant who describes an encounter in which the complainant's conduct was admittedly equivocal as to consent essentially concedes that point and is doomed to almost certain conviction." Id. at 838-839.
In the present case, there was no evidence of equivocal conduct. The complaining witness testified that she had told the defendant, repeatedly and explicitly, that she did not want any form of sexual contact; that she tried to get away from the defendant; and that she cried during the forced intercourse. The defendant testified that the complaining witness was the one to initiate intimate contact; that she participated actively; and that she suggested they get together again later that evening.
7.2.8.6.5.5 People v. John Z. 7.2.8.6.5.5 People v. John Z.
In re JOHN Z., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
John Z., Defendant and Appellant.
Supreme Court of California.
[784] Carol L. Foster, under appointment by the Supreme Court, Sacramento, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant Attorneys General, Jo Graves, Assistant Attorney General, Michael J. Weinberg, Stan Cross and John G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
Wendy J. Murphy, Boston, MA, Barbara F. Berenson, Cambridge, MA; Gina S. McClard, Douglas E. Beloof, Portland, OR; Bingham McCutchen, Leslie G. Landau and Alison Beck, Boston, MA, for the Victim Advocacy and Research Group, the National Crime Victim Law Institute, the California Coalition Against Sexual Assault and the National Sexual Violence Resource Center as Amici Curiae on behalf of Plaintiff and Respondent.
CHIN, J.
We granted this case to settle a conflict in Court of Appeal decisions as to whether the crime of forcible rape (Pen.Code, § 261, subd. (a)(2)) is committed if the female victim consents to an initial penetration by her male companion, and then withdraws her consent during an act of intercourse, but the male continues against her will. (Compare People v. Vela (1985) 172 Cal.App.3d 237, 218 Cal.Rptr. 161 (Vela) [no rape committed] with People v. Roundtree (2000) 77 Cal.App.4th 846, 91 Cal.Rptr.2d 921 (Roundtree) [rape committed].) We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.
[785] The juvenile court, after holding a contested jurisdictional hearing on a unitary petition (Welf. & Inst.Code, §§ 602, 777, subd.(a)) filed on behalf of John Z. (defendant), found that he committed forcible rape (Pen.Code, § 261, subd. (a)(2)) and that his previous juvenile court disposition had been ineffective. (Further undesignated statutory references are to the Penal Code.) He was committed to Crystal Creek Boys Ranch. On appeal, defendant contends the evidence is insufficient to sustain the finding that he committed forcible rape. We disagree.
FACTS
The following facts are largely taken from the Court of Appeal opinion in this case. During the afternoon of March 23, 2000, 17-year-old Laura T. was working at Safeway when she received a call from Juan G., whom she had met about two weeks earlier. Juan wanted Laura to take him to a party at defendant's home and then return about 8:30 p.m. to pick him up. Laura agreed to take Juan to the party, but since she planned to attend a church group meeting that evening she told him she would be unable to pick him up.
Sometime after 6:00 p.m., Laura drove Juan to defendant's residence. Defendant and Justin L. were present. After arranging to have Justin L.'s stepbrother, P. W., buy them alcohol, Laura picked up P.W. and drove him to the store where he bought beer. Laura told Juan she would stay until 8:00 or 8:30 p.m. Although defendant and Juan drank the beer, Laura did not.
During the evening, Laura and Juan went into defendant's parents' bedroom. Juan indicated he wanted to have sex but Laura told him she was not ready for that kind of activity. Juan became upset and went into the bathroom. Laura left the bedroom and both defendant and Justin asked her why she "wouldn't do stuff." Laura told them that she was not ready.
About 8:10 p.m., Laura was ready to leave when defendant asked her to come into his bedroom to talk. She complied. Defendant told her that Juan had said he (Juan) did not care for her; defendant then suggested that Laura become his girlfriend. Juan entered the bedroom and defendant left to take a phone call.
When defendant returned to the bedroom, he and Juan asked Laura if it was her fantasy to have two guys, and Laura said it was not. Juan and defendant began kissing Laura and removing her clothes, although she kept telling them not to. At some point, the boys removed Laura's pants and underwear and began "fingering" her, "playing with [her] boobs" and continued to kiss her. Laura enjoyed this activity in the beginning, but objected when Juan removed his pants and told defendant to keep fingering her while he put on a condom. Once the condom was in place, defendant left the room and Juan got on top of Laura. She tried to resist and told him she did not want to have intercourse, but he was too strong and forced his penis into her vagina. The rape terminated when, due to Laura's struggling, the condom fell off. Laura told Juan that "maybe it's a sign we shouldn't be doing this," and he said "fine" and left the room. (Although Juan G. was originally a codefendant, at the close of the victim's testimony he admitted amended charges of sexual battery (§ 243.4) and unlawful sexual intercourse (§ 261.5, subd. (b)), a misdemeanor.)
Laura rolled over on the bed and began trying to find her clothes; however, because the room was dark she was unable to do so. Defendant, who had removed his clothing, then entered the bedroom and walked to where Laura was sitting on the [786] bed and "he like rolled over [her] so [she] was pushed back down to the bed." Laura did not say anything and defendant began kissing her and telling her that she had "a really beautiful body." Defendant got on top of Laura, put his penis into her vagina "and rolled [her] over so [she] was sitting on top of him." Laura testified she "kept ... pulling up, trying to sit up to get it out ... [a]nd he grabbed my hips and pushed me back down and then he rolled me back over so I was on my back ... and ... kept saying, will you be my girlfriend." Laura "kept like trying to pull away" and told him that "if he really did care about me, he wouldn't be doing this to me and if he did want a relationship, he should wait and respect that I don't want to do this." After about 10 minutes, defendant got off Laura, and helped her dress and find her keys. She then drove home.
On cross-examination, Laura testified that when defendant entered the room unclothed, he lay down on the bed behind her and touched her shoulder with just enough pressure to make her move, a nudge. He asked her to lie down and she did. He began kissing her and she kissed him back. He rolled on top of her, inserted his penis in her and, although she resisted, he rolled her back over, pulling her on top of him. She was on top of him for four or five minutes, during which time she tried to get off, but he grabbed her waist and pulled her back down. He rolled her over and continued the sexual intercourse. Laura told him that she needed to go home, but he would not stop. He said, "just give me a minute," and she said, "no, I need to get home." He replied, "give me some time" and she repeated, "no, I have to go home." Defendant did not stop, "[h]e just stayed inside of me and kept like basically forcing it on me." After about a "minute, minute and [a] half," defendant got off Laura.
Defendant testified, admitting that he and Juan were kissing and fondling Laura in the bedroom, but claimed it was with her consent. He also admitted having sexual intercourse with Laura, again claiming it was consensual. He claimed he discontinued the act as soon as Laura told him that she had to go home.
DISCUSSION
Although the evidence of Laura's initial consent to intercourse with John Z. was hardly conclusive, we will assume for purposes of argument that Laura impliedly consented to the act, or at least tacitly refrained from objecting to it, until defendant had achieved penetration. (But see § 261.6 [defining the type of consent at issue under § 261 as "positive cooperation in act or attitude pursuant to an exercise of free will"].) As will appear, we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.
Vela, supra, 172 Cal.App.3d 237, 218 Cal.Rptr. 161, held that where the victim consents to intercourse at the time of penetration but thereafter withdraws her consent, any use of force by her assailant past that point is not rape. (Id. at pp. 242-243, 218 Cal.Rptr. 161.) The court in Vela found "scant authority" on point (id. at p. 241, 218 Cal.Rptr. 161), relying on two out-of-state cases which had held that if consent is given prior to penetration, no rape occurs despite the withdrawal of consent during intercourse itself. (See Battle v. State (1980) 287 Md. 675, 414 A.2d 1266, 1268-1270; State v. Way (1979) 297 N.C. 293, 254 S.E.2d 760, 762.) According to Vela, these cases held that "the presence or absence of consent at the moment of initial penetration appears to be the crucial [787] point in the crime of rape." (Vela, supra, 172 Cal.App.3d at p. 242, 218 Cal.Rptr. 161.)
Vela agreed with these cases, reasoning that "the essence of the crime of rape is the outrage to the person and feelings of the female resulting from the nonconsensual violation of her womanhood. When a female willingly consents to an act of sexual intercourse, the penetration by the male cannot constitute a violation of her womanhood nor cause outrage to her person and feelings. If she withdraws consent during the act of sexual intercourse and the male forcibly continues the act without interruption, the female may certainly feel outrage because of the force applied or because the male ignores her wishes, but the sense of outrage to her person and feelings could hardly be of the same magnitude as that resulting from an initial nonconsensual violation of her womanhood. It would seem, therefore, that the essential guilt of rape as stated in ... section 263 is lacking in the withdrawn consent scenario." (Vela, supra, 172 Cal. App.3d at p. 243, 218 Cal.Rptr. 161.)
With due respect to Vela and the two sister state cases on which it relied, we find their reasoning unsound. First, contrary to Vela's assumption, we have no way of accurately measuring the level of outrage the victim suffers from being subjected to continued forcible intercourse following withdrawal of her consent. We must assume the sense of outrage is substantial. More importantly, section 261, subdivision (a)(2), defines rape as "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator .... [¶] ... [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." Nothing in section 261 conditions the act of rape on the degree of outrage of the victim. Section 263 states that "[t]he essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime." But no California case has held that the victim's outrage is an element of the crime of rape.
In Roundtree, supra, 77 Cal.App.4th 846, 91 Cal.Rptr.2d 921, the court recognized that, by reason of sections 261 and 263, "[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim's will. The outrage to the victim is complete." (Roundtree, supra, 77 Cal. App.4th at p. 851, 91 Cal.Rptr.2d 921.) Roundtree cited several cases from other states either criticizing Vela or reaching a contrary conclusion. (See State v. Crims (Minn.Ct.App.1995) 540 N.W.2d 860, 865; State v. Jones (S.D.1994) 521 N.W.2d 662, 672; State v. Siering (1994) 35 Conn.App. 173, 644 A.2d 958, 963; State v. Robinson (Me.1985) 496 A.2d 1067, 1071; see also McGill v. State (Alaska Ct.App.2001) 18 P.3d 77, 84 [Vela's view that sexual assault statute is based on considerations of "`outrage' " to victim's "`womanhood'" represents "archaic and outmoded social conventions"]; Note, Post-Penetration Rape— Increasing the Penalty (1991) 31 Santa Clara L.Rev. 779, 804-808 [criticizing Vela and advocating legislation to punish forcible and nonconsensual postpenetration intercourse as second degree rape].)
As the Court of Appeal in this case stated, "while outrage of the victim may be the cause for criminalizing and severely punishing forcible rape, outrage by the victim is not an element of forcible rape. Pursuant to section 261, subdivision [788] (a)(2) forcible rape occurs when the act of sexual intercourse is accomplished against the will of the victim by force or threat of bodily injury and it is immaterial at what point the victim withdraws her consent, so long as that withdrawal is communicated to the male and he thereafter ignores it."
In the present case, assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant, substantial evidence shows that she withdrew her consent and, through her actions and words, communicated that fact to defendant. Despite the dissent's doubt in the matter (dis. opn., post, 128 Cal. Rptr.2d at pp. 789-790, 791-792, 60 P.3d at pp. 188-189, 190-191), no reasonable person in defendant's position would have believed that Laura continued to consent to the act. (See People v. Williams (1992) 4 Cal.4th 354, 360-361, 14 Cal.Rptr.2d 441, 841 P.2d 961 [requiring reasonable and good faith belief, supported by substantial evidence, that the victim voluntarily consented to intercourse]; cf. CALJIC No. 10.65 [same].) As the Court of Appeal below observed, "Given [Laura's testimony], credited by the court, there was nothing equivocal about her withdrawal of any initially assumed consent."
Vela appears to assume that, to constitute rape, the victim's objections must be raised, or a defendant's use of force must be applied, before intercourse commences, but that argument is clearly flawed. One can readily imagine situations in which the defendant is able to obtain penetration before the victim can express an objection or attempt to resist. Surely, if the defendant thereafter ignores the victim's objections and forcibly continues the act, he has committed "an act of sexual intercourse accomplished .... [¶] ... against a person's will by means of force (§ 261, subd. (a)(2).)
Defendant, candidly acknowledging Vela's flawed reasoning, contends that, in cases involving an initial consent to intercourse, the male should be permitted a "reasonable amount of time" in which to withdraw, once the female raises an objection to further intercourse. As defendant argues, "By essence of the act of sexual intercourse, a male's primal urge to reproduce is aroused. It is therefore unreasonable for a female and the law to expect a male to cease having sexual intercourse immediately upon her withdrawal of consent. It is only natural, fair and just that a male be given a reasonable amount of time in which to quell his primal urge ...."
We disagree with defendant's argument. Aside from the apparent lack of supporting authority for defendant's "primal urge" theory, the principal problem with his argument is that it is contrary to the language of section 261, subdivision (a)(2): Nothing in the language of section 261 or the case law suggests that the defendant is entitled to persist in intercourse once his victim withdraws her consent.
In any event, even were we to accept defendant's "reasonable time" argument, in the present case he clearly was given ample time to withdraw but refused to do so despite Laura's resistance and objections. Although defendant testified he withdrew as soon as Laura objected, for purposes of appeal we need not accept this testimony as true in light of Laura's contrary testimony. (E.g., People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.) As noted above, Laura testified that she struggled to get away when she was on top of defendant, but that he grabbed her waist and pushed her down onto him. At this point, Laura told defendant that if he really cared about her, he [789] would respect her wishes and stop. Thereafter, she told defendant three times that she needed to go home and that she did not accept his protestations he just needed a "minute." Defendant continued the sex act for at least four or five minutes after Laura first told him she had to go home. According to Laura, after the third time she asked to leave, defendant continued to insist that he needed more time and "just stayed inside of me and kept like basically forcing it on me," for about a "minute, minute and [a] half." Contrary to the dissent's concerns (dis. opn., post, 128 Cal.Rptr.2d at p. 792, 60 P.3d at pp. 190-191), the force defendant exerted in resisting Laura's attempts to stop the act was clearly ample to satisfy section 261, subdivision (a)(2). (See People v. Mom (2000) 80 Cal.App.4th 1217, 1224, 96 Cal. Rptr.2d 172, and cases cited [force "substantially different from or substantially greater than that necessary to accomplish the rape itself'].)
Although the dissent herein would prefer more guidance for future cases, this is an appeal from a juvenile court adjudication rather than a jury trial, and the briefing does not address what pinpoint instructions, if any, might be appropriate in these withdrawn consent cases. Accordingly, we do not explore or recommend instructional language governing such matters as the defendant's knowledge of the victim's withdrawal of consent, the possibly equivocal nature of that withdrawal, or the point in time at which defendant must cease intercourse once consent is withdrawn.
We disapprove Vela, supra, 172 Cal. App.3d 237, 218 Cal.Rptr. 161, to the extent that decision is inconsistent with our opinion. The judgment of the Court of Appeal is affirmed.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, and MORENO, JJ.
Dissenting Opinion by BROWN, J.
A woman has an absolute right to say "no" to an act of sexual intercourse. After intercourse has commenced, she has the absolute right to call a halt and say "no more," and if she is compelled to continue, a forcible rape is committed. Although California's rape statutes are gender neutral, the criminalization of more subtle forms of sexual violence reflects a new view of women as "responsible, autonomous beings who possess the right to personal, sexual, and bodily self-determination." (Berger et al., The Dimensions of Rape Reform Legislation (1988) 22 L. & Soc'y Rev. 329, 330.) Thus, both courts and legislatures have expanded the concept of rape to include spousal rape, lesser degrees of rape, and what has been characterized as postpenetration rape. (See, e.g., McGill v. State (Alaska Ct.App.2001) 18 P.3d 77, 84; State v. Siering (1994) 35 Conn.App. 173, 644 A.2d 958, 962-963; State v. Robinson (Me.1985) 496 A.2d 1067, 1070-1071; State v. Crims (Minn.Ct.App. 1995) 540 N.W.2d 860, 865.)
To the extent the majority holds the clear withdrawal of consent nullifies any earlier consent and forcible persistence in what then becomes nonconsensual intercourse is rape, not assault and battery as the Court of Appeal held in People v. Vela (1985) 172 Cal.App.3d 237, 243, 218 Cal. Rptr. 161, I concur in that portion of its reasoning. However, because the majority ignores critical questions about the nature and sufficiency of proof in a postpenetration rape case, I cannot concur in the rest of the majority opinion. The majority opinion is deficient in several respects. First, the opinion fails to consider whether the victim's statements in this case clearly communicated her withdrawal of consent. [790] Second, there is no attempt to define what constitutes force in this context. Finally, questions about wrongful intent are given short shrift.
The People must prove the elements of a crime beyond a reasonable doubt (Pen. Code, § 1096; U.S. Const., 14th Amend.). As relevant to this case, "Rape is an act of sexual intercourse ... with a person not the spouse of the perpetrator" "accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another." (Pen.Code, § 261, subd. (a)(2).) Presumably, in a postpenetration rape case, the prosecution still has the burden of showing, beyond a reasonable doubt, that the victim clearly communicated withdrawal of consent and the defendant exercised some degree of force to continue.[1] Moreover, a defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape. (People v. Williams (1992) 4 Cal.4th 354, 360, 14 Cal.Rptr.2d 441, 841 P.2d 961; People v. Mayberry (1975) 15 Cal.3d 143, 154-155, 125 Cal.Rptr. 745, 542 P.2d 1337.) To be acquitted, a defendant need only raise a reasonable doubt as to his reasonable and honest belief in consent. Thus, to convict in such a case, the People must prove the absence of such a belief beyond a reasonable doubt.
Ordinarily, these cases involve a credibility contest in which the victim tells one story, the defendant another. The trial judge in this juvenile matter relied primarily on Laura's testimony and rejected John Z.'s testimony in its entirety. Even so, "assuming arguendo that Laura initially consented to, or appeared to consent to, intercourse with defendant" (maj. opn., ante, 128 Cal.Rptr.2d at p. 788, 60 P.3d at p. 186), the facts in this described solely by the prosecution witness, create doubt both about the withdrawal of consent and the use of force.
This is a sordid, distressing, sad little case. From any perspective, its facts are appalling. Laura T., a 17-year-old girl, finds herself alone in a house with four young men, ranging in age from 16 to 21. One of them, Juan, is "sort of her boyfriend. Laura and Juan met at a bus stop near her workplace and had known each other for about two weeks when they arrived at the "party" at John Z.'s house on March 23, 2000. Laura drove to the party in her own vehicle. She planned to drop Juan off and leave. The other partygoers were unknown to Laura. John Z. was introduced to her after they arrived. Instead of leaving, Laura remained at John Z.'s house for several hours. During the evening she was openly affectionate with Juan, and sporadically engaged in some mutual kissing with John Z.—in the kitchen and later in the master bedroom when Juan was sulking in the bathroom.
This is how she described subsequent events:
Around 8:00 p.m., Laura decided she was ready to leave. Before she walked out the door, John asked if he could talk to her. She walked back into the house and went into his bedroom, which was completely dark. She did not ask to turn on the light. She entered the room willingly and was not restrained from leaving. They sat in the dark, talking. John told her Juan never cared about her, was only "using [her] and anyone else could use [her] too." John said he really liked her; she should dump Juan and become John's girlfriend. When Juan came into the bedroom, Laura confronted him with what [791] John had said. He denied it. The boys asked if she had ever fantasized about having "two guys." Laura said she had not, but she continued to sit on the bed in John's darkened bedroom with both Juan and John while one or both of them removed various items of her clothing. At first, she tried to replace her clothing, but after pulling her bra back into place a couple of times, she made no further efforts to retrieve her clothes. Asked why she did not leave, she responded: "There is no reason. I just didn't. I didn't think about it. I had already tried to leave once, and they asked me to go in the bedroom and talk."
Feeling there was "no point in fighting" because there was nothing she could do about it anyway, she laid back on the bed, with Juan on one side of her and John on the other. She did not say anything and she was not fighting or resisting while the rest of her clothing was removed. The boys were "fingering" her and playing with her "boobs" and kissing her and "like just trying to like keep me satisfied type of thing." She acknowledged that she enjoyed these activities, enjoyed it "because it was like a threesome"; she was laughing and liked being the center of attention.
After that prelude and after she had intercourse with Juan, which ended when the condom kept falling off and she told him perhaps that was a sign they "shouldn't be doing this," we come to the facts which form the basis of John Z.'s adjudication. According to Laura, she was sitting on the bed naked when John Z. came into the room, naked or partially unclothed. She had been unable to find her clothes in the dark. John sat on the bed behind her and touched her with one hand on her shoulder. He did not pull or push her backward. He nudged her with one hand. His left hand was in a cast. She laid back down on the bed. John began kissing her. She kissed him back. He climbed on top of her and achieved penetration. She did not say anything. She did not push him away, slap him or strike him. He made no threats and he did not hurt her. John asked her repeatedly "will you be my girlfriend?"
He rolled over so she was on top. She remained in that position for four to five minutes. Although he held her only with one hand on her waist—not hard enough for her to feel the pressure or to create a bruise—she was unable to extricate herself or break the connection. There was no conversation when intercourse began and she said nothing while she was on top of him. When she found herself on the bottom again, she said: "If he really did care about me, he wouldn't be doing this to me and if he really did want a relationship, he should wait and respect that I don't want to do this." John responded: "I really do care about you." She never "officially" told him she did not want to have sexual intercourse.
Sometime later she said: "I should be going now." "I need to go home." John said: "Just give me a minute." Several minutes later, she said again: "I need to get home." He said: "[G]ive me some time." She said: "No. I have to go home." The third time she told him she had to go home she was a little more urgent. She never "officially" cried, but she was starting to. When asked if at anytime while having intercourse with John Z., she had told him "no," Laura answers: "No," and repeats her contingent statement. Calling a halt, her answers suggest, was entirely John Z.'s responsibility. He said he cared about her, "but he still just let it happen."
The majority finds Laura's "actions and words" clearly communicated withdrawal of consent in a fashion "no reasonable person in defendant's position" could have mistaken. (Maj. opn., ante, 128 Cal. [792] Rptr.2d at p. 788, 60 P.3d at p. 187.) But, Laura's silent and ineffectual movements could easily be misinterpreted. And, none of her statements are unequivocal. While Laura may have felt these words clearly conveyed her unwillingness, they could reasonably be understood as requests for reassurance or demands for speed. And, Laura's own testimony demonstrates that is precisely how John Z. interpreted what she said. Indeed, Laura demonstrates a similar ambivalence. When asked if she had made it clear to John that she didn't want to have sex, Laura says "I thought I had," but she acknowledges she "never officially told him" she did not want to have sexual intercourse. When asked by the prosecutor on redirect why she told John "I got to go home," Laura answers: "Because I had to get home so my mom wouldn't suspect anything."
Furthermore, even if we assume that Laura's statements evidenced a clear intent to withdraw consent, sexual intercourse is not transformed into rape merely because a woman changes her mind. (State v. Robinson, supra, 496 A.2d at p. 1070; People v. Roundtree (2000) 77 Cal. App.4th 846, 851, 91 Cal.Rptr.2d 921.) As the majority acknowledges, by reason of Penal Code sections 261 and 263, "`[t]he crime of rape therefore is necessarily committed when a victim withdraws her consent during an act of sexual intercourse but is forced to complete the act. The statutory requirements of the offense are met as the act of sexual intercourse is forcibly accomplished against the victim's will.'" (Maj. opn., ante, 128 Cal.Rptr.2d at p. 787, 60 P.3d at p. 186, quoting Roundtree, at p. 851, 91 Cal.Rptr.2d 921, italics added.) In other words, an act of sexual intercourse becomes rape under these circumstances if all the elements of rape are present. Under the facts of this case, however, it is not clear that Laura was forcibly compelled to continue. All we know is that John Z. did not instantly respond to her statement that she needed to go home. He requested additional time. He did not demand it. Nor did he threaten any consequences if Laura did not comply.
The majority relies heavily on John Z.'s failure to desist immediately. But, it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? (See People v. Mom (2000) 80 Cal. App.4th 1217, 1224, 96 Cal.Rptr.2d 172 [suggesting force must be "substantially different from or substantially greater" than that necessary to accomplish the act itself].) And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape? Such questions seem inextricably tied to the question of whether a reasonable person would know that the statement "I need to go home" should be interpreted as a demand to stop. Under these circumstances, can the withdrawal of consent serve as a proxy for both compulsion and wrongful intent?
The majority finds these deficiencies insignificant because this is a juvenile adjudication. But, if John Z. is convicted of a felony as an adult, the same juvenile adjudication will qualify as a strike. Thus, the absence of a jury or jury instructions cannot justify a lesser standard of proof.
In reviewing a criminal conviction challenged as lacking evidentiary support we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hillhouse (2002) 27 [793] Cal.4th 469, 496, 117 Cal.Rptr.2d 45, 40 P.3d 754.) Presumably, in determining guilt beyond a reasonable doubt, the juvenile court would have to consider and resolve the same questions the majority declines to address. Because the record contains no indication the juvenile court did so, I respectfully dissent.
[1] The People did not use the term "postpenetration rape" during the juvenile adjudication. The theory is first articulated by the Court of Appeal.
7.2.8.6.5.6 People v. Denbo 7.2.8.6.5.6 People v. Denbo
868 N.E.2d 347 (2007)
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kelly J. DENBO, Defendant-Appellant.
No. 4-05-0516.
Appellate Court of Illinois, Fourth District.
April 19, 2007.
[348] Justice APPLETON delivered the opinion of the court:
A jury found defendant, Kelly J. Denbo, guilty of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) in that she persisted in an act of vaginal penetration after the victim withdrew her consent. The trial court sentenced defendant to imprisonment for seven years. She appeals on the ground of insufficiency of the evidence, arguing that the State failed to prove the victim's withdrawal of consent or her own use of force.
Defendant put her hand into R.H.'s vagina during otherwise consensual sexual relations. R.H. pushed defendant twice — harder the second time — intending to signify that she no longer consented to the sexual penetration. Defendant removed her hand from R.H.'s vagina on the second push. Looking at the evidence in a light most favorable to the prosecution, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that the first push objectively communicated to defendant a withdrawal of consent. The State failed to prove the element of force. Therefore we reverse the trial court's judgment.
I. BACKGROUND
The information charged that on September 27, 2004, defendant committed aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) "in that[,] by the use of force[,][s]he placed her fist into the vagina of [R.H.] and, in doing so, * * * caused bodily harm, vaginal trauma, to * * * [R.H.]."
At trial on April 20, 2005, the State called R.H., the adult complainant, as its first witness. Because she was extremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a nursing home, where they both worked. They developed a romantic relationship. On September 27, 2004, they both had the day off and spent it together, taking defendant's one-year-old nephew and three-year-old niece to McDonald's, Rockome Gardens, and a video store. Afterward, R.H. stayed for a cookout at defendant's house in Tuscola. Defendant drank beer while grilling the steaks, but R.H. abstained from alcohol that evening. After supper, R.H. went to defendant's bedroom "and just kept waiting and waiting and waiting" while defendant talked on the telephone. "[O]kay," R.H. thought. "[She] waited a little longer[] and * * * thought [that defendant] was going to give the kids a bath." Eventually, she told defendant she was "go[ing] to the store [to] get a diet [C]oke and would be right back." Defendant appeared to be "out of it": "she was very slow to respond and * * * slurred her words." Upon returning from the store, R.H. noticed the lights were off in the bedroom — they were on when she left — and three candles were burning. She did not see defendant. R.H. lay down, clothed, on defendant's bed. Defendant entered the bedroom. "She had a robe on," R.H. testified, "and like a ballet outfit or something. I really don't know. I was kind of hum."
Here is what happened next, according to R.H.:
"Well, I was [lying] on the bed[,] and she was on me — kind of straddled me[—]and kissing my face[,] and then she pulled me forward. She grabbed both my arms[,] and then she took off my top and my bra[,] and all of that was within — say[,] a short period of time. Then she shoved me, and she was rough. I thought, [H]um. I had no clue as to what was going on, and then she took my shorts off and my underwear off.
Q. What happened next?
[349] A. Well, then she went right through my vagina. I didn't scream. I didn't do anything. I knew the kids were asleep. Knew the kids were asleep[,] and she kept pushing me.
Q. What did you do to her?
A. And it continued[,] and then the second time I tried to push her away[,] and it was hard enough. I was able to get up. I went to the bathroom[,] and I was bleeding.
Q. Let's back up a little bit. You indicated you were [lying] on the bed. How was Kelly on you?
A. Kelly was kneeling on top of me and had my legs spread apart so she was in between my legs.
Q. You said she `went through' you. Explain what was used to go through you?
A. Right there, her hand. (Indicating)
Q. Where did she place her hand?
A. Went through the pelvic area. I tried to push her back, but she continued[,] and she just kept continuing, and then I pushed her again, and then I went to the bathroom, and I was bleeding. I came back out and was looking for her[,] and she was outside at that point and crying.
Q. You went to the bathroom and noticed you were bleeding?
A. Yes.
Q. Where was the bleeding from?
A. Well, the reason I was bleeding is because she hurt me. She used her hand to go direct[ly] through my vagina, yes, my vagina.
Q. When was the next time you saw the [d]efendant?
A. Well, I went to the bathroom — I went into the bathroom[,] and I came back out and was talking to her[,] and I asked her at that point why she did it. She said she didn't know why she hurt me. I continued to ask her. I stayed at Kelly's because I needed an answer from her as to why she hurt me."
Because R.H. was deaf, she and defendant often communicated with one another in writing. R.H. offered — and the trial court admitted into evidence, over defendant's foundational objection — eight handwritten letters R.H. had received from defendant. According to R.H., defendant wrote People's exhibit No. 1 on September 27, 2004, shortly after the incident. It says: "I will let you know tomorrow night. Is [illegible] us. Okay[?] I love you. I'm taking a shower."
R.H. testified she received People's exhibit No. 2 on September 28, 2004. That letter reads as follows:
"I know that no amount of apologies [is] going to be okay. I am sorry that that happened. Okay[?] I can't believe that I could do what someone did to me. It makes me fucking sick to my stomach[,] and I am sorry. I am worried. I do want you to be okay. I should have said something sooner. I've done wrong[,] and it will never be forgiven or forgotten. I am truly sorry[,] though. Be careful. I don't want to lose you. That's not what I want. I scared you, yes. I can apologize forever for that. There [is] no amount of apologies I can give you. Yes, you are to[o] good for me. I love you[,] and I hurt you. This is something that can't be forgiven. I'm so sorry. I never meant for this to happen. We probably need some time apart for awhile. I need to straighten out my scary side. Med[ication]s or something. I don't want to break up. Maybe I need to get rid of [the] scary side of me. I know I have one. We need time apart — okay[?] I'm sorry it had to end this way. I will not quit [because] I love my residents. I am [350] sorry I hurt you last night. I don't want to hurt anyone else that way again[,] [including] you. I'm sorry. I swear to you that I did not hear you say no. I am not the kind of person that does this. I care that I hurt you. I'm sorry you're shocked. I'm sorry I did this. I'm just sorry. Okay[?] I knew you can't take me back. That's understandable. There [is] no amount of sorrys I can give you. I'm sorry. Please let me know if you're going to send me to jail or tell work. Okay[?] So I can quit and go elsewhere. I am sorry about what happened." (Emphasis in original.)
R.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. People's exhibit No. 3 reads as follows:
"I do love you and care for you. I'm very worried about you. I know you said not to. I'll do it anyway. My feelings about what I've done are mixed. I should die for what I've done. I feel like I should not be with you because of this. I want to be with you. But after what I've done[,] I feel horrible, sick. I don't feel like I deserve you. We need time[,] okay[?] I'm going to have to feel right about myself before I can go on with you[,] okay[?] Please understand. I do want you[,] okay[?] I just need time to fix myself."
People's exhibit No. 4 appears to consist of three letters. Here is the first one:
"I did read your note. I do get mean sometimes, when I'm drinking. Not always[,] though. And I'm sorry that I hurt you when I do. I do realize that I've done it[,] and I'm sorry. It makes me feel like shit when I do[,] and no amount of apologizing can make up for it. I only hope I can change and give you the life and love you want[,] because I want it with you. I love you. Very much. I'll try to show it better. I'm learning[.] I'm thinking that I love you and I don't want to hurt you anymore. I do have a temper. It comes out quick[ly]. I'll learn to deal with it[,] okay[?] I love you. I don't want to lose you[,] okay[?] Right now I'm by myself on [the] west hall[,] and it's a lot of work right now. I'm sorry I'm late writing you. I'll do my hardest to please you forever. You are my only true love. I will always love you. Let me know if you are coming over tonight."
The second letter in People's exhibit No. 4 reads as follows:
"I know it seems like I don't care. But I do. It just so happens that I am under a great deal of stress. The kids, my parents, brother. My job. I have blood in my bowels because I am under too much stress. Then I broke a blood vessel in my eye. It[']s been a very stressful week. Also I hurt you. That[']s just making it all the more stressful. I do care. But I'm at my stress point right now. I do love you. But I asked [for] time away to sort out my life. I need to unstress myself. I[']m getting to the point of saying fuck it to life and go[ing] away. But I know I can't. I just need time[,] okay[?] Not forever. I'm sorry I haven't been nice. I'm just stressed out. A lot of crap is piling on me[,] and I'm sorry for taking it out on you. [The] [r]eason I touched you like that down [there] is I thought you would be okay with that kind of lovemaking. I was way to[o] rough. I[']m never like that[,] okay[?] I should have asked you about it. I was to[o] rough when I should have been gentle with you[,] and I take full responsibility for what I've done. Now all you can do is give me time and space. I love you[,] okay[?]"
In the third letter in People's exhibit No. 4, defendant said:
[351] "I am so sorry I hurt you that way. I can't believe I was capable of doing that to anyone. What exactly do they have to do to fix you[?] I am responsible for this. I feel the need to be killed in some horrible way right now. I feel that I don't need to be forgiven, ever. I am very sorry this happened. We do need time because I need to fix my temper, drinking. Basically, myself. I am truly sorry that I did this. I love you and did not want to hurt you. Please believe me when I say it wasn't intentional. I am sorry. I know we need to talk. We will. I need time to sort out what you just told me. I am sorry."
People's exhibit No. 5 says: "I really do hope you[']r[e] not upset with me. I want you on Sunday and Monday. Is that okay[?] I won't go if you[']r[e] going to be upset. I love you and wanna a few days with you. But I promised my cousins. Don't be angry."
The final letter, People's exhibit No. 6, says: "First of all[,] I know in my heart I did not rape you. I did[,] however[,] make you bleed[,] and for that I'm sorry."
The prosecutor asked R.H. the following:
"Q. Was this touching without your consent?
* * *
A. No, no[,] I did not consent to that. I did not consent to that."
On cross-examination, defense counsel asked R.H.:
"Q. You said earlier, I think, that Kelly was kneeling on the bed[,] on top of you?
A. I had my legs spread apart[,] and she was in between them, between my legs.
Q. You said she removed your top and your bra?
A. Yes.
Q. Did you try to stop her from doing that?
A. No.
Q. And you said she removed your pants and underwear?
A. Yes, yes[,] that is correct.
Q. Did you try to stop her from doing that?
A. No.
Q. I think you said[,] in your direct testimony[,] that then Kelly [']went['] — and your words were[][']right through my vagina[']?
A. That is correct.
Q. Could you explain what you mean by that[,] exactly?
A. Well, the hand itself went right through my privates. I tried to push her back, but she continued[,] and then I pushed her again[,] and then I was able to get up and go to the bathroom[,] and that is when I noticed I was bleeding."
R.H. admitted spending the rest of the night with defendant in her bed. She admitted having sex with defendant on three occasions before the incident. These sexual encounters were all in defendant's bedroom. After September 27, 2004, R.H. visited defendant's house one time. It was defendant's idea that she come over, but when she saw that defendant had been drinking, she went home.
On redirect examination, the prosecutor asked R.H. why she did not immediately leave the premises after defendant pushed her hand through her vagina. R.H. answered: "Because I wanted to know why she had hurt me[,] and I had no clue. I never * * * could understand why." The trial adjourned for the day.
On April 21, 2005, the State called a Tuscola police officer, Richard A. Lamb, as its next witness. He testified he interviewed [352] R.H. on November 9, 2004. The interview was originally scheduled to occur two weeks earlier, but he had to cancel that appointment because of difficulty finding an interpreter. "[D]ue to the time frame," the letters (People's exhibit Nos. 1 through 6) were the only physical evidence the police collected in the case.
The State then called Marlene Kremer, a family practice physician from Sarah Bush Lincoln Health Center in Mattoon. She testified that on September 30, 2004, she received a message at her office requesting that she telephone R.H.'s roommate, Donna Goad. "The message said that [R.H.] had been raped and was very upset and she needed an appointment." Kremer returned the telephone call and scheduled an appointment for that same day. R.H. arrived at the office with Goad, looking "very anxious and upset." The prosecutor asked Kremer:
"Q. How did she describe that she had been injured?
A. She said that three days before, her long[]time girlfriend had — was intoxicated[] and had forced her to have — using some type of an object, which I do not know what the object was, had repeatedly thrust this object into her vagina. Then she was able to fight her off and left."
The wall of R.H.'s vagina "was very abraded. It was kind of like a rug burn. There were no obvious lacerations. There was no bleeding at the time of this exam, but it was just very abraded, irritated" — as if the vagina had suffered from "[e]xcessive friction." Kremer would have expected R.H.'s vagina to look like this if R.H.'s girlfriend had done what R.H. said. It was possible that the vagina bled at the time of the injury.
The prosecutor asked Kremer whether posttraumatic stress syndrome was "accepted as a behavioral condition that [could] result from sexual assault" and whether she had "dealt with" this condition in the course of her profession. To both questions, Kremer answered yes. The prosecutor asked her to describe the "model characteristics" of the syndrome. Kremer answered:
"It's a person who has either witnessed or been a victim of a severely traumatic event, where they felt very hopeless, helpless — had no control and[,] subsequent to that[,] * * * they have either [sic] flashback recollections. They avoid situations or things that make them recall that event. They have changes in their behavior, either [sic] difficulty sleeping, you know, more irritable, those type[s] of behaviors."
Kremer continued treating R.H. after September 30, 2004 — who, in fact, was her patient before then. Kremer saw her again on October 22, 2004. At that time, she diagnosed posttraumatic stress disorder. R.H. was "having crying spells. She was still able to go to work[] but was otherwise not doing much of anything else." She saw R.H. again on November 12, 2004, and found her to be still suffering from the disorder. She saw no symptoms of the disorder before September 30, 2004.
The State rested, and defendant moved for a directed verdict on the ground that the State had failed to prove "the use of force or threat of force." See 720 ILCS 5/12-14(a), 12-13(a)(1) (West 2004). Defense counsel argued: "All of the evidence points to the fact that this was a voluntary interaction. It occurred in Ms. Denbo's home, in her bedroom, on her bed, where the alleged victim came in and la[y] down and voluntarily * * * allowed Ms. Denbo to undress her * * * and then engaged in a sexual act that she didn't object to." The prosecutor responded that because R.H. [353] objectively showed her lack of consent by pushing defendant and defendant nevertheless continued to ram her hand into R.H.'s vagina, the State had proved the element of force. The trial court denied the motion for a directed verdict.
Defendant called her mother, Nancy Denbo, as her first witness. Denbo testified she lived in a small two-bedroom house on Overton Street in Tuscola. In the summer of 2004, R.H. began visiting defendant at Denbo's house two or three times a week. On September 27, 2004, Denbo worked from 2 to 10 p.m. at the nursing home. After coming home between 10:30 and 10:45 p.m., she took a shower and watched television with her husband, her son, her grandchildren, defendant, and R.H. Nothing unusual happened that evening after she got home; she was aware of no disturbance. Because "the kids" (apparently, defendant's nephew and niece) typically "g[o]t up pretty early," Denbo probably rose between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in the house, and nothing seemed amiss. After breakfast, Denbo and R.H. "drank coffee out in the carport" for a couple of hours while the children played outside. R.H. left between 11 and 11:30 a.m. because Denbo had to go in and start getting ready for work. After September 27, 2004, R.H. came over twice for dinner and even stayed overnight sometime in October 2004.
Defendant called Goad as her next witness. She testified she lived in Atwood with her son and R.H. For the past four years, Goad had been a dietary supervisor at the nursing home. She was R.H.'s boss. Goad was only casually acquainted with defendant; she knew that defendant worked at the nursing home and had a relationship with R.H. The evening of September 28, 2004, Goad saw R.H. at home and noticed nothing unusual about her behavior at that time. On September 29, 2004, R.H. came to work an hour early to speak with Goad. R.H. did not finish her shift that day; "she * * * said that she was bleeding." She also missed work on September 30, 2004, because "she was still having problems and she wasn't going to be able to work." Goad explained to her the nursing home's policy: "if you miss two days because of illness, * * * you have to go to the doctor." Therefore, on September 30, 2004, Goad accompanied R.H. to the doctor's office. A week or two later, at R.H.'s request, Goad set up an appointment for her with a counselor.
The defense next called Mary Burton, who testified that she lived in Tuscola, across the street from defendant. She had seen R.H. visiting at defendant's residence during the summer of 2004, when they were dating. R.H. was there "[u]p to four or five times a week, given their schedule at work." R.H. typically arrived in her white "mini-truck."
Defendant then took the stand. She testified that she lived with her mother, brother, nephew, and niece in Tuscola. She met R.H. around the end of May 2004, and by the end of June 2004, they were lovers. From June until October 2004, R.H. visited defendant's house three or four times a week and usually stayed overnight. On September 27, 2004, R.H. came over for a cookout. Defendant had two beers that evening but did not become intoxicated. After dinner, she and defendant watched a couple of movies with the children. Defendant then bathed and dressed the children and handed them over to her brother's care so that she could be alone with R.H. Defendant took a shower around 9 or 9:30 p.m., and while R.H. was at the store, she set the scene in the bedroom: lit the candles, put on some music, and turned off the lights. Upon returning, R.H. lay on the bed. Defendant [354] entered the bedroom, wearing a robe and a silky negligee — "a white[,] strange teddy thing." She lay down next to R.H. and talked with her for a few minutes. (R.H. could understand her if she raised her voice.) Then they "started getting intimate," "kissing and touching." Defendant helped R.H. remove her top and bra and then her shorts and boxer underwear.
Defendant testified:
"We were having — I was giving her oral sex[,] and I was[,] I guess[,] down in that area, and I began to digitally[,] with two fingers, insert them into her vagina[,] and we had sex relations that way.
Q. Okay. Now[,] at that point[,] what did [R.H.] do, if anything?
A. Well, I guess she was enjoying it. She didn't tell me to stop. She didn't push me away.
Q. During this time, up to this point, had she said anything to you?
A. Not that I can recall.
Q. What happened next[,] then?
A. I guess she was done, and my head was still in that particular area, so she nudged my shoulder. And I didn't hear her the first time, because music was on and my head was in an uncompromising [sic] position.
Q. Okay.
A. But she nudged my shoulder[,] and I looked up[,] and she said she was finished[,] and I said okay, and at that time she went to the bathroom.
Q. Okay.
A. She came back and said she was bleeding a little. She said she was hurting[,] and I apologized. I didn't know that I might have hurt her a little bit digitally, doing that to her.
Q. How did she appear to you then?
A. She was a little scared about the bleeding. She was bleeding a little bit. I do admit that. But she was okay. We talked, and then we wound up going to bed not too long after[ward].
Q. Did she, during the time you were having sexual relations together, did she ever scream or cry out, or anything?
A. No, not that I can recall.
Q. And did she stay there the night with you?
A. Yes.
Q. And slept there with you in your bed?
A. Yes."
R.H. was still in bed with defendant the next morning when the children leaped onto the bed and awaked them. After defendant made breakfast for the children and got them dressed, she and R.H. went outside with defendant's mother and drank coffee.
According to defendant, R.H. spent the night at defendant's house on two occasions after September 27, 2004. Her relationship with R.H. deteriorated, and defendant broke it off about the second week in October 2004. Defendant disagreed that all of the letters in People's exhibit Nos. 1 through 6 pertained to the incident of September 27, 2004. According to her, some of the letters predated the incident. She claimed to have written People's exhibit Nos. 1, 2, and 5 during the summer of 2004 (before September). She claimed to have written People's exhibit No. 3 at work around September 30, 2004, and People's exhibit Nos. 4 and 6 right after September 27, 2004. Defendant denied forcibly having sex with R.H.
On cross-examination, defendant testified that when she gave oral sex to R.H. in the bedroom on September 27, 2004, R.H. had an orgasm. Defendant denied using force when digitally penetrating her, although she remarked that "fingernails [could] scrape." Defendant rested.
[355] In its case in rebuttal, the prosecutor presented People's exhibit No. 7, a record of defendant's conviction in Georgia for deposit account fraud. The State also recalled R.H., who denied that defendant performed oral sex on her the night of September 27, 2004, and denied having an orgasm when defendant digitally penetrated her that night. According to R.H., she visited defendant's house once after September 27, 2004: on October 1 or 2, 2004. Defendant telephoned her, and R.H. came over and stayed with the children for about 10 minutes, until she perceived that defendant had been drinking, whereupon she left. R.H. denied spending the night at defendant's house anytime after September 27, 2004. The State rested, and the jury found defendant guilty of aggravated criminal sexual assault.
On May 25, 2005, the trial court sentenced defendant to 7 years' imprisonment, with credit for 66 days, followed by 3 years of mandatory supervised release.
This appeal followed.
II. ANALYSIS
The State charged defendant with aggravated criminal sexual assault within the meaning of section 12-14(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14(a)(2) (West 2004)). That section provides as follows:
"(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during * * * the commission of the offense:
* * *
(2) the accused caused bodily harm * * * to the victim * * *." 720 ILCS 5/12-14 (a)(2) (West 2004).
Thus, to commit aggravated criminal sexual assault, one must commit criminal sexual assault. According to the information, defendant committed criminal sexual assault within the meaning of section 12-13(a)(1) of the Code (720 ILCS 5/12-13(a)(1) (West 2004)). That section provides as follows:
"(a) The accused commits criminal sexual assault if he or she:
(1) commits an act of sexual penetration by the use of force or threat of force[.]" 720 ILCS 5/12-13(a)(1) (West 2004).
"Sexual penetration" includes "any intrusion, however slight, of any part of the body of one person * * * into the sex organ * * * of another person." 720 ILCS 5/12-12(f) (West 2004). Section 12-12(d) defines "force or threat of force" as follows:
"(d) `Force or threat of force' means the use of force or violence, or the threat of force or violence, including but not limited to the following situations:
(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or
(2) when the accused has overcome the victim by use of superior strength or size, physical restraint[,] or physical confinement." 720 ILCS 5/12-12(d) (West 2004).
"Force," within the meaning of sections 12-12(d) and 12-13(a)(1) of the Code, does not mean the force inherent to all sexual penetration — for example, the exertion of the hand in the act of pushing into the vagina — but physical compulsion, or a threat of physical compulsion, that causes the victim to submit to the sexual penetration against his or her will. People v. Haywood, 118 Ill.2d 263, 274-75, 113 Ill. Dec. 236, 515 N.E.2d 45, 50-51 (1987); [356] People v. Kinney, 294 Ill.App.3d 903, 908, 229 Ill.Dec. 394, 691 N.E.2d 867, 870-71 (1998).
In its case in chief, the State has the burden of proving the element of force beyond a reasonable doubt. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50. By proving force, the State necessarily proves nonconsent, for "if * * * one was forced to perform an act, it follows that [one's] act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly [one] has not been forced." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; see also People v. Roberts, 182 Ill.App.3d 313, 317, 130 Ill.Dec. 751, 537 N.E.2d 1080, 1083 (1989). The defendant may raise the defense of consent to rebut the State's evidence of force. Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50; 720 ILCS 5/12-17(a) (West 2004); see also Roberts, 182 Ill.App.3d at 318, 130 Ill.Dec. 751, 537 N.E.2d at 1084 (characterizing consent as a defense but not as an affirmative defense). Section 12-17(a) of the Code provides as follows:
"(a) It shall be a defense to any offense under [s]ection 12-13 through 12-16 of this Code [(720 ILCS 5/12-13 through 12-16 (West 2004))] where force or threat of force is an element of the offense that the victim consented. `Consent' means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent." 720 ILCS 5/12-17(a) (West 2004).
If the defendant raises the defense of consent, "the State has a burden of proof beyond reasonable doubt on the issue of consent as well as on the issue of force." Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50.
In its brief, the State concedes that R.H. "implicitly consented to some sort of penetration by allowing defendant to undress her, to spread her legs apart, and to position herself between [R.H.'s] legs." We agree with that concession. When defendant sexually penetrated R.H. by inserting her fingers or hand into R.H.'s vagina, she did so with R.H.'s consent — and, therefore, not by "force," as that term is defined in section 12-12(d) of the Code (720 ILCS 5/12-12(d) (West 2004)). One may infer that in performing the act of penetration, defendant was — as she admitted in one of her letters — "to[o] rough when [she] should have been gentle." Nevertheless, R.H. consented to the penetration itself; therefore, defendant did not accomplish the penetration by overcoming R.H.'s will with force or the threat of force.
The State contends this is a case of postpenetration aggravated criminal sexual assault. On July 25, 2003, the General Assembly passed Public Act 93-389 (Pub. Act 93-389, § 5, eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding subsection (c) to section 12-17 of the Code (720 ILCS 5/12-17 (West 2004)). Section 12-17 is entitled "Defenses," and (as we have discussed) subsection (a) provides that consent is a defense to criminal sexual assault and to other sex crimes in which force or the threat of force is an element. 720 ILCS 5/12-17(a) (West 2004). Subsection (c) limits or clarifies the defense in subsection (a) by making the consent effective only up to the withdrawal of consent: "A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of [357] that sexual penetration or sexual conduct." 720 ILCS 5/12-17(c) (West 2004).
In the minds of some commentators, the concept of withdrawal of consent makes the element of force problematic. In re John Z., 29 Cal.4th 756, 764, 60 P.3d 183, 188, 128 Cal.Rptr.2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh, The Collusion of Consent, Force, & Mens Rea in Withdrawal of Consent Rape Cases: The Failure of In re John Z., 26 Whittier L.Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuating "No Means No" Rape Law, 29 Vt. L.Rev. 215, 248 (2004); Note, Acquaintance Rape & Degrees of Consent: "No" Means "No," But What Does "Yes" Mean?, 117 Harv. L.Rev. 2341, 2363 (2004). If, initially, A sexually penetrates B with B's consent (and, therefore, without force) but merely remains inside of B after B says, "Stop, I don't want to do this any longer," where is the force? "To prove the element of force is implicitly to show nonconsent" (Haywood, 118 Ill.2d at 274, 113 Ill.Dec. 236, 515 N.E.2d at 50); but, in a case of postpenetration criminal sexual assault, it is unclear that proving the withdrawal of consent implicitly proves force. One writer has drawn a distinction between "[p]ostpenetration rape [as] a doctrine of unwanted sex" and "prepenetration rape [as] a doctrine of forced sex." 117 Harv. L.Rev. at 2363. Another writer argues: "[O]nce the victim unequivocally revokes consent, the force required to accomplish continued penetration is sufficient to complete the crime." A. Davis, Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape Law, 34 Stetson L.Rev. 729, 757 (2005). The question is whether mere persistence in sexual penetration, after the withdrawal of consent, can serve as a "proxy" for force (117 Harv. L.Rev. at 2363), considering that "force" must be something more than the force inherent to sexual penetration (Haywood, 118 Ill.2d at 274-75, 113 Ill.Dec. 236, 515 N.E.2d at 50-51; Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 870-71). See State v. Robinson, 496 A.2d 1067, 1070 (Me.1985) ("We emphasize that the ongoing intercourse, initiated[,] we here assume[,] with the prosecutrix's consent, did not become rape merely because she revoked her consent. It became rape if and when the prosecutrix thereafter submitted to [the] defendant's sexual assault only because `[force or the threat of force made her] unable to physically repel the [defendant] or [too frightened to do so]'").
Perhaps, as a practical matter, this question will seldom arise because if B wishes to have sex no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical posture, A prevents B from disengaging — for example, by continuing to lie on top of B (John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786) — A thereby forces B to continue with the sexual penetration. In John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786, for example, the California decision that inspired section 12-17(c) (720 ILCS 5/12-17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No: Current Issues, Trends, & Problems in Post-Penetration Rape, 25 N. Ill. U.L.Rev. 151, 164-65 (2004)), the defendant constrained the victim to continue with sexual penetration, when she was on top of him, by grabbing her hips and pulling her back down when she tried to pull away. Then he rolled her over so he was on top of her. John Z., 29 Cal.4th at 759, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. "`No,'" she said, "`I need to go home,'" but he persisted in sexual intercourse for another minute or minute and a half, all the while asking for more time. John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. The victim testified: "`[H]e just stayed inside of me and kept like basically forcing it on [358] me.'" John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. In affirming the conviction, the Supreme Court of California held: "[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection." (Emphasis added.) John Z., 29 Cal.4th at 760, 60 P.3d at 185, 128 Cal.Rptr.2d at 786. She no doubt felt "forced" in both positions — not only when the defendant grabbed her hips and pulled her down but also when he was on top of her. One can, in a manner of speaking, passively force someone to continue with the sex act by using one's own bodily inertia to prevent the partner from disengaging. This would be force beyond that inherent to the sex act itself.
One may reasonably infer that R.H. pushed defendant because disengagement was, for her, physically impossible until defendant withdrew. Defendant withdrew when R.H. pushed her a second time. If an aggravated criminal sexual assault happened at all, it happened during the very short duration between the first and second push, when defendant, by not moving, prevented R.H. from immediately disengaging. Even though, subjectively, R.H. no longer consented, her withdrawal of consent was ineffective until she communicated it to defendant in some objective manner (see People v. Carlson, 278 Ill. App.3d 515, 520, 215 Ill.Dec. 282, 663 N.E.2d 32, 36 (1996)) so that a reasonable person in defendant's circumstances would have understood that R.H. no longer consented (see Kinney, 294 Ill.App.3d at 908, 229 Ill.Dec. 394, 691 N.E.2d at 871). Defendant used force on R.H. only if the first push operated as an objective withdrawal of consent.
Looking at the evidence in a light most favorable to the State, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that a reasonable person, in defendant's circumstances, would have understood that initial push as a withdrawal of consent. See People v. Schott, 145 Ill.2d 188, 203, 164 Ill.Dec. 127, 582 N.E.2d 690, 697 (1991). According to a letter from defendant that the State presented at trial, R.H. was capable of talking ("I swear to you that I did not hear you say no"). R.H.'s excuse was that she did not want to wake the children by screaming. Even if one credited that excuse, it would not solve the problem of an uncommunicated withdrawal of consent. R.H. could have said no — and, evidently, defendant expected her to say no, or at least say something, if she wanted defendant to stop the sexual penetration. This expectation seems reasonable. R.H. did not say no or stop. Instead, she pushed defendant. The problem is, people push one another during sexual congress. We do not mean to suggest that a push can never signify nonconsent or a withdrawal of consent. In fact, the second push here was clearly made with enough force to both be distinguished from a caress and to effectively communicate the withdrawal of consent. "`Force' and `consent' simply do not have static meanings. The significance of various factors — a cry for help, level of resistance, attempt to escape — depend[s] on the circumstances of each case." Kinney, 294 Ill.App.3d at 909-10, 229 Ill.Dec. 394, 691 N.E.2d at 871 (Knecht, J., specially concurring). Under the circumstances of this case, a single push to the shoulders, without more, cannot serve as an objective communication of R.H.'s withdrawal of consent.
III. CONCLUSION
For the foregoing reasons, we reverse the trial court's judgment.
Reversed.
[359] McCULLOUGH, J., concurs.
TURNER, J., dissents.
Justice TURNER, dissenting:
I respectfully dissent.
When a defendant challenges the sufficiency of the evidence, the reviewing court does not retry the defendant. People v. Janik, 127 Ill.2d 390, 401-02, 130 Ill.Dec. 427, 537 N.E.2d 756, 761 (1989). The jury possessed the responsibility to choose between competing versions of fact, assess the witnesses' credibility, draw inferences from the evidence, and decide whether the evidence as a whole ultimately proved defendant to be guilty of the charged offense beyond a reasonable doubt. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761; People v. Anderson, 325 Ill.App.3d 624, 634, 259 Ill.Dec. 603, 759 N.E.2d 83, 92 (2001). To avoid intruding upon the jury's prerogative as the finder of fact, we are to use a deferential standard of review. See Janik, 127 Ill.2d at 401, 130 Ill.Dec. 427, 537 N.E.2d at 761. Thus, looking at all the evidence in a light most favorable to the prosecution, we address whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Anderson, 325 Ill.App.3d at 634, 259 Ill. Dec. 603, 759 N.E.2d at 92.
A rational trier of fact could have found (1) the first push sufficiently informed defendant of R.H.'s withdrawal of consent and (2) defendant did not immediately disengage. It is a reasonable conclusion defendant wrote all of the letters following the September 27, 2004, incident. In these letters, she confesses wrongdoing, deplores the "scary side" of herself, admits that she "get[s] mean sometimes," and asks R.H. if she is going to "send [her] to jail." The jury could have reasonably inferred defendant knew, from the start, at the very moment of penetration, she was being "way to[o] rough" and that when R.H. first pushed her (signifying her withdrawal of consent), defendant already knew she did not consent to this violent manner of penetration. Because someone had once done the same thing to defendant (as she revealed in People's exhibit No. 2), defendant knew she was inflicting excruciating pain upon R.H. and that the first push meant "Stop!" Nevertheless, she continued ramming her hand into R.H.'s vagina until R.H. succeeded in pushing her away. Looking at the evidence in a light most favorable to the prosecution, I conclude a rational trier of fact could have found the elements of aggravated criminal sexual assault beyond a reasonable doubt.
7.2.8.6.5.7. Halley, The Move to Affirmative Consent (2015)
7.2.8.6.6 V.F. Deception 7.2.8.6.6 V.F. Deception
7.2.8.6.6.1 Boro v. Superior Court 7.2.8.6.6.1 Boro v. Superior Court
DANIEL KAYTON BORO, Petitioner,
v.
THE SUPERIOR COURT OF SAN MATEO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Court of Appeals of California, First District, Division One.
[1225] COUNSEL
Vincent J. O'Malley and Allen & O'Malley for Petitioner.
James P. Fox, District Attorney, for Respondent.
John K. Van de Kamp, Attorney General, Eugene W. Kaster, Herbert F. Wilkinson and Blair W. Hoffman, Deputy Attorneys General, for Real Party in Interest.
OPINION
NEWSOM, J.
By timely petition filed with this court, petitioner Daniel Boro seeks a writ of prohibition to restrain further prosecution of count II of the information on file against him in San Mateo County Superior Court No. C-13489 charging him with a violation of Penal Code section 261, [1226] subdivision (4),[1] rape: "an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances: ... (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused."[2]
(1) Petitioner contends that his motion to dismiss should have been granted with regard to count II because the evidence at the preliminary hearing proved that the prosecutrix, Ms. R., was aware of the "nature of the act" within the meaning of section 261, subdivision (4). The Attorney General contends the opposite, arguing that the victim's agreement to intercourse was predicated on a belief — fraudulently induced by petitioner — that the sex act was necessary to save her life, and that she was hence unconscious of the nature of the act within the meaning of the statute.
In relevant part the factual background may be summarized as follows. Ms. R., the rape victim, was employed as a clerk at the Holiday Inn in South San Francisco when, on March 30, 1984, at about 8:45 a.m., she received a telephone call from a person who identified himself as "Dr. Stevens" and said that he worked at Peninsula Hospital.
"Dr. Stevens" told Ms. R. that he had the results of her blood test and that she had contracted a dangerous, highly infectious and perhaps fatal disease; that she could be sued as a result; that the disease came from using public toilets; and that she would have to tell him the identity of all her friends who would then have to be contacted in the interest of controlling the spread of the disease.
"Dr. Stevens" further explained that there were only two ways to treat the disease. The first was a painful surgical procedure — graphically described — costing $9,000, and requiring her uninsured hospitalization for six weeks. A second alternative, "Dr. Stevens" explained, was to have sexual intercourse with an anonymous donor who had been injected with a serum which would cure the disease. The latter, nonsurgical procedure would only cost $4,500. When the victim replied that she lacked sufficient funds the "doctor" suggested that $1,000 would suffice as a down payment. The victim thereupon agreed to the nonsurgical alternative and consented to intercourse with the mysterious donor, believing "it was the only choice I had."
After discussing her intentions with her work supervisor, the victim proceeded to the Hyatt Hotel in Burlingame as instructed, and contacted "Dr. [1227] Stevens" by telephone. The latter became furious when he learned Ms. R. had informed her employer of the plan, and threatened to terminate his treatment, finally instructing her to inform her employer she had decided not to go through with the treatment. Ms. R. did so, then went to her bank, withdrew $1,000 and, as instructed, checked into another hotel and called "Dr. Stevens" to give him her room number.
About a half hour later the defendant "donor" arrived at her room. When Ms. R. had undressed, the "donor," petitioner, after urging her to relax, had sexual intercourse with her.
At the time of penetration, it was Ms. R.'s belief that she would die unless she consented to sexual intercourse with the defendant: as she testified, "My life felt threatened, and for that reason and that reason alone did I do it."
Petitioner was apprehended when the police arrived at the hotel room, having been called by Ms. R.'s supervisor. Petitioner was identified as "Dr. Stevens" at a police voice lineup by another potential victim of the same scheme.
Upon the basis of the evidence just recounted, petitioner was charged with five crimes, as follows: Count I: section 261, subdivision (2) — rape: accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another. Count II: section 261, subdivision (4) — rape "[w]here a person is at the time unconscious of the nature of the act, and this is known to the accused." Count III: section 266 — procuring a female to have illicit carnal connection with a man "by any false pretenses, false representation, or other fraudulent means, ..." Count IV: section 664/487 — attempted grand theft. Count V: section 459 — burglary (entry into the hotel room with intent to commit theft).
A section 995 motion to set aside the information was granted as to counts I and III — the latter by concession of the district attorney. Petitioner's sole challenge is to denial of the motion to dismiss count II.
The People's position is stated concisely: "We contend, quite simply, that at the time of the intercourse Ms. R., the victim, was `unconscious of the nature of the act': because of [petitioner's] misrepresentation she believed it was in the nature of a medical treatment and not a simple, ordinary act of sexual intercourse." Petitioner, on the other hand, stresses that the victim was plainly aware of the nature of the act in which she voluntarily engaged, so that her motivation in doing so (since it did not fall within the proscription of section 261, subdivision (2)) is irrelevant.
[1228] Our research discloses sparse California authority on the subject. A victim need not be totally and physically unconscious in order that section 261, subdivision (4) apply. In People v. Minkowski (1962) 204 Cal. App.2d 832 [23 Cal. Rptr. 92], the defendant was a physician who "treated" several victims for menstrual cramps. Each victim testified that she was treated in a position with her back to the doctor, bent over a table, with feet apart, in a dressing gown. And in each case the "treatment" consisted of the defendant first inserting a metal instrument, then substituting an instrument which "felt different" — the victims not realizing that the second instrument was in fact the doctor's penis. The precise issue before us was never tendered in People v. Minkowski because the petitioner there conceded the sufficiency of evidence to support the element of consciousness.
The decision is useful to this analysis, however, because it exactly illustrates certain traditional rules in the area of our inquiry. Thus, as a leading authority has written, "if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as any other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement)." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, p. 1079.)
The victims in Minkowski consented, not to sexual intercourse, but to an act of an altogether different nature, penetration by medical instrument. The consent was to a pathological, and not a carnal, act, and the mistake was, therefore, in the factum and not merely in the inducement.
Another relatively common situation in the literature on this subject — discussed in detail by Perkins (supra, at p. 1080) is the fraudulent obtaining of intercourse by impersonating a spouse. As Professor Perkins observes, the courts are not in accord as to whether the crime of rape is thereby committed. "[T]he disagreement is not in regard to the underlying principle but only as to its application. Some courts have taken the position that such a misdeed is fraud in the inducement on the theory that the woman consents to exactly what is done (sexual intercourse) and hence there is no rape; other courts, with better reason it would seem, hold such a misdeed to be rape on the theory that it involves fraud in the factum since the woman's consent is to an innocent act of marital intercourse while what is actually perpetrated upon her is an act of adultery. Her innocence seems never to have been questioned in such a case and the reason she is not guilty of adultery is because she did not consent to adulterous intercourse. Statutory changes in the law of rape have received attention earlier and need not be [1229] repeated here." (Perkins & Boyce, Criminal Law (3d ed. 1982) ch. 9, § 3, pp. 1080-1081, fns. omitted.)
In California, of course, we have by statute[3] adopted the majority view that such fraud is in the factum, not the inducement, and have thus held it to vitiate consent. It is otherwise, however, with respect to the conceptually much murkier statutory offense with which we here deal, and the language of which has remained essentially unchanged since its enactment (as § 261, subd. (5), now subd. (4)) in 1872.
The language itself could not be plainer. It defines rape to be "an act of sexual intercourse" with a nonspouse, accomplished where the victim is "at the time unconscious of the nature of the act ..." (§ 261, subd. (4).) Nor, as we have just seen, can we entertain the slightest doubt that the Legislature well understood how to draft a statute to encompass fraud in the factum (§ 261, subd. (5)) and how to specify certain fraud in the inducement as vitiating consent.[4] Moreover, courts of this state have previously confronted the general rule that fraud in the inducement does not vitiate consent. (People v. Harris (1979) 93 Cal. App.3d 103, 113-117 [155 Cal. Rptr. 472]; Mathews v. Superior Court (1981) 119 Cal. App.3d 309, 312 [173 Cal. Rptr. 820].) Mathews found section 266 (fraudulent procurement of a female for illicit carnal connection) inapplicable where the facts showed that the defendant, impersonating an unmarried woman's paramour, made sexual advances to the victim with her consent. While the facts demonstrate classic fraud in the factum, a concurring opinion in Mathews specifically decried the lack of a California statutory prohibition against fraudulently induced consent to sexual relations in circumstances other than those specified in section 261, subdivision (5) and then-section 268.
The People, however, direct our attention to Penal Code section 261.6, which in their opinion has changed the rule that fraud in the inducement does not vitiate consent. That provision reads as follows: "In prosecutions under sections 261, 286, 288a or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an act of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved."
[1230] We find little legislative history for this section beyond that contained in the 1982 Summary Digest, to wit:
"Existing law proscribes certain forms of sexual conduct, such as oral copulation under specified circumstances and penetration of the genital or anal openings of another person by a foreign object, as specified.
"This bill would revise the above provisions; provide that penetration of the genital or anal openings of another by a foreign object by force and violence, in concert with another, is punishable by imprisonment for 5, 7, or 9 years; establish the crime of sexual battery, as defined; and define the term `consent' for the purpose of designated prosecutions in which consent is at issue." In addition, the author of a Pacific Law Journal article has concluded that the statute was enacted in response to People v. Mayberry (1975) 15 Cal.3d 143 [125 Cal. Rptr. 745, 542 P.2d 1337], in order to provide an explicit definition of consent to be used in prosecutions in which consent was at issue. (Review of 1982 Legislation (1983) 14 Pacific L.J. 357, 547, 548, fn. 8.) Section 261.6 was enacted as a part of Chapter 1111, Statutes of 1982, which amended various substantive sex crime statutes and created the crime of sexual battery. (§ 243.4.)
If the Legislature at that time had desired to correct the apparent oversight decried in Mathews, supra,[5] — it could certainly have done so. But the Attorney General's strained reading of section 261.6 would render section 261, subdivision (5) meaningless surplusage; and we are "`exceedingly reluctant to attach an interpretation to a particular statute which renders other existing provisions unnecessary.'" (People v. Olsen (1984) 36 Cal.3d 638, 647 [205 Cal. Rptr. 492, 685 P.2d 52].)
Finally, the Attorney General cites People v. Howard (1981) 117 Cal. App.3d 53 [172 Cal. Rptr. 539]. There, the court dealt with section 288a, subdivision (f) and section 286, subdivision (f) making criminal oral copulation or sodomy between adults where one person is "unconscious of the nature of the act." But in Howard, supra, the victim was a 19-year-old with the mental capacity of a 6-to-8-year-old, who "simply [did] not understand the nature of the act in which he participat[ed]." (117 Cal. App.3d 53, 55.) Whether or not we agree with the Howard court's analysis, we note that here, in contrast, there is not a shred of evidence on the record before us to suggest that as the result of mental retardation Ms. R. lacked the capacity to appreciate the nature of the sex act in which she engaged. [1231] On the contrary, her testimony was clear that she precisely understood the "nature of the act," but, motivated by a fear of disease, and death, succumbed to petitioner's fraudulent blandishments.
To so conclude is not to vitiate the heartless cruelty of petitioner's scheme, but to say that it comprised crimes of a different order than a violation of section 261, subdivision (4).
Let a peremptory writ of prohibition issue restraining respondent from taking further action upon count II (a violation of Pen. Code, § 261, subd. (4)) in People v. Daniel Kayton Boro, aka Jerry K. Russo, Emmett Boro and Dan Borghello, San Mateo County Superior Court No. C-13489, other than dismissal. The stay of trial heretofore imposed shall remain in effect until the finality of this opinion.[6]
Racanelli, P.J., concurred.
HOLMDAHL, J.
I respectfully dissent.
All concerned with this case are handicapped by what my colleagues call "sparse California authority on the subject" before us. Neither are we aided by the "little legislative history" concerning the 1982 enactment of Penal Code section 261.6.[1]
I agree with my colleagues' conclusion that in enacting section 261.6 the Legislature could have corrected, but did not, "the apparent oversight decried in Mathews ...." I disagree, however, with their apparent conclusion that section 261.6 does not apply in the present case.
While Mathews did involve alleged false pretenses, that opinion was concerned solely with an interpretation of section 266. The new section 261.6 does not apply to prosecutions under section 266. Section 261.6 does, however, expressly apply to "prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue...."
The case before us concerns a prosecution under section 261, subd. (4), and "consent is at issue." Consequently, section 261.6, defining "consent" applies in this case.[2] It is apparent from the abundance of appropriate adjectives [1232] and adverbs in the statute that the Legislature intended to the point of redundancy to limit "consent" to that which is found to have been truly free and voluntary, truly unrestricted and knowledgeable. Thus, section 261.6 provides: "In prosecutions under Section 261, 286, 288a, or 289, in which consent is at issue, `consent' shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved." (Italics added.)
"[C]ourts are bound to give effect to statutes according to the usual, ordinary import of the language employed in framing them. [Citations.]" (People v. Jones (1964) 228 Cal. App.2d 74, 83 [39 Cal. Rptr. 302].) Recourse to the Oxford English Dictionary (1978) indicates that the "positive" of "positive cooperation" is that which is "free from qualifications, conditions, or reservations; absolute, unconditional; opposed to relative and comparative." (Id., vol. 4, p. 1152, italics in original.)
"Free will" is defined as "[s]pontaneous will, unconstrained choice (to do or act) ... left to or depending upon one's choice or election." (Id., vol. 4, "F.," p. 528.)
"Freely" is defined as "[o]f one's own accord, spontaneously; without constraint or reluctance; unreservedly, without stipulation; readily, willingly." (Id., vol. 4, "F.," p. 526.)
"Voluntarily" is defined as "[o]f one's own free will or accord; without compulsion, constraint, or undue influence by others; freely, willingly.... Without other determining force than natural character or tendency; naturally, spontaneously." (Id., vol. 12, "V.," p. 302.)
Further, I take the statute's use of "act or attitude" and "act or transaction" to mean more than an alleged victim's knowledge that she would be engaging in the physical act of sexual intercourse and more than that she intended to do so. Those phrases, in combination with the adjectives and adverbs discussed, lead me to conclude that while the Legislature in section 261.6 did not expressly repeal the legalisms distinguishing "fraud in the factum" and "fraud in the inducement," its intention certainly was to restrict "consent" to cases of true, good faith consent, obtained without substantial fraud or deceit.
[1233] I believe there is a sufficient basis for prosecution of petitioner pursuant to section 261, subd. (4). I would deny the writ.
A petition for a rehearing was denied February 21, 1985. Holmdahl, J., was of the opinion that the petition should be granted. The petition of real party in interest for a hearing by the Supreme Court was denied April 4, 1985.
[1] Unless otherwise noted, all further statutory references are to the California Penal Code.
[2] Petitioner makes no challenge to count IV, attempted grand theft (§§ 664/487) and count V, burglary (§ 459) of the information. Count I and count III (§§ 261, subd. (2) and 266) were dismissed below.
[3] Section 261, subdivision (5) reads as follows: "Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief."
[4] Prior to its repeal by Statutes 1984, chapter 438, section 2, section 268 provided that: "Every person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character, is punishable by imprisonment in the state prison, or by a fine of not more than five thousand dollars [$5,000], or by both such fine and imprisonment."
[5] It is not difficult to conceive of reasons why the Legislature may have consciously wished to leave the matter where it lies. Thus, as a matter of degree, where consent to intercourse is obtained by promises of travel, fame, celebrity and the like — ought the liar and seducer to be chargeable as a rapist? Where is the line to be drawn?
[6] We note that by separate opinion filed this date in A027931, we have commanded respondent to sever the remaining charge in this case from a separate fraud case on file in San Mateo County Superior Court No. C-13551.
[1] Apparently, no published decision as yet deals with section 261.6.
[2] While the word "consent" appears only in section 261, subd. (1), all the subdivisions concern the victim's state of mind.
7.2.8.6.6.2 State v. Bolsinger 7.2.8.6.6.2 State v. Bolsinger
709 N.W.2d 560 (2006)
STATE of Iowa, Appellee,
v.
John Michael BOLSINGER, Appellant.
No. 03-0823.
Supreme Court of Iowa.
February 10, 2006.
[561] Murray W. Bell of Murray W. Bell, PC, Davenport, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
LARSON, Justice.
John Michael Bolsinger appealed his convictions of third-degree sexual abuse under Iowa Code section 709.4(1) (2001), sexual exploitation by a counselor under Iowa Code section 709.15(2), and sexual misconduct with juvenile offenders under Iowa Code section 709.16(2). Bolsinger [562] was sentenced to a combination of concurrent and consecutive sentences totaling a term not exceeding thirty-seven years. The court of appeals affirmed, and we granted further review. We vacate the decision of the court of appeals, reverse his conviction for sexual abuse, affirm the remainder of the convictions, and remand.
I. Facts and Prior Proceedings.
Bolsinger was the program supervisor of a highly structured state facility for delinquent boys, the Wittenmyer Youth Center, in August 2001 when the Iowa Department of Human Services (DHS) conducted an investigation into allegations of sexual abuse by Bolsinger. The investigation revealed, through interviews with past and present youth at the camp, that Bolsinger would take boys into a private room and touch their genitals, saying he was checking for bruises, scratches, hernias, and testicular cancer. The testimony of the boys revealed that Bolsinger asked permission to touch them in this way and that he did not appear to them to be gaining any sexual gratification from the touching. The boys testified that they were not aware that they were being touched in a sexual manner, and they would not have consented if they had known the true reason for the touching. However, they also testified that, given the nature of the structured program, it was almost impossible for them to make choices of their own or to refuse the request of an instructor.
Following the DHS investigation, Davenport police officers obtained a search warrant for Bolsinger's home and seized a number of items, including the defendant's home computer. The computer's hard drive contained, among other things, numerous stories involving unidentified males engaging in sex acts with each other. Prior to trial, Bolsinger filed a motion to suppress evidence seized from his home, which was denied by the court.
II. Issues.
Bolsinger's appeal raises three issues: (1) the court's interpretation of Iowa Code section 709.4(1) (third-degree sexual abuse), (2) its denial of his motion to suppress, and (3) its refusal to direct verdicts in his favor on all counts on the basis his acts were not "sex acts" under the Code. Bolsinger raises other issues, which we do not expressly discuss because their resolution is subsumed in other holdings in this case.
III. Interpretation of Iowa Code Section 709.4(1) (Third-Degree Sexual Abuse).
Under Iowa Code section 709.4,
[a] person commits sexual abuse in the third degree when the person performs a sex act under any of the following circumstances:
1. The act is done by force or against the will of the other person, whether or not the other person is the person's spouse or is cohabiting with the person.
In applying the "force or against the will" language of section 709.4, the court submitted Instruction No. 21:
Concerning [the third-degree sexual abuse counts] the State must prove that the defendant committed a sex act "by force or against the will" of the alleged victim in that Instruction. In order to do so, however, the State does not have to prove that the alleged victim physically resisted the defendant's acts. The force used by the defendant does not have to be physical. An act may be done "by force and against the will" of another if the other's consent or acquiescence is procured by:
1. threats of violence; or
2. deception, which may include deception concerning the nature of the act or deception concerning the defendant's [563] right to exercise authority over the other under the circumstances.
You may consider all of the circumstances surrounding the defendant's act in deciding whether the act was done by force or against the will of the alleged victim.
(Emphasis added.)
The court stated that its authority for giving this instruction was found in Iowa Code section 709.5, which provides:
Under the provisions of this chapter it shall not be necessary to establish physical resistance by a person in order to establish that an act of sexual abuse was committed by force or against the will of the person. However, the circumstances surrounding the commission of the act may be considered in determining whether or not the act was done by force or against the will of the other.
(Emphasis added.) The court also relied on the case of State v. Vander Esch, 662 N.W.2d 689 (Iowa Ct.App.2002). In Vander Esch the defendant, an owner of a pizza restaurant, employed teenage boys. He informed two of these employees that he was doing a scientific research project and asked them to provide him semen samples for this purpose. He promised to pay $50 for the samples should their sperm count be high enough. Vander Esch was present during the procedure and took possession of the semen samples. Vander Esch, 662 N.W.2d at 691. Vander Esch was not authorized by any scientific body to collect semen samples, and the victims indicated that they would not have consented to these acts had they known that no scientific research existed. Id. Vander Esch was charged with four counts of third-degree sexual abuse under Iowa Code section 709.4(1). He argued that the definition of sexual abuse, as set out in Iowa Code section 709.1(1), set forth the only means recognized in Iowa to negate consent and that neither fraud nor deceit did so. Id. at 691.
Our examination of the issue must begin with Iowa Code section 709.1(1), which defines sexual abuse and provides that certain circumstances will vitiate a victim's consent:
Any sex act between persons is sexual abuse by either of the persons when the act is performed with the other person in any of the following circumstances:
1. The act is done by force or against the will of the other. If the consent or acquiescence of the other is procured by threats of violence toward any person or if the act is done while the other is under the influence of a drug inducing sleep or is otherwise in a state of unconsciousness, the act is done against the will of the other.
In Vander Esch the district court ruled that, in view of the fact that Iowa Code section 709.5 permits the consideration of all surrounding circumstances, section 709.1(1) is not exclusive and fraud and deception may vitiate consent. The court of appeals upheld that decision, classifying the fraud in question as fraud in fact, as opposed to fraud in the inducement (concepts we later discuss), and therefore, the act was done "by force or against the will" of the boys.
Bolsinger argues that the acts which occurred were hand-to-genital contact, which was expressly agreed to by the boys. He argues that his unexpressed purpose, apparently sexual gratification, was collateral to the act itself and, therefore, constituted fraud only in the inducement. As such, the fraud does not vitiate consent, according to him. Bolsinger also argues that Vander Esch, relied on by the court of appeals (which divided four to four on the question) and the district court in the present case, was incorrectly decided and should be overruled. Bolsinger argues [564] that Vander Esch erroneously characterized the consent to semen sampling as being produced by fraud in fact, and therefore, any consent was vitiated.
If an act is done that is different from the act the defendant said he would perform, this is fraud in fact. If the act is done as the defendant stated it would be, but it is for some collateral or ulterior purpose, this is fraud in the inducement. Fraud in fact vitiates consent; fraud in the inducement does not. See Rollin M. Perkins & Ronald N. Boyce, Criminal Law ch. 9, § 3, at 1079 (3d ed.1982) [hereinafter Perkins & Boyce]. In other words,
if deception causes a misunderstanding as to the fact itself (fraud in the factum) there is no legally-recognized consent because what happened is not that for which consent was given; whereas consent induced by fraud is as effective as other consent, so far as direct and immediate legal consequences are concerned, if the deception relates not to the thing done but merely to some collateral matter (fraud in the inducement).
Id.; accord Wayne R. LaFave, Substantive Criminal Law § 6.5(a), at 506 (2d ed.2003) (stating that "fraud in the factum involves a form of deception which results in a misunderstanding by the victim as to the very fact of the defendant's conduct").
Cases illustrating fraud in fact have often involved victims undergoing medical examination or treatment. In many cases, the victims consented to an examination, only to find that the doctor engaged in sex acts. See, e.g., People v. Ogunmola, 193 Cal.App.3d 274, 238 Cal.Rptr. 300, 304 (1987) (patient who consented to gynecological examination was in fact subjected to a sex act; consent held to be vitiated); McNair v. State, 108 Nev. 53, 825 P.2d 571, 575 (1992) (sex acts under pretense of performing medical examination held to be against the will of the victim). See generally regarding fraud in fact in "doctor" cases, Jay M. Zitter, Annotation: "Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished Under the Pretext of, or in the Course of, Medical Treatment," 65 A.L.R.4th 1064 (1988); 75 C.J.S. Rape § 22, at 334 (2002). One treatise discusses fraud in these cases:
In some of these cases the doctor has not hesitated to make it clear that he intended to have sexual intercourse with the patient, his fraud being in the deceitful suggestion that this was necessary to cure some malady, which was fraud in the inducement, since the patient knew exactly what was to be done and was deceived only in regard to a collateral matter — the reason why it was to be done. And here as usual the direct and immediate consequence of consent obtained by fraud in the inducement is the same as consent given in the absence of fraud, and since the patient consented to the intercourse it was not rape so long as she was over the statutory age.
Perkins & Boyce, ch. 9, at 1079-80.
Bolsinger argues that each of these young men was told what the touching would consist of and that they were then touched in the exact manner they expected. Thus, he argues, any fraud was fraud in the inducement, not fraud in fact.
In Bolsinger's case, if the boys had consented to acts such as massaging their legs and instead Bolsinger had touched their genital area, this would clearly be fraud in fact; they would have consented to one act but subjected to a different one. That is not the case, however. We conclude that the consents given here were based on fraud in the inducement, not on fraud in fact, as the victims were touched in exactly the manner represented to them. The consents, therefore, were not vitiated.
In reaching this conclusion, we do so based on the authorities discussed above and not on Bolsinger's alternative argument [565] that Iowa's sex abuse law in effect provides no way to vitiate consent based on fraud. This argument, based on the doctrine of inclusio unius est exclusio alterius, is that the Code sets out a limited list of circumstances under which consent may be vitiated. These include the victim's age (Iowa Code section 709.4(2)(b) and (c)), a mental defect or incapacity (Iowa Code section 709.4(2)(a) and (4)), a physical incapacity (Iowa Code section 709.4(4)), and the influence of controlled substances (Iowa Code section 709.4(3)). Contrary to Bolsinger's argument, we believe that these are not the only circumstances in which consent can be vitiated and that fraud in fact should be held to vitiate consent in sexual abuse cases just as it does in any other criminal case. We rejected a similar inclusio unius est exclusio alterius argument in State v. Ramsey, 444 N.W.2d 493 (Iowa 1989), which involved a statute prohibiting the removal of a person without their consent. We held that deception by the defendant vitiated the victim's consent.
[The defendant] contends that because the word "deception" is not used in section 710.1, it cannot form the basis upon which his conviction rests. Ramsey is confusing means with ends, however. Ramsey's intent, as expressed by his girlfriend and logically inferred from subsequent events, was to remove an innocent person to a remote location, shoot him, and steal his car. Whether the removal was accomplished by force or artful deception, the end result remains the same.
Id. at 494. Ramsey involved fraud in fact; the victim agreed to give the defendant a ride, not to be shot in the back of the head. Id. at 493-94.
Our conclusion that the boys' consent in this case was based on fraud in the inducement and not fraud in fact calls into question the court of appeals case of Vander Esch. In fact, in the four-to-four decision by the court of appeals in Bolsinger's appeal, four members of that court urge us to overrule Vander Esch. We now hold that Vander Esch is no longer controlling because the facts on which that case was based clearly show fraud in the inducement, not fraud in fact.
IV. Remaining Issues.
Bolsinger raises several additional issues, which, if resolved in his favor, would result in a reversal of all convictions — sexual exploitation by a counselor and sexual misconduct with a juvenile offender, as well as third-degree sexual abuse. He claims (1) the fruits of the search of his home should have been suppressed; and (2) in any event, his actions were not "sex acts" under the Code.
A. The search warrant. Bolsinger contends the search of his home was illegal because the search warrant was invalid, and in any event, the officers executing it did so improperly. We review rulings on motions to suppress based on alleged Fourth Amendment violations de novo. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).
Bolsinger contends the search warrant lacked probable cause, was based on false statements in the application, and was overbroad. We have considered the record and the defendant's arguments on the legality of the search warrant and on the execution of it and conclude the warrant was based on probable cause, was not based on false statements, and was not overbroad. Further, we conclude the officers properly executed the warrant. We reject Bolsinger's motion-to-suppress issue.
B. Were these "sex acts" under the applicable statutes? The defendant contends that the district court erred in denying his motion for directed verdict as to all charges because "sex acts," under [566] the Code, were not proved. We have already determined that Bolsinger's conviction of third-degree sexual abuse cannot stand. The remaining charges, sexual abuse by a counselor or therapist and sexual misconduct with offenders, both require proof of sex acts. Bolsinger argues that none of the young men testified there was anything sexual going on and that the evidence was insufficient to establish the existence of sex acts. The jury was instructed, based on Iowa Code section 702.17, that a "sex act" is
[a]ny sexual contact between the fingers or hand of one person and the genitals or anus of another person. `Genitals' include the scrotum and penis. You may consider the type of contact and the circumstances surrounding it in deciding whether the contact was sexual in nature.
We believe there was substantial evidence to support the jury's finding that sex acts had been committed. Direct evidence is not required.
The sexual nature of the contact can be determined from the type of contact and the circumstances surrounding it. . . .
. . . Other relevant circumstances include but are not limited to the relationship between the defendant and the victim; whether anyone else was present; the length of the contact; the purposefulness of the contact; whether there was a legitimate, nonsexual purpose for the contact; where and when the contact took place; and the conduct of the defendant and victim before and after the contact.
State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994). The evidence shows that Bolsinger was acting outside the scope of his duties, his actions took place in private, and he did not document these procedures, contrary to the policy at Wittenmyer. Bolsinger had no medical training other than information he had received in school on testicular cancer and self-examination and was in a position of power over the victims. Considered in light of this evidence a rational finder of fact could conclude that Bolsinger committed sex acts under the guise of performing medical examinations. The trial court did not err in overruling his motions for judgment of acquittal on the charges of sexual abuse by a counselor or sexual misconduct with offenders.
We reverse the convictions for third-degree sexual abuse and affirm the remaining convictions. We remand for resentencing without regard to the third-degree sexual abuse convictions under Iowa Code section 709.4(1).
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.
7.2.8.6.6.3. McNally v. The Queen
7.2.8.6.7 V.G. Registry 7.2.8.6.7 V.G. Registry
7.2.8.6.7.1 Connecticut Dept. of Public Safety v. Doe 7.2.8.6.7.1 Connecticut Dept. of Public Safety v. Doe
538 U.S. 1 (2003)
CONNECTICUT DEPARTMENT OF PUBLIC SAFETY ET AL.
v.
DOE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED.
No. 01-1231.
Supreme Court of United States.
Argued November 13, 2002.
Decided March 5, 2003.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
[2] REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 8. SOUTER, J., filed a concurring opinion, in which GINSBURG, J., joined, post, p. 9. STEVENS, J., filed an opinion concurring in the judgment, post, p. 110.
Richard Blumenthal, Attorney General of Connecticut, argued the cause for petitioners. With him on the briefs were Gregory T. D'Auria, Associate Attorney General, and Lynn D. Wittenbrink, Perry Zinn Rowthorn, and Mark F. Kohler, Assistant Attorneys General.
Solicitor General Olson argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General McCallum, Deputy Solicitor General Clement, Gregory G. Garre, Leonard Schaitman, and Mark W. Pennak.
[3] Shelley R. Sadin argued the cause for respondents. With her on the brief were Drew S. Days III, Beth S. Brinkmann, Seth M. Galanter, Philip Tegeler, and Steven R. Shapiro.[1]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We granted certiorari to determine whether the United States Court of Appeals for the Second Circuit properly enjoined [4] the public disclosure of Connecticut's sex offender registry. The Court of Appeals concluded that such disclosure both deprived registered sex offenders of a "liberty interest," and violated the Due Process Clause because officials did not afford registrants a predeprivation hearing to determine whether they are likely to be "currently dangerous." Doe v. Department of Public Safety ex rel. Lee, 271 F. 3d 38, 44, 46 (2001) (internal quotation marks omitted). Connecticut, however, has decided that the registry requirement shall be based on the fact of previous conviction, not the fact of current dangerousness. Indeed, the public registry explicitly states that officials have not determined that any registrant is currently dangerous. We therefore reverse the judgment of the Court of Appeals because due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme.
"Sex offenders are a serious threat in this Nation." McKune v. Lile, 536 U. S. 24, 32 (2002) (plurality opinion). "[T]he victims of sex assault are most often juveniles," and "[w]hen convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault." Id., at 32-33. Connecticut, like every other State, has responded to these facts by enacting a statute designed to protect its communities from sex offenders and to help apprehend repeat sex offenders. Connecticut's "Megan's Law" applies to all persons convicted of criminal offenses against a minor, violent and nonviolent sexual offenses, and felonies committed for a sexual purpose. Covered offenders must register with the Connecticut Department of Public Safety (DPS) upon their release into the community. Each must provide personal information (including his name, address, photograph, and DNA sample); notify DPS of any change in residence; and periodically submit an updated photograph. The registration requirement runs for 10 years in most cases; those convicted [5] of sexually violent offenses must register for life. Conn. Gen. Stat. §§ 54-251, 54-252, 54-254 (2001).
The statute requires DPS to compile the information gathered from registrants and publicize it. In particular, the law requires DPS to post a sex offender registry on an Internet Website and to make the registry available to the public in certain state offices. §§ 54-257, 54-258. Whether made available in an office or via the Internet, the registry must be accompanied by the following warning: "`Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.'" § 54-258a.
Before the District Court enjoined its operation, the State's Website enabled citizens to obtain the name, address, photograph, and description of any registered sex offender by entering a zip code or town name. The following disclaimer appeared on the first page of the Website:
"`The registry is based on the legislature's decision to facilitate access to publicly-available information about persons convicted of sexual offenses. [DPS] has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual.'" 271 F. 3d, at 44.
Petitioners include the state agencies and officials charged with compiling the sex offender registry and posting it on the Internet. Respondent Doe (hereinafter respondent) is a convicted sex offender who is subject to Connecticut's Megan's [6] Law. He filed this action pursuant to Rev. Stat. § 1979, 42 U. S. C. § 1983, on behalf of himself and similarly situated sex offenders, claiming that the law violates, inter alia, the Due Process Clause of the Fourteenth Amendment. Specifically, respondent alleged that he is not a "`dangerous sexual offender,'" and that the Connecticut law "deprives him of a liberty interest — his reputation combined with the alteration of his status under state law — without notice or a meaningful opportunity to be heard." 271 F. 3d, at 45-46. The District Court granted summary judgment for respondent on his due process claim. 132 F. Supp. 2d 57 (Conn. 2001). The court then certified a class of individuals subject to the Connecticut law, and permanently enjoined the law's public disclosure provisions.
The Court of Appeals affirmed, 271 F. 3d 38 (CA2 2001), holding that the Due Process Clause entitles class members to a hearing "to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry." Id., at 62. Because Connecticut had not provided such a hearing, the Court of Appeals enjoined petitioners from "`disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning [class members]'" and from "`identifying [them] as being included in the Registry.'" Ibid. The Court of Appeals reasoned that the Connecticut law implicated a "liberty interest" because of: (1) the law's stigmatization of respondent by "implying" that he is "currently dangerous," and (2) its imposition of "extensive and onerous" registration obligations on respondent. Id., at 57. From this liberty interest arose an obligation, in the Court of Appeals' view, to give respondent an opportunity to demonstrate that he was not "likely to be currently dangerous." Id., at 62. We granted certiorari, 535 U. S. 1077 (2002).
In Paul v. Davis, 424 U. S. 693 (1976), we held that mere injury to reputation, even if defamatory, does not constitute [7] the deprivation of a liberty interest. Petitioners urge us to reverse the Court of Appeals on the ground that, under Paul v. Davis, respondent has failed to establish that petitioners have deprived him of a liberty interest. We find it unnecessary to reach this question, however, because even assuming, arguendo, that respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute.
In cases such as Wisconsin v. Constantineau, 400 U. S. 433 (1971), and Goss v. Lopez, 419 U. S. 565 (1975), we held that due process required the government to accord the plaintiff a hearing to prove or disprove a particular fact or set of facts. But in each of these cases, the fact in question was concededly relevant to the inquiry at hand. Here, however, the fact that respondent seeks to prove — that he is not currently dangerous — is of no consequence under Connecticut's Megan's Law. As the DPS Website explains, the law's requirements turn on an offender's conviction alone — a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest. 271 F. 3d, at 44 ("`Individuals included within the registry are included solely by virtue of their conviction record and state law'" (emphasis added)). No other fact is relevant to the disclosure of registrants' information. Conn. Gen. Stat. §§ 54-257, 54-258 (2001). Indeed, the disclaimer on the Website explicitly states that respondent's alleged nondangerousness simply does not matter. 271 F. 3d, at 44 ("`[DPS] has made no determination that any individual included in the registry is currently dangerous'").
In short, even if respondent could prove that he is not likely to be currently dangerous, Connecticut has decided that the registry information of all sex offenders — currently dangerous or not — must be publicly disclosed. Unless respondent can show that that substantive rule of law is defective (by conflicting with a provision of the Constitution), any [8] hearing on current dangerousness is a bootless exercise. It may be that respondent's claim is actually a substantive challenge to Connecticut's statute "recast in `procedural due process' terms." Reno v. Flores, 507 U. S. 292, 308 (1993). Nonetheless, respondent expressly disavows any reliance on the substantive component of the Fourteenth Amendment's protections, Brief for Respondents 44-45, and maintains, as he did below, that his challenge is strictly a procedural one. But States are not barred by principles of "procedural due process" from drawing such classifications. Michael H. v. Gerald D., 491 U. S. 110, 120 (1989) (plurality opinion) (emphasis in original). See also id., at 132 (STEVENS, J., concurring in judgment). Such claims "must ultimately be analyzed" in terms of substantive, not procedural, due process. Id., at 121. Because the question is not properly before us, we express no opinion as to whether Connecticut's Megan's Law violates principles of substantive due process.
Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here. The judgment of the Court of Appeals is therefore
Reversed.
JUSTICE SCALIA, concurring.
I join the Court's opinion, and add that even if the requirements of Connecticut's sex offender registration law implicate a liberty interest of respondents, the categorical abrogation of that liberty interest by a validly enacted statute suffices to provide all the process that is "due" — just as a state law providing that no one under the age of 16 may operate a motor vehicle suffices to abrogate that liberty interest. Absent a claim (which respondents have not made here) that the liberty interest in question is so fundamental as to implicate so-called "substantive" due process, a properly enacted law can eliminate it. That is ultimately why, [9] as the Court's opinion demonstrates, a convicted sex offender has no more right to additional "process" enabling him to establish that he is not dangerous than (in the analogous case just suggested) a 15-year-old has a right to "process" enabling him to establish that he is a safe driver.
JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring.
I join the Court's opinion and agree with the observation that today's holding does not foreclose a claim that Connecticut's dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut's disclaimer, ante, at 5, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents' situation.
Connecticut allows certain sex offenders the possibility of avoiding the registration and reporting obligations of the statute. A court may exempt a convict from registration altogether if his offense was unconsented sexual contact, Conn. Gen. Stat. § 54-251(c) (2001), or sexual intercourse with a minor aged between 13 and 16 while the offender was more than two years older than the minor, provided the offender was under age 19 at the time of the offense, § 54-251(b). A court also has discretion to limit dissemination of an offender's registration information to law enforcement purposes if necessary to protect the identity of a victim who is related to the offender or, in the case of a sexual assault, who is the offender's spouse or cohabitor. §§ 54-255(a), (b).[2] [10] Whether the decision is to exempt an offender from registration or to restrict publication of registry information, it must rest on a finding that registration or public dissemination is not required for public safety. §§ 54-251(b), 54-255(a), (b). The State thus recognizes that some offenders within the sweep of the publication requirement are not dangerous to others in any way justifying special publicity on the Internet, and the legislative decision to make courts responsible for granting exemptions belies the State's argument that courts are unequipped to separate offenders who warrant special publication from those who do not.
The line drawn by the legislature between offenders who are sensibly considered eligible to seek discretionary relief from the courts and those who are not is, like all legislative choices affecting individual rights, open to challenge under the Equal Protection Clause. See, e. g., 3 R. Rotunda & J. Nowak, Treatise on Constitutional Law § 17.6 (3d ed. 1999); L. Tribe, American Constitutional Law § 16-34 (2d ed. 1988). The refusal to allow even the possibility of relief to, say, a 19-year-old who has consensual intercourse with a minor aged 16 is therefore a reviewable legislative determination. Today's case is no occasion to speak either to the possible merits of such a challenge or the standard of scrutiny that might be in order when considering it. I merely note that the Court's rejection of respondents' procedural due process claim does not immunize publication schemes like Connecticut's from an equal protection challenge.
[For opinion of JUSTICE STEVENS concurring in the judgment, see post, p. 110.]
[1] Briefs of amici curiae urging reversal were filed for the District of Columbia et al. by Robert R. Rigsby, Corporation Counsel of the District of Columbia, Charles L. Reischel, Deputy Corporation Counsel, and Edward E. Schwab, Senior Assistant Corporation Counsel, and by the Attorneys General for their respective jurisdictions as follows: Bill Pryor of Alabama, Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Bill Lockyer of California, Ken Salazar of Colorado, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, James E. Ryan of Illinois, Steve Carter of Indiana, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Patricia A. Madrid of New Mexico, Eliot Spitzer of New York, Robert Torres of the Northern Mariana Islands, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodríguez of Puerto Rico, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, Mark L. Shurtleff of Utah, Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington, Darrell V. McGraw, Jr., of West Virginia, and James E. Doyle of Wisconsin; for the National Governors Association et al. by Richard Ruda and James I. Crowley; for the Center for the Community Interest by Robert J. Del Tufo; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger.
Briefs of amici curiae urging affirmance were filed for the Association for the Treatment of Sexual Abusers by David A. Reiser; for the Office of the Public Defender for the State of New Jersey by Peter A. Garcia, Michael Z. Buncher, and Brian J. Neff; and for the Public Defender Service for the District of Columbia et al. by James W. Klein, Samia A. Fam, and Corinne A. Beckwith.
Lucy A. Dalglish and Gregg P. Leslie filed a brief for the Reporters Committee for Freedom of the Press as amicus curiae.
[2] To mitigate the retroactive effects of the statute, offenders in these categories who were convicted between October 1, 1988, and June 30, 1999, were allowed to petition a court for restricted dissemination of registry information. §§ 54-255(c)(1)-(4). A similar petition was also available to any offender who became subject to registration by virtue of a conviction prior to October 1, 1998, if he was not incarcerated for the offense, had not been subsequently convicted of a registrable offense, and had properly registered under the law. § 54-255(c)(5).
7.2.8.6.8 V.H. Proof 7.2.8.6.8 V.H. Proof
Criminal prosecutions, strictly speaking, are between the state and the defendant. In homicides, the victims are, for obvious reasons, absent. How should the criminal system deal with rape victims? In rape cases, the criminal system has attempted to balance the defendant’s rights to confront his accuser and prove his case with the concern for victim’s privacy and dignity. As with rape law more generally, the cases in this section pose provocative questions about where the proper balance lies, and reflect the process of law and social change.
7.2.8.6.8.1 Federal Rule of Evidence 412 (Enacted 1978; Amended 1994) 7.2.8.6.8.1 Federal Rule of Evidence 412 (Enacted 1978; Amended 1994)
7.2.8.6.8.2 Government of Virgin Islands v. Scuito 7.2.8.6.8.2 Government of Virgin Islands v. Scuito
GOVERNMENT OF the VIRGIN ISLANDS
v.
Louis SCUITO, Appellant.
United States Court of Appeals, Third Circuit.
Larry J. Ritchie, Washington, D.C. (argued), John E. Stout, Grunert, Stout, Hymes, Mayer & Smock, Charlotte Amalie, St. Thomas, V.I., for appellant.
David B. Smith (argued), Dept. of Justice, Washington, D.C., Ishmael A. Meyers, U.S. Atty., Terry M. Halpern, Asst. U.S. Atty., Charlotte Amalie, St. Thomas, V.I., for appellee.
Before ADAMS, MARIS and SLOVITER, Circuit Judges.
[870]
OPINION OF THE COURT
ADAMS, Circuit Judge.
In this appeal from a conviction for forcible rape,[1] the defendant Louis Scuito asserts two errors: (1) The trial judge erred in not barring a new trial on double jeopardy grounds after a mistrial was declared on Scuito's motion because of certain prejudicial questions asked by the prosecutor. (2) The trial judge abused or failed to exercise his discretion in denying the defendant's motion for a psychiatric examination of the complainant. Finding neither ground persuasive, we will affirm the conviction.
I.
The complainant worked as a waitress at the Drunken Shrimp restaurant, where the defendant was a frequent patron. When the complainant worked late on the night of July 9, 1978, the owner of the restaurant arranged for Scuito to give the complainant a ride to her apartment. It is undisputed that Scuito took a detour down a beach road, where the two had sexual intercourse, after which he took the complainant home. The crucial issue at trial was solely whether she consented.
According to the complainant, Scuito turned down the beach road to relieve himself, and then continued to a turnaround, stopped the jeep, and began kissing her. She expressed lack of interest, but the defendant then told her he had a knife and would throw her into the ocean if she did not cooperate. She testified that she did not actually see the knife in the dark, but felt "something metal" cut into her neck, after which she ceased resistance and attempted to calm him and avoid harm by cooperating. At trial there was medical and other testimony of a cut on the side of the complainant's neck where she said the knife was held. After taking off her clothes, the defendant raped and sodomized her. During the course of the assault she prayed and recited her "mantra."[2] Upon being dropped off at home, she kissed the defendant on the forehead because, she testified, "I was praying for him" and "it was just kind of like an end to the prayer."
Scuito testified that he casually knew the complainant and her sister and had previously driven them home from the restaurant. He said that on the night of July 9, when he gave the complainant a ride to her apartment, she seemed "a little spaced, not all there." While riding home, she offered him marijuana and he drove off the main road to smoke it with her. He later "came on to her," he said. Although initially she protested, he eventually changed her mind without using or threatening any physical force.
Prior to the first trial there had been a discussion between counsel and the court regarding the admissibility of evidence that Scuito previously had raped another young woman after threatening to shoot her with a flare gun. Defense counsel contended that such evidence would be relevant only if the defendant put his character in issue, which he did not at that time intend to do. The prosecutor agreed not to mention the other alleged rape in the opening statement to the jury, but reserved the right to seek admission of the evidence under Fed.R. Evid. 404(b),[3] if the testimony that was adduced created the opportunity. The trial judge asserted that the evidence could be [871] admissible only if he became satisfied that it was relevant and met the Fed.R.Evid. 403 standard of probative value outweighing prejudice to the defendant. "For that purpose," he said, "I will hear testimony to be offered outside of the presence of the jury and make that determination."
The defense called two witnesses at the first trial: the defendant himself and a next-door neighbor who was defendant's former roommate. The latter answered "no" to defense counsel's question whether he knew anything about the defendant that would indicate any abnormal sexual behavior on his part. Prior to cross-examining the former roommate, the prosecutor asked for "a ruling with respect to my specific question," to which the court replied, "Well, ask the question, I don't give any rulings in advance." The prosecutor thereafter asked the witness whether he would consider rape to be abnormal sexual behavior. The next question, "Would your consider a man that took a flare gun—," was interrupted by defense counsel's objection that the prosecutor "was getting into the same line we were discussing previously."
Asked if the question was a hypothetical one, "not related to the facts," the prosecutor replied: "It is not related to the facts of this case." The objection was overruled and the prosecutor asked: "Would you consider a man taking a flare gun, holding it at a woman and telling her he will disfigure her if she didn't allow him to have intercourse with her, would you consider that to be abnormal, aberrant sexual behavior?" After an affirmative reply, the prosecutor asked, "If you had heard—," only to be cut off by the court disallowing the question and indicating that it "goes to something that has not been put in issue." Shortly thereafter, when the defense rested and the jury was excused, defense counsel moved for a mistrial on the basis of the question about the flare gun.
The trial judge granted a mistrial, and said he based his decision on three incidents in the trial. First, when the owner of the Drunken Shrimp testified, she made two spontaneous outbursts indicating her belief that Scuito was guilty.[4] Second, the complainant had put the defendant's character in issue by suggesting he had had homosexual relationships. Third was the reference to the flare gun.
In motions preceding the second trial, the defendant asked that the indictment be dismissed on double jeopardy grounds, or, if it were not, for an order requiring a psychiatric examination of the complainant "and further providing that the results of [the] examination be made available to the defense for possible use at trial." Both motions were denied and, after a trial with essentially the same evidence as in the first, but without the prejudicial incidents noted by the judge, Scuito was convicted.
II.
The double jeopardy clause of the Fifth Amendment protects a defendant in a criminal proceeding against repeated prosecutions for the same offense as well as against multiple punishments. Underlying the safeguard is the belief that the state should not be allowed to make repeated attempts to convict an individual. United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976). The reach of the clause's bar to successive prosecutions may extend to terminations of trials by mistrials as well as by acquittals. Because the accused has a "valued right . . to have his trial completed by the particular tribunal summoned to sit in judgment on him," Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100 (1963), a mistrial on the prosecution's motion or by the court on its own initiative should be declared only when there is "manifest necessity" for it. United States v. Perez, 9 Wheat. 579, 580, 22 U.S. 256, 256, 6 L.Ed. 165 (1824).
[872] Different considerations have been held to apply to mistrials declared on a defendant's motion as opposed to those declared without the defendant's assent. Whereas the "manifest necessity" standard applies to the latter, with the former a retrial is barred only when the circumstances causing the mistrial are "`attributable to prosecutorial or judicial overreaching.'" United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (quoting United States v. Jorn, 400 U.S. 470, 481, 91 S.Ct. 547, 555, 27 L.Ed.2d 543 (1971)). Defendants are to be protected against "`bad faith' conduct by judge or prosecutor," as when government actions are "intended to provoke mistrial requests." Id., 424 U.S. at 611, 96 S.Ct. at 1081. Elsewhere the Supreme Court has stated: "Where the defendant, by requesting a mistrial, exercised his choice in favor of terminating the trial, the Double Jeopardy Clause generally would not stand in the way of reprosecution. Only if the underlying error was `motivated by bad faith or undertaken to harass or prejudice,' . . would there be any barrier to retrial." Lee v. United States, 432 U.S. 23, 32-33, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80 (1977) (quoting Downum, 424 U.S. at 611, 96 S.Ct. at 1081).
Scuito argues that the trial judge erred in denying his motion to dismiss the indictment by applying the wrong legal standard to his double jeopardy claim. He contends that the court required a showing of "substantial prosecutorial misconduct," whereas "gross negligence" ought to be sufficient.[5] On the other hand, the Government urges us to restrict the double jeopardy bar to mistrials declared because of prosecutorial recklessness.[6]
The practical difference between "gross negligence" and "recklessness" is not always clear,[7] although both connote a more extreme departure from a reasonable standard of conduct than does "mere negligence," which is clearly insufficient to preclude reprosecution.[8]
[873] Assuming that either gross negligence or recklessness might constitute prosecutorial overreaching that would trigger the double jeopardy bar to retrial,[9] and assuming that a significantly lower level of egregiousness could be termed gross negligence but not recklessness,[10] we conclude that a retrial was nevertheless permissible in this case. The first two reasons given by the judge in declaring a mistrial concerned events not attributable to prosecutorial misconduct. The improper utterances of the restaurant owner were spontaneous and in no way elicited by the prosecutor. It is somewhat unclear whether the prosecution or defense first put the defendant's character in issue,[11] but since defense counsel did not object we find it somewhat incongruous for him now to claim that any error in questioning as to character constituted gross negligence.
The only significant question, therefore, is how to describe the prosecutor's introduction of questions about the flare gun incident. The most accurate characterization, we believe, and the one seemingly put forth by the trial judge, is that the improper questioning was the result of a misunderstanding.[12]
It had been decided at pretrial discussions that the alleged other rape would not be [874] mentioned in the prosecutor's opening statement and that the prosecutor would request a hearing out of the presence of the jury if subsequent events led the government to believe the evidence was admissible. The prosecutor did not in fact mention the incident in her opening statement and believed she was complying with the pretrial decision when she asked for a sidebar conference. Thinking more routine matters were at stake, the judge instructed her to continue questioning and said that he would wait for an objection before making a ruling.
The trial judge ascribed no bad motives to the prosecutor's conduct and indeed, concluded that, at most, "misjudgment" rather than "misconduct" was involved.[13] Thus, whether the standard be gross negligence, recklessness, or misconduct of a more intentional nature, any prosecutorial error in conducting the first trial did not trigger the Fifth Amendment's bar to double jeopardy.
III.
As an alternative to his double jeopardy claim, Scuito moved before the second trial for a psychiatric examination of the complainant. In a supporting affidavit, his attorney made the following specific representations:
[1] I have been informed by any number of persons in the community that the said complainant appears to be often, if not almost constantly, in a "spaced out" or trancelike state; I have personally observed this; I have been further informed by persons in the community that the said complainant is addicted to, and does continually use, controlled substances, and that she is frequently in altered states of consciousness therefrom; and I have further observed and been told of the said complainant's habit of dressing and being seen publically in seethrough top garments which seem indicative of socially aberrant behavior;[2] Further, my observation of the said complainant at the first trial herein showed, in my opinion, a rather strange and mysterious countenance on her part, and her testimony appeared strange, not only from the standpoint of her account of not reporting the alleged crimes until the next day, but particularly from her admitted interest and devotion to a certain book, written by a guru devotee of Timothy Leary which contains passages of religious-like worship of LSD and other mind-altering drugs; [and][3] That the foregoing observations are highly indicative of a personality which fantasizes to extremes and which indulges in and seeks altered states of consciousness[.]
The trial judge denied the motion because to require a psychiatric examination "would violate the spirit of [Fed.R.Evid.] 412." Scuito contends that any reliance on Rule 412 is legal error and that, by relying on the rule, the judge either abused his discretion or failed properly to exercise his discretion. It is apparent, though the defendant does not so state, that different consequences would flow from these alternative conclusions: if the judge abused his discretion to the prejudice of defendant, a new trial should be ordered; if he failed to exercise his discretion out of a mistaken belief that Rule 412 controlled the issue, we should remand so that he may consider the matter anew. We conclude that the court exercised its discretion and that it was not abused.
Defendant does not press the extreme position, espoused by Wigmore, that a psychiatric examination of a complainant should be required in all sexual offense prosecutions.[14] Rather, defendant agrees [875] with the Government that the decision to order an examination is "entrusted to the sound discretion of the trial judge in light of the particular facts." United States v. Benn, 476 F.2d 1127, 1131 (D.C. Cir. 1972) (Bazelon, C. J.); see Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (Cal.1966). But cf. United States v. Dildy, 39 F.R.D. 340, 342 (D.D.C. 1966) (courts have no power absent a statute to compel complainant to submit to psychiatric examination).
This discretion is not, of course, unbounded, for there are countervailing considerations weighing heavily against ordering a psychiatric examination of a complainant. As set out by the Court of Appeals for the District of Columbia Circuit, they are that
a psychiatric examination may seriously impinge on a witness' right to privacy; the trauma that attends the role of complainant to sex offense charges is sharply increased by the indignity of a psychiatric examination; the examination itself could serve as a tool of harassment; and the impact of all these considerations may well deter the victim of such a crime from lodging any complaint at all.
United States v. Benn, 476 F.2d at 1131. Benn, it should be noted, held that the trial judge did not abuse his discretion in declining to order the examination of an admittedly mentally defective complainant.[15]
Fed.R.Evid. 412 is specifically addressed to evidence of a rape victim's prior sexual conduct,[16] whereas defendant's motion was not an attempt to introduce such evidence, but an effort to obtain an expert opinion regarding the complainant's general ability to perceive reality and separate fact from fantasy. Because the rule does not directly apply to his motion, the defendant argues that the court either abused or did not exercise its discretion in denying the motion. The judge's ruling, however, was not based on the letter but on the spirit of Rule 412. The principal purpose of that rule is, as its legislative history demonstrates,[17] quite similar to the countervailing considerations quoted above: "to protect rape victims [876] from the degrading and embarrassing disclosure of intimate details about their private lives."[18] The rationale, according to one commentator, "is to prevent the victim, rather than the defendant, from being put on trial."[19]
We hold that in relying on the spirit of Rule 412 the trial judge exercised discretion, and that nothing alleged in defense counsel's affidavit indicates that he abused his discretion. To the extent admissible, and we express no opinion on that matter, evidence that the complainant was thought by members of the community to indulge in drugs leading to "altered states of consciousness" or to dress in a manner "indicative of socially aberrant behavior" could be introduced by direct rather than expert testimony. If, however, such matters are not relevant or otherwise admissible, there is no justification for letting them into the trial by allowing an expert to give his opinion regarding them. As to defense counsel's observations of the complainant at the first trial, we note that the trial judge as well had an opportunity to observe whether her manner or testimony was sufficiently indicative of mental disturbance to justify a psychiatric examination.
III.
The judgment of the trial court will be affirmed.
[1] The defendant was convicted under V.I. Code Ann., tit. 14, § 1701(3).
[2] A mantra has been defined as ["a] sound aid used while meditating. Each meditator has his own personal mantra which is never to be revealed to any other person." Malnak v. Yogi, 592 F.2d 197, 198 (3d Cir. 1979). When asked on cross-examination what a "mantra" is, the complainant stated:
It's something that you do to put yourself (sic) rather than worrying about all the other things that are going on outside of your own self you try to center your consciousness and like bring it to a good state of mind.
[3] That rule states:
1. Evidence of other crimes, wrongs, or acts, is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
[4] At one point the witness, obviously distraught, had blurted out, "Louie, why did you do it." Later she said, "I have known Louie for one year, I can't believe [he] would do that." Both times, the court admonished her not to volunteer such comments and instructed the jury to disregard them.
[5] The gross negligence standard for precluding retrial has been adopted by two courts of appeals. See United States v. Crouch, 566 F.2d 1311, 1318 n. 9 (5th Cir. 1978) ("We have held . . . that prosecutorial overreaching includes gross negligence."); United States v. Kessler, 530 F.2d 1246, 1256 (5th Cir. 1976) (same); United States v. Beasley, 479 F.2d 1124, 1126 (5th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 252, 38 L.Ed.2d 158 (1973); United States v. Martin, 561 F.2d 135, 139-40 (8th Cir. 1977).
[6] The standard the Government would have us adopt is stated thus: "[W]here a prosecutor engages in intentional misconduct which he or she knows has the potential for producing a mistrial and the court determines that the prosecutor was either indifferent to such an outcome or had reason to seek it, the Double Jeopardy Clause bars a retrial." Brief for Appellee at 20; see id. at 22 (retrial should not be barred unless there is good reason to believe that the court or prosecutor was "indifferent" to possibility of mistrial).
[7] Dean Prosser describes gross negligence as follows:
As it originally appeared, this was very great negligence, or the want of even scant care. It has been described as a failure to exercise even that care which a careless person would use. Several courts, however, dissatisfied with a term so nebulous, and struggling to assign some more or less definite point of reference to it, have construed gross negligence as requiring willful misconduct, or recklessness, or such utter lack of all care as will be evidence of either—sometimes on the ground that this must necessarily have been the intent of the legislature. But it is still true that most courts consider that "gross negligence" falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind. There is, in short, no generally accepted meaning; but the probability is, when the phrase is used, that it signifies more than ordinary inadvertence or inattention, but less than conscious indifference to consequences; and that it is, in other words, merely an extreme departure from the ordinary standard of care.
W. Prosser, Handbook of the Law of Torts § 34, at 183-84 (4th ed. 1971) (footnotes omitted). The Model Penal Code distinguishes between acting recklessly and acting negligently according to whether a person "consciously disregarded" or simply "should be aware of" a substantial and unjustifiable risk. Model Penal Code § 2.02, reprinted in 10 Uniform Laws Ann. at 465. No definition of gross negligence appears.
[8] United States v. DiSilvio, 520 F.2d 247, 250 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975); see United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543 (1970) (dictum). In DiSilvio, we suggested that prosecutorial misconduct must be "intentional," and not simply negligent, regardless of the level of the negligence, to bar retrial. See 520 F.2d at 250.
[9] It is unclear why the Government conceded that recklessness was sufficient to bar reprosecution, rather than arguing from the Supreme Court cases that intentional, bad faith misconduct was required. In any event, we do not find it necessary in this case to choose among the proffered standards.
[10] Intention as to result is irrelevant to both concepts. See note 6 supra. Rather, the distinguishing characteristic, to the extent one may be found, seems to be whether or not the indifference to a prescribed standard of conduct was conscious or intentional. See id.
[11] In a colloquy on the mistrial motion between defense counsel and the court, the trial judge seemed to indicate that defense counsel, Mr. Stout, first put the defendant's character at issue:
MR. STOUT: I was not the one that put this aspect of character in issue anyway. It was the questioning as I recall of Mrs. Halpern of Mr. Scuito about any homosexual relationship, about the possibility of it.
THE COURT: You started [it] in a sense [when] you asked him did he live with anyone and he said yes and you asked him male or female.
MR. STOUT: But that wasn't to show anything about homosexuality, that was to show that he was accustomed to living with a lady.
THE COURT: Exactly, which is the negative of saying he is not [sic] a homosexual.
MR. STOUT: Not for that purpose at all. It was strictly for the purpose [of showing] that he is not like some little old demented men walking around and doesn't have any source of sexual intercourse and I think it is clear that this was the reason why that evidence was put in.
On the other hand, in giving his oral decision regarding the mistrial motion, the judge stated that the complainant was "the one that put this defendant's character in issue, not the defendant. She is the one as I recall the testimony who first suggested that there was some improper relationship between the defendant and [another man] whom she described as `gay.'"
[12] The characterization as a misunderstanding is apparent in the following explanation from the bench:
Then came the question about the flare gun. It is true that counsel had asked to come to sidebar about a question and it is true that I declined to have counsel come to sidebar. I declined that several times when Mr. Stout wanted to come to sidebar also and I do that because in nine cases out of ten the sidebar conference is a waste of time.
I see my function as sitting as a Judge and not as a professor of law and nine times out of ten it is to ask the Court a question that counsel should have researched and informed himself or herself of the answer before coming to court. That flare gun question did not need a sidebar conference as I see it because I had previously ruled that before we went into any aspect, and I ruled this before the trial began, before we went into any aspect of this extrinsic wrongful act of this defendant, I would hold a hearing outside of the presence of the jury and I would hear the testimony and I will decide its relevancy and I will decide the possible prejudice before the jury heard anything about it. And if that was all counsel desired there was no need to ask for a sidebar conference. The simple thing was to say I am ready for that hearing and it would have been accorded. But nobody asked for a hearing.
[13] In the opinion denying defendant's motion to dismiss the indictment before the second trial, the court stated:
The distinction must be made between misjudgment and misconduct. If anything the former may have been present in this case. Evidence as to the latter, if present, escaped the Court's notice. Counsel on both sides it appears, committed trial error.
[14] See 3A Wigmore on Evidence § 924a, at 737 (Chadbourne rev. 1970) ("No judge should let a sex offense charge go to the jury unless the female complainant's social history and mental makeup have been examined and testified to by a qualified physician.") (italics deleted). The Wigmore position does not seem to be accepted in any jurisdiction. See Tanford & Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U.Pa.L.Rev. 544, 547 n. 11 (1980) (describing Wigmore's position as "untenable as a general rule").
[15] The trial judge in Benn declined to order a psychiatric examination, observing that corroborating evidence was present. See 476 F.2d at 1131. The Supreme Court of California has stated that a necessity authorizing the court to order the complainant to undergo such an examination "would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition on her veracity." Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal.Rptr. 302, 313, 410 P.2d 838, 849 (1966). In the case sub judice, a key element of the complainant's testimony was corroborated. She testified that the defendant held a knife to her throat, and the medical examiner reported a cut on the side of her throat where the weapon was held.
One scholar's examination of the problem led to the following recommendation:
In the face of compelling circumstances (such as lack of corroboration and reason to doubt the witness' story), a judge could properly decide to take [the] drastic tack [of ordering a psychiatric examination]. If such an interview—or some other reliable source—yields conclusions supportive of the defense's theory [that the defendant is truly disturbed, distorts reality, or is a pathological liar], the accused should clearly be permitted to prove these highly relevant facts.
Berger, Man's Trial. Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1, 68-69 (1977) (footnotes omitted).
[16] The principle portion of the Rule qualified in subsections (b)-(d), states:
Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.
[17] There was no committee report on the Privacy Protection for Rape Victims Act of 1978, which added Rule 412 to the Federal Rules of Evidence. Comments on the floor of the House by Representatives Mann, Wiggins, and Holtzman are reported at 124 Cong.Rec. H 11944-45 (Oct. 10. 1978) and reprinted in 28 U.S.C.A. Fed.R.Evid. 412 note (Supp.1979). Comments in the Senate by Senators Thurmond, Bayh and Biden are reported at 124 Cong.Rec. S 18579-81 (Oct. 12, 1978).
[18] 124 Cong.Rec. H 11945 (Oct. 10, 1978) (Rep. Mann).
[19] 2 J. Weinstein & M. Berger, Weinstein's Evidence § 412[01], at 412-9 (1979). The rule may also be seen as part of a movement toward making rape prosecutions less special and treating the rape complainant like complainants in other crimes. See Berger, supra note 15, at 97.
7.2.8.6.8.3 Olden v. Kentucky 7.2.8.6.8.3 Olden v. Kentucky
488 U.S. 227 (1988)
OLDEN
v.
KENTUCKY
No. 88-5223.
Supreme Court of United States.
Decided December 12, 1988
ON PETITION FOR WRIT OF CERTIORARI TO THE COURT OF APPEALS OF KENTUCKY
[228] PER CURIAM.
Petitioner James Olden and his friend Charlie Ray Harris, both of whom are black, were indicted for kidnaping, rape, and forcible sodomy. The victim of the alleged crimes, Starla Matthews, a young white woman, gave the following account at trial: She and a friend, Regina Patton, had driven to Princeton, Kentucky, to exchange Christmas gifts with Bill Russell, petitioner's half brother. After meeting Russell at a local car wash and exchanging presents with him, Matthews and Patton stopped in J. R.'s, a "boot-legging joint" serving a predominantly black clientele, to use the restroom. Matthews consumed several glasses of beer. As the bar became more crowded, she became increasingly nervous because she and Patton were the only white people there. When Patton refused to leave, Matthews sat at a separate table, hoping to demonstrate to her friend that she was upset. As time passed, however, Matthews lost track of Patton and became somewhat intoxicated. When petitioner told her that Patton had departed and had been in a car accident, she left the bar with petitioner and Harris to find out what had happened. She was driven in Harris' car to another location, where, threatening her with a knife, petitioner raped and sodomized her. Harris assisted by holding her arms. Later, she was driven to a dump, where two other men joined the group. There, petitioner raped her once again. At her request, the men then dropped her off in the vicinity of Bill Russell's house.
On cross-examination, petitioner's counsel focused on a number of inconsistencies in Matthews' various accounts of the alleged crime. Matthews originally told the police that she had been raped by four men. Later, she claimed that she had been raped by only petitioner and Harris. At trial, she contended that petitioner was the sole rapist. Further, while Matthews testified at trial that petitioner had threatened her with a knife, she had not previously alleged that petitioner had been armed.
[229] Russell, who also appeared as a State's witness, testified that on the evening in question he heard a noise outside his home and, when he went out to investigate, saw Matthews get out of Harris' car. Matthews immediately told Russell that she had just been raped by petitioner and Harris.
Petitioner and Harris asserted a defense of consent. According to their testimony, Matthews propositioned petitioner as he was about to leave the bar, and the two engaged in sexual acts behind the tavern. Afterwards, on Matthews' suggestion, Matthews, petitioner, and Harris left in Harris' car in search of cocaine. When they discovered that the seller was not at home, Matthews asked Harris to drive to a local dump so that she and petitioner could have sex once again. Harris complied. Later that evening, they picked up two other men, Richard Hickey and Chris Taylor, and drove to an establishment called The Alley. Harris, Taylor, and Hickey went in, leaving petitioner and Matthews in the car. When Hickey and Harris returned, the men gave Hickey a ride to a store and then dropped Matthews off, at her request, in the vicinity of Bill Russell's home.
Taylor and Hickey testified for the defense and corroborated the defendants' account of the evening. While both acknowledged that they joined the group later than the time when the alleged rape occurred, both testified that Matthews did not appear upset. Hickey further testified that Matthews had approached him earlier in the evening at J. R.'s and told him that she was looking for a black man with whom to have sex. An independent witness also appeared for the defense and testified that he had seen Matthews, Harris, and petitioner at a store called Big O's on the evening in question, that a policeman was in the store at the time, and that Matthews, who appeared alert, made no attempt to signal for assistance.
Although Matthews and Russell were both married to and living with other people at the time of the incident, they were apparently involved in an extramarital relationship. By the [230] time of trial the two were living together, having separated from their respective spouses. Petitioner's theory of the case was that Matthews concocted the rape story to protect her relationship with Russell, who would have grown suspicious upon seeing her disembark from Harris' car. In order to demonstrate Matthews' motive to lie, it was crucial, petitioner contended, that he be allowed to introduce evidence of Matthews' and Russell's current cohabitation. Over petitioner's vehement objections, the trial court nonetheless granted the prosecutor's motion in limine to keep all evidence of Matthews' and Russell's living arrangement from the jury. Moreover, when the defense attempted to cross-examine Matthews about her living arrangements, after she had claimed during direct examination that she was living with her mother, the trial court sustained the prosecutor's objection.
Based on the evidence admitted at trial, the jury acquitted Harris of being either a principal or an accomplice to any of the charged offenses. Petitioner was likewise acquitted of kidnaping and rape. However, in a somewhat puzzling turn of events, the jury convicted petitioner alone of forcible sodomy. He was sentenced to 10 years' imprisonment.
Petitioner appealed, asserting, inter alia, that the trial court's refusal to allow him to impeach Matthews' testimony by introducing evidence supporting a motive to lie deprived him of his Sixth Amendment right to confront witnesses against him. The Kentucky Court of Appeals upheld the conviction. No. 86-CR-006 (May 11, 1988). The court specifically held that evidence that Matthews and Russell were living together at the time of trial was not barred by the State's rape shield law. Ky. Rev. Stat. Ann. § 510.145 (Michie 1985). Moreover, it acknowledged that the evidence in question was relevant to petitioner's theory of the case. But it held, nonetheless, that the evidence was properly excluded as "its probative value [was] outweighed by its possibility for prejudice." App. to Pet. for Cert. A6. By way [231] of explanation, the court stated: "[T]here were the undisputed facts of race; Matthews was white and Russell was black. For the trial court to have admitted into evidence testimony that Matthews and Russell were living together at the time of the trial may have created extreme prejudice against Matthews." Judge Clayton, who dissented but did not address the evidentiary issue, would have reversed petitioner's conviction both because he believed the jury's verdicts were "manifestly inconsistent," and because he found Matthews' testimony too incredible to provide evidence sufficient to uphold the verdict. Id., at A7.
The Kentucky Court of Appeals failed to accord proper weight to petitioner's Sixth Amendment right "to be confronted with the witnesses against him." That right, incorporated in the Fourteenth Amendment and therefore available in state proceedings, Pointer v. Texas, 380 U. S. 400 (1965), includes the right to conduct reasonable cross-examination. Davis v. Alaska, 415 U. S. 308, 315-316 (1974).
In Davis v. Alaska, we observed that, subject to "the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation . . . , the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness." Id., at 316. We emphasized that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Id., at 316-317, citing Greene v. McElroy, 360 U. S. 474, 496 (1959). Recently, in Delaware v. Van Arsdall, 475 U. S. 673 (1986), we reaffirmed Davis, and held that "a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.' " 475 U. S., at 680, quoting Davis, supra, at 318.
[232] In the instant case, petitioner has consistently asserted that he and Matthews engaged in consensual sexual acts and that Matthews — out of fear of jeopardizing her relationship with Russell — lied when she told Russell she had been raped and has continued to lie since. It is plain to us that "[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had [defense counsel] been permitted to pursue his proposed line of cross-examination." Delaware v. Van Arsdall, supra, at 680.
The Kentucky Court of Appeals did not dispute, and indeed acknowledged, the relevance of the impeachment evidence. Nonetheless, without acknowledging the significance of, or even adverting to, petitioner's constitutional right to confrontation, the court held that petitioner's right to effective cross-examination was outweighed by the danger that revealing Matthews' interracial relationship would prejudice the jury against her. While a trial court may, of course, impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as "harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant," Delaware v. Van Arsdall, supra, at 679, the limitation here was beyond reason. Speculation as to the effect of jurors' racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of Matthews' testimony.
In Delaware v. Van Arsdall, supra, we held that "the constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman [v. California, 386 U. S. 18 (1967)] harmless-error analysis." Id., at 684. Thus we stated:
"The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. [233] Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Ibid.
Here, Matthews' testimony was central, indeed crucial, to the prosecution's case. Her story, which was directly contradicted by that of petitioner and Harris, was corroborated only by the largely derivative testimony of Russell, whose impartiality would also have been somewhat impugned by revelation of his relationship with Matthews. Finally, as demonstrated graphically by the jury's verdicts, which cannot be squared with the State's theory of the alleged crime, and by Judge Clayton's dissenting opinion below, the State's case against petitioner was far from overwhelming. In sum, considering the relevant Van Arsdall factors within the context of this case, we find it impossible to conclude "beyond a reasonable doubt" that the restriction on petitioner's right to confrontation was harmless.
The motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Kentucky Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE MARSHALL, dissenting.
I continue to believe that summary dispositions deprive litigants of a fair opportunity to be heard on the merits and create a significant risk that the Court is rendering an erroneous or ill-advised decision that may confuse the lower courts. See Pennsylvania v. Bruder, ante, p. 11 (MARSHALL, [234] J., dissenting); Rhodes v. Stewart, ante, p. 4 (MARSHALL, J., dissenting); Buchanan v. Stanships, Inc., 485 U. S. 265, 269 (1988) (MARSHALL, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7 (1987) (MARSHALL, J., dissenting). I therefore dissent from the Court's decision today to reverse summarily the decision below.
7.2.8.6.8.4 People v. Yates 7.2.8.6.8.4 People v. Yates
168 Misc.2d 101 (1995)
637 N.Y.S.2d 625
The People of the State of New York, Plaintiff,
v.
Richard Yates, Defendant.[1]
Supreme Court, New York County.
December 21, 1995
Robert M. Morgenthau, District Attorney of New York County, New York City (John Martin of counsel), for plaintiff. Orzick & Hupert, New York City (Eric S. Orzick of counsel), for defendant.
FELICE K. SHEA, J.
The issue presented by the People's motion for a pretrial [102] Frye[2] hearing is whether a male defendant who has been sexually assaulted can introduce expert testimony at trial regarding rape trauma syndrome without first establishing that such testimony has attained acceptance within the scientific community. The motion was made in response to defendant's notice of intention to call an expert at trial who will testify that defendant exhibited symptoms of male rape trauma syndrome[3] and that the syndrome explains why defendant failed to report a sexual assault to the police.
Defendant is charged with two counts of grand larceny in the third degree arising out of a homosexual incident between the complainant and defendant. The People allege that the incident was consensual in nature and that defendant thereafter extorted money from the complainant by threatening to expose him as a homosexual and to bring charges of "homosexual rape". Defendant contends that the complainant in fact "raped" him and that defendant's subsequent actions were lawful efforts to obtain compensation for this wrong.[4]
The People concede that New York law permits expert testimony of rape trauma syndrome without a Frye hearing. However, the People argue, assuming the truth of defendant's factual contentions, that rape trauma syndrome evidence is inadmissible without a Frye hearing because defendant was sodomized and not raped. The People argue further that there is no precedent in New York or in any other jurisdiction for accepting expert testimony of a male sexual victimization syndrome, and further, that because the victim is male, defendant's proffered testimony would be, at best, a variation on rape trauma syndrome, his reaction to sexual assault would be different from that of a female victim, and the scientific acceptance of such testimony would need to be tested. Defendant asserts that male victims of sexual assault suffer essentially the same posttraumatic stress symptoms as do female rape victims and that disparate treatment of defendant's proposed expert testimony would deny him equal protection of law.
[103] Pursuant to the Frye rule, which governs in New York State, expert testimony relating to scientific evidence is admissible at trial only if it is generally accepted as reliable by the relevant scientific community.[5] (People v Wesley, 83 N.Y.2d 417, 422-423.) However, a Frye hearing to determine acceptance in the scientific community is not needed in every case in which scientific evidence is proffered. In Matter of Lahey v Kelly (71 N.Y.2d 135, 144) the Court of Appeals affirmed convictions based on drug test results admitted at trial, finding that "[n]either expert testimony nor detailed findings by the scientific community are essential before scientific tests or procedures are recognized * * * The court may find scientific tests reliable based on the general acceptance of the procedures as shown through legal writings and judicial opinions." (Accord, People v Middleton, 54 N.Y.2d 42, 49-50 [bite mark evidence]; People v Magri, 3 N.Y.2d 562, 566 [radar]; cf., People v Jeter, 80 N.Y.2d 818, 820-821 [Frye hearing needed to determine admissibility of spectrographic voice evidence].)
In People v Taylor (75 N.Y.2d 277, 286), New York's highest Court analyzed the scientific literature on rape trauma syndrome and held that although "there is no single typical profile of a rape victim * * * the relevant scientific community has generally accepted that rape is a highly traumatic event that will in many women trigger the onset of certain identifiable symptoms." The Taylor case affirmed the propriety of admitting expert testimony concerning the syndrome at a rape trial to explain conduct of the victim after the attack. The issue here is whether the Taylor holding should be applied in a case where the victim of the sexual assault is a man. Do the case law, legal writings and scientific literature support the conclusion that the scientific community accepts a male rape trauma syndrome about which expert testimony might assist a jury?
For purposes of this motion, the court must assume that the facts are as defendant alleges and that the defendant was sexually assaulted. Penal Law § 130.35 (1) defines rape in the first degree as forcible intercourse between a man and a woman. Deviate sexual intercourse by force where a man is the victim of another man is proscribed by Penal Law § 130.50 (1) defining sodomy in the first degree. It is clear, however, that the rape statute does not define the victims who may claim to have [104] suffered rape trauma syndrome in the courts of New York. Rape trauma syndrome is "a therapeutic and not a legal concept." (People v Taylor, supra, at 287.) Although the therapeutic concept of a posttraumatic stress syndrome associated with sexual assault was developed by studying women rape victims, New York courts, relying on People v Taylor (supra) have held that other victims of sexual assault may exhibit an analogous syndrome. Female children who are the victims of rape or attempted rape may suffer from what scientists label "child sexual abuse syndrome" which, under appropriate circumstances, can be explained by expert testimony. (People v Burgess, 212 AD2d 721; People v Naranjo, 194 AD2d 747, lv denied 82 N.Y.2d 900; People v Guce, 164 AD2d 946, 950, lv denied 76 N.Y.2d 986; People v Ivory, 162 AD2d 551, 552). In People v Singh (186 AD2d 285), the terminology employed was "post-traumatic stress syndrome exhibited by victims of child sexual abuse". By approving the admission of expert testimony as to the syndrome without a Frye hearing, the appellate courts have implicitly found the syndrome generally accepted in the scientific community.
Judicial acceptance of a syndrome associated with sexual assault is not limited to cases involving rape or attempted rape. People v Taylor (supra) is authority for the recognition of a child sexual abuse syndrome where a female child was sodomized or otherwise sexually abused, but not raped. (People v Califano, 216 AD2d 574, 575, lv denied 86 N.Y.2d 791; People v Sansevero, 185 AD2d 256; People v Knupp, 179 AD2d 1030 [syndrome recognized but conviction reversed because expert testimony introduced to prove crime took place].)
Expert testimony of child sexual abuse syndrome has been accepted in cases where the victim is male as well. In People v Van Loan (179 AD2d 885), defendant was convicted of aggravated sexual abuse, sodomy in the first degree and second degree based on sexual assault of a male child. The Third Department, relying on People v Taylor (supra), approved the admission of testimony by a child therapist to explain the victim's behavior. (See also, People v Keindl, 68 N.Y.2d 410, 422; People v Mercado, 188 AD2d 941, 942 [syndrome recognized in male child victim but conviction overturned because testimony of social worker too broad].)
New York courts have not addressed the issue of the applicability of rape trauma syndrome to adult male victims of sexual assault. It would appear that the question has arisen only in Minnesota, where, on the appeal of a murder conviction, [105] the Minnesota Supreme Court held that the trial court did not err in excluding expert testimony on male sexual victimization syndrome. The trial court had held a pretrial hearing and found that the defendant's witness did not establish that the theory of male sexual victimization reached the required level of scientific acceptance. (State v Borchardt, 478 NW2d 757 [Minn 1991].)
The Minnesota case is of limited value in deciding the issue before this court. At the time of Borchardt (supra), rape trauma syndrome had not been recognized as scientifically accepted in Minnesota.[6] No review of the scientific literature was undertaken and the trial court based its ruling on the testimony of one psychologist/family therapist. The appellate court paid deference to the trial court's broad discretion to make evidentiary rulings and found that the opinion of the proposed expert would not have assisted the jury in any case. Moreover, Borchardt was decided in 1991 and the subsequent body of research since that time further diminishes its persuasive value.
A review of literature describing the effect of sexual assault on men reveals that male victims, both heterosexual and homosexual, exhibit a well-defined trauma syndrome similar to and parallel to that found in female victims of rape. No article or study has been cited by the People that suggests otherwise.
The Bureau of Justice Statistics, the statistical agency of the U. S. Department of Justice, in its National Crime Victimization Survey dated August 1995, indicates that about 500,200 rape/sexual assaults were reported by women in 1992-1993.[7] The Bureau of Justice gives the comparable figure for men as 48,500. Mezey and King, in Male Victims of Sexual Assault (at 1 [1992] [hereinafter Mezey and King, Male Victims of Sexual Assault]), estimate rape of men to be 5-10% of total rapes reported. The American Medical Association, bringing attention to an epidemic of sexual assault, recently reported that males are the victims in 5% of reported sexual assaults. (NY Times, Nov. 7, 1995, at 21, col 1.)
The statistics on male sexual assault tell only part of the story. Rape is a notoriously underreported crime and male [106] victims of sexual assault are even less likely than female victims to report their assault.[8] Not surprisingly, studies of the effects of sexual assault on men are based on relatively small numbers of victims.
Male rape trauma syndrome is described as "a common reaction in which depression, anger, guilt, fear of being homosexual, sexual malfunctioning, flashbacks, and suicidal feelings are experienced from weeks to years after assault * * * [L]ike women, male rape survivors experience a disruption in their biopsychosocial functioning." (Isely, Adult Male Sexual Assault in the Community: A Literature Review and Group Treatment Model, in Rape and Sexual Assault III, A Research Handbook 161, 165 [Burgess ed 1991].) Mezey and King (The Effects of Sexual Assault on Men: A Survey of 22 Victims, 19 Psychological Medicine 205, 207 [1989] [hereinafter Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims]) report that the male victims described major detrimental effects on their lives and exhibited an increased sense of vulnerability, anger, damaged self-image, emotional distancing, a need for security precautions, sexual dysfunction, and phobias. The authors conclude (at 205) that "[t]he immediate and long term responses [of male victims] were very similar to those described in female victims of rape." "[L]ike women, men often react to extreme personal threat with frozen helplessness * * * There were striking similarities between the reactions of male victims and those reported for women who have been sexually assaulted." (Mezey and King, Male Victims of Sexual Assault, op. cit., at 8, 10.) Goyer and Edelman (Same-Sex Rape of Nonincarcerated Men, 141 Am J Psychiatry 576 [1984]) relate that male victims of sexual assault experience "mood disturbances (e.g., fear, depression, anger), somatic disturbances (e.g., in sleep, appetite, digestion) * * * difficulties in peer relationships * * * and * * * subsequent sexual problems." (See also, Josephson, The Male Rape Victim: Evaluation and Treatment, 8 J Am Coll Emergency Physicians 14 [1979]; Cotton and Groth, Sexual Assault in Correctional Institutions: Prevention and Intervention, in Victims of Sexual Aggression, Treatment of Children, [107] Women and Men 127, 131-132 [Stuart and Greer eds 1984]; Kaufman, Rape of Men in the Community, in Victims of Sexual Aggression, Treatment of Children, Women and Men 156, 164 [Stuart and Greer eds 1984].) In all of these studies, the reactions and feelings expressed by male victims of sexual assault were found to be similar to those of females traumatized by rape.
A common characteristic of male and female rape victims is delay in reporting the crime. In one study of male victims, most men did not report the sexual assault to anyone in the immediate aftermath. (Mezey and King, Male Victims of Sexual Assault, op. cit., at 5.) A study comparing survivors of male sexual assault with Vietnam veterans found common characteristics of trauma and noted that "delayed response * * * has been observed in a significant number of male rape survivors". (Evans, Brother to Brother: Integrating Concepts of Healing Regarding Male Sexual Assault Survivors and Vietnam Veterans, 2 The Sexually Abused Male, 57, 63 [Hunter ed 1990]; see also, Groth and Burgess, Male Rape: Offenders and Victims, 137 Am J Psychiatry 806, 810 [1980].)
There are other similarities between male and female sexual assault. A number of authorities state that male sexual assault, as in the case of female rape, is an expression of anger, power, dominance and control over another. (See, e.g., Kaufman, Divasto et al., Male Rape Victims: Noninstitutionalized Assault, 137 Am J Psychiatry 221, 223 [1980]; Evans, op. cit., at 62; Rochman, op. cit., at 40; Cotton and Groth, op. cit., at 131-132; Mezey and King, Male Victims of Sexual Assault, op. cit., at 131; Groth and Burgess, op. cit., at 809.)
There are studies that comment on differences between male and female victims of sexual assault. Men are likely to be abused more violently and by multiple attackers, to sustain more serious injuries, to feel more stigmatized and, as noted supra, men are less likely to report the crime against them. (Isely, op. cit., at 164-165; Kaufman, Divasto et al., op. cit., at 223; Kaufman, op. cit., at 158.) Male victims appear to be more reluctant to report their assaults for a number of reasons. Heterosexual male victims may feel that their sexual orientation is called into question and homosexual male victims fear that their sexual preference may be revealed. There is a societal belief that a man should be able to defend against sexual assault. (Kaufman, op. cit., at 163.) Homosexuals may perceive the police to be unsympathetic. (Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims, op. cit., at 207.)
[108] Commentators have found two emotional styles of response to the trauma of sexual assault. Fifty percent of women in a well-known study reacted in a "controlled" style and were calm, composed, subdued, and withdrawn. Fifty percent were found to react in an "expressive" style — with crying, sobbing, smiling, restlessness. (Burgess and Holmstrom, Rape Trauma Syndrome, 131 Am J Psychiatry 981, 982 [1974].) By contrast, in Kaufman, Divasto et al. (op. cit., at 223), 79% of the male sample studied exhibited a "controlled" reaction. The predominance of a controlled reaction among men may reflect society's view that it is unmanly for men to express emotion.
The differences noted in the literature between male and female victims of sexual assault demonstrate that male victims tend to be more traumatized, less likely to report, and less likely to be openly emotional. Some men may question their sexual identity. (Rochman, op. cit., at 42.) These differences between the reactions of men and women do not cast doubt on the reliability of expert testimony as to male rape trauma syndrome any more than would differences in the reactions of individual female rape victims (see, People v Taylor, supra, at 286). The essential and underlying fact remains that victims of trauma "suffer predictable psychological harm" and that "traumatic syndromes have basic features in common". (Herman, Trauma and Recovery 3 [Basic Books 1992].) "Traumatic events * * * overwhelm the ordinary human adaptations to life * * * They confront human beings with the extremities of helplessness and terror, and evoke the responses of catastrophe." (Id., at 33.)
The American Psychiatric Association in its current Diagnostic and Statistical Manual of Mental Disorders (at 424 [4th ed rev 1994]) lists sexual assault as one of the extreme traumatic stressors that can result in characteristic symptoms of posttraumatic stress disorder.[9] The response to the traumatic event will involve fear, helplessness, horror, persistent reexperiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, numbing of general responsiveness and persistent symptoms of arousal. The diagnostic criteria for posttraumatic stress disorder contained in the Diagnostic and Statistical Manual were influential in persuading the Taylor Court (supra) that the scientific community "has accepted that rape as a stressor can have marked, identifiable effects on a [109] victim's behavior". (People v Taylor, supra, at 287.) The Court of Appeals went on to note that "victims of rape will often exhibit peculiar symptoms — like a fear of men — that are not commonly exhibited by victims of other sorts of trauma" (supra [citations omitted]). Nothing in the peculiar reactions of male victims of sexual assault places them outside the medical definition of posttraumatic stress disorder or diminishes the validity of the conclusion that a syndrome of male sexual victimization is accepted in the scientific community. The scientific literature amply supports the conclusion that expert testimony regarding sexual assaults against men comes within the ambit of the holding in Taylor.
Although the court need not reach the equal protection issue raised by defendant (Matter of Syquia v Board of Educ., 80 N.Y.2d 531, 535), the conclusion drawn herein is consistent with the trend away from gender-based classifications.[10] In short, legal authorities, scientific writings, constitutional doctrine and logic all favor acceptance of the principle that expert testimony concerning rape trauma syndrome as applied to male victims is scientifically reliable and may, when appropriate, be admitted to aid a jury in understanding the sequelae of sexual assault against a man. Accordingly, no Frye hearing is needed and the People's motion is denied.
[1] Name used herein is fictitious for purposes of publication.
[2] Frye v United States, 293 F 1013.
[3] A more exact description might be "male sexual assault trauma syndrome" or "male sexual victimization syndrome" since under New York law only women can be victims of rape in the first degree. (Penal Law § 130.35.)
[4] The parties disagree as to whether the evidence of male rape trauma syndrome will be applicable to one or both counts of the indictment. This issue and all questions as to the qualifications of defendant's expert as well as questions of admissibility or limitations on the proposed testimony are to be resolved at trial.
[5] Cf., Daubert v Merrell Dow Pharms., 509 US 579, which rejects the Frye requirement in Federal courts and holds that the "general acceptance rule" is superseded by the Federal Rules of Evidence.
[6] But see, Dahl v State, 1995 WL 351686 (Minn), where in 1995 a Minnesota appellate court approved the use of expert psychological testimony with regard to characteristics exhibited by child victims of sexual abuse.
[7] These figures refer to victims age 12 or older and are based on a redesigned questionnaire which captured more incidents of violence than did older methodology. (See, Schafran, Op-Ed, NY Times, Aug. 26, 1995, at 19, col 2.)
[8] Only 1 in 10 men report their sexual victimization according to a study reported in Isely, Adult Male Sexual Assault in the Community: A Literature Review and Group Treatment Model (Rape and Sexual Assault III, A Research Handbook 161 [Burgess ed 1991]). (See also, Mezey and King, The Effects of Sexual Assault on Men: A Survey of 22 Victims, 19 Psychological Medicine 205, 207 [1989]; Rochman, Silent Victims: Bringing Male Rape Out of the Closet, The Advocate: The National Gay and Lesbian News Magazine, July 30, 1991, at 38, 40.)
[9] It is noteworthy that an earlier version of the Diagnostic and Statistical Manual of Mental Disorders cited in People v Taylor (supra, at 287) listed rape as a stressor in lieu of the broader term sexual assault.
[10] See, e.g., People v Liberta, 64 N.Y.2d 152, 173, cert denied 471 US 1020 (females not exempt from criminal liability for forcible rape under Penal Law § 130.35); People v Reilly, 85 Misc 2d 702 (sodomy statute, Penal Law § 130.50, construed as gender neutral); Matter of Jessie C., 164 AD2d 731, appeal dismissed 78 N.Y.2d 907 (Penal Law § 130.20 [1] definition of sexual misconduct unconstitutionally underinclusive because directed at males only); accord, People v Dieudonne, 143 Misc 2d 559; see also, statutory rape statutes (Penal Law §§ 130.25, 130.30, made gender neutral by L 1987, ch 510, §§ 1, 2.) According to a 1995 table of statutes compiled by the National Victim Center in Arlington, Virginia, only Alabama, Georgia, Idaho, Kansas, Mississippi and New York do not have a gender neutral statute for forcible rape.
7.2.8.6.8.5 People v. Jovanovic 7.2.8.6.8.5 People v. Jovanovic
Criminal Law 2016
263 A.D.2d 182 (1999)
700 N.Y.S.2d 156
THE PEOPLE OF THE STATE OF NEW YORK, Respondent,
v.
OLIVER JOVANOVIC, Appellant.
Appellate Division of the Supreme Court of the State of New York, First Department.
December 21, 1999.
[183] Mark Dwyer of counsel (Grace Vee and David M. Cohn on the brief; Robert M. Morgenthau, District Attorney of New York County, attorney), for respondent.
Diarmuid White of counsel (Brendan White on the brief, attorney), for appellant.
[208] RUBIN and ANDRIAS, JJ., concur with SAXE, J.; MAZZARELLI, J. P., concurs in part and dissents in part in a separate opinion.
OPINION OF THE COURT
SAXE, J.
On this appeal of his conviction for kidnapping, sexual abuse and assault, defendant Oliver Jovanovic asks us to examine certain issues regarding the application of the Rape Shield Law (CPL 60.42). We conclude that the trial court's evidentiary rulings incorrectly applied the Rape Shield Law and, as a result, improperly hampered defendant's ability to present a defense, requiring reversal of his conviction and remand for a new trial.
The criminal charges arose from a date between Jovanovic and the complainant which took place after weeks of on-line conversations and e-mail correspondence. This appeal focuses on a number of statements made by the complainant in e-mails sent to Jovanovic. In these statements, she indicated an interest in participating in sadomasochism. Defendant's purpose in seeking to offer these statements in evidence was not to undermine complainant's character by demonstrating that she was unchaste. Rather, it was to highlight both the complainant's state of mind on the issue of consent, and his own state of mind regarding his own reasonable beliefs as to the complainant's intentions.
Nevertheless, the trial court concluded that these statements were inadmissible under the Rape Shield Law. Initially, we hold that a careful reading of the statute discloses it to be inapplicable to much of the evidence precluded at trial. Moreover, the preclusion of this evidence improperly interfered with defendant's right to confront witnesses. "`[C]riminal defendants [184] have * * * the right to put before a jury evidence that might influence the determination of guilt'" (Taylor v Illinois, 484 US 400, 408 [citation omitted]), and the trial court's discretion to exclude evidence must be "circumscribed by the defendant's constitutional rights to present a defense and confront his accusers" (People v Hudy, 73 NY2d 40, 57). Accordingly, we hold that a new trial is required.
The Evidence at Trial
The People's case against Jovanovic was primarily founded upon the testimony of the complainant. She told a detailed story of becoming acquainted with Jovanovic through communications over the Internet, both by e-mail and by so-called "instant messages,"[1] as well as in a number of lengthy telephone conversations.
Their first contact took place during the summer of 1996. The complainant, a Barnard undergraduate who was home for the summer in Salamanca, a small town in upstate New York, went on-line and logged onto a "chat room" called "Manhattan," hoping to find other Columbia students there. In the course of a general discussion, she received an "instant message" from Jovanovic, and embarked upon a long, "instant message" private conversation with him. Their first conversation quickly took on an intimate tone; for instance, in response to Jovanovic's information that he studied molecular genetics and computational biology at Columbia and ran a small multimedia design firm with his brother, the complainant said "I may love you, hold a sec while I check the profile." When they shortly discovered that they both spent a lot of time in a particular building at Columbia, the complainant referred to "destiny" and asked "want to have coffee?"
In this first conversation, Jovanovic indicated his interest in the grotesque, the bizarre, and the occult. He mentioned Joel-Peter Witkin, explaining that Witkin creates photographs using corpses; he mentioned Eris, the Greek goddess of discord, and a group called the "Discordians" who, he said, try to "open people's eyes." The complainant brought up her interest in snuff films (i.e., films in which a person is killed), and her thoughts of making such a film herself.
Then, on October 9, 1996, the complainant sent Jovanovic an e-mail reminding him of their previous conversation, and raised [185] again the subjects of snuff films and pagan rituals. He responded by e-mail (from Seattle) the next day, and she e-mailed back immediately. His next e-mail was on October 16, 1996, by which time he had returned to New York. She responded right away, continuing the tone of her earlier correspondence with him ("bring me anything back from Seattle?"). He did not write again until October 20, 1996. When she responded that evening, she (among other remarks) asked how tall he was.
He did not reply until November 10, 1996, when he asked "As for my height, why? Are you looking to be dismembered by a tall, dark stranger, or something of that sort? I'm sometimes strange and dark, but of average height, so perhaps you should look elsewhere. "[2] When the complainant responded that same day, she wrote of the Columbia tunnels and their appropriate ambience for a snuff film. She asked if he had any ideas for murder plots. He responded the next day, November 11, 1996, with the suggestion that a film could be made of the true story of Sharon Lopatka (a woman who was killed in October 1996, allegedly by a man whom she had just met in person after developing an on-line relationship with him).
Their exchange of e-mail between November 13, 1996 and November 14, 1996 continued discussing fantasies for snuff films, and the complainant's purported interest in what she termed "a tall dark dismember-er."
In the complainant's e-mail of November 17, 1996, just after midnight, she told about having dragged a girl she knew to the emergency room after the girl was raped the previous night. The complainant's long message ended by describing herself as distraught. Jovanovic responded shortly thereafter with his phone number and an invitation to call if she wanted. She responded with "hey * * * is this a plot to begin dismemberment," and equivocated about calling him. His e-mail replied "it's up to you, just realize that it is an option."
The next night, November 18th, the complainant's e-mail "explained" to Jovanovic her connection to the girl whom she had said was raped. The complainant told how she "fingered"[3] and then spoke to "one Luke, who was attached to one skitzophrenic [sic] stalker x-intrest [sic] d'amour." It was developed [186] in testimony that the complainant had initiated an on-line conversation with Luke on October 31, 1996, and began an inperson intimate relationship with him shortly after that, and that Luke's ex-girlfriend, Karen K., became jealous. It was this ex-girlfriend, Karen, whom the complainant brought to the hospital, following a telephone call in which Karen claimed to have been raped. Luke's trial testimony advanced his belief that when Karen telephoned the complainant and said she had been raped, she was motivated by a desire to interfere with his relationship with the complainant, whom he was supposed to meet with on the night of the phone call.
After Jovanovic sent an e-mail asking for details of the story she had told him about Karen and Luke, on the night of November 19, 1996 the complainant sent him a long e-mail in which she provided more information about the afternoon (November 1, 1996) when she had logged in and found e-mail from Luke and from Karen, whose e-mail had warned her to stay away from Luke.
The complainant's e-mail to Jovanovic on November 20, 1996 asked "So Oliver, you keep mentioning film after film, but where pray tell am I supposed to find them?" She also indicated an intense desire to know more about him, and spoke of "too many taboos surrounding the questions I want to ask." Two hours later he replied "Taboos are meant to be broken. * * * You'll simply have to ask more questions. Of course, that way lies dismemberment." Soon after that, still on November 20, 1996, she e-mailed back, "I think you may just be toying with the idea of dismemberment" and told him that she has to push herself, see how far she can take it, testing her limits. She also warned, "arms and legs are not toys" and that "It could get sick. And just may."
After more e-mails back and forth during the late night/early morning hours of November 21, 1996, at about 2:30 A.M., the complainant referred to things getting "kind of intimate," and then, at about 5:00 A.M., Jovanovic ended his message with "Should I call you, or you call me." That afternoon her e-mail message included her phone number, with the message that she would be home around 3:00 that night.
He called at about 3:00 A.M. on November 22nd, and they spoke for approximately four hours. According to the complainant's trial testimony, Jovanovic invited her to see a movie with him that night, and she gave him the address of her dormitory.
[187] The Complainant's Narrative of the Events of November 22-23, 1996
Jovanovic arrived at 8:30 P.M. on November 22, and suggested that they get something to eat. When they finished dinner at around 10:15, he said it was too late for the movie they had agreed upon, and asked if she wanted to see a video at his apartment instead. She said "I don't know"—explaining in her testimony that although she did not want to, she has trouble being assertive. Finally she agreed. He drove to three video rental outlets, but did not find what he wanted. He said he had some videos at his apartment, which was located in Washington Heights, and they proceeded to drive there, arriving at about 11:30 P.M.
Jovanovic gave her some tea, which she found to have a chemical taste, and a book of photographs by Joel-Peter Witkin, depicting corpses placed in grotesque poses. They watched a video entitled "Meet the Feebles," in which Muppet-like characters engage in sexual or violent behavior. During the movie, Jovanovic left the room and returned with some strips of fabric, which he placed next to the futon they were sitting on.
When the movie was over, she said it was getting late and she should go, but they began a conversation that ranged from the subjects of East Timor, media control of the news, and religion, to the subject of people with multiple personalities. Jovanovic told her he had another personality called the "Wise Philosopher" whom he can turn into when he encounters pain. To demonstrate, he told her to twist his wrist, which she did; she testified that he appeared to be "in" a personality that did not feel pain.
When he introduced the subject of good and evil, the complainant told him that she did not believe that evil existed. He looked stern, and in a voice she also characterized as "stern," told her to take off her sweater. He then repeated this directive in a louder voice. The complainant testified that she did not know what to do, thought it was a joke, but nevertheless removed her sweater. Then he told her to take off her pants, and she complied. He instructed her to lie down, and he tied her legs and arms to the frame of the futon, one limb to each corner; she explained that she did not protest because she did not know what to think.
Jovanovic went to the kitchen and came back with some candles, including a white candle in a glass. He sat between [188] her legs and lit the candle in the glass. At this point, the complainant testified that she protested, asking him not to burn her, telling him to untie her and demanding that he stop. However, when the glass was full of molten candle wax he dumped it on her stomach. She again protested, but he waited for the glass to fill with wax and then poured it on her stomach. Next, he pulled her panties away and dripped wax around her vaginal area, and after her bra popped open spontaneously, he poured wax on her nipples too. Then he took some ice cubes and placed them wherever he had poured the wax. She screamed and told him to stop, but his response was to ask why she was screaming, and to say that suffering was a human condition. At one point he gagged her and then blindfolded her. Next, he proceeded to bite her nipples and her collarbone.
After about an hour of this behavior, he left the apartment to move his car. When he returned, he cut the ties, picked her up and carried her to his bed. The complainant said, "don't rape me, don't dismember me, don't kill me." He replied, "is there anything else you don't want me to do?" She said, "yes, don't do anything you can get arrested for." When Jovanovic responded, "do you think I'm going to get arrested for this?" the complainant replied that he was going to have to kill her if he did not want to get arrested. He said "that's easily enough done," and pinched her nose shut and put his hand over her mouth for a minute, until she felt a bit dizzy.
Jovanovic then began to speak to the complainant about the need for women to learn self-defense, illustrating his point by noting that the only victim who was able to escape from noted murderer Jeffrey Dahmer was a person proficient in martial arts. At some point, unclear from the complainant's narrative, he hog-tied her, so she was on her stomach with her hands and feet tied together behind her back.
He next retrieved two batons from the closet, turned her on her stomach, and penetrated her rectum with either a baton or his penis, causing the complainant intense pain.
The complainant's next memory was of waking some time on Saturday, November 23, 1996, still hog-tied. Jovanovic untied her for a time and attempted to give her some instruction in self-defense. When she tried to run, he tied her up again.
Then, that evening, while Jovanovic was trying to look at her genitals, the complainant found that she was able to untie her legs, and stood up. The complainant testified that he then looked frightened. At this point, although she said he still sought to restrain her, she continued to run and to fight him [189] off, all the while putting on her pants, sweater, and boots, picking up her bra, panties and a sock, unlocking the apartment door and finally escaping.
Subsequent Events
The complainant took the subway to her dormitory at about 10:00 P.M., fell asleep, woke up, showered, and after Luke called her at 1:00 A.M., she went to Luke's apartment, where she reported to him that she had been tied up, sodomized with a stick, hit with a baton, and burned by Jovanovic. The next morning she returned to her dormitory.
On Sunday night, November 24, 1996, she logged on to the computer at her school library and retrieved an e-mail message sent by Jovanovic the night before at 10:35 P.M. In it, he said she had forgotten her gold chain when she left the apartment, and that he could mail it if she gave him her zip code, or he could drop it off. He also said, "I have a feeling the experience may not have done you as much good as I'd hoped, because you weren't acting much smarter at the end than you were at the beginning." He closed with the words, "I hope you managed to get back all right."
The complainant sent Jovanovic a long e-mail the following day, in which her remarks included assertions that she was "purged by emotions, and pain," and that she was "quite bruised mentally and physically, but never been so happy to be alive." She said "Burroughs best sums up my state * * * the taste is so overpoweringly delicious, and at the same time, quite nauseating."
They continued their on-line communications later that day.
The Redacted Statements
With the foregoing narrative by the complainant, the People were able to present to the jury a compelling story of a woman being drawn into a cyberspace intimacy that led her into the trap of a scheming man. However, its compelling quality was due in part to its one-sided and unbalanced nature. This imbalance resulted from the trial court's ruling precluding Jovanovic from effectively challenging certain aspects of the complainant's presentation. Where he should have been given free rein to explore the complainant's truthfulness, her accuracy in relating her experiences and her grip on reality, he was instead precluded from inquiring into several highly relevant statements contained in the complainant's e-mails to him.
[190] The following discussion sets forth the portions of the complainant's e-mails to defendant that were subject to the court's preclusion order.
First Redacted E-Mail
On November 17, 1996, in the complainant's e-mail to Jovanovic, she told him of "dragging" a girl to the emergency room after the girl reported that she had been raped. After further additional messages were sent back and forth between the two that same evening, on November 18, 1996, the complainant wrote to explain to Jovanovic how, over the Internet, she had first made contact with Luke, who she described as "attached to one skitzophrenic [sic] stalker x-intrest [sic] d'amour." One sentence was deleted from this e-mail. It read, "So said intrest [sic] plotted my death as well as a means of getting attention, thus the rape."
Second Redacted E-Mail
Jovanovic's e-mail of November 18, 1996 requested to hear more details, and on November 19th, the complainant sent Jovanovic a long message relating how she became involved with Luke. She told of "fingering" Luke to chat with, and how Luke's "x-intrest [sic]," Karen, was unhappy about the complainant's new friendship with Luke and sent the complainant an e-mail warning her to stay away from him. The court deleted from this e-mail the following paragraphs, quoted here word for word (with misspellings and other errors left intact).
"the boy calls, tells lots and lots of a life led like burroughs: heroin addicted, bisexual atheist. My kinda comrad. so he seduced me. come to Ufm, I did[,] come to my appartment, I did[,] then he got me.
"Oh he sighed and pulled out an agonized tale of being young in Edinborough and on a field trip for highschool ... there were `very nice boys' (according to the chaperons) who worked at the hotel, so said chaperons let luke and his teen friends hang out with the big boys for a night on the town. Unfortunately for poor luke, one took a liking to him, (this is liking with twisted glint in the eye mind you). yes yes, so young man took young boy (luke) to empty hotel room, tied him to bed, straddled his ass, knife to throat, no protection, come in all the way and make it good ... made it good. pull out laugh leave him tied and naked and lock the door behind you. Luke managed to get free, had to hand in his key to same man the next day at check out. the man smiled that sick `nordic grin' and winked.
[191] "`oh wow' I perked up all the time thinking snuff film snuff film snuff film murder plot present, I presented offer of assistance. Luke said sure, then told me more, about his old boyfriend gillian, what he taught him. and about ginger and this one dominatrix who lives on the 10th floor."
Third Redacted E-Mail
Jovanovic answered, shortly thereafter on November 19th, "[t]hen he got you? How suspenseful," although the court precluded the first four words, "[t]hen he got you?" The complainant's response, on November 20th, contained a further personal confession that the court also deleted from the evidence, in which the complainant had replied, "No duh, there's more, more interesting than sex, yes he did catch me, no sex, but he was a sadomasochist and now I'm his slave and its [sic] painful, but the fun of telling my friends `hey I'm a sadomasochist' more than outweighs the torment."
Fourth Redacted E-Mail
Jovanovic's responsive e-mail on November 20th said, "You're submissive sometimes? Should have told me earlier." The complainant's next message in reply, also on November 20th included the following critical information, which was also redacted: "and yes, I'm what those happy pain fiends at the Vault call a `pushy bottom'."[4]
While the vast majority of the electronic correspondence between Jovanovic and the complainant was introduced into evidence, the preclusion of the foregoing statements, particularly the last three, had an enormous impact on the defense. Basically, it left the jury with a distorted view of the events. Moreover, in the absence of proof that Jovanovic had reason to believe, prior to their meeting, that they both had intended to participate in consensual, nonviolent sadomasochism that night, his ability to testify in a credible manner as to this defense was irreparably impaired. Indeed, the limitation imposed by the court served to insulate the complainant from being fully cross-examined even as to those statements which were admitted into evidence, which evinced or implied some degree of interest in sadomasochism.
These messages were ruled inadmissible on the ground that they were covered by the protection of the Rape Shield Law [192] (CPL 60.42), in that they constituted evidence of the complainant's prior sexual conduct, having the effect of demonstrating her "unchastity." In addition to the messages themselves, based upon the trial court's understanding of the Rape Shield Law, Jovanovic was precluded from questioning either the complainant or Luke as to whether the two had mutually engaged in consensual sadomasochism. Although the court ultimately permitted Jovanovic to ask Luke whether he had caused the bruise Luke noticed on the complainant on November 24, 1996, the defense was not permitted to inquire further into whether Luke's own conduct toward the complainant at any prior time had caused any bruising.
For the following reasons, we conclude that the Rape Shield Law (CPL 60.42) does not support the ruling precluding Jovanovic from inquiring into the full complement of the complainant's statements to him.
The Statute
The Rape Shield Law represents a rejection of the centuriesold legal tradition holding that, as Professor Wigmore stated, "the character of a woman as to chastity is of considerable probative value in judging the likelihood of [her] consent" (1 Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 62, at 464 [3d ed 1940]). No longer does our society generally accept the premise that a woman who is "unchaste," i.e., unmarried and sexually active, is more likely than a "chaste" woman to consent to the sexual advances of any man (see, People v Williams, 81 NY2d 303, 312; Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L Rev 90, 97-102). It is because society now views such evidence as generally irrelevant that the Legislature enacted a law prohibiting the use of such evidence: the law "bar[s] harassment of victims and confusion of issues through raising matters relating to the victims' sexual conduct that have no proper bearing upon the defendant's guilt or innocence" (Preiser, Practice Commentaries, McKinneys Cons Laws of NY, Book 11A, CPL 60.42, at 9 [emphasis added]; see also, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 15-22). Thus, it is critical to the theory behind the Rape Shield Law that evidence of the victim's character for chastity is generally irrelevant to a rape prosecution.
In accordance with this premise, CPL 60.42 provides that,
[193] "Evidence of a victim's sexual conduct shall not be admissible in a prosecution for [a sex] offense or an attempt to commit [a sex] offense unless such evidence:
"1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or
"2. proves or tends to prove that the victim has been convicted of [prostitution] within three years prior to the sex offense which is the subject of the prosecution; or
"3. rebuts evidence introduced by the people of the victim's failure to engage in sexual intercourse, deviate sexual intercourse or sexual contact during a given period of time; or
"4. rebuts evidence introduced by the people which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or
"5. is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice" (emphasis added).
The importance of this statute is in no way diminished by the discussion and conclusions that follow. We fully recognize that a woman's character or reputation for chastity is irrelevant to a charge that she was sexually assaulted. Our holding is simply that the Rape Shield Law, by its terms, is inapplicable to the evidence the trial court held to be inadmissible.
Initially, we hold that the redacted e-mail messages were not subject to the Rape Shield Law because they did not constitute evidence of the sexual conduct of the complainant. Rather, they were merely evidence of statements made by the complainant about herself to Jovanovic.
The distinction between evidence of prior sexual conduct (to which the statute expressly applies), and evidence of statements concerning prior sexual conduct, is more than merely semantic. Direct evidence of a complainant's conduct with others would generally be introduced (if admissible) as a basis to infer that she had voluntarily behaved in such a way on prior occasions with others. In contrast, the use of a statement is not so straightforward. It is frequently relevant not to prove the truth of the matter stated, but rather, for the fact that the speaker made the statement. That is, a statement may be relevant as proof of the speaker's, or the listener's, state of mind.
For instance, here, the complainant's statements to Jovanovic regarding sadomasochism were not necessarily offered [194] to prove the truth of what she said, i.e. that she actually was a sadomasochist. Rather, much of their importance lay in the fact that she chose to say these things to Jovanovic in the context of her electronic, on-line conversation with him, so as to convey to him another message, namely, her interest in exploring the subject of such activities with him.
This distinction between evidence of sexual conduct and evidence of statements concerning past or contemplated sexual conduct has been recognized by other jurisdictions with similar Rape Shield Laws. For instance, in State v Guthrie (110 NC App 91, 428 SE2d 853), a letter written by the complainant to a third party, proposing sex, was held to be evidence of conversation, not of a sexual act, and therefore was not barred by that State's Rape Shield Law (see also, Commonwealth v Killen, 545 Pa 127, 133, 680 A2d 851, 854 [Rape Shield Law does not preclude evidence of sexually provocative statements made by the complainant after the alleged attack, one to a man who rode with her in the ambulance and another to the emergency room physician]; Doe v United States, 666 F2d 43 [testimony as to the content of telephone conversations between the victim and the defendant not excluded by the rule]).
In this State, although no holding has clearly drawn an absolute line of demarcation between prior sexual conduct and statements concerning prior sexual conduct, the Rape Shield Law has been held inapplicable to (1) a complainant's statement to the defendant that she "`was out to get laid that night'" (People v Hauver, 129 AD2d 889, 890), and (2) a complainant's prior claims of rape (see, People v Harris, 132 AD2d 940, 941). Additionally, People v Kellar (174 AD2d 848, 849, lv denied 78 NY2d 1128) draws the distinction between statements and conduct in discussing the circumstances under which CPL 60.42 (3) permits a defendant to rebut prosecution evidence that the victim had not engaged in sexual conduct with others. The Kellar Court explained that in the face of testimony that the victim was a virgin at the time of the incident, CPL 60.42 (3) entitles the defendant to offer evidence rebutting that showing; whereas, if the victim testified that she merely told the defendant that she was a virgin, the defendant would not be entitled to offer rebuttal evidence on that point under CPL 60.42 (see, People v Kellar, supra).
Were the complainant's statements framed as mere fantasies or secret desires, rather than as reports of her prior activities, there would have been no question that the Rape Shield Law would be inapplicable, since such statements reflect only [195] thoughts and not actions. Yet, in this context, the two types of statements are more similar than not. That her communication took the form of reports about her purported experiences should not transform a highly relevant statement into a protected one.
We therefore conclude that for all the foregoing reasons, the e-mail statements ruled inadmissible by the trial court were not covered by the Rape Shield Law. However, even assuming, arguendo, that no distinction could properly be made between prior conduct and statements about prior conduct, we would still hold that the Rape Shield Law does not support the preclusion of the e-mails at issue, because we conclude that these statements fall within a number of the exceptions set forth within the statute.
Applicability of the Statute's Exceptions
Although the Rape Shield Law is grounded upon a recognition that evidence of a victim's character for chastity is generally irrelevant to a rape prosecution, even the drafters of Rape Shield legislation recognized that information about the victim's past sexual conduct is not always irrelevant (see generally, Berger, Man's Trial, Woman's Tribulation, op. cit., at 57-69). Indeed, the inclusion of exceptions within CPL 60.42 is due to our Legislature's recognition of the possibility that certain types of sexual history evidence will be relevant. The bill was specifically drafted "to strike a reasonable balance between protection of a victim's privacy and reputation while not infringing on the defendant's right to a fair trial based on the presumption of innocence" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48). A blanket exclusion which covered clearly relevant sexual conduct evidence would unduly circumscribe a defendant's constitutional right to cross-examine witnesses and present a defense (see, People v Williams, supra, at 312). Consequently, for instance, "the bill deems proof of the victim's past sexual conduct with the accused or acts of prostitution as relevant" (Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48), and, accordingly, creates an exception for such evidence. By the same token, the "interests of justice" exception contained in subdivision (5) of the statute was included to ensure that relevant evidence not otherwise admissible could be introduced.
Turning to the redacted communications from the complainant to Jovanovic, even if the precluded statements were viewed as evidence of the complainant's prior sexual conduct, they fall [196] within several of the exceptions contained in the statute. First, given the highly intimate nature of some of this information, the statements, as a practical matter, should be viewed as the equivalent of "prior sexual conduct with the accused" (subd [1]). These statements, made to Jovanovic in the context of a relationship being developed on-line, as part and parcel of the ongoing conversation that led up to their in-person encounter, are really part of the complainant's verbal repartee with him, in which each participant tells the other of their interests and preferences. Viewed with the purpose of her statements in mind, even if the Rape Shield Law were to apply to statements, the redacted statements should therefore have been held to be admissible as falling within the first exception to the Rape Shield Law (CPL 60.42 [1]).
The exception for past conduct with the accused is included in the statute because a "history of intimacies" would "tend to bolster a claim of consent" (Berger, op. cit., at 58; see also, People v Westfall, 95 AD2d 581, 583). The statements here, especially in view of their intimate nature, have the same sort of potential of shedding light on the motive, intent, and state of mind of these two people in their subsequent encounter.
Secondly, those redacted e-mail statements that report the complainant's involvement in a sadomasochistic relationship with Luke were also admissible under CPL 60.42 (4), the exception for evidence tending to rebut the people's showing that the accused is the cause of "disease" of the victim. The People contended that Jovanovic's actions had caused various bruises on the complainant. Consequently, Jovanovic should have had the right to inquire into the complainant's statements indicating that at the time of the alleged incident she was in a masterslave relationship with someone else, particularly since she specifically stated that this conduct was "painful." Further, based upon this particular statement, the defense should also have been permitted to inquire of both the complainant and Luke as to whether Luke had caused bruising to the complainant in the days prior to the incident.
Although the wording of CPL 60.42 (4) concededly does not specifically include the word "injury," it is noteworthy that the memorandum of the bill's sponsor reflects an intent to include the concept of injury along with that of disease (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48). There is no support in the legislative history for a purposeful deletion of the word "injury," and it would be illogical to permit one defendant to introduce evidence rebutting a showing that he was [197] the cause of disease in the victim, but not permit another defendant to rebut a showing that he was the cause of the victim's injuries. No rational distinction can be made (see, People v Mikula, 84 Mich App 108, 269 NW2d 195). Indeed, in other jurisdictions it has been held that due process rights must encompass the right to offer evidence providing an alternative explanation for evidence presented by the State to prove that the accused caused a physical condition arising from the charged crime (see, e.g., United States v Begay, 937 F2d 515, 523; State v Cressey, 137 NH 402, 628 A2d 696).
Third, given the relevance of the redacted statements to the issues presented to the jury, even if none of the statute's other exceptions covered the complainant's statements to Jovanovic, the "interests of justice" exception of CPL 60.42 (5) would be applicable. That exception was included in order to give courts discretion to admit what was otherwise excludable under the statute, where it is determined that the evidence is relevant (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 48).
Even if no other exception applied, the precluded communications from the complainant to Jovanovic were highly relevant. The defense did not seek to introduce them to demonstrate the complainant's "unchastity" and thereby impugn her character or her honesty. Instead, the fact that the complainant made these statements to Jovanovic is relevant to establish that she purposefully conveyed to Jovanovic an interest in engaging in consensual sadomasochism with him.
Because the jury could have inferred from the redacted e-mail messages that the complainant had shown an interest in participating in sadomasochism with Jovanovic, this evidence is clearly central to the question of whether she consented to the charged kidnapping and sexual abuse.[5] The People emphasize that it is not whether she initially consented [198] that is relevant, but whether she withdrew her consent and whether defendant continued to act despite the withdrawal of consent. However, the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that consent was withdrawn.
Furthermore, the e-mails Jovanovic received from the complainant, particularly her statements, "now I'm his slave and its [sic] painful, but the fun of telling my friends `hey I'm a sadomasochist' more than outweighs the torment," and "yes, I'm what those happy pain fiends at the Vault call a `pushy bottom,'" could illuminate Jovanovic's understanding and beliefs as to the complainant's willingness to participate in sadomasochism with him (see, Doe v United States, 666 F2d 43, supra), and, as such, are also relevant to Jovanovic's state of mind.
The redacted e-mail messages were also highly relevant to establishing the defense that the complainant concocted her accusation in order to explain to Luke either her failure to meet him that night, or her participation in sadomasochism with another man. Moreover, direct evidence that the complainant had a sadomasochistic relationship with Luke, to which evidence the Rape Shield Law would otherwise apply, should also have been admitted, under the interests of justice exception to the statute. Even in Professor Vivian Berger's groundbreaking article, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom (77 Colum L Rev 1, 98-99), in which she discussed the need for rape shield laws, Professor Berger included among her suggested exceptions to rape shield statutes a situation where the evidence arguably showed that the complainant had a motive to fabricate the charge. Furthermore, although our Legislature did not include such an exception in this State's Rape Shield Law, the United States Supreme Court has held that in a rape/sodomy prosecution, evidence of the complainant's relationship with another man may be highly relevant to establish the defense that she lied about the consensual nature of the charged sexual activities out of [199] fear of jeopardizing that other relationship (see, Olden v Kentucky, 488 US 227).
While defendant was permitted to cross-examine the complainant and Luke so as to elicit that their relationship was "intimate," he was precluded from inquiring into the sadomasochistic nature of that connection. The ruling almost completely prevented Jovanovic from presenting the viable defense that the complainant had reason to fabricate the nonconsensual and violent elements of her story. Only through full cross-examination of the complainant, including the nature of her relationship with Luke, could defendant have "`"expose[d] to the jury the facts from which [it] could appropriately draw inferences relating to the reliability of the witness"'" (Olden v Kentucky, supra, at 231, quoting Delaware v Van Arsdall, 475 US 673, 680, quoting Davis v Alaska, 415 US 308, 318; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217). That is, only if full inquiry were permitted into her assertion that she was in a sadomasochistic relationship with Luke could the jury have a basis from which to infer that the complainant had a motive to fabricate her accusation of a forcible, violent assault, in order to avoid any negative response from Luke resulting from her voluntary participation in sadomasochism with another man.
In addition, redaction of the long narrative in the second e-mail, in which the complainant told Luke's story of a sadistic sexual encounter, was not justifiable under the Rape Shield Law, as it did not report past conduct on the part of the complainant. In any case, it was highly relevant to the attempted defense that the claim of attack was concocted, particularly in view of the similarity between that narrative and Jovanovic's complained-of conduct on the night in question.
We conclude that the trial court's rulings erroneously withheld from the jury a substantial amount of highly relevant, admissible evidence. Furthermore, these errors were of constitutional dimension.
The Sixth Amendment Right to Confront Witnesses
Cross-examination "is critical for ensuring the integrity of the fact-finding process" and is "`the principal means by which the believability of a witness and the truth of his testimony are tested'" (Kentucky v Stincer, 482 US 730, 736; Davis v Alaska, 415 US 308, 316, supra). The trial court's redaction of the complainant's statements to Jovanovic, and its consequent [200] limitation on the defense's cross-examination of the complainant regarding her interest and participation in sadomasochism and her relationship with Luke, resulted in a violation of defendant's Sixth Amendment right to confront the People's primary witness (see, Olden v Kentucky, 488 US 227, supra; see also, State v Colbath, 130 NH 316, 540 A2d 1212, 1217, supra).
Admittedly, the constitutional guarantee of the right to confront the prosecution's witnesses is not absolute, and may be circumscribed by statutory evidentiary restrictions (such as the Rape Shield Law) which serve "`the legitimate demands of the adversarial system'" (People v Williams, 81 NY2d, supra, at 313, quoting United States v Nobles, 422 US 225, 241; see also, Michigan v Lucas, 500 US 145, 149). However, no legitimate evidentiary restrictions were applicable here.
While even a proper application of the Rape Shield Law may interfere to an extent with the defendant's right to confront witnesses, it must be remembered that, generally, the evidence precluded by such laws, of other, unrelated sexual conduct by the complainant, is of little or no probative value. "To the extent that shield statutes limit the accused from unfairly attacking the morality of a rape victim, they are unobjectionable" (Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544, 589 [1980]). Where the precluded evidence is highly relevant, however, the deprivation of fundamental constitutional rights cannot be justified merely by the protection of the complainant from an attack on her chastity.
The Prejudice to the Defense
The court's erroneous preclusion of the e-mail messages and other relevant, admissible evidence from the jury's consideration was particularly egregious, in view of the People's approach in presenting the case against Jovanovic. He was depicted as a monstrous sadist, scanning the Internet for unwary victims, preying on unknowing, naive innocents. In contrast, while the People, and indeed, the complainant, both acknowledged that she had flirted with Jovanovic in her messages, trying to impress him with her wit and intelligence, the complainant was basically portrayed as naive, overly trusting, overly polite and ill-informed.
The excluded e-mail stating that the complainant and Luke had a master-slave relationship that included the infliction of pain, and the e-mail in which the complainant referred to the "pain fiends at the Vault" and to herself as a "`pushy bottom,'" [201] i.e., a masochist who pushes the dominant partner to inflict more pain than intended, would have enabled Jovanovic to provide a counterpoint to the People's portrayal of the complainant and avoid the prejudice potentially created by the unbalanced portrayal. It would also have permitted Jovanovic to effectively place the complainant in a somewhat less innocent, and possibly more realistic, light. For instance, the complainant made certain remarks in her e-mails, such as "rough is good," and "dirt I find quite erotic," for which she provided the jury with completely innocent explanations. Defendant was unable to plausibly offer alternative, more suggestive readings of such e-mail remarks, as long as the jury was unaware of the extent of the complainant's interest in sadomasochism.
Jovanovic should have been given the opportunity to inquire as to what the complainant meant by her remarks regarding her participation in sadomasochism. If, in fact, they were exaggerations, or flights of fancy, their extreme nature would be relevant to the issue of the complainant's veracity and reliability. If they were exact statements of fact, Jovanovic should have been permitted to bring to the jury's attention the possibility that the person the complainant had referred to as her "master" might have been unhappy about her experiencing sadomasochism with another "master." He should also have had the opportunity to explore the complainant's intention and purpose in disclosing to him that she was involved in such a relationship.
As the case stood, Jovanovic was precluded not only from bringing out the degree to which the complainant seemed to be inviting sadomasochism, but from exploring the possibility that the complainant was a less reliable narrator of events than she appeared to be at trial. For instance, the prosecutor was able to repeatedly ask the rhetorical question, "Why would she lie?" while the defense was unable to point to an evidentiary basis for any plausible reason, although more than one existed (e.g., her "master" might have been unhappy with her had she told him her conduct with Jovanovic was consensual; or, she made a practice of creating elaborate sexual fantasies). The prosecutor was also able to remark in summation, without any possible contradiction, that if the complainant had wanted to engage in sadomasochism, she could have said so in her e-mails.
Finally, the erroneous ruling in effect gutted Jovanovic's right to testify fully in his own defense, since it prohibited him [202] from offering the jury any evidence justifying an asserted belief that the complainant had indicated a desire to participate in sadomasochism with him.
In light of the degree to which the defense was hampered, both in demonstrating that the complainant had consented to participating in sadomasochism, and in challenging the complainant's reliability and credibility as a witness, the conviction must be reversed in its entirety. Upholding the conviction on the assault charges, as the dissent suggests, would ignore the prejudice resulting from Jovanovic's inability to adequately challenge the complainant's credibility and reliability. We are unable to conclude that the error was harmless.
Other Evidentiary Errors:
Limitation of Inquiry into Karen's Claim of Rape
At trial, the complainant testified to her part in bringing Karen to the hospital when Karen said she had been raped. The court also permitted Luke to offer his belief that Karen's claim was motivated by her desire to interfere with his relationship with the complainant. However, following a pretrial hearing at which Karen testified, Jovanovic was prevented from inquiring before the jury what the complainant knew about what had actually occurred to Karen. In particular, he was unable to inquire into her e-mail message that "said intrest [sic] plotted my death as well as a means of getting attention, thus the rape."
The court determined in its pretrial hearing that Karen had not actually made a false rape claim, but rather, had expressed uncertainty as to whether the event would fall within the definition of rape. The court therefore concluded that the complainant could not be said to have been a party to a false rape claim, and prohibited all inquiry into this e-mail message. This ruling, too, was an improper limitation of the defense.
As a result of the court's prevention of further inquiry, the jury was left with only the complainant's initial e-mail statement about Karen having been raped, including the complainant's assertion at trial that she doesn't "understand violence." Preventing Jovanovic from cross-examining the complainant regarding the meaning of the words "[Karen] plotted my death as well as a means of getting attention, thus the rape," meant he was unable to cross-examine the complainant regarding the puzzling interaction between Karen and the complainant: whether they treated each other as friends, rivals, or strangers. [203] The jury was left to arrive at the possible false conclusion that the complainant had acted as a good Samaritan and assisted an acquaintance who had been raped. While these points were not central to the elements of the charged crimes, by preventing Jovanovic from seeking to clarify the complainant's misinformation, he was unable to call into question the resultant image of the complainant as responsible, trustworthy, accurate and innocent.
The Spectator Article
In addition, the trial court erred in permitting the People to place in evidence the full text of a news article from the Columbia University campus newspaper, the Spectator, reporting the story of a woman named Sharon Lopatka, who in October 1996 was killed by a man with whom she had initiated an on-line relationship.
The foundation for the prosecutor's use of the article was Jovanovic's reference, in one of his e-mails, to a Spectator article about Sharon Lopatka, in response to the complainant's request for suggested plots for a snuff film. On the basis of that reference, the trial court permitted the prosecutor to read into the record the full text of the article in the course of the complainant's direct examination, apparently on a theory that judicial notice could properly be taken of the article. Defense counsel was not permitted any voir dire on the issue of whether this article had been the subject of an on-line conversation between the complainant and Jovanovic, or indeed what the complainant knew of the story.
Had counsel been permitted a brief voir dire, the court would have found that, as the complainant testified immediately after the article was placed in evidence, in fact she had not understood Jovanovic's reference to have been to that particular article. Consequently, there was no proper foundation for its admission into evidence. Nor was the introduction of the complete article into evidence justified by the concept of "judicial notice," which applies to the introduction of indisputable facts and matters of common knowledge (see, Prince, Richardson on Evidence § 2-201 et seq. [Farrell 11th ed]).
Moreover, its prejudicial impact was not properly considered. The article told the story of Sharon Lopatka's on-line acquaintance with a Maryland man whom she had informed of her desire to be tortured and killed, and about her ultimate death, allegedly at the hands of this man. The introduction of the full text was unnecessary, and because of its potentially inflammatory [204] effect under the circumstances, its introduction was improper, and only served to compound the prejudicial impact of the other errors.
Accordingly, the judgment of the Supreme Court, New York County (William Wetzel, J.), rendered May 29, 1998, convicting defendant, after a jury trial, of kidnapping in the first degree, sexual abuse in the first degree (three counts), assault in the second degree and assault in the third degree, and sentencing him to a term of 15 years to life on the kidnapping conviction concurrent with lesser sentences on the remaining convictions, should be reversed, on the law, and the matter remanded for a new trial.
MAZZARELLI, J. P. (concurring in part and dissenting in part).
While I agree with the majority's conclusion that a new trial is required because the trial court misapplied the Rape Shield Law when it precluded material evidence which may have affected the conviction on the kidnapping and sex abuse counts, a different perspective informs my analysis. Further, I would affirm the defendant's conviction on the assault charges.
I agree, for the reasons set forth in the majority opinion, that the introduction of the full text of the Spectator article was improper. I share the view that the erroneous admission of this evidence had an enormous prejudicial impact on the defense. With respect to the redacted e-mails, I would also find that the complainant's statements concerning her interest in sadomasochistic practices should have been admitted, because the Rape Shield Law (CPL 60.42), which is designed to preclude introduction of "[e]vidence of a victim's sexual conduct," is not meant to exclude statements of interest in sex (see, People v Kellar, 174 AD2d 848, 849, lv denied 78 NY2d 1128; People v Hauver, 129 AD2d 889, 890). Further, even were these statements to be covered by the statute, I would find that they should have been admitted under the interests of justice exception set forth in CPL 60.42 (5), because they are relevant to both the complainant's state of mind and defendant's perception of her thinking. The complainant's discussion of these topics in her electronic conversations with the defendant preceding their date was necessary to provide the jury with an accurate factual narrative.
However, I disagree with the majority that the complainant's conversations concerning sex with other individuals were improperly excluded under CPL 60.42, and I would also find that the third redacted November 20th e-mail was properly [205] redacted because it concerned a direct statement relating to the complainant's prior conduct, her sadomasochistic relationship with her boyfriend. This redaction was also appropriate because the transmission described behavior which would serve only to disparage the complaining witness's reputation.
The defense argues that the third redacted November 20th e-mail should have been admitted in its entirety pursuant to CPL 60.42 (4), to support a claim that the complaining witness's boyfriend could have been the source of her injuries. I disagree. The defense was not prevented from putting this theory before the jury as it was allowed to question the complaining witness's boyfriend himself as to whether he had inflicted any bruising upon the complainant in the days preceding the incident. This is the only bruising relevant to this case. The determination to limit inquiry to this issue was not an improvident exercise of discretion, and again comports with the purpose of the Rape Shield Law. This is especially true when viewed within the context of the main theory articulated by the defense, which is that the alleged violent acts did not take place. Based on this position, details of prior consensual, violent behavior were properly redacted from the e-mail as they would be irrelevant to the defense on the kidnapping and sexual abuse counts.
Unlike the majority, I would not find the third redacted November 20th e-mail admissible under CPL 60.42 (5), the interest of justice exception to the Rape Shield Law. Since CPL 60.42 (5) is designed to allow the introduction of material which has been deemed presumptively inadmissible, the proffered evidence merits careful scrutiny (see, Berger, Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum L Rev 1, 34). Given the complainant's right to sexual self-determination, I would find that the inflammatory nature of the evidence of her prior sexual conduct would, in the eyes of the jury, outweigh the probative value of this evidence. Presenting this information could mislead the jury to conclude that the complainant was more likely to consent to the charged sexual offenses because she had previously consented to similar, violent acts (see, People v Williams, 81 NY2d 303 [precluding evidence that complainant had formerly engaged in group sex in a gang rape prosecution]).
Further, the majority states that, "the strength of the evidence as to the extent to which the complainant initially indicated to Jovanovic an interest in participating in sadomasochism with him is relevant to a determination of whether that [206] consent was withdrawn" (emphasis in original). I strongly disagree. The encounter should be evaluated on the basis that the complainant, as any person engaging in sexual activities, had a continuing legal right to withdraw her consent to any of the actions taking place in Jovanovic's apartment. The only evidence relevant to that issue is that which relates to the events in question.
The Rape Shield Law was expressly drafted for the purpose of protecting those persons who are sexually active outside a legally sanctioned relationship. It serves the very important policy objective of removing certain impediments to the reporting of sex crimes. Specifically, the law was drafted to encourage victims of sex offenses to prosecute their attackers without fear that their own prior sexual activities, regardless of their nature, could be used against them at trial. In enacting the Rape Shield Law, the Legislature sought to prevent muddling the trial with matters relating to a victim's prior sexual conduct which have no proper bearing on the defendant's guilt or innocence, but only serve to impugn the character of the complainant and to prejudice the jury. To limit its applicability and protections as the majority holds would only serve to turn the clock back to the days when the main defense to any such charge was to malign the complainant. Here, where a victim's sexual preferences are widely disapproved, it is crucial that evidentiary determinations be made with heightened concern that a jury may act on the very prejudices that the statute seeks to exclude.
Additionally, I would affirm the defendant's convictions for second- and third-degree assault. Penal Law § 120.05 (2) provides that a person is guilty of second-degree assault when, "[w]ith intent to cause physical injury to another person, he causes such injury to such person * * * by means of a deadly weapon or a dangerous instrument," in this case by scalding the complaining witness with hot wax. Further, Penal Law § 120.00 (1) provides that a person is guilty of third-degree assault when "[w]ith intent to cause physical injury to another person, he causes such injury to such person," here by biting the complaining witness. As the majority correctly notes, neither statutory section provides for a consent defense, nor do these sections list lack of consent as an element to be proven by the prosecution (cf., Penal Law § 120.05 [5] ["without * * * consent" is an element of the offense]; Penal Law § 130.05 [consent established as a defense to various degrees of sexual abuse crimes]). While several New York cases, decided over 25 [207] years ago, have indicated that consent, if intelligently given, can be a defense to a charge of assault (People v Steinberg, 190 Misc 413, 416-417 [assault charge sustained where nurse purported to vaccinate people against smallpox but injected only water]; see also, People v Freer, 86 Misc 2d 280 [third-degree assault charge sustained in altercation between football players which took place after players got up from a pile-up]; People v Lenti, 44 Misc 2d 118 [indictment for third-degree assault after fraternity hazing was sustained since the students did not consent to physical harm]), this rule has not been crystalized in this State. Moreover, a number of cases from other jurisdictions have held that the consent defense is not available to an assault charge in the context of sadomasochistic activities (see generally, People v Samuels, 250 Cal App 2d 501, 58 Cal Rptr 439, cert denied 390 US 1024 [defendant charged with assault arising from sadomasochistic activities could not rely on consent defense]; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051 [same]; State v Collier, 372 NW2d 303 [Iowa] [same]). Given the facts of this case, I would find that the court's instruction that consent was not a valid defense to the assault charge was not error.
Further, despite the evidentiary errors which require a new trial on the kidnapping and sexual abuse counts, I would find the complaining witness's testimony was sufficient to support both of these convictions (People v Arroyo, 54 NY2d 567, cert denied 456 US 979), and, in the circumstances, hot candle wax was appropriately considered a dangerous instrument (Penal Law § 10.00 [13]). Moreover, the complainant's testimony was corroborated by a neighbor who heard sounds as if someone were "undergoing root canal" from defendant's apartment at the time in question, by the complaining witness's prompt outcries to five individuals, some of these individuals' observations of the complaining witness's injuries, the lab results as to her clothing, and the e-mails sent between the complaining witness and defendant subsequent to the incident. I find no basis to disturb the jury's determination to credit this testimony (People v Prochilo, 41 NY2d 759).
In addition to dissenting from portions of the majority opinion, I am compelled to write separately to emphasize the fundamental importance of the Rape Shield Law, which is designed to assure that a defendant is not allowed to evade responsibility for his criminal acts by impugning the reputation of a complainant.
Motion seeking leave to file an amicus curiae brief denied.
Judgment, Supreme Court, New York County, rendered May 29, 1998, reversed, on the law, and the matter remanded for a new trial. Motion seeking leave to file an amicus curiae brief denied.
[1] "Instant messages" differ from e-mail in that they are used only when both people are on line simultaneously, and the messages, when sent, appear directly on the computer screen of the recipient, rather than going to a "mailbox" for later retrieval.
[2] is used to mean "grin" in on-line shorthand.
[3] The complainant used the word "fingered" to indicate initiating an on-line conversation with a person she didn't previously know, whose user ID she obtained from a Columbia on-line ID directory.
[4] The defense explains that The Vault is a club catering to sadomasochists, and a "pushy bottom" is a submissive partner who pushes the dominant partner to inflict greater pain.
[5] There is no available defense of consent on a charge of assault under Penal Law § 120.00 (1) and § 120.05 (2) (contrast, Penal Law § 120.05[5] [where lack of consent is an element]). Indeed, while a meaningful distinction can be made between an ordinary violent beating and violence in which both parties voluntarily participate for their own sexual gratification, nevertheless, just as a person cannot consent to his or her own murder (see, People v Duffy, 79 NY2d 611), as a matter of public policy, a person cannot avoid criminal responsibility for an assault that causes injury or carries a risk of serious harm, even if the victim asked for or consented to the act (see, e.g., State v Brown, 154 NJ Super 511, 512, 381 A2d 1231, 1232; People v Samuels, 250 Cal App 2d 501, 513-514, 58 Cal Rptr 439, 447, cert denied 390 US 1024; Commonwealth v Appleby, 380 Mass 296, 402 NE2d 1051; State v Collier, 372 NW2d 303 [Iowa]). And, although it may be possible to engage in criminal assaultive behavior that does not result in physical injury (see, Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 120, at 119), we need not address here whether consent to such conduct may constitute a defense, since the jury clearly found here that the complainant was physically injured. Defendant's claim that there is a constitutional right to engage in consensual sadomasochistic activity is, at the very least, too broad, since if such conduct were to result in serious injury, the consensual nature of the activity would not justify the result.
7.2.8.6.8.6 Minter v. Com 7.2.8.6.8.6 Minter v. Com
415 S.W.3d 614 (2013)
Sotoy A. MINTER, Appellant
v.
COMMONWEALTH of Kentucky, Appellee.
No. 2012-SC-000371-MR.
Supreme Court of Kentucky.
December 19, 2013.
[616] Julia Karol Pearson, Assistant Public Advocate, Department of Public Advocacy, Counsel for Appellant.
Jack Conway, Attorney General of Kentucky, James Hays Lawson, Assistant Attorney General, Office of Criminal Appeals, Office of the Attorney General, Counsel for Appellee.
Opinion of the Court by Justice VENTERS.
Appellant, Sotoy J. Minter, appeals as a matter of right, Ky. Const. § 110, from a judgment of the Madison Circuit Court convicting him of first-degree sodomy and first-degree burglary, enhanced by the status offense of persistent felony offender (PFO) in the second-degree. For these offenses, Appellant was sentenced to thirty-five years' imprisonment.
On appeal Appellant raises the following arguments: (1) the trial court erred by denying his motion for a directed verdict on the burglary charge because the Commonwealth failed to prove the statutory element of criminal intent; (2) the trial court improperly applied KRE 412 to prohibit admission of evidence of the victim's sexual history; and (3) the trial court erred in allowing the Commonwealth to proceed to trial on the PFO charge. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
According to evidence presented at trial, Appellant attended a party at an apartment next door to the apartment of Larry Griffin and his girlfriend, Beth, who were also attending the party. Appellant, Larry, [617] and many others attending the party became intoxicated. Because of his intoxication, Larry decided to leave, so Beth asked Appellant to help her get Larry back to their apartment. Upon arriving at his apartment, Larry fell asleep and Beth returned to the party. Larry testified that the next thing he remembered was waking up with Appellant on top of him, holding him down by the shoulders. Larry testified that he was resistant and repeatedly asked Appellant to leave, but that Appellant was too strong and ultimately overpowered him, forcibly imposing upon him an act of anal intercourse. After the incident, Larry, bleeding from his rectum and in pain, contacted police and was taken to the emergency room by ambulance, where a rape kit examination was performed. DNA results from an anal swab taken from Larry were a positive match for Appellant.
Some seventeen months after the incident, Appellant was indicted and charged with first-degree sodomy, first-degree burglary, and assault in the fourth-degree.[1] Only a few months of the delay can be attributed to the DNA testing. Trial was scheduled for six months later, twenty-three months' after the event. Just one month before the first scheduled trial date, the Commonwealth procured a superseding indictment charging Appellant with the same three offenses, but adding a fourth count charging Appellant with being a persistent felony offender in the second-degree. Appellant moved to dismiss the additional count or to exclude it from the scheduled trial. The trial court denied the motion. The case proceeded to trial in February 2012, some twenty-five months after the alleged crimes occurred.
At trial, Appellant disputed Larry's version of the incident. Appellant insisted that the sexual encounter was entirely consensual. He claimed that after Beth returned to the party, Larry invited him into the apartment and invited Appellant's sexual advances. Appellant testified that Larry did not resist, but was instead a willing participant in the encounter.
At the conclusion of the trial, the jury returned a verdict convicting Appellant as set forth above. The trial court entered final judgment imposing the sentence as recommended by the jury—thirty-five years' imprisonment.
II. APPELLANT WAS NOT ENTITLED TO A DIRECTED VERDICT ON THE BURGLARY CHARGE
Appellant argues that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of first-degree burglary because the evidence presented at trial was insufficient to allow a reasonable jury to reach a guilty verdict. The standard for reviewing a motion for directed verdict is well established:
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991). On appellate review, [618] the reviewing court may only direct a verdict "if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt." Id.; see also Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983).
Appellant argues that he was entitled to a directed verdict on the burglary charge because the evidence at trial failed to establish that he had the requisite intent. KRS 511.020, which establishes the offense of first-degree burglary, requires that to be guilty of the crime, one must enter or remain unlawfully in a building "with the intent to commit a crime." Appellant contends that his own testimony asserting his belief that he had been invited into Larry's apartment for the purpose of engaging in consensual sex leaves no room for an inference by the jury that he was in the apartment with the intent to commit a crime. We disagree.
Sufficient evidence was presented at trial to support a reasonable juror's belief that Appellant met the statutory standard for first-degree burglary. This evidence included Larry's direct testimony that he did not invite Appellant into the apartment, that he repeatedly asked Appellant to leave the apartment, and that he did not consent to the sexual encounter. The physical evidence of Larry's injuries provides circumstantial evidence supporting the Commonwealth's case.
Our courts have long held that a jury is free to believe the testimony of one witness over the testimony of others. See Adams v. Commonwealth, 560 S.W.2d 825, 827 (Ky.App.1977). In ruling on Appellant's motion, the trial court was required to construe conflicting evidence in the light most favorable to the Commonwealth. Benham, 816 S.W.2d at 187. The testimony of a single witness is enough to support a conviction. See Gerlaugh v. Commonwealth, 156 S.W.3d 747, 758 (Ky.2005) (citing LaVigne v. Commonwealth, 353 S.W.2d 376, 378-79 (Ky.1962)).
Appellant's argument also fails because matters of credibility and of the weight to be given to a witness's testimony are solely within the province of the jury. The appellate courts cannot substitute their judgment on such matters for that of the jury. Brewer v. Commonwealth, 206 S.W.3d 313, 319 (Ky.2006) (citing Commonwealth v. Jones, 880 S.W.2d 544, 545 (Ky.1994)). Therefore, we may not simply reject Larry's testimony and instead choose to believe Appellant's version because "[d]etermining the proper weight to assign to conflicting evidence is a matter for the trier of fact and not an appellate court." Washington v. Commonwealth, 231 S.W.3d 762, 765 (Ky.App.2007)[2] (citing Bierman v. Klapheke, 967 S.W.2d 16, 19 (Ky.1998)).
Thus, based on the evidence as a whole, it was not unreasonable for a jury to conclude Appellant entered Larry's apartment without permission, with the intent to sodomize him, and in doing so, caused him physical injury. Accordingly, the trial court did not err in denying Appellant's motion for a directed verdict on the first-degree burglary charge.
III. THE TRIAL COURT PROPERLY EXCLUDED EVIDENCE UNDER THE RAPE SHIELD RULE, KRE 412
Next, we consider Appellant's argument that the trial court denied him the opportunity to present a complete defense by barring testimony that the victim had on other occasions engaged in homosexual activity. The trial court excluded the testimony based upon KRE 412, Kentucky's [619] "Rape Shield Law" and also because it was hearsay.
Appellant sought to introduce at trial a witness's testimony that Larry's girlfriend, Beth, had said that on multiple occasions she caught Larry engaging in sexual acts with men. The trial court refused to admit the proposed testimony because KRE 412 bars the introduction of evidence of an alleged victim's sexual activity when its only relevance is to prove the "victim's sexual predisposition" or that the "victim engaged in other sexual behavior." Appellant contends that the testimony should have been admitted to substantiate his claim that Larry falsely charged that he was raped in order to conceal the fact that he was gay and to avoid Beth's anger that he had again engaged in such sexual activity. In that context, it is clear that the proffered testimony was subject to the exclusion afforded by KRE 412. Evidence that Larry had consensually engaged in other sexual activity with men suggests nothing other than a sexual predisposition for such activity, exactly what the rule prohibits.
This general prohibition is, however, subject to certain exceptions in a criminal case. Specifically, under KRE 412(b)(1), the evidence is admissible in a criminal case:
A. To prove that a person other than the accused was the source of semen, injury, or other physical evidence;
B. To prove consent, if the evidence involves instances of sexual behavior by the alleged victim with the person accused of the sexual misconduct;
C. If the evidence pertains directly to the offense charged.
None of those exceptions apply to the evidence Appellant sought to have admitted. The testimony did not show that someone other than Appellant might have been the source of the semen found on the victim, and indeed, Appellant concedes that it was his. It was not evidence of any prior sexual behavior the alleged victim had with the Appellant, and to the contrary, Appellant never claimed that consent was based upon prior sexual experience with the alleged victim. And finally, the proposed testimony does not pertain directly to the specific offense charged beyond the prohibited purpose of showing Appellant's alleged sexual predisposition to homosexual conduct. The testimony fits within none of the exceptions to the general rule against admitting such evidence.
Appellant implies that because the victim said that he was "straight," that is, he claimed he was not predisposed toward gay sexual relations, evidence that he had voluntarily engaged in other homosexual conduct acquired a unique relevance. We disagree. There is no doubt that KRE 412 operates to shield putative victims from disclosure of prior sexual behaviors that have no relevance to the offense on trial except to cast a negative light upon the alleged victim. The purpose of the rule and the language of the rule allow for no differentiation between heterosexual behavior and homosexual behavior. Accordingly, the testimony was inadmissible under KRE 412 because it is evidence of "other sexual behavior" that is offered to cast doubt on Larry's testimony with evidence of his alleged prior sexual behavior and his alleged sexual predisposition.
Citing Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), Appellant additionally argues that the application of KRE 412 to prohibit the proffered testimony curtailed his ability to present a complete defense. We find this argument unpersuasive. Appellant's defense was that Larry consented [620] to the sexual conduct but later claimed that he was forcibly compelled to engage in the sexual act. It bears emphasis that Chambers itself makes clear that "the right to confront and to cross examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal process." 410 U.S. at 295, 93 S.Ct. 1038.
In Montgomery v. Commonwealth, 320 S.W.3d 28 (Ky.2010), we addressed a similar argument, there relating to the use of KRE 412 to bar the admission of evidence pertaining to a juvenile victim's prior sexual behavior. In that case we recognized that the exclusion of evidence of a victim's prior sexual history could, in some circumstances, unconstitutionally impinge upon a defendant's right to present a complete defense. We required a balancing of the competing interests, weighing the probative value of the proffered evidence against KRE 412's purpose of protecting the victim's privacy and eliminating unduly prejudicial character evidence from the trial. 320 S.W.3d at 42-43.
Assessing those interests as they appear in the record before us, we conclude that the trial court made the correct decision. The evidence Appellant sought to admit had only marginal relevance to proving that Larry was motivated to lie about the event. Whether Larry had in the past voluntarily engaged in similar sexual behavior with others, and whether his girlfriend knew about that alleged past behavior and was angry about it, adds little credence to Appellant's defense and its admission would totally undermine the policy implicit in KRE 412. Clearly, the line demarcated in Montgomery was not crossed by the straight-forward application of KRE 412, used merely to exclude Appellant's prior sexual conduct and his sexual predisposition.
In summary, the trial court properly applied KRE 412 under the circumstances of this case, and the trial court's ruling did not violate Appellant's constitutional right to present a full and complete defense.[3]
IV. THE TRIAL COURT DID NOT ERR IN ALLOWING THE PFO CHARGE TO PROCEED TO TRIAL
Appellant argues the trial court erred in allowing the Commonwealth to proceed to trial on the PFO charge set forth in the superseding indictment. The principal reasons which Appellant asserts for the illegality of the PFO charge is that the late and untimely presentation of that offense to the grand jury offends "fundamental conceptions of justice" and the "community's sense of fair play and decency."
We are not persuaded. The reason for the long delay in bringing the PFO charge has not been presented to this Court. While we decline to speculate among the countless reasons that might explain the delay, we fail to see that the Commonwealth attained any unfair advantage over Appellant by the long delay in bringing forth the PFO charge. More importantly, Appellant identifies no such advantage nor does he identify any specific prejudice he suffered by the timing of the PFO charge.
In Price v. Commonwealth, 666 S.W.2d 749 (Ky.1984) we interpreted the PFO statute as requiring that if the Commonwealth seeks a sentencing enhancement by proof of the defendant's PFO status, then [621] the defendant is entitled to notice of this before the trial of the underlying substantive offense. In reaching this conclusion, we stated that "[a] separate indictment meets this requirement just as does a separate count in the indictment charging the substantive offense to which it refers." Id. at 750. We further noted that "[t]he real issue ... is whether Price was substantially prejudiced by the Commonwealth's procedure of separately indicting him for first-degree robbery and as a first-degree PFO." Id. We then concluded that because Price was arraigned on the PFO charge "nearly one full month" before he proceeded to trial he had reasonable notice and was not deprived of the opportunity to defend against the charge.[4]Id. We therefore find no undue prejudice to Appellant created by the superseding indictment and no error in the trial court's refusal to dismiss or exclude the PFO charge.
V. CONCLUSION
For the foregoing reasons, the decision of the, Madison Circuit Court is affirmed.
All sitting. All concur.
[1] The fourth-degree assault charge was dismissed at trial in response to the Commonwealth's motion.
[2] Overruled on other grounds by King v. Commonwealth, 302 S.W.3d 649 (Ky.2010).
[3] Having determined the testimony is inadmissible pursuant to KRE 412, we need not address the Commonwealth's argument that the testimony was inadmissible under our hearsay rules. Appellant never addressed this alternate ground for affirming the trial court's exclusion of the proffered testimony.
[4] In connection with this argument Appellant cites to the speedy trial rules contained in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in an attempt to argue that he is entitled to relief because the Commonwealth unreasonably delayed in bringing the PFO indictment. For the reasons explained, however, we are unpersuaded that Barker has any application to the issue we address.
7.2.8.6.8.7 State v. Rorie 7.2.8.6.8.7 State v. Rorie
776 S.E.2d 338 (2015)
STATE of North Carolina
v.
Thedford Roy RORIE, Jr.
No. COA14-886.
Court of Appeals of North Carolina.
August 18, 2015.
[339] Attorney General, Roy Cooper, by Assistant Attorney General, John F. Oates, Jr., for the State.
Appellate Defender, Staples S. Hughes, by Assistant Appellate Defender, Andrew DeSimone, for defendant-appellant.
McCULLOUGH, Judge.
Thedford Roy Rorie, Jr. ("defendant") appeals from judgments entered upon his convictions for one count of rape of a child in violation of N.C. Gen.Stat. § 14-27.2A, one count of indecent liberties with a child in violation of N.C. Gen. Stat. § 14202.1, attaining habitual felon status as defined in N.C. Gen.Stat. § 14-7.1, and three counts of sexual offense with a child in violation of N.C. Gen.Stat. § 14-27.4A. For the following reasons, we grant defendant a new trial.
I. Background
Defendant was arrested by the Winston-Salem Police Department in October 2012 on charges of first degree rape and taking indecent liberties with a child. In indictments returned by Forsyth County Grand Juries on 7 January 2013, 3 June 2013, and 8 July 2013, defendant was indicted on one count of rape of a child, one count of taking indecent liberties with a child, attaining habitual felon status, and three counts of sexual offense with a child.[1] Defendant pled not guilty to all charges.
[340] Prior to the case coming on for trial, defendant filed a notice of a potential Rule 412 issue and the State filed a motion in limine to exclude any evidence of the alleged victim's, A.P.'s[2], prior sexual activity pursuant to Rule 412. These pre-trial matters were among the first issues considered after the offenses were joined and called for trial in Forsyth County Superior Court before the Honorable A. Moses Massey on 15 July 2013.
Concerning defendant's notice of a potential Rule 412 issue, defendant argued prior inconsistent statements or false allegations by A.P. against two young boys living in the same house as A.P. that were similar in nature to the allegations in the present case should be allowed into evidence to attack A.P.'s credibility. In response, the State asserted A.P.'s prior statements regarding the two boys should be excluded because the statements did not amount to false allegations, but were merely the result of a misunderstanding. Moreover, the State asserted the evidence was irrelevant to the charges against defendant. Despite the disagreement over the admissibility of the evidence, both parties acknowledged they did not necessarily believe there was a Rule 412 issue because Rule 412 concerns activity, not statements. Following an in camera review of the interview in which A.P. made the statements at issue, the trial court made a tentative ruling that the evidence was irrelevant and inadmissible. Yet, emphasizing the ruling was tentative, the trial court added that some portion of the evidence may become relevant for impeachment purposes. Lastly, the trial court noted the evidence was covered by Rule 412 and the exceptions to Rule 412 did not appear to apply. The jury was empaneled and the trial proceeded the following day.
The evidence presented at trial tended to show the following: Sometime in the spring or summer of 2011, A.P.'s mother ("Ms. Williams") allowed defendant and defendant's girlfriend ("Ms. Jones"), both of whom she was good friends with, to rent a room for themselves and Ms. Jones' baby in the four-bedroom house in which Ms. Williams, A.P., A.P.'s younger brother T.P., A.P.'s father ("Mr. Payne"), and, from time to time, others lived. A.P. was six years old at the time.
Ms. Williams testified defendant was sweet to her kids, noting that A.P. referred to defendant as "Uncle Peanut." Ms. Williams recalled that defendant and A.P. sometimes called each other boyfriend and girlfriend, but she did not think it was serious and she never observed anything that caused her to believe there was an inappropriate relationship. Although Ms. Williams indicated defendant was not a normal babysitter for her kids, Ms. Williams testified defendant was left alone with A.P., T.P., and Ms. Jones' baby one night in November 2011 while she and Ms. Jones went to play bingo. The evidence tended to show that Ms. Williams and Ms. Jones were away from the house from six or seven o'clock that evening until approximately two o'clock the next morning.
A.P. testified that while Ms. Williams and Ms. Jones were at bingo and her dad was at work, defendant "raped [her] in both parts." When asked more specifically what defendant did, A.P. testified that "[defendant] put his private in [her] private and put his private in [her] butt." A.P. then described in more detail how defendant came into her and T.P.'s bedroom while they were asleep, woke her up, raped her in both parts, let her go back to sleep, and then woke her up a second time and repeated the acts. A.P. also testified that on days prior to the night of the alleged rape, defendant put his private in her mouth. A.P. testified this happened in defendant's bedroom with the door locked while the other adults were outside or somewhere else.
A.P. did not immediately tell Ms. Williams, or anyone else, about what defendant did because she thought Ms. Williams would get angry. Various witnesses testified they did not notice a change in the interactions between defendant and A.P. following the bingo night in question in November 2011.
[341] Ms. Jones became pregnant with defendant's child during the time they lived in the house and gave birth in February 2012. Defendant and Ms. Jones moved out shortly thereafter. It was not until after defendant and Ms. Jones moved out that A.P. told others what had happened.
Soon after defendant and Ms. Jones moved out of the house in March 2012, another man ("Mr. Coles"), his girlfriend, and his girlfriend's three children, all older than A.P., moved in. Sometime thereafter in May 2012, A.P. mentioned to the kids that defendant had raped her. One of the kids then told Mr. Coles, who questioned A.P. and called Ms. Williams to inform her of A.P.'s accusations. Ms. Williams came home upon receiving the call from Mr. Coles, questioned A.P. about the allegations, and took A.P. to the emergency department of the hospital, where A.P. was examined and interviewed.
The sexual assault nurse examiner who examined A.P. reported a "5:00 hymenal notch that [she] was concerned about." The nurse testified that the notch could be consistent with a penetrating injury. The nurse, however, was not certain because the alleged rape had purportedly occurred months earlier. The evidence further revealed that on 13 December 2011, A.P. was previously taken to the emergency department at the hospital complaining of pain while urinating. At that time, the attending physician in the pediatric emergency department performed only an external vaginal examination because there was no report of sexual abuse. Upon observing no abnormalities, the physician diagnosed A.P. with vaginitis. The physician, however, testified at trial that one of the potential causes of vaginitis is sex.
Following the State's evidence, defendant took the stand in his own defense and denied all of A.P.'s allegations. Defendant's recollection of the night in November 2011 when he watched A.P. and T.P. while Ms. Williams and Ms. Jones went to bingo differed from other witnesses' recollection. Particularly noteworthy, defendant testified that Ms. William's sister was at the house the entire time and stayed with the children while he left the house on three separate occasions to deliver marijuana. Defendant also testified that his niece came to the house around eleven o'clock that night and left shortly after midnight. Defendant recalled that he went to check on A.P and T.P. several times throughout the course of the night and each time they were asleep in their bedroom.
Defendant also sought to present evidence of A.P.'s sexual knowledge by introducing evidence that he found A.P. watching a pornographic video. Specifically, on voir dire, defendant testified he caught A.P. and T.P. watching a pornographic DVD of "[a]dults naked having sex[]" one morning while the other adults in the house were still asleep. Defendant stated that he asked A.P. what she was watching and A.P. replied "[she] was trying to find cartoons." Defendant then "immediately cut it off, found them a cartoon movie, [and] put it in." Defendant testified he told Ms. Williams and Mr. Payne what he had seen when they woke up, which caused Mr. Payne to go through and remove all of the adult DVDs. Upon considering the arguments from both sides, the trial court initially overruled the State's objection to the evidence. The trial court, however, later reversed its decision and sustained the State's objection on the basis that the evidence was "irrelevant and is not admissible, particularly given the fact that in this case there is evidence consistent with sexual abuse, physical evidence consistent with sexual abuse."
On 22 July 2013, the jury returned guilty verdicts for the rape of a child, taking indecent liberties with a child, and sexual offense with a child offenses. The following day the jury returned a verdict finding the presence of an aggravating factor, defendant entered a guilty plea to attaining the status of a habitual felon, and the trial court consolidated the offenses between the two judgments for sentencing. Finding the factors in aggravation outweighed the factors in mitigation, the trial court sentenced defendant in the aggravated range to two consecutive terms of 345 to 426 months imprisonment. Furthermore, the trial court ordered defendant to register as a sex offender for life and enroll in satellite based monitoring for life upon his release from imprisonment. Defendant gave notice of appeal in open court following sentencing.
[342] II. Discussion
On appeal, defendant raises the following three issues: whether (1) the trial court erred by excluding evidence that he found A.P. watching the pornographic video; (2) the trial court erred by excluding evidence of A.P.'s prior allegations and inconsistent statements regarding sexual assaults by two boys living in the house; and (3) the trial court's cumulative evidentiary errors deprived him of a fair trial.
Evidence of Pornography
Defendant first contends the trial court erred in excluding the evidence that he found A.P. watching a pornographic video. Defendant argues the evidence was relevant and admissible to establish an alternative basis for A.P.'s sexual knowledge, from which A.P. could fabricate the allegations against defendant. Defendant contends this evidence was important to his case because absent the evidence, a jury would assume a child of A.P.'s age would not have the sexual knowledge to fabricate such allegations.
Expanding on the background, defendant's counsel recognized there was a potential issue with this evidence during the trial and requested to discuss the matter out of the presence of the jury. Following a brief bench conference, the trial court excused the jury and conducted a voir dire. After initially ruling that the defendant could testify about finding A.P. watching the pornographic video, the trial court reconsidered its decision and ruled that the evidence was irrelevant and inadmissible based on its interpretation of State v. Yearwood, 147 N.C.App. 662, 556 S.E.2d 672 (2001).
At the outset of our analysis, we note that it is not clear from the record whether the trial court excluded the evidence solely on the basis of relevance or whether the trial court considered Rule 412. Upon consideration of both on appeal, we hold the trial court erred in either instance.
"The admissibility of evidence is governed by a threshold inquiry into its relevance. In order to be relevant, the evidence must have a logical tendency to prove any fact that is of consequence in the case being litigated." State v. Griffin, 136 N.C.App. 531, 550, 525 S.E.2d 793, 806 (citation and quotation marks omitted), appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877 (2000). In a sexual abuse case, evidence regarding the victim's prior sexual behavior is severely restricted pursuant to N.C. Gen.Stat. § 8C-1, Rule 412 (2013) (the "Rape Shield Statute" or "Rule 412"), which provides the sexual behavior of the complainant, defined as "sexual activity of the complainant other than the sexual act which is at issue in the indictment on trial[,]" is irrelevant unless the behavior falls under specified exceptions. N.C. Gen.Stat. § 8C-1, Rule 412(a) and (b). Rule 412 is applicable in trials on charges of rape and sex offense, see N.C. Gen.Stat. § 8C-1, Rule 412(d), and thus clearly applies in this case involving charges of rape of a child and sexual offense with a child. Yet, there is no North Carolina case law interpreting the admission of this particular type of evidence in a child sex offense case.
The State argues A.P.'s viewing of pornography is evidence of A.P.'s sexual activity other than with defendant and, therefore, should be excluded pursuant to Rule 412. In support of its argument, the State relies on State v. Bass, 121 N.C.App. 306, 465 S.E.2d 334 (1996), and contends the trial court's consideration of Yearwood indicates the trial court analyzed the relevancy of the evidence pursuant to Rule 412. Upon review, we find the present case distinguishable from Bass and Yearwood.
The State contends Bass is "[t]he closest case in North Carolina that deals with the issue of `sexual knowledge.'" In Bass, a defendant charged with taking indecent liberties with a child and first degree statutory sexual offense sought to show the six year old complainant had the sexual knowledge to fabricate the allegations by introducing evidence "that the [complainant] had been assaulted in a similar manner some three years earlier." Bass, 121 N.C.App. at 308-09, 465 S.E.2d at 335. The trial court excluded the evidence pursuant to Rule 412 and the defendant appealed the ruling following his convictions. Id. at 309, 465 S.E.2d at 335. Although this Court granted a new trial based on an improper closing argument by the [343] prosecution, it upheld the trial court's exclusion of the evidence of prior abuse concluding "the prior abuse alleged ... [was] `sexual activity' within the ambit of Rule 412." Id. at 309-10, 465 S.E.2d at 336.
In Yearwood, relied on by the trial court, an expert in child psychology testified that the twelve year old complainant was extremely distressed and agitated when they met four days after the assault and opined that the complainant's behavior was consistent with patterns observed in a sexually assaulted victim. Yearwood, 147 N.C.App. at 664, 556 S.E.2d at 674. Yet, following voir dire in which the expert "admitted to some knowledge of alleged incidents involving [the child] and her father, where the father would allegedly strip in front of [the child] and expose her to pornographic material[,]" the trial court denied the defendant the opportunity to explore the purported sexual abuse by the child's father, which occurred four to seven years earlier. Id. at 664-65, 556 S.E.2d at 674. On appeal, the defendant argued the trial court erred because "the evidence [was] relevant to cast doubt on the credibility of [the expert]" because "this exposure may have been the cause of [the complainant's] behavior which led [the expert] to conclude that [the complainant] had been sexually assaulted." Id. at 665, 556 S.E.2d at 675. This Court rejected defendant's argument, noting the defendant "made no showing that the trial court's limitation of the cross examination of [the expert] could have improperly influenced the jury's verdict." Id. This Court further noted that "although the evidence ... was not excluded by [Rule 412], ... the trial court nevertheless did not abuse its discretion in refusing to permit defendant from introducing such evidence because there is no indication in the record that [the] evidence was relevant to [the complainant's] credibility." Id. at 667, 556 S.E.2d at 676.
We find the present case distinguishable. In both Bass and Yearwood, the evidence excluded was evidence of sexual abuse of the complainants occurring years earlier. Furthermore, this Court's holding in Yearwood was primarily based on the fact that "there was abundant evidence, even without the testimony of [the expert], that [the complainant] had been sexually assaulted." Id. at 666, 556 S.E.2d at 675. In this case, the evidence was not evidence of prior sexual abuse but evidence that A.P. was discovered watching a pornographic video, which defendant sought to introduce to explain an alternative source of A.P.'s sexual knowledge. Without the evidence suggesting an alternative source of A.P.'s sexual knowledge in this case, it is likely the jury concluded A.P.'s allegations were true because A.P. was a critical witness against defendant and there was no known basis from which she could have had the knowledge to fabricate the allegations.
Although there is no controlling case law specific to pornography evidence, we find cases from North Carolina and other jurisdictions persuasive. In State v. Guthrie, this Court granted the defendant a new trial upon holding the trial court erred in limiting cross-examination of the victim about a letter she voluntarily wrote to a school friend requesting sex. State v. Guthrie, 110 N.C.App. 91, 428 S.E.2d 853 (1993). This Court explained that the testimony regarding the sexually suggestive letter was not the type of evidence which Rule 412 seeks to exclude because the letter was not evidence of sexual activity, but evidence of language. Id. at 93, 428 S.E.2d at 854. "Therefore, [the] testimony concerning the letter [was] not deemed irrelevant by Rule 412 and was improperly excluded on that basis." Id. at 94, 428 S.E.2d at 854. More closely analogous to this case, in People v. Mason, the Illinois Appellate Court, Fourth District, held the Illinois' Rape Shield Statute, which is similar to North Carolina's, did not bar the admission of evidence that a seven year old victim had viewed sexually explicit videotapes. People v. Mason, 219 Ill.App.3d 76, 161 Ill. Dec. 705, 578 N.E.2d 1351, 1353 (1991). In so holding, the court explained:
that the rape-shield statute does not [bar the evidence] for two reasons. First, the rape-shield statute applies to "prior sexual activity" or "reputation." The viewing of pornographic videotapes by a curious seven year old does not constitute evidence of either. Second, the policies behind the rape-shield statute were the prevention of harassment and humiliation of victims and [344] the encouragement of victims to report sexual offenses. Those policies cannot justify denying a defendant the right to refute evidence which tends to establish sexual abuse took place. The right to confront and call witnesses on one's own behalf are essential to due process.
Id. (internal citation omitted).
Considering Guthrie and Mason, we now hold the evidence that A.P. was discovered watching a pornographic video, without anything more, is not evidence of sexual activity barred by the Rape Shield Statute. Although Rule 412 is applicable in trials involving charges of rape and sex offense, we do not believe it was intended to exclude this type of evidence. Moreover, this evidence was relevant to explain an alternative source of A.P.'s sexual knowledge, from which she could have fabricated the allegations.
The only way this evidence would be excluded is under a proper Rule 403 analysis. Under Rule 403, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury...." N.C. Gen.Stat. § 8C-1, Rule 403 (2013). There is no indication the trial court excluded the evidence of A.P. watching the pornographic video in this case based on Rule 403.
Additionally, we hold defendant was prejudiced by the exclusion of the evidence because A.P. was a key witness in the case against defendant and attacking her credibility was central to defendant's defense. Because it is unlikely a child A.P.'s age would have sufficient sexual knowledge to make accusations such as those in this case absent actual abuse, the evidence that A.P. was discovered watching a pornographic video was important to explain an alternative basis for A.P.'s sexual knowledge. Excluding the evidence limited defendant's defense.
Prior Inconsistent Statements
On appeal, defendant also contends the trial court erred in excluding evidence of A.P.'s prior allegations and inconsistent statements about sexual assaults committed by two young boys living in the house as irrelevant under Rule 412. Although we reverse defendant's conviction based on the first issue, we address the merits of this second argument because the issue is likely to recur.
Defendant primarily relies on the following three cases in support of his argument that the trial court erroneously excluded evidence of A.P.'s prior allegations and inconsistent statements: State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (1982), State v. Ginyard, 122 N.C.App. 25, 468 S.E.2d 525 (1996), and State v. Baron, 58 N.C.App. 150, 292 S.E.2d 741 (1982). In each of those cases, this State's appellate courts granted new trials to defendants convicted of sexual offenses because the trial courts excluded evidence of prior allegations and inconsistent statements by the alleged victims that the defendants proffered for impeachment purposes. See e.g., (Younger, 306 N.C. at 697, 295 S.E.2d at 456) (Applying a prior version of the Rape Shield Statute, the Court recognized "[w]e have repeatedly held that prior inconsistent statements made by a prosecuting witness may be used to impeach his or her testimony when such statements bear directly on issues in the case. It is our belief that the statute was not designed to shield the prosecutrix from the effects of her own inconsistent statements which cast a grave doubt on the credibility of her story.... In other words, the statute was not intended to act as a barricade against evidence which is used to prove issues common to all trials. Inconsistent statements are, without a doubt, an issue common to all trials.") (internal citations omitted). Upon review of those cases, we agree the trial court erred in this case.
As this Court has recognized,
[T]he "rape shield statute ... is only concerned with the sexual activity of the complainant. Accordingly, the rule only excludes evidence of the actual sexual history of the complainant; it does not apply to false accusations, or to language or conversations whose topic might be sexual behavior." Therefore, false accusations do not fall under the ambit of Rule 412 and are admissible if relevant.
In re K.W., 192 N.C.App. 646, 650, 666 S.E.2d 490, 494 (2008) (quoting State v. Thompson, 139 N.C.App. 299, 309, 533 [345] S.E.2d 834, 841 (2000)) (emphasis and alterations omitted). Accordingly, the trial court's determination in this case that A.P.'s prior allegations and inconsistent statements were "covered by Rule 412" was error. Although these statements involve the mention of sexual behavior, A.P.'s prior allegations and inconsistent statements are not within the purview of Rule 412 and may be admissible to attack A.P.'s credibility.
We do not, however, hold the statements necessarily should have been admitted into evidence at trial. As the Court indicated in Younger, "the relevance and probative value... must be weighed against [the] prejudicial effect." Younger, 306 N.C. at 697, 295 S.E.2d at 456. Thus, whether A.P.'s prior allegations and inconsistent statements come into the evidence at trial should be determined on retrial subject to a proper Rule 403 analysis.
Cumulative Error
In the event we held neither of the evidentiary errors standing alone was sufficient to warrant a new trial, defendant argues the cumulative effect of the errors deprived him of a fair trial. Since we reverse and remand for a new trial on both of the evidentiary issues, we need not further address the effect of cumulative error.
III. Conclusion
For the reasons discussed above, we hold the trial court erred in excluding the evidence that defendant discovered A.P. watching a pornographic video and erred in determining A.P.'s prior allegations and inconsistent statements were irrelevant under Rule 412. Thus, we grant defendant a new trial.
NEW TRIAL.
Chief Judge McGEE and Judge DIETZ concur.
[1] On 3 June 2013, a Forsyth County Grand Jury also returned a superseding indictment changing the date range of the rape of a child and the taking indecent liberties with a child offenses in the 7 January 2013 indictment.
[2] Initials are used throughout the opinion to protect the identities of minor children.
7.2.8.6.9 V.I. Campus 7.2.8.6.9 V.I. Campus
7.2.8.6.9.1 Title IX (1972) 7.2.8.6.9.1 Title IX (1972)
7.2.8.6.9.2. "Dear Harvard: You Win," Harvard Crimson (2014)
7.2.8.6.9.3. Nancy Gertner, "Sex, Lies and Justice," Am. Prospect (2015)
7.2.8.6.9.4. Alexandra Brodsky, "Fair Process, Not Criminal Process, Is the Right Way to Address Campus Sexual Assault," Am. Prospect (2015)
7.2.8.6.9.5. Janet Halley, Trading the Megaphone for the Gavel, Harv. L. Rev. (2015)
7.2.8.6.9.6. The College Sex Bureaucracy - The Chronicle of Higher Education
7.2.8.7 VI. Resulting Harm 7.2.8.7 VI. Resulting Harm
7.2.8.8 VIII. Group Criminality 7.2.8.8 VIII. Group Criminality
7.2.8.8.1 VII.A. Accomplice Liability 7.2.8.8.1 VII.A. Accomplice Liability
Most of the cases we have studied have involved only one criminal, and we have considered the culpability only of the principal actor committing the crime. In reality, however, many crimes implicate multiple people. Complicity is not actually a crime; rather, it is a theory of liability whereby a person can be criminally liable as an accomplice. In aiding a person who commits a crime, an accomplice becomes personally liable for the other person’s crime. Accomplice liability holds a person, as a result of his own actions, responsible for someone else’s actions. Increasing a person’s liability beyond the scope of his direct actions, however, risks overextending liability. Courts and legislatures often account for this by adjusting the mens rea requirement upward. How far should liability extend? To specifically intended results, to foreseeable results, or to all results that may occur? As you read these cases, note not only when courts attach accomplice liability, but also how far that liability extends.
7.2.8.8.1.1 State v. Maxey 7.2.8.8.1.1 State v. Maxey
STATE of Tennessee, Appellee,
v.
Donna MAXEY, Appellant.
Court of Criminal Appeals of Tennessee, at Nashville.
Gary Howell, Columbia, for appellant.
Charles W. Burson, Atty. Gen. and Reporter, Cecil H. Ross, Asst. Atty. Gen., Criminal Justice Div., Nashville, Mike Bottoms, Dist. Atty. Gen., Robert C. Sanders, Asst. Dist. Atty. Gen., Columbia, for appellee.
OPINION
SUMMERS, Judge.
The Circuit Court at Maury County entered a jury verdict finding Donna Maxey[1] guilty of the crime of the rape of a child pursuant to T.C.A. § 39-11-402 (1991) and T.C.A. § 39-13-522 (Supp. 1994). The court imposed a sentence of fifteen years. Pursuant to T.R.A.P. 3(b) Maxey has appealed and presents the following issues:
(1) Is the evidence sufficient to support the jury's verdict?(2) Were the trial court's jury instructions erroneous?(3) Did the court err in refusing to find Maxey an especially mitigated offender?
For the reasons stated herein, we reverse the jury verdict and dismiss the charge against Maxey.
In a separate case, Todd Hampton pled guilty to simple rape of the victim in this appeal, a twelve year old female. The state indicted Maxey, the victim's former aunt, charging her with rape of a child, contending that she was responsible for Hampton's crime. The jury convicted Maxey and she has appealed, arguing that the evidence is [757] insufficient to support a finding that she intended that Hampton rape the victim.
The facts basic to this appeal are undisputed. On the evening of the offense, the victim's mother reluctantly gave the victim permission to spend the night with Maxey at Maxey's stepfather's house. Maxey and the victim went to Maxey's stepfather's house for approximately twenty minutes and then went to Maxey's sister's trailer. Todd Hampton, twenty years old, and Dale Adcock, Maxey's nephew, were at the trailer. Maxey brought a half gallon of whiskey into the trailer and Hampton, Adcock, Maxey, and the victim began drinking. After two or three drinks, the victim became drunk and got sick. Maxey and apparently Hampton and Adcock drove the victim around the block in an attempt to sober her up by exposing her to fresh air. In a further attempt to sober up the victim, they placed her in a cold shower. After borrowing some clothes from Hampton, the victim went into the back bedroom of the trailer and went to sleep. Maxey and Adcock apparently continued drinking in the living room. The victim testified that when she woke up, Hampton was having sexual intercourse with her. The victim further testified that she told Hampton to get off of her and he did. Hampton testified that he went to the bedroom first, that the victim followed him into the bedroom; and they had consensual sexual relations. Hampton entered into a plea agreement with the state wherein he pled guilty to simple rape and testified at the trial of Maxey.
T.C.A. § 39-11-402 reads in pertinent part:
A person is criminally responsible for an offense committed by another if:(2) Acting with intent to promote or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to aid another person to commit the offense; or(3) Having a duty imposed by law or voluntarily undertaken to prevent commission of the offense and acting with intent to benefit in the proceeds or results of the offense, or to promote or assist its commission, the person fails to make a reasonable effort to prevent commission of the offense.
On appeal, Maxey contends that there is insufficient evidence to support the jury's verdict that she "intended" that Hampton rape the victim. T.C.A. § 39-11-402(2) requires proof of intent to promote or assist the commission of the offense. Subsection (3) requires intent to benefit in the proceeds or results of the offense or intent to promote or assist the commission of the offense. T.C.A. § 39-11-302(a) (1991) states that a person acts intentionally with respect to the nature of conduct or to a result of conduct when it is a person's conscious objective or desire to engage in the conduct or cause the result. The Sentencing Commission Comments to this definition explain that "[i]ntentional conduct or an intentional result occurs when the defendant wants to do the act or achieve the criminal objective. A defendant acts knowingly, on the other hand, when he or she is aware of the conduct or is practically certain that the conduct will cause the result, irrespective of his or her desire that the conduct or result will occur." The plain terms of T.C.A. § 39-11-402(2), (3) indicate that proof of negligence or recklessness does not suffice to make a person criminally liable. The intent required by these subsections is demanding. It is necessary that the defendant "in some way associate himself with the venture, act with knowledge that an offense is to be committed, and share in the criminal intent of the principal in the first degree." Hembree v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976). The defendant must "knowingly, voluntarily and with common intent unite with the principal offenders in the commission of the crime." State v. Foster, 755 S.W.2d 846, 848 (Tenn. Crim. App. 1988).
When the sufficiency of the evidence is challenged, the relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Our review of the record reveals the following evidence on the intent issue. Maxey provided the victim with alcohol and placed her in the situation where she [758] was raped. Maxey attempted on two occasions to sober up the victim. When the victim told Hampton that she was sixteen, Maxey indicated to the contrary to Hampton by smiling and shaking her head negatively. Maxey told Hampton that the victim liked him. After the victim went to the bedroom, Maxey asked Adcock to go into the back bedroom and check on the victim. Adcock testified that he returned and told Maxey that the victim and Hampton were having sex. There is no evidence that Maxey took any action at this time. This being the extent of the evidence, we conclude that it is insufficient to establish that Maxey intended that Hampton rape the victim.
The state concedes that no Tennessee court has ever held that a person who merely exposes another to an unreasonable risk of criminal attack by a third party has intended that attack. The state further concedes that a review of the record indicates that there was virtually no evidence having any tendency to show that Maxey knew that Hampton intended to rape the victim and that there was no evidence that could support a reasonable jury verdict in finding beyond a reasonable doubt that she intended such a result. Accordingly, we reverse the jury verdict and dismiss the charge against Maxey.
In light of our resolution of the first issue on appeal, it is unnecessary that we address the remaining two issues. We feel compelled, however, to comment on a portion of the trial court's jury instructions which is as follows:
As heretofore stated, the defendant is charged in the indictment with the offense of rape of a child. Any person who commits the offense of a rape of a child is guilty of a felony. For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements. (1) that Larry Todd Hampton had unlawful sexual penetration of the alleged victim or the alleged victim had unlawful sexual penetration of Larry Todd Hampton, and (2) that the alleged victim was less than thirteen years of age, and (3) that the defendant acted intentionally, knowingly, or recklessly.
On appeal, Maxey argues that the use of the word "recklessly" in the third portion of the instructions impermissibly misled the jury as to the mens rea necessary for conviction under T.C.A. § 39-11-402 authorizing criminal liability for the conduct of another. We agree. As we discussed supra, this statute requires a mens rea of intent. Evidence of a mens rea of recklessness is insufficient to support a conviction under this statute. A preferable instruction in these circumstances would have provided as follows: (3) that the defendant acted with the necessary intent to be criminally responsible for the offense committed by another.
Reversed and dismissed. Costs assessed to the state.
WADE and WELLES, JJ., concur.
[1] The defendant's name in the indictment appears as Maxie. Everywhere else in the record, it appears as Maxey.
7.2.8.8.1.2 State v. Gonzalez 7.2.8.8.1.2 State v. Gonzalez
STATE of Connecticut
v.
Jason GONZALEZ.
Appellate Court of Connecticut.
[342] Glenn W. Falk, special public defender, for the appellant (defendant).
John A. East III, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Richard Colangelo, senior assistant state's attorney, for the appellee (state).
DiPENTIMA, C.J., and ALVORD and WEST, Js.
DiPENTIMA, C.J.
The defendant, Jason Gonzalez, appeals from the judgment of conviction,[1] rendered after a jury trial, of manslaughter in the first degree with a firearm as an accessory in violation of General Statutes §§ 53a-8[2] and 53a-55a.[3] On appeal, the defendant claims that the evidence at trial was insufficient to support [343] the jury's verdict.[4] Specifically, the defendant argues that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal.[5] We reverse in part the judgment of the trial court.
Only two witnesses who were at the scene testified at trial. First, Kenny Jackson testified that on the evening of December 25, 2007, he was celebrating Christmas with friends in a third floor apartment located in Building 13 of the Roodner Court housing complex in Norwalk. Jackson and his friends were drinking alcohol, and at approximately 9 or 10 p.m., he went down to the first floor of the building to purchase marijuana and crack cocaine. When Jackson arrived downstairs, he encountered Donald Wilson, the defendant and some women. Jackson testified that he asked the men, "[w]ho's straight?" meaning that he was looking to purchase drugs. Wilson told Jackson that he had drugs to sell. Wilson and Jackson went upstairs to the second floor of the building to conduct the transaction.
On the second floor, the victim was also celebrating Christmas with his family in his mother's apartment. After learning about the drug transaction going on in the hallway, the victim came out of the apartment into the hallway. Jackson testified that the victim then gave Jackson and Wilson a look signifying his disapproval of the transaction. Jackson and Wilson returned downstairs to the first floor. The victim followed them downstairs and gave them another disapproving look. Jackson told Wilson that they should wait until the victim left before conducting the transaction.
Jackson then testified that the victim then began walking toward the front door of the building, followed by Jackson and Wilson. The defendant was in the hallway near the front of the building. As the victim walked out of the building, the defendant said "Merry Christmas." When the victim did not respond, the defendant called him an "asshole." The victim reentered the building and asked the defendant what he had said to him. In an attempt to calm the situation, Jackson told the victim, "[the defendant] didn't say anything to you." The defendant then pulled out a gun and said, "Yeah, I didn't say anything. I didn't say anything to you." The victim grabbed the gun, and he and the defendant began to struggle for control of the weapon. Jackson fled the scene.
The second witness was Frederick Paulk, the victim's brother (Paulk), who testified that he heard gunshots a couple minutes after the victim left the second floor apartment. Paulk exited the apartment and looked over the balcony, where he observed the victim and the defendant struggling. Paulk saw a woman holding the defendant around the waist and telling him to stop. Then, Paulk observed Wilson pointing a gun at the victim. Paulk told Wilson to stop, saying, "[d]on't do it." The defendant and the victim broke loose from each other and the victim fell against a wall. Paulk saw Wilson shoot the victim and then back out of the building, using the defendant as a shield. Paulk did not observe anyone other than Wilson with a [344] gun. Finally, Gerard Petillo, a forensic science examiner, testified that he was unable to determine whether the bullets recovered from the victim's body and from the crime scene were fired from the same firearm. He also testified, however, that one Glock semiautomatic firearm fired the shell casings that were recovered from the scene.
The defendant was arrested and, following a jury trial, he was convicted of manslaughter in the first degree with a firearm as an accessory in violation of §§ 53a-8 and 53a-55a. The court sentenced the defendant for his conviction of criminal possession of a firearm to five years to serve, two years of which was the mandatory minimum. The court sentenced the defendant for his conviction of carrying a pistol without a permit to five years to serve, one year of which was the mandatory minimum. The sentences for the conviction of criminal possession of a firearm and carrying a pistol without a permit were to run consecutively with each other, but concurrently with the manslaughter conviction. The court sentenced the defendant for the manslaughter conviction to a term of forty years to serve, five years of which was the mandatory minimum. Finally, the court imposed a sentence enhancement of five years for the commission of an A, B or C felony with a firearm in violation of General Statutes § 53-202k, which was to run consecutively to the previously imposed sentences. Thus, the court imposed a total effective sentence of forty-five years to serve, ten years of which was the mandatory minimum. This appeal followed.
The defendant claims that the evidence at trial was insufficient to support the jury's verdict of guilty of manslaughter in the first degree with a firearm as an accessory. We agree.
"We begin by setting forth the appropriate standard of review. Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury's verdict of guilty....
"While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt.... If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt....
"[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [t]he only kind of inference recognized by the law is a reasonable one ... any such inference cannot be based on possibilities, surmise or conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded [345] upon the evidence.... However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment." (Citations omitted; internal quotation marks omitted.) State v. Billie, 123 Conn.App. 690, 695-96, 2 A.3d 1034 (2010).
In order to prove that a defendant is guilty of manslaughter in the first degree with a firearm as an accessory under §§ 53a-8 and 53a-55a, "the state must prove that the defendant, acting with the intent to cause serious physical injury to another person, intentionally aided a principal offender in causing the death of such person or of a third person, and that the principal, in committing the act, used, carried, or threatened to use a firearm." (Emphasis added.) State v. Gonzalez, 300 Conn. 490, 496, 15 A.3d 1049 (2011). "To be guilty as an accessory, one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it.... Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there." (Citation omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn.App. 511, 517, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).
"Since under our law both principals and accessories are treated as principals... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the [conviction] must stand....
"To justify a conviction as an accessory, the state must prove both that the defendant had the intent to aid the principal and that, in so aiding, he had the intent to commit the crime.... Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the [principal] must be distinguished from the criminal intent and community of unlawful purpose by one who knowingly and willingly assists the perpetrator of the offense in the acts which prepare for, facilitate, or consummate it." (Citation omitted; internal quotation marks omitted.) State v. Conde, 67 Conn.App. 474, 484, 787 A.2d 571 (2001), cert. denied, 259 Conn. 927, 793 A.2d 251 (2002).
Here, there was insufficient evidence to prove beyond a reasonable doubt that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson, the principal, in committing manslaughter in the first degree with a firearm. The state argues that the defendant was properly convicted upon sufficient evidence, both direct and circumstantial, and from the "intricate chain of eminently reasonable and logical inferences flowing from the evidence." We [346] disagree. The record is devoid of any evidence that the defendant solicited, requested, commanded, importuned or intentionally aided Wilson in the commission of the crime of manslaughter. Moreover, there were no facts before the jury from which it reasonably could have inferred that the defendant engaged in such conduct. The testimony adduced at trial indicated that the defendant pointed a gun at the victim, and the two then began struggling for the weapon. The record contains no evidence, however, as to how the gun came into Wilson's possession, nor any evidence of any conduct by the defendant which reasonably could be interpreted as assisting Wilson.
The state argues that Wilson and the defendant were associated in the drug trade, that the victim was interfering with a drug transaction and that the defendant aided Wilson in shooting the victim by "providing the weapon and introducing it into the situation." First, the only circumstantial evidence suggesting that the defendant was associated in the drug trade with Wilson was that they were together when Wilson told Jackson that he would sell him drugs and that the defendant possessed a gun and pointed it at the victim. The state cites cases reciting the well established correlation between drug dealing and firearms. See, e.g., State v. Cooper, 227 Conn. 417, 426 n. 5, 630 A.2d 1043 (1993). We note, however, that this court has stated that in Cooper and cases like it, guns, or testimony about the presence of guns, were properly admitted into evidence because the evidence was "relevant and material for reasons other than a well established correlation between drug dealing and firearms." (Emphasis added; internal quotation marks omitted.) State v. Mozell, 36 Conn.App. 672, 676, 652 A.2d 1060 (1995); see id., at 677-78, 652 A.2d 1060 (court improperly admitted gun into evidence in absence of any evidence tying gun to alleged conspiracy, but admission was harmless).
Moreover, the defendant's presence near Wilson at the time Jackson inquired about purchasing drugs is insufficient to establish his involvement in the transaction. See, e.g., State v. Fair, 118 Conn.App. 357, 362, 983 A.2d 63 (2009) (defendant's mere presence not enough to support inference of dominion or control for conviction of illegal possession of narcotics, but where other pieces of evidence tie defendant to dominion and control, finder of fact may consider presence and draw inferences from that presence and other circumstances linking defendant to crime); State v. Madison, 116 Conn.App. 327, 336, 976 A.2d 15, cert. denied, 293 Conn. 929, 980 A.2d 916 (2009) (presence in high crime area alone insufficient to establish reasonable and articulable suspicion for purposes of fourth amendment); State v. Rodriguez, 11 Conn.App. 140, 149, 525 A.2d 1384 (1987) (mere fact, without more, that person is associating with or in presence of others who are suspected of criminal activity does not establish probable cause to arrest or search that person).
Although the defendant brandished a gun at the victim, the evidence suggests that this event occurred independently of the drug transaction. There was no evidence that the defendant participated at all in the drug transaction. Jackson testified that the defendant said "Merry Christmas" and the victim did not respond, which angered the defendant, prompting him to call the victim an "asshole." This exchange, in turn, led to the altercation between the defendant and the victim. The evidence suggests that the defendant and Wilson were associated with each other on the night of the shooting, but there is no evidence inviting a reasonable inference that this association was related to the drug trade. State v. Green, 261 Conn. 653, 672-73, [347] 804 A.2d 810 (2002) (evidence insufficient to convict defendant of conspiracy to commit murder where only evidence that could support inference of conspiracy was that defendant and confederates were friends, defendant may have had dispute with victim and defendant and confederates simultaneously shot at victim). Thus, in the absence of any evidence tying the defendant to the drug transaction, we cannot conclude that the evidence was sufficient for the jury to infer that the defendant was associated in the drug trade with Wilson.
Second, the evidence does not support a reasonable inference that the defendant aided Wilson merely by introducing the weapon into the situation. Although the state cites State v. Turner, 252 Conn. 714, 751 A.2d 372 (2000), in support of this argument, that case is inapposite. In Turner, our Supreme Court concluded that there was sufficient evidence to establish that the defendant had the requisite intent to kill the victim, as required for a conviction of murder as an accessory. Id., at 747, 751 A.2d 372. Our Supreme Court stated that the jury reasonably could have found that the defendant aided the principal because on the night of the shooting, the defendant began "dancing around'" on the street corner opposite from the victim. Id., at 749, 751 A.2d 372. Our Supreme Court then stated that the jury reasonably could have concluded that the defendant's unusual behavior was "meant to distract the victim and bystanders while [the principal] approached from behind to shoot the victim." Id. In the present case, the defendant did not provide any assistance to the principal. Although the defendant pointed a gun at the victim and then struggled for control of the weapon, this conduct alone does not support a reasonable inference that he, by so acting, intentionally aided the principal in killing the victim.
In addition, our Supreme Court in Turner stated that the jury reasonably could have inferred that the defendant gave the principal the weapon used in the shooting. A witness testified in Turner that the shooter used a weapon of the same type that had been in the defendant's possession a week before the shooting. Id., at 749-50, 751 A.2d 372. Here, the gun that the defendant pointed at the victim was the same gun that Wilson used to shoot the victim. There is no evidence, however, that would support a reasonable inference that the defendant gave the weapon to Wilson. Unlike in Turner, where the defendant gave the principal the weapon in advance of the crime, in this case the most the evidence suggests is that Wilson acquired the weapon in the midst of the struggle between the victim and the defendant. See State v. Green, supra, 261 Conn. at 671-73, 804 A.2d 810; State v. Cobbs, 203 Conn. 4, 13, 522 A.2d 1229 (1987) (evidence insufficient to sustain conviction of felony murder where no witness claimed to have seen defendant commit any crime, no knife was recovered from defendant and no proceeds of underlying robbery were discovered on defendant); compare State v. Foster, 202 Conn. 520, 536, 522 A.2d 277 (1987) (evidence sufficient to convict defendant of criminally negligent homicide as accessory where defendant intentionally aided principal by giving him knife); State v. Harris, 49 Conn.App. 121, 131-32, 714 A.2d 12 (1998) (evidence sufficient to sustain conviction of manslaughter as accessory where defendant was gang leader, defendant gave weapon to gang member and directed him to shoot victim). Thus, we conclude that there was insufficient evidence that the defendant intentionally aided Wilson in shooting the victim.
We recognize that "it does not diminish the probative force of the evidence [348] that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence." (Internal quotation marks omitted.) State v. Na'im B., 288 Conn. 290, 296, 952 A.2d 755 (2008). "The rule is that the jury's function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Emphasis added; internal quotation marks omitted.) State v. Coleman, 304 Conn. 161, 169, 37 A.3d 713 (2012). Applying this rule, we conclude that the jury could not have inferred reasonably and logically that there was sufficient evidence to convict the defendant of manslaughter in the first degree with a firearm as an accessory.[6]
The judgment is reversed with respect to the defendant's conviction of manslaughter in the first degree with a firearm as an accessory and with respect to the sentence enhancement pursuant to § 53-202k, and the case is remanded with direction to render judgment of acquittal on that charge and to resentence the defendant on the remaining charges; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
[1] The defendant also was convicted of criminal possession of a firearm in violation of General Statutes § 53a-217 and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The defendant does not challenge his conviction of these counts on appeal.
[2] General Statutes § 53a-8 (a) provides: "A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender."
[3] General Statutes § 53a-55a (a) provides in relevant part: "A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm...."
General Statutes § 53a-55 (a) provides in relevant part: "A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person...."
[4] The defendant also claims that prosecutorial impropriety in closing argument deprived him of a fair trial. Because we conclude that the evidence was insufficient to support the jury's verdict, we do not address this claim.
[5] The defendant also argues that there was insufficient evidence that he intended to cause serious physical injury to the victim. Because we conclude that there was insufficient evidence that the defendant solicited, requested, commanded, importuned or intentionally aided the principal, we do not address this claim.
[6] We note that because we must reverse the defendant's conviction of manslaughter, we must also vacate the sentence enhancement which the court imposed pursuant to § 53-202k, because the defendant's conviction of criminal possession of a firearm in violation of § 53a-217, a class D felony, and carrying a pistol without a permit in violation of § 29-35(a), do not constitute A, B or C felonies as required by § 53-202k.
7.2.8.8.1.3 People v. Luparello 7.2.8.8.1.3 People v. Luparello
THE PEOPLE, Plaintiff and Respondent,
v.
THOMAS GAETANO PHILLIP LUPARELLO et al., Defendants and Appellants.
Court of Appeals of California, Fourth District, Division One.
[417] COUNSEL
Thomas Gaetano Phillip Luparello, in pro. per., Michael Ian Garey, Ann Shaw and Scott R. Jakust, under appointments by the Court of Appeal, for Defendants and Appellants.
John K. Van de Kamp, Attorney General, Keith I. Motley, M. Howard Wayne and Jesus Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
[418] OPINION
KREMER, P.J.
Thomas Gaetano Phillip Luparello and Carlos Orduna appeal respective judgments convicting them of conspiracy to commit an assault by means of force likely to produce great bodily injury (Pen. Code,[1] §§ 182, subd. 1, 245) and murder (§ 187) and finding a firearm allegation to be true (§ 12022, subd. (a)). Orduna was also found to have intentionally killed the victim while lying in wait. (§ 190.2, subd. (a)(15).) On appeal, Luparello contends the prosecutor's conduct was improper, he was ineffectively assisted at trial, hearsay evidence was improperly admitted, the jury was misinstructed, complicity theories cannot support his charged criminal liability, and his convictions are not supported by the evidence and resulted in cruel or unusual punishment. Orduna similarly alleges prosecutor misconduct, instructional error, improper application of complicity doctrine, insufficiency of the evidence, and cruel or unusual punishment. Additionally, he contends his motion to sever was improperly denied and the jury was biased. For the reasons set out below, we reject both defendants' contentions and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Luparello practiced chiropractics and Terri Cesak was his patient. Luparello eventually hired Terri as a receptionist, and soon they began an affair. Under pressure from Luparello's wife, Terri left her job in May 1980. Terri then met and shortly thereafter married Ed Gadzinski.
Luparello did not see Terri again until early 1981. At that time, both were having marital problems; Luparello was involved in the dissolution of his marriage. In early February, Terri apparently separated from her husband and returned to her job with Luparello. Her employment lasted for several weeks until Ed induced Terri to return home. She voluntarily stayed until the end of March, when she returned to work and moved into Luparello's house. Luparello then had three other roommates: Brad Wilson, Ben Wilson and Ron Jennings.
On May 8, 1981, Luparello went to San Francisco to confer with counsel about his divorce. Later that same day, Terri moved her belongings from Luparello's house and reconciled with her husband. After storing their possessions in several locations, Terri and Ed established a new residence in a different county. At this time, Terri was pregnant with Luparello's child.
Luparello called home on May 9 and a roommate told him Terri had left. Luparello returned immediately and began an intensive search for Terri. He [419] contacted the police, personal friends, and relatives of both Terri and Ed, and requested a patient to go to Ed's workplace and follow him home. On the evening of May 11, Luparello met with Orduna, who was also Luparello's patient, and Johnny Salmon at his house. He stated he wanted Orduna and Salmon to help find Terri. Luparello, Orduna and Salmon were joined by Ben Wilson, Luparello's roommate, and the four drove to Orduna's house. On the way, Luparello and Salmon discussed the cost for Orduna's and Salmon's services. Ben saw Luparello give Salmon $40, and Luparello later told Ben the total cost would be $200.
Luparello also personally continued to search for Terri. He hoped to elicit information from Mark Martin, a good friend of Terri's husband and best man at Terri and Ed's wedding. At about 8 p.m. on May 13, Luparello, Brad Wilson, Orduna, Salmon and a person identified as "Spooky" gathered at Luparello's house. In talking to Luparello and Orduna, Salmon stated they were going to "thump" the person from whom they wanted information. Orduna agreed with Salmon. Luparello remarked he would like the information at any cost. At this time, Orduna was carrying a sword and Salmon had nunchakus. Salmon also loaded a .22 caliber rifle belonging to Luparello. Thereafter Luparello, Orduna, Salmon and "Spooky" left the house, taking the weapons, though not the rifle, with them. After 35 minutes the group returned, picked up Brad Wilson, and drove to Mark Martin's house. Orduna, Salmon and Brad Wilson got out of the car and approached Martin's house. Orduna and Salmon were carrying their respective weapons. Orduna and Salmon instructed Brad to lure Mark Martin from his house and they would beat him. Brad, however, refused to do so. When Martin came to the door, Brad asked only if he knew Terri's whereabouts. Orduna and Salmon, who were waiting in the shadows at the sides of the house, later chided Brad for not getting Martin to leave his house.
On the next evening, May 14, 1981, Brad Wilson returned home to find Orduna and Salmon inside. They were again armed with a sword and nunchakus, respectively. Luparello was present, but was making a telephone call at the time. After 15 or 20 minutes, Orduna and Salmon left. Approximately two hours later, Orduna knocked on the door of Mark Martin's house. When Martin, who owned an automotive machine shop, came to the door, Orduna asked whether he would look at Orduna's car which was parked in the street. After Martin stepped out of his house, Orduna quickly backed away. Someone in or near the parked car, the engine of which was running, fired six shots at Martin and he fell to the porch and died. Orduna ran to the car, and he and his companion drove off.
Luparello and Orduna were charged with conspiracy to commit an assault by means of force likely to produce great bodily injury (§§ 182, subd. 1, [420] 245) and murder (§ 187) and were alleged to have intentionally killed Martin while lying in wait (§ 190.2, subd. (a)(15)) and to have been armed with a rifle during the commission of the above offenses (§ 12022, subd. (a)). After a joint trial, the jury found Luparello and Orduna guilty on both counts and the allegations the defendants were armed to be true. The special circumstance allegation was found true as to Orduna, but not Luparello.
After losing a new trial motion, Luparello was sentenced to 25-years-to-life imprisonment for first degree murder and received an additional year for being armed with a rifle. His three-year conspiracy sentence, however, was stayed. In the penalty phase of the proceedings, the jury determined Orduna should suffer life imprisonment without possibility of parole. In turn, Orduna moved under section 1385 to dismiss the special circumstance finding. After considering a number of factors and determining the interests of justice did not warrant such a harsh penalty, the trial court granted the dismissal and sentenced Orduna to 25-years-to-life imprisonment for first degree murder and enhanced the sentence by one year because Orduna had been armed. His conspiracy sentence was similarly stayed.
LUPARELLO'S APPEAL
I
PROSECUTORIAL MISCONDUCT
(1a) A prosecutor is not merely an advocate for the People. "His duty is not to obtain convictions, but to fully and fairly present to the court the evidence material to the charge upon which the defendant stands trial, ..." (In re Ferguson (1971) 5 Cal.3d 525, 531 [96 Cal. Rptr. 594, 487 P.2d 1234].) In performing this duty, he or she is not limited to Chesterfieldian politeness or restraint and may vigorously argue the case. (People v. Fosselman (1983) 33 Cal.3d 572, 580 [189 Cal. Rptr. 855, 659 P.2d 1144].) Fervor, without more, does not implicate an impropriety. Prejudicial misconduct arises when the prosecutor uses "deceptive or reprehensible methods to attempt to persuade either the court or the jury." (People v. Strickland (1974) 11 Cal.3d 946, 955 [114 Cal. Rptr. 632, 523 P.2d 672].) Here, Luparello alleges four distinct instances of such conduct. He concedes each instance "in isolation might not be considered `grossly improper', [but] such misconduct, considered in aggregate, denied Appellant a fair trial and compels reversal of the judgment of conviction." We begin by reviewing each allegation and then determining their cumulative effect, if any.
A. Improper References to Street Gang Membership
In setting out the conspiracy allegations, the original information stated Luparello knew Orduna to be a member of the "F-Troop" gang, an ethnic [421] street gang based in Orange County. (2) Although all gang references were deleted from the amended information, the prosecutor sought, at trial, to admit evidence Orduna belonged to F-Troop and Luparello knew this and previously recruited him to assist in a neighborhood dispute. In an in limine hearing, the trial court questioned the relevance of this evidence but did not bar absolutely its admission. Instead, the trial court directed the prosecutor to alert the court to the impending introduction of this evidence and the court would rule on its admissibility at that time. Luparello argues the prosecutor disregarded this directive and cites several examples which, he alleges, prejudiced him.
Of the four examples proffered by Luparello, two involve no suggestion of gang membership but instead concern the prosecutor's attempt to inform the jury regarding Orduna's prior assistance in Luparello's dispute with some neighbors. The first of these occurred during Brad Wilson's direct examination. After the court sustained several defense objections and admonished the jury the particular line of testimony was admissible only to Luparello, the prosecutor continued: "... What was the substance of the conversation?
"A. That at a previous time — I'm unsure when —
"[Luparello's Counsel]: Same objection.
"The Court: The objection is sustained as to the defendant Orduna. [¶] You may proceed.
"Q.... What was the substance of the conversation, where Dr. Luparello was indicating to you what Dr. Luparello's previous relationship with Mr. Orduna was?
"A. He said that early in the year he had trouble with his neighbors across the street and that he had — I don't know what to say, the exact words — used them or got their help in settling the dispute.
"Q. Referring to Mr. Orduna?
"A. Yes.
"[Luparello's Counsel]: Object. Move to strike. Irrelevant. And the previous grounds. [¶] It also appears to be speculation as to, as to who's involved and what it is.
"The Court: The testimony will be stricken as to the defendant Orduna. The objection is sustained."
[422] Later, during the testimony of Ben Wilson, the prosecutor elicited similar testimony: "Q. Didn't he say to you, didn't Dr. Luparello say to you that he felt Carlos and Johnny could take care of this problem at this time?
"A. Yes, Sir, he did.
".... .... .... .... .... .... .
"Q.... yes. Didn't Dr. Luparello also tell you they had taken care of other problems and they were sure they could take care of this one, also?
"A. Yes." Luparello immediately objected, asserting this query had violated the trial court's directive regarding evidence of Orduna's past acts. The trial court agreed but determined any wrongdoing could be remedied by permitting the neighbor involved in the alleged dispute to be called as a defense witness. Luparello's counsel agreed this would resolve potential problems and the neighbor was called and testified favorably for Luparello.
We agree with the trial judge and Luparello's trial counsel that any prejudice flowing from the prosecutor's questions was greatly minimized by the neighbor's testimony, which completely eliminated any suggestions of wrongdoing by Orduna in connection with the neighborhood dispute. Reversal on this basis is not required. (See People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
(3) On two other occasions, however, the prosecutor ignored the trial court's earlier admonition and attempted to put before the jury evidence Orduna belonged to a street gang which was routinely involved in violent and threatening activities. In the first instance, the prosecutor questioned Martin's neighbor who witnessed the shooting and asked whether he had been threatened sometime before testifying. The neighbor responded someone had written "FXTX Vida" on his van. In response to Luparello's motion to strike, the prosecutor, out of the presence of the jury, interpreted the graffito as meaning "F Troop, Live or Die." The trial court admitted the evidence, but admonished the jury to consider the evidence only in regard to the witness's credibility. (See People v. Lybrand (1981) 115 Cal. App.3d 1 [171 Cal. Rptr. 157].)
This admission of marginally relevant evidence was later turned on its head when the prosecutor sought to take advantage of its inflammatory effect in his cross-examination of Police Officer Daniel McCoy who had been called as a defense witness for the purpose of testifying regarding statements made by Michael Martin, the victim's brother, shortly after the shooting. Michael Martin was the person who had answered Orduna's knock on May [423] 14 and had called his brother to the door. Michael described the person he saw to Officer McCoy as "Mexican," "five three to five five," "kind of stocky," and wearing a black or dark blue beanie "like the F-Troopers and Delhi guys wear."
Perceiving that an opportunity had been thrust into his hands to get before the jury suggestive and prejudicial information which he had otherwise been prevented from introducing, the prosecutor cross-examined Officer McCoy as follows: "[Prosecutor]: You heard a reference in the tape — it's on page 3 and it's in the middle of the page on page 3 — to F-Troopers. And the question was, `You talking about the beanie, the navy type beanie, the cloth beanie that goes over the head?'
"And then Mike's answer was, `Like the F-Troopers and Delhi guys wear, yeah.'
"Is that right?
"A. Yes, Sir.
"Q. What type of experience have you had with this `F' Troop gang?
"A. I spent five years —
"[Luparello's Counsel]: I have to object to the relevance of saying `this "F" Troop gang.'
"The Court: Sustained.
"[Luparello's Counsel]: I have no objection if the officer corroborates that that's what a lot of them wear. But the way the question was phrased —
"The Court: The objection's been sustained.
"[Prosecutor]: I'll rephrase the question then, Your Honor.
"Q. What experience do you have with `F' Troop, as a Santa Ana police officer?
"A. I was assigned to the street gang detail for five years and during that time conducted many investigations involving `F' Troop.
"Q. What type of gang is `F' Troop?
[424] "A. It's a street gang.
"Q. Where are they located?
"[Luparello's Counsel]: I have to object again. It's not relevant to this case.
"[Prosecutor]: It certainly is, Your Honor.
"The Court: The objection is sustained.
"Q. Well, have you become aware of the type of hats that `F' Troop gang members where [sic]?
"A. Well, their clothing, what they have worn, yes, sir.
"Q. What type of clothing does this `F' Troop gang where [sic]?
"A. I've seen them wearing the beanies.
"Q. What other type of clothing do they wear?
"A. (No response.)
"Q. Like pants, do they wear khaki type pants?
"A. Yes, Sir.
"Q. Have you seen them wearing just plain t-shirts?
"A. Yes, Sir.
"Q. Do they wear any particular type of shoes?
"A. No, not a particular type but a variety.
"Q. Over what period of time have you had occasion to come in contact with `F' Troop gang members in the City of Santa Ana?
"A. Over a five-year period.
"Q. And had you been investigating crimes that have been committed by these gang members?
[425] "A. Yes, Sir.
"Q. And you've been assigned to the crimes against persons detail at the Santa Ana police department; is that right?
"A. Yes, Sir.
"Q. That involves homicides and attacks against people?
"A. Yes, Sir.
"Q. Prior to that you were assigned to a gang detail specifically involving the apprehension of gang type warfare in Santa Ana?
"A. Yes, Sir.
"Q. Was it during this period of time that you became aware of this `F' Troop gang?
"A. Yes, Sir.
"Q. Does the `F' Troop gang —
"[Luparello's Counsel]: I object. I move to strike the entire thing about `F' Troop.
"[Prosecutor]: Your Honor, he brought it out.
"[Luparello's Counsel]: There's absolutely no relevance. The witness merely stated that the type of beanie was consistent with, in his opinion, `F' Troop or the Delhi guys and from that a line of irrelevant questions is being asked. Object. Move to strike what's in so far.
"The Court: Well, the objection to this question, the court will rule on it when counsel finishes the statement. Or the question.
"[Prosecutor]: Fine. Thank you, Your Honor.
"Q.... Does F-X-T-X signify the `F' Troop gang?
"A. Yes, Sir.
"The Court: Then the objection to that question will be sustained. The answer is stricken.
[426] "I take it you still had your objection?
"[Luparello's Counsel]: Yes."
In this manner, the prosecutor used a relatively innocuous description of a type of head gear worn by the man who knocked at Martin's door and began a foray based consistently on leading questions in which he attempted to inform the jury by innuendo not only that F-Troop was a street gang whose members were suspected of committing homicides and other violent attacks on persons, but also that the gang was likely connected to the case in such a way that its members had threatened a material witness.
The People seek to justify the prosecutor's conduct on the theory that defense counsel "opened the door" by introducing Michael Martin's taped statement which included the "F-Troop" reference. The fact that a topic is raised on direct examination and may therefore appropriately be tested on cross-examination, however, does not amount to a license to introduce irrelevant and prejudicial evidence merely because it can be tied to a phrase uttered on direct examination. Here, the prosecutor's attempt to cast Orduna as a member of a violent gang was irrelevant for any purpose other than to suggest Orduna's predisposition to commit violent acts, a purpose specifically prohibited by Evidence Code section 1101, subdivision (a). (People v. Perez (1981) 114 Cal. App.3d 470, 477 [170 Cal. Rptr. 619]; see also In re Wing Y. (1977) 67 Cal. App.3d 69, 79 [136 Cal. Rptr. 390].)
While the court's sustaining of defense objections and striking of testimony suggested it did not condone such conduct, the flagrancy of the prosecutor's misconduct makes it highly unlikely that even a conscientious jury could completely ignore what it had heard. (See People v. Taylor (1961) 197 Cal. App.2d 372, 382 [17 Cal. Rptr. 233]; see also People v. Kirkes (1952) 39 Cal.2d 719, 726 [249 P.2d 1].) On the other hand, we must recognize that the prejudicial effect of inadmissible gang membership evidence lies in its tendency to suggest that a defendant is the type of person predisposed to commit violent acts of the type engaged in by the gang to which he belongs. (See People v. Cardenas (1982) 31 Cal.3d 897, 905 [184 Cal. Rptr. 165, 647 P.2d 569] (plur. opn.); People v. Perez, supra, 114 Cal. App.3d at p. 477.) Here, the evidence surrounding the planning and preparation for the assault on Mark Martin adequately demonstrated Orduna's willingness to use weapons and engage in acts of violence. (See ante, p. 419.) In this context, evidence connecting Orduna to a violent street gang — although hardly desirable from Orduna's or Luparello's point of view — did not have the impact it might otherwise have had. Moreover, while the prosecutor's misconduct firmly implanted in the jurors' minds that F-Troop was a violent gang, the evidence of Orduna's membership in the gang [427] was tangential. In an attempt to minimize the effect of the prosecutor's misconduct, the court was careful to instruct the jurors "... that there [was] no credible evidence in this case that Carlos Orduna was a member of any criminally oriented gang."
California appellate courts have repeatedly recognized that even flagrant misconduct by a prosecutor does not relieve them of their obligation to ascertain whether the misconduct resulted in a miscarriage of justice within the meaning of article VI, section 13, of the California Constitution. (See, e.g., People v. Hamilton (1963) 60 Cal.2d 105, 120-121 [32 Cal. Rptr. 4, 383 P.2d 412]; People v. Wirth (1960) 186 Cal. App.2d 68, 78 [8 Cal. Rptr. 823].) Under the circumstances of this case, we do not believe that the gang membership evidence which was improperly placed before the jury makes it reasonably probable that the jury would have reached a different verdict in the absence of the misconduct. (See People v. Munoz (1984) 157 Cal. App.3d 999, 1013 [204 Cal. Rptr. 271].)
B. Bad Faith Inquiry
(4) Ben Wilson testified on direct examination by the prosecutor that Luparello told him he paid $200 for the assistance of Orduna and Johnny Salmon. The prosecutor was apparently aware that informers who had been incarcerated with Salmon stated he told them he was paid $800 up front and was to receive $10,000 for beating Mark Martin and another $15,000 as a bonus for killing him. During a break in Ben Wilson's testimony, the respective counsels discussed in camera the possibility of admitting the informers' statements, and the trial court indicated its preliminary view that such evidence was inadmissible, the final decision to be reached at a later hearing.[2]
Thereafter the prosecutor resumed his questioning of Ben Wilson as follows: "Q. Now, do you recall Dr. Luparello ever telling you that he had paid Johnny Salmon $800 up front?
"A. No, Sir, I do not.
"Q. And that he was to get a total of $10,000 —." Luparello's counsel objected, challenging the leading nature of the question and the prosecutor's good faith in asking it. The court agreed with defense counsel and, after a [428] voir dire examination of Wilson in chambers, prohibited the prosecutor from continuing his line of questioning. The court and defense counsel then agreed to forego any admonition to the jury on the theory it would merely draw attention to the point.
We are troubled by the prosecutor's attempt to use his questioning to get before the jury information he could not legitimately introduce directly through the testimony of the informers. (See People v. Perez (1962) 58 Cal.2d 229 [23 Cal. Rptr. 569, 373 P.2d 617]; People v. Blackington (1985) 167 Cal. App.3d 1216 [213 Cal. Rptr. 800].) We cannot conclude, however, that such conduct requires reversal. The suggestion contained in the prosecutor's question merely disagreed in amount with facts already admitted by Wilson. The jury was properly instructed pursuant to CALJIC No. 1.02 that questions asked by counsel are not evidence and are not to be considered as such. In no sense can it be considered reasonably probable that a different result would have been reached in the absence of the misconduct. (People v. Watson, supra, 46 Cal.2d at p. 836.)
C. Misconduct During Closing Argument
(5a) Luparello asserts the prosecutor unacceptably and inflammatorily compared him to Charles Manson and unconstitutionally commented on Luparello's failure to testify. (1b) In reference to the first allegation, we note the prosecutor may broadly argue the facts and law of a case but may not prejudicially misrepresent the character of the accused nor intentionally appeal to the fears and emotions of the jury. (People v. Fosselman, supra, 33 Cal.3d at pp. 580-581; People v. Jones (1970) 7 Cal. App.3d 358, 362-363 [86 Cal. Rptr. 516].) In discussing the instruction on aiding and abetting, the prosecutor stated: "So this is one who aids and abets. One who aids and abets is not only guilty of the particular crime that to his knowledge his confederates are committing, but he's also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"If one person sets in motion some people that are out of control and they go in and start killing people —
"An example might be, and we talked about it, is the Charles Manson case type of thing. Charles Manson is a classic example of the aider and abettor. He apparently wasn't present at any of the crime scenes. Yet he set in motion some people that were just out of control. And they killed and maimed at will. Yet Charles Manson was responsible for those particular crimes.
[429] "And he's responsible under theories such as this one here where even though the person didn't intend that a particular crime be committed, that person is liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged.
"So if you send some — I hate to use the word `crazy' because it's got different meanings in the criminal law. But if you send some people that are completely out of control to go do something, and it's reasonable and probable that they will get carried away and execute someone, then you're guilty, just as guilty as they are, of that execution."
Luparello did not properly preserve his challenge to this argument by objection below. (People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal. Rptr. 1, 609 P.2d 468].) (5b) In any event, the prosecutor's comments were neither erroneous nor prejudicial. His reference to Charles Manson provided a proper, albeit provocative, example of the workings of an aider and abettor theory. The comments neither expressly or impliedly parallel Luparello's character to that of Charles Manson. Mere reference is not an impassioned plea aimed at the jury's fears and anxieties.
(6) Luparello further asserts the prosecutor's following argument violates the rule of Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229], which prohibits comment on the defendant's exercise of his constitutional right not to testify: "Now with respect to Mr. Chatterton [Luparello's counsel], a number of places here Mr. Chatterton has indicated to us that — at one time Mr. Chatterton indicated that Dr. Luparello wouldn't have wanted to tell Brad that, referring to something, I don't know what he's referring to offhand. One time Mr. Chatterton indicated that, either in argument or in the opening statement, that Dr. Luparello lied to the police because of Kelly Schwulst's statement to him.
"Another time Dr. Luparello asked Brad to go to the door at the Martin house because Brad wouldn't be involved in that, in a beating, says [sic]. That's why Dr. Luparello asked Brad to go to the door. Remember that?
"Another time — what do you think Dr. Luparello believed with respect to whether Brad would lie or not?
"All of those questions and statements suffer from the same problem. There is no evidence in this case whatsoever as to what Dr. Luparello was thinking about why Dr. Luparello asked Brad to do this, what Dr. Luparello heard from anyone other than what we heard in the case. What Dr. Luparello thought because Kelly called him. No evidence of that. Any evidence of [430] what was going on in Dr. Luparello's mind with respect to that is just rank speculation.
"We talked about this early on. Everything that is an inference from the facts has to be established by the facts. What are the facts? This is an important issue in this case. Why did Dr. Luparello lie so much to the police? Mr. Chatterton's answer is because of what Kelly Schwulst had told him. Does that wash in your mind?
"One, there is no evidence whatsoever that that was what caused Luparello to lie to the police. That's just speculation by Mr. Chatterton. The only thing that we have in that respect is that Kelly did tell him that. So apply that in your experience."
While it is undisputed "Griffin prohibits reference to a defendant's failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence...." (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal. Rptr. 652, 623 P.2d 213]; accord People v. Vargas (1973) 9 Cal.3d 470, 475 [108 Cal. Rptr. 15, 509 P.2d 959].) Here, the prosecutor neither comments directly on Luparello's failure to testify nor indirectly encourages the jury to speculate about his silence. He instead properly reviews critical aspects of the defense theory relative to Luparello's mental state and points out the dearth of evidence to support the theory. Luparello's testimony was not necessarily the only material evidence on this point. That he did not testify and did not choose to proffer other relevant evidence does not preclude the prosecutor from illuminating this deficiency. The prosecutor's comments are not Griffin error.
D. Delay of Trial
(7a) On October 6, 1981, all parties stipulated the trial would recess during the trial judge's previously scheduled vacation and would reconvene on November 4, 1981. However, on November 4, the prosecutor could not proceed in the instant case because he had become unexpectedly involved with another murder trial. The prosecutor requested the instant trial be continued until November 23, 1981. After a hearing, the trial court granted the request. Luparello now argues this "delay" denied him a speedy trial and is another ground for misconduct. We find no merit in this contention.
Luparello cites People v. Hannon (1977) 19 Cal.3d 588 [138 Cal. Rptr. 885, 564 P.2d 1203], for the proposition the "constitutional right to a speedy trial may be violated by prejudicial delay resulting from intentional efforts to harass or oppress a defendant or simply the neglect of the state or its [431] officers." (Id. at p. 609.) However, Hannon dealt exclusively with pretrial delay and has no relevance to the instant case. Indeed, even assuming the cited language did apply, Luparello's assertion would still fail. He has not shown, nor does the record reveal, the prosecutor intentionally or negligently delayed the instant proceedings. As was determined at the trial court's hearing on this matter, the delay resulting from the prosecutor's conflicting commitments was unavoidably unforeseeable.
In reviewing Luparello's allegations of misconduct, individually and collectively, while we find error, we find no significant prejudice to him.
II
INEFFECTIVE ASSISTANCE OF COUNSEL
(8) The charge of inadequate assistance at trial is a serious one, and the appellant has the burden of proving his claim. (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal. Rptr. 732, 590 P.2d 859].) "[I]n cases in which a claim of ineffective assistance of counsel is based on acts or omissions not amounting to withdrawal of a defense, a defendant may prove such ineffectiveness if he establishes that his counsel failed to perform with reasonable competence and that it is reasonably probable a determination more favorable to the defendant would have resulted in the absence of counsel's failings. [Citations.]" (People v. Fosselman, supra, 33 Cal.3d at p. 584.) Further, "[r]eviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses counsel had no rational tactical purpose for his act or omission." (Id. at p. 581.) Luparello grounds his complaint in his counsel's failure to oppose the People's motion to dismiss and his later failure to seek dismissal when his rights to a speedy trial were denied.
(9a) Early in the trial, the trial court was asked to determine the admissibility of a hearsay statement by Luparello. The court initially excluded the statement (although it later reversed its ruling and allowed admission). Believing the case against Luparello was jeopardized by the initial exclusion of the hearsay statement, the People sought to dismiss the information against Luparello. Luparello's counsel challenged this dismissal, and it is this act which Luparello now faults. Initially, we note the record clearly shows Luparello personally endorsed his counsel's action. Moreover, counsel's argument on this motion evidences numerous tactical decisions for his opposition. Counsel was aware jeopardy had not attached and the People would refile against Luparello. A new trial would not present the same obstacles to the admission of the challenged hearsay statement, and the increased investigation time afforded by a dismissal would likely strengthen [432] the People's case which counsel viewed as "weak" at that time. In sum, Luparello can not be heard to complain for a tactical action which he personally endorsed.
Luparello also contends his counsel should have sought dismissal when the trial was not commenced in accord with section 1382, subdivision 2. This section mandates dismissal when trial in a superior court is not commenced within 60 days after the information is filed. In the present case the information was filed on July 24, 1981, and trial was commenced on September 16, 1981. Given the elapsed time between these dates, Luparello's assertion must be seen as a result of a miscalculation. The 60th day of the statutory period was September 21, 1981. On these facts, Luparello's assertion must fail.
(7b) Finally, Luparello faults his counsel for failing to seek dismissal when the trial could not be reconvened on November 4. As discussed above, this delay did not infringe upon Luparello's right to a speedy trial, and there was no evidence of misconduct in the prosecutor's seeking of the continuance. (9b) Most importantly, the record shows Luparello's counsel again chose to proceed for tactical reasons. In discussing the court's ruling on a hearsay statement, Luparello's attorney stated: "I took the tactical position that I wasn't going to make a big stink about it; that the relationship that had been established up to that point in time had me winning on this issue when opposed to Mr. Brown [the prosecutor], and with Mr. Brown's position that he wasn't going to relitigate — and I recognize that was really in reference to going to another court — but it still led me to believe that with Mr. Brown and I in front of this court on that issue, I was going to win that issue.
"So rather than insist that we proceed to trial immediately or that we even oppose the trailing condition, we didn't do that. And I think that had we made a stink this court would have felt compelled to direct the district attorney to have somebody ready to try this case at a sooner time. But we continued to trail this matter until November the 23rd.
"I advised my client, during that period of time, to be patient, though he wanted to get this thing to trial. He doesn't like sitting in jail; that tactically it was better for us to have Bryan Brown on the case rather than to have some new attorney who might be more inventive, who might be willing to raise the argument to relitigate those evidentiary motions instead of Mr. Brown."
In reviewing all of Luparello's allegations, we find he has failed his burden of showing he was ineffectively assisted by counsel.
[433]
III
ADMISSION OF LUPARELLO'S HEARSAY STATEMENT
(10) On the day of the homicide, Luparello telephoned Mrs. Hazel Schwulst, the mother-in-law of Mark Martin's very good friend, and stated: "[I have] some Mexicans that are going to take care of Mark Martin." After an extensive hearing, the trial court reversed an earlier ruling and admitted the hearsay statement. Luparello now argues that ruling was improper under the rule of People v. Aranda, supra, 63 Cal.2d 518.
In Aranda the California Supreme Court held a defendant's extrajudicial statement which implicated a codefendant could not be admitted unless the trial court undertook one of several safeguards. (People v. Aranda, supra, 63 Cal.2d at pp. 529-531.) Here, however, Luparello is the declarant of the statement and in this capacity, the protections of Aranda do not apply. If this problem does arise it is Orduna, the arguably implicated nondeclarant, who is entitled to Aranda protections (and this he so argues). As to Luparello, the statement constitutes a party admission and is excepted from the hearsay bar by Evidence Code section 1220 which provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party...." Thus, the admission of the hearsay statement against Luparello was proper.
IV
INSTRUCTIONAL ERROR
(11) The prosecution alleged two overt acts to support the conspiracy to commit an assault charge against Luparello. Luparello argues each act, in itself, was sufficient to support the charge, and since the trial court failed to instruct[3] the jury to agree unanimously on one specific act, his conspiracy conviction should now be reversed.
While it is clear a trial court does have a duty to instruct sua sponte on general principles of law relevant to issues raised by the evidence (People [434] v. Wickersham (1982) 32 Cal.3d 307, 323 [185 Cal. Rptr. 436, 650 P.2d 311]), the duty Luparello seeks to impose does not arise from the present facts. Indeed, case law holds the jury charge here was quite adequate. (People v. Skelton (1980) 109 Cal. App.3d 691, 715-717 [167 Cal. Rptr. 636].)
The court instructed that Luparello's meeting with Orduna and several other unnamed parties on May 13 to solicit their assistance in finding Ed and Terri Gadzinski constituted the first overt act and the second was the shooting of Mark Martin on May 14 (pursuant to the above conspiracy). Luparello argues that by coupling each overt act with other evidence two separate conspiracies are revealed, one occurring on May 13 and the other on May 14. Consequently, further instruction on whether one or two conspiracies were formed was required. He also argues that without greater explication, the instructions run afoul of the rule in People v. Diedrich (1982) 31 Cal.3d 263, 280-281 [182 Cal. Rptr. 354, 643 P.2d 971], which requires the jury to agree unanimously on a single, specific act as the basis for a particular conviction.
Luparello's hypothesis is unfounded. The evidence shows Luparello wanted to find Terri "at any cost," he solicited assistance from Orduna and Salmon, he paid $40 and promised more, he went to Mark Martin's house with Orduna and Salmon who carried deadly weapons, and he failed in his first attempt. Undaunted, Luparello called Hazel Schwulst the next day, again seeking information regarding Terri's whereabouts and stating he had some Mexicans who would take care of Martin. Several hours later Orduna, under pretense, led the victim to his death. The evidence thus shows a continuous conspiratorial effort that was simply thwarted in its first attempt to reach its goal. The evidence does not reveal two distinct conspiracies, as Luparello argues, but a number of distinct acts arising from "one overall agreement" and forming a continuous course of conspiratorial conduct. (See People v. Skelton, supra, 109 Cal. App.3d at p. 718.)
In any event, the special instructions requested by Luparello are not warranted in the present case. In People v. Skelton, supra, 109 Cal. App.3d 691, this court, faced precisely with the issue now raised by Luparello, determined a special instruction requiring jury unanimity on an overt act furthering a conspiracy need not be given when a jury is instructed in the language of CALJIC Nos. 6.10 and 17.50. CALJIC No. 6.10 defines conspiracy and provides: "In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one of the overt acts alleged in the information...." CALJIC No. 17.50 is a concluding instruction which in part provides: "In order to reach a verdict all 12 jurors must agree to the decision and to any finding you have been instructed to include in your [435] verdict." After reviewing the instructions in Skelton, we concluded: "These most specific instructions [No. 6.10] must be viewed in conjunction with the unqualified requirements that proof be made beyond a reasonable doubt as to each element of an offense and that the verdict be unanimous. There is no inadequacy in the instruction given...." (Id. at p. 717.) Here as in Skelton, CALJIC Nos. 6.10 and 17.50 were given. And again as in Skelton, we find instruction on conspiracy to be proper and complete.[4] Thus, given the proffered instructions here, the trial court had no duty to provide further instruction sua sponte. (See People v. Mota (1981) 115 Cal. App.3d 227, 232-233 [171 Cal. Rptr. 212].)
V
CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
(12a) The trial court charged the jury with several different theories by which Luparello's guilt for first degree murder could be affixed; among these were conspiracy and aiding and abetting. On appeal, Luparello faults the application of the complicity theories in two ways. First, he maintains conspiratorial liability, as charged to the jury, violates the principle of People v. Ireland (1969) 70 Cal.2d 522 [75 Cal. Rptr. 188, 450 P.2d 580].
In Ireland, the Supreme Court held felony-murder instruction was improper "when it is based upon a felony [in that case assault with a deadly weapon] which is an integral part of the homicide...." (Id. at p. 539.) In reaching its result, the high court reasoned: "To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault — a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law...." (Ibid.)
Luparello concedes a felony-murder instruction was not given in the present case and the precise Ireland holding consequently does not apply. He asserts, however, the conspiracy instruction given here, that is, CALJIC No. 6.11, is the functional equivalent of the felony-murder instruction in Ireland and similarly allows improper "bootstrapping." We disagree.
[436] Luparello specifically points to the language of CALJIC No. 6.11[5] which provides: "Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as part of the original plan...." From this he reasons the jury, so instructed, could have found him guilty of first degree murder without any proof of malice notwithstanding he did not commit the homicide nor intend its commission. This, he concludes, replicates the error in Ireland.
While the Ireland court did fault the second degree murder finding there absent some consideration of malice, it did so because of the illogic of applying the felony-murder rule to those circumstances. The same failing does not apply here. (13) The felony-murder rule's purpose is to deter felons from killing negligently or accidentally. (People v. Satchell (1971) 6 Cal.3d 28, 34 [98 Cal. Rptr. 33, 489 P.2d 1361]; People v. Washington (1965) 62 Cal.2d 777, 781 [44 Cal. Rptr. 442, 402 P.2d 130]; People v. Summers (1983) 147 Cal. App.3d 180, 188 [195 Cal. Rptr. 21] (conc. opn. of Wiener, J.).) Theoretically, this end is achieved by holding would-be felons strictly responsible for all killings they commit during the perpetration, or attempted perpetration, of any statutorily enumerated felony. (People v. Washington, supra, 62 Cal.2d at p. 781.) While arguably accepting the rule's purpose, our courts have nevertheless consistently stated felony murder is a "highly artificial concept" which "deserves no extension beyond its required application." (People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal. Rptr. 225, 414 P.2d 353]; accord People v. Dillon (1983) 34 Cal.3d 441, 463 [194 Cal. Rptr. 390, 668 P.2d 697].) The rule is seen as "unnecessary" in almost all cases in which it was applied and, indeed, has been viewed as ending "the relation between criminal liability and moral culpability." (People v. Washington, supra, at p. 783.) Thus, for example, where the underlying felonious conduct is not independent of an assault which results in death, that is, where it merges with the homicide, our courts have consistently ruled the killing was outside the felony-murder rule. (See, e.g., People v. Smith (1984) 35 Cal.3d 798 [201 Cal. Rptr. 311, 678 P.2d 886]; People v. Sears (1970) 2 Cal.3d 180 [84 Cal. Rptr. 711, 465 P.2d 847]; People v. Wilson (1969) 1 Cal.3d 431 [82 Cal. Rptr. 494, 462 P.2d 22].) In [437] California, then, the felony-murder doctrine is judicially disfavored and restrictedly applied.
(12b) In contrast, the policy supporting conspiratorial liability receives neither the disfavor nor restriction which adhere to the felony-murder rule. That a conspirator is criminally liable for acts done in furtherance and as a reasonable consequence of a conspiracy is so well settled and accepted in California jurisprudence, citation to that proposition is burdensome rather than illuminating. An early and oft-cited statement of conspiratorial liability is found in People v. Kauffman (1907) 152 Cal. 331 [92 P. 861]: "`The general rule is well settled that where several parties conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. Nevertheless the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design. Even if the common design is unlawful, and if one member of the party departs from the original design as agreed upon by all of the members, and does an act which was not only not contemplated by those who entered into the common purpose, but was not in furtherance thereof, and not the natural or legitimate consequence of anything connected therewith, the person guilty of such act, if it was itself unlawful, would alone be responsible therefor.'" (Id. at p. 334.) (14a) The law, thus stated, implicitly recognizes the greater threat of criminal agency and explicitly seeks to deter criminal combination by recognizing the act of one as the act of all. As recognized in People v. Welch (1928) 89 Cal. App. 18 [264 P. 324]: "Unquestionably, the purpose of the law in making it an offense to conspire to commit a crime is to reach everyone who in any way participated in forming the evil plan irrespective of who or how many carry out the design, and well may this be a protection to society, for a group of evil minds planning and giving support to the commission of crime is more likely to be a menace to society than where one individual alone sets out to violate the law." (Id. at p. 22.) (12c) Thus, coconspirators, bound in criminal combination, are mutually bound to a punishment dictated by their conspiratorial efforts. Viewed in this light, the bridge between punishment and moral culpability, so illusory or, upon scrutiny, evanescent under the felony-murder rule, stands here on much firmer ground. So too, deterrence, while absent when the underlying felony merges under the felony-murder doctrine, is clearly present under [438] the accepted theory of conspiratorial liability. (14b) In combining to plan a crime, each conspirator risks liability for conspiracy as well as the substantive offense; in "planning poorly," each risks additional liability for the unanticipated, yet reasonably foreseeable consequences of the conspiratorial acts, liability which is avoidable by disavowing or abandoning the conspiracy. (15) Moreover, our criminal code recognizes and, indeed, reinforces conspiracy's independent threat by identifying it as a separate and distinct crime which never merges with the resulting substantive offense.[6] (§ 182; People v. Williams (1980) 101 Cal. App.3d 711, 721 [161 Cal. Rptr. 830].) In sum, the logical and legal impediments to criminal liability found in Ireland and its progeny have little or no dissuasive value here in limiting conspiratorial liability for the natural and reasonable consequences of a conspiracy. This being so, we find no obstacle in applying the well-accepted rule of liability to hold Luparello criminally responsible for Martin's murder.[7]
Luparello next attacks the theoretical underpinnings of conspiratorial and aiding-and-abetting liability, and specifically argues the murder here was the unplanned and unintended act of a coconspirator and therefore not chargeable to Luparello under either complicity theory.[8]
(16) Luparello first faults both theories for "imposing" the mens rea of the perpetrator upon him. As Luparello views it, both theories work to presume conclusively the accomplice shares the perpetrator's intent and thereby runs afoul of Sandstrom v. Montana (1979) 442 U.S. 510 [61 [439] L.Ed.2d 39, 99 S.Ct. 2450]. In Sandstrom, the trial court instructed the jury that the law presumed a person intends the ordinary consequences of his voluntary acts. The Supreme Court reasoned the jurors, so instructed, "... could reasonably have concluded that they were directed to find against the defendant on the element of intent. The State was thus not forced to prove `beyond a reasonable doubt ... every fact necessary to constitute the crime ... charged,'...." (Id. at p. 523 [61 L.Ed.2d at pp. 50-51].) The instruction was thus held constitutionally defective and violative of the defendant's due process rights. (Id. at pp. 522-523 [61 L.Ed.2d at p. 50].) Here, however, neither the conspiracy nor the aiding and abetting instructions recite the flawed presumption found in Sandstrom, nor do they present some equivalent of that presumption. Indeed, Luparello errs when he concludes the perpetrator and accomplice must "share" an identical intent to be found criminally responsible for the same crime. Technically, only the perpetrator can (and must) manifest the mens rea of the crime committed. Accomplice liability is premised on a different or, more appropriately, an equivalent mens rea. (Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323, 349, fn. 51 [hereafter cited as Complicity Doctrine].) This equivalence is found in intentionally encouraging or assisting or influencing the nefarious act. "[B]y intentionally acting to further the criminal actions of another, the [accomplice] voluntarily identifies himself with the principal party. The intention to further the acts of another, which creates liability under criminal law, may be understood as equivalent to manifesting consent to liability under the civil law." (Complicity Doctrine, supra, at pp. 354-355; see generally Robinson, Imputed Criminal Liability (1984) 93 Yale L.J. 609.) Thus, to be a principal to a crime, the conspirator need only intend to agree or conspire and to commit the offense which is the object of the conspiracy (People v. Horn (1974) 12 Cal.3d 290, 296 [115 Cal. Rptr. 516, 524 P.2d 1300]); while the aider and abettor must intend to commit the offense or to encourage or facilitate its commission (People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318]). Liability is extended to reach the actual, rather than the planned or "intended" crime, committed on the policy conspirators and aiders and abettors should be responsible for the criminal harms they have naturally, probably and foreseeably put in motion. And it is precisely this policy which Luparello next challenges.
As previously discussed, Luparello maintains neither complicity theory can, in logic, predicate a murder charge against him on the unintended act of a coconspirator and, as applied in this case, are therefore theoretically infirm. Professor Sandford Kadish recently examined this argument in his thoughtful and provocative article, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (Complicity Doctrine, supra, 73 Cal.L.Rev. 323). In Professor Kadish's schema, two distinct doctrines coexist to affix [440] criminal responsibility: causation and complicity. Causation links blame to the actor for those physical events which, once put in motion, relentlessly collide with one another, eventually resulting in demonstrable harm. Complicity doctrine, on the other hand, affixes liability derivatively, charging a secondary party, that is, a coconspirator or an aider and abettor, with the criminal act of the principal whom the secondary party has intentionally and knowingly influenced or assisted. Thus, acts done in furtherance of a conspiracy or assisted or facilitated by an aider and abettor present no obstacles to affixing liability under the respective complicity theories. So understood, complicity doctrine works to attach liability only when the secondary actor has intended his influence or assistance. (Id. at pp. 346-348.) The unintended consequence is beyond the scope of this theory. Nor, as Professor Kadish opines, can causation doctrine reach a principal's unintended acts to attach liability to the accomplice who neither intended nor anticipated the ultimate criminal act. As Professor Kadish explains: "We regard a person's acts as the products of his choice, not as an inevitable, natural result of a chain of events. Therefore, antecedent events do not cause a person to act in the same way that they cause things to happen, and neither do the antecedent acts of others. To treat the acts of others as causing a person's actions (in the physical sense of cause) would be inconsistent with the premise on which we hold a person responsible." (Id. at p. 333.) Thus, the uncaused nature of a principal's volitional act impairs, if not precludes, a causative explanation for accomplice liability for the natural, probable and reasonable, though unintended, consequences of the conspiracy or the aided and abetted crime. (Id. at pp. 398-403.)
While we do not dispute the metaphysics of Professor Kadish's conclusion, we question whether, in a real world sense, the choices of an intentionally influenced conspirator or aided and abetted principal are so wholly volitional the prime mover should escape moral blame and criminal culpability.[9] Indeed, in circumstances like the well-orchestrated, assisted and funded criminal plot undertaken by Luparello, we think not. As one commentator explained: "[T]he concept of agency explains a great deal about why we feel justified in punishing an accomplice as if she were the perpetrator. Perhaps, however, our feelings may be described better in terms of `forfeited personal identity.' Ordinarily a person is held criminally responsible for his [441] own actions. However, when an accomplice chooses to become a part of the criminal activity of another, she says in essence, `your acts are my acts,' and forfeits her personal identity. We euphemistically may impute the actions of the perpetrator to the accomplice by `agency' doctrine; in reality, we demand that she who chooses to aid in a crime forfeits her right to be treated as an individual. Thus, moral distinctions between parties are rendered irrelevant. We pretend the accomplice is no more than an incorporeal shadow." (Dressler, Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem (1985) 37 Hastings L.J. 91, 111, fn. omitted.) Professor Kadish himself noted: "It is apparent that the grip of the conception that a voluntary human action bars assigning causal responsibility to an earlier actor, pervasive as it is in the law, is loosened by the pull of the policy holding people liable for recklessly providing others with an occasion to do harm...." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 402.) (17a) The California Supreme Court implicitly recognized this "pull of policy" in the recent case of People v. Croy, supra, 41 Cal.3d 1: "The requirement that the jury determine the intent with which a person tried as an aider and abettor has acted is not designed to ensure that his conduct constitutes the offense with which he is charged. His liability is vicarious. Like the conspirator whose liability is predicated on acts other than and short of those constituting the elements of the charged offense, if the acts are undertaken with the intent that the actual perpetrator's purpose be facilitated thereby, he is a principal and liable for the commission of the offense. Also like a conspirator, he is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets.... [¶] It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury...." (Id. at p. 12, fn. 5, citations omitted, italics added.)
Adopting the reasoning of the Supreme Court, we find the conspiracy and aiding and abetting theories proffered here do not suffer the theoretical infirmities of which Luparello complains. In the circumstances of this case, each provides a sound basis to derive Luparello's criminal responsibility for first degree murder.
Luparello relies upon People v. Garewal (1985) 173 Cal. App.3d 285 [218 Cal. Rptr. 690], and People v. Henderson (1985) 163 Cal. App.3d 1001 [209 [442] Cal. Rptr. 883], to dissuade us from this conclusion. Neither, however, does so. In Garewal, the trial court modified the standard conspiracy instruction, CALJIC No. 6.11, to extend conspirator responsibility to the probable and natural consequence of the conspiracy "`... even though it was not intended as a part of the original plan, or was even actually forbidden as part of the original agreement ....'" (People v. Garewal, supra, at p. 299.) After reviewing both the principles and the criticisms of derivative responsibility in the conspiracy and aiding and abetting contexts, the court determined the modified instruction erroneously and unjustifiably extended conspirator liability. Concluding its updated analysis, the appellate court returned to historical roots: "[W]e conclude the clear thrust of Beeman is to contain the reach of vicarious criminal responsibility of conspirators to the natural and reasonable consequences of the conspiracy." (Id. at p. 302.) Though we have taken a different path, we concur with the conclusion of Division Three of this court. Finally, Henderson does not even reach the question of derivative liability for, under an erroneous aiding and abetting instruction, it could not be determined whether the defendant in that case acted with a specific intent to commit or facilitate the commission of the charged crime.
VI
SUFFICIENCY OF THE EVIDENCE
Luparello contends the evidence is insufficient to support (1) his criminal liability on either conspiracy or aiding and abetting theories and (2) his conviction for first degree murder. In support of his second contention, Luparello argues there is no evidence he premeditated or deliberated the killing of the victim. Luparello's liability, however, is affixed as a principal under both conspiracy and aiding and abetting theories. Luparello concedes Orduna, his coconspirator and aided and abetted colleague, was convicted of first-degree murder for killing while lying in wait (§ 189). Also, as is discussed below, sufficient evidence supports Orduna's conviction for premeditated and deliberate murder. Proof of Luparello's own premeditation and deliberation is therefore unnecessary if the evidence supports his derivative criminal liability for Orduna's acts. We thus review the evidence supporting the conspiracy and aiding and abetting theories.
(18) As previously discussed, a conspirator is criminally liable for the act of a coconspirator which follows as a probable and natural consequence of the common design, even though it was not intended as a part of the original design or common plan. (People v. Kauffman, supra, 152 Cal. at p. 334; People v. Martin (1983) 150 Cal. App.3d 148, 164 [197 Cal. Rptr. 655]; In re Darrell T. (1979) 90 Cal. App.3d 325, 334 [153 Cal. Rptr. 261].) [443] "The question of what constitutes a natural and probable consequence is one of fact for the jury." (People v. Martin, supra, at p. 164.) (19a) Here the object of the conspiracy was to garner information regarding the whereabouts of Terri and Ed Gadzinski by any means necessary, including assault.[10] Luparello specifically targeted Mark Martin for he believed Martin had contacted Ed Gadzinski or, at least, knew where he was residing. He solicited Orduna and Salmon's assistance in extracting information, forcefully if necessary, from Martin and paid them for their efforts. Luparello accompanied them on an abortive trip to confront Martin. He was aware Orduna and Salmon carried deadly weapons with them at that time. Luparello had also told them he wanted the information "at any cost." The following day Luparello told Hazel Schwulst he had some Mexicans who were going to take care of Mark Martin, and he met with Orduna and Salmon several hours before the shooting. He was again aware they were carrying deadly weapons. That a homicide resulted from a planned interrogation undertaken "at any cost" by armed men confronting an unwilling source is unquestionably the natural and probable consequence of that plan. The evidence thus supports Luparello's liability for the conspiratorial acts.
Luparello insists killing the victim was inconsistent with the conspiratorial goal of obtaining information regarding Terri's whereabouts and therefore could not be a natural and probable consequence of the conspiracy. While this reasoning is appealing, Luparello's overall conduct belies the conclusion he reaches. Luparello's effort to gain information was concerted, and the enlisting of Orduna and Salmon to interrogate and "thump" a would-be informer was not the only avenue of inquiry he pursued. Indeed, he contacted the police and relentlessly pursued Ed and Terri's friends and relatives for information. When his efforts went unrewarded and his frustrations mounted, Luparello's threats and intimidations became more pointed. His statement regarding Mexicans who were going to take care of the would-be victim is such an example. In this context, Martin's eventual killing may be seen as yet one more escalation of Luparello's desire to gain information "at any cost." While Martin obviously provided no information here, his death was a warning to those who had not yet assisted Luparello that they should. While, in retrospect, Martin's death may be seen as an unproductive means to learn of Terri's whereabouts, it is not inconsistent with that goal.
In examining the sufficiency of the evidence in the present case, we are guided by the appellate court's resolution of this same issue in People v. King (1938) 30 Cal. App.2d 185 [85 P.2d 928]. There, on strikingly similar [444] facts, the Court of Appeal determined an unplanned murder was the natural and probable consequence of a planned assault. As the court explained: "In the present case there is presented no question of death resulting from the commission of a simple assault.... There is here a death resulting from the use of a deadly weapon which the appellants say they never intended. Such weapon was, however, actually used, and by one who joined with them in the plan to beat up the deceased, which plan they counseled. The question is whether the use of such a deadly weapon upon the [victim] and his resulting death was a natural or probable consequence of the plan or agreement among the actual assailants and the appellants for which the appellants may be held liable, two of them, ... not being present.
"The character of the plan is of great importance. Here, several men set out to beat up another. In the words of [the defendant], he `sent them over to tamp the chief'. Preparations were made for trouble. It was known that he was vigorous and strong. One, at least, prior to setting out on the expedition, equipped himself with a bludgeon. At the scene of the expected trouble others were asked to stand by. Not being able to get at the victim the first day, the majority returned the second day and proceeded to the victim's place of abode aboard ship. They prepared, and were prepared, to meet force with force and to overcome resistance at any cost. The natural and probable consequence of such an undertaking is homicide, and the homicide here committed by one of the conspirators is nothing less than murder. All who combined to commit the unlawful act of violence are equally guilty. The law makes no distinction between them and each is responsible for the act of any other of the party in the prosecution of the original design. All joining in the enterprise are as guilty of murder as the person who actually caused the death. [Citations.]" (Id. at pp. 200-201.)
Luparello relies on People v. Werner (1940) 16 Cal.2d 216 [105 P.2d 927], to argue for a contrary conclusion. His reliance, however, is misplaced. In Werner two of three coconspirators entered a "secret agreement" for the precise purpose of concealing their conduct from the other member of the conspiracy. That member was nonetheless charged with the criminal consequence of the secret agreement. In reversing the uninvolved coconspirator's conviction, the Supreme Court held coconspirator liability would not attach when the act in question was "... the fresh and independent product of the mind of one of the confederates outside of, or foreign to, the common design...." (Id. at p. 223.) As the above review of the evidence shows, the killing here was a foreseeable, though as to Luparello a possibly unintended, consequence of the conspiracy. It was not, however, a fresh and independent act of a coconspirator and consequently cannot absolve Luparello from his shared criminal responsibility.
[445] Luparello also challenges the finding of criminal liability under an aiding and abetting theory.[11] Luparello does not deny he aided and abetted Orduna and Salmon, but instead rejects culpability because he had no knowledge the perpetrator(s) intended to kill the victim. This, however, is not the law. (17b) "[T]he aider and abettor in a proper case is not only guilty of the particular crime that to his knowledge his confederates are contemplating committing, but he is also liable for the natural and reasonable or probable consequences of any act that he knowingly aided or encouraged...." (People v. Durham (1969) 70 Cal.2d 171, 181 [74 Cal. Rptr. 262, 449 P.2d 198], italics omitted, citing People v. Villa (1957) 156 Cal. App.2d 128, 134 [318 P.2d 828].) (19b) Applying the above recited facts to this theory, we again find factual support for Luparello's criminal liability: he aided and abetted Orduna and Salmon in the planned confrontation of Mark Martin and the consequential assault naturally and reasonably resulted in Martin's death.
Luparello argues People v. Smith (Cal. App.) and People v. Butts (1965) 236 Cal. App.2d 817 [46 Cal. Rptr. 362], parallel the present facts and compel a finding favorable to him. However, the California Supreme Court granted hearing on Smith on January 27, 1983, vacating the opinion and later transferring the cause for further consideration. (People v. Smith (D004490) hg. granted Jan. 27, 1983 (Crim. 22953) cause trans. to Ct.App. Apr. 24, 1986, for reconsideration in light of Carlos v. Superior Court (1983) 35 Cal.3d 131 [197 Cal. Rptr. 79, 672 P.2d 862] and People v. Garcia (1984) 36 Cal.3d 539 [205 Cal. Rptr. 265, 684 P.2d 826].) This case cannot, therefore, provide the analytical parallels Luparello proposes. In Butts, the Court of Appeal found the alleged aider and abettor had no knowledge of the principal's wrongful purpose. Here, the evidence shows Luparello had knowledge of Orduna and Salmon's planned assault of Mark Martin, but does not clearly reveal his knowledge of the eventual murder. However, this knowledge, in contrast to Luparello's contention, is not necessary. As an aider and abettor, Luparello is responsible for the natural and probable consequences of the acts which he intentionally encourages.
In sum, substantial evidence supports the application of conspiracy and aiding and abetting theories. Luparello's first-degree murder conviction, predicated on the principals' conduct, is thus also substantially supported.[12]
[446]
VII
CRUEL OR UNUSUAL PUNISHMENT
(20a) In his reply brief, Luparello argues for the first time his sentence constituted cruel or unusual punishment under article I, section 17, of the California Constitution. Primarily relying on People v. Dillon (1983) 34 Cal.3d 441 [194 Cal. Rptr. 390, 668 P.2d 697], he argues his sentence was disproportionate when considering his individual culpability for the crimes. We disagree.
(21) In In re Lynch (1972) 8 Cal.3d 410 [105 Cal. Rptr. 217, 503 P.2d 921], our Supreme Court explicitly held a statutory punishment may be cruel or unusual, and hence violative of the state constitution, if it is grossly disproportionate to the offense for which it is imposed. (Id. at p. 424.) The United States Supreme Court reaffirmed a proportionality standard under the Federal Constitution in Enmund v. Florida (1982) 458 U.S. 782, 788 [73 L.Ed.2d 1140, 1146, 102 S.Ct. 3368]. After acknowledging the Legislature's function in defining crimes and prescribing punishments, the California Supreme Court in Dillon applied the reasoning of the above-cited cases to determine whether, given the circumstances of that case, a first degree murder punishment was "`... so disproportionate to the crime for which it [was] inflicted that it shock[ed] the conscience and offend[ed] fundamental notions of human dignity.'" (People v. Dillon, supra, 34 Cal.3d at p. 478, quoting In re Lynch, supra, 8 Cal.3d at p. 424.)
In Dillon, the defendant was a 17-year-old high school student who, along with six other schoolmates, planned a "rip-off" of marijuana growing in a mountain field. Several of the boys took guns with them to the field; the defendant carried a .22 caliber semi-automatic rifle. The group proceeded in their venture, and the defendant was stationed near the edge of the field. The defendant heard several shots and, believing his friends were being "blown away," became quite alarmed. Thereafter he was confronted by the victim who was carrying the shotgun. The defendant, according to his testimony, "`didn't know what to do'" and "`just pressed the trigger, I was so scared.... I just kept squeezing it, and shots just went off.'" (People v. Dillon, supra, 34 Cal.3d at p. 483.) The victim died several days later. The jury found the defendant guilty as charged. However, they expressed reservation about the harshness of the felony-murder rule and queried whether they could return a second degree murder verdict even though the killing occurred during the attempted robbery. After explicating the salient aspects in the nature of the offense and the offender vis-a-vis proportionate punishment (id. at p. 479), the Supreme Court found the defendant's life imprisonment sentence unconstitutionally excessive and modified the [447] conviction to second degree murder (id. at p. 489). In reaching its conclusion, the Supreme Court was persuaded by the reluctance of the jury to apply the felony-murder rule to the facts of the case, the defendant's immaturity and inability to foresee the risk of harm he was creating, the absence of any other criminal activity in the defendant's background, and the comparatively "petty chastisements" which were meted out to the other youths who participated in the same offenses. (Id. at pp. 487-488; see People v. Laboa (1984) 158 Cal. App.3d 115, 121 [204 Cal. Rptr. 181].)
(20b) While Luparello finds parallels between his circumstances and those of Dillon, we do not. Luparello was not an impetuous adolescent, but a learned and professional man in his mid-30's. Also, his charge arises as a consequence of a conspiracy he orchestrated, not as an application of the felony-murder rule. At all times, Luparello was the prime mover in the conspiracy. He coordinated meetings, gave directions, targeted the victim and paid for his coconspirators' assistance. Indeed, there is no question Luparello masterminded and encouraged the criminal cabal which ultimately resulted in the victim's death. Further, Luparello fails to identify any instance where the sentencing court did other than carefully and individually consider his sentence. We note the probation report did outline Luparello's otherwise nonviolent background, his exemplary behavior during incarceration and his apparent lack of a prior criminal record. Moreover, Luparello was sentenced after the court had thoroughly considered Orduna's individual culpability and just punishment. In stating: "[I]t is my intention to sentence the defendant in this case to the same [sentence] as I sentenced the defendant Orduna, ...", the sentencing court was implicitly finding Luparello as culpable as Orduna and thereby deserving of the same sentence. Thus, on this record we cannot say Luparello's individual culpability was ignored nor that his sentence constituted cruel or unusual punishment.
Having reviewed Luparello's contentions and finding no prejudicial error, we affirm.
ORDUNA'S APPEAL
VIII
PROSECUTORIAL MISCONDUCT, INSTRUCTIONAL ERROR AND CRIMINAL LIABILITY PREDICATED ON CONSPIRACY AND AIDING AND ABETTING THEORIES
Orduna reasserts Luparello's contentions regarding prosecutor misconduct, instructional error and improperly deriving criminal liability from conspiracy and aiding and abetting theories. We do not restate the arguments [448] here but similarly resolve them adversely to Orduna. Additionally, Orduna cites approximately 10 further instances of alleged misconduct in the pros9ecutor's colloquy. These are, however, bare allegations, stating neither the gravamen nor prejudice arising therefrom. After reviewing each of these allegations, we find no evidence of misconduct and also note Orduna failed to object to over half of these alleged wrongs. (People v. Green, supra, 27 Cal.3d at p. 34.) Further, Orduna argues the prosecutor, in effect, served as an unsworn witness by putting evidence of Orduna's alleged relationship with the F-Troop gang before the jury. In so doing, Orduna contends the prosecutor violated his Sixth Amendment right to confrontation. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal. Rptr. 141, 589 P.2d 396].) Yet, Orduna does not direct us to any particular incident in the record. The other misconduct allegations Orduna invites us to review show the trial court consistently safeguarded Orduna's Sixth Amendment rights by properly sustaining objections and admonishing the jury to limit the use of evidence to the purpose for which it was admitted. In effect, Orduna asks us to speculate about misconduct, and this we cannot do. He has the burden of proving such harm, and on this record has failed to sustain that burden.
IX
DENIAL OF THE MOTION TO SEVER
Orduna contends the trial court improperly denied his motion to sever and outlines five Massie[13] factors, all allegedly present in this case, which highlight the impropriety of the trial court's ruling. (22) These factors include: "(1) Where there is an extrajudicial statement made by one defendant which incriminates another defendant and which cannot adequately be edited to excise the portions incriminating the latter (People v. Aranda, 63 Cal.2d 518, 530-531 [47 Cal. Rptr. 353, 407 P.2d 265]; see also Bruton v. United States, 391 U.S. 123) [20 L.Ed.2d 476, 88 S.Ct. 1620]; (2) where there may be prejudicial association with codefendants (People v. Chambers, 231 Cal. App.2d 23, 28-29) [41 Cal. Rptr. 551]; (3) where there may be likely confusion from evidence on multiple counts (People v. Chambers, supra, p. 34); (4) where there may be conflicting defenses (Day v. State, 196 Md. 384, 391 [76 A.2d 729]); and (5) where there is a possibility that in a separate trial the codefendant may give exonerating testimony. (United States v. Echeles (7th Cir.1965) 352 F.2d 892, 898.)" (People v. Isenor (1971) 17 Cal. App.3d 324, 331 [94 Cal. Rptr. 746].) We review Orduna's argument on each of these factors.
(23) He first argues Luparello's extrajudicial statement, "[I have] some Mexicans that are going to take care of Mark Martin," is within the ambit [449] of People v. Aranda, supra, 63 Cal.2d 518, and Bruton v. United States, supra, 391 U.S. 123, and its subsequent admission necessitated severance. As previously stated, the Supreme Court in Aranda called for severing a joint trial when the prosecution seeks to introduce an extrajudicial statement of one defendant that implicates a codefendant. (People v. Aranda, supra, at pp. 530-531.) Here, Luparello's statement does not expressly implicate Orduna and should therefore not fall under the Aranda directive. Even assuming the implication in Luparello's statement were explicit, the admission of the statement in the joint trial did not violate the principle of Aranda.
Our courts have long recognized extrajudicial statements within the coconspirators' exception to the hearsay rule are not subject to the Aranda-Bruton rules. (People v. Brawley (1969) 1 Cal.3d 277, 286 [82 Cal. Rptr. 161, 461 P.2d 361].) Evidence Code section 1223 outlines this exception and provides: "Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if: [¶] (a) the statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy; ..." Luparello's statement was clearly made during the conspiracy and furthered the object of the conspiracy, that is, finding Terri and Ed Gadzinski, by attempting, through Hazel Schwulst's restatement of the threat, to badger and intimidate Mark Martin into revealing the Gadzinskis' whereabouts. Given this factual background, the statement was properly admitted.
(24) Orduna, however, argues the plan to locate the Gadzinskis was lawful and therefore cannot be the object of the conspiracy. He further reasons Luparello's statement thus cannot be said to further the conspiracy's objective and cannot properly be admitted under Evidence Code section 1223. Orduna misapprehends the law. Under our Penal Code and specifically section 182, "[a] criminal conspiracy is an agreement between two or more persons that they will commit an unlawful object (or achieve a lawful object by unlawful means), and in furtherance of the agreement, have committed one overt act toward the achievement of their objective." (People v. Fujita, supra, 43 Cal. App.3d at p. 471, italics added.) Thus, the search for the Gadzinskis, though arguably lawful, may indeed be a conspiratorial objective and statements, such as Luparello's, made to further it can be excepted from the hearsay rule.
Orduna mistakenly relies on People v. Williams (1979) 97 Cal. App.3d 382 [158 Cal. Rptr. 778], to argue the conspiratorial objective must be the substantive crime the conspirators plan. In Williams, the defendants sought to apply the statute of limitations rule for determining the termination of a conspiracy to demur to an indictment. This rule, stated in People v. Zamora [450] (1976) 18 Cal.3d 538, 554 [134 Cal. Rptr. 784, 557 P.2d 75], holds a conspiracy terminates upon the completion of its primary object and technically that means the substantive offense which the conspirators agree to commit. Here we are faced with an entirely different issue, and this reasoning, while correct, is inapposite. Thus, we find Luparello's statement was properly admitted, and the admission did not necessitate severance.
For the first time on appeal, Orduna argues the joint trial prejudicially associated him with Luparello, resulted in a confusion of issues, and precluded Luparello from giving exonerating testimony. These arguments, however, are based on sheer speculation. Orduna makes no reference to the record or any offer of proof that would support his contentions. Without a factual basis, we find no merit in his arguments.
(25) Orduna also asserts severance was necessary to preclude conflict between his and Luparello's defenses. Orduna grounds this argument on the exclusion of certain statements made by Salmon which allegedly exonerated Orduna and implicated Luparello. However, the record shows these hearsay statements were presented in the testimony of Salmon's onetime cellmate. Without a more substantial conflict, severance of the joint trial was unwarranted.
Having found no substantial basis for severing the trials, we find the trial court's denial of the motion was proper.
X
JURY BIAS AND INSUFFICIENCY OF EVIDENCE
Orduna recasts the prosecutor's alleged misconduct as having somehow denied him of a fair and impartial jury. Having already determined the prosecutor's conduct has caused no harm, we find no greater merit in its reassertion in a different guise. In summarizing his argument on this point, Orduna stated: "Perhaps the argument can be advanced that absent more concrete proof [of] `jury tampering' or showing that definite prejudicial statements were finally made to the jurors who decided the case, the issue of an impartial jury is not important." We concur with this assessment.
Orduna contends the evidence insufficiently supports his convictions for conspiracy and murder. (26) On appeal, the test is whether substantial [451] evidence supports the conclusion of the trier of fact, and not whether the evidence proves the defendant's guilt beyond a reasonable doubt. (People v. Reyes (1974) 12 Cal.3d 486, 497 [116 Cal. Rptr. 217, 526 P.2d 225].) Reversal is not warranted merely because the facts of the case might be reconciled contrary to the judgment. (People v. Reilly (1970) 3 Cal.3d 421, 425 [90 Cal. Rptr. 417, 475 P.2d 649].) (27) Here, Orduna met several times with Luparello, agreed to find Terri and Ed Gadzinski "at any cost," received money for his assistance, went while armed with a deadly weapon to Mark Martin's home, hid to avoid discovery while waiting to ambush Martin, returned to Martin's home on the day of the shooting, lured Martin within the shooter's range and was seen by Martin's mother fleeing the scene. Though other evidence may support other inferences, the facts outlined above substantially support the judgment.
XI
CRUEL OR UNUSUAL PUNISHMENT
Adopting the reasoning of Luparello's related assertion, Orduna contends his sentence, too, constituted cruel or unusual punishment. We find this contention patently without substance. After the jury determined Orduna should be penalized to life imprisonment without the possibility of parole, the sentencing court intervened to consider thoroughly Orduna's culpability and contributions to the crimes. After making detailed and thoughtful findings,[14] the sentencing court struck the special circumstance finding and sentenced Orduna to imprisonment for a term of 25 years to life. Thus, in contrast to Orduna's contention, the sentencing court did consider the circumstances of his crime and accordingly fashioned a just sentence. We find no cruel or unusual punishment on this record.
[452]
DISPOSITION
Judgments affirmed.
Kintner, J.,[*] concurred.
WIENER, J.
I concur in the majority opinion with the exception of sections V and VI in Luparello's appeal.[1] As to those issues, I concur in the result reached by the majority under the compulsion of People v. Beeman (1984) 35 Cal.3d 547, 560 [199 Cal. Rptr. 60, 674 P.2d 1318] and People v. Croy (1985) 41 Cal.3d 1, 12, footnote 5 [221 Cal. Rptr. 592, 710 P.2d 392]. Those cases require a holding that an aider and abettor or coconspirator is liable not only for those crimes committed by a cofelon which he intended or agreed to facilitate but also for any additional crimes which are "reasonably foreseeable."[2] The majority, citing Professor Kadish's recent article,[3] recognize a doctrinal tension in extending accomplice and conspiratorial liability beyond intended acts but conclude, based on Croy, that this principle of extended criminal liability does not suffer from any "theoretical infirmit[y]." (Maj. opn., ante, p. 441.)
The fact that the Supreme Court has announced a principle of law certainly requires that as an intermediate appellate court we follow it. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) This does not mean however, that the announced principle is either logically consistent or theoretically sound. On a prior occasion I expressed my concern with the legal principle at issue. My dissent in People v. Martin (1983) 150 Cal. App.3d 148, 170 [197 Cal. Rptr. 655], written before either Beeman or Croy was decided, failed to attract the attention of a majority of the Supreme Court. I will therefore not repeat [453] my discussion in Martin, which basically stated what I thought the law should be. Instead, I will briefly comment on what I perceive to be the serious incongruities created by the "foreseeable consequence" doctrine.
Professor Kadish argues that the theory underlying accomplice liability does not permit liability to attach to an accomplice or coconspirator for the acts of another unless the accomplice or coconspirator intended such acts. He explains that the "foreseeable consequence" doctrine "would seem to allow holding the accomplice for a crime of knowledge or purpose committed by the principal as long as he should have anticipated the principal's actions." (73 Cal.L.Rev. at p. 352.)
The major fallacy I see in the "foreseeable consequence" doctrine is not so much that it attributes an unintended act to the accomplice/coconspirator but rather that it assesses the degree of his culpability for that act not by his own mental state but rather by the mental state of the perpetrator and/or the circumstances of the crime. The present case provides an appropriate example. The assault on Mark Martin contemplated by the conspiracy involved a foreseeable risk of death or serious injury. We can assume (although there was no jury finding on the issue) that Luparello was criminally negligent in failing to appreciate the degree of risk. Under usual circumstances, a person negligently causing the death of another is guilty, at most, of involuntary manslaughter. Here, however, Luparello's liability is not based on his individual mental state but instead turns on the jury's finding that the unidentified shooter intentionally killed Martin while lying in wait. Thus, Luparello is guilty of first degree murder. If the circumstances of Luparello's participation were exactly the same but the shooter did not "lie in wait," Luparello could only be convicted of second degree murder. I am intrigued by the notion that if unknown to Luparello, the shooter ingested drugs and/or alcohol to the point where he did not in fact harbor the requisite malice, Luparello would presumably be guilty only of voluntary manslaughter. And to take it a step further, if it turned out the shooter was insane, would Luparello have no liability at all for Martin's homicide? As I explained in my Martin dissent, I find such fortuity of result irrational. So too, apparently, do Professors LaFave and Scott in their treatise on criminal law: "The `natural and probable consequence' rule of accomplice liability, if viewed as a broad generalization, is inconsistent with more fundamental principles of our system of criminal law. It would permit liability to be predicated upon negligence even when the crime involved requires a different state of mind. Such is not possible as to one who has personally committed a crime, and should likewise not be the case as to those who have given aid or counsel." (LaFave & Scott, Handbook on Criminal Law (1972 ed.) p. 516.)
[454] The drafters of the Model Penal Code reached a similar conclusion. Section 2.06(3)(a) establishes a standard for accomplice liability which, like California's governing Beeman standard, requires that the accomplice act "with the purpose of promoting or facilitating the commission of the offense, ..." Missing from the Model Penal Code, however, is any reference to the "foreseeable consequence" doctrine. The Comment to the section addresses the issue as follows: "[The accomplice] must have the purpose to promote or facilitate the particular conduct that forms the basis for the charge, and thus he will not be liable for conduct that does not fall within this purpose. [¶] This does not mean, of course, that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute or commit an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it. ..." (Model Pen. Code & Commentaries, com. 6(b) to § 2.06, pp. 310-311, italics added.) In support of this reasoning the drafters quoted from a conspiracy decision written by Judge Learned Hand: "At times it seemed to be supposed that, once some kind of criminal concert is established, all parties are liable for everything anyone of the original participants does, and even for what those do who join later. Nothing could be more untrue. Nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it; if later comers change that, he is not liable for the change;...." (United States v. Peoni (2d Cir.1938) 100 F.2d 401, 403.)
In contrast to the majority, which seeks to distinguish the "forseeable consequence" doctrine from the "disfavored" felony-murder rule (see maj. opn., ante, p. 437), I view both as being founded on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law, we need not be terribly concerned that the contemplated crime was far less serious than the crime which actually took place. Consider the following discussion in the Supreme Court's Croy decision: "It follows that a defendant whose liability is predicated on his status as an aider and abettor need not have intended to encourage or facilitate the particular offense ultimately committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator. It is the intent to encourage and bring about conduct that is criminal, not the specific intent that is an element of the target offense, which Beeman holds must be found by the jury." (41 Cal.3d at p. 12, fn. [455] 5, italics added.) Contrast it with the following description of the theoretical basis for the felony-murder rule in LaFave and Scott's treatise: "The rationale of the doctrine is that one who commits a felony is a bad person with a bad state of mind, and he has caused a bad result, so that we should not worry too much about the fact that the fatal result he accomplished was quite different and a good deal worse than the bad result he intended." (LaFave & Scott, op. cit. supra, at p. 560.)
In our means-oriented society, to have the end alone justify the punishment is unconscionable. The artificial imputation of stepped-up intent, inherent in both the felony-murder rule and the "foreseeable consequence" doctrine, is inconsistent with the "universal and persistent" notion that criminal punishment must be proportional to the defendant's culpable mental state. (See Morissette v. United States (1952) 342 U.S. 246, 250-251 [96 L.Ed. 288, 293-294, 72 S.Ct. 240].) Justice Mosk's dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal. Rptr. 275, 477 P.2d 131] expressed it well: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination." The fact that the accomplice or coconspirator intended to facilitate some less serious criminal act does not render these fundamental principles inapplicable. As the United States Supreme Court has explained, "The constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. E.g., Mullaney v. Wilbur, 421 U.S. at 697-698 (requirement of proof beyond a reasonable doubt is not `limit[ed] to those facts which, if not proved, would wholly exonerate' the accused). Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." (Jackson v. Virginia (1979) 443 U.S. 307, 323-324 [61 L.Ed.2d 560, 576-577, 99 S.Ct. 2781].)
By these references I do not mean to suggest that the "foreseeable consequence" doctrine is unconstitutional, although an argument can be made in that regard. (Cf. People v. Dillon (1983) 34 Cal.3d 441, 495-498 [194 Cal. Rptr. 390, 668 P.2d 697] (conc. opn. of Bird, C.J.).) Here, however, Luparello has been convicted of first degree murder under circumstances where, in the absence of the "foreseeable consequence" doctrine, he would be guilty at most of involuntary manslaughter. As to the felony-murder rule, the Supreme Court has concluded the rule is a creature of statute, codified by the Legislature in Penal Code section 189 and, as such, must be applied by the courts. (See People v. Dillon, supra, 34 Cal.3d at pp. 450, 472.) No similar impediment appears with respect to the "foreseeable consequence" doctrine. It is purely a creature of judicial interpretation subject [456] to the thoughtful evolution of the common law. As scholars and commentators have consistently concluded, the time for considered reevaluation is long overdue.
The petition of appellant Luparello for review by the Supreme Court was denied February 11, 1987.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] The court later ruled admission of the informers' statements would violate the defendants' confrontation clause rights established in People v. Aranda (1965) 63 Cal.2d 518 [47 Cal. Rptr. 353, 407 P.2d 265] and Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476, 88 S.Ct. 1620]. (See also People v. Leach (1975) 15 Cal.3d 419 [124 Cal. Rptr. 752, 541 P.2d 296]; People v. Coble (1976) 65 Cal. App.3d 187 [135 Cal. Rptr. 199].)
[3] Luparello argues CALJIC Nos. 4.71.5 and 17.01, if given, would have remedied the alleged error. No. 4.71.5 provides: "And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
CALJIC No. 17.01 similarly provides: "He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict."
[4] The California Supreme Court in the recent case of People v. Croy (1985) 41 Cal.3d 1 [221 Cal. Rptr. 592, 710 P.2d 392], noted a jury is not required to make a special finding as to which of several alleged acts constituted the specific overt act underlying a conspiracy conviction. (Id. at p. 17.)
[5] As modified in this case, CALJIC No. 6.11 in its entirety provides: "Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if said act or said declaration is in furtherance of the object of the conspiracy.
"The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. Every conspirator is legally responsible for an act of a coconspirator that follows as one of the probable and natural consequences of the object of the conspiracy even though it was not intended as a part of the original plan and even though he was not present at the time of the commission of such act; this instruction does not apply to the special circumstance allegation in this case."
[6] "Unlike the case of a fatal blow struck with malice in which the battery is merged in the murder because it is an integral part of the homicide itself, a conspiracy, in most jurisdictions, is a distinct offense quite apart from the contemplated crime. Because of this fact the notion that a conspiracy is merged in the resulting offense is unsound and has been quite generally rejected in this country...." (Perkins & Boyce, Criminal Law (3d ed. 1982) pp. 687-688, fns. omitted.)
[7] In this context Luparello also contends the asserted error is exacerbated by misinstruction on implied malice. He specifically contends CALJIC No. 8.11 "did not inform the jury that it must find that the defendant must harbor an actual appreciation of the risk involved — i.e., a risk of death." We find Luparello misreads this instruction. As given here, CALJIC No. 8.11 provides: "Malice is implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life by which is meant an awareness of a duty imposed by law not to commit such acts followed by the commission of the forbidden act despite that awareness." (Italics added.) The level of subjective awareness required for an implied malice finding are adequately explicated by the instructional language we have italicized. (People v. Poddar (1974) 10 Cal.3d 750, 755-756 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Summers, supra, 147 Cal. App.3d at p. 184.)
[8] For the purpose of this discussion, we will treat conspiracy and aiding and abetting as subspecies of the same general theory of complicity. We are mindful not all commentators would agree with such a categorization (see, Note, Development in the Law — Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 998-999), but find this usage acceptable for the limited inquiry on which we embark.
[9] After recognizing causal responsibility has been extended in tort to reach an actor's conduct which is not wholly volitional, Professor Kadish suggested "the problem of the reach of criminal law is hardly different depending on the volitionality of the primary actor's conduct." (Complicity Doctrine, supra, 73 Cal.L.Rev. at p. 404, fn. omitted.) To this, he footnoted an apt example: "Consider the case of a police guard who negligently leaves his gun in the open ward of a mental hospital. If an incompetent person uses the gun to kill, the criminal law permits the guard to be held for manslaughter on a causation theory. There is no greater peril to ordinary behavior if the guard is also made liable when a competent visitor uses the gun to kill." (Id. at p. 404, fn. 260.)
[10] As we discuss at section IX, post, it is the conspiratorial pursuit of an otherwise lawful object by unlawful means that makes the combination a crime. (People v. Fujita (1974) 43 Cal. App.3d 454, 471 [117 Cal. Rptr. 757].)
[11] The aiding and abetting instruction given in the present case was modified in accordance with People v. Tewksbury (1976) 15 Cal.3d 953 [127 Cal. Rptr. 135, 544 P.2d 1335], to require proof of a shared criminal intent. Luparello does not challenge the adequacy of this instruction as applied in the present case.
[12] Luparello additionally argued since either the conspiracy or aiding and abetting theories were inaccurately applied and the particular theory on which the jury relied could not be determined, he was entitled to a reversal of his murder conviction. (People v. Green, supra, 27 Cal.3d at p. 69.) However, as we have determined, both theories were appropriately applied to the present facts, and hence Luparello's argument must fail.
[13] People v. Massie (1967) 66 Cal.2d 899 [59 Cal. Rptr. 733, 428 P.2d 869].
[14] Some of the factors considered were outlined in the minute order of the sentencing hearing:
"1. The interests of justice would be better served by life with parole in Carlos Orduna's case.
"2. That the public safety would not require a life sentence without parole.
"3. Defendant Orduna played a minor role in the crime.
"4. The Defendant, with no apparent predisposition to do so, was induced by others to participate in the crime.
"5. Lack of significant prior criminal conduct.
"6. That Orduna did not know and had no personal intent to kill the victim and was not personally violent in the homicide.
"7. That Orduna expressed remorse about the killing and was afraid to testify against the actual killer.
"8. Defendant's sister's testimony, his remarks to the doctors and his counsel's approach to defending the case brought more evidence to light which may well aid in the prosecution of the other perpetrators."
[*] Assigned by the Chairperson of the Judicial Council.
[1] Although Orduna makes the same arguments as Luparello, his position is largely undercut by the explicit jury finding that he intentionally killed Mark Martin while lying in wait. Thus his liability need not be based on the fact that Martin's death was a reasonably foreseeable consequence of the conspiracy to assault.
[2] Henceforth I refer to this principle as the "foreseeable consequence" doctrine because that is the terminology used in Croy. I am concerned, however, about how a principle which was originally phrased in terms of "probable and natural consequences" (see People v. Kauffman (1907) 152 Cal. 331, 334 [92 P. 861]) was slightly modified to become the "natural and reasonable consequences" (see Beeman, supra, 35 Cal.3d at p. 560) and has now been saddled with a monicker traditionally associated with theories of expanding tort liability. (See, e.g., Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal. Rptr. 448, 539 P.2d 36].) If we were to return to strict interpretation of the "natural and probable" standard, I would argue that liability could not be imposed here on Luparello because it in no sense can be said that Mark Martin's death was the "probable" result of a conspiracy to assault him in order to obtain information.
[3] See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine (1985) 73 Cal.L.Rev. 323.
7.2.8.8.1.4. Model Penal Code sec. 2.06
7.2.8.8.1.5 State v. McVay 7.2.8.8.1.5 State v. McVay
47 R.I. 292
STATE vs. GEORGE W. MCVAY, JOHN A. GRANT, GEORGE J.
KELLEY.
STATE vs. SAME.
STATE vs. SAME.
The Supreme Court of Rhode Island
MARCH 3, 1926.
(1) Criminal Law. Accessory Before Fact. Involuntary Manslaughter.
Indictment charged captain and engineer of vessel with manslaughter, as a result of criminal negligence connected with the operation of the ship's boiler, with the result that an explosion occurred killing a passenger, and charged defendant as an accessory before the fact:
Held, that premeditation is not inconsistent with every charge of manslaughter, and a defendant may be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence.
(2) Indictments. Malice.
Malice in its legal sense, which is the state of mind manifested by intent to commit an unlawful act against another, may exist without actual intention of any mischief if the killing is the actual consequence of careless action.
(3) Criminal Law. Manslaughter. Malice.
Malice in the sense of general criminal intent exists in manslaughter, and the term “maliciously” used in an indictment charging defendant as an accessory before the fact to crime of manslaughter, in having with knowledge of danger procured captain and engineer of vessel to develop steam in a boiler known to be unsafe with the result that it exploded, killing a passenger means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life.
(4) Involuntary Manslaughter.
“Involuntary" as applied to manslaughter, characterizes the result of the act, not the doing of the act, and may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. Hence an indictment for involuntary manslaughter may properly charge certain defendants, while exercising no conscious volition to take life, with negligence of such a character that criminal intention can be presumed and it may also charge a defendant as an accessory before the fact in intentionally directing and counseling the grossly negligent act.
INDICTMENTS charging manslaughter. Certified on question of doubt under Gen. Laws, 1923, cap. 348, sec. 5.
BARROWS, J.
Heard on a certification of a question of law before trial. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer of the Steamer Mackinac as principals and against Kelley as accessory before the fact. The steamer carried several hundred passengers from Pawtucket to Newport via Narragansett Bay. The boiler producing the steam by which the vessel was propelled, burst near Newport and many lives were lost. The present indictments are for causing the deaths of three persons killed by escaping steam after the explosion of the boiler.
Demurrers, on grounds that the indictments improperly combined a charge of assault and negligence and that there was an improper joining of principal and accessory before the fact, were overruled. Two additional grounds of demurrer set up by defendant Kelley were not decided but were deemed of such doubt and importance that the question raised by them was certified to this court for determination, under General Laws, 1923, Chapter 348, Section 5.
We are not now concerned with the correctness of the lower court’s rulings on the demurrers. Exceptions to those rulings have been taken and the defendants’ rights reserved. Our present question relates solely to Kelley’s grounds of demurrer which were not acted upon. The same question is raised upon each indictment. That question is:
“May a defendant be indicted and convicted of being an accessory before the fact to the crime of manslaughter arising through criminal negligence as set forth in the indictment?”
That the indictment charges manslaughter against the captain and engineer as a. result of criminal negligence connected with the operation of the ship’s boiler for present purposes is not disputed. Neither is there dispute as to the meaning of accessory before the fact. He is “one who, being absent at the time the crime is committed, yet procures, counsels or commands another to commit it”. 1 Proc. p. 65. In the first count the negligence charged is the “wanton and willful” creation of any steam in 3, boiler known to be worn, corroded, defective and `unsafe, as a result whereof an explosion occurred killing a passenger; the charge against Kelley as accessory is that “before said felony and manslaughter was committed,” . . . he did at Pawtucket “feloniously and maliciously aid, assist, abet, counsel, hire, command and procure the said George W. McVay and John A. Grant, the said felony and manslaughter in manner and form aforesaid to do and commit”. The latter is substantially the language applied to Kelley as accessory in the other three counts. The second count of the indictment charges knowledge of the strength and capacity of the boiler on the part of the principals and negligence in developing more steam than the boiler could safely hold. The third count charges a lack of reasonable care in generating steam in a boiler known to be so worn, etc., as to be unsafe and the fourth count charges that defendants having control of generating steam and knowing the boiler to be defective so disregarded their duty that the explosion followed.
The State, substantially adopting the definition of manslaughter as given in Wharton on Homicide, 3rd ed. p. 5, defines it as “The unlawful killing of another without malice either express or implied”. The State further refers to the charge in the indictment as “involuntary manslaughter, that is, the killing of another without malice and unintentionally in negligently doing an act lawful in itself and in the negligent omission to perform a legal duty”. Because the manslaughter charge is “Without malice and “involuntary” Kelley contends that he can not be indicted legally as an accessory before the fact. The argument is that manslaughter being a Sudden and unpremeditated crime inadvertent and unintentional by its very nature can not be “maliciously” incited before the crime is committed. Such is the view expressed by text-writers, decision or dicta, in 1 Hale, P. C. 437, 615, 616; Hawkins, P. C. Chap. 30, 2, manslaughter; Goff v. Byby, 2 Cro. Eliz. 540 ; Bibith’s Case, 4 Coke Rep. 43 b; Archbold, Crim. Prac. & Proc. 8th ed. Vol. 1, pp. 65, 66; 4 Blackstone commentaries, 36 and 191; State v, Kinchen, 126 La. p. 39 (1910); Adams v. State, 65 Ind. 565; Wharton on Homicide, 59, pp. 75, 76; 13 R. C. L., § 25, p. 726; State V. Kennedy, 95 S. E. (S. C.) 350 (1918); State v. Robinson, 12 Wash. 349 (1895); Bowman v. State, 20 S. W. 558, (Tex.) (1892). In most of these citations a charge of murder was under consideration and the theory was that, after a conviction for manslaughter was had, there could be no accessory before the fact. Some of these authorities state broadly that there can be no accessory before the fact in manslaughter giving the reasons now urged by Kelley.
While everyone must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, we do not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor Vehicle laws or administration of drugs to procure an abortion. 29 C.J. § 136, p. 1149. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. 29 C.J. § 141, p. 1154. There is no inherent reason Why, prior to the commission of such a crime, one may not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. 1 R.C.L. 24, p. 146. 29 Corpus Juris, 38, p. 1067, says: “At common law there may be accessories before the fact to involuntary manslaughter.” Cases considering the question before us are Queen V. Smith & Taylor, 2 Cox. Cr. Cas. 233 (1847) quaere; Reg. V. Gaylor, 7 Cox Cr. Cas. 253 (1857); Russell on Crimes, 7th Eng. lst Canadian ed. 119, 779, 780; Rex V. Russell, 1 Moody Cr. Cas. 356 ; Mathis V. Slate, 45 Fla. 46, at 69; Commonwealth V. Adams, 127 Mass. 15 (1879); State V. Coleman, 5 Porter, 32 (Ala.) (1837); State V. Hermann, 117 Mo. 629; V. State, 11»Ind. 62 (1858) quaere; Rex V. Brooks, 9 Br. Col. 13; 1 Bishop on Cr. L. 8th ed. Vol. 1, § 678, pp. 412, 413. The latter states:
“Manslaughter does not commonly admit of an accessory before the fact, because when the killing is of previous malice, it is murder. This is the ordinary doctrine yet probably there may be a manslaughter wherein this is not so, as, if one should order a servant to do a thing endangering life yet not so directly as to make a death from the doing murder, it might be manslaughter then, why should not the master be an accessory before the fact in the homicide?”
Decisions in the above cases pro and con are sometimes confusing because of failure to keep clear the difference in popular and legal meaning of the words “malice” and “involuntary”. In a popular sense “malice” means hatred, ill will or hostility to another; in law it means “the state of mind manifested by an intent to commit an unlawful act against another”. Webster’s New Int. Diet. In Commonwealth 9 Met. 93, at 104, SHAW, C. J., defines “malice” as “the willful doing of an injurious act without lawful excuse”. See also Words & Phrases. It may be found in an act shown by the circumstances to wickedly or willfully disregard the rights or safety of others. Commonwealth v. Webster, 5 Cush. 295; People V. Davis, 8 Utah, 412. Malice in its legal sense may exist without actual intention of any mischief if the killing is the actual consequence of careless action. Penn. v. Bell, Pa., Addison 156, s. c.1 Am. Dec. 298 at 301. Hence, reference to manslaughter as being “without malice" needs close scrutiny. The use of the term “without malice” in the State’s definition of manslaughter, supra, is, as often in the text-writer’s, for the purpose of distinguishing manslaughter from murder, State V. Fenik, 45 R. I. 309, at 314, rather than to give an all inclusive definition of manslaughter. Malice in the sense of general criminal intent exists in manslaughter, and Wharton Says the distinction between express and implied malice is unsound. “ There is no case of homicide in which the malice is not implied; none in which it is from the circumstances of the case.” Wharton on Homicide, 84, p. 104; United States v. King, 34 Fed. 302. When, therefore, “maliciously” is used in this indictment as against Kelley, it means that he is charged with acting with an unlawful intent by reason of directing the principals to act with utter disregard of consequences to human life. Commonwealth v. Adams, 127 Mass. 15; Commonwealth V. Webster, 5 Cush. 295.
“Invo1untary,” in common parlance means not in accordance with the actor’s will or choice. Webster’s New Int. Dict. As applied to charges of manslaughter it may cover cases of volitionally doing a lawful act wantonly or in a grossly careless manner. “Involuntary” used in connection with manslaughter, characterizes the result of the act, not the doing of the act. It does not mean that volition was not present in the negligent act from which the death resulted. Voluntary manslaughter is often described as per unlawful taking of human life under circumstances falling short of willful or deliberate intent to kill and yet approaching too near thereto to be justifiable homicide. The law does not permit defendant in such a case to say that he did not intend the consequences of his act. See classification of voluntary and involuntary slaughter in 29 C. J. 1047.
By keeping these distinctions in mind, the present indictment for involuntary manslaughter is not self-contradictory when it charges Kelley to be an accessory before the fact. It was possible for him at Pawtucket to intentionally direct and counsel the grossly negligent act which the indictment charges resulted in the crime. Involuntary manslaughter, as set forth in this indictment means that defendants exercised no conscious volition to take life but their negligence was of such a character that criminal intention can be presumed. 29 C. J. 1154. The crime was consummated when the explosion occurred. The volition of the principals was exercised when they chose negligently to create steam which the boiler could not carry. The doing of the act charged or failure t6 perform the duty charged was Voluntary and intentional in the sense that defendants exercised a choice among courses of conduct. It is obvious that Kelley could participate and is charged with participating in procuring defendants to act in a grossly negligent manner prior to the explosion. Legal precedents based upon facts unlike the present ones do not convince us that he could not have been an accessory before the fact.
We have been referred to no case of an accessory before the fact on an indictment charging negligent manslaughter. The absence of such eases may be due to the fact that, by statute, in many jurisdictions accessories before the fact are treated as principals. Our statute relates only to their punishment and not to the nature of the offence. Gen. Laws 1923, Chap. 402, Sec. 2 (6251). The case of United States v. Van Schaick, 134 Fed. 592, treated all defendants as principals, holding the directors of a steamboat company negligent in failing to provide life preservers as a result of which many passengers were drowned. The negligence was held to be a continuing cause actually operating to produce the deaths though the directors personally were not present at the moment of death. The negligence charged against Kelley is not of this type.
We are convinced that in some types of manslaughter there may be an accessory before the fact and from our study of the present indictments we believe they aver such cases. Specific duties are stated to have been laid upon the captain and engineer. Defendant is charged with full knowledge of those duties and of the fact that the boiler was unsafe. He is charged with counseling and procuring the principals at Pawtucket to disregard their duties and negligently create steam. Until the explosion no crime was committed. Defendant was not present when the negligence resulted in a criminal act. The advice at Pawtucket was not continuing negligence on Kelley’s part. The facts set forth in these indictments, if existent, are such that a jury might find that defendant Kelley, with full knowledge of the possible danger to human life, recklessly and willfully advised, counseled and commanded the captain and engineer to take a chance by negligent action or failure to act.
We therefore answer the question certified on each indictment in the affirmative. The papers in each case, with this decision certified thereon, are sent back to the Superior Court for further proceedings.
Charles P. Sisson, Attorney General, Oscar L. Heltzen, Asst. Attorney General, for State.
7.2.8.8.1.6 Wilcox v. Jeffery 7.2.8.8.1.6 Wilcox v. Jeffery
WILCOX v. JEFFERY.
[King's Bench Division (Lord Goddard, C.J., Humphreys and Devlin, JJ.), January 26, 1951.]
Alien - Breach of condition of leave to land - Aiding and abetting- Presence of music critic at concert - Leave to musician subject to condition not to take employment - Performance at concert - Aliens Order, 1920 (S.R. & O., 1920, No. 448), art. 18 (2).
On Dec. 11, 1949, one H., a musician and a citizen of the United States, was granted permission to land in the United Kingdom under art. 1 (4) of the Aliens Order, 1920, on condition that during his stay he would not take any employment, paid or unpaid. The appellant was present at the airport when H. landed and knew what condition had been imposed. That night H. attended a concert in a London theatre, and, on the invitation of the organisers of the concert, he gave a performance on the saxophone with other musicians. The appellant was present in the theatre throughout the concert, having paid for admission thereto, and later he wrote a laudatory commentary on H.’s performance in a magazine of which he was owner and managing editor and also published in the magazine a number of photographs.
HELD: the appellant’s presence at the concert was not accidental, and in the circumstances it was open to the magistrate to that his presence was an encouragement to H. to commit an offence against art. 1 (4) of the Order, and, therefore, under art. 18 (2), to convict him of aiding and abetting.
R. v. Coney (1882) (8 Q.B.D. 534), applied. [As to CRIMINAL RESPONSIBILITY FOR AIDING AND ABETIING OFFENCES, see HALSBURY, Hailsham Edn., Vol. 9, pp. 30-32, paras. 30, 31; and FOR CASES, see DIGEST, Vol. 14, pp. 91-94, Nos. 605-638, and Digest Supp., and 2nd Digest Supp.
AS TO THE CONDITIONAL LANDING OF ALIENS, see HALSBURY, Hailsham Edn., Vol. 1, p. 476, para. 805.]
Case referred to:
(1) R. v. Coney, (1882), 8 Q.B.D. 534; 51 L.J.M.C. 66; 46 L.T. 307; 46 J.P. 404; 15 Digest 645, 6870.
CASE STATED by a metropolitan magistrate.
At a court of summary jurisdiction sitting at Bow Street Magistrate’s Court the appellant, Herbert William Wilcox, owner and managing editor of a monthly magazine entitled "Jazz Illustrated,” was charged with aiding and abetting one Coleman Hawkins, a citizen of the United States, in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land in the United Kingdom, namely, that Hawkins should take no employment paid or unpaid during his stay, contrary to art. 18 (4) of the Order. It was proved or admitted that on Dec. 11, 1949, Hawkins arrived at a London airport and was met by, among others, the appellant. The appellant was present when an immigration officer interviewed two other persons who had previously applied for permission for Hawkins to perform at a concert in London, but had been told by the Ministry of Labor that their application had been refused. At that interview it was stated that Hawkins would attend the concert and would be spotlighted and introduced to the audience, but would not perform. The appellant said he was not connected with the persons responsible for organising the concert and that he had only gone to the airport to report Hawkins’ arrival for his magazine. The immigration gave permission to Hawkins to remain for three days in this country, making it a condition that he should not take any paid or unpaid employment. The appellant was aware that such a condition had been imposed. Later the same day the appellant attended the concert, paying for admission. Hawkins was seated in a box, but after being "spotlighted" he went on the stage and played the saxophone. A description of the performance by Hawkins with several pages of photographs was later published in the appellant’s magazine. The magistrate was of the opinion that the appellant aided and abetted the contravention of the Order by Hawkins and imposed a fine of £25 and £21 costs.
Rountree for the appelant.
J.M.G. Griffith-Jones for the respondent.
LORD GODDARD, C.J.: This is a case stated by the metropolitan magistrate at Bow Street Magistrate’s Court before whom the appellant, Herbert William Wilcox, the proprietor of a periodical called "Jazz Illustrated,” was charged on an information that “on Dec. 11, 1949, he did unlawfully aid and abet one Coleman Hawkins in contravening art. 1 (4) of the Aliens Order, 1920, by failing to comply with a condition attached to a grant of leave to land, to wit, that the said Coleman Hawkins should take no employment paid or unpaid while in the United Kingdom, contrary to art. 18 (2) of the Aliens Order, 1920.” Under the Aliens Order, art. 1 (1), it is provided that
". . . an alien coming . . . by sea to a place in the United Kingdom -- a) shall not land in the United Kingdom without the leave of an Immigration officer. . .”
It is provided by art 1 (4) that:
“An immigration officer, in accordance with general or special directions of the Secretary of State, may, by general order or notice or otherwise, attach such conditions as he may think fit to the grant of leave to land, and the Secretary of State may at any time vary such conditions in such manner as he thinks fit, and the alien shall comply with the conditions so attached or varied . . .”
If the alien fails to comply, he is to be in the same position as if he has landed without permission, i.e.,he commits an offence.
The case is concerned with the visit of a celebrated professor of the saxophone, a gentleman by the name of Hawkins who was a citizen of the United States. He came here at the invitation of two gentlemen of the name of Curtis and Hughes, connected with a jazz club which enlivens the neighbourhood of Willesden. They, apparently, had applied for permission for Mr. Hawkins land and it was refused, but, nevertheless, this professor of the saxophone arrived with four French musicians. When they came to the airport, among the people who were there to greet them was the appellant. He had not arranged their visit, but he knew they were coming and he was there to report the arrival of these important musicians for his magazine. So, evidently, he was regarding the visit of Mr. Hawkins as a matter which would be of interest to himself and the magazine which he was editing and selling for profit. Messrs. Curtis and Hughes arranged a concert at the Princes Theatre, London. The appellant attended that concert as a spectator. He paid for his ticket. Mr. Hawkins went on the stage and delighted the audience by playing the saxophone. The appellant did not get up and protest in the name of the musicians of England that Mr. Hawkins ought not to be here competing with them and taking the bread out of their mouths or the wind out of their instruments. It is not found that he actually applauded, but he was there having paid to go in, and, no doubt, enjoying the performance, and then, lo and behold, out comes his magazine with a most, laudatory description, fully illustrated, of this concert. On those facts the magistrate has found that he aided and abetted.
Reliance is placed by the prosecution on R. v. Coney (1) which dealt with a prize fight. This case relates to a jazz band concert, but the particular nature of the entertainment provided, whether by fighting with bare fists or playing on saxophones, does not seem to me to make any difference to the question which we have to decide. The fact is that a man is charged with aiding and abetting an illegal act, and I can find no authority for saying that it matters what that illegal act is, provided that the aider and abettor knows the facts sufficiently well to know that they would constitute an offence in the principal. In R. v. Coney (1) the prize fight took place in the neighbourhood of Ascot, and four or five men were convicted of aiding and abetting the fight. The conviction was quashed on the ground that the chairman had not given a correct direction to the jury when he told them that, as the prisoners were physically present at the fight, they must be held to have aided and abetted. That direction, the court held, was wrong, it being too wide. The matter was very concisely put by CAVE, J., whose judgment was fully concurred in by that great master of the criminal law, STEPHEN, J. CAVE, J., said (8 Q.B.D. 540):
"Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is prima facie not accidental it is evidence, but no more than evidence, for the jury.”
There was not accidental presence in this case. The appellant paid to go to the concert and he went there because he wanted to report it. He must, therefore, be held to have been present, taking part, concurring, or encouraging, whichever word you like to use for expressing this conception. It was an illegal act on the part of Hawkins to play the saxophone or any other instrument at this concert. The appellant clearly knew that it was an unlawful act for him to play. He had gone there to hear him, and his presence and his payment to go there was an encouragement. He went there to make use of the performance, because he went there, as the magistrate finds and was justified in finding, to get "copy" for his newspaper. It might have been entirely different, as I say, if he had gone there and protested, saying: “The musicians’ union do not like you foreigners coming here and playing and you ought to get off the stage." If he had booed, it might have been some evidence that he was not aiding and abetting. If he had gone as a member of a claque to try to drown the noise of the saxophone, he might very likely be found not guilty of aiding and abetting. In this case it seems clear that he was there, not only to approve and encourage what was done, but to take advantage of it by getting "copy" for his paper. In those circumstances there was evidence on which the trate could that the appellant aided and abetted, and for these reasons I am of opinion that the appeal fails.
HUMPHREYS, J.: I agree that there was evidence sufficient to justify the finding of the magistrate.
DEVLIN, J.: I agree, and I wish to add only a word on the application of R. v. Coney (1). Counsel for the appellant sought to distinguish that case on the facts inasmuch as in R. v. Coney (1) the performance, which was a prize fight, was illegal from beginning to end, whereas in the case we are considering the bulk of the concert was quite legal, the only part of the performance which was illegal being that which involved Mr. Hawkins. That, however, is not, in my judgment, a distinction which affects the application to this case of the principle in R. v. Coney (1). It may well be that if a spectator goes to a concert he may explain his presence during an illegal item by saying that he hardly felt it necessary to get up and go out and then return when the performance resumed its legality, if I may so call it. It is conceivable that in such circumstances (and I should wish to consider it further if it ever arose) the presence of a person during one item might fall within the accidental or casual class which was envisaged by CAVE, J. Here there was abundant evidence, apart from the mere fact of the appellant's presence, that he was making use of this item in the performance and that his attendance at that item was, therefore, deliberate. In those circumstances I think the principle in R. v. Coney (1) applies, and that the magistrate was justified in drawing the inference which he did draw.
Appeal dismissed with costs.
Solicitors: Elliot & Macvie, (for the appellant); Treasury Solicitor (for the respondent).
7.2.8.8.1.7 State v. Tally 7.2.8.8.1.7 State v. Tally
102 Ala. 25
State ex rel. Attorney General
v.
Tally, Judge, &c.[*]
November Term, 1893.
This was an impeachment proceeding against John B. Tally, Judge of the Ninth Judicial Circuit of Alabama, and was commenced in the Supreme Court by an information filed on the part of the State by William L. Martin, as Attorney-General, founded upon a report of the grand jury of Jackson county. The facts of the case are sufficiently stated in the opinion.
WILLIAM L. MARTIN, Attorney-General, and R. W. WALKER, for the State. All the evidence as to any relations between R. C. Ross and Annie Skelton should be excluded from consideration. The knowledge or information on this subject which the Skeltons had on the day of the killing, they had had for at least a month prior to that time. So long a cooling time having elapsed, evidence of such knowledge was not admissible for the purpose of reducing the grade of the homicide from murder to manslaughter, the only purpose for which such evidence is admissible in any case.—Hooks [28] v. State, 99 Ala. 166; Fields v. State, 52 Ala. 354; Reese v. State, 90 Ala. 627.
A witness should not be permitted to testify as to his uncommunicated intentions.—Lewis v. State, 96 Ala. 6, and cases there cited.
The charge of willful neglect of duty was fully made out. The respondent, with knowledge that Ross had returned to Scottsboro, that the Skeltons were "on the war path" for him, saw thee of the Skeltons on horseback, with guns, early Sunday morning, starting hurriedly out of town, evidently on some war-like mission. With knowledge of their previous threat to kill Ross, even if that threat was conditional, it can not be imagined that any other thought entered respondent's mind when he witnessed the demonstration than that the Skeltons were starting out in pursuit of Ross, intent upon killing him. After stopping and talking to Bob Skelton, respondent, according to his own admission, went into his house, there learned the truth of the matter, and then walked out to his front gate, and was there seen by witnesses for the State standing watching the Skeltons as they rode out of town. Under the circumstances, with the knowledge the respondent then had. The acts of the Skeltons in his presence as clearly amounted to a threat to kill Ross as if respondent had admitted that Bob Skelton, in the interview near respondent's barn, had fully developed their plans and purposes. The acts in respondent's presence "reasonably threatened murder."—Jones v. State, 100 Ala. 88; Martin v. State, 89 Ala. 115; Hayes v. Mitchell, 69 Ala. 452. The defendant then had the authority to order the Skeltons into an undertaking to keep the peace. Code, §4697. Certainly, the highest law officer in the county should be held to some degree of diligence in the performance of so grave a duty.—2 Wharton Crim. Law, (7th Ed.), 2526, 2528.
Anyone coming into a conspiracy at any stage of the proceedings, with knowledge of its existence, is regarded in law as a party to all the acts done by any of the other parties, before or afterwards, in furtherance of the common design. No pre-arrangement is necessary. One, who with knowledge 01' information of the unlawful design of others, is present, actually or constructively, abetting or assisting , or ready to [29] aid, abet or assist, is a guilty participant.—United States v. Sacia, 2 Fed. Rep. 755, 757-58; Tanner v. State, 92 Ala. 1; Martin v. State, 89 Ala. 115; Spies v. People, 122 Ill. 1. The words "aid" and "abet" comprehend all assistance rendered by acts, words of encouragement or support, or presence, actual or constructive, to render assistance, should it become necessary.— Raiford v. State, 59 Ala. 106. Where an effort to do a criminal act fails of consummation, simply because of obstructions in the way, not apparent to the person making the effort, which rendered the crime incapable of accomplishment by him, such abortive effort is a criminal attempt, where the law makes a mere attempt to do such act criminal. Mullen v. State, 45 Ala. 43; People v. Moran, 20 Amer. St. Rep. 732.
WILLIAM RICHARDSON, D. D. SHELBY, JOHN A, LUSK, GEORGE C. HUNT and AMOS GOODHUE, for respondent. There is a total absence of any evidence that the respondent at any time was in consultation with the Skeltons or either of them, concerning the killing of Ross. He is shown to have been in consultation with Robert S. Skelton on the evening before the homicide, but this in no way concerning the killing of Robert C. Ross, but was regarding the ascertaining of the whereabouts of a sister, whom the defendant with the Skeltons desired to rescue from a life of shame and disgrace, and save from becoming the subject of a public scandal. It is true, circuit judges are magistrates and conservators of the peace.—Code of Alabama, 1875, Art, VI, Par. 16; 1 Cooley's Blackstone, 350; Code of 1886, § 4680. But there are only certain contingencies under which they are authorized to exercise their power as such, in the manner in which it is charged this defendant neglected to act. 1. When complaint on oath is made to them charging the commission of an offense has been threatened.—Code of Ala., 1886, § 4681, et seq.; 2 Amer. & Eng. Encyc. of Law, 516, § 2; and, 2, when an offense is committed or threatened in the presence of such magistrate, or when he sees such acts as show a reasonable ground for the arrest.—Code of 1886, § 4697; Jones v. State, 100 Ala. 88; Code 1886, § 4265. There is in the evidence in this case, total absence of any threat and any act in the presence or within the knowledge of this respondent, on the part of either of the four named [29] Skeltons, to do Ross any harm whatever. He had no knowledge or suspicion of such a thing except after they had gone beyond any opportunity on the part of anyone in Scottsboro to interpose any obstacle. There is no evidence in the record sustaining the smallest fragment of the first count and its four specifications so far as they relate to this defendant.
The second count in the information, is a charge of murder alleging in the several specifications substantially the same thing, but, under the pleadings and the evidence in this case, depending solely on the proof being made that the respondent entered into a conspiracy with the four Skeltons to murder the said Robert C. Ross. If the respondent was not an accessory before the fact to the killing of Ross, he is not guilty of any crime alleged in the information. He either conspired with the four named Skeltons to murder Ross, or he had nothing to do with his death, and should be acquitted. An accomplice is a person who knowingly, voluntarily and with common intent with the principal unites in the commission of a crime.—Tanner v. State, 92 Ala. 1; Wharton's Crim. Ev., § 440. There can be no pretention that the defendant united in the commission of any offense; he did no act that aided, abetted or encouraged the Skeltons in doing anything they did. The telegram had nothing whatever to do with bringing about the death of Ross. In no way did it aid in the killing. It was not instrumental in causing delay in the delivery of the message of E. H. Ross to the man slain, in no way facilitated the pursuit by the Skeltons. In this case, if there be a previously formed purpose or conspiracy to commit the offense, the acts, declarations and conduct of each conspirator done or expressed in promotion or in relation to the accomplishment of the crime, becomes the act, declaration or conduct of each co-conspirator, and may be given in evidence against him. But to do this, a prima facie case of conspiracy must be shown.—McAnally v. State, 74 Ala. 16. A prima facie case or evidence is that which is received or continues until the contrary is shown.—19 Amer. & Eng. Encyc. of Law, 83; Troy v. Evans, 97 U. S. 3; Kelly v. Jackson, 6 Pet. (U. S.) 622; Wharton's Crim. Ev., § 698, and note 2. The respondent is charged with being an [31] accessory to a crime. It must appear that the crime was in fact committed.—Poston v. State, 12 Tex. App. 408. There is no prima facie case made, there is no conspiracy, and the evidence as to all that the Skeltons did and said should be excluded.—McAnally's Case, supra.
An accessory before the fact, as charged in this information, is one who, being absent at the time the crime is committed, yet procured, counselled or commanded another to commit it.—1 Arner. & Eng. Encyc. of Law, 61,also page 67, and note, Hughes v. State, 75 Ala. 31; Griffith v. State, 90 Ala. 583; 1 Amer. & Eng. Encyc. of Law, 452 and note 3. There is absolutely no evidence in this case that the respondent procured the Skeltons to commit the deed charged, or that he counselled it or commanded it.
The mere passive non-interference does not render one guilty of a crime committed by others.—3 Coke 529, and note; Jackson v. State, 20 Tex. App. 190; Mulvey v. State, 43 Ala. 316. Mere approving a murder committed in one's presence or within one's knowledge does not make him an accessory or an accomplice.—Wharton's Crim. Ev., 440; State v. Cox, 65 Mo. 29; 1 Amer. & Eng. Encyc. of Law, 62, and note 1; Connaughty v. State, 1 Wis. 169; People v. Woodward, 45 Cal. 293; 13 Amer. Rep. 176 and notes; White v. People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. App. 301; Rucker v. State, 7 Tex. App. 549; State v. Hann, 40 N. J. L. 228; Ellizando v. State, 30 S. W. Rep. 560
In order to make one an abettor it must be proven that he was in a situation in which he not only rendered assistance in some manner in the commission of the offense, but it must be proven that he was in this position by agreement with the perpetrator of the crime, or with his previous knowledge, consenting to the crime, and for the purpose of rendering him encouragement in the commission of it—Knapp' s Case, 20 Amer. Dec. 504. Or to assist him by the doing of some act whereby the party who is regarded as the principal and is the principal actor in the commission of a crime is encouraged, or it is made easier for him to do the principal act or effect the primary purpose.—1 Amer. & Eng. Encyc. of Law, 453 and note; Wiley v. McRee, 2 Jones (N. C.) 349 Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 568. To hold one liable with [32] others as principal in the commission of an offense, there must be combination of act and intent.—Ronntree v. State, 10 Tex. App. 110. One is not guilty of aiding and abetting merely because present and seeing an offense committed, if he does not interfere. He must do or say something showing his consent and contributing to its execution.—State v. Hayward 10 Amer. Dec. 607, note. There must be some affirmative act or encouragement to make him guilty as an accomplice.—Amer. & Eng. Encyc of Law, 575.
If the telegram of the respondent to Huddleston, not being sent with the consent, knowledge or approval of the Skeltons, and not being addressed or directed to them, and not being delivered to them, nor brought to their knowledge, and being in no way interposed between the deceased and any means of escape which may have offered themselves to him, the telegram in no way contributed to, facilitated or brought about the death of Ross, and, therefore, the defendant is not guilty of any of the specifications in the information.— Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ala. 12; Turner v. State, 97 Ala. 57; Cabbell v. State, 46 Ala. 195. In order to ho1cl the respondent responsible as a participant in the crime, if crime it be, on the part of the Skeltons to have killed Ross, the State must show beyond a reasonable doubt that the act of the defendant in sending the telegram to Huddleston contributed to and facilitated the killing of Ross by said Skeltons. And that the act and conduct of the respondent was anticipated by or expected on the part of the Skeltons by reason of a previously formed arrangement or agreement between them and the respondent, that he would so act, or do other acts of a character calculated to aid and facilitate the killing of Ross.—Hickam's Case, 8 S. W. Rep.252; 6 Criminal Law Magazine and Report, 414.
McCLELLAN, J.—The evidence was taken ore tenus in this case. There were many witnesses. Much difficultyand delay in securing their attendance at Montgomerywere apprehended. To facilitate the hearing ofthe case and to subserve the convenience and necessitiesof the witnesses, the judges of this court, at the requestand in accordance with the agreement of the respondent [33] and the State consented to take the evidence and hear the arguments of counsel in the cause at Huntsville near the scene of the acts and omissions laid against the respondent in the information. And the evidence was there taken, and the arguments were there heard. This, we were and are of opinion, we might well do at the request and in accordance with the agreement referred to, in view of the control which the statute gives respondents m such cases over the manner of taking testimony. But we were not unmindful of section 3, article IV of the constitution, which is in this language: “The Supreme Court shall be held at the seat of government, but if that shall become dangerous from any cause, it may adjourn to a different place;" and we wore careful, while sitting at Huntsville as individual members of the court and not as the court itself, to avoid the attempted exercise of all judicial power. Hence it is that we made no rulings as to the admissibility of testimony except of a tentative and advisory nature, and hence it is also that much incompetent testimony was received subject to objections noted at the time and is now to be stricken out and excluded, either expressly or by tacitly disregarding it in reaching the conclusions we shall announce. This course, under the circumstances the triers of the facts and the judges of the competency of proposed testimony being the same and under a necessity for the most part to know what the offered testimony is before passing upon its admissibility, whether the ruling is to be presently or subsequently made, involved no prejudice to either party; and we believe facilitated the hearing in this instance.
Briefly stated, the information in this case contains two charges against John B. Tally as Judge of the Ninth Judicial Circuit. The first is willful neglect of duty while in office, in that, knowing the intent of Robert, John, James and Walter Skelton to take the life of R. C, Ross, and having the opportunity to intervene in his official capacity to prevent the execution of that intent he willfully failed and neglected to do so. The second count charges complicity on the part of Tally in the murder of Ross, by the hands of said Skeltons. Tally was a brother-in-law to all of the Skeltons named except John, having married their sister who was a cousin to John. The [34] grievance they had against Ross lay in the fact that the latter had seduced or been criminally intimate with a sister of three of them and of Mrs. Tally. This abstract fact was, in our opinion, competent evidence in this case against Tally as tending to connect him with the motive which actuated the Skeltons to the killing of Ross; and the fact appears in this case by evidence to which no objection was interposed. Much evidence on this subject, including several letters written by Ross to Miss Skelton, was offered by the respondent, objected to by the State, and received subject to the objection because of the circumstances, to which we have adverted, under which the evidence was taken. All this must now yield to the objection noted at the time, and be excluded from the case. It was proved that both the Skeltons and Tally had full knowledge of the liaison between Ross and Miss Skelton—had had possession of and read all the implicatory letters from him to her—long before the killing of Ross. Had they, immediately upon the receipt of these letters and upon coming, in this or other way, to a knowledge of Ross's misconduct toward her, been moved by the tumult of passion, which the law holds such intelligence sufficient to provoke and engender, to take the actual life of Ross, and had taken his life while under the actual dominion of this overmastering passion before cooling time had elapsed, all this evidence would have been competent as negativing the premeditation and malice which are essential elements of murder, and thereby reducing the grade of their offense to manslaughter. But the amplest cooling time had elapsed. If their passion continued, it was without justification of law. And whether as a matter of fact life was taken in a passion so continuing or not, the offense of the Skeltons, and of Tally, if he participated in the homicide, was and could be in nowise and to no extent or degree justified, mitigated or extenuated by the fact of Ross's relations with their sister; and they are each and all guilty or not of murder as the other and only evidence in the case, wholly apart from and exclusive of the relations of Ross and Miss Skelton, may or may not satisfy beyond a reasonable doubt minds charged with the investigation that they killed, or participated in the killing of, Ross under circumstances that would have imported murder had the perpetrators been wholly without griev [35] ance, real or fancied, against him. All this testimony is, therefore, entirely irrelevant and immaterial to any issue that can possibly exist in this case, and it is excluded.—Hooks v. State, 99 Ala. 166; McNeill v. State, 15 So. Rep. 352, infra.
It has been many times decided by this court, and may now be considered the settled rule with us, though most of the adjudged cases in other jurisdictions hold the contrary, that a witness cannot depose to his uncommunicated intention. And upon this rule the testimony of the respondent as to the purpose and intention which actuated him in the sending of a certain telegrams, and of the witness Huddleston that, upon receiving certain telegrams from E. H. Ross and the respondent on the morning of February 4, 1894, he "went down to the hotel to see if Mr. Ross was there—to see if he had come there; went down to advise with him and to see what the trouble was, and also to deliver the message," must now be stricken out.—Wheless v. Rhodes, 70 Ala. 419; Whizenant v. State, 71 Ala. 383, Stewart v. State, 78 Ala. 436, Fonville v. State, 91 Ala. 39; Baldwin v. Walker, Ib. 428; E. T. V. & G. R. R. Co. v. Davis, Ib. 615; Lewis v. State, 96 Ala. 6.
The conversation between the respondent and Mr. J. E. Brown after and on the day of the homicide was in the nature of privileged communications between attorney and client, for though that relation was never established between these parties, what was then said by the respondent was with a view to the retainer of Mr. Brown, and is within the protection of the rule. That conversation and the circumstances under which it was had must now be excluded.—Hawes v. State 88 Ala. 37, 68. Without discussing at present other objections to the testimony which may be ruled upon in the course of this opinion, we will proceed to state and consider the evidence with reference to the guilt or innocence of the respondent of the charges brought against him by the information, premising that we recognize the rule of conviction beyond a reasonable doubt as applicable to this case, and that our minds must be convinced to that degree of the guilt of the respondent before we can adjudge him guilty as charged.
Among the facts which the evidence establishes without conflict, direct or inferential, in this case, are the [36] following: About January 6, 1894, Ross left his home in Scottsboro surreptitiously under and because of an apprehension that his life was imminent peril at the hands of the Skeltons. He remained away from Scottsboro under this apprehension until Tuesday night, January 30th, when he returned on account of the illness of his wife. From that time till Sunday, February 4th, he remained in Scottsboro, secluded in his house. About 6 o'clock on that Sunday morning, just as the train passed Scottsboro going to Stevenson and beyond there to Chattanooga, Ross left Scottsboro in a hack for Stevenson, eighteen miles distant, intending to catch a tram there on another road and go on to Chattanooga. With him were his brother-in-law, Bloodwood, a negro man, John Calloway and the driver, one Hammons. All of the party were armed; Ross had a gun and a pistol, Bloodwood had a gun, and Calloway and Hammons each had a pistol. They arrived in Stevenson about 10:45 that morning, and driving to a point in a public road or street midway between an hotel and the passenger station of the two railroads that connect, or, rather, unite there, and thirty or forty yards from each, all the party alighted from the vehicle, except the driver, and took out their arms and baggage, the latter consisting of three valises. A person, William Tally, passing at the time from the hotel to the station, walked around the hack, which had stopped immediately in front of him; and met, shook hands and passed the usual salutations with Ross , who had gotten out on the side next the station, and then turned away and started on toward the station. Just at this juncture a shot was fired at Bloodwood, from behind the depot platform. This was followed by another from the same place, and then by other shots from two guns behind the platform and from a pile of telegraph poles a little way down the road in the direction from which the hack had come. Some one or more of these succeeding shots took effect in Ross's legs, and he fell. Bloodwood was also wounded and ran away. The team ran away with Hammons. Calloway does not appear to have been hit, but in some way he fell with and under Ross. They both arose almost immediately. The negro, Calloway, ran away. Ross managed to get to the side of a small oil house, a [37] short distance beyond where the hack had stopped, and took a position affording some shelter from persons behind the platform and telegraph poles. While standing there with his gun in his hand and looking in the direction of the telegraph poles, a man came to the corner of the house behind him and shot him with a Winchester rifle through the head from back to front. He fell in the throes of death and died, then another man came up from behind the platform and, approaching closely, also shot him through the head with a Winchester rifle.
The man who fired the first and two of three other shots from behind the platform was Robert Skelton. The man who fired the other shots from that position was James Skelton. The man who fired from the telegraph poles was Walter Skelton. John Skelton it was who reached the corner of the oil house behind Ross, shot him in the back of the head and killed him. And it was Robert who came up after he was dead, and again shot him in the head. Some of the Skeltons were seen about the station in Scottsboro when the east bound train passed that morning just at the time Ross started overland to Stevenson. Soon after that they heard of Ross's flight, and, as soon as they could get together, arm and mount themselves, they started in pursuit on horseback. They were fearful that Ross would turn off the Stevenson road and go across the Tennessee river as he had done on the occasion of his previous flight, and hence they were afraid to take any short cuts by resorting to which they could have, as Ross continued in the Stevenson Road, overtaken him much sooner than they did; but in their uncertainty as to his destination they thought it best to follow the tracks of his vehicle. Doing so they came in sight, and within a little distance of the hack as it was crossing a creek a mile from Stevenson. The hack was a close one and its occupants did not see them. A railroad crosses the creek at this point along side of the public road. They could have attacked the Ross party at this point, and Walter Skelton testifies that he then said to his companions: "Let's surround them and demand of him where Annie is," but that they said: "No, that would probably bring on a fight, and some one of us get killed." Instead of this, Robert and James dismounted, left their horses and ran along the railway track to Stevenson where they arrived and took positions behind the platform [38] almost immediately after the Ross party had arrived and stopped. Walter and John Skelton kept in the road behind the hack and fifty or sixty yards distant from it. They too were afoot at this time. Walter stopped at the pile of telegraph poles which he seems to have reached about the time the hack stopped and before anyone alighted from it. John, in same way, got beyond the hack and finally to the oil house without, so far as the evidence discloses, being seen by anybody until just before he shot and killed Ross. After the killing of Ross, Robert Skelton sent a telegram to the respondent at Scottsboro informing him that Ross was dead and that none of the Skeltons were hurt; and they all surrendered themselves to Huddleston, who was mayor of Stevenson, and were taken back to Scottsboro and confined in jail. Subsequently bail was allowed them and was given by Robert and James. John and Walter were unable to give bail, and the former escaped, and is still at large. After this, Walter also gave bail. All these facts are undisputed. The evidence offered in justification or mitigation of the homicide, except the facts and circumstances of Ross's relations with Miss Annie Skelton which we have excluded, is that of Robert Skelton as follows: "About the time that I got to the depot) between the depot and the hotel, Mr. Ross was at the buggy speaking with Bill Tally. I walked up and saw that. In a little while, I don't know how long, Mr. Bloodwood drew his gun up at me. I dodged dawn, and then fired at Bloodwood;" and of Walter Skelton: "I was, I suppose, fifty or sixty yards behind the hack [when it stopped], and I was watching to see who got out. I saw Mr. Ross get out, talking to some one. Then I saw Mr. Bloodwood get out, and in a few minutes I saw him raise his gun across the hack, then take it down and about the same instant I heard a gun pop." The gun which Walter heard “pop" was that of Robert Skelton. Walter and James then joined in and Robert continued the fusilade. That Bloodwood did not shoot there is no reasonable doubt. That Ross or any other of his party fired a shot is not pretended. That Bloodwood snapped his gun in an effort to shoot there is some evidence, enough we will conclude to engender a reasonable doubt as to whether he did or not. But the conclusion that he attempted to shoot at Robert Skelton will not afford any [39] justification or excuse to the Skeltons or the respondent. They were in no danger from Bloodwood' s gun. If they were in danger, a safe avenue of retreat was open to each of them. Had there been danger and had the opportunity of retreat been wanting, they yet could not invoke the doctrine of self-defense, because their danger resulted from their awn wrongful and unlawful aggression. They were there to kill. It was Ross and Bloodwood and not they who were on the defensive. This conclusion can not be escaped even from their own standpoint. They say they pursued Ross to prevent his going to their sister and continuing criminal relations with her. How were they to do this; how could they do it but in the effective way they did do it, by stopping Ross at once and forever in his tracks. That they contemplated this means, conceding their purpose was to prevent the coming together of Ross and Miss Skelton, is beyond all question. It is shown by their conversation at the creek, when they said Ross would fight and some of them would be killed if they approached him with reference to Miss Skelton, and they then desisted only because the place and surroundings were not opportune. It is shown by the disposition they made of themselves around but concealed from Ross at Stevenson and the instantaneous fire they opened an him as soon as they were in their places of ambush, when, had their purposes been less deadly, had any sort of parley with Ross been desired, either for the purpose of diverting him from their sister or of ascertaining from him her, whereabouts, pacific means to that end were at hand in the person of William Tally, who had just spoken to Ross and was then coming directly towards the place of concealment of two of them, one of whom began the onslaught, and in the person of several other men then in and about the depot. Their purpose was to kill; its wickedness was unrelieved by aught of legal justification or excuse. They did kill; and their act was without any justification, mitigation or extenuation which the law knows or courts can allow to be looked to. It was murder.
What connection had the respondent with that murder? Was he, knowing the deadly intent of the Skeltons and their pursuit bent upon its execution, willfully neglectful of his duty as a magistrate in not exercising the power the law had clothed him with to stay their[40] hands? Or did he himself participate in the deed by commanding, directing, counselling or encouraging the Skeltons to its execution, or by aiding and abetting them in its commission? The evidence for the prosecution on these issues will be briefly stated. As has been seen, Judge Tally was the brother-in-law of Robert, James and Walter Skelton, and of Miss Annie Skelton, the wronged girl. It may be supposed, therefore, that he shared with the Skeltons, in some degree at least, the shame and mortification which had come upon them through Ross; and that the grievance against Ross was common to them all. It was shown that he knew all the facts known to the Skeltons and came to his knowledge of them soon after they did. They all lived in the same town with the intimacy usually incident to their relations. James Skelton lived with Judge Tally. On Friday before the Sunday of the homicide, Judge Tally returned to Scottsboro from Ft. Payne, where he had been holding court, by way of Chattanooga, Tennessee, and over the Memphis and Charleston railroad. On the train was Mr. Gregory, a lawyer of Scottsboro, who engaged Judge Tally in conversation. The latter spoke of some interesting murder Cases that he had been trying at Ft. Payne, and in this connection Gregory remarked to him that he thought they would have one or more killings in Scottsboro in a very short time. "The Judge [to quote the witness] asked me why, and I told him that Ross had come back and that the Skelton boys were on the war path, or some such thing, I don't remember just what it was. The Judge said he guessed not, that he supposed Ross would leave, or would not stay there, or something of that kind; and I told him I supposed so." On Saturday afternoon Judge Tally was in consultation with Robert Skelton, the eldest of the brothers, for something like a half hour in the latter's office. It is admitted by Judge Tally that this conversation had relation to Ross and Miss Skelton and the scandal connected with them. Tally staid at home that night. James Skelton also slept there. The next morning Tally's fifteen year old son went to a livery stable and got a horse, the hire of which was charged to, and subsequently paid by, Judge Tally. This horse was gotten for the purpose of being ridden and was ridden by Walter Skelton in pursuit of Ross. One witness testifies [41] that quite early on that Sunday morning before the Skeltons had assembled to go in pursuit of Ross, he saw a man whom he took to be Judge Tally passing a street some distance from Judge Tally's house, going in the direction of John Skelton's, but he was by no means sure that the man he saw was Judge Tally. J. D. Snodgrass, a witness far the State, testified that he saw three of the Skeltons, Robert, John and James, leaving Scottsboro that Sunday morning. When he first saw them, John and James were going along a side street upon which Judge Tally's barn and barn lot were situated. That the two last named had gotten beyond Tally's premises and were about turning out of this street, which ran north and south, into a street running east and west and passed in front of Judge Tally's residence. This residence was the second from the corner at the intersection of these streets. At this time Robert Skelton was on horseback near Tally's barn lot fence talking with Tally. He remained there only a very short time—the witness said probably a minute—after Snodgrass saw them. Tally was either inside his lot or in the street near his lot and on foot. At the end of this short time Robert rode on following John and James, turned east on the other street mentioned and passed by Snodgrass's house, which fronted on that street, going in the direction of Stevenson. He then observed that each of them had a gun. Another witness before this saw Walter Skelton following the Stevenson road on foot. This witness coming on down this street in front of Judge Tally's house, saw Tally standing at his front gate looking in the direction Walter Skelton was proceeding. Tally turned before he reached him and went into the house. Young Tally carried the horse which he had gotten from the livery stable to Walter on the road. Another witness passed down this street after they had all gone towards Stevenson, and he also saw Tally at his gate looking in that direction. Tally again turned and went into his house before this witness reached him. It was also in evidence that James Skelton left Tally's house that morning before breakfast, went down town, armed and mounted himself, came back to Tally's, hitched his horse in front of the house, set his gun against the front gate, went into the dining room to get something to eat before starting, then went out, remounted, and joined [42] Robert and John at the corner where these three were seen by Snodgrass. The flight of Ross and the pursuit of the Skeltons at once became generally known in the town of Scottsboro, and was well nigh the sole topic of conversation that Sunday morning. Everybody knew it. Everybody talked only about it. Everybody was impressed with the probability of a terrible tragedy to be enacted on the road to Stevenson, or at the latter point. The respondent was soon abroad. He went to the depot where the telegraph office was. He remained about there most of that morning. About nine o'clock that morning Dr. Rorex saw him there, and this, in the language of the witness, passed between them: "I said to Judge Tally that I thought we had better send a hack and a physician to their assistance up the Toad [referring to the Ross and Skelton parties then on the road to Stevenson]; that these parties might get hurt and they might need assistance. Judge Tally replied that his folks or friends could take care of themselves. I also said to him that I reckoned we ought to send a telegram to Stevenson and have all of them arrested, to which he made no reply. * * He said that he was waiting to see if anybody sent a telegram—or words to that effect—waiting or watching to see if anybody sent a telegram." And he did wait and watch. He was seen there by Judge Bridges just before the passenger train going west at 10:17 passed. He was there after it passed. E. H. Ross, a kinsman of the Ross who had fled and was being pursued, meeting the telegraph operator, Whitner, at the passenger station walked with him down to the freight depot where the telegraph office was. Judge Tally followed them. They went into the telegraph office and so did he. Ross was sitting at a table writing a message. It was addressed to R. C. Ross, Stevenson, Alabama. Its contents were: "Four men on horse back with guns following. Look out." Ross handed it to the operator to be sent. Tally either saw this message or in some way very accurately divined its contents. He called for paper and immediately wrote a message himself. Judge Bridges was still in the office. At this juncture Tally spoke to him, took him into a corner of the room and, calling him by his given name, said: "What do you reckon that fellow [the [43] operator] would think if I told him I should put him out of that office before he should send that message?" referring to the message quoted above which E. H. Ross had just given the operator. Judge Bridges replied: "Judge, I wouldn't do that. That might cause you very serious trouble, and besides that might cause, the young man to lose his position with the company he is working for." Judge Tally then remarked: ' 'I don't want him to send the message he has, and I am going to send this one." He then showed Judge Bridges a message addressed to William Huddleston at Stevenson, containing these words: "Do not let the party warned get away." This message was signed by Tally. Huddleston was the operator at Stevenson and a friend of Tally. The respondent then handed this telegram to the operator, remarked to him "this message has something to do with that one you just received," said he wanted it sent, and paid for it. He then started toward the door, but turned to the operator and said: "Just add to that message, 'say nothing.’” Tally then left the office. This message was sent just after that of E. H. Ross to R. C. Ross. The original of it was placed on a file in the office at Scottsboro. Two days after a search was made for it and it could not be found, and has never been found. The one man in the world most interested in its destruction, the respondent in this case, in the meantime had had an opportunity to abstract it, he having had access to this file and gone through the messages on it for the purpose, he said then and says now, of finding the address of a person to whom he had sent a message some days before. And on the preliminary examination of the Skeltons before the probate judge of Jackson county for the murder of Ross, Judge Tally was called and examined as a witness for them, and before a copy of this message was produced by the operator, and hence at a time when Judge Tally was not aware that a copy was in existence, this question was put to him: "You didn't send any dispatches that morning to Stevenson?" And his answer was: "Yes, sir. I sent one, but not about this matter. It was to a friend, about another matter, nothing concerning this case." And this friend was Mr. Huddleston. He further testified on that trial that he did not know Ed. Ross, did not see him going to the telegraph office that morning, and did not know whether Ed. Ross was in the telegraph office while he was on that [44] occasion or not. These telegrams of Ed. Ross and Tally were sent about 10:25 A. M. Tally then, his watch to prevent the sending or delivery of a telegram to R. C. Ross being over, went home. Soon after eleven o'clock the message before referred to came from Stevenson to Scottsboro, addressed to Judge Tally, and signed by Robert Skelton. It ran: "Ross dead, none of us hurt." This was taken to Judge Tally's house and there delivered to him, and he thereupon went to see Mr. Brown, and had the conversation which we have excluded.
The foregoing is substantially the case made by the evidence adduced by the State against the respondent, leaving out of view for the moment the evidence touching the effect which his message to Huddleston had upon occurrences at Stevenson.
Next we undertake a summary of the evidence for the defense. Judge Tally himself, and Robert, James and Walter Skelton were among the witnesses examined. The respondent admitted having a conversation on the train with Mr. Gregory, but he did not recall that Gregory said anything about the Skeltons being on the war path. He says he knew of the relations between Ross and Miss Skelton soon after the Skeltons were informed of them, and read the letters from him to her soon after they came to their possession. That he and Robert Skelton, at the time the latter showed him the letters, on January 6, 1894, held consultation as to what was best to be done in the matter. This is his account of what occurred and was said at that time in Robert Skelton's office: "Iasked Bob Skelton if he had such communications as it was reported he had, letters said to have been written by Mr. Ross to Annie. I asked him then if he would let me see the letters. He said he would; and got them and showed them to me, and I read them there in his office. He and his brother David Skelton and myself were the only persons present. During the time I was reading the letters we were speaking about the contents and discussing them, and he told me after I had read the letters—possibly during the time I was reading them—he gave me his ideas as to managing the trouble. He told me about his plans to get Annie home and to let Mr. Ross leave and make the best of it—let it die out and make the best of it. I told him that was decidedly the best thing to do. It [45] was best for him and would possibly save the publication generally of the scandal, and might possibly save my mother’s life. Annie's mother was paralyzed and helpless, and I suggested that exposure might possibly cost her her mother's life. Dave Skelton was sitting by and observing our conversation, and would occasionally have something to say; and he spoke of doing violence—spoke of killing him. I simply turned to him and said: ‘Dave, that won't do. This is the best management.' I desire to say just here that this is the only time that any member of the Skelton family ever said anything in my hearing about killing Ross. Not long after that, he left and I heard no further conversation about any violence." The respondent gives the following account of the conference he had with Robert Skelton on Saturday afternoon preceding the homicide: "I think I was on the street and Bob called me into his office, * * * and we engaged in conversation. I think that the first thing Bob mentioned to me was that he was thinking as to how he should find out where Annie was. He said he had been thinking about trying to get some one to go to Mr. Ross, and induce him or ask him to tell us where Annie was. I suggested to him the propriety of interviewing Mr. Brown about that, and gave him reasons why I suggested Mr. Brown." These reasons as given at the time by the witness he then repeats; and goes on to mention one or two other persons whose availability in getting this information was discussed, and says that after this he left Bob's office having been there he supposes fifteen or twenty minutes. In all this Judge Tally is corroborated by the evidence of Robert Skelton, and, in respect of their determination to do no violence to Ross, but to get the girl home and allow him to leave Scottsboro, he is further corroborated by the declaration proved by Mr. Gregory in substance that no violence would be done to Ross as he would leave Scottsboro. He denies having passed up the street when the witness Miller says he thought he saw him at an early hour Sunday morning, and no importance can be attached to the evidence of that witness, because, in the first place, his glance at the man was casual and hasty and he was himself not at all certain that it was Judge Tally he saw. In the next place even on the theory of the prosecution, there was no reasonable occasion for Judge Tally's being at that [46] place at that time, and, finally, the fact is denied on oath by the respondent. So that testimony may stand out of the case. In respect of the horse which Judge Tally's son procured at the livery stable, which was charged to and paid for by the respondent, and which Walter Skelton rode in pursuit of Ross, the testimony is that Mrs. Tally at the instance of Walter Skelton ordered this horse and sent her son for it, that she was in the habit of doing this, that it was charged to Judge Tally as was the custom, and that he, conceiving himself under a moral a and legal obligation to do so because the horse had been supplied to Mrs. Tally, paid the bill and this in the usual course, after the point now made on those facts had been suggested to him. The respondent admits on the stand that he saw and had a few words with Robert Skelton when the Skeltons were leaving Scottsboro Sunday morning as testified to by Mr. Snodgrass and this is the account of that interview: "When I first got up, I went down stairs and stepped out to the front gate just a minute. The only person I saw was Bob Skelton riding up the street towards the railroad [a street running north and south and not in the direction of Stevenson]. Bob was crossing the street going northwest [the direction in which John Skelton lived]. I walked back through the hall of my house and went down to the garden to the closet, and was there some time, I don't remember how long, some little time however. After I came out of the closet and while I was in the garden I saw Bob and John Skelton riding away going east on the street parallel with the railroad, and which ran back of Judge Tally's residence]. Istaid there and observed them and saw them after they had passed the barn of Mr. Harris on the corner. I saw them coming on the street south passing my barn—along the street that runs in front of my barn. When I saw them going in that direction I walked through my barn lot to the fence and saw them at the corner, [the intersection of this south and north street passing Tally's barn with the east and west street upon which his residence fronts]. About that time Jim Skelton joined them. I didn't notice where he came from. Then I called to Bob Skelton. He turned and rode back from where I saw them at the corner, * * * and I crossed the fence and met him near the corner of my [47] barn lot. He rode up within six or eight or ten feet, and I said to him: 'Bob, where are you going?' He said to me: 'Going up the road.' I asked him again: 'Where are you going?' and he answered: 'Up the road, and I am in a hurry.' He turned and rode off, went back the way he came when I called to him."
Robert Skelton's testimony agrees with Judge Tally's fully as to this interview, only he added that he said further to Tally that he was in a hurry and did not want to talk. And they are both fully corroborated as to the circumstances under which this interview was had, its brevity and how it was brought about, by Mr. Shelley, an wholly disinterested witness, who saw John and Robert Skelton as they rode along the east and west street back of Judge Tally's premises—they passed the witness there—saw them turn south on the street in front of Judge Tally's barn, and proceed along that street beyond the point of the interview between Tally and Robert Skelton, then saw the latter riding back to where Tally was, sit there on his horse while the witness could have counted fifteen or twenty, then turn, rejoin the others and ride out east. And there is nothing in this account of this interview which materially conflicts with that given by J. D. Snodgrass. James Skelton, as has been said, lived at Judge Tally's. He slept there the night before the homicide and went thence, as we have seen, in pursuit of Ross. Judge swears he did not see him that morning except when he joined Robert and John at the corner about the time of the conversation between Robert and himself. It is shown by the evidence of Mr. Proctor, who slept with James the night before, that the latter arose and left the room quite early that morning. It was also shown that he was down town at an early hour. Judge Tally must have arisen after James went down town. The testimony and all the circumstances concur in showing that when James came back to the house, mounted and armed, and went in to get "a piece of meat and bread," as he expressed it, leaving his gun and horse at or near the front gate, Judge Tally was either in his garden back of his house, or more probably in his barn yard, which was back of an adjoining house. From neither of these positions could he see the horse or gun at the front, or James in the house. Judge Tally also testifies that he did not see [48] Walter Skelton at all that morning, or know of his son's going for a horse for him until the Skelton party had left Scottsboro. This is somewhat strange in view of the facts that Walter Skelton came to his house that morning, talked with Mrs. Tally, and induced her to procure a horse for him to ride in pursuit of Ross, and that young Tally was sent from the house to the livery stable for the horse. But it reasonably appears from the evidence that all this happened before Judge Tally got up. It is shown that Mrs. Tally's cook was sick and that she had to be up early to prepare breakfast, and did get up some time before Judge Tally. And the other testimony and the surrounding circumstances concur in showing that all that occurred at Judge Tally's house with reference to this horse occurred in the interval between the times Judge and Mrs. Tally arose.
The respondent further testifies that he did not see his wife after she arose that morning until he returned to the house from the barn lot where he had the interview with Robert Skelton; that he returned thence to his house, saw his wife and she then told him of the flight of Ross, which had been communicated to her by Walter Skelton, and of the pursuit of the Skeltons; and that he did not know and had received no information before this that Ross had gone, and that the Skeltons were pursuing him. At this juncture, it is to be borne in mind, all the Skeltons had left Scottsboro. And this, with proof of the respondent's good character, is the case of the defense so far as the first count of the information is concerned. On the evidence for the State which we here set out, taken in connection with this evidence for the respondent, can it be said that Judge Tally, when he was in the presence of Robert, and in sight of John and James Skelton that morning, knew of their intention to take the life of Ross, and that they were setting out to presently execute that intention as is charged in the several specifications under the first count? We think not. There is no affirmative evidence, such as declarations and the like on their part might have afforded, that they themselves ever entertained the purpose to take life prior to that morning except in the event Ross failed and refused to leave Scottsboro. And they might well have entertained such purpose without Tally's knowl [49] edge of it. It might well have been that, intending to kill Ross, the Skeltons would have concealed their design from Tally on account of his official position and notwithstanding his family relations with them. Again, there is no positive evidence, if they so intended prior to the day of the homicide, that Tally was ever informed or knew of their intention. True it may be said that he knew Ross had to leave there, and failing this the Skeltons would, or intended to, kill him; but only knowing this, the fact that Ross had gone, which fact according to the State's theory he must have known when the Skeltons left Scottsboro, it would have been but natural for him to have concluded, that as the condition upon which Ross was to live had been met, the conditional purpose to take his life was abandoned. True it is also that he had in some degree the same motive to destroy Ross that moved the Skeltons to his destruction in the sense that he, too, by reason of his marital relations, was a victim of the wrong that Ross had wrought upon them all; but this motive might well have impelled the Skeltons to the extreme to which they went in purpose and deed, while he was restrained by that respect for which his profession engenders, and by the environment of his high judicial position, from yielding in intent or action to the deadly impulse the wrong was conducive to. There is, we repeat, no affirmative evidence that Judge Tally knew, until after the Skeltons had gone, that they intended to take the life of Ross. There were circumstances proved which unexplained might have justified—indeed would have justified—the inference that he did. But explanations have been made which are either affirmatively satisfactory, or cast such reasonable doubt on the conclusions to which without the explanations the circumstances would have led us, that we do not feel justified in accepting the conclusions. For instance, the hiring of the horse which Walter rode: As presented by the State in all its baldness that fact was most incriminating. But when taken in connection with the facts that the horse was to serve an occasion which was born of the flight of Ross while Tally slept, and was subserved by the procurement of the horse before he arose, that it was charged to him because ordered by his wife and paid for by him, after the circumstances [50] of the hiring and use of the animal had been used in the public mind to connect him with the tragedy, because by the course of previous dealing between him and the livery-man in respect of orders by his wife he was under both a moral and a legal obligation to pay, its probative farce against him is utterly destroyed. The presence that morning at his house of Walter Skelton is a circumstance of suspicion and would be of incrimination, but for the fact, which is shown by other evidence than Tally's, and against which nothing has been offered affording a contrary inference even that Walter had come and gone before Tally got out of bed in an upstairs room. Again, the naked fact that James came there after Tally had arisen, armed and mounted has of course a natural tendency to show that Tally knew the purpose of such unwonted and warlike preparations on that day when to ride about the country with guns is such an unusual thing. But according to the testimony, not only of Tally and Robert Skelton, but also ofMr. Shelley, a witness for the defense, and of Mr. Snodgrass, a witness for the State, the respondent was at that time in his barn lot, or next it in the side street, from which point he could see neither Walter Skelton in the house nor his gun standing against the front gate, nor his horse hitched in the street in front at the house and gate. The presence of Tally with Robert Skelton in the street near the farmer's barn as the Skeltons were starting on their chase of Ross, standing alone and unqualified, might prove much against him. But the evidence of himself and Robert Skelton, taken with that of Mr. Shelley, a disinterested witness, satisfies us that that meeting was momentary and wholly casual. Skelton had passed Tally and was proceeding on his journey when Tally hailed him and had him came back. Clearly he had not come that way to see Tally. It is not pretended that they had met before on that morning, or had any communication after Ross's fight. Tally’s being there is reasonably accounted for without connecting his presence in any way with this Ross matter. Skelton's passing there was reasonable without any reference to Tally; it was his route to his destination. They were together about long enough for the words they give to have passed between them. They [51] were not together long enough, we should say, for such conversation as would naturally have passed had they been discussing the flight and pursuitofRoss, what the Skeltons intended todo, what Tally should do meantime at Scottsboro, and the like. The State's witness, Mr. Snodgrass, saw them there, and his evidence does not materially conflict with that of Shelley as tothe length of time they were together. We have already stated the conversation they had as testified toby Tally and Skelton. Though they are tothe last degree interested witnesses, there is nothing before us which would justify our reaching the conclusion with the necessary conviction ofmind that, aught was said other than the words they have deposed to. Moreover, it does not appear, but the contrary does appear upon all the evidence we have, much of which is not tainted by interest, that Tally had any information of Ross's flight when he was talking with Robert Skelton. It is clearly shown that James Skelton did not know it, indeed it had not transpired, when he left the house. It came first to the knowledge of Walter, and it may well be supposed that he and James and all ofthem made their preparations with all possible expedition, losing no time tohunt up and inform Tally. Walter and James were at Tally's house after they knew of it, but there is no evidence that Tally saw either of them. Tally's own and Walter's evidence that they did not see each other and proof of circumstances demonstrate that he did not see James until he was riding away. It is said that Tally must be held to have known the intention of the Skeltons to pursue and kill Ross from seeing Robert and John mounted and armed. How could he know this, how are we tobe justified in holding that he knew this when it is clearly shown that he did not know Ross had gone at all? And had he known that, how could he justify a conclusion that they were going to pursue and slay him as he left Scottsboro, when, according toall the evidence we have as to Tally's knowledge oftheir intentions, they all wanted him to leaveScottsboro and intended he should goin peace. Again, shall the inference of a murderous intent an Tally's part, or of his knowledge of such intent on the part of the Skeltons, be drawn from the mere fact that he was seen on two occasions talking with his brother-in-law in the latter's [52] office for half an hour? Obviously not. Shall the fact that one of these occasions was the day before the killing of Ross lead us to say that Tally knew the Skeltons intended to kill? Of course not. And even less, if possible, would such conclusions be justified when we consider that the only evidence of what passed in these conversations was to the effect, whatever else it may have imported, that Ross should not be killed if he did what he was manifestly trying to do when he was killed; leave Scottsboro.
Some other minor circumstances, really of no probative force—such as that Tally was seen at his front gate that morning, once before and once after the Skeltons had gone, that he saw Robert Skelton riding north on a street some distance from him , which fact he brought out himself, and the like—were put in evidence. These we will not stop to discuss. Nor do we deem it necessary to discuss in this connection—with reference to Tally's knowledge of the Skeltons' intent when he had the brief interview with Robert that morning—Judge Tally's conduct after the Skeltons had gone. That conduct is referable to the knowledge he then had, which had been first imparted to him by his wife, and which soon became the common knowledge of the town, that the Skeltons had gone in pursuit of Ross to kill him; and in our opinion what he did and said after that time will not serve to establish the scienter laid under the first count of the information. We conclude this part of the case by saying that we do not find that Judge Tally had any knowledge of the intention of the Skeltons to kill Ross before or at the time of their departure in pursuit of him, that, therefore, neither of the three specifications under the first count is proved, and we find him not guilty of the charge of willful neglect of official duty presented by that count.
The second count of the information charges that "John B. Tally, Judge of the Ninth Judicial Circuit of the State of Alabama, unmindful of the duties of his said office, was, before the filing of said report of said grand jury, and while in such office, guilty of an offense involving moral turpitude, to-wit, the offense of murder.” There are three specifications under this charge. The averments, among others, of the first specification, following averments of Ross's flight, the Skelton's pursuit and the killing of Ross by them at Stevenson with [53] malice, &c., are, "that said Tally was informed of the intention and purpose of the said Skeltons to unlawfully take the life of the said Ross, and said Tally held communications with said Skeltons touching their said purpose, and said Tally knew of the pursuit of said Ross by the said Skeltons as aforesaid, and had such knowledge at the time said Skeltons were making ready to set out in pursuit of said Ross, and at the time they did set out in such pursuit.” As we have already indicated we are not convinced of the truth of these averments, and as the other matters laid in this specification may be considered as well under the second and third specifications, we will direct our attention solely to them. The second specification charges that the Skeltons "unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun," and "that the said John B. Tally, before the said felony and murder was committed, in manner and form aforesaid, on the day aforesaid and in the county and State aforesaid, did aid or abet the said" Skeltons, naming them, "in the commission of the said felony and murder." And the third specification charges "that on Sunday, the 4th day of February, 1894, in the county of Jackson, State of Alabama, the said John B. Tally unlawfully and with malice aforethought killed Robert C. Ross by shooting him with a gun." These charges of aiding or abetting murder and of murder direct, which amount to the same thing under our statute,(Code, § 3704), are, upon considerations, to which we have already adverted, to be sustained, if at all, by evidence of the respondent's connection with the homicide after the Skeltons had left Scottsboro in pursuit of Ross, since we do not find any incriminating connection up to that point of time. Being without conviction that Tally knew of the Skeltons' intention to take Ross's life until after they had departed on their errand of death, and there being no evidence or pretense that between this time and the homicide any communication passed between them and Tally, we reach and declare the conclusion that the respondent did not command direct counsel, instigate 01" encourage the Skeltons to take the life of Ross, and that in whatever and all that was done by them and him, respectively, there was no understanding, preconcert or conspiracy between them and him.
This narrows the issues to three inquiries—two of [54] fact, and one of law: First—a question of fact—Did JudgeTally on Sunday, February 4, 1894, knowing the intention of the Skeltons to take the life of Ross, and after they had gone in pursuit of him, do any act intended to further their design and aid them in the taking of his life? If he did, then, second—a question of law—Is it essential to his guilt that his act should have contributed to the effectuation of their design—to the death of Ross? And if so, third—another inquiry of fact—Did his act contribute to the death of Ross?
There can be no reasonable doubt that Judge Tally knew soon after the Skeltons had departed that they had gone in pursuit of Ross, and that they intended to take his life. Within a few minutes he was informed by his wife that Ross had fled and that the four Skeltons were pursuing him. He had seen three of them mounted and heavily armed. He knew the fourth, even keener on the trail than these, had gone on before. He knew their grievance. The fact that they intended to wreak vengeance in the way they did upon overtaking Ross, was known to all men in Scottsboro, as soon as the flight and pursuit became known. It was in the minds and on the tongues of everybody there. Nothing else was thought or talked of. When Dr. Rorex, voicing the universal apprehension, suggested to him that aid be sent up the road to the dead and wounded, Judge Tally, taking in the full force of the implication that there would be a fight to the death with the Skeltons as assailants, and not dissenting therefrom at all, said with the ken of prophesy, as a reason why he would not be a party to the execution of this humane suggestion, that his folks—the Skeltons—would take care of themselves. How well they took care of themselves—with what exceeding care they conserved their own safety—is shown by the event and the manner in which it was produced. To the other suggestion of Dr. Rorex, resulting from the universal knowledge that unless something was done an awful tragedy would be enacted, that "we telegraph to Stevenson and have them all arrested," and thus prevent the catastrophe, if perchance Ross should reach that point alive, Judge Tally made no direct response; but in the same connection he said:"I am waiting and watching here to see if anybody sends a telegram." What he meant by this is most clearly demonstrated by his subse [55] quent shadowing and following up Ed. Ross, and his conversation with Judge Bridges about putting the operator out of the office before he should send Ed. Ross’s message of warning to his kinsman, Robert C. Ross. This was the situation: Ross was in what he supposed to be secret flight from the Skeltons. He was unaware that his early departure had been seen by one of them. He did not know they were all in full pursuit to take his life. Under these circumstances, the pursuers had every advantage of the pursued. They could come upon him unawares. Being on horse back while he was in a vehicle, coming up to him they could well get beyond and waylay him. This they actually did. Having this tremendous advantage, accentuated by the fact that they were in no danger from Ross even if he saw them unless he was forced to defend himself—that his effort and intent were to get away and not to kill—Judge Tally might well feel satisfied with the posture of affairs, he might well feel assured that his folks would take care of themselves, as they did. All he wanted was that this situation, which portended the death of Ross and the safety of his folks, should not be changed. He would not agree that it should be changed so as to save Ross's life even though at the same time the safety of the Skeltons should be assured, as would have been the result had the authorities at Stevenson been fully advised at the time Dr. Rorex suggested the sending of a telegram there to arrest all parties. He was waiting and watching there to see that the situation was not changed by advice to Ross which would or might enable him to escape death at the hands of his folks. He waited long and watched faithfully, and his patience and vigil were rewarded. He saw Ed. Ross going toward the telegraph office. He at once concluded Ross was going there to warn his kinsman and give him a chance for his life. He followed. His purpose was to stop the message, not to let the warning even start on its journey. This he proposed to do by overawing the operator, a mere youth, or by brute force. Judge Bridges dissuaded him from this course, but he adopted another to destroy this one precarious chance of life which was being held out to Robert C. Ross. It would not do, Bridges advised him, to stop the warning by threatening or overpowering the opera [56] tor. The young man was a new comer and a stranger there, and a resort to moral suasion with him was therefore unpromising and hazardous. Not so with the operator at the other end of the line. He was Judge Tally’s friend of long standing. He, through whose hands Ed. Ross's message of warning was intended to pass, could be approached. And to him Tally addressed himself. Saying to Judge Bridges that he, the Scottsboro operator had a message which he, Tally, did not want sent, and which, under Judge Bridges' advice, Tally had concluded not to stop by threat or force; he adopted another means of stopping it short of the person to whom it was addressed. He telegraphed his friend, the operator at Stevenson, not to let Ross get away. His language was at first written: "Do not let party warned get away." This he handed to the operator to be sent to Stevenson, saying: "This message has something to do with the one you have," referring to Ed. Ross's message. What then passed through his mind we are left to conjecture; but upon further thought he added to the message these words: "Say nothing." What was the full import of this completed message, looking at its terms and the circumstances under which it was sent? One thing is most clear, from all the circumstances and upon the words themselves and in the light of those circumstances. The message beyond all question would never have been sent but for the sending of Ed. Ross's message. It was manifestly and confessedly the offspring of a purpose to thwart the efforts of Ed. Ross to warn his kinsman of the true situation. One element of this situation, which gave Judge Tally great satisfaction with it, was Robert Ross's utter ignorance of the danger he was in. He scouted all suggestions to interfere at all so long as this element of gravest peril to Ross and of assured safety to the Skeltons existed. It was to the end that this element of peril to the one and safety to the other party should not be eliminated that, he had waited and watched all morning to see if anybody attempted to eliminate it by advising the hunted of the oncoming, in deadly purpose, of the hunters, and to prevent by threats or force or in any other possible way the sending of a telegram to advise Ross of this important factor in the posture of affairs with which he had to deal, on the hazard of his life. At the last moment the idea [57] of resorting to threats and force was abandoned as unwise. There was no other way to stop the telegram in the Scottsboro office. It was therefore to go, and the only other way to prevent its reaching Ross was to have it stopped at the Stevenson office. Tally, being dissuaded from the former course, adopted the latter. His purpose was the same throughout, but there was a change in the means he had contemplated for its effectuation.
Whitner, the newcomer and stranger, could not be prevented or dissuaded from putting the message on the wire, but Huddleston, the lifelong friend, who was to take it off the wire, and whose duty it was to deliver it to Ross, might be commanded or persuaded to omit its delivery when he had taken it from the wire to "say nothing." And in that event Ross would remain in ignorance of his danger, the situation, which gave Judge Tally so much satisfaction as that he felt assured his folks could take care of themselves , and which he would not consent to interfere with as suggested by Rorex in a way to conserve the safety of both the Ross and Skelton parties, would remain unchanged, and Ross would go to his death, as he did, without a single chance to raise his hand in defense of his life. The telegram to Ross was: "Four men on horseback with guns following. Look out." Tally's telegram to Huddleston was: "Do not let party warned get away. Say nothing." "Get away" from what or from whom? From whom indeed and in all common sense but from the four men on horseback following with guns to take his life. They alone were in pursuit. They only were following the party warned. From them alone was Ross fleeing. From them only, by what he supposed to be secret flight across the country rather than attempt to board a train guarded by them against him, was he trying to get away. The law had no claim upon him; he had committed no offense of which it took cognizance, and no charge of crime had ever been made against him. Nobody on earth except the four men, the Skeltons, sought to prevent his getting away; and from these Judge Tally, seeing that a chance of escape was about to be afforded him, called upon his friend, Huddleston, to interpose, to destroy that chance and to prevent his getting away. Having formulated his command or request to Huddleston to prevent his getting away and [58] handed it to Whitner for transmission to Huddleston, the thought must have passed through his mind: “How is my command or request to be complied with; how is Huddleston to prevent Ross's getting away." He knew there was no ground to arrest Ross. He knew that Huddleston, although mayor of Stevenson, was utterly without authority or right to stay him for one moment of time. How then was he to proceed? One obvious means to this end presented itself to the respondent's comprehension as he pondered how the thing he wanted to be done could be accomplished. That was that Ross should not be advised of the contents of the dispatch of warning. This would maintain the status quo with which Judge Tally had evinced such complaisance and satisfaction, in which his “folks could take care of themselves," and out of which must result the death of Ross. And to suggest this effective means to his friend he makes Whitner, who then has the original message in his possession add to it the words: “Say nothing." Say nothing about what? Clearly about the subject matter of the two dispatches, nothing about the pursuit of the four men on horseback with guns, nothing about the warning to Ross. Say nothing so that the situation may remain unchanged. Say nothing so that Ross shall continue to be, as he is now, without the chance or hope of escape. In other words and in short, the substance and effect of what Tally said to Huddleston, taking the two dispatches and all the circumstances into the account, was simply this, no more or less: “Ross has fled in the direction of Stevenson. The four Skeltons are following him on horseback with guns to take his life. Ross does not know of the pursuit. An effort is being made to get the word to Ross through you that he is thus pursued 0in order that he may get away from them. If you do not deliver this word to him he cannot escape them. Do not deliver that message, say nothing about it, and thereby prevent his getting away from them." A most careful analysis of the voluminous testimony in this case convinces us beyond a reasonable doubt that this was what Tally intended to convey to Huddleston, and that his message means this and only this to all reasonable comprehension. Other meanings were suggested at the hearing in argument, and in testimony as to uncommuni [59] cated intention which has been excluded, but the suggestions are either entirely unreasonable in themselves or do not at all comport with the attendant circumstances. For instance, it is said that the language of Tally's telegram shows he contemplated that the message to Ross would be delivered. He said: "Do not let the party warned get away," implying, it is argued, that the party referred to had been or would be warned by the delivery of Ed. Ross's message. This view is entirely too literal and technical. The form of expression employed was incident to the brevity usual in telegraphic communication, and was manifestly intended merely as an identification of the version who was not to be allowed to get away. Tally did not care to put the name of this person in this message. He knew a message of warning had been sent to Ross. Ross was the man he did not want to escape; and he referred to him as the party warned in the sense that he was the party to whom the other message had been started. He meant and his message meant that Huddleston should not let the party warned, or intended to be warned, the party referred to in and by Ed. Ross's message, get away, and not that Huddleston was to look after party who had actually received the message of warning. Moreover, he spoke over the wires to Huddleston at the same time Ed. Ross's message was sent, and before there was any possible chance for the warning to have been given to R. C. Ross. He knew this. And it was at that juncture, when nobody had been warned in fact, that he referred to Ross as the party warned, when he could not have been the party warned in other sense than as being the party intended to be warned, and for whom a message of warning had been transmitted from Scottsboro to Stevenson but not delivered to Ross. And it would seem that he especially intended his command or request should be laid upon Huddleston just at this point, for he was careful to tell Whitner, the operator at Scottsboro, that his message was about the same matter as that of Ed. Ross—the warning of R. C. Ross—thus impressing upon him the propriety not to say necessity, of both being sent at the same time. They both were sent and received at the same time, i.e. in immediate succession; and Tally called upon his friend, Huddleston, not to let the person referred to in the other get away, and, as we have seen, [60] indicated to him that the way to prevent his escape was to "say nothing” about the other, and indeed either message. Again, it is suggested that Tally intended by his message to have Huddleston, who was mayor of Stevenson, arrest Ross. There are many elements of improbability, to say the least, about this. In the first place, the word "arrest" is a most common one and in most universal use. We cannot conceive of any man, and especially not of a lawyer and a judge, employing any other word—and especially when a resort is had to telegraphic communications—to express the idea which this suggestion imputes to Tally—a lawyer and a Judge. Then, as we have already seen, there were no grounds for Ross's arrest. Not only did Tally know this, but Huddleston also. The cause of Ross's flight and the Skeltons' pursuit was well known it seems, both in Scottsboro and Stevenson, and to even the most unlearned comprehension the circumstances involve Ross in no liability to arrest. It is said that Tally wanted Ross arrested because he feared that after getting the warning he would lie in wait and kill the Skeltons as they came into Stevenson. This idea is most farfetched in view of Ross's attitude throughout of being purely on the defensive, and not standing even upon that, but flying from the Skeltons, his whole purpose being to escape from them, and not to kill them. The message itself utterly excludes the possibility of any such interpretation and the existence of any such fear 01' intention in the mind of Judge Tally. The fear deposed to is, that Ross would entrench himself at Stevenson and kill the Skeltons as they came. The apprehension clearly evinced by the message was that if he got the warning he would get away, and not that he would tarry and fight. If he got away the Skeltons were in no danger. But Huddleston was besought not to prevent his waiting for and killing the Skeltons, nor to do anything in that line at all, but to prevent his getting away from the Skeltons as everybody knew he was endeavoring to do. Again, it surpasses understanding how Huddleston was to arrest Ross if he obeyed the final injunction of Judge Tally to "say nothing." And that the idea of having Ross arrested was not in Tally's mind further appears from the fact that he would not agree to that being done when it was suggested by Dr. Rorex earlier in the day. Specifically in [61] respect of the words "say nothing" in Tally's message, explanatory suggestions were made by him on the stand. As a reason for them he first said he hoped by their use to keep the scandal secret. As there was nothing in either of the despatches referring to the scandal, the force of this reasoning is not readily felt. But more than this, everybody in Scotsboro and Stevenson knew already a great deal more about the scandal than could possibly have gotten to them through Huddleston saying all he could about those dispatches. Everybody knew it, and Tally must have been fully aware of this general knowledge. Seeming to appreciate the impotency of this suggestion, which however was at first advanced with every appearance of being intended to cover and account for the whole matter, Judge Tally offered another. It was that he meant by using the words" say nothing" to keep Huddleston from disclosing his connection with the message. Why he should have laid such an injunction upon his friend Huddleston, and not upon Judge Bridges to whom he showed the message without these words, nor upon an entire stranger, young Whitner, at Scottsboro, is much more than we can understand. It also surpasses comprehension that he could have expected Huddleston to arrest Ross without saying to him or anybody else a word about the telegram on or because of which the arrest was made. There is nothing in all this. That Tally's message will bear the construction we have put on it and no other, we have no doubt at all, on the considerations we have advanced; and our view of its meaning and intent is strengthened by the respondent's self-consciousness of its bad purpose and intent which is shown by the facts, which the evidence leaves us no room to doubt, that he surreptitiously abstracted the original message from the files in the telegraph office, and swore on the preliminary examination of the Skeltons that he sent a telegram to Stevenson that morning "but not about this matter. It was to a friend about another matter; nothing concerning this case;"and his further testimony on that trial going to show that he did not know Ed. Ross, did not follow him to the telegraph office, and did not know whether he was in the office while he, Tally, was there or not.
We therefore, find and hold that John B. Tally, with full knowledge that the Skeltons were in pursuit of Ross [62] with the intent to take his life, committed acts, namely, kept watch at Scottsboro to prevent warning of danger being sent to Ross, and, with like purpose, sent the message to Huddleston, which were calculated to aid, and were committed by him with the intent to aid, the said Skeltons to take the life of Ross under circumstances which rendered them guilty of murder.
And we are next to consider and determine the second inquiry stated above, namely: Whether it is essential to the guilt of Judge Tally as charged in the second count of the information that the said acts, thus adapted, intended and committed by him; should in fact have aided the said Skeltons to take the life of the said Ross, should have in fact contributed to his death at their hands.
As the life of Ross was not taken by the hands of Tally, the criminal consequences of the homicide could only have been visited upon him at the common law, if at all, as a principal in the second degree or as an accessory before the fact; he could not have been charged, as he is in this information, directly with the crime of murder as a principal in the first degree. Our statute has abolished the common law distinctions between accessories before the fact and principals, and between principals in the first and second degrees in cases of felony, and provided that" all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors."—Code, § 3704. And though the respondent here is proceeded against by virtue of this statute as a principal in the first degree, the evidence, it being confessed that he did not personally, or in such other way as to make him a principal in the first degree at common law, take the life of Ross, must present him in the light either of an accessory before the fact or as a principal in the second degree, as those distinctions obtained before the enactment of the statute to which we have adverted, or he cannot be convicted. We have already stated our conclusion—and the considerations which led us to it—that Judge Tally did not command, direct, incite, counsel , or encourage the Skeltons to the [63] murder of Ross. We have failed to find, and have so stated, that he knew of their felonious purpose before their departure from Scottsboro in pursuit of Ross. Up to that time there was no instigation or incitement by him to the commission of the crime by them, and after that he did not see or communicate with any of them until after the death of Ross, and hence pending the pursuit he could not have encouraged or instigated them to kill Ross. Judge Tally was, therefore, not, on the view we take of the evidence, an accessory before the fact to the killing of Ross. To be guilty of murder, therefore, not being a common law principal and not being an accessory before the fact-to be concerned in the commission of the offense within the meaning of our statute—he must be found to have aided or abetted the Skeltons in the commission of the offense in such sort as to constitute him at common law a principal in the second degree. A principal in this degree is one who is present at the commission of a felony by the hand of the principal in the first degree, and who being thus present aids or abets, or aids and abets the latter therein. The presence which this definition requires need not be actual, physical juxtaposition in respect of the personal perpetrator of the crime. It is enough, so far as presence is concerned, for the principal in the second degree to be in a position to aid the commission of the crime by others. It is enough if he stands guard while the act is being perpetrated by others, to prevent interference with them or to warn them of the approach of danger; and it is immaterial how distant from the scene of the crime his vigil is maintained provided it gives some promise of protection to those engaged in its active commission. At whatever distance he may be, he is present in legal contemplation if he is at the time performing any act in furtherance of the crime, 01' is in a position to give information to the principal which would be helpful to the end in view, or to prevent others from doing any act, by way of warning the intended victim or otherwise, which would be but an obstacle in the way of the consummation of the crime, or render its accomplishment more difficult. This is well illustrated by the case of State of Nevada v. Hamilton and Laurie, 13 Nev. 386, in which a plan was arranged between Laurie and others to rob the treasure of Wells, Fargo & Co., on the road between [64] Eureka and some point in Nye county. Laurie was to ascertain when the treasure left Eureka, and signal his confederates by building a fire on the top of a mountain in Eureka county, which could be seen by them in Nye county, thirty or forty miles distant. This signal was given by him, and his confederates, advised by it, met the stage, attacked and attempted to rob it, and in the attempt killed one of the guards. Laurie was indicted with the rest for murder, and put on his trial in Nye county, and made the point that inasmuch as a statute of Nevada required that an accessory before or after the fact should be tried in the county where his offense was committed, he could not be held under the pending indictment or tried in the county of Nye, where the robbery was attempted, and the murder committed. But the Supreme Court of that State held that, if he was an accessory before the fact, he was also in legal contemplation present and aiding and abetting at the fact, and was, therefore, a principal in the second degree, and indictable, triable and punishable in N ye county as principal in the first degree, under a statute like section 3704 of our Code. He was constructively present, though thirty or forty miles away, and he was guilty as a principal in the second degree in that from and across this distance he aided and abetted his confederates by the beacon lights which he set upon a hill. It was as if he had been endowed with a voice to compass the intervening space and to advise his accomplices of the approach of the treasure, or as if his words had been transmitted over a telephone or a telegraph line to the ears of his distant confederates. This treasure stage was proceeding on its way without notice to those in charge of it of the impending onslaught upon it. If it had been apprehended by Laurie and his confederates that the people of Eureka—those interested in the treasure, and in the lives of the guards who went with it—would, after its departure, become aware of the situation and dispatch a courier to overtake the stage and warn its occupants, and Laurie had remained there to give warning by signal lights or telegram of the departure of this courier so that he might be intercepted and his message stopped and the stage set upon unawares, and all this had been done, it cannot for a moment be doubted that on these facts also Laurie would have been present at the scene [65] of the attempted robbery in legal sense, and been guilty thereof as a principal in the second degree, though he was all the while much further away in point of physical fact than the distance between Scottsboro and Stevenson. And this upon the principle, as stated by the Nevada court, that "Were several persons confederate together for the purpose of committing a crime which is to be accomplished in pursuance of a common plan, all who do any act which contributes to the accomplishment of their design are principals, whether actually present at its commission or not. They are deemed to be constructively present, though in fact they may be absent."—1 Bish. Cr. Law, § 650; 1 Chitty Cr. Law, p. 256; 1 Whar. Cr. Law, §§ 206 et seq.; Roscoe's Cr. Evidence, pp. 178-9; Raiford v. State, 59 Ala. 106; Griffith v. State, 90 Ala. 583.
So far, therefore, as presence goes Judge Tally, on guard at Scottsboro to prevent warnings being sent to Ross or intercepting or attempting to intercept messages of warning which had started on their flight, was in legal contemplation present at Stevenson, the scene of the homicide, standing over Huddleston to stay him in the performance of his duty of delivering warnings to Ross. He was constructively there, and hence, for all practical legal purposes, actually there. Being thus present, did he aid or abet the killing of Ross? What is meant by these terms, and what has one to do to bring himself within them? It is said in Raiford's Case, supra, that "the words aid and abet are pretty much the synonyms of each other;" and this has doubtless come to be true in the law though originally a different meaning attached to each. The legal definition of “aid” is not different from its meaning in common parlance. It means to assist, to supplement the efforts of another. Rap. & L. Law Dict., p. 43. "Abet" is a French word compounded of the two words a and beter, to bait or excite an animal; and Rapalje and Lawrence thus define it: "To abet is to incite or encourage a person to commit crime; an abettor is a person who, being present or in the neighborhood, incites another to commit a crime, and thus becomes a principal in the offense.”— Rap. & L. Law Dict., p. 4. By the amalgamation of the two words in meaning—by making synonyms of them—it may be said that to abet has come to mean to aid by [66] presence, actual or constructive, and incitement, and that to aid means not only actual assistance, the supplementing of another's efforts, but also presence for the purposes of such actual assistance as the circumstances may demand or admit of, and the incitement and encouragement which the fact of such presence for such purposes naturally imports and implies. So we have this definition of the two terms by the late Chief Justice Stone: "The words aid and abet, in legal phrase, are pretty much the synonyms of each other. They comprehend all assistance rendered by acts, or words of encouragement or support or presence, actual or constructive, to render assistance should it become necessary. No particular acts are necessary. If encouragement be given to commit the felony, or if, giving due weight to all the testimony, the jury are convinced beyond a reasonable doubt that the defendant was present with a view to render aid should it become necessary, then that ingredient of the offense is made out.”— Raiford v. State, 59 Ala. 106. This definition was sufficient for the case then in hand, and it is in the form not infrequently found in the books. But it is incomplete. Mere presence for the purpose of rendering aid obviously is not aid in the substantive sense of assistance by an act supplementary to the act of the principal. Nor is it aid in the original sense of abetting, nor abetting in any sense, unless presence with the purpose of giving aid, if necessary, was preconcerted or in accordance with the general plan conceived by the principal and the person charged as an aider or abettor, or, at the very least, unless the principal knew of the presence, with intent to aid, of such person. For manifestly in such case, there being no actual, substantive assistance and no encouragement by words, the only aid possible would be the incitement and encouragement of the fact that another was present for the purpose of assistance, and with the intent to assist if necessary. And in the nature of things, the fact of presence and purpose to aid could not incite or encourage or embolden the principal unless he knew of the existence of that fact. That kind of aid operates solely upon the mentality of the actual perpetrator; when rendered at all it is by way of assurance to his mind in the undertaking he is upon, and it nerves him to the deed and helps him execute [67] it through a consciousness—a purely mental condition that another is standing by in a position to help him if help becomes necessary; who will come to his aid if aid is needed. And that there could be this consciousness without any knowledge of the fact of such other's presence and purpose can not be conceived. That one may be encouraged or incited to an act by a consideration of which he is wholly oblivious and which has never addressed itself to his mind, is far beyond the limit of finite comprehension. The definition we have quoted is, as an abstract proposition, clearly at fault. As applied in the concrete to cases of confederacy as it is, we undertake to say, whenever it is stated in this form, it is free from objection. But in the absence of confederacy, or at least of knowledge on the part of the actual perpetrator of a crime, one can not be a principal in the second degree who is present intending to aid and does not aid by word or deed. The definition must go further. It should appear by it that to be an aider or abettor when no assistance is given or word uttered, the person so charged must have been present by preconcert, special or general, or atleast to the knowledge of the principal, with the intent to aid him. This view is very clearly stated by Mr. Wharton. He says: "It is not necessary, therefore, to prove that the party actually aided in the commission of the offense; if he watched for his companions in order to prevent surprise, or remained at a convenient distance in order to favor their escape, if necessary, or was in such a situation as to be able to readily to comp, to their assistance, the knowledge of which was calculated to give additional confidence to his companions, in contemplation of law, he was aiding and abetting." (The italization is ours.)—1 Whart. Cr. Law, § 210, And the same idea is thus expressed by Mr. Stephens in his summary of Criminal Law: "The aiding and abetting must involve some participation; mere presence without participation, will not suffice if no act whatever is done in concert, and no confidence intentionally imported by such presence to the perpetrators.” See Connaughty v. State, 1 Wis. 143, 144. And Mr. Bishop says: "A principal in the second degree is one who is present lending his countenance and encouragement, or otherwise aiding, while another does the act.”—1 Bish. Cr. Law, 648. And Mr. Wharton further says: "Something [68] must be shown inthe conduct of the bystander, which indicates [to the perpetrator, manifestly] a design to encourage, incite, or, in some manner afford aid or consent to the particular act; though when the bystander is a friend of the perpetrator, and knows that his presence will be regarded by the perpetrator as an encouragement and protection, presence alone will be regarded as an encouragement. * * * The confederacy must be real; * * * mere consent to a crime when no aid is given, and no encouragement rendered does not amount to participation."—l Whart. Cr. Law, §§ 211 a, 211 c, 211 d. And to like effect are the following authorities: The People v. Woodward, 45 Cal. 293 ; White v. The People, 81 Ill. 333; Cooper v. Johnson, 81 Mo. 483; Notsfinger v. State, 7 Tex. A pp. 301; True v. Commonwealth, 14 So. W. Rep. 684; 1 Am. & Eng. Encyc. of Law, p. 62; Whart. Cr. Ev., 440. Our own cases fully support these views. Thus in Wicks v. State, 44 Ala. 398, with reference to section 3704 of the Code it is said: "The testimony must show an actual participation
In the commission of the offense, else the party charged can not be convicted under this statute." And in Cabbell v. State, 46 Ala. 195, a mob had overpowered an officer and taken his prisoner into a house, where they were assaulting him with intent to murder. The defendant, coming upon the scene at this juncture, and being informed that the mob was trying to kill the prisoner on account of the offense for which he had been arrested, said: "That is right, kill him ; God damn him. The question was whether on this evidence the defendant was an aider and abettor in the assault made by the mob; and upon this the court said: "It is not pretended that the defendant committed the assault—it was the act of the mob; nor was it seriously contended that he was in fact a member of that unlawful assembly. Consequently the words uttered by him can not be held to have encouraged or aided the persons by whom the assault was committed, unless addressed to or at least heard by them or some of them.” Here Cabbell had the guilty intent; he wanted the prisoner killed; and he did an act calculated to contribute to the execution of that intent; he uttered words of encouragement and incitement. But he was adjudged to be not guilty, because what he did, though with criminal [69] intent and calculated to accomplish or aid in the accomplishment of a criminal result, did not in point of fact contribute to that result. And this proposition is directly supported by Raiford v. State, supra, when the elliptical definition of aid and abet is rounded out, as we have shown it must be, and also in a general way by Frank v. State, 27 Ala. 37; Tidwell v. State, 70 Ala. 33; Jordan v. State, 79 Ala. 9, 13, and Griffith v. State, 90 Ala. 583.
We are therefore clear to the conclusion that before Judge Tally can be found guilty of aiding and abetting the Skeltons to kill Ross , it must appear that his vigil at Scottsboro to prevent Ross from being warned of his danger was by preconcert with them, or at least known to them, whereby they would naturally be incited, encouraged and emboldened—"given confidence"—to the deed, or that he aided them to kill Ross, contributed to Ross's death in point of physical fact by means of the telegram he sent to Huddleston.
The assistance given, however, need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely tenders it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide can be shown to have put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had he who furnishes such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. As where one counsels murder he is guilty as an accessory before the fact, though it appears to be probable that murder would have been done without his counsel, and as where one being: present by concert to aid if necessary is guilty as a principal in the second degree, though had he been absent murder would have been committed, so where he who facilitates murder, even by so much as destroying a single chance of life the assailed might otherwise have had, he thereby supplements the efforts of the perpetrator, and he is guilty as principal in the second degree at common law, and is principal in the first degree under our statute, notwithstanding it may [70] be found that in all human probability the chance would not have been availed of, and death would have resulted anyway.
We have already said enough to indicate the grounds of the conclusion which we now announce, that Tally's standing guard at the telegraph office in Scottsboro to prevent Ross's being warned of the pursuit of the Skeltons was not by preconcert with them, and was not known to them. It is even clear, and more certain that they knew neither of the occasion nor the fact of the sending of the message by him to Huddleston. And hence they were not and could not have been aided in the execution of their purpose to kill by the keeping of this vigil, or by the mere fact of the forwarding of the message to Stevenson, since these facts in and of themselves could not have given them any actual, substantial help as distinguished from incitement and encouragement, and they could not have aided them by way of incitement and encouragement, because they were ignorant of them. And so we are come to a consideration of the effect, if any, produced upon the situation at Stevenson by the message of Judge Tally to Huddleston. Its effect upon the situation could only have been through Huddleston, and upon his action in respect of the delivery to Ross of the message of warning sent by Ed. Ross. This latter message reached Huddleston for Ross, we suppose, about five minutes—certainly not more than ten minutes—before Ross arrived at Stevenson. Immediately upon the heels of it, substantially at the same time, Tally's message to Huddleston was received by the latter. Ed. Ross's message imported extreme urgency in its delivery, and Tally's to Huddleston, though by no means so intended, emphasized the necessity and importance, from the standpoint of duty, for the earliest possible delivery of Ed. Ross's message to Robert C. Ross; and it was the manifest duty of Huddleston to deliver it at the earliest practicable moment of time.—Law of Telegraphy, Scott &; Jernigan, § 188. Huddleston appears to have appreciated the urgency of the case, and at first to have intended doing his duty. Upon receiving the two messages, he went at once without waiting to copy them to the Stevenson Hotel, which is located very near the telegraph office, in quest of Ross, upon the idea that he might have already arrived. We are to presume a purpose to do what duty [71] enjoins until the contrary appears; and we, therefore, should assume that Huddleston intended to deliver the message to Ross, or to inform him of its contents had he been in the hotel. Not finding him there J for he had not yet reached Stevenson, Huddleston returned to the door of the depot up stairs in which was the telegraph office. By this time the command which Judge Tally had laid upon him had overmastered his sense of duty and diverted him from his purpose to deliver Ed. Ross's message to Robert. Standing there at the door he saw a hack approaching from the direction of Scottsboro. He said then that he supposed Ross was in that hack. Wedo not think it was incumbent upon him, inasmuch as the hack was being driven directly to the depot, to go down the road to meet it, though the situation was then more urgent than was indicated by the telegrams in that the Skeltons were at that time skulking on the flanks of and immediately behind the hack; but there is no evidence that Huddleston knew this. But we do not doubt that it was Huddleston's duty to go out to the road along which the hack was being driven, at a point opposite his own position at the depot, and near to it, and there and then have delivered the message or made known its contents to Ross. The only explanation he offers for not then delivering the message or making known its contents to Ross was—not that he could not have done it, that was entirely practicable—but that he had not taken a copy of it; a consideration which did not prevent his going to the hotel for the purpose of delivery before he saw Ross approaching, and which, had his original purpose continued, we cannot believe would have swerved him from his plain duty at this juncture. Presuming that he would have done this because it was his duty to do it—a duty which he at first appreciated—and finding as a fact that he did not do it, the reason for his default is found in the injunction laid upon him by Judge Tally. He did not warn Ross because he did not want Ross to get away, and this because Judge Tally had asked him not to let Ross get away. So that as he stood there at the door he mapped out a course of action. He would not deliver the message immediately, if at all, but he would send off for the town marshal, and in the meantime he would call William Tally from over the way and confer with him as to what should be done; Ross to be [72] the while wholly unadvised of the contents of the message from his kinsman, and wholly ignorant of the pursuit of the Skeltons. So he sends a man in search of the marshal whose whereabouts, and of consequence the time necessary to find and bring whom to the station, were unknown; beckons to William Tally to come to him, then turns and goes up stairs into the telegraph office. He says he went up there to copy Ross's message for delivery to him. If this be true, this was only another factor, so we have seen, in the delay that Judge Tally's message had determined him upon, for while at first he was anxious to deliver the message or its contents uncopied to Ross, when he thought Ross might be at the hotel, and went there to find him for that purpose, when Ross was actually in sight of him and rapidly approaching him, he deemed it most important to copy the message before advising Ross. It was also into this up stairs office that he invited William Tally, and we cannot escape the conclusion that his purpose in going there before delivering the message was to have a consultation with William Tally as to what should be (lone before advising Ross, and also to give the marshal time to arrive, so that, should they conclude to adopt that course, they could have Ross arrested. And it cannot, we think, be doubted that he then had no purpose whatever of apprising Ross of the contents of the message, if ever, until he had had this conference with the brother of the man who had asked him not to deliver it at all. That this delay was to conserve such ulterior purpose as might be born of this conference, was wholly unwarranted and was caused by the telegram of Judge Tally to Huddleston, we believe beyond a reasonable doubt.
It remains to be determined whether the unwarranted delay in the delivery of the message to Ross, or in advising him of its contents, thus caused by Judge Tally with intent thereby to aid the Skeltons to kill Ross, did in fact aid them or contribute to the death of Ross by making it easier than it would otherwise have been for the Skeltons to kill him, by depriving him of some advantage he would have had had he been advised of its contents when his carriage stopped or immediately upon his alighting from it, or by leaving him without some chance of life which would have been his had Huddleston done his duty.
[73] The telegram, we have said, should have been delivered, or its contents made known, to Ross at the time the hack came opposite where Huddleston was and stopped. Huddleston and William Tally were equidistant from this point when the former called to the latter, at which time also Huddleston had seen the hack approaching this point. Tally, going to Huddleston, reached this middle point between them, unhastened as Huddleston should have been by the urgency of the message just as the carriage got there and stopped. It is, therefore clear that had Huddleston, instead of calling Tally and going into the depot, himself have gone out to the road along which the carriage was approaching, and which was not more than one hundred feet from him, he would have gotten there certainly by the time it stopped, and have acquainted Ross with the contents of the message, with the fact that four men were pursuing him with guns to take his life, before Ross alighted from the hack.
Being thus advised, and not knowing of the immediate proximity of the Skeltons, it may be that Ross would have alighted as he did, exposed himself to the Skeltons' fire as he did and been killed as he was. But on the other hand, the Skeltons were at that time dismounted, and two of them at least, a long way from their horses, and none of them were in his front up the road, and he had a chance of escape by continued flight in the vehicle. Again, he might then and there have put himself under the protection of Huddleston as an officer of the law and had the bystanders, those in the immediate neighborhood of whom there were several, summoned to help protect him. This might have saved his life; it was a chance that he had. But, if it be conceded that, as he would not have known of the proximity of the Skeltons from mere knowledge that they were in pursuit, he would have alighted precisely as and when he did, yet when the first shot was fired Ross would have known that the man who fired it was one of the Skeltons, and that three others of them were present in ambush armed with guns to take his life. Knowing this, the hopelessness of standing his ground and attempting to defend himself from his enemies, overpowering in number and secure in their hiding places, while he stood in the open street, would have been at once manifest to him; and in [74] stead of standing there as he did, knowing only as he did that some one man, whom he did not know had fired a gun, and peering and craning his neck to see whence the shot came and who fired it, he could and doubtless would have sought safety by flight in the opposite direction, in which was the Union Hotel scarce an hundred feet away. And in view of the fact that he was hit only once by the numerous shots that were fired at him while he stood there in the open, and that not in a vital or disabling part, it is very probable that had he attempted that mode of escape, as soon as the first shot was fired, he would have reached the hotel in perfect safety. Certain it is that making that effort he would have gone away from the lurking places of his enemies, and he would not, as he did in his ignorance of the true situation, have placed himself where John Skelton at close quarters could and did shoot him to death from behind his back. But whether he would or would not have reached a place of refuge, we need not inquire or find. The knowledge that he would have had, if the telegram of Ed, Ross had been delivered to him when it could and should have been delivered, of the pursuit of the Skeltons, together with the knowledge which would have been imparted to him by the report of the first gun in connection with the contents of the message, would instantly have advised him of the extent of his danger—a danger which he could not combat, which was deadly in character and from which, as he would naturally have been at once impressed, the only hope of escape lay in immediate flight. That was a chance for his life that this knowledge would have given him. That was a chance of which the withholding of this know ledge deprived him. Tally’s telegram to Huddleston deprived him of that knowledge. Tally through Huddleston deprived him of that chance. Again, after having been shot m the legs and partially disabled by one of the many shots fired at him by Robert, James, and Walter Skelton, as he stood fully exposed to their broadside, he in his then crippled condition made an effort to find protection behind the oil house, the nearest building to him. Only these three men had fired up to that time. He knew of the presence of these three only. The house sheltered him from two of these men and partially also from the third. He got there and stood facing in the [75] direction these three were. And he called aloud for protection from them meantime keeping a lookout for them and intending no doubt to protect himself from them if he could. He knew of the presence of these three only. Nobody had seen John Skelton. He did not know that John Skelton was there. Had he gotten Ed. Ross's telegram this he would have known, that there were four of them, that only three had shot at him that the other was somewhere hidden in the immediate vicinity. And while seeking to escape from or guard himself from the other three, while he was by the side of the oil house, he would also have sought to guard himself against the fourth. He was off his guard as as to this fourth man, John Skelton, because he was ignorant of his presence. This ignorance was directly due to Tally's active interference. Tally's aid to the Skeltons by way of preventing Ross being warned enabled John Skelton to come upon Ross from his rear and shoot him down. Ross went to his death, guarding himself against the other three and calling for protection from them without even knowing that the man who killed him was nearer to him than Scottsboro. Can it be doubted that Ross's utter ignorance of John Skelton's presence, with the others at Stevenson, made it easier for John Skelton to take his life? Can it be doubted that his ignorance of the presence of all four Skeltons, when the first gun was fired by Robert Skelton at Bloodwood, when had he known it, he could have fled in the appreciable time between the time of the firing of this first and the other shots—the next one being fired by the same man—made it easier for them to take his life? Can it be doubted in any case that murder by lying in wait is facilitated by the unconsciousness of the victim? Or in any case, that the chances of the intended victim would be improved and his death rendered more difficult of accomplishment, if the first unfruitful shot apprises him of the number and identity of his assailants and the full scope and measure of their motive and purposes? We cannot believe otherwise. It is inconceivable to us, after the maturest consideration reflection and discussion, but that Ross's predicament was rendered infinitely more desperate, his escape more difficult and his death of much more easy and certain accomplishment by the withholding from him of the mes [76] sage of Ed. Ross. This withholding was the work of Judge Tally. An intent to aid the Skeltons to take the life of Ross actuated him to it. The intent was effectuated, they thereby were enabled to take him unawares, and to send him to his death without, we doubt not, his ever actually knowing who sought his life, or being able to raise a hand in defense, or to take an advised, step in retreat. And we are impelled to find that John B. Tally aided and abetted the murder of Robert C. Ross, as alleged in the second specification of the second count of the information; and to adjudge that he is guilty as charged in that specification, and guilty of murder as charged in said second count. And judgment deposing him from office will be entered on the records of this court.
No consideration or conclusion of fact in this opinion must be allowed to exert any influence upon the trials of the Skeltons and Judge Tally on the indictments for murder now pending against them.
HEAD, J., dissenting.—I am of opinion the respondent should be acquitted of both charges. I do not believe, beyond a reasonable doubt, that respondent intended, in sending the telegram to Huddleston, to aid or abet in the murder of Ross. I do not believe, beyond a reasonable doubt, that the telegram of warning would have been delivered to Ross by Huddleston, before the shooting began, if the telegram of the respondent had not been sent.
BRICKELL, C. J., not sitting.
[*] The opinion in this case was rendered August 9, 1894; but by reason of the importance of the case, it is reported in this volume, without regard to date of judgment.
7.2.8.8.2 VII.B. Conspiracy 7.2.8.8.2 VII.B. Conspiracy
Conspiracy, unlike complicity, is a standalone crime. Its requirements are very minimal: at common law, only an agreement to commit unlawful actions. The agreement, itself, is the actus reus. Under federal law, an act in furtherance is needed to seal the conspiracy. Often, proving conspiracy is much easier than proving a completed or attempted crime, and so conspiracy has become a favorite tool of prosecutors to lower the burden of proof, accumulate charges, or increase the number of people implicated in a crime. As you read these cases, consider the distinctions between conspiracy and complicity. Consider also how far liability extends. What is the mens rea for the crime of conspiracy itself? What mens rea is necessary for the subsequent crimes committed in furtherance of the conspiracy? How do the various formulations of conspiracy liability interact with the justifications of punishment—retribution, deterrence, incapacitation, and rehabilitation?
7.2.8.8.2.1. Model Penal Code sec. 5.03
7.2.8.8.2.2 People v. Lauria 7.2.8.8.2.2 People v. Lauria
THE PEOPLE, Plaintiff and Appellant,
v.
LOUIS LAURIA et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Two.
[473] Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, Evelle J. Younger, District Attorney, Harry Wood and Robert J. Lord, Deputy District Attorneys, for Plaintiff and Appellant.
[474] Jay Plotkin, under appointment by the Court of Appeal, Patrick Coleman, Apple & Dobrin and Irving D. Apple for Defendants and Respondents.
FLEMING, J.
In an investigation of call-girl activity the police focused their attention on three prostitutes actively plying their trade on call, each of whom was using Lauria's telephone answering service, presumably for business purposes.
On January 8, 1965, Stella Weeks, a policewoman, signed up for telephone service with Lauria's answering service. Mrs. Weeks, in the course of her conversation with Lauria's office manager, hinted broadly that she was a prostitute concerned with the secrecy of her activities and their concealment from the police. She was assured that the operation of the service was discreet and "about as safe as you can get." It was arranged that Mrs. Weeks need not leave her address with the answering service, but could pick up her calls and pay her bills in person.
On February 11, Mrs. Weeks talked to Lauria on the telephone and told him her business was modelling and she had been referred to the answering service by Terry, one of the three prostitutes under investigation. She complained that because of the operation of the service she had lost two valuable customers, referred to as tricks. Lauria defended his service and said that her friends had probably lied to her about having left calls for her. But he did not respond to Mrs. Weeks' hints that she needed customers in order to make money, other than to invite her to his house for a personal visit in order to get better acquainted. In the course of his talk he said "his business was taking messages."
On February 15, Mrs. Weeks talked on the telephone to Lauria's office manager and again complained of two lost calls, which she described as a $50 and a $100 trick. On investigation the office manager could find nothing wrong, but she said she would alert the switchboard operators about slip-ups on calls.
On April 1 Lauria and the three prostitutes were arrested. Lauria complained to the police that this attention was undeserved, stating that Hollywood Call Board had 60 to 70 prostitutes on its board while his own service had only 9 or 10, that he kept separate records for known or suspected prostitutes for the convenience of himself and the police. When asked if his records were available to police who might come [475] to the office to investigate call girls, Lauria replied that they were whenever the police had a specific name. However, his service didn't "arbitrarily tell the police about prostitutes on our board. As long as they pay their bills we tolerate them." In a subsequent voluntary appearance before the grand jury Lauria testified he had always cooperated with the police. But he admitted he knew some of his customers were prostitutes, and he knew Terry was a prostitute because he had personally used her services, and he knew she was paying for 500 calls a month.
Lauria and the three prostitutes were indicted for conspiracy to commit prostitution, and nine overt acts were specified. Subsequently the trial court set aside the indictment as having been brought without reasonable or probable cause. (Pen Code, § 995.) The People have appealed, claiming that a sufficient showing of an unlawful agreement to further prostitution was made.
[1] To establish agreement, the People need show no more than a tacit, mutual understanding between coconspirators to accomplish an unlawful act. (People v. Calhoun, 50 Cal.2d 137, 144 [323 P.2d 427]; People v. Yeager, 194 Cal. 452, 484 [229 P. 40].) Here the People attempted to establish a conspiracy by showing that Lauria, well aware that his codefendants were prostitutes who received business calls from customers through his telephone answering service, continued to furnish them with such service. This approach attempts to equate knowledge of another's criminal activity with conspiracy to further such criminal activity, and poses the question of the criminal responsibility of a furnisher of goods or services who knows his product is being used to assist the operation of an illegal business. Under what circumstances does a supplier become a part of a conspiracy to further an illegal enterprise by furnishing goods or services which he knows are to be used by the buyer for criminal purposes?
The two leading cases on this point face in opposite directions. In United States v. Falcone, 311 U.S. 205 [85 L.Ed. 128, 61 S.Ct. 204], the sellers of large quantities of sugar, yeast, and cans were absolved from participation in a moonshining conspiracy among distillers who bought from them, while in Direct Sales Co. v. United States, 319 U.S. 703 [87 L.Ed. 1674, 63 S.Ct. 1265], a wholesaler of drugs was convicted of conspiracy to violate the federal narcotic laws by selling drugs in quantity to a codefendant physician who was supplying them to addicts. The distinction between these two [476] cases appears primarily based on the proposition that distributors of such dangerous products as drugs are required to exercise greater discrimination in the conduct of their business than are distributors of innocuous substances like sugar and yeast.
In the earlier case, Falcone, the sellers' knowledge of the illegal use of the goods was insufficient by itself to make the sellers participants in a conspiracy with the distillers who bought from them. Such knowledge fell short of proof of a conspiracy, and evidence on the volume of sales was too vague to support a jury finding that respondents knew of the conspiracy from the size of the sales alone.
In the later case of Direct Sales, the conviction of a drug wholesaler for conspiracy to violate federal narcotic laws was affirmed on a showing that it had actively promoted the sale of morphine sulphate in quantity and had sold codefendant physician, who practiced in a small town in South Carolina, more than 300 times his normal requirements of the drug, even though it had been repeatedly warned of the dangers of unrestricted sales of the drug. The court contrasted the restricted goods involved in Direct Sales with the articles of free commerce involved in Falcone: "All articles of commerce may be put to illegal ends," said the court. "But all do not have inherently the same susceptibility to harmful and illegal use.... This difference is important for two purposes. One is for making certain that the seller knows the buyer's intended illegal use. The other is to show that by the sale he intends to further, promote, and cooperate in it. This intent, when given effect by overt act, is the gist of conspiracy. While it is not identical with mere knowledge that another purposes unlawful action it is not unrelated to such knowledge.... The step from knowledge to intent and agreement may be taken. There is more than suspicion, more than knowledge, acquiescence, carelessness, indifference, lack of concern. There is informed and interested cooperation, stimulation, instigation. And there is also a `stake in the venture' which, even if it may not be essential, is not irrelevant to the question of conspiracy." (319 U.S. at pp. 710-713, 87 L.Ed. at pp. 1681, 1682.)
While Falcone and Direct Sales may not be entirely consistent with each other in their full implications, they do provide us with a framework for the criminal liability of a supplier of lawful goods or services put to unlawful use. [2] Both the element of knowledge of the illegal use of the [477] goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
[3] Proof of knowledge is ordinarily a question of fact and requires no extended discussion in the present case. The knowledge of the supplier was sufficiently established when Lauria admitted he knew some of his customers were prostitutes and admitted he knew that Terry, an active subscriber to his service, was a prostitute. In the face of these admissions he could scarcely claim to have relied on the normal assumption an operator of a business or service is entitled to make, that his customers are behaving themselves in the eyes of the law. Because Lauria knew in fact that some of his customers were prostitutes, it is a legitimate inference he knew they were subscribing to his answering service for illegal business purposes and were using his service to make assignations for prostitution. On this record we think the prosecution is entitled to claim positive knowledge by Lauria of the use of his service to facilitate the business of prostitution.
[4] The more perplexing issue in the case is the sufficiency of proof of intent to further the criminal enterprise. The element of intent may be proved either by direct evidence, or by evidence of circumstances from which an intent to further a criminal enterprise by supplying lawful goods or services may be inferred. Direct evidence of participation, such as advice from the supplier of legal goods or services to the user of those goods or services on their use for illegal purposes, such evidence as appeared in a companion case we decide today, People v. Roy, ante, p. 459 [59 Cal. Rptr. 636], provides the simplest case. When the intent to further and promote the criminal enterprise comes from the lips of the supplier himself, ambiguities of inference from circumstance need not trouble us. [5] But in cases where direct proof of complicity is lacking, intent to further the conspiracy must be derived from the sale itself and its surrounding circumstances in order to establish the supplier's express or tacit agreement to join the conspiracy.
In the case at bench the prosecution argues that since Lauria knew his customers were using his service for illegal purposes but nevertheless continued to furnish it to them, he must have intended to assist them in carrying out their illegal activities. Thus through a union of knowledge and intent he became a participant in a criminal conspiracy. Essentially, the People argue that knowledge alone of the continuing use of [478] his telephone facilities for criminal purposes provided a sufficient basis from which his intent to participate in those criminal activities could be inferred.
In examining precedents in this field we find that sometimes, but not always, the criminal intent of the supplier may be inferred from his knowledge of the unlawful use made of the product he supplies. Some consideration of characteristic patterns may be helpful.
[6] 1. Intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (United States v. Falcone, 109 F.2d 579, 581.) For example, in Regina v. Thomas, [1957] 2 All Eng. 181, 342, a prosecution for living off the earnings of prostitution, the evidence showed that the accused, knowing the woman to be a convicted prostitute, agreed to let her have the use of his room between the hours of 9 p.m. and 2 a.m. for a charge of £ 3 a night. The Court of Criminal Appeal refused an appeal from the conviction, holding that when the accused rented a room at a grossly inflated rent to a prostitute for the purpose of carrying on her trade, a jury could find he was living on the earnings of prostitution.
In the present case, no proof was offered of inflated charges for the telephone answering services furnished the codefendants.
[7] 2. Intent may be inferred from knowledge, when no legitimate use for the goods or services exists. The leading California case is People v. McLaughlin, 111 Cal. App.2d 781 [245 P.2d 1076], in which the court upheld a conviction of the suppliers of horse-racing information by wire for conspiracy to promote bookmaking, when it had been established that wire-service information had no other use than to supply information needed by bookmakers to conduct illegal gambling operations.
In Rex v. Delaval (1763) 3 Burr. 1434, 97 Eng.Rep. 913, the charge was unlawful conspiracy to remove a girl from the control of Bates, a musician to whom she was bound as an apprentice, and place her in the hands of Sir Francis Delaval for the purpose of prostitution. Lord Mansfield not only upheld the charges against Bates and Sir Francis, but also against Fraine, the attorney who drew up the indentures of apprenticeship transferring custody of the girl from Bates to Sir Francis. Fraine, said Lord Mansfield, must have known that Sir Francis had no facilities for teaching music to apprentices [479] so that it was impossible for him to have been ignorant of the real intent of the transaction.
In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, the defendant was convicted of conspiracy to corrupt public morals and of living on the earnings of prostitution, when he published a directory consisting almost entirely of advertisements of the names, addresses, and specialized talents of prostitutes. Publication of such a directory, said the court, could have no legitimate use and serve no other purpose than to advertise the professional services of the prostitutes whose advertisements appeared in the directory. The publisher could be deemed a participant in the profits from the business activities of his principal advertisers.
Other services of a comparable nature come to mind: the manufacturer of crooked dice and marked cards who sells his product to gambling casinos; the tipster who furnishes information on the movement of law enforcement officers to known lawbreakers. (Cf. Jackson v. State of Texas (1957) 164 Tex. Crim. Rep. 276 [298 S.W.2d 837], where the furnisher of signaling equipment used to warn gamblers of the police was convicted of aiding the equipping of a gambling place.) In such cases the supplier must necessarily have an intent to further the illegal enterprise since there is no known honest use for his goods.
However, there is nothing in the furnishing of telephone answering service which would necessarily imply assistance in the performance of illegal activities. Nor is any inference to be derived from the use of an answering service by women, either in any particular volume of calls, or outside normal working hours. Night-club entertainers, registered nurses, faith healers, public stenographers, photographic models, and free lance substitute employees, provide examples of women in legitimate occupations whose employment might cause them to receive a volume of telephone calls at irregular hours.
[8] 3. Intent may be inferred from knowledge, when the volume of business with the buyer is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller's total business. In such cases an intent to participate in the illegal enterprise may be inferred from the quantity of the business done. For example, in Direct Sales, supra, the sale of narcotics to a rural physician in quantities 300 times greater than he would have normal use for provided potent evidence of an intent to further the illegal activity. In the same case the court also found [480] significant the fact that the wholesaler had attracted as customers a disproportionately large group of physicians who had been convicted of violating the Harrison Act. In Shaw v. Director of Public Prosecutions, [1962] A.C. 220, almost the entire business of the directory came from prostitutes.
No evidence of any unusual volume of business with prostitutes was presented by the prosecution against Lauria.
Inflated charges, the sale of goods with no legitimate use, sales in inflated amounts, each may provide a fact of sufficient moment from which the intent of the seller to participate in the criminal enterprise may be inferred. In such instances participation by the supplier of legal goods to the illegal enterprise may be inferred because in one way or another the supplier has acquired a special interest in the operation of the illegal enterprise. His intent to participate in the crime of which he has knowledge may be inferred from the existence of his special interest.
Yet there are cases in which it cannot reasonably be said that the supplier has a stake in the venture or has acquired a special interest in the enterprise, but in which he has been held liable as a participant on the basis of knowledge alone. Some suggestion of this appears in Direct Sales, supra, where both the knowledge of the illegal use of the drugs and the intent of the supplier to aid that use were inferred. In Regina v. Bainbridge (1959) 3 Week.L. 656 [(C.C.A. 6) [3 All Eng. 200, 123 J.P. 499, 43 Crim. App. 194], a supplier of oxygen-cutting equipment to one known to intend to use it to break into a bank was convicted as an accessory to the crime. In Sykes v. Director of Public Prosecutions [1962] A.C. 528, one having knowledge of the theft of 100 pistols, 4 submachine guns, and 1,960 rounds of ammunition was convicted of misprision of felony for failure to disclose the theft to the public authorities. [9] It seems apparent from these cases that a supplier who furnishes equipment which he knows will be used to commit a serious crime may be deemed from that knowledge alone to have intended to produce the result. Such proof may justify an inference that the furnisher intended to aid the execution of the crime and that he thereby became a participant. For instance, we think the operator of a telephone answering service with positive knowledge that his service was being used to facilitate the extortion of ransom, the distribution of heroin, or the passing of counterfeit money who continued to furnish the service with knowledge of its use, might be chargeable on knowledge alone with participation in a scheme to extort money, to distribute narcotics, or to [481] pass counterfeit money. The same result would follow the seller of gasoline who knew the buyer was using his product to make Molotov cocktails for terroristic use.
Logically, the same reasoning could be extended to crimes of every description. [10] Yet we do not believe an inference of intent drawn from knowledge of criminal use properly applies to the less serious crimes classified as misdemeanors. The duty to take positive action to dissociate oneself from activities helpful to violations of the criminal law is far stronger and more compelling for felonies than it is for misdemeanors or petty offenses. In this respect, as in others, the distinction between felonies and misdemeanors, between more serious and less serious crime, retains continuing vitality. In historically the most serious felony, treason, an individual with knowledge of the treason can be prosecuted for concealing and failing to disclose it. (Pen. Code, § 38; 18 U.S.C. § 2382.) [11] In other felonies, both at common law and under the criminal laws of the United States, an individual knowing of the commission of a felony is criminally liable for concealing it and failing to make it known to proper authority. (4 Blackstone 121; Sykes v. Director of Public Prosecutions [1962] A.C. 528; 18 U.S.C. § 4.) [12] But this crime, known as misprision of felony, has always been limited to knowledge and concealment of felony and has never extended to misdemeanor. A similar limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony. (Pen. Code, § 32.) We believe the distinction between the obligations arising from knowledge of a felony and those arising from knowledge of a misdemeanor continues to reflect basic human feelings about the duties owed by individuals to society. Heinous crime must be stamped out, and its suppression is the responsibility of all. (Backun v. United States, 112 F.2d 635, 637.) Venial crime and crime not evil in itself present less of a danger to society, and perhaps the benefits of their suppression through the modern equivalent of the posse, the hue and cry, the informant, and the citizen's arrest, are outweighed by the disruption to everyday life brought about by amateur law enforcement and private officiousness in relatively inconsequential delicts which do not threaten our basic security. The subject has been summarized in an English text on the criminal law: "Failure to reveal a felony to the authorities is now authoritatively determined to be misprision of felony, which is a commonlaw misdemeanour; [482] misprision of treason is punishable with imprisonment for life.... No offence is committed in failing to disclose a misdemeanour....
"`To require everyone, without distinction, as to the nature and degree of the offence, to become an accuser, would be productive of inconvenience in exposing numbers to penal prosecutions, multiplying criminal charges, and engendering private dissension. It may sometimes be more convenient that offences should be passed over, than that all should indiscriminately be made the subject of prosecution; and a law would be considered to be harsh and impolitic, if not unjust, which compelled every party injured by a criminal act, and, still more so, to compel everyone who happened to know that another had been so injured, to make a public disclosure of the circumstances. Here, therefore, there is reason for limiting the law against mere misprisions to the concealment of such crimes as are of an aggravated complexion.'" (Criminal Law, Glanville Williams (2d ed.) p. 423.)
[13] With respect to misdemeanors, we conclude that positive knowledge of the supplier that his products or services are being used for criminal purposes does not, without more, establish an intent of the supplier to participate in the misdemeanors. With respect to felonies, we do not decide the converse, viz., that in all cases of felony knowledge of criminal use alone may justify an inference of the supplier's intent to participate in the crime. The implications of Falcone make the matter uncertain with respect to those felonies which are merely prohibited wrongs. See also Holman v. Johnson (1775) 98 Eng.Rep. 1120 (sale and delivery of tea at Dunkirk known to be destined for smuggling into England not an illegal contract). But decision on this point is not compelled, and we leave the matter open.
[14] From this analysis of precedent we deduce the following rule: the intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence that he intends to participate, or (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself.
[15] When we review Lauria's activities in the light of this analysis, we find no proof that Lauria took any direct action to further, encourage, or direct the call-girl activities of his codefendants and we find an absence of circumstance from [483] which his special interest in their activities could be inferred. Neither excessive charges for standardized services, nor the furnishing of services without a legitimate use, nor an unusual quantity of business with call girls, are present. The offense which he is charged with furthering is a misdemeanor, a category of crime which has never been made a required subject of positive disclosure to public authority. Under these circumstances, although proof of Lauria's knowledge of the criminal activities of his patrons was sufficient to charge him with that fact, there was insufficient evidence that he intended to further their criminal activities, and hence insufficient proof of his participation in a criminal conspiracy with his codefendants to further prostitution. Since the conspiracy centered around the activities of Lauria's telephone answering service, the charges against his codefendants likewise fail for want of proof.
In absolving Lauria of complicity in a criminal conspiracy we do not wish to imply that the public authorities are without remedies to combat modern manifestations of the world's oldest profession. Licensing of telephone answering services under the police power, together with the revocation of licenses for the toleration of prostitution, is a possible civil remedy. The furnishing of telephone answering service in aid of prostitution could be made a crime. (Cf. Pen. Code, § 316, which makes it a misdemeanor to let an apartment with knowledge of its use for prostitution.) Other solutions will doubtless occur to vigilant public authorities if the problem of call-girl activity needs further suppression.
The order is affirmed.
Herndon, J., concurred.
Roth, P.J., concurred in the judgment.
7.2.8.8.2.3 Gebardi v. United States 7.2.8.8.2.3 Gebardi v. United States
GEBARDI ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
[113] Mr. William F. Waugh for petitioners.
[115] MR. JUSTICE STONE delivered the opinion of the Court.
This case is here on certiorari, 286 U.S. 539, to review a judgment of conviction for conspiracy to violate the Mann Act (36 Stat. 825; 18 U.S.C., § 397 et seq.). Petitioners, a man and a woman, not then husband and [116] wife, were indicted in the District Court for Northern Illinois, for conspiring together, and with others not named, to transport the woman from one state to another for the purpose of engaging in sexual intercourse with the man. At the trial without a jury there was evidence from which the court could have found that the petitioners had engaged in illicit sexual relations in the course of each of the journeys alleged; that the man purchased the railway tickets for both petitioners for at least one journey, and that in each instance the woman, in advance of the purchase of the tickets, consented to go on the journey and did go on it voluntarily for the specified immoral purpose. There was no evidence supporting the allegation that any other person had conspired. The trial court overruled motions for a finding for the defendants, and in arrest of judgment, and gave judgment of conviction, which the Court of Appeals for the Seventh Circuit affirmed, 57 F. (2d) 617, on the authority of United States v. Holte, 236 U.S. 140.
The only question which we need consider here is whether, within the principles announced in that case, the evidence was sufficient to support the conviction. There the defendants, a man and a woman, were indicted for conspiring together that the man should transport the woman from one state to another for purposes of prostitution. In holding the indictment sufficient, the Court said (p. 144):
"As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910 [the Mann Act], or what evidence would be required to convict a woman under an indictment like [117] this, but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged."
The Court assumed that there might be a degree of cooperation which would fall short of the commission of any crime, as in the case of the purchaser of liquor illegally sold. But it declined to hold that a woman could not under some circumstances not precisely defined, be guilty of a violation of the Mann Act and of a conspiracy to violate it as well. Light is thrown upon the intended scope of this conclusion by the supposititious case which the Court put (p. 145):
"Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim."
In the present case we must apply the law to the evidence; the very inquiry which was said to be unnecessary to decision in United States v. Holte, supra.
First. Those exceptional circumstances envisaged in United States v. Holte, supra, as possible instances in which the woman might violate the act itself, are clearly not present here. There is no evidence that she purchased the railroad tickets or that hers was the active or moving spirit in conceiving or carrying out the transportation. The proof shows no more than that she went willingly upon the journeys for the purposes alleged.
[118] Section 2 of the Mann Act[1] (18 U.S.C. § 398), violation of which is charged by the indictment here as the object of the conspiracy, imposes the penalty upon "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery or for any other immoral purpose . .." Transportation of a woman or girl whether with or without her consent, or causing or aiding it, or furthering it in any of the specified ways, are the acts punished, when done with a purpose which is immoral within the meaning of the law. See Hoke v. United States, 227 U.S. 308, 320.
The Act does not punish the woman for transporting herself; it contemplates two persons — one to transport and [119] the woman or girl to be transported. For the woman to fall within the ban of the statute she must, at the least, "aid or assist" someone else in transporting or in procuring transportation for herself. But such aid and assistance must, as in the case supposed in United States v. Holte, supra, 145, be more active than mere agreement on her part to the transportation and its immoral purpose. For the statute is drawn to include those cases in which the woman consents to her own transportation. Yet it does not specifically impose any penalty upon her, although it deals in detail with the person by whom she is transported. In applying this criminal statute we cannot infer that the mere acquiescence of the woman transported was intended to be condemned by the general language punishing those who aid and assist the transporter,[2] any more than it has been inferred that the purchaser of liquor was to be regarded as an abettor of the illegal sale. State v. Teahan, 50 Conn. 92; Lott v. United States, 205 Fed. 28; cf. United States v. Farrar, 281 U.S. 624, 634. The penalties of the statute are too clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation. So it was intimated in United States v. Holte, supra, and this conclusion is not disputed by the Government here, which contends only that the conspiracy charge will lie though the woman could not commit the substantive offense.
Second. We come thus to the main question in the case, whether, admitting that the woman, by consenting, has [120] not violated the Mann Act, she may be convicted of a conspiracy with the man to violate it. Section 37 of the Criminal Code (18 U.S.C, § 88), punishes a conspiracy by two or more persons "to commit any offense against the United States." The offense which she is charged with conspiring to commit is that perpetrated by the man, for it is not questioned that in transporting her he contravened § 2 of the Mann Act. Cf. Caminetti v. United States, 242 U.S. 470. Hence we must decide whether her concurrence, which was not criminal before the Mann Act, nor punished by it, may, without more, support a conviction under the conspiracy section, enacted many years before.[3]
As was said in the Holte case (p. 144), an agreement to commit an offense may be criminal, though its purpose is to do what some of the conspirators may be free to do alone.[4] Incapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it.[5] [121] For it is the collective planning of criminal conduct at which the statute aims. The plan is itself a wrong which, if any act be done to effect its object, the state has elected to treat as criminal, Clune v. United States, 159 U.S. 590, 595. And one may plan that others shall do what he cannot do himself. See United States v. Rabinowich, 238 U.S. 78, 86, 87.
But in this case we are concerned with something more than an agreement between two persons for one of them to commit an offense which the other cannot commit. There is the added element that the offense planned, the criminal object of the conspiracy, involves the agreement of the woman to her transportation by the man, which is the very conspiracy charged.
Congress set out in the Mann Act to deal with cases which frequently, if not normally, involve consent and agreement on the part of the woman to the forbidden transportation. In every case in which she is not intimidated or forced into the transportation, the statute necessarily contemplates her acquiescence. Yet this acquiescence, though an incident of a type of transportation specifically dealt with by the statute, was not made a crime under the Mann Act itself. Of this class of cases we say that the substantive offense contemplated by the statute itself involves the same combination or community of purpose of two persons only which is prosecuted here as conspiracy. If this were the only case covered by the Act, it would be within those decisions which hold, consistently [122] with the theory upon which conspiracies are punished, that where it is impossible under any circumstances to commit the substantive offense without cooperative action, the preliminary agreement between the same parties to commit the offense is not an indictable conspiracy either at common law, Shannon and Nugent v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390; cf. State v. Law, 189 Iowa 910; 179 N.W. 145; see State ex rel. Durner v. Huegin, 110 Wis. 189, 243; 85 N.W. 1046, or under the federal statute.[6] See United States v. Katz, 271 U.S. 354, 355; Norris v. United States, 34 F. (2d) 839, 841, reversed on other grounds, 281 U.S. 619; United States v. Dietrich, 126 Fed. 664, 667. But criminal transportation under the Mann Act may be effected without the woman's consent, as in cases of intimidation or force (with which we are not now concerned). We assume therefore, for present purposes, as was suggested in the Holte case, supra, 145, that the decisions last mentioned do not in all strictness apply.[7] We do not rest [123] our decision upon the theory of those cases, nor upon the related one that the attempt is to prosecute as conspiracy acts identical with the substantive offense. United States v. Dietrich, 126 Fed. 664. We place it rather upon the ground that we perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished. We think it a necessary implication of that policy that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter. It would contravene that policy to hold that the very passage of the Mann Act effected a withdrawal by the conspiracy statute of that immunity which the Mann Act itself confers.
It is not to be supposed that the consent of an unmarried person to adultery with a married person, where the latter alone is guilty of the substantive offense, would render the former an abettor or a conspirator, compare In re Cooper, 162 Cal. 81, 85; 121 Pac. 318, or that the acquiescence of a woman under the age of consent would make her a co-conspirator with the man to commit statutory rape upon herself. Compare Queen v. Tyrrell, [1894] 1 Q.B. 710. The principle, determinative of this case, is the same.
On the evidence before us the woman petitioner has not violated the Mann Act and, we hold, is not guilty of a conspiracy to do so. As there is no proof that the man conspired with anyone else to bring about the transportation, the convictions of both petitioners must be
Reversed.
MR. JUSTICE CARDOZO concurs in the result.
[1] "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."
[2] Sec. 3 of the Act (18 U.S.C., § 399), directed toward the persuasion, inducement, enticement or coercion of the prohibited transportation, also includes specifically those who "aid or assist" in the inducement or the transportation. Yet it is obvious that those words were not intended to reach the woman who, by yielding to persuasion, assists in her own transportation.
[3] Sec. 30, Act of March 2, 1867 (14 Stat. 471, 484) "except for an omitted not relevant provision, . . . has continued from that time to this, in almost precisely its present form." See United States v. Gradwell, 243 U.S. 476, 481.
[4] The requirement of the statute that the object of the conspiracy be an offense against the United States, necessarily statutory, United States v. Hudson, 7 Cranch 32, avoids the question much litigated at common law (see cases cited in Wright, The Law of Criminal Conspiracies [Carson ed. 1887] and in Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393) of the Criminality of combining to do an act which any one may lawfully do alone.
[5] So it has been held repeatedly that one not a bankrupt may be held guilty under § 37 of conspiring that a bankrupt shall conceal property from his trustee (Bankruptcy Act § 29[b], 11 U.S.C., § 52). Tapack v. United States, 220 Fed. 445, certiorari denied 238 U.S. 627; Jollit v. United States, 285 Fed. 209, certiorari denied 261 U.S. 624; Israel v. United States, 3 F. (2d) 743; Kaplan v. United States, 7 F. (2d) 594, certiorari denied 269 U.S. 582. And see United States v. Rabinowich, 238 U.S. 78, 86, 87. These cases proceed upon the theory (see United States v. Rabinowich, supra, 86) that only a bankrupt may commit the substantive offense though we do not intimate that others might not be held as principals under Criminal Code, § 332 (18 U.S.C., § 550). Cf. Barron v. United States, 5 F. (2d) 799.
In like manner Chadwick v. United States, 141 Fed. 225, sustained the conviction of one not an officer of a national bank for conspiring with an officer to commit a crime which only he could commit. And see United States v. Martin, 4 Cliff. 156; United States v. Stevens, 44 Fed. 132.
[6] The rule was applied in United States v. N.Y.C. & H.R.R. Co., 146 Fed. 298; United States v. Sager, 49 F. (2d) 725. In the following cases it was recognized and held inapplicable for the reason that the substantive crime could be committed by a single individual. Chadwick v. United States, 141 Fed. 225; Laughter v. United States, 259 Fed. 94; Lisansky v. United States, 31 F. (2d) 846, certiorari denied 279 U.S. 873. The conspiracy was also deemed criminal where it contemplated the cooperation of a greater number of parties than were necessary to the commission of the principal offense, as in Thomas v. United States, 156 Fed. 897; McKnight v. United States, 252 Fed. 687; cf. Vannata v. United States, 289 Fed. 424; Ex parte O'Leary, 53 F. (2d) 956. Compare Queen v. Whitchurch, 24 Q.B.D. 420.
[7] It should be noted that there are many cases not constituting "a serious and substantially continued group scheme for cooperative law breaking" which may well fall within the recommendation of the 1925 conference of senior circuit judges that the conspiracy indictment be adopted "only after a careful conclusion that the public interest so requires." Att'y Gen. Rep. 1925, pp. 5, 6.
7.2.8.8.2.4 Krulewitch v. United States 7.2.8.8.2.4 Krulewitch v. United States
KRULEWITCH
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
Jacob W. Friedman argued the cause and filed a brief for petitioner.
Robert W. Ginnane argued the cause for the United States. With him on the brief were Solicitor General [441] Perlman, Assistant Attorney General Campbell, John R. Benney, Robert S. Erdahl and Joseph M. Howard.
MR. JUSTICE BLACK delivered the opinion of the Court.
A federal district court indictment charged in three counts that petitioner and a woman defendant had (1) induced and persuaded another woman to go on October 20, 1941, from New York City to Miami, Florida, for the purpose of prostitution, in violation of 18 U.S.C. § 399 (now § 2422); (2) transported or caused her to be transported from New York to Miami for that purpose, in violation of 18 U.S.C. § 398 (now § 2421); and (3) conspired to commit those offenses in violation of 18 U.S.C. § 88 (now § 371). Tried alone, the petitioner was convicted on all three counts of the indictment. The Court of Appeals affirmed. 167 F.2d 943. And see disposition of prior appeal, 145 F.2d 76. We granted certiorari limiting our review to consideration of alleged error in admission of certain hearsay testimony against petitioner over his timely and repeated objections.
The challenged testimony was elicited by the Government from its complaining witness, the person whom petitioner and the woman defendant allegedly induced to go from New York to Florida for the purpose of prostitution. The testimony narrated the following purported conversation between the complaining witness and petitioner's alleged co-conspirator, the woman defendant.
"She asked me, she says, `You didn't talk yet?' And I says, `No.' And she says, `Well, don't,' she says, `until we get you a lawyer.' And then she says, `Be very careful what you say.' And I can't put it in exact words. But she said, `It would be better for us two girls to take the blame than Kay (the defendant) because he couldn't stand it, he couldn't stand to take it.'"
[442] The time of the alleged conversation was more than a month and a half after October 20, 1941, the date the complaining witness had gone to Miami. Whatever original conspiracy may have existed between petitioner and his alleged co-conspirator to cause the complaining witness to go to Florida in October, 1941, no longer existed when the reported conversation took place in December, 1941. For on this latter date the trip to Florida had not only been made — the complaining witness had left Florida, had returned to New York, and had resumed her residence there. Furthermore, at the time the conversation took place, the complaining witness, the alleged co-conspirator, and the petitioner had been arrested. They apparently were charged in a United States District Court of Florida with the offense of which petitioner was here convicted.[1]
It is beyond doubt that the central aim of the alleged conspiracy — transportation of the complaining witness to Florida for prostitution — had either never existed or had long since ended in success or failure when and if the alleged co-conspirator made the statement attributed to her. Cf. Lew Moy v. United States, 237 F. 50. The statement plainly implied that petitioner was guilty of the crime for which he was on trial. It was made in petitioner's absence and the Government made no effort whatever to show that it was made with his authority. The testimony thus stands as an unsworn, out-of-court declaration of petitioner's guilt. This hearsay declaration, attributed to a co-conspirator, was not made pursuant to and in furtherance of objectives of the conspiracy charged in the indictment, because if made, it was after those objectives either had failed or had been achieved. Under these circumstances, the hearsay declaration attributed to the alleged co-conspirator was not admissible [443] on the theory that it was made in furtherance of the alleged criminal transportation undertaking. Fiswick v. United States, 329 U.S. 211, 216-217; Brown v. United States, 150 U.S. 93, 98-99; Graham v. United States, 15 F.2d 740, 743.
Although the Government recognizes that the chief objective of the conspiracy — transportation for prostitution purposes — had ended in success or failure before the reported conversation took place, it nevertheless argues for admissibility of the hearsay declaration as one in furtherance of a continuing subsidiary objective of the conspiracy. Its argument runs this way. Conspirators about to commit crimes always expressly or implicitly agree to collaborate with each other to conceal facts in order to prevent detection, conviction and punishment. Thus the argument is that even after the central criminal objectives of a conspiracy have succeeded or failed, an implicit subsidiary phase of the conspiracy always survives, the phase which has concealment as its sole objective. The Court of Appeals adopted this view. It viewed the alleged hearsay declaration as one in furtherance of this continuing subsidiary phase of the conspiracy, as part of "the implied agreement to conceal." 167 F.2d 943, 948. It consequently held the declaration properly admitted.
We cannot accept the Government's contention. There are many logical and practical reasons that could be advanced against a special evidentiary rule that permits out-of-court statements of one conspirator to be used against another. But however cogent these reasons, it is firmly established that where made in furtherance of the objectives of a going conspiracy, such statements are admissible as exceptions to the hearsay rule. This prerequisite to admissibility, that hearsay statements by some conspirators to be admissible against others must be made in furtherance of the conspiracy charged, has been [444] scrupulously observed by federal courts. The Government now asks us to expand this narrow exception to the hearsay rule and hold admissible a declaration, not made in furtherance of the alleged criminal transportation conspiracy charged, but made in furtherance of an alleged implied but uncharged conspiracy aimed at preventing detection and punishment. No federal court case cited by the Government suggests so hospitable a reception to the use of hearsay evidence to convict in conspiracy cases. The Government contention does find support in some but not all of the state court opinions cited in the Government brief.[2] But in none of them does there appear to be recognition of any such broad exception to the hearsay rule as that here urged. The rule contended for by the Government could have far-reaching results. For under this rule plausible arguments could generally be made in conspiracy cases that most out-of-court statements offered in evidence tended to shield co-conspirators. We are not persuaded to adopt the Government's implicit conspiracy theory which in all criminal conspiracy cases would create automatically a further breach of the general rule against the admission of hearsay evidence.
It is contended that the statement attributed to the alleged co-conspirator was merely cumulative evidence, that without the statement the case against petitioner was so strong that we should hold the error harmless under 28 U.S.C. (1946 ed.) § 391. In Kotteakos v. United States, 328 U.S. 750, we said that error should not be held harmless [445] under the harmless error statute if upon consideration of the record the court is left in grave doubt as to whether the error had substantial influence in bringing about a verdict. We have such doubt here. The Florida District Court grand jury failed to indict. After indictment in New York petitioner was tried four times with the following results: mistrial; conviction; mistrial; conviction with recommendation for leniency. The revolting type of charges made against this petitioner by the complaining witness makes it difficult to believe that a jury convinced of a strong case against him would have recommended leniency. There was corroborative evidence of the complaining witness on certain phases of the case. But as to all vital phases, those involving the sordid criminal features, the jury was compelled to choose between believing the petitioner or the complaining witness. The record persuades us that the jury's task was difficult at best. We cannot say that the erroneous admission of the hearsay declaration may not have been the weight that tipped the scales against petitioner.
Reversed.
MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
This case illustrates a present drift in the federal law of conspiracy which warrants some further comment because it is characteristic of the long evolution of that elastic, sprawling and pervasive offense. Its history exemplifies the "tendency of a principle to expand itself to the limit of its logic."[1] The unavailing protest of courts against the growing habit to indict for conspiracy in lieu of prosecuting for the substantive offense itself, or in [446] addition thereto,[2] suggests that loose practice as to this offense constitutes a serious threat to fairness in our administration of justice.
The modern crime of conspiracy is so vague that it almost defies definition.[3] Despite certain elementary and [447] essential elements,[4] it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.[5] It is always "predominantly [448] mental in composition" because it consists primarily of a meeting of minds and an intent.[6]
The crime comes down to us wrapped in vague but unpleasant connotations. It sounds historical undertones of treachery, secret plotting and violence on a scale that menaces social stability and the security of the state itself. "Privy conspiracy" ranks with sedition and rebellion in the Litany's prayer for deliverance. Conspiratorial movements do indeed lie back of the political assassination, the coup d'etat, the putsch, the revolution, and seizures of power in modern times, as they have in all history.[7]
But the conspiracy concept also is superimposed upon many concerted crimes having no political motivation. It is not intended to question that the basic conspiracy principle has some place in modern criminal law, because to unite, back of a criminal purpose, the strength, opportunities and resources of many is obviously more dangerous and more difficult to police than the efforts of a [449] lone wrongdoer.[8] It also may be trivialized, as here, where the conspiracy consists of the concert of a loathsome panderer and a prostitute to go from New York to Florida to ply their trade (see 145 F.2d 76 for details) and it would appear that a simple Mann Act prosecution would vindicate the majesty of federal law. However, even when appropriately invoked, the looseness and pliability of the doctrine present inherent dangers which should be in the background of judicial thought wherever it is sought to extend the doctrine to meet the exigencies of a particular case.
Conspiracy in federal law aggravates the degree of crime over that of unconcerted offending. The act of confederating to commit a misdemeanor, followed by even an innocent overt act in its execution, is a felony and is such even if the misdemeanor is never consummated.[9] The more radical proposition also is well-established that at common law and under some statutes a combination may be a criminal conspiracy even if it contemplates only acts which are not crimes at all when perpetrated by an individual or by many acting severally.[10]
[450] Thus the conspiracy doctrine will incriminate persons on the fringe of offending who would not be guilty of aiding and abetting or of becoming an accessory, for those charges only lie when an act which is a crime has actually been committed.[11]
Attribution of criminality to a confederation which contemplates no act that would be criminal if carried out by any one of the conspirators is a practice peculiar to Anglo-American law. "There can be little doubt that this wide definition of the crime of conspiracy originates in the criminal equity administered in the Star Chamber."[12] In fact, we are advised that "The modern crime of conspiracy is almost entirely the result of the manner in which conspiracy was treated by the court of Star Chamber."[13] The doctrine does not commend itself to jurists of civil-law countries,[14] despite universal recognition that an organized society must have legal weapons for combatting organized criminality. Most other countries have devised what they consider more discriminating principles upon which to prosecute criminal gangs, secret associations and subversive syndicates.[15]
[451] A recent tendency has appeared in this Court to expand this elastic offense and to facilitate its proof. In Pinkerton v. United States, 328 U.S. 640, it sustained a conviction of a substantive crime where there was no proof of participation in or knowledge of it, upon the novel and dubious theory that conspiracy is equivalent in law to aiding and abetting.
Doctrines of conspiracy are not only invoked for criminal prosecution, but also in civil proceedings for damages or for injunction, and in administrative proceedings to apply regulatory statutes. They have been resorted to by military commissions and on at least one notable occasion when civil courts were open at the time and place to punish the offense.[16] This conspiracy concept was employed to prosecute laborers for combining to raise their wages and formed the basis for abuse of the labor injunction.[17] The National Labor Relations Act found it necessary to provide that concerted labor activities otherwise lawful were not rendered unlawful by mere concert.[18] But in other fields concert may still be a crime though it contemplates only acts which each could do lawfully on his own.
The interchangeable use of conspiracy doctrine in civil as well as penal proceedings opens it to the danger, absent in the case of many crimes, that a court having in mind [452] only the civil sanctions will approve lax practices which later are imported into criminal proceedings. In civil proceedings this Court frankly has made the end a test of the means, saying, "To require a greater showing would cripple the Act," United States v. Griffith, 334 U.S. 100, in dispensing with the necessity for specific intent to produce a result violative of the statute. Further, the Court has dispensed with even the necessity to infer any definite agreement, although that is the gist of the offense. "It is elementary that an unlawful conspiracy may be and often is formed without simultaneous action or agreement on the part of the conspirators. . . ." United States v. Masonite Corp., 316 U.S. 265, 275. One might go on from the reports of this and lower courts and put together their decisions condoning absence of proof to demonstrate that the minimum of proof required to establish conspiracy is extremely low, and we may expect our pronouncements in civil cases to be followed in criminal ones also.
Of course, it is for prosecutors rather than courts to determine when to use a scatter-gun to bring down the defendant, but there are procedural advantages from using it which add to the danger of unguarded extension of the concept.
An accused, under the Sixth Amendment, has the right to trial "by an impartial jury of the State and district wherein the crime shall have been committed." The leverage of a conspiracy charge lifts this limitation from the prosecution and reduces its protection to a phantom, for the crime is considered so vagrant as to have been committed in any district where any one of the conspirators did any one of the acts, however innocent, intended to accomplish its object.[19] The Government may, and often [453] does, compel one to defend at a great distance from any place he ever did any act because some accused confederate did some trivial and by itself innocent act in the chosen district. Circumstances may even enable the prosecution to fix the place of trial in Washington, D.C., where a defendant may lawfully be put to trial before a jury partly or even wholly made up of employees of the Government that accuses him. Cf. Frazier v. United States, 335 U.S. 497.
When the trial starts, the accused feels the full impact of the conspiracy strategy. Strictly, the prosecution should first establish prima facie the conspiracy and identify the conspirators, after which evidence of acts and declarations of each in the course of its execution are admissible against all. But the order of proof of so sprawling a charge is difficult for a judge to control. As a practical matter, the accused often is confronted with a hodgepodge of acts and statements by others which he may never have authorized or intended or even known about, but which help to persuade the jury of existence of the conspiracy itself. In other words, a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed. The naive assumption that prejudicial effects can be overcome by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559, all practicing lawyers know to be unmitigated fiction. See Skidmore v. Baltimore & Ohio R. Co., 167 F.2d 54.
The trial of a conspiracy charge doubtless imposes a heavy burden on the prosecution, but it is an especially difficult situation for the defendant. The hazard from loose application of rules of evidence is aggravated where [454] the Government institutes mass trials.[20] Moreover, in federal practice there is no rule preventing conviction on uncorroborated testimony of accomplices, as there are in many jurisdictions, and the most comfort a defendant can expect is that the court can be induced to follow the "better practice" and caution the jury against "too much reliance upon the testimony of accomplices." Caminetti v. United States, 242 U.S. 470, 495.
A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his own case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather are flocked together. If he is silent, he is taken to admit it and if, as often happens, co-defendants can be prodded into accusing or contradicting each other, they convict each other. There are many practical difficulties in defending against a charge of conspiracy which I will not enumerate.[21]
Against this inadequately sketched background, I think the decision of this case in the court below introduced [455] an ominous expansion of the accepted law of conspiracy. The prosecution was allowed to incriminate the defendant by means of the prostitute's recital of a conversation with defendant's alleged co-conspirator, who was not on trial. The conversation was said to have taken place after the substantive offense was accomplished, after the defendant, the co-conspirator and the witness had all been arrested, and after the witness and the other two had a falling out. The Court of Appeals sustained its admission upon grounds stated as follows:
". . . We think that implicit in a conspiracy to violate the law is an agreement among the conspirators to conceal the violation after as well as before the illegal plan is consummated. Thus the conspiracy continues, at least for purposes of concealment, even after its primary aims have been accomplished. The statements of the co-conspirator here were made in an effort to protect the appellant by concealing his role in the conspiracy. Consequently, they fell within the implied agreement to conceal and were admissible as evidence against the appellant. Cf. United States v. Goldstein, 2 Cir., 135 F.2d 359; Murray v. United States, 7 Cir., 10 F.2d 409, certiorari denied, 271 U.S. 673. . . . While Bryan v. United States, 5 Cir., 17 F.2d 741, is by implication directly to the contrary, we decline to follow it."
I suppose no person planning a crime would accept as a collaborator one on whom he thought he could not rely for help if he were caught, but I doubt that this fact warrants an inference of conspiracy for that purpose. Of course, if an understanding for continuous aid had been proven, it would be embraced in the conspiracy [456] by evidence and there would be no need to imply such an agreement. Only where there is no convincing evidence of such an understanding is there need for one to be implied.
It is difficult to see any logical limit to the "implied conspiracy," either as to duration or means, nor does it appear that one could overcome the implication by express and credible evidence that no such understanding existed, nor any way in which an accused against whom the presumption is once raised can terminate the imputed agency of his associates to incriminate him. Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court. On the theory that the law will impute to the confederates a continuing conspiracy to defeat justice, one conceivably could be bound by another's unauthorized and unknown commission of perjury, bribery of a juror or witness, or even putting an incorrigible witness with damaging information out of the way.
Moreover, the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations. If the law implies an agreement to cooperate in defeating prosecution, it must imply that it continues as long as prosecution is a possibility, and prosecution is a possibility as long as the conspiracy to defeat it is implied to continue.
I do not see the slightest warrant for judicially introducing a doctrine of implied crimes or constructive conspiracies. It either adds a new crime or extends an old one. True, the modern law of conspiracy was largely evolved by the judges. But it is well and wisely settled that there can be no judge-made offenses against the [457] United States and that every federal prosecution must be sustained by statutory authority.[22] No statute authorizes federal judges to imply, presume or construct a conspiracy except as one may be found from evidence. To do so seems to approximate creation of a new offense and one that I would think of doubtful constitutionality even if it were created by Congress.[23] And, at all events, it is one fundamentally and irreconcilably at war with our presumption of innocence.
There is, of course, strong temptation to relax rigid standards when it seems the only way to sustain convictions of evildoers. But statutes authorize prosecution for substantive crimes for most evil-doing without the dangers to the liberty of the individual and the integrity of the judicial process that are inherent in conspiracy charges. We should disapprove the doctrine of implied or constructive crime in its entirety and in every manifestation. And I think there should be no straining to uphold any conspiracy conviction where prosecution for the substantive offense is adequate and the purpose served by adding the conspiracy charge seems chiefly to get procedural advantages to ease the way to conviction.
Although a reversal after four trials is, of course, regrettable, I cannot overlook the error as a harmless one. But I should concur in reversal even if less sure that prejudice resulted, for it is better that the crime go unwhipped of justice than that this theory of implied continuance of conspiracy find lodgment in our law, either by affirmance or by tolerance. Few instruments of injustice [458] can equal that of implied or presumed or constructive crimes. The most odious of all oppressions are those which mask as justice.
MR. JUSTICE FRANKFURTER and MR. JUSTICE MURPHY join in this opinion.
MR. JUSTICE BURTON, dissenting.
While I agree with the opinion of the Court that the hearsay testimony in question was not properly admissible, I regard its admission, under the circumstances of this case, as an absolutely harmless error.
In speaking of harmless errors that may result from the admission of evidence, this Court has said:
"Errors of this sort in criminal causes conceivably may be altogether harmless in the face of other clear evidence, although the same error might turn scales otherwise level, as constantly appears in the application of the policy of § 269[*] to questions of the admission of cumulative evidence." Kotteakos v. United States, 328 U.S. 750, 763.
[459] Again, in determining whether error in the admission of evidence should result in a reversal of a judgment, we said that the question is —
"what effect the error had or reasonably may be taken to have had upon the jury's decision. . . .
.....
"If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress." Id. at pp. 764-765.
The issue before us involves no constitutional question or specific command of Congress. The trial was a long one concerning personal conduct involving simple issues of fact. The record of it covers more than 800 pages. The jury must have been thoroughly familiar with the issues and with the degree of dependability, if any, to be placed upon the oral testimony of the petitioner and of the two witnesses involved in the conversation that is before us as reported by one of them. The evidence supporting the jury's verdict was cumulative, repetitive and corroborated to such a point that I cannot believe that the verdict or the rights of the parties could have been appreciably affected by such weight as the jury may have attached to this reported snatch of conversation between two people of such negligible dependability as was demonstrated here. After this extended fourth trial, to set aside this jury's verdict merely because of this particular bit of hearsay testimony seems to me to be an unrealistic procedure that tends to make a travesty of the jury system which is neither necessary nor deserved. I would affirm the judgment below.
[1] The Florida grand jury failed to indict and the cases there were closed without prosecution in February, 1942. The New York indictments were not returned until January, 1943.
[2] Commonwealth v. Smith, 151 Mass. 491, 24 N.E. 677; People v. Mol, 137 Mich. 692, 707, 100 N.W. 913, 918; Hooper v. State, 187 Ark. 88, 92, 58 S.W.2d 434, 435; State v. Gauthier, 113 Ore. 297, 307, 231 P. 141, 145; State v. Emory, 116 Kan. 381, 384, 226 P. 754, 756; Carter v. State, 106 Ga. 372, 376, 32 S.E. 345, 346-347; Watson v. State, 166 Miss. 194, 213, 146 So. 122, 127; Baldwin v. State, 46 Fla. 115, 120-121, 35 So. 220, 222; State v. Strait, 279 S.W. 109 (Mo.).
[1] The phrase is Judge Cardozo's — The Nature of the Judicial Process, p. 51.
[2] The Conference of Senior Circuit Judges, presided over by Chief Justice Taft, in 1925 reported:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
Fifteen years later Judge Learned Hand observed: ". . . so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided." United States v. Falcone, 109 F.2d 579, 581.
[3] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624: "In the long category of crimes there is none, not excepting criminal attempt, more difficult to confine within the boundaries of definitive statement than conspiracy."
An English author — Wright, The Law of Criminal Conspiracies and Agreements, p. 11 — gives up with the remark: "but no intelligible definition of `conspiracy' has yet been established."
[4] Justice Holmes supplied an oversimplified working definition in United States v. Kissel, 218 U.S. 601, 608: "A conspiracy is a partnership in criminal purposes." This was recently restated "A conspiracy is a partnership in crime." Pinkerton v. United States, 328 U.S. 640, 644. The latter is inaccurate, since concert in criminal purposes, rather than concert in crime, establishes the conspiracy.
Carson offers the following resume of American cases: "It would appear that a conspiracy must be a combination of two or more persons by some concerted action to accomplish some criminal object; or some object not criminal by criminal means; or, some object not criminal by means which are not criminal, but where mischief to the public is involved; or, where neither the object nor the means are criminal, or even unlawful, but where injury and oppression to individuals are the result." The Law of Criminal Conspiracies and Agreements, as Found in The American Cases, p. 123.
[5] See, for example:
8 U.S.C. § 47, Conspiracy to interfere with civil rights; (1) Preventing officer from performing duties; (2) Obstructing justice, intimidating party, witness, or juror; (3) Depriving persons of rights or privileges. 10 U.S.C. § 1566, Conspiracy by persons in military service to defraud the U.S. 12 U.S.C. § 1138d (f), Conspiracy involving Farm Credit Banks, Administration, etc. 15 U.S.C.: §§ 1-3, Conspiracy in restraint of trade; § 8, Conspiracy in restraint of import trade. 18 U.S.C. as revised by the Act of June 25, 1948, 62 Stat. 928 et seq., effective September 1, 1948: § 2384, Seditious conspiracy; §§ 2385, 2387, Conspiracy to impair loyalty of armed forces or advocate overthrow of U.S. Government by force; § 241, Conspiracy to injure person in exercise of civil rights; § 372, Conspiracy to prevent officer from performing duties; § 286, Conspiracy to defraud the Government by obtaining payment of a false claim; § 371, Conspiracy to defraud the United States; §§ 1501-1506, Conspiracy to obstruct justice; §§ 752, 1792, Conspiracy to cause riots at federal penal institutions; § 1201, Conspiracy to transport kidnapped person in interstate commerce; § 2314, Conspiracy to transport stolen property and counterfeiting instruments in interstate commerce; § 1951, Conspiracy to violate Anti-Racketeering Act; § 2192, Conspiracy to incite mutiny on shipboard; § 2271, Conspiracy to cast away vessel. 22 U.S.C. § 234, Conspiracy to injure property of foreign government. 31 U.S.C. § 231, Conspiracy to obtain payment of false claims. 34 U.S.C. § 749a, Conspiracy to bid collusively on construction of naval aircraft. 38 U.S.C. § 715, Conspiracy to falsify pension claims. 50 U.S.C. § 34, Conspiracy to disclose national defense information or commit espionage. 50 U.S.C. App. § 311, Conspiracy to violate Selective Service Act.
[6] Harno, Intent in Criminal Conspiracy, 89 U. of Pa. L. Rev. 624, 632.
[7] See Senturia, Conspiracy, Political, IV Encyc. Soc. Sci. 238 (1931).
On conspiracy principles German courts, on May 30, 1924, adjudged the Nazi Party to be a criminal organization. It also held in 1928 that the Leadership Corps of the Communist Party was a criminal organization and in 1930 entered judgment of criminality against the Union of Red Front Fighters of the Communist Party. See note 15.
[8] 8 Holdsworth, History of English Law, 383. Miller, Criminal Law, p. 110.
[9] 18 U.S.C.A. § 371. Until recently, the punishment for such a felony could have been far in excess of that provided for the substantive offense. However, the Act of June 25, 1948, c. 645, 62 Stat. 683, 701, provides that in such a case the punishment for the conspiracy shall not exceed the maximum provided for such misdemeanor.
[10] This is the federal law applicable to antitrust prosecutions. For the history of this conception and its perversion, particularly in labor cases, see Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393. On the abuse of conspiracy see O'Brian, Loyalty Tests and Guilt by Association, 61 Harv. L. Rev. 592, and Note, The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants, 62 Harv. L. Rev. 276.
[11] This statement, of course, leaves out of account the subject of attempts with which conspiracy is said to be allied. 8 Holdsworth, History of English Law, 382.
[12] Id., 382.
[13] Id., 379.
[14] "It is utterly unknown to the Roman law; it is not found in modern Continental codes; few Continental lawyers ever heard of it. It is a fortunate circumstance that it is not encrusted so deep in our jurisprudence by past decisions of our courts that we are unable to slough it off altogether. It is a doctrine which has proved itself the evil genius of our law wherever it has touched it." Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 427.
[15] Counsel representing the United States, the United Kingdom, the French Republic, and the Soviet Union, and German defendants, indulged in some comparisons of the relevant laws of several nations before the International Military Tribunal at Niirnberg in connection with organizations there accused as criminal. 8 Trial of Major War Criminals (GPO 1947), pp. 353, et seq.; 2 Nazi Conspiracy and Aggression (GPO 1946), p. 1; Jackson, The Nurnberg Case, p. 95.
[16] The Assassination of President Lincoln and the Trial of the Conspirators, New York, 1865. See, however, Ex parte Milligan, 4 Wall. 2.
[17] See Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 403.
[18] International Union, U.A.W.A. v. Wisconsin Employment Relations Board, ante, p. 245.
[19] Hyde v. United States, 225 U.S. 347. Mr. Justice Holmes, on behalf of himself and Justices Hughes, Lurton and Lamar, wrote a vigorous protest which did not hesitate to brand the doctrine as oppressive and as "one of the wrongs that our forefathers meant to prevent." 225 U.S. 347, 387.
[20] An example is afforded by Allen v. United States, 4 F.2d 688. At the height of the prohibition frenzy, seventy-five defendants were tried on charges of conspiracy. A newspaper reporter testified to going to a drinking place where he talked with a woman, behind the bar, whose name he could not give. There was not the slightest identification of her nor showing that she knew or was known by any defendant. But it was held that being back of the bar showed her to be a co-conspirator and, hence, her statements were admissible against all. He was allowed to relate incriminating statements made by her.
[21] For courtroom technique employed in the trial of conspiracy cases by both prosecution and defense, see O'Dougherty, Prosecution and Defense under Conspiracy Indictments, 9 Brooklyn L. Rev. 263. His survey, which accords with our observation, will hardly convince one that a trial of this kind is the highest exemplification of the working of the judicial process.
[22] United States v. Hudson, 7 Cranch 32; United States v. Worrall, 2 Dall. 384; United States v. Coolidge, 1 Wheat. 415; United States v. Eaton, 144 U.S. 677, 687; United States v. Bathgate, 246 U.S. 220, 225. See, however, Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 73.
[23] Cf. Tot v. United States, 319 U.S. 463.
[*] Section 269 of the Judicial Code, as then in effect, and as in effect at the time of the trial of the instant case and of the entry of the judgment below, provided:
"SEC. 269. . . . On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 40 Stat. 1181, 28 U.S.C. § 391.
Rule 52 (a) of the Federal Rules of Criminal Procedure, as continuously in effect during and since the time of the trial of the instant case and as still in effect, provides:
"RULE 52. HARMLESS ERROR AND PLAIN ERROR.
"(a) HARMLESS ERROR. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. . . ."
7.2.8.8.2.5 Pinkerton v. United States 7.2.8.8.2.5 Pinkerton v. United States
PINKERTON ET AL.
v.
UNITED STATES.
Supreme Court of United States.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
[641] John S. Tucker, Jr. argued the cause for petitioners. With him on the brief was Thomas E. Skinner.
W. Marvin Smith argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert S. Erdahl and Leon Ulman.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Walter and Daniel Pinkerton are brothers who live a short distance from each other on Daniel's farm. They were indicted for violations of the Internal Revenue Code. The indictment contained ten substantive counts and one conspiracy count. The jury found Walter guilty on nine of the substantive counts and on the conspiracy count. It found Daniel guilty on six of the substantive counts and on the conspiracy count. Walter was fined $500 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was given a two year sentence to run concurrently with the other sentence. Daniel was fined $1,000 and sentenced generally on the substantive counts to imprisonment for thirty months. On the conspiracy count he was fined $500 and given a two year sentence to run concurrently with the other sentence. The judgments of conviction were affirmed by the Circuit Court of Appeals.[1] 151 F.2d [642] 499. The case is here on a petition for a writ of certiorari, which we granted because one of the questions presented involved a conflict between the decision below and United States v. Sall, 116 F.2d 745, decided by the Circuit Court of Appeals for the Third Circuit.
A single conspiracy was charged and proved. Some of the overt acts charged in the conspiracy count were the same acts charged in the substantive counts. Each of the substantive offenses found was committed pursuant to the conspiracy. Petitioners therefore contend that the substantive counts became merged in the conspiracy count, and that only a single sentence not exceeding the maximum two year penalty provided by the conspiracy statute (Criminal Code § 37, 18 U.S.C. § 88) could be imposed. Or to state the matter differently, they contend that each of the substantive counts became a separate conspiracy count but, since only a single conspiracy was charged and proved, only a single sentence for conspiracy could be imposed. They rely on Braverman v. United States, 317 U.S. 49.
In the Braverman case the indictment charged no substantive offense. Each of the several counts charged a conspiracy to violate a different statute. But only one [643] conspiracy was proved. We held that a single conspiracy, charged under the general conspiracy statute, however diverse its objects may be, violates but a single statute and no penalty greater than the maximum provided for one conspiracy may be imposed. That case is not apposite here. For the offenses charged and proved were not only a conspiracy but substantive offenses as well.
Nor can we accept the proposition that the substantive offenses were merged in the conspiracy. There are, of course, instances where a conspiracy charge may not be added to the substantive charge. One is where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime. See United States v. Katz, 271 U.S. 354, 355-356; Gebardi v. United States, 287 U.S. 112, 121-122. Another is where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another's crime. Gebardi v. United States, supra. But those exceptions are of a limited character. The common law rule that the substantive offense, if a felony, was merged in the conspiracy,[2] has little vitality in this country.[3] It has been long and consistently recognized by the Court that the commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The power of Congress to separate the two and to affix to each a different penalty is well established. Clune v. United States, 159 U.S. 590, 594-595. A conviction for the conspiracy may be had though the substantive offense was completed. See Heike v. United States, 227 U.S. 131, 144. And the plea of double jeopardy is no defense to a conviction for both offenses. Carter v. [644] McClaughry, 183 U.S. 365, 395. It is only an identity of offenses which is fatal. See Gavieres v. United States, 220 U.S. 338, 342. Cf. Freeman v. United States, 146 F.2d 978. A conspiracy is a partnership in crime. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 253. It has ingredients, as well as implications, distinct from the completion of the unlawful project. As stated in United States v. Rabinowich, 238 U.S. 78, 88:
"For two or more to confederate and combine together to commit or cause to be committed a breach of the criminal laws, is an offense of the gravest character, sometimes quite outweighing, in injury to the public, the mere commission of the contemplated crime. It involves deliberate plotting to subvert the laws, educating and preparing the conspirators for further and habitual criminal practices. And it is characterized by secrecy, rendering it difficult of detection, requiring more time for its discovery, and adding to the importance of punishing it when discovered."
And see Sneed v. United States, 298 F. 911, 912-913; Banghart v. United States, 148 F.2d 521.
Moreover, it is not material that overt acts charged in the conspiracy counts were also charged and proved as substantive offenses. As stated in Sneed v. United States, supra, p. 913, "If the overt act be the offense which was the object of the conspiracy, and is also punished, there is not a double punishment of it." The agreement to do an unlawful act is even then distinct from the doing of the act.[4]
[645] It is contended that there was insufficient evidence to implicate Daniel in the conspiracy. But we think there was enough evidence for submission of the issue to the jury.
There is, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses on which his conviction has been sustained,[5] although there was evidence to show that these substantive offenses were in fact committed by Walter in furtherance of the unlawful agreement or conspiracy existing between the brothers. The question was submitted to the jury on the theory that each petitioner could be found guilty of the substantive offenses, if it was found at the time those offenses were committed petitioners were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.[6]
[646] Daniel relies on United States v. Sall, supra. That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive offense even though it was committed in furtherance of the conspiracy. The court held that, in addition to evidence that the offense was in fact committed in furtherance of the conspiracy, evidence of direct participation in the commission of the substantive offense or other evidence from which participation might fairly be inferred was necessary.
We take a different view. We have here a continuous conspiracy. There is here no evidence of the affirmative action on the part of Daniel which is necessary to establish his withdrawal from it. Hyde v. United States, 225 U.S. 347, 369. As stated in that case, "Having joined in an unlawful scheme, having constituted agents for its performance, scheme and agency to be continuous until full fruition be secured, until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence." Id., p. 369. And so long as the partnership in crime continues, the partners act for each other in carrying it forward. It is settled that "an overt act of one partner may be the act of all without [647] any new agreement specifically directed to that act." United States v. Kissel, 218 U.S. 601, 608. Motive or intent may be proved by the acts or declarations of some of the conspirators in furtherance of the common objective. Wiborg v. United States, 163 U.S. 632, 657-658. A scheme to use the mails to defraud, which is joined in by more than one person, is a conspiracy. Cochran v. United States, 41 F.2d 193, 199-200. Yet all members are responsible, though only one did the mailing. Cochran v. United States, supra; Mackett v. United States, 90 F.2d 462, 464; Baker v. United States, 115 F.2d 533, 540; Blue v. United States, 138 F.2d 351, 359. The governing principle is the same when the substantive offense is committed by one of the conspirators in furtherance of the unlawful project. Johnson v. United States, 62 F.2d 32, 34. The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under § 37 of the Criminal Code, 18 U.S.C. § 88. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offense.
A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the [648] scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. But as we read this record, that is not this case.
Affirmed.
MR. JUSTICE JACKSON took no part in the consideration or decision of this case.
MR. JUSTICE RUTLEDGE, dissenting in part.
The judgment concerning Daniel Pinkerton should be reversed. In my opinion it is without precedent here and is a dangerous precedent to establish.
Daniel and Walter, who were brothers living near each other, were charged in several counts with substantive offenses, and then a conspiracy count was added naming those offenses as overt acts. The proof showed that Walter alone committed the substantive crimes. There was none to establish that Daniel participated in them, aided and abetted Walter in committing them, or knew that he had done so. Daniel in fact was in the penitentiary, under sentence for other crimes, when some of Walter's crimes were done.
There was evidence, however, to show that over several years Daniel and Walter had confederated to commit similar crimes concerned with unlawful possession, transportation, and dealing in whiskey, in fraud of the federal revenues. On this evidence both were convicted of conspiracy. Walter also was convicted on the substantive counts on the proof of his committing the crimes charged. Then, on that evidence without more than the proof of Daniel's criminal agreement with Walter and the latter's overt acts, which were also the substantive offenses charged, the court told the jury they could find Daniel guilty of those substantive offenses. They did so.
[649] I think this ruling violates both the letter and the spirit of what Congress did when it separately defined the three classes of crime, namely, (1) completed substantive offenses;[1] (2) aiding, abetting or counseling another to commit them;[2] and (3) conspiracy to commit them.[3] Not only does this ignore the distinctions Congress has prescribed shall be observed. It either convicts one man for another's crime or punishes the man convicted twice for the same offense.
The three types of offense are not identical. Bollenbach v. United States, 326 U.S. 607, 611; United States v. Sall, 116 F.2d 745. Nor are their differences merely verbal. Ibid. The gist of conspiracy is the agreement; that of aiding, abetting or counseling is in consciously advising or assisting another to commit particular offenses, and thus becoming a party to them; that of substantive crime, going a step beyond mere aiding, abetting, counseling to completion of the offense.
These general differences are well understood. But when conspiracy has ripened into completed crime, or has advanced to the stage of aiding and abetting, it becomes easy to disregard their differences and loosely to treat one as identical with the other, that is, for every purpose except the most vital one of imposing sentence. And [650] thus the substance, if not the technical effect, of double jeopardy or multiple punishment may be accomplished. Thus also may one be convicted of an offense not charged or proved against him, on evidence showing he committed another.
The old doctrine of merger of conspiracy in the substantive crime has not obtained here. But the dangers for abuse, which in part it sought to avoid, in applying the law of conspiracy have not altogether disappeared. Cf. Kotteakos v. United States, post, p. 750. There is some evidence that they may be increasing. The looseness with which the charge may be proved, the almost unlimited scope of vicarious responsibility for others' acts which follows once agreement is shown, the psychological advantages of such trials for securing convictions by attributing to one proof against another, these and other inducements require that the broad limits of discretion allowed to prosecuting officers in relation to such charges and trials be not expanded into new, wider and more dubious areas of choice. If the matter is not generally of constitutional proportions, it is one for the exercise of this Court's supervisory power over the modes of conducting federal criminal prosecutions within the rule of McNabb v. United States, 318 U.S. 332.
I think that power should be exercised in this case with respect to Daniel's conviction. If it does not violate the letter of constitutional right, it fractures the spirit. United States v. Sall, supra. I think the ruling in that case was right, and for the reasons stated.[4] It should be [651] followed here. Daniel has been held guilty of the substantive crimes committed only by Walter on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that he counseled, advised or had knowledge of those particular acts or offenses. There was, therefore, none that he aided, abetted or took part in them. There was only evidence sufficient to show that he had agreed with Walter at some past time to engage in such transactions generally. As to Daniel this was only evidence of conspiracy, not of substantive crime.
The Court's theory seems to be that Daniel and Walter became general partners in crime by virtue of their agreement and because of that agreement without more on his part Daniel became criminally responsible as a principal for everything Walter did thereafter in the nature of a criminal offense of the general sort the agreement contemplated, so long as there was not clear evidence that Daniel had withdrawn from or revoked the agreement. Whether or not his commitment to the penitentiary had that effect, the result is a vicarious criminal responsibility as broad as, or broader than, the vicarious civil liability of a partner for acts done by a co-partner in the course of the firm's business.
Such analogies from private commercial law and the law of torts are dangerous, in my judgment, for transfer to the criminal field. See Sen. Rep. No. 163, 72d Cong., 1st Sess., 20. Guilt there with us remains personal, not vicarious, for the more serious offenses. It should be kept so. The effect of Daniel's conviction in this case, to [652] repeat, is either to attribute to him Walter's guilt or to punish him twice for the same offense, namely, agreeing with Walter to engage in crime. Without the agreement Daniel was guilty of no crime on this record. With it and no more, so far as his own conduct is concerned, he was guilty of two.
In another aspect of the case, this effect is thrown into even clearer light. The indictment here was filed after a prior one for conspiracy alone had been dismissed. This in turn came after petitioners had been tried, convicted and had been successful in securing reversal on appeal for errors in the charge. Pinkerton v. United States, 145 F.2d 252. Following this reversal they were reindicted and tried in the present case. The Government now says, as to the plea of double jeopardy on this account (which the trial court overruled on demurrer), that the two indictments were for different conspiracies since the first one charged a different period of time as covered by the conspiracy; charged 16 as compared with 19 overt acts in the second; and an additional object was added in the latter, that is, intent to violate another section of the revenue act. In other words, there were two different conspiracies by virtue of these minute differences in the detail of the allegations. Hence, there was no double jeopardy by the second indictment.
But later, in support of the conviction here, relative to the bearing of the various statutes of limitations upon proof of the overt acts, charged also as substantive offenses, the Government points out that the earlier indictment was framed on the assumption that a three-year statute of limitations applied to the conspiracy as first charged; and the convictions were reversed for failure of the trial court to instruct the jury on that basis. Then the District Attorney discovered the decision in Braverman v. United States, 317 U.S. 49, 54-55, and decided to revamp the [653] indictment to include details making the six-year period applicable. He did so, and added the substantive counts because, so it is said, in the view that a six-year period applied he felt there were enough substantive offenses within that time which he could successfully prove to justify including them.
It would seem, from this history, that to sustain this conviction as against the plea of former jeopardy by virtue of the earlier indictment and what followed, the Government stands, and must stand, upon the idea that two separate and distinct conspiracies were charged, one by the first and one by the later indictment. See United States v. Oppenheimer, 242 U.S. 85, 87-88. But to sustain Daniel's conviction for the substantive offenses, via the conspiracy route, there was only a single continuing conspiracy extending over the longer period, in the course of which Walter committed crimes, which were also overt acts, some of them running back of the period charged in the former indictment, others being the same but later acts which it had charged as overt acts against both.
For these now Daniel is held responsible, not merely as a conspirator, as the prior indictment charged, but as both a conspirator and a substantive offender.
What this lacks by way of being put twice in jeopardy for the same offense, I am unable to understand. For not only has Daniel been convicted for conspiracy for the same overt acts, and illegal ends, as the first indictment charged. He has had those acts converted into substantive offenses. I do not think the prosecutor's technical, and it would seem insubstantial, variations in the details of the indictment should be permitted to achieve so much.[5]
[654] This, of course, should not relieve Walter of the conviction for the substantive offenses. But his sentence for conspiracy should be annulled. So also should Daniel's sentence on all counts.
MR. JUSTICE FRANKFURTER, reserving judgment on the question of double jeopardy, agrees in substance with the views expressed in this dissent.
[1] The court held that two of the counts under which Walter was convicted and one of the counts under which Daniel was convicted were barred by the statute of limitations and that as to them the demurrer should have been sustained. But each of the remaining substantive counts on which the jury had returned a verdict of guilty carried a maximum penalty of three years' imprisonment and a fine of $5,000. Int. Rev. Code, § 3321, 26 U.S.C. § 3321. Hence the general sentence of fine and imprisonment imposed on each under the substantive counts was valid. It is settled law, as stated in Claassen v. United States, 142 U.S. 140, 146-147, "that in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only."
The same rule obtains in the case of concurrent sentences. Hirabayashi v. United States, 320 U.S. 81, 85 and cases cited.
[2] See May's Law of Crimes (4th ed. 1938), § 126; 17 Corn. L.Q. (1931) 136; People v. Tavormina, 257 N.Y. 84, 89-90, 177 N.E. 317.
[3] The cases are collected in 37 A.L.R. 778, 75 A.L.R. 1411.
[4] The addition of a conspiracy count may at times be abusive and unjust. The Conference of Senior Circuit Judges reported in 1925:
"We note the prevalent use of conspiracy indictments for converting a joint misdemeanor into a felony; and we express our conviction that both for this purpose and for the purpose — or at least with the effect — of bringing in much improper evidence, the conspiracy statute is being much abused.
"Although in a particular case there may be no preconcert of plan, excepting that necessarily inherent in mere joint action, it is difficult to exclude that situation from the established definitions of conspiracy; yet the theory which permits us to call the aborted plan a greater offense than the completed crime supposes a serious and substantially continued group scheme for cooperative law breaking. We observe so many conspiracy prosecutions which do not have this substantial base that we fear the creation of a general impression, very harmful to law enforcement, that this method of prosecution is used arbitrarily and harshly. Further the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant." Annual Report of the Attorney General for 1925, pp. 5-6.
But we do not find that practice reflected in this present case.
[5] This question does not arise as to Walter. He was the direct actor in some of the substantive offenses on which his conviction rests. So the general sentence and fine are supportable under any one of those. See note 1, supra.
[6] The trial court charged: ". . . after you gentlemen have considered all the evidence in this case, if you are satisfied from the evidence beyond a reasonable doubt that at the time these particular substantive offenses were committed, that is, the offenses charged in the first ten counts of this indictment if you are satisfied from the evidence beyond a reasonable doubt that the two defendants were in an unlawful conspiracy, as I have heretofore defined unlawful conspiracy to you, then you would have a right, if you found that to be true to your satisfaction beyond a reasonable doubt, to convict each of these defendants on all these substantive counts, provided the acts referred to in the substantive counts were acts in furtherance of the unlawful conspiracy or object of the unlawful conspiracy, which you have found from the evidence existed." Daniel was not indicted as an aider or abettor (see Criminal Code, § 332, 18 U.S.C. 550), nor was his case submitted to the jury on that theory.
[1] These of course comprehend the vast variety of offenses prescribed by federal law, conspiracies for accomplishing which may be charged under the catchall conspiracy statute, note 3.
[2] "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." 18 U.S.C. § 550.
[3] "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." 18 U.S.C. § 88.
[4] In the substantially identical situation presented in the Sall case as to the indictment and the proof, the Government argued that the conviction on the substantive counts should stand because the proof that the accused had entered the conspiracy amounted to proof that he had "aided and abetted" the commission of the substantive crimes within the meaning of 18 U.S.C. § 550. The court rejected the idea, apparently now accepted here, that "aiding and abetting" and "conspiring" are, and are intended by Congress to be, the same thing, differing only in the form of the descriptive words. But if that is the only difference, then conviction for both "offenses" on account of the same act is clearly double punishment.
[5] The situation is essentially the same as when crimes are defined with such minute distinction as to make them different only in the most technical sense. See District of Columbia v. Buckley, 128 F.2d 17, concurring opinion at 21; cf. Ex parte Nielsen, 131 U.S. 176; In re Snow, 120 U.S. 274.
7.2.8.8.2.6 Short v. State 7.2.8.8.2.6 Short v. State
SHORT
v.
The STATE.
Court of Appeals of Georgia.
[197] Marcus C. Chamblee, Atlanta, for appellant.
David McDade, District Attorney, Christopher R. Johnson, Assistant District Attorney, for appellee.
RUFFIN, Chief Judge.
A Douglas County jury found Keith Short guilty of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. In 15 enumerations of error, Short challenges the sufficiency of the evidence, the admission of certain evidence, and the trial court's rulings with respect to various jury charges. We affirm.
1. "`On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the [defendant] no longer enjoys a presumption of innocence.'"[1] We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.[2]
Viewed in this manner, the evidence shows that the victim was in the parking lot of her boyfriend's Douglasville apartment complex around midnight on June 2, 1995. The two planned to drive to Florida that night, and she began moving her luggage from her car to his truck. At that point, two men came around the front of the truck and another approached the victim from behind, placing a gun in her back. The gunman told her to empty her pockets, while the other two searched her car. The glinman then obtained the victim's car keys, gave them to the other men, pushed her into the back seat of her car, and got in with her. The other two men jumped in the front seat, and one drove the car from the apartment complex.
The gunman ordered the victim to place her head between her legs, so she did not see which way the car traveled as it left the complex. At some point during the drive, the gunman began fondling the victim's breasts. He then unzipped his pants and ordered her to perform fellatio. Still held at gunpoint, the victim complied. When the front-seat passenger saw what the gunman was doing, "he started laughing and turned back around."
The gunman next told the victim to pull down her pants, and she did so. He pulled her onto his lap and touched her vagina with his penis. According to the victim, he tried to "enter into [her]," but "could not get all the way in," so he shoved her "on all fours" and "tried to enter [her] from behind." When the victim attempted to escape through the passenger door, the gunman grabbed her and threatened to kill her.
The front-seat passenger stated that "they needed to do something with [the victim]," and the three men exited the car to talk. The gunman then forced the victim into the trunk, and the car began moving. The victim managed to pop the trunk open, jumped out while the car was still moving, ran to a [198] house, and called the police. Although Fulton County officers responded to the home, which apparently was located in Fulton County, the Douglas County Sheriff's Department ultimately investigated the crimes.
Police discovered that, after the incident, a call was placed from the victim's car phone to an apartment complex near Six Flags. The apartment manager reported that she had seen the victim's car the day after the attack, and authorities surrounded the complex. Several officers observed the car driving in the area and approached it in a store parking lot. Keith Short jumped from the front passenger seat and ran. Officers quickly apprehended him and also arrested Short's brother, Robert, who was driving the victim's car.[3] After further investigation, the police identified William Cunningham as the third individual involved in the attack.
Following his arrest, Short gave a statement to police. He admitted that he, his brother, and Cunningham approached the victim in the Douglasville apartment complex. Short and Robert entered her car, while Cunningham held her outside the car at gunpoint. Cunningham and the victim then got into the car, and Robert drove from the complex. Short further stated that, at one point, he looked in the back seat and saw Cunningham "messing" with the victim, who was naked. According to Short, he told Cunningham "don't do that."
(a) With respect to his rape and aggravated sodomy convictions, Short claims that the State presented insufficient evidence that the crimes occurred in Douglas County. He asserts that the victim did not know where the car was located when these sexual offenses occurred. And although her ordeal began in Douglas County, it ended in Fulton County.
"Venue, like all elements of the State's case, must be proven beyond a reasonable doubt."[4] Criminal actions generally must be tried in the county where the crime was committed.[5] But when a crime is committed in transit or in more than one county, Georgia law provides special methods for establishing venue. For example, a crime committed on or immediately adjacent to a boundary line between two counties is considered committed in either county.[6] Moreover, "in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed."[7] And under OCGA § 17-2-2(e):
[i]f a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.
The evidence shows that the sexual offenses occurred in a moving vehicle that traveled at some point from Douglas County to Fulton County. As Short notes on appeal, Robert told police that, when the car was in Fulton County, he turned around, saw that the victim was naked, and heard Short ask "what are you doing?" Robert further stated that they were "in Atlanta" when he saw Cunningham "behind" the naked victim. Robert also asserted, however, that he did not see Cunningham touch the victim sexually and that the touchings could have occurred earlier. Short told police that the car remained in Douglas County for only "two seconds" after they left the apartment complex. But he stated that he did not "know [his] way around" the area. A sergeant with the Douglas County Sheriff's Department testified that it would be "[i]mpossible" to reach the county line that quickly.
[199] Given the evidence presented, the jury was authorized to conclude beyond a reasonable doubt that the sexual assaults might have been committed either in Douglas County or Fulton County, rendering venue proper in Douglas County.[8] Furthermore, under OCGA § 17-2-2(e), "venue for a crime involving a vehicle may lie in any county through which the vehicle traveled."[9] Relying on this provision, the jury could have determined that venue for the sexual offenses, which occurred in a moving car traveling through Douglas County and Fulton County, lay in Douglas County.[10]
Short argues on appeal that, because the State relied on "exceptions" to the general venue rule, it failed to prove that the crimes occurred in Douglas County, as alleged in the indictment. We disagree. Subsections (b), (e), and (h) of OCGA § 17-2-2 offer methods of establishing venue when the actual location of the crime cannot be determined with certainty.[11] If the State proves venue in a particular county under those subsections, the crime is considered to have been committed in that county, even if it was committed elsewhere.[12] And pursuant to the subsections, the State submitted evidence authorizing the jury to find that the sexual offenses occurred in Douglas County.
Citing Moss v. State,[13] Short also contends that his convictions must be reversed because the indictment failed to state that venue would be proven through OCGA § 17-2-2(b), (e), or (h). Under Moss, the State cannot rely on an exception to the criminal statute of limitation—and thus avoid the bar created by the limitation period — unless it alleges such reliance in the indictment and proves that the exception applies.[14] The Moss decision, however, has no application here, as this case does not involve an exception to the statute of limitation. Moreover, the State did not try to avoid the venue requirement. It used statutorily authorized methods for proving venue in Douglas County. Short has pointed to no authority requiring the State to allege this reliance in the indictment, and we see no reason to impose such requirement.[15]
(b) Short also argues that the State did not prove that he participated in the rape and aggravated sodomy, which were committed by Cunningham. He concedes that the evidence, construed favorably to the verdict, demonstrates that he took part in a conspiracy to rob the victim at gunpoint, kidnap her, and hijack her vehicle. He contends, however, that the sexual offenses were not committed in furtherance of the conspiracy and that he did not intentionally aid in their commission.
Under Georgia law, "[a]ll of the participants in a conspiracy are criminally responsible for the acts of each, committed in the execution of the conspiracy, and which may be said to be a probable consequence of the conspiracy, even though the particular act may not actually have been a part of the plan."[16] As noted above, the evidence demonstrated that Short participated in a conspiracy to rob the victim, then kidnap her at gunpoint, place her in the back seat of the car, and drive around Atlanta. Cunningham attempted to rape the victim and ordered her to perform sodomy during the drive. And [200] the evidence — construed favorably to the verdict — shows that Short, who was the front seat passenger, did nothing to stop the assault, instead laughing when he saw Cunningham's conduct.
Although Short now argues that, as a matter of law, the attempted rape and sodomy were neither a part nor a foreseeable consequence of the original plan, we disagree. In our view, a jury could reasonably conclude that sexual assault was a probable consequence of the conspiracy to kidnap the female victim at gunpoint and drive around with her in a vehicle. That Short raised no objection to Cunningham's actions and continued to take part in the kidnapping conspiracy after the sexual assault occurred supports such conclusion.[17] Accordingly, the evidence sufficiently linked Short to the sexual offenses.[18]
(c) Finally, Short argues that his rape conviction must be reversed because the State presented no evidence of penetration. "`Although penetration is an essential element of the crime of rape, it may be slight.'"[19] The victim testified that Cunningham "could not get [his penis] all the way in," was unable to "penetrate [her] entirely," and "did not fully penetrate [her] inside."[20] On cross-examination, the victim also testified that, to the extent defense counsel concluded from her interview with police that no penetration occurred, counsel "misunderstood" her answers. Given this testimony, the jury could conclude that at least some penetration occurred, authorizing the rape conviction.[21]
2. Short argues that the trial court erred in admitting his statement to police because it was not freely and voluntarily given. The evidence shows that Short was 16 years old at the time of the offenses. In determining whether a juvenile's custodial statement is free and voluntary, the trial court applies a "totality of the circumstances" test and considers the following factors:
the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement.[22]
Before admitting Short's statement, the trial court held a Jackson-Denno hearing. Sergeant Jerry Wynn of the Douglas County Sheriff's Department testified, among other things, that he read Short his Miranda rights when Short was arrested, and Short signed a Miranda waiver form before his interview with police the next day. Wynn also informed Short that he had the right to have a parent present during the interview, and Short responded that his mother "wouldn't come" because she was unhappy with his behavior. Wynn nonetheless called Short's mother, who declined to come to the police station, saying that she was "through with [Short]." Short's mother hung up the telephone after telling Short that she was [201] ashamed of him and did not want to see him again. Short then elected to proceed with the interview without his mother present.
Wynn further testified that Short had completed tenth grade at the time of the interview and communicated like an average 16 year old. He did not appear to be mentally deficient, suffering from any disability, or unable to understand the words Wynn used. Wynn explained the charges to Short, but stated that he was not sure whether Short would be charged with the sexual offenses. Short never asked for a lawyer or stated that he did not want to talk to police. According to Wynn, he did not force, threaten, or coerce Short into giving a statement.
Following Wynn's testimony, the trial court found that Short had been advised of his Miranda rights twice, was not lacking in "mental faculties," understood the potential charges that might be brought against him, and knew that he had a right to have his mother present during the interview, but elected to proceed without her. The trial court concluded that, given the totality of the circumstances, Short's statement was free and voluntary.
"On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of [Short's] statement."[23] The trial court applied the appropriate test, and the evidence supported its factual findings. We thus find no error in the admission of the statement.[24]
3. The trial court admitted into evidence a post-arrest statement given by Robert, who was tried with Short. After the jury heard the statement, Short asked the trial court to instruct the jury that the statement should only be considered against Robert. The trial judge declined to give a limiting instruction in the middle of trial, but included such instruction in the general jury charge.
Pursuant to Bruton v. United States[25] and its progeny, "[a] co-defendant's statement meets the Confrontation Clause's standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant."[26] Citing this principle, Short claims that the trial court should have given a contemporaneous charge regarding use of Robert's statement. Before trial, however, Short explicitly waived any Bruton arguments that he might have had. Thus, Short waived any claim that Bruton and the Confrontation Clause required a contemporaneous instruction.
Absent a Bruton claim, OCGA § 24-3-52 arguably governs the admissibility of the statement. Under that provision, "[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself."[27] It "is designed to protect a defendant from the hearsay confession of a co-conspirator who does not testify at trial."[28] At base, therefore, the provision relates to hearsay admissibility.[29] And we know of no requirement that a trial court give a contemporaneous limiting instruction regarding use of hearsay. Accordingly, this claim of error presents no basis for reversal.[30]
4. In three enumerations of error, Short alleges that the trial court improperly charged the jury on the venue principles in OCGA § 17-2-2(b), (e), and (h) because the [202] indictment did not inform him that the State planned to use these subsections. In Division 1(a), however, we rejected Short's claim that the State cannot rely on these subsections unless it references them in the indictment. It follows that these enumerations of error lack merit.
5. The trial court charged the jury that, "[a]lthough slight evidence of venue may be sufficient where the fact of venue is not contested, . . . it is a jurisdictional fact and must be proved beyond a reasonable doubt." In Jones v. State,[31] which was decided five years after the trial in this case, our Supreme Court held that the "slight evidence" exception to the venue requirement has no application "once a plea of not guilty is entered and a defendant is put on trial." Short thus argues that the trial court erroneously included the "slight evidence" language in its charge.
Even if error occurred, however, we find no basis for reversal. It is clear that Short contested venue with respect to the offenses — such as the sexual assaults — that occurred after the car exited the Douglasville apartment complex. His trial counsel questioned the investigating officer about venue, and Short asserted in his statement to police, which the jury heard, that the vehicle left Douglas County moments after the kidnapping. By its own terms, therefore, the "slight evidence" language did not apply to those crimes. Moreover, Short admitted to police that the initial attack, including the kidnapping, hijacking, and armed robbery, occurred at the Douglas County apartment complex. Under these circumstances, it is highly improbable that any alleged error contributed to the verdict, rendering it harmless.[32]
6. Short argues that the trial court erred in refusing to charge the jury that "the elements of proof that one is a party to a crime, or an accomplice, require proof of common criminal intent." We disagree. The trial court fully charged the jury on the definitions of party to a crime and conspiracy. It further instructed that the State must prove beyond a reasonable doubt that "the defendant knowingly and intentionally participated in or helped in the commission of the crime or was a conspirator in [the crime]." And it charged that intent is an essential element of the crime and must be proven beyond a reasonable doubt. Because the charge taken as a whole was adequate, the trial court did not err in refusing to give the requested charge.[33]
7. Short contends that the trial court should have instructed jurors that they "will determine both the law and the facts." We have previously found, however, that a trial court does not err in refusing to include this language in its jury charge.[34]
8. Short also enumerates as error the trial court's refusal to instruct the jury on theft by taking as a lesser included offense of armed robbery. With respect to armed robbery, the indictment charged that Short, Robert, and Cunningham took jewelry from the victim's immediate presence using a gun. The jewelry at issue was in a makeup bag and purse located inside the victim's car.
According to Short, he was entitled to a theft by taking charge because the jury could have determined that the jewelry was not taken from the victim's immediate presence. But "[i]mmediate presence does not mean `within arm's length' or `facing."[35] And the evidence shows that Short and Robert searched the victim's car for valuables while she was being held outside the vehicle [203] at gunpoint. The victim was then placed in the car and continually held at gunpoint until forcibly placed in the trunk, from which she later escaped. Under these circumstances, we find no evidence that the robbery occurred outside the victim's immediate presence.[36]
"Where the State's evidence clearly warrants a jury instruction on armed robbery and there is no evidence of the lesser offense of theft by taking, it is not error to refuse to charge the jury as to theft by taking."[37] Accordingly, the trial court properly refused to give the requested charge.[38]
9. In three enumerations of error, Short claims that the trial court erred in instructing the jury on crimes not charged in the indictment. The indictment alleged that Short committed kidnapping with bodily injury by "abduct[ing]" the victim, armed robbery by taking jewelry from the "immediate presence" of the victim, and aggravated sodomy by forcing the victim "to perform a sexual act involving the sex organ of the accused and the mouth of [the victim]." According to Short, however, the trial court instructed the jury on other ways to commit these crimes. Specifically, it charged that a person commits kidnapping "when he abducts or steals away any person," armed robbery when he takes property "from the person or the immediate presence of another by use of an offensive weapon," and aggravated sodomy "when he performs or submits to a sexual act involving the sex organs of one person and the mouth or anus of another."[39]
"Absent a remedial instruction, reversible error occurs if the jury charge recites the statutory definition of a crime (which informs the jury the crime may be committed in various manners) when the indictment alleges that the crime occurred in a specific way."[40] This is so because, without a curative instruction, a fatal variance may result between the proof at trial and the indictment.[41] Any such defect, however, is cured where, as here, the trial court provides the indictment to the jury and instructs that the State must prove beyond a reasonable doubt all material allegations in the indictment and all essential elements of the crimes charged.[42] Thus, these claims of error provide no basis for reversal.[43]
10. During its deliberations, the jury asked the trial court to redefine conspiracy and parties to a crime. The trial court recharged the jury on these concepts, using terminology that differed in some respects from the original charge. Short then asked the trial court to reread the following language from the original charge: "each [conspirator] is responsible for the acts of others only insofar as the same are naturally or necessarily done to further the conspiracy." The trial judge refused, asserting that the recharge adequately covered the principle. Short enumerates this refusal as error.
Although the trial court did not use the language requested by Short, the recharge informed jurors that a conspiracy extends to "collateral acts instant to and growing out of the original purpose [of the conspiracy]." According to the recharge, separate independent acts that are "in no way a part of what the original conspirators agreed to do or any [204] consequence thereof, [are] not a part of the conspiracy." The trial court further stated that "if one participant goes and does something that is expedient to whatever the criminal design is, then that can be [the] responsibility of all."
The trial court's language substantially covered the principle included in Short's requested recharge. Furthermore, the requested recharge was part of the original charge to the jury. Under these circumstances, we find no error.[44]
Judgment affirmed.
JOHNSON, P.J., and BARNES, J., concur.
[1] Gearin v. State, 255 Ga.App. 329, 330, 565 S.E.2d 540 (2002).
[2] See Pruitt v. State, 279 Ga. 140, 141(1), 611 S.E.2d 47 (2005); Gearin, supra.
[3] The police also arrested Donnie Smith, another passenger in the car, but concluded that he did not participate in the attack.
[4] Tompkins v. State, 278 Ga. 857, 858(1), 607 S.E.2d 891 (2005).
[5] OCGA § 17-2-2(a).
[6] OCGA § 17-2-2(b).
[7] OCGA § 17-2-2(h).
[8] See id.; Hendrix v. State, 242 Ga.App. 678, 679-680(1), 530 S.E.2d 804 (2000); Dillard v. State, 223 Ga.App. 405, 406(2), 477 S.E.2d 674 (1996).
[9] Waldrip v. State, 267 Ga. 739, 749(13), 482 S.E.2d 299 (1997).
[10] See id.; Gearin, supra at 334(3), 565 S.E.2d 540.
[11] See Pruitt, supra at 143(4), 611 S.E.2d 47.
[12] See Gearin, supra.
[13] 220 Ga.App. 150, 469 S.E.2d 325 (1996).
[14] See id.
[15] See Trumpler v. State, 261 Ga.App. 499, 501(3), 583 S.E.2d 184 (2003) (rejecting claim that indictment was insufficient because it alleged that defendant directly committed crime, while State proceeded against him on theory of party to the crime; a party to the crime may be charged with committing the crime, and "[a]lthough the State was required to prove that [the defendant] was a party to the crime[ ] . . . , it was not required to allege [this theory] in the indictment").
[16] Huffman v. State, 257 Ga. 390, 391(2), 359 S.E.2d 910 (1987).
[17] See id. at 392, 359 S.E.2d 910 (fact that defendant consummated drug transaction after discovering that co-conspirator had murdered individual involved in the transaction supported conclusion that "the victim's murder was a probable and foreseeable consequence of the underlying conspiracy to traffic in illegal drugs").
[18] See id. at 392(3), 359 S.E.2d 910 (jury authorized to find that attempted armed robbery, aggravated assault, and attempted kidnapping were probable consequences of drug trafficking conspiracy); Shehee v. State, 167 Ga.App. 542, 543(1), 307 S.E.2d 54 (1983) (armed robbery committed before kidnapping "was naturally or necessarily done pursuant to or in furtherance of the conspiracy to kidnap [the victim]" at gunpoint).
[19] Manning v. State, 259 Ga.App. 794, 797(2), 578 S.E.2d 494 (2003).
[20] (Emphases supplied.)
[21] See id.; Jackson v. State, 157 Ga.App. 604(1), 278 S.E.2d 5 (1981); see also Raymond v. State, 232 Ga.App. 228, 228-229(1), 501 S.E.2d 568 (1998).
[22] (Punctuation omitted.) Brown v. State, 253 Ga.App. 1, 2(1), 557 S.E.2d 464 (2001). See also Henry v. State, 264 Ga. 861, 862(2), 452 S.E.2d 505 (1995).
[23] Henry, supra at 862(2), 452 S.E.2d 505
[24] See McKoon v. State, 266 Ga. 149, 151(2), 465 S.E.2d 272 (1996) ("The absence of a parent is just one of nine factors that this Court considers."); Henry, supra at 862-863, 452 S.E.2d 505; Brown, 253 Ga.App. at 3(1)(d), 557 S.E.2d 464 (2001).
[25] 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
[26] Hanifa v. State, 269 Ga. 797, 803(2), 505 S.E.2d 731 (1998).
[27] OCGA § 24-3-52.
[28] Brown v. State, 266 Ga. 633, 635(2), 469 S.E.2d 186 (1996).
[29] See id.
[30] To the extent OCGA § 24-3-52 also embodies the Confrontation Clause principles discussed in Bruton, Short waived any reliance on those principles prior to trial.
[31] 272 Ga. 900, 900-901, 537 S.E.2d 80 (2000).
[32] See Davis v. State, 279 Ga. 11, 12-13(2), 608 S.E.2d 628 (2005); Howard v. State, 220 Ga.App. 579, 583(2), 469 S.E.2d 746 (1996).
[33] See Christopher v. State, 269 Ga. 382, 383(3), 497 S.E.2d 803 (1998) (" `It is not necessary to give the exact language of a request to charge when the applicable principles are fairly covered by the charge as given.'").
[34] See Cornwell v. State, 246 Ga.App. 686, 687-688(1), 541 S.E.2d 101 (2000); Drummond v. State, 173 Ga.App. 337, 338(3), 326 S.E.2d 787 (1985) (physical precedent only).
[35] Parker v. State, 244 Ga.App. 419, 425(11), 535 S.E.2d 795 (2000).
[36] See Morgan v. State, 195 Ga.App. 732, 734(1), 394 S.E.2d 639 (1990) ("[T]he concept of immediate presence is broadly construed if the object taken was under the victim's control or responsibility and the victim is not too distant."); Waters v. State, 161 Ga.App. 555, 556, 289 S.E.2d 21 (1982) ("[E]vidence that the victim, while lying in [a] gully, was close enough to the car to hear her assailants talking was sufficient proof that the goods were taken from her presence.").
[37] Parker, supra.
[38] See id. at 425-426, 535 S.E.2d 795.
[39] (Emphasis supplied.)
[40] Green v. State, 240 Ga.App. 377, 379(4), 523 S.E.2d 581 (1999).
[41] See id.
[42] See id. at 379-380, 523 S.E.2d 581; see also Lumpkin v. State, 249 Ga. 834, 836-837(2), 295 S.E.2d 86 (1982) (although trial court instructed jury on several methods of committing theft by receiving stolen property, any prejudice was cured by remedial charge that limited jury's consideration to the specific method alleged in the indictment).
[43] See Green, supra.
[44] See Smith v. State, 243 Ga.App. 331, 333-334(4), 533 S.E.2d 431 (2000); Bryant v. State, 155 Ga.App. 652, 654(3), 271 S.E.2d 904 (1980).
7.2.8.8.2.7 US v. Farhane 7.2.8.8.2.7 US v. Farhane
634 F.3d 127 (2011)
UNITED STATES of America, Appellee,
v.
Abdulrahman FARHANE, also known as "Abderr Farhan," and Rafiq Sabir, Defendants-Appellants.
Docket Nos. 07-1968-cr (L), 07-5531-cr (CON).
United States Court of Appeals, Second Circuit.
Argued: February 17, 2009.
Decided: February 4, 2011.
[130] Edward D. Wilford (Natali J.H. Todd, on the brief), New York, NY, for Defendant-Appellant.
Jennifer G. Rodgers, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), on behalf of Michael J. Garcia, United States Attorney for the Southern District of New York, New York, NY, for Appellee.
Before: WINTER, RAGGI, Circuit Judges, and DEARIE, Chief District Judge.[1]
Judge RAGGI concurs in part in a separate opinion.
Judge DEARIE dissents in part in a separate opinion.
REENA RAGGI, Circuit Judge:
I. Background...........................................................................132
A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah.................132
B. 2004: Shah Offers to Support al Qaeda............................................132
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support....133
D. Prosecution and Conviction ......................................................133
II. Discussion...........................................................................134
A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case......................134
1. The Statutory Framework......................................................134
2. Sabir's Vagueness Claim......................................................136
a. Sabir Fails to Demonstrate Facial Vagueness or Overbreadth ..............136
b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case................138
(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied.............138
(2) The Standards for As-Applied Review.................................139
(3) Sabir's Vagueness Challenge to the Statutory Proscriptions Fails..........................140
(4) The "Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir..............142
B. The Trial Evidence Was Sufficient To Support Sabir's Conviction..................144
1. Count One: Conspiracy........................................................144
2. Count Two: Attempt...........................................................145
a. Intent...................................................................145
b. Substantial Step.........................................................146
(1) The "Substantial Step" Requirement Expands Attempt Beyond the Common Law.............................................146
(2) Identifying a Substantial Step by Reference to the Crime Being Attempted ..................................................147
(3) The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel............148
(4) The Dissent's Mistaken View of the Substantial Step Requirement.......................................................149
(a) Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda.........149
(b) The Provision of Personnel and the Subsequent Provision of Expert Services by Such Personnel Are Distinct Forms of Material Support...150
(c) Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns............................................153
(d) No Government Conduct Precluded a Jury Finding of a Substantial Step ..............................................153
C. The District Court Reasonably Rejected Sabir's Batson Challenge..............154
1. Prospective Juror # 5........................................................156
2. Prospective Juror # 26.......................................................156
3. Prospective Juror # 27.......................................................157
D. Sabir's Evidentiary Challenges Are Uniformly Without Merit...................158
1. Expert Witness Testimony.....................................................158
a. Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702 ......158
b. Kohlmann's Testimony Was Helpful to the Jury.................................159
c. Kohlmann's Testimony Was Relevant............................................159
d. Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer...160
2. Co-Conspirator Statements....................................................160
a. Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E)..............160
b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation................................................162
3. Prior Inconsistent Statement.................................................163
4. State-of-Mind Evidence.......................................................164
5. Rule 403 Objections..........................................................164
a. The Shareef Materials....................................................165
b. The Poughkeepsie Mosque Incident.........................................165
c. Mujahideen Activities in Bosnia..........................................165
E. Summation Issues.................................................................166
F. Juror Misconduct.................................................................168
III. Conclusion.........................................................................170
[132] Defendant Rafiq Sabir, whose birth name is Rene Wright, is a United States citizen and licensed physician who, in May 2005, swore an oath of allegiance to al Qaeda and promised to be on call to treat wounded members of that terrorist organization in Saudi Arabia. Convicted after a jury trial in the United States District Court for the Southern District of New York (Loretta A. Preska, Chief Judge) of conspiring to provide and actually providing or attempting to provide material support to a terrorist organization in violation of 18 U.S.C. § 2339B, and sentenced to a 300-month term of incarceration, Sabir now challenges his conviction on various grounds. Specifically, he contends that (1) § 2339B is unconstitutionally vague and overbroad, (2) the trial evidence was insufficient to support his conviction, (3) the prosecution's peremptory jury challenges exhibited racial bias, (4) evidentiary rulings deprived him of the right of confrontation and/or a fair trial, (5) the district court abused its discretion in addressing alleged juror misconduct, and (6) the prosecution's rebuttal summation deprived him of a fair trial. For the reasons explained in this opinion, we conclude that these arguments lack merit. Accordingly, we affirm Sabir's judgment of conviction.[2]
I. Background
A. 2001: The Initial FBI Investigation into Co-Defendant Tarik Shah
Defendant Rafiq Sabir is a New York licensed physician, trained at Columbia University, who specializes in emergency medicine. In 2001, the Federal Bureau of Investigation began investigating Sabir's longtime friend Tarik Shah for the possible transfer of money to insurgents in Afghanistan. As part of that investigation, an FBI confidential informant known as "Saeed" cultivated a relationship with Shah, in the course of which Shah was recorded speaking openly about his commitment to jihad (holy war) in order to establish Sharia (Islamic law) and about his wish to provide "deadly and dangerous" martial arts training to mujahideen (jihad warriors). Gov't Exh. ("GX") 802T at 1-2; GX 803T at 2-4; GX 804T at 3; Trial Tr. at 590-91, 601-03.[3] During these conversations, Shah repeatedly identified Sabir as his "partner." GX 801T at 1; GX 807T at 3; see Trial Tr. at 903-04.
B. 2004: Shah Offers to Support al Qaeda
On March 3, 2004, Saeed and Shah traveled to Plattsburgh, New York, where Saeed introduced Shah to Ali Soufan, an undercover FBI agent posing as a recruiter for al Qaeda.[4] In a series of recorded [133] meetings with Agent Soufan, Shah detailed his martial arts expertise and offered to travel abroad to train al Qaeda combatants. Shah also told Soufan about Sabir, "an emergency room doctor" who had been his "trusted friend[]" for more than 25 years. GX 902T at 2, 7. Explaining that he knew Sabir's "heart," Shah proposed that the two men join al Qaeda as "a pair, me and a doctor." Id. at 3, 23. At a subsequent meeting with Saeed, Shah reported that he had spoken in person with Sabir about this plan.
Shah and Agent Soufan next met in Orlando, Florida, in April 2004, at which time Shah agreed to prepare a syllabus for a martial arts training course as well as a training video. Shah also questioned Soufan at this meeting about al Qaeda suicide bombings and asked whether he could receive, as well as provide, terrorist training.
C. 2005: Shah and Sabir Swear Allegiance to al Qaeda and Attempt To Provide Material Support
For most of the time between May 2004 and May 2005, Sabir was out of the United States, working at a Saudi military hospital in Riyadh. On May 20, 2005, during a visit to New York, Sabir met with Saeed and Agent Soufan at Shah's Bronx apartment. Sabir told Soufan that he would soon be returning to Riyadh. He expressed interest in meeting with mujahideen operating in Saudi Arabia and agreed to provide medical assistance to any who were wounded. See GX 906T at 15, 87. He suggested that he was ideally situated to provide such assistance because he would have a car in Riyadh and "carte blanche" to move freely about the city. Id. at 67.
To ensure that Shah and Sabir were, in fact, knowingly proffering support for terrorism, Soufan stated that the purpose of "our war, ... our jihad" is to "[e]xpel the infidels from the Arabian peninsula," id. at 22, and he repeatedly identified "Sheikh Osama" (in context a clear reference to Osama bin Laden) as the leader of that effort, see, e.g., id. at 31, 34, 59, 87, 98-99. Shah quickly agreed to the need for war to "[e]xpel the Jews and the Christians from the Arabian Peninsula," id. at 22, while Sabir observed that those fighting such a war were "striving in the way of Allah" and "most deserving" of his help, id. at 66.
To permit mujahideen needing medical assistance to contact him in Riyadh, Sabir provided Soufan with his personal and work telephone numbers. See id. at 40, 83. When Shah and Soufan noted that writing down this contact information might create a security risk, Sabir encoded the numbers using a code provided by Soufan. See id. at 49-53.
Sabir and Shah then participated in bayat, a ritual in which each swore an oath of allegiance to al Qaeda, promising to serve as a "soldier of Islam" and to protect "brothers on the path of Jihad" and "the path of al Qaeda." Id. at 106-08, 114-16. The men further swore obedience to "the guardians of the pledge," whom Soufan expressly identified as "Sheikh Osama," i.e., Osama bin Laden, and his second in command, "Doctor Ayman Zawahiri." Id. at 98, 108-10, 115.
D. Prosecution and Conviction
Shah and Sabir were arrested on May 28, 2005, and thereafter indicted in the [134] Southern District of New York on charges that between October 2003 and May 2005, they (1) conspired to provide material support or resources to the terrorist organization al Qaeda, see 18 U.S.C. § 2339B; and (2) provided or attempted to provide such support, see id. §§ 2339B, 2. See Indictment ¶¶ 1-2, United States v. Shah, S4 05 Cr. 673(LAP) (S.D.N.Y. filed June 27, 2005).[5] The two counts used identical language to describe three types of material support that defendants provided, attempted to provide, or conspired to provide:
(i) one or more individuals (including themselves) to work under al Qaeda's direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda, (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda, and (iii) advice and assistance derived from scientific, technical and other specialized knowledge to further the illegal objectives of al Qaeda.
Id. ¶¶ 1-2. The two counts further alleged that Shah would provide "martial arts training and instruction for jihadists," while Sabir would provide "medical support to wounded jihadists," both defendants "knowing that al Qaeda had engaged and engages in terrorist activity" and "terrorism." Id.
After Shah pleaded guilty on April 4, 2007, to Count One of the indictment, trial against Sabir commenced on April 24. On May 21, 2007, the jury found Sabir guilty on both the conspiratorial and substantive charges against him, and, on November 28, 2007, the district court sentenced him principally to 300 months' incarceration. This appeal followed.
II. Discussion
A. 18 U.S.C. § 2339B Is Not Unconstitutionally Vague as Applied to Sabir's Case
In raising a constitutional challenge to his conviction, Sabir relies on the same argument he urged in the district court in unsuccessfully seeking dismissal of his indictment: that 18 U.S.C. § 2339B is void for vagueness and overbroad in defining the conduct proscribed. See United States v. Shah, 474 F.Supp.2d 492, 496-500 (S.D.N.Y.2007). Upon de novo review, see Arriaga v. Mukasey, 521 F.3d 219, 222 (2d Cir.2008), we conclude that the argument is without merit as § 2339B presents no overbreadth concerns and is not unconstitutionally vague as applied to Sabir's conduct.
1. The Statutory Framework
Preliminary to explaining our reasons for rejecting Sabir's vagueness challenge, we review the relevant statutory framework. Title 18 U.S.C. § 2339B(a)(1) imposes criminal liability on anyone who "knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so."[6] [135] The statute expressly conditions liability on a person having knowledge that the relevant organization is a "designated terrorist organization" or "has engaged or engages in terrorist activity" or "terrorism" consistent with various specified provisions of law. 18 U.S.C. § 2339B(a)(1); see Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2709, 177 L.Ed.2d 355 (2010) (holding that "knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities," is mental state required to prove violation of § 2339B).[7]
In identifying the "material support or resources" whose provision to a designated terrorist organization is proscribed, § 2339B references the definition of that term "in section 2339A (including the definitions of `training' and `expert advice or assistance' in that section)." Id. § 2339B(g)(4). Section 2339A states, in pertinent part:
(1) the term "material support or resources" means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials;
(2) the term "training" means instruction or teaching designed to impart a specific skill, as opposed to general knowledge; and
(3) the term "expert advice or assistance" means advice or assistance derived from scientific, technical or other specialized knowledge.
[136] Id. § 2339A(b).[8]
With respect to the provision of "personnel," § 2339B limits liability to persons who have "knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct the operation of that organization." Id. § 2339B(h). The statute states that "[i]ndividuals who act entirely independently of the foreign terrorist organization to advance its goals or objectives shall not be considered to be working under the foreign terrorist organization's direction and control." Id.; see Holder v. Humanitarian Law Project, 130 S.Ct. at 2728 (emphasizing that statute "avoid[s] any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups").
2. Sabir's Vagueness Claim
For a conviction to comport with the constitutional mandate of due process, see U.S. Const. amend. V, the penal statute at issue must define the criminal offense (1) "with sufficient definiteness that ordinary people can understand what conduct is prohibited" and (2) "in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); accord Holder v. Humanitarian Law Project, 130 S.Ct. at 2718; United States v. Rybicki, 354 F.3d 124, 129 (2d Cir.2003) (en banc). Sabir argues that his conviction violates both prongs of this void-for-vagueness doctrine because § 2339B's prohibitions against providing "personnel," "training," and "expert advice and assistance" to terrorist organizations are overbroad and afford insufficient notice to persons who may traduce those prohibitions and inadequate standards for authorities who must enforce them. He contends further that the statutory exception for "medicine" is too vague to have put him on notice that it did not encompass his consultative services as a physician.
a. Sabir Fails to Demonstrate Facial Vagueness or Overbreadth
Sabir contends that § 2339B is unconstitutionally vague both on its face and as applied to his case. In support of his facial challenge, Sabir relies primarily on the overbreadth doctrine. This confuses the issue. As the Supreme Court recently observed, vagueness and overbreadth are distinct concerns, the first implicating the Due Process Clause and the latter the First Amendment. See Holder v. Humanitarian Law Project, 130 S.Ct. at 2719. A statute whose application is clear is not rendered unconstitutionally vague because it proscribes expression protected by the First Amendment. Id. In any event, Sabir fails to state an overbreadth claim.
A law is unconstitutionally overbroad if it "punishes a substantial amount of protected free speech, judged in relation to [its] plainly legitimate sweep." Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). A finding of overbreadth invalidates all enforcement of a challenged law, unless it can be saved by a limiting construction. Id. at 119, 123 S.Ct. 2191. Mindful that such relief is "strong medicine," the law rigorously enforces the burden on the challenging party to demonstrate "substantial" infringement [137] of speech. United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis in original). Sabir's recitation of the applicable legal standards and his conclusory declaration that § 2339B is overbroad do not come close to carrying this burden.
As the Supreme Court stated in rejecting a First Amendment challenge to § 2339B, the statute leaves persons free to "say anything they wish on any topic," including terrorism. Holder v. Humanitarian Law Project, 130 S.Ct. at 2722-23. It does not prohibit independent advocacy of any kind. See id. at 2723, 2728. It does not prohibit or punish mere membership in or association with terrorist organizations. See id. at 2723, 2730. Thus, it does not seek
to suppress ideas or opinions in the form of `pure political speech.' Rather, [it] prohibit[s] `material support,' which most often does not take the form of speech at all. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations.
Id. at 2723. Such circumstances do not evidence overbreadth.
To the extent Sabir asserts that § 2339B is overbroad in limiting "a doctor's right to practice medicine," Appellant's Br. at 14-15, he cites no authority locating such a right within the Constitution, much less in the First Amendment. The Supreme Court has long held that "there is no right to practice medicine which is not subordinate to the police power of the states ... and also to the power of Congress to make laws necessary and proper" to the exercise of its constitutional authority. Lambert v. Yellowley, 272 U.S. 581, 596, 47 S.Ct. 210, 71 L.Ed. 422 (1926) (Brandeis, J.) (rejecting physician's claim that, despite powers conferred on Congress by Eighteenth Amendment, he held constitutional right to prescribe such medicines as he deemed best to effect patient's cure); see also Conn v. Gabbert, 526 U.S. 286, 291-92, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999) (observing that there is no due process right to practice one's profession free of any restraints and that due process is violated only by "complete prohibition of the right to engage in a calling"); Dent v. West Virginia, 129 U.S. 114, 122, 9 S.Ct. 231, 32 L.Ed. 623 (1889) ("[T]here is no arbitrary deprivation of [the right to practice medicine] where its exercise is not permitted because of a failure to comply with conditions imposed by the state for the protection of society."). With particular reference to the First Amendment, a plurality of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), rejected a First Amendment challenge to a state law requiring physicians to provide patients with specific information about certain medical risks, observing that "[t]o be sure, the physicians' First Amendment rights not to speak are implicated, ... but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State," id. at 884, 112 S.Ct. 2791 (plurality opinion). Because Sabir thus cannot claim a "right" to provide medical treatment for terrorists that is not "subordinate to ... the power of Congress to make laws necessary and proper" to the nation's defense, Lambert v. Yellowley, 272 U.S. at 596, 47 S.Ct. 210; see U.S. Const. art. I, § 8, he cannot mount a claim that § 2339B is unconstitutionally overbroad.
Nor can Sabir demonstrate overbreadth by faulting § 2339B for not requiring proof of his "specific intent to further ... terrorist activities." Appellant's Br. at 24; see Holder v. Humanitarian Law Project, 130 S.Ct. at 2718 (construing § 2339B not to require proof of such intent). The argument [138] is grounded not in the First Amendment but in the Fifth, specifically, in the due process requirement that any conviction be supported by evidence of personal guilt. See Scales v. United States, 367 U.S. 203, 224-25, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). Such a due process concern can arise when criminal liability is premised on mere membership in an organization. See id. at 205-06, 224-28, 81 S.Ct. 1469 (rejecting Fifth Amendment challenge to Smith Act, 18 U.S.C. § 2385 (prohibiting membership in organization advocating overthrow of United States government by force or violence), because conviction required proof of knowing and active membership in organization and intent to contribute to success of specifically illegal activities).
No such concern arises with respect to § 2339B, however, because, as we have already observed, that statute does not prohibit simple membership in a terrorist organization. Rather, the statute prohibits the knowing provision of material support to a known terrorist organization. Proof of such provision (whether actual, attempted, or conspiratorial) together with the dual knowledge elements of the statute is sufficient to satisfy the personal guilt requirement of due process.
In sum, Sabir fails to state a claim — much less demonstrate — that § 2339B is either facially vague in violation of due process or overbroad in violation of the First Amendment.
b. Sabir Fails To Demonstrate that § 2339B Is Unconstitutionally Vague as Applied to his Case
(1) Sabir's Vagueness Claim Is Properly Reviewed as Applied
In the absence of First Amendment concerns, courts generally view vagueness challenges to a statute as applied to the defendant's case. See Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ("First Amendment freedoms are not infringed by [the statute at issue], so the vagueness claim must be evaluated as the statute is applied."); accord United States v. Williams, 553 U.S. at 304, 128 S.Ct. 1830; United States v. Rybicki, 354 F.3d at 129-30 (collecting cases).[9] This preference for as-applied review is "`[e]mbedded in the traditional rules governing constitutional adjudication,'" notably, in "`the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.'" Parker v. Levy, 417 U.S. 733, 759, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). That principle, grounded in the separation of powers, serves the jurisprudential maxim that "as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid," a court's "plain duty is to adopt that which will save the Act" enacted by Congress. Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927) (Holmes, J.); see Rust v. Sullivan, 500 U.S. 173, 190, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (noting courts' "categorical" duty to seek "every reasonable construction ... to save a statute from unconstitutionality" (emphasis in original; internal quotation marks omitted)).
To the extent the Supreme Court has suggested that a facial challenge may be maintained against a statute that does not reach conduct protected by the First [139] Amendment, the identified test is, in fact, only a variation on as-applied analysis, requiring the defendant to show "that the law is impermissibly vague in all of its applications." Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); accord United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (observing that defendant mounting facial challenge bears heavy burden because he "must establish that no set of circumstances exists under which the Act would be valid"). In practice, the Hoffman Estates/Salerno rule warrants hypothetical analysis of "all applications" only in cases of pre-enforcement facial vagueness challenges. See, e.g., Richmond Boro Gun Club, Inc. v. City of New York, 97 F.3d 681, 684-86 (2d Cir.1996). Where, as here, a defendant has already been convicted for specific conduct under the challenged law, Hoffman Estates itself instructs a court confronting a facial challenge to "examine the complainant's conduct before analyzing other hypothetical applications." Village of Hoffman Estates v. Flipside Hoffman Estates, Inc., 455 U.S. at 495, 102 S.Ct. 1186.
Accordingly, our review of Sabir's vagueness challenge focuses on the application of § 2339B to the facts of his case.[10]
(2) The Standards for As-Applied Review
On as-applied review of the "notice" requirement of due process, courts ask whether the challenged "statute, as written, provides notice sufficient to alert `ordinary people [as to] what conduct is prohibited.'" Arriaga v. Mukasey, 521 F.3d at 224 (quoting Kolender v. Lawson, 461 U.S. at 357, 103 S.Ct. 1855). This test does not demand "`meticulous specificity'" in the identification of proscribed conduct. Id. (quoting Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (noting that such standard would come at cost of "flexibility and reasonable breadth" (internal quotation marks omitted))). Rather, it requires only that the statutory language "`conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" Id. (quoting Jordan v. DeGeorge, 341 U.S. 223, 231-32, 71 S.Ct. 703, 95 L.Ed. 886 (1951)).
Similarly, with respect to the due process concern of arbitrary enforcement, a statute certainly will not be deemed unconstitutionally vague if "`as a general matter,'" it "`provides sufficiently clear standards to eliminate'" such a risk. Id. (quoting Farrell v. Burke, 449 F.3d 470, 494 (2d Cir.2006)). But even "`in the absence of such standards,'" a statute will survive an as-applied vagueness challenge if "`the conduct at issue falls within the core of the statute's prohibition, so that the enforcement before the court was not the result of the unfettered latitude that law enforcement officers and factfinders [140] might have in other, hypothetical applications of the statute.'" Id. (quoting Farrell v. Burke, 449 F.3d at 494).
Applying these principles to this case, we identify no unconstitutional vagueness in § 2339B as applied to Sabir's case.
(3) Sabir's Vagueness Challenge to the Statutory Proscriptions Fails
Sabir contends that the statutory terms at issue — "training," "personnel," and "expert assistance and advice" — are inherently too vague to provide the notice and direction required by due process. Such a general complaint is now foreclosed by Holder v. Humanitarian Law Project. The Supreme Court there observed that these terms did not require the sort of "untethered, subjective judgments" that had compelled it to strike down statutes tying criminal culpability to vague concepts such as "annoying" or "indecent" conduct. 130 S.Ct. at 2720. The Court identified further protection against vagueness in Congress's addition of "narrowing definitions" for these terms, which "increased the[ir] clarity," as well as in the knowledge element required for a § 2339B conviction. Id.
Sabir's more specific challenges to the application of these terms to the particular facts of his case are equally meritless.
To the extent Sabir was convicted of conspiring with Shah to provide "training" — i.e., "instruction or teaching designed to impart a specific skill, as opposed to general knowledge," 18 U.S.C. § 2339A(b)(2) — to a known terrorist organization, a person of "ordinary intelligence," Grayned v. City of Rockford, 408 U.S. at 108, 92 S.Ct. 2294, would require nothing more than "common understanding," Jordan v. De George, 341 U.S. at 232, 71 S.Ct. 703, to recognize that this prohibition plainly encompassed "martial arts training and instruction for jihadists" serving al Qaeda, Indictment ¶¶ 1-2. In Holder v. Humanitarian Law Project, the Supreme Court held that "[a] person of ordinary intelligence would understand that instruction on resolving disputes through international law falls within the statute's definition of `training' because it imparts a `specific skill,' not `general knowledge.'" 130 S.Ct. at 2720. That conclusion is even more apparent here, where the trial evidence showed that the martial arts training Shah proposed to provide was specific and deadly and hardly a matter of general knowledge. See, e.g., GX 814T at 3-4 (recording Shah's explanation of how to kill a man by ripping out his throat). Moreover, al Qaeda's history for using murderous terrorism in an attempt to intimidate civilian populations and governments, see 18 U.S.C. § 2331 (defining terrorism) — particularly American civilians and the United States government — is so well known that no reasonable person could doubt that training al Qaeda members in martial arts is precisely the sort of material support proscribed by § 2339B, see Arriaga v. Mukasey, 521 F.3d at 224; United States v. Rybicki, 354 F.3d at 129.
We likewise reject Sabir's vagueness challenge to the term "personnel" as applied to his case. The provision of personnel is prohibited by § 2339B only when an individual knowingly provides, attempts to provide, or conspires to provide a foreign terrorist organization with one or more individuals, including himself, "to work under that terrorist organization's direction or control or to organize, manage, supervise, or otherwise direct [its] operation." 18 U.S.C. § 2339B(h). Quite apart from Shah's offer to act as a martial arts trainer for al Qaeda in that organization's pursuit of jihad, Sabir's offer to serve as an on-call doctor for the organization, standing ready to treat wounded mujahideen in Saudi Arabia, falls squarely within the core of [141] this prohibition, defeating any suggestion either that he lacked notice that his conduct was unlawful or that the statute was enforced arbitrarily with respect to him. See Farrell v. Burke, 449 F.3d at 494; United States v. Rybicki, 354 F.3d at 129.
In an effort to avoid this conclusion, Sabir argues that his offer of life-saving medical treatment was simply consistent with his ethical obligations as a physician and not reflective of any provision of support for a terrorist organization. The record does not support this characterization. Sabir was not prosecuted for performing routine duties as a hospital emergency room physician, treating admitted persons who coincidentally happened to be al Qaeda members. Sabir was prosecuted for offering to work for al Qaeda as its on-call doctor, available to treat wounded mujahideen who could not be brought to a hospital precisely because they would likely have been arrested for terrorist activities. See GX 906T at 49, 69. In offering this support for al Qaeda, Sabir did not simply honor his Hippocratic oath. He swore a further oath of allegiance to al Qaeda, making clear that his treatment of wounded mujahideen would be provided not as an independent physician but as "one of the soldiers of Islam," duty bound to obey al Qaeda's leaders, including Osama bin Laden, and to protect his fellow "brothers on the path of Jihad" and "on the path of al Qaeda." Id. at 114-16. No reasonable person with a common understanding of al Qaeda's murderous objectives could doubt that such material support fell squarely within the prohibitions of § 2339B. See Holder v. Humanitarian Law Project, 130 S.Ct. at 2721 (holding that statute limiting "personnel" to persons working under terrorist organization's direction or control, rather than independently, adequately avoided vagueness).
Nor is the statute's prohibition on the provision of "expert assistance and advice" to terrorist organizations unconstitutionally vague as applied to Sabir. As the district court correctly observed, the medical expertise of a licensed physician plainly constitutes "scientific, technical or other specialized knowledge" under 18 U.S.C. § 2339A.[11]See United States v. Shah, 474 F.Supp.2d at 497 n. 5. Indeed, such expertise requires more specialized knowledge than the instruction in relief application that the Supreme Court held "comfortably" to fall within the scope of "expert advice or assistance" in Holder v. Humanitarian Law Project, 130 S.Ct. at 2720. Any person of ordinary intelligence would readily recognize that such expert assistance (well outside the scope of one's regular hospital duties), with the stated object of permitting al Qaeda fighters to advance "on the path of Jihad" is exactly the sort of material support proscribed by § 2339B. See Arriaga v. Mukasey, 521 F.3d at 224; United States v. Rybicki, 354 F.3d at 129; cf. Watson v. Geren, 569 F.3d 115, 119, 134 (2d Cir.2009) (upholding conscientious objector claim of doctor who refused to serve in United States Army based on belief that treating wounded soldiers would be functional equivalent of weaponizing human beings).
Further, because Sabir's proffered support, whether viewed as training, personnel, or expert assistance, fell so squarely within the core of § 2339B's prohibition, the application of that law to his conduct cannot have been the product of arbitrary law enforcement. See Farrell v. Burke, 449 F.3d at 494.
[142] (4) The "Medicine" Exception Does Not Render § 2339B Unconstitutionally Vague as Applied to Sabir
Sabir submits that, even if the training, personnel, and expert assistance provisions of the material support statute are not unconstitutionally vague as applied to his case, they are rendered so by vagueness in the statutory exemption of "medicine" from the definition of "material support." 18 U.S.C. § 2339A(b)(1); see Oral Arg. Tr. at 33 (Jan. 17, 2007) ("How is a person of ordinary intelligence supposed to determine we are talking about medicine, only medicine, but not the provision of medical treatment by a doctor?").
The task of interpreting a statute necessarily begins with its language. See Bailey v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Awadallah, 349 F.3d 42, 51 (2d Cir.2003). Considered in isolation, the word "medicine" can convey various meanings, including both "a substance or preparation used in treating disease"[12] and "the science and art of dealing with the maintenance of health and the prevention, alleviation, or cure of disease." Webster's 3d New Int'l Dictionary 1402 (2002); see also 9 Oxford English Dictionary 549 (2d ed. 1989) (defining "medicine" as both "[a]ny substance or preparation used in the treatment of disease" and "[t]hat department of knowledge and practice which is concerned with the cure, alleviation, and prevention of disease in human beings, and with the restoration and preservation of health"). But we do not look at statutory language in isolation to determine if it provides adequate notice of conduct proscribed or permitted. Rather, we consider language in context, see Bailey v. United States, 516 U.S. at 145, 116 S.Ct. 501; see also Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), and, where appropriate, with the benefit of canons of statutory construction, see United States v. Dauray, 215 F.3d 257, 262 (2d Cir.2000), and legislative history, see Barenblatt v. United States, 360 U.S. 109, 117, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) (relying on "legislative gloss" to reject vagueness challenge to expansive construction of rule underlying conviction for contempt of Congress); United States v. Witkovich, 353 U.S. 194, 199, 77 S.Ct. 779, 1 L.Ed.2d 765 (1957) (observing that restrictive meaning of language may be indicated by, inter alia, "persuasive gloss of legislative history"); United States v. Harriss, 347 U.S. 612, 620, 74 S.Ct. 808, 98 L.Ed. 989 (1954) (relying in part on legislative history to construe statute to avoid vagueness challenge); United States v. Nadi, 996 F.2d 548, 550 (2d Cir.1993) (rejecting vagueness challenge where "common sense interpretation of [statutory language at issue] is confirmed by the statute's legislative history").
The relevant context here starts with § 2339A(b)(1), which in cataloguing an expansive array of tangibles and intangibles that can constitute "material support or resources" notes two exceptions: "medicine or religious materials." Relevant context also extends to § 2339B(a)(1), the provision making it a crime to "provide" material support. In the context of a statute focused on things that might be provided to support a terrorist organization, "medicine" is reasonably understood as a substance or preparation rather than as an art or science. "Providing medicine" is how common usage refers to the prescription of a substance or preparation to treat a patient. See, e.g., Grieveson v. [143] Anderson, 538 F.3d 763, 774 (7th Cir.2008) (addressing challenge to practice that allegedly "provide[d] inmates with quantities of medicine" that could allow them to overdose); El Badrawi v. Dep't of Homeland Sec., 258 F.R.D. 198, 202 (D.Conn. 2009) (addressing challenge to alleged failure to "provide" inmate with medicine); Celia W. Dugger, Nigeria: Help for Fighting Malaria, N.Y. Times, Oct. 24, 2009, at A8 (discussing organization's announcement to "provide enough medicine for 56 million malaria treatments"); Gardiner Harris, Institute of Medicine Calls for Doctors to Stop Taking Gifts from Drug Makers, N.Y. Times, Apr. 29, 2009, at A17 (discussing recommendation that doctors stop giving free drug samples to patients "unless the patient was poor and the doctor could continue to provide the medicine for little or no cost"). By contrast, "practicing medicine" is how common usage describes Sabir's proposed activity, i.e., employing the art or science of medicine to treat a patient. See, e.g., Smith v. Doe, 538 U.S. 84, 112, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (Stevens, J., dissenting and concurring in the judgment) (noting that incompetent doctor "may not be permitted to practice medicine"); Planned Parenthood of Se. Penn. v. Casey, 505 U.S. at 884 (plurality opinion) (noting "practice of medicine" was "subject to reasonable licensing and regulation"); Harris v. Mills, 572 F.3d 66, 68-69 (2d Cir.2009) (affirming dismissal of lawsuit arising from "revocation of [plaintiff's] license to practice medicine"). Where the word "provide" is used to describe the latter activity, reference ordinarily is made to "medical care," or "medical treatment," rather than to "medicine" alone. See, e.g., Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 434, 124 S.Ct. 899, 157 L.Ed.2d 855 (2004) (noting requirement of Medicaid statute that state "provide various medical services to eligible children"); Washington v. Harper, 494 U.S. 210, 225-26, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (describing state's interest with respect to mentally ill prison inmate "in providing him with medical treatment for his illness").
Moreover, Congress's intent to have the medicine exception in § 2339A(b)(1) reach no further than substances or preparations that might be provided to a terrorist organization is stated with particular clarity in the statute's legislative history. The House Conference Report accompanying the original legislation states that the word "`[m]edicine' should be understood to be limited to the medicine itself, and does not include the vast array of medical supplies." H.R. Conf. Rep. 104-518, at 114 (1996), reprinted in 1996 U.S.C.C.A.N. 944, 947. In drawing this distinction between "the medicine itself" and "medical supplies," Congress served clear notice that the medicine exception does not reach "the outer limits of its definitional possibilities," Dolan v. U.S. Postal Serv., 546 U.S. 481, 486, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006), but is confined to medical substances and preparations.
In short, context, common usage, and legislative history combine to serve on both individuals and law enforcement officers the notice required by due process that the medicine exception identified in § 2339A(b)(1) shields only those who provide substances qualifying as medicine to terrorist organizations. Other medical support, such as volunteering to serve as an on-call doctor for a terrorist organization, constitutes a provision of personnel and/or scientific assistance proscribed by law. See 18 U.S.C. §§ 2339A(b)(1), (3), 2339B(a)(1).
Accordingly, we identify no merit in Sabir's claim that § 2339B is unconstitutionally vague as applied to his case, and we decline to reverse his conviction as violative [144] of the notice requirement of due process.
B. The Trial Evidence Was Sufficient To Support Sabir's Conviction
Sabir contends that the evidence was insufficient to support his conviction. The rule of constitutional sufficiency, derived from the Due Process Clause, instructs that a conviction cannot be obtained "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime ... charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); accord United States v. Aguilar, 585 F.3d 652, 656 (2d Cir.2009). A defendant raising a sufficiency challenge bears a heavy burden because a reviewing court must consider the totality of the evidence in the light most favorable to the prosecution and uphold the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); accord United States v. Aguilar, 585 F.3d at 656. Applying these principles to Sabir's case, we reject his sufficiency challenge as without merit.
1. Count One: Conspiracy
In challenging his conviction for conspiracy to provide material support to a known terrorist organization, Sabir contends principally that the government failed to prove the existence of an agreement to violate § 2339B. We are not persuaded. To convict a defendant of conspiracy, the government must prove beyond a reasonable doubt "both the existence of the conspiracy alleged and the defendant's membership in it." United States v. Chavez, 549 F.3d 119, 125 (2d Cir.2008); see also id. ("The essence of any conspiracy is, of course, agreement, and in order to establish a conspiracy, the government must show that two or more persons entered into a joint enterprise with consciousness of its general nature and extent."). The trial evidence in this case easily satisfied these elements.
Testimonial evidence established that Shah and Sabir had long voiced interest in supporting jihad and mujahideen. See, e.g., Trial Tr. at 193-96 (reporting Shah preaching jihad and support for Osama bin Laden in late 1990s at Poughkeepsie mosque); id. at 287 (recounting Sabir's 2003 conversation with mujahideen fighter inquiring how Sabir could help with jihad). It is against this background that a jury would listen to the recorded conversation of March 4, 2004, in which Shah proposed to a federal undercover agent that Shah and Sabir — close friends for 25 years — join al Qaeda as "a pair, me and a doctor," to support that organization's pursuit of jihad. GX 902T at 23. More significantly, during the May 20, 2005 meeting at which Shah and Sabir formally swore allegiance and promised support to al Qaeda, Shah by providing al Qaeda members with martial arts training and Sabir by treating wounded al Qaeda members in Riyadh, see GX 906T at 106-16, Sabir acknowledged that he and Shah had talked "for a long time" about supporting jihad, id. at 110. Sabir plainly viewed his and Shah's actions at the May 20 meeting as part of their common agreement. When Agent Soufan observed that neither man was obligated to support al Qaeda, Sabir responded that to fail to do so would be to "abandon[] my brother (Shah)" with respect to "the very thing we agreed upon... in the first place." Id.
Accordingly, we identify no merit in Sabir's sufficiency challenge to his conviction for conspiracy to provide material support to a known terrorist organization.
[145] 2. Count Two: Attempt
Equally meritless is Sabir's argument that the evidence was insufficient to support his conviction for attempting to provide material support to a known foreign terrorist organization. A conviction for attempt requires proof that a defendant (a) had the intent to commit the object crime and (b) engaged in conduct amounting to a substantial step towards its commission. See, e.g., United States v. Yousef, 327 F.3d 56, 134 (2d Cir.2003).
a. Intent
Sabir does not challenge the sufficiency of the evidence establishing his intent to provide material support to a foreign terrorist organization. Nor could he.[13] In addition to Sabir's statements already quoted in this opinion, see supra at [132, 140, 143-44], which constitute powerful evidence of the requisite intent, the following transcript excerpts from the May 20, 1995 meeting further support this element.
After Sabir advised that his work in a Riyadh military hospital would put him in Saudi Arabia for two years, Agent Soufan stated that Sabir could help al Qaeda "[a]s a doctor ... as a Mujahid." GX 906T at 19. Sabir not only signaled assent, he emphasized a need to "feel sure within myself that if I make a certain move, that move is going to be effective." Id. To provide that assurance, Agent Soufan clarified how a doctor could be helpful to al Qaeda's pursuit of jihad. He stated that Osama bin Laden himself had told Soufan that "we need doctors if they are trusted." Id. at 32. Soufan explained that "brothers" sometimes get "hurt with a bullet" during "training" and in "operation[s]." Id. at 48-49. Because they cannot "go to a hospital," the organization needs "doctor brothers ... to protect them ... [to] keep the other brothers healthy." Id. at 49.[14] Sabir readily agreed to provide that support, stating, "Let me give you another number," whereupon he supplied his personal mobile telephone number, which, with Soufan's assistance, he rendered into code. Id. at 48-50.[15] Sabir understood [146] that the purpose of the code was to conceal the fact that he was working for al Qaeda: Persons who learn the number "may not... understand [its] significance.... They may not even recognize it as a telephone number." Id. at 51. He also understood that the coded number would be provided to a trusted al Qaeda operative, who would identify himself as "Mus'ab" when contacting Sabir on behalf of a wounded jihadist. Sabir responded to this information, "God willing." Id. at 87 (italics in transcript reflect translation from Arabic to English).
Still later in the conversation, when Agent Soufan emphasized to Sabir that he could decline to treat mujahideen if he was not committed to al Qaeda's goals, Sabir made plain that he had no reservations about using his medical expertise to support al Qaeda: "I will [do what]ever I can do for the sake of God.... This is my job ... the best I can do is to benefit those people ... who are striving in the way of Allah.... [T]hese are the ones that are most deserving of the help." Id. at 66. When Soufan further stated that it was difficult to take mujahideen to a hospital for treatment, Sabir emphasized that his military identification allowed him to travel freely around Saudi Arabia, thereby suggesting that he could go to the injured person. "[I]t's almost like carte blanche.... It's like you can go where you want to go with this.... And anybody that sees it, they don't touch you." Id. at 67. Later, Soufan sought to confirm this understanding, stating "[t]hat ID will be very good for you ... because you can definitely help mujahideen now," to which Sabir responded, "Yes, yes." Id. at 69.
With evidence of his intent thus clearly established, Sabir focuses his sufficiency challenge on the "substantial step" element of attempt.
b. Substantial Step
(1) The "Substantial Step" Requirement Expands Attempt Beyond the Common Law
The "substantial step" requirement for attempt derives from the American Law Institute's Model Penal Code, which in the early 1960s sought to "widen the ambit of attempt liability." United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983) (Friendly, J.) (citing Model Penal Code § 5.01(1)(c) (Proposed Official Draft 1962)), overruled on other grounds by National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 254-55, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). Previously, at common law, attempt had been limited to conduct close to the completion of the intended crime. See generally People v. Werblow, 241 N.Y. 55, 69, 148 N.E. 786, 789 (1925) (Cardozo, J.) (holding that, to constitute attempt, suspect's conduct must "carry the project forward within dangerous proximity to the criminal end to be attained"); Commonwealth v. Peaslee, 177 Mass. 267, 272, 59 N.E. 55, 56 (1901) (Holmes, J.) (recognizing that "some preparations may amount to an attempt" when they come "very near to the accomplishment of the act"). By requiring proof only of a "substantial step" in furtherance of the intended crime, the Model Code ushered in a broader view of attempt.
This court effectively adopted the Model Code's formulation of attempt in United States v. Stallworth, 543 F.2d 1038, 1040-41 (2d Cir.1976). The Stallworth defendants were arrested when their planned armed robbery was "in progress" and "[a]ll that stood between [them] and success was a group of F.B.I. agents and police officers." Id. at 1041. As such evidence would have demonstrated attempt even under the common law, the significance of the case rests not on its facts but on the court's approving citation to the Model [147] Code's identification of a range of conduct — not always proximate to the desired criminal end — that might nevertheless constitute a substantial step when "strongly corroborative of the firmness of the defendant's criminal intent." Id. at 1040 & n. 5; see also id. at 1041 (observing that application of Model Code "emphasizes the importance of a rule [of attempt] encouraging early police intervention where a suspect is clearly bent on the commission of crime"). Accord United States v. Crowley, 318 F.3d 401, 408 (2d Cir.2003); United States v. Ivic, 700 F.2d at 66. Thus, a "substantial step" must be "something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime." United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980). It is conduct "`planned to culminate'" in the commission of the substantive crime being attempted. United States v. Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(c) (Proposed Official Draft 1962)).[16]
(2) Identifying a Substantial Step by Reference to the Crime Being Attempted
While the parameters of the substantial step requirement are simply stated, they do not always provide bright lines for application. This is not surprising; the identification of a substantial step, like the identification of attempt itself, is necessarily a matter "`of degree,'" United States v. Coplon, 185 F.2d 629, 633 (2d Cir.1950) (L. Hand, J.) (quoting Commonwealth v. Peaslee, 177 Mass. at 272, 59 N.E. at 56), that can vary depending on "`the particular facts of each case'" viewed in light of the crime charged, United States v. Ivic, 700 F.2d at 66 (quoting United States v. Manley, 632 F.2d at 988); accord United States v. Crowley, 318 F.3d at 408. An act that may constitute a substantial step towards the commission of one crime may not constitute such a step with respect to a different crime. See generally United States v. Ivic, 700 F.2d at 66 (observing that substantial step requirement serves to ensure that person is convicted for attempt only when actions manifest "firm disposition" to commit charged crime). Thus, substantial-step analysis necessarily begins with a proper understanding of the crime being attempted.
For example, in United States v. Delvecchio, 816 F.2d 859 (2d Cir.1987), a case frequently cited as illustrative of actions insufficient to demonstrate attempt, the substantive crime at issue was possession of a large quantity of heroin. We held that a substantial step to commit that crime was not established by proof that defendants had met with suppliers, agreed on terms, and provided their beeper numbers. Such evidence, at most, established a "verbal agreement," which, "without more, is insufficient as a matter of law to support an attempt[ed possession] conviction." Id. at 862. In so concluding, we noted that what was missing was any act to effect possession, such as acquisition, or attempted acquisition, of the purchase money, or travel to the agreed-on purchase site. See id.
The crime here at issue, however, is of a quite different sort. Sabir was charged with attempting to provide material support for terrorism. Whereas an attempt to possess focuses on a defendant's efforts [148] to acquire, an attempt to provide focuses on his efforts to supply, a distinction that necessarily informs an assessment of what conduct will manifest a substantial step towards the charged objective. Thus, while an agreement to purchase drugs from a supplier is not a substantial step sufficient to convict for attempted possession, see id. at 862, such an agreement to acquire might constitute a substantial step when the crime at issue is attempted distribution, see United States v. Rosa, 11 F.3d 315, 340 (2d Cir.1993) (holding evidence insufficient to prove attempted distribution where defendant "did not produce any heroin for the proposed sale ..., and there was no evidence that [he] ever entered into an agreement with a supplier or made inquiry of a supplier to obtain heroin for the proposed sale").
Further important to a substantial-step assessment is an understanding of the underlying conduct proscribed by the crime being attempted. The conduct here at issue, material support to a foreign terrorist organization, is different from drug trafficking and any number of activities (e.g., murder, robbery, fraud) that are criminally proscribed because they are inherently harmful. The material support statute criminalizes a range of conduct that may not be harmful in itself but that may assist, even indirectly, organizations committed to pursuing acts of devastating harm. Thus, as the Supreme Court recently observed, the very focus of the material support statute is "preventative" in that it "criminalizes not terrorist attacks themselves, but aid that makes the attacks more likely to occur." Holder v. Humanitarian Law Project, 130 S.Ct. at 2728. Accordingly, while a substantial step to commit a robbery must be conduct planned clearly to culminate in that particular harm, a substantial step towards the provision of material support need not be planned to culminate in actual terrorist harm, but only in support — even benign support — for an organization committed to such harm. See generally id. at 2724 (discussing Congress's finding that designated foreign terrorist organizations "`are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct'" (quoting AEDPA § 301(a)(7), 110 Stat. at 1247) (emphasis in Humanitarian Law Project).)
(3) The Evidence Manifests a Substantial Step Towards the Provision of Material Support in the Form of Personnel
The indictment charged Sabir with attempting to supply al Qaeda with material support in three of the forms proscribed in 18 U.S.C. § 2339A(b)(1): "personnel, training, and expert advice and assistance." Indictment ¶ 2.[17] We conclude [149] that the evidence was sufficient to support Sabir's conviction for attempting to provide material support in the form of personnel — specifically, himself — to work for al Qaeda as a doctor on-call to treat wounded jihadists in Saudi Arabia. See United States v. McCourty, 562 F.3d 458, 471 (2d Cir.2009) (recognizing that when theories of liability are pleaded in conjunctive, defendant may be found guilty on proof of any one theory); United States v. Masotto, 73 F.3d 1233, 1241 (2d Cir.1996) (holding evidence sufficient to affirm if reasonable jury could have convicted on any theory charged).[18] By coming to meet with a purported al Qaeda member on May 20, 1995; by swearing an oath of allegiance to al Qaeda; by promising to be on call in Saudi Arabia to treat wounded al Qaeda members; and by providing private and work contact numbers for al Qaeda members to reach him in Saudi Arabia whenever they needed treatment, Sabir engaged in conduct planned to culminate in his supplying al Qaeda with personnel, thereby satisfying the substantial step requirement.[19]
(4) The Dissent's Mistaken View of the Substantial Step Requirement
(a) Sabir Did More Than Express a Radical Idea When He Produced Himself as a Doctor Sworn To Work Under the Direction of al Qaeda
In dissent, Chief Judge Dearie asserts that by upholding Sabir's attempt conviction on the record evidence, we approve punishing a defendant for radical thoughts rather than criminal deeds. See Dissenting Op., post at [181-82]. We do no such thing. Sabir's words and actions on May 20, 1995, did more than manifest radical sympathies. See United States v. Crowley, 318 F.3d at 408 (observing that substantial step requirement ensures that attempt does not punish persons "for their thoughts alone"). By attending the May 20, 2005 meeting and committing to work under al-Qaeda's direction and control as an on-call doctor, Sabir physically produced the very personnel to be provided as material support for the terrorist organization: himself. This supplying of the proscribed object is precisely the sort of substantial [150] step that was missing in United States v. Rosa, 11 F.3d at 340 (holding evidence insufficient to support conviction for attempt to distribute heroin in absence of proof that defendant ever "produce[d] any heroin" or reached agreement with heroin supplier to acquire heroin for planned distribution).
Viewed in this context, Sabir's oath of allegiance to al Qaeda evidenced more than "mere membership" in that terrorist organization. Holder v. Humanitarian Law Project, 130 S.Ct. at 2719 (holding that § 2339B does not criminalize "mere membership" in designated terrorist organization; it prohibits providing "material support" to that group). Sabir's purpose in swearing bayat was to formalize his promise to work as a doctor under the organization's direction and control.[20] That is most certainly evidence of a crime: the charged crime of attempting to provide material support to terrorism in the form of personnel. See 18 U.S.C. § 2339B(h) (clarifying that what is proscribed is the provision of personnel "to work under" the "direction or control" of a terrorist organization). Further, by providing his contact numbers, Sabir took a step essential to provide al Qaeda with personnel in the form of an on-call doctor: he provided the means by which mujahideen in Riyadh could reach that doctor at any time, day or night, that they needed emergency treatment. From the totality of these facts, a reasonable jury could have concluded that on May 20, 2005, Sabir crossed the line from simply professing radical beliefs or joining a radical organization to attempting a crime, specifically, Sabir's provision of himself as personnel to work under the direction and control of al Qaeda.
(b) The Provision of Personnel and the Subsequent Provision of Expert Services by Such Personnel Are Distinct Forms of Material Support
Chief Judge Dearie submits that the time and distance to be traveled by Sabir before he actually provided any medical treatment to al Qaeda warriors was too great to permit a jury to find that his actions constituted a substantial step towards commission of the charged crime. See Dissenting Op., post at [178, 179-80]. This mistakenly equates the provision of personnel to a terrorist organization with the subsequent provision of services by that personnel, a misapprehension that pervades the dissent and informs its conclusion that Sabir stands guilty "for an offense that he did not commit." Id. at [183]. While it may frequently be the case that a defendant who intends to provide a terrorist organization with personnel also intends for the personnel to provide the organization with services, § 2339A(b)(1) specifically recognizes "personnel" and "services" — particularly services in the form of "expert advice and assistance," such as medical treatment — as distinct types of material support.[21] Thus, even if the provision (or attempted provision) of these two forms of material support may be simultaneous in some cases, it may not be in others. For that reason, evidence [151] sufficient to demonstrate a substantial step towards the provision of personnel may not always be sufficient to demonstrate a substantial step towards the personnel's provision of services. Whether or not Sabir's May 20, 2005 actions were a substantial step in the provision of expert medical services to terrorists, we conclude that they were a substantial step in the provision of Sabir himself as personnel.
To illustrate, assume that, instead of offering himself as an on-call doctor to al Qaeda, Sabir had recruited a doctor who was, in all respects, identically situated to himself. Assume further that Sabir then brought that doctor to a meeting in New York where the doctor swore allegiance to al Qaeda, promised a supposed al Qaeda member that he would work as an on-call doctor for the organization, and gave the member contact numbers so that wounded jihadists in Saudi Arabia could reach the doctor when necessary. Even the dissent concedes that such evidence would be sufficient to prove Sabir "guilty of attempting to provide personnel," although the recruited doctor would not provide actual medical services until some time in the future and after he traveled from New York to Saudi Arabia. Dissenting Op., post at [179]. Because Sabir would be guilty of attempting to provide personnel in the circumstances hypothesized, we think it necessarily follows that he is equally guilty on the record facts. He is guilty of attempting to provide himself as personnel to al Qaeda on May 20, 2005, even if he is not yet guilty of attempting to provide medical services to that organization.
In concluding otherwise, Chief Judge Dearie submits that the recruiter in the hypothetical "has done something. He has provided a service to the organization." Id. By contrast, he submits that Sabir "has done nothing more than conspire." Id. at 179.[22] We disagree. Section 2339(B) criminalizes providing personnel through self-recruitment (i.e., volunteering oneself to serve under the direction of a terrorist organization) no less than through recruitment (securing another person to serve under such direction).[23] By volunteering himself as an on-call doctor for al Qaeda, Sabir rendered, or attempted to render, that organization as much of a service in producing personnel as the recruiter who solicited a doctor for that purpose. To hold otherwise would be to apply a different standard of sufficiency to the provision of personnel depending on whether the person being provided is oneself or another, a distinction for which there is no support in a statute that equally proscribes the provision of oneself or another to work under the direction of a terrorist organization.
Chief Judge Dearie suggests that a constitutional concern arises when a defendant is prosecuted for providing himself rather than a third party as personnel because in the former circumstance a defendant "`could be punished for, in effect, providing [himself] to speak out in support of the program or principles of a foreign [152] terrorist organization, an activity protected by the First Amendment.'" Dissenting Op., post at [182 n.10] (quoting United States v. Stewart, 590 F.3d 93, 118 (2d Cir.2009) (dictum)). The Supreme Court, however, has now held otherwise, explaining that the material support statute leaves persons free to engage in "independent advocacy," proscribing only conduct "directed to, coordinated with, or controlled by foreign terrorist groups." Holder v. Humanitarian Law Project, 130 S.Ct. at 2728; see id. at 2721 (observing that § 2339B "makes clear that `personnel' does not cover independent advocacy" (emphasis in original)).
Here, there is no question that Sabir was providing himself to work under the direction and control of al Qaeda — the jury heard him solemnly swear to do so. By dismissing this evidence as "insubstantial" and "immaterial," and demanding proof of a greater level of "engagement, activity or compliance" to support conviction, Dissenting Op., post at [183], our dissenting colleague persists in conflating the provision of personnel with the provision of services by that personnel. While the latter form of material support may require proof of particular engagement or activity, the former focuses on submission to the direction and control of a terrorist organization.[24]
The importance of the distinction we draw between the evidence necessary to prove a defendant's provision of personnel to a terrorist organization and that personnel's subsequent provision of services to the organization reaches beyond this case. Experience teaches that terrorist organizations frequently recruit persons into their ranks at times and places removed from any service they might render. Thus, someone who supplies suicide bombers or pilots or chemists or doctors or simple foot soldiers to a terrorist organization may reasonably be understood to provide the organization with material support in the form of personnel when the recruited individuals pledge to work under the direction of the organization, even though they may not be called upon to render any particular service for months, years, or at all. By the same reasoning, when a person supplies himself as the bomber or pilot or doctor sought by the terrorist organization, he provides — or certainly attempts to provide — material support in the form of personnel as soon as he pledges to work under the direction of the organization. In [153] both circumstances, the organization acquires an important asset, reserve personnel, which can facilitate its planning of future terrorism objectives. See generally Holder v. Humanitarian Law Project, 130 S.Ct. at 2725 (recognizing that material support not directly furthering terrorism can be valuable in "free[ing] up other resources within the organization that may be put to violent ends"). Thus, even if Sabir needed to return to Riyadh before he could provide actual medical services to members of al Qaeda — something he planned to do within two weeks, see GX 906T at 15 — his actions on May 20, 2005, constituted a substantial step clearly intended to culminate in supplying himself as personnel to work under the direction of that terrorist organization.
(c) Upholding Sabir's Attempt Conviction Raises No Double Jeopardy Concerns
Chief Judge Dearie suggests that if we affirm Sabir's attempt conviction, a double jeopardy concern arises with respect to his conspiracy conviction. See Dissenting Op., post at [181].[25] We do not share this concern, which Sabir himself does not raise. See, e.g., Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998).[26]
An attempt to provide personnel does not require proof of concerted action, an essential element of conspiracy. Moreover, a conspiracy requires only proof of an agreement to provide personnel, not any substantial step toward such provision. See, e.g., Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); United States v. Basciano, 599 F.3d 184, 197-98 (2d Cir.2010). As we have already observed, Sabir admitted reaching a conspiratorial agreement with Shah even before the May 20, 2005 meeting. But it was only at the meeting that Sabir took actions — volunteering himself as an on-call doctor for al Qaeda, swearing obedience to that organization, and providing contact numbers so that al Qaeda members could call him when they needed medical treatment — that permitted a reasonable jury to find a substantial step manifesting Sabir's "firm disposition" to provide personnel. United States v. Ivic, 700 F.2d at 66. We reject Chief Judge Dearie's characterization of this conduct as merely passive.
(d) No Government Conduct Precluded a Jury Finding of a Substantial Step
Insofar as the dissent suggests that Sabir's words or actions were somehow prompted by the undercover agent,[27] the [154] insinuation of entrapment is so patently unwarranted that Sabir himself waived this defense in the district court, precluding its consideration on appeal. See Trial Tr. at 2387-89; see also United States v. Quinones, 511 F.3d 289, 321 (2d Cir.2007) (discussing true waiver). Even if the dissent intends to imply something less than entrapment, the question of whether Sabir's recorded statements on May 20, 2005, were volunteered or solicited, firm or equivocal, was one of fact to be decided by the jury, which had the distinct advantage over this court of hearing both the recording of the May 20 meeting and Sabir's trial testimony.
Of course, in making its evaluation, the jury presumably considered facts elided by the dissent, which show that Sabir, far from being a gullible mark for al Qaeda recruitment, was a highly educated United States citizen, indeed, a trained scientist. We presume the jury also considered Sabir's statements that, before meeting Agent Soufan on May 20, 2005, Sabir had both (1) reached agreement with Shah that the two men would provide material support to al Qaeda, see GX 906T at 110, and (2) decided that he could only provide such support working within his area of expertise as a physician, see id. at 65-66. In this context, the jury could reasonably have concluded that Agent Soufan's statements did not lead Sabir into words and actions about which he had reservations. Rather, Soufan's statements served to ensure that when Sabir volunteered himself as an on-call doctor for al Qaeda and supplied contact numbers, he did so knowing and fully intending to provide personnel for the purpose of treating wounded jihad warriors and not innocent victims of terrorism.
In sum, we conclude that the totality of the evidence was more than sufficient to permit a reasonable jury to find that on May 20, 2005, Sabir took a substantial step intended to culminate in the provision of himself as personnel to work under the direction of al Qaeda. Accordingly, we uphold his convictions for both conspiring and attempting to provide material support to a foreign terrorist organization.
C. The District Court Reasonably Rejected Sabir's Batson Challenge
Sabir, who is African-American, argues that the prosecution's use of peremptory challenges to excuse five African Americans from the jury in his case violated the Fourteenth Amendment's guarantee of equal protection as construed by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).[28] After an extensive inquiry, the district court rejected this argument, finding that each of the five challenges was supported by credible non-discriminatory reasons. Such a ruling "represents a finding of fact," which we will not disturb in the absence of clear error. Hernandez v. New York, 500 U.S. 352, 364, 369, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion); see United States v. Lee, 549 F.3d 84, 94 (2d Cir.2008); United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir.1996). We identify no such error in this case.
A three-step inquiry guides a district court's evaluation of a Batson challenge:
First, a defendant must make a prima facie showing that a peremptory challenge [155] has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination.
Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008) (internal quotation marks and brackets omitted). For purposes of this appeal, we assume that Sabir satisfied the "minimal burden" of a prima facie showing, Overton v. Newton, 295 F.3d 270, 279 n. 10 (2d Cir.2002), as he could do by reference to the government's overall exclusion rate for African-American prospective jurors, see Jones v. West, 555 F.3d 90, 98-99 (2d Cir.2009). Nor need we discuss the second prong of Batson analysis as Sabir does not — and cannot — contend that the government failed to proffer reasons for its challenges that were racially neutral on their face. See generally Hernandez v. New York, 500 U.S. at 360, 111 S.Ct. 1859 (observing that at second step of Batson analysis, explanation need not be persuasive; it need only be "based on something other than the race of the juror"). Instead, we focus on Sabir's argument that with respect to three of the five challenged African Americans — prospective jurors # 5, # 26, and # 27 — the reasons the government advanced were "clearly pretextual." Appellant's Br. at 57, 59, 61.[29]
Sabir's pretext argument is based largely — though not exclusively — on the prosecution's purported failure to apply its proffered race-neutral reasons for excusing African Americans to similarly situated prospective jurors of other races or ethnicities. Such inconsistency can demonstrate a discriminatory intent. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (observing that "[m]ore powerful than ... bare statistics" in evidencing pretext for discrimination "are side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve"); United States v. Thomas, 303 F.3d 138, 145 (2d Cir.2002) ("Support for the notion that there was purposeful discrimination in the peremptory challenge may lie in the similarity between the characteristics of jurors struck and jurors accepted." (internal quotation marks omitted)). The record in this case, however, does not demonstrate sufficient juror similarity to render clearly erroneous the district court's rejection of Sabir's Batson claim.
[156] 1. Prospective Juror # 5
The government cited three race-neutral reasons for excusing prospective juror # 5: (1) his failure to secure appointment to the Boston police force might cause him to lean against law enforcement; (2) he was somewhat equivocal about his ability to set aside the view that he was frequently a victim of race discrimination, see Voir Dire Tr. at 11 ("I think I can give it the college try and be as fair as any other person could be."); and (3) his employment working with autistic children might make him less sympathetic to prosecution witnesses. In arguing pretext, Sabir notes that the prosecution showed no comparable concern for equivocal responses from other jurors whose backgrounds raised questions about their impartiality. We need not resolve the parties' dispute about the relative degrees of equivocation in various jurors' responses because the district court did not rely on this second proffered prosecution reason in rejecting Sabir's Batson challenge. Nor did it rely on the third reason, which the government does not maintain on appeal. Instead, the district court found that the prosecution had credibly demonstrated that it would have excused prospective juror # 5 for the first reason articulated regardless of race. See generally United States v. Douglas, 525 F.3d 225, 239 (2d Cir.2008) (observing that where prosecution articulates multiple reasons for peremptory challenge, one of which is race, it must demonstrate that challenge would have been exercised for race-neutral reason in any event).
In challenging this conclusion, Sabir suggests that the lost job opportunity was effectively irrelevant as prospective juror # 5 conceded that he did not satisfy the residency requirement for appointment. The district court, however, concluded from its own questioning of the juror that he manifested "excessive defensiveness" about the circumstances relating to his failure to secure the police appointment, which provided the government with a credible race-neutral basis for concern about his ability to be impartial toward law enforcement officials. Voir Dire Tr. at 123. This finding turned largely on the district court's assessment of the juror's demeanor and credibility, a matter "peculiarly within [its] province," Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. 1203 (internal quotation marks omitted), to which we accord "great deference," United States v. Lee, 549 F.3d at 94. Accordingly, we conclude that Sabir has failed to identify clear error in the district court's rejection of his Batson challenge with respect to prospective juror # 5.
2. Prospective Juror # 26
The government advanced four reasons for excusing prospective juror # 26: (1) her work as a home health aide might cause her to sympathize with Sabir, a physician; (2) her friend's daughter's marriage to a man from Yemen might also make her sympathetic to Sabir's circumstances; (3) her purportedly disheveled appearance and lack of focus in responding to questions raised attentiveness concerns; and (4) her regular viewing of three "CSI" television shows might lead her to have unrealistic expectations as to the prosecution's ability to produce technical and scientific evidence of guilt in every case.[30] While the district court did not agree with the prosecution's characterization of the prospective juror's appearance, it found [157] the other identified concerns, including the juror's lack of focus, to constitute credible race-neutral grounds for the prosecution's exercise of a peremptory challenge.
In maintaining his claim of pretext on appeal, Sabir observes that the prosecution did not excuse non-African American venirepersons who worked in health care, notably prospective juror # 19, who worked in a veterans' hospital. Nor did it excuse non-African Americans with ties to Muslims, such as prospective juror # 69, who had dated a Muslim. The argument ignores the fact that neither of these prospective jurors demonstrated the range of concerns presented by prospective juror # 26.[31] Certainly, neither presented a focus concern. As to prospective juror # 26, the district court expressly found that she had "a more distracted attitude" than other members of the venire, which she manifested by persistently "looking over toward her left during the questioning." Voir Dire Tr. at 129. We defer to the district court's considerable voir dire experience in making demeanor observations, see Snyder v. Louisiana, 552 U.S. at 477, 128 S.Ct. 1203, and we note that such distractedness is, by itself, a sufficient race-neutral ground to support exercise of a peremptory challenge, see generally Brown v. Kelly, 973 F.2d 116, 121 (2d Cir.1992) ("An impression of the conduct and demeanor of the prospective juror during the voir dire may provide a legitimate basis for the exercise of a peremptory challenge.").
Accordingly, we identify no clear error in the district court's rejection of Sabir's Batson challenge with respect to prospective juror # 26.
3. Prospective Juror # 27
The prosecution offered two race-neutral reasons for excusing prospective juror # 27: (1) the person's thirty-year career in the New York City Department of Social Services might cause him to be sympathetic to persons in difficult straits as well as more skeptical of government authority, and (2) his frequent television viewing of the three "CSI" television shows might make him reluctant to convict in the absence of scientific evidence. See Voir Dire Tr. at 131.
In Messiah v. Duncan, 435 F.3d 186 (2d Cir.2006), we observed that "[i]t is not implausible" for a prosecutor to think that "a social service provider who has dedicated his professional life to helping others might have more sympathy for a defendant" than other prospective jurors. Id. at 200. That conclusion, like many others informing peremptory challenges, may be based on a group stereotype, but not one that violates equal protection. Cf. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 n. 14, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (distinguishing peremptory challenges based on race from those based on occupation).
Similarly, it was plausible for the prosecutor to think that a juror who regularly watched television shows in which forensic [158] science conclusively solved crimes might be more inclined to demand such evidence in order to convict. See United States v. Fields, 483 F.3d 313, 355 n. 39 (5th Cir. 2007) (observing that claim that "CSI" shows cause jurors to demand scientific evidence was "plausible" even though not "proven empirically").
The district court having found the prosecution credible in its profession of these concerns with respect to prospective juror # 27, we identify no clear error in its rejection of Sabir's Batson argument with respect to the exercise of this peremptory challenge.
In sum, we reject Sabir's equal protection challenge to his conviction as without merit.
D. Sabir's Evidentiary Challenges Are Uniformly Without Merit
Sabir asserts that his conviction is infected by a host of evidentiary errors pertaining to (1) the receipt of expert testimony, see Fed.R.Evid. 702; (2) the receipt of hearsay statements by Shah, see U.S. Const. amend. VI; Fed.R.Evid. 801(d)(2)(E); (3) the exclusion of a prior inconsistent statement by a prosecution witness, see Fed.R.Evid. 801(d)(1)(A); (4) the exclusion of evidence of defendant's state of mind, see Fed.R.Evid. 803(3); and (5) the receipt of myriad evidence that was more prejudicial than probative, see Fed. R.Evid. 403.
1. Expert Witness Testimony
Sabir challenges the district court's decision, supported by a detailed written opinion, to allow Evan Kohlmann to testify as an expert witness about al Qaeda and Azzam Publications, the publisher of a jihadist videotape offered in the prosecution's direct case. See United States v. Sabir, No. 05 Cr. 673(LAP), 2007 WL 1373184 (S.D.N.Y. May 10, 2007).
The admission of expert testimony is governed by Fed.R.Evid. 702, which states as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
The law assigns district courts a "gatekeeping" role in ensuring that expert testimony satisfies the requirements of Rule 702. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-94, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (articulating non-exhaustive list of criteria court may apply in performing gatekeeping function). The inquiry is "a flexible one," Daubert v. Merrell Dow Pharms., Inc., 509 U.S. at 594, 113 S.Ct. 2786, and district courts enjoy considerable discretion in deciding on the admissibility of expert testimony, see Kumho Tire Co. v. Carmichael, 526 U.S. at 152, 119 S.Ct. 1167. We will not disturb a ruling respecting expert testimony absent a showing of manifest error, see Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 213 (2d Cir.2009), which is not present here.
a. Kohlmann's Testimony Satisfied the Enumerated Requirements of Rule 702
Sabir contends that Kohlmann's testimony satisfied none of the three enumerated requirements of Rule 702. We disagree.
Kohlmann's proposed expert testimony had a considerable factual basis: (1) his graduate studies at Georgetown University's [159] School of Foreign Service and Center for Contemporary Arab Studies and at the University of Pennsylvania Law School; (2) his full time employment at two organizations focusing on terrorism and al Qaeda, "Globalterroralert.com" and the Investigative Project; (3) his authorship of various academic papers and a book on al Qaeda; (4) his provision of consulting services on terrorism and al Qaeda to various federal agencies; and (5) his ongoing efforts to collect, analyze, and catalogue written, audio, and visual materials relevant to terrorism generally and al Qaeda in particular, including the records of guilty pleas and confessions from admitted al Qaeda operatives.
Before admitting Kohlmann's testimony, the district court also considered — without objection from the parties — the record of a Daubert hearing in another case in which Kohlmann was proffered as a terrorism expert. The evidence adduced at that hearing permitted the trial judge to conclude that Kohlmann's work had undergone "`various forms of peer review,'" that his opinions were "`generally accepted within the relevant community,'" and that his methodology was "`similar to that employed by experts that have been permitted to testify in other federal cases involving terrorist organizations.'" United States v. Sabir, 2007 WL 1373184, at *8 (quoting United States v. Paracha, No. 03 Cr. 1197(SHS), 2006 WL 12768, at *20 (S.D.N.Y. Jan. 3, 2006)).[32]
On this record, we conclude that the district court acted well within its discretion in concluding that Kohlmann's testimony satisfied the enumerated requirements of Rule 702.[33]
b. Kohlmann's Testimony Was Helpful to the Jury
Sabir submits that, even if Kohlmann properly qualified as an expert, his testimony about al Qaeda's history and structure was not helpful because jurors' familiarity with al Qaeda and its leader, Osama bin Laden, could be presumed. The argument requires little discussion. We have approved the use of expert testimony to provide juries with background on criminal organizations, notably organized crime families. See, e.g., United States v. Matera, 489 F.3d 115, 121-22 (2d Cir.2007). As we explained in United States v. Amuso, 21 F.3d 1251 (2d Cir.1994):
[d]espite the prevalence of organized crime stories in the news and popular media, these topics remain proper subjects for expert testimony. Aside from the probability that the depiction of organized crime in movies and television is misleading, the fact remains that the operational methods of organized crime families are still beyond the knowledge of the average citizen.
Id. at 1264. The rationale applies with equal force to terrorist organizations, including al Qaeda.
c. Kohlmann's Testimony Was Relevant
Sabir's relevancy challenge to certain aspects of Kohlmann's testimony is equally [160] unavailing. See Fed.R.Evid. 401, 403. To the extent Sabir submits that Kohlmann's testimony about terrorist activities in Saudi Arabia — derived in part from Internet sources — was too speculative to be probative, he misses the point of that testimony. The issue for jury consideration was not whether the government could prove that al Qaeda was, in fact, responsible, for particular terrorist acts in Saudi Arabia, but whether it could reasonably be inferred that a person such as Sabir, who had lived in Saudi Arabia for a year, and who proposed to support al Qaeda's efforts there by serving as the organization's on-call doctor, would know that he was providing support to an organization that engaged in terrorism. Kohlmann's testimony as to generally available information about al Qaeda's terrorist activities in Saudi Arabia was more probative than prejudicial on this knowledge element of § 2339B. The prosecution's failure to adduce specific evidence of Sabir's familiarity with the information went to the weight of Kohlmann's testimony rather than to its admissibility.
We similarly reject Sabir's relevance challenge to Kohlmann's testimony about al Qaeda training camps. Such testimony was plainly relevant to mens rea as Sabir was charged both with conspiring with Shah to provide martial arts training to mujahideen and with agreeing to be on call to treat wounded mujahideen who sustained injuries either "in training" or in actual al Qaeda "operation[s]." GX 906T at 48.
d. Kohlmann's Testimony Did Not Reach Beyond the Government's Rule 16 Proffer
Sabir faults the district court for allowing Kohlmann to testify beyond the scope of the government's proffer. See Fed. R.Crim.P. 16(a)(1)(G). The claim is patently meritless. The testimony about which Sabir complains, relating to "Islam, fatwa, and the 9/11 attacks," Appellant's Br. at 72, easily fell within the government's broad proffer, outlined in a February 23, 2007 letter, to present evidence about al Qaeda's "origins," "history," "structure," "leadership," "instructional methods," "operational logistics," and "acts of terrorism," United States v. Sabir, 2007 WL 1373184, at *2 & n. 5 (quoting government proffer letter). Similarly meritless is Sabir's challenge to Kohlmann's expertise to discuss "Islam, fatwa, and the 9/11 attacks," to the limited extent of providing background on al Qaeda. Even if Kohlmann had testified beyond the government's Rule 16 proffer — which he did not — Sabir fails to show the "violation of a substantial right," the standard necessary to secure reversal for such an evidentiary error. United States v. Ebbers, 458 F.3d 110, 122 (2d Cir.2006).
2. Co-Conspirator Statements
Sabir contends that the admission of tape recorded conversations between co-defendant Shah and confidential informant Saeed or undercover Agent Soufan violated both Fed.R.Evid. 801(d)(2)(E) and the Sixth Amendment's Confrontation Clause as construed by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).[34] Neither argument is persuasive.
a. Shah's Recorded Conversations with the Informant and the Undercover Were Admissible Under Fed.R.Evid. 801(d)(2)(E)
We review the district court's decision to admit Shah's recorded conversations as co-conspirator [161] statements under Fed.R.Evid. 801(d)(2)(E) only for clear error. See United States v. Al-Moayad, 545 F.3d 139, 173 (2d Cir.2008). In urging such error, Sabir submits that the recordings were inadmissible because he did not participate in the conversations at issue and was not mentioned in the course thereof. The argument is flawed in two respects. First, it misstates the facts. Shah's recorded conversations with Saeed and Soufan repeatedly referenced Sabir both by his first name "Rafiq," see, e.g., GX 801T at 1; GX 812T at 1, and by his profession as a "doctor," see, e.g., GX 807T at 3; GX 902T at 23-24. Second, and more important, it misstates the standard for admissibility under Rule 801(d)(2)(E).
Rule 801(d)(2)(E) states that out-of-court declarations are not excludable as hearsay if they are made "by a coconspirator of a party during the course and in furtherance of the conspiracy." To admit an out-of-court declaration under this rule, the district court must find by a preponderance of the evidence "(a) that there was a conspiracy, (b) that its members included the declarant and the party against whom the statement is offered, and (c) that the statement was made during the course of and in furtherance of the conspiracy." United States v. Al-Moayad, 545 F.3d at 173 (internal quotation marks omitted); see also Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Where, as here, Shah and Sabir are the only alleged conspirators, the district court was required to find that Shah made the statements at issue in furtherance of a then-existing conspiracy between these two men.[35] Such a finding was amply supported by the recorded statements of both defendants. See Bourjaily v. United States, 483 U.S. at 175-76, 107 S.Ct. 2775; United States v. Tellier, 83 F.3d 578, 580 (2d Cir.1996) (observing that hearsay statements may themselves be considered in determining admissibility under Rule 801(d)(2)(E), provided there is some independent corroboration of defendant's participation in conspiracy).
At the very start of his first recorded meeting with Saeed, on September 20, 2003, Shah identified "Rafiq" as his "partner," a term implying some agreement between the two men to pursue a common objective. GX 801T at 1 (explaining that "me and Rafiq are real tight" and "you always would see me with Rafiq"); see Trial Tr. at 600. Shah made plain that the partnership extended to Shah's martial arts efforts, explaining that Sabir owned the building in Harlem where Shah operated his martial arts training center. See id. Thereafter, in recorded conversations with Saeed and Agent Soufan about joining al Qaeda, Shah repeatedly emphasized his partnership with Sabir and indicated that the two men would come to the terrorist organization as a "package ... me and a doctor." GX 807T at 3-4; see GX 902T at 23 (stating "I come like with a pair, me and a doctor"). Shah explained that he knew Sabir's intentions and did not need to speak further with him to make this [162] commitment, a statement suggestive of an existing agreement between the two men. See GX 902T at 23.
Moreover, on May 20, 2005, when Sabir met with Agent Soufan, he provided independent and explicit confirmation for what Shah had been saying to the informant and undercover agent: that Sabir and Shah had long discussed and agreed to support terrorists' pursuit of jihad.
UC: And, I'm, I will offer you that [the oath of allegiance to al Qaeda], brother, but it is up to you.
SABIR: So, you know this brother [Shah] here and I, I think, we have, I have to go with my brother because we have, we have talked about this for a long time, and because we have talked about it a long time, I feel it, uh, uh, not just that my spirit is with it, ... but that if I didn't do it I will be abandoning my brother. And the very thing we agreed upon it in the first place.... [W]e are partners.
GX 906T at 110 (emphasis added).[36]
This record plainly supports the district court's finding that, as of the time of the first recorded conversation at issue in 2003, Shah and Sabir had already reached a tacit understanding to use their respective professional expertise to support jihad, and that Shah's statements before the May 20, 2005 meeting, like Sabir's statements at that meeting, were made in furtherance of that agreement.
Sabir submits further that Shah's recorded statements were inadmissible under Rule 801(d)(2)(E) because they were not made in furtherance of the conspiracy, but instead were "idle chatter." United States v. Paone, 782 F.2d 386, 390 (2d Cir.1986). We are not persuaded. Shah was plainly seeking to persuade someone whom he thought could admit him to al Qaeda that he and Sabir were trustworthy and would, in fact, provide material assistance to that organization. That Shah's statements were sometimes vague and rambling does not alter the fact that, in their entirety, they were made in furtherance of an agreement with Sabir to provide material support for terrorism. In any event, Sabir does not show that any possible digressions from the conspiratorial purpose in Shah's statements were prejudicial. See United States v. Mercado, 573 F.3d 138, 141 (2d Cir.2009).
b. The Admission of Shah's Statements Did Not Violate Sabir's Right to Confrontation
Sabir's reliance on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, to mount a Confrontation Clause challenge to the receipt of Shah's statements is foreclosed by United States v. Saget, 377 F.3d 223 (2d Cir.2004), in which this court held that "a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford," id. at 229. As [163] then-Judge Sotomayor explained in writing for the Saget panel, Crawford instructs that the critical factor in identifying a Confrontation Clause concern is "the declarant's awareness or expectation that his or her statements may later be used at a trial." Id. at 228. Here, there is no question that in his conversations with Saeed and Soufan, Shah was unaware that he was speaking to agents for the government or that his statements might later be used at a trial. Because Shah's recorded statements are thus not testimonial in nature, this case is on all fours with Saget, and Sabir's Confrontation Clause challenge fails. See also United States v. Logan, 419 F.3d 172, 178 (2d Cir.2005) ("In general, statements of co-conspirators in furtherance of a conspiracy are non-testimonial.").
3. Prior Inconsistent Statement
Prosecution witness Tony Richardson testified that while participating in Shah's martial arts classes in Maryland, he met a doctor introduced to him as "Dr. Sabir or Sabir Rafiq or Rafiq Sabir" with whom he spoke briefly. Trial Tr. at 230-31.[37] Asked on cross-examination if he was positive as to the name, Richardson answered "No, not positive. I don't even remember his name totally. It was Dr. Sabir Rafiq or Rafiq Sabir, something to that effect." Id. at 232. Defense counsel then sought to impeach Richardson by reading aloud from grand jury testimony in which Richardson ascribed the name Rafiq Sabir or Sabir Rafiq to a friend in Texas.
Q. [Do you know] Rafiq Sabir?
A. Do not — Sabir Rafiq.
Q. Rafiq Sabir. Do you know a Sabir Rafiq?
A. My friend in Texas, which I don't think he knows Mahmud at all. I think his middle name is Rafiq Sabir, Sabir Rafiq, I'm not sure.
Id. at 235. The district court overruled the prosecution's objection to this line of questioning, but did not permit Sabir to offer the grand jury testimony into evidence as a prior inconsistent statement under Fed.R.Evid. 801(d)(1)(A). Sabir submits that the latter ruling was erroneous. We identify no abuse of discretion, much less violation of a substantial right, in the district court's decision. See United States v. Bah, 574 F.3d 106, 116 (2d Cir. 2009); United States v. Mercado, 573 F.3d at 141.
Rule 801(d)(1) of the Federal Rules of Evidence states that an out-of-court statement is not hearsay if "[t]he declarant testifies at the trial ... and is subject to cross-examination concerning the statement, and the statement is ... inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury...." Richardson's grand jury testimony indicating that he had a friend in Texas whose "middle name is Rafiq Sabir [or] Sabir Rafiq," was not, strictly speaking, inconsistent with his trial testimony that the doctor whom he briefly met at Shah's martial arts class was named "Dr. Sabir or Sabir Rafiq or Rafiq Sabir." As the district court correctly observed, if Richardson had given a negative answer at trial to a question about knowing anyone else named Sabir beside this doctor, then the grand jury testimony might have presented an inconsistency. But no such question was ever asked.
In any event, Sabir can hardly demonstrate that he was prejudiced by the district court ruling. The grand jury testimony [164] was not relevant for its truth, i.e., whether Richardson in fact had a friend in Texas, part of whose name was Rafiq Sabir or Sabir Rafiq. Rather, it was relevant for the fact that, when asked if he recognized the name Rafiq Sabir, Richardson did not mention any doctor whom he met with Shah, but only a friend in Texas. This fact was adequately placed before the jury by Richardson's acknowledgment of the grand jury statement. It did not require actual admission of the grand jury record.
4. State-of-Mind Evidence
Sabir submits that the district court erred in refusing to admit statements he made to federal authorities on October 5, 2004, when entering the United States from Saudi Arabia. According to a contemporaneous FBI report, see Appellee's Br. Add. 1-3, these statements recounted Sabir's personal, educational, and employment background; the circumstances prompting his move from the United States to Saudi Arabia; his personal and professional activities in Saudi Arabia; his financial support for various causes; his appreciation for life in the United States compared to Saudi Arabia; and his intent to return to live in the United States at some unspecified future time and to "make things better" in this country. In one statement, Sabir professed not to condone suicide bombing. Sabir submits that these statements were admissible because they evidenced a state of mind not disposed to provide material support to al Qaeda.
We note that both before the district court and on appeal Sabir presented this argument in a conclusory fashion. The one-paragraph argument in his appellate brief does not cite — much less discuss — the relevant rule, see Fed.R.Evid. 803(3), or our precedents construing its scope, see, e.g., United States v. Cardascia, 951 F.2d 474 (2d Cir.1991); United States v. DiMaria, 727 F.2d 265 (2d Cir.1984) (Friendly, J.). No matter. Even if Sabir could demonstrate that his October 5, 2004 statements were admissible under Rule 803(3), a point we need not here decide, we would not grant him a new trial because any error was plainly harmless.
Sabir testified at length about his views regarding the United States, al Qaeda, and its methods. See, e.g., Trial Tr. at 1491 (testimony of Sabir that "[s]uicide is wrong in all circumstances in Islam"). Further, he was permitted to introduce into evidence a document he wrote in February 2005, which described his vision for an "Islamic Justice Organization" dedicated to "ensur[ing] justice for Muslims" by lawful means. See id. at 1554, 1558. The government's contrary evidence of Sabir's intent to commit the charged crimes, however, was clearly overwhelming. The tape recorded meeting of May 20, 2005, supra at [132-33, 140, 143-46], reveals Sabir swearing loyalty to support the terrorist organization by providing medical treatment for its wounded combatants in Saudi Arabia. On this record, we easily conclude that the exclusion of Sabir's October 5, 2004 statements was harmless. See United States v. Song, 436 F.3d 137, 140 (2d Cir.2006) (deeming harmless erroneous exclusion of state of mind evidence where defendant "was permitted to testify in sufficient detail as to his theory of the case" and government presented overwhelming evidence of guilt); United States v. Lawal, 736 F.2d 5, 9 (2d Cir.1984) (same).
5. Rule 403 Objections
Sabir submits that the district court erred in admitting evidence that was more prejudicial than probative, specifically: (a) certain materials seized from Shah pertaining to Mohammad Shareef, a radical [165] Muslim cleric; (b) testimonial evidence regarding a 2000 incident in which certain individuals — not including Shah or Sabir — attempted to take control of a Poughkeepsie mosque by force; and (c) testimony about mujahideen activities in Bosnia. We are not persuaded.
a. The Shareef Materials
Because Sabir raised no objection to the Shareef materials at trial, we review the admission of that material only for plain error. See United States v. Yousef, 327 F.3d at 121. The point requires little discussion because Sabir's conclusory challenge fails to demonstrate error in the admission of evidence indicating that Shah held radical views on Islam. As Shah would manifest in his various recorded statements, such views fueled the formation of the charged conspiratorial agreement to provide material support for jihad. Further, Sabir does not even attempt to show how the admission of such evidence — in a case in which the conspirators are recorded swearing allegiance to al Qaeda — affected his substantial rights or undermined "`the fairness, integrity, or public reputation of judicial proceedings.'" United States v. Payne, 591 F.3d 46, 66 (2d Cir.2010) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
b. The Poughkeepsie Mosque Incident
We review the remaining two rulings for abuse of discretion, see United States v. Bah, 574 F.3d at 116; United States v. Mercado, 573 F.3d at 141, and detect none here.
Sabir submits that the district court committed Rule 403 error in permitting prosecution witness Anwar Kearney, imam of a mosque in Poughkeepsie, to testify that in 2000, a group of persons who followed the teachings of Mohammad Shareef attempted to take over the mosque by force of arms. Although Shah, who taught martial arts at the mosque, associated with this group, he did not participate in the armed takeover attempt. Nor did Sabir, who occasionally visited Shah in Poughkeepsie at about this time.
The district court concluded that the evidence was nevertheless probative of the evolution of Shah's state of mind in embracing jihad. We cannot identify abuse of discretion in this conclusion. Shah's evolution as a militant supporter of jihad was relevant in the trial of Sabir because the two men were close, longstanding "partners," purportedly so familiar with each other's minds that one could speak for the other in supporting jihad. GX 906T at 110. Indeed, at the May 20, 2005 meeting at which the partners swore allegiance to al Qaeda, Sabir acknowledged that he and Shah had been discussing jihad for a long time and referenced past experiences that informed their agreement to support jihad by working within their respective areas of expertise. See id. at 65, 110.
c. Mujahideen Activities in Bosnia
Sabir submits that testimony from Yahya Muhammad, a longtime friend of Shah, about the support he provided to mujahideen in Bosnia was more prejudicial than probative. In fact, the evidence was relevant to understanding why, in about 2003, Sabir would ask Muhammad for advice about traveling abroad to provide medical assistance to mujahideen. See Trial Tr. at 286-87. Such evidence, in turn, tended to demonstrate that when Sabir subsequently offered to serve as an on-call doctor for al Qaeda combatants in Saudi Arabia, he was acting with the knowledge necessary to support the counts of conviction.
[166] E. Summation Issues
Sabir contends that the district court erred by (1) precluding him from arguing in summation that the government had targeted him for prosecution based on his religion, while allowing the government to make a contrary argument; and (2) permitting the government to vouch for its witnesses. In support of the first argument, Sabir points us to the following excerpt from the summations.
[DEFENSE COUNSEL]: Dr. Sabir is an important piece on the chess board. He's an important piece to the FBI investigation, and he's an important piece to Shah. Everybody wants Dr. Sabir.
[THE GOVERNMENT]: Objection.
THE COURT: Sustained.
[DEFENSE COUNSEL]:.... [T]here's a very interesting discourse that occurred between myself and [Agent] Soufan while he was testifying about whether or not there was an increase in investigation by the FBI of the Muslim community post 9/11. Well, common sense, when you talk about common sense, you all know that there was, and to sit here and try to tell you that there wasn't just belies what the agenda is.
[THE GOVERNMENT]: Objection.
THE COURT: Sustained. Ladies and gentlemen, the decision of the government to investigate an individual or the decision of a grand jury to indict an individual is none of your concern. The only concern this jury has is whether or not the government has or has not proved each element[] of the crimes charged beyond a reasonable doubt.
Trial Tr. at 2417-18.
A sidebar conference ensued, at which the district court cautioned defense counsel to refrain from arguing selective prosecution to the jury, advising that such a defense should be raised with the court in a post-trial motion.[38] Defense counsel initially complied with this instruction, but then more subtly returned to the selective prosecution theme in attacking the FBI for "decid[ing] which way the case [against Sabir] was going" based on an internal perception of what was "correct" without regard to whether "reality" demonstrated otherwise. Id. at 2431.
The government responded with the following rebuttal argument:
Then, there was the argument that the government is out looking for sinners. The government picked and chose Dr. Rafiq Sabir as some sort of trophy blaming the government for its efforts [in] fighting terrorism; and this from a defendant who said, I support all anti-terrorism efforts, that is, except for if it involves the use of undercovers, except if it involves people infiltrating the mujahideen.
. . .
Well, the government, as the Judge told you, is not on trial. It's not a game of shifting blame to the government and blaming agents for what they do, their jobs, putting their lives on the line and finding terrorism wherever it is.
You heard the testimony of both the agents in this case; former Agent Ali Soufan, and Special Agent Brian Murphy. [167] Both served this country with distinction. Both told you that they followed the investigation where it went. Where it went and where it ended up was May 20, 2005. With the defendant taking bayat to bin Laden.
Id. at 2487-88.
Following rebuttal, Sabir unsuccessfully moved for a mistrial, arguing that the government had improperly raised the issue of selective prosecution and vouched for its own witnesses. Reviewing the district court's decision for abuse of discretion, see United States v. Smith, 426 F.3d 567, 571 (2d Cir.2005), we identify none.
First, we identify no error in the district court's challenged rulings with respect to the defense summation. As we have explained, a selective prosecution defense alleges "a defect in the institution of the prosecution," and as such "is an issue for the court rather than the jury." United States v. Regan, 103 F.3d 1072, 1082 (2d Cir.1997) (internal quotation marks omitted); see also Fed.R.Crim.P. 12(b)(3)(A).
Second, we identify no error in the government's rebuttal. The law has long recognized that summations — and particularly rebuttal summations — are not "detached exposition[s]," United States v. Wexler, 79 F.2d 526, 530 (2d Cir.1935), with every word "carefully constructed ... before the event," Donnelly v. DeChristoforo, 416 U.S. 637, 646-47, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Precisely because such arguments frequently require "improvisation," courts will "not lightly infer" that every remark is intended to carry "its most dangerous meaning." Id. To be sure, the prosecution may not "appeal to ... passion" in urging a guilty verdict, United States v. Wilner, 523 F.2d 68, 74 (2d Cir. 1975), but it may be passionate in arguing that the evidence supports conviction, see United States v. Wexler, 79 F.2d at 530 (recognizing that summations are "inevitably charged with emotion"). As a consequence, a defendant who seeks to overturn his conviction based on alleged prosecutorial misconduct in summation bears a "heavy burden." United States v. Feliciano, 223 F.3d 102, 123 (2d Cir.2000) (internal quotation marks omitted). He must show more than that a particular summation comment was improper. See generally United States v. Newton, 369 F.3d 659, 680 (2d Cir.2004) (observing that "prosecutors' comments standing alone" will rarely warrant overturning conviction (internal quotation marks omitted)); United States v. Rodriguez, 968 F.2d 130, 142 (2d Cir. 1992) (noting that "it is a `rare case'" in which improper summation comments by prosecution will be so prejudicial as to warrant new trial (quoting Floyd v. Meachum, 907 F.2d 347, 348 (2d Cir.1990))). He must show that the comment, when "viewed against the entire argument to the jury," United States v. Bermudez, 529 F.3d 158, 165 (2d Cir.2008) (internal quotation marks omitted), and "in the context of the entire trial," was so severe and significant as to have "substantially prejudiced" him, depriving him of a fair trial, United States v. Newton, 369 F.3d at 680; see United States v. Locascio, 6 F.3d 924, 945 (2d Cir.1993). That is not this case.
In his own summation, defense counsel repeatedly ignored court warnings and insinuated to the jury that Sabir was the victim of selective prosecution. While it was the court's role, not the prosecution's, to instruct the jury that this question was not before them, the government hardly deprived Sabir of a fair trial by briefly alluding to these improper arguments in reminding them of the judge's instruction. See generally United States v. Tocco, 135 F.3d 116, 130 (2d Cir.1998)("[W]here the defense summation makes arguments and allegations against the government, the prosecutor may respond to them in rebuttal."); [168] United States v. Rivera, 971 F.2d 876, 883 (2d Cir.1992) (noting that defense argument may "`open the door' to otherwise inadmissible prosecution rebuttal"); United States v. Marrale, 695 F.2d 658, 667 (2d Cir.1982) (noting that "prosecutor is ordinarily entitled to respond to the evidence, issues, and hypotheses propounded by the defense").
Similarly, we identify no error in the prosecution's response to the defense attack on its agents' credibility and competency. See United States v. Perez, 144 F.3d 204, 210 (2d Cir.1998) (recognizing prosecutors' "greater leeway" in commenting on own witnesses' credibility after defense attack). While prosecutors may not strike "foul" blows they may strike "hard" ones, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), and the challenged arguments stayed on the permissible side of this line, cf. United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (holding that prosecutor may not imply that extrinsic evidence not before jury supports witness's credibility); United States v. Drummond, 481 F.2d 62, 64 (2d Cir.1973) (holding that prosecutor may not make issue of "own credibility" (internal quotation marks omitted)); accord United States v. Rivera, 971 F.2d at 884. While routine credibility attacks do not generally call for references to the life-threatening nature of law enforcement work, where, as in this case, the defense referenced the danger inherent in dealing with co-defendant Shah to question the undercover agent's credibility or competency in certain respects, the government's brief allusion to agents "putting their lives on the line" was within the bounds of fair response.
F. Juror Misconduct
In the course of jury deliberations, the district court learned that Juror # 8, using the electronic search engine "Google," had discovered that co-defendant Tarik Shah had pleaded guilty to unspecified charges and then communicated that fact to other jurors. Sabir submits that the district court erred in failing to grant his pre-verdict motion for a mistrial or his post-verdict motion for a new trial, see Fed.R.Crim.P. 33, based on this juror misconduct. We are not persuaded.
We review for abuse of discretion the district court's handling of alleged juror misconduct, see United States v. Vitale, 459 F.3d 190, 197 (2d Cir.2006); its denial of a mistrial, see United States v. Smith, 426 F.3d 567, 571 (2d Cir.2005); and its denial of a Rule 33 motion for a new trial, see United States v. McCourty, 562 F.3d 458, 475 (2d Cir.2009). In doing so, we accord the district court "broad flexibility," mindful that addressing juror misconduct always presents "a delicate and complex task," United States v. Cox, 324 F.3d 77, 86 (2d Cir.2003) (internal quotation marks omitted), particularly when the misconduct arises during deliberations, see United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997). Further, we recognize that the district court is "in the best position to sense the atmosphere of the courtroom as no appellate court can on a printed record." United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998) (internal quotation marks omitted).
While the law presumes prejudice from a jury's exposure to extra-record evidence, see Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954); United States v. Greer, 285 F.3d 158, 173 (2d Cir.2002), that presumption may be rebutted by a "showing that the extra-record information was harmless," Bibbins v. Dalsheim, 21 F.3d 13, 16 (2d Cir.1994); see United States v. Schwarz, 283 F.3d 76, 99 (2d Cir.2002) ("[N]ot every instance of a juror's exposure to extrinsic information [169] results in the denial of a defendant's right to a fair trial. Many such instances do not."). The necessary inquiry is "objective," Bibbins v. Dalsheim, 21 F.3d at 17 (internal quotation marks omitted), and focuses on two factors: (1) the nature of the information or contact at issue, and (2) its probable effect on a hypothetical average jury, see United States v. Schwarz, 283 F.3d at 99.
The effect inquiry properly considers the "entire record" in making an objective assessment of possible prejudice. United States v. Weiss, 752 F.2d 777, 783 (2d Cir.1985). This includes circumstances surrounding the jurors' exposure to the information. See United States v. Greer, 285 F.3d at 173. But a court may not reach further to inquire into the subjective effect of the information on jurors' mental processes or on the jury's deliberations. This limitation, memorialized in Fed. R.Evid. 606(b), is grounded in the deeply rooted view that "the secrecy of deliberations is essential to the proper functioning of juries." United States v. Thomas, 116 F.3d at 618-19 (collecting authorities). In any event, a district court must be careful that it does not itself "create prejudice by exaggerating the importance and impact" of extra-record information. United States v. Abrams, 137 F.3d at 708.
With these principles in mind, we conclude that the district court acted well within its discretion in denying Sabir's mistrial and new trial motions. The district court reasonably considered the "nature" of the extrinsic evidence — an Internet report of Shah's guilty plea — in light of Sabir's summation concession that Shah was, in fact, guilty: "[I]f this was a case about Tarik Shah, I wouldn't even have got up. Tarik Shah is guilty." Trial Tr. at 2406. The district court concluded that, in these circumstances, Sabir was unlikely to be harmed by extrinsic information entirely consistent with his own concession.
In urging otherwise, Sabir submits that the defense summation did not indicate the actual outcome of Shah's case; was not itself "evidence" of the crime; and, in contrast to the extra-record information, was not hearsay. The second and third points warrant little discussion, as the district court's assessment of the nature of the information was not based on its admissibility. Nor did the district court fault defense counsel's summation or excuse the juror misconduct. As for the first point, Sabir notes a difference without a distinction for purposes of identifying prejudice. Whatever harm might have ensued from the jury's discovery of Shah's guilty plea in a case where Sabir's defense did not concede his codefendant's guilt, where, as here, such a concession was made, the jury's discovery that a guilty co-defendant had, in fact, pleaded guilty, was unlikely to deprive Sabir of a fair trial.
That conclusion is only reinforced by the district court's questioning of the jurors. When Juror # 8 was asked if anything would prevent her from being fair and impartial in judging Sabir's case, she replied that there was not. Asked if she would be able to follow the court's instruction to judge the case solely on the basis of the trial evidence, Juror # 8 answered, "Definitely." Id. at 2694. We have recognized that, in appropriate circumstances, confirmation of a juror's ability to follow cautionary instructions can indicate the lack of harm from misconduct. See United States v. Thai, 29 F.3d 785, 803 (2d Cir. 1994); accord United States v. Abrams, 137 F.3d at 708.
Sabir suggests that the district court erred in reaching this conclusion without further asking Juror # 8 whether she had "Googled" Sabir himself. We disagree. Such a leading question might itself have [170] "create[d] prejudice" by implying that a broader search could yield further information about Sabir. See United States v. Abrams, 137 F.3d at 708. The district court acted well within its discretion in instead asking Juror # 8 more generally whether she had uncovered any information beyond the fact of Shah's guilty plea and, upon receiving a negative response, making no further inquiry particular to Sabir.
We further conclude that the district court did not abuse its discretion in declining to question the remaining jurors individually. Addressing the jury as a whole, the district court instead repeated certain instructions potentially implicated by Juror # 8's actions. These specifically included the following:
It is your function in this case to decide the issues of fact. Your decision on the issues of fact is to be based solely on the evidence. Nothing I say is evidence. Nothing any of the lawyers say is evidence. Questions by themselves are not evidence. Objections are not evidence. Testimony that has been excluded or which you're told to disregard is not evidence. The evidence consists of the sworn testimony of the witnesses and the exhibits that have been received into evidence for your consideration. Also, in some instances there were facts the lawyers agreed to or facts that I instructed you to find.
... You may not draw any inference, favorable or unfavorable, toward the government or the defendant from the fact that any person in addition to the defendant is not on trial here. You also may not speculate as to the reasons why other persons are not on trial. Those matters are wholly outside your concern and have no bearing on your function as jurors.
. . .
Now, ladies and gentlemen, is there any juror who is unable or unwilling to follow those instructions? Anyone?
Trial Tr. at 2698-2700. Because no juror indicated that he or she would have a problem following these instructions, see United States v. Thai, 29 F.3d at 803, the district court reasonably concluded from the totality of the circumstances that the misconduct at issue did not warrant either a mistrial or new trial, see United States v. Greer, 285 F.3d at 173; United States v. Abrams, 137 F.3d at 708.
III. Conclusion
To summarize, we conclude that:
1. Title 18 U.S.C. § 2339B is not overbroad or otherwise unconstitutionally vague as applied to Sabir's case.
2. The trial evidence was sufficient to support Sabir's conviction for conspiring and attempting to provide material support to a known terrorist organization.
3. The jury selection in Sabir's case did not violate the Equal Protection Clause as construed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69.
4. With respect to Sabir's various evidentiary challenges:
a. the district court did not abuse its discretion in admitting expert testimony pertaining to al Qaeda pursuant to Fed. R.Evid. 702;
b. the admission of recorded conversations between co-defendant Shah and either an informant or undercover agent was supported by Fed.R.Evid. 801(d)(2)(E) and did not violate Sabir's constitutional right to confrontation;
c. the district court acted within its discretion in allowing cross-examination about a witness's prior statements in the grand jury but in refusing to admit the grand jury transcript as evidence of a prior [171] inconsistent statement pursuant to Fed. R.Evid. 801(d)(1)(A);
d. we need not decide whether the district court erred in holding that evidence of Sabir's professed state of mind on October 5, 2004, was inadmissible under Fed. R.Evid. 803(3) because any error would, in any event, be harmless in this case; and
e. there is no merit to Sabir's claims that various evidence should have been excluded under Fed.R.Evid. 403 as more prejudicial than probative.
5. The district court's summation rulings did not deprive Sabir of a fair trial.
6. The district court acted well within its discretion in denying Sabir's motions for a mistrial and new trial because the record plainly supports its finding that Sabir was not prejudiced by juror exposure to extrinsic Internet information about co-defendant Shah.
The judgment of conviction is AFFIRMED.
REENA RAGGI, Circuit Judge, concurring in part:
With respect to Part II.D.4 of the court's opinion, I certainly agree with the conclusion that if there was any error in the district court's failure to admit Sabir's October 5, 2004 statements to federal authorities when entering the United States from Saudi Arabia, such error was harmless beyond a reasonable doubt. See ante at [164-65]. I would go further, however, and conclude that there was no error because Sabir's October 5, 2004 statements did not, in fact, satisfy the requirements of Federal R. Evid. 803(3). To explain this conclusion, it is necessary to discuss those requirements in some detail.
Rule 803(3) recognizes a hearsay exception for
[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
All hearsay exceptions are rooted in one or more conditions thought to ensure sufficient reliability to permit a factfinder to forego the law's preferred means for testing evidence: cross-examination. In the case of Rule 803(3), that condition is "contemporaneity," i.e., the statement must evidence the declarant's "then existing state of mind," a circumstance presumed to reduce a declarant's chance for reflection and, therefore, misrepresentation. See United States v. Cardascia, 951 F.2d 474, 487-88 (2d Cir.1991); see also 2 McCormick on Evidence § 274, at 267 (Kenneth S. Broun ed., 6th ed. 2006) ("[T]he special assurance of reliability for statements of present state of mind rests upon their spontaneity and resulting probable sincerity. The guarantee of reliability is assured principally by the requirement that the statements must relate to a condition of mind or emotion existing at the time of the statement." (footnote omitted)).
Contemporaneity, of course, is not a foolproof safeguard of reliability. As commentators have observed, "few things are easier than to misrepresent one's thoughts." 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:70, at 596 (3d ed.2007) (observing that "state-of-mind exception offers less assurance against deception than some others that also require immediacy"). This has prompted a number of courts to condition Rule 803(3) admissibility on the presence of "no suspicious circumstances suggesting a motive for the declarant to fabricate or misrepresent his or her thoughts." 5 Jack B. Weinstein & Margaret A. Berger, [172] Weinstein's Federal Evidence § 803.05[2][a], at 803-31 & n.4 (Joseph M. McLaughlin ed., 2d ed. 2007) (collecting cases); see 4 Mueller & Kirkpatrick, supra, § 8:71, at 613-14 & n.30 (collecting cases); see also 6 John H. Wigmore, Evidence in Trials at Common Law § 1732, at 160 (James H. Chadbourn ed., rev. ed. 1976) (providing for statement of then existing state of mind to be excluded if "circumstances indicate plainly a motive to deceive"). This court, however, is not among them.
In United States v. DiMaria, 727 F.2d 265 (2d Cir.1984) (Friendly, J.), we observed that the Federal Rules of Evidence create hearsay exceptions by "categories," id. at 272. We thus concluded that if a statement fits an identified category, no further "finding of probable credibility by the judge" is generally required to apply the hearsay exception. Id. (recognizing that credibility of statement may be considered in connection with business record and residual hearsay exceptions). Thus, the self-serving nature of a statement expressing a state of mind does not automatically preclude application of Rule 803(3). That concern is properly considered by the jury in deciding what weight to accord the statement. See id. at 271; accord United States v. Cardascia, 951 F.2d at 487.
Although this court does not superimpose any credibility condition on Rule 803(3), we have in no way relaxed the rule's stated requirement for assuring reliability: contemporaneity. Nor have we absolved statements satisfying Rule 803(3) from the relevancy requirements of Fed. R.Evid. 401 and 403. See generally 2 McCormick on Evidence, supra, § 274, at 267-69 n.8 (observing that contemporaneity requirement of Rule 803(3) works together with relevance rules in determining admissibility of statement).
United States v. DiMaria presented no contemporaneity or relevance concerns. The defendant's spontaneous utterance to approaching FBI agents — "I only came here to get some cigarettes real cheap" — easily satisfied Rule 803(3)'s contemporaneity requirement in that it purported to reveal the declarant's then existing state of mind with respect to the very conduct in which he was engaged. 272 F.2d at 270-71. Such a statement was relevant because defendant's mens rea at the precise moment of his utterance was an element of the charged crime. See id. at 271. Further, we assigned a high probative value to the statement because the government was relying on a presumption to carry its mens rea burden. See id. at 272 (observing that admission of statement was particularly warranted because "the Government is relying on the presumption of guilty knowledge arising from a defendant's possession of the fruits of a crime recently after its commission").
DiMaria, however, had no occasion to consider contemporaneity and relevance in the circumstances presented here: a statement of state of mind made on one occasion offered as evidence of state of mind on another occasion. The proffered statement may express the declarant's state of mind at the time made, but that does not make it relevant to mens rea at a different time. The law nevertheless recognizes the possibility that an expression of state of mind on one occasion may be relevant to state of mind at a later time where the statement reflects "a continuous mental process." United States v. Cardascia, 951 F.2d at 488. Such continuity effectively extends the "contemporaneity" of the statement beyond the moment of pronouncement. Cf. id. (recognizing possibility of continuity extending contemporaneity required by Rule 803(3) but not finding principle applicable to statement offered to [173] support backward inference[1]). For example, experience and common sense indicate that someone who professes to be a baseball fan on Monday is likely to be of the same state of mind on Tuesday. Statements of intent also may reflect a continuing mental process. See 2 McCormick on Evidence, supra, § 274, at 270 (observing that assertion of then-existing intent to go on business trip next day "will be evidence not only of the intention at the time of the statement, but also of the same purpose the next day when the declarant is on the road").
Not all statements describing a declarant's mental state, however, warrant an inference of continuity. Some expressions of emotion last a lifetime, while others may be unlikely to persist long after their triggering events. Some professions of state of mind may be too vague or tenuous to support an inference of continuity, particularly where there is a significant lapse of time between the declaration and the mens rea at issue. Intervening events may also signal a possible change in the declarant's state of mind. This court has thus held that "[w]hether a statement is part of a continuous mental process and therefore admissible under the present state of mind exception" is "a question for the trial court." United States v. Cardascia, 951 F.2d at 488. As with any determination of fact, we will not disturb a trial court's finding as to likely continuity in the absence of clear error. Cf. United States v. Monteleone, 257 F.3d 210, 221 (2d Cir. 2001) (applying clear error review to factual findings underlying trial court's decision to admit statement under Fed.R.Evid. 801(d)(2)(E)); United States v. Gigante, 166 F.3d 75, 82 (2d Cir.1999) (same).
Precisely because a finding of continuity effectively extends the contemporaneity of a statement beyond common understanding — and, therefore, expands the application of Rule 803(3) — the question merits careful judicial attention. Commentators have appropriately suggested that district courts should consider "all the factors on both sides of the equation" in determining the likely continuity of a proffered statement of state of mind, including "the possibility of bad faith" by the declarant. 5 Weinstein & Berger, supra, § 803.05[2][c][i], at 803-36. This is not contrary to DiMaria, which precludes judicial inquiry into the credibility of the expressed state of mind when contemporaneity is not at issue. But where contemporaneity is in question, depending on whether a state of mind expressed on one occasion is likely to have continued through to another time relevant to the case, a district court's consideration of the totality of the circumstances properly includes any indications as to whether the proffered statement was made in good or bad faith. Other factors that may also inform the inquiry include, but are not limited to, what the statement itself actually says about the declarant's state of mind and how clearly, the lapse of time between the statement and the conduct for which mens rea is at issue in the case, and any intervening life events or statements by the declarant signaling a possible break in mental process or change of mind. See generally 4 Mueller & Kirkpatrick, supra, § 8:71, at 604.
With these principles in mind, I identify no error in the exclusion of Sabir's October 5, 2004 statements. As the district court [174] correctly recognized, the vast majority of those statements recounted "things that happened in the past," Trial Tr. at 1343, i.e., "fact[s] remembered," Fed.R.Evid. 803(3), and, thus, fall outside the rule's exception. As for the few statements purporting to express Sabir's then existing state of mind — i.e., his professed appreciation for life in the United States compared to Saudi Arabia, his stated intent to return to live in the United States and to "make things better" in this country, and his observation that he did not condone suicide bombing — I note that Sabir's state of mind on October 5, 2004, the date of declaration, was not really at issue in the case. To be sure, that date fell within the time frame of the charged conspiracy. But conspirators, like other persons, do not pursue their objectives at all times. Certainly, the government did not contend that any of Sabir's actions on October 5, 2004, were in furtherance of the conspiracy. Much less did it rely on those actions in attempting to prove a mens rea element of the crime. Rather, it focused on Sabir's words and actions at the May 20, 2005 meeting with the undercover agent to prove a mens rea intent on supporting terrorism. To the extent Sabir offered his October 5, 2004 statements as evidence of a state of mind not disposed to support al Qaeda, the requirements of contemporaneity and relevance required the district court to decide whether Sabir likely maintained that state of mind through that date.
This conclusion is not at odds with our holding today on Sabir's Rule 801(d)(2)(E) challenge because a trial court's focus in deciding what evidence to admit is different from a jury's focus in deciding the question of guilt. While the trial court was required to find the existence of a conspiracy throughout the period 2003-05 to admit Shah's recorded statements against Sabir under Rule 802(d)(2)(E), it was required to make that finding only by a preponderance. Meanwhile, the jury could not convict Sabir of conspiracy except upon proof beyond a reasonable doubt, but it could make that finding with respect to any time within the charged period. See United States v. Heimann, 705 F.2d 662, 666 (2d Cir.1983) (upholding conviction where conspiracy proved some time within charged period). Thus, where, as in this case, all parties focused on May 20, 2005, as the critical date for determining Sabir's participation in the charged conspiracy and related attempt offense, the trial judge could appropriately consider whether Sabir's earlier professed state of mind likely continued to that date in deciding whether the statement was admissible under Rules 401, 403, and 803(3).
The record not only fails to support such a finding of continuity; it compels a contrary conclusion. As the district court observed, Sabir's October 5, 2004 statements were vague and self-serving, raising legitimate concerns about the likelihood of his maintaining the state of mind they purportedly described into the next year.[2] [T 1118] Quite apart from these concerns, however, the record provides conclusive proof that Sabir's purported state of mind [175] on October 5, 2004, was not his state of mind on May 20, 2005. That proof is, of course, the tape recording of the May 20 meeting. Far from indicating that Sabir was not inclined to support al Qaeda, the recording showed him swearing fealty to this terrorist organization and promising to support it by serving as an on-call doctor for its wounded combatants in Saudi Arabia. On this record, I think it would be impossible to find that the October 5, 2004 statements expressed a then-existing state of mind that continued through May 20, 2005. In the absence of such continuity, the October 5, 2004 statements failed to satisfy both the contemporaneity requirement of Rule 803(3) and the relevancy requirements of Rules 401 and 403. For these reasons, I think the district court properly excluded the statements from evidence, and I would reject Sabir's Rule 803(3) challenge as without merit.
DEARIE, Chief District Judge, dissenting in part.
I write to voice my strong disagreement with the majority's conclusion that the evidence is legally sufficient to sustain the attempt conviction. I otherwise concur.
This is not an attempt. I agree that application of the familiar "substantial step" formula must be made on a case-by-case basis and that in some cases the adequacy of the proof may not be readily determined, but this is not such a case. I agree that the distinction between various forms of material support may prove meaningful in some cases, but again this is not such a case. Whatever the label, the substantive crime was so remote in time, place and objective that one is left only to speculate as to what, if anything, would have happened had Sabir in fact been in a position to pursue the conspiratorial goal.
Without the benefit of meaningful input from the litigants or trial court, moreover, the majority appears to expand the reach of "personnel"[1] to include those who do nothing beyond "pledge[] to work under the direction of the organization." Majority Op., ante at [152]. This conclusion is without precedent and hinges upon what is, in my view, a seriously flawed interpretation of the material support statutes.
I.
There is no question that, construed in the government's favor, the evidence supports the conspiracy count. A rational jury could have found that, at the single meeting with his co-conspirator and the undercover agent, Sabir indeed agreed to provide medical support to wounded al Qaeda somewhere in Saudi Arabia at some point in the future. Fairly stated, the majority further concludes that once Sabir offered these services, he took a substantial step toward becoming the organization's "on call" doctor. The remaining evidence to support the attempt conviction is Sabir's swearing an oath to al Qaeda, which the government acknowledges is not a criminal act, and his providing contact numbers, which the decisions of this Circuit confirm is not a substantial step toward the commission of a crime.
The majority is correct that a "substantial-step analysis necessarily begins with a proper understanding of the crime being [176] attempted." Majority Op., ante at [147]. Count Two of the indictment charged Sabir with attempting to provide "material support" to al Qaeda in the form of "personnel, training, and expert advice and assistance, as those terms are defined" in 18 U.S.C. §§ 2339A-B, "to wit ... attempt[ing] to provide medical support to wounded jihadists." (4th Superseding Indictment, 05 cr 673, Dkt. # 89, at 3-4.) The majority, however, does not affirm on the ground that Sabir's actions were an attempt to provide actual medical support to wounded jihadists in Saudi Arabia. Nor could it, in light of this Circuit's established precedent, discussed below. Rather, the majority focuses elsewhere, concluding that "[w]hether or not Sabir's May 20, 2005 actions were a substantial step in the provision of expert medical services to terrorists," Sabir's actions on this date "were a substantial step in the provision of Sabir himself as personnel." Majority Op., ante at [151] (emphasis supplied).
The rule is clear enough "that we may affirm on any grounds for which there is a record sufficient to permit conclusions of law." Chesley v. Union Carbide Corp., 927 F.2d 60, 68 (2d Cir.1991) (internal quotation marks omitted). There is no dispute that the evidence is sufficient to establish the element of intent, leaving only the import of Sabir's conduct to be determined. The majority concludes that a reasonable juror could find, based on the evidence, that Sabir took a substantial step toward providing himself as personnel. Going further, the majority suggests that Sabir's conduct would have sufficed to provide himself as personnel had circumstances been as he believed, a novel question that the litigants never expressly considered, much less briefed.[2] I address these matters in turn.
II.
The issue before us is whether Sabir's meeting with an undercover agent in the Bronx, "swearing an oath of allegiance to al Qaeda" and "providing ... contact numbers for al Qaeda members to reach him in Saudi Arabia" constitute a substantial step toward his providing personnel (i.e., himself) to work under al Qaeda's direction and control. Majority Op., ante at [150]. Although "substantial step" analysis is often "fraught with difficulty," United States v. Ivic, 700 F.2d 51, 66 (2d Cir.1983), in this case, the question is straightforward and readily answered in the negative.
I find no case, in any court, that even remotely supports the majority's conclusion that a defendant attempts a crime simply by agreeing to commit the crime and providing a phone number. Nor does the government, in its single-paragraph ipse dixit defense of the conviction, offer any authority to support its position. The majority opinion cites established precedents that recite the recognized law of attempt, but none of these cases, regardless of outcome, justifies the majority's position. Quite the contrary.
[177] First, the cases routinely hold that mere preparation is not an attempt. See, e.g., United States v. Manley, 632 F.2d 978, 987 (2d Cir.1980) ("A substantial step must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime."). As the majority notes, a substantial step must be part of "`a course of conduct planned to culminate in [the] commission of the crime.'" Ivic, 700 F.2d at 66 (quoting Model Penal Code § 5.01(1)(c)). It is the conduct that is dispositive. Here, however, there was little to none. There was just talk that was, for the most part, prompted by the undercover agent. There is no evidence of any activity whatsoever that might indicate that Sabir had indeed embarked upon a determined path to proximate criminality in providing material support.
Second, in the cases in which this Circuit has sustained a finding of attempt, "`the accused's conduct ha[d] progressed sufficiently to minimize the risk of an unfair conviction.'" Manley, 632 F.2d at 988 ("`[A]n attempt is necessarily predictive....'") (quoting United States v. Busic, 549 F.2d 252, 257 n. 9 (2d Cir. 1977)). For example, in United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir. 1976), the case in which we adopted the substantial step formulation of the Model Penal Code, we found evidence of a substantial step toward robbery because the defendants cased the target bank, discussed their plan of attack, armed themselves, stole ski masks and surgical gloves, and actually moved toward the bank to commit the crime. We held that "[a]ll that stood between appellants and success was a group of F.B.I. agents and police officers" whose timely intervention "probably prevented not only a robbery but possible bloodshed." Id. at 1041. Likewise, in Manley, 632 F.2d at 988, we held that the defendant took a substantial step toward purchasing drugs because he drove to an acquaintance's home late at night with a large amount of cash that was roughly equivalent to the value of the cocaine found at the house. In affirming that conviction, we aptly observed that "it is hard to conceive of any additional preliminary steps which [the defendant] could have taken short of the actual acquisition of the narcotics." Id. at 989. And in United States v. Crowley, 318 F.3d 401, 408 (2d Cir.2003), we found sufficient evidence of an attempt to commit a sexual act by force after the defendant pinned his victim to the bed, put his hand in her shorts and sought to penetrate her with his fingers. By comparison, the meager evidence of any action by Sabir to further the criminal objective falls far short of a substantial step.
The majority also relies on Ivic, 700 F.2d at 67, a case that explores the outer boundaries of what actions constitute a substantial step. In that case, having already acquired explosives and devised a plan of attack, one defendant authorized the bombing of a travel agency and the other reconnoitered the site. Judge Friendly found that the evidence of attempt was "sufficient, although barely so." Id. (emphasis supplied). If casing the location and stockpiling explosives is "barely" an attempt, how can Sabir's limited conduct possibly be?
The principal case the majority invokes, United States v. Delvecchio, 816 F.2d 859, 861-62 (2d Cir.1987), compels the conclusion that no attempt occurred here. The majority correctly cites this decision as "hold[ing] that evidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction," id. at 862, but finds that "by promising to be on call in Saudi Arabia to treat wounded al Qaeda members[] and by providing private and work contact numbers," [178] Majority Op., ante at [145], Sabir engaged in a substantial step sufficient to sustain a conviction for attempting to provide himself as personnel. Closer attention to Delvecchio's facts illuminates the flaw in the majority's reasoning.
In Delvecchio, we found the evidence of an attempt to purchase drugs insufficient even though Delvecchio and his partner had sought out suppliers, actually an undercover agent and an informant, then agreed to buy five kilograms of heroin from them at 10:00 pm the following evening for $195,000 per kilogram on a specific street corner in Manhattan. At one of two dinner meetings, the Delvecchio defendants, like Sabir, gave their contact numbers to the agent and informant. Id. at 861. Without hesitation, however, we concluded that the defendants had not attempted to purchase the narcotics, because their "plan to possess heroin had only advanced to the stage of meeting with their purported suppliers to work out the terms of the deal." Id. at 862 ("[E]vidence of a verbal agreement alone, without more, is insufficient as a matter of law to support an attempt conviction."). The government failed to show that the defendants "performed any overt act to carry out the agreed upon" transaction; the defendants had not, for example, "set out for the meeting site" or "attempted to acquire the almost one million dollars necessary to complete the purchase." Id. We upheld the defendants' conspiracy convictions alone.
It cannot seriously be disputed that the Delvecchio defendants' actions, like those of the defendants in every case mentioned above, were far closer to an attempt at the respective crime than were Sabir's. The Delvecchio defendants worked out every aspect of an imminent drug deal. Sabir, by contrast, viewing the facts in the government's favor, agreed to be "on call" as a doctor halfway around the world under unspecified conditions at some indefinite time in the future. Sabir never had the chance to demonstrate whether his actions would have been consistent with his conspiratorial pledge. Indeed, Sabir and the undercover did not even "work out the terms of the deal." Id. at 862.
Before Sabir could have placed himself under al Qaeda's direction or control, moreover, he needed to return to Riyadh. He "[a]ssum[ed] that" he could "get back," which required locating or replacing his passport and enlisting the aid of the consulate. GX 906T at 14. In addition to these administrative hurdles, Sabir had to overcome restrictions on his mobility and find a place in which to treat wounded mujahideen. Sabir told the undercover that he was being forced to live on hospital grounds, id. at 66-70, agreed that he could not treat wounded jihadists at the hospital, id., doubted his ability to leave the confines of his hospital "without people watching [his] every movement," id. at 70-71, and volunteered that he had no means of transportation, id. at 16.[3] The Delvecchio defendants, in stark contrast, completed all such preliminary arrangements, but even then the panel readily concluded that no attempt had occurred. 816 F.2d at 862.
The majority purports to distinguish Delvecchio in a number of ways. Initially, the majority notes that "[w]hereas an attempt to possess focuses on a defendant's efforts to acquire, an attempt to provide [179] focuses on his efforts to supply, a distinction that necessarily informs" the attempt analysis. Majority Op., ante at [147]. This distinction is not meaningful. To demonstrate, suppose that the Delvecchio defendants' convictions were based upon an agreed-upon supply of drugs to an undercover agent, rather than an acquisition from the agent. In such a case, would a verbal agreement plus a contact number equal an attempt? We held otherwise in United States v. Rosa, 11 F.3d 315, 339-40 (2d Cir.1993). Because the Rosa defendant "did not produce any heroin for the proposed sale," nor had he "made any effort to obtain heroin ... in order to sell it to" the agent, we once again held the evidence insufficient to sustain an attempt conviction. Id. at 340-41. Rosa illustrates that, whether acquiring or providing, a defendant who follows an agreement with inactivity while the criminal objective remains beyond reach cannot be guilty of an attempt. See Rosa, 11 F.3d at 340 (emphasizing the defendant's statement that his own supplier "might be in jail"). In either case, the pivotal issue is proximity — in time, place or readiness — to commission of the charged offense.
To support its conclusion, the majority poses the hypothetical situation in which we are to assume that Sabir is not a doctor but rather an al Qaeda recruiter who recruits doctors like Sabir. The majority is correct that, under those circumstances, the recruiter could be found guilty of attempting to provide personnel. Such conduct, which could be accomplished locally, would be real, measurable and meaningful. See Stallworth, 543 F.2d at 1040 n. 5 (noting that "`soliciting an innocent agent to engage in conduct constituting an element of the crime'" may be a substantial step sufficient to uphold an attempt conviction) (quoting Model Penal Code 5.01(2)(g)). Simply stated, the recruiter in the hypothetical has done something. He has provided a service to the organization. His culpability is not a matter of conjecture. Cf. United States v. Awan, 384 Fed.Appx. 9, 13 (2d Cir.2010) (affirming conviction for conspiracy to provide personnel where testimony and recorded conversations "provided sufficient evidence from which a rational jury could find that [the defendant] was recruiting for" a foreign terrorist organization). By attending a meeting and volunteering his services, the actual Sabir, unlike the hypothetical recruiter, has done nothing more than reiterate agreement.[4]
Finally, and most importantly, the majority proposes that Sabir went beyond attending a meeting and agreeing to serve: he "took a step essential to provide al Qaeda with personnel in the form of an on-call doctor" by "provid[ing] the means by which mujahideen in Riyadh could reach that doctor at any time." Majority Op., ante at [150]. This observation might have some significance if Sabir's "enlistment" came at or near some jihadist camp or battleground, and he was situated, equipped and ready to assist; but the location in question was almost 7,000 miles away, and no preparations to be "on call" had been made or even discussed,[5] leaving [180] the actual provision of material support entirely a matter of speculation and surmise. If, to borrow the majority's phrase, "a step essential" to sustain an attempt conviction were provision of a contact number for resultant transactions, then Delvecchio must have been wrongly decided. Drawing all conceivable inferences in favor of the government, there is simply no way to square these facts with the cases cited and conclude that an attempt has been established.
III.
Just as troubling as the majority's "substantial step" analysis is its suggestion that a person actually completes the crime of providing "material support in the form of personnel as soon as he pledges to work under the direction of the organization."[6] Majority Op., ante at [182]. In so suggesting, the majority enters largely untested statutory waters.
The few courts to rule on sufficiency challenges relating to the term "personnel" — or even to construe the term — have required a level of engagement, activity or compliance far surpassing Sabir's someday, someplace commitment here.[7]Compare United States v. Abu-Jihaad, 600 F.Supp.2d 362, 401 (D.Conn.2009) (communicating sensitive defense information to terrorist organization on single occasion [181] was insufficient evidence of providing self as "personnel," without evidence that the organization requested such information pursuant to a prior "arrangement[]" and that the defendant "did as requested"), aff'd on other grounds, 630 F.3d 102 (2d Cir.2010); United States v. Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (contacting overseas al Qaeda associates while in North America, without more, "would be inadmissible as evidence of guilt [absent] additional conduct that would constitute provision of `personnel'") with United States v. Taleb-Jedi, 566 F.Supp.2d 157 (E.D.N.Y.2008) (teaching language classes, translating documents and working in organization's political division at Iraqi base potentially equaled providing self as "personnel"); United States v. Lindh, 212 F.Supp.2d 541, 580 (E.D.Va.2002) (training with and fighting alongside terrorist groups in Afghanistan potentially equaled providing self as "personnel"); United States v. Goba, 220 F.Supp.2d 182, 193-94 (W.D.N.Y.2002) (attending al Qaeda training camp for five weeks potentially equaled providing selves as "personnel"); cf. United States v. Stewart, 590 F.3d 93, 115 (2d Cir.2009) (relaying repeated messages to and from imprisoned terrorist regarding ongoing conspiracy was "`active participation'" that equaled providing prisoner as "personnel"); Awan, 384 Fed.Appx. at 17 (soliciting another "for training and carrying out attacks in India on behalf of" terrorist organization equaled conspiring to provide recruit as "personnel"); United States v. Marzook, 383 F.Supp.2d 1056, 1065 (N.D.Ill.2005) (recruiting another "to join Hamas and make trips to the Middle East" to scout attack locations potentially equaled providing recruit as "personnel").
These courts consistently distinguish between activity and passivity, in each case criminalizing the former and not the latter. The majority states that "it may frequently be the case that a defendant who intends to provide a terrorist organization with personnel also intends for the personnel to provide the organization with services." Majority Op., ante at [150]. That, I submit, is an understatement. To suggest that Sabir became al Qaeda's doctor in Riyadh after the May 2005 meeting in the Bronx, thus facilitating more dangerous missions, requires logical leaps that the record below simply will not bear.[8] To serve the statute's objectives without overreaching, some post-agreement activity must be shown to establish an attempt to provide oneself as personnel.
Further, by transforming offers to provide services into attempted provision of personnel, the majority's holding may sanction multiple punishments for a single offense.[9] An attempt requires a substantial [182] step toward criminality; a conspiracy requires agreement with another wrongdoer. On these facts, however, the majority substitutes evidence of agreement and intent for evidence of the substantive crime. See, e.g., United States v. Gore, 154 F.3d 34, 46 (2d Cir.1998) (disallowing multiple sentences for violations of a single statute where, given the "narrow set of facts" presented, "no longer does each offense require proof of a fact that the other does not"). As the majority concludes, at the May 2005 meeting, Sabir "formalize[d] his promise" to work for al Qaeda. Majority Op., ante at [150-51]. Thus, it is hard to see how the conspiracy and attempt convictions meaningfully differ. See Iannelli v. United States, 420 U.S. 770, 785-86 & n. 18, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) (reaffirming that "the real problem" in such cases "is the avoidance of dual punishment").
Conspiracy charges unaccompanied by a completed substantive crime are relatively rare, and can be troubling when the available evidence leaves one to speculate whether the criminal objective would have been realized. In this case, such concern is compounded by the need to find the line between radical beliefs and radical action.[10] The law of attempt has evolved to take the guesswork out of finding that line. At the one meeting Sabir attended, he indeed chanted the mantra of the terrorist, led by the government agent and inspired by his co-defendant. But we are left to wonder whether his apparent enthusiasm would have, or even could have, led to action on his part. That should not be, and no imaginable view of the evidence removes this uncertainty.
This Court observed in Crowley that "[t]he problem faced by the drafters [of the Model Penal Code] was that to punish as an attempt every act done to further a criminal purpose, no matter how remote from accomplishing harm, risks punishing individuals for their thoughts alone, before they have committed any act that is dangerous or harmful." 318 F.3d at 408. I submit that the majority has done just that by abandoning the notion, fundamental to attempt jurisprudence, that we punish criminal deeds and not thoughts or intentions. The majority declares, however, that the crime at issue "is of a quite different sort." Majority Op., ante at [147]. Whatever the "sort" of offense, Sabir was not charged with mere membership in al Qaeda or for being sympathetic to some radical Islamic cause. Signing on to the al Qaeda roster of loyalists (as reprehensible as that may be) is not, and could not be, the crime at issue, since "Section 2339B does not criminalize mere membership in a designated foreign terrorist organization. It instead prohibits providing `material support' to such a group." Humanitarian Law, 130 S.Ct. at 2718; see also id. at 2730 [183] ("[T]he statute does not penalize mere association with a foreign terrorist organization."); 18 U.S.C. § 2339B(i) ("Nothing in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment to the Constitution of the United States.").
The majority asserts that "a reasonable jury could have concluded that," based on his May 20, 2005 actions, "Sabir crossed the line from simply professing radical beliefs or joining a radical organization to attempting [the] crime" of providing himself to work under al Qaeda's control. Majority Op., ante at [151]. The only evidence tending to show such control is the oath. But the litigants, and presumably the majority, agree that the oath alone is not a basis for imprisonment.[11] At best, the oath reflects an agreement and intention to follow directions, but "mere intention to commit a specified crime does not amount to an attempt." Manley, 632 F.2d at 988 (internal quotation marks omitted). Despite the majority's apparent preoccupation with Sabir's state of mind, the independent evidence of attempt in this case remains a pair of phone numbers. Those evidentiary morsels cannot sustain the substantive conviction.
As recent history tragically illustrates, provision of material support of any form to a terrorist organization emboldens that organization and increases the likelihood of future terrorist attacks. That is why Congress enacted statutes criminalizing such activity. Simply stated, however, the majority has at once unwisely re-written the law of attempt, raised freedom-of-association concerns and possibly treaded on double jeopardy protection, "opening the door to mischievous abuse." United States v. Johnpoll, 739 F.2d 702, 715 (2d Cir.1984). Regardless of Sabir's inclination, as a matter of law, any step he took toward that end was insubstantial and any support he furnished unquestionably immaterial.
In the end, a man stands guilty, and severely punished, for an offense that he did not commit. Therefore, I respectfully dissent.
[1] Chief District Judge Raymond J. Dearie of the Eastern District of New York, sitting by designation.
[2] In a separate order issued today, we dismiss the appeal of Sabir's co-defendant Abdulrahman Farhane.
[3] Trial evidence indicated that beginning in the mid-1990s, Shah in fact taught martial arts classes at numerous locations, including two mosques in suburban Maryland and another two in upstate New York, as well as at his own martial arts school in New York City. Participants in these classes testified that Shah taught them the use of deadly weapons and lethal fighting techniques, while exhorting them to embrace jihad.
[4] Al Qaeda is the most notorious terrorist group presently pursuing jihad against the United States. In February 1998, its leaders, including Osama bin Laden and Ayman al Zawahiri, issued an infamous fatwa (religious decree) pronouncing it the individual duty of every Muslim to kill Americans and their allies — whether civilian or military — in any country where that could be done. For a detailed discussion of this fatwa and al Qaeda's terrorist activities up to 2004 — including the 1998 bombings of American embassies in Kenya and Tanzania, which killed 224 people; the October 2000 bombing of the USS Cole, which took 17 lives; and the September 11, 2001 airplane attacks on the World Trade Center and the Pentagon, which killed 2,973 persons — see The National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report (2004). See also United States v. Moussaoui, 591 F.3d 263, 273-74 (4th Cir.2010); In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 103-05 (2d Cir.2008).
[5] Shah and Sabir were not named in Counts Three and Four of the indictment, charging Mahmud Faruq Brent with conspiring to provide and providing material support in the form of personnel to the terrorist organization Lashkar-e-Taiba. See Indictment ¶¶ 3-4. We do not discuss these charges further in this opinion.
[6] Section 2339B, entitled "Providing material support or resources to designated foreign terrorist organizations" was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, § 303(a), 110 Stat. 1214, 1250 (1996), to supplement 18 U.S.C. § 2339A, entitled "Providing material support to terrorists," which was enacted two years earlier as part of the Violent Crime Control and Law Enforcement Act, Pub. L. No. 103-322, § 12005(a), 108 Stat. 1796, 2022 (1994). These statutory provisions have been substantively amended twice: first, in response to al Qaeda's September 11, 2001 attacks on the United States, by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act ("USA PATRIOT Act"), Pub. L. No. 107-56, § 810(d), 115 Stat. 272, 380 (2001); and second, by the Intelligence Reform and Terrorism Prevention Act ("IRTPA"), Pub. L. No. 108-458, § 6603(c), 118 Stat. 3638, 3762-63 (2004). As Sabir stands convicted under the latest iteration of the statute, we cite thereto in this opinion.
[7] Al Qaeda's designation as a terrorist organization pursuant to Section 219 of the Immigration and Nationality Act, 8 U.S.C. § 1189, is undisputed. See 64 Fed. Reg. 55,112 (1999); 66 Fed. Reg. 51,088 (2001); 68 Fed. Reg. 56,860 (2003). The United States' response to al Qaeda has not, however, been limited to such designation. Two successive administrations have indicated that the nation is at "war" with al Qaeda. See Press Release of Remarks by President Obama on Strengthening Intelligence and Aviation Security, Jan. 7, 2010 ("We are at war. We are at war against al Qaeda, a far-reaching network of violence and hatred that attacked us on 9/11, that killed nearly 3,000 innocent people, and that is plotting to strike us again. And we will do whatever it takes to defeat them."); Eric Lichtblau, Bush Seeks to Affirm a Continuing War on Terror, N.Y. Times, Aug. 30, 2008, at A10 (quoting administration proposal that Congress "acknowledge again and explicitly that this nation remains engaged in an armed conflict with Al Qaeda ... and associated organizations, who have already proclaimed themselves at war with us and who are dedicated to the slaughter of Americans"). The executive locates support for its actions in Congress's September 18, 2001 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). See, e.g., Harold Hongju Koh, Legal Adviser, U.S. Department of State, Address to the Annual Meeting of the American Society of International Law: The Obama Administration and International Law (Mar. 25, 2010), available at http://www.state. gov/s/l/releases/remarks/139119.htm (explaining that in light of al Qaeda's "horrific" attacks on the United States, the United States is "in an armed conflict with al Qaeda" that is justified by both international and domestic law).
[8] Title 18 U.S.C. § 2339B(i), added by IRTPA, precludes any construction or application of § 2339B that abridges the exercise of First Amendment rights. This necessarily extends to those parts of § 2339A incorporated into § 2339B, such as these definitions.
[9] In Holder v. Humanitarian Law Project, the Supreme Court expressed a preference for as-applied review even where First Amendment rights are implicated. See 130 S.Ct. at 2719.
[10] City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (declaring local loitering ordinance unconstitutionally vague on its face), cited by Sabir, warrants no different approach to his facial vagueness claim. Morales is distinguishable from this case in that the ordinance there at issue (1) reached a substantial amount of innocent conduct, (2) lacked a mens rea requirement to mitigate overbreadth concerns, and (3) had been interpreted by the state supreme court in a way that precluded the Supreme Court from adopting a narrow construction avoiding constitutional concerns. See id. at 60-64, 119 S.Ct. 1849; see also United States v. Rybicki, 354 F.3d at 150-52 (Raggi, J., concurring) (discussing circumstances in Morales that precluded Hoffman Estates/Salerno analysis). Because none of these concerns is here present, we rely on traditional as-applied review in considering Sabir's vagueness challenge.
[11] This definition for the term "expert advice or assistance" is familiar from Fed.R.Evid. 702, governing expert witnesses.
[12] In this context, the word "preparation" obviously means "a substance specially prepared, or made up for its appropriate use or application, e.g. as food or medicine," not "the action of preparing." 12 Oxford English Dictionary 374 (2d ed. 1989).
[13] The intent required to prove attempted material support for a foreign terrorist organization should not be confused with an intent to further terrorism. Just as that latter intent is not required to prove an actual § 2339B violation, see Holder v. Humanitarian Law Project, 130 S.Ct. at 2717 ("Congress plainly spoke to the necessary mental state for a violation of § 2339B, and it chose knowledge about the organization's connection to terrorism, not specific intent to further the organization's terrorist activities."), it is not required to prove a conspiracy or attempt to violate that statute. Nevertheless, in this case, much of the evidence proving Sabir's intent to provide material support also indicates his intent to further terrorism.
[14] Evidence of terrorist efforts to recruit doctors was adduced at trial in United States v. Abu-Jihaad, 630 F.3d 102, 109 (2d Cir.2010) (describing website post soliciting persons to provide "battlefield medical services" in Afghanistan (internal quotation marks omitted)).
[15] Sabir had earlier provided Soufan with a contact number in response to the undercover agent's offer of assistance with "anything" Sabir might "need" in Saudi Arabia. GX 906T at 40. In extending this offer, the undercover made clear that such assistance would come from mujahideen: "[W]e have a lot of brothers, thank God, mujahideen.... [T]hey will uh be very happy to assist another brother.... [T]hey still work in their jobs with the government ... but uh their hearts and minds are on the right track." Id. at 15 (italics in transcript reflect translation from Arabic to English). Without prompting, Sabir stated, "I would like to meet them," proposing an exchange of contact numbers: "Even if you just give me one person that I can contact over there, but I can give you my, my mobile phone over there, the number I can give." Id. at 40.
[16] In Ivic, the court upheld convictions for attempting to bomb two locations, observing that defendants' inspection of one bombing site, construction of a fully operational bomb, and transportation of the bomb to the vicinity of the target site satisfied even the common law standard of attempt, while defendants' discussion and authorization of the second bombing, examination of the target site, and possession of explosives satisfied the Model Code standard, albeit barely. See United States v. Ivic, 700 F.2d at 67.
[17] With respect to "personnel," Sabir and Shah were alleged to have
knowingly provided, and attempted to provide, (i) one or more individuals (including themselves) to work under al Qaeda's direction and control and to organize, manage, supervise, and otherwise direct the operation of al Qaeda.
Indictment ¶ 2. With respect to "training," Sabir and Shah were alleged to have
knowingly provided, and attempted to provide,... (ii) instruction and teaching designed to impart a special skill to further the illegal objectives of al Qaeda.
Id. With respect to "expert advice and assistance," Sabir and Shah were alleged to have
knowingly provided, and attempted to provide,... (iii) advice and assistance derived from scientific, technical, and other specialized knowledge to further the illegal objectives of al Qaeda, to wit, [Shah] provided and attempted to provide martial arts training and instruction for jihadists, and [Sabir] provided and attempted to provide medical support to wounded jihadists knowing that al Qaeda has engaged and engages in terrorist activity ... and that al Qaeda has engaged and engages in terrorism.
Id.
While our dissenting colleague submits that the government consistently focused on the last form of material support charged, see Dissenting Op., post at [176 n.2], we do not understand it to have abandoned the first two. Quite the contrary, the government referenced personnel in summation, arguing that Sabir "tried to put himself in al Qaeda's back pocket when he gave [the undercover] his phone numbers." Trial Tr. at 2374 (explaining further that al Qaeda benefitted by thus acquiring "an asset that it didn't have before... the telephone number of a doctor ... willing and able to come to [its] aid 24 hours a day"). Moreover, the district court charged the jury as to each of the three forms of material support alleged in the indictment and their distinct meanings, and further instructed that proof beyond a reasonable doubt of an attempt to provide material support in any of these forms was sufficient to support a guilty verdict. See id. at 2586-87.
[18] In light of this conclusion, we need not discuss the sufficiency of the evidence to support Sabir's Count Two conviction on any other theory. Specifically, we need not consider the government's argument that Sabir was guilty of aiding and abetting Shah's attempt to provide material support to al Qaeda in the form of martial arts training. See Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991).
[19] Judge Raggi is of the view that, if the circumstances on May 20, 2005, had been as Sabir believed, i.e., if Agent Soufan had been a member of al Qaeda, the evidence was otherwise sufficient to support a finding that Sabir actually provided, and not simply attempted to provide, himself as personnel to work under the direction of that terrorist organization. The court does not rule on that question as our rejection of Sabir's sufficiency challenge to attempt supports affirmance of his conviction.
[20] Before Sabir took the oath, Agent Soufan had explained that Osama bin Laden and Ayman Zawahiri required a pledge from all persons proposing to work for al Qaeda to ensure that the persons "won't be acting on their own," but following leadership direction. GX 906T at 97-98 (explaining that everything within al Qaeda was "very, very controlled," but emphasizing that "nobody is forced" to take the oath; "there is no coercion in religion").
[21] Section 2339A(b)(1) broadly defines "material support or resources" to mean "any property, tangible or intangible, or service," of which "personnel" and "expert advice or assistance," are examples. See supra at [134-35].
[22] Of course, Sabir could not conspire with the undercover agent. Sabir's conspiracy conviction in this case is supported by his agreement with co-defendant Shah, an agreement reached even before the May 20, 2005 meeting.
[23] The fact that the dictionary defines "personnel" by reference to a "body of people," see Dissenting Op., post at [180 n. 7] (quoting Oxford English Dictionary), is of no import here where the relevant statutes, 18 U.S.C. §§ 2339A(b)(1), 2339B, state that "personnel" means "1 or more individuals who may be or include oneself," see, e.g., Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979) (referencing rule of construction that statutory definition controls meaning of terms).
[24] Many of the district court cases cited by the dissent treat direction and control, not a particular level of activity, as the critical fact in assessing a provision of personnel charge. See, e.g., United States v. Taleb-Jedi, 566 F.Supp.2d 157, 176 (E.D.N.Y.2008) (rejecting defendant's First Amendment challenge to proscription on providing personnel, observing that statute prohibits person from working under "terrorist organization's direction or control" no matter how benign the work); United States v. Lindh, 212 F.Supp.2d 541, 573 (E.D.Va.2002) (holding that provision of personnel requires proof of more than defendant's "mere presence" among members of terrorist organization: "`Personnel' refers to individuals who function as employees or quasi-employees — those who serve under the foreign entity's direction or control."); see also United States v. Abu-Jihaad, 600 F.Supp.2d 362, 401 (D.Conn.2009) (holding that defendants transmittal of national defense information to publisher linked to al Qaeda was insufficient to prove defendant's provision of himself as personnel in absence of evidence as to whether information was provided in response to publisher's request — which would permit finding that defendant had provided himself as personnel — or on defendant's whim — which would not), aff'd on other grounds, 630 F.3d at 144; United States v. Warsame, 537 F.Supp.2d 1005, 1018 (D.Minn.2008) (holding that defendant's participation in an al Qaeda training camp — a circumstance where control could easily be inferred — sufficed to demonstrate provision of himself as personnel, but mere communications with al Qaeda associates after return to Canada — a circumstance where control was not apparent — could not).
[25] In raising this concern, our dissenting colleague submits that "[c]onspiracy charges unaccompanied by a completed substantive crime are relatively rare, and can be troubling when the available evidence leaves one to speculate whether the criminal objective would have been realized." Dissenting Op., post at [182]. We take exception to this broad generalization. A sufficiency challenge to a conspiracy conviction, whether standing alone or together with a substantive count, requires a review of the evidence in that particular case. Here, Chief Judge Dearie joins the panel in unanimously affirming Sabir's conspiracy conviction.
[26] Although Sabir's attorney urged the district court to impose concurrent sentences, arguing that the conspiracy and substantive charges against him "are actually encompassed in the same conduct," Sentencing Tr., Nov. 28, 2007, at 13-14, this is not a double jeopardy claim, see United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (reversing Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)).
[27] The dissent submits that Sabir "chanted the mantra of a terrorist" because he was "led by the government agent and inspired by his co-defendant." Dissenting Op., post at [182]. What it fails to report is that before Sabir swore bayat, he detailed his understanding of the oath's "deepest significance," GX 906T at 112-13 (discussing historical origin of oath, which Sabir explained "formed a trust" that could not be achieved in any "other way ... because you cannot be complete without it").
[28] Four of the twelve jurors who deliberated in Sabir's case were African Americans. Of those four, one was excused before verdict. See Fed.R.Crim.P. 23(b).
[29] Because Sabir does not specifically challenge the district court's rejection of his Batson argument with respect to the two other African Americans excused by the prosecution — prospective jurors # 14 and # 49 — we deem the point abandoned. See United States v. Draper, 553 F.3d 174, 179 n. 2 (2d Cir. 2009). We nevertheless note that the record does not support any such challenge. The district court expressly found that the prosecution was credibly concerned about these prospective jurors' initially expressed reservations about certain investigative techniques that were used to gather evidence in the case, i.e., wiretapping (prospective juror # 14) and the use of confidential informants (prospective juror # 49). Such a credibility finding is entitled to considerable deference on appeal. See United States v. Lee, 549 F.3d at 94. As the district court correctly observed, the jurors' professed willingness to put their reservations aside meant only that the prosecution could not secure their removal for cause, not that it could not retain a credibly race-neutral concern supporting the exercise of a non-discriminatory peremptory challenge. Further, with respect to the prosecution's stated concern about prospective juror # 49's difficulty of comprehension, the court's acknowledgment that it had itself observed the difficulty supports its finding that this too was a credible race-neutral reason for excusing the juror.
[30] "CSI: Crime Scene Investigation," along with "CSI: Miami" and "CSI: NY," are a trio of popular television series about fictitious teams of forensic investigators who solve crimes by applying science and technology to the review of physical evidence. See "CSI: Crime Scene Investigation," http:// www.cbs.com/primetime/csi/.
[31] Because Sabir challenges the prosecution's professed concern about prospective juror # 26's possible link to a person from Yemen only on pretext grounds (based on dissimilar treatment of another juror), and because other concerns about # 26 defeat the pretext claim, we need not here decide under what circumstances a prospective juror's association with a person of a particular nationality may warrant further inquiry to ensure impartiality. See generally United States v. Douglas, 525 F.3d at 241 (noting that "this Court has not decided the issue of whether national origin is a cognizable classification for Batson protection" (internal quotation marks omitted)); cf. United States v. Stewart, 65 F.3d 918, 925 (11th Cir.1995) (including "subject matter of case being tried" among "relevant circumstances" appropriate for consideration in evaluating Batson challenge).
[32] Kohlmann has, in fact, been qualified as an expert on al Qaeda and terrorism in a number of federal prosecutions. See, e.g., United States v. Benkahla, 530 F.3d 300, 309 n. 2 (4th Cir.2008); United States v. Aref, 285 Fed.Appx. 784, 792 (2d Cir.2008); United States v. Abu-Jihaad, 600 F.Supp.2d 362, 366 (D.Conn.2009); United States v. Kassir, No. 04 Cr. 356(JPK), 2009 WL 910767, at *7 (S.D.N.Y. Apr. 2, 2009).
[33] To the extent Sabir challenges Kohlmann's testimony about al Qaeda's terrorist activities in Saudi Arabia on the ground that the government offered no evidence of Sabir's specific awareness of these activities, the argument bears more on the comparative relevance/prejudice inquiry identified in Rule 403 than on the requirements stated in Rule 702. We discuss the relevancy of this part of Kohlmann's testimony infra at Part II.D.1.c.
[34] While Sabir only references Shah's recorded conversations with the informant in mounting this challenge, we understand the argument also to reach Shah's recorded conversations with the undercover agent.
[35] Where statements are made in the course of an existing conspiracy in which the defendant later joins, those statements may be admitted against him, even though he was not a member of the conspiracy at the time the statements were made, on the theory that he "assumes the risk for what has already happened" in the scheme. 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 801.34[4][a], at 801-84 (Joseph M. McLaughlin ed., 2d ed. 2007) ("Statements made before a conspiracy was actually formed fall outside the realm of Rule 801(d)(2)(E)."); see also United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir.1986) (holding that statements of co-conspirators were admissible against defendant under Rule 801(d)(2)(E), "even if made before he joined the conspiracy").
[36] Elsewhere in the May 20, 2005 conversation, Sabir revealed how the men reached this agreement to support terrorism in the late 1990s. Sabir explained that he and Shah had originally planned to travel to Afghanistan to assist the mujahideen. See GX 906T at 17 ("That was an aspiration, that was a hope, a dream that we had to go move to the mountains."). This statement comported with Shah's earlier remark to Agent Soufan that, as early as 1998, the two men had "really wanted to get over to Afghanistan," where they wanted to "be right in it." GX 902T at 5. Sabir explained that he "never ... made... any definite move" with respect to Afghanistan because he "did not see a clear way" to provide assistance. GX 906T at 17-18. Sabir stated that it was in the late 1990s, when the men were experiencing problems at a Bronx mosque, that they recognized the advantage of "people working within their expertise" in aid of jihad. Id. at 65.
[37] Richardson made no in-court identification of Sabir as the person to whom he was introduced.
[38] No selective prosecution motion was ever filed in this case. In an extended colloquy prior to the defense summation, the district court had already cautioned counsel about the impropriety of arguments insinuating that Sabir had been improperly targeted for prosecution, particularly in light of the fact that investigating agents had no knowledge of Sabir until he was introduced into the case by co-defendant Shah, and given that the defense had withdrawn any claim of entrapment.
[1] Backward looking inferences generally run afoul of Rule 803(3)'s express exclusion of "statement[s] of memory or belief to prove the fact remembered or believed." See also 4 Mueller & Kirkpatrick, supra, § 8:71, at 603-06 (discussing issues associated with drawing forward and backward inferences as to mens rea from statement made at time distinct from that at which conduct at issue occurred).
[2] The district court alluded to the self-serving nature of Sabir's October 5, 2004 statements not only in refusing to admit those statements under Rule 803(3), but also in rejecting Sabir's argument that the statements were admissible under Rule 801(d)(1)(B) to rebut a charge of recent fabrication in his trial testimony. [T 1630-35] See United States v. AlMoayad, 545 F.3d at 167 (explaining that "Rule 801(d)(1)(B) ... includes a fundamental temporal requirement: `The statement must have been made before the declarant developed [an] alleged motive to fabricate.'" (quoting United States v. Forrester, 60 F.3d 52, 64 (2d Cir.1995))). I note that Sabir does not challenge the district court's 801(d)(1) ruling on appeal.
[1] Title 18 U.S.C. § 2339B(h) disallows prosecution "in connection with the term `personnel' unless [a] person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist organization with 1 or more individuals (who may be or include himself) to work under that terrorist organization's direction or control." As we reaffirm in response to Sabir's challenge, this "limiting definition ... answers [any] vagueness concerns," rendering the provision constitutional. Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2721, 177 L.Ed.2d 355 (2010).
[2] During and after trial, the government advanced the view that the attempt count in this case regards actual medical support. See Gov't Summation, 5/15/07 Trial Tr., 05 cr 673, at 2373-74 ("How did Rafiq Sabir try to provide material support? In this case, his expert advice and assistance in the form of his medical skills."); Gov't Sentencing Mem., 05 cr 673, Dkt. # 174, at 3 ("Sabir took a substantial step toward providing expert advice and assistance — i.e., his medical skills — to al Qaeda."). In defending the conviction on appeal, the government speaks of "material support" generally. Gov't Br. at 58. At oral argument, however, the government confirmed that Sabir attempted to provide "medical services," then offered to perform additional research to present its "best case" that Sabir might have been found guilty of attempting to provide personnel.
[3] Although Sabir told the undercover that he could "leave the job" if "living on the hospital property is big enough of a problem," GX 906T at 69, the undercover mentioned Sabir's "very helpful" hospital ID, to which Sabir responded: "I guess that it means that if they are forcing me to live in the hospital property, then I might just have to submit to that and to try to, uh, find another way." Id. at 67-69.
[4] The majority's conclusion that these actions comprise a substantial step, thus distinguishing this case from Delvecchio and Rosa, begs the analysis, since those opinions focus on the respective defendants' actions (or lack thereof) after their initial agreements with the undercover agents. Sabir did not, for instance, call multiple subsequent meetings, describe his criminal plan in the utmost detail, settle most but not "all of the specifics" and "continue[] to negotiate with the government agent[]until his arrest prevented him from doing so." United States v. Jonsson, 15 F.3d 759, 762 (8th Cir.1994) (finding such actions sufficient to distinguish Delvecchio).
[5] The undercover agent initially requested Sabir's phone number in case "there is anything you [i.e., Sabir] need over there." GX 906T at 40 (emphasis supplied).
[6] In footnote [19] to the majority opinion, Judge Raggi expresses her own view that had the undercover agent instead been an al Qaeda operative, the evidence might well support a finding that Sabir actually provided himself as personnel, and not merely attempted to do so. Although the majority states that it does not reach that question, the suggestion that Sabir's actions might have completed the crime likewise appears in connection with the majority's definition of "reserve personnel." Majority Op., ante at [153-54]. The identity of the meeting's third participant, however, has no bearing on the attempt analysis. Had a bona fide high-level recruiter been at that meeting, the breadth of the provable conspiracy would have widened; but without a substantial step, as courts until now have construed the requirement, no attempt would have occurred.
[7] The statutory provision at issue, enacted in 2004, prohibits a person from providing (or attempting to provide) "himself" as personnel to a terrorist organization, and adds the requirement that personnel must work under the organization's "direction or control." 18 U.S.C. § 2339B(h). "Statutory definitions control the meaning of statutory words, of course, in the usual case." Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949) (authorizing deviations from the general rule in the "unusual case" or where a term is defined with less than "`watch-like precision'"). Personnel is ordinarily defined as the "body of people employed in an organization, or engaged in a service or undertaking, esp. of a military nature" (Oxford English Dictionary Online, http://www.oed.com/view/Entry/141512? redirectedFrom=personnel#), or the "body of persons employed by or active in an organization, business, or service" (American Heritage Dictionary of the English Language 1311 (4th ed. 2000)). I offer these definitions not, as the majority suggests, to override the statute, but to inform the question of what in fact suffices to provide oneself as personnel, a "blank to be filled." Burgess v. United States, 553 U.S. 124, 130-32, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (evaluating a statutorily defined term in "context" and in light of how the term "is commonly defined"). The language in § 2339B(h), moreover, is not a traditional definition, which appear in § 2339B(g) (defining "classified information," "financial institution," "training," "expert advice and assistance" and other terms). Rather, § 2339B(h) bars prosecution unless certain requirements are met; nothing suggests that these preconditions are conclusive of liability. See Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 n. 14, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985) (holding that where a statutory "definition" contains requirements for liability rather than simply defining the term, "[t]he implication is that while [such] acts are necessary, they may not be sufficient").
[8] The majority cites to Congress's finding, made in connection with § 2339B's adoption, that "[f]oreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct." Humanitarian Law, 130 S.Ct. at 2724 (quoting AEDPA § 301(a)(7), 110 Stat. 1214, 1247 (1996)). This finding is "best read to reflect a determination that any form of material support" to a terrorist organization, including "ostensibly peaceful aid," should be barred. Id. at 2724-25 (rejecting the argument that contributions which advance "only the legitimate activities of the designated terrorist organizations" are permissible). As such, I join in the unanimous holding that § 2339B, by its terms, criminalizes the practice of medicine (or the doctor himself) that Sabir agreed to provide to al Qaeda. The record below, however, does not support the conclusion that Sabir is guilty of attempting or committing the substantive offense.
[9] Although Sabir did not raise a double jeopardy challenge, nor could he have raised one, to an apparent conclusion of law announced for the first time on appeal, multiple sentences for the same offense are cognizable as plain error. See United States v. Coiro, 922 F.2d 1008, 1013-15 (2d Cir.1991). Sabir's attorney did unsuccessfully argue below for concurrent sentences, moreover, since the conspiracy and substantive charges "are actually encompassed in the same conduct." (11/28/07 Sentencing Tr., 05 cr 673, at 13-14.)
[10] In the context of 18 U.S.C. § 2339A, this Court has noted that "[b]y applying ... the prohibition against providing `personnel' ... to a circumstance in which the defendants provided themselves, the government created a situation in which the defendants could be punished for, in effect, providing themselves to speak out in support of the program or principles of a foreign terrorist organization, an activity protected by the First Amendment." Stewart, 590 F.3d at 118 (contrasting this situation with that of providing another as personnel, an activity that "does not carry the same risk with its corresponding constitutional implications"). While giving full import to § 2339B(h)'s limiting definition, to which the Stewart panel cited, I submit that punishing do-nothing "personnel" for violating the statute's substantive provisions "in effect" punishes such actors for aligning with a terrorist organization.
[11] In the government's own words: "[T]he bayat pledge, the pledge itself, by Rafiq Sabir was not in and of itself a crime.... The bayat itself is not the crime, but it is compelling powerful evidence of those crimes. It shows exactly what Rafiq Sabir was thinking. It shows his sincere commitment to aid al Qaeda." 5/15/07 Trial Tr., 05 cr 673, at 2337.
7.2.8.9 VII. Discretion 7.2.8.9 VII. Discretion
7.2.8.9.1 Rules 7.2.8.9.1 Rules
7.2.8.9.1.1 ABA Criminal Justice Standards: Prosecution Function 7.2.8.9.1.1 ABA Criminal Justice Standards: Prosecution Function
Prosecution Function
GENERAL STANDARDS
Standard 3- 1.1 The Function of the Standards
These standards are intended to be used as a guide to professional conduct and performance. They are not intended to be used as criteria for the judicial evaluation of alleged misconduct of the prosecutor to determine the validity of a conviction. They may or may not be relevant in such judicial evaluation, depending upon all the circumstances.
Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
Standard 3-1.3 Conflicts of Interest
(a) A prosecutor should avoid a conflict of interest with respect to his or her official duties.
(b) A prosecutor should not represent a defendant in criminal proceedings in a jurisdiction where he or she is also employed as a prosecutor.
(c) A prosecutor should not, except as law may otherwise expressly permit, participate in a matter in which he or she participated personally and substantially while in private practice or nongovernmental employment unless under applicable law no one is, or by lawful delegation may be, authorized to act in the prosecutor's stead in the matter.
(d) A prosecutor who has formerly represented a client in a matter in private practice should not thereafter use information obtained from that representation to the disadvantage of the former client unless the rules of attorney-client confidentiality do not apply or the information has become generally known.
(e) A prosecutor should not, except as law may otherwise expressly permit, negotiate for private employment with any person who is involved as an accused or as an attorney or agent for an accused in a matter in which the prosecutor is participating personally and substantially.
(f) A prosecutor should not permit his or her professional judgment or obligations to be affected by his or her own political, financial, business, property, or personal interests.
(g) A prosecutor who is related to another lawyer as parent, child, sibling, or spouse should not participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer. Nor should a prosecutor who has a significant personal or financial relationship with another lawyer participate in the prosecution of a person who the prosecutor knows is represented by the other lawyer, unless the prosecutor's supervisor, if any, is informed and approves or unless there is no other prosecutor authorized to act in the prosecutor's stead.
(h) A prosecutor should not recommend the services of particular defense counsel to accused persons or witnesses unless requested by the accused person or witness to make such a recommendation, and should not make a referral that is likely to create a conflict of interest. Nor should a prosecutor comment upon the reputation or abilities of defense counsel to an accused person or witness who is seeking or may seek such counsel's services unless requested by such person.
Standard 3-1.4 Public Statements
(a) A prosecutor should not make or authorize the making of an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the prosecutor knows or reasonably should know that it will have a substantial likelihood of prejudicing a criminal proceeding.
(b) A prosecutor should exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making under this Standard.
Standard 3-1.5 Duty to Respond to Misconduct
(a) Where a prosecutor knows that another person associated with the prosecutor's office is engaged in action, intends to act or refuses to act in a manner that is a violation of a legal obligation to the prosecutor's office or a violation of law, the prosecutor should follow the policies of the prosecutor's office concerning such matters. If such policies are unavailing or do not exist, the prosecutor should ask the person to reconsider the action or inaction which is at issue if such a request is aptly timed to prevent such misconduct and is otherwise feasible. If such a request for reconsideration is unavailing, inapt or otherwise not feasible or if the seriousness of the matter so requires, the prosecutor should refer the matter to higher authority in the prosecutor's office, including, if warranted by the seriousness of the matter, referral to the chief prosecutor.
(b) If, despite the prosecutor's efforts in accordance with section
(a), the chief prosecutor insists upon action, or a refusal to act, that is clearly a violation of law, the prosecutor may take further remedial action, including revealing the information necessary to remedy this violation to other appropriate government officials not in the prosecutor's office.
ORGANIZATION OF THE PROSECUTION FUNCTION
Standard 3-2.1 Prosecution Authority to be Vested in a Public Official
The prosecution function should be performed by a public prosecutor who is a lawyer subject to the standards of professional conduct and discipline.
Standard 3-2.2 Interrelationship of Prosecution Offices Within a State
(a) Local authority and responsibility for prosecution is properly vested in a district, county, or city attorney. Wherever possible, a unit of prosecution should be designed on the basis of population, caseload, and other relevant factors sufficient to warrant at least one full-time prosecutor and the supporting staff necessary to effective prosecution.
(b) In some states, conditions such as geographical area and population may make it appropriate to create a statewide system of prosecution in which the state attorney general is the chief prosecutor and the local prosecutors are deputies.
(c) In all states, there should be coordination of the prosecution policies of local prosecution offices to improve the administration of justice and assure the maximum practicable uniformity in the enforcement of the criminal law throughout the state. A state association of prosecutors should be established in each state.
(d) To the extent needed, a central pool of supporting resources and personnel, including laboratories, investigators, accountants, special counsel, and other experts, should be maintained by the state government and should be available to assist all local prosecutors.
Standard 3- 2.3 Assuring High Standards of Professional Skill
(a) The function of public prosecution requires highly developed professional skills. This objective can best be achieved by promoting continuity of service and broad experience in all phases of the prosecution function.
(b) Wherever feasible, he offices of chief prosecutor and staff should be full-time occupations.
(c) Professional competence should be the basis for selection for prosecutorial office. Prosecutors should select their personnel without regard to partisan political influence.
(d) Special efforts should be made to recruit qualified women and members of minority groups for prosecutorial office.
(e) In order to achieve the objective of professionalism and to encourage competent lawyers to accept such offices, compensation for prosecutors and their staffs should be commensurate with the high responsibilities of the office and comparable to the compensation of their peers in the private sector.
Standard 3- 2.4 Special Assistants, Investigative Resources, Experts
(a) Funds should be provided to enable a prosecutor to appoint special assistants from among the trial bar experienced in criminal cases, as needed for the prosecution of a particular case or to assist generally.
(b) Funds should be provided to the prosecutor for the employment of a regular staff of professional investigative personnel and other necessary supporting personnel, under the prosecutor's direct control, to the extent warranted by the responsibilities and scope of the office; the prosecutor should also be provided with funds for the employment of qualified experts as needed for particular cases.
Standard 3- 2.5 Prosecutor's Handbook; Policy Guidelines and Procedures
(a) Each prosecutor's office should develop a statement of (i) general policies to guide the exercise of prosecutorial discretion and (ii) procedures of the office. The objectives of these policies as to discretion and procedures should be to achieve a fair, efficient, and effective enforcement of the criminal law.
(b) In the interest of continuity and clarity, such statement of policies and procedures should be maintained in an office handbook. This handbook should be available to the public, except for subject matters declared "confidential," when it is reasonably believed that public access to their contents would adversely affect the prosecution function.
Standard 3- 2.6 Training Programs
Training programs should be established within the prosecutor's office for new personnel and for continuing education of the staff. Continuing education programs for prosecutors should be substantially expanded and public funds should be provided to enable prosecutors to attend such programs.
Standard 3- 2.7 Relations With Police
(a) The prosecutor should provide legal advice to the police concerning police functions and duties in criminal matters.
(b) The prosecutor should cooperate with police in providing the services of the prosecutor's staff to aid in training police in the performance of their function in accordance with law.
Standard 3- 2.8 Relations With the Courts and Bar
(a) A prosecutor should not intentionally misrepresent matters of fact or law to the court.
(b) A prosecutor's duties necessarily involve frequent and regular official contacts with the judge or judges of the prosecutor's jurisdiction. In such contacts the prosecutor should carefully strive to preserve the appearance as well as the reality of the correct relationship which professional traditions, ethical codes, and applicable law require between advocates and judges.
(c) A prosecutor should not engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case which is or may come before the judge.
(d) A prosecutor should not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the prosecutor to be directly adverse to the prosecutor's position and not disclosed by defense counsel.
(e) A prosecutor should strive to develop good working relationships with defense counsel in order to facilitate the resolution of ethical problems. In particular, a prosecutor should assure defense counsel that if counsel finds it necessary to deliver physical items which may be relevant to a pending case or investigation to the prosecutor the prosecutor will not offer the fact of such delivery by defense counsel as evidence before a jury for purposes of establishing defense counsel's client's culpability. However, nothing in this Standard shall prevent a prosecutor from offering evidence of the fact of such delivery in a subsequent proceeding for the purpose of proving a crime or fraud in the delivery of the evidence.
Standard 3- 2.9 Prompt Disposition of Criminal Charges
(a) A prosecutor should avoid unnecessary delay in the disposition of cases. A prosecutor should not fail to act with reasonable diligence and promptness in prosecuting an accused.
(b) A prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis.
(c) The prosecution function should be so organized and supported with staff and facilities as to enable it to dispose of all criminal charges promptly. The prosecutor should be punctual in attendance in court and in the submission of all motions, briefs, and other papers. The prosecutor should emphasize to all witnesses the importance of punctuality in attendance in court.
(d) A prosecutor should not intentionally misrepresent facts or otherwise mislead the court in order to obtain a continuance.
(e) A prosecutor, without attempting to get more funding for additional staff, should not carry a workload that, by reason of its excessive size, interferes with the rendering of quality representation, endangers the interests of justice in the speedy disposition of charges, or may lead to the breach of professional obligations.
Standard 3- 2.10 Supercession and Substitution of Prosecutor
(a) Procedures should be established by appropriate legislation to the end that the governor or other elected state official is empowered by law to suspend and supersede a local prosecutor upon making a public finding, after reasonable notice and hearing, that the prosecutor is incapable of fulfilling the duties of office.
(b) The governor or other elected official should be empowered by law to substitute special counsel in the place of the local prosecutor in a particular case, or category of cases, upon making a public finding that this is required for the protection of the public interest.
Standard 3- 2.11 Literary or Media Agreements
A prosecutor, prior to conclusion of all aspects of a matter, should not enter into any agreement or understanding by which the prosecutor acquires an interest in literary or media rights to a portrayal or account based in substantial part on information relating to that matter.
INVESTIGATION FOR PROSECUTION DECISION
Standard 3-3.1 Investigative Function of Prosecutor
(a) A prosecutor ordinarily relies on police and other investigative agencies for investigation of alleged criminal acts, but the prosecutor has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by other agencies.
(b) A prosecutor should not invidiously discriminate against or in favor of any person on the basis of race, religion, sex, sexual preference, or ethnicity in exercising discretion to investigate or to prosecute. A prosecutor should not use other improper considerations in exercising such discretion.
(c) A prosecutor should not knowingly use illegal means to obtain evidence or to employ or instruct or encourage others to use such means.
(d) A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.
(e) A prosecutor should not secure the attendance of persons for interviews by use of any communication which has the appearance or color of a subpoena or similar judicial process unless the prosecutor is authorized by law to do so.
(f) A prosecutor should not promise not to prosecute for prospective criminal activity, except where such activity is part of an officially supervised investigative and enforcement program.
(g) Unless a prosecutor is prepared to forgo impeachment of a witness by the prosecutor's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present the impeaching testimony, a prosecutor should avoid interviewing a prospective witness except in the presence of a third person.
Standard 3-3.2 Relations With Victims and Prospective Witnesses
(a) A prosecutor should not compensate a witness, other than an expert, for giving testimony, but it is not improper to reimburse an ordinary witness for the reasonable expenses of attendance upon court, attendance for depositions pursuant to statute or court rule, or attendance for pretrial interviews. Payments to a witness may be for transportation and loss of income, provided there is no attempt to conceal the fact of reimbursement.
(b) A prosecutor should advise a witness who is to be interviewed of his or her rights against self-incrimination and the right to counsel whenever the law so requires. It is also proper for a prosecutor to so advise a witness whenever the prosecutor knows or has reason to believe that the witness may be the subject of a criminal prosecution. However, a prosecutor should not so advise a witness for the purpose of influencing the witness in favor of or against testifying.
(c) The prosecutor should readily provide victims and witnesses who request it information about the status of cases in which they are interested.
(d) the prosecutor should seek to insure that victims and witnesses who may need protections against intimidation are advised of and afforded protections where feasible.
(e) The prosecutor should insure that victims and witnesses are given notice as soon as practicable of scheduling changes which will affect the victims' or witnesses' required attendance at judicial proceedings.
(f) The prosecutor should not require victims and witnesses to attend judicial proceedings unless their testimony is essential to the prosecution or is required by law. When their attendance is required, the prosecutor should seek to reduce to a minimum the time they must spend at the proceedings.
(g) The prosecutor should seek to insure that victims of serious crimes or their representatives are given timely notice of: (i) judicial proceedings relating to the victims' case; (ii) disposition of the case, including plea bargains, trial and sentencing; and (iii) any decision or action in the case which results in the accused's provisional or final release from custody.
(h) Where practical, the prosecutor should seek to insure that victims of serious crimes or their representatives are given an opportunity to consult with and to provide information to the prosecutor prior to the decision whether or not to prosecute, to pursue a disposition by plea, or to dismiss the charges.
Standard 3-3.3 Relations With Expert Witnesses
(a) A prosecutor who engages an expert for an opinion should respect the independence of the expert and should not seek to dictate the formation of the expert's opinion on the subject. To the extent necessary, he prosecutor should explain to the expert his or her role in the trial as an impartial expert called to aid the fact finders and the manner in which the examination of witnesses is conducted.
(b) A prosecutor should not pay an excessive fee for the purpose of influencing the expert's testimony or to fix the amount of the fee contingent upon the testimony the expert will give or the result in the case.
Standard 3-3.4 Decision to Charge
(a) The decision to institute criminal proceedings should be initially and primarily the responsibility of the prosecutor.
(b) Prosecutors should take reasonable care to ensure that investigators working at their direction or under their authority are adequately trained in the standards governing the issuance of arrest and search warrants and should inform investigators that they should seek the approval of a prosecutor in close or difficult cases.
(c) The prosecutor should establish standards and procedures for evaluating complaints to determine whether criminal proceedings should be instituted.
(d) Where the law permits a citizen to complain directly to a judicial officer or the grand jury, the citizen complainant should be required to present the complaint for prior approval to the prosecutor, and the prosecutor's action or recommendation thereon should be communicated to the judicial officer or grand jury.
Standard 3-3.5 Relations with Grand Jury
(a) Where the prosecutor is authorized to act as legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence but should give due deference to its status as an independent legal body.
(b) The prosecutor should not make statements or arguments in an effort to influence grand jury action in a manner which would be impermissible at trial before a petit jury.
(c) The prosecutor's communications and presentations to the grand jury should be on the record.
Standard 3-3.6 Quality and Scope of Evidence Before Grand Jury
(a) A prosecutor should only make statements or arguments to the grand jury and only present evidence to the grand jury which the prosecutor believes is appropriate or authorized under law for presentation to the grand jury. In appropriate cases, the prosecutor may present witnesses to summarize admissible evidence available to the prosecutor which the prosecutor believes he or she will be able to present at trial. The prosecutor should also inform the grand jurors that they have the right to hear any available witnesses, including eyewitnesses.
(b) No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense.
(c) A prosecutor should recommend that the grand jury not indict if he or she believes the evidence presented does not warrant an indictment under governing law.
(d) If the prosecutor believes that a witness is a potential defendant, the prosecutor should not seek to compel the witness's testimony before the grand jury without informing the witness that he or she may be charged and that the witness should seek independent legal advice concerning his or her rights.
(e) The prosecutor should not compel the appearance of a witness before the grand jury whose activities are the subject of the inquiry if the witness states in advance that if called he or she will exercise the constitutional privilege not to testify, unless the prosecutor intends to judicially challenge the exercise of the privilege or to seek a grant of immunity according to the law.
(f) A prosecutor in presenting a case to a grand jury should not intentionally interfere with the independence of the grand jury, preempt a function of the grand jury, or abuse the processes of the grand jury.
(g) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury in order to obtain tangible, documentary or testimonial evidence to assist the prosecutor in preparation for trial of a defendant who has already been charged by indictment or information.
(h) Unless the law of the jurisdiction so permits, a prosecutor should not use the grand jury for the purpose of aiding or assisting in any administrative inquiry.
Standard 3-3.7 Quality and Scope of Evidence for Information
Where the prosecutor is empowered to charge by information, the prosecutor's decisions should be governed by the principles embodied in Standards 3-3.6 and 3-3.9, where applicable.
Standard 3-3.8 Discretion as to Noncriminal Disposition
(a) The prosecutor should consider in appropriate cases the availability of noncriminal disposition, formal or informal, in deciding whether to press criminal charges which would otherwise be supported by probable cause; especially in the case of a first offender, the nature of the offense may warrant noncriminal disposition.
(b) Prosecutors should be familiar with the resources of social agencies which can assist in the evaluation of cases for diversion from the criminal process.
Standard 3-3.9 Discretion in the Charging Decision
(a) A prosecutor should not institute, or cause to be instituted, or permit the continued pendency of criminal charges when the prosecutor knows that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.
(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction. Illustrative or the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor's reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
(iv) possible improper motives of a complainant;
(v) reluctance of the victim to testify;
(vi) cooperation of the accused in the apprehension or conviction of others; and
(vii) availability and likelihood of prosecution by another jurisdiction.
(c) A prosecutor should not be compelled by his or her supervisor to prosecute a case in which he or she has a reasonable doubt about the guilt of the accused.
(d) In making the decision to prosecute, the prosecutor should give no weight to the personal or political advantages or disadvantages which might be involved or to a desire to enhance his or her record of convictions.
(e) In cases which involve a serious threat to the community, the prosecutor should not be deterred from prosecution by the fact that in the jurisdiction juries have tended to acquit persons accused of the particular kind of criminal act in question.
(f) The prosecutor should not bring or seek charges greater in number of degree than can reasonably be supported with evidence at trial or than are necessary to fairly reflect the gravity of the offense.
(g) The prosecutor should not condition a dismissal of charges, nolle prosequi, or similar action on the accused's relinquishment of the right to seek civil redress unless the accused has agreed to the action knowingly and intelligently, freely and voluntarily, and where such waiver is approved by the court.
Standard 3-3.10 Role in First Appearance and Preliminary Hearing
(a) A prosecutor who is present at the first appearance (however denominated) of the accused before a judicial officer should not communicate with the accused unless a waiver of counsel has been entered, except for the purpose of aiding in obtaining counsel or in arranging for the pretrial release of the accused. A prosecutor should not fail to make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.
(b) The prosecutor should cooperate in good faith in arrangements for release under the prevailing system for pretrial release.
(c) The prosecutor should not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.
(d) The prosecutor should not seek a continuance solely for the purpose of mooting the preliminary hearing by securing an indictment.
(e) Except for good cause, the prosecutor should not seek delay in the preliminary hearing after an arrest has been made if the accused is in custody.
(f) The prosecutor should ordinarily be present at a preliminary hearing where such hearing is required by law.
Standard 3-3.11 Disclosure of Evidence by the Prosecutor
(a) A prosecutor should not intentionally fail to make timely disclosure to the defense, at the earliest feasible opportunity, of the existence of all evidence or information which tends to negate the guilt of the accused or mitigate the offense charged or which would tend to reduce the punishment of the accused.
(b) A prosecutor should not fail to make a reasonably diligent effort to comply with a legally proper discovery request.
(c) A prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage the prosecution's case or aid the accused.
PLEA DISCUSSIONS
Standard 3-4.1 Availability for Plea Discussions
(a) The prosecutor should have and make known a general policy or willingness to consult with defense counsel concerning disposition of charges by plea.
(b) A prosecutor should not engage in plea discussions directly with an accused who is represented by defense counsel, except with defense counsel's approval. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant, although, where feasible, a record of such discussions should be made and preserved.
(c) A prosecutor should not knowingly make false statements or representations as to fact or law in the course of plea discussions with defense counsel or the accused.
Standard 3-4.2 Fulfillment of Plea Discussions
(a) A prosecutor should not make any promise or commitment assuring a defendant or defense counsel that a court will impose a specific sentence or a suspension of sentence; a prosecutor may properly advise the defense what position will be taken concerning disposition.
(b) A prosecutor should not imply a greater power to influence the disposition of a case than is actually possessed.
(c) A prosecutor should not fail to comply with a plea agreement, unless a defendant fails to comply with a plea agreement or other extenuating circumstances are present.
Standard 3-4.3 Record of Reasons for Nolle Prosequi Disposition
Whenever felony criminal charges are dismissed by way of nolle prosequi (or its equivalent), the prosecutor should make a record of the reasons for the action.
THE TRIAL
Standard 3-5.1 Calendar Control
Control over the trial calendar should be vested in the court. The prosecuting attorney should advise the court of facts relevant in determining the order of cases on the court's calendar.
Standard 3-5.2 Courtroom Professionalism
(a) As an officer of the court, the prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and by manifesting a professional attitude toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom.
(b) When court is in session, the prosecutor should address the court, not opposing counsel, on all matters relating to the case.
(c) A prosecutor should comply promptly with all orders and directives of the court, but the prosecutor has a duty to have the record reflect adverse rulings or judicial conduct which the prosecutor considers prejudicial. The prosecutor has a right to make respectful requests for reconsideration of adverse rulings.
(d) Prosecutors should cooperate with courts and the organized bar in developing codes of professionalism for each jurisdiction.
Standard 3-5.3 Selection of Jurors
(a) The prosecutor should prepare himself or herself prior to trial to discharge effectively the prosecution function in the selection of the jury and the exercise of challenges for cause and peremptory challenges.
(b) In those cases where it appears necessary to conduct a pretrial investigation of the background of jurors, investigatory methods of the prosecutor should neither harass nor unduly embarrass potential jurors or invade their privacy and, whenever possible, should be restricted to an investigation of records and sources of information already in existence.
(c) The opportunity to question jurors personally should be used solely to obtain information for the intelligent exercise of challenges. A prosecutor should not intentionally use the voir dire to present factual matter which the prosecutor knows will not be admissible at trial or to argue the prosecution's case to the jury.
Standard 3-5.4 Relations With Jury
(a) A prosecutor should not intentionally communicate privately with persons summoned for jury duty or impaneled as jurors prior to or during trial. The prosecutor should avoid the reality or appearance of any such communications.
(b) The prosecutor should treat jurors with deference and respect, avoiding the reality or appearance of currying favor by a show of undue solicitude for their comfort or convenience.
(c) After discharge of the jury from further consideration of a case, a prosecutor should not intentionally make comments to or ask questions of a juror for the purpose of harassing or embarrassing the juror in any way which will tend to influence judgment in future jury service. If the prosecutor believes that the verdict may be subject to legal challenge, he or she may properly, if no statute or rule prohibits such course, communicate with jurors to determine whether such challenge may be available.
Standard 3-5.5 Opening Statement
The prosecutor's opening statement should be confined to a statement of the issues in the case and the evidence the prosecutor intends to offer which the prosecutor believes in good faith will be available and admissible. A prosecutor should not allude to any evidence unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence.
Standard 3-5.6 Presentation of Evidence
(a) A prosecutor should not knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses, or fail to seek withdrawal thereof upon discovery of its falsity.
(b) A prosecutor should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.
(c) A prosecutor should not permit any tangible evidence to be displayed in the view of the judge or jury which would tend to prejudice fair consideration by the judge or jury until such time as a good faith tender of such evidence is made.
(d) A prosecutor should not tender tangible evidence in the view of the judge or jury if it would tend to prejudice fair consideration by the judge or jury unless there is a reasonable basis for its admission in evidence. When here is any substantial doubt about the admissibility of such evidence, it should be tendered by an offer of proof and a ruling obtained.
Standard 3-5.7 Examination of Witnesses
(a) The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.
(b) The prosecutor's belief that the witness is telling the truth does not preclude cross-examination, but may affect the method and scope of cross-examination. A prosecutor should not use the power of cross-examination to discredit or undermine a witness if the prosecutor knows the witness is testifying truthfully.
(c) A prosecutor should not call a witness in the presence of the jury who the prosecutor knows will claim a valid privilege not to testify.
(d) A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.
Standard 3-5.8 Argument to the Jury
(a) In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.
(b) The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not make arguments calculated to appeal to the prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence.
Standard 3-5.9 Facts Outside the Record
The prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice.
Standard 3-5.10 Comments by Prosecutor After Verdict
The prosecutor should not make public comments critical of a verdict, whether rendered by judge or jury.
SENTENCING
Standard 3-6.1 Role in Sentencing
(a) The prosecutor should not make the severity of sentences the index of his or her effectiveness. To the extent that the prosecutor becomes involved in the sentencing process, he or she should seek to assure that a fair and informed judgment is made on the sentence and to avoid unfair sentence disparities.
(b) Where sentence is fixed by the court without jury participation, the prosecutor should be afforded the opportunity to address the court at sentencing and to offer a sentencing recommendation.
(c) Where sentence is fixed by the jury, the prosecutor should present evidence on the issue within the limits permitted in the jurisdiction, but the prosecutor should avoid introducing evidence bearing on sentence which will prejudice the jury's determination of the issue of guilt.
Standard 3-6.2 Information Relevant to Sentencing
(a) The prosecutor should assist the court in basing its sentence on complete and accurate information for use in the presentence report. The prosecutor should disclose to the court any information in the prosecutor's files relevant to the sentence. If incompleteness or inaccurateness in the presentence report comes to the prosecutor's attention, the prosecutor should take steps to present the complete and correct information to the court and to defense counsel.
(b) The prosecutor should disclose to the defense and to the court at or prior to the sentencing proceeding all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
7.2.8.9.1.2 Crime Victims’ Rights Act 7.2.8.9.1.2 Crime Victims’ Rights Act
Crime Victims' Rights Act
18 U.S.C. § 3771. Crime victims' rights
(a) RIGHTS OF CRIME VICTIMS.--A crime victim has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
(b) RIGHTS AFFORDED.--In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record.
(c) BEST EFFORTS TO ACCORD RIGHTS.--
(1) GOVERNMENT.--Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).
(2) ADVICE OF ATTORNEY.--The prosecutor shall advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection(a).
(3) NOTICE.--Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person.
(d) ENFORCEMENT AND LIMITATIONS.--
(1) RIGHTS.--The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief under this chapter.
(2) MULTIPLE CRIME VICTIMS.--In a case where the court finds that the number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.
(3) MOTION FOR RELIEF AND WRIT OF MANDAMUS.--The rights described in subsection(a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred. The district court shall take up and decide any motion asserting a victim's right forthwith. If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge pursuant to circuit rule or the Federal Rules of Appellate Procedure. The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed. In no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter. If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.
(4) ERROR.--In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates.
(5) LIMITATION ON RELIEF.--In no case shall a failure to afford a right under this chapter provide grounds for a 2263 new trial. A victim may make a motion to re-open a plea or sentence only if--
(A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 10 days; and
(C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim's right to restitution as provided in title 18, United States Code.
(6) NO CAUSE OF ACTION.--Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.
(e) DEFINITIONS.--For the purposes of this chapter, the term 'crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter, but in no event shall the defendant be named as such guardian or representative.
(f) PROCEDURES TO PROMOTE COMPLIANCE.--
(1) REGULATIONS.--Not later than 1 year after the date of enactment of this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims.
(2) CONTENTS.--The regulations promulgated under paragraph (1) shall--
(A) designate an administrative authority within the Department of Justice to receive and investigate complaints relating to the provision or violation of the rights of a crime victim;
(B) require a course of training for employees and offices of the Department of Justice that fail to comply with provisions of Federal law pertaining to the treatment of crime victims, and otherwise assist such employees and offices in responding more effectively to the needs of crime victims;
(C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and
(D) provide that the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by a complainant."
7.2.8.9.1.3 Fed R Crim Proc. Rule 11: Pleas 7.2.8.9.1.3 Fed R Crim Proc. Rule 11: Pleas
Rule 11. Pleas
(1) In General. A defendant may plead not guilty, guilty, or (with the court's consent) nolo contendere.
(2) Conditional Plea. With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
(3) Nolo Contendere Plea. Before accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice.
(4) Failure to Enter a Plea. If a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
(b) Considering and Accepting a Guilty or Nolo Contendere Plea.
(1) Advising and Questioning the Defendant. Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(A) the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;
(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;
(C) the right to a jury trial;
(D) the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding;
(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;
(F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;
(G) the nature of each charge to which the defendant is pleading;
(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;
(I) any mandatory minimum penalty;
(J) any applicable forfeiture;
(K) the court's authority to order restitution;
(L) the court's obligation to impose a special assessment;
(M) in determining a sentence, the court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. §3553(a);
(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence; and
(O) that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future.
(2) Ensuring That a Plea Is Voluntary. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
(3) Determining the Factual Basis for a Plea. Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
(1) In General. An attorney for the government and the defendant's attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant's request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
(3) Judicial Consideration of a Plea Agreement.
(A) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report.
(B) To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request.
(4) Accepting a Plea Agreement. If the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment.
(5) Rejecting a Plea Agreement. If the court rejects a plea agreement containing provisions of the type specified inRule 11(c)(1)(A) or (C), the court must do the following on the record and in open court (or, for good cause, in camera):
(A) inform the parties that the court rejects the plea agreement;
(B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and
(C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.
(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.
(e) Finality of a Guilty or Nolo Contendere Plea. After the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and the plea may be set aside only on direct appeal or collateral attack.
(f) Admissibility or Inadmissibility of a Plea, Plea Discussions, and Related Statements. The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.
(g) Recording the Proceedings. The proceedings during which the defendant enters a plea must be recorded by a court reporter or by a suitable recording device. If there is a guilty plea or a nolo contendere plea, the record must include the inquiries and advice to the defendant required under Rule 11(b) and (c).
(h) Harmless Error. A variance from the requirements of this rule is harmless error if it does not affect substantial rights
7.2.8.9.1.4 ABA Criminal Justice Standards: Pleas of Guilty 7.2.8.9.1.4 ABA Criminal Justice Standards: Pleas of Guilty
PLEAS OF GUILTY
PART I.
RECEIVING AND ACTING UPON THE PLEA
Pleading by defendant; alternatives
(a) A defendant may plead not guilty, guilty, or (when allowed under the law of the jurisdiction) nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered, with due corporate authorization, by counsel or a corporate officer. A defendant may plead nolo contendere only with the consent of the court.
(b) As part of the plea process, appropriate consideration should be given to the views of the parties, the interests of the victims and the interest of the public in the effective administration of justice.
Standard 14- 1.2. Pleading to other offenses
Upon entry of a plea of guilty or nolo contendere or after conviction on a plea of not guilty, the defendant's counsel may request permission for the defendant to enter a plea of guilty or nolo contendere as to other crimes committed within the jurisdiction of coordinate courts of that government. Upon written approval of the prosecuting attorney of the governmental unit in which these crimes are charged or could be charged, the defendant should be allowed to enter the plea (subject to the court's discretion to refuse a nolo contendere plea). Entry of such a plea constitutes a waiver of the following: venue, as to crimes committed in other governmental units of the government; and formal charge, as to offenses not yet charged.
Standard 14- 1.3. Aid of counsel; time for deliberation
(a) A defendant should not be called upon to plead until an opportunity to retain counsel has been afforded or, if eligible for appointment of counsel, until counsel has been appointed or waived. A defendant with counsel should not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant's interests.
(b) When a defendant has properly waived counsel and tenders a plea of guilty or nolo contendere, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, set by rule or statute, after the defendant received the advice from the court required in Standard14-1 .4.
Standard 14- 1.4. Defendant to be advised
(a) The court should not accept a plea of guilty or nolo contendere from a defendant without first addressing the defendant personally in open court and determining that the defendant understands:
(i) the nature and elements of the offense to which the plea is offered, and the terms and conditions of any plea agreement;
(ii) the maximum possible sentence on the charge, including that possible from consecutive sentences, and the mandatory minimum sentence, if any, on the charge, or any special circumstances affecting probation or release from incarceration;
(iii) that, if the defendant has been previously convicted of an offense and the offense to which the defendant has offered to plead is one for which a different or additional punishment is authorized by reason of the previous conviction or other factors, the fact of the previous conviction or other factors may be established after the plea, thereby subjecting the defendant to such different or additional punishment;
(iv) that by pleading guilty the defendant waives the right to a speedy and public trial, including the right to trial by jury; the right to insist at a trial that the prosecution establish guilt beyond a reasonable doubt; the right to testify at a trial and the right not to testify at a trial; the right at a trial to be confronted by the witnesses against the defendant, to present witnesses in the defendant's behalf, and to have compulsory process in securing their attendance;
(v) that by pleading guilty the defendant generally waives the right to file further motions in the trial court, such as motions to object to the sufficiency of the charging papers to state an offense or to evidence allegedly obtained in violation of constitutional rights; and
(vi) that by pleading guilty the defendant generally waives the right to appeal, except the right to appeal a motion that has been made, ruled upon and expressly reserved for appeal and the right to appeal an illegal or unauthorized sentence.
(b) If the court is in doubt about whether the defendant comprehends his or her rights and the other matters of which notice is required to be supplied in accordance with this standard, the defendant should be asked to repeat to the court in his or her own words the information about such rights and the other matters, or the court should take such other steps as may be necessary to assure itself that the guilty plea is entered with complete understanding of the consequences.
(c) Before accepting a plea of guilty or nolo contendere, the court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant's immigration status. The court should advise the defendant to consult with defense counsel if the defendant needs additional information concerning the potential consequences of the plea.
(d) If the defendant is represented by a lawyer, the court should not accept the plea where it appears the defendant has not had the effective assistance of counsel.
Standard 14- 1.5. Determining voluntariness of plea
The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. By inquiry of the prosecuting attorney, the defendant, and defense counsel, if any, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what discussions were had and what agreement has been reached. If the plea agreement contemplates the granting of charge or sentence concessions which are subject to judicial approval, the court should advise the defendant, consistent with standard 14-3.3(e), whether withdrawal of the plea will be allowed if the charge or sentence concessions are rejected. The court should address the defendant personally to determine whether any other promises or any force or threats were used to obtain the plea.
(a) In accepting a plea of guilty or nolo contendere, the court should make such inquiry as may be necessary to satisfy itself that there is a factual basis for the plea. As part of its inquiry, the defendant may be asked to state on the record whether he or she agrees with, or in the case of a nolo contendere plea, does not contest, the factual basis as proffered.
(b) Whenever a defendant pleads nolo contendere or pleads guilty and simultaneously denies culpability, the court should take special care to make certain that there is a factual basis for the plea. The offer of a defendant to plead guilty should not be refused solely because the defendant refuses to admit culpability. Such a plea may be refused where the court has specific reasons for doing so which are made a matter of record.
Standard 14- 1.7. Record of proceedings
A verbatim record of the proceedings at which the defendant enters a plea of guilty or nolo contendere should be made and preserved. The record should include the court's advice to the defendant (as required in Standard14-1 .4), the inquiry into the voluntariness of the plea (as required in Standard14-1.5), and the inquiry into the factual basis of the plea (as required in Standard14-1.6). Such proceedings should be held in open court unless good cause is present for the proceedings to be held in chambers. For good cause, the judge may order the record of such proceedings to be sealed.
Standard 14- 1.8. Consideration of plea in final disposition
(a) The fact that a defendant has entered a plea of guilty or nolo contendere should not, by itself alone, be considered by the court as a mitigating factor in imposing sentence. It is proper for the court to approve or grant charge and sentence concessions to a defendant who enters a plea of guilty or nolo contendere when consistent with governing law and when there is substantial evidence to establish, for example, that:
(i) the defendant is genuinely contrite and has shown a willingness to assume responsibility for his or her conduct;
(ii) the concessions will make possible alternative correctional measures which are better adapted to achieving protective, deterrent, or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(iii) the defendant, by making public trial unnecessary, has demonstrated genuine remorse or consideration for the victims of his or her criminal activity; or
(iv) the defendant has given or agreed to give cooperation.
(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the protective, deterrent, or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove guilt at trial rather than to enter a plea of guilty or nolo contendere.
PART II.
WITHDRAWAL OF THE PLEA
Standard 14- 2.1. Plea withdrawal and specific performance
(a) After entry of a plea of guilty or nolo contendere and before sentence, the court should allow the defendant to withdraw the plea for any fair and just reason. In determining whether a fair and just reason exists, the court should also weigh any prejudice to the prosecution caused by reliance on the defendant's plea.
(b) After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere, the court should allow the defendant to withdraw the plea whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. A timely motion for withdrawal is one made with due diligence, considering the nature of the allegations therein.
(i) Withdrawal may be necessary to correct a manifest injustice when the defendant proves, for example, that:
(A) the defendant was denied the effective assistance of counsel guaranteed by constitution, statute, or rule;
(B) the plea was not entered or ratified by the defendant or a person authorized to so act in the defendant's behalf;
(C) the plea was involuntary, or was entered without knowledge of the charge or knowledge that the sentence actually imposed could be imposed;
(D) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or
(E) the defendant did not receive the charge or sentence concessions contemplated by the plea agreement, which was either tentatively or fully concurred in by the court, and the defendant did not affirm the plea after being advised that the court no longer concurred and after being called upon to either affirm or withdraw the plea; or
(F) the guilty plea was entered upon the express condition, approved by the judge, that the plea could be withdrawn if the charge or sentence concessions were subsequently rejected by the court.
(ii) The defendant may move for withdrawal of the plea without alleging that he or she is innocent of the charge to which the plea has been entered.
(c) As an alternative to allowing the withdrawal of a plea of guilty or nolo contendere, the court may order the specific performance by the government of promises or conditions of a plea agreement where it is within the power of the court and the court finds, in its discretion, that specific performance is the appropriate remedy for a breach of the agreement.
Standard 14- 2.2. Withdrawn plea and discussions not admissible
(a) A plea of guilty or nolo contendere that has been withdrawn should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(b) Any statement made in the course of any proceedings concerning a plea of guilty or nolo contendere that has been withdrawn, or in plea discussions with the prosecuting attorney that result in a plea of guilty or nolo contendere that is later withdrawn, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or
(ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
PART III.
PLEA DISCUSSIONS AND PLEA AGREEMENTS
Standard 14- 3.1. Responsibilities of the prosecuting attorney
(a) The prosecuting attorney may engage in plea discussions with counsel for the defendant for the purpose of reaching a plea agreement. Where the defendant has properly waived counsel, the prosecuting attorney may engage in plea discussions with the defendant. Where feasible, a record should be made and preserved for all such discussions with the defendant.
(b) The prosecuting attorney should make known any policies he or she may have concerning disposition of charges by plea or diversion.
(c) The prosecuting attorney, in considering a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case:
(i) to make or not to oppose favorable recommendations or to remain silent as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere, including such terms of the sentence as criminal forfeiture, restitution, fines and alternative sanctions;
(ii) to dismiss, to seek to dismiss, or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant's conduct;
(iii) to dismiss, to seek to dismiss, or not to oppose dismissal of other charges or potential charges if the defendant enters a plea of guilty or nolo contendere;
(iv) where appropriate, to enter an agreement with the defendant regarding the disposition of related civil matters to which the government is or would be a party, including civil penalties and/or civil forfeiture; or
(v) in lieu of a plea agreement, to enter an agreement permitting the diversion of the case from the criminal process where appropriate and permissible to do so.
(d) Similarly situated defendants should be afforded equal plea agreement opportunities.
(e) The prosecuting attorney should make every effort to remain advised of the attitudes and sentiments of victims and law enforcement officials before reaching a plea agreement.
(f) The prosecuting attorney should not knowingly make false statements or representations as to law or fact in the course of plea discussions with defense counsel or the defendant.
(g) The prosecuting attorney should not, because of the pendency of plea negotiations, delay any discovery disclosures required to be made to the defense under applicable law or rules.
(h) In connection with plea negotiations, the prosecuting attorney should not bring or threaten to bring charges against the defendant or another person, or refuse to dismiss such charges, where admissible evidence does not exist to support the charges or the prosecuting attorney has no good faith intention of pursuing those charges.
Standard 14- 3.2. Responsibilities of defense counsel
(a) Defense counsel should keep the defendant advised of developments arising out of plea discussions conducted with the prosecuting attorney, and should promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney.
(b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed.
(c) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision whether to enter a plea of guilty or nolo contendere is ultimately made by the defendant.
(d) Defense counsel should not knowingly make false statements or representations as to law or fact in the course of plea discussions with the prosecuting attorney.
(e) At the outset of a case, and whenever the law, nature and circumstances of the case permit, defense counsel should explore the possibility of a diversion of the case from the criminal process.
(f) To the extent possible, defense counsel should determine and advise the defendant, sufficiently in advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the contemplated plea.
Standard 14- -3.3. Responsibilities of the judge
(a) The judge should not accept a plea of guilty or nolo contendere without first inquiring whether the parties have arrived at a plea agreement and, if there is one, requiring that its terms and conditions be disclosed.
(b) If a plea agreement has been reached by the parties which contemplates the granting of charge or sentence concessions by the judge, the judge should:
(i) order the preparation of a preplea or presentence report, when needed for determining the appropriate disposition;
(ii) give the agreement due consideration, but notwithstanding its existence reach an independent decision on whether to grant charge or sentence concessions; and
(iii) in every case advise the defendant whether the judge accepts or rejects the contemplated charge or sentence concessions or whether a decision on acceptance will be deferred until after the plea is entered and/or a preplea or presentence report is received.
(c) The judge should not through word or demeanor, either directly or indirectly, communicate to the defendant or defense counsel that a plea agreement should be accepted or that a guilty plea should be entered.
(d) A judge should not ordinarily participate in plea negotiation discussions among the parties. Upon the request of the parties, a judge may be presented with a proposed plea agreement negotiated by the parties and may indicate whether the court would accept the terms as proposed and if relevant, indicate what sentence would be imposed. Discussions relating to plea negotiations at which the judge is present need not be recorded verbatim, so long as an appropriate record is made at the earliest opportunity. For good cause, the judge may order the record or transcript of any such discussions to be sealed.
(e) In cases where a defendant offers to plead guilty and the judge decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement and the court, following entry of the plea, decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea shall be allowed if:
(i) the judge had previously concurred, whether tentatively or fully, in the proposed charge or sentence concessions; or
(ii) the guilty plea is entered upon the express condition, approved by the judge, that the plea can be withdrawn if the charge or sentence concessions are subsequently rejected by the court.
In all other cases where a defendant pleads guilty pursuant to a plea agreement and the judge decides that the final disposition should not include the contemplated charge or sentence concessions, withdrawal of the plea may be permitted as set forth in standard 14-2.1.
Standard 14- 3.4. Inadmissibility of nolo contendere pleas, pleas not accepted, and plea discussions
(a) A plea of nolo contendere should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(b) A plea of guilty or nolo contendere that is not accepted by the court should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings.
(c) Any statement made in the course of any proceedings concerning a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, or in the course of plea discussions with the prosecuting attorney that do not result in a plea of guilty or that result in a plea of nolo contendere or a plea of guilty or nolo contendere that is not accepted by the court, should not be admitted as evidence against the defendant in any criminal or civil action or administrative proceedings, except that such a statement may be admitted:
(i) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel; or
(ii) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
PART IV.
DIVERSION AND OTHER ALTERNATIVE RESOLUTIONS
Standard 14-4.1. Diversion and other alternative resolutions
(a) Where the interests of justice will be served, the prosecuting attorney and the defense may agree that a prosecution be suspended for a specified period of time, after which time it will be dismissed if the offender has met specified conditions during the suspension period. Such a diversion may be appropriate, for example, where:
(i) the offender is charged with an offense designated as appropriate for diversion;
(ii) the offender does not have a prior criminal record that would make diversion inappropriate;
(iii) the offender poses no threat to the community under the conditions specified in the diversion program; and
(iv) the needs of the offender and the government can be better met outside the traditional criminal justice process.
(b) An agreement to diversion should be contained in a writing reflecting all of the conditions agreed upon. As a condition of diversion, an offender may be required, where permissible under law, to waive speedy trial rights and to toll a statute of limitations, and may also be required to fulfill other appropriate conditions, for example, to enter a treatment program, to provide community service, to make restitution, and/or to refrain from drug use and criminal activity.
(c) Diversion programs should be governed by written policies setting forth the Standards for eligibility and the procedures for participation, so that all eligible offenders have an equal opportunity to participate. An offender's eligibility to participate in diversion should not depend on his or her ability to pay restitution or other costs.
(d) The development of other, alternative forms of noncriminal resolution for appropriate cases should also be encouraged.
7.2.8.9.1.5 Federal Standard for Imposition of Sentence 7.2.8.9.1.5 Federal Standard for Imposition of Sentence
18 U.S. Code § 3553 - Imposition of a sentence
(a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section 994 (a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(ii) that, except as provided in section 3742 (g), are in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994 (a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section 994 (a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994 (p) of title 28); and
(B) that, except as provided in section 3742 (g), is in effect on the date the defendant is sentenced. [1]
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
(b) Application of Guidelines in Imposing a Sentence.—
(1) In general.— Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.
(2) Child crimes and sexual offenses.—
(A) [2] Sentencing.—In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless—
(i) the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;
(ii) the court finds that there exists a mitigating circumstance of a kind or to a degree, that—
(I) has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994 (a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;
(II) has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and
(III) should result in a sentence different from that described; or
(iii) the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.
In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.
(c) Statement of Reasons for Imposing a Sentence.— The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—
(1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or
(2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994 (w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.
If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,, [3] and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.
(d) Presentence Procedure for an Order of Notice.— Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall—
(1) permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;
(2) afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and
(3) include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.
Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.
(e) Limited Authority To Impose a Sentence Below a Statutory Minimum.— Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.
(f) Limitation on Applicability of Statutory Minimums in Certain Cases.— Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
7.2.8.9.2 Cases 7.2.8.9.2 Cases
7.2.8.9.2.1 Inmates of Attica Correctional Facility v. Rockefeller 7.2.8.9.2.1 Inmates of Attica Correctional Facility v. Rockefeller
477 F.2d 375 (1973)
INMATES OF ATTICA CORRECTIONAL FACILITY et al., Plaintiffs-Appellants,
v.
Nelson A. ROCKEFELLER et al., Defendants-Appellees.
No. 596, Docket 72-1450.
United States Court of Appeals, Second Circuit.
Argued March 21, 1973.
Decided April 18, 1973.
[376] Robert L. Boehm, New York City (Morton Stavis, William M. Kunstler, Center for Constitutional Rights, Michael Rattner, David Scribner, New York City, of counsel), for plaintiffs-appellants.
Joel Lewittes, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for the State defendants-appellees.
T. Gorman Reilly, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., for S. D. New York, Michael D. Hess, Asst. U. S. Atty., New York City, of counsel), for defendant-appellee, H. Kenneth Schroeder, Jr.
Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:
This appeal raises the question of whether the federal judiciary should, at the instance of victims, compel federal and state officials to investigate and prosecute persons who allegedly have violated certain federal and state criminal statutes. Plaintiffs in the purported class suit, which was commenced in the Southern District of New York against various state and federal officers, are certain present and former inmates of New York State's Attica Correctional Facility ("Attica"), the mother of an inmate who was killed when Attica was retaken after the inmate uprising in September 1971, and Arthur O. Eve, a New York State Assemblyman and member of the Subcommittee on Prisons.
They appeal from an order of the district court, Lloyd F. MacMahon, Judge, dismissing their complaint. We affirm.
The complaint alleges that before, during, and after the prisoner revolt at and subsequent recapture of Attica in September 1971, which resulted in the killing of 32 inmates and the wounding of many others, the defendants, including the Governor of New York, the State Commissioner of Correctional Services, the Executive Deputy Commissioner of the State Department of Correctional Services, the Superintendent at Attica, and certain State Police, Corrections Officers, and other officials, either committed, conspired to commit, or aided and abetted in the commission of various crimes against the complaining inmates and members of the class they seek to represent. It is charged that the inmates were intentionally subjected to cruel and inhuman treatment prior to the inmate riot, that State Police, Troopers, and Correction Officers (one of whom is named) intentionally killed some of the inmate victims without provocation during the recovery of Attica, that state officers (several of whom are named and whom the inmates claim they can identify) assaulted and beat prisoners after the prison had been successfully retaken and the prisoners had surrendered, see Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971), that personal property of the inmates was thereafter stolen or destroyed, and that medical assistance was maliciously denied to over 400 inmates wounded during the recovery of the prison.
The complaint further alleges that Robert E. Fischer, a Deputy State Attorney General specially appointed by the Governor to supersede the District Attorney of Wyoming County and, with a specially convened grand jury, to investigate crimes relating to the inmates' takeover of Attica and the resumption of control by the state authorities, see Inmates, supra at 16 and n. 3, "has not investigated, nor does he intend to investigate, any crimes committed by state [377] officers." Plaintiffs claim, moreover, that because Fischer was appointed by the Governor he cannot neutrally investigate the responsibility of the Governor and other state officers said to have conspired to commit the crimes alleged. It is also asserted that since Fischer is the sole state official currently authorized under state law to prosecute the offenses allegedly committed by the state officers, no one in the State of New York is investigating or prosecuting them.[1]
With respect to the sole federal defendant,[2] the United States Attorney for the Western District of New York, the complaint simply alleges that he has not arrested, investigated, or instituted prosecutions against any of the state officers accused of criminal violation of plaintiffs' federal civil rights, 18 U.S.C. §§ 241, 242, and he has thereby failed to carry out the duty placed upon him by 42 U.S.C. § 1987, discussed below.
As a remedy for the asserted failure of the defendants to prosecute violations of state and federal criminal laws, plaintiffs request relief in the nature of mandamus (1) against state officials, requiring the State of New York to submit a plan for the independent and impartial investigation and prosecution of the offenses charged against the named and unknown state officers, and insuring the appointment of an impartial state prosecutor and state judge to "prosecute the defendants forthwith," and (2) against the United States Attorney, requiring him to investigate, arrest and prosecute the same state officers for having committed the federal offenses defined by 18 U.S.C. §§ 241 and 242. The latter statutes punish, respectively, conspiracies against a citizen's free exercise or enjoyment of rights secured by the Constitution and laws of the United States, see United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and the willful subjection of any inhabitant, under color of law, to the deprivation of such rights or to different punishment or penalties on account of alienage, color, or race than are prescribed for the punishment of citizens, see Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941).[3]
Federal jurisdiction over the claim against the state defendants was based on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) and over the claim against the United States Attorney on the mandamus statute. 28 U.S.C. § 1361. Venue in the Southern District of New York was predicated on 28 U.S.C. §§ 1391(b), 1392(a). The motions of the federal and state defendants to dismiss the complaint for failure to state claims upon which relief can be granted, Rule 12(b)(6), F.R.Civ.P., were granted by Judge MacMahon without opinion. We agree that the extraordinary relief sought cannot be granted in the situation here presented.
[378] Standing
At the outset, we must note that the Supreme Court's recent decision in Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), to which the attention of the parties in this case was not drawn prior to argument, raises the preliminary question of whether plaintiffs have a sufficient "personal stake in the outcome of the controversy," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), to confer standing upon them to invoke the judicial process. In Linda R.S. the mother of an illegitimate child sought to attack as unconstitutionally discriminatory the application of a Texas criminal statute prohibiting the willful refusal of "any parent" to support his or her child on the ground that it was enforced by the state, as a result of state court interpretation of the statute, against married but not unmarried fathers. Holding that she lacked standing, the Supreme Court, in a majority opinion by Justice Marshall, observed:
"The Court's prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution. See Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962); Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 752, 6 L.Ed.2d 989 (1961). Although these cases arose in a somewhat different context, they demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." 410 U.S. at 619, 93 S.Ct. at 1149.
The broad reach of this language would, at first blush, appear to preclude the plaintiffs here from seeking to contest the nonprosecution of third parties they accuse of criminal conduct. However, the present case is in some respects distinguishable from Linda R.S. Unlike the mother there the inmates here might be said to have sustained or be immediately in danger of sustaining direct personal injury as the result of nonenforcement of the criminal laws against the accused state officers. See 410 U.S. at 619, 93 S.Ct. 1146; Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). They allege that at least some of them suffered direct physical injury at the hands of those they seek to have prosecuted and that if the state officers accused of criminal conduct are not prosecuted, such conduct will continue.
Thus a more immediate and direct danger of injury resulting from nonenforcement is presented here than in Linda R.S., where the Court stressed that the only result of the relief sought by the illegitimate child's mother would be the jailing of the child's father, not the support of the child. Where a successful prosecution, however, would serve to deter the accused from harming the complainant rather than merely supply a penal inducement to perform a duty to provide assistance, the complaining person does show a more direct nexus between his personal interest in protection from harm and the prosecution. But in the present case this rationale in support of standing assumes that injunctive relief, which we conditionally authorized in Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 22-25, restraining physical abuse, torture, beatings or other forms of brutality, or threats of such conduct, is ineffective to protect the plaintiffs from harm.
It may also be argued that since 37 inmates have been indicted for crimes relating to the events at Attica in September 1971, without any indictment having been filed against any of the accused state officials, the complaint alleges a sufficient threat of selective and discriminatory prosecution of the plaintiff inmates to meet the standing requirements discussed in Linda R.S. v. Richard D., supra. On the other hand, [379] the challenge in the present case is not to any criminal statute, as construed, but to the failure of the prosecuting authorities to enforce the criminal laws against a particular group of individuals.
Thus in order to determine whether plaintiffs have standing to sue we would be required to resolve troublesome questions. However, we need not decide the issue of standing because we believe that even if they may properly present their claims for judicial resolution, they seek relief which cannot, in this case at least, be granted either against the state or federal prosecuting authorities.
The Insufficiency of the Complaint
(1) Claim Against the United States Attorney
With respect to the defendant United States Attorney, plaintiffs seek mandamus to compel him to investigate and institute prosecutions against state officers, most of whom are not identified, for alleged violations of 18 U.S.C. §§ 241 and 242. Federal mandamus is, of course, available only "to compel an officer or employee of the United States . . . to perform a duty owed to the plaintiff." 28 U.S.C. § 1361. And the legislative history of § 1361 makes it clear that ordinarily the courts are "`not to direct or influence the exercise of discretion of the officer or agency in the making of the decision,'" United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1195, 22 L.Ed.2d 460 (1969). More particularly, federal courts have traditionally and, to our knowledge, uniformly refrained from overturning, at the instance of a private person, discretionary decisions of federal prosecuting authorities not to prosecute persons regarding whom a complaint of criminal conduct is made. E. g., Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 47 S.Ct. 764, 71 L.Ed. 1331 (1927); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y.1961); Powell v. Katzenbach, 123 U.S.App.D.C. 250, 359 F.2d 234 (1965), cert. denied, 384 U.S. 906, 86 S.Ct. 1341, 16 L.Ed.2d 359, rehearing denied, 384 U.S. 967, 86 S.Ct. 1584, 16 L.Ed.2d 679 (1966); Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967). See also Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir.1955); United States v. Cox, 342 F.2d 167 (5th Cir.), cert. denied sub nom., Cox v. Hauberg, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965); Newman v. United States, 127 U.S.App.D.C. 263, 382 F.2d 479 (1967).
This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, see Inmates of Attica Correctional Facility v. Rockefeller, supra, 453 F.2d at 24 (and cases there cited), serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal justice system. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C.1963), affd. sub nom., Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965); Peek v. Mitchell, 419 F.2d 575 (6th Cir.1970).
The primary ground upon which this traditional judicial aversion to compelling prosecutions has been based is the separation of powers doctrine.
"Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere [380] with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States v. Cox, supra 342 F.2d at 171.
Accord, Pugach v. Klein, supra 193 F. Supp. at 634; Moses v. Kennedy, 219 F. Supp. at 764-765; Peek v. Mitchell, supra 419 F.2d at 577-578.
Although a leading commentator has criticized this broad view as unsound and incompatible with the normal function of the judiciary in reviewing for abuse or arbitrariness administrative acts that fall within the discretion of executive officers, K. C. Davis, Administrative Law Treatise § 28.16(4) at 982-990 (1970 Supp.), he has also recognized, as have most of the cases cited above, that the manifold imponderables which enter into the prosecutor's decision to prosecute or not to prosecute make the choice not readily amenable to judicial supervision.
In the absence of statutorily defined standards governing reviewability, or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming "superprosecutors." In the normal case of review of executive acts of discretion, the administrative record is open, public and reviewable on the basis of what it contains. The decision not to prosecute, on the other hand, may be based upon the insufficiency of the available evidence, in which event the secrecy of the grand jury and of the prosecutor's file may serve to protect the accused's reputation from public damage based upon insufficient, improper, or even malicious charges. In camera review would not be meaningful without access by the complaining party to the evidence before the grand jury or U.S. Attorney. Such interference with the normal operations of criminal investigations, in turn, based solely upon allegations of criminal conduct, raises serious questions of potential abuse by persons seeking to have other persons prosecuted. Any person, merely by filing a complaint containing allegations in general terms (permitted by the Federal Rules) of unlawful failure to prosecute, could gain access to the prosecutor's file and the grand jury's minutes, notwithstanding the secrecy normally attaching to the latter by law. See Rule 6(e), F.R.Cr.P.
Nor is it clear what the judiciary's role of supervision should be were it to undertake such a review. At what point would the prosecutor be entitled to call a halt to further investigation as unlikely to be productive? What evidentiary standard would be used to decide whether prosecution should be compelled? How much judgment would the United States Attorney be allowed? Would he be permitted to limit himself to a strong "test" case rather than pursue weaker cases? What collateral factors would be permissible bases for a decision not to prosecute, e. g., the pendency of another criminal proceeding elsewhere against the same parties? What sort of review should be available in cases like the present one where the conduct complained of allegedly violates state as well as federal laws? See generally, Schwartz, Federal Criminal Jurisdiction and Prosecutors' Discretion, 13 Law & Contemp.Prob. 64 (1948). With limited personnel and facilities at his disposal, what priority would the prosecutor be required to give to cases in which investigation or prosecution was directed by the court?
These difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, see Note, Discretion [381] to Prosecute Federal Civil Rights Crimes, 74 Yale L.J. 1297, 1310-12 (1965), would be unwise.
Plaintiffs urge, however, that Congress withdrew the normal prosecutorial discretion for the kind of conduct alleged here by providing in 42 U.S.C. § 1987[4] that the United States Attorneys are "authorized and required . . . to institute prosecutions against all persons violating any of the provisions of [18 U.S.C. §§ 241, 242]" (emphasis supplied), and, therefore, that no barrier to a judicial directive to institute prosecutions remains. This contention must be rejected. The mandatory nature of the word "required" as it appears in § 1987 is insufficient to evince a broad Congressional purpose to bar the exercise of executive discretion in the prosecution of federal civil rights crimes. Similar mandatory language is contained in the general direction in 28 U.S.C. § 547(1) ("each United States attorney, . . . shall—(1) prosecute for all offenses against the United States; . . ." (emphasis supplied)) and in other statutes in particular areas of concern, e. g., 33 U.S.C. § 413 ("it shall be the duty of United States attorneys to vigorously prosecute all offenders" of certain provisions of the Rivers and Harbors Act when requested to do so by the appropriate officials). See also 45 U.S.C. § 152 (Tenth).
Such language has never been thought to preclude the exercise of prosecutorial discretion. See Bass Angler's Sportsman's Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 345-346 (E.D.Tenn. 1971). Indeed the same contention made here was specifically rejected in Moses v. Kennedy, 219 F.Supp. 762, 765 (D.D.C.1963), aff'd. 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), where seven black residents and one white resident of Mississippi sought mandamus to compel the Attorney General of the United States and the Director of the F.B.I. to investigate, arrest, and prosecute certain individuals, including state and local law enforcement officers, for willfully depriving the plaintiffs of their civil rights. There the Court noted that "considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action." See also Peek v. Mitchell, supra.
Nor do we find the legislative history of § 1987 persuasive of an intent by Congress to depart so significantly from the normal assumption of executive discretion. In re Upchurch, 38 F. 25, 27 (C.C.N.C.1889), relied upon by plaintiffs, held only that a United States commissioner had the power under § 1987 to appoint a person other than the marshal, or one of his deputies, to execute process. It may well be that the legislative background of § 1987 would compel a reading that Congress intended that federal marshals have no choice but to execute warrants issued pursuant to that section, since it also provided for criminal penalties for those who refused to do so and for the appointment of other persons to execute warrants and make arrests. No such conclusion can persuasively be drawn with respect to the exercise by United States Attorneys of prosecutorial discretion, especially in the absence of any similar statutory deterrent [382] against their failure or refusal to prosecute. See Note, Discretion to Prosecute Federal Civil Rights Crimes, 74 Yale L. J. 1297, 1306-07 and n. 46 (1965). Thus, we do not read § 1987 as stripping the United States Attorneys of their normal prosecutorial discretion for the civil rights crimes specified.
It therefore becomes unnecessary to decide whether, if Congress were by explicit direction and guidelines to remove all prosecutorial discretion with respect to certain crimes or in certain circumstances we would properly direct that a prosecution be undertaken. Cf. Powell v. Katzenbach, supra, 359 F.2d at 235; Note, supra at 1305.
(2) Claims Against the State Officials
With respect to the state defendants, plaintiffs also seek prosecution of named and unknown persons for the violation of state crimes. However, they have pointed to no statutory language even arguably creating any mandatory duty upon the state officials to bring such prosecutions. To the contrary, New York law reposes in its prosecutors a discretion to decide whether or not to prosecute in a given case, which is not subject to review in the state courts. Hassan v. Magistrates Court, 20 Misc.2d 509, 191 N.Y.S.2d 238 (1959), appeal dismissed, 10 A.D.2d 908, 202 N.Y.S.2d 1002 (2d Dept.), leave to appeal denied, 8 N.Y.2d 750, 201 N.Y.S.2d 765, cert. denied, 364 U.S. 844, 81 S.Ct. 86, 5 L.Ed. 2d 68 (1960). Yet the federal district court is asked to compel state prosecutions and appoint an "impartial" state prosecutor and state judge to conduct them, as well as to require the submission of a plan for impartial investigation and prosecution of the alleged offenses, on the basis of 42 U.S.C. § 1983, in the context of a continuing grand jury investigation into criminal conduct connected with the Attica uprising, supra n. 1, and where the state itself on September 30, 1971, appointed a Special Commission on Attica which has now published its findings.[5] The very elaborateness of the relief believed by plaintiffs to be required indicates the difficulties inherent in judicial supervision of prosecutions, federal or state, which render such a course inadvisable.
Plaintiffs point to language in our earlier opinion, Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 20 (2d Cir. 1971), to the effect that "the State has the duty to investigate and prosecute all persons, including inmates, who may have engaged in criminal conduct before, during and after the uprising." But the statement does not support their present demands. The existence of such a duty does not define its dimensions or imply that an alleged failure to perform the duty completely or equally, as between inmates and state officials, will support federal judicial supervision of state criminal prosecutions. The serious charge that the state's investigation is proceeding against inmates but not against state officers, if shown to be accurate, might lead the Governor to supplement or replace those presently in charge of the investigation or the state legislature to act. But the gravity of the allegation does not reduce the inherent judicial incapacity to supervise.
The only authority supporting the extraordinary relief requested here is the Seventh Circuit's recent decision in Littleton v. Berbling, 468 F.2d 389 (1972), cert. granted, 411 U.S. 915, 93 S.Ct. 1544, 36 L.Ed.2d 306 (1973). There a class of black citizens of Cairo, Illinois, brought suit for damages and injunctive relief against a state prosecutor, an investigator for him, a magistrate and a state judge, charging that the defendants had "systematically applied the state criminal laws so as to discriminate against plaintiffs and their class on the basis of race, interfering thereby with the free exercise of their constitutional [383] rights." Id. at 392. They alleged a long history indicating a concerted pattern of officially sponsored racial discrimination. In reversing the district court's dismissal of the complaint, a divided panel concluded that a state judge, while not subject to suit for damages under § 1983, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), may be enjoined from unconstitutionally fixing bails and imposing sentences that discriminated sharply against black persons, and that the State Attorney's quasi-judicial immunity from suit for damages when performing his prosecutorial function, id. 468 F.2d at 410, "does not extend to complete freedom from injunction," id. at 411. Finding other possible remedies either unavailable or ineffective, the Court approved the possibility of some type of injunctive relief, not fully specified, but which might include a requirement of "periodic reports of various types of aggregate data on actions on bail and sentencing and dispositions of complaints." Id. at 415.
However, the decision in Littleton is clearly distinguishable. There the claim, unlike that here, alleged a systematic and lengthy course of egregious racial discrimination in which black persons were denied equal access to and treatment by the state criminal justice system. Furthermore, the Court's decision does not appear to have compelled the institution of criminal prosecutions, which is the principal relief sought here. In short, we believe that Littleton should be strictly limited to its peculiar facts, as apparently did the Court itself. See id. at 415. To the extent that it may be construed as approving federal judicial review and supervision of the exercise of prosecutorial discretion and as compelling the institution of criminal proceedings, we do not share such an extension of its views.
The order of the district court is affirmed.
[1] The State has pointed out that the special Wyoming County grand jury has already handed down 37 sealed indictments and has not yet completed its investigation. On oral argument, however, the Assistant Attorney General observed that none of the indictments handed down thus far concerns any state officer and, of course, that there is no assurance that further indictments will be forthcoming.
[2] See note 3 infra.
[3] As originally filed, the complaint also sought a declaratory judgment against defendants Rockefeller, Oswald, Dunbar, Mancusi, and other defendants named in the complaint, declaring them to be "unfit to administer Attica Correctional Facility and the prison system of New York," and an order permanently enjoining these state officials from further administration of the prison system and placing the entire system, including the facility at Attica, into federal receivership. The United States Magistrate for the Western District of New York, Edmund Maxwell, was also named as a defendant in the complaint. Prior to the hearing on the motions to dismiss, however, plaintiffs consented to the dismissal of that portion of the complaint which requested such relief and to the dismissal of Maxwell as a defendant.
[4] 1987. Prosecution of violation of certain laws
"The United States attorneys, marshals, and deputy marshals, the commissioners appointed by the district and territorial courts, with power to arrest, imprison, or bail offenders, and every other officer who is especially empowered by the President, are authorized and required, at the expense of the United States, to institute prosecutions against all persons violating any of the provisions of section 1990 of this title or of sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and to cause such persons to be arrested, and imprisoned or bailed, for trial before the court of the United States or the territorial court having cognizance of the offense."
7.2.8.9.2.2 U.S. v. Armstrong 7.2.8.9.2.2 U.S. v. Armstrong
116 S.Ct. 1480
134 L.Ed.2d 687
v.
ARMSTRONG et al.
In response to their indictment on ``crack'' cocaine and other federal charges, respondents filed a motion for discovery or for dismissal, alleging that they were selected for prosecution because they are black. The District Court granted the motion over the Government's argument, among others, that there was no evidence or allegation that it had failed to prosecute nonblack defendants. When the Government indicated it would not comply with the discovery order, the court dismissed the case. The en banc Ninth Circuit affirmed, holding that the proof requirements for a selective-prosecution claim do not compel a defendant to demonstrate that the Government has failed to prosecute others who are similarly situated.
Held: For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. Pp. 4-14.
(a) Contrary to respondents' contention, Federal Rule of Criminal Procedure 16, which governs discovery in criminal cases, does not support the result reached by the Ninth Circuit in this case. Rule 16(a)(1)(C) -- which, inter alia, requires the government to permit discovery of documents that are "material to the preparation of the . . . defense" or "intended for use by the government as evidence in chief"--applies only to the preparation of the "defense" against the Government's case in chief, not to the preparation of selective-prosecution claims. This reading creates a perceptible symmetry between the types of documents referred to in the Rule. Moreover, its correctness is established beyond peradventure by Rule 16(a)(2), which, as relevant here, exempts from discovery the work product of government attorneys and agents made in connection with the case's investigation. Respondents' construction of "defense" as including selective-prosecution claims is implausible: It creates the anomaly of a defendant's being able to examine all government work product under Rule 16(a)(1)(C), except that which is most pertinent, the work product in connection with his own case, under Rule 16(a)(2). Pp. 4-6.
(b) Under the equal protection component of the Fifth Amendment's Due Process Clause, the decision whether to prosecute may not be based on an arbitrary classification such as race or religion. Oyler v. Boles, 368 U. S. 448, 456. In order to prove a selective-prosecution claim, the claimant must demonstrate that the prosecutorial policy had a discriminatory effect and was motivated by a discriminatory purpose. Ibid. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. Ah Sin v. Wittman, 198 U. S. 500. Batson v. Kentucky, 476 U. S. 79, and Hunter v. Underwood, 471 U. S. 222, distinguished. Although Ah Sin involved federal review of a state conviction, a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute. Discovery imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. Assuming that discovery is available on an appropriate showing in aid of a selective-prosecution claim, see Wade v. United States, 504 U. S. 181, the justifications for a rigorous standard of proof for the elements of such a case thus require a correspondingly rigorous standard for discovery in aid of it. Thus, in order to establish entitlement to such discovery, a defendant must produce credible evidence that similarly situated defendants of other races could have been prosecuted, but were not. In this case, respondents have not met this required threshold. Pp. 6-14. 48 F. 3d 1508, reversed and remanded.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined, and in which Breyer, J., joined in part. Souter, J., and Ginsburg, J., filed concurring opinions. Breyer, J., filed an opinion concurring in part and concurring in the judgment. Stevens, J., filed a dissenting opinion.
Chief Justice Rehnquist delivered the opinion of the Court.
In this case, we consider the showing necessary for a defendant to be entitled to discovery on a claim that the prosecuting attorney singled him out for prosecution on the basis of his race. We conclude that respondents failed to satisfy the threshold showing: They failed to show that the Government declined to prosecute similarly situated suspects of other races.
In April 1992, respondents were indicted in the United States District Court for the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack) and conspiring to distribute the same, in violation of 21 U. S. C. Section(s) 841 and 846 (1988 ed. and Supp. IV), and federal firearms offenses. For three months prior to the indictment, agents of the Federal Bureau of Alcohol, Tobacco, and Firearms and the Narcotics Division of the Inglewood, California, Police Department had infiltrated a suspected crack distribution ring by using three confidential informants. On seven separate occasions during this period, the informants had bought a total of 124.3 grams of crack from respondents and witnessed respondents carrying firearms during the sales. The agents searched the hotel room in which the sales were transacted, arrested respondents Armstrong and Hampton in the room, and found more crack and a loaded gun. The agents later arrested the other respondents as part of the ring.
In response to the indictment, respondents filed a motion for discovery or for dismissal of the indictment, alleging that they were selected for federal prosecution because they are black. In support of their motion, they offered only an affidavit by a "Paralegal Specialist," employed by the Office of the Federal Public Defender representing one of the respondents. The only allegation in the affidavit was that, in every one of the 24 Section(s) 841 or 846 cases closed by the office during 1991, the defendant was black. Accompanying the affidavit was a "study" listing the 24 defendants, their race, whether they were prosecuted for dealing cocaine as well as crack, and the status of each case. 1
The Government opposed the discovery motion, arguing, among other things, that there was no evidence or allegation "that the Government has acted unfairly or has prosecuted non-black defendants or failed to prosecute them." App. 150. The District Court granted the motion. It ordered the Government (1) to provide a list of all cases from the last three years in which the Government charged both cocaine and firearms offenses, (2) to identify the race of the defendants in those cases, (3) to identify what levels of law enforcement were involved in the investigations of those cases, and (4) to explain its criteria for deciding to prosecute those defendants for federal cocaine offenses. Id., at 161-162.
The Government moved for reconsideration of the District Court's discovery order. With this motion it submitted affidavits and other evidence to explain why it had chosen to prosecute respondents and why respondents' study did not support the inference that the Government was singling out blacks for cocaine prosecution. The federal and local agents participating in the case alleged in affidavits that race played no role in their investigation. An Assistant United States Attorney explained in an affidavit that the decision to prosecute met the general criteria for prosecution, because
"there was over 100 grams of cocaine base involved, over twice the threshold necessary for a ten year mandatory minimum sentence; there were multiple sales involving multiple defendants, thereby indicating a fairly substantial crack cocaine ring; . . . there were multiple federal firearms violations intertwined with the narcotics trafficking; the overall evidence in the case was extremely strong, including audio and videotapes of defendants; . . . and several of the defendants had criminal histories including narcotics and firearms violations." Id., at 81.
The Government also submitted sections of a published 1989 Drug Enforcement Administration report which concluded that "[l]arge-scale, interstate trafficking networks controlled by Jamaicans, Haitians and Black street gangs dominate the manufacture and distribution of crack." J. Featherly & E. Hill, Crack Cocaine Overview 1989; App. 103.
In response, one of respondents' attorneys submitted an affidavit alleging that an intake coordinator at a drug treatment center had told her that there are "an equal number of caucasian users and dealers to minority users and dealers." Id., at 138. Respondents also submitted an affidavit from a criminal defense attorney alleging that in his experience many nonblacks are prosecuted in state court for crack offenses, id., at 141, and a newspaper article reporting that Federal "crack criminals . . . are being punished far more severely than if they had been caught with powder cocaine, and almost every single one of them is black," Newton, Harsher Crack Sentences Criticized as Racial Inequity, Los Angeles Times, Nov. 23, 1992, p. 1; App. 208-210.
The District Court denied the motion for reconsideration. When the Government indicated it would not comply with the court's discovery order, the court dismissed the case. 2
A divided three-judge panel of the Court of Appeals for the Ninth Circuit reversed, holding that, because of the proof requirements for a selective-prosecution claim, defendants must "`provide a colorable basis for believing that `others similarly situated have not been prosecuted'" to obtain discovery. 21 F. 3d 1431, 1436 (1994) (quoting United States v. Wayte, 710 F. 2d 1385, 1387 (CA9 1983), aff'd, 470 U. S. 598 (1985)). The Court of Appeals voted to rehear the case en banc, and the en banc panel affirmed the District Court's order of dismissal, holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated." 48 F. 3d 1508, 1516 (1995) (emphasis deleted). We granted certiorari to determine the appropriate standard for discovery for a selective-prosecution claim. 516 U. S. ___ (1995).
Neither the District Court nor the Court of Appeals mentioned Federal Rule of Criminal Procedure 16, which by its terms governs discovery in criminal cases. Both parties now discuss the Rule in their briefs, and respondents contend that it supports the result reached by the Court of Appeals. Rule 16 provides, in pertinent part:
"Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant." Fed. Rule Crim. Proc. 16(a)(1)(C).
Respondents argue that documents "within the possession . . . of the government" that discuss the government's prosecution strategy for cocaine cases are "material" to respondents' selective-prosecution claim. Respondents argue that the Rule applies because any claim that "results in nonconviction" if successful is a "defense" for the Rule's purposes, and a successful selective-prosecution claim has that effect. Tr. of Oral Arg. 30.
We reject this argument, because we conclude that in the context of Rule 16 "the defendant's defense" means the defendant's response to the Government's case-in-chief. While it might be argued that as a general matter, the concept of a "defense" includes any claim that is a "sword," challenging the prosecution's conduct of the case, the term may encompass only the narrower class of "shield" claims, which refute the Government's arguments that the defendant committed the crime charged. "defense" means an argument in response to the prosecution's case-in-chief, there is a perceptible symmetry between documents "material to the preparation of the defendant's defense," and, in the very next phrase, documents "intended for use by the government as evidence in chief at the trial." If this symmetry were not persuasive enough, paragraph (a)(2) of Rule 16 establishes beyond peradventure that "defense" in section (a)(1)(C) can refer only to defenses in response to the Government's case-in-chief. Rule 16(a)(2), as relevant here, exempts from defense inspection "reports, memoranda, or other internal government documents made by the attorney for the government or other government agents in connection with the investigation or prosecution of the case." Under Rule 16(a)(1)(C), a defendant may examine documents material to his defense, but, under Rule 16(a)(2), he may not examine Government work product in connection with his case. If a selective-prosecution claim is a "defense," Rule 16(a)(1)(C) gives the defendant the right to examine Government work product in every prosecution except his own. Because respondents' construction of "defense" creates the anomaly of a defendant's being able to examine all Government work product except the most pertinent, we find their construction implausible. We hold that Rule 16(a)(1)(C) authorizes defendants to examine Government documents material to the preparation of their defense against the Government's case-in-chief, but not to the preparation of selective-prosecution claims.
In Wade v. United States, 504 U. S. 181 (1992), we considered whether a federal court may review a Government decision not to file a motion to reduce a defendant's sentence for substantial assistance to the prosecution, to determine whether the Government based its decision on the defendant's race or religion. In holding that such a decision was reviewable, we assumed that discovery would be available if the defendant could make the appropriate threshold showing, although we concluded that the defendant in that case did not make such a showing. See id., at 186. We proceed on a like assumption here.
A selective-prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one. These cases afford a "background presumption," cf. United States v. Mezzanatto, 513 U. S. ___, ___ (1995) (slip op., at 8) that the showing necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.
A selective-prosecution claim asks a court to exercise judicial power over a "special province" of the Executive. Heckler v. Chaney, 470 U. S. 821, 832 (1985). The Attorney General and United States Attorneys retain "`broad discretion'" to enforce the Nation's criminal laws. Wayte v. United States, 470 U. S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U. S. 368, 380, n. 11 (1982)). They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to "take Care that the Laws be faithfully executed." U. S. Const., Art. II, Section(s) 3; see 28 U. S. C. Section(s) 516, 547. As a result, "[t]he presumption of regularity supports" their prosecutorial decisions and "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). In the ordinary case, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).
Of course, a prosecutor's discretion is "subject to constitutional constraints." United States v. Batchelder, 442 U. S. 114, 125 (1979). One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), is that the decision whether to prosecute may not be based on "an unjustifiable standard such as race, religion, or other arbitrary classification," Oyler v. Boles, 368 U. S. 448, 456 (1962). A defendant may demonstrate that the administration of a criminal law is "directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive" that the system of prosecution amounts to "a practical denial" of equal protection of the law. Yick Wo v. Hopkins, 118 U. S. 356, 373 (1886).
In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present "clear evidence to the contrary." Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are "properly hesitant to examine the decision whether to prosecute." 470 U. S., at 608. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. "Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake." Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function. "Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy." Ibid.
The requirements for a selective-prosecution claim draw on "ordinary equal protection standards." Id., at 608. The claimant must demonstrate that the federal prosecutorial policy "had a discriminatory effect and that it was motivated by a discriminatory purpose." Ibid.; accord, Oyler, supra, at 456. To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted. This requirement has been established in our case law since Ah Sin v. Wittman, 198 U. S. 500 (1905). Ah Sin, a subject of China, petitioned a California state court for a writ of habeas corpus, seeking discharge from imprisonment under a San Francisco county ordinance prohibiting persons from setting up gambling tables in rooms barricaded to stop police from entering. Id., at 503. He alleged in his habeas petition "that the ordinance is enforced `solely and exclusively against persons of the Chinese race and not otherwise.'" Id., at 507. We rejected his contention that this averment made out a claim under the Equal Protection Clause, because it did not allege "that the conditions and practices to which the ordinance was directed did not exist exclusively among the Chinese, or that there were other offenders against the ordinance than the Chinese as to whom it was not enforced." Id., at 507-508.
The similarly situated requirement does not make a selective-prosecution claim impossible to prove. Twenty years before Ah Sin, we invalidated an ordinance, also adopted by San Francisco, that prohibited the operation of laundries in wooden buildings. Yick Wo, 118 U. S., at 374. The plaintiff in error successfully demonstrated that the ordinance was applied against Chinese nationals but not against other laundry-shop operators. The authorities had denied the applications of 200 Chinese subjects for permits to operate shops in wooden buildings, but granted the applications of 80 individuals who were not Chinese subjects to operate laundries in wooden buildings "under similar conditions." Ibid. We explained in Ah Sin why the similarly situated requirement is necessary:
"No latitude of intention should be indulged in a case like this. There should be certainty to every intent. Plaintiff in error seeks to set aside a criminal law of the State, not on the ground that it is unconstitutional on its face, not that it is discriminatory in tendency and ultimate actual operation as the ordinance was which was passed on in the Yick Wo case, but that it was made so by the manner of its administration. This is a matter of proof, and no fact should be omitted to make it out completely, when the power of a Federal court is invoked to interfere with the course of criminal justice of a State." 198 U. S., at 508 (emphasis added).
Although Ah Sin involved federal review of a state conviction, we think a similar rule applies where the power of a federal court is invoked to challenge an exercise of one of the core powers of the Executive Branch of the Federal Government, the power to prosecute.
Respondents urge that cases such as Batson v. Kentucky, 476 U. S. 79 (1986), and Hunter v. Underwood, 471 U. S. 222 (1985), cut against any absolute requirement that there be a showing of failure to prosecute similarly situated individuals. We disagree. In Hunter, we invalidated a state law disenfranchising persons convicted of crimes involving moral turpitude. Id., at 233. Our holding was consistent with ordinary equal protection principles, including the similarly situated requirement. There was convincing direct evidence that the State had enacted the provision for the purpose of disenfranchising blacks, id., at 229-231, and indisputable evidence that the state law had a discriminatory effect on blacks as compared to similarly situated whites: Blacks were "`by even the most modest estimates at least 1.7 times as likely as whites to suffer disfranchisement under'" the law in question. Id., at 227 (quoting Underwood v. Hunter, 730 F. 2d 614, 620 (CA11 1984)). Hunter thus affords no support for respondent's position.
In Batson, we considered "[t]he standards for assessing a prima facie case in the context of discriminatory selection of the venire" in a criminal trial. 476 U. S., at 96. We required a criminal defendant to show "that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race" and that this fact, the potential for abuse inherent in a peremptory strike, and "any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Ibid. During jury selection, the entire res gestae take place in front of the trial judge. Because the judge has before him the entire venire, he is well situated to detect whether a challenge to the seating of one juror is part of a "pattern" of singling out members of a single race for peremptory challenges. See id., at 97. He is in a position to discern whether a challenge to a black juror has evidentiary significance; the significance may differ if the venire consists mostly of blacks or of whites. Similarly, if the defendant makes out a prima facie case, the prosecutor is called upon to justify only decisions made in the very case then before the court. See id., at 97-98. The trial judge need not review prosecutorial conduct in relation to other venires in other cases.
Having reviewed the requirements to prove a selective-prosecution claim, we turn to the showing necessary to obtain discovery in support of such a claim. If discovery is ordered, the Government must assemble from its own files documents which might corroborate or refute the defendant's claim. Discovery thus imposes many of the costs present when the Government must respond to a prima facie case of selective prosecution. It will divert prosecutors' resources and may disclose the Government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim.
The parties, and the Courts of Appeals which have considered the requisite showing to establish entitlement to discovery, describe this showing with a variety of phrases, like "colorable basis," "substantial threshold showing," Tr. of Oral Arg. 5, "substantial and concrete basis," or "reasonable likelihood," Brief for Respondents Martin et al. 30. However, the many labels for this showing conceal the degree of consensus about the evidence necessary to meet it. The Courts of Appeals "require some evidence tending to show the existence of the essential elements of the defense," discriminatory effect and discriminatory intent. United States v. Berrios, 501 F. 2d 1207, 1211 (CA2 1974).
In this case we consider what evidence constitutes "some evidence tending to show the existence" of the discriminatory effect element. The Court of Appeals held that a defendant may establish a colorable basis for discriminatory effect without evidence that the Government has failed to prosecute others who are similarly situated to the defendant. 48 F. 3d, at 1516. We think it was mistaken in this view. The vast majority of the Courts of Appeals require the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not, and this requirement is consistent with our equal protection case law. United States v. Parham, 16 F. 3d 844, 846-847 (CA8 1994); United States v. Fares, 978 F. 2d 52, 59-60 (CA2 1992); United States v. Peete, 919 F. 2d 1168, 1176 (CA6 1990); C. E. Carlson, Inc. v. SEC, 859 F. 2d 1429, 1437-1438 (CA10 1988); United States v. Greenwood, 796 F. 2d 49, 52-53 (CA4 1986); United States v. Mitchell, 778 F. 2d 1271, 1277 (CA7 1985). As the three-judge panel explained, "`[s]elective prosecution' implies that a selection has taken place." 21 F. 3d, at 1436. 3
The Court of Appeals reached its decision in part because it started "with the presumption that people of all races commit all types of crimes-not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group." 48 F. 3d, at 1516-1517. It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show that: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black, United States Sentencing Comm'n, 1994 Annual Report 107 (Table 45); 93.4% of convicted LSD dealers were white, ibid.; and 91% of those convicted for pornography or prostitution were white, id., at 41 (Table 13). Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.
The Court of Appeals also expressed concern about the "evidentiary obstacles defendants face." 48 F. 3d, at 1514. But all of its sister Circuits that have confronted the issue have required that defendants produce some evidence of differential treatment of similarly situated members of other races or protected classes. In the present case, if the claim of selective prosecution were well founded, it should not have been an insuperable task to prove that persons of other races were being treated differently than respondents. For instance, respondents could have investigated whether similarly situated persons of other races were prosecuted by the State of California, were known to federal law enforcement officers, but were not prosecuted in federal court. We think the required threshold-a credible showing of different treatment of similarly situated persons-adequately balances the Government's interest in vigorous prosecution and the defendant's interest in avoiding selective prosecution.
In the case before us, respondents' "study" did not constitute "some evidence tending to show the existence of the essential elements of" a selective-prosecution claim. Berrios, supra, at 1211. The study failed to identify individuals who were not black, could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted. This omission was not remedied by respondents' evidence in opposition to the Government's motion for reconsideration. The newspaper article, which discussed the discriminatory effect of federal drug sentencing laws, was not relevant to an allegation of discrimination in decisions to prosecute. Respondents' affidavits, which recounted one attorney's conversation with a drug treatment center employee and the experience of another attorney defending drug prosecutions in state court, recounted hearsay and reported personal conclusions based on anecdotal evidence. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for proceedings consistent with this opinion.
It is so ordered.
djq Justice Souter, concurring.
I join the Court's opinion, but in its discussion of Federal Rule of Criminal Procedure 16 only to the extent of its application to the issue in this case.
djq Justice Ginsburg, concurring.
I do not understand the Court to have created a "major limitation" on the scope of discovery available under Federal Rule of Criminal Procedure 16. See post, at 5 (Breyer, J., concurring in part and concurring in judgment). As I see it, the Court has decided a precise issue: whether the phrase "defendant's defense," as used in Rule with the Court, for reasons the opinion states, that subsection not called upon to decide here whether Rule 16(a)(1)(C) applies in any other context, for example, to affirmative defenses unrelated to the merits. With the caveat that I do not read today's opinion as precedent foreclosing issues not tendered for review, I join the Court's opinion.
djq Justice Breyer, concurring in part and concurring in the judgment.
I write separately because, in my view, Federal Rule of Criminal Procedure 16 does not limit a defendant's discovery rights to documents related to the Government's case-in-chief (ante, at 5). The Rule says that "the government shall permit the defendant to inspect and copy" certain physical items (I shall summarily call them "documents") "which are material to the preparation of the defendant's defense." Fed. Rule including (1) a simple response to the Government's case-in-chief, (2) an affirmative defense unrelated to the merits (such as a Speedy Trial Act claim), (3) an unrelated claim of constitutional right, (4) a foreseeable surrebuttal to a likely Government rebuttal, and others. The Rule's language does not limit its scope to the first item on this list. To interpret the Rule in this limited way creates a legal distinction that, from a discovery perspective, is arbitrary. It threatens to create two full parallel sets of criminal discovery principles. And, as far as I can tell, the interpretation lacks legal support.
The Court bases its interpretation upon what it says is a "perceptible symmetry," ante, at 6, between two phrases in Rule defense," and the next phrase, "intended for use by the government as evidence in chief at the trial." To test the Court's argument, consider these two phrases in context. The Rule says:
"Upon request of the defendant the government shall permit the defendant to inspect and copy [documents and other items] . . . which are material to the preparation of the defendant's defense or [2] are intended for use by the government as evidence in chief at the trial, or [3] were obtained from or belong to the defendant." Fed. Rule
Though symmetry may reside in the eye of the beholder, I can find no relevant symmetry here. Rather, the language suggests a simple three-part categorization of the documents and other physical items that the Rule requires the Government to make available to the defendant. From a purely linguistic perspective, there is no more reason to import into the first category a case-in-chief-related limitation (from the second category) than some kind of defendant's-belongings-related limitation (from the third category).
Rule 16 creates these three categories for a reason that belies "symmetry"--namely to specify two sets of items (the Government's case-in-chief evidence, the defendant's belongings) that the Government must make available to the defendant without a preliminary showing of "materiality." The Rule's first category creates a residual classification (items "material to the preparation of the defendant's defense") that require a preliminary "materiality" showing. The Committee thought, however, that "[l]imiting the rule to situations in which the defendant can show that the evidence is material seems unwise. . . . For this reason subdivision (a)(1)(C) also contains language to compel disclosure if the government intends to use the property as evidence at the trial or if the property was obtained from or belongs to the defendant." Advisory Committee's Notes on Fed. Rule Crim. Proc. 16, 18 U. S. C. App., p. 762 (second and third categories added to specify that, without a special showing of materiality, certain items are almost always "material") (citing 1 C. Wright, Federal Practice and Procedure Section(s) 254, p. 510, n. 58, p. 513, n. 70 (1969)). Nothing in the Notes, or in the Rule's language, suggests that the residual category of items "material to the preparation of the defendant's defense," means to cover only those items related to the case-in-chief.
The only other reason the majority advances in support of its "case-in-chief" limitation concerns a later part of the Rule, paragraph 16(a)(2). As relevant here, that paragraph exempts Government attorney work product from certain of Rule 16's disclosure requirements. In the majority's view, since (1) a defendant asserting a valid "selective prosecution" defense would likely need prosecution work product to make his case, but (2) the Rule exempts prosecution work product from discovery, then (3) the Rule must have some kind of implicit limitation (such as a "case-in-chief" limitation) that makes it irrelevant to defense efforts to assert "selective prosecution" defenses.
The majority's conclusion, however, does not follow from its premises. For one thing, Rule 16's work-product exception may itself contain implicit exceptions. After all, "[t]he privilege derived from the work-product doctrine is not absolute." United States v. Nobles, 422 U. S. 225, 239 (1975); see also 8 C. Wright, A. Miller & R. Marcus, Federal Practice and Procedure Section(s) 2022, p. 324 (2d ed. 1994) (in civil context, work product "is discoverable only on a substantial showing of `necessity or justification'") (quoting Hickman v. Taylor, 329 U. S. 495, 510 (1947)); J. Ghent, Development, Since Hickman v. Taylor, of Attorney's "Work Product" Doctrine, 35 A.L.R. 3d 412, 465-469, Section(s) 25 (1971) (in civil context, work product protection is not absolute, but is a "qualified privilege or immunity"). To the extent such a reading permits a defendant to obtain "work product" in an appropriate case (say, with a strong prima facie showing of selective prosecution), the Court's problem does not exist. Of course, to read the work product exception as containing some such implicit exception itself represents a departure from the Rule's literal language. But, is it not far easier to believe the Rule's authors intended some such small implicit exception to an exception, consistent with the language and purpose of the Rule, than that they intended the very large exception created by the Court?
For another thing, even if one reads the work product exception literally, the Court's problem disappears as long as courts can supplement Rule 16 discovery with discovery based upon other legal principles. The language of the work product exception suggests the possibility of such supplementation, for it says, not that work product is "exemp[t]" from discovery, ante, at 6, but that "this rule" does not authorize discovery of the prosecutor's work product. Fed. Rule Civ. Proc. 16(a)(2). The Advisory Committee's Notes make clear that the Committee believed that other rules of law may authorize (or require) discovery not mentioned in the Rule. See, e.g., Advisory Committee's Notes on Rule 16, 18 U. S. C. App., p. 762, 763 (discussion of Brady v. Maryland, 373 U. S. 83 (1963), which the Rule does not codify); 18 U. S. C. App., p. 761 ("[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge's discretion to order broader discovery in appropriate cases"); see also 2 C. Wright, Federal Practice and Procedure Section(s) 254, p. 81, and n. 60 (2d ed. 1982) ("Because Brady is based on the Constitution, it overrides court-made rules of procedure. Thus the work-product immunity for discovery in Rule 16(a)(2) prohibits discovery under Rule 16 but it does not alter the prosecutor's duty to disclose material that is within Brady" (footnotes omitted). Of course, the majority, in a sense, reads the Rule as permitting supplementation, but it does more. It goes well beyond the added (say, constitutionally related) rule supplementation needed to overcome its problem; instead, it shrinks the Rule by unnecessarily creating a major limitation on its scope.Finally, and in any event, here the defendants sought discovery of information that is not work product. See ante, at 2-3. Thus, we need not decide whether in an appropriate case it would be necessary to find an implicit exception to the language of Rule 16(a)(2), or to find an independent constitutional source for the discovery, or to look for some other basis.
In sum, neither the alleged "symmetry" in the structure of Rule the majority's limitation of discovery under Rule 16(a)(1)(C) to documents related to the government's "case-in-chief." Rather, the language and legislative history make clear that the Rule's drafters meant it to provide a broad authorization for defendants' discovery, to be supplemented if necessary in an appropriate case. Whether or not one can also find a basis for this kind of discovery in other sources of whether the defendants' discovery request satisfied the Rule's requirement that the discovery be "material to the preparation of the defendant's defense."I believe that the defendants' request did not satisfy this threshold. Were the "selective prosecution" defense valid in this case--i.e., were there "clear evidence," United States v. Chemical Foundation, Inc., 272 U. S. 1, 14 (1926), that the Federal Government's prosecutorial policy "had a discriminatory effect and . . . was motivated by a discriminatory purpose," Wayte v. United States, 470 U. S. 598, 608 (1985), it should have been fairly easy for the defendants to find, not only instances in which the Federal Government prosecuted African Americans, but also some instances in which the Federal Government did not prosecute similarly situated caucasians. The defendants' failure to do so, for the reasons the Court sets forth, amounts to a failure to make the necessary threshold showing in respect to materiality. See 2 C. Wright, Federal Practice and Procedure Section(s) 254, pp. 66-67 (2d ed. 1982); United States v. Balk, 706 F. 2d 1056, 1060 (CA9 1983); United States v. Johnson, 577 F. 2d 1304, 1309 (CA5 1978); United States v. Murdock, 548 F. 2d 599, 600 (CA5 1977).
djq Justice Stevens, dissenting.
Federal prosecutors are respected members of a respected profession. Despite an occasional misstep, the excellence of their work abundantly justifies the presumption that "they have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926). Nevertheless, the possibility that political or racial animosity may infect a decision to institute criminal proceedings cannot be ignored. Oyler v. Boles, 368 U. S. 448, 456 (1962). For that reason, it has long been settled that the prosecutor's broad discretion to determine when criminal charges should be filed is not completely unbridled. As the Court notes, however, the scope of judicial review of particular exercises of that discretion is not fully defined. See ante, at 13, n. 3.
The United States Attorney for the Central District of California is a member and an officer of the bar of that District Court. As such, she has a duty to the judges of that Court to maintain the standards of the profession in the performance of her official functions. If a District Judge has reason to suspect that she, or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the Judge to determine whether there is a factual basis for such a concern. I agree with the Court that Rule 16 of the Federal Rules of Criminal Procedure is not the source of the District Court's power to make the necessary inquiry. I disagree, however, with its implicit assumption that a different, relatively rigid rule needs to be crafted to regulate the use of this seldom-exercised inherent judicial power. See Advisory Committee's Notes on Rule 16, 18 U. S. C. App., p. 761 (Rule 16 is "not intended to limit the judge's discretion to order broader discovery in appropriate cases").
The Court correctly concludes that in this case the facts presented to the District Court in support of respondents' claim that they had been singled out for prosecution because of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery, either under Rule 16 or under the District Court's inherent power to order discovery in appropriate circumstances. Like Chief Judge Wallace of the Court of Appeals, however, I am persuaded that the District Judge did not abuse her discretion when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney's Office. See 48 F. 3d 1508, 1520-1521 (CA9 1995). Perhaps the discovery order was broader than necessary, but I cannot agree with the Court's apparent conclusion that no inquiry was permissible.
The District Judge's order should be evaluated in light of three circumstances that underscore the need for judicial vigilance over certain types of drug prosecutions. First, the Anti-Drug Abuse Act of 1986 and subsequent legislation established a regime of extremely high penalties for the possession and distribution of so-called "crack" cocaine. 4 Those provisions treat one gram of crack as the equivalent of 100 grams of powder cocaine. The distribution of 50 grams of crack is thus punishable by the same mandatory minimum sentence of 10 years in prison that applies to the distribution of 5,000 grams of powder cocaine. 5 The Sentencing Guidelines extend this ratio to penalty levels above the mandatory minimums: for any given quantity of crack, the guideline range is the same as if the offense had involved 100 times that amount in powder cocaine. 6 These penalties result in sentences for crack offenders that average three to eight times longer than sentences for comparable powder offenders. 7 United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 145 (Feb. 1995) (hereinafter Special Report).
Second, the disparity between the treatment of crack cocaine and powder cocaine is matched by the disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. For a variety of reasons, often including the absence of mandatory minimums, the existence of parole, and lower baseline penalties, terms of imprisonment for drug offenses tend to be substantially lower in state systems than in the federal system. The difference is especially marked in the case of crack offenses. The majority of States draw no distinction between types of cocaine in their penalty schemes; of those that do, none has established as stark a differential as the Federal Government. See id., at x, 129-138. For example, if respondent Hampton is found guilty, his federal sentence might be as long as a mandatory life term. Had he been tried in state court, his sentence could have been as short as 12 years, less worktime credits of half that amount. 8
Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty-eight percent of such defendants were black. Id., at 39, 161. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6-7 (Dec. 1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a "primary cause of the growing disparity between sentences for Black and White federal defendants." Special Report 163.
The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that District. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.
Respondents submitted a study showing that of all cases involving crack offenses that were closed by the Federal Public Defender's Office in 1991, 24 out of 24 involved black defendants. To supplement this evidence, they submitted affidavits from two of the attorneys in the defense team. The first reported a statement from an intake coordinator at a local drug treatment center that, in his experience, an equal number of crack users and dealers were caucasian as belonged to minorities. App. 138. The second was from David R. Reed, counsel for respondent Armstrong. Reed was both an active court-appointed attorney in the Central District of California and one of the directors of the leading association of criminal defense lawyers who practice before the Los Angeles County courts. Reed stated that he did not recall "ever handling a [crack] cocaine case involving non-black defendants" in federal court, nor had he even heard of one. Id., at 140. He further stated that "[t]here are many crack cocaine sales cases prosecuted in state court that do involve racial groups other than blacks." Id., at 141 (emphasis in original).
The majority discounts the probative value of the affidavits, claiming that they recounted "hearsay" and reported "personal conclusions based on anecdotal evidence." Ante, at 14. But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. See 48 F. 3d, at 1518, n. 8. It was certainly within the District Court's discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.
The criticism that the affidavits were based on "anecdotal evidence" is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor's personal observations or on an attorney's practice in two sets of courts, state and federal, can "ten[d] to show the existence" of a selective prosecution. Ante, at 12.
Even if respondents failed to carry their burden of showing that there were individuals who were not black but who could have been prosecuted in federal court for the same offenses, it does not follow that the District Court abused its discretion in ordering discovery. There can be no doubt that such individuals exist, and indeed the Government has never denied the same. In those circumstances, I fail to see why the District Court was unable to take judicial notice of this obvious fact and demand information from the Government's files to support or refute respondents' evidence. The presumption that some whites are prosecuted in state court is not "contradicted" by the statistics the majority cites, which show only that high percentages of blacks are convicted of certain federal crimes, while high percentages of whites are convicted of other federal crimes. See ante, at 13. Those figures are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes. But, as discussed above, in the case of crack far greater numbers of whites are believed guilty of using the substance. The District Court, therefore, was entitled to find the evidence before her significant and to require some explanation from the Government. 9
In sum, I agree with the Sentencing Commission that "[w]hile the exercise of discretion by prosecutors and investigators has an impact on sentences in almost all cases to some extent, because of the 100-to-1 quantity ratio and federal mandatory minimum penalties, discretionary decisions in cocaine cases often have dramatic effects." Special Report 138. 10 The severity of the penalty heightens both the danger of arbitrary enforcement and the need for careful scrutiny of any colorable claim of discriminatory enforcement. Cf. McCleskey v. Kemp, 481 U. S. 279, 366 (1987) (Stevens, J., dissenting). In this case, the evidence was sufficiently disturbing to persuade the District Judge to order discovery that might help explain the conspicuous racial pattern of cases before her Court. I cannot accept the majority's conclusion that the District Judge either exceeded her power or abused her discretion when she did so. I therefore respectfully dissent.
* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
1 Other defendants had introduced this study in support of similar discovery motions in at least two other Central District cocaine prosecutions. App. 83. Both motions were denied. One District Judge explained from the bench that the 23-person sample before him was "statistically insignificant," and that the evidence did not indicate "whether there is a bias in the distribution of crime that says black people use crack cocaine, hispanic people use powdered cocaine, caucasian people use whatever it is they use." Id., at 119, 120.
2 We have never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race. Here, "it was the government itself that suggested dismissal of the indictments to the district court so that an appeal might lie." 48 F. 3d 1508, 1510 (CA9 1995).
3 We reserve the question whether a defendant must satisfy the similarly situated requirement in a case "involving direct admissions by [prosecutors] of discriminatory purpose." Brief for United States 15.
4 100 Stat. 3207, 21 U. S. C. Section(s) 841 et seq.
5 Compare 21 U. S. C. Section(s) 841(b)(1)(A)(iii) with Section(s) 841(b)(1)(A)(ii). Similarly, a mandatory 5-year sentence is prescribed for distribution of 500 grams of cocaine or 5 grams of crack. Compare Section(s) 841(b)(1)(B)(ii) with Section(s) 841(b)(1)(B)(iii). Simple possession of 5 grams of crack also produces a mandatory 5-year sentence. The maximum sentence for possession of any quantity of other drugs is one year. Section(s) 844(a).
With one prior felony drug offense, the sentence for distribution of 50 grams of crack is a mandatory 20 years to life. Section(s) 841(b)(1)(A). With two prior felony drug offenses, the sentence is a mandatory life term without parole. Ibid.
6 See United States Sentencing Commission, Guidelines Manual
7 Under the guidelines, penalties increase at a slower rate than drug quantities. For example, 5 grams of heroin result in a base offense level of 14 (15-21 months) while 10 grams of heroin (double the amount) result in an offense level of 16 (21-27 months). USSG translate into sentences that are 100 times as long.
8 Hampton was charged with conspiracy to distribute, four counts of crack distribution, and the use or carrying of a firearm in relation to a drug crime. According to an information filed by the Government, Hampton had three prior convictions for felony drug offenses. See Information Establishing Prior Felony Narcotics Convictions (June 24, 1992). Therefore, he potentially faces a mandatory life sentence on the drug charges alone.
Under California law at the time of the offenses, possession for sale of cocaine base involving 50 grams carried a penalty of imprisonment for either three, four, or five years. Cal. Health & Safety Code Ann. Section(s) 11351.5 (West 1988). If the defendant had no prior convictions, he could be granted probation. Section(s) 11370. For each prior felony drug conviction, the defendant received an additional 3-year sentence. Section(s) 11370.2. Thus, with three priors and the possibility of worktime reductions, see Cal. Penal Code Ann. Section(s) 2933 (West Supp. 1996), Hampton could have served as little as six years under California law. Since the time of the offenses, California has raised several of these penalties, but the new punishments could not be applied to respondents.
9 Also telling was the Government's response to respondents' evidentiary showing. It submitted a list of more than 3,500 defendants who had been charged with federal narcotics violations over the previous 3 years. It also offered the names of 11 nonblack defendants whom it had prosecuted for crack offenses. All 11, however, were members of other racial or ethnic minorities. See 48 F. 3d, at 1511. The District Court was authorized to draw adverse inferences from the Government's inability to produce a single example of a white defendant, especially when the very purpose of its exercise was to allay the Court's concerns about the evidence of racially selective prosecutions. As another court has said: "Statistics are not, of course, the whole answer, but nothing is as emphatic as zero . . . ." United States v. Hinds County School Bd., 417 F. 2d 852, 858 (CA5 1969) (per curiam).
10 For this and other reasons, the Sentencing Commission in its Special Report to Congress "strongly recommend[ed] against a 100-to-1 quantity ratio." Special Report 198. The Commission shortly thereafter, by a 4-to-3 vote, amended the guidelines so as to equalize the treatment of crack and other forms of cocaine, and proposed modification of the statutory mandatory minimum penalties for crack offenses. See Statement of Commission Majority in Support of Recommended Changes in Cocaine and Federal Sentencing Policy (May 1, 1995). In October 1995, Congress overrode the Sentencing Commission's guideline amendments. See Pub. L. 104-38, 109 Stat. 334. Nevertheless, Congress at the same time directed the Commission to submit recommendations regarding changes to the statutory and guideline penalties for cocaine distribution, including specifically "revision of the drug quantity ratio of crack cocaine to powder cocaine." Section(s) 2(a). /BODY
7.2.8.9.2.3 Brady v. United States 7.2.8.9.2.3 Brady v. United States
v.
UNITED STATES.
Page 743
Peter J. Adang, Albuquerque, N.M., for petitioner.
Joseph J. Connolly, Washington, D.C., for respondent.
Mr. Justice WHITE delivered the opinion of the Court.
In 1959, petitioner was charged with kidnaping in violation of 18 U.S.C. § 1201(a).1 Since the indictment charged that the victim of the kidnaping was not liberated unharmed, petitioner faced a maximum penalty of death if the verdict of the jury should so recommend. Petitioner, represented by competent counsel throughout, first elected to plead not guilty. Apparently because the trial judge was unwilling to try the case without a jury, petitioner made no serious attempt to reduce the possibility of a death penalty by waiving a jury trial. Upon learning that his codefendant, who had confessed to the authorities, would plead guilty and be available to testify against him, petitioner changed his plea to guilty. His plea was accepted after the trial judge twice questioned him as to the voluntariness of his plea.2
Page 744
Petitioner was sentenced to 50 years' imprisonment, later reduced to 30.
In 1967, petitioner sought relief under 28 U.S.C. § 2255, claiming that his plea of guilty was not voluntarily given because § 1201(a) operated to coerce his plea, because his counsel exerted impermissible pressure upon him, and because his plea was induced by representations with respect to reduction of sentence and clemency. It was also alleged that the trial judge had not fully complied with Rule 11 of the Federal Rules of Criminal Procedure.3
Page 745
After a hearing, the District Court for the District of New Mexico denied relief. According to the District Court's findings, petitioner's counsel did not put impermissible pressure on petitioner to plead guilty and no representations were made with respect to a reduced sentence or clemency. The court held that § 1201(a) was constitutional and found that petitioner decided to plead guilty when he learned that his codefendant was going to plead guilty: petitioner pleaded guilty 'by reason of other matters and not by reason of the statute' or because of any acts of the trial judge. The court concluded that 'the plea was voluntarily and knowingly made.'
The Court of Appeals for the Tenth Circuit affirmed, determining that the District Court's findings were supported by substantial evidence and specifically approving the finding that petitioner's plea of guilty was voluntary. 404 F.2d 601 (1968). We granted certiorari, 395 U.S. 976, 89 S.Ct. 2146, 23 L.Ed.2d 764 (1969), to consider the claim that the Court of Appeals was in error in not reaching a contrary result on the authority of this Court's decision in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). We affirm.
In United States v. Jackson, supra, the defendants were indicted under § 1201(a). The District Court dismissed the § 1201(a) count of the indictment, holding
Page 746
the statute unconstitutional because it permitted imposition of the death sentence only upon a jury's recommendation and thereby made the risk of death the price of a jury trial. This Court held the statute valid, except for the death penalty provision; with respect to the latter, the Court agreed with the trial court 'that the death penalty provision * * * imposes an impermissible burden upon the exercise of a constitutional right * * *.' 390 U.S., at 572, 88 S.Ct., at 1211. The problem was to determine 'whether the Constitution permits the establishment of such a death penalty, applicable only to those defendants who assert the right to contest their guilt before a jury.' 390 U.S., at 581, 88 S.Ct., at 1216. The inevitable effect of the provision was said to be to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Because the legitimate goal of limiting the death penalty to cases in which a jury recommends it could be achieved without penalizing those defendants who plead not guilty and elect a jury trial, the death penalty provision 'needlessly penalize(d) the assertion of a constitutional right,' 390 U.S., at 583, 88 S.Ct., at 1217, and was therefore unconstitutional.
Since the 'inevitable effect' of the death penalty provision of § 1201(a) was said by the Court to be the needless encouragement of pleas of guilty and waivers of jury trial, Brady contends that Jackson requires the invalidation of every plea of guilty entered under that section, at least when the fear of death is shown to have been a factor in the plea. Petitioner, however, has read far too much into the Jackson opinion.
The Court made it clear in Jackson that it was not holding § 1201(a) inherently coercive of guilty pleas: 'the fact that the Federal Kidnaping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that
Page 747
every defendant who enters a guilty plea to a charge under the Act does so involuntarily.' 390 U.S., at 583, 88 S.Ct., at 1217. Cited in support of this statement, 390 U.S., at 583 n. 25, 88 S.Ct., at 1217, was Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967), where a plea of guilty (non vult) under a similar statute was sustained as voluntary in spite of the fact, as found by the District Court, that the defendant was greatly upset by the possibility of receiving the death penalty.
Moreover, the Court in Jackson rejected a suggestion that the death penalty provision of § 1201(a) be saved by prohibiting in capital kidnaping cases all guilty pleas and jury waivers, 'however clear (the defendants') guilt and however strong their desire to acknowledge it in order to spare themselves and their families the spectacle and expense of protracted courtroom proceedings.' '(T)hat jury waivers and guilty pleas may occasionally be rejected' was no ground for automatically rejecting all guilty pleas under the statute, for such a rule 'would rob the criminal process of much of its flexibility.' 390 U.S., at 584, 88 S.Ct., at 1218.
Plainly, it seems to us, Jackson ruled neither that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid wheth-involuntary or not. Jackson prohibits the imposition of the death penalty under § 1201(a), but that decision neither fashioned a new standard for judging the validity of guilty pleas nor mandated a new application of the test theretofore fashioned by courts and since reiterated that guilty pleas are valid if both 'voluntary' and 'intelligent.' See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711—1712, 23 L.Ed.2d 274 (1969).4
Page 748
That a guilty plea is a grave and solemn act to be accepted only with care and discernment has long been recognized. Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so—hence the minimum requirement that his plea be the voluntary expression of his own choice.5 But the plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.6 On neither score was Brady's plea of guilty invalid.
Page 749
The trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea.
The voluntariness of Brady's plea can be determined only by considering all of the relevant circumstances surrounding it. Cf. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Leyra v. Denno, 347 U.S. 556, 558, 74 S.Ct. 716, 717, 98 L.Ed. 948 (1954). One of these circumstances was the possibility of a heavier sentence following a guilty verdict after a trial. It may be that Brady, faced with a strong case against him and recognizing that his chances for acquittal were slight, preferred to plead guilty and thus limit the penalty to life imprisonment rather than to elect a jury trial which could result in a death penalty.7 But
Page 750
even if we assume that Brady would not have pleaded guilty except for the death penalty provision of § 1201(a), this assumption merely identifies the penalty provision as a 'but for' cause of his plea. That the statute caused the plea in this sense does not necessarily prove that the plea was coerced and invalid as an involuntary act.
The State to some degree encourages pleas of guilty at every important step in the criminal process. For some people, their breach of a State's law is alone sufficient reason for surrendering themselves and accepting punishment. For others, apprehension and charge, both threatening acts by the Government, jar them into admitting their guilt. In still other cases, the post-indictment accumulation of evidence may convince the defendant and his counsel that a trial is not worth the agony and expense to the defendant and his family. All these pleas of guilty are valid in spite of the State's responsibility for some of the factors motivating the pleas; the pleas are no more improperly compelled than is the decision by a defendant at the close of the State's evidence at trial that he must take the stand or face certain conviction.
Of course, the agents of the State may not produce a plea by actual or threatened physical harm or by mental coercion overbearing the will of the defendant. But nothing of the sort is claimed in this case; nor is there evidence that Brady was so gripped by fear of the death penalty or hope of leniency that he did not or could not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty. Brady's claim is of a different sort: that it violates the Fifth Amendment to influence or encourage a guilty plea by opportunity or promise of leniency and that a guilty plea is coerced and invalid if influenced by the fear of a possibly higher penalty for
Page 751
the crime charged if a conviction is obtained after the State is put to its proof.
Insofar as the voluntariness of his plea is concerned, there is little to differentiate Brady from (1) the defendant, in a jurisdiction where the judge and jury have the same range of sentencing power, who pleads guilty because his lawyer advises him that the judge will very probably be more lenient than the jury; (2) the defendant, in a jurisdiction where the judge alone has sentencing power, who is advised by counsel that the judge is normally more lenient with defendants who plead guilty than with those who go to trial; (3) the defendant who is permitted by prosecutor and judge to plead guilty to a lesser offense included in the offense charged; and (4) the defendant who pleads guilty to certain counts with the understanding that other charges will be dropped. In each of these situations,8 as in Brady's case, the defendant might never plead guilty absent the possibility or certainty that the plea will result in a lesser penalty than the sentence that could be imposed after a trial and a verdict of guilty. We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged.
The issue we deal with is inherent in the criminal law and its administration because guilty pleas are not
Page 752
constitutionally forbidden, because the criminal law characteristically extends to judge or jury a range of choice in setting the sentence in individual cases, and because both the State and the defendant often find it advantageous to preclude the possibility of the maximum penalty authorized by law. For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages—the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant's guilt or in which there is substantial doubt that the State can sustain its burden of proof.9 It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty,10 a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.
Of course, that the prevalence of guilty pleas is explainable does not necessarily validate those pleas or
Page 753
the system which produces them. But we cannot hold that it is unconstitutional for the State to extend a benefit to a defendant who in turn extends a substantial benefit to the State and who demonstrates by his plea that he is ready and willing to admit his crime and to enter the correctional system in a frame of mind that affords hope for success in rehabilitation over a shorter period of time than might otherwise be necessary.
A contrary holding would require the States and Federal Government to forbid guilty pleas altogether, to provide a single invariable penalty for each crime defined by the statutes, or to place the sentencing function in a separate authority having no knowledge of the manner in which the conviction in each case was obtained. In any event, it would be necessary to forbid prosecutors and judges to accept guilty pleas to selected counts, to lesser included offenses, or to reduced charges. The Fifth Amendment does not reach so far.
Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), held that the admissibility of a confession depended upon whether it was compelled within the meaning of the Fifth Amendment. To be admissible, a confession must be "free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." 168 U.S., at 542—543, 18 S.Ct., at 187. More recently, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), carried forward the Bram definition of compulsion in the course of holding applicable to the States the Fifth Amendment privilege against compelled self-incrimination.11
Page 754
Bram is not inconsistent with our holding that Brady's plea was not compelled even though the law promised him a lesser maximum penalty if he did not go to trial. Bram dealt with a confession given by a defendant in custody, alone and unrepresented by counsel. In such circumstances, even a mild promise of leniency was deemed sufficient to bar the confession, not because the promise was an illegal act as such, but because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess. But Bram and its progeny did not hold that the possibly coercive impact of a promise of leniency could not be dissipated by the presence and advice of counsel, any more than Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that the possibly coercive atmosphere of the police station could not be counteracted by the presence of counsel or other safeguards.12
Brady's situation bears no resemblance to Bram's. Brady first pleaded not guilty; prior to changing his plea to guilty he was subjected to no threats or promises in face-to-face encounters with the authorities. He had competent counsel and full opportunity to assess the advantages and disadvantages of a trial as compared with those attending a plea of guilty; there was no hazard of an impulsive and improvident response to a seeming but unreal advantage. His plea of guilty was entered in open court and before a judge obviously sensitive to
Page 755
the requirements of the law with respect to guilty pleas. Brady's plea, unlike Bram's confession, was voluntary.
The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:
"(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).' 242 F.2d at page 115.'13
Under this standard, a plea of guilty is not invalid merely because entered to avoid the possibility of a death penalty.14
Page 756
The record before us also supports the conclusion that Brady's plea was intelligently made. He was advised by competent counsel, he was made aware of the nature of the charge against him, and there was nothing to indicate that he was incompetent or otherwise not in control of his mental faculties; once his confederate had pleaded guilty and became available to testify, he chose to plead guilty, perhaps to ensure that he would face no more than life imprisonment or a term of years. Brady was aware of precisely what he was doing when he admitted that he had kidnaped the victim and had not released her unharmed.
It is true that Brady's counsel advised him that § 1201(a) empowered the jury to impose the death penalty and that nine years later in United States v. Jackson, supra, the Court held that the jury had no such power as long as the judge could impose only a lesser penalty if trial was to the court or there was a plea of guilty. But these facts do not require us to set aside Brady's conviction.
Often the decision to plead guilty is heavily influenced by the defendant's appraisal of the prosecution's case against him and by the apparent likelihood of securing leniency should a guilty plea be offered and accepted. Considerations like these frequently present imponderable questions for which there are no certain answers; judgments may be made that in the light of later events seem improvident, although they were perfectly
Page 757
sensible at the time. The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, cf. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. A plea of guilty triggered by the expectations of a competently counseled defendant that the State will have a strong case against him is not subject to later attack because the defendant's lawyer correctly advised him with respect to the then existing law as to possible penalties but later pronouncements of the courts, as in this case, hold that the maximum penalty for the crime in question was less than was reasonably assumed at the time the plea was entered.
The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea. We find no requirement in the Constitution that a defendant must be permitted to disown his solemn admissions in open court that he committed the act with which he is charged simply because it later develops that the State would have had a weaker case than the defendant had thought or that the maximum penalty then assumed applicable has been held inapplicable in subsequent judicial decisions.
This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are
Page 758
necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves. But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.
Although Brady's plea of guilty may well have been motivated in part by a desire to avoid a possible death penalty, we are convinced that his plea was voluntarily and intelligently made and we have no reason to doubt that his solemn admission of guilt was truthful.
Affirmed.
Mr. Justice BLACK, while adhering to his belief that United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, was wrongly decided, concurs in the judgment and in substantially all of the opinion in this case.
1. 'Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
2. Eight days after petitioner pleaded guilty, he was brought before the court for sentencing. At that time, the court questioned petitioner for a second time about the voluntariness of his plea:
'THE COURT: * * * Having read the presentence report and the statement you made to the probation officer, I want to be certain that you know what you are doing and you did know when you entered a plea of guilty the other day. Do you want to let that plea of guilty stand, or do you want to withdraw it and plead not guilty?
'DEFENDANT BRADY: I want to let that plea stand, sir.
'THE COURT: You understand that in doing that you are admitting and confessing the truth of the charge contained in the indictment and that you enter a plea of guilty voluntarily, without persuasion, coercion of any kind? Is that right?
'DEFENDANT BRADY: Yes, your Honor.
'THE COURT: And you do do that?
'DEFENDANT BRADY: Yes, I do.
'THE COURT: You plead guilty to the charge?
'DEFENDANT BRADY: Yes, I do.' App. 29—30.
3. When petitioner pleaded guilty, Rule 11 read as follows:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.'
Rule 11 was amended in 1966 and now reads as follows:
'A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.'
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), we held that a failure to comply with Rule 11 required that a defendant who had pleaded guilty be allowed to plead anew. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), we held that the McCarthy rule should apply only in cases where the guilty plea was accepted after April 2, 1969, the date of the McCarthy decision.
4. The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. See nn. 5 and 6, infra. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. This Court has not yet passed on the question of the retroactivity of this new requirement.
5. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 104, 62 S.Ct. 964, 965—966, 86 L.Ed. 1302 (1942); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).
6. See Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); Adams v. United States ex rel. McCann, 317 U.S. 269, 275, 63 S.Ct. 236, 240, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930).
Since an intelligent assessment of the relative advantages of pleading guilty is frequently impossible without the assistance of an attorney, this Court has scrutinized with special care pleas of guilty entered by defendants without the assistance of counsel and without a valid waiver of the right to counsel. See Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Von Moltke v. Gillies, 332 U.S. 708 and 727, 68 S.Ct. 316 and 325, 92 L.Ed. 309 (1948) (opinions of Black and Frankfurter, JJ.); Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398 (1945). Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it has been clear that a guilty plea to a felony charge entered without counsel and without a waiver of counsel is invalid. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968).
The importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of our recent decisions in McCarthy v. United States, supra, and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). See nn. 3 and 4, supra.
7. Such a possibility seems to have been rejected by the District Court in the § 2255 proceedings. That court found that 'the plea of guilty was made by the petitioner by reason of other matters and not by reason of the statute * * *.'
8. We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In Brady's case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened Brady with a harsher sentence if convicted after trial in order to induce him to plead guilty.
9. For a more elaborate discussion of the factors that may justify a reduction in penalty upon a plea of guilty, see American Bar Association Project on Standards for Criminal Justice, Pleas of Guilty § 1.8 and commentary, pp. 37—52 (Approved Draft 1968).
10. It has been estimated that about 90%, and perhaps 95%, of all criminal convictions are by pleas of guilty; between 70% and 85% of all felony convictions are estimated to be by guilty plea. D. Newman, Conviction, The Determination of Guilt or Innocence Without Trial 3 and n. 1 (1966).
11. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). See also Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528 (1963); Wilson v. United States, 162 U.S. 613, 622—623, 16 S.Ct. 895, 899—900, 40 L.Ed. 1090 (1896).
12. 'The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege (against compelled self-incrimination). His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.' Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602, 1623 (1966).
13. Shelton v. United States, 246 F.2d 571, 572 n. 2 (C.A.5th Cir. 1957) (en banc), rev'd on confession of error on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958).
14. Our conclusion in this regard seems to coincide with the conclusions of most of the lower federal courts that have considered whether a guilty plea to avoid a possible death penalty is involuntary. See United States ex rel. Brown v. LaVallee, 424 F.2d 457 (C.A.2d Cir. 1970); United States v. Thomas, 415 F.2d 1216 (C.A.9th Cir. 1969); Pindell v. United States, 296 F.Supp. 751 (D.C.Conn.1969); McFarland v. United States, 284 F.Supp. 969 (D.C.Md.1968), aff'd, No. 13,146 (C.A.4th Cir., May 1, 1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1525, 25 L.Ed.2d 811; Laboy v. New Jersey, 266 F.Supp. 581 (D.C.N.J.1967); Gilmore v. California, 364 F.2d 916 (C.A.9th Cir. 1966); Busby v. Holman, 356 F.2d 75 (C.A.5th Cir. 1966); Cooper v. Holman, 356 F.2d 82 (C.A.5th Cir.), cert. denied, 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966); Godlock v. Ross, 259 F.Supp. 659 (D.C.E.D.N.C.1966); United States ex rel. Robinson v. Fay, 348 F.2d 705 (C.A.2d Cir. 1965), cert. denied, 382 U.S. 997, 86 S.Ct. 583, 15 L.Ed.2d 484 (1966); Overman v. United States, 281 F.2d 497 (C.A.6th Cir. 1960), cert. denied, 368 U.S. 993, 82 S.Ct. 612, 7 L.Ed.2d 530 (1962); Martin v. United States, 256 F.2d 345 (C.A.5th Cir.), cert. denied, 358 U.S. 921, 79 S.Ct. 294, 3 L.Ed.2d 240 (1958). But see Shaw v. United States, 299 F.Supp. 824 (D.C.S.D.Ga.1969); Alford v. North Carolina, 405 F.2d 340 (C.A.4th Cir. 1968), prob. juris. noted, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969), restored to calendar for reargument, 397 U.S. 1060, 90 S.Ct. 1494, 25 L.Ed.2d 682.
7.2.8.9.2.4 Bordenkircher v. Hayes 7.2.8.9.2.4 Bordenkircher v. Hayes
v.
Paul Lewis HAYES.
See 435 U.S. 918, 98 S.Ct. 1477.
Syllabus
The Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to have the accused reindicted on more serious charges on which he is plainly subject to prosecution if he does not plead guilty to the offense with which he was originally charged. Pp. 360-365.
(a) "[T]he guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. Pp. 361-362.
(b) Though to punish a person because he has done what the law allows violates due process, see North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 2072, 2082, 23 L.Ed.2d 656, there is no such element of punishment in the "give-and-take" of plea bargaining as long as the accused is free to accept or reject the prosecutor's offer. Pp. 362-364.
(c) This Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty, and in pursuing that course here the prosecutor did not exceed constitutional bounds. Pp. 364-365.
547 F.2d 42, 6 Cir., reversed.
Robert L. Chenoweth, Frankfort, Ky., for petitioner.
J. Vincent Aprile II, Frankfort, Ky., for respondent.
Page 358
Mr. Justice STEWART delivered the opinion of the Court.
The question in this case is whether the Due Process Clause of the Fourteenth Amendment is violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged.
The respondent, Paul Lewis Hayes, was indicted by a Fayette County, Ky., grand jury on a charge of uttering a forged instrument in the amount of $88.30, an offense then punishable by a term of 2 to 10 years in prison. Ky.Rev.Stat. § 434.130 (1973) (repealed 1975). After arraignment, Hayes, his retained counsel, and the Commonwealth's Attorney met in the presence of the Clerk of the Court to discuss a possible plea agreement. During these conferences the prosecutor offered to recommend a sentence of five years in prison if Hayes would plead guilty to the indictment. He also said that if Hayes did not plead guilty and "save[d] the court the inconvenience and necessity of a trial," he would return to the grand jury to seek an indictment under the Kentucky Habitual Criminal Act,1 then Ky.Rev.Stat. § 431.190 (1973) (repealed 1975), which would subject Hayes to a mandatory sentence of
Page 359
life imprisonment by reason of his two prior felony convictions.2 Hayes chose not to plead guilty, and the prosecutor did obtain an indictment charging him under the Habitual Criminal Act. It is not disputed that the recidivist charge was fully justified by the evidence, that the pros cutor was in possession of this evidence at the time of the original indictment, and that Hayes' refusal to plead guilty to the original charge was what led to his indictment under the habitual criminal statute.
A jury found Hayes guilty on the principal charge of uttering a forged instrument and, in a separate proceeding, further found that he had twice before been convicted of felonies. As required by the habitual offender statute, he was sentenced to a life term in the penitentiary. The Kentucky Court of Appeals rejected Hayes' constitutional objections to the enhanced sentence, holding in an unpublished opinion that imprisonment for life with the possibility of parole was constitutionally permissible in light of the previous felonies of which Hayes had been convicted,3 and that the prosecutor's decision to indict him as a habitual offender was a legitimate use of available leverage in the plea-bargaining process.
Page 360
On Hayes' petition for a federal writ of habeas corpus, the United States District Court for the Eastern District of Kentucky agreed that there had been no constitutional violation in the sentence or the indictment procedure, and denied the writ.4 The Court of Appeals for the Sixth Circuit reversed the District Court's judgment. Hayes v. Cowan, 547 F.2d 42. While recognizing "that plea bargaining now plays an important role in our criminal justice system," id., at 43, the appellate court thought that the prosecutor's conduct during the bargaining negotiations had violated the principles of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628, which "protect[ed] defendants from the vindictive exercise of a prosecutor's discretion." 547 F.2d, at 44. Accordingly, the court ordered that Hayes be discharged "except for his confinement under a lawful sentence imposed solely for the crime of uttering a forged instrument." Id., at 45. We granted certiorari to consider a constitutional question of importance in the administration of criminal justice. 431 U.S. 953, 97 S.Ct. 2672, 53 L.Ed.2d 269.
It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do o was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with the defendant's insistence on pleading not guilty.5 As a practical matter, in short, this
Page 361
case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.
The Court of Appeals nonetheless drew a distinction between "concessions relating to prosecution under an existing indictment," and threats to bring more severe charges not contained in the original indictment—a line it thought necessary in order to establish a prophylactic rule to guard against the evil of prosecutorial vindictiveness.6 Quite apart from this chronological distinction, however, the Court of Appeals found that the prosecutor had acted vindictively in the present case since he had conceded that the indictment was influenced by his desire to induce a guilty plea.7 The ultimate conclusion of the Court of Appeals thus seems to have been that a prosecutor acts vindictively and in violation of due process of law whenever his charging decision is influenced by what he hopes to gain in the course of plea bargaining negotiations.
We have recently had occasion to observe: "[W]hatever might be the situation in an ideal world, the fact is that the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice sys-
Page 362
tem. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136. The open acknowledgment of this previously clandestine practice has led this Court to recognize the importance of counsel during plea negotiations, Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747, the need for a public record indicating that a plea was knowingly and voluntarily made, Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, and the requirement that a prosecutor's plea-bargaining promise must be kept, Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427. The decision of the Court of Appeals in the present case, however, did not deal with considerations such as these, but held that the substance of the plea offer itself violated the limitations imposed by the Due Process Clause of the Fourteenth Amendment. Cf. Brady v. United States, supra, 397 U.S., at 751 n. 8, 90 S.Ct., at 1470. For the reasons that follow, we have concluded that the Court of Appeals was mistaken in so ruling.
This Court held in North Carolina v. Pearce, 395 U.S. 711, 725, 89 S.Ct. 2072, 2080, 23 L.Ed.2d 656, that the Due Process Clause of the Fourteenth Amendment "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." The same principle was later applied to prohibit a prosecutor from reindicting a convicted misdemeanant on a felony charge after the defendant had invoked an appellate remedy, since in this situation there was also a "realistic likelihood of 'vindictiveness.' " Blackledge v. Perry, 417 U.S., at 27, 94 S.Ct., at 2102.
In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction—a situation "very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power." Parker v. North Carolina, 397 U.S. 790,
Page 363
809, 90 S.Ct. 1458, 1474, 1479, 25 L.Ed.2d 785 (opinion of Brennan, J.). The Court has emphasized that the due process violation in cases such as Pearce and Perry lay not in the possibility that a defendant might be deterred from the exercise of a legal right, see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584; Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, but rather in the danger that the State might be retaliating against the accused for lawfully attacking his conviction. See Blackledge v. Perry, supra, 417 U.S., at 26-28, 94 S.Ct., at 2101-02.
To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, 395 U.S., at 738, 89 S.Ct., at 2082 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is "patently unconstitutional." Chaffin v. Stynchcombe, supra, 412 U.S., at 32-33, n. 20, 93 S.Ct., at 1986. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138. But in the "give-and-take" of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.
Plea bargaining flows from "the mutuality of advantage" to defendants and prosecutors, each with his own reasons for wanting to avoid trial. Brady v. United States, supra, 397 U.S., at 752, 90 S.Ct., at 1471. Defendants advised by competent counsel and protected by other procedural safeguards are presumptively capable of intelligent choice in response to prosecutorial persuasion, and unlikely to be driven to false self-condemnation. 397 U.S., at 758, 90 S.Ct., at 1474. Indeed, acceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. See ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.1 (App. Draft 1968);
Page 364
Note, Plea Bargaining and the Transformation of the Criminal Process, 90 Harv.L.Rev. 564 (1977). Cf. Brady v. United States, supra, at 751, 90 S.Ct., at 1470; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.
While confronting a defendant with the risk of more severe punishment clearly may have a "discouraging effect on the defendant's assertion of his trial rights, the imposition of these difficult choices [is] an inevitable"—and permissible—"attribute of any legitimate system which tolerates and encourages the negotiation of pleas." Chaffin v. Stynchcombe, supra, 412 U.S., at 31, 93 S.Ct., at 1985. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.
It is not disputed here that Hayes was properly chargeable under the recidivist statute, since he had in fact been convicted of two previous felonies. In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.8 Within the limits set by the legislature's constitutionally valid definition of chargeable offenses, "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" so long as "the selection was [not] deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446. To hold that the prosecutor's desire to induce a guilty plea is an "unjustifiable standard," which, like race or religion,
Page 365
may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. Moreover, a rigid constitutional rule that would prohibit a prosecutor from acting forthrightly in his dealings with the defense could only invite unhealthy subterfuge that would drive the practice of plea bargaining back into the shadows from which it has so recently emerged. See Blackledge v. Allison, 431 U.S., at 76, 97 S.Ct., at 1630.
There is no doubt that the breadth of discretion that our country's legal system vests in prosecuting attorneys carries with it the potential for both individual and institutional abuse.9 And broad though that discretion may be, there are undoubtedly constitutional limits upon its exercise. We hold only that the course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment.
Accordingly, the judgment of the Court of Appeals is
Reversed.
Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL join, dissenting.
I feel that the Court, although purporting to rule narrowly (that is, on "the course of conduct engaged in by the prosecutor in this case," ante, this page), is departing from, or at least restricting, the principles established in North Carolina v.
Page 366
Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). If those decisions are sound and if those principles are salutary, as I must assume they are, they require, in my view, an affirmance, not a reversal, of the judgment of the Court of Appeals in the present case.
In Pearce, as indeed the Court notes, ante, at 362, it was held that "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." 395 U.S., at 725, 89 S.Ct., at 2080. Accordingly, if on the new trial, the sentence the defendant receives from the court is greater than that imposed after the first trial, it must be explained by reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding," other than his having pursued the appeal or collateral remedy. Id., at 726, 89 S.Ct., at 2081. On the other hand, if the sentence is imposed by the jury and not by the court, if the jury is not aware of the original sentence, and if the second sentence is not otherwise shown to be a product of vindictiveness, Pearce has no application. Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973).
Then later, in Perry, the Court applied the same principle to prosecutorial conduct where there was a "realistic likelihood of 'vindictiveness.' " 417 U.S., at 27, 94 S.Ct., at 2102. It held that the requirement of Fourteenth Amendment due process prevented a prosecutor's reindictment of a convicted misdemeanant on a felony charge after the defendant had exercised his right to appeal the misdemeanor conviction and thus to obtain a trial de novo. It noted the prosecution's "considerable stake" in discouraging the appeal. Ibid.
The Court now says, however, that this concern with vindictiveness is of no import in the present case, despite the difference between five years in prison and a life sentence, because we are here concerned with plea bargaining where there is give-and-take negotiation, and where, it is said, ante,
Page 367
at 363, "there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Yet in this case vindictiveness is present to the same extent as it was thought to be in Pearce and in Perry ; the prosecutor here admitted, see ante, at 358 n. 1, that the sole reason for the new indictment was to discourage the respondent from exercising his right to a trial.1 Even had such an admission not been made, when plea negotiations, conducted in the face of the less serious charge under the first indictment, fail, charging by a second indictment a more serious crime for the same conduct creates "a strong inference" of vindictiveness. As then Judge McCree aptly observed, in writing for a unanimous panel of the Sixth Circuit, the prosecutor initially "makes a discretionary determination that the interests of the state are served by not seeking more serious charges." Hayes v. Cowan, 547 F.2d 42, 44 (1976). I therefore do not understand why, as in Pearce, due process does not require that the prosecution justify its action on some basis other than discouraging respondent from the exercise of his right to a trial.
Prosecutorial vindictiveness, it seems to me, in the present narrow context, is the fact against which the Due Process Clause ought to protect. I perceive little difference between vindictiveness after what the Court describes, ante, at 362, as the exercise of a "legal right to attack his original conviction,"
Page 368
and vindictiveness in the " 'give-and-take negotiation common in plea bargaining.' " Prosecutorial vindictiveness in any context is still prosecutorial vindictiveness. The Due Process Clause should protect an accused against it, however it asserts itself. The Court of Appeals rightly so held, and I would affirm the judgment.
It might be argued that it really makes little difference how this case, now that it is here, is decided. The Court's holding gives plea bargaining full sway despite vindictiveness. A contrary result, however, merely would prompt the aggressive prosecutor to bring the greater charge initially in every case, and only thereafter to bargain. The consequences to the accused would still be adverse, for then he would bargain against a greater charge, face the likelihood of increased bail, and run the risk that the court would be less inclined to accept a bargained plea. Nonetheless, it is far preferable to hold the prosecution to the charge it was originally content to bring and to justify in the eyes of its public.2
Mr. Justice POWELL, dissenting.
Although I agree with much of the Court's opinion, I am not satisfied that the result in this case is just or that the
Page 369
conduct of the plea bargaining met the requirements of due process.
Respondent was charged with the uttering of a single forged check in the amount of $88.30. Under Kentucky law, this offense was punishable by a prison term of from 2 to 10 years, apparently without regard to the amount of the forgery. During the course of plea bargaining, the prosecutor offered respondent a sentence of five years in consideration of a guilty plea. I observe, at this point, that five years in prison for the offense charged hardly could be characterized as a generous offer. Apparently respondent viewed the offer in this light and declined to accept it; he protested that he was innocent and insisted on going to trial. Respondent adhered to this position even when the prosecutor advised that he would seek
Page 370
a new indictment under the State's Habitual Criminal Act which would subject respondent, if convicted, to a mandatory life sentence because of two prior felony convictions.
The prosecutor's initial assessment of respondent's case led him to forgo an indictment under the habitual criminal statute. The circumstances of respondent's prior convictions are relevant to this assessment and to my view of the case. Respondent was 17 years old when he committed his first offense. He was charged with rape but pleaded guilty to the lesser included offense of "detaining a female." One of the other participants in the incident was sentenced to life imprisonment. Respondent was sent not to prison but to a reformatory where he served five years. Respondent's second offense was robbery. This time he was found guilty by a jury and was sentenced to five years in prison, but he was placed on probation and served no time. Although respondent's prior convictions brought him within the terms of the Habitual Criminal Act, the offenses themselves did not result in imprisonment; yet the addition of a conviction on a charge involving $88.30 subjected respondent to a mandatory sentence of imprisonment for life.1 Persons convicted of rape and murder often are not punished so severely.
No explanation appears in the record for the prosecutor's decision to escalate the charge against respondent other than respondent's refusal to plead guilty. The prosecutor has conceded that his purpose was to discourage respondent's assertion of constitutional rights, and the majority accepts this characterization of events. See ante, at 358 n. 1, 364.
It seems to me that the question to be asked under the circumstances is whether the prosecutor reasonably might have charged respondent under the Habitual Criminal Act in the first place. The deference that courts properly accord the
Page 371
exercise of a prosecutor's discretion perhaps would foreclose judicial criticism if the prosecutor originally had sought an indictment under that Act, as unreasonable as it would have seemed.2 But here the prosecutor evidently made a reasonable, responsible judgment not to subject an individual to a mandatory life sentence when his only new offense had societal implications as limited as those accompanying the uttering of a single $88 forged check and when the circumstances of his prior convictions confirmed the inappropriateness of applying the habitual criminal statute.3 I think it may be inferred that the prosecutor himself deemed it unreasonable and not in the public interest to put this defendant in jeopardy of a sentence of life imprisonment.
There may be situations in which a prosecutor would be fully justified in seeking a fresh indictment for a more serious offense. The most plausible justification might be that it would have been reasonable and in the public interest initially
Page 372
to have charged the defendant with the greater offense. In most cases a court could not know why the harsher indictment was sought, and an inquiry into the prosecutor's motive would neither be indicated nor likely to be fruitful. In those cases, I would agree with the majority that the situation would not differ materially from one in which the higher charge was brought at the outset. See ante, at 360-361.
But this is not such a case. Here, any inquiry into the prosecutor's purpose is made unnecessary by his candid acknowledgment that he threatened to procure and in fact procured the habitual criminal indictment because of respondent's insistence on exercising his constitutional rights. We have stated in unequivocal terms, in discussing United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), that "Jackson and Pearce are clear and subsequent cases have not dulled their force: if the only objective of a state practice is to discourage the assertion of constitutional rights it is 'patently unconstitutional.' " Chaffin v. Stynchcombe, 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 1986, 36 L.Ed.2d 714 (1973). And in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), we drew a distinction between the situation there approved and the "situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470.
The plea-bargaining process, as recognized by this Court, is essential to the functioning of the criminal-justice system. It normally affords genuine benefits to defendants as well as to society. And if the system is to work effectively, prosecutors must be accorded the widest discretion, within constitutional limits, in conducting bargaining. Cf. n. 2, supra. This is especially true when a defendant is represented by counsel and presumably is fully advised of his rights. Only in the most exceptional case should a court conclude that the scales of the bargaining are so unevenly balanced as to arouse suspicion. In this case, the prosecutor's actions denied respondent due
Page 373
process because their admitted purpose was to discourage and then to penalize with unique severity his exercise of constitutional rights. Implementation of a strategy calculated solely to deter the exercise of constitutional rights is not a constitutionally permissible exercise of discretion. I would affirm the opinion of the Court of Appeals on the facts of this case.
1. While cross-examining Hayes during the subsequent trial proceedings the prosecutor described the plea offer in the following language:
"Isn't it a fact that I told you at that time [the initial bargaining session] if you did not intend to plead guilty to five years for this charge and . . . save the court the inconvenience and necessity of a trial and taking up this time that I intended to return to the grand jury and ask them to indict you based upon these prior felony convictions?" Tr. 194.
2. At the time of Hayes' trial the statute provided that "[a]ny person convicted a . . . third time of felony . . . shall be confined in the penitentiary during his life." Ky.Rev.Stat. § 431.190 (1973) (repealed 1975). That statute has been replaced by Ky.Rev.Stat. § 532.080 (Supp. 1977) under which Hayes would have been sentenced to, at most, an indeterminate term of 10 to 20 years. § 532.080(6)(b). In addition, under the new statute a previous conviction is a basis for enhanced sentencing only if a prison term of one year or more was imposed, the sentence or probation was completed within five years of the present offense, and the offender was over the age of 18 when the offense was committed. At least one of Hayes' prior convictions did not meet these conditions. See n. 3, infra.
3. According to his own testimony, Hayes had pleaded guilty in 1961, when he was 17 years old, to a charge of detaining a female, a lesser included offense of rape, and as a result had served five years in the state reformatory. In 1970 he had been convicted of robbery and sentenced to five years' imprisonment, but had been released on probation immediately.
4. The opinion of the District Court is unreported.
5. Compare United States ex rel. Williams v. McMann, 436 F.2d 103 (CA2), with United States v. Ruesga-Martinez, 534 F.2d 1367, 1370 (CA9). In citing these decisions we do not necessarily endorse them.
6. "Although a prosecutor may in the course of plea negotiations offer a defendant concessions relating to prosecution under an existing indictment . . . he may not threaten a defendant with the consequence that more severe charges may be brought if he insists on going to trial. When a prosecutor obtains an indictment less severe than the facts known to him at the time might permit, he makes a discretionary determination that the interests of the state are served by not seeking more serious charges. . . . Accordingly, if after plea negotiations fail, he then procures an indictment charging a more serious crime, a strong inference is created that the only reason for the more serious charges is vindictiveness. Under these circumstances, the prosecutor should be required to justify his action." 547 F.2d, at 44-45.
7. "In this case, a vindictive motive need not be inferred. The prosecutor has admitted it." Id., at 45.
8. This case does not involve the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused, see ALI Model Code of Pre-Arraignment Procedure, Commentary to § 350.3, pp. 614-615 (1975), which might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider. Cf. Brady v. United States, 397 U.S. 742, 758, 90 S.Ct. 1463, 1474, 25 L.Ed.2d 747.
9. This potential has led to many recommendations that the prosecutor's discretion should be controlled by means of either internal or external guidelines. See ALI Model Code of Pre-Arraignment Procedure for Criminal Justice §§ 350.3(2)-(3) (1975); ABA Project on Standards for Criminal Justice, The Prosecution Function §§ 2.5, 3.9 (App. Draft 1971); Abrahms, Internal Policy: Guiding the Exercise of Prosecutorial Discretion, 19 UCLA L.Rev. 1 (1971).
1. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), where the Court as a premise accepted plea bargaining as a legitimate practice, it nevertheless observed:
"We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty." Id., at 751 n. 8, 90 S.Ct., at 1470. See also Colon v. Hendry, 408 F.2d 864 (CA5 1969); United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974); United States v. DeMarco, 401 F.Supp. 505 (C.D.Cal.1975), aff'd, 550 F.2d 1224 (CA9 1977), cert. denied, 434 U.S. 827, 98 S.Ct. 105, 34 L.Ed.2d 85 (1977); United States v. Ruesga Martinez, 534 F.2d 1367, 1369 (CA9 1976).
2. That prosecutors, without saying so, may sometimes bring charges more serious than they think appropriate for the ultimate disposition of a case, in order to gain bargaining leverage with a defendant, does not add support to today's decision, for this Court, in its approval of the advantages to be gained from plea negotiations, has never openly sanctioned such deliberate overcharging or taken such a cynical view of the bargaining process. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Normally, of course, it is impossible to show that this is what the prosecutor is doing, and the courts necessarily have deferred to the prosecutor's exercise of discretion in initial charging decisions.
Even if overcharging is to be sanctioned, there are strong reasons of fairness why the charges should be presented at the beginning of the bargaining process, rather than as a filliped threat at the end. First, it means that a prosecutor is required to reach a charging decision without
any knowledge of the particular defendant's willingness to plead guilty; hence the defendant who truly believes himself to be innocent, and wishes for that reason to go to trial, is not likely to be subject to quite such a devastating gamble since the prosecutor has fixed the incentives for the average case.
Second, it is healthful to keep charging practices visible to the general public, so that political bodies can judge whether the policy being followed is a fair one. Visibility is enhanced if the prosecutor is required to lay his cards on the table with an indictment of public record at the beginning of the bargaining process, rather than making use of unrecorded verbal warnings of more serious indictments yet to come.
Finally, I would question whether it is fair to pressure defendants to plead guilty by threat of reindictment on an enhanced charge for the same conduct when the defendant has no way of knowing whether the prosecutor would indeed be entitled to bring him to trial on the enhanced charge. Here, though there is no dispute that respondent met the then-current definition of a habitual offender under Kentucky law, it is conceivable that a properly instructed Kentucky grand jury, in response to the same considerations that ultimately moved the Kentucky Legislature to amend the habitual offender statute, would have refused to subject respondent to such an onerous penalty for his forgery charge. There is no indication in the record that, once the new indictment was obtained, respondent was gi en another chance to plead guilty to the forged check charge in exchange for a five-year sentence.
1. It is suggested that respondent will be eligible for parole consideration after serving 15 years.
2. The majority suggests, ante, at 360-361, that this case cannot be distinguished from the case where the prosecutor initially obtains an indictment under an enhancement statute and later agrees to drop the enhancement charge in exchange for a guilty plea. I would agree that these two situations would be alike only if it were assumed that the hypothetical prosecutor's decision to charge under the enhancement statute was occasioned not by consideration of the public interest but by a strategy to discourage the defendant from exercising his constitutional rights. In theory, I would condemn both practices. In practice, the hypothetical situation is largely unreviewable. The majority's view confuses the propriety of a particular exercise of prosecutorial discretion with its unreviewability. In the instant case, however, we have no problem of proof.
3. Indeed, the Kentucky Legislature subsequently determined that the habitual criminal statute under which respondent was convicted swept too broadly and did not identify adequately the kind of prior convictions that should trigger its application. At least one of respondent's two prior convictions would not satisfy the criteria of the revised statute; and the impact of the statute, when applied, has been reduced significantly in situations, like this one, where the third offense is relatively minor. See ante, at 359 n. 2.
7.2.8.9.2.5 People v. Adams 7.2.8.9.2.5 People v. Adams
836 P.2d 1045 (1991)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Steven Patrick ADAMS, Defendant-Appellant.
No. 90CA1290.
Colorado Court of Appeals, Div. V.
December 19, 1991.
Rehearing Denied February 20, 1992.
Certiorari Denied August 10, 1992.
[1046] Gale Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Linda M. Davison and Katherine Clark, Asst. Attys. Gen., Denver, for plaintiff-appellee.
Charles R. Greenacre, Montrose, for defendant-appellant.
Opinion by Judge RULAND.
Defendant, Steven Patrick Adams, appeals from the trial court's order denying his motion to withdraw his guilty plea. We affirm.
Defendant, two other men, and a woman were in defendant's mobile home when one of the men was shot and killed with a pistol owned by defendant.
Defendant and the woman left and drove approximately 15 miles before telephoning the state patrol to report the shooting. In a taped conversation with the state patrol, defendant stated that he shot the victim while the victim was attempting a burglary. The woman, however, later advised officers that defendant shot the victim because of jealousy.
Defendant later gave two other versions of the shooting, one in which he claimed to have shot the victim in self-defense and one in which the woman allegedly shot the victim. Defendant's explanation for his first two statements was that he wanted to protect the woman. At some point, the woman was granted immunity by a prosecutor.
Defendant was charged with first degree murder, attempted first degree murder, assault in the second degree, and complicity as an accessory after the fact.
Even though defendant's monthly income exceeded the guidelines for appointment of free legal counsel, he completed an application and obtained letters from three private attorneys to prove that he could not pay for their services. Consequently, the county court appointed a private attorney to represent defendant.
Defendant was not satisfied with the services of private counsel. The court then appointed an attorney from the public defender's office who specializes in and has extensive experience in defending serious felony charges. A thorough investigation was conducted by an investigator for the public defender's office, and the case was set for a preliminary hearing.
Prior to the preliminary hearing, a written plea bargain was offered by the prosecution and ultimately accepted by defendant. As pertinent here, defendant agreed to plead guilty to the accessory charge in exchange for dismissal of the other charges and a sentence not to exceed four years. The sentence was to be served either in a community corrections facility or on probation.
The court approved the plea agreement. A providency hearing was conducted and, based upon the written plea agreement and defendant's responses to the court's inquiry, the court determined that the plea was voluntary. The court then scheduled a sentencing hearing.
During the course of the sentencing hearing, however, defendant determined that the court intended to sentence him to community corrections. Consequently, he protested and asked to withdraw his guilty plea. The court advised defendant to file a [1047] formal motion and informed him that his request would be then considered.
The court imposed a four-year sentence to a community corrections facility. Defendant later filed a formal motion to withdraw his plea and represented himself at the hearing on the motion. Defendant did not testify. Following presentation of other evidence and argument, the court entered a written order denying the motion.
I
Defendant contends that the trial court erred in failing to appoint an attorney to represent him at the hearing on his motion to vacate his plea. We disagree.
The initial burden to establish indigency is upon the defendant, and this burden requires defendant to establish the lack of funds, on a practical basis, to retain counsel. Nikander v. District Court, 711 P.2d 1260 (Colo.1986). In order to implement resolution of issues pertaining to appointment of counsel, the Chief Justice of the Colorado Supreme Court issued Directive 89-3 on October 19, 1989, establishing indigency guidelines.
As pertinent to this case, paragraph II A of the Directive provides:
1) All persons claiming to be indigent and asking for court appointed counsel must complete an application Form JDF208, signed under oath, which shall be reviewed by the court.
3) When the income of the person exceeds the eligibility guidelines, the court may, after conducting a hearing concerning the persons financial situation, find the person indigent ... Such finding shall not be made unless it is established that at least two attorneys will not provide legal services because the person is unable to pay their fee. (emphasis supplied)
Here, by letter, defendant initially requested appointment of counsel, specifying that he would not accept either the private attorney originally appointed to defend him or any attorneys in the public defender's office. The court promptly responded by letter advising defendant that it could not make an appointment based upon the letter alone. Enclosed with the letter, was an application form, and the court advised defendant that the application must be completed and returned.
However, the application form was not completed or returned. Instead, a few days later defendant contacted the court by telephone to discuss appointment of counsel. Defendant did not indicate his exact income in that conversation, but he confirmed that his income was over the guidelines. Nevertheless, he stated that he could not afford an attorney. The court encouraged defendant, at least, to discuss the case with an attorney to establish the cost for representation and then to seek qualification for partial indigency. Defendant failed to pursue this course of action as well.
On the date of the hearing, and prior to presentation of evidence, the court noted the correspondence and the contents of the telephone conversation. The court noted that defendant was present without counsel, and that defendant could proceed as he deemed appropriate. The court reminded defendant that the risk of proceeding without counsel was discussed in their telephone conversation, and defendant made no comment.
Under these circumstances, we are unable to conclude that defendant met his initial burden of establishing that, on a practical basis, he could not afford counsel. See Nikander v. District Court, supra.
Contrary to defendant's contention, and in light of the requirements contained in Directive 89-3, the court properly declined to rely upon defendant's unverified statements, made in his application for probation, as representing an accurate financial disclosure. Conversely, the fact that three attorneys declined to defend the homicide charges, on the basis of defendant's financial status approximately five months earlier, was not determinative of whether counsel could be obtained by defendant for purposes only of the hearing on his motion.
In addition, the record confirms that defendant was cognizant of and elected not [1048] to pursue the procedure for establishing a current need for free legal services. Finally, defendant does not controvert the court's statement on the record that he was advised of the risks of proceeding without counsel.
Under these circumstances, we find no error in the court's determination that defendant waived his right to counsel. See King v. People, 728 P.2d 1264 (Colo.1986).
II
Defendant next contends that the trial court erred in declining to set aside his plea. He reasons that he was coerced by defense counsel into accepting the plea disposition offered by the prosecution. We conclude that the trial court did not commit reversible error in denying defendant's motion.
Defendant carried the burden of establishing a "fair and just reason" for withdrawing his plea prior to imposition of sentence. People v. Gutierrez, 622 P.2d 547 (Colo.1981). And, to warrant the exercise of discretion favorable to a defendant concerning a change of plea, it must be shown that a defendant may have been influenced to enter a guilty plea when having a defense, or that defendant's plea was entered through fear, fraud, or official misrepresentation, or that the plea was made involuntarily for some reason. People v. Chavez, 730 P.2d 321 (Colo.1986). Finally, resolution of this issue is addressed to the sound discretion of the trial court, and we may not overturn its decision absent an abuse of that discretion. People v. Chippewa, 751 P.2d 607 (Colo.1988).
Here, defendant relies principally upon two tape recorded conversations he had with different attorneys from the public defender's office. One of the conversations was taped both by defendant and counsel. The conversation was the result of complaints made by defendant's parents to the public defender's office regarding defendant's legal representation. The second conversation was taped only by defendant, without disclosing to counsel that the conversation was being recorded. Apparently, because of a mechanical defect, only part of the conversation was recorded.
The transcripts reflect that counsel used strong and profane language in discussing defendant's failure to abide by counsel's admonition not to discuss the case with a critical witness (who recorded her conversation with defendant) and with law enforcement personnel. Similar language was used in discussing the prosecution's proffered plea bargain, the possibility that he would be convicted of first degree murder, the probability that defendant would receive a prison sentence for conviction of any of the charges if he did not accept the plea bargain, and the treatment defendant would receive in prison.
While the type of language used strikes us as inappropriate, the testimony of both attorneys stands unrebutted that this type of language was used by defendant. Moreover, it is uncontradicted that use of this language was necessary to assure that defendant understood their concerns about his view that he would be acquitted of all charges at trial.
Competent advice of counsel, albeit stated in strong language, does not constitute coercion standing alone. See Lunz v. Henderson, 533 F.2d 1322, (2d Cir.1976); Williams v. Chrans, 742 F.Supp. 472 (N.D.Ill.1990). And, the duty of defense counsel, after conducting a thorough investigation, is to discuss the case with complete candor and to offer the best estimate possible as to the outcome. See People v. Riley, 187 Colo. 262, 529 P.2d 1312 (1975).
A more difficult issue is posed by counsel's oft repeated predictions that defendant might be killed in prison, that he might "wish he were dead" after spending some time there, and that he would be sexually assaulted there. Defendant contends that these comments constitute a form of coercion which warrant setting aside the plea. We conclude to the contrary.
In addressing this contention, we first note that defendant, at one point, acknowledged in the recorded conversation that he [1049] did not doubt counsel's assessment that he was not "tough enough" for prison. We also note that counsel's testimony at the motion hearing was uncontroverted. He explained, in effect, that most suspects charged with first degree murder are held in some form of awe and are feared by other inmates. However, defendant had unspecified problems shortly after being taken into custody which were of great concern to counsel.
Finally, we note that defense counsel is not restricted to discussing the probable outcome of a case in discussing the propriety of a plea bargain. See 3 ABA, Standards for Criminal Justice, Standard 14-3.2 (2d ed. 1986).
Furthermore, even if we were to hold that these comments exceed the parameter of counsel's proper role of persuasion, we would, nevertheless, conclude that the trial court did not err in denying defendant's motion.
It is uncontroverted that defendant was represented by experienced and competent counsel. In the initial recorded conversation, counsel advised defendant that any decision to accept a plea bargain was solely his decision. Also, there is overwhelming record support for the proposition that acceptance of the plea bargain was in defendant's best interest, that his claimed defense to the accessory charge was specious, and that the probability of his receiving a prison sentence was very great if the bargain were rejected. Indeed, at the hearing on his motion, defendant, in effect, conceded that he was an accessory.
Still more persuasive to us is the record of the providency hearing itself. Before the hearing, and after discussing the proposed written plea with counsel, defendant signed a "petition to plead guilty" which explained, among other things, the effect of a guilty plea to the accessory charge, the plea bargain, and the rights being waived. The petition also confirmed that defendant was satisfied with his legal representation and that "no one has used any undue influence, threats or promises of leniency, favors or special consideration to get me to plead guilty against my will."
During the hearing, the court again explained the information set forth in the petition, and defendant confirmed, in his responses to questions from the court, that he understood the plea bargain, that he was satisfied with the services of counsel, and that he was not coerced to enter his plea. Conversely, there is ample record support for the court's finding that defendant was not promised probation. However, as noted, defendant did not request that his plea be changed until comments by the court, at the conclusion of the sentencing hearing, confirmed that the sentence would be to a community corrections facility.
Under these circumstances, we are unable to conclude that the trial court erred in denying defendant's motion.
The order is affirmed.
REED, J., concurs.
DUBOFSKY, J., dissents.
Judge DUBOFSKY dissenting.
I respectfully dissent.
In my view, the guilty plea was rendered involuntary by the repeated warnings of defendant's counsel that, if defendant was convicted after a trial and sentenced to the penitentiary, he would be repeatedly sodomized and then murdered.
A guilty plea must be entered voluntarily and with proper understanding. People v. Wells, 734 P.2d 655 (Colo.App.1986). A guilty plea is involuntary if it is induced by threats. People v. McClellan, 183 Colo. 176, 515 P.2d 1127 (1973). Also, a plea may be rendered involuntary by mental as well as physical coercion. See Pickens v. United States, 427 F.2d 349 (5th Cir.1970).
A guilty plea is void if shown to be actuated by misleading statements of counsel. Heideman v. United States, 281 F.2d 805 (8th Cir.1960). Further, a guilty plea resulting from false advice from counsel as to the sentence that would be imposed may be set aside as having been unlawfully coerced. United States v. Simpson, 436 F.2d 162 (D.C.Cir.1970).
[1050] Absent explicit instructions from his client to the contrary, defense counsel should normally pursue the alternatives to a trial that exist within a case, i.e., dismissal, plea bargain. Furthermore, if counsel receives a plea offer from the district attorney, he is obligated to inform his client both of the offer and his opinion of it. In some cases, defense counsel may refrain from making a recommendation as to whether defendant should accept the plea bargain. In other situations, defense counsel may conclude that the defendant should accept the district attorney's plea offer.
Here, counsel concluded that the only viable choice for defendant was to accept the plea offer to accessory after the fact of murder. From this record, it appears there were compelling reasons for defense counsel to reach this conclusion and make the recommendation that he did.
Nevertheless, the decision to accept a plea offer belongs solely to the defendant. While counsel may make his position known to defendant in forceful, clear, and certain terms, he cannot cross the line and coerce a defendant into accepting a guilty plea. Cf. People v. Gies, 738 P.2d 398 (Colo.App.1987).
Here, counsel repeatedly told defendant that if he went to trial he would be convicted and sentenced to prison and that once in prison, he would be repeatedly sodomized and then murdered. Because I believe that these repeated "threats" about what defendant would face in prison rendered defendant's plea involuntary, I conclude that the trial court erred in not setting aside the plea.
I recognize that accurately informing the defendant of the potential hazards of incarceration is a legitimate and responsible act of counsel in advising his client about the implications of a plea or trial. But, here, defense counsel went far beyond merely informing defendant of the hazards of incarceration; he repeatedly and definitively predicted that defendant would be sexually assaulted and killed. These warnings went far beyond a legitimate informational advisement and recommendation and constituted threats and coercion.
Among counsel's remarks that were beyond the scope of appropriate advice are the following.
So you're not tough enough for prison. You're just not tough enough for prison. That's all there is to it. So that any prison sentence is most probably for you a death sentence or very close. Because things would happen to you in prison that would cause you to wish you were dead or want to kill yourself. So, that's why, you know, you have to understand the risks.
....
It is my opinion that in the two years or four years or whatever it is, awaiting for the appellate court to decide [your case] that you'll be dead. You won't make it through prison. Ok.
....
And it won't do you any good because you'll be dead or your [anus] will be the size of a dinner plate ... a jury can say `you know, I'm not convinced anyone of them is telling the truth, but I believe beyond a reasonable doubt that Steven Adams committed second degree murder.' Ok. Then you go to prison and you're dead.
....
The judge says you're going to prison and away you go. And you're dead. Because you're not tough enough or you're going to wish you were dead.
....
If we won appeal, you wouldn't be worth a s..t if you came out of it alive. Ok?
....
I will feel bad if you get convicted of accessory after the fact of manslaughter and go to prison and die, I will be able to say I told you so. Right?
Furthermore, there was another earlier conversation with another public defender in which similar representations concerning defendant's death were made.
[1051] Here, defendant was a young man, age 26, who had never been in the penitentiary and was dependent on the representations of his counsel to assess what prison would be like. In such circumstances, the "browbeating" indulged in by counsel went far beyond just advising defendant of the dangers within the institution and, indeed, in my view became coercive.
The majority appears to give great weight to the fact that at the time of his plea, defendant acknowledged the elements of the offense and stated his plea was voluntary. However, by pleading to the elements of the offense and indicating that he has not been coerced, defendant may have been merely providing the "right" answers to the trial court to effectuate the coerced plea. Certainly, this does not mean defendant has not been coerced. See People v. Cole, 39 Colo.App. 323, 570 P.2d 8 (1977), aff'd in part, rev'd in part, 195 Colo. 483, 584 P.2d 71 (1978). See also United States v. Cowin, 565 F.2d 548 (8th Cir.1977) and United States v. Tateo, 214 F.Supp. 560 (S.D.N.Y.1963).
If, as suggested by the majority, counsel's predictions of defendant's life in prison are not coercive because, inter alia, defense counsel accurately described defendant's future plight in the penitentiary, then a far graver problem is presented. If young men who have not been previously incarcerated face repeated sexual assaults and murder as part of their sentence to the penitentiary and, in an effort to avoid these assaults, enter guilty pleas to crimes they did not commit, then the constitutionality of the criminal justice system and the penal system are in doubt. Not only does the threat of criminal violence impermissibly coerce defendant in violation of his constitutional rights, but the operation of a penal system where such violence is rampant is also unconstitutional. See Ramos v. Lamm, 485 F.Supp. 122 (D.Colo.1979); McCray v. Sullivan, 509 F.2d 1332 (5th Cir.1975) (the Eighth Amendment may require a classification system which separates inmates according to offense and physically aggressive tendencies).
Finally, I believe it is of great significance that defendant moved to withdraw his guilty plea prior to being sentenced.
In my opinion, absent a showing of detrimental reliance by the district attorney in response to defendant's guilty plea, i.e., loss of witnesses or evidence, a defendant should be freely and liberally permitted to withdraw a guilty plea prior to sentencing. See United States v. King, 618 F.2d 550 (9th Cir.1980); United States v. Hamm, 659 F.2d 624 (5th Cir.1981).
A defendant has a constitutional right to have the prosecution prove each element of the offense beyond a reasonable doubt against him. See In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). And, an accused's exercise of that right by insisting upon a trial should be freely permitted, both for the benefit of the individual and for the viability of the criminal justice system itself.
Accordingly, I would reverse the judgment and remand for trial on all charges.
7.2.8.9.2.6 US v. Deegan 7.2.8.9.2.6 US v. Deegan
605 F.3d 625 (2010)
UNITED STATES of America, Appellee,
v.
Dana DEEGAN, Appellant.
No. 08-2299.
United States Court of Appeals, Eighth Circuit.
Submitted: December 9, 2008.
Filed: May 25, 2010.
[627] William D. Schmidt, AFPD, argued, Bismarck, ND, Jeffrey L. Viken, Federal Public Defender, on the brief, for appellant.
David D. Hagler, AUSA, argued, Clare R. Hochhalter, AUSA, on the brief, Bismarck, ND, for appellee.
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
Dana Deegan pled guilty pursuant to a plea agreement to second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. The district court[1] sentenced Deegan to 121 months' imprisonment, which was the bottom of the advisory guideline range. Deegan appeals the sentence, and we affirm.
I.
Deegan is a member of the Three Affiliated Tribes. On October 20, 1998, Deegan secretly gave birth to a baby boy in the bathroom of her home on the Fort Berthold Indian Reservation. The baby was alive and breathing when he was delivered. Deegan had kept her pregnancy hidden, and no other adult was present at the time of the delivery. Deegan's three other minor children were in the home, but they were unaware of the birth.
Approximately two hours after delivering her son, Deegan fed, cleaned, and dressed him, and then placed him in a basket. She then left the house with her three other children, intentionally leaving the baby alone without food, water, or a caregiver. Deegan did not return to her home for approximately two weeks. When she returned, she found the baby dead in the basket where she had left him. She put his remains in a suitcase, and deposited the suitcase in a rural ditch area near her residence.
On November 4, 1999, a man working on a fence line found the suitcase containing the baby's remains. He reported the discovery to law enforcement, and the Federal Bureau of Investigation ("FBI") commenced an investigation. In March 2004, Deegan voluntarily submitted a DNA sample to the FBI. Nearly three years later, in February 2007, the FBI completed mitochondrial DNA analysis on the Deegan sample and confirmed that Deegan was the mother of the deceased baby. When Deegan was interviewed by the FBI in late February 2007, she falsely claimed that the baby was stillborn. Interviewed a second time in May 2007, Deegan repeated the false story and provided a written statement to that effect.
Later during the May 2007 interview, however, Deegan admitted that her earlier statements were false and acknowledged that the baby had been born alive. She stated that she intentionally left him alone in her home, knowing that he would die. When asked why she did so, Deegan responded [628] that she was unable to care for a fourth child, neither she nor her common-law husband were employed, and her husband spent what little money they did have to purchase drugs.
On June 6, 2007, a grand jury returned a two-count indictment charging Deegan with first-degree murder and making false statements to the FBI. Deegan pled not guilty to both charges. On November 11, 2007, Deegan entered into a written plea agreement with the government, in which she agreed to plead guilty to one count of second-degree murder. In the factual portion of the agreement, Deegan acknowledged that the baby was born alive and breathing when she delivered him, and that she unlawfully and with malice aforethought caused his death by leaving him alone in the house for approximately two weeks. On November 30, 2007, the government filed an information charging Deegan with second-degree murder.
On December 10, 2007, Deegan pled guilty to second-degree murder. At the plea hearing, the district court noted that the sentencing guidelines in effect at the time of Deegan's offense provided for an advisory sentence of eight to ten years' imprisonment for second-degree murder. The court advised Deegan that based on "what little information" it had about the offense at the plea hearing, the court was "not comfortable" with a range of eight to ten years, because the terms of imprisonment for other defendants convicted of second-degree murder "were not even close to that range." The court remarked that there were a number of provisions in the advisory guidelines "that would justify an upward departure."
In an order filed on January 22, 2008, the court formally notified the parties that it was "contemplating an upward departure from the applicable Sentencing Guideline range," based on USSG § 5K2.8, which provides for an increased sentence where "the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim." The court expressed its view that Deegan's conduct "was unusually heinous, cruel, and brutal," but stated that it would await review of the presentence investigation report ("PSR"), psychological evaluations, and a review of relevant case law before making a final decision on sentencing.
Applying the 1997 sentencing guidelines in effect at the time of the offense, the PSR recommended an advisory sentencing range of 121 to 151 months' imprisonment, which corresponded to a total offense level of 32 and a criminal history category of I. The total offense level represented a base offense level of 33, USSG § 2A1.2 (1997), a two-level upward adjustment for knowledge of a vulnerable victim, id. § 3A1.1(b), and a three-level decrease for acceptance of responsibility, id. § 3E1.1(a), (b). Deegan objected to the two-level vulnerable-victim adjustment, arguing that there had been no factual finding that the infant was vulnerable, and that she had not admitted as much in the plea agreement.
Following preparation of the PSR, both parties submitted sentencing memoranda to the court. Deegan again objected to the two-level vulnerable-victim adjustment. She also urged the court to vary from the advisory guidelines and sentence her to probation or to a very short period of incarceration. She based her argument for leniency on what she described as her "psychological and emotional condition" at the time of the offense, her history as a victim of abuse, and the fact that she acted impulsively, among other reasons.
As support, she submitted a report prepared by Dr. Phillip Resnick, an expert in "neonaticide." "Neonaticide" is a term coined by Resnick to describe the killing of [629] an infant within the first twenty-four hours following birth. See Susan Hatters Friedman et al., Child Murder by Mothers: A Critical Analysis of the Current State of Knowledge and a Research Agenda, 162 Am. J. Psychiatry 1578, 1578 (2005). The report addressed what Resnick viewed as an "extraordinary number of mitigating circumstances," and expressed the opinion that a prison sentence was not necessary to deter other women from committing neonaticide. The report concluded that Deegan suffered from an extensive history of abuse throughout her childhood and as an adult, suffered from major depression and dissociation at the time of the homicide, acted impulsively in leaving her baby alone, presented a very low risk of reoffending, and did not merit a lengthy prison sentence, especially because other women convicted in state court of committing similar offenses were usually sentenced to no more than three years in prison.
At the sentencing hearing on May 18, 2008, the district court adopted the sentencing guideline calculation in the PSR. The court agreed with the probation office that the vulnerable-victim enhancement was warranted, and that Deegan's advisory range was 121 to 151 months' imprisonment. Finally, after calling Dr. Resnick to testify about his report and hearing arguments from counsel and testimony from Deegan herself, the court sentenced Deegan to 121 months' imprisonment.
On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard, United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008), which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). No objection was required to preserve Deegan's substantive claim that the sentence imposed is unreasonably long with regard to § 3553(a), United States v. Wiley, 509 F.3d 474, 476-77 (8th Cir.2007), but we review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
II.
A.
Deegan appears to raise four alleged procedural errors at sentencing. One is that the district court "failed on the record to engage in any meaningful discussion whatsoever of the § 3553(a) factors." The Supreme Court in Gall explained that a sentencing court "must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing." 552 U.S. at 50, 128 S.Ct. 586. Deegan did not object to the adequacy of the district court's explanation or request any elaboration. On plain error review, we conclude that the explanation is not obviously inadequate.
As the Supreme Court has explained, "[t]he appropriateness of brevity or length, conciseness or detail, when to [630] write, what to say, depends upon circumstances." Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). "The law leaves much, in this respect, to the judge's own professional judgment." Id. "[A] district court is not required to provide a `full opinion in every case,' but must `set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.'" United States v. Robinson, 516 F.3d 716, 718 (8th Cir.2008) (quoting Rita, 551 U.S. at 356, 127 S.Ct. 2456). Sentencing courts need not "categorically rehearse the § 3553(a) factors on the record, as long as it is clear that the court considered those factors." United States v. Hernandez, 518 F.3d 613, 616 (8th Cir.2008). Nor have we required district courts to make specific findings on the record about each § 3553(a) factor. Perkins, 526 F.3d at 1110. "[A]ll that is generally required to satisfy the appellate court is evidence that the district court was aware of the relevant factors." Id.
The district court in this case said plenty to avoid an obvious shortcoming under a plain error standard of review. The court twice stated that it had "carefully considered" the § 3553(a) factors, even remarking that it had "spent many, many days and nights thinking about this case." The court listed nearly all of the § 3553(a) factors on the record. Dr. Resnick, the expert who reported on Deegan's psychological condition, structured his testimony at the sentencing hearing around many of the § 3553(a) factors, and cross-examination highlighted other statutory factors. The court heard all of this testimony and took it into account. The court read Resnick's written report, which was explicit in its reference to the § 3553(a) factors, "at least three times." The court twice stated that it had carefully reviewed the PSR, the parties' sentencing memoranda, the psychological evaluation of Deegan by another doctor, the many letters of support filed on her behalf, and the DVD presentation by her family. See United States v. Henson, 550 F.3d 739, 743 (8th Cir.2008) (observing that the presentence report contains extensive information regarding the factors under § 3553(a)).
In explaining why it chose a sentence of 121 months' imprisonment rather than a greater punishment, the court acknowledged that Deegan's life had not been "easy," and that it had been plagued with physical abuse and sexual abuse. Referring back to its statement at the plea hearing that it was likely to impose a sentence above the advisory range of eight to ten years, the court observed that Resnick's report and testimony were "helpful and insightful," and that the court had gained "far better insight" into the case after reviewing the report. The court told Deegan that it had "real compassion for [her] and [her] family and what [she had] gone through," including the fact that she had three children and that her brother had been murdered. The court said that it "underst[ood] why [Deegan] took the steps that she did in 1998," and that "under the circumstances," a sentence under the 2007 guidelines in effect at the time of sentencing, i.e., 19.5 to 24.5 years' imprisonment, would not have been fair.
But the court also thought a lesser sentence would not be sufficient, explaining that it must "ensure that justice is done," and that it could not "ignore the fact that there was an innocent life that was lost." The court remarked that justice in this case probably "lies between the extremes of public opinion," and that the advisory range of 121 to 151 months' imprisonment was reasonable for "a case of this nature."
This discussion is sufficient to permit meaningful appellate review and to ensure [631] the public that Deegan's case was given fair consideration. In the face of this record, which shows a district judge deliberating at length over a difficult case, and even changing his tentative conclusion between the plea hearing and the sentencing hearing, we cannot agree with our dissenting colleague that the district court "exercised no discretion." Post, at 659-60. Deegan has not established plain error that would require a remand for a more elaborate statement of reasons.
B.
Deegan also argues that the court procedurally erred by treating the advisory guidelines as mandatory. Gall, 552 U.S. at 51, 128 S.Ct. 586. This contention is based on an isolated statement by the district court at the sentencing hearing, to which Deegan lodged no objection:
In this case, the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998. If the guidelines that were in effect today were imposed, your sentence would be in the range of 19-and-a-half to 24-and-a-half years.
(S. Tr. at 60) (emphasis added).
The court evidently misspoke when it used the word "impose" (rather than "consider"), because the record as a whole makes clear that the court understood its discretion to sentence outside the advisory guideline range. There is no reason to believe that the district court applied the guidelines as mandatory, and if Deegan had objected at sentencing to the word "impose," we are confident that the court would have corrected itself. Elsewhere, the court clearly explained that it was aware of its discretion to vary from the advisory guideline range:
I'm also familiar with the recent decisions from the United States Supreme Court in the cases of Gall and Kimbrough which have established that district court judges around the country in the federal system have discretion to impose nonguideline sentences or variances from the sentencing guidelines. And I'm equally aware of my authority and my discretion to impose a nonguideline sentence.
. . . .
. . . I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentencing range that's been provided for in the sentencing guidelines in this particular case is reasonable.
(S. Tr. 56, 58-59) (emphases added). On Deegan's contention that the district court treated the guidelines as mandatory, there is no plain error warranting relief.[2]
C.
Deegan also contends that the district court committed procedural error by considering the advisory guideline range [632] that applied to Deegan's offense under the 2007 sentencing guidelines. Deegan committed the offense in 1998, and the court calculated her advisory range according to the 1997 guidelines, which were in effect at the time of the offense. The court apparently followed the rule that application of the guidelines in effect at the time of sentencing would violate the Ex Post Facto Clause, see United States v. Bell, 991 F.2d 1445 (8th Cir.1993); USSG § 1B1.11(b), although the endurance of that rule is an open question in this circuit after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), now that the guidelines are merely a starting point that a court must consult and take into account. See United States v. Anderson, 570 F.3d 1025, 1033 n. 7 (8th Cir.2009) (assuming, without deciding, that the Ex Post Facto Clause applies to a district court's application of the sentencing guidelines after Booker); compare, e.g., United States v. Demaree, 459 F.3d 791, 795 (7th Cir.2006) (holding that use of the guidelines in effect at time of sentencing does not violate Ex Post Facto Clause after Booker), with United States v. Turner, 548 F.3d 1094, 1098-1101 (D.C.Cir.2008) (disagreeing with Demaree).
Although the court used the 1997 guidelines as the initial starting point, it also discussed the advisory range that would apply under the 2007 guidelines. The court observed that if Deegan had been sentenced under the 2007 guidelines, her advisory sentence would have been almost twice as long as the sentencing range under the 1997 guidelines. The court also noted that if Deegan had been convicted of voluntary manslaughter rather than second-degree murder, then her advisory range under the 2007 guidelines would be roughly the same range as the advisory range for second-degree murder under the 1997 guidelines. With this background, the court concluded:
I guess what I'm trying to say is that if we used guidelines today, the sentence would be double what you're currently looking at, and I don't think that's fair under the circumstances. But when I reflect upon what a voluntary manslaughter charge carries under the current guidelines and what second degree murder carries under the guidelines that existed in 1998, I believe that those are reasonable guidelines for a case of this nature.
Deegan did not object to the district court's reference to the 2007 guidelines, and we see no obvious error in the court's consideration of that information. Now that the guidelines are merely advisory, district courts are free to vary from the advisory range "based solely on policy considerations," Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal quotation omitted), or to sentence within the advisory range based on policy considerations. The 2007 guidelines simply represent another policy view — different from the view embodied in the 1997 guidelines — of the appropriate sentence under § 3553(a) for second-degree murder or voluntary manslaughter in a run-of-the-mine case. The court was free to consider that view as part of its analysis of the appropriate sentence for Deegan under § 3553(a). There was no plain procedural error.
D.
Deegan's remaining procedural argument is that the district court erred by assuming that the advisory guideline for second-degree murder was the product of empirical data and national experience. She points to this excerpt from the district court's comments at sentencing:
We have sentencing guidelines in the federal system that are designed to ensure [633] that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that — in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.
Deegan did not object to these comments at sentencing, and we see no obvious error that warrants relief.
Insofar as Deegan argues that the court procedurally erred by "selecting a sentence based on clearly erroneous facts," see Gall, 552 U.S. at 51, 128 S.Ct. 586, we disagree. The court's discussion of the guidelines was an accurate statement about the general purpose and methodology behind the sentencing guidelines. See generally USSG Ch. 1, Pt. A, intro. comment. The court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of "neonaticide" cases, or that Deegan's offense was a typical fact pattern for second-degree murder.
The district court may have believed that the second-degree murder guideline considered in Deegan's case was based on empirical data and national experience, but Deegan has not shown that this premise would have been incorrect. Citing United States v. Grant, No. 07-242, 2008 WL 2485610, at *4-5 (D.Neb. June 16, 2008), Deegan argues that amendments to the murder guidelines promulgated in 2002, 2004, 2006, and 2007 were not based on empirical data and national experience. But whatever the merits of that position, these amendments say nothing about how the Sentencing Commission established the 1997 guideline for second-degree murder, on which Deegan's advisory range was based.[3]
Even with respect to the 1997 guideline, moreover, the district court simply treated the advisory guideline range as an initial starting point, while determining the final sentence after consideration of all of the § 3553(a) factors taken as a whole. There is no showing that an erroneous assumption about the underlying basis for the second-degree murder guideline drove the determination of Deegan's sentence.
In sum, Deegan has not identified an obvious procedural error at sentencing. The district court correctly calculated the advisory guideline range, allowed the parties [634] to present evidence and argument regarding the sentence to be imposed, recognized its discretion to impose a sentence outside the advisory range, considered all of the § 3553(a) factors, determined the final sentence based on those factors, and adequately explained its rationale.
III.
A.
We also conclude that Deegan's sentence at the bottom of the advisory guideline range is substantively reasonable. We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard, see Gall, 552 U.S. at 41, 128 S.Ct. 586, cognizant that "it will be the unusual case when we reverse a district court sentence — whether within, above, or below the applicable Guidelines range — as substantively unreasonable." United States v. Feemster, 572 F.3d 455, 464 (8th Cir.2009) (en banc) (internal quotation omitted). While many critics of the mandatory federal sentencing system believed that the guidelines resulted in excessive terms of imprisonment, the post-Booker system is not a one-way ratchet in favor of leniency. A district judge who favors a tough sentence is entitled to the same degree of deference as a district judge who opts for a lesser punishment.
Where, as here, a sentence imposed is within the advisory guideline range, we typically accord it a presumption of reasonableness. See United States v. Harris, 493 F.3d 928, 932 (8th Cir.2007). The presumption "simply recognizes the real-world circumstance that when the judge's discretionary decision accords with the Commission's view of the appropriate application of § 3553(a) in the mine run of cases, it is probable that the sentence is reasonable." Rita, 551 U.S. at 350, 127 S.Ct. 2456. But even if we do not apply such a presumption here, on the view that Deegan's offense is not a "mine run" second-degree murder, the district court did not abuse its considerable discretion by selecting a sentence of 121 months' imprisonment.
The record in this case includes evidence in aggravation and mitigation. As the district court observed in its presentencing order, a court reasonably could view Deegan's offense as "unusually heinous, cruel, and brutal," and deserving of harsh punishment. She left a newborn baby alone in a basket in an empty house without food and water for two weeks until the child died. Deegan countered with testimony from an expert who believes, among other things, that women who commit "neonaticide" are unlikely to reoffend, and that harsh punishment of such an offender is unlikely to deter others from committing the same offense. Deegan also presented evidence of her troubled personal history and family circumstances, and of course we share our dissenting colleague's condemnation of violence against American Indian women.
Deegan's mitigating evidence convinced the district court that a sentence of more than ten years, which the court had contemplated at the time of the guilty plea, was greater than necessary to satisfy the statutory purposes of sentencing. But we are firm in our view that the district court did not abuse its discretion by refusing to impose a more lenient sentence. Whatever the deterrent effect of this sentence, general or specific, and whatever Deegan's personal history, the court was entitled to consider the need for the sentence imposed to "reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(2)(A). The district court was justified in saying that it could not "ignore the fact that there was [635] an innocent life that was lost," and that there was a "need to ensure that justice is done." The court believed that justice in this case "lies between the extremes of public opinion," and that may be so. There likely are those, like Deegan's expert, who believe that a term of imprisonment is unnecessary, and there may be others who feel that no term of imprisonment is too long for one who murders a helpless infant in this manner. We need only determine whether the district court's middle ground is a permissible choice. Applying a deferential abuse-of-discretion standard, we conclude that the sentence of 121 month's imprisonment is reasonable with regard to § 3553(a).
B.
Our dissenting colleague contends that Deegan's sentence is unreasonably long, and that we should direct the district court to impose a shorter term of imprisonment. We believe that such a disposition would be inconsistent with the substantial deference now owed to the judgments of the sentencing courts. Cf. United States v. Burns, 577 F.3d 887, 896 (8th Cir.2009) (en banc) (Bright, J., concurring) (asserting that Gall "puts the discretion at sentencing in the district court, just where it should be, with due regard for the guidelines and the statutes relating to the goals of sentencing. Appellate courts are not sentencing courts."). The guidelines are advisory only, and we "must review all sentences — whether inside, just outside, or significantly outside the Guidelines range — under a deferential abuse-of-discretion standard." Gall, 552 U.S. at 41, 128 S.Ct. 586. The question is not whether the former mandatory guideline system would have called for a downward departure below the mandatory guideline range, cf. post, at 647-48, but whether the district court's sentence of 121 months' imprisonment is reasonable in light of the statutory considerations described in § 3553(a).
To support its conclusion that the district court's chosen sentence was unreasonably harsh, the dissent cites a case involving a student at North Dakota State University ("NDSU") who was prosecuted in North Dakota state court and sentenced to probation. The record of this case includes almost nothing about the NDSU case. Defense counsel stated that his summary, recounted by the dissent, post, at 657, was drawn from a newspaper article. The district court surely did not abuse its discretion by failing to conform Deegan's federal sentence to a North Dakota state court case about which no evidence was presented.
We disagree, moreover, with the dissent's contention that the district court should have considered the "disparity" between Deegan's sentence and the sentence that may have been imposed if Deegan, like the NDSU student, had been prosecuted in state court. Post, at 656-57, 657-58, 660-61. This argument contradicts the well-settled proposition that "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct," 18 U.S.C. § 3553(a)(6), refers only to disparities among federal defendants. It would have been error for the district court to consider potential federal/state sentencing disparities under § 3553(a)(6). United States v. Jeremiah, 446 F.3d 805, 807-08 (8th Cir.2006) ("Unwarranted sentencing disparities among federal defendants remains the only consideration under § 3553(a)(6) — both before and after Booker."); United States v. Deitz, 991 F.2d 443, 447 (8th Cir.1993) ("If, at the time of sentencing, federal courts were to take into consideration a potential state sentence based upon similar state-charged offenses, [636] the Sentencing Commission's goal of imposing uniformity upon federal sentences for similarly situated defendants would be impeded, not furthered.").[4]
* * *
For the foregoing reasons, we conclude that the district court did not commit plain procedural error, and the court's sentence of 121 months' imprisonment is not substantively unreasonable with regard to 18 U.S.C. § 3553(a). The judgment of the district court is affirmed.
BRIGHT, Circuit Judge, dissenting.
I respectfully dissent.
This case concerns the crime of neonaticide, which is the killing of a newborn child on the first day of life. This crime is practically unknown in the federal courts. Neonaticide is a crime relating to family and domestic concerns and, thus, federal courts do not generally deal with these crimes. Indeed, excluding habeas cases, my research has disclosed only one other reported federal case discussing and deciding a neonaticide crime. See United States v. Tom, 494 F.3d 1277 (10th Cir. 2007), rev'd and remanded to 327 Fed. Appx. 93 (10th Cir.2009).
In the view of this judge, the procedure followed and the imposition of a ten-year-plus prison sentence on Ms. Deegan, a young American Indian woman, represents the most clear sentencing error that this dissenting judge has ever seen.[5]
For reversal, the dissent relies on the following Supreme Court cases: Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d [637] 392 (1996), and the holdings in United States v. Alvizo-Trujillo, 521 F.3d 1015 (8th Cir.2008), and United States v. Greene, 513 F.3d 904 (8th Cir.2008). See also Kimbrough v. United States, 552 U.S. 85, 91, 96, 109, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (discussing and commenting on sentencing procedure and stating the greatest respect to variance from guidelines when particular case is outside the "heartland").
I.
SUMMARY OF CONTENTIONS AND STANDARD OF REVIEW
A. Summary of Contentions
Ms. Deegan's crime consisted of a special sort of homicide called "neonaticide," well documented in medical and legal literature, which describes the conduct of a parent, ordinarily the mother, who is often suffering from depression or other mental illness causing the death of an infant child within twenty-four hours of birth.
First, Ms. Deegan's conduct as neonaticide does not now, nor has it ever, come within the "run-of-the-mine" guidelines for second-degree murder, the charge to which Ms. Deegan pleaded guilty. But the district court mistakenly believed that this case fell within the second-degree murder guidelines. Thus, the sentence imposed was procedurally gross error.
Second, the district court presumed that the guidelines were reasonable. This is plain error.
Third, because this case is outside the heartland of second-degree murder cases, the district court's 18 U.S.C. § 3553(a) analysis was flawed at its beginning, and this case required imposition of a sentence completely apart from the guidelines and under § 3553(a). This the district court did not do.
Fourth, analysis of the § 3553(a) factors demonstrates that Ms. Deegan's sentence is substantively unreasonable. The district court's approach to sentencing served to elevate a guidelines sentence above an individualized assessment of the facts and circumstances of this case. Each error compounded the next one and these mistakes require reversal and remand.
Finally, the failure to follow proper sentencing procedures and methodology led to a highly excessive sentence for Ms. Deegan. Her crime requires a different approach than taken by the district court and approved by the majority.
B. Standard of Review
I express my disagreement with the majority's application of plain error in reviewing this sentence. In my view, defense counsel preserved the errors argued on appeal.
The majority asserts:
On appeal, Deegan argues that the sentence of 121 months' imprisonment is unreasonable, because the advisory guideline for second-degree murder is not based on empirical data and national experience, and because the sentence imposed is greater than necessary to comply with the statutory purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). As we understand Deegan's brief on appeal, she argues that the district court committed both procedural and substantive errors when imposing sentence. Deegan raised no procedural objection in the district court, so we consider her claims of procedural error under the plain-error standard. United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008) which requires as conditions for relief that Deegan show an obvious error that affected her substantial rights and seriously affected the fairness, integrity, or reputation of judicial [638] proceedings. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). We review the substantive reasonableness of the sentence under a deferential abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
Maj. op. at 629.
Further, the majority reviews the following under the plain error standard: (a) the district court's failure to meaningfully discuss the § 3553(a) factors, id. at 629-30; (b) treating the advisory guidelines as mandatory, id. at 631; (c) procedural error by applying the 2007 Guidelines to the instant offense, id. at 632; and (d) applying the second-degree murder guidelines to "this type of crime." Id. at 632-33.
Comparing the sentencing transcript with Ms. Deegan's brief establishes that these errors were asserted in the district court and raised on appeal. At sentencing, defense counsel, in responding to the prosecutor's recommendation for a guideline sentence of 121 months, asserted that: (a) the guideline sentence was far greater than necessary (Sent. Tr. 46-47); (b) such a sentence was not warranted under the § 3553(a) factors (Sent. Tr. 46-52); (c) a guideline sentence would result in a sentencing disparity as compared to a neonaticide sentence imposed in a North Dakota state court (Sent. Tr. 50-53); and (d) a variance, a non-guideline sentence, should be imposed after proper consideration of the § 3553(a) factors (Sent. Tr. 55-56, 59). The district court clearly recognized the request of defense counsel when the court said, "The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56 (emphasis added).
The contentions raised on appeal, see Appellant's Brief at 19-24, that the sentence was "unreasonable," "greater than necessary," and that a guideline sentence should not apply to Ms. Deegan, were the same arguments raised before the district court.
Defense counsel should not need to say more to preserve error in a criminal sentence. Ms. Deegan requested a non-guideline sentence and stated reasons in support of that recommendation. When defense counsel asserted that the prosecutor's recommendation called for a sentence that was flawed and excessive, and requested a lesser sentence, the sentencing issue should be considered fully preserved. See Rita, 551 U.S. at 345 (error raised), 351, 127 S.Ct. 2456 (sentencing procedures discussed); but see United States v. Bain, 586 F.3d 634 (8th Cir.2009).
To state that matters raised by Ms. Deegan should be considered as plain error is incorrect. But in any event, the procedural and substantive mistakes here are great and require reversal under any standard of review-plain error or preserved error.[6]
[639] As will be discussed more fully, the prosecutor mistakenly told the sentencing judge:
The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.
Sent. Tr. 43 (emphasis added). The sentencing judge adopted and echoed that principle in imposing a guideline sentence of ten years and one month (121 months) imprisonment, echoing a resounding "yes" to this incorrect advice as the court said the guidelines are for people like you who "commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59. And further adding, "I'm required to impose those guidelines. . . ." Id. Such statements imply more than a presumption that the guidelines apply to Ms. Deegan and constitute plain error. Thus, there exists plain error in sentencing procedure leading to an excessive, improper, and unfair sentence. See Alvizo-Trujillo, 521 F.3d at 1018.
II.
BACKGROUND
To understand the errors in sentencing, this case requires a full accounting of Ms. Deegan's life. All of the facts discussed below were before the district court at the sentencing hearing and were not disputed by the government.[7]
A. Childhood Abuse
Ms. Deegan's life is marked by a history of extensive and cruel abuse. Her alcoholic father beat her on an almost daily basis and dominated every aspect of life in the Deegan family. Ms. Deegan reported having out-of-body experiences during the beatings, as if she was watching herself being assaulted from outside of her body. Some of the beatings were so severe that her father kept her home from school to avoid reports to Child Protective Services. She and her siblings were eventually removed from her parents' house due to the abuse, placed in a variety of foster homes, and periodically returned to her parents' house. While in foster care, Ms. Deegan was separated from her siblings where she experienced physical abuse from some of her foster family members. In conversation with Dr. Resnick, Ms. Deegan said, "I think I will be forgiven [by my maker]. I've lived my hell throughout my childhood." Add. 2, p. 12 (Resnick Report).
Ms. Deegan also suffered extensive and cruel sexual abuse. At five years of age, her father's drinking buddies began sexually abusing her. By age nine, five or six perpetrators had forced her to participate in oral, vaginal, and anal sex. One of the perpetrators held her head under water several times to make her submissive and threatened her so she would not disclose the abuse.[8] At age eleven, the sexual [640] abuse ended when Ms. Deegan finally disclosed the abuse to her mother. Her father responded by beating her for being a "slut and allowing it to happen." Add. 2, p. 5 (Resnick Report).
Ms. Deegan spent much of her childhood caring for and protecting her six younger siblings. Her siblings reported that she frequently suffered physical abuse in their stead. As an adult the abuse continued and Ms. Deegan protected her siblings from her father's alcoholic, depressive, and abusive states. On one occasion, her father attacked her while she was pregnant with her second child. She jumped through a window to escape. Add. 2, p. 7 (Resnick Report).
B. Abuse from Shannon Hale
At age fifteen, Ms. Deegan began a relationship with Shannon Hale, the son of one of her foster parents. Mr. Hale continued the abuse. On one occasion, after Mr. Hale physically assaulted her, Ms. Deegan was admitted to a psychiatric hospital for thirty days to receive assistance for the domestic violence she had endured. She bore four children fathered by Mr. Hale, including the infant victim in this case.
After Ms. Deegan's third child was born, she became depressed. At this time in her life, Mr. Hale was physically abusing her two to three times per week, forcing her to have sexual intercourse with him, and refusing to care for their children.[9] He was not present at any of the births or to take Ms. Deegan home after the deliveries of the children. Mr. Hale continued abusing Ms. Deegan throughout their relationship, including during her pregnancies. Prenatal care records document that two days before she delivered their third child, Mr. Hale choked her and threw her onto gravel, causing injuries that persisted for several months.[10]
Despite the abuse, Ms. Deegan did not leave Mr. Hale permanently because he repeatedly assured her that he would reduce his drinking and stop abusing her. Ms. Deegan reported that she sometimes went to live with her parents when the abuse was most severe, but then her father would physically and verbally abuse her. Ms. Deegan also explained that she did not feel that she could leave Mr. Hale because of her relationship with his mother. Ms. Deegan reported that Mr. Hale's mother "seemed to make things okay," caused her to feel safe, and encouraged her to stay with Mr. Hale for the children's sake. Ms. Deegan feared that if she left Mr. Hale, his mother, a prominent member of the Indian community, would acquire custody [641] of her children.[11]
When Ms. Deegan learned she was pregnant with a fourth child (the child victim), she did not believe she was really pregnant. Ms. Deegan reported she had not developed a plan for coping with the birth of a fourth child because she had put the pregnancy out of her mind. She had previously suffered three miscarriages. She reported feeling so depressed that she could barely take care of herself and her three children.
Ms. Deegan's state of despair and depression was not merely the result of the physical, verbal, and sexual abuse she suffered. Ms. Deegan lived in extreme poverty and isolation. Both Ms. Deegan and Mr. Hale were unemployed. Ms. Deegan sustained herself and her family on food stamps and whatever money she could acquire to provide food for her young children: ages one, two, and five. When Ms. Deegan obtained any money, Mr. Hale took it and bought methamphetamine.
Dr. Resnick explained why Ms. Deegan stayed with Mr. Hale before the homicide of her fourth child:
1) Ms. Deegan was raised in a home in which she saw her father repeatedly beat her mother. This aberrant model of marriage was all she knew.
2) Ms. Deegan feared that if she left Shannon Hale she would lose her relationship with the Hale family.... Irene Hale encouraged her to stay with Shannon so her children would have a father.
3) Ms. Deegan had virtually no financial resources. Shannon Hale used any available money for his alcohol and methamphetamine addiction. Irene Hale at least made sure that Ms. Deegan had groceries so she could feed her daughters and herself.
4) Based on Ms. Deegan's foster care experience, she knew that leaving one family situation sometimes resulted in a worse situation rather than an improvement.
5) As is common in men who batter their wives, Shannon Hale told Ms. Deegan that he would not assault her again and promised to control his drinking and use of illegal drugs.
6) Ms. Deegan did not have a viable alternative to staying with Shannon Hale. If she took her daughters to live in her parental home, she and her daughters would be subjected to physical and emotional abuse by her father. No shelter for battered women was available in her area.
7) Ms. Deegan was fearful that if she left Shannon, Irene Hale, who enjoyed an excellent reputation in the community, would take her daughters away from her.... Caring for her three daughters was the most important thing in her life. She feared that if Shannon Hale attempted to raise her three young daughters, they would not be safe because of his methamphetamine addiction and his demonstrated propensity for physical abuse.
[642] 8) Ms. Deegan feared that if she sought counseling for her marital problems, she might lose her daughters' custody.
9) On the prior occasions when Ms. Deegan sought help from individuals and institutions, they failed to assist or protect her.
Add. 2, p. 20-21 (Resnick Report).
C. The Birth Circumstances
On October 20, 1998, at twenty-five years of age, alone in her mobile home with her three children, Ms. Deegan went into labor with her fourth child. She endured the labor alone, did not tell anyone she was in labor, and delivered the child herself. She reported not feeling anything physically from the labor and that she had assisted the infant to breathe when he was born. Ms. Deegan cleaned, diapered, and fed her child. She then put clothes on him, placed him in a basket, and left him in the home alone. When asked why she left her child in the home alone, she replied:
I couldn't take anymore. I couldn't handle it. I had everything on my shoulders. I couldn't even help myself. I had nobody to help me. I had no job, no nothing. I had all my babies to care for, a welfare mom. I had the feeling of being worthless. What could I do? I was overwhelmed and depressed. I didn't want to live through any of it anymore. I didn't want to be there anymore, as a spouse, as a mother, as a daughter.
Add. 2, p. 11 (Resnick Report).[12] Ms. Deegan returned to her home approximately two weeks later. Ms. Deegan put her son's body in a suitcase and placed the suitcase in a ditch near her home. The body was discovered approximately one year later.
With an understanding of the background of Ms. Deegan and the circumstances surrounding the infant's death, I turn to a discussion of neonaticide.
III.
NEONATICIDE
Forty-three years ago, psychiatrist Dr. Phillip Resnick became interested in the topic of parents causing the death of their children. He has written nearly 100 articles, several on neonaticide and infanticide, and frequently presents and lectures on this subject. Every year he teaches a course on neonaticide for the American Psychiatric Association. He is considered the foremost neonaticide expert in this country.
As defined by Dr. Resnick:
[N]eonaticide is simply the killing of a newborn infant on the first day of life. It's actually a term that I coined in an article I wrote in 1969 where I was distinguishing that type of killing of a baby, which has very different characteristics, from the killing of a baby who is older or a child. And so neonaticide has universally been accepted now as a [643] particular phenomenon when the baby is killed the first day of life.
Sent. Tr. 16.
Dr. Resnick and other scholars explain the circumstances that lead to this tragic crime. Such a mother is often in an overwhelming state of desperation at the time of her infant's birth and lacks adequate resources to mentally handle the situation of delivering a child.[13] She often conceals and denies her pregnancy, lacks insight into the situation, shows poor judgment, is cognitively immature with limited intelligence, and lacks sufficient coping skills.[14] "[The] commonly reported profile [of a homicidal mother] describes a woman usually in her twenties, who grew up or currently lives in poverty, is under-educated, has a history of abuse (both physical and sexual), remains isolated from social supports, has depressive and suicidal tendencies, and is usually experiencing rejection by a male lover at the time of the murders."[15]
"Although the majority of women who commit neonaticide do not have any longterm psychological pathologies, it is likely that often they experience abnormal mental functioning during their pregnancies."[16] "During a homicidal episode, therefore, a mother may view a child as a mere extension of herself rather than as a separate being. A mother's suicidal inclinations may often transform into filial homicide. In other words, killing her children may be much like killing herself."[17]
In preparing to testify, Dr. Resnick conducted a six-hour interview of Ms. Deegan and reviewed the relevant FBI, medical, psychiatric, and school records. He diagnosed Ms. Deegan with suffering or having suffered from the following three psychiatric disorders:
Major Depressive Disorder, recurrent, severe, without psychotic features at the time of the homicide, now in partial remission.
....
Posttraumatic Stress Disorder, chronic. This diagnosis is supported by Ms. Deegan's history of exposure to multiple traumatic events as a child of physical and sexual abuse. At the time she had intense feelings of helplessness, horror, and the fear of dying....
Dysthymic Disorder
This diagnosis is based on the fact that during Ms. Deegan's childhood she had a depressed mood for most of the day for more days than not for several years. Her depression was manifested by overeating, insomnia, low self esteem, and feelings of hopelessness.
Add. 2, p. 13 (Resnick Report). Dr. Resnick explained that at the time Ms. Deegan delivered her infant, she was severely depressed, overwhelmed by the state of her life, and "simply did not have the psychological resources to care for a fourth child." Sent. Tr. 36.
Dr. Resnick further testified that women who commit neonaticide are unable to cope with the pregnancy and endure great pain [644] at the expense of keeping the child's birth a secret:
[Such women] are willing to put themselves through a great deal of anguish. They often will deliver the baby with no anesthesia, no pain relief, no emotional support. They'll stifle their screams, and that is how intensely important it is for them not to have their family, who may be in the house, actually know that they're pregnant and having a baby.
Sent. Tr. 33.
The manner in which Ms. Deegan delivered her child conforms with other women's acts of neonaticide. Ms. Deegan gave birth to the infant in the shower and kept the birth a secret. She coped with the pain of childbirth by dissociating.[18] Dr. Resnick explained that just as Ms. Deegan had endured sexual assaults as a child by having out-of-body experiences, she used dissociation to separate herself from the intense pain of delivering the infant.
Dr. Resnick also addressed Ms. Deegan's belief that she was not pregnant. Dr. Resnick explained that, as is common in cases of neonaticide, Ms. Deegan neither planned for the killing of the infant or for the caring of the infant. As he succinctly stated, "They just put it out of their minds." Sent. Tr. 28-29. Dr. Resnick further testified that in Ms. Deegan's case, it was particularly easy for her to convince herself that she was not pregnant because she had previously miscarried three times and had experienced regular menstrual spotting during her prior pregnancies. Dr. Resnick explained that even though Ms. Deegan may have known she was pregnant, she may have made the assumption that she might miscarry or just did not accept that she was truly pregnant.
Dr. Resnick also testified that the manner in which Ms. Deegan carried out the neonaticide indicated that it was an impulsive act. He explained, unlike one who hides evidence of a crime, Ms. Deegan left her infant in a place where he "might have been discovered and she would be caught." Sent. Tr. 29.[19] Dr. Resnick explained that such conduct is not what one would expect from someone who is planning to take another's life and seeks to "get away with it." Sent. Tr. 29. He further explained that despite her psychological inability to cope with raising the child, Ms. Deegan still sought to keep the infant close to her home because of her emotional attachment to him.[20] Dr. Resnick reasoned, "had it been other circumstances, [Ms. Deegan] would have cherished the baby." Sent. Tr. 30.
Finally, Dr. Resnick testified that Ms. Deegan did not have a significant support system from her family and community. She lived in a mobile home in a rural area of North Dakota. She lacked the financial resources to leave her abusive and troubled family life. Ms. Deegan did not have outreach services with which she could have received assistance, nor were there shelters for victims of domestic violence. At the time of her actions, North Dakota did not yet have a Safe Haven Law, whereby parents could bring a child for which they felt unable to provide care.[21] Further, individuals and institutions had [645] consistently failed Ms. Deegan when she needed help.
It is apparent from Ms. Deegan's background and the expert testimony in this case that every adverse factor that may play some role in neonaticide was suffered to an advanced degree by Ms. Deegan. As the dissent shows below, the district court made two critical errors in evaluating the record. First, the court thought the guidelines applied to this case. Second, the court recognized this testimony but failed to properly apply this important evidence in imposing its sentence.
IV.
REVIEW OF SENTENCING
A. Inapplicability of second-degree murder guidelines
Ms. Deegan's crime of neonaticide was a unique sort of homicide and completely unlike the usual and ordinary killings that constitute second-degree murder under federal law. As I have already observed, federal courts do not ordinarily deal with these types of cases, which may be grist for the mills of state courts. Only because this neonaticide occurred on an Indian reservation does this case become one of federal jurisdiction. There exists no basis in the statements of the Sentencing Commission or in reviewing federal appellate second-degree murder cases to conclude that the crime of neonaticide comes within the federal second-degree murder sentencing guidelines.
First, consider the Sentencing Reform Act of 1984 and the goals of the United States Sentencing Commission. It is axiomatic that the Sentencing Reform Act, through the imposition of mandatory guidelines, worked a sea-change in federal sentencing. But even then, Congress recognized that the goals of certainty and uniformity must in some instances yield to unique circumstances:
These provisions introduce a totally new and comprehensive sentencing system that is based upon a coherent philosophy. They rely upon detailed guidelines for sentencing similarly situated offenders in order to provide for a greater certainty and uniformity in sentencing.
S.Rep. No. 98-225, at 38, reprinted in 1984 U.S.C.C.A.N. 3182, 3221 (emphasis added). Likewise, the Sentencing Commission instructs that:
The sentencing court must select a sentence from within the guideline range. If, however, a particular case presents atypical features, the Act allows the court to depart from the guidelines and sentence outside the prescribed range.
U.S.S.G. ch.1, pt. A, intro cmt. n. 2 (1997) (emphasis added). Thus both Congress and the Commission contemplated that not every crime would fall within the ambit of the guidelines.
The presentence report is lamentable in this regard. Despite the seemingly obvious fact that neonaticide is an unusual crime in federal court, the presentence report makes no mention that this is an "atypical" case. Even more distressing, the presentence report fails to indicate much in the way of the abusive circumstances Ms. Deegan faced during her childhood and at the time she gave birth to the infant victim. These circumstances, detailed so graphically in this dissent, were simply not a part of the presentence report, which asserted that no factors warranted departure from the guidelines.
Far worse than the omissions from the presentence report were the prosecutor's statements at sentencing, which lack any basis in fact or law, about the applicability of the guidelines to Ms. Deegan's conduct. At sentencing, Ms. Deegan's counsel requested [646] a non-guideline sentence. But the prosecutor mistakenly informed the district court that the Sentencing Commission took this type of crime into consideration in adopting the guidelines for second-degree murder:
MR. HOCHHALTER: Yes, Your Honor. Your Honor, the United States Sentencing Commission was in existence back as early as the late eighties and certainly at the time of this event, and certainly at the time of events across the country where, as Dr. Resnick has pointed out, this has been occurring for many years. The United States believes that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines such as exist in the 1997 edition. Given that fact, Your Honor, we believe that a guideline sentence would effectively meet the requirements of Section 3553, all of those goals of sentencing.
Sent. Tr. 42-43 (emphasis added). After this statement, defense counsel again urged, to no avail, that a guideline sentence was far greater than necessary.
Despite defense counsel's request, the district court determined—entirely without precedent—that the guidelines apply to "this type" of crime and that it believed application of the guidelines was "reasonable." The court stated:
Well, I have carefully reviewed the presentence report, and I adopt the factual findings and the sentencing guideline calculations spelled out in that presentence report that establish that this offense carries a total adjusted offense level of 32, a criminal history category of 1.
....
We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have. The sentencing guidelines have been in effect for almost 20 years, and they are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases. Every year there are hundreds of thousands of cases that—in which defendants are sentenced around the country, and the Sentencing Commission compiles all that data and they try to develop sentencing guidelines that are fair and are reasonable.
In this case the sentencing guidelines provide for a sentence range of 121 to 151 months. That's 10 to 12-and-a-half years. I'm required to impose those guidelines that were in effect in October of 1998.
....
Pursuant to the Sentencing Reform Act of 1984, it's my judgment, Ms. Deegan, that you shall be committed to the custody of the Bureau of Prisons to be imprisoned for a period of 121 months. I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable.
Sent. Tr. 55, 59, 60-61 (emphasis added). Notwithstanding the district court's belief, no basis exists to place neonaticide within the mine-run guidelines for second-degree murder.
The foundation statements for application of the sentencing guidelines in this case amounted to error of great proportions. Once Dr. Resnick's report became known, a modicum of research by any of the persons engaged in the sentencing process would have easily disclosed that the guidelines did not contemplate crimes such [647] as Ms. Deegan's.[22] An obligation to inform the judge of the applicable sentencing procedures and law rested on the prosecutor.
In the seminal case of Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996),[23] the Court explained that the then-mandatory guidelines carve out a "heartland" of typical cases and the Court provided an approach for delineating which cases fall within that heartland. Koon concerned the well-publicized conduct of Los Angeles police clubbing an arrestee, Rodney King, with their police batons. Id. at 86-87, 116 S.Ct. 2035. In Koon, the applicable guidelines called for a sentencing range of 70 to 87 months' imprisonment for the convicted police officers. Id. at 89, 116 S.Ct. 2035. The district court granted a downward departure for several reasons, which the Ninth Circuit rejected. United States v. Koon, 34 F.3d 1416 (9th Cir.1994). The police officers petitioned for certiorari to the United States Supreme Court. Koon, 518 U.S. at 91, 116 S.Ct. 2035.
In the process of reviewing the sentence, the Court explained the difference between ordinary or typical guideline cases and the "unusual" one:
A district judge now must impose on a defendant a sentence falling within the range of the applicable Guideline, if the case is an ordinary one.
....
The Commission intends the sentencing courts to treat each guideline as carving out a `heartland,' a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
....
The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure.
Id. at 92-94, 116 S.Ct. 2035 (internal citations omitted) (emphasis added).
The Supreme Court noted that because of Mr. King's provocative behavior, the guidelines should not apply. Id. at 105, 116 S.Ct. 2035. The Court quoted the district court's analysis of heartland cases:
However, the convicted offenses fall under the same Guideline Sections that would apply to a jailor, correctional officer, police officer or other state agent who intentionally used a dangerous weapon to assault an inmate, without legitimate cause to initiate a use of force.
[648] The two situations are clearly different. Police officers are always armed with `dangerous weapons' and may legitimately employ those weapons to administer reasonable force. Where an officer's initial use of force is provoked and lawful, the line between a legal arrest and an unlawful deprivation of civil rights within the aggravated assault Guideline is relatively thin. The stringent aggravated assault Guideline, along with its upward adjustments for use of a deadly weapon and bodily injury, contemplates a range of offenses involving deliberate and unprovoked assaultive conduct. The Guidelines do not adequately account for the differences between such `heartland' offenses and the case at hand.
Id. at 102-03, 116 S.Ct. 2035 (quoting United States v. Koon, 833 F.Supp. 769, 787 (C.D.Cal.1993)).
Applying this rationale, whether Ms. Deegan's conduct fell outside the heartland and therefore was not contemplated by the sentencing guidelines depends on whether her conduct significantly differed from the norm. "The norm" is certainly not what we have here-an American Indian woman so beset by the serious problems in her life she cannot cope with another child, cannot think with logic, and believes she has no alternative but to run away and abandon her newborn child. Tragic yes, typical no!
Is that just this writer's assumption? What is in and what is out of the heartland? To determine whether the Commission contemplated neonaticide by a mother in its guidelines for second-degree murder, this writer inquired of the Sentencing Commission. The response from Glenn Schmitt, Director of the Office of Research and Data for the United States Sentencing Commission, is of great interest:[24]
We reviewed 157,000 federal criminal cases sentenced since June 2006 (the date when our records became stored electronically, which enables us to review them more quickly than when they were stored off-site in paper). We found 605 cases in which the guideline providing for the highest punishment as either murder (2A1.1), 2nd degree murder (2A1.2), voluntary manslaughter (2A1.3), or involuntary manslaughter (2A1.4). Of these, the offender was a woman in 51 cases. We've gone back into each of the 51 cases and reviewed them in light of your inquiry.
....
In only one case did we find facts that meet the definition of neonaticide. In that case a 26-year-old mother gave birth to a child (her fourth) at home. She cleaned him, diapered[] him[,] dressed him, and fed him. She then placed him in a basket and left eh [sic] house with her other three children leaving the baby alone for two weeks. She testified that she knew the baby would die. When she returned and found him dead, she placed him in a suitcase and placed the suitcase in a ditch near her residence on an Indian reservation where it was discovered.
... As you can see from this analysis, cases like this are exceedingly rare in the federal system....
Mr. Schmitt's letter reflects that the Sentencing Commission was unable to locate another case of neonaticide besides the present case, which it described. Similarly, my research of non-habeas, federal appellate second-degree murder cases from [649] 1975 to the present discloses only one other clear case of neonaticide, with a drastically lesser sentence than that imposed on Ms. Deegan.[25]
Further, Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), makes clear that the district court erred in imposing a guideline sentence. In Rita, the Court reaffirmed that the Sentencing Commission intended for the guidelines to apply to the typical case but not to cases outside the "heartland." See Rita, 551 U.S. at 351, 127 S.Ct. 2456 ("[The judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG § 5K2.0[.]"). As the Court further explained, in a run of the mine case, the "Guidelines [ ] seek to embody the § 3553(a) considerations, both in principle and in practice." Id. at 350, 127 S.Ct. 2456. Therefore, "[a]n individual judge who imposes a sentence within the range recommended by the Guidelines thus makes a decision that is fully consistent with the Commission's judgment in general." Id.
Rita establishes that no neonaticide case was considered in developing the guidelines. The Court in Rita stated that the Commission employed an empirical approach when developing the guidelines by examining tens of thousands of sentences. Id. at 349, 127 S.Ct. 2456. The paucity of reported federal cases illustrates that neonaticide cases were not included in the sampling. Thus, a neonaticide case clearly falls outside the "heartland" for second-degree murder sentences. Moreover, because neonaticide is not accounted for by the guidelines, a guideline sentence is not "a decision that is fully consistent with the Commission's judgment in general." See id. at 350, 127 S.Ct. 2456.
When the prosecutor asserted, "[t]he United States believes that the Sentencing Commission took into account these types of events," Sent. Tr. 43, it is obvious that he had done no legal or other research on the matter. Yes, the Sentencing Commission examined second-degree murder cases when it formulated the guidelines for that offense. But that certainly does not mean the Commission contemplated neonaticide when formulating a sentencing range for second-degree murder offenses.
The prosecutor's incorrect statement became an error of law when the judge agreed that a guideline sentence needed to be applied. The judge believed that the guideline sentence in this particular case was "reasonable" because "[the guidelines] are designed to provide some honesty in sentencing and to achieve some consistency in the federal system, and they're based upon an analysis of hundreds of thousands of cases." Sent. Tr. 59. The judge stated that the guidelines apply "for people that commit this type of crime with the same type of criminal history that you [Ms. Deegan] have." Id. (emphasis added). But this conclusion is wrong.
[650] In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court affirmed the sentencing principles described in Rita.[26] The Court made clear that a district court should begin all sentencing proceedings by correctly calculating the applicable guidelines range and that the guidelines apply in "mine run" cases. Gall, 552 U.S. at 40, 49, 128 S.Ct. 586. This case falls so far from the heartland of guideline sentencing that it is a complete stranger to crimes ordinarily charged and considered as second-degree murder. As such, the district court significantly erred in sentencing when it concluded that the guidelines provided a "reasonable" sentence for neonaticide.
The inapplicability of the second-degree murder guidelines to this case requires reversal and remand. The district court should not have applied a guideline sentence because this is not a "mine run" case. Instead, the district court should have focused significant attention on the § 3553(a) factors. As detailed in the following section, Rita explains that the appropriateness of a district court's § 3553(a) analysis depends on the circumstances of the case. 551 U.S. at 356, 127 S.Ct. 2456. The circumstances here require a detailed and thorough analysis of the statutory sentencing factors, which the sentencing judge failed to do.
The majority reasons that Ms. Deegan's sentence is proper even if the case is not a run-of-the-mine case. Maj. op. at 634. That approach is wrong. Ms. Deegan's crime is not a run-of-the-mine case. The district court erred at the first step of the sentencing procedure. See Rita, 551 U.S. at 350-51, 127 S.Ct. 2456. Based on Rita and Gall, the district court erred in sentencing Ms. Deegan, and her sentence must be vacated.
B. Presumption of Reasonableness
The district court stated it was "required" to impose the guidelines that were in effect in 1998. Sent. Tr. 59. This amounts to a presumption and more that the guideline is reasonable. The further comment, "I am agreeing with the Government's recommendation in this case and adhering to the guidelines because I believe that they are reasonable[,]" in effect presumed the guidelines sentence was reasonable. Sent. Tr. 61. Such an approach is plain error in this circuit. See Alvizo-Trujillo, 521 F.3d at 1018 (stating that language that such a presumption applies is "a significant procedural error"); Greene, 513 F.3d at 907.
Rita makes clear that "[i]n determining the merits of these arguments [that the guidelines should not apply], the sentencing court does not enjoy the benefit of a legal presumption that the guidelines sentence should apply." 551 U.S. at 351, 127 S.Ct. 2456 (emphasis added). Further, as stated in Greene, the district court's mandate is not to impose a "reasonable" sentence, but "to impose `a sentence sufficient, but not greater than necessary, to comply with the purposes' of § 3553(a)(2)." 513 F.3d at 907 (quoting United States v. Foreman, 436 F.3d 638, 644 n. 1 (6th Cir.2006)).
C. Section 3553(a)
I dissent from the majority's conclusion that the district court did not err in considering the 18 U.S.C. § 3553(a) factors.
[651] In discussing sentencing procedure, the Court in Rita observed that the sentencing court must give reasons for the sentence "in the typical case." 551 U.S. at 356-57, 127 S.Ct. 2456. Importantly, the Court adds:
The appropriateness of brevity or length, conciseness or detail, when to write, what to say, depends upon circumstances.
....
In the present context, a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.... Circumstances may well make clear that the judge rests his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence (in terms of § 3553(a) and other congressional mandates) in the typical case, and that the judge has found that the case before him is typical.
Id.
As explained, Ms. Deegan's crime was not "the typical case." Therefore, the district court could not just rely upon the Sentencing Commission's reasoning that the guideline sentence is a proper one. Instead, the district court needed to consider all of the § 3553(a) factors and make an individualized assessment based on the facts presented. Gall, 552 U.S. at 49-50, 128 S.Ct. 586.
The § 3553(a) factors include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
....
(5) any pertinent policy statement—
....
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). With respect to § 3553(a), the sentencing judge made these comments at the sentencing hearing:
The request in this case is for the imposition of a variance or a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a). And I am very familiar with each and every one of those sentencing factors that I'm required to consider in every case. And believe me, I've carefully considered them in this case.
....
In this case I have spent considerable time reflecting not only on the presentence report, but on the sentencing memorandums of the parties. I've carefully [652] reviewed Dr. Peterson's psychological evaluation that I ordered. I've carefully reviewed Dr. Resnick's report. I've read it over at least three times. I've read every letter that was submitted in this case, letters of support. I have reviewed the DVD that was shown here in the courtroom several times. I've considered the testimony of Dr. Resnick today and the arguments of counsel.
And I was very impressed with Dr. Resnick's report and his testimony here today. To me it was helpful and insightful, and I have real respect for his opinions. He has—he's a nationally renowned specialist who has testified in some of the most famous cases that we have experienced here in the United States. And his report was a very reasonable, insightful report, and I have far better insight into what went on in this case after reviewing Dr. Resnick's report than I ever had at the time that I took a change of plea from Ms. Deegan.
And I certainly have a much better understanding today as to all the contributing factors and stressors that existed in her life back in 1998. And I know that you haven't had an easy life, Ms. Deegan. I know that it was plagued with physical abuse and sexual abuse, both at the hands of your father and the hands of the father of your children.
....
And believe me, I have real compassion for you and your family and what you have gone through....
But I also need to ensure that justice is done, and I don't know if anybody knows what justice is in this case. I reflected upon Mr. Hochhalter's [the prosecutor's] comment in his brief that justice lies between the extremes of public opinion, and that's probably a pretty fair assessment of where things lie in this case.
But after careful review of this entire record, I have in this case—and I'm aware of my discretion and authority to impose a nonguideline sentence or to depart from the guidelines. I have chosen in this case to impose a guideline sentence. I'm not going to exercise my discretion and depart and impose a nonguideline sentence because I believe that the sentence range that's been provided for in the sentencing guidelines in this particular case is reasonable....
Sent. Tr. 56-59.
The majority finds this a satisfactory analysis of the § 3553(a) factors. I do not. The district court demonstrates familiarity with the sentencing record, but offers no analysis of the record as it relates to the statutory factors.
To be sure, the district court states, "I have carefully considered all of the factors." But this statement does not constitute an "explanation" for why a ten-year sentence is sufficient but not greater than necessary. See Gall, 552 U.S. at 51, 128 S.Ct. 586 (stating a failure to "adequately explain" a chosen sentence is significant procedural error). A "statement of reasons" explaining a particular sentence is not equivalent to stating "I have considered all of the factors." As explained in Rita, "[i]n the present context [§ 3553(a) analysis], a statement of reasons is important. The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." 551 U.S. at 356, 127 S.Ct. 2456.[27] [653] In my view, the district court never justified its sentence under § 3553(a). It becomes so very plain that the district court made the choice of a guideline sentence. However, it must follow that if the guidelines do not apply to Ms. Deegan's non-heartland crime, the court needed to explain its sentence with respect to every factor under § 3553(a) in order to arrive at a proper sentence. The district court's "reasons" for imposing this sentence are wholly inadequate.
The district court states, "I cannot ignore the fact that there was an innocent life that was lost, but believe me, I understand why you took the steps that you did...." Sent. Tr. 60. This seems to be a "reason" for the sentence. But every neonaticide causes the death of a newborn child. That statement alone cannot justify this ten-year sentence.
The district court states, "I don't know if anybody knows what justice is in this case," but justice is reflected by the brief of the prosecutor that "justice lies between the extremes of public opinion...." Sent. Tr. 58. Wrong! Public opinion should not factor into a sentence. The factors are those in section 3553(a). Public opinion is not disclosed by the record in this case.
The district court states it was "obligated to apply the [1998] guidelines," and also noted that if it applied the 2008 Guidelines in effect at the time of sentencing, Ms. Deegan's sentence "would be in the range of 19-and-a-half to 24-and-a-half years." Sent. Tr. 55, 59-60. Wrong! The faulty underlying premise of both comments is that the guidelines contemplated neonaticide.[28]
The other "reason" offered by the district court for its sentence is the belief that a guideline sentence is reasonable. This is simply not supported by the law. As previously discussed, this is not a mine-run case to which the second-degree murder guidelines apply. In other words, the district court could not simply "rest[] his decision upon the Commission's own reasoning that the Guidelines sentence is a proper sentence...." Rita, 551 U.S. at 357, 127 S.Ct. 2456. Unfortunately, the district court did exactly that in sentencing Ms. Deegan.
But even more erroneous, in finding the guidelines "reasonable," the district court stood sentencing procedure on its head. As explained in Greene, a district court's job is not to impose a "reasonable" sentence. 513 F.3d at 907. The district court's job is to impose a sentence sufficient but not greater than necessary to comply with the purposes of § 3553(a). Id. Reasonableness is the appellate standard of review in judging whether a district court has accomplished that task. Id. Analysis of the § 3553(a) factors demonstrates the unreasonableness of Ms. Deegan's ten-year sentence.
1. Circumstances of the offense and characteristics of the defendant
This dissent amply describes the nature and circumstances of the offense and the history and characteristics of the defendant. This factor favors leniency. The district court never explained how the nature and circumstances of the offense and history and characteristics of Ms. Deegan supported its determination that a ten-year [654] sentence was sufficient but not greater than necessary.
2. Deterrence and recidivism
As to deterrence, Dr. Resnick testified that incarcerating Ms. Deegan would not likely deter other individuals from committing neonaticide. He explained that deterrence was unlikely for several reasons, including:
[T]hat since Ms. Deegan's crime, safe haven laws have been passed in all 50 states, and now if a woman feels overwhelmed by a baby, whether she's a teenager or whatever, she can drop that baby off at a hospital or a police station, no questions asked, and not have to kill the baby. And there have been more than a thousand drop-offs since those laws have begun to be passed in 1999.
Secondly, when a women [sic] commits neonaticide, most of the cases it is a teenager. Actually, the mean age for neonaticide in the United States is age 19, and most of these young women are... willing to put themselves through a great deal of anguish.
....
And women who are willing to put themselves through that I don't think are going to be significantly influenced by whether someone is sentenced to ten years or two years or probation.
Sent. Tr. 33-34.
As to recidivism of Ms. Deegan, Dr. Resnick stated:
Ms. Deegan presents an extremely low risk that she would commit any further conduct which was criminal in nature. With regard to harming a future baby, that's a nonissue because Ms. Deegan has had a tubal ligation. She's not going to have any more babies.
With regard to other criminal conduct, Ms. Deegan has been a law-abiding citizen her entire life, has no juvenile offenses, no adult offenses, not an alcohol or drug abuser, which is associated with criminality, has shown considerable remorse for what she has done, and is no longer in the desperate situation that she was in October 1998, where she was abused, overwhelmed, did not feel that she could care for the baby, didn't feel she could keep her babies—her three existing children safe if she was overwhelmed with another baby.
And the one follow-up study which has been done in women who have killed newborn children shows that most of them go on to marry and be good mothers, and that suggests that this is a crime which is based upon circumstances as opposed to bad character in the perpetrator.
And in Ms. Deegan's case, we have an example of where she has already in the nine years between the act and being brought to trial, has already demonstrated the quality of being a good mother, so rather than have to prognosticate, we have a nine-year period where we can show that she has got her life together, been a good mother, and not been a risk to the community.
Sent. Tr. 31-32. Dr. Resnick added:
[In spite of the abuse to Ms. Deegan], she has been a devoted, caring mother and made every effort to protect her children, raise her children to be good citizens so that—you know, there are occasions when there's what's called a cycle of violence where children who are abused go on to abuse their children. Not all mothers do that, but some do, and Ms. Deegan has taken a protective role and made sure that her children are well cared for.
Sent. Tr. 32.
As this testimony shows, the evidence before the district court overwhelmingly [655] established that incarcerating Ms. Deegan would not deter others from committing neonaticide and that Ms. Deegan would not commit future crimes.
As with the first sentencing factor, the district court never addressed what role deterrence and recidivism played in its ten-year sentence. Thus appellate review seems limited to noting that (1) this factor favors leniency; and (2) the district court never expressly discussed this factor.
3. Seriousness of offense
Of course neonaticide is a serious offense-as is any offense causing loss of life. Dr. Resnick provided some interesting background as to how other governments look at neonaticide.
There are 26 countries that have a particular law called an infanticide statute. This exists in Canada. It exists in England. It exists in Australia. And these countries have recognized that a woman taking a young baby is sometimes due to psychiatric factors, and finding them guilty of murder just does not comport with their sense of justice. So the persons found guilty of infanticide, rather than murder, have the equivalent sentence of voluntary manslaughter, rather than murder. And in England, most of these women who are found guilty of infanticide are placed on probation. They're not considered a danger to the community.
Sent. Tr. 30.
Despite all of the reasons given by defense counsel, the prosecutor and court's sole reason (besides reliance on the guidelines) for imposing a ten-year prison sentence was the tragic death of the infant. While it is tragic that a life was lost, that is the nature of any neonaticide. That alone is not sufficient to justify this sentence.
4. Family ties
While the guidelines do not ordinarily consider matters such as family ties, such a consideration is permissible under § 3553(a). Rita, 551 U.S. at 364-65, 127 S.Ct. 2456 (Stevens, J., concurring). The defense presented and the court received as evidence a DVD relating to the Deegan family. In that presentation, Ms. Deegan's younger sister related that Ms. Deegan protected her small siblings against the vicious abuses which their father sought to inflict.
Also Ms. Deegan's children exhibited their Native Indian regalia made by Ms. Deegan. The youngest child described Ms. Deegan as smart, pretty, and elegant.
In her allocution, Ms. Deegan spoke of her children's needs for her:
I've written a letter I'd like to read to you. [Judge], with respect to the Court, my family and my community, I am humbly addressing you today asking for a downward departure from the sentencing guidelines, not for my own sake, but for the sake of my daughters. They are at the age where they need me most now. I have spent my life trying to protect them from all [ ] that I had to endure. They need me to guide them, to love them and help them get through this difficult time, and to continue to help them grow to be grown good women.
Sent. Tr. 54.
Instead of the prosecutor acknowledging that the children's needs can play a role in reducing a federal sentence, he justified the guideline sentence saying, "[T]he punishment that comes to those siblings as well comes at the hand of the defendant. Basically her choice is what has caused all of this." Sent. Tr. 53. With respect to these comments, I offer this observation as to the laying of blame. There is plenty of [656] blame to go around. Ms. Deegan's father is dead. But what blame should be placed on Mr. Hale who did not support the children he fathered and consistently abused Ms. Deegan? And what about the failures of society to assist Ms. Deegan in her travail?
When it comes to blame, Dr. Resnick's report needs to be recalled:
a) When Ms. Deegan reported being the victim of sexual abuse to her mother at age 11, she reasonably expected protection from further abuse. Instead, she received a beating from her father for "whoring."
b) After being removed from her parents by the Child Protective Service, Ms. Deegan reasonably expected protection from further abuse. Instead, she was later returned to her parents and suffered further physical abuse from her father. Furthermore, while in some foster homes, she was physically abused.
c) When Ms. Deegan became a foster daughter to Irene Hale, she reasonably expected to be safe from physical abuse. Instead, she was physically abused by Irene's son, Shannon Hale.
d) When Ms. Deegan participated in joint therapy sessions with Shannon Hale in his substance abuse treatment, she reasonably expected Shannon's behavior to improve. Instead, Shannon beat her for "running her mouth."
e) When Ms. Deegan filed for a restraining order against Shannon Hale, she reasonably expected protection. Instead, a court officer took Shannon home to their trailer drunk.
Add. 2, p. 21 (Resnick Report).
Indeed, the great improvement in lifestyle by Ms. Deegan after escaping her abusive home meant a better life for her family. Did the prosecutor or the district court give any weight to that accomplishment? No! Yet that factor lends strong support to a lenient prison sentence. See Gall, 552 U.S. at 59, 128 S.Ct. 586 (stating that the district court gave this factor "great weight").
5. Promoting respect for the law and avoiding disparity
A district court should consider whether a sentence promotes respect for the law and consider the need to avoid unwarranted disparity among defendants who have been found guilty of similar conduct. 18 U.S.C. § 3553(a)(2)(A) and (a)(6).
The sentencing record reveals that defense counsel informed the court of another neonaticide crime in the State of North Dakota, but committed by a young woman, off the Indian reservation and, thus, subject to North Dakota state laws. As the defense counsel described the case:
There was an NDSU student who gave birth to a child, wrapped the baby up, stuck the child under a bed, and then ultimately disposed of the child, very similar kinds of situations here. That person got three years probation. Now, granted, certainly there are always differences in every case, but my point, Your Honor, is that if this had happened perhaps off the reservation, the consequences or at least the potential consequences are significant. And in disparity situations. I don't think you can operate in a vacuum, that you're dealing simply with disparities in the federal system. I think you have to look at what goes on.
Sent. Tr. 51.
The prosecutor stated:
Your Honor, just to clarify, I think counsel suggested that [the][ ] case in Cass County was three years probation. [657] I'm wondering if it was three years prison term that was the sentence in that case. I'm not positive, but I believe it was a prison term.
Sent. Tr. 52-53.
Also, Dr. Resnick informed the court that women who plead guilty to neonaticide are "infrequently sentenced to more than three years in prison." Add. 2, p. 24 (Resnick Report). These are all state sentences and, as observed by the majority, ordinarily state sentences are not germane to showing disparities in sentencing.
But here, we ought to consider the difference in sentence between (1) Ms. Deegan, a woman living in North Dakota and generally subject to state and tribal laws, except as to some aspects of federal law because of her residency on an Indian reservation, and (2) a North Dakota woman who committed a neonaticide crime off the reservation.
As the court said in Gall, quoting with approval the reasoning of the district court:
the unique facts of Gall's situation provide support for the District Judge's conclusion that, in Gall's case, "a sentence of imprisonment may work to promote not respect, but derision, of the law if the law is viewed as merely a means to dispense harsh punishment without taking into account the real conduct and circumstances involved in sentencing."
Gall, 552 U.S. at 54, 128 S.Ct. 586 (citations omitted).
This statement echoes the situation here. What respect should be given to federal criminal law which imposed a harsh punishment for this woman's crime on the reservation, when compared to the lenient sentence upon a woman off the reservation for this special crime of neonaticide? I submit that the sentence here promotes disrespect for the law and the judicial system.[29]
In this regard, a letter from Ms. Deegan's sister to the court before sentencing becomes relevant and significant:
Our family has endured depression, anxiety, and post-traumatic stress disorder [PTSD]. Our childhood home was a war zone; there were some good times of laughter and love, but one never knew when an attack of rage and violence was about to happen.
Our family has taken great lengths to reconcile the pain and scars that have been left on our souls. Understanding the intergenerational historical trauma of our American Indian Grandfathers and Grandmothers that came before us, has helped my family to forgive and love our father, knowing that he too suffered. Non-Indian people may not easily internalize this sense of loss and powerlessness so deeply ingrained by American Indian people still today. The cultural deprivations and discriminations of our people merely because of our heritage has contributed to the psychological deficits that Dana, at that particular low time in her life, was unable to overcome. I fear that these same cultural factors may also contribute to harsher penalties of an already oppressed woman.
....
She was then as she is now, only trying to survive while caring for her daughters. She has spent her adult life trying to protect her children from a life she had to endure. If Dana is sentenced to prison, it is yet another tragedy, this [658] time in the name of justice, that her daughters will be victims too.
R. at 29 (attachment to Defendant's Sentencing Memorandum, sealed in the district court) (emphasis added).
Reading this letter should give us all pause. How many of us can really comprehend the misery of Ms. Deegan's situation as described in this record? None of these matters made any difference to the district court when sentencing under the guidelines. I ask what respect should be given to this guideline sentence?
The sentence here is unjust, excessive, and treats a woman on the reservation disparately with a woman off the reservation. Does this disparity not indicate another example of unfair treatment of an American Indian living on a reservation?
In summary, with respect to § 3553(a) the district court committed several errors. The district court believed the that the guidelines were "reasonable" and that they applied to Ms. Deegan. Wrong! This is not a mine run case.
The district court's § 3553(a) analysis was wholly insufficient considering the circumstances of this case. The statute and the Supreme Court require a statement of reasons, which in this case was not satisfied by the district court's statement that it "considered" the statutory factors.
The district court expressly relied on the Commission's view of an appropriate sentence, but the Commission never considered neonaticide. Examination of the record in light of the § 3553(a) factors shows the substantive unreasonableness of Ms. Deegan's sentence.
Finally, the district court never explained how this ten-year sentence comports with the most crucial aspect of sentencing: that a sentence be sufficient, but not greater than necessary to comply with the purposes of § 3553(a). Instead, the court imposed an almost mechanical sentence based on its erroneous view that the guidelines applied to "this type of crime."
D. Guideline Sentence as Virtually Mandatory
The reader may wonder how an experienced prosecutor and a well-regarded district judge could err so grievously in the imposition of this sentence. Justice Souter's separate opinion in Rita may suggest the answer:
What works on appeal determines what works at trial, and if the Sentencing Commission's views are as weighty as the Court says they are, a trial judge will find it far easier to make the appropriate findings and sentence within the appropriate Guideline, than to go through the unorthodox factfinding necessary to justify a sentence outside the Guidelines range.
Rita, 551 U.S. at 391, 127 S.Ct. 2456 (Souter, J., dissenting) (citations omitted).[30] Moreover, as Justice Stevens commented, "I am not blind to the fact that, as a practical matter, many federal judges continued to treat the Guidelines as virtually mandatory after our decision in Booker." Id. at 366, 127 S.Ct. 2456 (Stevens, J., concurring).
I ask isn't that precisely describing the sentencing procedure and comments here?
The majority stresses discretion by the district court. Maj. op. at 634-35. But the sentencing judge did not exercise his discretion. He merely adopted the recommendation of the prosecutor for a guideline [659] sentence. Rather than consider the specific facts and circumstances in this case, the district court imposed a guideline sentence. This court addressed the limits of "discretion" in the pre-guideline case of Woosley v. United States, 478 F.2d 139 (8th Cir.1973) (en banc).
Woosley arose thirty-seven years ago when appellate courts almost never reviewed the district court sentence. See Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958). The relevant facts are as follows. A sincere and religiously motivated member of Jehovah's Witnesses had refused a conscientious objector classification in the Selective Service draft and had refused to report for induction. 478 F.2d at 140. The sentencing judge in Woosley recognized the defendant "as a fine young man." Id. However, the judge gave him the maximum sentence under the law (five years) pursuant to the judge's policy of always imposing the maximum penalty to men who refused induction into the military. See id. at 140, 143. That sort of sentence was imposed regardless of the underlying circumstances as to each defendant.
The Woosley court said, "we deal with a predetermined sentence resting upon a policy followed by the trial judge.... A mechanical approach to sentencing [that] plainly conflicts with the sentencing guidelines announced by the Supreme Court...." 478 F.2d at 143 (emphasis added) (citation omitted).
Here, rather than looking at the law espoused by the Supreme Court and truly considering what sentence was sufficient but not greater than necessary, the court imposed the guideline sentence. It blindly followed the government's belief "that the Sentencing Commission took into account these type of events, these type of crimes when it put together sentencing guidelines...." Sent. Tr. 43. Interestingly, the district court observed that Ms. Deegan's life had not been easy and he expressed compassion for what she had gone through. But the judge disregarded the specific circumstances of her crime and imposed the guideline sentence. This case was out of the "heartland" and did not fall within the guidelines sentence structure. Despite that, the district court failed to exercise its discretion in imposing a sentence.
In Woosley, the court observed that the great majority of individuals committing a similar crime received probation, not a jail sentence. 478 F.2d at 147. Here the judge gave no consideration to the plea for a lenient sentence, even though that matter was brought to his attention by defense counsel and Dr. Resnick. The sentence in this case manifests a gross abuse of discretion.
The Woosley en banc court concluded the opinion with this language, which I suggest is very pertinent to this case:
We find it difficult to conceive of a situation offering more compelling circumstances to justify leniency than that in the instant case.
....
The broad and unreviewable discretion possessed by federal district courts in matters of sentencing does not extend to the meting out of punishment manifestly disproportionate to the nature of the crime and the character of the criminal.
Id. at 147-48. Although in a different time and relating to a different crime, the two cases have parallels.
Yes, this judge stands by the view that district courts should exercise discretion in sentencing. But that discretion is not unfettered. United States v. Burns, 577 F.3d 887, 897 (8th Cir.2009) (en banc) (Bright, J., concurring). The record here makes clear that the district judge exercised [660] no discretion but merely agreed with and adopted the government's recommendation and applied the guideline sentence. This amounted to grievous, gross error.
V.
REMEDY
A simple remand for resentencing will not do. This neonaticide crime is a novel one in the federal courts. As I have noted, I have never seen a crime as completely out of the "heartland" as this one. As such, this court should provide the district court with guidance. In Woosley, the circuit court remanded the sentence to the district court with special instructions, including one for the court to consider "changed family circumstances which may disclose additional considerations dictating leniency of treatment." 478 F.2d at 148. Moreover, pending disposition of the en banc appeal, this court released Woosley from prison on his personal recognizance. Id. at 140 n. 2.
In Ms. Deegan's circumstances, I suggest that (1) she be immediately released from prison pending disposition of this appeal and resentencing; (2) the district court reconsider the creation of a sentencing disparity between two North Dakota women who both committed neonaticide; and (3) the district court consider imposing a new sentence to time served in prison.
Regardless of the above suggestion, what judicial or societal harm can come from a remand? The process of remanding for resentencing goes on every day in the federal courts.
VI.
CONCLUSION
Ms. Deegan's case cries out for justice and a reversal. The guideline sentence for second-degree murder does not apply to her crime of neonaticide. Ms. Deegan has suffered enough. I will not put my imprimatur on this harsh sentence, which reeks with error in the sentencing process. Ms. Deegan has suffered immense cruelty at the hands of her father, his male friends, and the father of her children. Now her lifetime of travail becomes magnified by an unjust and improper prison sentence. Her sentence of ten years' incarceration rests on a misreading or ignorance of the law.
For almost the first time in a federal appeal, this court addresses the fairness of a sentence imposed on a woman on the Indian reservation whose prior life has been a "hell" and where the punishment ignores the needs of her children, who were the objects of her protection in committing a tragic crime.
In essence, the issue in this case is whether the district court imposed a sentence under § 3553(a). The majority says it did. Maj. op. at 633-34. I believe the answer is a resounding No! The problem with the majority's analysis is that the very words of the actors in the sentencing process seem to disagree.[31]
In mine run cases, the guidelines account for § 3553(a), see Rita, 551 U.S. at 350-51, 127 S.Ct. 2456, which lessens the need for extensive discussion of the § 3553(a) factors. The Sentencing Commission never incorporated the § 3553(a) factors into a guideline that applies to the [661] crime of neonaticide; thus Ms. Deegan's guideline sentence cannot embody the § 3553(a) factors. Because the sentencing court could not properly rely on the guidelines, Ms. Deegan's sentence required a full analysis of these statutory sentencing factors.
The majority relies on mine run cases for the proposition that district court judges need not say much about the sentencing factors. See Maj. op. at 629-30 (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) (mine run perjury, obstruction of justice, making false statements); United States v. Robinson, 516 F.3d 716 (8th Cir.2008) (mine run conspiracy to commit bribery); United States v. Hernandez, 518 F.3d 613 (8th Cir.2008) (mine run possession of methamphetamine with intent to distribute); United States v. Perkins, 526 F.3d 1107 (8th Cir.2008) (mine run revocation of supervised release); United States v. Henson, 550 F.3d 739 (8th Cir.2008) (mine run felon in possession)). But Ms. Deegan's case is not a mine run case. This court should not sanction this guideline sentence nor the cursory discussion of the § 3553(a) factors.
The majority relies on the district court's presentence order to conclude that a court "could" reasonably view Ms. Deegan's offense as "unusually heinous, cruel, and brutal." Maj. op. at 634. According to the majority, this characterization of Ms. Deegan's actions demonstrates the substantive reasonableness of her sentence. But the district court ultimately rejected the characterization on which the majority relies. The "heinous, cruel, and brutal" language in the district court's presentence order simply recites U.S.S.G. § 5K2.8, on which the district court contemplated, but rejected, a sentencing departure. See Maj. op. at 628-29. Importantly, the presentence order contemplating the departure was issued before the district court or any participants in the sentencing process knew any substantial amount of information about Ms. Deegan's background and about neonaticide. The majority's revival of "heinous, cruel, and brutal" does not reflect the views of the district court, nor those of a leading expert on neonaticide, and I strongly dispute that characterization of Ms. Deegan.
The majority criticizes the dissent for comparing Ms. Deegan's case to that of another North Dakota neonaticide. Maj. op. at 635-36. The majority asserts that almost nothing is known about the other North Dakota neonaticide that was committed by an NDSU student. True, the details underlying her crime are not part of the sentencing record. But a comparison of these women's circumstances from the record, in light of Dr. Resnick's discussion of the § 3553(a) factors as related to neonaticide, strongly indicates that Ms. Deegan is entitled to a lenient sentence, similar to that of the NDSU student. And if the information before the judge and the testimony of Dr. Resnick was insufficient, it should have been a red flag to investigate further to determine whether the circumstances of the NDSU case were comparable to those of Ms. Deegan.
In any event, what we do know about the other North Dakota neonaticide supports overturning Ms. Deegan's harsh sentence. Both women committed neonaticide. Both did so in North Dakota. But Ms. Deegan committed her crime on a reservation and landed in federal court. Dr. Resnick reported that most women receive sentences of not longer than three years' incarceration, see Add. 2, p. 24 (Resnick Report), and the NDSU student received three years' probation. On this record, there is no just reason for the sentencing [662] disparity between these two women. As I previously asked, what respect should be given to federal criminal law which imposed a harsh punishment for Ms. Deegan's crime committed on the reservation, when compared to the lenient sentence upon a woman off the reservation? Might an informed observer say: just another injustice by the United States which Indians must suffer.
The comparison of these two cases relates not to whether a federal court should rely on state sentences, but is an issue of unfairness and injustice to an Indian woman living on a reservation as compared to a woman not living on a reservation. The majority may say different laws apply. The difference here rests not on the law, but on the mistakes and misjudgment by a federal court as shown by the record.
I firmly believe that in these United States, through its courts or otherwise, Ms. Deegan will receive Equal Justice Under the Law.
This case also lifts the curtain on the terrible abuse suffered by Ms. Deegan as a young child and young woman on the Fort Berthold Indian Reservation in North Dakota. Unfortunately, her suffering is not an isolated instance. The pervasive and terrible abuse of women and children occurs on every Indian reservation in this country. I address that matter in the Appendix to this dissenting opinion.
APPENDIX TO DISSENT
LIFTING THE CURTAIN ON ASSAULTS AGAINST WOMEN AND CHILDREN IN INDIAN COUNTRY
In the dissent, I raise the question: where were the government and social agencies during the many instances of physical, verbal, and sexual abuse suffered by Ms. Deegan as a child and young adult, as well as her younger sisters and mother?
This dissent in part has examined the root cause, abuse after abuse after abuse suffered by Ms. Deegan, that underlies the tragic death of the infant victim. Is that abuse isolated to the Fort Berthold Indian Reservation or symptomatic of an existing situation in all of Indian country?
Coincidentally, in examining the background of assault and abuse in this case, a revealing and pertinent article about violence and sexual assault in Indian country appeared in a popular legal publication. The article entitled, Strange Justice in Indian Country, appeared in the National Law Journal of September 28, 2009. It reads in part:
Conditions in this obscure country, as reported by sources ranging from Amnesty International to a U.S. Senate committee, are appalling. One in three women will be raped in her lifetime. Half the reported murders and 72% of child sex crimes are never prosecuted. Ninety percent of sexual assaults on native women are committed by men from the dominant ethnic groups. The nation's highest courts regularly reverse convictions based solely on the defendant's race.
This country is not Sudan, Rwanda or Kosovo during ethnic cleansing. Rather, this is the state of law enforcement today on the 310 Indian reservations that are home to nearly a million Native American citizens of the United States.
"Indian Country"—the federal government's name for the 54 million acres of reservation lands in the United States—is larger than Minnesota or Utah. The layers of social ills on most reservations—alcohol and drug abuse, unemployment, malnutrition and chronic disease—are a well-documented national shame. But the failure of the U.S. government to provide equal legal protection [663] to victims of serious crimes, who happen to be Native American, is just bizarre.
....
The treatment of native peoples is one of the darkest chapters in American history. Although nothing can be done to change that history, extending basic legal protections to residents of Indian country, equal to those enjoyed by their fellow citizens, is a modest goal.
As the dissent notes, the abuse and beatings perpetrated upon Ms. Deegan as a child and young woman by her father, his friends, Mr. Hale, and others, although known by some officials of tribal institutions, were never investigated, prosecuted, nor the subject of correction. Ms. Deegan as an Indian woman does not stand alone as a victim of abuse.
Violence against American Indian women is a pervasive problem. Federal government studies consistently show that American Indian women are more likely to be subject to sexual violence than other women in the United States.[32] In fact, American Indian women are more than two-and-a-half times more likely to be raped or sexually assaulted than other women.[33] More than one out of every three American Indian women will be raped during their lifetime.[34]
American Indian women are not only more likely to be raped and sexually assaulted, but are also more likely to suffer a higher degree of additional physical violence during those assaults. While 30 percent of the general population of United States women report suffering physical injuries in addition to a rape, 50 percent of American Indian women report such injuries.[35] American Indian women are also more likely to be a victim of a rape with a weapon.[36] While 11 percent of all reported rapes involve the use of a weapon, 34 percent of female American Indian rapes involve a weapon.[37]
Notably, survivors of such brutal rapes and assaults suffer physically, emotionally, and spiritually.[38] American Indian women who have been sexually assaulted report higher rates of depression, alcoholism, drug abuse, and suicidal ideation.[39]
In addition to pervasive and damaging sexual violence, American Indians are more likely to be victims of all violent crimes than any other race.[40] In fact, American Indians experience a per capita [664] rate of violence twice that of other United States residents.[41] The same is true for American Indian women, who are over two times more likely to be victims of violence.[42]
American Indian children are often victims of abuse. One American Indian child out of 30 is subject to abuse or neglect.[43] American Indian children are approximately twice as likely to be victims of child abuse than the general population of children.[44]
Sadly, violence and abuse on Indian reservations are likely greater than depicted in these statistics. It is widely-accepted that reports of abuse and violence on Indian reservations are under reported.[45] Although "[v]iolence against women is one of the most pervasive human rights abuses[,][i]t is also one of the most hidden."[46] "Most Indian women do not report such crimes because of the belief that nothing will be done."[47]
Pictures occasionally speak louder than words. The attached illustration[48] depicts a young American Indian girl in native dance regalia and emphasizes to the reader the importance of protecting "the integral parts of [Indian] life."[49] The high risks of violence to which American Indian women and children are exposed to on their reservations requires urgent action by federal agencies, tribal personnel, and other social services, and they should do all in their power to stop this terrible and continuing abuse.
I conclude with this comment. The violence against women and children on Indian reservations is a national scandal. It must be addressed not only as a criminal matter but as a societal concern. If the violence against Ms. Deegan had been stopped, even as late as her association with Mr. Hale, and, if she had been given moral and societal assistance in raising the three children in her family, this crime of neonaticide might never have occurred. The deterrence to such a crime, as here, will not be attained by imposing a harsh punishment on Ms. Deegan. The problems of preventing assault and abuse against women and children in Indian country need illumination, and immediate steps must be taken to stop this terrible and wrongful conduct.
[665]
[1] The Honorable Daniel L. Hovland, Chief Judge, United States District Court for the District of North Dakota.
[2] We disagree with the dissent that the district court's description of the chosen sentence as "reasonable" demonstrates that the court applied an impermissible presumption of reasonableness to the advisory guideline sentence, post, at 650, or that the court misunderstood its duty under § 3553(a) to select a sentence that is "sufficient, but not greater than necessary" to comply with the purposes of § 3553(a)(2). Post, at 653. As in United States v. Vaughn, 519 F.3d 802, 805 (8th Cir. 2008), where the sentencing court said it was to impose a "reasonable sentence," there is no plain error, because the record as a whole shows that the court followed the proper procedure under Gall.
[3] In its Fifteen Year Report, the Commission explained that murder was one of the offenses for which the original Commission, "either on its own initiative or in response to congressional actions, established guideline ranges that were significantly more severe than past practice." See U.S. Sentencing Comm'n, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 47 (2004). The report further observed that for violent crimes, "the Commission was careful to ensure that average sentences . . . at least remained at current levels, and it raised them where the Commission was convinced that they were inadequate." Id. at 68. It explained that "[f]or murder and aggravated assault, the Commission felt that past sentences were inadequate since these crimes generally involved actual, as opposed to threatened, violence." Id. Nothing in these statements is inconsistent with an assumption that the second-degree murder guideline was based on empirical data and national experience, although the data and experience may have led the Commission to conclude that the average sentence should be increased.
[4] Even if two different sentences had been imposed in federal court, moreover, one district judge has no obligation after Booker to follow the decision of another district judge. Cf. post, at 649 & n. 25. District judges now are permitted to apply their own policy views when determining what punishment is sufficient for a particular offense under 18 U.S.C. § 3553(a), Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 843, 172 L.Ed.2d 596 (2009) (per curiam); Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), and there inevitably will be some disparity in the sentencing of similarly-situated offenders. Booker, 543 U.S. at 263, 125 S.Ct. 738 ("We cannot and do not claim that use of a `reasonableness' standard will provide the uniformity that Congress originally sought to secure.").
[5] As a federal judge, I had never heard of the term "neonaticide" nor encountered a case of neonaticide until this case. From reading the record, I daresay the same lack of knowledge existed in the district court personnel until neonaticide was explained by Dr. Phillip Resnick. The defense counsel, William D. Schmidt of Bismarck, North Dakota, an assistant public defender, should be commended for his research on the subject and in bringing Dr. Resnick to testify about neonaticide.
This judge has read and reviewed several hundred federal sentencing cases. Of those, the procedure and sentence here is among the most grossly wrong and unfair that I have ever encountered. The result: a harsh, discriminate, and improper sentence upon an American Indian woman living on a reservation. The conduct of the district court in this case and the majority's affirmance violates every sentencing principle enunciated by the Supreme Court after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
This one of a kind sentence by a federal sentencing judge, not a state judge as would be the usual case, occurred only by reason of the defendant's residence on an Indian reservation in North Dakota. I justify the length of this dissent on the basis that every aspect of the sentencing procedure and the substance of the sentence deserves careful examination. This federal court on appeal should not approve a prison sentence for this reservation crime which this judge believes is unfair and improper under the law and facts.
[6] The dissent recognizes that in the usual case where the crime is in the heartland of the guidelines, the claim that the court did not fully consider the § 3553(a) factors will be plain error unless the defendant objects to the sentencing judge's analysis of the § 3553(a) factors. See, e.g., United States v. Gray, 533 F.3d 942, 945 (8th Cir.2008); Alvizo-Trujillo, 521 F.3d at 1018. But here we have a distinctly different situation. This crime did not fit the guideline because it was outside the heartland. The request by defense counsel here was for "a nonguideline sentence to be imposed in accordance with 18 USC Section 3553(a)." Sent. Tr. 56. Moreover, the circumstances here squarely come within 18 U.S.C. § 3553(b)(1), which states that "[i]n the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in [§ 3553] subsection (a)(2)."
Thus, when Ms. Deegan requested a non-guideline sentence, and the sentencing judge denied the request and imposed a guideline sentence, nothing further needed to be said to preserve the error. The failure to sentence completely outside the guidelines, in light of the record here, should be reviewed as preserved error.
[7] Dr. Resnick, the expert who examined Ms. Deegan, testified that he had reviewed FBI reports, family and medical records, and an interview with Mr. Hale and had not found any major contradictions. In other words, the supporting documents in the case "substantiated Ms. Deegan's version of what had gone on in her life." Sent. Tr. 16.
[8] In today's world we speak of similar conduct as a form of torture-water boarding. The abuse this child suffered is almost beyond imagination.
[9] FBI reports support Ms. Deegan's account of the extensive abuse she suffered. Mr. Hale acknowledged in an interview with the FBI that he had physically, emotionally, and verbally abused Ms. Deegan on a regular basis. Mr. Hale further acknowledged that he was a bad husband, Ms. Deegan was a good woman, and Ms. Deegan had done a good job raising their children without his assistance.
[10] Ms. Deegan's medical records document this injury:
7/29/97: Twenty-four year old patient comes in to evaluate injuries sustained in an altercation with her boyfriend last night. She is 37 weeks pregnant. She wishes to press charges. Her boyfriend was inebriated. Her boyfriend was with another woman. A brutal fight ensued ending up with the patient being thrown out on the gravel with her left leg extended at a considerable angle and this caused a major injury we are now inspecting. The pregnancy seems to be unaffected. Diagnosis: Multiple contusions and abrasions. Hip ligament strain left, moderately severe. (She had her baby two days later.)
Add. 2, p. 16 (Resnick Report).
[11] Greek mythology, as related by Homer in the Odyssey, tells the tale of Scylla and Charybdis and provides an apt metaphor of Ms. Deegan's dire circumstances. The story relates that two sea monsters, Scylla and Charybdis, guarded the Strait of Messina between Sicily and Calabria in Italy and gave sailors inescapable threats-pass close to Scylla and be eaten by the monster, or veer to the other side closer to Charybdis and be sucked in and destroyed by a whirlpool. S.H., Butcher and A. Lang, The Odyssey of Homer 199-200 (MacMillan & Co. 1922) (1879). In today's vernacular, Ms. Deegan's choice was between a "Rock and a Hard Place."
[12] Essentially, Ms. Deegan gave the same characterization of the circumstances to the FBI:
Deegan stated that Shannon Hale was drinking heavily and using large amounts of drugs including methamphetamine. He was frequently gone for days or weeks at a time. Neither Deegan nor Hale were working, and she was having difficulty finding money to feed her children. What little money she did manage to find, Hale would take and use for drugs. Deegan essentially was the sole provider and care giver for herself and her three children. She felt that having another child to care for was more than she could handle. So, she left Baby Doe alone to die because she felt she could not care for another child under the circumstances.
Add. 2, p. 17 (Resnick Report).
[13] See Drescher-Burke, K., Krall, J., and Penick, A., Discarded infants and neonaticide: A review of the literature, Berkeley, CA: National Abandoned Infants Assistance Resource Center, University of California at Berkeley, 4-5 (2004).
[14] Id.
[15] See Janet Ford, Note, Susan Smith and Other Homicidal Mothers—In Search of the Punishment that Fits the Crime, 3 Cardozo Women's L.J. 521, 538 (1996).
[16] See Drescher-Burke, et al., supra note 9, at 5.
[17] See Ford, supra note 11, at 538.
[18] Dissociation is "like an out-of-body experience" wherein the integrative functions of the mind are dissociated from perception and experience. Sent. Tr. 35.
[19] Ms. Deegan left the infant fifty yards from her home.
[20] When questioned as to why she placed the infant so close to her home, Ms. Deegan replied, "I wanted the baby close to me and I did not want to let him go." Add. 2, p. 12 (Resnick Report).
[21] North Dakota enacted a Safe Haven Law in 2001. See N.D.C.C. § 50-25.1-15.
[22] The majority claims, "The [district] court never suggested that the Sentencing Commission based the guideline on an analysis of hundreds of thousands of `neonaticide' cases, or that Deegan's offense was a typical fact pattern for second-degree murder." Maj. op. at 633. The record does not support such an interpretation. I emphasize again the district court's statement: "We have sentencing guidelines in the federal system that are designed to ensure that sentences are consistent and uniform throughout the country for people that commit this type of crime with the same type of criminal history that you have." Sent. Tr. 59 (emphasis added).
[23] Koon was superseded on other grounds by statute. See 18 U.S.C. § 3742(e) (providing for de novo review of departures). See also Rita, 551 U.S. at 361, 127 S.Ct. 2456 (Stevens, J., concurring). But of course, de novo review no longer applies after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
[24] This December 8, 2008, letter is on file in this writer's office. This writer provided copies to the panel.
[25] I briefly mentioned the Tom case in my introduction. In Tom, on appeal after reversal and remand in United States v. Tom, 494 F.3d 1277 (10th Cir.2007), the Tenth Circuit affirmed a variance from the second-degree murder guideline range of 168-210 months to 70 months' imprisonment for a boyfriend who assisted in the killing of his 15-year-old girlfriend's son. 327 Fed.Appx. at 94. This teenager gave birth in the bathroom of her mother's trailer on the Navajo Reservation, pleaded guilty to first-degree murder, and was sentenced to 44 months' probation. 327 Fed.Appx. at 99. It is worthy of special note that this crime was committed on an Indian reservation and the defendants were sentenced in a federal district court.
[26] In describing Rita, the Court in Gall stated, "we held that when a district judge's discretionary decision in a particular case accords with the sentence the United States Sentencing Commission deems appropriate `in the mine run of cases,' the court of appeals may presume that the sentence is reasonable." 552 U.S. at 40, 128 S.Ct. 586 (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456).
[27] I recognize that § 3553(a) does not "insist" upon a full opinion in every case, Rita, 551 U.S. at 356, 127 S.Ct. 2456, but in a case like this, which presents circumstances far outside the ballpark of normal cases, see Rita, 551 U.S. at 365, 127 S.Ct. 2456 (Stevens, J., concurring), the district court's explanation for imposing a ten-year sentence is insufficient. Here we have unstated "considerations" but almost nothing more.
[28] Furthermore, applying the guidelines in effect at the time of sentencing may be unconstitutional. See Maj. op. at 631-32.
[29] See Carol A. Brook, Racial Disparity Under the Federal Sentencing Guidelines, 35 Litigation, 15, 19 (Fall 2008) (explaining that sentencing policies that contribute to unwarranted disparity affect the efficaciousness of the goals of the criminal justice system).
[30] See also Brook, supra note 29, at 18 ("[T]he gravitational pull of the guidelines remains strong.").
[31] The probation officer said that no factors warranted a departure. Rev. PSR ¶ 63 ("None"); see also supra at 18-19. The prosecutor said "a guideline sentence is the right choice." Sent. Tr. 53; see also supra at 19. The district court said "I'm required to impose those [1998] guidelines ... I am agreeing with the Government's recommendation... and adhering to the guidelines because I believe that they are reasonable." Sent. Tr. 59, 61; see also supra at 19-20. But the guidelines do not apply to neonaticide.
[32] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[33] Id.; see also Amy Radon, Tribal Jurisdiction and Domestic Violence: The Need for Non-Indian Accountability on the Reservation, 37 U. Mich. J.L. Reform 1275, 1280-81 (2004) ("[F]or every 1,000 American Indian females, 23.2 were victims of intimate violence. This rate of victimization was nearly double that of African Americans (11.2 for every 1,000), triple that of whites (8.1 per 1,000), and twelve times the victimization rate of Asian Americans (1.9 per 1,000).").
[34] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[35] Id. at 5.
[36] Sarah Deer, Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law, 38 Suffolk U.L.Rev. 455, 457 (2005).
[37] Id.
[38] Sarah Deer, Toward an Indigenous Jurisprudence of Rape, 14 Kan. J.L. & Pub. Pol'y 121, 123 (2004).
[39] Id. at 124.
[40] U.S. Dep't of Justice, American Indians and Crime, v (Dec.2004).
[41] Id. at iv.
[42] Id. at v.
[43] U.S. Dep't of Justice, American Indians and Crime, 15 (1999).
[44] Id.
[45] Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, Amnesty International USA 2 (2007).
[46] Id. at 1.
[47] Id. at 2 (quoting Juana Majel, National Congress of American Indians, and Karen Artichoker, Cangleska, Inc.-Sacred Circle). As this report explains, "interviews with survivors, activists and support workers across the USA suggest that available statistics greatly underestimate the severity of the problem. In the Standing Rock Sioux Reservation, for example, many of the women who agreed to be interviewed could not think of any Native women within their community who had not been subjected to sexual violence." Id.
[48] Reproduced with the permission of the State Historical Society of North Dakota and its publication, North Dakota History: Journal of the Northern Plains, Vol. 69, front cover (2002).
[49] Id. at back cover.
7.2.8.9.2.7 U.S. v. Gementera 7.2.8.9.2.7 U.S. v. Gementera
v.
Shawn GEMENTERA, Defendant-Appellant.
Page 597
Arthur K. Wachtel, San Francisco, CA, argued the case for the appellant and was on the briefs. Maitreya Badami was also on the briefs.
Kelley Brooke Snyder, U.S. Department of Justice, Washington, DC, argued the case for the appellee and was on the briefs. Kevin Ryan, United States Attorney, and Hannah Horsley and Anne-Christine Massullo, Assistant United States Attorneys, were also on the briefs.
Elizabeth M. Falk, Office of the Federal Public Defender, San Francisco, CA, argued the case for amicus curiae Federal Public Defender for the Northern District of California and was on the briefs. Barry J. Portman, Federal Public Defender, was also on the briefs.
Page 598
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-01-00454-VRW.
Before: O'SCANNLAIN, SILER, JR.,* and HAWKINS, Circuit Judges.
O'SCANNLAIN, Circuit Judge:
We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment."
Shawn Gementera pilfered letters from several mailboxes along San Francisco's Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708, and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641.
The offense was not Gementera's first encounter with the law. Though only twenty-four years old at the time, Gementera's criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. By twenty-four, the conviction was misdemeanor battery. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner's consent.
On February 25, 2003, Judge Vaughn Walker of the United States District Court for the Northern District of California sentenced Gementera. The U.S. Sentencing Guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years supervised release.1 He also imposed conditions of supervised release.
One such condition required Gementera to "perform 100 hours of community service," to consist of "standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: `I stole mail. This is my punishment.'"2 Gementera later filed a motion to correct the sentence by
Page 599
removing the sandwich board condition. See Fed.R.Crim.P. 35(a).
Judge Walker modified the sentence after inviting both parties to present "an alternative form or forms of public service that would better comport with the aims of the court." In lieu of the 100-hour signboard requirement, the district court imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that the defendant observe postal patrons visiting the "lost or missing mail" window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school.3 It also included a scaled-down version of the signboard requirement:
The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, "I stole mail; this is my punishment," in front of a San Francisco postal facility identified by the probation officer. For the safety of defendant and general public, the postal facility designated shall be one that employs one or more security guards. Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.
On March 4, 2003, the court denied the Rule 35 motion and amended the sentence as described above. Gementera timely appealed.4
We first address Gementera's argument that the eight-hour sandwich
Page 600
board condition violates the Sentencing Reform Act.5 See 18 U.S.C. § 3583(d).
The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. In addition to "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20)," the statute explicitly authorizes the court to impose "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d)(emphasis added). Such special conditions, however, may only be imposed "to the extent that such condition —
(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)";
18 U.S.C. 3583(d). Thus, to comply with this requirement, any condition must be "reasonably related" to "the nature and circumstances of the offense and the history and characteristics of the defendant." See 18 U.S.C. 3553(a)(1). Moreover, it must be both "reasonably related" to and "involve no greater deprivation of liberty than is reasonably necessary" to "afford adequate deterrence to criminal conduct," see id. at 3553(a)(2)(B), "protect the public from further crimes of the defendant," see id. at 3553(a)(2)(C), and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." See id. at 3553(a)(2)(D).6 Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis. E.g., United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003).7
Within these bounds, we have recognized the flexibility and considerable discretion the district courts exercise to impose conditions of supervised release, up to and including limits upon the exercise of
Page 601
fundamental rights. See 18 U.S.C. § 3583(d) (granting authority to impose "any other condition it considers to be appropriate"); United States v. Hurt, 345 F.3d 1033, 1036 (9th Cir.2003) ("[T]he district court ... has wide discretion to act in the interest of the defendant and the public."); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) ("The sentencing judge has broad discretion in setting probation conditions, including restricting fundamental rights."). This reflects, in part, their greater knowledge of and experience with the particular offenders before them. We have, for example, upheld conditions barring possession of sexually stimulating material, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), contact with minors, id., association or membership in "motorcycle clubs," Bolinger, 940 F.2d at 480, and access to the internet, Rearden, 349 F.3d at 620.
Of course, the district court's discretion, while broad, is limited — most significantly here, by the statute's requirement that any condition reasonably relate to a legitimate statutory purpose.8 "This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes." United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). Gementera's appeal implicates both steps of the analysis.
Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. See 18 U.S.C. § 3553(a). He points to certain remarks of the district court at the first sentencing hearing:
[H]e needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.
According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition's purpose.
Reading the record in context, however, we cannot but conclude that the district court's stated rationale aligned with permissible statutory objectives. At the second sentencing hearing, when the sentence was amended to what is now before us, the court explained: "[U]ltimately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his punishment, he does not reoffend, and a public expiation of having offended is, or at least it should be, rehabilitating in its effect." Although, in general, criminal punishment "is or at least should be humiliating," the court emphasized that "[h]umiliation is not the point." The court's
Page 602
written order similarly stresses that the court's goal was not "to subject defendant to humiliation for humiliation's sake, but rather to create a situation in which the public exposure of defendant's crime and the public exposure of defendant to the victims of his crime" will serve the purposes of "the rehabilitation of the defendant and the protection of the public."
The court expressed particular concern that the defendant did not fully understand the gravity of his offense. Mail theft is an anonymous crime and, by "bring[ing] home to defendant that his conduct has palpable significance to real people within his community," the court aimed to break the defendant of the illusion that his theft was victimless or not serious. In short, it explained:
While humiliation may well be — indeed likely will be — a feature of defendant's experience in standing before a post office with such a sign, the humiliation or shame he experiences should serve the salutary purpose of bringing defendant in close touch with the real significance of the crime he has acknowledged committing. Such an experience should have a specific rehabilitative effect on defendant that could not be accomplished by other means, certainly not by a more extended term of imprisonment.
Moreover, "[i]t will also have a deterrent effect on both this defendant and others who might not otherwise have been made aware of the real legal consequences of engaging in mail theft."
Read in its entirety, the record unambiguously establishes that the district court imposed the condition for the stated and legitimate statutory purpose of rehabilitation and, to a lesser extent, for general deterrence and for the protection of the public. See 18 U.S.C. § 3553(a); see generally United States v. Clark, 918 F.2d 843, 848 (9th Cir.1990) (affirming public apology condition when "[t]he record supports the conclusion that the judge imposed the requirement of a public apology for rehabilitation."), overruled on other grounds by United States v. Keys, 133 F.3d 1282 (9th Cir.1998) (en banc). We find no error in the condition's purpose.
Assuming the court articulated a legitimate purpose, Gementera asserts, under the second prong of our test, see Terrigno, 838 F.2d at 374, that humiliation or so-called "shaming" conditions are not "reasonably related" to rehabilitation. In support, he cites our general statements that conditions must be reasonably related to the statutory objectives, see Consuelo-Gonzalez, 521 F.2d at 262 ("[E]ven though the trial judge has very broad discretion in fixing the terms and conditions of probation, such terms must be reasonably related to the purposes of the Act."), several state court decisions,9 and several law review
Page 603
articles that were not presented to the district court.
In evaluating probation and supervised release conditions, we have emphasized that the "reasonable relation" test is necessarily a "very flexible standard," and that such flexibility is necessary because of "our uncertainty about how rehabilitation is accomplished." Id. at 264. While our knowledge of rehabilitation is limited, we have nonetheless explicitly held that "a public apology may serve a rehabilitative purpose." Clark, 918 F.2d at 846; see also Gollaher v. United States, 419 F.2d 520, 530 (9th Cir.1969) ("It is almost axiomatic that the first step toward rehabilitation of an offender is the offender's recognition that he was at fault."). Of course, for Gementera to prevail, introducing mere uncertainty about whether the condition aids rehabilitation does not suffice; rather, he must persuade us that the condition's supposed relationship to rehabilitation is unreasonable.
We considered a similar question in Clark, a case involving two police officers convicted of perjury in a civil rights lawsuit they brought against their department. Clark, 918 F.2d at 844. In a deposition, the officers lied about a past episode in which they had falsely phoned in sick while actually en route to a vacation. As a probation condition, the court required them to publish a detailed apology in the local newspaper and in the police department newsletter. Id. at 845. Though they challenged the condition based upon the First Amendment, we applied the same test applicable here, concluding that "[b]ecause
Page 604
the probation condition was reasonably related to the permissible end of rehabilitation, requiring it was not an abuse of discretion." Id. at 848.
Both Clark and Gementera involve defendants who seemingly failed to confront their wrongdoing, and the defendants in each case faced public expiation and apology. In Clark, the defendants had neither admitted guilt nor taken responsibility for their actions. Id. at 848. Here, by contrast, the defendant pled guilty. His plea decision is unremarkable, though, given that he had been apprehended red-handed. Reflecting upon the defendant's criminal history, the court expressed concern that he did not fully understand the consequences of his continued criminality, and had not truly accepted responsibility.10 The court explained:
[T]his is a young man who needs to be brought face-to-face with the consequences of his conduct. He's going down the wrong path in life. At age 24, committing this kind of an offense, he's already in a criminal history category 4, two-thirds of the way up the criminal history scale. He needs a wake-up call.
The court also determined that Gementera needed to be educated about the seriousness of mail crimes in particular, given that they might appear to be victimless:
One of the features of Mr. Gementera's offense is that he, unlike some offenders did not, by the very nature of this offense, come face-to-face with his victims. He needs to be shown that stealing mail has victims; that there are people who depend upon the integrity and security of the mail in very important ways and that a crime of the kind that he committed abuses that trust which people place in the mail. He needs to see that there are people who count on the mails and integrity of the mails. How else can he be made to realize that than by coming face-to-face with people who use the postal service? That's the idea.
As with Clark, the district court concluded that public acknowledgment of one's offense — beyond the formal yet sterile plea in a cloistered courtroom — was necessary to his rehabilitation.
It is true, of course, that much uncertainty exists as to how rehabilitation is best accomplished. See Consuelo-Gonzalez, 521 F.2d at 264. Were that picture clearer, our criminal justice system would be vastly different, and substantially improved. By one estimate, two-thirds of the 640,000 state and federal inmates who will be released in 2004 will return to prison within a few years. The Price of Prisons, N.Y. Times, June 26, 2004, at A26. See Bureau of Justice Statistics, Dep't of Justice, Recidivism of Prisoners Released in 1994 (2002) (finding 67.5% recidivism rate among study population of 300,000 prisoners released in 1994). The cost to humanity of our ignorance in these matters is staggering.
Gementera and amicus contend that shaming conditions cannot be rehabilitative because such conditions necessarily cause the offender to withdraw from society or otherwise inflict psychological damage, and they would erect a per se bar against such conditions.11 See Toni Massaro, Shame, Culture, and American Criminal Law, 89
Page 605
Mich. L.Rev. 1880, 1920-21 (1991) ("When it works, it redefines a person in a negative, often irreversible way" and the "psychological core" it affects cannot thereafter be rebuilt.); see generally June Price Tagney et al., Relation of Shame and Guilt to Constructive Versus Destructive Responses to Anger Across the Lifespan, 70 J. Psych. & Soc. Psych. 797-98 (1996); June Price Tagney et al., Shamed into Anger? The Relation of Shame and Guilt to Anger and Self-Reported Aggression, 62 J. Psych & Soc. Psych. 669-675 (1992). Though the district court had no scientific evidence before it, as Gementera complains, we do not insist upon such evidence in our deferential review.12 Moreover, the fact is that a vigorous, multifaceted, scholarly debate on shaming sanctions' efficacy, desirability, and underlying rationales continues within the academy. See, e.g., Dan M. Kahan & Eric A. Posner, Shaming White-Collar Criminals: A Proposal for Reform of the Federal Sentencing Guidelines, 42 J.L. & Econ. 365, 371 (1999) (urging use of stigmatic punishments for white-collar criminals); Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 738-39 (1998); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591 (1996) (arguing that shaming sanctions reinforce public norms against criminality). By no means is this conversation one-sided.
Criminal offenses, and the penalties that accompany them, nearly always cause shame and embarrassment. United States v. Koon, 34 F.3d 1416, 1454 (9th Cir.1994) ("Virtually all individuals who are convicted of serious crimes suffer humiliation and shame, and many may be ostracized by their communities."). Indeed, the mere fact of conviction, without which state-sponsored rehabilitation efforts do not commence, is stigmatic. The fact that a condition causes shame or embarrassment does not automatically render a condition objectionable; rather, such feelings generally signal the defendant's acknowledgment of his wrongdoing. See Webster's Ninth New Collegiate Dictionary 1081 (1986) (defining shame as "a painful emotion caused by consciousness of guilt, shortcoming, or impropriety"); see also Gollaher, 419 F.2d at 530. We have recognized that "the societal consequences that
Page 606
flow from a criminal conviction are virtually unlimited," and the tendency to cause shame is insufficient to extinguish a condition's rehabilitative promise, at least insofar as required for our flexible reasonable relation test. Koon, 34 F.3d at 1454.
While the district court's sandwich board condition was somewhat crude, and by itself could entail risk of social withdrawal and stigmatization, it was coupled with more socially useful provisions, including lecturing at a high school and writing apologies, that might loosely be understood to promote the offender's social reintegration. See Note, Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law, 116 Harv. L.Rev. 2186 (2003) (proposing how shaming sanctions may be structured to promote social reintegration most effectively); John Braithwaite, Crime, Shame and Reintegration 55 (1989) ("The crucial distinction is between shaming that is reintegrative and shaming that is disintegrative (stigmatization). Reintegrative shaming means that expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, are followed by gestures of reacceptance into the community of law-abiding citizens."). We see this factor as highly significant. In short, here we consider not a stand-alone condition intended solely to humiliate, but rather a comprehensive set of provisions that expose the defendant to social disapprobation, but that also then provide an opportunity for Gementera to repair his relationship with society — first by seeking its forgiveness and then by making, as a member of the community, an independent contribution to the moral formation of its youth.13 These provisions,14 tailored to the specific needs of the offender,15 counsel in favor of concluding that the condition passes the threshold of being reasonably related to rehabilitation.
Finally, we are aware that lengthier imprisonment was an alternative available to
Page 607
the court. The court, however, reasoned that rehabilitation would be better achieved by a shorter sentence, coupled with the additional conditions: "It would seem to me that he's better off with a taste of prison, rather than a longer prison sentence, and some form of condition of release that brings him face-to-face with the consequences of his crime." The judge's reasoning that rehabilitation would better be served by means other than extended incarceration and punishment is plainly reasonable, see Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 653 n. 89 ("[I]t became clear by the middle of the [19th] century that imprisonment was ill suited to rehabilitation...." (internal citations omitted)), particularly in light of the significant economic disadvantages that attach to prolonged imprisonment. See generally Jeffrey Kling, Bruce Western, & David Weiman, Labor Market Consequences of Incarceration, 47 Crime & Delinquency 410-27 (2001) (reviewing the literature); Jeffrey Grogger, The Effect of Arrests on the Employment and Earnings of Young Men, 110 Quarterly J. Economics 51-72 (1995) (finding that incarcerative sentences have substantial effects on earnings in comparison with parole).
Accordingly, we hold that the condition imposed upon Gementera reasonably related to the legitimate statutory objective of rehabilitation.16 In so holding, we are careful not to articulate a principle broader than that presented by the facts of this case. With care and specificity, the district court outlined a sensible logic underlying its conclusion that a set of conditions, including the signboard provision, but also including reintegrative provisions, would better promote this defendant's rehabilitation and amendment of life than would a lengthier term of incarceration. By contrast, a per se rule that the mandatory public airing of one's offense can never assist an offender to reassume his duty of obedience to the law would impose a narrow penological orthodoxy not contemplated by the Guidelines' express approval of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).
Gementera also urges that the sandwich board condition violates the Constitution. Claims with respect to the First, Fifth, Eighth, and Fourteenth Amendments are presented.
Amicus argues that the condition violates the First, Fifth, Eighth and Fourteenth Amendments. Gementera bases his appeal solely upon the Eighth Amendment, and the government contends that the additional constitutional arguments presented by the amicus have been waived.
"Generally, we do not consider on appeal an issue raised only by an amicus." Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993). The court has considered arguments of a jurisdictional nature raised only by amici, Stone v. San Francisco, 968 F.2d 850, 855 (9th Cir.1992) ("Issues touching on federalism and comity may be considered sua sponte."), and it has addressed purely legal questions when the parties express an intent to adopt the arguments as their own. United States v. Van Winrow, 951 F.2d 1069, 1072 (9th Cir.1991) ("Because [litigant] states in his brief that he wishes to adopt [amicus'] arguments as
Page 608
his own, and because they present pure issues of law, we will consider them here."). See also Artichoke Joe's Cal. Grand Casino v. Norton, 353 F.3d 712, 719(9th Cir.2003) ("In the absence of exceptional circumstances, which are not present here, we do not address issues raised only in an amicus brief."); Russian River Watershed Protection Comm. v. City of Santa Rosa, 142 F.3d 1136, 1141 (9th Cir.1998) (declining to address issue raised by amicus for first time on appeal when the appellee did not adopt the amicus' argument in its brief). Gementera did not adopt amicus' constitutional arguments on appeal. Though the government urged in its reply brief that these arguments had been waived, Gementera again declined to incorporate the arguments or otherwise address the waiver argument in its own reply. Accordingly, we decline to address the First, Fifth and Fourteenth Amendment claims.
We turn then to the Eighth Amendment, which forbids the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. "The basic concept underlying the Eighth Amendment was nothing less than the dignity of man." Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (finding denationalization of military deserters cruel and unusual). Consistent with human dignity, the state must exercise its power to punish "within the limits of civilized standards." Id.
A particular punishment violates the Eighth Amendment if it constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Shaming sanctions of far greater severity were common in the colonial era, see, e.g., Smith v. Doe, 538 U.S. 84, 97-98, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Lawrence Friedman, Crime and Punishment in American History 38 (1993), and the parties do not quarrel on this point.
The Amendment's prohibition extends beyond those practices deemed barbarous in the 18th century, however. See Stanford v. Kentucky, 492 U.S. 361, 369-70, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). "[T]he words of the Amendment are not precise, and [] their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590; id. at 100, 78 S.Ct. 590 ("Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect."). In assessing what standards have so evolved, we look "to those of modern American society as a whole," Stanford, 492 U.S. at 369, 109 S.Ct. 2969, relying upon "objective factors to the maximum possible extent," Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion), rather than "our own conceptions of decency." Stanford, 492 U.S. at 369, 109 S.Ct. 2969.
The parties have offered no evidence whatsoever, aside from bare assertion, that shaming sanctions violate contemporary standards of decency. But the occasional imposition of such sanctions is hardly unusual, particularly in our state courts. See, e.g., Stephen P. Garvey, Can Shaming Punishments Educate?, 65 U. Chi. L.Rev. 733, 734 (1998) (describing proliferation of unorthodox and creative shaming punishments); infra at note 18. Aside from a
Page 609
single case presenting concerns not at issue here,17 we are aware of no case holding that contemporary shaming sanctions violate our Constitution's prohibition against cruel and unusual punishment.18
We do, however, note that Blanton v. N. Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989), is instructive, if only indirectly. In Blanton, the Court considered whether a Nevada DUI defendant
Page 610
was entitled to a jury trial pursuant to the Sixth Amendment. The inquiry into whether the offense constituted a petty crime not subject to the Sixth Amendment trial provision required the Court to evaluate the severity of the maximum authorized penalty. Id. at 541, 109 S.Ct. 1289. The statute provided a maximum sentence of six months or, alternatively, forty-eight hours of community service while dressed in distinctive garb identifying the defendant as a DUI offender, payment of a $200-$1000 fine, loss of driving license, and attendance at an alcohol abuse course. Id. at 539-40, 109 S.Ct. 1289. The Court wrote:
We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period, such a penalty will be less embarrassing and less onerous than six months in jail.
Id. at 544, 109 S.Ct. 1289; but see id. at 544 n. 10 ("We are hampered in our review of the clothing requirement because the record from the state courts contains neither a description of the clothing nor any details as to where and when it must be worn."). Just as the Court concluded that 48 hours of service dressed in distinctive DUI garb was less onerous than six months imprisonment, it would stretch reason to conclude that eight hours with a signboard, in lieu of incarceration, constitutes constitutionally cruel and unusual punishment.
In the absence of any evidence to the contrary, and particularly in comparison with the reality of the modern prison, we simply have no reason to conclude that the sanction before us exceeds the bounds of "civilized standards" or other "evolving standards of decency that mark the progress of a maturing society." Trop, 356 U.S. at 100-01, 78 S.Ct. 590.
AFFIRMED.
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Notes:
* The Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.
1. The court explained that, while it would have been strongly inclined to impose home confinement had Gementera's criminal history been better, the court felt that "given the unpromising road that the defendant has been following, that he needs to have a taste of federal custody, to be sure a brief one, but he needs to understand that if he continues on the course that he has set for himself at his age he's going to be facing a lot more serious charges in the future."
2. At sentencing, the judge addressed Gementera: "[W]e've also discussed the fact that you need to be reminded in a very graphic way of exactly what the crime you committed means to society. That is, the idea of you standing out in front of a post office with a board labeling you as somebody who has stolen mail." Gementera replied, "If that's the case, I would stand in front of a post office with a board as my penalty for the crime that I did commit. And as long as I can get home detention so I can get my family back together, get back on track and rehabilitation myself." After the court imposed incarceration, rather than home detention, Gementera's counsel asked that the 100 hours be changed to "up to 100 hours at the discretion of the probation officer." That request was denied. Though the court had acknowledged explicitly that the condition would cause humiliation, Gementera did not challenge the condition's legality nor did he ask the court to explain or elaborate its purpose at the first hearing.
3. The first three parts of the four-part special condition mandated:
a. The defendant shall, at the direction of the probation officers, spend 4 days of 8 total hours each at a postal facility where there is a lost and found window, observing postal patrons who visit that window to inquire about lost or missing mail;
b. The defendant shall, with the assistance of counsel, carefully examine all Rule 16 discovery materials in the possession of the United States to determine the identity of all ascertainable victims of the defendant's crime; having identified those persons, the defendant shall compose and address a personal letter to each of these persons individually expressing defendant's remorse for the specific conduct that harmed that person; the defendant shall provide each such victim with the address of his counsel, through whom any victim who wishes to contact the defendant directly may do so.
c. The defendant shall deliver three educational lectures at three San Francisco high schools, to be identified by the probation officer and under the probation officer's direction, in which the defendant shall describe the crime he has committed, express his remorse for his criminal conduct and articulate to the students in attendance how his conviction and sentence have affected his life and future plans.
4. Gementera was ordered to surrender on March 31, 2003. On March 12, 2003, prior to his surrender, Gementera was arrested for possession of stolen mail, for which he was convicted and received a twenty-four month sentence.
5. The court generally reviews supervised release conditions for abuse of discretion, see United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.2004), though we review de novo the interpretation of the Sentencing Guidelines, see United States v. Garcia, 323 F.3d 1161, 1164 (9th Cir.2003), and "[w]hether the sentence imposed was `illegal,'" see United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986), for example, by exceeding "the permissible statutory penalty for the crime [] or [by being] in violation of the Constitution." United States v. Johnson, 988 F.2d 941, 943 (9th Cir.1993).
6. Any condition must also be consistent with the Sentencing Commission's policy statements. See 18 U.S.C. § 3583(d); 28 U.S.C. § 994(a). The parties have not raised arguments with respect to this requirement.
7. Though the statutory authorities underlying conditions of probation and supervised release are distinct, compare 18 U.S.C. § 3583(authorizing supervised release conditions) with 18 U.S.C. § 3563(authorizing probation conditions), the court's supervised release jurisprudence has often relied upon authority from the probation context. See, e.g., United States v. Hurt, 345 F.3d 1033, 1035 (9th Cir.2003); United States v. Pinjuv, 218 F.3d 1125, 1131 (9th Cir.2000); United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir.1998). In that context, the court probes the extent to which probation conditions serve the "dual objectives of rehabilitation and public safety." See United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir.1975) (en banc).
8. Gementera points to several cases in which our sister circuits found that conditions did not reasonably relate. See United States v. Abrar, 58 F.3d 43 (2d Cir.1995) (repayment of unrelated debts); United States v. Prendergast, 979 F.2d 1289 (8th Cir.1992) (abstinence from alcohol for wire fraud conviction); United States v. Smith, 972 F.2d 960, 961-62 (8th Cir.1992) (not siring children except by wife for a narcotics conviction); Fiore v. United States, 696 F.2d 205, 208-10 (2d Cir.1982) (making reparations for crime to which only a co-defendant had pled guilty). He also cites Springer v. United States, 148 F.2d 411, 415-16 (9th Cir.1945), in which this court vacated a condition that a convicted draft-dodger donate a pint of blood to the Red Cross. Id. In each of these cases, however, the condition was unrelated to the nature and substance of the offense. Here, there is no reasonable dispute that the signboard declaration is related to the offense.
9. In People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681 (Cal.Ct.App.1993), a California court vacated a condition requiring a defendant during his first year of probation to wear a t-shirt whenever he was outside his home. The t-shirt read, "My record plus two-six packs equal four years," and on the back, "I am on felony probation for theft." Noting with disapproval the trial court's stated intention of "going back to some extent to the era of stocks" and transforming the defendant into "a Hester Prin [sic]," id. at 1058, 16 Cal.Rptr.2d 681, the court held that the t-shirt could not serve the rehabilitative purpose because it would render the defendant unemployable. By contrast, Gementera's condition was sharply limited temporally (eight hours) and spatially (one post office in a large city), eliminating any risk that its effects would similarly spill over into all aspects of the defendant's life. Indeed, the district court's imposition of the condition in lieu of lengthier incarceration enables Gementera to enter the private labor market.
People v. Johnson, 174 Ill.App.3d 812, 124 Ill.Dec. 252, 528 N.E.2d 1360 (1988), involved a condition that a DWI offender publish a newspaper advertisement with apology and mug shot. Interpreting the state supervision law as intended "to aid the defendant in rehabilitation and in avoiding future violations," and for no other purpose, the court held that the publication requirement "possibly, adds public ridicule as a condition" of supervision and could inflict psychological harm that disserves the goal of rehabilitation. Id. at 1362 (noting that the Illinois statute does not "refer to deterrent to others"). Relying on the fact that defendant was a young lady and a good student with no prior criminal record, had injured no one, and otherwise had no alcohol or drug problem, it found the condition impermissible, given the perceived mental health risk. Id. By contrast, we have specifically held that mandatory public apology may be rehabilitative. Clark, 918 F.2d at 848 ("[A] public apology may serve a rehabilitative purpose."). Moreover, the condition specifically provided that the signboard requirement would be withdrawn if the defendant showed that the condition would inflict psychological harm.
The defendant's third case, People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146 (1995), also involved a probation condition imposed upon a DWI offender. If he regained driving privileges, the offender was required to affix a fluorescent sign to his license plate, stating "CONVICTED DWI". Id. at 147. The court imposed the condition under a catch-all provision of the New York law authorizing "any other conditions reasonably related to his [or her] rehabilitation." Id. at 148 (quoting New York Penal Laws § 65.10[2][l]). Under the New York statute, rehabilitation "in the sense of that word that distinguishes it from the societal goals of punishment or deterrence" was the "singular focus of the statute." Id. at 149. Because the condition's "true design was not to advance defendant's rehabilitation, but rather to `warn the public' of the threat presented by his presence behind the wheel," id. at 149, the court voided the condition. Id. at 159, 631 N.Y.S.2d 105, 655 N.E.2d 146; see also id. at 149 ("[P]ublic disclosure of a person's crime, and the attendant humiliation and public disgrace, has historically been regarded strictly as a form of punishment." (internal citations omitted)). In contrast to the New York scheme, the district court made plain the rehabilitative purpose of the condition. We also note that in the federal system, unlike the New York system, rehabilitation is not the sole legitimate objective. See 18 U.S.C. §§ 3583(d), 3553(a).
10. Gementera's post-sentencing, pre-surrender conviction for possession of stolen mail confirms the reasonableness of the district court's observation in this respect. For that conviction, Gementera was sentenced to twenty-four months imprisonment.
11. Even if shaming conditions were sometimes rehabilitative, Gementera also urges that the condition would be psychologically damaging in his specific case, given his "lack of coping skills, his substance abuse, and his unresolved personal issues with his father." Better than public expiation, he contended, would be mandatory substance abuse counseling and vocational training. First, we note that the district court did require Gementera to undergo substance abuse counseling and vocational training. Second, the record establishes that the district court fairly considered Gementera's claims that he was somehow particularly vulnerable to the consequences of his crime being publicly exposed. At the hearing, the court asked defense counsel, "is there some feature of his personality that makes him particularly vulnerable that you can substantiate?" The attorney replied, "I can't offer anything but my own personal observations and anecdotal observation based on my almost one-year representation of the defendant and his reaction and his family's reaction to what occurred in court." While not persuaded by the attorney's untutored lay psychological evidence, the district court nonetheless inserted a provision into the condition providing an avenue for Gementera to present more reliable evidence of psychological harm:
Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.
No such substantiation was presented. By the terms of the condition, if there were any such evidence, Gementera faces no bar to his presenting it.
12. Nor did the district court have any evidence to the contrary. By not citing these scholarly articles until this appeal, Gementera failed to provide the district court any opportunity to assess their potential value.
13. The dissent faults our analysis for looking beyond the signboard clause to other provisions of the four-part condition. [Dissent at 612.] Our purpose is not, as the dissent characterizes it, to suggest that an improper condition may be cured merely by setting it alongside proper conditions. Rather, our obligation is to assess whether an individual provision reasonably relates to the purpose of rehabilitation. Where that provision is part of an integrated rehabilitative scheme, we see no bar to looking at other aspects of the scheme in evaluating the purpose and reasonableness of the individual provision at issue. By acting in concert with others, a provision may reasonably relate to rehabilitation, even though the relation existed primarily by virtue of its interaction with complementary provisions in an integrated program. A boot camp, for example, that operates by "breaking participants down" before "building them up again" is not rendered impermissible merely because the first step, standing alone, might be impermissible. Similarly, a program that emphasizes an offenders' separation from the community of law-abiding citizens, in order to generate contrition and an authentic desire to rejoin that community, need not be evaluated without reference to the program's affirmative provisions to reconcile the offender with the community and eventually to reintegrate him into it.
14. We do not pass here on the more difficult case of the district court's original 100-hour condition, which lacked significant reintegrative aspects.
15. We do acknowledge that one purpose of the Sentencing Guidelines was to promote greater uniformity in federal sentencing, and that permitting certain conditions of supervised release, as imposed here, may lead to less regularized sentences. As described above, however, we have previously upheld a diverse array of conditions of supervised release, as contemplated by the statute's authorization of "any other condition [the district court] considers to be appropriate." 18 U.S.C. § 3583(d).
16. In view of this holding, we do not reach the separate issue of whether the condition reasonably relates to the objectives of deterrence and protection of the public.
17. Gementera points to Williams v. State, 234 Ga.App. 37, 505 S.E.2d 816 (1998), in which a defendant convicted of soliciting sodomy was ordered to walk for ten days, between 7 p.m. and 11 p.m. each day, along that portion of the street where the solicitation occurred, holding a large sign stating, "BEWARE HIGH CRIME AREA." The police were to be notified in advance in order to monitor his performance and provide an appropriate level of safety. Id. at 817. While the court commended the trial judge for his "initiative" in developing a "new and creative form of sentencing which might very well have a positive effect on [the defendant] and be beneficial to the public," and explained that shaming punishments are not forbidden, it nonetheless found that the condition exposed the defendant to a constitutionally impermissible danger. Id. at 818.
The Georgia court relied upon language from DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (rejecting claim against county social services department for failing to protect child from private violence by his father), in which the Supreme Court held: "[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200, 109 S.Ct. 998. The Court explained:
The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.
Id. at 200, 109 S.Ct. 998. The condition in Gementera does not expose the defendant to any significant risk of danger. By contrast with Williams, the Gementera signboard is worn during eight hours of daylight during the business day, not at night; in front of a United States Post Office, not a "high crime" neighborhood where criminal solicitation occurs; and the sign's message does not provoke violence by threatening the criminal livelihood of those who illegally trade sex in a red light district, as the Williams sign might. Moreover, the district court in Gementera explicitly included a provision allowing for withdrawal of the condition upon a showing that the condition would impose a safety risk upon the defendant. Gementera made no such showing.
18. Numerous state courts have rejected Eighth Amendment challenges to shaming sanctions. See, e.g., People v. Letterlough, 205 A.D.2d 803, 804, 613 N.Y.S.2d 687 (N.Y.App.Div.1994) ("CONVICTED DWI" sign on license plate); Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993) (fluorescent pink DUI bracelet); Lindsay v. State, 606 So.2d 652, 656-57 (Fla.App.1992) (DUI advertisement in newspaper); Goldschmitt v. State, 490 So.2d 123, 125 (Fla.App.1986) ("Convicted DUI — Restricted License" bumper sticker); cf. People v. McDowell, 59 Cal.App.3d 807, 812-13, 130 Cal.Rptr. 839 (Cal.App.1976) (tap shoes for purse thief who used tennis shoes to approach his victims quietly and flee swiftly). See also Developments in Law: Alternatives to Incarceration, 111 HARV. L. REV.1944, 1953 (1998) ("Eighth Amendment challenges have also failed to overturn shaming conditions, despite arguments that `modern scarlet-letter probation conditions constitute punishment in and of themselves' and that certain shaming conditions impose psychological cruelty while yielding no better results than conventional punishments."); id. at 1953, 130 Cal.Rptr. 839 ("Courts have simply adopted the reasoning that shaming is not cruel or unusual when the alternative is imprisonment."); Dan M. Kahan, What Do Alternative Sanctions Mean?, 63 U. Chi. L.Rev. 591, 646 n. 226 (1996) ("Although the doctrine is exceedingly indeterminate, it seems fairly obvious that shaming penalties are not `cruel and unusual' for purposes of the Eighth Amendment, particularly when the alternative is imprisonment.").
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HAWKINS, Circuit Judge, dissenting:
Conditions of supervised release must be reasonably related to and "involve no greater deprivation of liberty than is reasonably necessary" to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553(a)(1)-(2); 3583(d)(2); United States v. Williams, 356 F.3d 1045, 1056 (9th Cir.2004). Clearly, the shaming punishment 1 at issue in this case was intended to humiliate Gementera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous.2 Because humiliation is not one of the three proper goals under the Sentencing Reform Act,3 I
Page 611
would hold that the district court abused its discretion in imposing the condition.
There is precious little federal authority on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom. Some state courts have reviewed such sentences and the results have been mixed.
People v. Hackler, 13 Cal.App.4th 1049, 16 Cal.Rptr.2d 681, 686-87 (1993), involved a condition that required a shoplifting offender to wear a court-provided t-shirt whenever he left the house that read: "My record plus two six-packs equals four years" on the front and "I am on felony probation for theft" on the back. Applying a state sentencing regime similar to the federal guidelines — authorizing the imposition of reasonable conditions of probation to foster rehabilitation and to protect public safety — the court struck down the condition. Id. at 686, 13 Cal.App.4th 1049. The court held that the relationship between the required conduct (wearing the t-shirt) and the defendant's crime (stealing beer) was so incidental that it was not reasonable and that the true intent behind the condition was to expose Hackler to "public ridicule and humiliation" and not "to foster rehabilitation." Id. at 686-87, 13 Cal.App.4th 1049.
As in Hackler's case, the purpose behind the sandwich board condition was not to rehabilitate Gementera, but rather to turn him into a modern day Hester Prynne.4 This sort of condition is simply improper under the Sentencing Reform Act. See also Springer v. United States, 148 F.2d 411, 415-16(9th Cir.1945) (invalidating a condition that a convicted draft dodger donate a pint of blood to the Red Cross).
Ballenger v. State, 210 Ga.App. 627, 436 S.E.2d 793 (1993), approved a condition that a convicted drunk driver wear a fluorescent pink identification bracelet identifying him as such. By my lights, the dissent in Ballenger is far more persuasive. Concluding that the purpose of the condition was clearly to humiliate, Judge Blackburn argued that "a rationale of rehabilitation may not be used to vest ... authority[to prescribe this type of punishment] in the judiciary." Id. at 795-96 (Blackburn, J. dissenting).
Just as in Hackler and Ballenger, the true intention in this case was to humiliate Gementera, not to rehabilitate him or to deter him from future wrongdoing. When the district court initially imposed the sandwich board condition, the judge explained that Gementera should have to suffer the "humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail." Subsequently, Gementera filed a motion to correct the sentence by having the sandwich board condition removed. He urged that humiliation was not a legitimate objective of punishment or release conditions. Only at the hearing on Gementera's motion did the district court change its characterization of the shaming punishment, remarking that the punishment was one of deterrence and rehabilitation and not merely humiliation.
Although the majority opinion initially seems to accept the district court's retroactive justification for the punishment, it later as much as concedes that the sandwich board condition amounted to a shaming punishment. Admitting that the condition was "crude" and "could entail risk of social withdrawal and stigmatization," the
Page 612
majority nonetheless finds the condition acceptable because it was "coupled with more socially useful provisions." [Op. at 606] Put another way, the majority says that it is not considering "a stand-alone condition intended soley to humiliate, but rather a comprehensive set of conditions." [Op. at 606] But the majority cites to no provision in the Sentencing Reform Act and to no case law indicating that conditions on supervised release should be reviewed as a set and not individually, or that humiliation somehow ceases to be humiliation when combined with other punishment. Cf. United States v. Eyler, 67 F.3d 1386, 1393-94 (9th Cir.1995) ("Any discretionary condition must meet each of the three broad conditions set forth in [the Sentencing Reform Act]." (emphasis added)). The majority's position seems to be that even if one condition of a sentence manifestly violates the Sentencing Act, it can be cured by coupling the provision with other, proper ones. When such a novel proposition is put forward and no case law is cited to support it, there is usually a reason. At the end of the day, we are charged with evaluating a condition whose primary purpose is to humiliate, and that condition should simply not be upheld.
Although I believe that the sandwich board condition violates the Sentencing Reform Act and we should reverse the district court for that reason, I also believe that this is simply bad policy. A fair measure of a civilized society is how its institutions behave in the space between what it may have the power to do and what it should do. The shaming component of the sentence in this case fails that test. "When one shames another person, the goal is to degrade the object of shame, to place him lower in the chain of being, to dehumanize him."5
To affirm the imposition of such punishments recalls a time in our history when pillories and stocks were the order of the day. To sanction such use of power runs the very great risk that by doing so we instill "a sense of disrespect for the criminal justice system" itself. Ballenger, 436 S.E.2d at 796 (Blackburn, J. dissenting).
I would vacate the sentence and remand for re-sentencing, instructing the district court that public humiliation or shaming has no proper place in our system of justice.
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Notes:
1. One scholar has defined a "shaming" punishment as "marked by two features: first, there is an attempt to debase, degrade, or humiliate the offender; and second, the degradation occurs before the public eye, often but not always with the aid of the public." Dan Markel, Are Shaming Punshments Beautifully Retributive? Retributivism and the Implications for the Alternative Sanctions Debate, 54 Vand. L.Rev. 2157, 2178 (Nov.2001). This condition — requiring Gementera to wear a sandwich board outside a public post office declaring his crime — clearly qualifies as a "shaming" punishment.
2. The district judge was forthright in his statement regarding why he imposed the condition: "[Gementera] needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation."
3. The three goals are deterrence, rehabilitation, and protection of the public. 18 U.S.C. §§ 3553(a)(2).
4. See Hawthorne, The Scarlet Letter; Hackler, 16 Cal.Rptr.2d at 686.
5. Markel, supra note 1 at 2179.
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7.2.8.9.2.8 State v. Thompson 7.2.8.9.2.8 State v. Thompson
15 Neb. App. 764
STATE OF NEBRASKA, APPELLANT,
v.
RICHARD W. THOMPSON, APPELLEE.
No. A-06-612.
Court of Appeals of Nebraska.
Filed July 17, 2007.
Jon Bruning, Attorney General, Jeffrey J. Lux, Special Assistant Attorney General, and Paul B. Schaub, Cheyenne County Attorney, for appellant.
Clarence E. Mock, of Johnson & Mock, and Donald J.B. Miller, of Matzke, Mattoon & Miller, for appellee.
INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.
SIEVERS, Judge.
INTRODUCTION
Richard W. Thompson pled no contest to two counts of sexual assault of a child, and the district court for Cheyenne County sentenced Thompson to 5 years' intensive supervised probation on each count, to run consecutively. The State of Nebraska appeals the sentences imposed on Thompson as excessively lenient. The first impression issue presented by this case is Thompson's claim that the State, by agreeing to "remain silent" at sentencing, has waived its right to appeal the district court's sentences as excessively lenient. We conclude that the State did not waive its right to appeal, and therefore, we address the merits of the State's contention on appeal that the sentences are excessively lenient.
FACTUAL BACKGROUND
On October 31, 2005, Thompson was charged with count I, sexual assault of a child; count II, sexual assault of a child; and count III, first degree sexual assault. Thompson was arraigned on November 8 and entered a plea of not guilty. Thereafter, a plea agreement was reached. Thompson's counsel put the plea agreement on the record, stating: "Thompson is prepared to enter a no contest plea to counts I and II, in exchange count III is going to be dismissed and at the time of sentencing the county attorney is going to remain silent." The Cheyenne County Attorney affirmed that such was the plea agreement by the simple statement, "That's right." And, upon inquiry by the court as to whether such was "your agreement," Thompson responded affirmatively on the record. Thompson pled no contest to the two counts of sexual assault of a child, a factual basis was provided on the record, and the trial court accepted the plea and scheduled the sentencing hearing. We shall discuss the details of the crimes in our discussion of the sentences in the analysis section of our opinion.
On May 23, 2006, a sentencing hearing was held. When the court asked if there was any evidence or recommendations to present, the State said that there was "no argument from the State." The State noted that this was "part of [the plea] agreement." The district court then sentenced Thompson as stated above, and the State has timely appealed.
ASSIGNMENT OF ERROR
The State contends that the district court abused its discretion by imposing excessively lenient sentences upon Thompson.
STANDARD OF REVIEW
Whether an appellate court is reviewing a sentence for its leniency or its excessiveness, a sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court's discretion. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.
ANALYSIS
Did State Waive Appellate Sentence Review by Agreeing to Remain Silent at Sentencing?
We begin with Thompson's assertions that the State, by complaining on appeal that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement and that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.
It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." State v. Gonzalez-Faguaga, 266 Neb. at 77, 662 N.W.2d at 588, quoting Santobello v. New York, supra. There is no assertion that the prosecution did not live up to its agreement to "remain silent" at the time of sentencing. The State is given a statutory right to appeal a sentence as excessively lenient pursuant to Neb. Rev. Stat. § 29-2320 (Cum. Supp. 2006). Section 29-2320 provides that the prosecuting attorney in a felony case may appeal the sentence imposed "if such attorney reasonably believes, based on all of the facts and circumstances of the particular case, that the sentence is excessively lenient."
Our research has not revealed any Nebraska precedent addressing Thompson's argument that the State, after agreeing to remain silent at a defendant's sentencing hearing as part of a plea bargain, waives its right to appeal as excessively lenient a sentence which is within the statutory parameters. Thompson and the concurrence cite the following three cases from other jurisdictions to support the claim of waiver: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). We find these cases to be distinguishable, unpersuasive, or both.
In Fruehan, the defendant entered a guilty plea under a plea bargain in which the Commonwealth of Pennsylvania (the Commonwealth) agreed to stand mute with respect to the sentence to be imposed. After the sentence was imposed, the Commonwealth petitioned the trial court to reconsider the sentence, alleging that such sentence was excessively lenient. The Fruehan court noted: "The issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court first observed that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal" and noted that "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id. We note that under the applicable Pennsylvania statute, the [a]llowance of an appeal from the discretionary aspects of sentencing may be granted at the discretion of the [appellate court] where there appears to be a substantial question that an inappropriate sentence has been imposed." Id. at 158, 557 A.2d at 1093. However, in Nebraska, the State's appeal is a matter of right, whereas in Pennsylvania, the appellate court has discretion whether to even consider the appeal.
The Fruehan court further noted: "In determining whether a particular plea agreement has been breached, we look to `what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982). Ultimately, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court specifically noted:
[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).
The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain.... The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.
Com. v. Fruehan, 384 Pa. Super. 156, 160-61, 557 A.2d 1093, 1095 (1989). Thus, in Fruehan, the discretionary appeal that the prosecution sought was "disallowed." Id. at 161, 557 A.2d at 1095. In Fruehan, the Commonwealth was found to have breached the plea agreement by a postsentence request of the sentencing court to increase the sentence. No such breach at the trial court level is involved in the present case, and making such a request of the sentencing court is a fundamentally different matter than the exercise of the State's statutorily granted right to have an appellate court—a different and higher court—review a sentence for an abuse of discretion. As a result, we find Fruehan to be distinguishable.
In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), the defendant pled guilty pursuant to a plea agreement. As part of the agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. It is obvious that in Arriaga, a breach of the plea agreement by the prosecution occurred at the trial level, but as said, no such breach is present here.
The trial court in Arriaga concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence, and the prosecution appealed, alleging that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, finding the rationale set forth in Fruehan to be persuasive, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202. Therefore, the court in Arriaga simply held the prosecution to its agreement—a holding with which we have no disagreement. Because of a materially different procedural background, as well as an obvious breach of the plea agreement in the trial court, Arriaga is not persuasive authority on the issue before us.
In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), the prosecution promised in a plea agreement not to invoke the provisions of its habitual criminal act and to recommend that the sentences on three counts of theft and two counts of burglary run concurrently. The prosecution complied with the agreement, which would have yielded a total sentence of 3 to 10 year's imprisonment on all counts, but the trial court imposed a total sentence of 6 to 20 years' imprisonment on all counts. The defendant moved to modify the sentence in the trial court. At the hearing on such motion, when asked for its view on the motion, the prosecution referred to a Kansas "Reception and Diagnostic Center" report as "not what you would call a good report" and then concluded: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The trial court denied the modification. On appeal, the Kansas Supreme Court stated that "a plea agreement which is silent as to post-sentence hearings is ambiguous." Id. at 68, 765 P.2d at 1119. The Kansas Supreme Court, after finding the plea agreement ambiguous, reasoned that "[w]here a statute is ambiguous, we require that it be strictly construed in favor of the accused." Id. at 69, 765 P.2d at 1120, citing State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987). The court said it found no compelling reason to adopt a different rule in interpreting ambiguous plea agreements. In our view, such conclusion throws aside any number of basic contractual principles that logically are applicable, given that plea agreements are contracts. See State v. Howe, 2 Neb. App. 766, 514 N.W.2d 356 (1994) (finding that plea bargain is contract). One such basic principle which the Wills decision would obviously negate is that a court is not free to rewrite a contract or to speculate as to terms of the contract which the parties have not seen fit to include. Honda Cars of Bellevue v. American Honda Motor Co., 261 Neb. 923, 628 N.W.2d 661 (2001).
The Kansas court in Wills, supra, concluded that the defendant was entitled to have his motion to modify his sentence reheard by a different trial judge and that at the hearing, the prosecution would be bound by the plea agreement. In summary, not only is Wills procedurally and factually different than the instant case, the court in Wills finds an ambiguity regarding appeal when such was not mentioned. Wills simply holds that the prosecution must live up to its plea agreement— a broad principle which is unassailable but which is not determinative in the present case, given the Kansas court's finding of ambiguity which is not present in the plea agreement before us. Thus, Wills is not persuasive authority in this case.
Given the general principle that courts are not to rewrite contracts to include what the parties did not, we find that what the plea agreement between Thompson and the State did not say is of the greatest import in resolving this issue when we note the general principle that the waiver of the right to appeal must be express and unambiguous. U.S. v. Hendrickson, 22 F.3d 170 (7th Cir. 1994) (rejecting defendant's claim that government's appeal of sentence was breach of plea agreement on grounds of waiver and estoppel, when language of plea agreement did not demonstrate intent by either Hendrickson or government to waive right to appeal sentence imposed by district court). See, also, U.S. v. Wiggins, 905 F.2d 51 (4th Cir. 1990). Furthermore, the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Pepper, 412 F.3d 995, 997 (8th Cir. 2005), decided that the language of the plea agreement in that case was not "a waiver of appellate rights, which typically employs more precise terms like 'waiver' and 'appeal." Accordingly, in the instant case, agreeing to "remain silent at sentencing" does not clearly and unambiguously give up the State's statutory right to seek appellate review.
The simple and straightforward agreement of the prosecutor to remain silent at the time of sentencing does not in any way implicate, explicitly or implicitly, the prosecutor's statutory right to seek appellate review of a sentence that he or she believes is excessively lenient. Obviously, making such a waiver part of a plea agreement is a matter of the addition of an additional sentence or two to the agreement, be it oral or written. But we simply cannot manufacture a waiver of this important appellate right possessed by the State from language as straightforward and unambiguous as this plea agreement. With all due respect to our concurring colleague, we submit that Thompson's approach would create a waiver from thin air when none was expressed or even implied. The effect of such a position is that a prosecutor who agrees only to stand silent or mute at sentencing has somehow blithely agreed to accept whatever sentence the sentencing judge hands down—no matter how inappropriate it might be in a particular case for a particular defendant—even though the sentence is within statutory parameters. In so holding, we bear in mind that Nebraska sentencing statutes provide a broad range of sentencing options in order to tailor sentences to the crime, the criminal, and societal interests.
Perhaps the most logical and clearly reasoned decision supporting our view is found in U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), although it involves a written plea agreement detailing the charges to which James Dean Anderson would plead. In Anderson, the written plea agreement provided that the government would urge the trial court to apply the mandatory sentence of at least 15 years on each of several firearms possession counts under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1988). The court dealt with two arguments from Anderson as to why the government was foreclosed from its appeal of the sentences imposed by the district court. The second argument advanced by Anderson was that the government had waived its right to appeal by not explicitly referencing that right in the agreement, contending that whereas Anderson insisted on including language in the written agreement reserving his right to appeal the sentences imposed, the government made no such reservation and therefore waived recourse to a higher court. Because Anderson is so pertinent to our reasoning in this case, we quote at considerable length from the opinion of the U.S. Court of Appeals for the First Circuit as follows:
It seems to us that this argument stands logic on its ear. It is black letter law that plea agreements, "though part and parcel of criminal jurisprudence, are subject to contract-law standards in certain respects." [U.S.] v. Hogan, 862 F.2d 386, 388 (1st Cir.1988); see also United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) ("plea agreements are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him"). Consistent with contract-law principles, we look to the language of the document, focusing squarely within its four corners. See Hogan, 862 F.2d at 388. In this case, such scrutiny reveals an utter absence of any language conditioning defendant's plea on the government's waiver of appellate rights. To be sure, Anderson—citing the contract-law canon that any ambiguity will be construed against the drafter—contends that such a condition should be inferred from the absence of language anent the government's right to appeal. But this is a bootstrap argument, conjuring up an ambiguity where none legitimately exists.
On its face, the terms of the [plea agreement] are clear enough: the government promises to drop the "firearms transportation" charge in exchange for defendant's admission of guilt on the two "firearms possession" charges. If defendant had wanted to condition his plea on the conferral of an incremental benefit—the prosecution's agreement to forgo its right to appeal any sentence imposed—he could have insisted that such a term be made part of the [plea agreement]. He did not do so. Under the circumstances, we find no reason to grant him after the fact the benefit of a condition he failed to negotiate before the fact. To read the [plea agreement], ex silentio, to include a waiver by the government of its right of appeal would give defendant more than is reasonably due. See, e.g., United States v. Fentress, 792 F.2d 461, 464 (4th Cir.1986) ("While the government must be held to the promises it made [in a plea agreement], it will not be bound to those it did not make.").
We believe it would open Pandora's jar to adopt so freeform an interpretation of plea bargains as Anderson urges. The Court has cautioned in connection with plea agreements that it is error for an appellate court "to imply as a matter of law a term which the parties themselves did not agree upon." United States v. Benchimol, 471 U.S. 453, 456, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (per curiam). Under traditional contract principles, we should take an opposite tack, treating a plea agreement as a fully integrated contract and enforcing it according to its tenor, unfestooned with covenants the parties did not see fit to mention.
U.S. v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990).
In the present case, the very simple and basic plea agreement, albeit oral but on the record, was not festooned with a waiver of the State's right of appellate review. There is such a substantial and longstanding body of Nebraska jurisprudence according substantial discretion to the sentencing judge that citation of authority is superfluous. But, if that discretion is to be unfettered and "unexaminable" discretion, the State's waiver of its right of appellate review must actually be part of the agreement rather than judicially created from a plea agreement that fails to even mention such a condition. In short, we enforce the agreement that was made rather than expand it by judicial fiat, and we hold that the State did not waive its statutory right to appellate review of the trial court's sentences.
Sentences.
We cannot pretend to be unaware that the sentences imposed, in conjunction with certain comments made by the trial judge at sentencing, created a brief nationwide firestorm of critical publicity. After a complete review of the record, particularly the presentence investigation report (PSI), we find that the sentences were not an abuse of the trial judge's discretion, and we therefore affirm the district court's sentences for the reasons that follow.
When the State appeals from a sentence, contending that it is excessively lenient, an appellate court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court. State v. Detweiler, 249 Neb. 485, 544 N.W.2d 83 (1996). In State v. Jallen, 218 Neb. 882, 359 N.W.2d 816 (1984), the court held that the same scope of review applies in the lenient sentence context as in the excessive sentence context. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. See State v. Irons, 254 Neb. 18, 574 N.W.2d 144 (1998). In cases such as this, we do not review the sentence de novo and the standard is not what sentence we would have imposed. See State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
The State attacks the sentences on a variety of grounds, although we do not detail nor dissect all arguments advanced in their lengthy brief. The State's principal arguments, summarized, appear to be that (1) the trial judge's comments evidence consideration of an improper factor—Thompson's physical stature, (2) Thompson is a sexual predator who "groomed" his victim, (3) Thompson is at risk to reoffend, (4) Thompson is an abuser of his girlfriend and did not complete the counseling he was to get to avoid prosecution for that offense, and (5) Thompson is unrepentant.
Sentencing Judge's Comments.
After listening to comments from defense counsel at the sentencing hearing, the district judge commented as follows before imposing the probationary sentences:
What you have done is absolutely inexcusable. Absolutely wrong. You will never have any idea of how deeply you have harmed this child. You are an adult. You betrayed the trust and you betrayed it not only at a psychological but a physical level .... You've earned your way to prison. So, I'm sitting here thinking this guy has earned his way to prison but then I look at you and I look at your physical size. I look at your basic ability to cope with people and, quite frankly, I shake to think of what might happen to you in prison because I don't think you'll do well in prison.... I was relieved to know that the people who evaluated you — you are a sex offender, okay. You did this and you did it to a child. That means that at some level you have a sexual preference to children. That doesn't make you a hunter, the predator that we hear about on [television] all the time. I was very relieved to know that you do not fit in that category of human being because that gives me more leeway to not send you to prison. But you need to understand I am going to try to put together some kind of order that will keep you out of prison. But you need to understand that if you don't follow it right to the "T" I have to put you in prison. If you can't structure your behavior so that you are safe and other people are safe out in the community then I have to structure it with prison.
Neb. Rev. Stat. § 29-2322 (Reissue 1995) states in relevant part:
[T]he appellate court, upon a review of the record, shall determine whether the sentence imposed is excessively lenient, having regard for:
(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed:
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the defendant;
(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and
(4) Any other matters appearing in the record which the appellate court deems pertinent.
Neb. Rev. Stat. § 29-2261(3) (Cum. Supp. 2006) provides that "[t]he presentence investigation and report shall include ... the offender's ... physical and mental condition ...." And, § 29-2322(2) mandates consideration of the "characteristics of the defendant." Therefore, the State's proposition that the trial court improperly considered Thompson's physical stature, or that we cannot, is simply incorrect given this statutory language. Additionally, a sentencing judge has broad discretion as to the source and type of information, including personal observations, which may be used as assistance in determining the kind and extent of the punishment to be imposed. State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
Thompson stands 5 feet 2 inches tall and weighs 125 to 130 pounds. Thompson's size and how that "physical condition" will affect him in a prison setting is a relevant consideration. However, given other matters found in the PSI, which matters we will detail shortly, we have no doubt that Thompson's physical stature, although specifically mentioned, was but a minor point in the trial court's sentencing decision. However, before turning to the PSI, we note that because probation rather than imprisonment was imposed, Neb. Rev. Stat. § 29-2260 (Reissue 1995) is implicated. Section 29-2260 provides in pertinent part:
[T]he court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:
(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;
(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for law.
(3) The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened serious harm;
(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated commission of the crime;
(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;
(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;
(h) The crime was the result of circumstances unlikely to recur;
(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to probationary treatment; and
(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.
Clearly, our considerations found in § 29-2322, when addressing an excessively lenient sentence appeal, and the trial court's considerations found in § 29-2260, when withholding imprisonment and imposing probation, overlap. That said, we have considered the PSI in light of the considerations in both statutes. We now set forth the most important information found in the comprehensive PSI. But, at the outset, we recognize that parts of the PSI support probationary sentences while other aspects of the PSI suggest that incarceration is appropriate. In other words, this sentencing decision, like many such judicial decisions, is not formulaic, nor is it simply a matter of doctrine. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life. State v. Bell, 242 Neb. 138, 493 N.W.2d 339 (1992).
Thompson was born out of wedlock in Sidney, Nebraska, on July 10, 1955. He never knew his father and had no siblings. His mother never married and died in late 2005 at the age of 80. Thompson described a good and loving relationship with his mother and said that her passing was extremely hard on him. Thompson is a high school graduate, but according to testing, he has less than average intelligence. He has been employed throughout his life since age 17, and his employer at the time of the PSI indicated that if Thompson was not incarcerated, he would retain his employment with them. He was earning approximately $1,100 per month.
Before these convictions, Thompson had two convictions in the 1980's for driving under the influence, but no conviction since 1988 for even so much as a traffic ticket. In April 2005, as a result of a domestic altercation between Thompson and the woman with whom he was living, C.G., he was charged with third degree assault and cruelty toward a child, but he was not prosecuted on the condition that he seek counseling and abide by the counselor's recommendations. The record indicates that during this domestic altercation, Thompson pushed C.G., causing her to fall and sustain a bruise; shook his fist at her; and pushed C.G.'s daughter when she tried to intervene. While the State argues that Thompson's failure to complete this required counseling militates against probation in this case, the record shows that he contacted a counselor and had four sessions with the counselor before the current situation arose in October 2005.
The victim in this case, E.G., was the daughter of C.G., the woman who began dating Thompson and subsequently lived with him upon moving to Sidney with her two children in April 2004. E.G. was 12 years old at the time she, her younger brother, and her mother began living with Thompson. E.G. reported six occasions of sexual contact by Thompson between July 2005 and September of that year, when the living arrangement between Thompson, C.G., and her children ended.
E.G. recounted that Thompson rubbed her vaginal area outside of her clothing on two occasions and that during one such occasion, he attempted to briefly penetrate her digitally, but he stopped when she asked him to stop. There were three occasions recounted by E.G. when Thompson, who was clothed, laid on top of her and rubbed against her genital area through her clothes. E.G. recounted that on two of those occasions, Thompson kissed her breasts. Thompson also kissed E.G. on the mouth a number of times. E.G. did not describe any attempt at penile penetration. E.G. described Thompson as gentle and said that he did not threaten her in any way. She also described these encounters as being very brief in duration and stated that such ended when he voluntarily stopped and left. No ejaculation was reported by E.G. When taken in for questioning by police, Thompson was highly emotional, was crying, and ultimately admitted the core of the allegations to the officer.
E.G. completed a victim impact statement in which she recounted the following:
I don't trust men. I worry about what they want to do to me. I'm afraid to live with mom and her new boyfriend because of what [Thompson] did to me.
... I worry about other kids knowing what [Thompson] did to me. This makes me feel different.
....
... I think [Thompson] should go to prison so he doesn't do it to any other girls.
A licensed mental health professional who saw E.G.—although we cannot discern from the PSI the nature, length, or frequency of any therapy—also completed a victim impact statement form, on which she stated:
[E.G.] does not trust her own judgment. This is directly related to [Thompson's] gradual grooming and seduction of [E.G., who] truly believed [Thompson] cared about her and would not harm her or do anything that was wrong. [E.G.] is also having a multitude of social problems that stem from her feelings of being different now that this has happened. She is still suffering from feelings of shame, embarrassment and guilt that will take a great deal of time to work through. [E.G.] was horrifically used, abused and betrayed by this man and will continue to need extensive therapy to help her recover from this tragic violation. He not only violated her physically but emotionally and spiritually.
This therapist also offered the following opinions to the trial court on the victim impact statement form:
I think that [Thompson] should be sentenced to 10 years in prison. I realize that this is his first offense that he has been arrested for but I have every reason to believe that this is not the first time that he has molested a child.
After listening in great detail to the seduction and molestation of [E.G.,] I have no doubt that [Thompson] has molested other children in the past. If he is not held accountable for this he will continue to molest other girls. But rest assured he will get better at it.
Other than this statement, there is absolutely no evidence to support the conclusion that Thompson has victimized any other child or adult female, and the claim that he purposefully "groomed" E.G. is contradicted by others involved in the presentence evaluation of Thompson.
The psychologist who performed a mental status examination of Thompson which included the "Minnesota Multiphasic Personality Inventory" considered Thompson's results to be valid. The psychologist stated as follows regarding the result of such testing:
Persons with [Thompson's] profile are often seen as rather dependent and often unable or unwilling to meet their own needs but instead looking for others to do so. A history of repressed hostility and anger is common in this profile type. Denial is usually the defense mechanism of choice. A difficulty in treatment of individuals with this profile type is getting them to accept responsibility for their own behavior. The profile indicates that [Thompson] is likely to be suspicious of others, overly sensitive to rejection, impulsive, and lacking in insight. The profile does not indicate that [Thompson] is presently suffering from psychotic disorder or thinking impairment. He is likely to keep to himself and have difficulty establishing and maintaining relationships. This profile does not show a high potential for substance abuse/alcohol addiction.
....
... [Thompson's] tendency is to act without thinking in a rather immature reaction style. He does not appear to meet criteria for pedophilia. The present offense appears to be one more of impulse control and lack of judgment and does not appear to include any violence or "grooming". There are no known previous sexual offenses with adults or children. It is noted that the victim in this case is post pubescent. Testing shows [Thompson] to be rather immature and self-centered, but he does not show indications of psychopathy or psychosis. Sexual offenders with this profile are usually best managed by requiring no unsupervised contact with vulnerable potential victims, requirement of lack of use of drugs and alcohol to prevent further diminishment of judgment, and long term probation/parole oversight to ensure compliance. He can be characterized as an immature/opportunistic offender rather than an aggressive offender. Ongoing counseling services may be of benefit to this individual if he is able to work through his denial.... As noted in the diagnostic impression this patient does not appear to meet criteria for classification as a sexual psychopath, sexual predator, or similar classifications.
As part of the probation officer's investigation, the probation officer administered the "Sexual Adjustment Inventory" (SAI) to Thompson. Pertinent scores and comments from the SAI report are as follows:
SEXUAL ADJUSTMENT SCALE:LOW RISK RANGE RISK PERCENTILE:8
This person's score on the Sexual Adjustment Scale is in the Low Risk (zero to 39th percentile) range. This response pattern indicates a rather normal and generally satisfactory sexual adjustment....
CHILD MOLEST SCALE:PROBLEM RISK RANGE RISK PERCENTILE:73
This offender's response pattern on the Child Molest Scale is in the Problem Risk (70 to 89th percentile) range. Problematic child molest behavioral (pedophilia) indicators are present. Review court-related records carefully for prior sex-related offenses or convictions....
SEXUAL ASSAULT SCALE:MEDIUM RISK RANGE RISK PERCENTILE:69
This person's score on the Sexual Assault (Rape) Scale is in the Medium Risk (40 to 69th percentile) range. Some indicators of sex-related anger, hostility and aggression are evident. However, an established pattern of sexual assaultive behavior is not present....
INCEST SCALE:LOW RISK RANGE RISK PERCENTILE:0
This individual's score on the Incest Scale is in the Low Risk (zero to 39th percentile) range. Low risk scorers reveal few, if any, indicators of incestuous behavior.
EXHIBITIONISM SCALE:LOW RISK RANGE RISK PERCENTILE:0
This person's response pattern on the Exhibitionism Scale is in the Low Risk (zero to 39th percentile) range. Low risk range scorers typically do not expose their sex organs to unsuspecting persons. This is a Low risk exhibitionism profile.
The SAI report also contains scores and comments for an alcohol scale, a drug scale, a violence scale, and an antisocial scale. Thompson's risk percentiles were classified as low in all four of these categories with scores of 6, 0, 8, and 0, respectively. Significantly, the antisocial scale and its accompanying comments provide in part:
ANTISOCIAL SCALE:LOW RISK RANGE RISK PERCENTILE:0
Few, if any, indicators of repeated lying, deceit, or chronic inability to conform to society are present. A moral or ethical blunting is not evident. This person is capable of affection, sympathy and remorse. Low risk usually is not associated with antisocial tendencies. Indeed, low risk is characterized by responsibility, emotional stability and capability of maintaining significant relationships and loyalties.
Within the PSI is Thompson's handwritten statement that contains his admission of wrongdoing and his acknowledgment that he hurt E.G. as well as family and friends. It contains a number of assertions that he will never repeat this mistake. The State argues that his letter is overly focused on his own pain and suffering from these events rather than on that of his victim. There is certainly an element of that in his letter. For example, he stated:
I know that I will never ever do something like this again [be]cause what it has done to me mentally and how bad it has hurt me, and it isn't worth the pain to go through it again because I have suffered in my mind and hurt so much that I know I would not do it again.
However, his letter expresses his remorse and acknowledges that he hurt E.G. For example, he wrote: "And knowing that I have also hurt [E.G.] too because the way she loved me as her dad[d]y ...."
Finally, we quote in part the "Summary/Evaluation" section of the report by the district probation officer:
With regards to the sentence in this case, it does not appear a term of imprisonment at the Nebraska Correctional Complex would be required, rather [Thompson] may benefit from services that could be provided during a term of Intensive Supervised Probation (ISP). In addition to the standard terms of ISP, this officer would ask the Court that specific conditions of probation be included. [Thompson] should be ordered to complete a letter of apology to the victim and her family. Additional conditions would include [Thompson's] being prohibited from becoming involved in a relationship with someone who has young children or with someone who is around and/or caring for young children. A condition of probation that prohibits [Thompson] from purchasing or being in possession of pornographic material would also be recommended.
We now turn to § 29-2260, which provides that the trial court may withhold a sentence of imprisonment unless, having regard for the nature and circumstances of the crime as well as the history, character, and condition of the offender, the court finds that imprisonment is necessary for protection of the public because (1) there is a substantial risk that during the period of probation, the offender will engage in additional criminal conduct; (2) the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or (3) a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law.
The first of the three factors addresses whether there is a substantial risk that during the period of probation the offender will engage in additional criminal conduct. In this regard, the only assertion that Thompson will reoffend is that made by E.G.'s counselor, but she has had no contact with Thompson and her information comes solely from the victim. In contrast, the psychologist who evaluated Thompson found no evidence of violence or grooming and found no known previous sexual offenses with either adults or children. The psychologist concluded that Thompson is not a pedophile, but, rather, that Thompson's offenses in this case stem from poor judgment and a lack of impulse control. The psychologist unequivocally stated that Thompson does not meet the criteria for classification "as a sexual psychopath, sexual predator, or similar classifications." Additionally, Thompson's score on the SAI indicates "a rather normal and generally satisfactory sexual adjustment." While the SAI indicates some risk for child molestation, Thompson's SAI shows that he is at low risk for incest, exhibitionism, alcohol problems, drug problems, and violence and that he does not show any antisocial tendencies. The SAI also found that Thompson is capable of affection, sympathy, remorse, responsibility, and emotional stability.
The second factor under § 29-2260 is that the offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility. The PSI reveals and the probation officer specifically recommends that intensive supervised probation, not incarceration, is appropriate in this case. There is no showing in the PSI that the assistance Thompson needs is most effectively provided at a correctional facility.
The third factor addresses whether a lesser sentence will depreciate the seriousness of the offender's crime or promote disrespect for the law. Of the statutory considerations to withhold imprisonment, this is obviously the most subjective. Clearly, the victim and her counselor seek imprisonment, and we assume that they would hold the view that anything less than imprisonment depreciates the seriousness of Thompson's crimes and promotes disrespect for the law. However, the statute requires consideration of the history, character, and condition of the offender, which, when summarized, reveals a person of low to average intelligence who has been a law-abiding citizen, other than two youthful driving while intoxicated convictions and the current conviction, and a person who has remained employed and has had meaningful relationships with his mother, extended family, friends, and his employer. In short, while Thompson's molestation of E.G. has clearly been hurtful and harmful to her, he is not a person who has led an irresponsible life; nor does the PSI suggest that at his core, he is an inherently bad, evil, or dangerous person. He did, however, commit horrific acts violating a young girl's trust and affection for him.
While there is a temptation on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes of this sort, it is the function of the sentencing judge, in the first instance, to evaluate the crime and the offender. Our appellate review for an abuse of discretion also includes consideration of the crime and the offender. It has long been recognized that a sentence should fit the offender and not merely the crime. See Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). As stated by the Nebraska Supreme Court in State v. Harrison, 255 Neb. 990, 1005, 588 N.W.2d 556, 565 (1999):
Indeed, this court has repeatedly recognized the importance of probation to our system of criminal justice, stating that " "[a] sentence not involving confinement is to be preferred to a sentence involving partial or total confinement in the absence of affirmative reasons to the contrary."...'" State v. Javins, 199 Neb. 38, 40-41, 255 N.W.2d 872, 874 (1977), quoting State v. Shonkwiler, 187 Neb. 747, 194 N.W.2d 172 (1972). Thus, "justice" may certainly be served by a sentence of probation. Whether justice is so served is a matter that is, in the first instance, properly left to the trial court.
Section 29-2260(3) contains considerations which shall be accorded weight in favor of withholding a sentence of imprisonment, including, inter alia, whether the crime neither caused nor threatened serious harm, whether the offender acted under strong provocation, whether substantial grounds were present tending to excuse or justify the crime, and whether the victim induced or facilitated the commission of the crime. The record does not support a conclusion that any of these factors are present, which conclusion would militate in favor of withholding imprisonment, and thus, the probationary sentences are not justified by these factors. But the inquiry does not end here.
With respect to our obligation upon review of a sentence claimed to be excessively lenient, we are to have regard for the nature and circumstances of the offense, the history and characteristics of the defendant, and the need for the sentence imposed to afford adequate deterrence to criminal conduct, to protect the public from the defendant, and to reflect the seriousness of the offense and provide just punishment as well as to provide the defendant with needed correctional treatment in the most effective manner. See § 29-2322. We have already discussed these factors at various points in our analysis, except we have not examined in any detail the sentences imposed, beyond simply stating that they are two 5-year terms of intensive supervised probation, to run consecutively. It is important to detail some of the requirements of Thompson's probationary sentences so that the reader knows that it is not simply a "get out of jail free card."
Under the terms of Thompson's probation, he must be employed or attend school and he must avoid contact with persons having criminal records. He cannot leave Cheyenne County without the permission of his probation officer. He must abstain from the use and possession of alcohol and submit, upon request of his probation officer, to a chemical test of his blood, breath, or urine. He cannot associate with anyone who possesses firearms. He must serve up to 180 days of electronic monitoring. He is subject to a curfew set by his probation officer. He cannot frequent premises specializing in the sale or consumption of alcohol. He shall enroll in and successfully complete counseling for sexual behavior, as directed by his probation officer. He shall write an apology to his victim. He shall never be unsupervised when a person under the age of 18 is present. He cannot have a dating relationship with anyone who has children under the age of 18 or who cares for children under such age, nor can he live with anyone under the age of 18. He shall not possess any pornography and shall have no computer access in his home. Finally, Thompson is to serve 30 days in the Cheyenne County jail, which was to begin January 1, 2007, and serve another 30 days beginning on January 1 of each year that he is on probation, although such imprisonment may be waived by his probation officer. If Thompson violates the terms of his probation—which is not only supervised, but strict and demanding—he is subject to the filing of a motion to revoke his probation and be sentenced anew. Thompson has agreed to each and every one of these conditions of his probation.
CONCLUSION
The PSI that was in the hands of the district judge before imposition of these sentences contains abundant and logical justification for ordering probation—the terms of which are strict and demanding—rather than incarceration. After our review of the crimes, the sentences, and the information in the PSI, we have no hesitancy in saying that the sentences are not an abuse of discretion and, therefore, are not excessively lenient.
We have taken great care for a specific reason to detail information in the PSI, which information has not been, and would not otherwise be, available to the public and media. Our reason for doing so is to illustrate that if the sentencing judge went awry in this case, it was only in failing to provide a more detailed explanation on the record of the multiple factors in the PSI which clearly justified the probationary sentences she imposed. Such failure caused the trial judge's brief mention of Thompson's small physical stature to become the focus of attention, when in reality it was but a minor point. Of far greater consequence is the fact that the examination by a clinical psychologist and the results of the SAI all strongly indicate that Thompson is neither a pedophile nor a sexual predator, but, rather, that his crimes stemmed from poor judgment and a lack of impulse control. Of equal importance is the fact that the probation officer recommended the sentences imposed by the trial judge. By saying this, we by no means minimize the seriousness of the crimes or the pain and damage which Thompsonon has inflicted upon his victim. Nonetheless, the PSI reveals that he is unlikely to reoffend—and the terms of his probationary program are strictly structured to ensure that this does not happen—and he was told in no uncertain terms that he would be treated harshly if he fails probation.
Because the trial judge did not abuse her discretion in sentencing Thompson, we affirm.
AFFIRMED.
Appellant.
INBODY, Chief Judge, concurring.
I respectfully concur with the result reached by the majority; however, I write separately because I reach this result for different reasons than those of the majority.
The State alleges that the sentences imposed upon Thompson by the district court were excessively lenient. In support of this allegation, the State contends that the district court abused its discretion when it considered impermissible, irrelevant, and inappropriate factors iimposing its sentences, such factors as Thompson's physical size and "his ability to 'cope' with other inmates in prison." Brief for appellant at 20. Conversely, Thompson asserts that the State, by complaining that his sentences were excessively lenient after agreeing to stand silent at the sentencing hearing, is in violation of the parties' plea agreement, and asserts that "[t]his Court should enforce the plea agreement between Thompson and the State by dismissing this appeal." Brief for appellee at 9.
It is well established that plea bargaining is an essential component of the administration of justice. See, Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); State v. Gonzalez-Faguaga, 266 Neb. 72, 662 N.W.2d 581 (2003). The benefits to be derived from plea bargaining, however, presuppose fairness in securing agreement between an accused and a prosecutor. Id. Thus, when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Id.
A plea bargain is a contract, the terms of which necessarily must be interpreted in light of the parties' reasonable expectations. The resolution of each case depends upon the essence of the particular agreement and the government's conduct relating to its obligations in that case. State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).
My research has not revealed any Nebraska cases directly on point with the issue of whether the State waives its right to appeal a discretionary sentence as excessively lenient when it agrees to stand silent at the defendant's sentencing hearing as part of a plea bargain. In support of Thompson's proposition that the State waived its right to appeal his sentences as excessively lenient, he cites three cases from other jurisdictions: Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); People v. Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993); and State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988). Out of these three cases, I believe that Fruehan presents the factual situation most similar to that seen in the instant case.
In Fruehan, the court indicated that "[t]he issue of first impression in this appeal is whether the Commonwealth should be allowed to appeal the discretionary aspects of a sentence after it agreed as part of a negotiated plea agreement to stand mute with respect to the sentence to be imposed by the trial court." 384 Pa. Super. at 157, 557 A.2d at 1093. The court, noting that "the sentence imposed by the trial court is within the limits authorized by the legislature and is not illegal," provided that, similar to our case, "the only attack which the Commonwealth has leveled against the sentence is that it represented an abuse of the sentencing court's discretion." Id.
The court noted that "a plea agreement by the Commonwealth to make no sentencing recommendation does not preclude it from correcting misinformation presented to the court by the defendant" and that it does not "prevent the Commonwealth from resisting a post-sentencing request by a defendant to reduce the sentence imposed by the court." Id. at 159, 557 A.2d at 1094. However, the court further noted that "[i]n determining whether a particular plea agreement has been breached, we look to 'what the parties to this plea agreement reasonably understood to be the terms of the agreement." Id. at 160, 557 A.2d at 1094, quoting Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982).
In the end, the Fruehan court found that "to allow the Commonwealth's appeal would be to permit it to breach its plea agreement and deprive the defendant of the benefits thereof." Id. at 157, 557 A.2d at 1093. The court further provided:
[W]e have no difficulty in determining that the Commonwealth's post-sentencing motion was contrary to "what the parties to [the] plea agreement reasonably understood to be the terms of the agreement." The Commonwealth had agreed to "stand mute" with respect to the sentence to be imposed; it could not consistently therewith move post-sentencing to have the [trial] court modify its sentence by changing a sentence of probation to a sentence of incarceration. That the request was made post-sentencing does not minimize the breach. A sentence is not final until the right of review has been exhausted or waived. Commonwealth v. Anderson, 304 Pa.Super. 476, 482, 450 A.2d 1011, 1014 (1982).
The Commonwealth cannot consistently with its agreement seek to effect a harsher sentence by using the back door of post-sentence review. To permit the Commonwealth in the instant case to importune the sentencing court postsentencing to increase the sentence which it imposed would be to permit the Commonwealth to deprive the defendant-appellee of his bargain. The trial court, understandably, declined to consider the Commonwealth's petition. If this Court were to allow the Commonwealth's appeal and thereafter conclude that the defendant-appellee should be resentenced, we, too, would thereby condone the Commonwealth's breach of its plea agreement and aid in depriving appellee of the benefits of his agreement. In that event, the Commonwealth would have been allowed to say, in effect, that only a sentence of imprisonment was satisfactory. We decline to permit this. The Commonwealth agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement.
Com. v. Fruehan, 384 Pa. Super. 156, at 160-61, 557 A.2d 1093, 1095 (1989).
In People v Arriaga, 199 Mich. App. 166, 501 N.W.2d 200 (1993), as part of a plea agreement, the prosecution agreed to take no position on the defendant's request for a sentence below the mandatory minimum. However, at the sentencing hearing, the prosecution argued that there were no substantial and compelling reasons for the court to depart from the mandatory minimum sentence. The trial court concluded that due to the plea agreement, the prosecution could take no position regarding the defendant's sentencing request. The trial court concluded that the defendant had presented substantial and compelling reasons to depart from the mandatory minimum sentence.
On appeal, the prosecution alleged that the trial court abused its discretion in its findings. However, the Arriaga court declined to reach that issue on appeal. The court, citing Fruehan, noted: "The prosecution in this case promised to take no position on the proposed sentencing departure. Although it is entitled to appeal from an unlawful sentence, the sentence imposed here was not unlawful. The trial court had discretion to depart from the statutory mandatory minimum sentence." Arriaga, 199 Mich. App. at 169, 501 N.W.2d at 201. Thus, the court "refuse[d] to condone the breach [of the plea agreement] by evaluating the trial court's discretion in sentencing [the] defendant as it did." Id. at 169, 501 N.W.2d at 202.
In State v. Wills, 244 Kan. 62, 765 P.2d 1114 (1988), as part of a plea agreement, the prosecution promised, in part, to recommend that the sentences imposed upon the defendant run concurrently. The trial court chose not to follow the prosecution's recommendation and imposed consecutive sentences upon the defendant. The defendant then filed a motion to modify the sentence imposed, and at the hearing on such motion, the prosecution noted: "It does not appear that a modification is in order." Id. at 63, 765 P.2d at 1115. The defendant's motion to modify was denied. The defendant then sought to withdraw his guilty plea, contending that the prosecution had violated the defendant's due process rights by failing to comply with the terms of the plea agreement. The motion was overruled.
The Wills court framed the issue as this: "Ms the [prosecution] bound by the plea agreement at the hearing on [the] defendant's motion to modify the sentence?" Id. The court noted that "[t]he issue of whether the prosecution may deviate from the terms of the plea agreement during post-sentence proceedings" was an issue of first impression in Kansas. Id. at 66, 765 P.2d at 1117. In its consideration of the issue, the court stated: "[I]t is reasonable to expect continuing prosecutorial adherence to the [plea] agreement: a prosecutor's commitment to a specified sentence recommendation would be of little value if the government's tongue is to be freed at a later, related proceeding." Wills, 244 Kan. at 68, 765 P.2d at 1119.
Ultimately, the Wills court concluded that "the [prosecution's] promise to make favorable sentence recommendations binds the [prosecution] at the subsequent hearing on the defendant's motion to modify sentence, absent language in the plea agreement limiting the [prosecution's] promise to the original sentencing hearing." Id. at 69-70, 765 P.2d at 1120. The court found that absent language in the plea agreement to the contrary, "the defendant would reasonably expect the [prosecution] to be bound by its promise at all hearings which affect the determination of his sentence." Id. at 69, 765 P.2d at 1119-20.
In the instant case, the State suggests that a trial court abuses its discretion by imposing a sentence based on impermissible considerations or mistaken rationale. See State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998). This certainly is true. However, in an effort to buttress its argument regarding Thompson's sentences, the State also suggests that the sentences were illegal. The State points out language from People v Arriaga, 199 Mich. App. 166, 169, 501 N.W.2d 200, 201 (1993), in which the court noted that the prosecution was "entitled to appeal from an unlawful sentence." However, the sentences imposed in the instant case were not unlawful or illegal. A sentence is illegal when it is not authorized by the judgment of conviction or when it is greater or less than the permissible statutory penalty for the crime. U. S. v. Greatwalker, 285 F.3d 727 (8th Cir. 2002); State v. Alba, 13 Neb. App. 519, 697 N.W.2d 295 (2005).
The majority finds that Corn. v. Fruehan, 384 Pa. Super. 156, 557 A.2d 1093 (1989); Arriaga, supra; and State v. Wills,244 Kan. 62, 765 P.2d 1114 (1988), are all distinguishable from this case. However, in my opinion, U.S. v. Anderson, 921 F.2d 335 (1st Cir. 1990), cited by the majority as "the most logical and clearly reasoned decision supporting our view," is also factually distinguishable from our case. The First Circuit Court of Appeals found that the sentence imposed in Anderson was in violation of the law. The sentences in the instant case were within the statutory limits for the crimes committed by Thompson, and they were neither unlawful nor illegal. Rather, the issue is whether the sentences were an abuse of the trial court's discretion, and in my opinion, we need not reach the issue of whether or not the district court abused its discretion when sentencing Thompson.
After reviewing each of the aforementioned cases, it appears to me that in the plea agreement in the instant case, the State agreed to submit to the trial court's discretion by agreeing to stand silent regarding Thompson's sentences. The situation is not unlike that seen in Fruehan, where the court noted that the Commonwealth "agreed to stand mute with respect to the discretionary aspects of the sentence to be imposed by the court, and the defendant-appellee is entitled to have the Commonwealth abide by its agreement." 384 Pa. Super. at 161, 557 A.2d at 1095. As previously mentioned, there are factual distinctions between our case and Fruehan. However, in my opinion, with regard to the actual questions presented in these cases, these are distinctions with no real differences. Despite the factual distinctions, I find the reasoning employed by the Fruehan court to be persuasive. To permit the State in the instant case to appeal Thompson's sentences as excessively lenient and to allege that the trial court abused its discretion, after the State submitted to the court's discretion, would be to permit the State to deprive Thompson of the benefit of his bargain and would defeat his reasonable expectations of the plea agreement.
Therefore, I would find that the State should not be allowed to complain about the discretionary aspects of sentences imposed when it bargained away the right to take a position on the sentences in the first place, and I would hold that the State has waived its right to appeal the discretionary aspects of Thompson's sentences. Since Thompson's sentences were neither illegal nor unlawful, I would affirm the judgment of the district court on these grounds, rather than on those expressed by the majority.